By Arthur Siegal
Michigan and Maine are taking the lead in evaluating and regulating a problem which has implications for the country’s food chain, as well as how the nation manages its wastewater and, more importantly, the sludge from that wastewater.
Michiganders of a certain age remember the PBB (polybrominated biphenyl) crisis of the mid-1970s. There, an accident at a company that manufactured both cattle feed and fire-retardant materials resulted in thousands of cows, hogs and chickens consuming the chemical PBB and having it transmitted through the food chain into humans via both milk and meat. Some of us remember stories of mothers whose breast milk was tested for the chemical with significant problematic results.
There is pretty much universal recognition in the environmental and regulated communities of the term PFAS (per and polyfluoroalkyl substances) and what that means. However, despite New York Times Magazine cover articles and major motion pictures, PFAS has not really penetrated the national consciousness. That may be changing soon. PFAS is shorthand for a family of man-made chemicals that were first invented in the 1940s and quickly became mainstays of American products. PFAS are used across various industries to make products resistant to heat, stains, water and grease and can be found in consumer products, certain fire-fighting foams and landfill leachate.
Industrial operations and wastewater treatment plants across the country generate sludge. It is the solid material that is left after the water is extracted, treated and typically returned to lakes or rivers after treatment. This sludge, typically comparable to manure, must be disposed of somewhere. They could be landfilled, but conventional wisdom was that they were loaded with nutrients that farmers would need and would get from fertilizer. So why not “kill two birds with one stone?” Rather than incurring costs to dispose of this sludge, why not give it to the farmers to apply to their fields thus, replenishing nutrients and making their fields more productive? And that is exactly what has been done throughout the nation. Many states, including Michigan, have required some evaluation of the sludge to ensure that they are benign for this land application. However, we are now finding new chemicals that were previously not on anyone’s radar screen that may pose significant human health concerns. Where wastewater treatment plants accept industrial type wastes, PFAS compounds in those wastes can find their way into the sewage sludge.
Until the last few years, neither the states nor the federal government had focused on the family of chemicals known as PFAS–a man-made family of over 5,000 chemicals found in a variety of common, everyday applications. These chemicals were used to stain-proof carpeting, waterproof leather, line certain industrial tanks, stabilize firefighting foam used at military installations to fight chemical fires, and in the manufacturing of Teflon, among other things.
These chemicals, now being referred to as “forever chemicals,” because they are so difficult to break down, were the wonder chemicals of the second half of the 20th century. In the last 10 to 15 years, however, much more has been learned about these chemicals, the human health concerns and risks that they pose. These chemicals have been linked to increased cholesterol, decreased vaccine response in children, increased risk of high blood pressure in pregnant women, decreases in infant birth weight and increased risk of kidney or testicular cancer.
The federal government has set an advisory standard for this family of chemicals at 70 parts per trillion (ppt)–equal to a single drop in an Olympic sized swimming pool–and is considering more stringent standards. States have started to regulate these compounds on their own with a number, including Michigan, regulating certain of this family of compounds in the single digits -- in some cases as low as six or seven ppt. The states have focused largely on protecting drinking water from these chemicals.
Michigan has formed a task force–the Michigan PFAS Action Response Team–and is asking wastewater treatment plants and entities supplying drinking water to evaluate their sources of water as well as companies that discharge to wastewater treatment plants. This is all an attempt to determine the presence, concentration and sources of these PFAS compounds in the “water chain.” Protecting drinking water from PFAS compounds has been the focus of most governmental bodies working on this issue.
Until late last year, there was talk but little action, regarding other pathways of concern for PFAS compounds. The good news seems to be that these compounds generally do not wind up in the air and, so, we are not breathing them. However, there have been discussions about the possibility of finding them in the food chain. After all, if they can be found in
water, it certainly would seem possible that they could find their way into the plants and animals we eat.
