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by Singleton Schreiber, LLP and Group Delta

Introduction

The use of firefighting foam, mandated by the U.S. government, has long been an established practice at airports and aviation facilities nationwide. Research on the impacts of chemicals (per- and polyfluoroalkyl substances, referred to as PFAS) used in firefighting foam has raised concerns about widespread contamination and the health impacts associated with its use, however, and has resulted in new governmental regulations and litigation. These developments have significant fiscal and operational implications for airports, airlines, and aviation facilities.

This white paper presents information of interest to airports, airlines, and aviation facilities about PFAS contamination, regulations, liability, remediation, costs, litigation, and strategies. It includes useful tips and relevant facts designed to assist airports, airlines, and aviation facilities in navigating the changing regulatory and legal landscape related to PFAS.

Types of Firefighting Foam

The two major types of firefighting foam are categorized as Class A and Class B.

Class A Foam is used to extinguish Class A materials, such as wood, paper, brush and wildland vegetation, and it is widely used by many fire departments for structural firefighting using compressed air foam systems.

Class B Foam (also known as aqueous film forming foam) is used to extinguish Class B materials, which include gasoline, oil, and jet fuel.

Aqueous film forming foam (AFFF) or alcohol-resistant aqueous film forming foam (AR-AFFF) is a highly effective substance used for fighting high-hazard flammable liquid fires. AFFF is usually created by combining foaming agents with fluorinated surfactants, and PFAS are the active ingredients in these fluorinated surfactants. When mixed with water and discharged, the foam forms an aqueous film that quickly cuts off the oxygen feeding the fire, cools and extinguishes the fire, and prevents the fire from reigniting.

Why PFAS in AFFF Are Problematic

PFAS chemicals persist in the environment, drinking water, and the human body for extended periods of time. AFFF is a common sources of exposure to PFAS. Other sources include food packaging, nonstick cookware, stain repellent fabrics and upholstery, furniture, carpets, pesticides, manufacturing processes, and drinking water in more than 2,800 communities throughout the United States.

While the risks of exposure are not yet fully known, the Centers for Disease Control (CDC) reports that prolonged exposure to PFAS can cause cancer, liver damage, decreased fertility, reproductive and developmental problems, immune system dysfunction, and elevated cholesterol levels, and increases the risk of asthma and thyroid disease.

In addition, the CDC notes that PFAS are extremely persistent in the environment, waterways, wildlife, and the human body (the half-life of PFAS in the human body generally lasts from two to nine years) and are very resistant to typical environmental degradation processes. Over time, people may take in more PFAS chemicals than they excrete, a process that leads to bioaccumulation in their bodies, as reported by the National Institute of Environmental Health Sciences.

Firefighters and workers in the aviation industry are among those at greater risk for PFAS-related adverse health effects due to their increased exposure to AFFF, according to the CDC; however, a growing body of scientific research indicates that the general public is also at risk for the serious negative health impacts of PFAS exposure.

A study released in May 2023 by the U.S. Geological Survey (USGS) found that at least 45% of the drinking water nationwide is contaminated with PFAS. This USGS research marks the first time anyone has tested for and compared PFAS in tap water from both private and government-regulated public water supplies on a broad scale throughout the United States. Earlier studies revealed alarming levels of PFAS in the blood of U.S. residents. A 2015 study conducted jointly with the CDC found 97% of Americans have PFAS in their blood, and a study published by the CDC’s Agency for Toxic Substances and Disease Registry found the problem is often regional. In 2018, the general U.S. population had an average blood level of 1.4 micrograms per liter of PFAS in their systems, but some regions showed levels four times higher, and the numbers were exponentially higher in areas with airports and/or U.S. Air Force bases.

AFFF is considered the main cause of PFAS-contaminated drinking water in the United States.

When AFFF is released at airports and aviation facilities, whether deliberately or inadvertently, it spreads across the ground and infiltrates the pavement, soil, and groundwater at the release site. This can cause groundwater contamination that in turn can contaminate any water wells in the area. Drinking water wells for an airport may be located on-site; wells for the surrounding neighborhoods may be located adjacent to the airport. This phenomenon has been well-documented where wells adjacent to an airport are contaminated with PFAS due to AFFF-related activities at the airport.

Legislative and Regulatory Overview: The Path to Transitioning Away From AFFF

The U.S. House of Representatives passed the PFAS Act (S.231) on Dec. 1, 2022, after the U.S. Senate passed the legislation earlier in the year, and President Biden signed it into law on Dec. 20, 2022. The bill directs the Department of Homeland Security’s Federal Emergency Management Agency to establish guidance, educational programs, and best practices to protect firefighters and other emergency response personnel from exposure to PFAS from firefighting foam and prevent the release of PFAS into the environment.

