In today’s webinar, we’ll discuss navigating PFAS regulatory challenges surrounding biosolids. With that, I’d like to introduce our presenter for today.

We are pleased to have with us Mary Gady, president of Gady Environmental Group, an international consulting firm advising on energy, climate, and environmental strategy.

An experienced environmental attorney, Mary Gady, has held senior leadership roles at both the federal and state levels, including Region 5 Administrator of the U.S. EPA and Director of the Illinois EPA. Earlier in her career, she served in multiple executive positions at U.S. EPA, including Deputy Assistant Administrator for the Office of Solid Waste and Emergency Response, overseeing Superfund emergency response and error programs.

She also co-founded the Environmental Council of the States and served on the Department of Defense’s Science Advisory Board for its Strategic Environmental Research and Development Program. All right. That concludes our introduction, so now I will hand things over to Mary Gady to get us started.

Thanks, Dane. It’s certainly a pleasure to be joining you and everyone participating today, especially for a topic that’s constantly evolving and continually identifying more potential environmental and human health issues with all their accompanying baggage, legal, economic, and technical.

And by the way, I am personally painfully aware of how quickly this landscape is changing. I’ve had to update things we’re going to talk about today minimally five times in the last week. I particularly like this quote that Secretary of Defense Donald Rumsfeld made in 2002 when talking about weapons of mass destruction in the Iraq conflict.

There are known knowns, there are known unknowns, but there are also unknown unknowns.

And I have to admit to you that I thought it was fairly nonsensical at the time, but subsequently I’ve heard people apply it to PFAS, and I have to agree that it sums up accurately this issue.

This is especially true when talking about our topic today, biosolids contaminated with PFAS.

And I hope you will forgive me, but those of us working in this space like to call it the next environmental **** show.

Really.

Let me know if you agree by the end of this session.

First of all, biosolids are sewage sludge after wastewater treatment has separated out the solids from the liquids.

And while a lot of journalists have accused industry of coining the term biosolids as an effort to greenwash it, but in fact, EPA itself created the term almost 40 years ago.

Per polyfluoroalkyl substances, PFAS, P-F-A-S are synthetic organic compounds, meaning that you can make an infinite, yes, infinite number of them, merely by adding a fluorinated carbon atom to the chain.

Therefore, there are already over 16 ,000 PFAS analytes by some counts, and I personally suspect it’s more.

EPA identifies approximately 1,200 currently in use in the United States and an active inventory of about 430 in their Comtoxpe database.

But I should flag for you that this whole area is further complicated by EPA itself, which is using four different definitions for what constitutes a forever chemical.

For purposes of this discussion, I’m going to skip getting further into the chemistry.

Well, as you already probably know, PFAS are valuable because of their resistance to heat, water, oil, and grease.

And this makes them an invaluable ingredient in thousands upon thousands of industrial, commercial, medical, and household products.

Some of them, though, may come as a surprise to you, like Lipitor and Prozac or diapers and beer.

The last is particularly painful for someone like me from Wisconsin.

But suffice it to say, these chemicals are not only forever, they are indeed ubiquitous.

The two most talked about are the oldest and the ones we know the most about, and consequently, the most regulated.

They’re PFOS, not to be confused with PFAS, and it’s perfluoro octane sulfate and PFOA, perfluoro octanoic acid.

These are longer eight-chain PFAS, and they were discovered almost 70 years ago as part of the Manhattan Project, which does beg the question of why they are just now being considered emerging contaminants.

While these legacy PFAS have been phased out in the U.S., newer short-chain PFAS such as next-gen PFAS are still in commerce.

The hope had been that the newer PFAS would be less harmful to the environment and human health, but frankly, that’s not looking to be the case.

In fact, they seem even harder to remediate and have a stronger affinity with water.

So PFAS use has been and is extensive.

EPA estimates that 120 ,000 U.S. facilities have handled or released PFAS.

Now, an unprecedented first-time reporting requirement under Tosca Section 78A may actually give us an even higher, more accurate number within the next year or two, but that’s only if and when the rules deadline for reporting finally goes into effect.

It’s been extended twice, once by the Biden administration and once by the Trump administration, and just in the last two weeks, the Trump administration extended it yet again until the earlier of January 31st, 2027, or 60 days after it promulgates a final rule, which I’m hoping, and probably many of you are as well, will have significant and practical and common sense changes to the scope of the very draconian reporting requirements that were in the proposed rule.

Okay, with that backdrop, finally, what is the problem with PFAS and biosolids?

Not surprisingly, PFAS have gotten into wastewater and effluent being treated at municipal wastewater treatment facilities, and then ultimately, of course, into biosolids.

Sources include residential and commercial dischargers, as well as upstream industrial sources.

And I have to note, there are a lot of these upstream industrial sources.

My former agency, the Illinois EPA, has identified 63 possible industrial source categories.

And if you yourself want to delve a little bit more deeply into what some of these sources are, the Environmental Council of States, or ECOS, has an excellent interactive website that reports industry PFAS use by state.

