Per- and poly-fluoroalkyl substances (PFAS) found in aqueous film-forming foam (AFFF) have been used for decades to extinguish chemical or petroleum fires, and in training exercises at thousands of airports across the country. This practice resulted in substantial quantities of AFFF spread across airport grounds, allowing the toxic chemicals in the product to enter the soil, surface water, and, eventually, the groundwater.
Rising concern about PFAS has led to some states requiring drinking water wells located near airports to be tested for PFAS contamination, as airports are considered likely contributors. And, with the federal government becoming more stringent on regulating PFAS, many airports are looking for answers on how to deal with PFAS and determine who is ultimately responsible for the cleanup.
Kelly Fredericks, Aviation Technical Advisor and Attorney Michael DiGiannantonio of SL Environmental Law Group (SL) answer some of the questions that are being asked by airport executives. SL focuses exclusively on representing public entities in litigation over the contamination of public resources including water, land, and other natural resources.
What are the recent EPA changes as it relates to AFFF?
DiGiannantonio: On June 15, 2022, the EPA announced new health advisories for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), to 0.004 parts per trillion (ppt) and 0.02 ppt, respectively. Both chemical compounds are found in AFFF as they repel oil and water and quickly smother flames. The updated advisory levels (previously 70 ppt for PFOA and PFOS) are based on new science recognizing health risks associated with exposure to these compounds in drinking water at near-zero concentrations. Considering that these chemicals do not degrade naturally, and bioaccumulate, meaning the body’s tissue absorbs the substance faster than it can be eliminated, the compounding effect over time is troubling.
On August 26th 2022, the EPA issued a proposed rule to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Superfund program, as CERCLA is often referred to, began as a way to hold polluters accountable for release of hazardous substances that could endanger public health and the environment. This, however, could impact airports as the cost for the treatment of PFAS-contaminated water or soil will become exponentially higher, since PFAS-contaminated treatment media will need to be dealt with according to hazardous waste protocols.
Why should the manufacturers be held accountable?
DiGiannantonio: Over the last two decades or so, plaintiffs have found success litigating against the manufacturers of products that contained PFAS. Some of these lawsuits arose out of the dumping of these chemicals into surface water or landfills by the manufacturers of products that contained them. Most of these lawsuits, however, have focused on environmental contamination that resulted from the use of products, such as AFFF, in their intended manner. The lawsuits claim that the products were defectively designed in a way that risked contamination, or that the manufacturers failed to warn of such risks.
Lawsuits against manufacturers for ground or water contamination caused by their products usually rely on a legal doctrine known as “products liability.” Though the nuances can vary from state-to-state, this doctrine has been adopted by courts and legislatures across the country. Generally, under the law of products liability, a manufacturer or seller is liable if a defect in the design of its product causes injury while the product is being used in a reasonably foreseeable way.
Firefighting foam containing PFOA and PFOS are defective products under this liability doctrine.
What is the public perception when it comes to PFAS litigation?
Fredericks: There is a lot more awareness of PFAS resulting from movies like Dark Waters and exposés in mainstream news, even late-night show hosts have covered PFAS. In general, the public wants to know the source of the environmental problems that we are facing today and not only how we are going to fix them, but how we are going to prevent them from happening in the future. Holding the chemical manufacturers accountable by law is one way. Additionally, litigation against the manufacturers demonstrates to the community that the airport is being proactive in addressing this growing environmental issue.
DiGiannantonio: A lot of increased awareness is also coming from new state mandates that require testing water supplies, which exposes the prevalence of PFAS. This, in turn, results in new regulatory mandates. More states are implementing maximum contaminant levels (MCLs). If PFAS is found in concentrations above these regulatory limits, airports are likely going to need to act, and this may come at a significant cost. As these toxic chemicals have been used for decades, PFAS contamination really has no boundaries. Holding polluters accountable is viewed as a responsible course of action.
What is the consolidated AFFF multidistrict litigation – is it a class action?
DiGiannantonio: Airports and public entities across the U.S. that claim their ground or water supplies are contaminated with PFAS from AFFF have had their cases grouped together before the same court in what is known as multidistrict litigation (MDL). There are over 2,500 cases in this MDL-2873 and new plaintiffs are still able to join.
An MDL generally has a lot of advantages:
1 – It creates efficiencies for both the plaintiffs and defendants by pooling legal resources. Consolidating efforts toward discovery and pretrial motions saves time and money for both sides.
2 – It allows plaintiffs to work together to collect defendant documents and file motions in front of a judge that becomes very knowledgeable about this specific subject matter.
3 – It is also more efficient for the court system. The alternative is having all these cases progress at a different pace around the country, with potentially disparate rulings from different judges.
An MDL is different from a class action. A class action is one lawsuit involving many plaintiffs. An MDL is a collection of many lawsuits involving similar subject matter. The whole purpose of the MDL is to consolidate the beginning stages of litigation while reserving every plaintiff’s right to take its own case to trial. There is no requirement that everyone be the same or that they be represented by a lawyer selected by the court. If a plaintiff does not feel the defendant’s settlement offer is fair, that plaintiff can try to negotiate its own settlement. If the plaintiff is still not happy with the offer, it can go to federal court in its home state and bring the case to trial there.
Should I wait to see if our industry is exempt from federal legislation?
DiGiannantonio: There are two reasons why this is not a good approach. First, is statute of limitations. There is a time limit that applies to every legal claim. Outside of special circumstances, claims brought after the statute of limitations has run out cannot be brought to court, no matter how valid or valuable they are. The time to bring a lawsuit varies from state to state, and what triggers the clock can also vary from state to state.
Second, is the MDL that airports are still able to join. The “bellwether cases” for the water suppliers are set to start trial in June 2023. As a result of those first trials, defendants will get an idea of what will happen when juries hear these cases, which may help both sides resolve all of the remaining claims. That will be an important waypoint on the journey of the resolution of PFAS cases, and we expect to get there relatively soon.
Fredericks: Why not pursue the litigation on a contingency basis to ensure you've got a seat at the table? If an industry exemption is created, you've lost nothing. If an exemption is not created, you've preserved your claims and a "seat at the table."