Aqueous film-forming foam (AFFF) was introduced 50 years ago as an effective way to put out fire. Thanks to two chemical compounds from the PFAS family found in AFFF – PFOS and PFOA – that repel both oil and water, AFFF creates a foam blanket that smothers flames and prevents reignition. Unsurprisingly, the product quickly became a popular choice for equipment testing, training and fuel spills at military bases and airports.
A growing body of research has linked PFAS to cancers, kidney disease, low infant birth weights, and hormone disruptions, but firefighting teams and airports did not initially know about these health consequences and so they continued to use AFFF. Consequently, large amounts of toxic chemicals from the foam spread across airport grounds and eventually entered the soil, surface water, and groundwater.
Learning about PFOA and PFOS contamination in the soil or local groundwater supplies has raised many questions from airports. For example, did the contamination come from the airport personnel’s use of AFFF? Who is responsible for cleaning up the soil or the water? How much will it cost and who should pay?
PFAS contamination and cleanup responsibility are a growing concern and have already begun to impact states, municipalities, water suppliers, and now airports. Below we share guidance on where regulation is heading, and what options are available and advisable, based on timing and risk, for airports concerned about AFFF water contamination.
Escalating PFAS regulation
In October of 2021, the EPA released its PFAS Strategic Roadmap which sets timelines to take specific actions for regulating 29 PFAS substances. In June of 2022 the EPA announced a new health advisory for PFOA and PFOS, 0.004 ppt and 0.02 ppt respectively. The previous health advisory for both chemicals was 70 ppt. In March 2023, the EPA released its proposed maximum contaminant levels (MCLs) for Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonate (PFOS) - two common types of PFAS substances. Under the proposed MCLs, drinking water suppliers across the country would be forced to respond if concentrations are found in excess of 4 parts per trillion (ppt) by either taking the contaminated sources out of service or treating the contaminated sources. In addition, the EPA has proposed a rule to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), particularly affecting places where PFAS tends to accumulate – like soil and groundwater soaked with AFFF.
The EPA isn’t the only agency to start regulating PFAS. Many states are enacting their own rules, regulations and enforceable standards. New Jersey became the first state to adopt an MCL for for PFOA (14 ppt) and PFOS (13 ppt) in drinking water. Fifteen more states have set their own MCLs for various PFAS substances and the trend in detection levels is tightening.
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 contamination, 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 air bases or airports.
The cost of cleanup
Cleaning up PFAS in the water can be costly. Building PFAS treatment facilities can cost millions of dollars and require costly operation over several years and even decades. If treatment is not an option, contaminated sources may be deactivated while water systems find alternate drinking water supplies.
The Department of Defense has estimated that the cost of cleanup at its sites alone (including airfields and similar facilities) could be more than $3.8 billion, but the reality is that no one knows what the full cost will be. The enormity of PFAS contamination is just beginning to be realized and could rival the clean-up of asbestos and lead.
Joining the PFAS MDL
As airports face an evolving regulatory environment and the potential of increased costs, many of them are considering joining property owners, personal injury plaintiffs, water systems, states, territories and tribes in a multidistrict litigation (MDL) suit. 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 and are therefore responsible for the cost of cleanup.
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. If early cases are resolved in favor of the plaintiffs, it usually results in a domino effect of settlements for the remaining cases. Additionally, an MDL settlement is not binding. If a case is not settled during an MDL, it is sent back to the original court for trial. Previous PFAS MDLs have found corporate polluters responsible for cleanup costs. Because there is precedence for this legal strategy, and because an MDL streamlines the legal process, joining is a popular choice.
The benefits of taking action
There are a few critical reasons why it behooves airports to take action now rather than wait and see if the industry is exempt from federal legislation:
- Timing. There is a time limit that applies to every legal claim, called the statute of limitations. Outside of special circumstances, claims brought after the statute of limitations has run out cannot be brought to court, no matter how valid or valuable they are. The time to bring a lawsuit and what triggers the clock varies from state to state. At this point, airports are still able to join the multidistrict litigation suit. Proceedings are already underway for water providers, which effectively shaves off three years (the duration the MDL has already been pending) to settlement or trial verdict, which makes now a good time to join.
- No Risk. Some law firms, including SL Environmental Law Group (SL), work on a contingency basis; the firm fronts the costs of filing the lawsuit and only gets paid if and when the case is won. If you pursue litigation on a contingency basis but an industry exemption is created, you've lost nothing. If an exemption is not created, you've preserved your claims and a "seat at the table." Either way, you are well-positioned to respond.
Many U.S. airports impacted by PFAS contamination are considering taking a legal approach and joining the PFAS MDL. Doing so is non-binding and allows for being proactive while regulation unfolds.
To understand your options, including how impending regulation may impact you, what your state’s statute of limitations is, and whether retaining a firm like SL makes sense for your airport, schedule a free consultation with one of our team members.