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A federal loophole has left Maine in the dark on manufacturers’ PFAS waste

In this Thursday Aug. 15, 2019 photo, hay dries after a recent cut at Stoneridge Farm in Arundel, Maine. The farm has been forced to shut down after sludge spread on the farm land was linked to high levels of PFAS in the milk.
Robert F. Bukaty
In this Thursday Aug. 15, 2019 photo, hay dries after a recent cut at Stoneridge Farm in Arundel, Maine. The farm has been forced to shut down after sludge spread on the farm land was linked to high levels of PFAS in the milk.

The public was supposed to learn for the first time last year which Maine manufacturers are using PFAS and discharging the chemicals as waste, but a federal loophole has apparently allowed the facilities to evade reporting the information, fomenting anger about a federal inability to provide basic information related to a public health threat.

The U.S. Environmental Protection Agency says it will reverse the reporting loophole, which the Trump administration applied without public comment. But it’s not yet known when it will do so, leaving Maine residents in the dark about whether and where the toxic chemicals are still being processed as Maine prepares to spend tens of millions of dollars to address contamination.

The information from the federal government was expected to provide the first definitive accounting of original, major sources of PFAS-laden waste in Maine. But a new Maine law will allow the state to gather more information about PFAS discharges on its own, and at least one paper mill is phasing out its use of PFAS, meaning that when the federal government eventually publishes details about manufacturers’ PFAS waste it could be too little too late.

Last year Nathan Saunders of Fairfield, a PFAS hotspot in Maine, wanted to know how much PFAS waste was being released across the state. State government didn’t have the authority to collect the information, he learned. So he talked to an official in a regional office of the EPA who told him the data would become public soon. After Congress directed it to, the federal agency was about to publish the first-ever report on the quantity of 172 different per-and poly-fluoroalkyl substances that facilities nationwide were discharging into the ground, water and air.

It is clear that some Maine paper mills have historically used the chemicals to make their products. The Maine Forest Products Council, which represents pulp and paper mills, told the Maine Legislature in 2019, “We have mills using short-chain PFAS.” Twin Rivers Paper Co. in Madawaska has openly discussed its efforts to change course and commercialize a PFAS-free, grease-resistant paper.

But other manufacturers and paper mills have been less forthcoming, leaving people to connect the dots between the shreds of available information: Some mills, such as the previous owners of Sappi North America’s Skowhegan and Westbrook paper mills, received state permits to spread their treated waste on the land as fertilizer. Wastewater treatment plants that received manufacturing waste, such as from Huhtamaki’s paper plate-making plant on the Fairfield-Waterville line, also spread the material later found to contain PFAS. Now, tests have shown that water from wells near those sludge-spreading sites have high levels of PFAS contamination.

Finally, after learning he had been drinking water contaminated with PFAS for more than 30 years, Saunders believed he would find out whether manufacturers near him were still processing the chemicals, which have been linked to kidney and testicular cancer, increased cholesterol, vaccine resistance in children and reproductive complications. The public should know how the chemicals are being used and discharged, he said, so local people and governments can respond.

On July 29, 2021, the EPA announced its preliminary data from the Toxics Release Inventory, a database created under President Ronald Reagan that aims to inform people about how chemicals near them are managed. But not one Maine facility reported releasing PFAS in 2020. No facility said it had PFAS waste despite the fact that the chemicals have been found in Maine drinking water supplies, landfill runoff, wastewater, sludge and septage spreading sites, wildlife, house dust, human blood and on farm fields.

The same trend played out across the nation. Just 38 facilities nationwide — mostly those making the chemicals or managing hazardous waste — reported disposing of PFAS materials, despite one estimate that thousands of industrial sites are actually doing so. Most of the reported PFAS waste went into land disposal sites, with a smaller percentage emitted into the air and discharged into water.

Sappi did not respond to questions about why it did not report any PFAS waste to the inventory, even though its landfill leachate in Fairfield had high levels of PFAS in November 2021, according to state test results. One collection location tested for perfluorooctanoic acid (PFOA) — one of the chemicals supposed to be reported to the federal inventory and a suspected carcinogen — at 1,300 parts per trillion. Sappi has previously denied being the source of local PFAS contamination.

