ILTA Statement for the Record on Senate EPW Hearing on, “Examining PFAS as Hazardous Substances”

March 21, 2024,

Dear Chairman Carper, Ranking Member Moore Capito, and the rest of the esteemed Senate Environment & Public Works Committee members,

Please accept for the record the following statement from the International Liquid Terminals Association (ILTA) on the March 20, 2024 full committee hearing on, “Examining PFAS as a Hazardous Substance.”

I. Introduction

Founded in 1974, ILTA represents nearly 80 terminal companies providing critical infrastructure, storage, and transportation logistics for bulk liquid products at over 2,000 facilities in locations across all 50 states. Our members form a key link in supply chains for a wide range of commodities that are central to the U.S. economy, including crude oil, gasoline, diesel, jet fuel, ethanol, industrial chemicals, fertilizers, and agricultural oils.

II. Commitment to a Well-Managed, Strategic Transition Away from PFAS

ILTA is dedicated to safe, reliable, and environmentally responsible operations at bulk liquid terminal facilities and recognizes the potentially serious health effects of PFAS exposure. We support a safe, well-managed transition from PFAS-based firefighting foams to fluorine-free alternatives at terminal facilities and recognize the importance of providing appropriate remediation of PFAS contamination on terminal facility sites. ILTA is actively engaging on issues related to PFAS, including support for legislation to implement a national phase-out of aqueous film forming foam (AFFF) with appropriate timelines for the terminal industry to safely transition to fluorine free alternatives. Additionally, ILTA has engaged in discussions with the U.S. Environmental Protection Agency (EPA) and Congressional offices to communicate concerns related to terminals’ liability under CERCLA and the potential implications on ILTA members. EPA’s proposed designations of PFOA and PFOS as hazardous substances under CERCLA raise the potential that ILTA members could be subject to liability under CERCLA even though terminal operators’ use of AFFF was necessary to protect public safety and meet requirements of the Occupational Safety and Health Administration (OSHA) and various local, county and state building and fire codes, along with the National Fire Protection Association Codes.  

III. Support for Research and Development for Fluorine Free Firefighting Foams

For decades, the tank storage industry has relied upon PFAS-containing AFFF to protect communities, workers, commodities, and infrastructure from potentially dangerous fire hazards and environmental risks from fire events including air pollution. Many of the bulk liquid products handled by ILTA member companies demand special precautions due to their flammable properties. Firefighting professionals at terminal facilities (e.g., industrial firefighters) must address unique considerations including large-scale events, alcohol-type fires, deep tank fires, and mutual aid.

Notably, fluorine-free foams are not drop-in replacements for AFFF. The new foam chemistries vary in terms of their applicability to fire types and source, amount of foam required, application techniques, equipment, and effectiveness. The U.S. Department of Defense is running a program to development fluorine free foams that meet the military specification (MILSPEC) required, and other industry groups like LASTFIRE have undertaken R&D and testing for other applications. While this work is under way, fluorine-free foams that can be used across the liquid terminal industry are not yet available to replace existing stocks of AFFF. ILTA supports the ongoing development of fluorine-free foams to ensure PFAS contamination at terminals is minimized and mitigated, while also protecting local communities in the rare event of a fire.

IV. Compliance with State Regulations

ILTA members operate facilities in all 50 states and place high importance on complying with the various PFAS regulations in place in each jurisdiction. Certain states (e.g., California, Maryland) have implemented a ban on the use of AFFF, while others have implemented other restrictions (e.g., ban on use for testing and training).  Some states have implemented no restrictions at all. The patchwork of state policies is difficult for terminals to comply with, particularly in the rare but possible event where a large-scale fire occurs at a facility in one state that requires firefighting support from agencies across state lines. This “mutual aid” is a real-world solution for large fire events in the terminal industry. Issues are likely to arise if the state where the facility with the fire event is located has a restriction on the use of AFFF, but the firefighters providing “mutual aid” arrive using AFFF. ILTA supports a national phase-out that provides certainty and clarity, while ensuring ample time for the development of safe fluorine free foams, the replacement and re-engineering of foam suppression systems, and the training necessary for application of new foams.

V. CERCLA Liability

EPA’s proposed designation of PFOA and PFOS as hazardous substances under CERCLA raises significant issues for ILTA members about potential liability under CERCLA Sections 107 and 113(f).  Liability could arise in private entity suits under Sections 107 and 113(f), as well as in governmental suits under Sections 106 and 107.  ILTA is concerned about the fairness of holding entities strictly liable for the full cost of remediation of PFOA and PFOS contamination when their use of AFFF was required by federal and other governmental requirements and where there are still extremely limited feasible alternatives to AFFF for many fire safety applications.  EPA’s PFOA/PFOS hazardous substance designation presents a very real risk that terminal operators will be held legally and financially liable for following the best safety practices to protect firefighters, terminal employees, and the community when suppressing fires in the rare occasion that they occur. The risk of future CERCLA liability should not weigh against a facility’s options to respond to fire events.  Already, the potential CERCLA designation of PFOA and PFOS has led to instances in real-world instances where large fires were allowed to burn out rather than being suppressed with PFAS-based foams.

The uncertainty created by potential CERCLA liability could adversely affect the economics of ILTA members who are tank terminal operators, roughly half of whom are designated as small businesses by the Small Business Association.  The fair market value of a property that may be potentially classified as a Superfund site is significantly reduced due to decreased demand for the property by potential purchasers that are concerned with potential CERCLA liability exposure, plus the fact that the land can no longer be used or developed for purposes that it otherwise could be if not labeled as a Superfund site.  This is particularly concerning given that a significant portion of a liquid terminal operator’s value is composed of its commercial property value and that the potential CERCLA liability could be unresolved for many years.

Because the country cannot immediately transition out of AFFF, ILTA is also concerned about potential CERCLA liability for releases that occur during the transition away from AFFF.  The risk of future CERCLA liability should not weigh against a facility’s options to respond to fire events.  Already, the potential CERCLA designation of PFOA and PFOS has led to instances in real-world applications where large fires were allowed to burn out rather than being suppressed with PFAS-based foams.  This was due to the potential liability concerns that end-users may face with PFAS being released into the environment.  Each of these fire events can have massive negative air quality impacts and represents a risk for firefighters, employees, and surrounding communities.  ILTA encourages EPW to consider these difficult and environmentally impactful decisions that terminals are faced with as they work to maintain safety for the community and infrastructure.

ILTA supports the approach to addressing CERCLA liability found in Senator Lummis’s Fire Suppression PFAS Liability Protection Act, S. 1432.  It is based on the understanding that the existing CERCLA statute is a blunt instrument that fails to provide accommodations for industries that, for decades, were required by their regulators to use PFAS-based firefighting foams. ILTA believes the Lummis bill lays out the foundation for the conversation that all stakeholders and policy makers must have to ensure an equitable outcome that advances our shared goal of environmental protection. ILTA looks forward to participating in that conversation with EPW.

VI. Resource for Congress

ILTA appreciates the opportunity to provide its support for Congress’ work on these important issues related to PFAS. Our association would like to offer our insights and expertise as policymakers address a workable path forward for the phase-out of AFFF and the remediation of contaminated sites.

Sincerely,

Leakhena Swett

Interim-President

International Liquid Terminals Association