That nightmare scenario is becoming ever more real. There have been reports of farms in Maine where plants and animals have been contaminated with PFAS compounds presumably due to the spreading of sewage sludge at those farms. Farmers have had to euthanize that livestock and stop vegetable production. The Maine legislature is struggling with how to compensate those farmers and recently passed a bill, signed into law, that bans the application of sewage sludge as fertilizer if it has not first been tested and found to be PFAS-free and bans the land application of sludge and sale of compost containing such sludge. In 2009, the Environmental Protection Agency (EPA) found PFOS and PFOA, two common PFAS chemicals, in a few samples at an Alabama cattle farm.
Last year, the State of Michigan Department of Health issued an advisory relating to an organic farm raising cattle because of the presence of PFAS compounds in the beef tissues. Recently, there was a new report that a Michigan tannery had been sending its sludge to a farm that both grew crops and raised hogs for sale to market across the country. While the way that the hogs were raised makes it less likely that the hogs consumed PFAS compounds, there’s no way to know for sure. Last year, Michigan officials set an interim standard of not allowing PFAS for land applications containing more than 150 parts per billion, requiring biosolids such as sewage sludge to be tested before they can be applied on land.
The EPA estimates that approximately 4.75 million dry metric tons of biosolids were produced in the U.S. in 2019 and roughly half of that was land applied, of which roughly 1.4 million tons were applied to agricultural land. An environmental interest group estimated the number to be closer to 8 million tons.
What it will cost to test 1.4 million tons of sewage sludge is unclear. The cost impact on farmers who now have to buy fertilizer is not known. At this point, no one is asking farmers to test their fields and their products, but that could soon be a requirement. As to the millions of tons of sewage sludge generated each year which various communities’ wastewater treatment plants generate? Landfills are reluctant to take wastes that may be contaminated with PFAS because they generate leachate (liquid that leaches out of the landfill) which must be sent for treatment. Often these liquids are sent to local wastewater treatment plants which are imposing new restrictions on wastes they will accept due to State requirements to generate less-PFAS laden discharges. Therefore, who will accept this sewage sludge and at what cost? While new treatment methodologies are being researched, at the moment, it seems that farms and wastewater treatment plants are very much stuck between the metaphorical rock and hard place and that cost of wastewater treatment and food is likely to go up even further.
This area is developing very quickly and in June, the US EPA issued new warnings about the risk of PFAS chemicals to human health. The agency substantially lowered existing health advisories for two PFAS chemicals, PFOA and PFOS. It also posted new advisories for two additional chemicals, GenX and PFBS, which are viewed as replacements for PFOA and PFOS.
The new advisory levels for PFOA and PFOS are incredibly small: 0.004 ppt for PFOA and 0.02 ppt for PFOS. EPA’s previous advisory level was 70 ppt combined – more than 10,000 times higher than the new level for PFOA. Michigan has already adopted drinking water standards of 8 ppt for PFOA and 16 ppt for PFOS. EPA’s new health advisories are, obviously, much lower.
During my career, we’ve gone from acceptable levels in the parts per million, to the parts per billion, to parts per trillion and now to parts per quadrillion. To give you an idea of how small that is – the PFOA standard is 4 parts per quadrillion. There are about one quadrillion gallons of water in Lake Michigan. So, the lifetime equivalent would be 4 gallons of PFOA in the entire lake.
These new levels are so small that laboratory methods cannot detect the chemicals in drinking water at these levels – they are effectively zero.
The impact of EPA’s announcement is not clear. Health advisories are not enforceable and are meant to guide water utilities and other regulators and inform them of potential health impacts. EPA’s advisories assume on a lifetime of tap water consumption. They do not take food consumption into account at all. What Michigan and other states might do as EPA continues to decide how to regulate these remains to be seen.
But one thing is certain – the scrutiny of what we drink and eat has just gone up significantly.
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Arthur Siegal is an attorney and partner at Jaffe Raitt Heuer & Weiss, leading the firm’s Environmental Law practice group. He represents clients dealing with governmental regulations and compliance, assessing and managing environmental risks in transactions, and Brownfield redevelopment and incentives.
