In February 2024, a group of Texas farmers filed a lawsuit against Synagro Technologies, Inc. (“Synagro”) for manufacturing and distributing a biosolids-based fertilizer that allegedly contaminated the plaintiffs’ properties with per- and polyfluoroalkyl substances, otherwise known as “PFAS.” According to the plaintiffs, the contamination has caused damage to their farming operations, and resulted in health problems. The lawsuit, filed in a state court in Maryland, claims that Synagro either knew or should have known that its fertilizer was contaminated with PFAS, and that the company negligently sold a defective product. The plaintiffs are seeking financial compensation for their injuries, and an injunctive order to prevent the defendant from causing any further injury. Concerns over PFAS contamination of agricultural operations has grown in recent years, and this lawsuit may ultimately be the first of many similar legal actions.

Background

PFAS are a large group of manufactured chemicals that have been in use since the 1940s. PFAS are highly resistant to water, heat, and staining, which has led to them being used for a variety of commercial and industrial purposes. Over the past several decades, PFAS have been used in everything from household products like water-repellent carpeting and non-stick cookware to food packaging and fire extinguishing foam. Along with being resistant to heat and water, PFAS are known to be incredibly long-lasting. PFAS breakdown slowly due to the strong bonds between carbon and fluorine atoms which are characteristic of the PFAS family. PFAS can also accumulate in the environment and have been associated with various human health risks including increased cancer risk, developmental effects in children, and reduced immune response.

Over the last few years, PFAS contamination has become an issue for agricultural operations. In 2019, farms in Maine and New Mexico were forced to dispose of most of their livestock after testing revealed that soil, water, and livestock on the farms contained PFAS well beyond the limit considered safe by EPA. Because there is currently no known way to effectively clean up PFAS contamination, PFAS can present a risk to farming operations.

While PFAS contamination can occur in a variety of ways, on farmland one of the most common routes of PFAS contamination is through the application of biosolids. Biosolids are a product of wastewater treatment. During the wastewater treatment process liquids are separated from solids. The solids are then physically and chemically treated to remove toxic ingredients and produce a nutrient-rich product known as biosolids. Some biosolids are incinerated or otherwise disposed of, but according to EPA, slightly over half of the biosolids produced in the United States are used as fertilizer for land application. On agricultural land, applications of biosolids are made to help provide nutrients and improve overall soil health. While the treatment process works to remove pollutants and other harmful materials from biosolids, PFAS have been found to withstand the treatment process. PFAS are commonly found in wastewater due to their uses in household products and industrial processes. Because PFAS can withstand the wastewater treatment process, biosolids have been found to contain varying levels of PFAS contamination, as have areas treated with applications of biosolids.

Current Lawsuit

Synagro is a leading provider of biosolids in the United States. The company works with over 1,000 wastewater facilities and manages roughly 6.5 million tons of biosolids each year. In 2019, Synagro entered into a contract with the City of Fort Worth in Texas to manage the city’s biosolids program which produces around 26,500 tons of biosolids-based fertilizer each year. That fertilizer is sold to farmers and landowners across twelve Texas counties.

In 2022, an application of Synagro biosolids was made to an agricultural property in Johnson County, Texas. Agricultural producers on two neighboring properties complained about the strong smell of the application and opened an investigation with the Texas Commission on Environmental Quality (“TCEQ”). Samples taken by TCEQ of soil, surface water, and well water from the neighboring properties revealed levels of PFAS that exceed EPA’s health advisory levels which recommend 0.00001 to 0.02 parts per trillion (“ppt”). Testing of the neighboring properties revealed surface water contamination of more than 84,7000 ppt, and further testing revealed that a newborn calf on one of the neighboring cattle operations had PFAS levels of 3,200 ppt. According to the plaintiffs, the high levels of PFAS have caused them to lose business because the contaminated livestock cannot be safely consumed. The plaintiffs claim that the PFAS contamination has rendered their properties essentially worthless. Following TCEQ’s investigation the landowners filed suit against Synagro for allegedly contaminating the plaintiffs’ properties with PFAS.

In Farmer v. Synagro Tech., Inc., No. C-03-CV-24-000598 (Baltimore Cty. Cir. Ct. Feb. 27, 2024), the plaintiffs raise three specific claims: strict liability product defect, negligence, and private nuisance. Each of these is a tort claim based in state law.

