EPA PFAS Biosolids Guidance & Litigation: What a Widening Range of Industries Should Know About Regulatory Risk & Emerging State Law Developments

Per- and polyfluoroalkyl substances (PFAS) in biosolids are quickly becoming a bigger issue for companies that touch agriculture, landscaping, consumer products, pharmaceuticals, pesticides, wastewater treatment, and real estate transactions. This client alert explains how the Environmental Protection Agency’s (EPA) latest draft guidance, recent litigation, and state-level activity are shaping the risk landscape. It also highlights why companies should be paying close attention now, especially as PFAS-related due diligence, product claims, and liability allocation become more important. The bottom line: even businesses far removed from traditional farming may find themselves pulled into the PFAS biosolids conversation.

Key Takeaways

• EPA is recalibrating its approach. EPA’s June 2026 draft guidance moves away from a one-size-fits-all view of PFAS in biosolids and instead offers practical recommendations for land appliers, the public, and wastewater operators.
• Litigation is expanding. Plaintiffs are testing claims against EPA, fertilizer manufacturers, and local treatment facilities, with early cases likely to influence how future PFAS biosolids disputes develop.
• State law remains a wild card. Federal guidance does not preempt state action, and states are already taking different approaches, from bans and concentration limits to studies and landowner protections.
• The business impact is broader than farms. Because biosolids can reach consumer markets, landscaping projects, pharmaceuticals, pesticides, and transaction diligence, companies across several sectors should track the next wave of PFAS developments.

Introduction

The DC Circuit’s recent decision upholding EPA’s designation of PFOA and PFOS as CERCLA hazardous substances means that related PFAS issues will continue to receive regulatory and litigation attention. One area of focus is PFAS in biosolids, the nutrient-rich sewage sludge that is often spread on farmland or sold in garden stores. EPA, state regulators, and private plaintiffs have raised questions involving the agricultural, landscaping, consumer-products, and pharmaceutical sectors, making these developments worth monitoring.

When EPA first promulgated the PFOA and PFOS CERCLA hazardous substance listings, it also published enforcement guidance insulating certain types of operations from CERCLA enforcement. That guidance focused largely on passive receivers of PFAS, such as farms where PFAS-containing biosolids are land-applied—indicating that EPA intended to exercise enforcement discretion in favor of at least some passive recipients.

That guidance, of course, does not enshrine widespread protections. Like all agency guidance, it is non-binding. It also does not necessarily cover all downstream operations where biosolids are used. While biosolids are often used on farms, for example, they are also used in general landscaping—such as fertilizer at golf courses, parks, and residential developments—that might not be covered by the guidance. And while states commonly incorporate CERCLA hazardous substance listings by reference, they are under no obligation to follow EPA’s enforcement guidelines and may implement different enforcement priorities.

The issue of PFAS in biosolids has gained much recent attention because biosolid applications can be a source of PFAS in groundwater—providing a potential means by which PFAS can enter the potable water supply as well as the food supply through crops and livestock. The use of biosolids as a soil amendment can have implications for consumer products and pharmaceuticals as well.

EPA’s Recent Guidance on PFAS in Biosolids

What are biosolids? When domestic sewage reaches a wastewater treatment plant, the liquid portion is filtered out, leaving nutrient-rich sewage sludge. A “biosolid” is sewage sludge that is either intended to be land-applied as a fertilizer or soil amendment, or that has been treated to meet EPA’s Clean Water Act standards under 40 C.F.R. Part 503. For decades, EPA has actively encouraged land application of biosolids as a beneficial reuse of waste.

While biosolids are only applied to less than 1% of US farmland, most sewage sludge—60%—is land-applied. Of that 60%, 31.5% goes to agricultural sites; 20% is sold to the general public—bagged or in bulk at garden and hardware stores; 7% goes to other sites, such as forest and woodland cultivation operations; and 1% goes to reclamation sites.

EPA’s Draft Guidance. On June 29, 2026, EPA published draft guidance regarding PFOA and PFOS in biosolids. (The original 60-day comment period was extended to October 5, 2026 due date.) It is positioned as a corrective to a Biden-era draft risk assessment that, in EPA’s view, contained “serious flaws” and created the erroneous impression that all biosolid applications will negatively affect public health and that the safety threshold for PFOA and PFOS in biosolids should be just one part per billion (ppb). The specific shortcomings identified in the Biden-era assessment include:

• No national survey. The Biden EPA failed to conduct a national survey to document actual occurrences of PFOA and PFOS in sewage sludge, instead proceeding on a largely hypothetical basis.
• Narrow risk scenarios. The prior assessment evaluated management practices associated with the highest potential for human health effects—hypothetical scenarios concerning soil, livestock, food crops, fish, and drinking water—without assessing the relative likelihood of those scenarios or reflecting the majority of actual land-application practices in the United States.
• Mischaracterized concentration baseline. While the Biden assessment used one ppb as a starting-point concentration for evaluating potential health effects, the impression that this figure was intended to serve as a universal “safe level” in all circumstances was erroneous.
• Aligned with more restrictive state actions. The Biden-era approach was consistent with responses taken by certain states. Connecticut and Maine, for example, have banned the sale and use of sewage sludge containing PFAS. In Maine, where 40% of sewage sludge is processed as biosolids, the ban has had significant financial effects—including cost increases for utilities given limited landfill capacity and the absence of in-state sludge incinerators.

