By James D. Bradbury, PLLC
One of the biggest environmental issues impacting farmers today is the contamination of agricultural land by per- and poly-fluoroalkyl substances (PFAS). Commonly known as “forever chemicals,” PFAS represent a number of synthetic chemicals used in manufacturing and consumer and industrial products that resist decomposition and can accumulate in the environment.
For farmers, the impacts of PFAS has been substantial, as many farms have used biosolids as fertilizer for their fields in the form of treated sewage sludge. Many of these biosolids contain PFAS, which can contaminate the land, water and livestock, with devastating consequences for landowners and agricultural producers. The impacts of contamination from these previously unknown, unidentified and misunderstood chemicals have already been felt in agriculture through the closure of certain agricultural operations, including dairy farms and beef operations. Concerns are significant not only for impacts to agricultural operations and landowners but for contamination of the food supply.
In August 2024, a group of farmers from Johnson County, Texas, along with environmental groups and other advocates, sued the Environmental Protection Agency (EPA) in federal court (James Farmer et al. v. United States Environmental Protection Agency) asking the court to order EPA to identify and regulate certain PFAS that are present in sewage sludge and that can be used as fertilizer on agricultural land.
On Sept. 29, however, the federal district court dismissed the farmers’ lawsuit, finding that the Clean Water Act does not mandate that EPA identify and regulate pollutants every two years. The court indicated that the Clean Water Act could allow the parties to petition the EPA for a rulemaking to identify and regulate PFAS.
Despite this setback for farmers, other developments concerning PFAS regulation are continuing. In September, a group of agricultural stakeholders working together in the PFAS and Agriculture Policy Workgroup issued their “Federal Policy Recommendations to Address PFAS Contamination on Agricultural Land.” The recommendations address key aspects of PFAS contamination and impacts to agricultural land, farmers and ranchers, including congressional and administrative recommendations to:
- Provide relief and long-term support for impacted farmers and ranchers
- Protect farmers from unreasonable liability under CERCLA
- Reduce additional PFAS contamination of agricultural land
- Coordinate and invest in PFAS research
- Implement a coordinated education and risk communications strategy.
As this list indicates, many of these recommendations address the most pressing impacts and concerns of farmers, including remediating contamination, limiting liability for contaminated land, providing guidance on land-applied biosolids, creating thresholds and testing requirements, and encouraging and increasing research across multiple agencies regarding PFAS contamination. These recommendations will be updated as the issues change and understanding of the impacts of PFAS contamination grows and changes.
While PFAS contamination continues to be a significant issue for agriculture, multiple agencies, including USDA, EPA and FDA, are working with stakeholders and environmental groups to address PFAS contamination of farms and the food supply. This will be an important issue for farmers and ranchers to follow as identifying, understanding and regulating these chemicals and their impacts to agriculture continues.
