Johnson County, Texas, recently requested 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, are man-made chemicals applied in various consumer and industrial uses. PFAS do not easily degrade in the environment and are often referred to as “forever chemicals.” While scientists are early in understanding PFAS’ full range of health and environmental effects, studies indicate links to adverse health outcomes, including cancer and liver and thyroid functioning. PFAS have been released across the county in the air, into water, and onto land. The federal disaster request supplements Johnson County residents’ 2024 federal environmental lawsuitagainst the Environmental Protection Agency (EPA) and state tort claim against a fertilizer manufacturer.
Biosolid applications – the disposal of the solid-waste remnants of treated wastewater – have been regulated since 1987 under the Clean Water Act §405(d) (CWA), whereby states may permit application and dispersal in a manner that is “a local determination.” The majority of states have biosolid application permitting programs, though Maine banned biosolid applications statewide due to concerns over PFAS contamination. In the South, Texas has introduced PFAS standards for biosolids, whereas Oklahoma and Mississippi have introduced legislation to ban biosolid applications outright.
The Texas farmers’ federal lawsuit alleges EPA’s failure to identify and regulate various PFAS compounds under authority and mandate of the CWA and the Administrative Procedures Act. They complain the EPA failed to add PFAS as toxic substances in the biennial review mandated in the 1987 amendments. The EPA responds that listing of toxic pollutants is discretionary. The CWA requires the EPA to make toxic listings “on the basis of available information,” and plaintiffs cite a sizable body of research in their complaint. In the months before the federal lawsuit, the EPA listed PFAS as toxic substances under other federal statutes, including the Safe Drinking Water Act, the Comprehensive Environmental Response Cleanup and Liability Act, and the Toxic Substances Control Act.
The state tort case – Farmer v. Synagro – seeks compensation from the manufacturer of a biosolid-based fertilizer that plaintiffs claim damaged their properties and farm operations. Such common law actions normally couple federal citizen suits. 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). Death of farm animals and diminution in property value are among plaintiffs’ allegations of damages. 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. Legal theories concerning recovery for damage from biosolid applications are also being tested in litigation in Maine, Massachusetts, Wisconsin, and elsewhere.
Brannon, Andrew. “Addressing PFAS Biosolid Contamination on Farmland.” Southern Ag Today 5(9.5). February 28, 2025. Permalink