The new draft guidance takes a different tack, offering practical recommendations for both the general public and bulk land-appliers of biosolids. Key recommendations include:

• For Bulk Land-Appliers: Avoid biosolid application near drinking water sources and fishable waters, areas accessible to young children, and agricultural practices with a higher risk of human exposure. Preferred use is instead on lower-risk crops such as grain, fiber crops, and corn for ethanol.
• For the General Public: Research sewage sludge suppliers, avoid biosolid application near playgrounds/schools/homes, and avoid use on foods with higher potential for PFOA and PFOS uptake—such as leafy greens and root vegetables grown in garden beds—or near foraging hens.
• For Wastewater Treatment Plants and Sewage Sludge Generators: Pursue source identification and monitoring of PFAS in sewage sludge to determine presence of significant sources; consider adding composite liners to surface disposal units; conduct performance testing of incinerators to understand potential PFAS releases from incomplete combustion; and explore federal funding opportunities, including the Clean Water State Revolving Fund (CWSRF) and the Water Infrastructure Finance and Innovation Act (WIFIA) program.

Overview of Biosolids Litigation

As scrutiny of PFAS in biosolids grows, litigation is increasingly growing alongside it—with plaintiffs suing a wide range of stakeholders, from EPA to biosolids manufacturers and the municipal facilities that process them. Plaintiffs’ legal theories remain largely untested, and the volume and viability of future cases will likely depend on how courts handling these initial cases ultimately rule.

EPA. In June 2024, the County of Johnson, Texas; a group of farmers and ranchers; and other advocacy groups sued EPA, seeking an order compelling EPA to regulate PFAS in sewage sludge that was allegedly contaminating their land. Farmer v. United States Env’t Prot. Agency, 805 F. Supp. 3d 253 (D.D.C. 2025). Plaintiffs argued that Clean Water Act (CWA) Section 405(d)(2)(C)—which requires EPA to review its sewage sludge regulations every two years—also imposed a nondiscretionary duty to identify and regulate new pollutants, including PFAS. Id. at 256. The court disagreed, dismissing the case and holding that Section 405(d)(2)(C) requires only periodic review, not a fixed deadline for identifying PFAS. Id. at 258-59.

• Plaintiffs appealed in December 2025, arguing the CWA requires EPA to regulate toxic pollutants within two years of identifying them. The appeal is pending before the DC Circuit, with no oral argument scheduled, and could determine how much discretion EPA has to set its own regulatory timeline for emerging contaminants like PFAS.

Fertilizer Manufacturers. Private plaintiffs have also targeted fertilizer manufacturers who use biosolids in their products. In February 2024, Texas farmers sued Synagro Technology in Maryland state court, alleging that Synagro failed to remove PFAS from the wastewater used to make its fertilizer, causing them PFAS-related medical issues, and asserting claims for product defect, negligence, and public nuisance. The Maryland court dismissed the case for forum non conveniens, plaintiffs refiled in Texas state court, and Synagro removed the case to federal court. Synagro then moved to dismiss on April 25, 2025, arguing that the Texas Right to Farm Act bars the action and that plaintiffs’ allegations fail to establish causation. Mot. to Dismiss, Alessi v. Synagro Techs. Inc., No. 3:25-cv-00445 (N.D. Tex. Apr. 25, 2025), ECF No. 45. The case has been stayed since February 2026, pending a ruling on that motion.

Plaintiffs are also bringing consumer protection claims concerning biosolids. In 2024, a consumer advocacy group sued Scotts Miracle-Gro over fertilizer products marketed as “eco-friendly” and “sustainable,” alleging that the products contain PFAS originating from wastewater and that reasonable consumers would not expect such marketing to describe environmentally damaging chemicals. See First Amended Complaint, Beyond Pesticides v. Scotts Miracle-Gro Co., No. 2024-CAB-006782 (D.C. Super. Ct. May 23, 2025). The parties appear to have reached a confidential settlement, as the plaintiff voluntarily dismissed its claims with prejudice in September 2025.

• The same consumer group brought similar deception claims against GreenTechnologies, another bio-based fertilizer manufacturer. See Complaint, Beyond Pesticides v. GreenTechnologies, No. 2024-CAB-006781 (D.C. Super. Ct. Oct. 25, 2024). The case has remained largely inactive while the parties schedule mediation.