In general, plaintiffs raise strict liability product defect claims to argue that a product is so unreasonably dangerous to health and safety that the manufacturer will be liable for all injuries caused by the product regardless of the amount of care exercised by the manufacturer in bringing the product to market. While the specifics of how and when a plaintiff may raise a strict liability product defect claim can vary from state to state, there are typically only three types of product defects commonly recognized as giving rise to such a claim. Those include design defects which occur when a product was designed in a flawed or unsafe manner, manufacturing defects that arise when there is an issue with the production of a product, or marketing defects that arise when a product comes with incorrect instructions on safe usage of the product or fails to warn consumers of the product’s danger. In Farmer v. Synagro Tech., Inc., the plaintiffs allege that the biosolid-based fertilizers manufactured and sold by the defendant were defective because there was a flaw in the product at the time of sale which made the product more dangerous than the manufacturer intended, the defendant failed to adequately warn of the risks associated with the product, and the product had a defective design that the defendant either knew or reasonably should have known about. In other words, the plaintiffs argue that the PFAS present in the biosolids manufactured and sold by the defendants were so hazardous that the defendant should be liable for any harm caused by the biosolids.

Next, the plaintiffs raised a claim of negligence against the defendant, claiming that the defendant breached the duty of care it owed to the plaintiffs by failing to act in a reasonable manner. In general, the tort of negligence is described as the failure to behave the with level of care that a reasonable person in the same set of circumstances would have exercised. There are four elements required to establish whether a defendant was legally negligent. First, there must exist a legal duty that the defendant owed to the plaintiff. Second, the defendant must have breached that duty. Third, the plaintiff must have suffered a harm or injury. Finally, that harm or injury must have been caused by the defendant’s breach of duty. In Farmer v. Synagro Tech., Inc., the plaintiffs claim as a manufacturer and distributor of biosolids, the defendant owed a duty of care to all persons whom their biosolids might foreseeably harm, including the plaintiffs. Specifically, the plaintiffs claim that the defendant had a duty not to market or sell any product which would pose an unreasonable risk of injury when used for its intended purpose. By selling biosolids fertilizers which were contaminated with PFAS that, when used as intended, caused damage to the plaintiffs’ property, the plaintiffs argue that the defendant breached its duty of care both by failing to test its final product for the presence of PFAS and by failing to provide any warnings about the risks associated with applying biosolids contaminated with PFAS. According to the plaintiffs, the defendant’s breach of care directly resulted in harm to the plaintiffs’ property.

Finally, the plaintiffs allege that the defendant caused a private nuisance that has deprived the plaintiffs of full use and enjoyment of their property. In general, nuisance is a tort that describes an injury to a person’s right to the undisturbed enjoyment of their property. A private nuisance specifically describes an interference with a plaintiff’s enjoyment of their own private property. To support a claim of private nuisance, a plaintiff must show that the defendant acted in a way that interfered with the plaintiff’s enjoyment or use of the land and that the defendant’s interference was both substantial and unreasonable. Here, the plaintiffs in Farmer v. Synagro Tech., Inc., argue that the defendant unreasonably and substantially interfered with the plaintiffs’ use and enjoyment of their property by comminating the property with PFAS. Specifically, the plaintiffs argue that by manufacturing and distributing biosolids fertilizers that contained PFAS, the defendant has deprived the plaintiffs of the full use of their property.

Going Forward

PFAS contamination of farmland has become a growing concern for the agricultural industry. In 2022, the state of Maine passed a law banning land applications of biosolids after testing revealed high levels of PFAS on every field that had been treated with a biosolids-based fertlizier. However, to date, relatively few lawsuits have been filed by farmers alleging injury due to PFAS contamination. Farmer v. Synagro Tech., Inc. is in its early stages, but the overall outcome of the lawsuit may set the stage for future litigation.

To read the complaint in Farmer v. Synagro Tech., Inc., click here.

To learn more about PFAS on agricultural land, click here to view the National Agricultural Law Center’s webinar titled “Not Your Grandfather’s Corn Maze – Regulatory and Legal Responses to Challenges Faced by Agriculture Due to PFAS Contamination.”