Digging Deeper...

PFAS compounds (per-and poly- fluoroalkyl substances) are 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 time rather than “break-down.” Because they persist in the environment, these compounds – originally discovered by accident in the 1930’s – have been dubbed by some as “Forever Chemicals.”
By Jessica Rosell and Grant Harse, attorneys at Lathrop GPM LLP 

PFAS Considerations for the Ag and Food Markets

Originally developed as the durable nonstick coating in Teflon pans, a class of chemicals known as per- and polyfluoroalkyl substances, or “PFAS,” are now ubiquitous in the environment because of their long history of use in household products, industrial applications, and firefighting foam. There have historically been few federal regulatory programs that deal with PFAS compounds, which resulted in a patchwork of varying state-led standards and initiatives to fill the gap. Awareness has been growing over the last several years, particularly since 2021, when the United States Environmental Protection Agency (“EPA”) began taking specific actions, including issuance of its PFAS Strategic Roadmap in October of that year. Here’s a look ahead at what those in the agricultural sector need to know about coming EPA and state actions concerning PFAS and how it might impact their business.

PFOA and PFOS as Hazardous Substances; Their 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 EPA proposed designating two widely-studied PFAS compounds, perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonic acid (“PFOS”), as “hazardous substances,” which could subject releasors to federally-enforced cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

Relatedly, in February 2024, EPA proposed designating nine PFAS as “hazardous constituents” under the Resource Conservation and Recovery Act (“RCRA”), which would subject these PFAS to explicit consideration in RCRA facility assessments and, where necessary, further investigation and cleanup through the RCRA corrective action process at RCRA treatment, storage, and disposal facilities. Designation as a “hazardous constituent” is a preliminary step before a substance is designated a “hazardous waste” under RCRA.

Finalization of this rule was delayed in EPA’s Spring 2023 Unified Agenda to Spring 2024. Thus, EPA is expected to issue its final rule designating PFOA and PFOS as hazardous substances at any moment. There are many implications for this impending rulemaking, but a key implication for the agricultural community is how this will impact the acceptance and application of biosolids generated during wastewater treatment and then land applied for nutrient benefits.

PFAS are found in virtually every wastewater treatment plant in the United States, and most systems do not pretreat for PFAS before discharging to waters or providing the biosolids to be land applied. EPA is conducting a risk assessment  on PFOA and PFOS in biosolids, which is expected to be completed and published for public comment by the end of 2024. After the risk assessment is complete, EPA will then decide how to manage PFOA and PFOS in biosolids, if necessary.

Biosolid users fear they may face liability if they inadvertently release PFAS when applying biosolids. EPA has indicated that they 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, but such a policy would not shield applicators from liability entirely.

CERCLA exempts the “normal application of fertilizer,” and groups are currently lobbying the White House Office of Management and Budget (“OMB”) to include a broad interpretation of that exemption applicable to the use of biosolids that contain PFAS. For example, parties have recently advocated to OMB that the final rule include language specifically excluding residuals resulting from the manufacture of paper.

The U.S. Agriculture Department also raised concerns in 2022 comments on the draft rule, contending that EPA was overreaching in how it characterizes biosolids and agriculture and in particular citing fears over the effect the rule would have on the use of biosolids for fertilize.

Note that states are also starting to restrict land application of certain wastes. For example, Missouri is considering legislation that would restrict land application of certain biosolids. While not specific to PFAS, PFAS could be implicated. The bills under consideration include exceptions for Confined Animal Feeding Operations (“CAFOs”) but should be tracked by businesses in the agricultural and food sectors.

State Legislation and Rulemaking Restricting PFAS in Food Packaging

Several years ago, states began legislating restrictions to PFAS in food packaging in various forms and at various levels. Most of these restrict intentionally-added PFAS in food packaging.

Starting with New York and California at the end of 2022 and beginning of 2023, more than a dozen states have passed legislation prohibiting the sale of food packaging products containing intentionally-added PFAS, with more than a dozen additional live bills at some stage on their way to becoming law. Some restrictions are to certain levels of PFAS in food packaging, while some are to all intentionally-added in PFAS. Even if a company is able to acquire a certificate of compliance, some states require proof of testing, while others require signature by an authorized official. This patchwork of state restrictions require a company-by-company (and potentially product-by-product) evaluation for any company dealing within these jurisdictions and can present a real supply chain challenge.

EPA’s Plan 15 Effluent Limitations Guidelines and Detailed Study on Concentrated Animal Feeding Operations

EPA’s Effluent Guidelines Program Plan 15 in 2023 announced a new rulemaking in which  EPA intends to undertake a detailed study of the CAFO Category, which will focus on collecting further information to enable EPA to make an informed, reasoned decision whether to undertake rulemaking to revise the effluent limitations guidelines and pretreatment standards (“ELG”) for CAFOs.

Plan 15 is the EPA’s Effluent Guidelines Program Plan that assists EPA in reviewing, industry-by-industry, the literature available on studies of discharges of a contaminant, to assist EPA in requiring or recommending that states require, discharge limitations in state or federal discharge permits, including National Pollutant Discharge Elimination permits.

Based on EPA’s announcement of the study of CAFOs, we can expect more information from EPA on CAFOs, and more attention on CAFOs from EPA, states, and interested parties, when the study is completed.

National Primary Drinking Water Standards for PFAS

In March 2023, EPA released its long-awaited proposed rule limiting concentrations of six PFAS in public drinking water. The proposed rule would set a legally-enforceable maximum contaminant level (“MCL”) for PFOA and PFOS at 4 parts per trillion (ppt) each. EPA also proposed a health-based, non-enforceable Maximum Contaminant Level Goal for PFOA and PFOS of zero, consistent with EPA’s controversial claims that they are likely human carcinogens and there is no safe level of exposure to these two chemicals. However, EPA’s proposed rule sets an enforceable MCL of 4 ppt for these PFAS, which it considers feasible to implement, using the best available laboratory testing and treatment technology and taking cost into consideration.

The draft rule also targets four other PFAS compounds: HFPO, PFNA, PFHxS and PFBS. This part of the Rule would limit any mixture containing one of these four additional PFAS through application of a Hazard Index that adds the Health Based Water Concentrations (“HBWCs”) of these four PFAS present in the sample to determine if the water is safe to drink. The Hazard Index approach is intended to address cumulative risks from mixtures of these chemicals. It is the first time a Hazard Index has been used as an MCL.  

Yet this Spring, EPA is expected finalize the proposed national primary drinking water standards rulemaking.

While many agriculture operations do not directly impact drinking water, absent state regulatory screening levels for PFAS at some sites, parties, including plaintiffs and regulators, may look to the national primary drinking water standards for guidance on compliance.

Conclusion

While several proposed and final actions are anticipated in the short term, both from EPA and at the state level, uncertainty remains. Agricultural entities should remain vigilant as EPA’s final designation of PFOA and PFOS as hazardous substances is imminent, to be followed by EPA’s risk assessment of PFOA and PFOS in biosolids and Plan 15 study on ELG for CAFOs, and the first proposed national primary drinking water standards for PFAS. Agricultural entities should also be mindful of state-led efforts restricting PFAS in food packaging and land application of certain biosolids.