Local Treatment Plants. In litigation alleging PFAS contamination from textile mills, an individual plaintiff on behalf of a class of Georgia residents brought Clean Water Act claims against the town of Trion, Georgia, which operated a local water treatment facility, alleging the town improperly disposed of one mill’s PFAS-contaminated sewage sludge into the local watershed. Complaint, Parris v. 3M Co., No. 4:21-cv-00040-TWT, ECF No. 1 (N.D. Ga. Feb. 23, 2021). The town’s settlement with plaintiffs for US$500,000 (plus approximately US$100,000 in attorneys’ fees) was approved by the court in June 2025.

Other Potential PFAS Contributors: Septic Systems, Consumer Products, Pharmaceuticals, and Pesticides

Septic Systems. Part of the discussion leading up to EPA’s new guidance has examined the role of septic systems in relation to PFAS. Recent scientific studies have considered whether PFAS detected in groundwater may have sources other than large-scale biosolid applications, including household septic systems.

A particularly influential study that has helped shape this discussion is Prevalence and Source Tracing of PFAS in Shallow Groundwater Used for Drinking Water in Wisconsin, USA, published by Matthew Silver and others in the November 2023 edition of Environmental Science and Technology (Vol. 57(45), pp. 17,415–17,426). The study sampled 450 homes with shallow private wells in Wisconsin for 44 individual PFAS compounds, general water quality parameters, and additional indicators of human waste and agricultural influence. Without denying the potential influence of PFAS in biosolids, the study pointed to septic systems as a meaningful source of PFAS impacts on groundwater. In particular, the study deduced from the PFAS profile in samples that potential sources could include toilet paper, impregnation agents, pharmaceuticals, and other common household items.

Consumer Products. The presence of PFAS in consumer products is tracked by advocacy groups and popular platforms—such as Mamavation—that contribute to ongoing public discussion and interest in regulatory approaches.

Pharmaceuticals. The pharmaceutical industry is another sector where PFAS use has drawn attention. PFAS are used as active ingredients in certain drugs, as processing aids in manufacturing, and as components of specialized packaging.

Pesticides. Pesticides are another category of products discussed in connection with PFAS in soil and groundwater. PFAS have been used in various pesticide formulations, adding to the range of products considered in ongoing discussions.

The Impact on State Law

Notably, the federal guidance does not directly pre-empt or supplant state initiatives. As stated above, certain states, such as Connecticut and Maine, have enacted blanket prohibitions on the sale and land application of PFAS-containing biosolids. Other states—specifically, Virginia, Maryland, and Michigan—have prohibited the land application of biosolids containing PFAS above certain regulatory thresholds (ranging between 25 ppb to 125 ppb, depending on the state). At the same time, still other states (Washington, Rhode Island, and Oregon) have mandated studies and data-gathering regarding PFAS in biosolids for purposes of informing potential future legislative and regulatory efforts on the topic, while Wisconsin has enacted special grants and protections for qualifying “innocent landowners” whose properties have been affected by permitted biosolids applications. 

Conclusion

The evolving regulatory and litigation landscape around PFAS in biosolids touches multiple sectors, including agricultural and landscaping operations that use biosolid-based products. It also stands to affect the way in which parties to a transaction conduct environmental due diligence and negotiate liability allocations regarding potentially affected properties. 

It is important to note that the issue of PFAS in biosolids extends to properties beyond farms and golf courses. With 20% of land-applied biosolids sold directly to consumers through garden and hardware stores, and with recent studies and popular press coverage examining PFAS in everyday products, the discussion extends to companies that manufacture, process, market, or distribute biosolid-based products, as well as those in the pharmaceutical and pesticide sectors. The October 5, 2026 deadline provides an opportunity for interested parties to engage in the comment process, and developments in this area are worth monitoring.

O’Melveny’s Environmental Litigation and Regulatory practice stands ready to help clients navigate the evolving PFAS landscape. For questions about the issues discussed in this alert, please contact Reza Zarghamee, Hannah Y. Chanoine, Eric Rothenberg, John D. Renneisen, Andrew Weisberg, Marcus S. Pipitone or your usual O’Melveny lawyer.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Reza Zarghamee, an O'Melveny partner licensed to practice law in the District of Columbia, California, New York, and Virginia; Hannah Y. Chanoine, an O’Melveny partner licensed to practice law in New York and Massachusetts; Eric Rothenberg, an O'Melveny of counsel licensed to practice law in New York and Missouri; John D. Renneisen, an O’Melveny senior counsel licensed to practice law in the District of Columbia; Andrew Weisberg, an O’Melveny counsel licensed to practice law in California; and Marcus S. Pipitone, an O’Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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