Texas Farmers Sue EPA Over PFAS Contamination in Biosolid Fertilizers

Texas farmers are suing the EPA for failing to regulate Per- and polyfluoroalkyl substances (PFAS) chemicals in biosolids fertilizer, which has contaminated millions of acres of farmland. Public Employees for Environmental Responsibility (PEER), an environmental non-profit, is representing the farmer plaintiffs in the suit. The complaint alleges that the EPA neglected to provide regulations for PFAS “forever chemicals” that would be a part of the agency’s responsibility under the Clean Water Act.

Biosolids come from sewer sludge processed at wastewater treatment facilities. Wastewater treatment plants contract with waste disposal and recycling companies that further treat the sludge to create fertilizer. In many cases, this fertilizer is provided for free to farmers. Otherwise, this sludge would have to be disposed of at landfills.

The problem is that the EPA doesn’t have regulations to limit the amount of PFAS allowed in the fertilizer. PFAS chemicals are known as forever chemicals because they are “virtually indestructible.” That means farmers who rely on this free fertilizer have contaminated their land to the point of not being able to use it for farming anymore. This problem has been reported for many years. The EPA only announced months ago, in 2024, that they will begin investigating whether it is appropriate for the agency to regulate PFAS under the Clean Water Act.

The Texas farmer plaintiffs want accountability for the contamination of their farmland, which is now unusable. A Guardian report from 2019 detailed the very concerning detrimental effects of applying biosolid fertilizer on American farmland. The Guardian spoke with Laura Orlando, an engineer with a special interest in tracking contamination caused by biosolids. Orlando said, “They’re finding kilograms of PFAS in sewage sludge when nanograms are harmful to humans, so you can’t regulate it as a fertilizer.”

The lawsuit brought by Texas farmers may be just the tip of the iceberg as farmers across the country are dealing with PFAS contamination issues due to using EPA-approved toxic sludge to fertilize their soil without having heard about the risks of doing so. One Michigan farmer, Jason Grostic, was shut down after there were high levels of PFAS in the beef that was produced on his farm. Michigan actually has standards for PFAS testing on biosolid fertilizer unlike most other states that allow the practice to occur.

In November, a panel hosted by the Mid-Atlantic Biosolids Association attempted to spread the message that biosolid fertilizer application is safe. The overwhelming message was that banning the practice would have an insignificant effect on people’s exposure to PFAS but would negatively affect carbon emissions from the biosolids being disposed of at landfills.

A 2018 report from the Inspector General’s office of the EPA found “it lacked the data or risk assessment tools needed to decide on the safety of 352 pollutants found in biosolids.”

PFAS contamination has been linked with the death of livestock, cancer as well as thyroid disorders, immune disorders, and low birth weight in humans.

In a press release announcing the lawsuit against the EPA, attorney Laura Dumais said, “PFAS poisoning of farmlands is fast becoming a national agricultural emergency. Farmers whose lands have been decimated by biosolids consistently ask, ‘why does EPA allow this?’ And they’re absolutely right. EPA needs to act immediately to protect farmers and our food supply from this toxic mess.”

PEER’s Science Policy Director and former EPA attorney Kyla Bennett added, “EPA is avoiding its longstanding legal responsibility to protect our health and environment from PFAS in biosolids. It is unconscionable that EPA has allowed these toxic chemicals to threaten our nation’s food and water supply.”

The 2019 Guardian report stated that a Michigan environmental official chose not to test milk for PFAS because doing so could put farmers out of business. The PFAS contamination of millions of acres has already put farmers out of business without any recourse except to sue the EPA for damages.

This comes in the same week that The HighWire reported about the EPA’s negligence and alleged corruption in working with Norfolk Southern in the aftermath of the East Palestine, OH, train derailment.

PEER released another stunning report this week that indicates officers with the EPA use a ‘backchannel’ to communicate with industry. Bennett said, “By all accounts, EPA has been and still is letting the chemical industry influence the risk assessments for their own products.” That information supports the claims made by Scott Smith regarding Norfolk Southern’s testing protocols, while his independent testing shows the area is not safe for the residents of East Palestine. The report also states that the EPA instructs outgoing employees to ‘wipe’ their phone records and text messages.

An EPA letter from July 2023 states a goal to “Ensure continued safety of the food supply and protect farmers, ranchers, and their families from the potential risks of PFAS exposure through biosolids land application.” E&E News by Politico reported in April 2024 that the Agricultural and Rural Affairs office within the EPA is conducting an agricultural risk assessment for PFAS chemicals. Agricultural adviser Rod Snyder said the assessment should be done this fall. He also said using biosolids as fertilizer on farmlands is an “important disposal method” and that they aren’t suggesting that it needs to stop.

There is no other indication that the EPA is doing anything to protect farmers from PFAS contamination. Meanwhile, the EPA is getting sued by manufacturing and chemical companies for new regulations intended to rid the water supply of PFAS chemicals. The American Chemistry Council called the new regulations ‘capricious’ and ‘arbitrary.’

As the EPA faces lawsuits for under- and over-regulation of PFAS chemicals, America’s farmers face a number of challenges that could lead to the bankruptcy of small working-class farmers. The HighWire reported about the scandal with the Farm Credit Administration and a lawsuit against the Biden administration. Farmers in Idaho are facing water shutoffs just after getting their crops planted for the season, which could have a domino effect on the economy and other industries as small farmers lose their seasonal crop investments.