PFAS deregulation uncertain, NAPA pushes for liability protection

Bottom Line: Given the partisan nature of Congress, EPA Administrator Zeldin’s past and current position on PFAS, and ongoing litigation over EPA’s prior PFAS Superfund and other rulemaking, it is unlikely the short-term future of PFAS regulations will change. This is compounded by EPA’s January 2025 assessment of PFAS toxicity, identifying it as one of the most toxic chemistries known to humankind – which continues to be questioned throughout the professional toxicology community. Regardless, NAPA’s Government and Regulatory Affairs Team continues to aggressively advocate for environmental liability protection during RAP utilization. Read more below:

While President Trump and EPA Administrator Zeldin have made some progress in trying to roll back certain environmental rules, the current status and short-term future of PFAS regulations appear unlikely to significantly change. Meanwhile, there has been some movement toward increased flexibility for implementing PFAS drinking water standards, which were finalized in June 2024. However, the Administration has less statutory authority to revise the PFAS CERCLA/Superfund hazardous substance designations, finalized in April 2024, because those final rulemakings are outside the Congressional Review Act ‘look-back’ date criteria. Therefore, the existing Superfund liability potential for PFAS-caused environmental damages can still be used as a primary basis for private litigation, creating ongoing risk to NAPA Producer members. We are now seeing limited claims against asphalt mix producers, especially for drinking water contamination. 

NAPA continues to explore all avenues for providing some type of liability exemption for ‘passive receivers’ of PFAS-containing raw materials, which could potentially include mix producers. As we did last Congress, we are again working with lawmakers to promote protective legislation that would exempt passive receivers. Unfortunately, political partisanship in the last Congress likely played a role in preventing passage of that liability exemption legislation, and this Congressional makeup appears similar, making passage of a broader passive receiver liability shield difficult or unlikely.

However, NAPA is keenly focused on advocating for inclusion of ‘reclaimed pavements’ under the existing (and little-known) CERCLA/Superfund liability exemption for certain ‘recycled materials.’ We think this is a simpler, achievable, and more feasible way, for now, to better protect against liability for passively receiving and manipulating PFAS-containing raw materials like reclaimed pavements. NAPA is working diligently to include this (and other liability protections) in the surface transportation reauthorization package.

Compounding the problem, conventional wisdom indicates that EPA Administrator Zeldin is in a difficult position on PFAS. As a former New York State Senator and U.S. Representative, Zeldin was an advocate for PFAS regulation and has made it clear his overall position will not be compromised. Similarly, it appears EPA’s hands are tied a bit by its prior PFAS Superfund designation rulemaking, which, along with EPA’s January 2025 IRIS toxicological assessment of PFAS (more on that below), provides ongoing authority to ‘regulate’ PFAS to increasingly unachievable and unmeasurable low threshold levels. This is compounded by some bipartisan support for more stringent PFAS regulations, illustrated by this Congressional letter to EPA Administrator Zeldin and signed by 40 Democrat and 4 Republican U.S. Representatives. And while NAPA is working with both the U.S. Chamber and American Chemistry Council to provide ongoing non-financial support in litigating EPA’s PFAS Superfund designation, any real success will take time.

Importantly, the underlying basis for these extraordinarily low PFAS regulatory criteria is steeped in EPA’s PFAS toxicological assessment under its Integrated Risk Information System (IRIS). After reviewing the IRIS report (linked above) and EPA’s IRIS database, and communicating with external consultants, NAPA’s Vice President for EH&S has concluded the following, supported by this trade article and highlighted by this review of deficiencies associated with the IRIS program:

The PFAS IRIS Toxicological Assessment released on January 13, 2025, identifies certain PFAS chemistries as the second-most toxic chemical known to humankind – 100,000 times more ‘toxic’ than the chemical warfare agents phosgene or hydrogen cyanide. However, this is unsupported by the majority of professional (industrial) toxicologists, is unquestionably an artifact of how EPA assessed the hazard of these chemistries, and simply does not pass the red face test. Road construction companies are now looking at pavement disposal costs, in certain circumstances, of up to 30 times more than the actual project cost – notably, in a low-bid environment. Therefore, liability relief is needed for industries that are unaware of PFAS content in their supply chain raw materials and that do not purposefully add such chemistries in the production of their finished products. NAPA is assembling a small group of industry professionals to better articulate a path forward to help our members and industry navigate risks related to working with PFAS-containing materials.