“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,” Zeldin said in a statement. “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.”

The nonprofit, nonpartisan advocacy group Environmental Working Group describes PFAS as highly toxic fluorinated chemicals that build up in humans and do not break down in the environment. Even small doses have been linked to cancer, reproductive and immune system harm as well as other diseases, it says. 

EPA’s decision—which follows the rule becoming final in April 2024  that listed PFOS and PFOA under the Superfund designation—comes as uncertainty over PFAS risks is leading to increased construction costs and disruptions of infrastructure projects, Leah Pilconis, AGC general counsel, told ENR. The rule poses significant risks for contractors because they may be held liable for multimillion-dollar cleanups of contaminated sites, regardless of their actual contribution to the contamination, she says.

“Although the construction industry does not manufacture PFAS, it may already be present on project sites,” Pilconis explains. “For some projects, the potential contamination risks are discouraging bidders, shrinking the pool of qualified contractors and increasing overall project costs.”

She said those costs include increased disposal fees, because some landfills now refuse waste, which forces contractors to haul waste longer distances to specially designated hazardous waste landfills. They also include higher consulting, testing and insurance costs, because site investigations, testing and hiring qualified environmental legal experts are costly and insurance coverage is limited.

EPA has issued an enforcement discretion policy focused on significant polluters, Pilconis said, but contractors are not protected from lawsuits by other potentially responsible parties. Contractors are left in “legal limbo” as there are no clear federal rules or guidance on the levels of PFAS in soil or groundwater that can trigger management or disposal requirements, she says, adding that there are no acceptable background concentration levels established to determine safe disposal options.

“We've had members with huge disposal costs associated with this that they didn't plan for,” Melinda Tomaino, AGC senior director of environment and sustainability, told ENR. “They've backed away from projects because owners weren't up front and did not want to explore the potential for that kind of contamination and the cleanup of it,” she said.

Last year, AGC, together with the U.S. Chamber of Commerce and the National Waste and Recycling Association, filed suit in the Washingron, D.C. federal appeals court over EPA’s PFOA and PFOS designations under the Superfund law. The litigation, which was held in abeyance while the administration reviewed its regulatory policy, is now proceeding.

The coalition is asking the court to vacate EPA’s PFAS designation rule “because it was adopted unlawfully and without proper consideration of real-world impacts on industries like construction,” Pilconis said.

Guidepost for Contractors

To help contractors better understand risks associated with PFAS at construction sites, AGC issued a guidance document earlier this week.

The 13-page General Contractors: Questions and Considerations Related to PFAS guide begins with a disclaimer that it is not designed to give legal advice but is meant to raise questions and considerations for contractors during preconstruction and project execution in “a rapidly evolving policy area.” The guide focuses on PFOA and PFOS, addressing a number of areas including pre-bid planning, contract negotiations, project execution and disposal.

“The federal government’s policy and rules regarding PFAS are under litigation, the subject of future rulemaking, and the subject of an executive branch statutory redrafting project with the U.S. Congress,” AGC says in the document. States are also deploying varying and developing policies, it adds.

“We've been hearing more concerns from our members on this, and now that the rule has been final for a year, we wanted to make sure that we were incorporating some of our members' experiences with it and some implications they've been seeing on projects,” Tomaino said.

AGC created a PFAS task force earlier this year to discuss member concerns and how best to help them understand risks. The document is the result of those discussions, she said, adding that it was not timed to be released shortly after the administration signaled a desire to retain the Biden-era rule.

“Hopefully, what the questions and considerations document will do is get contractors thinking about what they need to have in their contracts, what they need to have in their bids, what they can do to protect themselves,” Tomaino said. The hope is that “they’re just not walking into a kind of ‘PFAS minefield’ and [will] know what they’re doing.”