Judicial review case may push forward new rules for testing ‘forever chemicals’ in sludge

Sewage sludge, sometimes described as biosolids, is produced by treating sludge from the wastewater recycling process. In the UK, as in the US, sludge is commonly spread to agricultural land as a fertiliser.

The case, brought against the EA by the environmental campaign group, Fighting Dirty, concerns the EA’s strategy for safe and sustainable sludge use, which was first published in 2020 and later updated in August 2023. The strategy aims to address the presence of “new hazards” in sewage sludge, such as micro-plastics and poly- and perfluoroalkyl substances (PFAS), commonly known as ‘forever chemicals’, to ensure its safe use as fertiliser for agricultural land.

Although the spreading of sludge to agricultural land is currently regulated by the 1989 Sludge (Use in Agriculture) Regulations, the requirement to test sludge does not cover microplastics and PFAS, as well as other modern compounds which have been identified in sludge. The EA’s strategy proposes to bring sludge into the existing Environmental Permitting (England and Wales) Regulations (EPR). Initially, the EA said regulations would be introduced by mid-2023 to achieve the proposed regulatory changes. However, in the updated version published in August 2023, the deadline was removed with no further details on timing of the legislative change. 

Fighting Dirty’s judicial review alleged the agency’s move to remove the target date without replacing it with another one was unlawful. However, the court has dismissed the case, saying that the power to enact the regulatory changes set out in the EA’s sludge strategy does not lie with the agency, but with the Department for Environment, Food & Rural Affairs (Defra).

Katie Hancock of Pinsent Masons said that the outcome of this judicial review was expected by many commentators, as the Environment Agency did not have the statutory power to effect changes to legislation which its target date aspired to.

“It is clear that the agency maintained a resolve to reform the rules on sludge, which the court described as ‘unstinting’, but the process appears to have been delayed by constraints at DEFRA. The court observed that the agency had engaged with Defra about a new target date, but that the department had not wanted anything concrete to be said. The court considered that the adoption of a new target date in these circumstances would not have been conducive to a good working relationship with Defra, and found that the agency’s decision not to replace the target date was not unreasonable,” she explained.

The EA’s sludge strategy expressly states that “doing nothing is not an acceptable option”. According to Hancock, sludge and, in particular, its PFAS content, is also a current topic of interest in the US, where high levels of PFAS have been detected in farmland spread with sewage sludge.

“Some farmers have alleged that sludge containing high levels of PFAS has been the cause of their own ill-health, or that of their livestock, and certain states have even moved to withdraw farmland from use for agriculture, where high PFAS levels have been detected. This has led to a lawsuit against biosolids provider Synagro, and a separate claim against federal regulators, alleging that it had failed to address the issue of PFAS in sludge. The impact of these developments on the UK’s policies regarding sludge, if any, remains to be seen,” Hancock said.

However, Hancock added that “the publicity attracted by this judicial review may increase prioritisation of this issue at Defra, particularly following the change of government”.

Regulatory law expert Fiona Cameron of Pinsent Masons said that the term PFAS covers a vast range of different substances, and this makes their study and risk management incredibly difficult. “The data and assessment of potential toxicity and risk varies considerably across the group and is not available for all PFAS. The science on PFAS is still evolving and a direct causative link with harm is yet to be established,” she said.