Dive Brief:
- The U.S. EPA is pushing to dismiss a lawsuit that would compel the agency to identify and regulate several "forever chemicals" in sewage sludge under its Clean Water Act authority, per a filing from the federal case last week.
- The lawsuit was filed by a group of farmers and ranchers in Texas in June. They allege their health, livestock and land have been substantially harmed by the spreading of sludge contaminated with per- and polyfluouroalkyl substances, or PFAS.
- The use of sludge, known in the industry as biosolids, as a fertilizer on agricultural lands has been a common practice in the U.S. for decades. But it's come under intense scrutiny amid reports of high levels of PFAS contamination on certain farms that have spread the material in states such as Maine, Michigan and Texas.
Dive Insight:
The potential for PFAS contamination from biosolids has become a growing concern for the waste and recycling industry, particularly for digesters or composters that receive and process the material. About a third of biosolids in the U.S. are applied on agricultural land, while 27% are landfilled and 16% are incinerated, according to 2022 data analyzed by the EPA.
The Biden administration has indicated reducing PFAS pollution is a priority since 2021, when it issued its strategic road map for how it would address the issue. Following that plan, the agency named PFOA and PFOS as hazardous substances and set maximum contamination limits in drinking water for the two chemicals. The agency is also scheduled to complete a risk assessment on the presence of PFOA and PFOS in biosolids by the end of the year.
The EPA has been aware that PFOA and PFOS were potentially hazardous to human health since 1998, when manufacturer 3M voluntarily notified the agency, the lawsuit alleges. But it's taken the agency some time to acknowledge that additional PFAS chemicals are also likely harmful to human health, drawing growing criticism from groups who say they’ve been harmed by the agency’s inaction.
The Maine Organic Farmers and Growers Association, Potomac Riverkeeper Network and Johnson County, Texas, are planning to join the farmers as plaintiffs in the lawsuit. Sarah Alexander, executive director of MOFGA, said she expected EPA to try and dismiss the lawsuit, but was surprised by the agency’s reasoning.
“We do think that they have a responsibility not just to report about it or to monitor the situation but to actually regulate the situation and the substances that are found in biosolids,” Alexander said.
The group of farmers are represented by advocacy group Public Employees for Environmental Responsibility in a lawsuit filed in the U.S. District Court for the District of Columbia in June. It comes after the constable in Johnson County, Texas, partnered with scientists at PEER to investigate livestock deaths at the farm of Karen and Tony Coleman.
Through an investigation, they found two catfish had concentrations of PFOS at 74,000 and 57,000 parts per trillion, or 30,000 times the dose beyond which EPA estimates noncancer health effects were possible. A stillborn calf tested at 610,000 parts per trillion — PEER said a serving of the calf's liver would have exceeded the EPA's reference dose by about 250,000 times.
Other plaintiffs claimed two working dogs, a family cat, horses, fish and birds had all died "with no apparent wounds or other apparent cause of death." Meanwhile, the plaintiffs also allege they've experienced health issues related to PFAS exposure, including respiratory and cardiac issues and skin irritation.
They hope to compel EPA to add a list of 18 PFAS chemicals to the list of pollutants of concern in sewage sludge that it updates every other year. They're also hoping to require EPA to set limits on the presence of 11 PFAS chemicals in biosolids, including PFOA and PFOS. The agency has previously indicated it's looking into such measures, but its most recent sewage sludge report did not include the PFAS chemicals, per the lawsuit.
In its Sept. 9 filing, the EPA argued that while it's required to list contaminants it has identified in sewage sludge in a report every two years, it's not actually obligated to add any newly identified chemicals like the PFAS at issue. It also argued it's not required to limit those pollutants listed in its biennial report. Since both of those duties are at the agency's discretion, citizens can't sue to compel the EPA to act, it argued. The sewage sludge report "binds no one to anything," the agency's lawyers wrote in their brief.
So far, the agency has taken some steps to address the issue while stopping short of setting legally enforceable limits. It released a guidance document last year entitled "Joint Principles for Preventing and Managing PFAS in Biosolids," which identified collaboration, monitoring and source reduction as priorities for state and local authorities looking to stay on top of PFAS contamination. In that document, it also urged authorities to "protect farmers, ranchers, and their families from the potential risks of PFAS exposure through biosolids land application."
In August, the agency also announced more than $15 million in research grants to study the impact of PFAS in biosolids on agricultural land. The recipients will look at the effect of land application as well as potential strategies to mitigate contamination, per the EPA. Meanwhile, lawmakers introduced a federal bill that would set up a compensation system for farmers who have been affected by the land spreading of biosolids. Alexander said the bill’s backers are hoping to get the measure incorporated in the next farm bill, which Congress is currently debating.
An EPA spokesperson declined to say whether the agency planned to list PFAS chemicals in its biennial sewage sludge report or regulate them, saying they would not comment on pending litigation. The EPA’s next sludge report is due at the end of this year.
