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By Sarah Angell, student, Texas A&M School of Law Kyle Weldon and Jim Bradbury, James D. Bradbury, PLLC
In recent years, concerns related to per- and poly-fluoroalkyl substances (PFAS) contamination have taken center stage in discussions about environmental health and safety. PFAS are a group of manufactured chemicals that have been widely used in various industrial and consumer products since the 1950s. They are known for their resistance to heat, water and oil, making them valuable in applications such as firefighting foam, non-stick cookware and water-repellent fabrics. Often referred to as “forever chemicals” due to their persistent nature, PFAS have raised concerns across various industries. The Department of Defense (DOD) has and currently faces PFAS containment and clean up concerns based on decades of use of foam containing PFAS that was used to train with and extinguish fires.
One need not look far to find examples of PFAS contamination and its impact on agriculture. Dairies in New Mexico have faced significant challenges when PFAS contamination linked to nearby military installations polluted soil and groundwater sources. This contamination has inflicted serious detrimental effects on dairy operations and raised public health concerns, forcing some farms to exterminate their entire herds. The DOD and New Mexico are currently involved in litigation related to the application and requirements of state and federal environmental laws related to the DOD’s cleanup of PFAS.
In response to growing concerns about PFAS contamination and a congressional mandate, the DOD has notified thousands of agricultural operations that groundwater contaminated with PFAS could impact their water supply and operations. In 2021, Congress required the DOD to notify agricultural operations within a one-mile down gradient of military bases and National Guard facilities where PFAS had been detected above recommended levels in groundwater, which could be hydrologically linked to an agricultural or drinking water source. Since March 1, 2021, the DOD has sent notifications to more than 3,900 agricultural operations, with more than 360 new notifications sent in late 2022/early 2023. But DOD has yet to provide a concrete solution or funding for remediating the contamination.
PFAS contamination is a pressing issue that affects a wide range of industries, including agriculture. The experiences of dairies in New Mexico highlight the real and immediate risks that PFAS pose to agricultural operations. Stay tuned, as we will keep you advised of additional PFAS-related information as we receive it.