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EPA Proposes to Designate Two Designate Two PFAS as Hazardous; Triggers Liability for Cleanups

On September 6, 2022, the U.S. Environmental Protection Agency (EPA) proposed the designation of 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).  This action, if finalized as proposed, would trigger reporting requirements and ultimately the cleanup of contaminated sites.  AGC is concerned about the designation as a contractor may have unknowingly interacted with the chemicals on jobsites that had not previously been considered contaminated—and CERCLA does not include an “innocent contractor” provision.  AGC requested a 60-day extension on the comment period, which currently will close on November 7, 2022.

General contractors need “innocent contractor” safeguards in place to protect them.  Superfund liability is not nuanced and would extend to past work on projects long ago completed.  PFOA and PFOS would not likely have been included in site assessments that are used to increase awareness of possible site contamination—meaning a contractor could be blind to their liability threats. 

The liability of these types of chemicals in general is increasingly becoming a concern on normal, “everyday” projects where trace amounts may be found in soil, groundwater, materials, or debris.  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 and fire-retardants.  AGC has shared concerns with Congress and EPA that a one-size-fits-all approach to lump all PFAS as hazardous would drastically increase construction costs, increase risk, and quickly overwhelm cleanup efforts. 

There are no federal rules to date governing the disposal PFAS, although individual states are taking regulatory action.  EPA recently set a very low health advisory limit for a few types of PFAS in drinking water.  EPA also has recommended that states use the National Pollutant Discharge Elimination System (NPDES) for stormwater discharges to control PFAS contamination “at the source” and obtain more data on PFAS from permittees.  EPA also recently proposed changes to select fact sheets associated with the NPDES Multi-Sector General Permit for industrial processes to add PFAS considerations. You can find more information on EPA’s actions here.

AGC will comment on the proposal by the November 7 deadline.  If you would like to share your thoughts on the proposal or want more information, please contact Melinda Tomaino at melinda.tomano@agc.org.

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