A federal judge has allowed a national group representing wastewater facilities to join in litigation over the U.S. Environmental Protection Agency’s regulation of “sewage sludge.”

Last year, several family farmers and ranchers filed a lawsuit accusing the EPA of failing to regulate PFAS, often known as “forever chemicals,” in fertilizer made from treated sewage.

Often used for their non-stick and water-resistant properties, PFAS chemicals have raised fears about cancer risks and other health problems due to their prevalence in the environment.

Plaintiffs’ claim

The plaintiffs claim they’ve suffered illness from PFAS in fertilizer from sewage sludge, which has also allegedly resulted in the deaths of their farm animals.

Their complaint, which is joined by two nonprofits and a county government, claims the EPA is required under the Clean Water Act to regulate PFAS in biosolids — the official name for treated sewage sludge.

“EPA’s failure to identify and regulate PFAS in sewage sludge exposes the farming family plaintiffs to continuing harm from future applications of sewage sludge on nearby properties,” the complaint said.

The EPA has claimed the lawsuit should be dismissed because the law does not “pinpoint any specific substance or toxic pollutant” that must be regulated in biosolids, so any rules for PFAS aren’t mandatory but rather up to the agency’s discretion.

Dismissal sought

The National Association of Clean Water Agencies, which represents wastewater treatment facilities, sought to voluntarily intervene in the lawsuit in support of the EPA’s dismissal motion.

While the EPA is assessing the risks of PFAS in biosolids, the “unsubstantiated regulation” of these chemicals “would unduly restrict the already limited biosolids management options available” to wastewater agencies, NACWA’s motion said.

The plaintiffs opposed the motion to intervene, alleging it’s unnecessary for the wastewater treatment facilities to join in the litigation because they could participate in any PFAS rule-making eventually undertaken by the EPA.

The complaint only seeks to compel the EPA to begin such rule-making, not to dictate the regulations themselves, so the potential harm to wastewater treatment facilities is speculative, according to the plaintiffs.

“Because the court would not determine the content of such a regulatory proposal, NACWA’s alleged impacts are pure conjecture and cannot be said to be impaired by this lawsuit, as is necessary for as-of-right intervention,” the plaintiffs said.

U.S. District Judge Dabney Friedrich in Washington, D.C., has now rejected those arguments, ruling that NACWA can intervene in the case because if the lawsuit is successful, wastewater treatment facilities would likely face new pollutant limits, operational standards and management practices.

“If the Court were to grant the requested relief, EPA would be required to promulgate regulations,” the judge said. “That EPA would retain discretion as to the substance of any new rule is irrelevant because any regulation of a new substance in sewage sludge would necessarily impose costs on NACWA’s members because they would have to alter the way they presently manage sewage sludge.”

Also, the EPA may not adequately represent the interests of wastewater treatment facilities, who face economic harms and have “narrow financial interests” at stake, while the federal agency more broadly represents the “interests of the American people,” the ruling said.