On May 8, 2023, the Federal Aviation Administration (FAA) issued a report titled Aircraft Firefighting Foam Transition Plan. It describes the need to identify non-PFAS alternatives to AFFF, and it states:

On Jan. 6, 2023, the [Department of Defense] DoD published a new fluorine-free foam (F3) military specification (MILSPEC) to comply with the requirements for the Secretary of Defense and Secretary of the Navy set forth by the National Defense Authorization Act for Fiscal Year 2020. … The next step is for foam manufacturers to submit their F3 agents for qualification by DoD. Once DoD certifies that a foam meets the new MILSPEC, it will be added to the Qualified Product List.

The plan presents the following information (which has been condensed from the plan text and edited for brevity).

On Jan. 12, 2023, the FAA stated that once a new MILSPEC F3 is added to the Qualified Product List, the FAA will accept its use (in addition to the existing AFFF) for aircraft rescue and firefighting purposes at Part 139-certificated airports. Congress requires the Navy to have a new MILSPEC F3 firefighting agent available for use no later than Oct. 1, 2023. Once MILSPEC F3s are posted to the Qualified Product List, civil airports and airlines can begin their transition to these new foams.

The FAA and EPA encourage the expeditious transition away from PFAS-containing AFFF and toward MILSPEC F3s to reduce potential human health and environmental impacts from PFAS contamination. Proceeding with this transition as quickly as possible—taking into account passenger, crew, and firefighter safety and the availability of funding and of replacement MILSPEC F3 products—will reduce the potential for further environmental contamination from PFAS and future environmental liabilities.

Airports, airlines, and aviation facilities will need to decide whether to transition to MILSPEC F3 or to continue using AFFF as a firefighting extinguishing agent in the immediate future. At this time, the FAA has not mandated a transition to MILSPEC F3; however, airports, airlines, and aviation facilities need to be aware of applicable state laws and emerging federal requirements, which may require a transition to MILSPEC F3.

In addition, airports, airlines, and aviation facilities may also want to transition to MILSPEC F3 to protect public health and manage future liability risk. Furthermore, as foam manufacturers transition to producing MILSPEC F3, AFFF may become unavailable, which may force an earlier transition. Airports, airlines, and aviation facilities should establish a transition team for planning and executing this process.

While it is possible to project the cost of the MILSPEC F3 once it becomes available, it is difficult to determine the cost and time needed to adequately clean equipment that contained AFFF. Of course, these costs should be compared with the potential impacts and risks associated with continued AFFF use.

Factors to Consider

The following are just some of the factors that airports, airlines, and aviation facilities will need to consider in deciding how and when to transition to MILSPEC F3:

• The new foam’s availability, storage capability, and brand requirements;
• Management and handling of long-term storage containers for unused AFFF product and any generated cleaning rinsate (liquid generated from the cleaning process) and storage requirements for the new MILSPEC F3 product, including, for example, storage temperature requirements;
• The availability of state-sponsored collection or “take-back” programs for disposing of unused AFFF and cleaning rinsate;
• The feasibility of hiring a company to remove AFFF, clean equipment, and install MILSPEC F3 product compared with having staff perform this work;
• Disposition of old AFFF and rinsate requirements/methodology;
• Maintenance personnel requirements during the transition process;
• The availability of vehicle and foam manufacturers’ assistance with the selection of a MILSPEC F3 product and support during the transition process;
• State law or local union requirements to provide a health and safety plan for the transition operation;
• All federal, state, and local environmental regulations;
• The location where the transition will take place and whether an indoor location is available to minimize exposure to precipitation (temperature and weather can have an adverse effect);
• The potential of further contaminating equipment and facilities during the transitioning process;
• Identifying and allocating sufficient space for the vehicles, necessary cleaning equipment, new foam, and containers for old foam and rinsate if vehicles will be cleaned prior to installing a new MILSPEC F3 product;
• Attention to foam manufacturers’ recommended procedures and guidance on vehicle preparation and transitioning;
• Securing confirmation that all AFFF has been removed and the system has been flushed; and
• Availability of hazmat services in the event that a spill cleanup is necessary.

The FAA plan also notes:

In December 2020, in response to the FY2020 National Defense Authorization Act (NDAA), EPA released interim guidance that outlined the current state of the science on techniques and treatments that may be used to destroy or dispose of PFAS and PFAS-containing materials from non-consumer products, including AFFF. EPA scientists are working to improve scientific understanding of PFAS destruction and disposal technologies, and EPA plans to update the 2020 guidance to reflect both public comments and more recent published research results. Consistent with the FY2020 NDAA, EPA plans to issue updated guidance by December 2023.

