ILTA Meets with White House, EPA Officials to Convey Terminal Industry Priorities on PFAS Phase-Out

On January 10, 2022, EPA submitted for White House regulatory review its highly anticipated proposal to designate the two most widely studied per- and polyfluoroalkyl substances (PFAS), PFOA and PFOS, as hazardous substances under the federal Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). If finalized as expected, the implications of the rule will be massive, as EPA’s proposal is likely to result in a cascade of EPA investigation and enforcement at impacted sites, as well as private party cost recovery litigation.

ILTA requested and was granted a meeting with officials from the White House Office of Management and Budget (OMB) which also included representatives from several key EPA offices. 

ILTA emphasized that for decades, industries like the liquid terminal and aviation have relied upon firefighting foams containing PFAS (also known as AFFF) to protect communities, workers, commodities, and infrastructure from potentially dangerous fire hazards and environmental risks from fire events, including air pollution. As alternative foams are developed and deployed, it is critical that these protections remain in place.

ILTA explained that given the unique potential safety and air pollution hazards that could occur because of the rare, but possible, fire events at liquid terminals and airports, many states have provided extensions or waivers for these two industries. Seven of the 11 states with restrictions in place have provided such extended timelines or waivers for both liquid terminals and airports – with liquid terminals often having the longest transition time due to the challenges faced when suppressing fires at their facilities.

While significant fire events at terminals are rare, responsible facility management demands that terminal operators maintain capabilities to respond quickly and effectively to fire events when they do occur. It is critical to note that OSHA regulations have long required liquid terminals to maintain sufficient fire extinguishing equipment in accordance with approved engineering standards.

To that end, Underwriters Laboratory is still in the process of certifying alternative foams for commercial use and the National Fire Protection Association (NFPA) has recently conducted a variety of reports, studies and standards related to alternative firefighting foams. NFPA’s research on alternative foams has recognized the significant progress and capabilities of alternative firefighting foams across many applications. However, at this time, they are not a drop-in substitute and further research is needed for certain fuel types – many of which liquid terminals manage.

ILTA contends that OSHA regulations and the available UL and NPFA standards have had the effect of requiring terminals to use PFAS-based foams. In light of this, it would be improper for the government to penalize terminals by imposing retroactive liability for PFAS clean-up, as would be the case if terminals are not exempted from Superfund provisions. 

For more information on ILTA’s advocacy regarding a safe, well-managed transition to fluorine-free foams, please contact kclay@ilta.org.