News

CERCLA Designation

On April 17, 2024, the USEPA designated two per- and poly fluoroalkyl substances (PFAS) – perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), both historically used for decades nationwide at airports in Aqueous Film-Forming Foam (AFFF) – as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The designation is significant for airport operators because they may be held legally liable for current and past releases of PFOA and PFOS (i.e., required to perform environmental remediation of PFAS contamination or to pay for such remediation), and because other statutory requirements, like release reporting, may also apply to certain releases.  The final rule (https://www.federalregister.gov/documents/2024/05/08/2024-08547/designation-of-perfluorooctanoic-acid-pfoa-and-perfluorooctanesulfonic-acid-pfos-as-cercla-hazardous) went into effect on July 8, 2024.  Chemical companies and water utilities have already filed suits to challenge the final rule, but it is currently in effect.

Four classes of parties are potentially liable under CERCLA:

• entities that currently or formerly owned a facility where there was a release of a designated hazardous substance;
• parties that currently or formerly operated at a facility where there was a release;
• entities that arranged for the disposal of contaminated materials
• entities that transported the contaminated material to a disposal facility. 

Airport operators nationwide would qualify as current or former owners or operators of facilities where historic discharges of AFFF occurred, and may qualify as arrangers if they sent or send contaminated material to a facility where there is a release.  In addition to potential enforcement by EPA, parties responsible for releases of PFOA and PFOS could also be targets of cost recovery lawsuits by other liable parties (e.g., airport tenants, nearby landowners, utilities affected by PFAS contamination, etc.) 

CERCLA liability is uniquely harsh because it is strict, joint and several, and retroactive, meaning that:

• An airport operator can be liable despite lack of fault or negligence (strict),
• An airport operator can be liable for the full extent of the cleanup costs, even if other parties contributed to the release (joint and several); and
• An airport operator can be liable for a release that occurred prior to the enactment of CERCLA in 1980 (retroactive).

Since the designation, some contractors are hesitant to haul potentially PFAS impacted soil, asphalt, and concrete, unless the owner of that material can provide substantial documentation that the material is not impacted by PFAS or is willing to provide indemnification for any liability resulting from the contractor’s disposal. 

The designation also imposes PFAS release reporting requirements under CERCLA and under the Emergency Planning and Community Right to Know Act (EPCRA). However, the release reporting threshold is one pound or more of PFOA or PFOS, or their salts or structural isomers, in any 24-hour period. In the case of AFFF, an airport operator would have to discharge approximately 2.5 million gallons to trigger the reporting requirements (the most recent mil-spec for AFFF stipulates that it contain approximately 800 parts per billion (ppb) PFAS).  The likelihood of triggering reporting requirements is therefore unlikely.

A significant and logical argument from the aviation industry is that airport operators should be exempt from liability because the federal government required certificated commercial service airports nationwide to use PFAS-containing AFFF for decades and to discharge that foam in testing.  While some lawmakers have proposed legislation that would exempt airport operators from CERCLA liability, no such legislation has yet passed Congress.  

However, USEPA partially addressed airport operators’ concerns in a guidance document released simultaneously with the final rule.  USEPA’s “PFAS Enforcement Discretion and Settlement Policy Under CERCLA” indicates that the agency does not intend to target airport operators (and other public entities) as it conducts CERCLA enforcement relating to PFAS, and instead will focus its efforts on industrial sources of PFAS. The policy states “…EPA will focus on holding accountable those parties that have played a significant role in releasing or exacerbating the spread of PFAS into the environment, such as those who have manufactured PFAS or used PFAS in the manufacturing process, and other industrial parties” and “EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including, but not limited to, community water systems and publicly owned treatment works, municipal separate storm sewer systems, publicly owned/operated municipal solid waste landfills, publicly owned airports and local fire departments, and farms where biosolids are applied to the land”.  The full text of the enforcement discretion policy can be found here: PFAS Enforcement Discretion and Settlement Policy Under CERCLA (epa.gov).

The document provides the following information specific to airports and local fire departments: “State or municipal airports and local fire departments provide a public service by preparing for and suppressing fire emergencies and protecting public safety. They do not manufacture PFAS nor use PFAS as part of an industrial process. Many airports and fire departments, however, store and use aqueous film forming foam (AFFF), fire-fighting foam that may contain PFAS. Many airports have been required by Federal Aviation Administration regulations to maintain adequate amounts of AFFF to address fire emergencies. State or municipal airports and local fire departments have also used AFFF during fire emergencies and training exercises. To the extent publicly owned airports and local fire departments are legally required to continue to use AFFF, these parties must follow all applicable regulations governing the use, storage, handling, and disposal of AFFF that contains PFAS. EPA also expects these parties to exercise a high standard of care to limit the release of PFAS, minimize and contain releases, and forgo, when possible, the use of AFFF in the process of cleaning equipment and training exercises”.

