Developing PFAS Regulations Provide Cause To Take Action Against Polluters Now
By Kelly Fredericks and Ken Sansone
On October 18, 2021, the U.S. EPA released its PFAS Strategic Roadmap which sets timelines to take specific actions for regulating 29 man-made perfluoroalkyl and polyfluoroalkyl substances (PFAS). Many state regulatory agencies already request or require water systems to test for an expanded list of these chemicals. Most states that require testing are requiring it at and near airports and military sites where aqueous film-forming foam (AFFF) containing various PFAS compounds was likely used, for potentially decades, to extinguish fires — and to conduct training exercises where large volumes of the foam were often discharged onto the soil.
On June 15th, 2022, the EPA announced new health advisories for perfluorooctanoic acid (PFOA) at 0.004 ppt and for perfluorooctane sulfonic acid (PFOS) at 0.02 ppt. PFOA and PFOS were found in AFFF and are two of the PFAS chemicals that have been found most frequently in water and soil. The previous health advisory for both chemicals was 70 parts per trillion (ppt). Cutting a health advisory by 17,000 times, as is the case for PFOA, is significant and is based on new science recognizing a link between serious negative health effects and exposure to PFOA or PFOS in water at near-zero concentrations. Research has linked this toxic class of chemicals with kidney and testicular cancer, among other serious health problems. More adverse effects are still being researched and discovered.
Before the EPA issued these new health advisories, 16 states had already enacted their own binding maximum contaminant levels (MCLs) for PFOA, PFOS, and certain other PFAS compounds. The EPA has announced that it plans to issue proposed national MCLs for PFOA and PFOS by the end of 2022, and to finalize those MCLs by the end of 2023. These national MCLs would apply throughout the country and take precedence over higher MCLs that have been set by individual states. In addition, because the EPA will formulate these MCLs based on its health advisories, it is expected that the MCLs will be set at very low concentrations.
Most recently, On August 26th, 2022, the EPA released its draft regulations to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The Superfund program, as CERCLA is often referred to, began as a way to hold polluters accountable for releases of hazardous substances that could endanger public health and the environment, but the designation of PFOA and PFOS as hazardous materials could extend liability to anyone who owns or operates property where products containing these materials — like AFFF — have been used.
How Does This Affect Airports?
Unlike the manufacturers of PFAS, airports and the firefighters who worked there weren’t aware of the health risks or consequences of AFFF, so it was used frequently in training exercises at airports and other locations. The practice resulted in large volumes of AFFF soaking into the ground, where the PFAS it contained could easily reach local drinking water supplies and other natural resources, and, ultimately, the public who rely on them. While most airports today are using FAA approved input-based testing equipment to ensure the safety of their firefighting foam (and to fulfill part 139 AFFF Testing requirements), they could still be held responsible for the use of PFAS-containing foam at their facilities in the past. PFAS have earned the nickname “forever chemicals” because they don’t naturally break down in water or soil, so PFAS contamination from historical uses of AFFF is likely to have persisted at airports where it was used or stored.
As drinking water is one of the most common ways humans are exposed to PFAS, contaminated water must either be abandoned or cleaned up. Building treatment facilities for PFAS in groundwater can cost millions of dollars and require costly operation over decades. If PFAS are designated as a hazardous substance as EPA has announced, then PFAS-contaminated treatment media will need to be dealt with according to hazardous waste protocols making it more costly and difficult to dispose of.
When the new nationwide MCLs and the designation of PFOA and PFOS as hazardous substances under CERCLA come into effect, there is likely to be a significant increase in the reporting of PFAS contamination at sites throughout the country, with the most contaminated or hazardous sites deemed national priority sites under CERCLA. Because of the near-ubiquity of AFFF made with PFAS in aviation operations, these sites are likely to include airports.
The federal government has made some funding available to communities affected by PFAS, including the Infrastructure Law, which provides $10 billion in funding to specifically address PFAS and other emerging contaminants in water. However, some of that funding is available only to communities with specific attributes; for example, $5 billion is earmarked for small communities and those that were historically underserved.
Airports Are In A Good Position To Hold Polluters Accountable
Fortunately, the law can be used to hold manufacturers whose defective products cause environmental contamination responsible for the cleanup costs. Nearly all PFOA and PFOS sold in the U.S. originated with just two manufacturers, 3M and DuPont, who were aware of the environmental and human health risks of these products for decades. As a result, many governmental entities have chosen to file lawsuits and hold PFAS and AFFF manufacturers financially responsible for the costs associated with PFAS contamination including cleanup, installing, and operating PFAS treatment facilities.
As airports face an evolving regulatory environment, many are joining property owners, personal injury plaintiffs, water systems, states, and other public agencies in pursuing litigation against PFAS manufacturers. These cases have been consolidated into a multi-district litigation (MDL) proceeding which has been created to efficiently coordinate complex litigation filed in multiple federal district courts across the country.
The benefit for the plaintiff in the MDL process is that attorneys can pool their resources and coordinate efforts to take on the defendants. If early cases are resolved in favor of the plaintiffs, it often results in a domino effect of settlements for the remaining cases, which can be resolved without requiring lengthy discovery and pre-trial litigation processes. Typically, the presiding judge tries to steer the parties toward an agreeable resolution with a national settlement. Unlike a class action settlement, an MDL settlement is not binding on any party without its agreement to participate; if a case is not settled during an MDL, it is sent back to the plaintiff’s home court for trial.
Additional plaintiffs can still join this MDL-2873, which is likely one of the faster routes to a party if it has been impacted by PFAS from AFFF. Proceedings have been underway for water providers for three years, so plaintiffs who join now effectively get the benefit of that earlier work and face a shorter time until potential resolution of their cases.
For example, September 15, the MDL judge recently ruled against 3M and other manufacturers of AFFF who had argued that, because they produced AFFF according to specifications provided by the military, they could not be held liable for any resulting PFAS contamination. The court found that these manufacturers of AFFF had significantly greater knowledge than the government about the properties and risks associated with their products and knowingly withheld highly material information from the government, so the fact that they made AFFF for the government was no defense.
As of August 2022, there were over 2,500 cases pending in the MDL, and, as testing for these chemicals is on the rise with regulatory changes imminent, this number is expected to grow. Indeed, the enormity of PFAS contamination is just beginning to be realized and could rival asbestos and lead for the total cost of investigating and remediating contamination. Parties that take legal action sooner are more likely to receive adequate funds than those that take a wait-and-see approach.
While the costs for cleaning up PFAS can be high, taking legal action doesn’t have to cost money up front. Some law firms, including SL Environmental Law Group, work on a contingency basis — meaning that the firms advance the costs of litigation and are paid only if there is a successful outcome. A contingency arrangement is especially helpful to small airports with limited financial means, but airports of all sizes benefit from the structure, which virtually eliminates the financial risks associated with litigation.
The public’s understanding of the dangers and prevalence of PFAS is exploding as the mainstream media continues to ramp up coverage around the globe. Organizations that are suing these polluters are demonstrating to the public a responsible approach for covering the costs associated with the cleanup versus asking ratepayers to foot the bill.
Kelly Fredericks, PE, AAE, is Aviation Technical Advisor for SL Environmental Law Group.
Ken Sansone is Partner at SL Environmental Law Group.