AAAE Responds to EPA's Request for Feedback on Designating Additional PFAS Chemicals as Hazardous Substances

On Friday, AAAE submitted comments in response to the U.S. Environmental Protection Agency's (EPA) advance notice of proposed rulemaking (ANPRM) that requests feedback from the public on whether the agency should designate additional PFAS chemicals-beyond 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 PFAS-related contamination.

In our comments, AAAE noted that many of the PFAS chemicals under consideration for the designation have been found in different formulations of aqueous film forming foam (AFFF), a product that the Federal Aviation Administration (FAA) has mandated that airports use for decades. Thus, we argued that moving forward with a rulemaking to designate an additional seven PFAS chemicals as hazardous substances would be a draconian measure that causes unintended consequences and unfairly punishes airports for procuring and using 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 could 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 reiterated our request that EPA 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 and shared their expertise regarding EPA's ANPRM.

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.

Overview of EPA's PFAS-Related Actions Under CERCLA. There are three separate initiatives that EPA is pursuing to address PFAS-related concerns using its authority under the Superfund law known as CERCLA. A brief overview is as follows:

• Proposed Rule on PFOA/PFOS Hazardous Substance Designations: In September 2022, EPA released a proposed rule that would designate PFOA and PFOS as CERCLA hazardous substances based on the potential human health and environmental hazards associated with exposure to the chemicals. AAAE strongly responded to the proposal, arguing that the designation would be a draconian measure that causes unintended consequences and unfairly punishes airports for procuring and using AFFF in accordance with federal requirements and in the interest of public safety. EPA is targeting early 2024 to publish a final rule. 

• ANPRM on Additional PFAS Hazardous Substance Designations: In April, EPA released an ANPRM that only serves as a preliminary notice that the agency is considering developing a formal, proposed rule to designate seven additional PFAS chemicals, beyond PFOA and PFOS, as hazardous substances, including PFBS, PFHxS, PFNA, HFPO-DA, PFBA, PFHxA, and PFDA; the precursors to PFOA, PFOS, and the seven other PFAS listed; and other categories of PFAS. The ANPRM does not constitute a proposed rulemaking. Nevertheless, it is still important to weigh in at this stage to potentially influence the direction of future rulemaking initiatives in this area. A summary of AAAE's response to the request is provided below. 

• EPA's CERCLA PFAS Enforcement Discretion Policy: AAAE has requested that EPA ensure airports are not being 'punished' for complying with federal mandates and guidance and provided liability protection. In March, EPA indicated that the agency intends to develop an enforcement discretion policy that would protect some entities, including airports, from EPA enforcement actions under the Superfund law pertaining to PFAS contamination. This would not be limited to PFOA and PFOS contamination. While this is a positive development and would provide some protection for airports, airports could still be subject to potential private party actions, which is why AAAE continues to advocate on the Hill for liability protection for airports. 

Summary of AAAE's Comments and Points of Emphasis. AAAE's comments were based on third-party findings that the seven additional PFAS chemicals proposed for CERCLA designations have been found in different formulations of AFFF over the past several decades and, therefore, pose the same challenges as PFOA and PFOS, which have also been found in AFFF and are the subject of a separate rulemaking. In our response, which was similar in nature to comments that we filed last year, 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.

A summary of key recommendations and points of emphasis that we raised in the comments include:

• When evaluating whether to move forward with a rulemaking, EPA must consider FAA's 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 1988-and continue today-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 a future rulemaking action when determining whether the designation is justified. We emphasized that the estimated cleanup costs for the airport industry could be financially staggering, although not every airport would require response and remediation actions, and the financial impact at any single airport would vary widely and depend on a range of factors. Any additional designations of PFAS chemicals would also impede airports' ability to transition to fluorine-free firefighting agents and negatively impact ongoing and planned development projects, including delaying safety-critical projects.

• We argued that designating seven additional PFAS chemicals 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.

• While we expressed appreciation for the forthcoming 'CERCLA PFAS enforcement discretion and settlement policy,' we emphasized that the policy would only protect airports from EPA enforcement actions under the Superfund law. It would not exempt or preclude airports from being subject to potential private party actions. We strongly urged the agency to ensure that its final policy-or any future rulemaking-exempts airports from any CERCLA liability, resulting from either an EPA or private party action.

What's Next? EPA will now review and consider all the comments that were submitted in response to the ANRPM. The agency has not provided any indication whether it intends to move forward with a proposed rule for additional PFAS chemicals beyond PFOA and PFOS. We suspect it will depend on the data that the agency is currently reviewing and whether they believe such chemicals constitute a threat to human health or the environment.

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, PFOS, or any other PFAS chemicals in AFFF without corresponding liability protection for airports.

Resources on EPA's PFAS CERCLA-Related Actions
• AAAE's August 11 Comments to EPA on ANPRM on Designating Additional PFAS as Hazardous Substances 
• EPA's April 13 ANPRM on Designating Additional PFAS as Hazardous Substances 
• AAAE's April 12 Regulatory Alert on ANPRM on Designating Additional PFAS as Hazardous Substances 
• EPA's March 2023 Presentations on Proposed CERCLA PFAS Enforcement Discretion Policy 
• AAAE's November 7 Comments to EPA on Proposed Rule 
• EPA's Proposed Rule to Designate PFOA/PFOS as Hazardous Substances 
• EPA's Summary of the Proposed Rule to Designate PFOA/PFOS as Hazardous Substances 
• AAAE's August 26 Regulatory Alert on EPA's Proposed Rule to Designate PFOA/PFOS as Hazardous Substances 
• EPA's Strategic Roadmap on PFAS (Oct. 2021)