On September 17, the Trump administration announced it would move forward with defending the Biden administration’s so called “Forever Chemicals” rule, which carries with it significant liabilities for contractors. AGC of America is a party to an ongoing lawsuit challenging the 2024 designation of two per- and polyfluoroalkyl substances (PFAS) as hazardous substances. The rule leaves thousands of contractors with increased uncertainty on future projects as well as in jeopardy of extensive Superfund cleanup costs for contamination they did not cause.
AGC initiated the lawsuit after the Biden administration took a novel approach to designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). AGC maintains that EPA did not properly account for the cost on the construction industry or other passive receivers (entities that did not manufacture the chemicals yet must manage them within their sites or facilities such as wastewater treatment plants). The concern for contractors is two-fold: 1) no compliance path to manage PFAS on projects and 2) contractors may have unknowingly interacted with the chemical in dirt or groundwater on projects throughout their company’s operations. The chemicals were widely used for several decades. Trace amounts can even be found on sites without a history of development.
Looking forward, the construction and development industries have no good, clear way to manage these risks. Instead the risk is often shifted to contractors. Some members have chosen to walk away from projects due to the potential liability or face handling increased testing, trucking, and disposal costs with no clear risk-sharing mechanisms.
In meetings with EPA, AGC identified other, more effective approaches to clean up legacy PFOA and PFOS. We will continue to update members on litigation efforts as well as regulatory developments.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.