Biosolids Law 2023: Key Regulatory and Litigation Developments

This paper and presentation will survey and analyze the latest lawsuits and regulatory developments affecting the beneficial use of biosolids, including compost, to provide wastewater and residuals professionals current information that will help inform their decisions on risk, liability, management, and planning. Slaughter and Silton regularly defend land application in litigation, and counsel both POTWs and biosolids service providers on regulatory issues. The speakers will discuss the challenges posed by local ordinances, tort litigation, and the ongoing campaign to regulate per- and polyfluoroalkyl substances (PFAS) in biosolids and groundwater. This talk will outline potential risks, while also highlighting strategies for managing land application and discouraging attacks on beneficial use in the face of a changing legal environment and local communities that may be hostile to land application. Slaughter and Silton will first address the dynamic and problematic regulatory landscape for land application, highlighted by Maine's ban on land application because of trace PFAS. Federal, state and local legislators and regulators, at the behest of many advocacy groups, have turned their focus to PFAS and other trace chemicals that may be found in biosolids. These efforts have spurred regulators to take a variety of actions, including EPA's September 2022 proposal to designate two PFAS-PFOA and PFOS-as hazardous substances under the federal Superfund statute. If the proposal is adopted as a final rule, it could pose risks to land appliers and POTWs. Silton and Slaughter will survey recently regulatory developments and their implications for POTWs, biosolids service providers, and farmers, including ongoing litigation challenging some of the stringent PFAS regulations. Slaughter and Silton will also address the interplay between state and local regulation by exploring several case studies involving local attempts to restrict or ban land application. Their discussion will cover California, where decade-long litigation over a local biosolids ban resulted in a trial and settlement striking down the ban. City of Los Angeles v. Kern County, 2017 WL 1292822 (Tulare Co. Super. Ct. Mar. 14, 2017). Notably, the Kern trial resulted in findings that land application poses few risks after hearing evidence concerning minimal concentrations of PFAS in soil and groundwater beneath a farm where biosolids had been land applied for decades. The speakers will also address recent developments in other states, including Pennsylvania, where the speakers recently challenged enforcement of a local waste ordinance against land application. Second, the speakers will survey risks to land application posed by tort lawsuits. The risk of tort lawsuits based on trace PFAS in biosolids, soil, and groundwater will be examined. Cases in which plaintiffs' lawyers have alleged nuisance conditions caused by land application will be discussed, including the important decision of the Pennsylvania Supreme Court in Gilbert v. Synagro Central, LLC, 131 A.3d 1, which ruled that farming with biosolids is a normal agricultural operation entitled to protection under Pennsylvania's Right to Farm Act. The presentation will conclude with how stakeholders in land application-POTWs, contractors, and farmers-can collaborate to reduce their risks and navigate a challenging, dynamic legal and regulatory landscape.