Superfund Is Not the Way to Regulate Bulk Terminal Firefighting Foam

Last week, the International Liquid Terminals Association (ILTA) filed comments with the Environmental Protection Agency on a proposal to regulate PFAS-containing aqueous-film forming foam (AFFF) under the under the nation’s Superfund law (Comprehensive Environmental Response, Compensation & Liability Act of 1980).

In short, there are complicated decisions that have to be made, in which preserving human life and health is a priority and stakeholders must take a thoughtful and collective approach to also protect the environment. And ILTA is leading just such an effort. 

Bulk liquid terminals owners and operators are stewards of the nation’s environment, and terminals operated by members of the ILTA  actively support, and engage in, a wide range of best practices to ensure sustainability and safety. 

Challenges are never-ending, including the rare circumstance in which a significant fire occurs at terminal facilities. For decades, the tank storage industry has relied upon PFAS-containing foam to protect communities, workers, commodities, and infrastructure from potentially dangerous fire hazards and environmental risks from fire events. Bulk liquid terminal operators have acted in good faith to carry out their responsibilities and obligations under law.

At the same time, ILTA recognizes the science showing that new technologies are needed to supplant the historic role played by PFAS. Consequently, ILTA members support a standardized and nationwide transition away from PFAS-based firefighting foams, and are working actively with groups such as the Natural Resources Defense Council and others to advance federal legislation that would accomplish that goal.

For these reasons, ILTA opposes EPA’s proposal to regulate PFAS as a “hazardous substance” under the Superfund law. The proposal potentially turns every bulk liquid terminal site in the United States into a Superfund site.

With the CERCLA classification of PFAS as “hazardous substances,” there is a very real and imminent concern that bulk liquid terminal operators would be legally and financially responsible under CERCLA for simply adhering to best safety practices and OSHA’s own regulations to suppress fires.

While the bulk liquid terminal industry is transitioning from firefighting foams that contain PFAS, this will take time and existing stocks remain at some locations — as well as at other critical facilities in the U.S., including airports and local fire departments. When there is a major fuel fire at any location, the continued availability and use of such foams in the near term may represent one of few effective tools for controlling the fire and preventing serious threats to public health.

Superfund was never intended to penalize good actors, but rather to penalize bad actors and provide future notice to those who assume the cleanup of these sites. Bulk liquid terminal operators are responsible owners and often spend tens of millions of dollars annually to dispose of PFAS firefighting foam waste, in efforts to not contaminate their land or nearby communities.

We strongly encourage the agency to consider how to avoid using a blunt, regulatory instrument, like Superfund, when a more precise and carefully measured approach can and must be taken. One promising pathway is pending congressional legislation that would exempt bulk liquid terminals that have PFAS contamination caused by good faith firefighting use in accordance with regulatory requirements at the time of use. 

Legislation offered by Wyoming Senator Cynthia Lummis (R-Wyo.) would amend the CERCLA definition of “owner or operator” to explicitly exclude owners or operators acting in good faith in accordance with regulatory requirements to use and train with PFAS-based firefighting foams.

ILTA recognizes the acute policymaking challenges posed by this set of issues, and we respect the vitally important work that EPA is undertaking to address PFAS through the agency’s PFAS Council and the PFAS Strategic Roadmap. Moreover, ILTA members are committed to moving away from PFAS as quickly as practicable, while remaining dedicated to a safe, orderly, and industry-wide transition.

But we firmly believe that the sweeping regulatory approach proposed by EPA is not in the best interests of the U.S. economy or the countless customers who are ultimately served well by the nation’s bulk terminal owners and operators. ILTA stands ready to partner with EPA on these important issues and to lead the industry work to discontinue use of these products.