How CERCLA’s New PFAS Regulations Impact Airports

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In April 2024, EPA designated PFOA (Perfluorooctanoic acid) and PFOS (Perfluorooctane sulfonic acid) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), more commonly known as “Superfund.” This sweeping designation affects numerous industries that have relied on these substances for fire suppression, food packaging, and countless consumer products, leaving them to search for alternatives while wondering if they will be held responsible for the spread of these chemicals whose exposure is known to cause infertility, lower birth weight, and thyroid cancer, among other issues.

PFOA and PFOS are key ingredients in Aqueous Fire Fighting Foam (AFFF), so many airports have taken critical proactive steps to convert to fluorine-free foam and decontaminate their equipment to align with the FAA’s Aircraft Firefighting Foam Transition Plan timelines. However, the implications of CERCLA’s hazardous substance designation for airports are far-reaching. The aviation industry is now grappling with the repercussions of historic (and mandatory) AFFF use, which has inadvertently turned them into legacy polluters of these forever chemicals, contaminating their sites as well as nearby groundwater, soil, and air.

The Department of Defense has estimated that the cost of cleanup at its airfields and similar facilities could exceed $3.8 billion. However, the true cost of this cleanup is still unknown. The scale of PFAS contamination is only beginning to be realized and is expected to surpass the cleanup efforts of asbestos and lead, which would pose a significant financial burden on entities affected. This includes airports, which may face substantial on-site remediation costs, public relations efforts related to addressing airport environmental impacts, and potential lawsuits from third parties for legacy contamination.

PFAS chemicals producers 3M and DuPont knew the health risks of PFOA and PFOS exposure long before the public. Recognizing that these and several other manufacturers are the root of this global forever chemical contamination, the EPA has stated that it does not intend to pursue public entities such as landfills, water utilities, and airports. Amendments to the CERCLA designation of PFAS have been proposed to exclude these entities from liability with bills such as The Fire Suppression PFAS Liability Protection Act and The Airports PFAS Liability Protection Act.

However, it is not certain that these bills will be enacted, and these limits to airport liability do not diminish the cost of on-site remediation and bad press. The scale of contamination is site-dependent and not fully understood. However, some estimates put a single airport PFAS cleanup at tens of millions of dollars.

How to Prepare for the Unknown

Rules and best practices for PFAS remediation are still being considered, so it’s understandable for airport organizations to feel unsure where to begin. As was recommended to water utilities that have dealt with this contamination, the first step for any airport is to start testing for PFAS on-site. Testing provides airports with the information they need to identify PFAS hotspots, contribute to the larger contamination conversation with local regulators, water providers, and fire stations, and substantiate litigation claims against big-name PFAS producers.

Consulting an environmental engineering consultant when crafting a PFAS plan is essential. Once testing is underway, environmental professionals can aid in the technology selection process, running pilots to capture the cost, effectiveness, and necessary treatments to remove and destroy PFOA and PFOS from your site.

No contamination plan is complete without communications and public relations. In addition to testing and remediation, airports must build trust with the local community by being transparent with their PFAS action plan’s progress. Proactively addressing the “elephant in the room” and showing the community what is being done to remediate PFAS in the area can turn a contamination event into an opportunity to build trust. 

Incorporating these actions into your PFAS strategy can benefit your organization with contamination of this magnitude. However, it requires resources that not all airports have.

Follow The Leader

To fund PFAS remediation initiatives, many airports have joined property owners, water systems, and states in pursuing litigation against PFAS manufacturers in multi-district litigation (MDL) proceedings designed to efficiently coordinate complex litigation filed in multiple federal district courts. Litigation, seeking to hold the PFAS manufacturers accountable for cleanup costs, recently led to landmark settlements between water suppliers and 3M, who agreed to pay up to $12.5 billion, DuPont, who settled for $1.1859 billion, Tyco, who proposed $750 million, and BASF, who also recently proposed a settlement for $ 316.5 million. 

Legal strategies can help airports recover the cost of remediating their contaminated sites. Litigation against the manufacturers also shows that airports are dedicated to protecting public health and the environment. Considering the increasing public scrutiny of the aviation industry's environmental impact, taking a stand against PFAS makes airports part of the solution.

Airports have nothing to lose by seeking legal guidance and pursuing legal cost recovery strategies for PFAS cleanup. By pursuing litigation with a law firm that works on a contingency basis, for example, airports can gain a seat at the table without financial risk, as they do not pay unless and until they recover funds.

Early Bird Gets the Worm

Many airports may already be in the spotlight over public environmental concerns, and PFAS will likely worsen the situation. Airports should create a clear action plan and communicate transparently about their PFAS mitigation efforts with the relevant community and national stakeholders.

At this point in time, airports can still join the AFFF MDL. However, a statute of limitations applies to every legal claim. Outside of special circumstances, claims brought after the statute of limitations has ended cannot be brought to court, no matter how valid or valuable. The time to bring a lawsuit and what triggers the clock varies from state to state.

Throughout the MDL proceedings we have seen how parties that took legal action early benefited from their proactive approach. For example, water systems that filed suit over PFAS before the settlements were reached now stand to recover up to 25% more than a similarly-situated water system that did not. Additionally, there is no guarantee that any future settlements will include airports who did not file their own lawsuits. Today, aviation is in the situation that the drinking water sector was three to five years ago. Now is the time for airports to initiate a legal strategy against PFAS polluters in order to mitigate risks and safeguard budgets.


About the Author

Mike DiGiannantonio | Attorney

Mike DiGiannantonio, attorney at SL Environmental Law Group, represents public entities in water contamination lawsuits, including those involving PFAS, 1,2,3-TCP and perchlorate. Mike was part of the SL team that obtained a $30.208 million jury verdict for the City of Pomona against a fertilizer manufacturer responsible for perchlorate contamination of the City’s water.

Mike has almost two decades of complex commercial litigation and regulatory experience. As a former Senior Enforcement Counsel, he prosecuted organizations and individuals to protect market integrity and understands the minutia of regulatory violations. As a former federal law clerk and professor of legal writing, he specializes in persuasive and efficient written advocacy. He has represented clients in cases before state and federal courts, as well as in both trial and appellate matters. Mike is admitted to practice law in California, Illinois and Michigan.

After years of corporate litigation, Mike has chosen to focus on protecting the public and the environment from corporate polluters. He is passionate about making a difference and holding those accountable who profit at the detriment of others.

Mike received both his law degree and undergraduate degree from the University of Michigan.