Our key takeaways related to the CERCLA designation are:

• The chance of a release of PFOA or PFOS that necessitates reporting at an airport is unlikely. However, the USEPA’s enforcement discretion policy indicates that a high standard of care should be exercised to limit releases. The application of AFFF should be treated like all types of releases of a hazardous substance and impacted media should be immediately collected for proper disposal. In addition, although Fluorine Free Foam (F3) is advertised as an environmentally superior substitute, we also recommend a high standard of care for its storage and use, too. For one thing, some F3 foams will be used with equipment that previously discharged AFFF and, even if rinsed, trace amounts of AFFF will likely be released.

• Expect that contractors will require significant documentation before they haul spoils from an airport. For PFAS-impacted media, consultants must adhere to current best practices and should consider USEPA’s guidance to limit an airport operator’s CERCLA liability, including the agency’s Updated Interim Guidance on Destroying and Disposing of Certain PFAS and PFAS-Containing Materials (April 9. 2024), available here. Airport operators should consider coordinating with environmental engineers / consultants and environmental attorneys to help formulate specifications and responses to requests for information (RFI).

• The CERCLA designation occurred simultaneously with other new PFAS regulatory requirements that may impact airport operators.  including:
  • Some states are amending state Pollution Discharge Elimination System  permits issued pursuant to the federal Clean Water Act to require the sampling of wastewater and stormwater for PFAS.
  • USEPA has proposed two rules to regulate PFAS pursuant to the federal Resource Conservation and Recovery Act (RCRA).  While these proposals are under consideration, states are using RCRA consent orders to require entities  to characterize PFAS and remediate impacts. State environmental regulatory agencies MUST take actions to protect human health and the environment. If an airport poses a PFAS potential threat, a state agency may use RCRA to require an airport operator to address the PFAS release.
  • USEPA has recently established its first binding drinking water standards for some PFAS (including PFOA and PFOS) pursuant to the Safe Drinking Water Act.  These extremely stringent maximum contaminant levels (4 parts per trillion for PFOS and PFAS) applicable to water served by Public Water Systems will be implemented over the next five years and may become de facto regulatory cleanup standards for PFAS in water more broadly.

• Although the USEPA does not intend to pursue enforcement against airport operators and other public entities, these parties should comply fully with all applicable laws and guidance regarding PFAS, and to act with great care not to release PFAS or to exacerbate any existing PFAS contamination.   EPA’s policy cannot undo statutory liability, and the policy itself indicates that the agency will pursue public entities for PFAS releases where appropriate, such as when public entities “significantly contribute to, or exacerbate the spread of significant quantities of PFAS contamination, thereby requiring a CERCLA response action.”  

• Apart from governmental enforcement, airport operators can still be sued by third-parties for damages caused by PFAS releases. While the enforcement discretion policy indicates USEPA may try to secure settlement protections for public entities if the agency is involved, the policy is merely agency guidance and not legally binding, and USEPA will not be involved in private party CERCLA litigation.  Under CERCLA’s provisions, any entity that has CERCLA liability for a PFAS release, once they incur response costs to address the release (no matter how small the amount), may seek cost recovery from other liable parties.  For example, a landowner who finds PFAS impacts on their property that are traceable to an airport could conduct remediation and sue the airport operator for cost recovery for their remedial efforts.  Also keep in mind that indemnification agreements between private parties do not limit the federal government’s ability to hold parties liable under CERCLA. Any such agreement should be reviewed by an environmental attorney with CERCLA experience.

• Airport operators need a risk management strategy. Understandably, many airport operators are taking a passive approach while the regulatory framework takes shape. However, with the hazardous substance designation for PFOA and PFOS, a more prudent strategy is to treat PFAS with a high standard of care, including taking action to identify, assess, investigate, and control historical releases. We strongly recommend that you have a plan in place to: transition to F3, sample and delineate the extent of any PFAS contamination, take all appropriate actions to safeguard public health (i.e., impacts to nearby drinking water wells); and remediate existing contamination. 

These issues are still developing, and this article is provided for informational purposes only.  Please reach out to us if you have environmental, legal, or funding questions, comments, or concerns.  We welcome feedback on this article.