SF 834

2nd Engrossment - 93rd Legislature (2023 - 2024) Posted on 10/25/2023 10:23am

A bill for an act
relating to environment; prohibiting PFAS in certain products; requiring disclosure;
authorizing rulemaking; amending Minnesota Statutes 2022, section 325F.072,
subdivisions 1, 3, by adding a subdivision; proposing coding for new law in
Minnesota Statutes, chapter 116.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [116.943] PRODUCTS CONTAINING PFAS.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For purposes of this section, the following terms have
the meanings given.
new text end

new text begin (b) "Adult mattress" means a mattress other than a crib mattress or toddler mattress.
new text end

new text begin (c) "Air care product" means a chemically formulated consumer product labeled to
indicate that the purpose of the product is to enhance or condition the indoor environment
by eliminating odors or freshening the air.
new text end

new text begin (d) "Automotive maintenance product" means a chemically formulated consumer product
labeled to indicate that the purpose of the product is to maintain the appearance of a motor
vehicle, including products for washing, waxing, polishing, cleaning, or treating the exterior
or interior surfaces of motor vehicles. Automotive maintenance product does not include
automotive paint or paint repair products.
new text end

new text begin (e) "Carpet or rug" means a fabric marketed or intended for use as a floor covering.
new text end

new text begin (f) "Cleaning product" means a finished product used primarily for domestic, commercial,
or institutional cleaning purposes, including but not limited to an air care product, an
automotive maintenance product, a general cleaning product, or a polish or floor maintenance
product.
new text end

new text begin (g) "Commissioner" means the commissioner of the Pollution Control Agency.
new text end

new text begin (h) "Cookware" means durable houseware items used to prepare, dispense, or store food,
foodstuffs, or beverages. Cookware includes but is not limited to pots, pans, skillets, grills,
baking sheets, baking molds, trays, bowls, and cooking utensils.
new text end

new text begin (i) "Cosmetic" means articles, excluding soap:
new text end

new text begin (1) intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise
applied to the human body or any part thereof for the purpose of cleansing, beautifying,
promoting attractiveness, or altering the appearance; and
new text end

new text begin (2) intended for use as a component of any such article.
new text end

new text begin (j) "Currently unavoidable use" means a use of PFAS that the commissioner has
determined by rule under this section to be essential for health, safety, or the functioning
of society and for which alternatives are not reasonably available.
new text end

new text begin (k) "Fabric treatment" means a substance applied to fabric to give the fabric one or more
characteristics, including but not limited to stain resistance or water resistance.
new text end

new text begin (l) "Intentionally added" means PFAS deliberately added during the manufacture of a
product where the continued presence of PFAS is desired in the final product or one of the
product's components to perform a specific function.
new text end

new text begin (m) "Juvenile product" means a product designed or marketed for use by infants and
children under 12 years of age:
new text end

new text begin (1) including but not limited to a baby or toddler foam pillow; bassinet; bedside sleeper;
booster seat; changing pad; child restraint system for use in motor vehicles and aircraft;
co-sleeper; crib mattress; highchair; highchair pad; infant bouncer; infant carrier; infant
seat; infant sleep positioner; infant swing; infant travel bed; infant walker; nap cot; nursing
pad; nursing pillow; play mat; playpen; play yard; polyurethane foam mat, pad, or pillow;
portable foam nap mat; portable infant sleeper; portable hook-on chair; soft-sided portable
crib; stroller; and toddler mattress; and
new text end

new text begin (2) not including a children's electronic product such as a personal computer, audio and
video equipment, calculator, wireless phone, game console, handheld device incorporating
a video screen, or any associated peripheral such as a mouse, keyboard, power supply unit,
or power cord; a medical device; or an adult mattress.
new text end

new text begin (n) "Manufacturer" means the person that creates or produces a product or whose brand
name is affixed to the product. In the case of a product imported into the United States,
manufacturer includes the importer or first domestic distributor of the product if the person
that manufactured or assembled the product or whose brand name is affixed to the product
does not have a presence in the United States.
new text end

new text begin (o) "Medical device" has the meaning given "device" under United States Code, title
21, section 321, subsection (h).
new text end

new text begin (p) "Perfluoroalkyl and polyfluoroalkyl substances" or "PFAS" means a class of
fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
new text end

