Nearly every state within the US snowbelt has begun to examine the impact of winter road salt use on the surrounding environments. Numerous studies have begun to link road salt use on the salinization of surrounding freshwater bodies and the impact on freshwater flora and fauna.
And while the lens of scrutiny is focused on winter rock salt use by departments of transportation and municipal service departments, many insiders on the commercial side of winter snow and ice management believe it won’t be long for collateral blame to shift in their direction.
Therefore, the question for contractors is not if liability exposure is coming, but when and for what applied products. From a legal perspective, let’s shed some light on the potential liability for ice-melt applications and more likely exposure for work completed in the warmer months.
While federal statutes posing potential liability discussed later in this article do not currently include salt application, questions remain regarding the impact salt and other ice-melt applications have on soil and groundwater. Environmental Protection Agency (EPA) studies have shown that as ice melt products make their way from road and pavement surfaces into soil, lakes, and streams, they have the potential to contaminate drinking water reservoirs and wells. Researchers suspect these applications alter freshwater chloride levels, which then become toxic to fish, bugs, and amphibians.
As a result, will the EPA, state or more local agencies seek to ban or limit application of certain ice-melt materials, or impose penalties such as remediation costs on anyone who could have contributed to the end result? In fact, several jurisdictions – including New Hampshire and Rhode Island – have already limited the allowable amount of deicer that can be applied because of the environmental concerns.
Separate and apart from concern of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the, Resource Conservation and Recovery Act (RCRA), and Clean Water Act talked about later in this article, there is a general concern whether these limitations will impact service quality. For example, if brine mixtures have too low a level of salt, or a certain percentage of sand is required in mixtures, will pavement or concrete services remain slippery.
Additionally, if states, counties, and townships require increased levels of product such as sand, there are concerns over blocking drainage, leading to increased re-freeze conditions throughout a property.
Many snow professionals provide landscaping services during the warmer months, and there appears to be clear liability being imposed for application of certain toxic materials called Per-and-Poly Fluoroalkyl Substances (PFAS). These are a broad class of synthetic, 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 numerous consumer and industrial products including common construction materials. In addition to fertilizers and pesticides, they include other common construction products. This includes roofing materials, weather-proofing membranes, metal coatings, paints and adhesives, to name a few.
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 CERCLA, RCRA, and the Clean Water Act. The EPA has started rule-making processes for PFAS under each of these statutes. The EPA should finalize its PFAS rules under CERCLA before it finalizes rules under RCRA and the Clean Water Act. Therefore, “when” contractors are facing liability for PFAS under CERCLA is coming sooner rather than later.
CERCLA imposes a strict, cradle-to-grave (application-to-cure) 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 include:
- The present owner of a facility from which there has been a release of a hazardous substance;
- The present operator of a facility;
- The owner of the facility at the time of disposal or release;
- The operator of the facility at the time of disposal or release;
- Anyone who arranges for the disposal or treatment of hazardous substances or who arranges with a transporter for disposal of hazardous substances;
- Any transporter of hazardous substances; and
- An owner of a facility with knowledge of a spill or release of hazardous substances who sells or transfers without disclosing.
Contractor Liability Under CERCLA
PFAS compounds have been the subject of increased scrutiny at the federal and state levels. 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. 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.
On Jan. 10, 2022, the EPA submitted a proposal to the White House Office of Management and Budget that will designate PFOA and PFOS as “Superfund hazardous substances.” In designating PFOA and PFOS (collectively “PFAS”) as a “hazardous substance” under CERCLA, the EPA can force parties responsible for PFAS contamination to pay for remediation. If the Office of Management and Budget does not object to the EPA’s proposal within 90 days, the proposal will be subject to public comment and will likely become a final rule in 2023.
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.
Authors Alec D. Tyra is an associate attorney at Freeman Mathis and Gary’s Sacramento office; and Josh Ferguson is a partner and co-chair of FMG’s Philadelphia office and the ASCA’s legal counsel.