CERCLA Hazardous Substance Designation: Airport PFAS Solutions

In recent years, the aviation industry has weathered a growing storm of regulatory and public pressures to improve its environmental impact. Now the United States EPA has officially designated PFOS and PFOA, two legacy PFAS compounds, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund. This development will have far-reaching implications for airport operations for years to come.

Perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) are PFAS compounds that have historically been found in aqueous film-forming foam (AFFF) used for firefighting and required training exercises at airports. These chemicals were useful in putting out fires quickly, but manufacturers failed to warn users of their many health risks including certain cancers, liver and heart issues, thyroid disease, and immune and developmental damage to infants and children. Because PFAS do not break down in the environment, levels of these chemicals may have built up over time in areas where AFFF was discharged. As a result, although airports had no choice but to use AFFF for years, they may have become sources of PFAS contamination. This could put airports at risk of potential liabilities under the new CERCLA designation.

Airport authorities may be wondering how exactly the hazardous substance designation will affect them. Will they be fully protected from liability? When will requirements go into effect, and what can they do now to prepare? And finally, how can they secure funding to cover any airport PFAS cleanup costs and mitigate financial risks? In this article, we will address these questions and provide options for cost recovery.

Understanding the CERCLA Hazardous Substance Designation of PFOA and PFOS

The EPA began utilizing CERCLA over 40 years ago as a tool to protect public health, clean water, and the environment by mandating remediation. Through the program, the EPA strives to make polluters clean up contaminated sites across the country. Over the years, many sites have been restored to safe levels, allowing for people and businesses to begin using them again. PFOA and PFOS are just two of over 800 substances that have been designated as hazardous to date. While the intent of the program is to hold polluting manufacturers and industrial users accountable for the cost of cleanup, CERCLA has also led to some situations in which property owners or other passive receivers have been saddled with legal and financial liabilities.

Once the PFOA and PFOS hazardous substance designation goes into effect on July 8^th, 2024, the EPA will be able to order investigations and cleanups in areas where elevated concentrations of the compounds have been detected in soil and/or water. In addition, entities will be required to immediately report PFOA and PFOS releases of one pound or more within a 24-hour period to the National Response Center, State, Tribal, and local emergency responders. Reportable releases could include AFFF leaks, spills, or even uses during emergency events. Furthermore, airports seeking to dispose of unused AFFF or contaminated rinsate from cleaning their equipment may need to comply with strict regulations. These changes will likely lead to increased costs and other challenges for airports.

What is the PFAS Enforcement Discretion and Settlement Policy?

The Federal Aviation Administration (FAA) required airports to use PFAS-laden AFFF for years without knowledge of its health risks. Although airports are passive receivers of PFAS in that they do not produce or profit from the chemicals, some industry leaders worry about potential CERCLA liabilities due to PFOA and PFOS that may linger at airport sites from past AFFF usage. This could result in airports bearing a large cost burden for contamination that should be the responsibility of PFAS and AFFF manufacturers. In response to these concerns, the U.S. EPA announced its PFAS Enforcement Discretion and Settlement Policy along with the final CERCLA designation. The policy aims to protect public entities by focusing enforcement efforts on major responsible parties such as manufacturers and industrial users. It states that the agency does not intend to pursue parties including publicly owned airports, local fire departments, community water systems, publicly owned treatment works, municipal solid waste landfills, and farms where biosolids have been land-applied.

However, the enforcement discretion policy will not make these entities fully immune to legal and financial threats. Airports may be targeted by cost recovery lawsuits from third parties. In such cases, these parties may claim that others have contributed to the release of PFAS into the environment and seek to make them help cover the cost of remediation. The enforcement discretion policy states that the EPA will try to restrict these lawsuits through its settlement agreements, but there is no guarantee that airports will be safe from all risk. Some public entities are also counting on pending legislation to provide more complete protections, but it is uncertain whether these bills will be signed into law.  

Even if legal exemptions are granted to airports, CERCLA's public reporting requirements will provide a strong incentive for airports to clean up any lingering contamination at their sites. In the current era of growing public scrutiny regarding PFAS in general, airports will want to avoid any potential for negative attention. With this in mind, it is advisable to minimize any potential PFAS risks as soon as possible.