I will note that it slightly dated, but it’s still extremely valuable information.

OK, so why is this a problem?

It’s the sheer volume of biosolids that have been land applied over the decades and how little we know about them and where they are and what’s in them.

USDA says there are over 390 million acres of cropland in the United States.

And EPA estimates that one percent have biosolids applied to fertilize land every year, so roughly 3.9 million acres.

But others in industry and the nonprofit environmental working group think the number is much more like 70 million acres or roughly equivalent to the size of the state of Nevada.

The 2023 National Biosolids Data Project, which was led by NEBRO, which is the Northeast Biosolids and Residuals Association, an association you should get familiar with, says that 18% of USAG lands use biosolids.

And back in my neck of the woods, Chicago, the Metropolitan Water Reclamation District or MWRD disposes of 150 ,000 tons annually of biosolids in farm fields and counties west of Chicago and in city parks and ball fields.

States themselves reported to EPA in 2023 identifying 4.5 billion pounds of biosolids that were disposed of that year alone. So we are talking about a lot of stuff.

The critical question isn’t, though, how much there is of it, but how much of it is contaminated with PFAS of some variety.

And the troubling answer is, we don’t know. We really have no idea.

Landowners, farmers, waste generators, and land suppliers have not been required to test for PFAS, or at least not until recently, and understandably have had no incentive to do so voluntarily, given their potential liability, the economic consequences, including threats to their livelihoods and reputational harm.

And this is why I, as a longtime regulator and lawyer, think that PFAS contaminated biosolids typify to me how difficult it is to respond to, much less effectively regulate an emerging contaminant in which more is probably unknown than known.

Thank you, Donald, for yourself.

So let’s talk about regulation and how it might affect you, your business, your clients now, but even more so in the future.

And let’s start with the feds.

The first important thing to know is that there are currently no federal regulations, I repeat, no federal regulations that specifically address biosolids contaminated with PFAS.

It wasn’t until two years ago in April of 2024 that PFAS contaminated biosolids were pulled indirectly, not directly, but indirectly into the regulatory mix.

EPA took final action to designate PFOA and PFAS as circular hazardous substances.

This designation has significant consequences for multiple parties associated with the use and disposal of biosolids now, in the future, and probably more importantly, historically.

So we’ll talk a little bit more about that shortly.

Similarly, two years ago, the Biden administration promulgated the first drinking water maximum contaminant levels, or MCLs, under the Safe Drinking Water Act for six PFAS, pulling in, of course, PFOA and PFAS, but four others as well under a very novel hazard index approach.

Again, this regulation has an indirect but significant impact on biosolids contaminated with PFAS.

Not surprisingly, both regulations are in the middle of heated litigation.

It’s important to know that the Trump administration is actually supporting the designation made by the Biden administration of PFOA and PFAS as hazardous substances, but pulling back from the four PFAS that were part of the MCLs based on a hazard index.

Now, it does remain to be seen how the courts will rule ultimately in these cases.

I personally think that the problems with the economic analysis and due process in the CERCLA case could cause EPA to lose the case and have to correct those flaws in a future promulgation.

But that’s just my guess as a former regulator.

And as to the MCLs, the U.S. Court of Appeals for the D.C.

Circuit in the Water case has already said in January that it will not let EPA vacate and remove the MCLs for the four PFAS that were part of the Hazard Index.

This will send EPA back to a new rulemaking if it wants to eliminate them.

And it’s my understanding that that work is already underway.

Now it’s going to be important for all of us to keep an eye on those cases, but in the meantime, interestingly, even as a media and public firestorm has started to build up around PFAS contaminated biosolids, and you’ve probably seen headlines in news reports, Washington Post, The Guardian, New York Times, and local papers, I certainly have.

EPA does continue to encourage biosolids use as a fertilizer, soil conditioner, and reclamation material, as it has since the 1990s.

And while this podcast is going on, if you want to Google EPA site while I’m talking, you will see that this is the case.

There’s nothing new about the use and disposal of biosolids, however.

I mean, farmers began using them as fertilizer in the 1920s.

They were used to using fertilizer, or excuse me, manure from their own farms.

And so they were able to convert to using biosolids from wastewater treatment plants with ease.

Their use and disposal were common enough from wastewater treatment plants that in 1987, Congress mandated that EPA had to regulate them in section 405D of the Clean Water Act.

The provisions in that 405 are extremely straightforward.

EPA has only two responsibilities.

The first, identify pollutants and sewage sludge that could reasonably be anticipated, again, reasonably be anticipated to adversely affect, to adversely affect public health and the environment, and then establish numeric pollutant limits and management practices for their use and disposal.

The second criterion is conduct reviews every two years to identify pollutants and biosolids, and where there is sufficient evidence, again this is key, where there’s sufficient evidence of risk, take action to regulate them.

To date EPA has conducted nine of these biennial reviews, and the last was issued in 2023. It’s my guess the next one will probably come out in 2027.

