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.