AGC provided input to the U.S. Environmental Protection Agency (EPA) at its March 23 “listening session” focused on the likely creation of a federal enforcement discretion policy to help address some of the unfounded and misplaced legal risks and cost to industry (i.e., potentially responsible parties) stemming from the agency’s recent regulatory proposal to designate two of the most widely used per- and polyfluoroalkyl substances (PFAS) as hazardous substances. AGC has been raising the alert to Congress and EPA that certain regulatory approaches to address PFAS could overwhelm cleanup initiatives and drastically impact liability for general contractors on everyday projects for dewatering, moving dirt, or demolishing an existing structure. AGC highlighted the fact that enforcement discretion does not protect innocent contractors from being mired in environmental cleanup lawsuits for common actions on construction sites: such as disposing of dirt that tested clean at the time but may have contained trace amounts of the targeted PFAS.
AGC followed up its verbal remarks on enforcement discretion with a written statement to EPA on March 30, 2023.
At the heart of this issue is EPA’s 2022 proposal to regulate certain PFAS as hazardous under Superfund law. Superfund (or CERCLA) allows the government and private entities to hold parties responsible for the cleanup costs if they are found to have any connection (operator, arranger, transporter) to the release of hazardous substances. This means that Superfund could make a contractor “jointly and severally” liable for 100 percent of the cleanup costs at designated sites, even if the release of PFAS occurred decades ago and the contractor contributed only a small degree to the present contamination. AGC responded to EPA’s proposal stating that EPA’s approach will trigger liability concerns across a general contractor’s entire portfolio—past, present, and future. 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 the Superfund program.
There are approximately 5,000 PFAS in use in a wide variety of common commercial products like cosmetics, apparel, carpeting, sealants, and fire-retardants. EPA is focusing most of its efforts on a handful of PFAS, chiefly perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) that are considered ubiquitous, meaning that trace amounts are found nearly everywhere.
For more information, please contact Melinda Tomaino at melinda.tomaino@agc.org.