Toxic Sewage Sludge Fertiliser Fight at the US Appeals Court

Overview

A federal appeal in the United States is pushing to force the EPA to regulate per- and polyfluoroalkyl substances (PFAS) in sewage sludge used as agricultural fertiliser. The case, brought by Public Employees for Environmental Responsibility (PEER), argues that the US EPA has failed to update its sewage sludge regulations since 1993, despite mounting evidence that biosolids applied to farmland contain harmful concentrations of PFAS and other persistent contaminants. The outcome of this litigation could set a precedent that reverberates through wastewater management and biosolids reuse programs globally, including in Australia.

Key details

The legal challenge centres on a specific provision of the US Clean Water Act that requires the EPA to conduct biennial reviews of its sewage sludge regulations. PEER contends that the agency has not meaningfully reviewed or updated these standards for over three decades, during which time the understanding of PFAS contamination in biosolids has advanced dramatically.

Sewage sludge, often marketed as “biosolids” for agricultural land application, can contain elevated concentrations of PFAS compounds that accumulate through the wastewater treatment process. Industrial and commercial discharges into sewer networks concentrate these substances in the solid residuals. When applied to agricultural land, PFAS can leach into underlying groundwater, accumulate in soils, and be taken up by crops and livestock. The plaintiffs argue that without updated federal standards addressing PFAS, the current regulatory framework permits ongoing environmental harm.

The appeal follows a lower court ruling and represents a significant escalation in the legal strategy to force regulatory action on PFAS in biosolids. If successful, the EPA would be compelled to establish enforceable limits for PFAS in sewage sludge destined for land application, fundamentally changing the economics of biosolids management across the country.

Australian context

Australia’s regulatory landscape for biosolids is evolving in parallel. The PFAS National Environmental Management Plan (PFAS NEMP 3.0) introduces new risk-based criteria and testing frameworks specifically targeting the reuse of biosolids applied to land. Under NEMP 3.0, the focus has moved well beyond basic total concentration testing toward comprehensive leachability assessments and detailed source control evaluations.

State-based regulatory frameworks are also tightening. The NSW EPA is preparing revised Biosolids Resource Recovery Orders aligned with NEMP 3.0 requirements. Similar updates are expected from regulators in Queensland, Victoria, and South Australia. These orders will impose stricter acceptance criteria for biosolids applied to agricultural and rehabilitated land, including requirements for PFAS leachability testing and ongoing monitoring of receiving soils and groundwater.

Water utilities across Australia currently manage significant volumes of biosolids through beneficial reuse programs. The financial model for these programs depends on the material being classified as a resource rather than a waste. If PFAS testing reveals concentrations above the new guideline thresholds, reclassification as a regulated waste would substantially increase disposal costs and create potential legacy liabilities for landowners who have previously accepted the material.

Practical implications

Environmental consultants advising water utilities and agricultural clients should be reviewing current biosolids acceptance and disposal pathways against the latest NEMP 3.0 criteria. Key actions include:

• Conducting PFAS characterisation of biosolids streams, including leachability testing using the toxicity characteristic leaching procedure (TCLP) and synthetic precipitation leaching procedure (SPLP) methods specified under NEMP 3.0.
• Auditing existing land application sites to assess whether historical biosolids application has resulted in soil or groundwater contamination above current guideline values.
• Reviewing source control programs at wastewater treatment plants to identify and reduce PFAS inputs from trade waste discharges.
• Advising landowners currently accepting biosolids to verify that the material meets the latest regulatory acceptance criteria before continuing application.
• Evaluating alternative disposal and treatment options, including thermal destruction technologies, for biosolids that exceed PFAS thresholds for beneficial reuse.

The US litigation underscores the growing global legal risk associated with applying PFAS-contaminated biosolids to land. Australian practitioners should anticipate that regulatory thresholds will continue to tighten and that liability exposure for all parties in the biosolids supply chain will increase accordingly.

References and related sources

• PEER: Toxic Sewage Sludge Fertilizer Fight at the Appeals Court (primary source)
• Australian Government PFAS National Environmental Management Plan (NEMP 3.0)
• iEnvi LinkedIn discussion on this topic

How iEnvi can help

iEnvi provides specialist advice on PFAS contamination in biosolids, soils, and groundwater. Our team assists water utilities, landowners, and development proponents with PFAS site investigations, risk assessments, and remediation planning. We can help you navigate the evolving regulatory requirements under NEMP 3.0 and state-based frameworks.

Our relevant services include contaminated land assessment for sites with biosolids application history, remediation options analysis for PFAS-impacted soils and groundwater, and expert witness services for disputes involving biosolids contamination liability.

This is an iEnvi Machete news summary. Prepared by iEnvi to summarise the source article for contaminated land, groundwater, remediation, approvals and site risk professionals.

Need advice on this topic? Speak to an iEnvi expert at info@ienvi.com.au or 1300 043 684, or contact us online.