Our late January client alert noted the numerous issues raised by the presence of Per- and Polyfluoroalkyl Substances (PFAS) and predicted more state and federal action. This alert provides an update on recent state and federal PFAS initiatives.

On March 6, 2019, Governor Mills issued “An Order to Study the Threats of PFAS Contamination to Public Health and the Environment.”

Citing the need for a coordinated response and the necessity of studying PFAS distribution, assessing potential impacts, and recommending strategies to mitigate the impacts, Governor Mills established a task force comprised of the commissioners of four state agencies, as well as a public health physician and a representative selected by the commissioners of the MEDEP and MEDHHS from several different specified groups or entities. Dr. Meredith Lentz Tipton of South Portland has already been selected as task force Chair.

Acknowledging that certain PFAS have been phased out by manufacturers, the governor noted:

[B]ecause of its frequent use since the 1950s, contaminated sites have been identified across the country, including here in Maine. That is why it is important for the state to identify any locations in Maine where PFAS are prevalent; examine its effects on drinking water, freshwater fish and marine organisms; and take steps to create and implement treatment and disposal options.

In Maine, PFAS has been detected at the former Brunswick Naval Air Station and the former Loring Air Force Base, which are working to determine the extent of PFAS in the surrounding environment, and in at least one other location.

The task force established by Governor Mills’ executive order will:

• Review information regarding known locations of PFAS and the status of response strategies

• Identify significant data gaps in the knowledge of PFAS in Maine and develop recommendations

• Identify opportunities for public education regarding PFAS contamination and its effects

• Identify the sources of PFAS contamination and exposure pathways that pose the greatest risk

• Examine the benefits/burdens of treatment and disposal options for PFAS-contaminated media

• Assess how state agencies can use their existing authority and resources to reduce or eliminate PFAS risks

• Determine the inventory and use of fluorinated AFFF in firefighting and fire training activities and evaluate effective non-fluorinated alternatives

• Examine data regarding PFAS contamination in freshwater fish and marine organisms and determine whether further examination is warranted

The task force will issue a report to Governor Mills’ administration with its findings and recommendations to address PFAS exposure and contamination. Citing the charge of agencies to protect public health and the environment, the executive order does not by its terms provide additional funding or legal authorities. The task force report is to be issued as soon as reasonably practicable.

The Maine DEP leadership also has signaled possible interest in looking at Chapter 419 of its rules, which regulate use of agronomic materials. So too has the Maine Legislature begun the legislative process by introducing bills to regulate PFAS compounds in certain products. We expect more legislation may be introduced.

On February 14, 2019, the EPA issued its Action Plan. Here are the highlights:

• EPA is moving forward with the Maximum Contaminant Level (MCL) process for PFOA and PFOS—two of the most well-known and prevalent PFAS chemicals. The Agency also is gathering and evaluating information to determine if regulation is appropriate for a broader class of PFAS. Administrator Wheeler was criticized as not committing to adopt an MCL in the Action Plan but has since clarified that is his plan.

• EPA plans to designate PFOA and PFOS as hazardous substances under CERCLA and to continue developing interim groundwater cleanup recommendations.

• Although EPA had already required some public water system monitoring, EPA will propose nationwide drinking water monitoring for PFAS through the next Uncontrolled Contaminant Monitoring Rule under the Safe Drinking Water Act.

• EPA is considering the addition of PFAS chemicals to the Toxics Release Inventory, and rules to prohibit the uses of certain PFAS chemicals under the Toxic Substances Control Act.

Not surprisingly, there are multiple bills that have been introduced in Congress that would force EPA to take a number of these steps, and set deadlines for EPA action.