Data Shows that DEQ has Approved Disposal of PFAS-Contaminated Sewage Sludge on Virginia Farmlands that Comes from Wastewater Treatment Plants in Maryland
by David Flores, Senior Legal Counsel, Potomac Riverkeeper Network
As a waterkeeper organization, we often find ourselves concerned with what comes out of the pipe at the end of the wastewater treatment process to be discharged directly into our rivers and streams. Wastewater treatment plants (WWTPs), however, also produce great quantities of residual solid waste from the process of removing regulated contaminants from the wastewater. In the Clean Water Act, this solid waste is called sewage sludge.
Sewage sludge is often treated to remove some toxic contaminants (like heavy metals, for instance) and dried, and then the solid waste is marketed as fertilizer and often referred to as “biosolids.” Refined, in part, from human and food wastes, it is easy to imagine that sewage sludge is rich in nutrients, so biosolids have been marketed and applied to agricultural lands for decades as a fertilizer. However, WWTPs often receive wastewater from all sorts of industrial and commercial sources, and we have learned that many toxic contaminants, including harmful per- and poly2luoroalkyl substances (PFAS) or “forever chemicals,” are also found in significant quantities in the sludge and land-applied biosolids – a fact that has been documented and understood for over a decade.1
In Virginia, land applications of sewage sludge (or biosolids) are governed by the federal Clean Water Act and the Virginia Pollution Abatement permitting program.
The production of biosolids and their application to farmlands as a fertilizer product are regulated under both state and federal law. The U.S. Environmental Protection Agency (EPA) is charged with the duty to set federal standards for which toxic contaminants, and how much of them, must be removed before the sludge may be disposed of as land-applied fertilizer. Indeed, the Clean Water Act imposes a non-discretionary duty on the federal agency to identify and regulate toxic pollutants in sewage sludge.2 And EPA’s failure to regulate toxic PFAS chemicals in land-applied sludge or biosolids is the subject of one of our most recent lawsuits. Whether through continued state or federal inaction, or both, to control PFAS in biosolids, land application of PFAS-contaminated sewage sludge threatens to destroy the ability of our farmlands to produce safe food, ruin farmland for future production, contaminate our drinking water and food web, and, ultimately, poison people, leading to numerous developmental disorders, cancers, and neurodegenerative diseases, among others.3
Like many federal environmental laws, the Clean Water Act only sets the minimum standards and does not uniformly preclude states from taking action to regulate pollution, both contaminants and their sources, more stringently.4 Under state law, the State Water Control Board and the Virginia Department of Environmental Quality (DEQ) regulate land application of sewage sludge (biosolids) through the Virginia Pollution Abatement (VPA) program. Through this program, Virginia’s environmental regulators set standards for and oversee the development of pollution permits for land application of sludge, the certification of individuals to land-apply those biosolids, the involvement of the public, and management and monitoring of land application operations.5 Yet, Virginia’s environmental regulators have taken no action to address PFAS contamination of sewage sludge applied to the Commonwealth’s farmlands.
The Virginia Department of Environmental Quality and State Water Control Board have the authority to regulate land application of PFAS in sewage sludge, even if the EPA fails to act using its Clean Water Act authority.
Concerns about PFAS in land-applied sewage sludge are not unfamiliar to environmental regulators in Richmond. For instance, when the regulations implementing the VPA biosolids permitting program were reviewed in 2020, our colleagues at the Southern Environmental Law Center submitted a comment calling on Virginia to address PFAS in biosolids, outlining the specific legal authorities and duties the DEQ and State Water Control Board have at their disposal to do so.6 Under state law, environmental regulators must develop permits for land-applied biosolids that protect the state’s legal limits for water pollution (or, in legal jargon, “ensure compliance with Virginia’s water quality standards), including, for example, a prohibition on the discharge of wastes, including sewage sludge, in amounts that harm human health, plants, and wildlife.7 Moreover, VPA regulations explicitly require the agency to ensure that land applications of sludge are prevented from polluting state waters and that the public health and the environment are protected as well.8 And Virginia regulators need not take a “one size 2its all” approach to address localized concerns about PFAS contamination, because VPA regulations explicitly allow for more stringent controls on a case-by-case basis when necessary to protect human health and the environment.9
The Virginia Department of Environmental Quality refuses to address the presence of PFAS in land-applied sewage sludge and biosolids.