When Will the Hazardous Substance Designation Take Effect?

The PFOA and PFOS hazardous substance designation under CERCLA will take effect on July 8^th, 2024.  This means that airports have only a limited time to prepare for the requirements of the ruling.

Preparing for Compliance: Steps Airports Can Take Now

In order to avoid unwanted surprises when the CERCLA designation goes into effect, airport leaders should begin assessing their PFAS situation and creating an action plan immediately, if they have not already done so. It is important to be aware of not only the EPA's requirements, but also any applicable state or FAA PFAS regulations and guidelines regarding the use and disposal of AFFF and other PFAS-containing materials. By planning ahead, aviation industry leaders will be better prepared for compliance.

Eliminate Airport PFAS Releases by Transitioning to F3

For many years, the FAA required the use of PFAS-laden AFFF at Part 139 airports to support safety and reduce fire danger. Once the public health risks associated with PFAS exposure became better understood, efforts began to seek alternatives that could maintain necessary levels of fire protection while avoiding contamination. In September 2023, the FAA announced that newly available fluorine-free foam (F3) products had met military specification (MILSPEC) and were available on the Navy’s Qualified Products List, providing an option for Part 139 airports to discontinue their use of AFFF.  However, changing to F3 may be more challenging and costly than anticipated.

U.S. airports may be at different stages in the transition process from AFFF to F3 depending on their specific needs and state regulations. Regardless of their status, it is vital to follow the appropriate protocols to minimize environmental releases of PFOA and PFOS. Accidental spills that occur while emptying tanks of old foam could now be considered reportable discharges of hazardous substances. In addition, inadequate cleaning of equipment that previously held AFFF can leave behind a layer of PFAS on the inside surfaces. Over time, these residual chemicals can leach into the new F3, leading to further contamination and potential environmental releases. Fire water systems may also need to be investigated for contamination, as backflow can sometimes allow PFAS to enter water lines. Ongoing testing and monitoring will be essential to mitigate the risk of future undetected PFAS releases into the environment. Airport decision-makers should consider consulting with an environmental engineering firm to determine the safest and most cost-effective transition plan.

Unfortunately, removing PFAS from firefighting equipment and fire suppression systems will not be as simple as replacing the foam itself. Airports switching from AFFF to F3 must now factor in the increased cost of destruction and disposal of hazardous substances. Airport leaders will need to evaluate methods to dispose of unused foam, rinsate from cleaning aircraft rescue and firefighting (ARFF) vehicles and fire suppression systems, and possibly even contaminated equipment parts. Standard landfills may not accept this waste now that it has been designated as hazardous. The three PFAS waste management methods described in the EPA's 2024 Interim Guidance on the Destruction and Disposal of PFAS are hazardous waste landfilling, thermal treatment, and deep well injection. All these strategies will be much more costly than traditional waste management methods, resulting in a need for new funding sources.

Challenges may continue even after successfully changing firefighting systems over to F3. For example, unlike AFFF, different types of F3 are not compatible with one another, meaning that they cannot be safely mixed together when refilling tanks. Furthermore, additional training may be advisable for firefighting personnel, as the effective methods of product application are different from AFFF. When transitioning to F3 and planning for new requirements under CERCLA, it is essential to consider all potential factors that could affect an airport's finances and operations.

Mitigate Potential CERCLA Liability

Despite the EPA's reassurances that they will not actively pursue enforcement against public airports, many questions regarding airports' liability under CERCLA remain unanswered. The risks of third-party lawsuits, unknown contaminant levels due to historical AFFF use, and hazardous waste disposal may all become significant concerns for the aviation industry. Airports may find themselves entangled in legal battles as other parties seek to shift blame and recover costs from passive receivers. Considering these risks, airport leaders should act quickly to discontinue any ongoing use of PFAS and remediate contamination.

Steps to take now to help reduce potential risks include:

• Conduct testing to locate potential areas of contamination due to historic use of AFFF.
• Select appropriate PFAS destruction and disposal methods according to state and federal regulations and guidelines.
• Consult with legal counsel to navigate the complexities of CERCLA liability.
• Explore opportunities for cost recovery and financial assistance to lessen the impact of PFAS remediation efforts.

