MPCA Updates Cumulative Impacts Rulemaking Efforts, Holds Air Toxics Regulation Hearing

MPCA Provides Environmental Justice Rulemaking Update, Holds Administrative Hearing on Proposed Air Toxics Reporting Rule

2023 was a banner year for new environmental laws in Minnesota, with legislation adopted to regulate PFAS in products, air toxics, odor management and environmental justice/cumulative impacts. On February 25 and 26, 2025, the Minnesota Pollution Control Agency (MPCA) provided a “mid-point update” on its environmental justice/cumulative impacts rulemaking efforts. The next day, Administrative Law Judge Jessica Palmer-Denig presided over a hearing on MPCA’s proposed air toxics emissions reporting rule and its proposed repeal of the emergency affirmative defense for air permittees. The following is a brief summary of both events.

Environmental Justice/Cumulative Impacts Rulemaking Update

Minn. Stat. § 116.065 requires that facilities with certain types of air permits in or within one mile of a statutorily defined “environmental justice area” in the seven county Twin Cities metro area or in a Minnesota city of the first class (currently Rochester and Duluth) undertake a “cumulative impact analysis” of its emissions starting in 2026 as part of new, modified or renewed air permit applications. Currently, MPCA estimates this new requirement will apply to just over 100 facilities in the above areas.  

While section 116.065 establishes many of the parameters of this new requirement, it also requires the MPCA to publish a notice of intent to adopt implementing regulations no later than May 25, 2026. MPCA solicited comments on aspects of this new requirement in the latter part of 2023. It then spent 2024 conducting a series of virtual and in-person “co-learning” webinars, public meetings and work sessions. During these events, MPCA continued to take input from the public, invited experts from other states with similar requirements to share their experiences and floated test concepts for key aspects of the new requirement.

At its “mid-point check-ins” on February 25 and 26, summarized its 2023 and 2024 efforts and some key areas of consideration coming from them. It then previewed its plans for the next 15 months, leading to its deadline to publish its proposed environmental justice/cumulative impacts. MPCA will continue its public outreach efforts to solicit input and share concepts, but with the goal of reaching audiences beyond those with which it connected in 2024. In the latter part of this year, MPCA intends to seek informal comments on critical aspects of the cumulative impacts requirement, such as the contents of a cumulative impacts analysis, what will constitute a “significant adverse impact” to the environment or human health in an environmental justice area and the contours of the “community benefit agreements” contemplated under the statute. Publication of the draft rules no later than May 2026 will then trigger a period of public comment and a likely public hearing on the draft rules. MPCA hopes to have final rules adopted by the end of 2026.

Those who wish to follow the development of these rules are encouraged to consult the webpage tracking progress on the rules and to sign up for notifications of future developments. MPCA has also posted recordings of the “check-ins” on its YouTube channel, which also includes recordings of some of its 2024 public meetings and seminars on this topic. Fredrikson’s Environmental team will continue to report on significant developments and to provide advice and guidance to its clients on this important topic in the years to come.

Air Toxics Hearing

MPCA published proposed rules implementing the new air toxics emissions reporting requirements codified in Minn. Stat. § 116.062 on November 26, 2024. The draft rules also proposed a repeal of the affirmative defense air permittees can currently claim under MPCA regulations for emission limit exceedances that occur in emergency situations. (See here for Fredrikson’s previous summary of the proposed rules). More than 25 people requested an administrative hearing on the proposed rules before the end of the public comment period in January. On February 27, 2025, Administrative Law Judge Jessica Palmer-Denig presided over the virtual hearing on the draft rules.

The hearing began with Judge Palmer-Denig’s summary of the hearing and comment process. She also clarified that her role is not to make or suggest changes to the rules but rather to ensure MPCA satisfied three requirements with its proposed rules: (1) demonstrated its legal authority to adopt the rules; (2) fulfilled all applicable legal and procedural requirements in promulgating the rules; and (3) demonstrated the need and reasonableness of the rules. Judge Palmer-Denig then formally extended the public comment period on the draft rules until 4:30 p.m. on March 19, 2025, after which the public could provide rebuttals to the submitted comments until 4:30 p.m. on March 26.

MPCA technical staff explained the needs addressed by the proposed air toxics emissions rules, summarized the statute’s general requirements and discussed the proposed pollutant list (which includes over 900 pollutants) and other major components of the rules, such as recordkeeping, reporting and reporting methods. Staff also addressed the circumstances and reasons surrounding its proposed repeal of the emergency affirmative defense. Unlike the air toxics emissions reporting requirements, which apply only to air permittees in the seven county Twin Cities area except Registration Option B permittees, the defense repeal would affect all permittees across the state. MPCA legal counsel introduced exhibits to support MPCA’s rationale for and its promulgation of the proposed rules, which Judge Palmer-Denig accepted into the record alongside MPCA’s presentation slides.

Only two members of the public spoke during the nearly two-hour period Judge Palmer-Denig made available for oral comments to be made on the record. The first asked a question regarding material balance calculations for pollutants with no de minimis exemption. MPCA staff indicated they would respond to the question during the rebuttal period. The second speaker then asked if permittees were expected to report on their emissions of all 900+ pollutants, which MPCA staff confirmed would be the case.

The public now has until March 19 to provide additional comments on the proposed rules by mail, fax or electronically at https://minnesotaoah.granicusideas.com/ (Case #: 71-9003-39354). Rebuttals can then be offered in the five business days that follow, using the above methods. Judge Palmer-Denig will then issue her approval or disapproval of the proposed rules within 30 days of the close of the public comment period.

Those who wish to follow future developments of the proposed air toxics emissions reporting rules and the proposed affirmative defense repeal may consult the MPCA’s webpage dedicated to these draft rules. Fredrikson will also continue to monitor, report and advise on the progress of these rules in the coming months.

For more information, contact William P. Hefner.