On August 8, 2024, the Coosa River Basin Initiative (CRBI), an environmental organization based in Georgia,  and the City of Calhoun, Georgia (the City), announced that they had reached a proposed settlement in a citizen suit case involving alleged violations of the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) focused solely on the City’s land application of PFAS-containing biosolids.

CRBI, through its counsel at Southern Environmental Law Center, filed a complaint in the U.S. District Court for the Northern District of Georgia on March 7, 2024, against the City and the owner of property used for land application of the City’s biosolids. The Complaint included the following alleged CWA violations:

• The City’s land application of PFAS-contaminated biosolids onto land that was hydrologically connected to navigable waters through groundwater was the “functional equivalent” of discharging PFAS directly into navigable waters without an NPDES permit;

• That PFAS are a toxic pollutant and that the City, therefore, violated its existing NPDES permit by failing to “take all reasonable steps to minimize or prevent any discharge or sludge disposal which might adversely affect human health or the environment,” provide notice to downstream users and take reasonable steps to prevent injury when a toxic substance has been discharged, and enforce noncompliance with any applicable pretreatment standard or requirement.

The Complaint further alleged that the City’s land application of PFAS-containing biosolids constituted handling hazardous waste in a manner that presents “an imminent and substantial endangerment to health or the environment” under RCRA. 42 USC § 6972(a)(1)(B).

The City and CRBI reached a settlement just five months after the Complaint was filed and before the City had answered or otherwise responded to the Complaint. Thus, it is difficult to draw any conclusions about how these claims will fare in similar cases because the result here was reached without litigating the viability of the CWA and RCRA claims against the City.

Even so, the settlement is notable for the significant and onerous requirements that this City agreed to even before EPA has completed its risk assessment for land application of biosolids or developed any corresponding regulatory limits for PFAS in biosolids that are land applied. Specifically, under the proposed Consent Decree, the City is agreeing to meet stringent PFAS limits in biosolids that are land applied and to undertake significant efforts to limit or eliminate PFAS in its other processes. These requirements include:

• Temporary cessation of all land application of biosolids and diversion of all biosolids to either or both a solid waste disposal facility with a leachate collection system and liner or a hazardous waste disposal facility until all biosolids are confirmed to meet the Safe Drinking Water Act maximum contaminant levels (MCLs) for certain PFAS (or a comparable limit for biosolids, once developed).

• A blanket prohibition on land application of all biosolids, regardless of PFAS content, on land located less than a mile from the Coosawattee River and the groundwater wells or springs providing source water to the City’s drinking water treatment plants.

• Emergency upgrades to the City’s drinking water treatment plants to comply with the PFAS MCLs.

• Investigation and implementation of permanent water treatment upgrades, and results of monthly PFAS sampling and analysis must be made available to the public.

• Wastewater treatment process modifications to achieve end of pipe effluent discharges in compliance with EPA’s December 5, 2022, Guidance on Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs (PFAS NPDES Guidance).

• Pretreatment program updates including a survey of industrial dischargers, including carpet manufacturers, regarding PFAS use and discharges, and imposition of best management practices (BMPs) on the industrial users that use PFAS, as established in EPA’s PFAS NPDES Guidance. BMPs may include eliminating or reducing use of PFAS products, minimizing accidental discharge by optimizing operations, and cleaning or replacing contaminated equipment.

• PFAS testing of private wells located within the service area of two of the treatment plants and within two miles of a current or formerly approved biosolid land application site. If PFAS levels exceed 75% of the MCL concentrations (for example, a 3 ppt reading when 4 ppt is the limit), the City must offer municipal drinking water service if available, or, if not available, install a point-of-entry home filtration system to be maintained by the City for ten years.

The consent decree also includes the designation of a third-party monitor to oversee the City’s compliance for three years. And the City agreed to “vigorously” pursue cost recovery in an existing Georgia state case involving PFAS manufacturers and companies utilizing PFAS, and any other litigation that “may arise.”  The parties also separately agreed to an attorney fee award for an amount not disclosed in the Consent Decree.

Given the limited disposal options for biosolids and the lack of any federal regulatory limits for PFAS in biosolids that are land applied, or PFAS that are discharged under the CWA, the position taken by this City (and the extent of its agreements) is of interest to both POTWs and any entities that discharge PFAS into navigable waters.  There have been several recent cases filed alleging CWA and RCRA violations associated with PFAS discharges, and this settlement represents an early example of the types of injunctive relief plaintiffs may be seeking to resolve their claims.

The legal landscape around PFAS is constantly evolving, and this case represents a significant step toward understanding the challenges that POTWs and other PFAS dischargers may face. For help navigating federal and state PFAS laws, contact a member of Taft’s Environmental group.