Inside EPA recently featured the observations of Principal Jimmy Slaughter (Washington, DC) on Superfund liability for PFAS in an article titled “Lawyer Touts CERCLA Waivers For Biosolids As EPA Readies PFAS Rule.” The article tracked Jimmy's comments in the Water Environment Federation (WEF)'s recent webinar on PFAS and wastewater that Jimmy participated in as a panelist. The webinar, "PFOA/PFAS is Here to Stay: Utilities’ Perspectives and Task Force Updates," updated over 500 participants on legislative and regulatory issues concerning the U.S. Environmental Protection Agency (EPA)’s proposed designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) hazardous substances.

Jimmy emphasized that land application of biosolids – treated wastewater solids – has long been approved under federal and state law under the Clean Water Act, and has a robust risk assessment and decades of experience vouching for its safety. EPA has new risk assessment work on polyfluoroalkyl substances (PFAS) in biosolids underway that should slow state efforts to regulate PFAS in biosolids. He equated recent concerns about PFAS in biosolids to dioxin fears in the 1990s, and EPA ended up deciding in 2001 to not regulate dioxin in biosolids because of the low risk.

Jimmy noted that he doesn’t think the “biggest threat is designation of PFAS as CERCLA hazardous substance” because “we have several layers of defense there.” His main point was that “CERCLA has always had in the statute a carve-out form liability for “fertilizer” used for agricultural purposes,” which exactly describes biosolids.

He also stated that land application of biosolids and other beneficial uses allowed under Part 503 “should qualify as a federally permitted release that is not subject to CERCLA liability.” But Jimmy noted that an express Congressional carve-out for PFAS in wastewater effluent, incinerator emissions, and biosolids would be ideal. He also stressed that industry needs to scrutinize the aggressive assumptions being made regarding PFAS toxicity and risk, and the need for better cost-benefit analysis of PFAS regulations under development. EPA last week issued the proposed rule designating PFOA and PFOS as CERCLA hazardous substances, the subject of this article by Beveridge & Diamond.

A Chambers-ranked lawyer, Jimmy is recognized as a leader in mass tort, class action, and constitutional litigation involving chemicals, solid waste, drinking water, wastewater, and biosolids. Law360 named Jimmy an “MVP” for 2020, and American Lawyer selected him as a Runner-Up for Litigator of the Week five times in 2019, 2020, and 2021.

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