Courts Expected to Settle CERCLA Liability Question Over Biosolids Use

Environment attorney Jeff Porter was featured in an Inside PFAS Policy article discussing the increasing uncertainty over potential Superfund liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for using biosolids that contain per- and polyfluoroalkyl substances (PFAS). He highlighted that unresolved legal questions, such as whether these biosolid applications fall under CERCLA's "normal application of fertilizer" exemption and what due diligence is necessary for liability protection, are likely to be addressed by courts. Mr. Porter additionally noted that although federal guidance from the U.S. Environmental Protection Agency (EPA) is not binding for private lawsuits or state law claims, legislative changes could offer more lasting protection, even if such action is unlikely soon. He further explained that the ASTM/AAI standard only limits liability for prospective buyers instead of exempting it and stressed that attention to PFAS issues has been essential for prudent purchasers since at least the Biden Administration's 2021 PFAS roadmap.

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