On Wednesday, November 19, AGC General Counsel Leah Pilconis testified before the Senate Environment and Public Works Committee on the construction industry’s 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).
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 the testimony, AGC highlighted the various ways that contractors may unintentionally encounter PFAS and how the designation of PFOA and PFOS under CERCLA creates further issues for the construction industry, such as increased project costs, lost bids on projects, further disposal distances and owners that refuse to test for PFAS due to the strict penalties surrounding them. Ms. Pilconis’ testimony emphasized how the CERCLA designation ultimately increases trucking and handling costs for contractors, that CERCLA leads to increased material disposal costs, causes consulting, testing and insurance costs to skyrocket and that it limits the use of recycled materials within construction.
AGC’s testimony asked 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 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.