PFAS Contamination: What Airports Need to Know in 2024

The worldwide aviation industry has increasingly been a target for sustainability and environmental concerns. In recent years, airports and airlines have come under public scrutiny for many issues ranging from greenhouse gas emissions to their potential for pollution. In some cases, negative public perception has presented a threat to the industry as a whole. Now, airports must contend with a much greater source of public environmental scrutiny: PFAS (per- and polyfluoroalkyl substances) contamination stemming from decades of federally mandated use of aqueous film-forming foam (AFFF). The enormity of PFAS contamination even beyond the aviation industry is just beginning to be realized and its total investigation and remediation cost could rival that of asbestos and lead. With this in mind, PFAS could result in severe, lasting repercussions for the aviation industry if not resolved appropriately.

PFAS, although originally thought to be safe for widespread use, have been associated with many negative effects on human health. In a number of cases, use of AFFF has caused drinking water in nearby communities and private wells to contain elevated levels of PFAS. Although airports had no choice but to use AFFF for years, some people may view them as sources of PFAS contamination. As the public becomes more aware of the prevalence of these chemicals and the health risks associated with them, airport leaders can benefit from planning ahead and taking a proactive approach to the management of these contaminants. In this blog, we will discuss the impact of PFAS on airports, federal regulatory updates that can be anticipated in 2024, and what airports need to know to mitigate their PFAS risks.

The Impact of AFFF Contamination at Airports

AFFF was first introduced over 50 years ago and quickly gained popularity for its effectiveness at putting out fires, especially those involving jet fuel. The inclusion of two PFAS compounds in the foam, perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), allowed it to create a unique film that smothered flames quickly and reliably by suppressing fuel vapors and preventing reignition. Soon, its usage expanded beyond firefighting to include equipment testing, training exercises, and preventative measures during fuel spills. In fact, the Federal Aviation Administration (FAA) required the use of AFFF at airports until PFAS-free alternatives became available in 2023.

Why is PFAS Contamination a Growing Concern?

Unfortunately, the PFAS chemicals that made AFFF so useful in firefighting are also highly persistent in the environment and hazardous to human health. PFAS have been associated with serious health effects including reduced fetal and infant growth, certain cancers, thyroid disease, high cholesterol, and even reduced vaccine effectiveness, among others. The PFAS compounds found in AFFF can leach into soil and water at airports and spread from the initial contamination site to surface water and groundwater in surrounding communities. This can result in drinking water contamination. Once PFAS have entered local water sources, they are extremely difficult and costly to remove.

3M & DuPont Knew the Risks of PFAS

When AFFF was first introduced, airport and government officials were falsely assured that PFAS chemicals were safe. In reality, the two primary manufacturers of PFAS in the United States, 3M and DuPont, were aware of the health hazards caused by their products as early as the 1960s. Rather than warning the public of the dangers, however, they withheld that information and continued to profit from PFAS for decades.

Despite the fact that airports were unaware of any adverse health effects or environmental risks associated with the use of AFFF, they may still be required to clean up contamination that has already occurred. It's important for airport leaders to act against PFAS as soon as possible, not only to protect their communities, but also to take advantage of all available options to cover the cost of cleanup.

Challenges of Transitioning From AFFF

Recognizing the risks of continued AFFF use, the FAA is now encouraging airports to transition away from AFFF to safer alternatives, such as fluorine-free foam. In December 2022, Congress directed the FAA to create a transition plan to help U.S. airports switch to firefighting foams that do not contain PFAS. The FAA’s Aircraft Firefighting Foam Transition Plan, released in 2023, provides information on timelines, new techniques and training, decontaminating equipment, associated costs, and other important details to guide the industry in its change to alternative foams. 

In September 2023, the FAA announced that fluorine-free foam (F3) products had become available that met Military Specification, providing an option for airports to discontinue their use of PFAS-containing AFFF. While this change offers airports the opportunity to halt further PFAS exposure to the surrounding environment, the transition is not without its challenges. Sourcing and purchasing new firefighting products will be expensive, creating financial barriers that may make the switch more difficult. In addition, further training may be required to ensure proper use of F3 by emergency responders who are accustomed to using AFFF. Furthermore, existing equipment, such as Aircraft Rescue and Firefighting vehicles, may be contaminated with residual PFAS from previous AFFF use. Thoroughly cleaning or replacing the equipment, plus proper disposal of the contaminated cleaning rinsate, will come at a great expense to airports. Research is ongoing to determine the most effective methods of removing residual PFAS from equipment.

Potential Upcoming EPA PFAS Regulations

2024 is set to be a pivotal year in terms of federal PFAS regulations. In order to maintain compliance, decision-makers must be aware of new and potential upcoming regulations and how they may affect airports. In December 2023, the Environmental Protection Agency (EPA) released its Second Annual Progress Report for its PFAS Strategic Roadmap. The report contains important updates on its plans to establish PFAS regulations.