So, we’ll talk a little bit more about this shortly.

It is the subject of ongoing litigation in the D.C. Circuit Court.

Well, EPA took years to complete the risk assessments for the biosolids regulation called for in the Clean Water Act.

Finally, in February of 1993, it promulgated 40 CFR Part 503.

And the important thing to note is that in the 30-some years since then, there have been almost no changes to the rule and nothing substantive at all.

This is key, and I want to highlight it.

Once again, in promulgating it, EPA touted and strongly promoted biosolids benefits as a soil fertilizer and as a soil amendment.

And it assured the public and the regulated community that it’s safe to use if the regulatory requirements are met.

And as I said, EPA’s website today still promotes the land application of biosolids as a beneficial use.

And to be frank, without land application of biosolids, we have nowhere to put this stuff.

So let me talk very briefly to you about the part 503 regulation.

Since this isn’t a session on biosolids per se, but on PFAS contamination of biosolids, I’m going to go over it really quickly.

But if you have questions, please raise them later, preferably over beer, not contaminated with PFAS.

I’m available.

The picture that is on this slide is of EPA’s 1993 Plain English Guide to the EPA Part 503 Biosolids Rule.

Although it’s over 30 years old and only guidance, I can’t recommend it enough to you as a useful tool and understanding the rule and its implementation.

And to my surprise, as a longtime government regulator, it actually is in plain English.

It lays out three options for the final use or disposal of sewage sludge.

One, land application when used as fertilizer or soil conditioner, including reclamation of sites from construction, mining, or forest activities.

Two, surface disposal in monofills, lagoons, waste piles, and surface impoundments.

And I should note that this is permanent storage, not temporary storage, which is roughly two years under the rule, and three incineration.

EPA reviewed over 200 pollutants in creating the rule.

They looked at information from Europe as well as all over the United States.

Ultimately narrowed the list to 50 and ultimately included only nine heavy metals in its list of regulated pollutants, only nine.

The list has not changed since the 1990s.

For each of these three options, it includes general requirements for things like monitoring the volume applied, pollutant limits for the heavy metals depending on which of the three disposal options is selected, operational standards related to pathogen levels and vector attraction reduction for land application, and emission monitoring for incineration, as well as management practices like the agronomic rates for nitrates, and when and where you can apply biosolids, which by the way is no closer than 10 meters to the waters of the US, assuming you can figure out at any given time what the waters of the US are, or when you can harvest crops after and biosolids have been applied, as well as reporting and record keeping requirements.

This table from the rules shows you the various limits on pollutants and biosolids being land applied.

I don’t want to belabor it, but I wanted you to get a sense of how the rule works.

It’s based on either pollutant loading or concentrations.

And it sets levels that can never be exceeded for any one pollutant on a specific parcel and cumulative pollutant loading, looking at the whole history of land application.

There’s a handy summary of this once again in the plain English guide to the biosolids rule.

Okay, so what’s legally noteworthy in this rule?

First of all, it’s self-implementing.

It applies to any person or entity that’s engaged in the use or disposal of biosolids.

Permits are really only required for wastewater treatment facilities and owners or operators of surface disposal sites, once again, permanent surface disposal sites and incinerators.

It has extremely broad applicability.

It covers persons or entities that one, prepare biosolids, including generation them, or creating a derived bag products such as the kind of things you might buy at a garden center for those that haul transport and potentially some landowners when biosolids or land applied.

And finally, owners and operators of surface disposal sites.

Like all of the provisions of the Clean Water Act, there are civil and criminal penalties for violation of these provisions under section 309 and section 505, the citizen provision.

The penalties aren’t small.

There’s $68 ,445 per day per violation.

And of course, this goes up annually in January to account for inflation.

I took the liberty of looking at the enforcement and compliant history online database, ECHO, that EP has out there, talking about their enforcement cases and compliance.

Over the years, the penalties for violation of rule 503 have been extremely low.

The three cases that I looked at in 2026 have penalties as low as $3 ,000.

But more recently, within the last two years, a sewage sludge application company settled the case for over a half a million dollars for application of nitrogen over agronomic rates in Arizona and California.

So I don’t think compliance with the rule can be taken lightly.

Well, what about PFAS?

Again, it’s important to note, only nine pollutants are listed in the rule.

PFAS is not one of them.

And I think as I’ll talk more about shortly, EPA doesn’t want to see PFAS in this rule for various regulatory policy and economic reasons.

But this brings me to something that might pull PFAS into the rule, and that is EPA’s draft biosolids risk assessment.

Originally issued by the Biden administration as the door was closing in January, 2225, the Trump administration extended the draft sewage sludge risk assessment for PFOA and PFAS twice, with the public comment period finally ending in August 14th of 2025.

With over 25 ,000 comments and some very serious concerns about both its methodology not being conservative enough and criticisms as using too extreme of assumptions and very limited and unrealistic scenarios, I think it’s very unlikely that this administration will take action on it, or at least not anytime soon.

