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By: Alec D. Tyra
Per-and-Poly Fluoroalkyl Substances (PFAS) are a broad class of manmade, highly stable chemicals. PFAS exhibit both grease repelling (lipophobic) and water repelling (hydrophobic) properties due to their unique chemical structure. These unique properties have contributed to the use of PFAS in a number of consumer and industrial products including common construction materials.
This list is non-exhaustive, as PFAS compounds are ubiquitous in many consumer and industrial products. The widespread use and overall chemical stability of PFAS lead to increasing accumulation of compounds in the environment. However, PFAS are now associated with a host of negative health effects, leading to efforts to regulate PFAS under the major federal environmental statutes, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
CERCLA imposes a strict, cradle-to-grave liability standard for environmental remediation costs. By imposing this standard, CERCLA achieves its broad policy goal: holding parties responsible for past environmental contamination. To be held liable to any other party under CERCLA, a contractor or engineer must first fit the criteria of being a Potentially Responsible Party (PRP). CERCLA § 107(a) lists four broad categories of persons as PRPs. 42 U.S. Code § 9607. These are: Current Owners/Operator, Past Owner/Operator, Arrangers and Transporters. These categories can be summarized as:
(a) the present owner of a facility from which there has been a release of a hazardous substance;
(b) the present operator of a facility;
(c) the owner of the facility at the time of disposal or release;
(d) the operator of the facility at the time of disposal or release;
(e) anyone who arranges for the disposal or treatment of hazardous substances or who arranges with a transporter for disposal of hazardous substances;
(f) any transporter of hazardous substances; and
(g) an owner of a facility with knowledge of a spill or release of hazardous substances who sells or transfers without disclosing.
PFAS compounds have been the subject of increased scrutiny at the Federal and State level. Recent regulatory activity has focused on imposing liability for environmental contamination for specific PFAS compounds, with the goal of imposing liability for the entire class. As discussed in a recent FMG blog post, these efforts are likely to result in listing at least some PFAS compounds as “hazardous substances” under CERCLA. Contractors and other construction professionals face potential liability as an operator of a facility at the time of disposal of PFAS containing materials, an arranger for disposal of PFAS containing materials, or a transporter of PFAS containing materials to and from construction sites.
Contractors and other construction professionals should watch PFAS regulation closely and consult with their suppliers to identify construction materials that could subject them to liability under CERCLA.