Dive Brief:
- Farmers and local governments have filed amicus briefs with the U.S. District Court of Appeals for the District of Columbia arguing the U.S. EPA must protect them from the effects of per- and polyfluoroalkyl substance contamination in sewage sludge.
- The briefs were filed one week after Public Employees for Environmental Responsibility, an advocacy group, formally filed an appeal in their case seeking to compel EPA to regulate PFAS in biosolids. A judge previously dismissed PEER's case in September.
- In roughly a dozen states, policymakers have taken up legislation proposing limits on PFAS contamination or land application. But at least seven others have rules preventing policymakers from adopting standards stronger than the federal government, meaning any action on PFAS contamination in biosolids would likely need to come from the EPA.
Dive Insight:
The EPA is required under Clean Water Act rules to create a review at least every two years of common contaminants in sewage sludge, also known as biosolids, and regulate those contaminants as needed. The agency has set ceiling concentrations for nine pollutants in sewage sludge applied to land: arsenic, cadmium, copper, lead, mercury, molybdenum, nickel, selenium and zinc.
The agency monitors hundreds of other contaminants in sewage sludge, including more than a dozen PFAS compounds. But it has argued in court it is not obligated to regulate those chemicals.
The National Association of Clean Water Agencies has backed EPA’s approach and is intervening on EPA’s behalf in PEER’s appeal. NACWA says that treatment technology for PFAS in wastewater is expensive, and in many cases that bill would be passed on to taxpayers through water rates. The trade group has also argued that biosolids policy should be "based on well-established Clean Water Act regulatory processes that provide for thorough analysis and public participation ... not piecemeal lawsuits initiated by private parties."
But environmental groups have argued EPA is shirking its constitutionally mandated duty to address contaminants that pose a health risk. PFOS and PFOA in particular have long been recognized by the EPA as harmful to human health. The agency's draft risk assessment of PFAS in biosolids released in January 2025 also acknowledged PFAS levels as low as one part per billion could be sufficient to cause harm to farmers.
A group of Texas farmers represented by PEER first brought a lawsuit attempting to compel regulation of PFAS in biosolids in 2024. They alleged high levels of contamination on their farmland that prevented them from selling their products after biosolids had been land applied on neighboring property.
In a new amicus brief filed with their appeal, farmers in several other states alleged similar issues. In one case, an organic farmer said the state of Michigan told him he could no longer sell his beef because high levels of PFAS were detected on his farm. The farmer had been applying sludge since 2015, and said he thought it was a safe and cost-effective fertilizer because EPA approves of its use.
As farmers have begun to suffer from contamination, they've turned to local and state governments for relief, but in some cases those officials' hands are tied, according to an amicus brief filed by three municipalities. In New York, the town of Thurston attempted to enact a ban on the land application of biosolids in 2023 after Casella Waste Systems planned to take over a landspreading operation there. But that ban is now under review by state regulators due to questions about right-to-farm protections for companies wishing to spread biosolids.
In another case, the town of Plainfield, Pennsylvania, is allegedly facing a lawsuit over its own PFAS sludge ordinance. That ordinance may be overturned due to a state law allowing anyone to sue a town for "'unauthorized' local ordinances that restrict 'normal' agricultural operations," per the brief.
"Many local governments, like [Plainfield], are faced with a stark choice between accepting the dumping of PFAS-contaminated sewage sludge within their municipal boundaries (and the attendant public health risks), or attempting to overcome a gauntlet of technical, budgetary, and legal challenges to enacting their own complex environmental regulations," lawyers wrote in the brief.
They further note that some states prevent regulators from adopting standards that go beyond federal minimum regulations under the Clean Water Act. Since the EPA has so far declined to regulate PFAS in biosolids, communities in those states are unable to seek protections of their own, per the brief.
Oral arguments have not been set for the case. The EPA and NACWA have also not yet responded to the initial filings from PEER and its allies.