The second thing we’ll talk about shortly is some ongoing litigation that may have a greater success of actually getting PFAS into the rule, but let’s continue on and talk a a bit more about the draft risk assessment.

The draft risk assessment only looked at PFOA and PFAS.

And remember, there are 16 ,000 analytes, but it only looked at those two.

And it’s because they’re the ones that we have the most information on.

And it only looked at them in very limited scenarios.

It focused on a very specific and narrow population that EPA states it considers most likely to be exposed to PFAS and biosolids, either by living near a site impacted by the land application of biosolids or by the consumption of products from land where biocides were applied.

This includes food crops, animal products, chickens, milk, so forth, and drinking water.

The findings show that there may be human health risks associated with all three methods of using or disposing of sewage sludge.

Land application, surface disposal and permanent landfills, or incineration.

Well, what does this all look like when it’s applied?

This actually shows you the scenarios that EPA used and the criteria they used in drafting the risk assessment.

According to EPA, their preliminary findings indicate that there can be human health risks exceeding EPA’s thresholds by several orders of magnitude where a farmer applied biosolids containing one part per billion of PFOA or PFAS.

And you should note, this is a level near the current detection limit for PFAS and biosolids.

It’s very low, one part per billion.

And likewise, it identified unacceptable health risks where biosolids containing one PPB are placed in an unlined or clay lined surface disposal unit.

And it could reach no conclusions about incineration due to significant data gaps.

Now this may be being corrected currently as we speak by some recent research, but for the purposes of the draft risk assessment, there are no conclusions relating to incineration.

Well, with all the criticisms from a wide spectrum of stakeholders and risk assessment experts, I do think it’s hard to believe that anything close to it would ever be finalized.

But regardless, you should know that even if the Trump administration would adopt some or most of it, a further lengthy rulemaking process under Clean Water Act section 405 would be necessary to incorporate it into rule 503.

Don’t be holding your breath.

Compounding the likelihood that nothing will get finalized is the administration’s recent announcements that it’s cutting funding for research on PFAS contaminated farmland.

This will not help move this forward.

And I want to really highlight this to you because despite the fact that this is draft, despite all the criticism and comments and despite that it’s probably a year or two before we see anything more about it, states like Maine and other litigants are already relying on the draft to promulgate standards and regulations and statutes and to hold defendants in common law tort and property contamination cases and insurance claims to its draft levels no matter how legitimate they end up turning out to be.

So you need to be aware of this because despite the fact it’s not it is a risk.

The second major event that could pull PFAS into rule 503 is a plaintiff’s win in current litigation. The case is James Farmer et al. VEPA and it’s in the U.S.

Court of Appeals for the District of Columbia Circuit.

The case is brought by real farmers from Texas and Maine, including Mr. James Farmer.

I’m forced to recall my conversation with legislators in my early days at the IEPA of the Brownfields program in Illinois, in which I would have to preface every conversation with, no, no, not Mr. Brownsfield.

That’s what this reminds me of.

This second event has a slightly greater chance of success of getting PFAS regulated under rule 503.

But again, not anytime soon.

It was filed in 2024 and brought by farmers, as I said, from Texas and Maine, alleging that EPA has a non-discretionary duty under Clean Water Act section 405D to include PFAS in the rule 503 list of regulated pollutants in biosolids.

The litigants are represented by peer, the Public Employees for Environmental Responsibility and their lead counsel is Bob Sussman, a former senior person at headquarters in Washington.

The plaintiffs have said that during the nine biennial reviews and the three national sludge surveys that have already been conducted, EPA has already identified 29 PFAS in biosolids with, and they allege, 10 already have sufficient scientific evidence to justify being added to the list of regulated pollutants in part 503.

To my surprise, EPA responded that its mandatory duty is only to conduct the biennial reviews, not to initiate regulation of any pollutant identified, regardless of the risk it seems to pose.

So, EPA said, our legal obligation has been met and the suit should be dismissed.

And the court agreed, noting that the statute does not include a mandatory timeframe for EPA to regulate sewage such pollutants it identifies during the biennial reviews.

You won’t be surprised that the plaintiffs have appealed and are arguing that the lower court erred by diversing the identification of pollutants and biosolids from the timeline to regulate them.

They note that in 33 years, EPA has never added any pollutant, much less PFAS, to rule 503, and that that flies clearly in contravention of the statute’s intention, which is to protect human health and the environment.

Now, opening briefs were just filed recently and the farmers are seeking to add six PFAS to the rule, not 10.

We need to keep an eye on the court’s decision.

But again, even if Mr. Farmer and the other farmers prevail, further analysis and rulemaking will be required.

So you may say, why is EPA taking this position?

It seems fairly clear from the statute and the biennial reviews that potentially they should be looking at PFAS for additions to rule 503.

Well, I have my own suspicions about why they’re doing this, because it seems very counterintuitive for the agency.

But as I said to you earlier, I don’t think that EPA wants to regulate PFAS and biosolids in the biosolids rule.

It opens up a can of worms for them, or if you prefer, Pandora’s box.