new text begin (q) "Product" means an item manufactured, assembled, packaged, or otherwise prepared
for sale to consumers, including but not limited to its product components, sold or distributed
for personal, residential, commercial, or industrial use, including for use in making other
products.
new text end

new text begin (r) "Product component" means an identifiable component of a product, regardless of
whether the manufacturer of the product is the manufacturer of the component.
new text end

new text begin (s) "Ski wax" means a lubricant applied to the bottom of snow runners, including but
not limited to skis and snowboards, to improve their grip or glide properties. Ski wax includes
related tuning products.
new text end

new text begin (t) "Textile" means an item made in whole or part from a natural or synthetic fiber, yarn,
or fabric. Textile includes but is not limited to leather, cotton, silk, jute, hemp, wool, viscose,
nylon, and polyester.
new text end

new text begin (u) "Textile furnishings" means textile goods of a type customarily used in households
and businesses, including but not limited to draperies, floor coverings, furnishings, bedding,
towels, and tablecloths.
new text end

new text begin (v) "Upholstered furniture" means an article of furniture that is designed to be used for
sitting, resting, or reclining and that is wholly or partly stuffed or filled with any filling
material.
new text end

new text begin Subd. 2. new text end

new text begin Information required. new text end

new text begin (a) On or before January 1, 2026, a manufacturer of a
product sold, offered for sale, or distributed in the state that contains intentionally added
PFAS must submit to the commissioner information that includes:
new text end

new text begin (1) a brief description of the product, including a universal product code (UPC), stock
keeping unit (SKU), or other numeric code assigned to the product;
new text end

new text begin (2) the purpose for which PFAS are used in the product, including in any product
components;
new text end

new text begin (3) the amount of each PFAS, identified by its chemical abstracts service registry number,
in the product, reported as an exact quantity determined using commercially available
analytical methods or as falling within a range approved for reporting purposes by the
commissioner;
new text end

new text begin (4) the name and address of the manufacturer and the name, address, and phone number
of a contact person for the manufacturer; and
new text end

new text begin (5) any additional information requested by the commissioner as necessary to implement
the requirements of this section.
new text end

new text begin (b) With the approval of the commissioner, a manufacturer may supply the information
required in paragraph (a) for a category or type of product rather than for each individual
product.
new text end

new text begin (c) A manufacturer must submit the information required under this subdivision whenever
a new product that contains intentionally added PFAS is sold, offered for sale, or distributed
in the state and update and revise the information whenever there is significant change in
the information or when requested to do so by the commissioner.
new text end

new text begin (d) A person may not sell, offer for sale, or distribute for sale in the state a product
containing intentionally added PFAS if the manufacturer has failed to provide the information
required under this subdivision and the person has received notification under subdivision
4.
new text end

new text begin Subd. 3. new text end

new text begin Information requirement waivers; extensions. new text end

new text begin (a) The commissioner may
waive all or part of the information requirement under subdivision 2 if the commissioner
determines that substantially equivalent information is already publicly available. The
commissioner may grant a waiver under this paragraph to a manufacturer or a group of
manufacturers for multiple products or a product category.
new text end

new text begin (b) The commissioner may enter into an agreement with one or more other states or
political subdivisions of a state to collect information and may accept information to a shared
system as meeting the information requirement under subdivision 2.
new text end

new text begin (c) The commissioner may extend the deadline for submission by a manufacturer of the
information required under subdivision 2 if the commissioner determines that more time is
needed by the manufacturer to comply with the submission requirement.
new text end

new text begin Subd. 4. new text end

new text begin Testing required and certificate of compliance. new text end

new text begin (a) If the commissioner has
reason to believe that a product contains intentionally added PFAS and the product is being
offered for sale in the state, the commissioner may direct the manufacturer of the product
to, within 30 days, provide the commissioner with testing results that demonstrate the amount
of each of the PFAS, identified by its chemical abstracts service registry number, in the
product, reported as an exact quantity determined using commercially available analytical
methods or as falling within a range approved for reporting purposes by the commissioner.
new text end

new text begin (b) If testing demonstrates that the product does not contain intentionally added PFAS,
the manufacturer must provide the commissioner a certificate attesting that the product does
not contain intentionally added PFAS, including testing results and any other relevant
information.
new text end

new text begin (c) If testing demonstrates that the product contains intentionally added PFAS, the
manufacturer must provide the commissioner with the testing results and the information
required under subdivision 2.
new text end

