Federal Court Dismisses Environmental Group Bid to Initiate PFAS Biosolids Regulations

by Nathan E. Vassar

Earlier this fall, in what is widely regarded as a win for wastewater utilities across the country, the U.S. District Court for the District of Columbia sided with the U.S. Environmental Protection Agency (“EPA”) and dismissed a petition by an environmental advocacy group and citizens seeking to compel federal regulatory action with respect to PFAS and biosolids. In short, the environmental group’s petition pointed to EPA inaction on PFAS regulation and brought both a Clean Water Act claim as well as an Administrative Procedures Act claim against the federal agency. As detailed further below, the implications are far-reaching, as the public utility community and industry groups have pushed for more measured analysis on the front end on PFAS issues, rather than knee-jerk, forced regulations that could upend long-standing biosolids practices.

The Plaintiffs pointed to a set of eighteen (18) PFAS chemicals present in sewage sludge and eleven (11) PFAS chemicals listed in EPA biennial reports, and claimed that the agency acted arbitrarily and capriciously by failing to list certain PFAS chemicals in EPA’s biennial report for subsequent regulation. The Court granted EPA’s motion to dismiss, however, (and notably, water quality industry group National Association of Clean Water Agencies joined the case as an intervenor-defendant), noting that while the CWA mandates a non-discretionary EPA review of regulations on a biennial basis, it does not compel the agency to act on such review by initiating rulemakings or other actions on that same timeframe.

The mere presence of PFAS chemicals in sewage sludge/biosolids has not been widely disputed; however, the question of how and whether to regulate such PFAS as pollutants has been the subject of both state and federal attention. The state of Maine, for example, has enacted a biosolids land application ban, whereas other states, including Texas, have seen legislation introduced (but not passed) that would have carried criminal penalties for knowingly applying PFAS-contained biosolids as fertilizer. In light of statements from EPA Administrator Lee Zeldin on the topic of PFAS and potential regulation (focusing primarily on a “polluter pays” framework), it would not be surprising to see EPA move forward with PFAS regulation in biosolids; however the federal court made clear that EPA inaction so far does not give rise to a claim under either the Clean Water Act or the Administrative Procedures Act.

The case also represents judicial rejection of citizen/environmental group strategies to compel PFAS regulations when EPA has not taken affirmative steps to do so. Although other approaches may result in different outcomes, the agency inaction angle was not one, at least in this case, that merited the court proceeding with the petition (as it dismissed the case under FRCP 12(b)(6) grounds).

We will continue to track the many developments on the PFAS regulatory front, particularly as the Administration has carved back a handful of drinking water PFAS-related MCLs, and is not looking to change PFOS and PFOA CERCLA designations initially pushed by the Biden EPA. Our team will also remain in tune to state updates on this front, including any legislative interim PFAS biosolids considerations at the state level coming out of two bill filings earlier in 2025 tied to PFAS and biosolids.

Nathan Vassar is a Principal in the Firm’s Water, Compliance and Enforcement, Litigation, and Appellate Practice Groups. If you have any questions or would like additional information related to this article or other matters, please contact Nathan at 512.322.5867 or nvassar@lglawfirm.com.