First, the EPA is expected to finalize national drinking water standards for six PFAS compounds by January 2024. The maximum contaminant level (MCL) would limit PFOS and PFOA to 4 parts per trillion. The standards would also limit PFHxS, GenX, PFNA, and PFBS using a hazard index. If nearby drinking water wells detect these chemicals, nearby airports may find themselves at risk of liability if the contaminants can be traced to their past use of AFFF.

In another major development, the EPA has announced its plans to list PFOA and PFOS as hazardous materials under CERCLA by March 2024. For airports, this may result in changes such as mandatory reporting of PFAS discharged into the environment and even liability for contaminant cleanup.

Navigating PFAS and Regulatory Compliance

Once new federal PFAS regulations are enacted, airports will likely be forced to take action. While each airport's unique situation is different, some best practices may include:

• Conducting thorough PFAS testing in soil and water sources.
• Ensuring proper storage and disposal of PFAS-containing AFFF and contaminated equipment and construction materials.
• Cleanup of soil and water contamination at affected sites.

While EPA regulations are important for protecting public health and the environment, airports may encounter barriers that make compliance difficult. Due to the long-lasting nature of PFAS, contamination may be present in areas of historic AFFF use in addition to more recent sites. Because of the chemicals' resistance to biodegradation, water and soil may be contaminated even in areas where AFFF is no longer used. This can present a challenge when airports are tasked with identifying areas in need of PFAS mitigation. 

Will Airports be Liable for PFAS Contamination?

There is much uncertainty regarding PFAS liability, so any entities that release these compounds into the environment will want to be prepared for potential legal concerns. The EPA has stated that it will not focus its CERCLA enforcement efforts on airports and municipalities that discharge PFAS. However, this stance is subject to change with little notice.

Some airports may also be counting on potential legislation that would create CERCLA liability protections for certain industries and municipalities that release PFAS. Even so, there is no guarantee that airports will be protected, as any such exemption would need to be passed by the United States Congress. Since it remains unknown whether or not airports will be exempt from liability, it is wise to be prepared by creating a plan for PFAS cost recovery.  

PFAS & Negative Public Perception

In light of the current heightened awareness of PFAS contamination, complying with current PFAS regulations may not be enough to assuage public concern. If PFAS contamination is discovered in public drinking water supplies, local residents may demand action to mitigate it, even if current regulations are being met. Many airports may already find themselves in the spotlight over other public environmental concerns, and PFAS issues will likely worsen the situation. In the current climate of intense scrutiny of the aviation industry for its environmental impact, this is a serious risk. Airports should create a clear plan for action and communicate transparently about their PFAS mitigation efforts, demonstrating their commitment to protecting public health and the environment.  

Fortunately, airport authorities can seek to recover the costs of PFAS remediation as well as any potential liabilities for drinking water contamination by holding PFAS manufacturers accountable. Many have already joined the AFFF multidistrict litigation (MDL), seeking to make those who produced PFAS pay the price for cleanup.

Understanding the AFFF MDL

PFAS are now so prevalent in the environment that they have been discovered in water sources across the country. As a result, airports, states, public water systems, and others have filed lawsuits seeking to recover the costs of necessary treatment and other management efforts. Since the lawsuits all make similar complaints against the same PFAS manufacturers, the cases have been grouped together before the same court in a multidistrict litigation (MDL). 

An MDL streamlines the beginning stages of litigation while preserving each plaintiff's right to trial with their own chosen lawyers. While MDLs can lead to "global settlements," each plaintiff can decide whether to enter into a settlement. The AFFF MDL reduces the initial burden on plaintiffs by allowing them to move through the early legal process more efficiently.

PFAS Litigation: A Success for Water Systems

The AFFF MDL has already proven to be a successful cost recovery source for U.S. public drinking water systems. In June 2023, 3M announced a class action settlement of up to $12.5 billion to resolve their PFAS claims, and DuPont and its related companies proposed a settlement of about $1.2 billion. While all public water systems are included in the class action settlements unless they opted out before the deadlines in December 2023, systems with pending lawsuits filed against 3M and/or DuPont are eligible for a "litigation bump" that, for systems that filed their lawsuits early enough, can increase their total settlement payout by about 25%.

Drinking water providers are just the first of several groups of plaintiffs involved in the MDL. There is still time for others affected by PFAS contamination to join the MDL and seek to hold manufacturers accountable for the cost of cleaning up pollution.

How Can PFAS Lawsuits Help Airports?

By tackling PFAS issues head-on, airports can stay ahead of federal and state PFAS regulations and seek to recover any cleanup costs they may incur. Legal strategies can help airports mitigate risks by recovering the cost of remediating contaminated sites. Additionally, litigation against the manufacturers shows that the airport is dedicated to protecting public health and the environment. In light of the increasing public scrutiny on the environmental impact of the aviation industry, taking a stand against PFAS can present airports as part of the solution. 

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

Is Your Airport Ready for New Regulations in 2024?

Given the complexity and potential legal implications surrounding PFAS at airports, it is crucial for airport authorities to stay informed. By understanding how PFAS and regulatory developments affect them, airport leaders can confront upcoming challenges with confidence. Contact our team to get support on a strong start in 2024.