new text begin (d) A manufacturer must notify persons who sell or offer for sale a product prohibited
under subdivision 2 or 5 that the sale of that product is prohibited in this state and provide
the commissioner with a list of the names and addresses of those notified.
new text end

new text begin (e) The commissioner may notify persons who sell or offer for sale a product prohibited
under subdivision 2 or 5 that the sale of that product is prohibited in this state.
new text end

new text begin Subd. 5. new text end

new text begin Prohibitions. new text end

new text begin (a) Beginning January 1, 2025, a person may not sell, offer for
sale, or distribute for sale in this state the following products if the product contains
intentionally added PFAS:
new text end

new text begin (1) carpets or rugs;
new text end

new text begin (2) cleaning products;
new text end

new text begin (3) cookware;
new text end

new text begin (4) cosmetics;
new text end

new text begin (5) dental floss;
new text end

new text begin (6) fabric treatments;
new text end

new text begin (7) juvenile products;
new text end

new text begin (8) menstruation products;
new text end

new text begin (9) textile furnishings;
new text end

new text begin (10) ski wax; or
new text end

new text begin (11) upholstered furniture.
new text end

new text begin (b) The commissioner may by rule identify additional products by category or use that
may not be sold, offered for sale, or distributed for sale in this state if they contain
intentionally added PFAS and designate effective dates. A prohibition adopted under this
paragraph must be effective no earlier than January 1, 2025, and no later than January 1,
2032. The commissioner must prioritize the prohibition of the sale of product categories
that, in the commissioner's judgment, are most likely to contaminate or harm the state's
environment and natural resources if they contain intentionally added PFAS.
new text end

new text begin (c) Beginning January 1, 2032, a person may not sell, offer for sale, or distribute for sale
in this state any product that contains intentionally added PFAS, unless the commissioner
has determined by rule that the use of PFAS in the product is a currently unavoidable use.
The commissioner may specify specific products or product categories for which the
commissioner has determined the use of PFAS is a currently unavoidable use. The
commissioner may not determine that the use of PFAS in a product is a currently unavoidable
use if the product is listed in paragraph (a).
new text end

new text begin Subd. 6. new text end

new text begin Fees. new text end

new text begin The commissioner may establish by rule a fee payable by a manufacturer
to the commissioner upon submission of the information required under subdivision 2 to
cover the agency's reasonable costs to implement this section. Fees collected under this
subdivision must be deposited in an account in the environmental fund.
new text end

new text begin Subd. 7. new text end

new text begin Enforcement. new text end

new text begin (a) The commissioner may enforce this section under sections
115.071 and 116.072. The commissioner may coordinate with the commissioners of
commerce and health in enforcing this section.
new text end

new text begin (b) When requested by the commissioner, a person must furnish to the commissioner
any information that the person may have or may reasonably obtain that is relevant to show
compliance with this section.
new text end

new text begin Subd. 8. new text end

new text begin Exemptions. new text end

new text begin This section does not apply to:
new text end

new text begin (1) a product for which federal law governs the presence of PFAS in the product in a
manner that preempts state authority;
new text end

new text begin (2) a product regulated under section 325F.072 or 325F.075; or
new text end

new text begin (3) the sale or resale of a used product.
new text end

new text begin Subd. 9. new text end

new text begin Rules. new text end

new text begin The commissioner may adopt rules necessary to implement this section.
Section 14.125 does not apply to the commissioner's rulemaking authority under this section.
new text end

Sec. 2.

Minnesota Statutes 2022, section 325F.072, subdivision 1, is amended to read:

Subdivision 1.

Definitions.

(a) For the purposes of this section, the following terms have
the meanings given.

(b) "Class B firefighting foam" means foam designed deleted text begin for flammable liquid fires deleted text end new text begin to
prevent or extinguish a fire in flammable liquids, combustible liquids, petroleum greases,
tars, oils, oil-based paints, solvents, lacquers, alcohols, and flammable gases new text end .

(c) "PFAS chemicals" or "perfluoroalkyl and polyfluoroalkyl substances" means deleted text begin , for
the purposes of firefighting agents, deleted text end a class of fluorinated organic chemicals containing at
least one fully fluorinated carbon atom deleted text begin and designed to be fully functional in class B
firefighting foam formulations deleted text end .

(d) "Political subdivision" means a county, city, town, or a metropolitan airports
commission organized and existing under sections 473.601 to 473.679.

