AFFF PFAS Contamination Solutions for Airports

When aqueous film-forming foam, or AFFF, was introduced 50 years ago, its effectiveness at firefighting made it popular with emergency personnel at airports and military bases. Chemical compounds known as PFAS (per- and polyfluoroalkyl substances) found in AFFF repelled both oil and water and smothered the flames quickly. AFFF created a foam blanket that put out fires and provided additional protection by suppressing fuel vapors and preventing reignition. Its use quickly spread, not just to put out fires but in equipment testing, training exercises and during fuel spills as a preventative measure.

The effectiveness of AFFF came at a cost to the environment and public health, but airport and firefighting personnel were never told of the risks until many years later. Because users weren’t aware of the dangers, the foam was deployed frequently in training exercises at airports and other locations for decades. The practice resulted in substantial AFFF PFAS soaking into the ground, local streams, watersheds, drinking water, and ultimately humans. Further complicating the issue, PFAS do not break down in water or soil. As a result, firefighting foam left on the ground or spilled is still likely present, even decades later. These compounds' resistance to biodegradation means that they tend to accumulate in the environment, leading to higher levels of contamination over time.

As public concern over PFAS reaches an all-time high and potential federal regulations loom, aviation industry leaders may wonder what impacts of PFAS airports must address. Will PFAS cleanup be required? Who will be responsible for the cost of PFAS mitigation? And finally, what can be done to manage the financial risks?

Impending Federal PFAS Regulations

Exposure to PFAS has been associated with a wide variety of negative health impacts, ranging from elevated cholesterol to certain cancers. In an effort to protect the public from these risks, the U.S. EPA has announced its intentions to finalize national regulations for several PFAS compounds in 2024. If enacted, these standards will affect how airports must handle PFAS contamination and could result in new cleanup requirements.

The EPA has stated that it plans to finalize national drinking water standards for six PFAS compounds in the first half of 2024, creating maximum contaminant levels (MCLs) that would limit the amount of each chemical allowed to be present in public drinking water supplies. PFOS and PFOA, two compounds that were commonly used in AFFF, would be limited to 4 parts per trillion. The standards would also limit PFHxS, GenX, PFNA, and PFBS using a hazard index. Airports may find themselves at risk of liability if any contaminants found in nearby drinking water wells can be traced to their past use of AFFF.

The EPA has also stated that it plans to list PFOA and PFOS as hazardous materials under CERCLA by March 2024. If this occurs, entities that discharge these compounds would be obligated to report contaminant levels above a set threshold to the National Response Center and the appropriate local authorities. This could result in challenges for airports, potentially leading to further investigations, contaminant cleanups, and required public notifications of contaminated areas.

State Testing Requirements for PFAS at Airports

While the EPA's federal rules affecting PFAS in water and the environment are imminent, many U.S. airports have already faced an increase in regulatory pressures over the past several years. Some states have enacted their own regulations in addition to the pending the federal standards. States that require testing for PFAS in water sources tend to have specific guidelines for testing at and near airports. In areas where PFAS are detected, site characterization is then also required. Testing could draw attention to airports' history of AFFF PFAS use, potentially resulting in legal and financial liability.

What are the Costs of Regulatory Compliance?

For airports with PFAS detections, the EPA's upcoming regulations could create a financial burden. Water treatment to remove PFAS will require new treatment facilities, as traditional methods cannot remove or destroy it. Furthermore, ongoing testing, maintenance, and staff training will be necessary to ensure continued compliance.

AFFF PFAS Concerns for Airports

Rising concern about PFAS has led to new and evolving environmental requirements for airports. For example, the state of California requires drinking water wells located near airports to be tested for PFAS, as airports are considered likely contributors. The U.S. Department of Defense is investigating past PFAS contamination and has identified more than 400 military sites with significant legacy PFAS concerns, many of them at airbases or airports.

Transitioning to Aqueous Film-Forming Foam Alternatives  

Sustainable airports now have more support in their search for safer alternatives to AFFF, as the Federal Aviation Administration (FAA) is encouraging the transition to PFAS-free firefighting 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. At the direction of the U.S. Congress, the FAA released its Aircraft Firefighting Foam Transition Plan in 2023. It provides information on transition timelines, costs to airports, and other considerations to help the industry make the change to alternative foams.

