The Office of the Texas State Chemist, Dr. Tim Herrman, is proposing to ban the use of biosolids that are labeled and marketed as fertilizers because they contain per- and polyfluoroalkyl substances (PFAS). In the preamble to the proposed rules (49 TexReg 6863) published in the Texas Register on September 6th, it justifies the changes because: “This prevents application of forever chemicals founds [Sic] in waste products from permanently contaminating farm ground and water systems in Texas.”

The proposed rules fall under the Texas Agriculture Code, Title 4, Part 3, Chapter 65, which applies to commercial fertilizer rules. There are proposed changes to two sections that will impact biosolids. The State Chemist is proposing to add a new Section C to Section 65.13 of the existing regulation, stating that:

(c) The waste products shall not contain any deleterious or harmful substance in sufficient amount to render it injurious to beneficial plant life, animals, humans, aquatic life, soil, or water when applied in accordance with directions for use on the label.  

It also adds a requirement under Section 65.24 for a “warning or cautionary statement” for any fertilizer product if it “Contains any deleterious or harmful substance in sufficient amount to render it injurious to beneficial plant life, animals, humans, aquatic life, soil, or water.” It is not clear what “sufficient amount” means.

The proposed new regulation comes despite an existing program of regulation under the Texas Commission on Environmental Quality. The State Chemist does have the legal authority to regulate products labeled as fertilizers. In the preamble to the proposed regulation change, the State Chemist comments on the impacts of the proposed rules changes. It is estimated that the rules will impact approximately 34 firms and 100 tons of waste product. The last number seems extremely low based on information from the National Biosolids Data Project (NBDP) -- www.BiosolidsData.org. According to NBDP, the State of Texas used or disposed of 473,800 dry tons of biosolids in 2018. About 11%, or 52,532 tons ended up as Class A/EQ product and most likely labeled as fertilizers.  

The proposal also states that there will be no fiscal implications from the rule changes for the first 5 years nor any impacts on state and local government. The Public Benefit Cost Statement is weak with no consideration of the impact to farms and farmers. The impact statement does, however, mention a $50 per ton cost for the required analyses and to manage the risk which is significant. Under the Government Growth Impact Statement, it states that the new rule “neither creates or eliminates a government program” and “doesn’t eliminate existing employee positions”.

Comments on the proposed regulation were due on October 6th. The Water Environment Association of Texas (WEAT) and many other organizations and WRRFs have submitted comments on the proposal.   

Back in August, NEBRA coordinated a meeting between the Maine Water Environment Association and WEAT when it was learned that a move may be afoot in the Texas legislature to ban biosolids land application. It turns out Maine and Texas have a lot in common, with respect to what happens with their biosolids. Both have no incineration options. Both are/were majorly reliant on land application end uses with landfilling making up the remainder. Farmers are major political player in both states. Hopefully, Texas will not follow Maine down an unsustainable path by limiting end use options to landfilling. The precarious situation in Maine remains unresolved with the ban on out-of-state bulky wastes slated to resume in July 2025. These materials are critical for mixing in large proportion with the wet biosolids to avoid slumping and other issues at landfill.

The proposed Texas regulation may be in response to one legal action in Johnson County involving biosolids labeled as fertilizers. The product liability complaint alleges that biosolids fertilizer, marketed by Synagro and applied a few years prior to the claim, caused ground water contamination and human and animal health impacts. Recently, that case has been dismissed in Maryland (Synagro’s headquarters) and will be refiled in Texas.  For more reading about various legal actions involving biosolids, read previous article PFAS in Biosolids Litigation — NEBRA (nebiosolids.org).