PFAS in biosolids: Expanding regulation and growing litigation in 2026

For sewage sludge to qualify as a biosolid eligible for land application, it must meet EPA standards for maximum levels of certain metals and pathogens and be processed to reduce odor and attractiveness to disease vectors (e.g., insects). Although the EPA considers potential additions to the sewage sludge regulations every two years, the agency has not added any new substances since the regulations were enacted in 1993.

EPA regulations categorize biosolids into three classes based on pathogen levels and the degree of processing. Class B biosolids meet the minimum requirements for biosolids, with use generally limited to cropland. Class A biosolids meet more rigorous standards and are commonly used for parks and golf courses. Class A/EQ (Exceptional Quality) biosolids satisfy the most stringent standards and are approved for home and garden use.⁴

Significant public attention to PFAS in biosolids began in 2019, when biosolids were alleged to be the source of PFAS contamination on numerous Maine farms. Some level of PFAS can be found in virtually all forms of sewage sludge. Domestic sewage may contain PFAS from commercial products, such as non-stick fabric coatings, cosmetics, or cleaning agents. Industrial wastewater and landfill leachate, however, often contain significantly higher PFAS levels.

In the final week of the Biden Administration, the EPA issued a draft risk assessment for long-chain PFAS (i.e., PFOA and PFOS) in biosolids, a step toward future regulation.⁵ However, the agency has since reversed course. Indeed, the EPA actively contested the claims in Farmer v. EPA, a lawsuit seeking to compel the agency to add maximum PFAS levels in biosolids to the Clean Water Act regulations. The EPA succeeded in obtaining a dismissal in federal district court, although the appeal is now pending in the U.S. Court of Appeals.⁶

To date, most PFAS lawsuits involving biosolids have primarily targeted businesses alleged to have PFAS in their wastewater, although entities that treated the wastewater or handled the resulting biosolids are often named as additional defendants. For instance, in litigation concerning allegations of PFAS-contaminated wastewater from a textile mill, plaintiffs sued (among others) the town that operated the publicly owned treatment works that handled the mill’s wastewater and land-spread the resulting biosolids.¹⁴

More recent PFAS litigation, however, has included cases focusing on the conduct of wastewater management and biosolids companies. Most notably, a lawsuit in federal court alleges that the land application of a biosolid-derived fertilizer produced and marketed by Synagro Technologies, Inc. to farmland in Texas caused PFAS contamination of soil and water in the area.¹⁵ If those claims succeed, the case could spawn similar litigation elsewhere in the country and/or against other companies involved in the processing or sale of biosolids.

Even when there are no allegations of PFAS contamination, litigation may target companies involved in biosolids. For example, in Beyond Pesticides v. Scotts Miracle-Gro Co., a nonprofit organization brought a so-called “greenwashing” claim against a fertilizer manufacturer, alleging that advertising its biosolids-derived product as “eco friendly” was deceptive marketing when it allegedly contained PFAS.¹⁶

Preparation and response

Legal developments concerning PFAS in biosolids have significant implications for both the wastewater management and biosolids industries as well as for businesses whose wastewater may contain PFAS, especially if those businesses also handle their own wastewater treatment or sewage sludge disposal. Managing this rapidly evolving legal landscape requires advanced preparation for compliance and potential litigation.

Impacted companies should work with appropriate outside counsel to monitor state and local regulation of PFAS in biosolids. When appropriate, businesses handling PFAS should evaluate potential changes to corporate practices related to wastewater and biosolids. Staying up-to-date on legal developments allows businesses to plan to efficiently implement any necessary changes and avoid operational disruptions.

Companies involved with biosolids may also consider engaging in individual or collective efforts to promote state and local policies that address public health concerns while still accommodating waste management needs and avoiding unnecessary compliance burdens.

If a company faces possible government action or private litigation, retaining counsel with extensive experience in PFAS litigation is critical. Contamination cases require expertise in both the relevant science and applicable law, and PFAS cases present unique technical issues due to the compounds’ ubiquity and the complexity of reliable testing. Proper preparation for these challenges may decrease the likelihood of governmental or private litigation and can strengthen defenses if litigation does occur.