EPA denies duty to regulate PFAS in sewage sludge spread on farmland

US regulators claim they are not legally required to regulate toxic PFAS chemicals in sewage sludge spread on farmland across the country, according to a court filing the government made this week in response to a lawsuit from an environmental watchdog group.

In its Sept. 9 filing, the Environmental Protection Agency (EPA) asked the US District Court in Washington, DC to dismiss the lawsuit, which was filed in June by Public Employees for Environmental Responsibility (PEER) on behalf of a group of Texas farmers and ranchers. The lawsuit claims contamination with per- and polyfluoroalkyl substances (PFAS) from sewage sludge has sickened and killed the farmers’ livestock, “injured their health, threatened their livelihoods, and devalued their property.”

The agency denied PEER’s claims that it is violating the Clean Water Act by failing to identify and regulate several types of PFAS that have been found in treated sewage sludge used as fertilizer. While the law requires the agency to conduct reviews, there is no requirement for the agency to actually identify “additional toxic pollutants,” the EPA said in its filing.

When it comes to sewage sludge, “both the identification and regulation of any additional toxic pollutants(s) are left to the discretion of EPA,” the agency stated in the court filing.

“The relief they seek— an order directing EPA to identify PFAS in its next biennial report, and to regulate PFAS thereafter—is simply not available,” the EPA stated.

PEER attorney Laura Dumais said in a press release that the agency’s position “flies in the face” of the language of the Clean Water Act, and harms people across the country who can be exposed to “PFAS-laden sewage sludge on millions of acres of land…”

PEER pointed to language on the EPA website that states the agency is required under the law to review sewage sludge (also called biosolids) regulations “every two years to identify any additional pollutants that may occur… and then set regulations for those pollutants if sufficient scientific evidence shows they may harm human health or the environment.”

Discoveries of PFAS on farmland have threatened or destroyed farming operations in multiple states, and the National Association of State Departments of Agriculture has described PFAS as a “major hazard” to US farmers.

PFAS are a class of thousands of chemicals that do not readily break down in the environment and build up in the bodies of humans and animals over time. Some PFAS chemicals have been linked with a variety of health problems, including cancers, reproductive issues, changes in liver function and increased risk of thyroid disease.

While municipal and industrial waste is treated to remove pathogens before being spread on farmland as fertilizer, PFAS are not removed during treatment. The EPA estimates that more than 2.4 million tons of biosolids are applied each year to fertilize farms, pastures, parks, home gardens, and other lands.

The EPA is currently conducting a risk assessment for two PFAS chemicals in biosolids that it plans to publish at the end of 2024.

(Featured image by Unsplash+ in collaboration with Getty Images.)