(e) "State agency" means an agency as defined in section 16B.01, subdivision 2.

(f) "Testing" means calibration testing, conformance testing, and fixed system testing.

Sec. 3.

Minnesota Statutes 2022, section 325F.072, subdivision 3, is amended to read:

Subd. 3.

Prohibition deleted text begin of testing and training deleted text end .

(a) deleted text begin Beginning July 1, 2020, deleted text end No person,
political subdivision, or state agency shall deleted text begin discharge class B firefighting foam that contains
intentionally added deleted text end new text begin manufacture or knowingly sell, offer for sale, distribute for sale, or
distribute for use in this state, and no person shall use in this state, class B firefighting foam
containing new text end PFAS chemicals deleted text begin : deleted text end new text begin .
new text end

deleted text begin (1) for testing purposes, unless the testing facility has implemented appropriate
containment, treatment, and disposal measures to prevent releases of foam to the environment;
or
deleted text end

deleted text begin (2) for training purposes, unless otherwise required by law, and with the condition that
the training event has implemented appropriate containment, treatment, and disposal measures
to prevent releases of foam to the environment. For training purposes, class B foam that
contains intentionally added PFAS chemicals shall not be used.
deleted text end

deleted text begin (b) This section does not restrict:
deleted text end

deleted text begin (1) the manufacture, sale, or distribution of class B firefighting foam that contains
intentionally added PFAS chemicals; or
deleted text end

deleted text begin (2) the discharge or other use of class B firefighting foams that contain intentionally
added PFAS chemicals in emergency firefighting or fire prevention operations.
deleted text end

new text begin (b) This subdivision does not apply to the manufacture, sale, distribution, or use of class
B firefighting foam for which the inclusion of PFAS chemicals is required by federal law,
including but not limited to Code of Federal Regulations, title 14, section 139.317. If a
federal requirement to include PFAS chemicals in class B firefighting foam is revoked after
January 1, 2024, class B firefighting foam subject to the revoked requirements is no longer
exempt under this paragraph effective one year after the day of revocation.
new text end

new text begin (c) This subdivision does not apply to the manufacture, sale, distribution, or use of class
B firefighting foam for purposes of use at an airport, as defined under section 360.013,
subdivision 39, until the state fire marshal makes a determination that:
new text end

new text begin (1) the Federal Aviation Administration has provided policy guidance on the transition
to fluorine-free firefighting foam;
new text end

new text begin (2) a fluorine-free firefighting foam product is included in the Federal Aviation
Administration's Qualified Product Database; and
new text end

new text begin (3) a firefighting foam product included in the database under clause (2) is commercially
available in quantities sufficient to reliably meet the requirements under Code of Federal
Regulations, title 14, part 139.
new text end

new text begin (d) Until the state fire marshal makes a determination under paragraph (c), the operator
of an airport using class B firefighting foam containing PFAS chemicals must, on or before
December 31 each calendar year, submit a report to the state fire marshal regarding the
status of the airport's conversion to class B firefighting foam products without intentionally
added PFAS, the disposal of class B firefighting foam products with intentionally added
PFAS, and an assessment of the factors listed in paragraph (c) as applied to the airport.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2024.
new text end

Sec. 4.

Minnesota Statutes 2022, section 325F.072, is amended by adding a subdivision
to read:

new text begin Subd. 3a. new text end

new text begin Discharge for testing and training. new text end

new text begin A person, political subdivision, or state
agency exempted from the prohibitions under subdivision 3 may not discharge class B
firefighting foam that contains intentionally added PFAS chemicals for:
new text end

new text begin (1) testing purposes, unless the testing facility has implemented appropriate containment,
treatment, and disposal measures to prevent releases of foam to the environment; or
new text end

new text begin (2) training purposes, unless otherwise required by law, and with the condition that the
training event has implemented appropriate containment, treatment, and disposal measures
to prevent releases of foam to the environment.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2024.
new text end

