Digging Deeper...

PFAS compounds (per-and poly- fluoroalkyl substances) comprise a group of chemicals many of which contain a strong carbon-fluorine bond with properties that enable them to repel water and oil. Some PFAS formulations “build-up” over the years rather than “break-down.” Because they may linger on for decades, these compounds originally discovered by accident in the 1930’s, have been dubbed by some as “Forever Chemicals.”
By Ally Cunningham, Jessie Rosell, Matt Walker, and Shanna McCormack, attorneys at Lathrop GPM LLP

PFAS in Agriculture: What Agri-Business Sector Needs to Know about the Latest Emerging Contaminants

Agricultural professionals across the country are learning about a class of chemicals known as per- and polyfluoroalkyl substances, or “PFAS” and the operational risks they can create. Originally developed as the durable nonstick coating in Teflon pans, PFAS are now ubiquitous in the environment because of their long history of use in household products, industrial applications, and military bases using firefighting foam. There are currently few federal regulatory programs that deal with PFAS compounds, engendering a patchwork of varying state-led standards and initiatives to fill the gap. But federal and state programs are quickly evolving. This note looks ahead at what those in the agricultural sector need to know about PFAS and how it might impact their business.

Future Designation of PFOA and PFOS as Hazardous Substances and Impact on Biosolids

Heralded for years as an environmentally friendly fertilizer, land appliers of biosolids have voiced concerns about the potential for PFAS to accumulate in biosolids generated during wastewater treatment, which could transfer to land and groundwater when applied to a field. In August 2022, the United States Environmental Protection Agency (“EPA”) proposed designating two widely studied PFAS, PFOA and PFOS, as “hazardous substances”, which would subject releasors to federally enforced cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Biosolid users fear they may face liability if they inadvertently release PFAS when applying biosolids.

In a press release, EPA explained it “is focused on holding responsible those who have manufactured and released significant amounts of PFOA and PFOS into the environment. EPA will use enforcement discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination.” EPA’s comments suggest a focus on primary PFAS generators, rather than passive receivers like biosolid users.

EPA also affirmed it was “committed to doing further outreach and engagement to hear from impacted communities, wastewater utilities, businesses, farmers and other parties during the consideration of the proposed rule.” Comments on the proposed rule closed November 7th, but in one notable comment, the City of Vancouver, Washington and Clark Regional Wastewater District urged EPA to clarify that the exclusion under the “normal application of fertilizer from CERCLA’s definition of release” includes “farmers applying biosolids to farm fields even where the biosolids contain CERCLA listed hazardous substances, such as PFOA/PFOS.”

EPA water chief Radhika Fox affirmed on October 11th that EPA plans to continue allowing current methods to manage biosolids—including land application because they are “essential for effective utility management.” While there is no explicit exemption currently proposed for agricultural operations, the combination of enforcement discretion and interpretation of existing exclusions may provide some comfort to biosolids users.

Department of Defense Notices to Downgradient Agriculture Operations

In 2021, Congress enacted the National Defense Authorization Act of 2021, part of which required the military to notify agriculture operations located within one mile downgradient of a Military Installation or National Guard facility where PFAS above certain standards: (1) were detected in groundwater on base; (2) hydrologically linked to a local agricultural or drinking water source; and (3) known or suspected to be the result of a PFAS release at a Military Installation or National Guard facility located in the United States. Many military installations have used or stored PFAS containing fire suppressants known as aqueous Film Forming Foam or AFFF, which may be released into the environment. As of August 2022, the Department of Defense (“DoD”) has sent over 3,585 notifications to farms of potential downstream PFAS contamination. Agricultural operations near military installations should be aware of any notices released from DoD and potential risks to their operations.

EPA and USDA Review of PFAS in Pesticides and from Fluorinated HDPE Containers

Recently, federal regulatory agencies including the EPA and U.S. Department of Agriculture (“USDA”) have identified a risk that certain high-density polyethylene (HDPE) containers, treated with fluorine gas to make them sturdier, can leach PFAS into their contents. The EPA had been investigating the presence of PFAS in pesticides since late 2020 when PFAS were detected in aerially applied mosquito sprays. To address these concerns, EPA released results from its evaluation on the leaching potential of PFAS and issued a letter to the HDPE container industry reminding them of manufacturing and reporting requirements to help prevent unintended PFAS formation. EPA also continues to ask companies using fluorinated containers to “examine their distribution chains to identify potential sources of contamination.” If companies find PFAS in their products, EPA has advised “they should notify EPA and take action to remove contaminated products.”

On September 13, 2022, the EPA announced it was removing 12 PFAS compounds from the current list of inert ingredients approved for use in pesticide products under Federal Insecticide, Fungicide, and Rodenticide Act. The 12 PFAS subject to the notice are no longer used in any registered pesticide product, however, EPA’s delisting action would require an updated review if their future use in pesticide products is requested. This represents another step by EPA to monitor for PFAS in pesticide and agriculture products.

Aid Payments to Dairy Farmers for PFAS Contamination

Last year, the USDA Farm Service Agency (“FSA’) amended the Dairy Indemnity Payment Program to compensate dairy farmers whose cows cannot be put on the market due to PFAS contamination. This could be an indication that federal agencies have farmers in mind while addressing PFAS in the environment.

The Dairy Indemnity Payment Program, a program authorized in 1968 to reimburse farmers who are directed by federal agencies to stop selling milk because of contamination, reimburses farmers for PFAS contaminated cows and milk. Last year, 88% of the payments under the program were spent on reimbursement for PFAS. Often, the payments only make up a fraction of the value the cows would be worth if not contaminated. With the 2023 Farm Bill on the horizon, lawmakers and agriculture lobbyists are focused on additional funding to cover costs associated with PFAS.

Drinking Water Standards for PFAS

Agricultural operations should also be apprised of federal drinking water standards, particularly in food processing sector. On June 15, 2022, EPA updated its drinking water health advisories, or non-enforceable drinking water guidance values, for PFOA and PFOS that replace those previously issued in 2016. It reduced the health advisory level for PFOA and PFOS from 70 parts per trillion (ppt) in 2016 to 4 parts per quadrillion (PFOA) and 20 ppq (PFOS). These levels are undetectable by most modern laboratories, raising questions and confusion in determining what true relevance these interim, unenforceable advisories have. But enforceable standards are coming.

EPA announced plans to set legally enforceable drinking water standards for PFOA and PFOS by the end of 2023. The proposed standards will likely be published in the Federal Register in December 2022. These levels will likely be higher than the drinking water health advisory levels to ensure they can be reliably tested. Until EPA establishes enforceable drinking water standards and in the absence of a state standards, there is much uncertainty among those detecting and assessing “safe” levels of these compounds in drinking water.

Conclusion

Although there is uncertainty as to the future impact of EPA’s PFOA and PFOS hazardous substance listing on the use and liability for biosolids, DoD’s AFFF impacts to agriculture, and what drinking water standards EPA will set for PFOA and PFOS, agricultural operations should remain informed on EPA’s current standards. Agricultural operations should also understand nearby facilities to determine whether they could present PFAS-related concerns and be diligent about sourcing fertilizers, particularly biosolids, that could contain PFAS.