Regulatory Updates on PFAS at Airports, and How Airports Can Get Help Paying for PFAS Remediation

The EPA’s actions to regulate 29 perfluoroalkyl and polyfluoroalkyl substances (PFAS) are a hot topic of conversation among airport operators. Airports have been singled out due to their longstanding use of aqueous film-forming foam (AFFF) to extinguish fires — and during training exercises where large amounts of the foam were often discharged onto the soil. Several PFAS compounds are a key ingredient in AFFF, posing a serious health risk to both onsite personnel and people living near airports and military bases.

While most airports today are using fluorine-free foam (which has low environmental impact), and were often never told to be cautious using AFFF for training, they could still be made to clean up contamination related to the use of PFAS-containing foam at their facilities in the past. These cleanup costs are significant.

In September of 2022, the EPA proposed to designate two common types of PFAS — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)— as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In the proposed rule, the EPA wrote that exposure to PFOA and PFOS “can lead to adverse human health effects, including high cholesterol, changes in liver enzymes, decreased immune response to vaccination, thyroid disorders, pregnancy-induced hypertension and preeclampsia, and cancer (testicular and kidney cancer for PFOA, liver and thyroid cancer for PFOS).” Also known as the Superfund program, CERCLA can hold polluters accountable for releasing substances hazardous to human health and the environment. If finalized, the designation of PFOA and PFOS as hazardous materials would enable the EPA to administer Superfund cleanups of sites contaminated with PFOA or PFOS – like airports. A final rule is expected to be published in February of 2024.

In response to this proposed hazardous materials designation, five bills were introduced in Congress in May 2023 that would protect certain entities against CERCLA liability related to PFAS contamination. These bills seek to allay the liability concerns of sectors that either passively receive PFAS from other sources or have been required to use products containing PFAS as part of their operations. If these bills become law, they would amend CERCLA to protect the various sectors from PFAS-related liability under certain circumstances. Two of these address airports:

· The Fire Suppression PFAS Liability Protection Act (S. 1432). As introduced, this bill exempts from CERCLA liability entities having a “fire suppression system installed, or otherwise in use, in accordance with applicable Federal, State, and local fire codes that uses an aqueous film forming foam that contains a covered perfluoroalkyl or polyfluoroalkyl substance.”

· The Airports PFAS Liability Protection Act (S. 1433). As introduced, airports would receive liability protection provided that their PFAS releases “resulted from the use of an aqueous film forming foam” that was required by the U.S. Federal Aviation Administration and carried out “in accordance with (FAA) standards and guidance on the use of that substance.”

However, it is not certain if these bills will be enacted and these limits to airport liability do not diminish the property damage to the airport itself.

New environmental requirements for airports are evolving out of rising concern about PFAS on both the federal and state levels. California, for example, requires drinking water wells located near airports to be tested for PFAS contamination; and the U.S. Department of Defense has identified more than 400 military sites across the nation with significant legacy PFAS concerns, many of them at airbases or airports.

Earlier this year, in March, the EPA released a proposed National Primary Drinking Water regulation that would establish Maximum Contaminant Levels (MCLs) for six PFAS chemicals in drinking water, including the kinds found in AFFF (PFOA and PFOS). The agency proposes a limit of no more than 4 parts per trillion for each chemical in drinking water, a regulation that, while it puts the spotlight on drinking water treatment facilities, is significantly raising the public alarm regarding PFAS. The EPA has said that it plans to finalize this regulation by the end of 2023.

When the new nationwide MCLs under the National Drinking Water Standards, and the designation of PFOA and PFOS as hazardous substances under CERCLA come into effect, there is likely to be a significant increase in the reporting of PFAS contamination at sites throughout the country, with the most contaminated or hazardous sites deemed national priority sites under CERCLA. Because of the near ubiquity of AFFF made with PFAS in aviation operations, these sites are likely to include airports. Even if a limit to CERCLA liability for airports is passed, reporting on PFAS contamination and public perception will be a strong disincentive to do nothing.

The Cost of Cleanup and Who Will Pay

Because the ubiquity of PFAS in soil, groundwater, and aquifers is only beginning to be understood, estimates range wildly regarding what it will cost to remediate a contaminated site. These estimates include, among other actions, installing water treatment plants that will remove PFAS from private and public wells. Tens of millions per airport is one starting estimate, with national estimates reaching into the hundreds of billions and beyond, when military installations are included.

Federal funding from the Bipartisan Infrastructure Law includes $10 billion to specifically address PFAS and other emerging water contaminants, half of which is earmarked for small and historically underserved communities. The EPA made the first round of this funding available in February of 2023. However, these funds are designed to directly impact drinking water, meaning recipients will likely be public water treatment facilities and systems.

For airports, a strategy to mitigate risk for future costs and secure funding can be found in litigation. In fact, product liability law can be used to hold manufacturers responsible for the cleanup costs of defective products that cause environmental contamination. Nearly all PFOA and PFOS manufactured in the U.S. originated from just two companies, 3M and DuPont, that were long aware of the environmental and health risks of these products. Many governmental and private entities have therefore chosen to file lawsuits to hold PFAS and AFFF manufacturers accountable for the cleanup costs associated with PFAS contamination.

Many airports have joined property owners, water systems, states, and others in pursuing litigation against PFAS manufacturers in multi-district litigation (MDL) proceedings, which are designed to efficiently coordinate complex litigation filed in multiple federal district courts. In 2023, there have been notable settlements resulting from ongoing MDL between PFAS manufacturers and water suppliers across the country that seek to hold polluters accountable for cleanup costs. These proposed

settlements are from 3M, which agreed to pay up to $12.5 billion, and DuPont and its related companies, which have agreed to settle for $1.1859 billion. These proposed settlements are setting the pace and are an important step forward for communities impacted by PFAS.

One defense that 3M and other manufacturers are using in AFFF-related cases is the argument that, because they manufactured AFFF according to specifications provided by the military, they shouldn’t be held liable for contamination. However, a ruling by the MDL court found that manufacturers of AFFF had significantly greater knowledge than the government about the properties and health risks associated with their products and knowingly withheld highly material information, rendering this defense moot.

Early Legal Action Can Reap Larger Awards, with Low Financial Risk

Taking legal action doesn’t always have to come with financial risk. Some law firms, like SL Environmental Law Group for example, work on contingency — meaning that the firms are paid only if there is a successful outcome for the client they represent. This kind of structure is especially helpful to airports with tight budgets because it virtually eliminates the financial risks associated with litigation.

There are now over 3,000 cases related to AFFF pending in the MDL, a number that continues to grow. The enormity of PFAS contamination is just beginning to unfold and could rival asbestos and lead for the largest total cost of investigating and remediating contamination. Parties that take legal action sooner are more likely to receive adequate funds than those that take a wait-and-see approach. The 3M and Dupont settlements with drinking water systems have been given a litigation bump in their payouts compared to the utilities that waited until the settlements were agreed upon. While this is not guaranteed in every settlement, it does indicate the willingness of defendants to provide compensation for those who act early. Considering that airports and wastewater treatment facilities are today where the drinking water sector was 3-5 years ago, now is the time for airports to initiate a legal strategy.