I speculate that this is related to EPA’s concern that inclusion in EPFAS in the rule 503 regulation would trigger releases from liability contained in surplus section 101-22 for quote unquote, the normal application of fertilizer.

It also could trigger the language in surplus section 107 J on exemptions from circle liability for quote unquote, federally permitted releases.

And even more recently PFAS inclusion in rule 503 would seem to support the surplus useful product defense that’s been successfully used recently in Massachusetts and Michigan cases.

You may not be familiar with that, but in this defense, which was established by the Supreme court the Burlington Northern and Santa Fe Railroad case in 2009, parties cannot be held liable as arrangers for having hazardous waste transported for treatment or disposal, or as a transporter if the material is actually a useful product and not a waste.

In this case, Ryan versus New York Group, Inc., the defendants produced bio pellets from wastewater solids and had them marketed as a fertilizer, not a waste.

And do you remember the handy guide, Colleen English Guide to the Part 503 biosolids rule, it states in two places that if biosolids are applied in accordance with the requirements of the rule, that application of sewage sludge for beneficial purposes will not make the landowner, leaseholder, mortgage lender, land supplier, or generator preparer liable under CERCLA.

So we’ll have to see and wait what happens in this case.

But once again, don’t be expecting EPA to take any action in its own initiative anytime soon or maybe ever.

Well, let me slouch gears or more accurately media to the Clean Water Act.

Another mechanism being used in the absence of national regulatory standards is to use existing legal authorities in NPDES permits and pretreatment program requirements.

It goes without saying, and it’s so obvious, clearly the best way to solve the problem of PFAS and biosolids is to keep them out of the wastewater effluent altogether so that they never become a problem.

One of the best ways to do so nationally would be the establishment of ELGs, which are effluent limitation guidelines or national technology based standards for industry sectors.

The Biden administration actually did start this effort, but never completed it.

And the Trump administration noted after spring 2025 unified agenda, which I should note came out in August of 2025, that was moving forward in the development and release of PFAS related ELGs.

This is very encouraging.

It said that it intends to issue a final ELG for PFAS chemical manufacturers and a proposal for metal finishers doing chromium electroplating sometime in 2026.

Now, as of this podcast, I haven’t seen any updates for when these will actually come out, but we should keep our eyes open for them.

When they do, these national standards will be incorporated into NPDES permits and pre-trade programs by both authorized states and local POTWs to prevent PFAS from ever getting into surface waters or municipal wastewater treatment facilities.

States are already acting on it, however, states are already relying on EPA guidance documents that were issued in 2022 and updated in January, 2025, urging states to require PFAS monitoring, pretreatment requirements, best management practices, and comply with technology-based limits or T-BELs.

You should be aware states are taking advantage of this guidance and already doing so.

In Illinois, the IEPA has already put these provisions in over 100 permits and anticipates incorporating them into over 350 permits by the end of the year.

Similar actions are occurring in numerous states, including Colorado, New Jersey, and Minnesota.

And Maryland passed legislation just two years ago requiring wastewater treatment plants to sample for PFAS and PFOA and biosolids and requires significant PFAS upstream industrial discharges to develop monitoring and mitigation plans.

It would behoove you to check on any of these states if you or your clients are manufacturing in them or have industrial discharges.

So what might this look like for your facility or client is language requiring product substitution or replacement or elimination of PFAS altogether, performance of pollution prevention or source reduction evaluation and creation of a plan to implement measures in that evaluation and lots of monitoring and reporting.

Now why am I flagging this?

it’s because this information that comes out of these actions by states and the requirements will be public.

So be ready for increased public scrutiny, reputational harm, news headlines, enforcement, and third-party litigation from NGOs and citizens using this new information.

Now would be, in my opinion, a very good time for you to convene your legal, technical, and comms teams to talk about having holding statements or taking other actions to forestall any liability or harm.

So I will talk a little bit more about this shortly when we look at what the states are doing related to biosolids.

But do note, you should be really thinking about how you’re going to react if you have any PFAS in your wastewater effluent. Well, okay, let’s switch gears yet again.

So here comes CIRCLA, as I have said, a new and disruptive development for parties connected to PFAS contaminated biosolids.

EPA’s designation of PFOA and PFAS as hazardous substances in May of 2024 about two years ago, brings in a large number of parties associated currently and more importantly probably for decades in the past with the use and disposal of PFAS contaminated biosolids.

And they bring them into the surplus very unforgiving liability scheme.

What it does is open the flood gates for any and all of these parties to be sued or enforced against for future and past actions.

Regardless of negligence or contribution, they can be sued and by states, feds, municipalities, but have also a host of third parties.

Not surprisingly, these designations are tied up in litigation and congressional actions to mitigate some of their impact on so-called passive receivers.

In September last year, after multiple requests to stay the litigation so that it could review it, the Trump administration surprised everyone by announcing that it would continue to defend the designations made during the Biden administration of PFOA and PFAS as hazardous substances under CERCLA.

