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Maine PFAS Task Force Issues Report and Maine Legislature Considers Amending State's Superfund Law

Maine is taking several major steps in addressing per- and polyfluoroalkyl substances (PFAS). The Maine PFAS Task Force just issued its final report, which included a significant number of recommendations that are likely to lead to additional regulations, investigations, and cleanups. As a related matter, the Maine Legislature is currently considering L.D. 1923, which would add PFAS and a potentially unlimited number of substances to Maine’s Uncontrolled Hazardous Substance Sites Law. 

The Task Force, established by Governor Janet Mills by Executive Order of March 6, 2019, was made up of 11 members, including the Commissioner of the Maine Department of Environmental Protection (DEP), other regulators from key state agencies, public health advocates, and a limited number of regulated entities. The Task Force’s final report, Managing PFAS in Maine, includes a significant number of recommendations, including: 

  • The Legislature should consider revising the statute of limitations for private claims to be within six years of discovery of PFAS contamination on private property. 

  • DEP should introduce legislation to amend Maine’s Uncontrolled Hazardous Substance Sites Law to include pollutants or contaminants, which would give the state authority to require the removal and treatment of PFAS. (See below for a description of L.D. 1923.)

  • Over 600 public water systems should be tested for PFAS.

  • The state should require manufacturers to report the intentional use of PFAS of concern in consumer products and require the use of safer alternatives when they are available. The state should also discourage non-essential uses of PFAS in Maine by requiring those uses to be phased out.  Legislation should be introduced to require this where authority does not already exist.

  • Maine should accelerate its ongoing efforts to sample for PFAS in prioritized locations, analyze sampling results for patterns, and refine models of PFAS fate and transport. The highest priority should be to identify and eliminate current human exposures that have the potential to exceed health-based guidelines for drinking water and screening levels for food products. The highest priority locations for sampling should include locations where Class B AFFF has been discharged, near unlined landfills, and where wastewater waste residuals were utilized on fields that produce crops for human consumption or feed. 

  • Legislation should require fire service organizations to report discharges of Class B AFFF to the environment and to report the locations of all known past fire training activities that utilized AFFF or other PFAS-containing material.

  • DEP should consider establishing an air deposition sampling program for a suite of PFAS chemicals to protect drinking water supplies and the natural environment.

  • The Maine Center for Disease Control & Prevention should consider applying the EPA health advisory level to the sum of at least PFHxS, PFNA, PFHpA, PFOA, and PFOS detected in drinking water. 

  • The federal government should take numerous actions including PFAS source reduction, adoption of MCLs for PFAS in drinking water, expanding FDA regulation, certifying additional laboratory methods, and increasing state funding. The state should increase funding, introduce a bond initiative for PFAS costs, and consider legal action to recover costs from parties that supplied products that are harmful to health and the environment.

The Task Force Report will be the subject of a public hearing before the Maine Legislature’s Environment and Natural Resources Committee on February 6, 2020.

Relatedly, DEP recently introduced L.D. 1923 to address PFAS under Maine’s Uncontrolled Hazardous Substances Sites Law (Maine’s “Superfund”). However, rather than adding some or all PFAS as hazardous substances, the proposed legislation gives DEP the authority to designate sites, require cleanups, and seek cost recovery for all “Pollutants” and “Contaminants.” This would, by statute, capture a virtually unlimited number and type of substances. The bill has been referred to “Work Session” for further consideration.  

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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...

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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 hazardous waste management, and contaminated property remediation and cleanup.  She has broad experience obtaining the regulatory approvals for large transmission and other major energy infrastrucure projects, and works closely with her colleagues in the Energy Infrastructure practice group to provide clients with comprehensive development and siting counsel, particularly in the renewables space.  Lisa’s background in energy law gives her a unique ability to advise clients in matters that intersect environmental and energy law issues.

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Emily Dupraz Environmental Attorney Pierce Atwood Law Firm
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Emily Dupraz provides counsel on environmental and land use matters including permitting, compliance, enforcement, and litigation support.  Her broad environmental practice spans the Clean Air Act, Clean Water Act, CERCLA, EPCRA, and their state equivalents, as well as other statutes and rules related to endangered species, natural resources, hazardous and solid waste, and local zoning.

Prior to joining Pierce Atwood, Emily was an associate in the trial and dispute resolution and environment and energy practice groups at Pepper Hamilton, LLP, where she represented businesses in the...

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