EPA Claims Immunity in PFAS Lawsuit, Citing Clean Water Act Reporting Requirement

The EPA claims it has immunity from lawsuits under the Clean Water Act as long as it completes a report every two years. The EPA asserts that it has “complete discretion” to determine what pollutants should be regulated. This comes in response to a lawsuit filed by Public Employees for Environmental Responsibility (PEER), an environmental non-profit that is representing Texas farmers against the government agency for failure to regulate Per- and polyfluoroalkyl substances (PFAS) chemicals in biosolids fertilizer.

The HighWire first reported about the lawsuit in June. The Environmental Working Group estimated in 2022 that up to 20 million U.S. farm acres could be contaminated with forever chemicals through the use of biosolid fertilizer. That is 5% of all cropland in the U.S., and the EPA currently has no regulations on PFAS in biosolid fertilizer.

Former EPA Attorney Kyla Bennett responded to the EPA immunity claim by saying, “EPA seems to have lost any sense of its legal and moral obligation to protect public health. Under the plain language of the Clean Water Act, EPA has a mandatory duty to identify and regulate substances that are a threat to human health and the environment – not just to issue a report about it.”

The EPA set new regulations in April that require water companies to monitor the levels of PFAS in the water supply. EPA Administrator Michael Regan, at the time, stated, “Long-term exposure to certain types of PFAS have been linked to serious illnesses, including cancer, liver damage, and high cholesterol.”

Biosolid fertilizers spread onto farmlands across America are leaching PFAS chemicals into the water. While the EPA moved to regulate six PFAS “forever chemicals” in the water supply earlier this year, there is no timeline for setting regulations on biosolid fertilizers that are part of the underlying causes of contamination in the water.

PEER Attorney Laura Dumais, representing the Texas farmers in the case against the EPA, told The HighWire in June that there is currently no effective way of decontaminating farmland exposed to forever chemicals through biosolid fertilizers. “Over time, the amount of PFAS will drop, but this could take hundreds of years,” Dumais said. “There is some work being done on trying to use plants like hemp to remove PFAS (“phytoremediation”), but total PFAS removal is low.”

Following the EPA’s response to the lawsuit, Dumais said, “Once EPA has the evidence – and it has more than enough evidence on PFAS – it must act to protect the public from the devastation caused by toxic sewage sludge used as fertilizer. EPA’s failure to act swiftly on this issue flies in the face of the plain language of the Clean Water Act.”

The EPA brief states that reviewing courts have the authority to “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The brief goes on to say, “EPA is also required to “review” the sewage sludge regulations at least every two years “for the purpose of identifying additional toxic pollutants and promulgating regulations for such pollutants.”

The EPA refers to the report completed in December 2022 as proof they have complied with the expectations within the Clean Water Act. The brief states, “To date, EPA has not promulgated any regulations following its release of its Biennial Report No. 9.”

The claim is that the EPA has full discretion to determine what regulations should be in place for PFAS chemicals and has determined not to set regulations within biosolid fertilizers. Therefore, the agency claims, there can be no legal consequence for not meeting regulations that were never set in the first place.

The plaintiffs claim that the EPA knows about the toxic effects of PFAS on farmland and that it is leaching into the water supply. Based on this information, the lawyers claim that the EPA is compelled to set regulations to protect the public from the “toxic sludge.”

The EPA identified two hundred fifty pollutants within biosolid fertilizer, including 10 PFAS “forever chemicals.” Despite this knowledge, the EPA has only set regulations for nine metals within this type of fertilizer.

According to Anna Reade, a scientist with the Natural Resources Defense Council, PFAS chemicals from the 1940s are still present in the environment today. The 1940s is when these chemicals started being used to waterproof and stainproof various products.

North Carolina, New Jersey, and New Mexico petitioned EPA Administrator Regan this week to classify four PFAS chemicals as air pollutants. An investigative report by the Guardian from the beginning of the year found a North Carolina PFAS factory had significantly higher levels of PFAS than they were reporting. Tests conducted by the Guardian found up to 30 times higher PFAS levels than state regulators found in their testing results.

Air pollution from factories like this is considered to be one of the primary causes of PFAS contamination in food, water, and soil.

The HighWire reported that Norfolk Southern contractors were conducting testing for the EPA in East Palestine. A chemical fire occurred at SMB Products in Akron, OH earlier this month. The company has hired an environmental consultant who is “doing the work” to determine if the environment is safe for the public that lives and works in the area.

The EPA has faced more scrutiny in the aftermath of these events, and the public is concerned about conflicts of interest when testing for air, soil, and water safety.