FAA Bill Uncertainty: Airports Turn to Litigation for PFAS Cleanup

Amid shifting regulations, airports across the country may be required to implement costly procedures to mitigate PFAS (per- and polyfluoroalkyl substances, also known as “forever chemicals”) contamination without adequate funding resources. Airports were required to use AFFF (aqueous film-forming foam) containing toxic PFAS for emergency response and training exercises for decades without being warned of the health and environmental risks. Because these chemicals do not break down over time, PFAS contamination at airports  and unintended contamination of nearby drinking water sources is now a pressing matter,  including potential liability for airports. These challenges will only worsen now that PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonate), two PFAS chemicals found in AFFF, have been designated as hazardous substances under CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act).  

Some funding may eventually become available through the Federal Aviation Administration (FAA) Reauthorization Act of 2024, also known as the FAA bill, to assist airports with the transition to PFAS-free firefighting foams and cleaning of contaminated equipment, but these funds may not be sufficient to cover all of airports’ costs. Furthermore, the FAA bill did not include the comprehensive exemptions from CERCLA liability that many airport executives were hoping for. As a result, the financial burden of cleanup may fall on airports, which did not profit from the use of PFAS and had no choice but to use it for years. The need for alternative funding to cover potential financial risks due to PFAS contamination has led many airports to seek to hold PFAS manufacturers accountable. By shifting costs to manufacturers, airports can build financial resilience to prepare for the challenges to come.

FAA Bill PFAS Cleanup Provisions Fall Short

Every five years, the aviation industry looks to the FAA Reauthorization Act as a forecast of the funding and initiatives that will be available over the coming years. In 2024, all eyes were on the FAA bill’s impact on PFAS cleanup funding for airports and protection from CERCLA liability. Although the bill did include a proposal authorizing up to $350 million over five years for a PFAS replacement program, the full amount may not be approved by the United States House and Senate through the appropriations process. As of August 2024, the Senate Appropriations Committee had approved $70 million, fully funding the first year of the program, but the House Committee had only approved $5 million. The House and Senate will need to agree upon a final dollar amount for airports to receive these funds, and the total approved remains to be seen. If an agreement cannot be reached in time and the appropriations bill is not passed, Congress could even resolve to continue funding at previous levels, further postponing the availability of new FAA bill PFAS cleanup funding.  

In addition to funding for foam transition, many airport leaders were hoping to see a definitive exemption to CERCLA liability in the 2024 FAA bill. Since the FAA mandated airports to use PFAS-containing AFFF for decades, any resulting contamination should not be considered airports’ fault. Unfortunately, there was no broad exemption included in the bill. This puts airports at risk of being targeted by lawsuits over PFAS contamination.

What Should Airport Executives Know About the PFAS CERCLA Designation?  

CERCLA, also known as the Superfund, is an EPA program that makes polluters clean up contaminated sites across the country. While the program intends to hold polluting manufacturers accountable for cleanup costs, CERCLA has also led to some situations in which passive receivers have been saddled with legal and financial liabilities.  

Now that PFOA and PFOS have been designated as hazardous substances due to their serious health effects, 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. Furthermore, airports seeking to dispose of unused AFFF or contaminated rinsate from cleaning their equipment may need to comply with strict regulations. As a result, the CERCLA PFAS designation will likely lead to increased costs and other challenges for airports.  

Although the United States Environmental Protection Agency (U.S. EPA) has released a PFAS Enforcement Discretion and Settlement Policy stating that they will focus on industrial sources of PFAS contamination and avoid pursuing airports, decision-makers should still begin preparing for potential liability. Since the policy does not protect from third-party lawsuits, nearby communities may still sue airports over drinking water or environmental contamination due to historical PFAS releases. Even if an airport is eventually found not liable for pollution because it had no choice but to use AFFF, the airport litigation funding needed to defend against the lawsuit may be significant. With limited federal funding on the horizon, airports are in need of new sources to cover the costs of PFAS cleanup, foam transition, and potential legal issues.

The Financial Strain on Airports

Airports that have begun addressing PFAS and implementing fluorine-free firefighting foam transition plans know that cleanup efforts come with a high price tag. Estimates of the nationwide cost to mitigate PFAS contamination at airports vary, but the Department of Defense has estimated that the cost of cleanup at its airfields and similar facilities could exceed $3.8 billion. 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.

Potential Costs to Mitigate PFAS Contamination at Airports

Each airport's PFAS management plan must address its unique challenges and concerns, and contamination mitigation efforts are unlikely to be one-size-fits-all. Examples of expenses airports may encounter include soil and water testing, environmental consulting, and public relations assistance.

• Soil and Water Testing: When beginning to plan for PFAS remediation, the first step for any airport is to start testing for PFAS onsite. 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.  

• Environmental Engineering Consulting: Once the severity and location of PFAS contamination has been determined, it is essential to seek the guidance of an environmental engineering consultant. 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.  

• Public Relations: No contamination plan is complete without communications and public relations. In addition to testing and remediation, it will be important for airports to 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.

PFAS Litigation as a Viable Solution for Cost Recovery

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. Public water systems engaging in water contamination litigation to hold PFAS manufacturers accountable for cleanup costs recently saw landmark settlements from 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 secure funding to remediate their contaminated sites. Some airport executives may feel apprehensive at the thought of litigation, but these concerns can be alleviated by relying on a firm with extensive experience in contamination litigation and by filing lawsuits against large manufacturers rather than local businesses or government agencies. In fact, the vast majority of PFAS contamination nationwide was caused by just a handful of large corporations. By seeking to hold these manufacturers accountable, airport leaders can maintain positive relationships with their communities. Litigation against large 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 exploring legal cost recovery strategies for PFAS cleanup, especially if partnering with a law firm that works on a contingency basis, effectively gaining a seat at the table without financial risk.SL Environmental Law Group’s Experience and Support

SL Environmental Law Group is a firm dedicated to holding polluters accountable for contamination. Since 2003, we have helped over 150 clients, resulting in over $1.2 billion recovered in settlements and trials, to pay for the cost of contamination cleanup. Our firm takes the burden off of clients’ shoulders, allowing leaders to focus on protecting their communities. We provide guidance based on decades of experience helping those affected by contamination.  

By retaining SL Environmental Law Group on an investigatory basis, airports can explore their options to minimize risks with no upfront cost or commitment to future legal action. This can provide peace of mind for airport executives concerned about the future of shifting regulations and potential liabilities. To learn more about cost recovery strategies for your airport, schedule a free consultation with our litigation team.

‍