Although the risks of AFFF use have been known for several years now, airports have had no choice but to continue its use due to a lack of available alternatives until very recently. Finally, the FAA announced in September 2023 that newly available fluorine-free foam (F3) products had met Military Specification, providing an option for airports to discontinue their use of PFAS-containing AFFF. While this update gives airports the opportunity to stop additional PFAS exposure to the surrounding environment, the cost of transitioning could prove to be prohibitive. Associated expenses may include the procurement and purchase of new firefighting products, additional training, and cleaning or replacing existing equipment that has been contaminated with PFAS from previous AFFF use.

Seeking Cost Recovery Through the AFFF MDL

As airports face an evolving regulatory environment and the high costs of maintaining compliance, many of them are joining property owners, personal injury plaintiffs, water systems, states, territories and tribes in the ongoing AFFF MDL (multidistrict litigation). The plaintiffs allege that the companies that made and sold AFFF containing PFAS knew these chemicals were harmful to human health and the environment but concealed the information. This also applies to airports, as they were required to use AFFF containing PFAS for decades without being warned of the health risks. Thus, airports may now be faced with significant cleanup costs, when PFAS manufacturers should be the ones held responsible for the contamination they caused.

MDLs are used to coordinate complex litigation filed in multiple federal district courts by similar parties. By consolidating the discovery and pretrial motions, both sides save time and money. The benefit for plaintiffs is that attorneys can pool their resources and coordinate efforts to take on large, powerful corporations. If early cases are resolved in favor of the plaintiffs, it usually results in a domino effect of settlements for the remaining cases. Typically, the presiding judge will steer the parties toward an agreeable resolution with a national settlement. An MDL settlement is not binding on any party without their agreement to participate, but it can provide efficiencies. If a case is not settled during an MDL, it is sent back to the original court for trial. 

U.S. public drinking water systems, the first cases to be addressed in the current AFFF MDL, have already set an example for other groups affected by PFAS. As a result of the litigation, they have been offered class action settlements totaling billions of dollars from PFAS manufacturers 3M and DuPont to help cover the cost of managing PFAS contamination. As airports have also been negatively impacted by PFAS without being informed of the dangers to the environment and public health, many are following the precedent of water systems by seeking to hold PFAS manufacturers accountable for the cost of contamination cleanup.

Benefits of AFFF PFAS Litigation for Airports

While the costs for cleaning up PFAS can be high, taking legal action doesn’t have to cost money upfront. Some law firms, including SL Environmental Law Group, front the costs of filing the lawsuit and only get paid if and when the case is won. This type of arrangement is known as a contingency fee. A contingency arrangement is especially helpful to small airports with limited financial means, but airports of all sizes benefit from the structure, reducing the risk of participation.

Additional plaintiffs can still join the AFFF MDL, which is likely one of the faster routes to a party if it has been polluted by AFFF. Proceedings are already underway for water providers, which effectively reduces the time to achieve a settlement or trial verdict, making now a good time to join. 

The Department of Defense has estimated that the cost of cleaning up PFAS at its sites alone could cost more than $2 billion, but the reality is that no one knows what the full cost will be. The enormity of the contamination is just beginning to be realized and could rival the clean-up of asbestos and lead. This has led to a consortium of legal firms that are well-equipped to handle complicated legal, scientific and political issues involved in these types of cases.

Suing the parties responsible for the pollution is a smart solution that helps pay for critical treatment costs. The chemical companies that caused the contamination should bear these costs. The law holds those companies liable for the problem, which is why many U.S. airports impacted by PFAS are seeking legal counsel. When the safety and health of future generations are at stake, using every tool to tackle the challenge just makes sense.

Learn More About Your Airport's Options

As federal regulations loom ahead in 2024, it is advisable for airports to begin planning their PFAS management strategies. Whether their unique situation includes contamination of soil and water near the airport or PFAS detections in nearby drinking water supplies, any mitigation efforts are likely to result in high costs. Litigation can be an effective strategy for holding the manufacturers of pollutants responsible for cleanup. To learn more about ways airports can minimize their financial risks and liabilities, download our free guide, PFAS at Airports: Why Airports Need to be Proactive in 2024.