U.S. EPA Says it’s Not Obligated to Regulate PFAS-laden Sludge Applied to Land

The U.S. Environmental Protection Agency (EPA) and the Public Employees for Environmental Responsibility (PEER) are amid a legal scuffle over whether EPA is obligated to regulate PFAS in sewage sludge applied to land.

The agency argues it has no discretionary duty to take action—that Congress has left the decision to the EPA. In its lawsuit PEER states the Clean Water Act requires the agency to regulate these pollutants in sludge, based on data showing PFAS may be present in concentrations harmful to humans and the environment.  Now a judge will decide whether litigation can proceed.

As this case unfolds on behalf of Johnson, Texas; Maine Organic Farmers and Gardeners Association (MOFGA); and Potomac River Keeper Network, lawyers in Texas have filed a similar suit against fertilizer manufacturer Synagro, owned by an investment fund managed by Goldman Sachs Merchant Banking. The legal firm is representing several Texas farmers and ranchers who await an October 1, 2024 hearing.

In the face of this issue, farmers have a lot at stake. These toxic contaminants are showing up in high concentrations on their properties nationwide, infiltrating soil and sometimes sickening their cattle, says Laura Dumais, PEER staff counsel.

“They rely on statements about the safety of the products they put on their land. If EPA is not telling them it is harmful and in fact promoting sewage sludge as potentially helpful to put on land, this is a real problem.”

That problem impacts more than farmers, argue more and more advocacy and environmental groups. Studies suggest PFAS in sludge-based fertilizer could permeate food, enter well water, and possibly make its way into municipal drinking water.

“There is so much information out there on the dangers of PFAS,” Dumais says and points to EPA’s own acknowledgement of these chemicals’ health risks, as seen in its new standards stating that there are no acceptable levels of several PFAS in drinking water.

PEER named 11 PFAS identified in EPA reports as present in sewage sludge that the advocacy group says call for proposed regulations. The organization is also going after PFAS that the agency did not red flag in its report, based on evidence of their presence in sewage sludge. Among the targeted “forever chemicals” are a few that have especially been in the limelight: PFOS, PFOA, and GenX, with the latter considered a PFOA replacement.

Contamination is not an unsolvable problem, Dumais says, but she speculates that the federal agency just does not have enough staff or resources to fully address it.

“Sometimes court cases will force an agency to devote resources to something it has been underprioritizing. So, our hope is this case will motivate EPA to put more staff on this important problem,” she says.

In Texas, farmers and ranchers believe PFAS in a biobased fertilizer applied on a neighboring farm poisoned their properties. They are suing Synagro who supplied the product.

The company argues it does not generate or use PFAS but rather is a “passive receiver” and should not be held liable.

Mary Whittle, partner, Guerrero & Whittle, who represents the plaintiffs, argues otherwise.

“They purport to be saving the world by selling farmer’s cheap fertilizer. Synagro converts the biosolids the wastewater treatment facility receives, treats, and sells it as if it is an organic product. Synagro’s value proposition is to dispose of the biosolids in a manner that saves municipalities money,” Whittle says but she charges that the product “makes Synagro rich while destroying America’s farmland” and that the company is fully aware of the dangers of PFAS.

Land application of sewage sludge became an acceptable and touted solution for the material when it became illegal to discharge it to waterways. Using it as fertilizer was seen as an alternative disposal method that could enrich farms.

But in allowing this new application, Congress had a caveat: EPA had to identify and regulate these pollutants if they may be present in concentrations that may be harmful to people or the environment.

Recognizing that waste streams continually evolve, as do technologies to manage emerging contaminants, Congress required EPA to review and update its pollutants list bi-annually.

EPA is basically saying it is only required to make two-year updates and that it has complete discretion over which pollutants to add to the list or regulate, Dumais says.

“Our response is that Congress did not want EPA to simply find out what is hazardous in sewage sludge, then pick and choose which hazardous substances it identified had to be listed and regulated.”

The statute language is very clear, Dumais says.

The agency has begun to look at PFAS in sewage sludge. But Dumais’ concern is that it is placing scientific hurdles before itself that are too high to clear, and it’s unnecessarily slowing down a process, looking for more data when enough already exists to inform regulations.

“We can’t just wait for cows to start dying, which is what is happening now with PFAS,” she says.

In the absence of federal legislation, some states are doing their own research on PFAS’ impact on soils and farmland. Based on its soil and water test findings, Maine recently became the first state to ban land application of sludge. As of late August 2024, the state confirmed 68 farms have had at least one soil or water sample demonstrating contamination levels warranting increased evaluation to help determine course of action. The study is ongoing.

As far as the suit brought against EPA, EPA’s release of its position is just the first step.

“We hope once we provide our response that the court will rule the case can proceed and we will go to a motion for summary judgment on the merits of the case,” Dumais says.

EPA said it cannot comment on the case as it is ongoing. Plaintiffs did not respond to Waste360’s requests for comment.