A series of recent New York Times pieces have sounded the alarm about PFAS chemicals in biosolids on agricultural ground. First, there was the article on August 31, 2024 entitled “Something’s Poisoning America’s Land. Farmers Fear ‘Forever’ Chemicals.” Two articles on September 21, 2024 later heightened the level of concern: “Her Children Were Sick. Was It ‘Forever Chemicals’ on the Family Farm?” and “What We Know (and Don’t Know) About ‘Forever Chemicals’ in Food.”
So how worried should Indiana landowners and the lawyers who represent them be? As with all respectable legal questions, the answer is “it depends.” Biosolids (or “biosludge”) are the solids left after a wastewater treatment plant processes water received from industrial and other users. During the wastewater treatment process liquids are separated from solids. The solids are then treated to remove toxic ingredients and produce a nutrient-rich product known as biosolids. Some biosolids are incinerated or disposed of at landfills, but according to EPA, slightly over half of the biosolids produced in the United States are used as fertilizer for land application on agricultural fields. Because WWTP processes do not remove PFAS, those chemicals can be left in the biosolids and end up being spread on fields.
The potential problem occurs when crops on fields take up PFAS present in the biosolids applied as fertilizer. This issue can be exacerbated if livestock consume those crops. In 2022, a beef cattle farmer in Michigan was put out of business when his cattle tested positive for PFAS after grazing on land which historically had received biosolids as a source of fertilizer. Numerous farms in Maine were shut down after testing positive for PFAS. Maine and Michigan are two of the only states with laws specifically addressing PFAS in biosolids while many states (including Indiana) wait for the EPA to announce its plans for federal regulation.
Clean Water Act § 405(d) requires EPA to establish numeric limits and management practices to protect public health and the environment from the reasonably anticipated adverse effects of pollutants during the use or disposal of biosolids. Section 405(d) also requires EPA to review its biosolids regulations at least every two years to identify additional toxic pollutants that may be present in biosolids and then promulgate regulations for those pollutants if sufficient scientific evidence shows they may adversely affect public health or the environment. As of the date of this article, the EPA has not established numeric limits or monitoring or reporting requirements for PFAS in biosolids. In the 2021 Roadmap and 2023 Roadmap progress reports, EPA says it will complete, by winter 2024, a risk assessment for PFOA and PFOS in biosolids, which it will use to determine whether to regulate these contaminants in biosolids.
Nationwide, at least two lawsuits have been filed related to alleged biosolids PFAS contamination. In Farmer v. Synagro, Case No. C-03-CV-24-000598, Baltimore County, MD, (1st Amended Complaint Feb. 27, 2024), farmers and landowners alleged that Synagro’s fertilizer product contained PFAS and contaminated the plaintiffs’ farm properties. The defendant filed a motion to dismiss based on improper venue and forum non conveniens which is currently pending before the judge. In Farmer et al. v. EPA, that same group of aptly named plaintiffs filed a citizen suit against the EPA, claiming it failed to perform its non-discretionary duty to identify and regulate toxic pollutants in biosolids as required by the CWA. The EPA’s motion to dismiss (claiming the alleged duties are discretionary) is still pending as of the date of this article. Landowners and lawyers alike are watching these two cases as possible indications of the future of biosolids litigation.
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