By evaluating and addressing any PFAS concerns as soon as possible, airports can minimize their potential risks in the months and years to come.

Managing the Financial Risks of PFAS Contamination

Only time will tell how much PFAS removal will ultimately cost for affected entities. 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. Industry estimates vary widely, but there is agreement that the expense will present a challenge for airports, drinking water and wastewater utilities, municipalities, and other passive receivers of contamination.

Exploring Funding and Assistance Options for Airports

Some federal funding has been set aside to help entities affected by PFAS contamination, but much of it is earmarked for use by public drinking water utilities, and therefore may not be accessible to airports. The Bipartisan Infrastructure Law dedicated $9 billion in funding to address PFAS and other emerging contaminants in drinking water, plus an additional $12 billion for general drinking water investments, which may include PFAS treatment. While these funding sources will be instrumental in lessening the financial burden of PFAS on public drinking water providers, they may be difficult or impossible for airports to utilize.

Faced with high costs and limited financial resources, some airport leaders may have previously opted to postpone PFAS remediation projects. Now that PFOA and PFOS have been designated as hazardous substances, however, it is essential to act as soon as possible to clean up contamination and protect against any potential liability. These efforts will require new funding sources to meet growing needs.

Considering Legal Cost Recovery Options

The increasing financial pressure on passive receivers of PFAS contamination begs the question: Why aren't the manufacturers who created and profited from these dangerous chemicals bearing more of the cost? In fact, many affected utilities, states, property owners, and others have opted to file lawsuits seeking to hold manufacturers accountable while protecting their ratepayers and residents from high costs. Many of these cases have been consolidated into the AFFF MDL (multidistrict litigation), which coordinates similar cases filed in multiple federal district courts to streamline the legal process.

The AFFF MDL has already proven to be an effective cost recovery strategy for participating drinking water systems. In 2023 and 2024, large-scale PFAS manufacturers 3M, DuPont, and Tyco offered settlements to water systems across the country. While the settlements so far only apply to drinking water providers, they demonstrate the potential for significant cost recovery through litigation and serve as an important step forward for PFAS-impacted communities.

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. 

The financial, operational, and legal impacts of PFAS contamination are only beginning to be understood. There will be lasting repercussions, and the full investigation and remediation cost could rival that of asbestos and lead. Litigation can be helpful in seeking to make manufacturers, not the public, shoulder this burden.

Holding PFAS Manufacturers Accountable for AFFF Contamination

Similar to the cases filed by water systems, airport PFAS cost recovery lawsuits utilize product liability law to hold manufacturers responsible for contamination. This approach is not new - in fact, for years many manufacturers have been obligated to pay for damages to human health and safety caused by their failure to warn customers of defective and dangerous products. There is evidence that 3M and DuPont were aware of the environmental and health risks of PFOA and PFOS long before they revealed this information to the public, or even to the U.S. government. Airports that have joined the AFFF MDL seek to place the financial responsibility for cleanup efforts where it belongs - with the manufacturers who profited from the production and sale of PFAS.

What are the Benefits of Early Legal Action?

Airport administrators considering legal cost recovery strategies can learn from the experience of drinking water providers. For example, water systems that took action early and filed lawsuits before the 3M and DuPont settlements were proposed in June 2023 received a litigation bump that increased their expected payouts by up to 25% compared to the utilities that waited to join until the settlements were agreed upon. While this is not guaranteed in every settlement, it does indicate that there may be benefits to taking legal action sooner rather than later. Additionally, it is unknown whether any potential future settlements will include airports that did not file their own lawsuits. By seeking legal counsel now from a firm that operates on a contingency basis and considering early action, airports incur no additional financial risk while mitigating future threats.

Discover Your Airport's PFAS Cost Recovery Potential

Now that PFOA and PFOS have been designated as hazardous substances under CERCLA, airports with historical or current use of AFFF should take action to mitigate any potential liabilities and cleanup costs. Airports that retain SL Environmental Law Group on an investigatory basis can learn about their options to minimize risks with no upfront cost or commitment to future litigation. To learn more about cost recovery strategies for your airport, schedule a free consultation with our legal team.