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Maine DEP Establishes Aggressive Requirement for PFAS Testing in Biosolids

On Friday afternoon March 22, 2019, the Maine Department of Environmental Protection (DEP) announced in a memorandumto licensed facilities that land apply, compost, or process biosolids (i.e., wastewater treatment sludge) that it will require the testing of that material for per- and polyfluoroalkyl substances (PFAS), a group of chemicals that includes PFOA, PFOS, PFBS, and many other compounds. Given that these compounds are ubiquitous, and that land application of biosolids or composted biosolids as a soil amendment has been a common and long-standing practice in Maine and elsewhere, the aggressive new testing requirement is likely to have far-reaching effects.

All biosolids/sludge program licensees and biosolids/sludge composting facilities are now directed to test their material for PFOA, PFOS, and PFBS, and to update their Sampling and Analytical Work Plan (SAWP) to include sampling and analysis for these compounds, before any additional land application of these materials. DEP recommends that these facilities update their SAWP consistent with DEP’s PFAS sampling guidance (Attachment 1 to DEP’s memorandum). An updated SAWP must be submitted for DEP review and approval by April 12, 2019, and all initial sampling must be conducted by May 7, 2019. Once results are obtained, biosolids/sludge and biosolids/sludge-derived compost must not be land applied if the screening standards for these three PFAS compounds in Chapter 418, Appendix A (PFOA—.0025 mg/kg, PFOS—.0052 mg/kg, or PFBS—1.9 mg/kg) are exceeded, unless and until DEP approves resumption of land application. For facilities whose biosolids exceed these PFAS screening standards, the DEP will want to engage the licensee in further discussions about proper management of these biosolids.

Last Friday afternoon’s DEP action follows on the heels of Governor Mills’ March 6, 2019, Executive Order reported here, announcing the establishment of a task force to investigate the threats of PFAS contamination to public health and the environment. DEP’s action concerning land application of biosolids containing PFAS above specific thresholds demonstrates that DEP is not waiting for the task force to complete its work before taking steps the agency deems are necessary to protect public health and the environment. In taking Friday’s action, DEP Commissioner Jerry Reid stated, “The Department is moving forward with the additional testing requirement to ensure that any future land applications of sludge are safe.”

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About this Author

Tom Doyle, Environmental Attorney, Land Use Lawyer, Northeast, Pierce Atwood Law Firm
Partner

Tom Doyle is a partner in Pierce Atwood's Environmental & Land Use Practice Group with 30 years of experience in all areas of environmental and land use law, including adjudicatory proceedings, transactions, permitting, client counseling, enforcement defense, brownfield redevelopment, and legislation. Tom's practice has frequently involved the successful permitting of major development projects that face opposition or complex environmental and land use issues. His transactional experience has included serving as lead environmental counsel in public offerings, mergers...

(207) 791-1214
Kenneth Gray, Pierce Atwood, Environmental lawyer
Partner

Ken Gray joined Pierce Atwood's Environmental Group in 1987 after practicing with the U.S. Environmental Protection Agency's Office of General Counsel in Washington, D.C. Ken has practiced environmental law since his graduation from law school in 1979.

Ken concentrates on counseling and enforcement issues related to hazardous substance and hazardous waste management, cleanup, and liability, including toxic tort matters; chemical safety requirements under a variety of laws including the Occupational Safety and Health Act; product regulation including toxic substance manufacturing and processing; emergency planning, response, and community right-to-know requirements; groundwater and drinking water regulation; and transactional matters related to environmental concerns.

(207) 791-1212
William E Taylor, Pierce Atwood, environmental lawyer
Partner

Since joining Pierce Atwood's Environmental Group in 1984, Bill Taylor has devoted his legal practice to matters related to water law, waste discharge, stormwater and natural resource licensing, compliance counseling, rulemaking, auditing, and enforcement. He regularly represents clients before local, state, and federal administrative agencies.

Bill is experienced in the negotiation and structuring of complex waste discharge and wetland alteration licenses, including site-specific water quality criteria development, use attainability analyses and 316(b)...

(207) 791-1213
Lisa Gilbreath, Pierce Atwood, Environmental lawyer
Associate

Lisa Gilbreath is an associate in the Environmental & Land Use and Energy Infrastructure Development, Acquisition & Financing practice groups. Lisa works on a wide variety of environmental and energy matters, offering clients strategic advice in regulatory, legislative, and judicial proceedings.

In her environmental practice, Lisa assists clients with numerous issues including energy project development permitting, energy and environmental litigation, air quality legislative and regulatory activities, air quality enforcement, hazardous substances and...

(207) 791-1397