Virginia’s environmental regulators chose not to update VPA regulations in 2020 to address PFAS contamination of land-applied sludge and biosolids and have held 2irm in that position through present date.10 Indeed, in their response to the comment letter described above, Virginia’s regulators indicated that it was “premature” to act, in part, because the EPA was still then developing legal limits for PFAS contamination of drinking water.11 Those drinking water standards were 2irst introduced in 2023 and 2inalized by the federal agency in April 2024.12 In early October 2024, the EPA 2inalized its recommended legal limits for protection of aquatic life from PFAS contamination in salt- and fresh water and in fish tissue.13 More recently, the DEQ’s manager of its Of2ice of Land Application Programs has stated that the agency is now waiting on EPA to regulate PFAS in sewage sludge, in exercise of its federal legal authority, before taking any state action to address the threat that PFAS contamination poses to Virginia’s farmlands and waterways through the state VPA legal authorities.14
In September our staff participated in a public meeting in Westmoreland County concerning a VPA permit application made by Synagro15 – one of the Nation’s largest land appliers of sewage sludge and biosolids – to expand its operation within that county.16 We learned then that the DEQ neither requires the permit-holder to test its biosolids for PFAS nor even disclose whether it is are aware of its contamination by PFAS. Yet, we learned from Synagro representatives, when questioned, that the company does indeed have such information for some of its sources of biosolids.
Meanwhile, other states have taken action to address the threat of PFAS in land-applied sewage sludge, such as Maine which banned all land application of sewage sludge in 2022.17 In Maryland, Virginia’s neighbor along the Potomac, state regulators have instituted a moratorium on any new or expanded land applications, while also issuing guidance for how sewage sludge products should be land applied, depending on the extent of their contamination by PFAS.18
Yet, the Virginia Department of Environmental Quality has approved land application of sewage sludge from certain wastewater treatment plants known to produce PFAS contaminated sewage sludge.
Even if DEQ refuses to act by requiring PFAS sampling by Synagro and other permit applicants, or at the very least disclosure of known PFAS contamination, it cannot avoid the truth that these land-applied sewage sludge materials are contaminated by PFAS. Indeed, the manager of the Office of Land Application Programs has suggested that DEQ will not even update its fact sheet to inform participating landowners and farmers about PFAS concerns until the agency receives “additional substantive information to offer.”19 In reality, there is substantive information to offer affected farmers, watermen, landowners and communities about the risks of PFAS contamination through land application of sewage sludge – to say nothing about the availability of substantive information upon which Virginia regulators could rely to regulate PFAS in biosolids. For instance, Wild Virginia has found that at least eight WWTPs in Virginia have tested their produced biosolids for PFAS.20 All eight plants found significant levels of PFAS contamination in their sludge.21
In October, we obtained data from the Maryland Department of Environment’s own sampling of biosolids at dozens of WWTPs throughout Maryland. Virginia currently approves land application of sewage sludge coming from 22 plants located in Maryland.22 By cross-referencing the sampled plants in Maryland to Virginia’s list of approved sources of sewage sludge for land application, we found all 22 wastewater treatment plants in common. With sampling conducted by Maryland’s environmental regulators and laboratory analysis performed by Maryland’s health department,23 Maryland’s data demonstrate significant PFAS contamination in biosolids from the 22 Maryland WWTPs that DEQ has approved for land application in Virginia, at least as recently as 2023.
- All 22 WWTPs in Maryland, approved by Virginia regulators as sources of biosolids for land application in Virginia, were sampled by Maryland for PFAS contamination.
- Of the 22, only one WWTP was not tested for PFAS in its biosolids; however, testing of its in2luent and ef2luent detected elevated levels of PFAS chemicals, as was the case for all the plants with biosolids sampled.
- Maryland found elevated levels of PFAS chemicals in the biosolids of all 21 WWTPs tested, among those approved by DEQ to apply to Virginia’s farmlands.
