Fire Suppression PFAS Liability Protection Act

II 118TH CONGRESS 1ST SESSION S. 1432 To exempt certain entities from liability under the Comprehensive Environ- mental Response, Compensation, and Liability Act of 1980 for the release of certain perfluoroalkyl or polyfluoroalkyl substances, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 3, 2023 Ms. LUMMIS (for herself, Mr. BOOZMAN, Mr. CRAMER, Mr. GRAHAM, Mr. MULLIN, Mr. RICKETTS, Mr. SULLIVAN, and Mr. WICKER) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To exempt certain entities from liability under the Com- prehensive Environmental Response, Compensation, and Liability Act of 1980 for the release of certain perfluoroalkyl or polyfluoroalkyl substances, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Fire Suppression 4 PFAS Liability Protection Act’’. 5 VerDate Sep 11 2014 22:27 May 12, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1432.IS S1432 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1432 IS SEC. 2. EXEMPTION UNDER CERCLA. 1 (a) DEFINITIONS.—In this section: 2 (1) COVERED PERFLUOROALKYL OR 3 POLYFLUOROALKYL SUBSTANCE.—The term ‘‘cov- 4 ered perfluoroalkyl or polyfluoroalkyl substance’’ 5 means a non-polymeric perfluoroalkyl or 6 polyfluoroalkyl substance that contains at least 2 se- 7 quential fully fluorinated carbon atoms, excluding 8 gases and volatile liquids, that is a hazardous sub- 9 stance (as defined in section 101 of the Comprehen- 10 sive Environmental Response, Compensation, and 11 Liability Act of 1980 (42 U.S.C. 9601)). 12 (2) INDIAN TRIBE.—The term ‘‘Indian Tribe’’ 13 has the meaning given the term in section 4 of the 14 Indian Self-Determination and Education Assistance 15 Act (25 U.S.C. 5304). 16 (3) LAWFUL DISCHARGE.—The term ‘‘lawful 17 discharge’’, with respect to an aqueous film forming 18 foam agent, means a release of the aqueous film 19 forming foam agent through equipment calibration, 20 firefighter training, a timed-response drill, a sched- 21 uled release, an emergency response activity, or the 22 use of a fire suppression system. 23 (4) PROTECTED ENTITY.—The term ‘‘protected 24 entity’’ means an entity with a fire suppression sys- 25 tem installed, or otherwise in use, in accordance with 26 VerDate Sep 11 2014 22:27 May 12, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1432.IS S1432 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1432 IS applicable Federal, State, and local fire codes that 1 uses an aqueous film forming foam that contains a 2 covered perfluoroalkyl or polyfluoroalkyl substance. 3 (b) EXEMPTION.—Subject to subsection (c), no per- 4 son (including the United States, any State, or an Indian 5 Tribe) may recover costs or damages from a protected en- 6 tity under the Comprehensive Environmental Response, 7 Compensation, and Liability Act of 1980 (42 U.S.C. 9601 8 et seq.) for costs arising from a release to the environment 9 of a covered perfluoroalkyl or polyfluoroalkyl substance. 10 (c) REQUIREMENT.—Subsection (b) shall only apply 11 if the release of the covered perfluoroalkyl or 12 polyfluoroalkyl substance resulted from the lawful dis- 13 charge of an aqueous film forming foam in connection with 14 a fire suppression system that— 15 (1) conforms to applicable Federal, State, and 16 local fire codes; and 17 (2) is compliant with the most recently ap- 18 proved engineering standards at the time of the dis- 19 charge. 20 (d) SAVINGS PROVISION.—Nothing in this section 21 precludes liability for damages or costs associated with the 22 release of a covered perfluoroalkyl or polyfluoroalkyl sub- 23 stance by a protected entity if the protected entity— 24 VerDate Sep 11 2014 22:27 May 12, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1432.IS S1432 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1432 IS (1) acts with gross negligence or willful mis- 1 conduct in the discharge of the covered 2 perfluoroalkyl or polyfluoroalkyl substance; or 3 (2) continues to use an aqueous film forming 4 foam agent in the fire suppression system of the 5 protected entity on or after the date that is 5 years 6 after the date on which approved engineering stand- 7 ards were updated to no longer require the use of an 8 aqueous film forming foam. 9 Æ VerDate Sep 11 2014 22:27 May 12, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6301 E:\BILLS\S1432.IS S1432 kjohnson on DSK79L0C42PROD with BILLS