Maine PUC Solicits Renewable Energy Projects on PFAS-Contaminated Farmlands

Will There be Any Takers Re Development of Renewable Energy Projects on Maine PFAS-Contaminated Farmlands?

The Maine Public Utilities Commission has wasted little time in soliciting bids for renewable energy projects to be located on PFAS-contaminated farmland. Following the PUC’s August 12, 2024, order, the Commission opened a docket initiating the request for proposals (“RFP”) for development on PFAS-contaminated land. This docket is the next step in the process through which the Commission will solicit and select renewable energy projects to be developed on land contaminated with “forever chemicals” that can no longer be used for agricultural purposes. See my prior post for background.

Traditionally, once such a docket is open, the Commission will issue a formal RFP detailing the parameters of the solicitation for power purchase agreements. The RFP must adhere to the requirements of applicable laws and rules—here, that includes the Commission’s newly adopted Chapter 397 rule implementing the contaminated-lands procurement program. Deadlines for response can vary and are typically specified in each RFP.

After proposals are received, the Commission will begin proceedings involving review of the proposals and conferences with the proposed developers. The Commission has determined this docket will be a “secured case”—meaning that full access to the proposals and participation will be limited to parties and intervenors approved by the Commission. Some information or documents may be released by the Commission on a discretionary basis; typically, the Commission publishes information on winning bidders and their proposals following their selection.

While the Maine PUC has put the pieces in place to move this program forward, it remains to be seen whether there is any significant appetite within the renewable energy development sector to bite into this unique development opportunity. 

Maine Seeks to Grow Solar Farming on PFAS-Contaminated Farms

The Maine Legislature recently directed the Maine PUC to adopt rules that would require the Commission to initiate purchases of renewable energy from projects that are located on land contaminated with PFAS – the so-called “forever chemicals.”  The legislation was enacted in recognition of the fact that at least 60 farms in Maine have been rendered useless for farming due to the spreading of PFAS-contaminated sewage sludge as fertilizer – a practice that State regulators had encouraged for over a quarter century.

In 2022, amidst increased state and national scrutiny on PFAs, the Maine Legislature passed a law banning the use of sewage sludge as a soil amendment and requiring Maine DEP to investigate and conduct testing on farms across the state. Since then, Maine DEP has undertaken testing at hundreds of sites where septage or sewage sludge has been land-applied.  

PUC Rules Chapter 397: Procurement of Renewable Resources with a Preference for Projects Located on Contaminated Land is effective as of August 10, 2024. This new rule implementing the Legislative directive, establishes requirements for the procurement of energy and renewable energy credits (“REC”) and specifies that land contaminated with PFAS should be given preferential treatment in determining which projects to approve. After providing an opportunity for public comment, the Commission issued an order on July 24, 2024, responding to the comments and publishing the final version of Chapter 397. Under the final rule, the Commission must issue its first procurement RFP no later than November 10, 2024.

In reviewing proposals under this program, the Commission will first determine whether a project is an Eligible Class IA (i.e., renewable) resource project. If the project is eligible, the Commission will give preference to those located on PFAS-contaminated land that has been determined by the Maine Dept of Agriculture, Conservation & Forestry to no longer be useable for its current or historical agricultural purposes.

Further, projects eligible for selection must have a net positive value for Maine ratepayers. In particular, for the Commission to approve a project, the cost of the contract must be outweighed by the economic benefit to Maine ratepayers. Benefits may include renewable energy credits (“RECs”) sold below their market value to help the state meet its renewable energy goals, or, reduced transmission-related costs.

The possibility of renewable energy projects utilizing contaminated land may offer an alternative financial pathway for farmers and landowners whose means of livelihood have been taken away. Given the likely additional cost of developing such contaminated land and the strict project approval requirements put in place by Chapter 397, it is unclear whether solar developers will choose to engage in the RFP process. Hence, whether the intent of the Maine Legislature in setting up the framework for this program will be achieved is far from certain.

Maine DEP Issues PFAS in Products Concept Draft Rule

The Maine DEP’s PFAS in Products Program has released its long-awaited Chapter 90 concept draft language (the “PFAS in Products Rule”) for implementation of Maine’s recently-amended “PFAS in Products Law.” The concept draft provides additional details on sales prohibitions for products and product components containing intentionally added PFAS, along with criteria DEP will require as part of forthcoming Currently Unavoidable Use (“CUU”) proposals for products or product categories with upcoming sale prohibitions in the State.

The release of the concept draft of the PFAS in Products Rule was made as part of an informal outreach process through which DEP is soliciting public input. Comments are due August 30, 2024; DEP plans to proceed with formal rulemaking later this fall.

“Currently unavoidable use” is defined in Maine’s PFAS in Products Law as a use of PFAS that DEP has determined by rule to be “essential for health, safety or the functioning of society and for which alternatives are not reasonably available.” See 38 M.R.S. § 1614.

Notably, under the concept draft the Department will only consider CUU proposals submitted between 18 and 36 months in advance of an applicable sales prohibition. Thus, absent an exemption to this timeframe, it does not appear DEP will entertain any CUU proposals for the following products or product categories containing intentionally added PFAS with sales prohibitions set to take effect on January 1, 2026:

• cleaning products
• cookware products
•  cosmetic products
• dental floss
• juvenile products
• menstruation products
• textile articles
• ski wax
• upholstered furniture

Similarly, it appears DEP would not begin to consider CUU proposals for artificial turn and outdoor apparel for severe wet conditions not otherwise accompanied by a PFAS disclosure—the next two product categories with sales bans set to take effect January 1, 2029—until January 1, 2026 at the earliest.  

Individuals with comments on or concerns regarding the concept draft are encouraged to e-mail DEP’s PFAS in Products Program at PFASproducts@maine.gov. 

Preti Flaherty's Environmental Practice Group is closely monitoring Maine DEP's efforts regarding PFAS-related matters. Contact Kevin Osantowski or David Van Slyke if you have any questions on this topic.

____________________________

Preti Flaherty attorneys David Van Slyke and Kevin Osantowski contributed to this article.