Firm News

Jimmy Slaughter Quoted in Inside EPA on PFAS Designation as a CERCLA Hazardous Substance

Inside EPA featured the observations of Principal Jimmy Slaughter (Washington, DC) on potential Superfund liability for PFAS in an article titled “EPA Eyes ‘Avenues’ To Expand PFAS Superfund Liability Relief.” The article discusses the U.S. Environmental Protection Agency’s (EPA) recent listening session with stakeholders advocating to limit CERCLA liability for water utilities and similar entities that are the recipients of polyfluoroalkyl substances (PFAS) rather than the manufacturers of the materials.

In 2022, EPA proposed to designate certain PFAS as CERCLA hazardous substances, and the rule-making process is underway. Designation of a chemical as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) can lead to litigation and liability for sources of the hazardous substances found at Superfund sites or other property that has to be remediated.

At the EPA forum in late March 2023, water utilities and others expressed concerns regarding Superfund’s expansive liability scheme, and that EPA assurances regarding enforcement discretion were insufficient. This is particularly problematic because of the expansive rights of Potentially Responsible Parties (PRPs) to bring contribution litigation against other entities that are alleged to be additional sources of hazardous substances at a cleanup site. Many entities are advocating for express carve-outs from liability for certain sources of PFAS, given how ubiquitous the chemicals are at low amounts in consumer products, wastewater, solid waste, and the environment generally.

Inside EPA quoted from Jimmy’s remarks on the issue at a Water Environment Federation webinar in 2022. Jimmy supported seeking clear Congressional and Agency actions to limit liability for PFAS, but also noted that in regard to wastewater residuals used as fertilizer – biosolids -- there are “several layers of defense from liability,” including possible protections through Clean Water Act discharge permits. Jimmy added, “I think we can have a fair amount of confidence that that fertilizer exemption, which Congress put in place when it passed CERCLA, is going to protect biosolids from any liability for PFAS being a hazardous substance.”

He explained that land application of biosolids has been a part of federal and state laws under the Clean Water Act for many decades. EPA has new risk assessment work on PFAS in biosolids underway that should slow state efforts to regulate PFAS in biosolids. He compared ongoing concerns about PFAS in biosolids to dioxin fears in the 1990s, and EPA ended up deciding in 2001 against regulating dioxin in biosolids because of the low risk. Jimmy also challenged assumptions regarding the toxicity of PFAS and potential health impacts.

A Chambers-ranked lawyer, Jimmy Slaughter is 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.

This article originally appeared at It is reprinted here with permission of the publisher, Inside Washington Publishers. Copyright 2023. No further distribution is permitted. The content of this article does not represent the views of Inside Washington Publishers or its staff. IWP and its publications take no position on this article's subject matter or any other issue.