The Minnesota Pollution Control Agency (MPCA), on November 25, 2024, issued notice of its intent to adopt a series of new and amended rules that would convert a currently voluntary triennial program for reporting air toxics emissions into a mandatory annual program for most permit holders. The proposed rules also would codify and expand the universe of pollutants considered “air toxics” for reporting purposes. In the same action, MPCA proposed repealing its rule provisions that allow an air permit holder to claim emergency circumstances as an affirmative defense against alleged permit violations. Interested parties now have until mid-January to comment on the two actions, request that MPCA hold a public hearing on the proposals, or both.
Air Toxics Reporting Rule
2023 was a huge year for environmental legislation in Minnesota, with a number of laws creating new requirements regulating intentionally added per- and polyfluoroalkyl substances (PFAS) in products, cumulative impacts of air emissions in environmental justice areas, ambient air odor management and air toxics emissions. Each law charged MPCA with promulgating rules to implement and enforce its new requirements. Last week, MPCA issued its first set of proposed rules stemming from the 2023 legislation, this one focused on requirements related to the reporting of air toxic emissions to MPCA.
Currently in Minnesota, MPCA encourages air quality permit holders to report their emissions of hazardous air pollutants (HAPs, also referred to as “air toxics”) to MPCA once every three years. The 2023 legislation, codified at Minn. Stat. § 116.062, requires the MPCA commissioner to mandate that all air quality permit holders (except Option B registration permit holders) within the seven-county area surrounding Minneapolis and St. Paul report this information to MPCA on an annual basis. The commissioner must implement this mandate via permit amendments, rulemaking or enforceable agreements. In addition to effectuating that rulemaking requirement, the proposed rules:
- Make the method for calculating and reporting air toxics emissions consistent with those currently required for criteria air pollutant emissions;
- Establish the list of air toxics that must be reported. The list includes HAPs under the Clean Air Act and PFAS listed on the Toxics Release Inventory and those listed in the proposed rules. “Air toxics reporting facilities” also must report their mercury emissions; and
- Require facility owners or operators to report individual pollutants to the maximum extent feasible. At the same time, the proposed rules establish de minimis reporting exemptions in limited circumstances.
MPCA, in the Statement of Need and Reasonableness issued alongside the proposed rules, acknowledged it would be best to avoid duplicative toxics reporting requirements by aligning its reporting requirements with those of the U.S. Environmental Protection Agency (EPA) under its Air Emissions Reporting Requirement (AERR). On July 25, 2023, EPA proposed a number of potential updates to the AERR, including a requirement that facilities report their HAP emissions directly to EPA rather than reporting them to state agencies like MPCA, who then amass and report that data to EPA (as is currently the case in Minnesota). EPA has given no indication as to when its AERR updates will be complete; thus, MPCA decided it was necessary to move forward to meet its own rule promulgation obligations. It left the door open, however, to future rule changes to better coordinate the reporting requirements between the two programs when the AERR updates are complete.
Proposed Emergency Affirmative Defense Repeal
On August 8, 2023, EPA repealed “emergency” affirmative defense provisions within its Clean Air Act Title V operating permit program rules in 40 CFR parts 70 and 71. Those provisions allowed a source to assert an affirmative defense against allegations of noncompliance with technology-based emission limitations in operating permits if the exceedances occurred due to qualifying emergency circumstances. The repeal also required state, local and tribal authorities with EPA-approved Title V permitting programs to repeal similar provisions within their own rules by August 21, 2024, unless EPA granted an extension to that deadline. Minnesota requested and was granted an extension to complete the repeal within its own approved Title V program by August 21, 2025.
MPCA included this repeal action with its proposed air toxics reporting rules because many of the same regulatory chapters affected by the latter also included the emergency defense provisions. In proposing the total repeal of these provisions in its rules, MPCA rejected calls to maintain the defense for state-issued, non-Title V air quality permits. MPCA explained that the provisions, as currently written, do not differentiate between Title V and non-Title V permits. Rather than amend the rules to make that distinction and preserve the defense for the latter permits, MPCA is proposing a complete repeal in all circumstances.
Next Steps in the Promulgation Process
Those who wish to submit comments to the Minnesota Office of Administrative Hearings (OAH) on either the proposed air toxics reporting rules or the repeal of the emergency affirmative defense have until 4:30 p.m. CST on January 15, 2025, to do so. And if 25 or more parties submit a valid written request for a public hearing to the OAH by that deadline, an Administrative Law Judge will conduct a hearing via WebEx beginning at 3:00 p.m. CST on February 27, 2025, at which time all interested parties will have the chance to be heard. Regardless of whether a hearing is held, the OAH eventually will issue a report on the proposed rules to MPCA, which may then adopt them.
Future MPCA Actions To Watch
2025 promises to be a big year for new MPCA rules. Besides finalizing the above, MPCA either must or is scheduled to:
- Propose and finalize rules governing a requirement that will take effect on January 1, 2026, to provide information to the MPCA commissioner on products with intentionally added PFAS that were not previously subject to a product ban beginning January 1, 2025;
- Propose additional “air toxics” emissions rules and ambient air odor management rules for facilities in the seven-county metro area; and
- Begin sharing “key concepts” for rules controlling cumulative impacts from air emissions in environmental justice areas throughout the state.
Interested or affected parties are encouraged to track MPCA’s efforts on these rules in the coming year. Fredrikson’s Environmental Law team will also continue to monitor and report on these developments and stands ready to assist the regulated community in responding to the proposed rules and the implementation of their final versions.
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