In October 2021, the Environmental Protection Agency (“EPA”) released the PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024 (“Strategic Roadmap”), which outlines the agency’s approach to addressing issues created by per- and poly-fluoroalkyl substances (“PFAS”). The Strategic Roadmap lays out a timeline by which EPA plans to take specific actions to protect communities and the environment from PFAS contamination. The goal of the Strategic Roadmap is to create “enduring and protective solutions” to PFAS contamination through a “lifecycle approach” which will address both existing contamination and on-going PFAS use.
PFAS found in the soil and water poses a threat to agricultural lands that are located near areas of high contamination. By implementing the Strategic Roadmap, EPA hopes to reduce that threat.
What are PFAS?
PFAS are a family of thousands of synthetic of chemicals first introduced to the United States in the 1940s. All PFAS chemicals contain a signature elemental bond of fluorine and carbon. This bond is incredibly strong, and has proven very difficult to disintegrate. It is this bond that makes PFAS take an extremely long time to break down in the environment, earning them the nickname “forever chemicals.”
For decades, PFAS chemicals have been utilized in a variety of different industries because of their ability to repel oil and water. PFAS have been widely used in things like Teflon nonstick products, firefighting foams, coats for water repellant clothing, food packaging, and cleaning products. Of the thousands of PFAS chemicals, Perfluorooctanoic Acid (“PFOA”) and Perfluorooctane Sulfonate (“PFOS”) are two of the most widely used, and widely studied. According to EPA, both have been linked to numerous adverse health effects. As of 2015, neither PFOA or PFOS are manufactured or used in the United States due to health and environmental concerns. However, both chemicals continue to be found in the environment due to how long it takes for them to break down.
PFAS are introduced into the environment when they are being manufactured and processed, as well as when they are being used. Products known to contain PFAS also end up disposed of in landfills and by incineration which also introduces PFAS into the environment. Testing has shown that PFAS can contaminate local water supplies, and ultimately enter the bloodstream of humans and animals where they can build up over time. In particular, testing has shown PFAS contamination in and around hundreds of military bases that used PFAS-based firefighting foams during the twentieth century. Groundwater near some of these bases has been shown to contain levels of PFAS many times above the levels that EPA has identified as safe for drinking. Currently, EPA has established health advisory levels of PFAS in drinking water at 70 parts per trillion (“ppt”).
How do PFAS Impact Agriculture?
Although EPA has only recently recognized PFAS as an environmental contaminant, the impacts of PFAS to agriculture have already been felt. Dairies in Maine and New Mexico have already experienced had to stop selling their milk due to high levels of PFAS contamination.
In 2018, the United States Air Force tested two wells located on property belonging to the Highland Dairy (“Highland”) in New Mexico. Those tests showed that the wells contained 1,649 ppt and 671 ppt of PFAS respectively, both significantly higher than the 70 ppt limit identified as safe by EPA. Later that year, further testing by the Food and Drug Administration revealed that milk samples from Highland’s dairy cows contained 1,620 ppt of PFAS. This led to the termination of Highland’s Milk Purchase Agreement, and the suspension of Highland’s Grade-A Permit for milk production from the New Mexico Department of Agriculture. Highland was unable to sell its milk, and was forced to dump thousands of gallons.
Ultimately, Highland filed a lawsuit against ten manufacturers of PFAS arguing that they should be held responsible for the damage to Highland’s agricultural operation. While the case was initially filed as an individual lawsuit in a federal court in New Mexico, the case has since been consolidated into a multi-district litigation (“MDL”) in South Carolina. The MDL consists of approximately 1,200 cases with plaintiffs from various backgrounds all bringing claims against PFAS manufacturers that fall into four general categories: (1) claims for property damage brought by water providers; (2) claims for property damage brought by property owners; (3) claims for bodily injury; and (4) claims for medical injury. In Re Aqueous Fil-Forming Foams Products Liability Litigation, MDL No. 2:18-mn-2873 (D. S.C. 2018) is currently on-going, with the judge advancing ten bellwether cases in order to determine how juries will respond to the legal claims brought against PFAS manufacturers.
If juries find that agricultural operations harmed by PFAS manufacturers should receive money damages, that may help those operations that are able to file lawsuits receive restitution. However, it is unclear how many agricultural operations are currently experiencing PFAS contamination. Section 335 of the 2021 National Defense Authorization Act requires the Department of Defense (“DoD”) to send a letter to any “agricultural operation located within one mile down gradient of a military installation or National Guard facility” where PFAS has been detected in the groundwater, linked to a local agricultural water source, or is merely suspected to be found as the result of PFAS use by the DoD. In a report from July 2021, DoD confirmed that it had already issued 2,143 notifications. With potentially thousands of agricultural operations facing damage PFAS contamination, it is unclear whether relying on courts to mitigate the damage will be a viable option for fully resolving the issue.
