Airport Alert: Houses Passes PFAS Action Act With Airport Liability Exemption
Today, the House passed H.R. 2467, the PFAS Action Act, by a vote of 241-183. The bill now goes to the Senate, where the path to passage is likely difficult given partisan differences on the measure and the need for 60 votes to pass major legislation.
The legislation, among other things, designates PFOA and PFOS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, within one year and requires EPA to determine whether to list other PFAS within five years. AAAE has worked with lawmakers to include in the legislation a CERCLA liability exemption for airports for the costs of responding to, or damages resulting from, a release of PFAS due to the use of FAA-mandated AFFF.
Similar to the committee markup of the bill, a number of floor amendments, mostly authored by Republicans, were introduced that proposed to extend the liability protections that airports would receive under the PFAS Action Act to various other sectors, including the manufacturing of semiconductors, lithium-based batteries, aerospace materials, chlorine, military-grade equipment, solar panels and wind turbines, as well as water and wastewater treatment facilities. However, none of these amendments were considered for a vote. Supporters of the legislation have been very focused on limiting any liability protections to the narrow airport carve out, which is tied directly to federal requirements for the use of AFFF with PFAS.
The PFAS Action Act passed the House last Congress as well; however, it was opposed by former President Trump, and the then Republican-controlled Senate ultimately chose not to take it up. Now, with a Democratic administration and a Democratic-controlled Senate, it is unclear how new political dynamics will affect its prospects of becoming law. President Biden supports the legislation, but a Senate companion bill has yet to be introduced. During the House Energy and Commerce Committee markup last month, the lead Republican sponsor of the bill, Representative Fred Upton (R-MI), admitted that the legislation is not perfect and would likely need to change to receive the necessary 60 votes to advance as a standalone bill in the Senate.
On the other hand, it is possible that proponents of the bill will look to attach the legislation as an amendment to a "must-pass" piece of legislation. For instance, last Congress, the PFAS Action Act was included as an amendment to the House-passed FY20 National Defense Authorization Act (NDAA), but ultimately, it was stricken out during the NDAA conference. With the FY22 NDAA, as well as appropriations and infrastructure packages all on the horizon, there will be various opportunities for this strategy to be replicated.
As PFAS-related issues remain in the spotlight in Washington, we will remain engaged on Capitol Hill and with policymakers to make 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.