Sec. 5. new text begin FIREFIGHTER TURNOUT GEAR; REPORT.
new text end

new text begin (a) The commissioner of the Pollution Control Agency, in cooperation with the
commissioner of health, must submit a report to the chairs and ranking minority members
of the legislative committees and divisions with jurisdiction over the environment and
natural resources regarding perfluoroalkyl and polyfluoroalkyl substances (PFAS) in turnout
gear by January 15, 2024. The report must include:
new text end

new text begin (1) current turnout gear requirements and options for eliminating or reducing PFAS in
turnout gear;
new text end

new text begin (2) current turnout gear disposal methods and recommendations for future disposal to
prevent PFAS contamination; and
new text end

new text begin (3) recommendations and protocols for PFAS biomonitoring in firefighters, including
a process for allowing firefighters to voluntarily register for biomonitoring.
new text end

new text begin (b) For the purposes of this section, "turnout gear" is the personal protective equipment
(PPE) used by firefighters.
new text end

Sec. 6. new text begin TEMPORARY EXEMPTION FOR TERMINALS AND OIL REFINERIES.
new text end

new text begin Subdivision 1. new text end

new text begin Temporary exemption. new text end

new text begin Minnesota Statutes, section 325F.072, subdivision
3, does not apply to the manufacture, sale, distribution, or use of class B firefighting foam
for the purposes of use at a terminal or oil refinery until January 1, 2026.
new text end

new text begin Subd. 2. new text end

new text begin Extension; waiver. new text end

new text begin (a) A person who operates a terminal or oil refinery may
apply to the state fire marshal for a waiver to extend the exemption under subdivision 1
beyond January 1, 2026, as provided in this subdivision.
new text end

new text begin (b) The state fire marshal may grant a waiver to extend the exemption under subdivision
1 for a specific use if the applicant provides all of the following:
new text end

new text begin (1) clear and convincing evidence that there is no commercially available replacement
that does not contain intentionally added PFAS chemicals and that is capable of suppressing
fire for that specific use;
new text end

new text begin (2) information on the amount of firefighting foam containing intentionally added PFAS
chemicals stored, used, or released on-site on an annual basis;
new text end

new text begin (3) a detailed plan, with timelines, for the operator of the terminal or oil refinery to
transition to firefighting foam that does not contain intentionally added PFAS chemicals
for that specific use; and
new text end

new text begin (4) a plan for meeting the requirements under subdivision 3.
new text end

new text begin (c) The state fire marshal must ensure there is an opportunity for public comment during
the waiver process. The state fire marshal must consider both information provided by the
applicant and information provided through public comment when making a decision on
whether to grant a waiver. The term of a waiver must not exceed two years. The state fire
marshal must not grant a waiver for a specific use if any other terminal or oil refinery is
known to have transitioned to commercially available class B firefighting foam that does
not contain intentionally added PFAS chemicals for that specific use. All waivers must
expire by January 1, 2028. A person that anticipates applying for a waiver for a terminal or
oil refinery must submit a notice of intent to the state fire marshal by January 1, 2025, in
order to be considered for a waiver beyond January 1, 2026. The state fire marshal must
notify the waiver applicant of a decision within six months of the waiver submission date.
new text end

new text begin (d) The state fire marshal must provide an applicant for a waiver under this subdivision
an opportunity to:
new text end

new text begin (1) correct deficiencies when applying for a waiver; and
new text end

new text begin (2) provide evidence to dispute a determination that another terminal or oil refinery is
known to have transitioned to commercially available class B firefighting foam that does
not contain intentionally added PFAS chemicals for that specific use, including evidence
that the specific use is different.
new text end

new text begin Subd. 3. new text end

new text begin Use requirements. new text end

new text begin (a) A person that uses class B firefighting foam containing
intentionally added PFAS chemicals under this section must:
new text end

new text begin (1) implement tactics that have been demonstrated to prevent release directly to the
environment, such as to unsealed ground, soakage pits, waterways, or uncontrolled drains;
new text end

new text begin (2) attempt to fully contain all firefighting foams with PFAS on-site using demonstrated
practices designed to contain all PFAS releases;
new text end

new text begin (3) implement containment measures such as bunds and ponds that are controlled, are
impervious to PFAS chemicals, and do not allow fire water, wastewater, runoff, and other
wastes to be released to the environment, such as to soils, groundwater, waterways, or
stormwater; and
new text end

new text begin (4) dispose of all fire water, wastewater, runoff, impacted soils, and other wastes in a
way that prevents releases to the environment.
new text end

new text begin (b) A terminal or oil refinery that has received a waiver under this section may provide
and use class B firefighting foam containing intentionally added PFAS chemicals in the
form of mutual aid to another terminal or oil refinery at the request of authorities only if
the other terminal or oil refinery also has a waiver.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2024.
new text end