Regulatory Alert: AAAE Responds to EPA's Proposed Rule to Designate PFOA/PFOS as Hazardous Substances Under CERCLA

November 8, 2022

AAAE submitted comments on November 7 in response to the U.S. Environmental Protection Agency's (EPA) proposed rule that would designate two PFAS chemicals, PFOA and PFOS, as “hazardous substances“ under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known as the Superfund law. For airports, such a designation could trigger potentially costly litigation and cleanup efforts to address PFOA and/or PFOS related contamination because CERCLA imposes liability on parties that are responsible for releases, or threatened releases, of any substances designated as hazardous.&nbsp;

In our comments, AAAE argued that designating PFOA and PFOS as hazardous substances would be a draconian measure that causes unintended consequences and unfairly punishes airports for procuring and using aqueous film forming foam (AFFF) in accordance with federal requirements and in the interest of public safety. We emphasized that EPA has an obligation to consider how the designation would cause substantial cleanup costs at airports, impede the industry's effort to transition to fluorine-free firefighting agents, and impact ongoing and planned infrastructure development. We have requested and strongly urged EPA to provide airports with protection from CERCLA liability if it can be shown that an airport's use of AFFF complied with federal requirements. We have made similar requests for CERCLA liability exemptions to airports on Capitol Hill.

You can read AAAE's comments here. We appreciate everyone who provided feedback regarding the proposed rule and to our PFAS Coalition, which was instrumental in helping us understand the potential financial impacts associated with addressing PFAS-related concerns at airports.&nbsp;

Background on CERCLA. Under CERCLA, EPA has the authority to respond directly to releases, or threatened releases, of any “hazardous substances“ that may endanger public health and/or the environment. The statute gives EPA the authority to conduct short-term “removal“ actions when there is a release or threatened release and long-term “remedial“ actions to permanently and significantly reduce risks associated with releases of the substance. Most importantly, CERCLA imposes retroactive, joint and several, and strict liability on parties that are responsible, in whole or in part, for the release of any hazardous substance.&nbsp;

In late August, EPA released its proposed rule that would designate PFOA and PFOS as CERCLA hazardous substances. This was the first time that EPA has exercised its authority to designate any substances as hazardous under the statute. The agency based the proposed designation on the potential human health and environmental hazards associated with exposure to the chemicals, including the “persistency“ of the chemicals, how they bioaccumulate, a variety of potential adverse human health effects, and their prevalence in the environment.&nbsp;

Summary of AAAE's Recommendations and Points of Emphasis.&nbsp;In our response, AAAE primarily focused on the draconian nature of the CERCLA framework, the need for EPA to exempt airports from CERCLA liability, and the impacts that would result if EPA moved forward. Given the complexity of the issues, we wanted to share a summary of key recommendations and points of emphasis that we raised in the comments. These include the following:&nbsp;

• When evaluating whether to finalize the proposed rule, EPA must consider the Federal Aviation Administration's (FAA) extensive regulation of how airports conduct aircraft rescue and firefighting (ARFF) services to ensure the safety of the traveling public, which has existed for over 50 years. FAA requirements that airports procure, store, and use AFFF began in 1988â€”and continue todayâ€”because of its unique effectiveness at suppressing aviation fires and relative stability.

• Given that historical AFFF usage at airports has been driven by federal regulation and the imperative to ensure the effectiveness of fire suppression specific to aviation incidents, EPA should exempt airports from any CERCLA liability associated with the use of AFFF at their facilities if it can be shown that they complied with FAA requirements.

• EPA must consider the costs and impacts of the proposed rule when determining whether the designation is justified. This is part of the broader requirement for EPA to evaluate the benefits, costs, and potential alternatives associated with the proposal during the rulemaking process. While we acknowledged the challenges associated with quantifying cleanup costs, we argued EPA can still evaluate these impacts by developing a reasonable range of cost estimates that would result using available data.

• Through our PFAS Coalition, AAAE's experts estimated the potential cleanup costs at airports, and our findings and initial estimate conservatively show that costs of at least $2.6 billion to $35.6 billion could be incurred at over 3,250 airports should EPA move forward with the designation. To be clear though, we emphasized that each airport will not require response and remediation actions, and the financial impact at any single airport would vary widely and depend on a range of factors.&nbsp;

• EPA's proposed rule would impede airports' ability to transition to fluorine-free firefighting agents, which may begin as early as 2023, leaving airports to use a designated hazardous substance during emergencies in accordance with federal law. It would also negatively impact ongoing and planned development projects, including delaying safety-critical projects.

• We argued that designating PFOA and PFOS as CERCLA hazardous substances would be a draconian measure that is not appropriate to address PFAS-related concerns. It would unfairly punish airports that have used AFFF to comply with federal requirements, create unnecessary and substantial costs, and ignore more reasonable and targeted alternative solutions.

• EPA must work with its federal partners and the airport community to (1) conduct more research on available remediation technologies and cost-effective options for the disposal and destruction of PFAS and PFAS-containing materials like AFFF and (2) develop guidance and resources that are needed to help the industry more smoothly transition away from AFFF to a fluorine-free firefighting agent.

What's Next? EPA will begin to review and adjudicate over 161,200 comments that the agency received in response to the proposed rule. We expect EPA will move forward with the rulemaking. While the agency has targeted August 2023 for a final rule, we believe that is ambitious given the number of comments and procedural hurdles that will need to be addressed. In addition, we anticipate legal challenges to any final rule that EPA issues, which could delay or even halt implementation.&nbsp;

In the meantime, AAAE will continue to engage with lawmakers and regulators and work to prevent airports from being financially responsible for the impacts of historical usage of AFFF because FAA has required airports to use AFFF at their facilities for decades. AAAE has pushed back, and will continue to push back, on any hazardous substance designation of PFOA and PFOS without corresponding liability protection for airports.

Resources on EPA's CERCLA Proposal
• AAAE's November 7 Comments to EPA on Proposed Rule&nbsp;
• EPA's Proposed Rule to Designate PFOA/PFOS as Hazardous Substances&nbsp;
• EPA's Summary of the Proposed Rule&nbsp;
• EPA's Strategic Roadmap on PFAS (Oct. 2021)&nbsp;
• AAAE's August 26 Regulatory Alert&nbsp;on EPA's Proposed Rule&nbsp;
• AAAE's October 18 Regulatory Alert&nbsp;on EPA's Strategic Roadmap on PFAS&nbsp;