PFAS have presented liability issues for manufacturers for decades and now, the issue has become of increasing concern to agriculture. PFAS is used in non-stick cookware, food packaging, water-repellent apparel, stain-resistant carpet, and hundreds of consumer and industrial goods and applications. PFAS (pronounced PEA-fass) are a broad class of synthetic chemical compounds, currently estimated to number around 10,000. So called “forever chemicals” because of their bio-accumulative properties and persistence in the environment over time, PFAS have widely been used in the U.S. and around the world since at least the 1940s. They are found in water, soil, air, and plants and detected in the blood of humans, animals, and fish. Some are known to be “toxic,” and have been linked to cancer, developmental disruptions, and other adverse health conditions. Since 1999, tens of thousands of lawsuits have been filed against chemical companies over PFAS exposure. Legislation and regulatory activity have increased, with states imposing bans and EPA implementing policies. The definition of pesticides as PFAS could potentially jeopardize their availability and create additional liability. For the aerial application industry, the concern around PFAS rules relates to the presence of PFAS in fluorinated high-density polyethylene (HDPE) containers and the use of PFAS for inert ingredients in manufacturing certain pesticide formulations. There are two fronts to the PFAS issue for aerial and other pesticide applicators – the first is eliminating the use of PFAS in the production of pesticide containers and formulations. The second is ensuing aerial applicators are not exposed to litigation as a consequence of applying pesticides that contained trace PFAS amounts, either from container leaching or in the pesticide formulations.
Key Activities
- In 2021 the EPA released its Strategic Roadmap through 2024, outlining key actions the agency would be taking to address issues around accountability and the human health and environmental impacts of PFAS. The EPA’s strategic roadmap on PFAS was released, detailing the number of regulatory steps the agency has taken so far.
- In March of 2021 EPA released data showing PFAS contamination from the fluorinated HDPE containers used to store and transport a mosquito control pesticide product.
- In September of 2021 EPA released a method to pesticide manufacturers for detecting PFAS in pesticide products formulated in oil, petroleum distillates, or mineral oils. EPA used the method to determine no PFAS were present in three formulated mosquito control products.
- In March of 2022 EPA provided information to manufacturers of HDP) containers and similar plastics about the potential for PFAS to form and migrate from these items. EPA issued an open letter to raise awareness to industry of this issue in order to help prevent unintended PFAS formation and contamination and to outline certain requirements under the Toxic Substances Control Act (TSCA) as it relates to PFAS and fluorinated polyolefins.
- In September of 2022 EPA released results from its evaluation on the leaching potential of PFAS from the walls of certain fluorinated HDPE containers into the liquids stored in those containers. Results from this study indicated that PFAS present in the inside walls of the fluorinated HDPE containers can be readily leached into formulated liquid products.
- In May 2023 EPA released laboratory results related to the analysis of ten pesticide products reported to contain PFAS residues. EPA did not find any PFAS in the tested pesticide products, differing from the results of a published study in the Journal of Hazardous Materials. EPA is also released a newly developed analytical methodology used in the testing process alongside the summary of its findings.
- In 2023 the Senate released for public comment a draft bill (S.1427 – Agriculture PFAS Liability Protection Act of 2023) that seeks to protect passive receivers, like farms, from PFAS lawsuits. Of particular significance, though, is the provision to establish a federal definition of PFAS, providing clarity, consistency, and more predictability for industry and stakeholders. Although pesticides are not explicitly mentioned in the bill, crop protection advocates point out that FIFRA regulations already subject pesticides to rigorous scientific testing and therefore, should be excluded from added product regulatory consideration. Cynthia Lummis (R-WY) also introduced a PFAS exemption bill to protect industries like agriculture from Superfund PFAS liability claims
- In February of 2024 EPA released a robust and validated method manufacturers can use to test for 32 PFAS directly from the walls of containers made from high-density polyethylene (HDPE). This method allows industries that use HDPE containers and container manufacturers to test the containers before use, preventing PFAS contamination of products stored in these containers.
- In July 2024 EPA granted a petition from numerous environmental groups to address PFAS used in a variety of plastic containers, including those used to store pesticides.
- Many states are not waiting for the federal government to develop a clear and concise definition of PFAS and are forging ahead with their own definitions and regulatory schemes. Outright bans on a wide range of products containing PFAS have been imposed in Maine, Minnesota, and Washington, and at least ten other states have passed limited scope bans, phase outs, or caps on the amounts of allowable PFAS. With state legislative sessions ramping up or preparing to begin, we are already seeing concerning prohibition bills in New Hampshire, New Jersey, and Vermont.
- In October of 2024 USDA-ARS stated that that their “data shows that PFAS is an environmental hazard that does not come from agriculture”.
- EPA’s 2025 PFAS efforts focused on drinking water standards.
- Current efforts focus on PFAS reporting rules, proposing exemptions for small quantities and specific activities to ease the Toxic Subtances Control Act (TSCA) reporting burden.
Recent Updates
In June, EPA approved three herbicides classified as PFAS: diflufenican, epyrifenacil, and trifludimoxazin. The approvals increased disagrrements as to whether EPA is aqequately investigating persisten fluorinated pesticides and their breakdown products. Trifludimoxazin’s registration was later challenged in court by environmental groups. In July EPA proposed water monitoring from 2028-2030 to look for trifluoroacetic acid (TFA) a degradation product for some pesticides. European authorities increased their hazard assessment for TFA by adding to the list of hazards and lowering the acceptable daily intake.