The Importance of Mitigating CERCLA Liability for Bulk Liquid Terminals Over PFAS Firefighting Foam Use

From clothing to cookware, flame retardant per- and polyfluoroalkyl (PFAS) chemicals have become ubiquitous in our daily lives. For bulk liquid terminals specifically, PFAS compounds are used in aqueous film-forming foams (AFFF) or film-forming fluoroprotein foams (FFFP) foams because of their exceptional ability to create a stable and effective firefighting foam, particularly for extinguishing liquid fuel fires, such as those involving gasoline, jet fuel, or oil.

Due to their near-indestructability and persistence in local environments where they are used, however, states and the federal government are increasingly focusing on the environmental and public health consequences from the use of PFAS-based products. In March 2024, the Senate Environment & Public Works Committee held a hearing on, “Examining PFAS as a Hazardous Substance.” One month later in April, the Environmental Protection Agency (EPA) issued the first-ever national, legally enforceable drinking water standard to protect communities from exposure to harmful PFAS, while also finalizing a rule to designate two widely used PFAS – PFOA and PFOS – as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund.

As discussion continues over who should be found liable under Superfund for the cleanup of any potential contamination, it is critical to understand the role of terminals as “passive receivers” of AFFF rather than “active contributors”. In short, terminal facilities do not produce or profit from PFAS foam manufacturing, but rather have held and utilized the products to meet the standard for chemical site safety for the last few decades. At the same time, bulk liquid terminals often lack direct control over the formulation and use of firefighting foams containing PFAS compounds, typically acting as lessees or operators of facilities where firefighting activities occur rather than manufacturers or developers of firefighting foam products. The decision to use PFAS-based foams has been dictated by regulatory requirements, industry standards, and the availability of effective alternative firefighting technologies to date.

Moreover, firefighting activities involving PFAS-based foams are often mandated by regulatory agencies to mitigate the risks associated with liquid fuel fires, such as those involving petroleum products stored at bulk liquid terminals. The Federal Aviation Administration (FAA), for instance, requires airports and aviation-related facilities to maintain firefighting capabilities compliant with specific performance standards, which may necessitate the use of PFAS-based foams. Similarly, as previously mentioned, terminals not located at airports utilized PFAS foams to meet the Occupational Safety and Health Administration (OSHA)- required engineering standards for fire safety.  As such, bulk liquid terminals are compelled to use these foams to comply with regulatory requirements aimed at safeguarding public safety and preventing catastrophic fires.

Placing the significant financial burden of addressing PFAS contamination on terminal companies will have considerable detrimental consequences for the entire liquid product supply chain. Cleanup costs associated with PFAS contamination can be substantial due to the complexity of remediation technologies and the extensive nature of environmental monitoring and restoration efforts required. As passive receivers, holding bulk liquid terminals liable for these costs incurred only to comply with safety regulations would be inequitable.  Furthermore, it would impede their ability to fulfill their essential role in storing and distributing liquid products critical to various industries and consumers nationwide.

In summary, attributing liability largely to bulk liquid terminals overlooks the complex supply chain and regulatory landscape influencing the use of PFAS-based foams. The terminal industry remains committed to a safe, effective transition from PFAS-based firefighting foams. Likewise, The International Liquid Terminals Association welcomes the opportunity to work with regulators and lawmakers on a viable solution to this issue.

BIC Magazine - Mitigating CERCLA liability for PFAS foam use (bicmagazine-digital.com)