- Of the 21 WWTPs with biosolids tested, Maryland looked at the presence and extent of 40 different PFAS chemicals, including Per2luorooctanesulfonic acid (PFOS) and Per2luorooctanoic acid (PFOA).
- Of the biosolids tested by Maryland in 2023 at these 21 WWTPs, the state’s lab detected a range of PFOS of 2,110 to 30,200 parts per trillion (ppt) (mean value of 12,452 ppt), and a range of PFOA of 0 to 9,780 ppt (mean value of 3,652 ppt) among them.
- For reference, EPA has finalized drinking water limits for both PFOS and PFOA of 4 ppt to protect human health.24 The Agency has, for example, also 2inalized recommended legal limits for PFOS and PFOA contamination in freshwater rivers and streams of 250 ppt and 100,000 ppt, 25 respectively, which are designed to protect aquatic life such as 2in2ish.26
- Maryland’s data show a range of 48,960 to 330,683 ppt (mean value of 154,820 ppt) in the combined total of all 40 PFAS chemicals tested in these biosolids samples.
- Half of the DEQ-approved plants had their biosolids sampled for PFAS more than one time, with some sampled as many as six times, as early as 2021 and as recently as this past summer.
Meanwhile, Synagro and DEQ are expanding the company’s sewage sludge land applications throughout Virginia.
In September, the DEQ publicly noticed Synagro’s application to expand its VPA permit to land-apply sewage sludge in Westmoreland County to add 1,973.1 acres to the 2,557.7 currently approved, after the permit was last modified for expansion in January 2019.27 Most of these agricultural lands fall within the watersheds of the Nomini and Lower Machodoc Creeks, tributaries of the Potomac. More recently, the agency has also noticed permit expansion applications by Synagro for land application of sewage sludge in Essex County (adding 6,337.2 acres to the 25,759.3 acres currently approved) and Culpeper County (adding 253.5 acres to the 331.1 acres currently approved). Between the two counties alone, Synagro proposes to land-apply sewage sludge on a total of 32,681 acres within the Rappahannock River watershed. Drafts of all three proposed permits for public comment are expected in the coming weeks and months.
DEQ has recently approved Synagro’s applications to expand land application of sewage sludge elsewhere in the state, including in Frederick County where the company is now permitted to land-apply sludge on some 6,000 acres near Winchester, all within the Shenandoah and Potomac watersheds. The agency also recently approved Synagro’s permit expansions in King William County (adding 794.2 acres for 13,073.4 total acres now approved) and Bedford County (adding 2,261.6 acres of 7,999.4 acres now approved).
What needs to be done:
- To start, the Youngkin administration and Virginia’s environmental regulators should require all VPA permit-holders to disclose PFAS contamination of land-applied biosolids and incorporate sampling requirements in VPA permits, designed to both ascertain PFAS contamination in land-applied biosolids as well as the lands (and downstream waterways, including shell2ish beds) where the biosolids are applied.
- Virginia’s environmental regulators should take immediate action on a case-by-case basis to limit certain permitted land applications of PFAS-contaminated biosolids and, like Maryland, also issue guidance to landowners and permitholders on whether or how to apply biosolids contaminated by PFAS at various levels.
- State lawmakers should continue to expand resources for implementation of the VPA program, as above, while also continuing to invest in public research into the fate and transport of PFAS contamination through land application of biosolids on Virginia’s farmlands.
1 Venkatesan, AK, Halden, RU. National inventory of perfluoroalkyl substances in archived U.S. biosolids from the 2001 EPA National Sewage Sludge Survey. J Hazard Mater. (May 15, 2013).
2 33 U.S.C. § 1345(d).
3 What are the health effects of PFAS?, Agency for Toxic Substances and Disease Registry, U.S. Department of Health & Human Services, https://www.atsdr.cdc.gov/pfas/health-eYects/index.html (Last accessed Nov. 7, 2024); Delcourt N, et al., First Observations of a Potential Association Between Accumulation of Per- and Polyfluoroalkyl Substances in the Central Nervous System and Markers of Alzheimer’s Disease. J Gerontol A Biol Sci Med Sci. (Mar 1. 2024).
4 33 U.S.C. § 1370.
5 9 VAC § 25-32-10 et seq.
