ILTA Developing Legislation on PFAS Transition

ILTA is engaged in a two-pronged approach on PFAS issues impacting the liquid terminal industry.

First, ILTA is working on transition legislation to provide a transparent pathway and timeline away from PFAS-based firefighting foams. ILTA is working with a coalition of other organizations, the Natural Resources Defense Council (NRDC) and the International Association of Firefighters (IAFF), to advance PFAS-transition legislation. This legislation would provide a transparent pathway to move away from PFAS-based firefighting foams. Some of the highlights of the legislation are:

• End the sale of firefighting foam containing PFAS;
• Phase out the use of firefighting foam containing PFAS;
• Prohibit the disposal of firefighting foam containing PFAS, including via incineration, landfill, underground injection and export, until a safe disposal method is identified;
• Provide a reasonable transition period accounting for the need for larger systems to replace their foam delivery systems;
• Require foam manufacturers to take back all unused foam (including from DOD);
• Require foam and PFAS manufacturers to safely store all unused foam until EPA has identified a safe method of disposal that eliminates PFAS;
• Ensure the expenses for take back and storage will be shared between foam manufacturers and PFAS manufacturers (rather than the taxpayer or private business entities);
• Require manufacturers of PFAS-containing firefighting gear to notify purchasers that it contains PFAS with written notice and labels on the gear.

Second, ILTA is working to address PFAS and possible environmental liability, primarily via the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (also known as CERCLA or “Superfund”).  In late June 2023, the United States Senate Environment and Public Works Committee (EPW) sought comments on draft legislation addressing PFAS. EPW solicited comments about the possible impact of PFAS policy to different sectors, such as liquid terminals.

On July 14, ILTA submitted its comments to EPW. ILTA’s comments included discussion of the need to have an orderly transition away from PFAS-based firefighting foams. And, as part of that transition, ILTA discussed the need to address CERCLA liability. Specifically, ILTA commented that historic uses of PFOA and PFOS have been required by federal regulation and that holding liquid terminals strictly liable is incredibly problematic for the liquid terminal industry and the supply chain. EPW is expected to take further actions on this topic in the coming months.

On July 20, 2023, ILTA hosted a member call to discuss the impact on the liquid terminal industry of PFAS and CERCLA. The call focused on the recent draft legislation by EPW. The ILTA call discussed two possible legislative options that are being considered to help ILTA members. The first is to limit liability from third-party suits by having liquid terminals be defined as “passive receivers” of PFAS. This would be a new definition that would exclude certain entities that meet the new definition of passive receivers from CERCLA liability via third-party suits for past PFAS contamination.

The second would be a new method of limiting liability with the U.S. EPA and third-parties by essentially creating a permitting program to allow for ongoing PFAS clean-up and pay into a Superfund sub-account dedicated to AFFF cleanups.  Each approach has its benefits and drawbacks, which were discussed in detail by ILTA President, Dr. Kathryn Clay.

ILTA is continuing to advocate for its members and engage on this meaningful legislative issue. Please visit the ILTA PFAS Resource Center on the ILTA page. Please email Chris Meilink at cmeilink@ilta.org if you need help accessing the Members’ only part of ILTA.org