On Wednesday, the EPA announced it was drastically lowering its non-enforceable health advisory level for lifetime exposure to 0.004 parts per trillion for PFOA and to 0.02 parts per trillion for another specific chemical, perfluorooctane sulfonic acid (PFOS). It cautioned that the chemicals can cause harm at concentrations lower than those the EPA can currently detect.

Huhtamaki, which is facing a lawsuit in California claiming its Chinet paper plates contain PFAS, did not directly answer questions about why it did not report PFAS waste to the federal government. The company “was not required to,” spokesperson Wess Hudelson said.

“Protecting the environment is something we take very seriously everywhere that we operate. In Waterville, as in all locations, we comply with all applicable environmental and product safety laws and regulations,” he said.

Manufacturers have valued PFAS for their ability to resist oil, water and heat, but those properties are also the reason why Congress mandated in 2020 that they be tracked on the inventory. The extremely strong bond between fluorine and carbon means they can remain in the environment for a long, unknown length of time. Some PFAS may accumulate in the body due to more of the chemicals being absorbed than eliminated.

But tracking PFAS through the inventory “was a complete failure,” Saunders said. He believes the public should know how the failure came to be.

One environmental lawyer believes there are three main reasons why facilities didn’t submit information about their PFAS waste to the inventory: a loophole allowed them to not report when the chemicals made up a small percentage of a mixture; only a small percentage of PFAS had to be reported; and some facilities appear to have blatantly flouted the law.

“Everything’s too late at this point. The sludge across the street from my house was deposited starting in the late 1970s, and we’re still evaluating. Some of the diseases that are present in this area are identified by the [Agency for Toxic Substances and Disease Registry] as affected by PFAS contamination,” Saunders said. “This stuff has been known for 50 years, and we’re just starting to get a handle on the rate at which it’s being disposed of?”

The lack of information about PFAS shared to the inventory caused so much alarm that national environmental groups have sued the EPA, challenging the rules that allowed facilities to avoid publishing their data.

As part of the 2020 National Defense Authorization Act, Congress mandated that industrial facilities report 172 different PFAS to the inventory. It provided a framework for adding more each year, given that there are thousands of PFAS compounds.

Congress set a lower threshold for reporting PFAS discharges than for most other chemicals on the inventory. If facilities manufactured, processed or used 100 pounds or more of each of the listed PFAS, they would have to report the quantity managed as waste. For many other chemicals, facilities only have to report to the inventory if they manufacture or process 25,000 pounds or more.

But then something unfortunate happened, said Eve Gartner, managing attorney for the Toxic Exposure and Health Program at Earthjustice, which is headquartered in California and litigates environmental issues.

When the Trump administration created the regulations to implement the law, it placed the chemicals on a list of “general chemicals” that would trigger an exemption that’s been around since 1988. Called the “de minimis” exemption, it allows facilities to not report a chemical to the inventory when it is part of a mixture in certain concentrations: less than 1 percent for non-carcinogens and 0.1 percent for carcinogens.

That meant facilities would not have to disclose any PFAS chemical, except for the carcinogenic perfluorooctanoic acid (PFOA) compound, if it made up less than 1 percent of a mixture. The rules were created without public comment.

The technicality of how the federal government classified PFAS likely affected the entire nation’s knowledge about a class of chemicals.

“It’s definitely illegal,” Gartner said. “Congress, when it created this 100-pound reporting threshold, it clearly was indicating it wanted PFAS to be treated as all the other chemicals with 100-pound thresholds are treated, and those are not covered by the de minimis exemption.”

The de minimis exemption especially shouldn’t apply to PFAS, which can be toxic at very low levels, Gartner said. She is representing the National PFAS Contamination Coalition, the Sierra Club and the Union of Concerned Scientists in a lawsuit to force the EPA to lift the loophole. The national PFAS contamination group has members from across the U.S., including central Maine.

To not require facilities to disclose PFAS waste when the chemicals are used in a 1-in-100 level concentration, when a 1-in-1 trillion level for some can be toxic, is nonsensical, Gartner said.

“This level of PFAS in water or in other substances at a 1-in-100 level is not at all harmless. It would be associated with very, very significant danger. So it makes absolutely no sense to allow a so-called de minimis exemption to apply to PFAS,” she said.

Gartner thought it would be “low-hanging fruit” for the Biden administration to change course and require companies to reveal their PFAS discharges, she said. But when the new administration took office, it added a few PFAS to be tracked by the inventory and codified them in the same way as the Trump administration. It made them subject to the same reporting exemption, without public comment on the rules.

