Public Employees for Environmental Responsibility (PEER) has filed notice of its intent to sue the U.S. Environmental Protection Agency (EPA) on behalf of “injured individuals,” accusing EPA of “neglecting its legal obligation to regulate PFAS in biosolids” if EPA does not take action in 60 days. A February 22nd press release from PEER reviews PEER’s accusations against EPA.

PEER claims EPA has shirked its duty under the Clean Water Act Section 405 requirements for biennial review of pollutants in biosolids. According to PEER, EPA has identified 250 pollutants in biosolids and is only regulating 9, referring to the standards in Part 503 limiting concentrations of chiefly heavy metals in materials being land applied. PEER claims to know of 18 PFAS compounds in biosolids that are not listed in the biennial report. In addition, PEER states that 12 of the PFAS that are listed should be regulated.

In related news, PEER helped facilitate a criminal investigation as well as legal action in Johnson County, Texas. The County has initiated a criminal investigation, and a group of farmers is suing Synagro Technologies, Inc. under a product liability action alleging that the company “falsely markets its biosolids fertilizers as safe and organic” and failed to warn about its risks. The product liability claim was filed in Maryland, where Synagro has its headquarters. The court filing says product liability litigation – “manufacturing defect.”

The criminal investigation dates back to December 2022 when Syngro supplied a Johnson County farmer with its Granulite fertilizer product, a Class A biosolids product made using solids from the City of Fort Worth’s water resource recovery facility (WRRF). According to local reporting by the Cleburne Times-Review, that was when Synagro delivered a pile of smoking biosolids that allegedly made the neighbors and their livestock sick. Neighbors reported breathing problems and other physical illnesses. The claimants state that previous biosolids spreading killed “all the fish” in the nearby ponds and caused the death of ten cows and a horse. Testing of a sample of Granulite found “high levels” of PFAS. Testing of pond water, soils, cow and fish tissue found “staggering amounts” of “PFAS toxins” in fish and a stillborn calf, according to the news report.

The Times-Review reported that levels of PFAS in soils tested were between 97 parts per trillion (ppt) and 6,291 ppt, which equal 0.097 and 6.291 parts per billion (the common measurement for PFAS in biosolids and soils). In one pond, the level was reported as being 1,333,610 ppt (the common measurement for PFAS in water). The complaint, filed on behalf of James Farmer and four other neighbors of the property in Grandview, Texas, was subsequently amended to lower that surface water number to 1,333.61 ppt. The County points to the land application of biosolids as the source of those elevated levels. It is not clear what number of PFAS compounds were tested and summed in these reported data.  For comparison, the reported PFAS levels reported in these soils are generally similar to levels found in other soils to which biosolids with typical background levels of PFAS have been applied for many years.  The level of reported PFAS in the pond water is relatively high compared to other, more limited, data from surface waters near biosolids application sites, but not in the high range of PFAS levels (up to millions of ppts) where there has been significant industrial discharge of PFAS.

The complaint in the related product liability case filed in Maryland includes three counts. Count 1 charges that the material is abnormally dangerous and that there was a failure to warn and a defective design. The second count relates to negligence, and the third count relates private nuisance. The plaintiffs are requesting a trial by jury. Negative press on this case is starting to spread, even over the border into Canada: B.C. biosolids maker sued by Texan farmers over animal deaths - Comox Valley Record.

Neither the EPA nor Synagro were able to answer questions for this story due to the ongoing litigation.

Elsewhere, the Coosa River Basin Initiative, with the assistance of the Southern Environmental Law Center, filed suit on March 7th against the City of Calhoun, Georgia, and Moss Land Company, LLC, in U.S. District Court in Rome, GA. In this case, the City operates a WRRF that has a lot of carpet manufacturers and related businesses in its sewershed. The plaintiffs accuse the City of contaminating sources of drinking water. The City had previously land applied its biosolids in the vicinity of these sources. According to the complaint, Calhoun “improperly allowed the unrestricted discharge of PFAS” into the WRRF, which led to the contamination. The case seeks declaratory and injunctive relief, for the City to “halt and remedy” the PFAS contamination.  

Meanwhile, the number of lawsuits is growing against the producers of PFAS chemicals, such as 3M and Chemours. A few of these legal actions involve biosolids, for example:

·       In central Maine, residents and landowners have filed a lawsuit against makers of PFAS claiming harm from measured elevated levels of PFAS in their soils, crops, and animals due to past uses of biosolids from mostly one WRRF that accepted, for decades, a large percentage of solids from a coated paper manufacturer, making the biosolids industrially-contaminated.

·       In Wisconsin, in August 2023, the Milwaukee Metropolitan Sewerage District filed a lawsuit against 25 PFAS manufacturers and distributers. The complaint mentions that MMSD manages biosolids and seeks to “recover past, current, and future costs, losses, damages, and other relief relating to the actual or potential presence of toxic PFAS traceable to AFFF products in District waters and water systems—including wastewater treatment systems—and any lands, facilities, or properties under District ownership or management.”