Just days before the Maine Legislature’s Judiciary Committee was scheduled to hold a virtual hearing on LD 2160 — legislation to clarify when civil lawsuits may be filed for compensation for harm from Per- and Polyfluoroalkyl Substances (PFAS) contamination — a second dairy and beef farm was found by Maine’s Department of Agriculture, Conservation, and Forestry to have “very startling”levels of PFOS, one of the PFAS family of chemicals.
In fact, the amount of PFOS in milk from the dairy herd at the Tozier farm in Somerset County was worse than “startling” — it may be the highest milk contamination levels ever recorded in North America. Measurements in late June and early July ranged from 12,700 to 32,200 parts per trillion (ppt). The highest reading is 153 times Maine’s standard for determining that milk is “adulterated” and unfit for sale (210 ng/l). As a result, the farm has been forced to stop selling its milk and beef.
These measurements are twenty times the level of PFAS that were discovered in 2016 in milk from the dairy herd at farmer Fred Stone’s 100-year old Stoneridge Farm in Arundel, Maine. As the bill’s sponsor State Rep. Henry Ingwersen explained, Stone’s problems began in November of 2016, when he received a letter from the local water district saying that tests showed a well providing his and his cows’ drinking water was contaminated with over twice the Environmental Protection Agency’s (EPA) advisory limit of 70 ppt for PFOS. The Maine Department of Environmental Protection later concluded that the source of the contamination was wastewater sludge spread on the farm as fertilizer under a state-sponsored program from 1983 to 2004. In 2016, Fred began voluntary testing of his water, soil, hay used for feed, cows, milk and both his and his wife Laura’s blood — and found it all to be contaminated with PFAS. There are currently soil locations on Fred’s farm that still test as high as 800,000 ppt. Stoneridge Farm has been forced to shut down due to the contamination.
In the absence of federal action, state governments are struggling to address widespread PFAS contamination of water, soils and food. PFAS are a group of man-made chemicals that include PFOA, PFOS, GenX and many other chemicals (up to 4,000 variations). Sources of PFAS contamination are many because these chemicals are ubiquitous. They are found in foam fire suppressants and in various industrial wastes, including from paper, textile and tannery operations. They are used in the manufacture of rain and stain-repellent clothing treatments such as Scotchgard and Gore-Tex, car and floor waxes and even some dental floss. PFAS is also showing up in food and compost through PFAS-containing food packaging and other contamination sources, and high levels have been found in breast milk around the world.
PFAS are persistent in the environment, meaning they don't break down for years and can bioaccumulate in both humans and farm animals. For this reason, they have been called “forever chemicals.” According to the federal Agency for Toxic Substances and Disease Registry, exposure to certain PFAS may affect growth, learning and behavior of infants and older children, and cause endocrine disruption. Exposure to PFAS has been linked to kidney cancer and testicular cancer, as well as thyroid disease, compromised immune systems and infertility.
Maine’s farmers are on the front lines of this PFAS-caused disaster. Their health is at risk from contaminated drinking water causing high PFAS blood levels, and the viability of their farms and livelihoods is threatened by PFAS-contaminated beef and milk that is unsafe, inedible and unsaleable. Farmers and others who experience health problems, property damage and economic ruin from PFAS contamination should have clear access to the courts to sort out the blame and assess liability for actions taken by manufacturers and other responsible parties.
Unfortunately, Maine law creates unnecessary and unjust hurdles in the way of farmers and others injured by PFAS who seek compensation through civil actions. That’s why IATP testified in support of Rep. Ingwersen’s legislation to update Maine law to recognize the unique characteristics of PFAS litigation. Access to the courts in all U.S. states is governed by statutes of limitation, which establish the timetable for filing lawsuits. While famously murder isn’t subject to a statute of limitation, most civil actions are, and in Maine they must be filed “within 6 years after the cause of action accrues.”
Simply put, Maine’s statute of limitations is both unclear and out of date. It was conceived of without understanding chemicals with properties such as PFAS, which silently and invisibly contaminate soil, water, plants and livestock; build up over time in food and in human bodies; travel far in groundwater and soils from where they were first applied; and persist for decades. Georgetown University adjunct law professor Scott Faber testified that Maine’s law is unlike the statutes of limitations in 37 other states, all of which have been updated by legislatures or interpreted by the courts to incorporate the “discovery rule.” That rule generally starts the clock ticking for filing a lawsuit at the time a plaintiff discovers or reasonably should have discovered the harm or injury, as well as the link to the chemicals causing that harm. Dairy farmer Fred Stone found out about PFAS contamination of his drinking water and dairy herd decades after the sludge was spread as fertilizer. To require Stone to file a civil action soon after the sludge was spread, before he was even aware of the existence of PFAS, much less contamination of his land — as some interpret Maine’s standard — would perpetrate a manifest injustice.
Despite applying for emergency aid from the U.S. Department of Agriculture (USDA), Fred Stone hasn’t received help from the USDA or other sources, so a lawsuit against PFAS manufacturers may be his only option to receive some compensation. Importantly, LD 2160 implements the “polluter pays” principle that underlies Maine’s longstanding approach to cleaning up and paying for pollution. This is why a majority of the members of Maine Governor Janet Mills’ PFAS Task Force endorsed clarifying Maine’s statute of limitations in their January 2020 final report. Taxpayer funding shouldn’t be the first resort to pay for damage caused by these chemicals, especially where the manufacturers including 3M were well aware of the potential for harm decades past, and have since discontinued production of some of these compounds to limit their liability. Unfortunately, the legacy of even discontinued PFAS formulations lives on, while newer PFAS compounds continue to be manufactured and remain ubiquitous in everyday consumer products.
Maine is not the only state where farms have been contaminated by PFAS and had to shut down. PFAS contamination has significantly harmed or shut down farming operations in Colorado, New Mexico, Michigan and Wisconsin, and it is likely that there are many more farms across the country that will be found to be contaminated if tested. Sewage treatment plants around the country have also developed composting operations that sell or give away composted fertilizer to home gardeners. Once thought to be an environmentally sound practice benefiting everyone, some of this compost has been found to be contaminated with PFAS including in Alaska and Washington state.
IATP will work with leading environmental organizations in Maine including the Environmental Health Strategy Group and Conservation Law Foundation to advocate to the full Maine Legislature to enact LD 2061 to protect the right to sue, once the legislature reconvenes after a hiatus caused by the COVID-19 pandemic. We will also push for more comprehensive measures to regulate PFAS and prevent future exposure. Phasing out land spreading of sewage treatment sludge is clearly long overdue, as this practice is proving to be a primary cause of agricultural PFAS contamination leading to economic devastation for farms and farmers, and is severely undermining the otherwise sterling reputation of Maine food as high quality and safe.
We submitted comments to the Maine PFAS Task Force focusing on the need for more comprehensive testing of milk and other agricultural products, especially at the farm level, and expanded testing of soils and groundwater at hundreds of locations where sewage sludge was spread over decades. We have also called on the state to establish an enforceable Maximum Contaminant Level (MCL) for drinking water to protect health including that of vulnerable populations. The failure to establish an MCL makes Maine an outlier in the region, where Massachusetts, New Hampshire and Vermont have all acted to set a state MCL. These and other states establishing their own MCLs have rejected the voluntary EPA guidance (relied on by Maine) as insufficiently protective.
As states around the country tackle the daunting challenges of PFAS contamination, cleanup and compensation, IATP will be identifying best practices and working with allies at the state and federal level to ensure that agricultural, food and farming issues and the most effective solutions are front and center.