AGC has filed a lawsuit challenging the EPA’s recent PFAS rule which puts contractors at risk as “potentially responsible parties” (PRPs) under CERCLA.

As previously reported, AGC has filed a lawsuit challenging the U.S. Environmental Protection Agency’s (EPA) recent rule “Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances” (89 Fed. Reg. 39124, May 8, 2024; effective July 8, 2024). AGC appreciates the many members who shared examples of how the rule impacts their businesses, ensuring that the legal challenge is rooted in real-world concerns with the rule.

The risk to contractors is especially pronounced on airport runway and taxiway and related infrastructure construction, as those facilities have historically used Aqueous Film-Forming Foam (“AFFF”) firefighting foams containing PFOA and PFOS.

Numerous AGC members also report that the PFAS rule has led to increased consulting, transportation, and disposal costs for contractors handling PFOA- and PFOS-containing hazardous substances, which further complicates compliance and project management under the new rule.

The opening brief for the petitioners (AGC and others*) was filed on November 4 with the U.S. Court of Appeals for the District of Columbia. The brief focuses on these primary legal arguments:

1) EPA misinterpreted the “substantial danger” threshold and disregarded the broader structure of CERCLA;

2) EPA’s cost analysis was released after the fact and without public feedback and it failed to consider costs to small entities;

3) EPA promulgated the rule without factoring in the consequences of their actions as they have no knowledge of where PFOA and PFOS are located nor how to clean them up, the costs or other impacts; and

4) that these violations warrant the standard remedy of vacating the rule.

AGC’s supporting impact statement emphasizes the concern that members, as a result of the final rule, may be newly subject to liability risk for costly clean-up/remediation as “potentially responsible parties” (PRPs) under CERCLA, by reason of their incidental earthmoving, recycling and disposal, and dewatering activities on projects. 

* Petitioners are the Chamber of Commerce of the United States of America (Chamber), Associated General Contractors of America, Inc. (AGC), National Waste & Recycling Association (NWRA), Institute of Scrap Recycling Industries, doing business as the Recycled Materials Association (ReMA), American Forest & Paper Association (AF&PA), American Chemistry Council (ACC), and American Fuel & Petrochemical Manufacturers (AFPM).

For more information, please contact Leah Pilconis at [email protected] or Melinda Tomaino at [email protected].