As described at this week’s briefing of the Maine Legislature’s Environmental and Natural Resources (ENR) Committee, the Maine Department of Environmental Protection (DEP) is acting quickly on the suite of PFAS legislation enacted in 2021 in this evolving area of the law. According to DEP Commissioner Melanie Loyzim, DEP is working diligently on PFAS issues across the state and “every day we are learning more.”
The wide-ranging PFAS legislation set new interim drinking water standards; established a new statute of limitations for actions related to PFAS contamination; required the DEP to establish a comprehensive plan to investigate PFAS contamination; and established the first state-wide ban on the sale of products containing intentionally-added PFAS (starting in 2030), among other actions. Moreover, the DEP released new Remedial Action Guidelines (RAGs) including more stringent soil cleanup standards related to PFAS. These, and other 2021 PFAS developments, are summarized in the Pierce Atwood Maine PFAS Tracker.
We expect 2022 to be another big year for legal developments related to PFAS, spurred by regulatory updates at both the federal and state levels. DEP made clear at the ENR Committee briefing this week that it is not waiting for federal action. DEP’s Director of the Bureau of Remediation and Waste Management, Susanne Miller, stated in no uncertain terms, “EPA is slower than we are moving here in Maine.”
Looking ahead, here is what the Maine regulated community can expect with regard to PFAS:
- Expansion of DEP’s PFAS Investigation. DEP has identified over 700 sites where wastewater treatment plant residuals were land-applied as fertilizer, going all the way back to the 1970s. DEP estimates that it will take until at least 2025 to complete its investigation of these hundreds of sites and to understand the scope of the contamination in Maine. While regulated entities with land application programs face the greatest risk of litigation and regulation, entities in industries that are known to have contributed PFAS to the environment (e.g., metal plating, leather tanning, electronics manufacturing) may also be scrutinized in the investigation as upstream contributors to publicly-owned wastewater treatment plants.
- Increased Regulation of Landfills. Last year, the Maine Legislature required the DEP to develop and implement a program for testing leachate collected and managed by solid waste landfills for PFAS contamination. DEP sent a letter to solid waste landfills requiring that leachate be tested for PFAS beginning in fall 2021 through fall 2023 (and DEP reported at this week’s ENR Committee briefing that only two such facilities have failed to provide the fall 2021 data). While DEP is currently only collecting landfill data, we expect that landfills will see increased regulatory scrutiny in the coming year. For example, new legislation proposed in January 2022 calls on state-owned landfills to use treatment systems to remove PFAS from leachate before the leachate is sent to sewage treatment plants.
- Significant Federal Activity. We expect to see increased regulatory actions related to PFAS under the Biden Administration’s EPA, particularly given recent scientific data and new analyses that indicate that negative health effects may occur at much lower levels of exposure to perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) than previously understood, and that PFOA is a likely carcinogen. For example, EPA submitted to the White House Office of Management and Budget (OMB) on January 10, 2022 a formalized plan to designate PFOA and PFOS as CERCLA hazardous substances. The process before OMB usually takes 90 days, meaning the EPA will most likely propose the listing sometime between March and April 2022. The agency expects to issue a final rule in the summer of 2023. EPA also initiated two rulemakings in late 2021: (1) to propose adding four PFAS chemicals as RCRA Hazardous Constituents and (2) to clarify in EPA regulations that the RCRA Corrective Action Program has the authority to require investigation and cleanup of emerging contaminants such as PFAS.