EPA PFAS Preferred Rule

Nov. 7, 2022

Michelle Schutz
Office of Superfund Remediation and Technology Innovation (5202T)
U. S. Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, DC 20460

Dear Ms. Schutz:

Pennsylvania Farm Bureau (PFB) is pleased to offer its comments on the proposed rule, “Comprehensive Environmental Response, Compensation, and Liability Act Hazardous Substances: Designation of Perfluorooctanoic Acid and Perfluorooctanesulfonic Acid (Docket ID#EPA-HQ-OLEM-2019-0341-0001),” designating perfluorooctnoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), the two most common per- and polyfluoralkyl substances (PFAS), as hazardous materials under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

PFB represents over 30,000 members engaged in all manner of agricultural activities, including the production and processing of crops; the production and processing of animals; the production and processing of forestry products; landscaping and horticultural services; agriculture-related support services; and food manufacturing. According to the 2021 report, The Economic Impact of Agriculture in Pennsylvania: 2021 Update, agriculture continues to be a leading contributor to the Commonwealth’s economy, contributing $1 of every $16 in gross state product, with every dollar of direct output generating $0.63 in additional economic activity. In addition, agriculture supports one out of every ten jobs in Pennsylvania and seven jobs per $1 million of output. In 2019 alone, the total direct and indirect economic impact of agriculture within Pennsylvania was an estimated $132.5 billion.

PFB supports the protection and restoration of land and groundwater in Pennsylvania and across the United States; specifically, farmers support the protection and restoration of land and groundwater and the efforts that EPA is making in the “PFAS Roadmap” to address the impacts of the historic use of PFAS chemicals. The livelihood of Pennsylvania’s farmers depends on healthy soil and groundwater, and families throughout the world rely on the food, fuel and fiber produced by American agriculture. This fact makes EPA’s decision to promulgate this draft rule puzzling.

Farmers have not knowingly used PFOA and PFOS in their operations. Farmers are in no position technically, economically, or practically to address the impact of the presence of PFAS chemicals, and especially PFOA and PFOS, which continue to be found in virtually any place where soil, surface and groundwater have been assessed. We call on EPA to withdraw this proposed rule, as urged by American Farm Bureau Federation (AFBF) and other organizations in a letter dated Oct. 19, 2022, for the reasons explained in detail therein and summarized in these comments.

First, EPA’s proposed rulemaking and administrative record fails to fully consider the appropriateness of using CERCLA remedial authority to address the apparent ubiquitous presence of PFAS contamination. It also fails to account for the effect of the application of CERCLA’s remedial authority imposing strict liability on the largest landowning segment of the economy––agriculture. At the same time, PFOA and PFOS poses more technical challenges than two other widely found contaminants that have been designated as CERCLA “hazardous materials” (PCBs and dioxin). PFAS chemicals pose a greater challenge because these chemicals are more mobile; so, in addition to contaminating soil, PFAS chemicals contaminate surface and groundwater to much greater degree than PCBs or dioxin.

Second, it is important to recognize PFOA and PFOS have come onto agricultural land without the knowledge or fault of farmers. These chemicals can be found in high quantities in firefighting foam that is used in and around airports and Department of Defense (DoD) training facilities. These chemicals have been known to travel naturally through the environment—most notably through ground and surface waters—and can eventually be deposited onto farm fields, so proximity to one of these areas can lead to elevated levels of PFAS.

PFAS chemicals are also delivered to farms via biosolids, which are commonly applied to farm fields as an alternative to fertilizer. Farmers accept biosolids from a wastewater treatment facility to land apply onto their property. Biosolids are regulated at the federal, state, and local level to ensure protection of public health and the environment. For decades, EPA has encouraged and supported farmers’ beneficial use of biosolids. Unfortunately, more recently, we have learned that biosolids are contributing to the spread of PFAS on agricultural lands. This is a major concern for our members. Pesticide holding containers have also been identified as a potential source of PFAS on farms. Recent EPA data indicates that plastic containers made of fluorinated high-density polyethylene (HDPE) are likely to leach PFAS into pesticides and other liquid products that are stored in them. EPA’s review also suggests that the amount of PFAS that migrates into liquid products increases with storage time.

Regardless of how PFAS ultimately arrives onto a farm field, it is undeniable that the fault does not fall on Pennsylvania’s—or other American—farmers. EPA must acknowledge that farmers do not use PFAS chemicals in any part of their operations and are innocent receivers of such chemicals.

Finally, EPA’s proposal to exercise its never-before-used CERCLA remedial authority to designate PFOA and PFOS as CERCLA hazardous substances is misguided. CERCLA is the federal law that provides a federal “Superfund” to clean up uncontrolled or abandoned hazardous waste sites as well as accidents, spills and other emergency releases of pollutants and contaminants into the environment.

Through CERCLA, EPA has the power to seek out those parties responsible for any release and ensure their cooperation in the cleanup. CERCLA imposes liability on parties responsible for, in whole or in part, the presence of hazardous substances at a site. Since PFAS chemicals are known as “forever chemicals,” they do not easily break down over time and can be transported through rain runoff, which means they have been found in surface water and groundwater aquifers. PFOA and PFOS have been voluntarily phased out by U.S. manufacturers for the most part but are still in limited use in products ranging from stain-resistant clothing and furniture to cookware and food packaging.

It must be stated again that farmers do not produce PFOA or PFOS; however, these chemicals can be found in the water that has been provided to their livestock and crops. In certain areas of the country, PFAS levels have risen in milk, beef, and row crops. Another source of PFAS contamination on farms comes from the use of soil amendments (biosolids, paper byproducts), a practice that has long been supported and encouraged by EPA. Farmers would never intentionally spread PFAS, as food safety is essential to farmers and consumers alike. Given this fact, as well as those above, it is clear that farmers should not be held responsible for the presence of PFAS chemicals, which they did not produce or intentionally use.

Additionally, a Superfund designation could devastate land values and leave farmers with land that they are unable to use. Under CERCLA, clean-up funds are disseminated based on a priority list, and it is likely that farmland would be the last in line to receive such assistance.

We understand that the proposed rule would require anyone who releases certain levels of PFOA and PFOS into soil or water to report it to federal or tribal authorities. It seems clear that the goal of this rule is to force responsible parties to take remedial actions and pay for the cleanup of a contaminated site. While EPA has stated that the intent of this rule is to hold the producers and users of these chemicals accountable, there is no language in this rulemaking that protects innocent landowners who passively receive these chemicals, regardless of whether or not it was EPA’s intention to decline to provide such protection.

In closing, we again appreciate the opportunity to expand upon the unintended consequences of this proposed rulemaking. Farmers all over the country could face devastating impacts simply for owning land and creating an agricultural product. PFAS contamination is a significant issue, and a collaborative effort will be needed to find solutions.

However, Pennsylvania families, like their counterparts around the world, need local farmers to maintain global food security. It is frightening to imagine a world where farmers are prevented from producing the food, fuel, and fiber that our country—and the world—rely on. For all of the reasons outlined in these comments, EPA must withdraw this proposed rule. Thank you for the opportunity to provide comments.

Sincerely,

Grant R. Gulibon
Environmental Specialist