On April 15, 2022, the Maine state House and Senate both passed a bill (LD 1911) that would ban the use of biosolids that contain PFAS in land applications, unless it can be shown that the biosolids are PFAS free. While the PFAS biosolids ban addressed growing concerns in the state over land contamination due to PFAS through the use of biosolids as fertilizer, the legislation may have the unintended consequence of creating PFAS land and air pollution issues in Maine or in other states. The bill appears set to be signed into law by Maine’s governor, and companies responsible for managing the state’s waste (namely, waste management companies and incinerators) must pay close attention to the status of the bill and the unintended consequences that it may have.
PFAS Biosolids Ban
For several years, Maine’s citizens have been concerned over the common use of biosolids generated by paper mills and other industries on farmland as fertilizer. These biosolids may contain PFAS, which over time leach into nearby waterways and cause elevated levels of PFAS in drinking water sources. We previously wrote on the lawsuits stemming from the paper mill industry’s biosolids pollution issues.
In response to the concern over biosolids pollution, legislators in Maine introduced “An Act To Prohibit the Contamination of Clean Soils With So-Called Forever Chemicals” (LD 1911). In addition to banning the spread of PFAS-containing biosolids on land in the state of Maine, the bill also seeks to ban the sale of fertilizer or compost products derived from PFAS-containing biosolids.
The bill was passed by the Maine House and Senate on April 15, 2022 and now goes to the governor’s desk for signature into law.
Impacts of Bill
LD 1911 was not universally supported in Maine. Some farmers opposed the bill, arguing that banning fertilizers or compost that contain PFAS would limit the available options for both products and likely increase farming costs. Practically speaking, the cost of testing fertilizer or compost derived to biosolids to ensure that they are PFAS free would make no economic sense to companies making those products, so if the bill is signed into law, it is likely to end the practice of utilizing biosolids as a land fertilizer.
In addition, the bill was opposed by certain waste management and incineration companies due to the fact that the biosolid materials will now need to be disposed of either in landfills or by incineration. This, in turn, could result in PFAS being dispersed through the air from incinerators and onto surrounding lands in the state. In addition, depositing the biosolids in landfills may lead to the same type of leaching concerns that already exist through the use of biosolids on land. Waste management companies are concerned that both incineration and landfilling of the biosolids will open them up to future significant liabilities and financial responsibilities for cleanup actions. These concerns are not misplaced, especially with the potential designation of certain PFAS as “hazardous substances” under CERCLA, which would open these companies up to extremely costly remediation actions by the federal or state-level EPA. Further, if Maine were to start to export all of its biosolid waste due to PFAS concerns, this raises concerns that Maine would simply be passing on its PFAS pollution problems to other states that accept the biosolids.
Maine’s efforts to address PFAS pollution issues are some of the most aggressive in the country, and the LD 1911 bill adds to that legacy. However, certain companies may be burdened with the effects of the biosolids ban, and as such are rightly concerned with the impact that the bill may have on them in the future.
CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.
Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact the Chair of our PFAS – Toxic Torts Team: John Gardella.