This litigation concludes very heavy hitters like the U.S. Chamber of Commerce.

I strongly think that one of the reasons the administration is backing the designations is it gains public and environmental group approval.

Well, it also knows that significant problems with the rulemaking related to due process and its economic and legal analysis make it likely that it will lose in court so it can do the right thing publicly and end up with the right result through the court action.

I think the administration is hedging its bets, but I could be wrong, although the US Chamber of Commerce doesn’t think so.

So we’ll have to see how this plays out.

The inclusion of PFAS as a hazardous substance in CERCLA raises numerous new issues.

Some of them are, how will they be treated during sampling and remedial investigations?

What does it mean for remedial actions?

What are the appropriate screening levels and final remedial action limits?

What impact do they have on EPA’s five-year reviews for hundreds of completed sites where substances remain on site above levels that permit unrestricted use and unrestricted exposure?

How do they impact Brownfield’s programs in Brownfield’s grants? What about property sales in phase one and phase two investigations?

What impact do they have on financial lending?

What do they mean for EPA protections from liability for landlords to meet the criteria as a bona fide prospective purchaser, an innocent landlord or a contiguous property owner?

And how are they impacting existing insurance coverage of new products?

How do what the states do impact their application in the requirements.

So the list goes on and if you’re a practitioner in this space, you’re already dealing with these issues.

Suffice it to say for biosolids, contaminates, PFAS, this designation has opened up all of these issues and more.

And I want to say that this is particularly true for the Ag sector.

So I’m suggesting to Regenesis that they dedicate another whole podcast to delving more deeply into these impacts and how to efficiently and economically handle them.

So, there is a problem, another problem with EPA’s inclusion of PFAS and PFOA as circle hazardous substances, and EPA is well aware of it.

By its terms, CIRCLE will pull into its unforgiving liability scheme, and note I keep saying it’s an unforgiving liability scheme because it is, and I’ve had the privilege of enforcing it, passive receivers of the biosolids contaminated with PFAS.

These are parties that didn’t create the pollution but received it, including waste disposal and storage facilities, water and wastewater treatment facilities, and the ag sector.

That’s why two days after finalizing the rule two years ago, designating PFAS and PFOA as hazardous substances, EPA issued a new enforcement discretion policy for passive receivers based on equitable factors.

This slide shows the list of passive receivers that EPA is saying explicitly it will not enforce against.

This is, however, and it shouldn’t be, giving small comfort these parties. First and foremost, it’s only guidance. It’s not even regulatory.

Secondly, it only applies to EPA and its intentions. It’s not binding, not even on EPA.

And thirdly, it provides no protection whatsoever to these entities from third-party lawsuits, including ones to recover costs or to make the defendants in common law tort and property litigation.

So, EPA aimed to cure this problem by strong-arming major parties to agree not to sue passive receivers for cost recovery when EPA enters into circular agreements with them.

And by the way, it’s also possible for a passive receiver, potentially responsible party, to enter its own circular settlement with EPA and receive contribution protection.

But frankly, as someone who’s worked in circle at EPA, both in the region and Washington, this is an approach doomed to failure.

There just isn’t enough staff resources and time to accomplish this in any meaningful way.

Congress knows this and a great deal of time has been spent in the last two years looking for a legislative fix.

So far, nothing has emerged despite bipartisan hearings in the House and Senate.

And it’s very unlikely, given what’s going on in Washington, that will be any legislation on this coming out of Congress during this session. But some states are taking action.

Once again, they’re filling the vacuum.

Just this month, the state of Wisconsin provide exemptions to the state’s environmental cleanup law, known as the spills law, to codify the state’s policy of not pursuing farmers for the cleanup of PFAS contamination from the use of biosolids for agricultural purposes, like fertilizer.

And also this month, the Environmental Council of States put out draft guidance that recommends that states refrain from enforcing against passive receivers and federally mandated users, looking instead to manufacturers.

And although the guidance isn’t final yet, it is interesting that it promotes not taking action against federally mandated users.

Again, federally mandated users.

this would include entities like airports that were required to use AFFF containing PFAS.

Even if finalized, I don’t anticipate that it will have a significant impact.

All right, enough about the feds. I think I’m going to spare you the bad wordplay about being fed up.

Let me turn our attention to the crazy quilt of state actions related to PFAS-contaminated biosolids. And crazy is probably an understatement.

And make no mistake, a patchwork of regulations and standards and policies isn’t good for citizens or business anywhere in the country.

So, here we have a map showing which states have bans, testing, and voluntary or other requirements related to PFAS and biosolids.

In the absence of federal regulation on PFAS and biosolids, individual states understandably are taking action.

Nine states are actually delegated authority to run the rule 503 biosolids program, and EPA runs it in the other 41 in the District of Columbia.

But since the rule doesn’t regulate any PFAS as a biosolid, multiple states are addressing it on their own through statutes, regulations, permits, or guidance.

Keeping track of these actions is difficult, but not impossible.

