Clean Water Current

Courts are considering how the so-called “useful products” doctrine should apply in the context of per- and polyfluoroalkyl substances (PFAS) remediation in the early stages of litigation brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and similar state cleanup laws. 

Under the doctrine, outlined by the United States Supreme Court in the case of Burlington N. & Santa Fe Ry. Co. v. United States, parties are not liable for CERCLA cleanup costs as “arrangers” or “generators” of hazardous substance releases if they sold a “useful product” containing hazardous substances but did not then take intentional steps to dispose of those products.   

As NACWA has long anticipated, PFAS manufacturers are now claiming that the defense shields them from CERCLA liability where contamination was caused by PFAS-containing products. In the case of Central Sanitary Landfill, Inc., et al. v. Wolverine, a federal district court in Michigan is considering claims recently made by 3M that it is not responsible for any PFAS contamination at landfills caused by Scotchguard-containing materials, as its sale of Scotchguard is “a textbook example of a manufacturer selling a new, useful product [that] is not subject to CERCLA liability.” 

Conversely, in a positive development, a district court in Massachusetts  recently held that the same defense shielded biosolids producers from PFAS cleanup liability under Massachusetts’ state law. Finding that biopellets are “a useful product, not hazardous waste,” and noting that biosolids producers did not have prior knowledge of the “persistence and toxicity” of PFAS, the court determined that the sale and transport of biosolids for use as a soil amendment qualified for the “useful products” exclusion.   

While the Massachusetts ruling provides good precedent for clean water utilities, however, it is important to note that application of the “useful products” defense is highly fact-specific, and many key issues— including how CERCLA’s broad statutory definition of “disposal” may ultimately impact the availability of the defense for clean water utilities— have yet to play out in the courts.   

NACWA will continue to monitor this issue and keep members apprised of any important developments. Please contact NACWA’s Chief Legal Officer, Amanda Aspatore, with any questions.