Let’s state the obvious. Fertilizers laced with forever chemicals?
Yup.
Wastewater treatment plants can opt to create sewer-sludge as a byproduct of separating liquids and solids. But the process doesn’t remove PFAS that remain in the sludge. Utilities then may sell the sludge to farmers, who use it as fertilizer.
It’s everywhere. The Environmental Working Group estimates right now almost 70 million acres of U.S. farmland may be contaminated by forever chemicals.
And it’s dangerous. An EPA draft sewage sludge risk assessment for PFOA and PFOS released in January found:
“…the EPA’s modeling results from the draft risk assessment suggest that under certain scenarios and conditions, land-applying or disposing of sewage sludge containing a detectable level (i.e., 1 ppb or more) of PFOA or PFOS could result in human health risks exceeding the agency’s acceptable thresholds for cancer and non-cancer effects.”
A lawsuit brought last summer by five Texas ranchers and farmers attempted to compel the Environmental Protection Agency to start regulating polyfluoroalkyl substances (PFAS) in sewage sludge.
‘Forever chemical’-laden sewage sludge is a national emergency
The farmers claimed PFAS laden biosolids from neighboring fields leached onto their property, impacting their physical health as well as that of their pets and livestock. The lawsuit claimed EPA has failed “to perform its non-discretionary duty to identify and regulate toxic pollutants in sewage sludge as required by 33 U.S.C. § 1345(d).”
Moreover the lawsuit suggests EPA violated the Administrative Procedure Act for failure in the agency’s biennial reports to identify toxic PFAS as dangerous to public health or the environment using readily available scientific study.
Unfortunately, Judge Dabney Friedrich, U.S. District Court for the District of Columbia, didn’t agree. Friedrich ruled while EPA has a non-discretionary duty to review its regulations on a biennial basis that doesn’t mean it has to immediately act on its findings:
“Although the plain language of the CWA imposes a non-discretionary duty on EPA to review its regulations on a biennial basis, it does not mandate that EPA also identify and regulate sewage-sludge pollutants within the same time frame. And neither the Biennial Report nor EPA’s failure to list pollutants in that report constitutes a final agency action subject to APA review.”
In short, Friedrich reasoned the farmers couldn’t force EPA into action because Congress didn’t set a “date-certain deadline” for EPA to comply with its review findings.
Friedrich suggested the farmers seek an alternative pathway to get the ball rolling:
“This is not to say, however, that an interested party cannot initiate legal action against EPA for failing to identify or regulate PFAS. To the contrary, an interested party can petition EPA to initiate a rulemaking to identify or regulate any pollutant. See 5 U.S.C. § 553(e). And EPA’s denial of any such petition could constitute a final agency action subject to APA review.”
Of course all this linguistic hair splitting means legal challenges to PFAS sewer sludge may be possible only after EPA denies a formal rule-making petition. That could be a fairly long wait given EPA’s inclination to slow walk the problem.
Court dismisses lawsuit alleging EPA failed to protect farmers from PFAS in fertilizer
The EPA has issued nine biennial biosolids reviews since 2005 and not once has identified or attempted to regulate a single sewer-sludge contamination issue.
S-L-O-W W-A-L-K.
A number of states have become proactive in regulating sewer sludge biosolids. Maine and Connecticut have banned them outright. Nine other states are now requiring testing of biosolids and/or have established limits for land-application of PFAS.
It’s unfortunate the feds can’t see what has become obvious to all. PFAS sewer sludge should not be sold as fertilizer.
