Put your organic chemistry thinking caps on for an introduction to per- and polyfluoroalkyl substances, an enormous family of chemicals commonly known as PFAS. They are referred to as “forever chemicals” because they do not break down and can bioaccumulate in humans and other living organisms, with some known to be toxic.
With more than 5,000 structures and over 9,000 identified chemistries, PFAS are present everywhere in the environment and will remain so for generations.
PFAS Everywhere
PFAS are used in a wide variety of industrial processes and commercial products. Two of the most studied are perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). PFOS was a key ingredient in the stain repellant Scotchgard and was used in surface coatings for common household items such as carpets, furniture, and waterproof clothing. PFOS was also included in fire-fighting foams used at airports, fuel refineries, and other facilities.
PFOA was used in the production of many products including nonstick coatings for cookware (Teflon); coatings for carpets, upholstery, and clothing; floor wax; sealants; and even some dental flosses. While PFOS and PFOA are no longer produced in the U.S., products containing them are still in circulation in homes and businesses.
CERCLA
Comprehensive Environmental Response, Compensation, and Liability Act
The U.S. Environmental Protection Agency (EPA) is proposing to designate both PFOS and PFOA as hazardous under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The proposal was published in the Federal Register in September and comments were due Nov. 7, 2022. An industry coalition has formed to urge the EPA to slow down and reevaluate. If the designation is adopted, it would be the first time the EPA has used CERCLA instead of one or more of its other commonly used regulatory tools to make a hazardous designation.
CERCLA is unwieldy and triggers extreme liability. The EPA has several effective tools (such as the Resource Conservation and Recovery Act and Safe Drinking Water Act) that it can use to facilitate and fund cleanup without listing PFAS under CERCLA. Also, there is no approved cleanup plan for PFAS. The EPA has not sufficiently considered the implications and cost-benefit of its proposed course of action.
The Impact on Construction
If adopted, the effects to the construction industry could be quite costly. First there are limited options for treatment and disposal of PFAS. CERCLA carries with it strict, retroactive, joint and several liability that applies to owners, operators, arrangers, and transporters regardless of fault.
Moreover, a hazardous substance designation for PFOA/PFOS would impact contractual obligations between general contractors and their owner/developer clients and suppliers/service providers, as well as third-party legal claims/litigation.
For example, if a contractor used fill material from a quarry and did due diligence at the time to determine the fill was “clean,” yet later tests showed PFAS contamination, then the property owner will seek legal action against the contractor, who would then need to seek compensation from the quarry.
Furthermore, contract specifications that tell the contractor to select disposal sites or to identity an outside source of material will pose a huge risk to the contractor for liability. Contractors will not only need to be concerned with activities related to project sites, but also with their own yards and material pits. Finally, unaware contractors may inadvertently sign off as generators or transporters.
The construction industry’s primary trade association, Associated General Contractors of America (AGC), is actively involved in curtailing this designation and working toward a better solution.
No one argues that these chemicals don’t belong in the environment, but how to pay for, clean up, and dispose of them is at the core of the debate. Also vastly understudied is the acceptable human exposure/consumption limits before being considered toxic.
As an aside, the Minnesota Pollution Control Agency is the first state government to use state-of-the-art innovative water treatment technology for PFAS.