State activities tend to fall into these three buckets, land application bans or moratoria, mandatory testing requirements, and strict contamination limits.

I would suggest to you that one of the best resources I’ve found for keeping up with PFAS state activity is the Safer States website.

It concludes information on state PFAS actions, as well as a legislative bill tractor.

And according to their site, five states have taken major regulatory action already on PFAS-contaminated biosolids, and 12 states are considering new legislation during fiscal years 2025 and 2026.

And by the way, the Environmental Council of States also has a good report on PFAS state activity, although it’s now two years old.

You need to be checking constantly, and I want to warn you right now, do not rely on the data in this presentation. It could have changed already and probably has.

For example, within the last two weeks alone, the state of Wisconsin enacted Public Laws 201, providing significant grant dollars from municipalities and private well owners for PFAS sampling that includes that of biosolids.

And in just the very last few days, the states of Virginia and Maryland passed legislation setting limits on the amount of PFAS and biosolids that can be landed by.

Because these two states share the Potomac River watershed, a more regional approach the problem definitively definitely needed to be done.

Even so, the Virginia law, which has been signed off on by the governor already, and the Maryland law, which is awaiting the governor’s sign up, contain different timetables and restrictions on the allowable concentrations of PFAS and biosolids.

Nonetheless, it’s important that there is starting to be some concern by states about doing this in a reasonable fashion so that states that are joined, for example, Wisconsin Minnesota do not have different rules, standards, and that their citizens are exposed to different levels of PFAS in biosolids.

Likewise, similar to this, Wisconsin and Michigan are using the very same kind of requirements to make sure that where their states adjoin, people are not exposed to different standards.

By the way, looking back at Virginia and Maryland, both states are banning the land applications containing 50 parts per billion or greater of PFOA and PFAS.

But I would to also note to you that there are 16 ,000 PFAS analytes.

Note that only to the big two are being regulated. Okay, so states with bans.

Maine and Connecticut are the only two states which have land application bans and Maine actually does prohibit the sale of biosolids as well, but other states are considering them. This has lots of ramifications up and down the supply chain.

Maine, which initiated its ban in 2022, has discovered the hard way that it isn’t so easy to ban land application.

Biosolids do have to go somewhere.

Another state, country, a landfill, deep well injection or incineration.

So it’s not surprising that Maine is having significant landfill capacity issues and the organizations like NEBRA have raised the alarm about a lack of capacity to handle biosolids contaminated or not.

This slide shows for a point in time, and I’m saying it may no longer be accurate, those states in which testing of biosolids are required before application or after application, and they all contain different requirements and different standards.

If you are in any of these states, you will need to go and check actually to see what’s the current regulatory environment.

These are states that have voluntary programs or guidance to deal with PFAS in biosolids.

Other states have imposed testing and or monitoring requirements or impose strict levels over which biosolids contaminated with PFAS cannot be applied.

Some of these are statutory regulatory merely guidance, but they could expose you and your clients to not only enforcement, but also common law actions for tort and property damage, bad press, and reputational harm if you deviate from them.

If you and your clients, I’m going to repeat this because I think it’s just really key, are in this space, you will need to carefully track the activities in states and make a decision about whether you want to engage in any upcoming regulatory or legislative process.

I have to say as a long-time regulator, it always surprises me how few people or entities choose to participate in a legislative or regularity process when there is still an opportunity to shape the final action.

For example, even as I speak, the state of Wisconsin is welcoming feedback and questions from the public about its new PFAS legislation and its implementation.

If it could impact you or a client, you might want to submit comments or participate in a trade association that’s doing so.

So in conclusion, if you’ve been relying on biosolids as fertilizer or as a disposal mechanism, it would be very, very smart for you to start reviewing the implications, legal and otherwise, or look at other options, including replacement, substitution, or treatment.

There is one more thing happening in numerous states that will over time have an impact on PFAS and biosolids, and that is state product bands.

I think that this really gets the attention it deserves. Residential and commercial contributions to the PFAS and biosolids are not insignificant.

A fascinating study of wastewater influence in 2024 in the San Francisco Bay region indicated that residential wastewater from homes was a greater source of PFAS in that region than industrial sources.

Not that the industrial sources were not significant contributors, but they were definitely less than the residential sources.

So once again, let me reiterate, keeping PFAS out of biosolids is undoubtedly the most efficient way to address this problem.

States with product bands already include Minnesota, one of the first, New Mexico, Maine, Colorado, Vermont, Washington State, Connecticut, and others.

Many states like Minnesota are also requiring manufacturers to also report on PFAS in their products.

This isn’t an easy task.

And so just within the last week, the state has extended by two months the start date for reporting this summer.

But if you are in a state that requires reporting, and many of them do, I urge you to be prepared with again, holding statements for the inevitable negative headlines.

Name, for example, the 10 worst in the community or the most surprising.

Think the TRI report and be ready.

So I’m going to say very little about treatment today except to note that successful technologies are going to make a fortune.

This is a big issue.

There are two main approaches currently, stabilization and transformation.