Owners and operators of airports, airlines, and aviation facilities will need to keep all of these issues in mind as new products come to market and they develop their own transition plan.

EPA Regulatory Action on PFAS Contamination

On March 14, 2023, the U.S. Environmental Protection Agency (EPA) announced the proposed National Primary Drinking Water Regulation for six types of PFAS at 4 parts per trillion or less — and noted that no amount of PFAS is safe. The proposed rule sets maximum contaminant levels and will require public water system operators to:

• Monitor for these PFAS;
• Notify the public of the levels of PFAS present in drinking water; and
• Reduce the levels of these PFAS in drinking water if they exceed the proposed standards.

It is anticipated that PFAS will be designated a hazardous waste under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund. Additional regulations are likely to be issued for groundwater, and these regulations will require further action to remediate any contamination, which will be a very costly undertaking.

To recoup the high costs of remediation, public agencies charged with removing PFAS from their facilities, including airports, will likely take action against local sources of contamination — and PFAS manufacturers.

A Brief Overview of PFAS Litigation

Litigation for water contamination and other injuries caused by PFAS through AFFF has been consolidated in a multidistrict litigation (MDL) in the U.S. District Court for the District of South Carolina (Case No. MDL 2873), presided over by Judge Richard M. Gergel. The MDL has been in place since 2019.

Presently, over 3,000 cases are consolidated in the MDL, composed of individual plaintiffs alleging personal harm and entities seeking damages for cleanup costs and other harm. More than 40 defendants have been sued in connection with the AFFF litigation to ensure that they will be held accountable for the harm they caused. The first bellwether trials are underway.

One of these defendants, 3M, reached a proposed settlement for approximately $12.5 billion with all “Public Water Systems” in the United States on June 22, 2023. Judge Gergel must approve the formation of this “Class Action” settlement. The proposed settlement shows that defendants are coming to the table to resolve these disputes, so those harmed should assess their damages and consider and pursue all legal avenues available to them.

Trends, Mitigation, and Timely Issues

As noted earlier, worker exposure in public agencies and the private sector continues to be a growing concern, particularly for firefighters and aviation industry employees.

In addition to the regulatory enactments that appear imminent, the current posture of the MDL litigation proceeding in South Carolina presents a narrow window of potential opportunity for those harmed by PFAS contamination to obtain near-term recoveries.

Mitigating the property impacts of PFAS is a complex and costly undertaking. Properties with PFAS contamination typically require remediation, and finding efficient, cost-effective means of removing PFAS from contaminated water continues to challenge the EPA and scientists, as noted earlier.

Key Concerns in Dealing With PFAS

Consideration should immediately be given to the potential for risk to human health from PFAS releases. Are drinking water wells impacted by the releases from the airport? If so, to what degree and do these impacts represent a risk that requires mitigation?

One of the biggest mistakes commonly made at the outset of the process involves not correctly accessing the contamination, which results in a significant underestimate of impacted volume and area. This creates a nightmare scenario of unidentified costs. Obtaining a thorough understanding of impacts means thorough delineation. Emerging technologies exist for treatments, and they are changing rapidly. It is essential to employ the services of a team that is at the forefront of technology and well-versed in its application.

Failure to adequately characterize impacted AFFF equipment and construction materials resulting in improper disposal of waste can have unfortunate consequences as well. For example, if PFAS-impacted concrete, asphalt, or soil are reused on-site, this could result in the need for future removal of these materials that disrupts new construction associated with the reuse, and unnecessary contamination of a previously clean area of the airport.

In addition, allocation or responsibility should be a priority from the very earliest stages of investigation, starting with Phase I. Consideration should be given to all of the potential sources of PFAS, where those sources are on and adjacent to the airport property, and who should bear the costs of assessment and inevitable cleanup.

Understanding the risk tolerance of the airport client is also essential, so that an appropriate corresponding disposal option/treatment option can be selected. For example, incineration of waste can considerably reduce future risk and liability, but it is more expensive than landfilling.

Estimating the Remediation Costs

Delineating the PFAS impacts and who is responsible is an essential first step necessary to estimate remediation costs. Does PFAS contamination on your site impact groundwater and soil? Performing sampling and engaging an experienced team will provide data for identifying and refining the unique costs for your site.

The minimum estimated remediation costs for airports typically run between $1 million and $50 million. If there are multiple sites with multiple responsible parties, it is critical to correctly allocate the liability and associated costs.

While remediation costs can be significant, these expenses are just one element of the damages that will need to be assessed in order to develop and execute a strategy for recovering the costs.

