[The following article is co-authored with Khara Grieger, PhD, Assistant Professor, Applied Ecology, NC State University; a shortened version will soon publish in Southern Agriculture Today]

Johnson County, Texas made national news (New York Times, February 14, 2025) with a request for federal disaster relief over PFAS contamination from biosolid applications on farmland, adding perhaps another theory of redress for such contamination of soils and water. PFAS, which stands for per- and polyfluoroalkyl substances, is a large group of manmade chemicals that have been produced and used in various consumer and industrial applications for decades. While scientists and researchers are still in early phases of understanding their full range of health and environmental effects, studies conducted thus far indicate that they may be linked to several serious adverse health outcomes (including cancer and impacts on liver and thyroid functioning, among other impacts). PFAS also do not easily degrade in the environment- therefore are often referred to as “forever chemicals.” Similar to other contaminated areas, PFAS have been released across the county in the air, into water, and onto land. The federal disaster request related to PFAS contamination supplements Johnson County residents’ dual 2024 federal environmental lawsuit against the Environmental Protection Agency (EPA) and state tort claim against the applicator of the biosolids for remedial damages. 

The varying approaches may highlight tension between the theories of federal agency intervention in land use under environmental statutory authority (or lack of intervention under statutory mandate), and the extent to which the EPA – particularly after the fall of the Chevron (agency deference) doctrine – has discretion to intervene and enforce such laws and promulgate mandated regulations, or whether aggrieved farmers and landowners may only seek redress under common law liability theories in state court. Indeed, the heightened concerns over PFAS come at a moment of general federal jurisdictional retreat in resource regulation absent direct Congressional mandate, following US Supreme Court decisions concerning wetlands, fisheries management and control of pollution from energy generation. The disaster request comes to a new FEMA administrator, and the federal lawsuit inherited by a new EPA, effectively against the former administration’s alleged failure to act.

Biosolid applications – the state-permitted disposal of the solid-waste remnants of treated wastewater – have been regulated since 1987 under the Clean Water Act §1345 (§405[d]), which provides that states may permit application according to the federal statute, and dispersed in a manner that is “a local determination.” (CWA §§ 503.6[b]). The majority of states have biosolid application permitting programs, though Maine banned biosolid applications statewide in 2022 due to concerns over PFAS contamination (Nebra, 2022). In the South, Texas has introduced PFAS standards for biosolids, whereas Oklahoma and Mississippi have introduced legislation to ban biosolid applications outright. In the days before the January 20, 2025 change in presidential administrations, the EPA published a Draft Sewage Sludge Risk Assessment for Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonic Acid (PFOS) (90 FR 3859), which has not been withdrawn by the new administration. The National Biosolids Data Project maintains a nationwide database of state programs and biosolid applications, current as of 2018.

The Johnson County farmers’ federal lawsuit – brought on behalf of plaintiffs by Public Employees for Environmental Responsibility in the District of Columbia Circuit – alleges the EPA’s failure to identify and regulate various PFAS compounds under authority and mandate of the Clean Water Act, and as a failure of process under the Administrative Procedures Act. The key complaint is that the EPA failed to add PFAS as toxic substances in the biennial review requirement mandated in the 1987 amendments. The EPA has responded that the Clean Water Act – while requiring biennial review – does not mandate the listing of PFAS compounds as toxic pollutants triggering regulation, and is therefore discretionary. The CWA does appear to require EPA to take action “on the basis of available information,” and plaintiffs cite in their complaint a sizable body of research, and contend that the available body of research into PFAS toxicity (as of June 2024) is such as to delete EPA’s discretion not to act. At press time, farmer plaintiffs in Maine have joined the lawsuit following a mandatory 60-day notice-to-sue required by the CWA.

Indeed, in the months before the federal lawsuit, the EPA under the previous administration took steps to list PFAS as toxic substances under other federal environmental statutes. In 2024, the EPA promulgated regulations concerning various PFAS compounds under the Safe Drinking Water Act (SDWA) (89 FR 32532, 40 CFR Parts 141), the Comprehensive Environmental Response Cleanup and Liability Act (CERCLA) (40 CFR Part 302), and the Toxic Substances Control Act (TSCA) (40 CFR Part 705). (A proposed rule under the Resource Conservation and Recovery Act [RCRA] (citation) was not finalized.) These toxic listing updates were part of the previous administration’s 2021 PFAS Roadmap, which was updated in 2024. It may be that the administration simply ran out of time before addressing biosolids; the stance of the new EPA administration regarding the regulations above will be revealed in the future.

At least according to US Supreme Court precedent (e.g. Massachusetts v. EPA), less discretionary is a response to a direct petition to promulgate rules regulating a substance. Authors’ review of the record reveals only a petition was filed in August 2024 requesting Clean Air Act regulations (as hazardous air pollutants) by North Carolina, New Jersey and New Mexico. As yet no petitions have been filed for broader listings of PFAS under the other environmental statutes noted above, or specific to PFAS in biosolids.

Regarding CERCLA – which authorizes federal response to and assignment of liability for land sites that have become contaminated with harmful substances – the EPA under the previous administration, while acknowledging toxicity of PFAS, placed biosolid application contamination low on the list for enforcement and remedial action, specifically “farms where biosolids are applied to the land.” [see PFAS Enforcement Discretion Settlement Policy Under CERCLA (pdf)].

The Texas state tort case – Farmer v. Synagro – seeks compensation from the manufacturer of a biosolid-based fertilizer – Synagro Granulite – which plaintiffs claim has damaged their properties and farm operations. Such common law actions normally couple citizen suits under the federal environmental statutes in that the latter only provide injunctive relief, but no money damages. The legal theories in Farmer v. Synagro are strict liability (for producing and marketing an “unreasonably dangerous” product), negligence (foreseeable harm from unreasonable risk) and private nuisance (for unreasonable interference with use and enjoyment of their land). Diminution in property value is among plaintiffs’ allegations of damages. For more thorough treatment of the case, see Rollins, B., Farmers File Suit Over PFAS Contamination [National Agricultural Law Center, 2024]. Defenses to liability in these cases vary by state, and may emerge relative to risk assumption and presumptions against negligence that applicators might invoke, considering the applications were regulated and permitted. Unclear is the extent to which landowners and producers will be able to rehabilitate contaminated soils, and from what funding source. Legal theories concerning recovery for damage from biosolid applications are also being tested in litigation in Maine, Massachusetts, Wisconsin and elsewhere.