Legislative Developments on PFAS Liability Release

Legislative Developments on PFAS Liability Release

On May 3, Senator Cynthia Lummis (WY), along with Senators John Boozman (AR), Kevin Cramer (ND), Lindsey Graham (SC), Markwayne Mullin (OK), Peter Ricketts (NE), Dan Sullivan (AK), and Roger Wicker (MS) sponsored a package of five bills regarding PFAS release liability which were referred to the Committee on Environment and Public Works. Each of these bills exempted a specific type of organization from CERCLA obligations regarding the release of per and polyfluoroalkyl substances. This includes agricultural operators, solid waste/compost operators, water/wastewater treatment facilities, AFFF users and airports. The bills prevent any third party, including federal and state governments or Indian Tribes, from recovering costs or damages from these groups.

Under bill S. 1432, also known as the Fire Suppression PFAS Liability Protection Act, “an entity with a fire suppression system installed, or otherwise in use, in accordance with applicable Federal, State, and local fire codes” that uses AFFF containing PFAS would be exempted from CERCLA liability. It defines the lawful discharge of AFFF containing PFAS as discharge from “equipment calibration, firefighter training, a timed-response drill, a scheduled release, an emergency response activity, or the use of a fire suppression system”. The bill requires that the fire suppression system “conforms to applicable Federal State and local fire codes” and “is compliant with the most recently approved engineering standards at the time of the discharge.” The liability exemption ends 5 years after the date that approved engineering standards no longer require the use of AFFF. Notably, the bill does not include liability from damages or costs stemming from “gross negligence or willful misconduct” in the discharge of PFAS.

The Committee on Environment and Public Works must now review the bills and negotiate any changes before voting on whether to present the bill before the full Senate. ILTA is closely monitoring any developments around this legislative initiative and continues to provide input to key decision makers in the administration and Congress to ensure ILTA’s members’ positions and concerns are being addressed. The full text of the bill can be found here and below.

Bill – S. 1432

SECTION 1. SHORT TITLE.

This Act may be cited as the “Fire Suppression PFAS Liability Protection Act”.

SEC. 2. EXEMPTION UNDER CERCLA.

1. Definitions.—In this section:

1. COVERED PERFLUOROALKYL OR POLYFLUOROALKYL SUBSTANCE.—The term “covered perfluoroalkyl or polyfluoroalkyl substance” means a non-polymeric perfluoroalkyl or polyfluoroalkyl substance that contains at least 2 sequential fully fluorinated carbon atoms, excluding gases and volatile liquids, that is a hazardous substance (as defined in section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601)).

2. INDIAN TRIBE.—The term “Indian Tribe” has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).

3. LAWFUL DISCHARGE.—The term “lawful discharge”, with respect to an aqueous film forming foam agent, means a release of the aqueous film forming foam agent through equipment calibration, firefighter training, a timed-response drill, a scheduled release, an emergency response activity, or the use of a fire suppression system.

4. PROTECTED ENTITY.—The term “protected entity” means an entity with a fire suppression system installed, or otherwise in use, in accordance with applicable Federal, State, and local fire codes that uses an aqueous film forming foam that contains a covered perfluoroalkyl or polyfluoroalkyl substance.

2. Exemption.—Subject to subsection (c), no person (including the United States, any State, or an Indian Tribe) may recover costs or damages from a protected entity under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) for costs arising from a release to the environment of a covered perfluoroalkyl or polyfluoroalkyl substance.

3. Requirement.—Subsection (b) shall only apply if the release of the covered perfluoroalkyl or polyfluoroalkyl substance resulted from the lawful discharge of an aqueous film forming foam in connection with a fire suppression system that—

1. conforms to applicable Federal, State, and local fire codes; and

2. is compliant with the most recently approved engineering standards at the time of the discharge.

4. Savings Provision.—Nothing in this section precludes liability for damages or costs associated with the release of a covered perfluoroalkyl or polyfluoroalkyl substance by a protected entity if the protected entity—

1. acts with gross negligence or willful misconduct in the discharge of the covered perfluoroalkyl or polyfluoroalkyl substance; or

2. continues to use an aqueous film forming foam agent in the fire suppression system of the protected entity on or after the date that is 5 years after the date on which approved engineering standards were updated to no longer require the use of an aqueous film forming foam.