Determining Potential Damages

The process of determining potential damages involves examining a number of areas and activities where PFAS contamination and its impacts result in costs to the airport, airline, or aviation facility. These areas and activities include:

• Site assessment;
• Regulatory interaction, including compliance with new regulations;
• Remediation of soil;
• Remediation of groundwater;
• Restoration of ecology/wildlife;
• Health effects on humans; and
• Staff time.

Site assessment scrutinizes places where AFFF is commonly found, including areas used for firefighter training; airline hangars where a system release has occurred, whether deliberate or unintentional; helipads; runways; and storage areas for drums containing AFFF.

As new regulations are adopted and implemented, including the transition away from AFFF to new approved alternative foams, coming into compliance will be a costly undertaking that will involve considering numerous factors, which are included in the earlier “Legislative and Regulatory Overview: The Path to Transitioning Away From AFFF” section of this white paper.

While each scenario will be different, it is not unreasonable to anticipate estimated damages ranging between $300,000 and $30,000,000 — depending on the number of people who file a claim, the regulations in place where the contamination is present, and the concentrations and extent of the contamination.

A rigorous scientific process, outlined below, is utilized to determine the estimated costs of potential damages and devise a legal strategy to recover those costs for your airport, airline, or aviation facility.

The Process of Gathering Data and Building a Case to Recover Damages

The process for determining the extent of PFAS contamination begins with hard data and includes the following steps.

1. All the existing data on contamination is collected in a “desktop study.”
2. Once all the existing data is in hand, it is examined to identify data gaps, and research begins on the extent and levels of potential PFAS contamination.
3. Based on the findings in steps 1 and 2, a phased approach is devised for sampling and for addressing the data gaps.
4. The data is utilized to identify the various “buckets” of damages. There are many sources of damages and associated costs involved, some of which are not items one might normally consider. It’s critical to keep track of every item of damages in order to accurately determine the costs.
5. The data and buckets of damages identified are used to devise a legal strategy to support the litigation to recover costs on behalf of your organization.

Additional Considerations

It’s critically important that the team conducting the work collecting and analyzing the samples is experienced and adheres to strict protocols, because it is a proscribed process that has inherent potential for cross contamination. Collecting and analyzing samples that contain concentrations measured in parts per trillion is highly skilled work, and assiduously following the protocols is absolutely essential in order to avoid the risk of cross contamination. In addition, the cost of testing is typically at least $400-$500 per sample; thus, it is critical not to waste samples due to cross contamination.

Finally, as the prevalence of PFAS testing increases in conjunction with stricter regulations, the capacity of the labs that conduct testing and analysis is being stretched thin. The infrastructure to analyze samples has to catch up with the demand, which is slowing the process of testing and analysis overall. The good news, however, is that these labs are beginning to gear up and add facilities to meet the increased demand; it will simply take time.

Conclusion

Airports, airlines, and aviation facilities face daunting challenges in addressing PFAS contamination, determining the likely costs associated with the process, and planning for mitigation, the transition away from AFFF, and cost recovery. With adequate professional support from a team of experts, however, these challenges can be overcome; thorough advance preparation, meticulous attention to detail, and thoughtful execution are the essential components of a successful PFAS/AFFF strategy and response.

About the Authors

Group Delta has a long history of working on airport properties and navigating the safety aspects and issues related to internal and external regulatory environment, unions, work notifications, project labor agreements, security badging, site access requirements, airport escorting policies, and access to areas operated by airlines and fuel facilities, as well as the environmental and geotechnical aspects of the work.

The firm has developed work plans for PFAS assessment, assessed releases on airport property, and provided remedial options and oversight of cleanup activities. Group Delta has provided oversight for removal of aircraft firefighting foam equipment from a major airport hangar and has tested process water and equipment for PFAS as part of the process for evaluating the proper disposal of these wastes. In addition, the firm has provided plans for assessing PFAS-impacted concrete and asphalt for proper handling and disposal of these materials during airport construction activities.

Group Delta offers all levels of environmental services, from cradle to grave, on these projects. One team manages all aspects of environmental work, which provides a seamless, efficient, cost-effective operation.

Singleton Schreiber is a client-centered law firm specializing in mass torts and multi-district and environmental litigation. We combine creative and innovative legal advocacy with a fearless courtroom presentation to protect and safeguard our clients’ interests every step of the way.

With over 75 years of collective experience, Singleton Schreiber’s Environmental Litigation Division brings together accomplished attorneys from varied backgrounds who have counseled public and private clients impacted by devastating environmental disasters and litigated some of the country’s largest water contamination lawsuits.

Over the past decade alone, our trial attorneys have recovered more than $2 billion for our clients. With hundreds of jury trials and decades of litigation experience, Singleton Schreiber attorneys have helped thousands of clients obtain justice. And while our attorneys offer diverse perspectives and backgrounds, we share a common goal: putting clients first.