AGC submitted comments (coalition and construction-specific) on a recent U.S. Environmental Protection Agency (EPA) proposal to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund as it is more commonly known). As previously reported, a CERCLA designation would trigger the cleanup of contaminated sites and introduce liability to contractors (regardless of fault) that may have unknowingly interacted with the chemicals by moving dirt, dewatering, or demolishing structures on previously “clean” jobsites.
PFOA and PFOS are two types of per- and polyfluoroalkyl substances (PFAS) and are no longer produced in the United States. There are approximately 5,000 PFAS in use in a wide variety of common commercial products like cosmetics, apparel, carpeting, sealants, and fire-retardants. PFOA and PFOS are considered ubiquitous, meaning that trace amounts are found nearly everywhere.
In its comments, AGC urged EPA to withdraw its proposal, evaluate exposure risks, prioritize PFAS clean-up efforts, and lay the foundation for necessary clean-ups through other existing authorities that allow a more nuanced and workable approach than CERCLA’s Superfund program. AGC members will be at the front lines of any remediation efforts. AGC supports a measured approach to environmental challenges such as PFOA and PFOS—or other emerging chemicals of concern. Over the last several years, AGC has shared concerns with Congress and EPA that how they approach the PFAS challenge could drastically increase construction costs, increase risk, and quickly overwhelm any necessary clean-up efforts.
In its proposal, EPA did not sufficiently consider the widespread implications of its proposed course of action—dismissing clean-up and compliance costs, ignoring impacts to innocent contractors, and creating widespread liability for public and private entities. EPA needs to conduct a comprehensive regulatory impact analysis. EPA proposed this rule in the absence of sufficient treatment, disposal, or destruction options. EPA has not assessed the capacity of existing hazardous material landfill space and other infrastructure to manage an influx of these wastes (contaminated soil and treatment media). Lastly, EPA failed to engage with small businesses about potential impacts.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.