ILTA Comment on Proposed Revisions to CCR 1007-3, Part 267, Subpart Q – PFAS AFFF rules

December 6, 2023

Mr. Trent Mitchell

Environmental Protection Specialist

CDPHE/HMWMD

4300 Cherry Creek Drive South

Denver, CO  80246

               RE:  Comment on Proposed Revisions to CCR 1007-3, Part 267, Subpart Q – PFAS AFFF rules

Dear Mr. Mitchell:

On behalf of the International Liquid Terminals Association and our membership, we are writing to provide comment on the proposed regulations (the “Proposal”) referenced above.  Founded in 1974, ILTA advocates on behalf of the liquid terminal industry in Congress and at the federal agencies. ILTA's terminal members operate the liquid terminals and above-ground storage tank facilities (tank farms) that interconnect with and provide services to the various modes of liquid transportation, including ships, barges, tank trucks, rail cars and pipelines. The commodities handled include a large variety of chemicals, along with crude oil, petroleum products, renewable fuels, asphalt, animal fats and oils, vegetable oils, molasses, and fertilizers. The customers who store products at these facilities include oil producers and chemical manufacturers, product manufacturers, food growers and producers, utilities, transportation companies, commodity brokers, government agencies and the military.  ILTA supplier members provide a wide variety of equipment and services to the bulk liquid storage industry.

Terminal facilities of member companies and third-party response organizations for those terminals utilize firefighting equipment that in some cases involve firefighting aqueous film forming foams that contain added per- and polyfluoroalkyl substances (“PFAS AFFF”) within the meaning of the proposed rule.  We have reviewed with interest the Proposal as a representative of likely affected members of the regulated community.

Recommendation:

As ILTA has reviewed the compliance obligations in the Proposal, we have noted that revisions to proposed Subpart Q provide for “impervious” containment with respect to the use and the storage of PFAS AFFF.  As further detailed below, ILTA requests that CDPHE provide a clarification that SPCC-compliant containment (as defined by the U.S. Environmental Protection Agency’s Spill Prevention, Control, and Countermeasures) will satisfy the revised Subpart Q.

Analysis:

Sections 267.615(b) and 267.620(b)(6) of the Proposal provide for “impervious” containment with respect to the use and the storage of PFAS AFFF.  The use regulation simply requires “containment measures” that are “impervious to PFAS chemicals.”  The storage regulation, retaining language from the existing rule for storage of spent PFAS AFFF, specifies “a concrete pad(s) free of cracks and gaps and otherwise impervious to prevent releases to the environment in the event of a spill or leak,” “a liner that has sufficient strength and thickness, and that is otherwise impervious to prevent releases” or “an equivalent means of providing secondary containment.”  The term “impervious” is otherwise undefined.

ILTA suggests for CDPHE’s consideration that there is a successful body of regulations and guidance that relies on this concept of “impervious containment” that has been in place for decades and pursuant to which industry has already designed and is operating innumerable facilities.  Specifically, the U.S. Environmental Protection Agency’s Spill Prevention, Control, and Countermeasures (“SPCC”) rule at 40 C.F.R. Part 112 specifies that qualifying oil storage occur in areas with sufficient impervious containment to prevent leaks from those oil storage containers from getting outside the containment and into the environment.

In EPA’s comprehensive 2013 SPCC Guidance for Regional Inspectors (the “Guidance”), the agency notes that the rule requires secondary containment to be “constructed so that any discharge from a primary containment system . . . will not escape before cleanup occurs.”  Absent any specifications on permeability or other performance criteria in the rule, the Guidance concludes that “sufficiently impervious” does not mean “indefinitely impervious” but, rather, containment is deemed impervious if it allows “for cleanup to occur in time to prevent a discharge” that would leave the containment area and enter the environment.  See Guidance at pp. 4-29 and 4-30.

ILTA believes a clarification of the Proposal’s use of the term “impervious” along the same lines as that that provided by EPA’s SPCC rule would meet the public policy purpose of preventing significant environmental impacts from the use or release of PFAS AFFF.  The Proposal’s current language – especially the undefined “impervious to PFAS chemicals” language governing the use of PFAS AFFF – is ambiguous and such a clarification would support a clearer communication of compliance standards for benefit of the regulated community and the enforcers.  This clarification would also have the very significant benefit of not requiring facilities that were constructed or modified at great expense to meet one environmental requirement for “impervious containment” to undertake additional and inconsistent measures, also at great expense, to meet a different environmental requirement to provide “impervious containment.”  This consideration is especially important as many facilities are taking active (albeit time-consuming) measures to eliminate PFAS AFFF; to require such facilities to build new and different containment for the use and storage of chemicals that will soon be gone would be poor and wasteful public policy.  ILTA requests that CDPHE provide a clarification that SPCC-compliant containment will satisfy the revised Subpart Q.

Should CDPHE believe that PFAS AFFF containment really does require a different standard than that provided by EPA’s SPCC rule, ILTA requests that CDPHE clearly define such standard and provide a significant period of time to phase in such requirements, allowing SPCC containment to suffice in the interim.  This suggestion would recognize the regulated community’s large existing investments to satisfy the long-standing SPCC impervious containment requirement and would avoid forcing industry to undertake substantial capital projects and expenditures to retrofit facilities to meet a requirement that will be moot as soon as the facilities in question cease using PFAS AFFF.  As noted, compliance cannot be achieved overnight and if the Proposal goes into effect as written without a clarification like that referenced above (or a significant phase-in period as suggested in the alternative), many facilities will need to make such expensive modifications for no long-term gain.

In short, ILTA hopes CDPHE will consider revising the language of the Proposal to clarify that “impervious” containment within the meaning of EPA’s SPCC rules and guidance will be deemed “impervious” for purposes of the revised Subpart Q.

Very Truly Yours,

Dr. Kathryn Clay, Ph.D.

President and CEO

International Liquid Terminals Association

Life Time Work

1440 N. Edgewood St.

Arlington, VA 22201