How CERCLA’s New PFAS Regulations Affect Airports

In April 2024, the Environmental Protection Agency (EPA) designated PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonic acid) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as “Superfund.” This broad designation has targeted many industries that have relied on these substances to extinguish fires, package food, and make countless consumer products, forcing them to seek alternatives while wondering whether they will be held liable for the spread of these chemicals, exposure to which has been linked to infertility, lower birth weight, and thyroid cancer, among other health conditions.

PFOA and PFOS are key ingredients in water-based firefighting foam (AFFF), so many airports have taken key proactive steps to switch to fluorine-free foam and decontaminate their equipment to comply with the FAA’s Aircraft Firefighting Foam Transition Plan. However, the implications of CERCLA’s hazardous substance designation for airports are far-reaching. The aviation industry is now grappling with the repercussions of the historic (and mandatory) use of AFFF, which inadvertently made them traditional polluters of these perennial chemicals, contaminating their sites as well as nearby groundwater, soil, and air.

The Department of Defense has estimated that the cost of cleaning up its airports and similar facilities could exceed $3.8 billion. However, the true cost of this cleanup is still unknown. The scale of PFAS contamination is only just beginning to be realized and is expected to exceed asbestos and lead cleanup efforts, which would pose a significant financial burden on affected entities. This includes airports, which could incur significant costs for on-site remediation, public relations efforts related to addressing the airport’s environmental impact, and potential lawsuits from third parties for legacy contamination.

PFAS chemical manufacturers 3M and DuPont knew about the health risks associated with exposure to PFOA and PFOS long before the public did. Recognizing that these and several other manufacturers are the source of this global, perpetual chemical contamination, the EPA has said it will not pursue public entities such as landfills, water utilities, and airports. It has proposed changes to the CERCLA designation for PFAS to exclude these entities from liability through statutes such as the Fire Suppression PFAS Liability Protection Act and the Airports PFAS Liability Protection Act.

It is uncertain whether these bills will pass, however, and these limitations on airport liability do not reduce the costs of on-site remediation and bad press. The extent of contamination varies by site and is not fully understood. However, some estimates put the cost of a single airport PFAS cleanup at tens of millions of dollars.

How to prepare for the unknown

As policies and best practices for PFAS cleanup are still being considered, it’s understandable that airport organizations are unsure where to begin. As recommended to water utilities that have dealt with this contamination, the first step for every airport is to begin testing for PFAS on-site. Testing provides airports with the information they need to identify PFAS hotspots, contribute to the broader conversation about contamination with local regulators, water suppliers and fire departments, and support legal claims against known PFAS producers.

Consulting with an environmental engineering consultant when developing a PFAS plan is essential. Once testing begins, environmental specialists can assist in the technology selection process by conducting pilots to determine the costs, effectiveness, and necessary treatments to remove and destroy PFOA and PFOS from your site.

No contamination plan is complete without communication and public relations. In addition to testing and remediation, airports must build trust with the local community by being transparent about their progress toward implementing their PFAS action plan. Proactively addressing the “unsolvable problem” 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 could benefit your organization in the event of a contamination event of this magnitude. However, it does require resources that not all airports have.

Follow the leader

To fund PFAS remediation initiatives, many airports have joined property owners, water systems, and states in pursuing litigation against PFAS producers in multidistrict litigation (MDLs) designed to effectively coordinate complex litigation filed in multiple federal district courts. The litigation, which seeks to hold PFAS producers accountable for cleanup costs, recently resulted in landmark settlements between water suppliers and 3M, which agreed to pay up to $12.5 billion, DuPont, which settled for $1.1859 billion, Tyco, which offered $750 million, and BASF, which also recently offered a settlement for $316.5 million.

Legal strategies can help airports recover the costs of remediating their contaminated sites. Litigation against manufacturers also shows that airports are committed to protecting public health and the environment. Given the growing 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 advice and using legal expense recovery strategies to clean up PFAS. For example, by taking on litigation with a law firm that operates on a fee-based basis, airports can gain a seat at the table without financial risk because they don’t pay until they recover the funds.

Whoever gets up in the morning, the Lord God gives

Many airports may already be in the spotlight due to public environmental concerns, and PFAS will likely make matters worse. Airports should create a clear action plan and transparently communicate with relevant community and national stakeholders about their PFAS mitigation efforts.

At this point, airports can still join the AFFF MDL. However, the statute of limitations applies to every legal claim. Barring special circumstances, claims filed after the statute of limitations have expired cannot be brought in court, no matter how valid or valuable they are. The time to file a lawsuit and what starts the clock varies by state.

During the MDL process, we have seen early litigants benefit from their proactive approach. For example, water systems that filed PFAS lawsuits before settlements were reached can now recover up to 25 percent more than similarly located water systems that did not. Additionally, there is no guarantee that any future settlements will cover airports that did not file their own lawsuits. Aviation is now in a position where the drinking water industry was three to five years ago. Now is the time for airports to initiate a legal strategy against PFAS polluters to mitigate risk and protect budgets.