Airport Alert: House Committee Approves Airport Liability Exemption Ahead of Vote on PFAS Bill

During consideration of a bill to regulate PFAS late yesterday, the House Rules Committee approved a proposal to provide a liability exemption for airports that are required by federal regulation to use firefighting foam that contains so-called "forever chemicals." The House is expected to approve the legislation on Thursday, but proponents face stiff opposition in the Senate and at the White House.

 

PFAS Action Act: As we have reported, the PFAS Action Act of 2019 (H.R. 535) would require EPA to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous materials under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) within one year. The bill would also call on the agency to consider designating other PFAS as hazardous materials within five years. The House Energy and Commerce Committee initially approved the measure in November 2019.

 

Liability Protection for Airports: Last night, the Rules Committee adopted a manager's amendment from House Energy and Commerce Committee Chairman Frank Pallone (D-NJ) that would add new liability protection for airports. According to a committee summary, the amendment "creates an exemption from liability for federally required uses of PFAS at airports, so long as such use follows FAA standards and guidance."

 

Specifically, the Pallone amendment states that no sponsor, including for the civilian portion of joint-use or shared-use airports, can be held liable under CERCLA "for the costs of responding to, or damages resulting from" a release of PFAS into the environment. There are two conditions: 1) the airport is required to use foam containing PFAS under Part 139; and 2) the use of firefighting foam is "carried out in accordance with Federal Aviation Administration standards and guidance on the use of such substance."

 

AAAE has been working closely with committee leaders and staff to gain a liability exemption for airports in the PFAS Action Act. During consideration of the defense authorization bill last year, we also helped to convince lawmakers to reject a House-passed proposal that would have required EPA to designate PFAS as hazardous materials under CERCLA. We have been making the point that airports should not be held liable since they are required by federal regulation to use firefighting foam that contains PFAS and have no approved alternatives.

 

While the addition of a CERCLA liability exemption to the PFAS Action Act is a positive development, we are still in the opening stages of what will be a long conversation with policymakers on this issue. As the PFAS debate persists on Capitol Hill, we will remain actively engaged and continue to urge the FAA to identify fluorine-free firefighting foam alternatives as quickly as possible.

 

 

The House Rules Committee made several amendments to the PFAS Action Act eligible for votes tomorrow, as listed below:

 

Building Code Inspectors/Fire Marshalls: Reps. Rob Woodall (R-GA) and Mark DeSaulnier (D-CA) filed a bipartisan amendment that aims to ensure that FAA, state and local building code inspectors and fire marshals are at the guidance-making table. A summary of the amendment states, "This will result in a broader collaborative dialogue that includes the risks posed by the use of foam suppression systems in aviation hangars."

 

Firefighting Foam Alternatives: An amendment from Rep. Elissa Slotkin (D-MI) would require the EPA, in consultation with other relevant government agencies, to report to Congress on efforts to identify viable alternatives to firefighting foam and other related equipment containing PFAS.

 

Clean Air Act Designation: A bipartisan group of lawmakers filed an amendment that would require the EPA, within 180 days, to issue a final rule listing PFOS and PFOA as hazardous air pollutants under the Clean Air Act. The proposal would also ensure that EPA has access to the needed science before making regulatory decisions on other PFAS chemicals to harmonize with other CERCLA provisions in the legislation, according to an amendment summary.

 

CERCLA Designation: Rep. Michael Burgess (R-TX) proposed an amendment to strike the section of the bill that directs the EPA to designate PFAS as hazardous substances under CERCLA.

 

Infrastructure Grant Program: Rep. Cindy Axne (D-IA) filed an amendment to authorize the PFAS Infrastructure Grant Program for an additional three years.

 

EPA Study: An amendment from Rep. Andy Levin (D-MI) would require, within five years, a study of EPA actions under CERCLA to clean up PFAS contamination sites.

 

 

Although the House appears poised to pass the PFAS Action Act tomorrow, it is unlikely to progress further in Congress. Senate Environment and Public Works Committee Chairman John Barrasso (R-WY) and other GOP leaders have been outspoken about their opposition to Democratic efforts regarding PFAS. Barrasso also helped to keep out the controversial PFAS-related CERCLA language from the final defense bill.

 

Veto Threat: The White House also opposes the bill and threatened to veto the measure in a Statement of Administration Policy issued this week. The White House message notes that, if implemented, the bill would "create considerable litigation risk, set problematic and unreasonable rulemaking timelines and precedents, and impose substantial, unwarranted costs on Federal, State, and local agencies and other key stakeholders in both the public and private sectors."

 

The White House statement also says that "States, local governments, public water systems, and other potentially responsible parties are likely to encounter barriers to compliance and unintended negative consequences, such as significantly reduced effectiveness of firefighting capabilities."