Lara Beaven of Inside PFAS Policy reports that Maine farmers have joined litigation against the Environmental Protection Agency for not yet regulating the presence of PFAS in sewage sludge. The plaintiffs in that litigation allege that sewage sludge contains PFAS, a relatively uncontroversial proposition, and that the “biosolids” created from that sludge can also contain PFAS.  In some cases, the concentrations of PFAS in those biosolids are staggering compared to the concentrations of PFAS that EPA has determined present a threat to human health and the environment.

The plaintiffs allege that “EPA has failed to identify as existing in sewage sludge at least eighteen toxic PFAS that available scientific evidence shows are present in sewage sludge in concentrations which may adversely affect public health or the environment, in violation of 33 U.S.C. § 1345(d)(2).”

The “available scientific evidence” certainly seems to show that at least some of these PFAS are present in sewage sludge. And EPA's identification of two of those PFAS as “hazardous substances” under CERCLA, the Federal Superfund statute, was based on a determination that when they are released into the environment (which would include land application) they “may present substantial danger to the public health or welfare or the environment.”

As I've said in the past, there's going to be litigation over what “substantial danger” means in this context but, whatever it means, EPA is going to be hard pressed to say that at least these two PFAS present a “substantial danger” for the purpose of applying CERCLA, but they don't also meet the “may adversely affect public health or the environment” test of the Clean Water Act.

If EPA's answer to the plaintiffs' lawsuit is that it hasn't gotten to discharging its Clean Water Act sewage sludge responsibilities yet, that would make sense.  I've previously expressed concern that trying to meet the aggressive milestones in its October 2021 PFAS road map may have been stretching EPA's resources too thinly.

But what I really think is going on here is that EPA's PFAS proclamations under CERCLA and the Safe Drinking Water Act were the regulatory equivalent of screaming fire in a crowded theater and now EPA is trapped in that theater with our nation's water utilities, farmers and many others.

As Inside EPA previously reported, in 2022, then EPA Assistant Administrator for Water Radhika Fox told water utility executives that EPA knows that land application of biosolids is “essential to this country.” But EPA still hasn't figured out how that essential activity can continue in a way that is consistent with EPA's PFAS proclamations.

EPA attempted to put at ease the many would be defendants affected by its proclamation that two PFAS are “hazardous substances” as defined in CERCLA with a guidance document explaining how it intended to exercise discretion in deciding who to sue for the PFAS affecting hundreds if not thousands of properties from coast to coast. 

The lawsuit Maine farmers joined this week is conclusive evidence of the insufficiency of that EPA guidance. Legislation exempting “passive receivers” of PFAS like water utilities from liability under Federal environmental law would be more effective but whether, and when, Congress and the President might agree on such legislation is anything but certain, even if it were a good idea.