The ubiquitous nature of PFAS regulation and litigation

Litigation surrounding per- and polyfluoroalkyl substances (“PFAS”), commonly referred to as “forever chemicals,” seems to be as ubiquitous as PFAS allegedly is. Days ago, on Sept. 29, the United States District Court for the District of Columbia dismissed a lawsuit brought in August 2024 by, among others, Texas farmers, which alleged the United States Environmental Protection Agency’s (“EPA”) failure to regulate PFAS in treated sewage sludge used as fertilizer (also known as biosolids) violates federal law, namely, the Clean Water Act.

The plaintiffs in Farmers v. EPA sought an order from the court, inter alia, directing the EPA to identify and regulate certain PFAS as it relates to biosolids. The farmers claimed their property, livestock, and health were harmed when PFAS-laden biosolids from neighboring fields migrated onto their land. While the EPA’s biennial reports have listed certain PFAS as being present in biosolids, the EPA has not promulgated any corresponding regulations.

The court, however, held that while the EPA does have a non-discretionary duty to review its regulations on a biennial basis, the EPA is not required to also “identify and regulate” sewage-sludge pollutants within the same time frame. As a result, because Congress did not set a “date-certain deadline” for regulation itself, the farmers could not utilize the Clean Water Act’s failure-to-perform provisions to compel EPA action to do so.

This case provides some clarity, and perhaps some confusion, for regulated entities involved in biosolids management, agriculture, wastewater treatment, and the like. The case represents a continued push for PFAS regulation from potentially affected persons, but also emphasizes the imperative that entities in these industries monitor the constantly changing state-level initiatives, as this is where we will likely continue to see biosolids regulation – including the banning of the land application of biosolids (e.g., Maine) and/or concentration limits based upon required sampling and testing of the same (e.g., Michigan). Additionally, litigation trends continue to see cases filed against parties alleged to be responsible – even tangentially – for such PFAS-laden biosolids. For now, the lack of regulations of sludge pursuant to the federal Clean Water Act means it is more likely that PFAS-laden biosolids and related issues will be addressed through personal injury and/or environmental lawsuits – a far more complex and expensive path entities can and should plan for.

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