6 Letter from Carroll Courtenay, Southern Environmental Law Center, to Melissa Porterfield, Virginia Dept. of Env. Quality, Re: Comments on the Periodic Review of the Virginia Pollution Abatement (VPA) Permit Regulations (9 VAC 25-32), June 15, 2020.
7 9 VAC § 25-32-100(A)(1); 9 VAC § 25-260-20(A).
8 Va. Code § 62.1-44.19:3(B).
9 9 VAC § 25-32-315.
10 State Water Control Board, Periodic Review and Small Business Impact Review Report of Findings, Virginia Pollution Abatement (VPA) permit (9VAC25-32), Town Hall Agency Background Document Form: TH-07, September 22, 2020.
11 Id. At 12.
12 PFAS National Primary Drinking Water Regulation, 89 Fed. Reg. 32532 (Apr. 26, 2024).
13 Final Recommended Aquatic Life Criteria and Benchmarks for Select PFAS, 89 Fed. Reg. 81077 (Oct. 7, 2024).
14 Ivy Main, Is sewage sludge laced with ‘forever chemicals’ contaminating Va. farmland? No one’s testing it., Virginia Mercury, Sept. 26, 2024. Available at https://virginiamercury.com/2024/09/26/is-sewage-sludge laced-with-forever-chemicals-contaminating-va-farmland-no-ones-testing-it/.
15 Doing business as Synagro Central LLC.
16 Our Capabilities, Synagro Technologies Inc., https://www.synagro.com/about-synagro/our-capabilities/ (Last accessed Nov. 7, 2024).
17 An Act To Prevent the Further Contamination of the Soils and Waters of the State with So-called Forever Chemicals, L.D. 1911, 130th Maine Legislature, Second Regular Session (Enacted, Apr. 20, 2022).
18 PFAS in Biosolids Regulatory Update – August 20, 2024, Maryland Department of Environment, https://mde.maryland.gov/PublicHealth/Pages/PFAS-in-Biosolids-Regulatory-Update.aspx (Last accessed Nov. 7, 2024).
19 Ivy Main, Is sewage sludge laced with ‘forever chemicals’ contaminating Va. farmland? No one’s testing it., Virginia Mercury, Sept. 26, 2024.
20 Id.
21 Id.
22 Approved Biosolids Sources, Rev. 08/26/2024, Virginia Department of Environmental Quality, https://www.deq.virginia.gov/home/showpublisheddocument/25448/638610588789170000 (Last accessed Nov. 6, 2024).
23 The Maryland Department of Health Laboratories Administration utilizes the EPA Standard Method 1633 for detection and quantification of PFAS in biosolids. Available at
https://www.epa.gov/system/files/documents/2024-01/method-1633-final-for-web-posting.pdf (Last accessed Nov. 11, 2024). The method tests for 40 different PFAS chemicals, as follows: PFBA, PFPeA, PFHxA, PFHpA, PFOA, PFNA, PFDA, PFUnA, PFDOA, PFTrDA, PFTeDA, PFBS, PFPeS, PFHxS, PFHpS, PFOS, PFNS, PFDS, PFDoS, 4-2 FTS, 6-2 FTS, 8-2 FTS, PFOSA, NMeFOSAA, NEtFOSA, NMeFOSA, NEtFOSA, NMeFOSE, NEtFOSE, HFPO-DA, ADONA, 9CI-PF3ONS, 11CI-PF3OUdS, PFEESA, PFMPA, PFMBA, NFDHA, 3-3FTCA FPrPA, 5-3FTCA-FPePA, and 7-3FTCA-FHpPA.
24 PFAS National Primary Drinking Water Regulation, 89 Fed. Reg. 32532 (Apr. 26, 2024).
25 Measured as a 4-day average and “[n]ot to be exceeded more than once in three years, on average.”
26 Final Recommended Aquatic Life Criteria and Benchmarks for Select PFAS, 89 Fed. Reg. 81077 (Oct. 7, 2024).
27 VPA Public Notices, Land Application – Virginia Pollution Abatement, Virginia Department of Environmental Quality https://www.deq.virginia.gov/permits/public-notices/water/land-application-virginia-pollution abatement-vpa/ (Last accessed Nov. 7, 2024).
