EPA Ducks Responsibility to Regulate Toxic Sewage Sludge Fertilizer
Washington, DC — The U.S. Environmental Protection Agency contends that it cannot be sued for failing to protect public health and the environment from toxic PFAS in sewage sludge applied to land as fertilizer, according to EPA’s response to a lawsuit filed by Public Employees for Environmental Responsibility (PEER). Across the United States, vast amounts of sewage sludge laden with toxic PFAS (per and polyfluoroalkyl substances) are used as fertilizer on agricultural lands, which has led to the contamination of soils, water, and animals and the closure of ranches, farms, and dairies in several states.
The practice of using sewage sludge to make fertilizer is one that EPA itself sponsored decades ago. To protect the public, Congress, almost 40 years ago, through the Clean Water Act, required EPA to identify all toxic pollutants that may be present in sewage sludge in concentrations that could harm people’s health or the environment and, by mid-1987, to regulate them by specifying management practices and imposing numerical limits.
Congress also required EPA, every two years, to identify additional toxic pollutants and regulate them, so that regulations reflect the latest science and capture emerging threats. Since then, EPA has identified more than 250 pollutants in sewage sludge, including at least 10 PFAS, yet has regulated only nine metals.
Despite ample evidence and mounting horror stories, EPA has yet to restrict PFAS from the sewage-based fertilizer applied to millions of acres of land every year. Thus, in June of this year, PEER on behalf of two Texas farming and ranching families, Johnson County, Texas, the Maine Organic Farmers and Gardeners Association, and the Potomac Riverkeeper Network, sued EPA to end its long inaction.
This week, EPA moved to dismiss the suit arguing that so long as it produces a report every two years, no one can sue it under the Clean Water Act because it has complete discretion over which pollutants to add to the list and, once on this list, which ones to regulate.
“EPA seems to have lost any sense of its legal and moral obligation to protect public health,” declared Kyla Bennett, an attorney and scientist formerly with EPA. “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.”
PFAS levels in sewage-based fertilizer are exceedingly high and have been shown to leach into well water consumed by people and livestock. Earlier this year, the agency determined there is no safe level for two common types of PFAS in drinking water and issued a maximum contamination limit that municipal drinking water suppliers will have to comply with in the future.
Sarah Alexander, Executive Director of the Maine Organic Farmers and Gardeners Association (MOFGA), commented, “We support the farmers who’ve bravely stepped up to share their stories of hardship. The EPA and federal leaders are turning a blind eye to the urgent needs of communities impacted by PFAS contamination. The PFAS contamination crisis is wreaking havoc on the livelihoods, health, and safety of farmers and their communities.”
“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,” says PEER Staff Counsel Laura Dumais, noting that EPA still does not have any timeline for addressing the problem of PFAS in sewage sludge fertilizer. “EPA’s failure to act swiftly on this issue flies in the face of the plain language of the Clean Water Act.”
Look at spreading bio-sludge contamination damages