The stabilization space includes absorbance, adsorbance and encapsulation.

And in the transformation category, there is incineration, pyrolysis and chemical oxidation.

For more on these, I think you should talk with smart people at firms like Regenesis and follow what DOD is doing in its SIRDEP and ESTPC programs, as well as what the ITRC is studying and critiquing.

I also would recommend that you keep checking the Department of Energy’s PFAS research plan, which was published originally in 2023 and is in the process of being updated.

And I would like to know that as part of EPA Administrator Zeldin’s major actions to combat PFAS contamination.

Announced last year, he committed the agency to provide annual updates on its PFAS destruction and disposal guidance once a year, rather than every three years.

You need to watch for this.

My understanding is that OMB is currently holding meetings with interested parties.

There was just a report on some people from the incineration industry meeting with them.

Others are scheduled.

They are anticipating putting out the next guidance from EPA on destruction and disposal technologies this spring.

So there are also numerous research projects underway.

And one of the technologies I think is most intriguing is phytoremediation.

A recent National Academy of Science, Environment, and Medicine panel report, NASEM, calls for more pilots on ag land related to its use, both for sequestering PFAS, but also for minimizing crop uptake.

All right, with that, let me turn to my idea of previews of coming attractions.

To inaccurately use a movie tagline just when you thought it was safe to go back in the water, there are two new potential threats to be aware of when thinking about biosolids and especially biosolids contaminated with PFAS.

First, the interaction of microplastics and PFAS.

Microplastics on their own are garnering a great deal of press public concern and regulatory focus, but there is increasing research showing that together microplastics and biosolids contaminated with PSAS have dangerous synergistic effects.

Microplastic and biosolids, they can act as PFAS concentrators and as vectors, and some studies are showing that the mixture of PFAS and microplastics can be more toxic together than alone.

This could possibly be related to their various electrical charges, but more research needs to be done.

Interestingly, EPA just announced, to most of our surprise, that it is including both the categories, not individual chemicals, but the categories of microplastic and PFAS on its Contaminant Candidate List 6, which is CCL.

This means that both of these will be the subject of more research, monitoring, and possible regulation in the years ahead.

I consider PFAS and microplastics to be the new Dr. Jekyll and Mr. Hyde, and I just hope I’m wrong.

Secondly, the impact of PFAS on crops and livestock will continue to get more media coverage as the time goes by.

We’re talking about both crop and livestock uptake and residuals from pesticide.

Just recently, the Environmental Working Group released its annual Dirty Dozen Report on a Shopper’s Guide to Pesticides in Produce, which got widespread publicity on major newspapers.

It announced that it found widespread PFAS in 14% of all produce samples and almost 90% of peaches and plums sampled.

As to food, uptakes in food itself, I would say that the FDA has been very slow out of the box, but it is indeed testing for PFAS in the general food supply, as are citizens themselves.

Companies like SimpleLab offer test kits that enable consumers to identify PFAS in food and other products, and you can assume increasing risk of litigation related to crops grown soils that have been treated beneficially, so to speak, with biosolids.

Maine’s experience in the last few years with livestock and crops contaminated with PFAS from biosolids is a harbinger of things to come. And finally, there’s more.

Earlier this month, the Trump administration announced its FY 27 budget request, reducing PFAS is only one of its two agency priority goals, APGs, along with permitting reform.

Now, although the budget request doesn’t list any specific actions or policies, it does specifically say that it would continue the process of reevaluating the draft biosolids risk assessment.

And by the way, once again, it eliminates funding for research to help farmers, ranchers, and rural communities to manage PFAS impacts in agricultural settings and communities.

In conclusion, I pulled up a slide that I used two years ago at an American Bar Association presentation in which I was asked to talk about what I thought would be happening with PFAS going forward particularly that coming from biosolids contaminated with it.

I anticipate a huge wave of litigation related to it in part because of what CERCLA has done in terms of including PFAS and PFOS as hazardous substances and as well as the fact that states are already filing numerous cases that include biosolid contamination with the multi-district litigation that’s currently pending in North Carolina.

If you’re not familiar with the MDL it’s where all the cases related to firefighting foam have been filed.

And there are literally, or at least there was when I checked some months ago, over 10 ,000 of them.

I think that the issue with biosolids, given its national scope, given the fact that it’s potentially a legacy of decades could be another huge kind of AFFF situation.

So it may be incorporated ultimately into the existing MDL or maybe the federal judiciary panel on multi-district litigation will decide to create another MDL.

Finally, I think I was correct, EPA will weaken and revise PFAS regulations, and I think there is some good reason to do so in terms of some of the actions that were taken earlier and how aggressive they were.

But states will aggressively act to fill in the perceived gap, as we’ve talked about today, in terms of all of the statutory regulatory and guidance that’s coming out to address PFAS-contaminated biosolids.

I’m happy to know that as a seer, I seem to have a track record of 100 percent.

So I urge you to stay tuned. Tomorrow’s another day, and the show must go on.