EPA will defend its PFAS Superfund rule in court

On Jan. 20, the U.S. Court of Appeals will hear oral arguments in whether EPA overstepped its statutory authority to designate two PFAS chemistries as Superfund Hazardous Substances based solely on whether they “may present substantial danger to public health or welfare or the environment” because they are “likely carcinogenic.”

As NAPA has previously reported, this is the first instance where EPA has designated any chemical as “hazardous” under Superfund without it first being regulated under other statutes. Superfund carries retroactive joint and several liability for cleanup of such designated materials, meaning any party, in any chain of contact, connection, or transportation of such chemistries, could be held liable for all cleanup costs associated with the chemistries, even if they had no direct control with the chemicals’ end placement. We are now starting to see asphalt mix plants embroiled in such litigation.

NAPA continues to take this issue seriously and is advocating vigorously with Congress on excluding potential liability for innocent and unknowingly parties that may transport or use materials that may contain PFAS chemistries. While we have joined coalitions where numerous industries, like water treatment and utility companies, are actively seeking liability exclusions for “passive receivers,” NAPA’s Government Affairs Team has identified an older but appropriate stand-alone statute that could be used to exempt liability for “recycling” PFAS-containing materials.