On Wednesday, November 19, AGC General Counsel Leah Pilconis testified before the Senate Environment and Public Works Committee on the construction industry’s cost and liability concerns over the Environmental Protection Agency’s designation of two forms of PFAS, PFOA and PFOS, as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
AGC urges Congress to consider taking four actions to limit contractors’ PFAS liabilities: ensure CERCLA liability cannot be transferred onto contractors, direct EPA to establish clear disposal and reuse standards for PFAS waste, reduce risk around cost estimates and schedules due to PFAS and take actions to ensure PFAS enforcement does not increase the cost of the construction of critical infrastructure.
In the testimony, Leah highlighted the various ways that contractors may unintentionally encounter PFAS and how the designation increases costs, reduces bidding, and discourages owner testing while shifting risk to contractors. Ms. Pilconis’ testimony provided examples of increased trucking, handling, and disposal costs for contractors. Including examples of new consulting and testing fees as well as uncertainty over insurance coverage. And how the risk is limiting the use of recycled materials in construction, which leads to increased material costs.
Under CERCLA, any party that encounters a hazardous substance, whether knowingly or unknowingly, can be found liable as a polluter and will be responsible for paying penalties and cleanup costs. For contractors, this means that if PFOA or PFOS are unintentionally encountered on projects years ago, they will be forced to pay for its cleanup costs even though they do not manufacture PFAS.
In addition to AGC, the committee heard testimony from an executive within the recycling and waste industry and a Congressional Research Service environmental attorney. AGC thanks members of the committee for including us in today’s hearing and for their comprehensive line of questions.
For more information, please contact Leah Pilconis or John Chambers.