New guide to help US contractors facing ‘unprecedented liability’ on forever chemicals

The Associated General Contractors of America (AGC) has compiled the guide to outline the key issues for construction companies to raise regarding per- and polyfluoroalkyl substances (PFAS) before projects start.

The move comes as contractors face clean-up costs where they may have encountered two PFAS compounds - perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS).

Both PFOA and PFOS were designated as hazardous substances by the US Environmental Protection Agency (EPA) under the federal Superfund law.

Image: zimmytws via AdobeStock - stock.adobe.com

The rule not only exposes contractors to clean-up costs but also drives up costs on current and future projects to manage potential contamination without a path to compliance, according to the AGC, which is challenging the rule in court.

It is arguing that the EPA’s rules “ignore the reality that construction firms are not manufacturers of PFAs” but are still being forced to shoulder uncontrollable risks.

The AGC is also calling on project owners to share the responsibility for PFAS-related risks in contracts.

Its efforts come as the Trump administration’s EPA filed a brief in federal court that defends the rule, which came into effect under former US President Joe Biden.

However, in a 17 September press release, the EPA announced that it would urge Congress to revise the strict liability framework of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, also known as the Superfund), to “protect passive receivers from liability”. That definition could potentially include contractors.

“When it comes to PFOA and PFOS contamination, holding polluters accountable while providing certainty for passive receivers that did not manufacture or generate those chemicals continues to be an ongoing challenge. I have heard loud and clear from the American people, from Congress, and from local municipalities about this particular issue. EPA intends to do what we can based on our existing authority, but we will need new statutory language from Congress to fully address our concerns with passive receiver liability,” said EPA administrator Lee Zeldin.