PFAS Observer
A lawsuit filed earlier this year highlights potential PFAS liability exposure for fertilizer manufacturers, especially those that produce biosolid-based products. Five Texas farmers have sued Synagro Technologies, alleging that high levels of PFAS in the company’s biosolid-based fertilizers contaminated their water, soil and livestock. The lawsuit alleges that Synagro knew about the presence of PFAS in its fertilizers and failed to warn product users about the adverse health effects associated with exposure to PFAS.
Background
Synagro works with wastewater facilities across North America to manage biosolids, which are a nutrient-rich byproduct of the wastewater treatment process. Synagro processes raw biosolids to produce fertilizer that is used for land application. However, because the wastewater treatment process does not remove all chemicals that enter the waste stream, those chemicals—including PFAS—can remain in the resulting biosolids that are incorporated into Synagro’s fertilizers. In 2019, Synagro contracted with the City of Fort Worth, Texas, to manage the city’s biosolids program, which the company uses to produce a dry pellet fertilizer called Synagro Granulite.
According to the lawsuit, Synagro Granulite was applied to a farm property in Johnson County, Texas, in November 2022. The plaintiffs, who own adjacent agricultural properties, complained about the smell of the fertilizer and reported the issue to state and county environmental authorities, who subsequently opened an investigation. The county tested samples of the soil, surface water and well water, as well as tissue of livestock and fish, from the neighboring properties. Each of the tested samples revealed high levels of at least one PFAS. Soon after, the plaintiffs filed their lawsuit against Synagro in a state court in Maryland, where the company is located.
The plaintiffs assert three state-based tort law claims: (1) strict liability for a product defect, (2) negligence and (3) private nuisance. The strict liability claim alleges that Synagro’s biosolid-based fertilizer was defective at the time of sale due to the high levels of PFAS present in the product, that the presence of PFAS rendered the fertilizer unreasonably dangerous, and that the intended use of the PFAS-laden fertilizer caused plaintiffs’ injuries. The negligence claim alleges that, among other things, Synagro failed to conduct adequate testing of its fertilizers for the presence of PFAS or to evaluate the potential consequences of using a fertilizer containing PFAS. The claim also alleges that Synagro failed to provide any warnings about the risks associated with applying a fertilizer that contains PFAS. The private nuisance claim alleges that by manufacturing and distributing fertilizer containing PFAS, Synagro caused a private nuisance that deprived the plaintiffs of the full use and enjoyment of their property. In addition to compensatory damages (for investigation and remediation costs, lost income from damage to livestock, etc.), the plaintiffs are seeking punitive damages based on Synagro’s “conscious or deliberate disregard of the threat to the safety of Plaintiffs.” The plaintiffs are also seeking injunctive relief to abate the alleged nuisance and prevent Synagro from causing further injury.
Regulatory Efforts
The Synagro case also highlights how PFAS-related liabilities may attach to certain industries and activities that are not the subject of federal PFAS regulation. For example, the Environmental Protection Agency (EPA), which is tasked with regulating the use and disposal of biosolids under section 405(d) of the Clean Water Act, does not currently limit the amount of PFAS that biosolids can contain, though this may change based on the results of an ongoing EPA risk assessment for PFAS contamination of biosolids that is expected to inform its regulatory decision-making and a Public Employees for Environmental Responsibility lawsuit currently pending in the U.S. District Court for the District of Columbia.
Moreover, EPA’s enforcement discretion memorandum, published in conjunction with the designation of two PFAS chemicals—PFOA and PFOS—stands to provide at least some modicum of protection from Superfund liability for (1) community water systems and POTWs that dispose or manage PFAS-containing sewage sludge and (2) farms that apply biosolids to lands.
Moreover, only several states have taken steps to address PFAS in biosolids thus far. Most notably, in 2022, Maine enacted a ban on land application of biosolids, except for septage (sewage from septic systems). Michigan has established PFAS limits for biosolids used in land applications. In addition, New Hampshire, Massachusetts and Michigan each have some level of required monitoring for PFAS in biosolids.
More to Come?
The Synagro case is reflective of a growing concern about PFAS contamination of farmland, which has prompted significant efforts at the federal, state and local levels to test, research and regulate PFAS in biosolids. As these efforts move forward and the potential health and environmental impacts associated with biosolids become more visible, impacted landowners and environmental organizations may increasingly turn to product liability lawsuits against manufacturers of biosolid-based fertilizers. Given that EPA estimates more than 2.4 million tons of biosolids are applied to land across the U.S. annually, the alleged damages in these actions could be significant.
If landowners are successful in such claims, there may be broader implications for manufacturers of fertilizer products that utilize raw materials other than biosolids that potentially contain PFAS. Fertilizer manufacturers can take proactive steps to offset potential PFAS liability by (1) closely assessing the sourcing of their raw materials, (2) reviewing and revising commercial contracts, and (3) exploring insurance coverage options.