Maine Leads the Charge in PFAS Regulations and Litigation

On June 15, 2022, the U.S. Environmental Protection Agency (EPA) issued four drinking water health advisories for per- and polyfluoroalkyl substances (PFAS).  It issued interim updated drinking water health advisories PFOA and PFOS that set advisory levels well below the 70 parts per trillion (ppt) threshold EPA announced in 2016. The new advisory levels for PFOA and PFOS, 0.004 ppt and 0.02 ppt, respectively, are so low that they cannot be measured with present day analytical methods.  At the same time, EPA also issued final health advisories for PFBS (2,000 ppt) and what are known as GenX chemicals (10 ppt), which are considered replacement chemicals for PFOS and for PFOA, respectively. EPA expects to propose a National Drinking Water Regulation by the end of 2022 for PFOA and PFOS, and anticipates finalizing the rule by the end of 2023.  These health advisories set the strictest levels to-date, including when compared with those in Maine, which has been a nation-wide trend-setter in the field of PFAS regulation.

Maine leads the way among states in its efforts to reduce and/or eliminate all PFAS in products and the environment to attempt to reduce alleged human health risk from these “forever chemicals.”  Many states have followed Maine’s lead—Washington, California, New York, New Hampshire, to name a few—to enact legislation related to PFAS remediation, PFAS in drinking water systems, and PFAS in firefighting foam and other products. But Maine, with a total population of 1.3M, continues to make news regarding its aggressive approach to regulating these chemicals.  

PFAS have been used in a wide array of applications, including but not limited to non-stick cookware; water-repellent clothing; stain-resistant fabrics and carpets; some cosmetics; some firefighting foams; and products that resist grease, water, and oil. In 2019, the Maine governor commissioned a PFAS task force to review the extent of PFAS contamination in Maine and provide recommendations for identifying and investigating PFAS chemicals in the environment.  One of the goals of the task force, among others, was to have state agencies sample, test, and investigate the prevalence of chemicals detected in Maine and develop a plan to address continued usage, develop science-driven limits, and evaluate toxicological data.

Maine has been aggressive over the past 3 years with efforts to eliminate or mitigate PFAS chemicals in the state.  During the 2019–2020 House session, the state legislature passed HP 1043, An Act To Protect the Environment and Public Health by Further Reducing Toxic Chemicals in Packaging (which included measures to reduce the use of certain chemicals in food packaging and waste, including PFAS, phthalates, and heavy metals). Two years later, the Maine legislature passed into law a first-of-its-kind bill that eliminates, or significantly reduces, the use of PFAS in any product that may be sold or distributed in Maine where the PFAS has been “intentionally added,” except in cases of “unavoidable use” (such as medical devices). The bill, LD 1503, “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution”, passed in 2021, mandates that the chemical—statutorily defined as any member of the class of fluorinated organic chemicals that contains at least one fully fluorinated carbon atom—be banned in final products manufactured or sold in Maine by January 1, 2030.  The legislature also enacted LD 2147, “An Act To Require Reporting of Perfluoroalkyl and Polyfluoroalkyl Substances, PFAS, in Products and of Discharges of Firefighting Foam Containing PFAS,” whichrequires manufacturers of final products for sale in the state that contain the chemical notify state authorities by January 1, 2023.  It also mandates that anyone who discharges any aqueous film-forming foam or “AFFF” (also known as firefighting foam) anywhere within Maine notify the State within 24 hours.

In addition, in spring of 2022, the Maine legislature passed laws related to the use of PFAS in pesticides sold or produced in Maine.  LD 1911, “An Act To Prohibit the Contamination of Clean Soils With So-Called Forever Chemicals, and LD 2019, An Act To Require the Registration of Adjuvants in the State and To Regulate the Distribution of Pesticides with Perfluoroalkyl and Polyfluoroalkyl Substances” were supported by testimony from several dairy producers in the state who alleged that the state-licensed application of municipal, commercial, or industrial wastewater treatment plant sludge to their farmland contributed to PFAS found in their dairy production, as well as in the groundwater and soil. Land application of wastewater treatment plant residuals—often known as “biosolids”—has been conducted for decades in Maine as a cost-effective way to replenish soil nutrients. However, LD 2019 prohibits the land application, sale, or distribution of compost, fertilizer, soil amendment, or topsoil made with municipal, commercial, or industrial wastewater treatment plant sludge or septage.    

These bills are not universally supported by farmers in Maine because they limit the available options to obtain affordable fertilizer for farming operations. The legislation has also faced opposition from Maine waste management companies that now have to contend with disposing of additional biosolids in landfills, further limiting the amount of space available in landfill cells for Maine waste.  This could add to financial and liability concerns for waste management companies and landfill operators with regard to cleanup actions, especially if certain PFAS chemicals are designated as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

Given these sweeping legislative changes in Maine, manufacturers, distributors, and retailers of products containing any “forever chemicals,” in addition to companies and landfill operators handling waste within the state, should think carefully about complying with all of Maine’s regulations and leverage outside expertise as necessary.

In addition to compliance with regulatory developments, companies producing, using, or disposing of products containing PFAS chemicals in Maine should be cognizant of recent lawsuits involving mass tort and class action claims for medical monitoring, personal injury, diminished property values, and emotional distress.  Although PFAS litigation has occurred for many years nationwide, Maine appears to be a trending target for these suits given its involvement in landspreading biosolids allegedly containing PFAS chemicals on farmlands, in addition to attracting the attention of environmental activist Erin Brockovich.  Although litigation has historically focused only on PFAS manufacturers, recent filings from Maine courts indicate that companies down the supply chain, including disposal companies and landfill operators, are also being targeted.  As PFAS litigation in Maine continues, and as new Maine regulations go into effect, companies should act sooner rather than later to develop a business strategy for dealing with what is likely to be lengthy, hard-fought court battles, including advice on insurance coverage, e-discovery management, expert engagement, and appropriate settlement opportunities.

How Integral Consulting Can Assist

With an office in Portland, Maine, Integral’s scientists are continuously tracking technical and regulatory PFAS developments. Our experts guide clients through new and complex PFAS regulations and help to evaluate associated risks. We help our clients investigate the issue, identify the risks, and engineer a solution.

How Pierce Atwood Can Assist

Pierce Atwood is not only tracking legislative, regulatory, and litigation PFAS developments in Maine and across the United States, but also is engaged in stakeholder meetings and rulemaking proceedings at the Maine Department of Environmental Protection on behalf of clients who want a seat at the table as legislation and regulations continue to develop.  We provide in-depth and expert advice in this field of emerging law and regulation, across our Environmental, Litigation, and Government Relations practice groups.

Please contact article authors and Pierce Atwood environmental attorneys Lisa Gilbreath or Sara Murphy for questions, concerns, or further guidance on any PFAS-related issue.

Integral Consulting technical director Patrick Gwinn also co-wrote this article. Law360 subscribers can click here to view the complete article, published on 6/29/2022.