“We were told that they didn’t think that they had any legal choice. They thought this was compelled, which made no sense. But then they’ve really backtracked, and now they’re trying to reverse course. But they repeated the error,” Gartner said.

The EPA plans to propose a rule “later this year” that would categorize PFAS differently — as “chemicals of special concern” — and therefore remove the exemption for reporting them, EPA spokesperson Melissa Sullivan said. It hopes doing so will “result in a more complete picture of the releases and other waste management quantities for these chemicals,” she said.

The loophole was favored by lobbyists for various industries. While there was no public input in drafting the rules that set the exemption in motion, the EPA did solicit comments from the public in late 2019 when it considered adding the chemicals to the inventory. The American Forest and Paper Association, Flexible Packaging Association, National Association of Manufacturers, Semiconductor Industry Association, Chemical Users Coalition and many others advocated for the de minimis exemption to apply to PFAS.

The reporting loophole is just one reason why the public received so little information, however, Gartner said. There are likely two other factors as well: Far more PFAS exist than those tracked by the inventory, and some facilities simply haven’t reported as required by the law. The U.S. Department of Defense, known for using PFAS-filled firefighting foam used to extinguish petroleum-based fires, didn’t report having any PFAS waste.

“I think the existence of the de minimis exemption kind of gives cover to the companies that just failed to comply,” she said.

At least one paper mill in Maine uses PFAS in the manufacturing of its oil- and grease-resistant food packaging papers. But that mill, Twin Rivers in Madawaska, doesn’t use any of the PFAS on the list of chemicals covered by the inventory, spokesperson Caryn King said. It has worked for 10 years to phase out its use of PFAS and anticipates “a full changeover” by the end of March 2023, she said.

The EPA is also trying to better understand the lack of reporting to the federal inventory.

“The agency has used existing data to generate lists of potential producers and recipients of PFAS waste, and has contacted facilities with potential reporting errors, as well as those that were expected to report but did not,” Sullivan said.

The lack of information about PFAS discharges has implications for people across Maine who unknowingly drank contaminated water for years and for farmers who purchased contaminated land and unintentionally grew PFAS-laden crops. The Maine Department of Environmental Protection has been testing for PFAS near places historically permitted to apply treated sludge or septage. As of June 1, it had sampled 843 wells in 31 towns. Of those, 268 wells came back with PFAS levels higher than Maine’s drinking water standard.

“How much [facilities are] using and where that’s being released or disposed of is essential to understanding how to turn off the tap,” said Sarah Alexander, executive director of the Maine Organic Farmers and Gardeners Association. “We now see the very damaging impact it has on our farms when that contamination happens. Ultimately it’s about our public health.”

It’s possible data on the inventory about PFAS disposals could end up as ammunition in lawsuits against Maine manufacturers.

Saunders is the lead plaintiff in a class-action lawsuit against Sappi North America, Huhtamaki, and a number of other companies that currently or previously made paper in Maine. The lawsuit asserts that the mills disposed of PFAS-laden biosolids in landfills and sprayed fertilizer containing PFAS since at least 1967, “poisoning the water, the soil, the animals, the plants, and ultimately, the people therein.”

Hundreds of other lawsuits are expected over the effects of the chemicals in Maine.

But it’s not clear what information Maine and the nation will get when details about PFAS are ultimately made public on the federal inventory. Now, with new rulemaking and additional rounds of reporting, it will likely be more than a year before the public sees any data.

“I’m going to stand up and say that somebody knew it was going to happen this way. Somebody knew that the de minimis would eliminate actual numbers being reported of any value,” Saunders said. “The fact that somebody knew this, I think, is just about criminal. This is affecting the entire nation in significant proportions, and there’s a lot of illness involved.”

About 80 facilities in Maine have to disclose various chemical discharges to the federal inventory, said Faith Staples, technological hazards program manager at the Maine Emergency Management Agency, which also collects the inventory reports.

This year the EPA added four new PFAS to the list of substances for which facilities must disclose waste. All the paperwork is due by July 1. Some companies submitted their reports early, Staples said. Not one has yet reported releasing any PFAS into the environment.

This story appears through a partnership with the Bangor Daily News.