What is the Strategic Roadmap?
Over the past few years, EPA has been taking steps to address PFAS contamination. In 2019, EPA released a document titled EPA’s Per- and Polyfluoroalkyl Substances Action Plan (“2019 Action Plan”) outlining its approach to PFAS management. The 2019 Action Plan highlighted steps EPA had already taken, such as adopting a rule that requires manufacturers to notify EPA before they manufacture any of 13 specified PFAS chemicals, and announced new steps EPA planned on taking as its understanding of PFAS grew. In addition to continuing its research on PFAS contamination, EPA aimed to establish how much PFOA and PFOS could be safely allowed in drinking water; designate PFOA and PFOS as hazardous substances under federal law; develop PFAS groundwater cleanup recommendations for certain action sites; evaluate new uses of PFAS; and continue to enforce PFAS cleanups using the health advisory limit of 70 ppt for PFOA and PFOS.
A year after releasing the 2019 Action Plan, EPA had accomplished some of its goals, and was continuing to work towards others. When the Biden Administration took office in January 2021, it announced its commitment to accelerate efforts to address PFAS contamination. Part of that effort involves EPA’s Strategic Roadmap, which builds on the 2019 Action Plan, and outlines specific actions EPA intends to take over the next three years. The Strategic Roadmap sets out to provide a “whole-of-agency” approach that requires various Offices within EPA to work together on PFAS issues. According to EPA, it must “leverage the full range of statutory authorities to confront the human health and ecological risks of PFAS.”
The Strategic Roadmap contains three central directives that motivate its goals and actions: continued research to increase understanding of PFAS and its effects on human health and the environment; pursuit of a comprehensive approach to prevent PFAS from entering the environment at levels that are harmful to humans; and to “broaden and accelerate” the cleanup of PFAS contamination. EPA refers to these directives respectively as “research, restrict, and remediate.”
Working off the three directives, the Strategic Roadmap lays out broad goals for EPA to tackle during the next three years. Those goals include restricting releases of PFAS into the environment; ensuring that parties responsible for PFAS contamination assume responsibility for remediation efforts; focusing on science-based decision-making; and ensuring that disadvantaged communities have equitable access to solutions. In order to accomplish these wider goals, the Strategic Roadmap sets out specific actions for different Offices within EPA to take, and a timeline by which those actions will be accomplished. While the actions outlined in the Strategic Roadmap are too numerous to cover completely here, there are some key items worth taking a look at.
The EPA Office of Chemical Safety and Pollution Prevention (“OCSPP”) is expected to publish a national PFAS testing strategy sometime before the end of 2021. Because there are thousands of chemicals in the PFAS family, this strategy will help EPA collect more data on which PFAS chemicals are particularly harmful and require a targeted approach. Also before the end of 2021, the EPA Office of Water (“OW”) is expected to issue a final rule to undertake nationwide monitoring for PFAS in drinking water. The rule will help EPA gather more data on an expanded set of drinking water systems so that the agency can better understand the frequency of PFAS in drinking water. Additionally, OW is directed to begin a rulemaking effort sometime in 2022 that would allow EPA to regulate PFOA and PFOS as drinking water contaminants. A final rule is expected in 2023. Other OW actions include taking steps to restrict discharges of PFAS into surface waters by establishing regulatory limits on the levels of PFAS in discharged wastewater.
The EPA Office of Land and Emergency Management (“OLEM”) is directed to initiate a rulemaking in 2022 that would designate certain PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Under CERCLA, EPA has broad authority to respond directly to releases or potential releases of hazardous substances that could endanger public health or the environment. Designating certain PFAS as hazardous substances under CERCLA will enhance the ability of EPA, states, and local jurisdictions to gain information regarding the locations of PFAS releases. EPA will also be able to seek recovery for costs incurred during PFAS cleanup efforts. Along with directing actions for specific Offices within EPA, the Strategic Roadmap also establishes “cross-program” actions that the agency will engage in as a whole. Those actions include engaging directly with communities impacted by PFAS contamination, using a variety of enforcement tools to better identify and address PFAS releases, and educating the public about the risks of PFAS.
EPA’s Strategic Roadmap is expected to take the agency through 2024. The actions outlined in the document indicate that EPA is intending to address PFAS at both ends of the issue, by establishing restrictions for releases of PFAS into the environment, and taking steps to cleanup existing PFAS contamination. The Strategic Roadmap also contains numerous actions that will allow EPA to continue to gather data and research on the impacts of PFAS which should help the agency to further refine its approach to tackling the issue. However, it remains unclear what kind of impact the Strategic Roadmap will have, particularly for farmers who are currently dealing with PFAS contamination.
To read the Strategic Roadmap, click here.
To read the 2019 Action Plan, click here.
To read section 335 of the 2021 National Defense Authorization Act, click here.
For more National Agricultural Law Center resources on environmental law, click here.