LINCOLN, Neb. (DTN) -- A recently finalized rule to classify "forever chemicals" as toxic substances has raised the ire of agriculture groups that say the rule creates "forever liability" for farmers and ranchers who aren't responsible for those chemicals in the environment.
Earlier this month the U.S. Chamber of Commerce sued the U.S. Environmental Protection Agency, alleging the agency did not consider the potential costs of the rule, asking the U.S. Court of Appeals for the District of Columbia Circuit to vacate EPA's action.
"Forever chemicals" include per- and polyfluoroalkyl substances -- known as PFAS, PFOS or PFOA chemicals. The acronyms encompass more than 5,000 various manufacturing chemicals that are created to be more resistant to heat, water or oil. The traits that make those chemicals great for manufacturing allow them to remain in the environment and accumulate in soil, water, animals and people.
The American Farm Bureau Federation, National Cattlemen's Beef Association and National Pork Producers Council, joined in an amicus brief filed by various water interests in support of the lawsuit.
The farm groups said they represent producers who are "passive receivers" of the chemicals and "under EPA's new rule could be subject to crippling liability."
The EPA's rule designates "forever chemicals" as "hazardous" under the 1980 Comprehensive Environmental Response Compensation and Liability Act, or CERCLA, otherwise known as the Superfund law.
Superfund gives broad authority to EPA and other federal agencies and private parties to clean up releases of the chemicals or to order others to do so.
"At a minimum, EPA should have accurately accounted for the costs to these passive receivers in adopting the PFAS rule," the ag groups said in the brief. "Ultimately, these passive receivers should be exempt from paying for PFAS cleanups. Farmers and communities nationwide should not be forced to pay for the misfortune of having had their lands and waters contaminated by PFAS chemicals."
The ag groups said EPA classified passive receivers as an "indirect" cost but the rule could subject farmers and ranchers to pay for cleanup costs even though the Superfund law holds that polluters bear the costs.
Passive receivers are then left with the cleanup costs if the sources of pollution are not identified.
What's more, the brief said polluting companies often drag other parties into cleanup responsibility to reduce costs.
"As of December 2022, at least 650 municipalities and counties that operate clean water utilities have been pulled into CERCLA litigation," the ag groups' brief said. "A regime that lets polluters escape liability by transferring not only their hazardous substances but also their cleanup costs to passive receivers is not what Congress had in mind when enacting CERLCA."
RISKS TO FARMS, RANCHES
The groups said EPA's economic analysis of the rule "gravely underestimates" the exposure that passive receivers, including farmers and ranchers, face.
A 2022 study identified 57,412 locations across the country that are presumptive PFAS contamination sites.
"A significant portion of those locations are 'sites related to PFAS-containing waste,' which the study defines to include agricultural fields to which PFAS-containing biosolids have been land applied, and 4,255 of them are wastewater treatment plants," the brief said.
"Requiring ratepayers nationwide to shoulder the burden of CERCLA response costs at these sites would have dire economic consequences on utilities and the communities they serve. Such outcomes would also contradict the stated purpose of EPA's designation decision, which is to minimize the use of the taxpayer-supported Superfund for cleanup costs."
The brief points to the real-world example of Michigan farmer Jason Grostic, featured in a 2022 story by DTN Ag Policy Editor Chris Clayton, https://www.dtnpf.com/….
Grostic unwittingly fertilized his land using PFAS-contaminated biosolids. The contamination seeped into surface water, crops and soil on his farm.
"Mr. Grostic does not know who produced the contaminants and it is unlikely that those entities will face any consequences," the ag groups said in the brief.
"EPA failed to consider that farmers like Mr. Grostic could face significant expenses for PFOA and PFOS on their property. The threat of CERCLA liability will also follow Mr. Grostic forever, even if he decides to sell his farm. And the final rule threatens Mr. Grostic's ability to sell his farm at fair market value. The state of Michigan publicly identified Mr. Grostic's farm as contaminated. Subsequent purchasers may be leery of paying top dollar for a property known to be contaminated with PFOS."
The ag groups said the chemicals come onto agricultural land in several different ways.
Firefighting foam contains the chemicals and is used in and around airports and U.S. Department of Defense training facilities, "so farmland in close proximity to those areas often has elevated levels of PFOA and PFOS," the groups said.
"For decades, EPA encouraged and supported farmers' use of biosolids for protection of public health and the environment," the groups said.
"But these biosolids contain PFOA and PFOS that farmers and ranchers did not create. Finally, pesticides and pesticide-holding containers are a potential source of PFOA and PFOS on farms. As a result, AFBF members face an expanded threat of litigation and cleanup liability because of the designation."
Read more on DTN:
"EPA Funds Study of 'Forever Chemicals,'" https://www.dtnpf.com/…
"'Forever Chemicals' Ruin Dairies," https://www.dtnpf.com/…
Todd Neeley can be reached at todd.neeley@dtn.com
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