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Contractors warn PFAS Superfund liability is raising bids, reducing competition
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Summary
The Associated General Contractors told the Senate EPW Committee that contractors face uncertain PFAS liability under CERCLA, are seeing insurance exclusions, and want Congress or EPA to establish clear liability protections, pre‑bid testing requirements, and disposal thresholds to avoid project delays and cost escalation.
Leah Pilconis, general counsel for the Associated General Contractors of America, told senators that contractors nationwide "are not PFAS polluters, they are builders," yet under CERCLA's strict, retroactive and joint‑and‑several liability, contractors who unknowingly encounter PFAS may be swept into Superfund liability. Pilconis said the uncertainty is already discouraging bidders for PFAS‑suspect projects such as airports and military installations and is driving up disposal and insurance costs.
Pilconis urged four congressional steps: amend CERCLA to protect innocent contractors as bona fide passive receivers, require EPA to issue clear PFAS disposal and reuse standards, mandate PFAS testing early in federally funded project planning so risks are known before bid time, and ensure PFAS policy does not drive up insurance and infrastructure costs. She told the committee contractors need "concentration limits that will tell us and distinguish between restricted and unrestricted uses."
Members pressed on the balance between protecting passive receivers and maintaining polluter‑pays accountability. Witnesses said settlements and EPA enforcement discretion can provide some protection, but CRS counsel Kate Bowers warned settlements are site‑by‑site and may leave parties vulnerable to third‑party suits depending on settlement terms and court interpretations of contribution versus cost‑recovery claims.
Pilconis offered specific member examples of sharply higher disposal costs when soil was routed to hazardous‑waste landfills rather than municipal sites and said earlier testing and clear thresholds would let owners and contractors price and allocate risk more fairly at bid time. The committee did not vote on legislative changes but took additional follow‑up questions for the record.
