In April 2024, the Environmental Protection Agency (EPA) designated Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as “Superfund.” This designation impacts various industries that have utilized these chemicals for fire suppression, food packaging, and other consumer products. The designation raises concerns about potential liabilities for spreading these chemicals, which are linked to health issues such as infertility, lower birth weight, and thyroid cancer.
Airports are significantly affected due to their historical use of Aqueous Fire Fighting Foam (AFFF), which contains PFOA and PFOS. Many airports have proactively transitioned to fluorine-free foam and decontaminated equipment in line with the Federal Aviation Administration’s Aircraft Firefighting Foam Transition Plan. However, this CERCLA designation has broader implications. Airports now face potential legacy pollution issues involving groundwater, soil, and air contamination.
The Department of Defense estimates cleanup costs at its facilities could exceed $3.8 billion. The overall financial burden is still uncertain but is expected to surpass previous efforts related to asbestos and lead cleanup. Airports may incur substantial remediation costs on-site along with public relations challenges and possible lawsuits from third parties over legacy contamination.
Manufacturers like 3M and DuPont were aware of the health risks associated with PFOA and PFOS long before they became public knowledge. Recognizing that these manufacturers are primarily responsible for global contamination by these “forever chemicals,” the EPA has indicated it does not intend to pursue public entities such as landfills, water utilities, or airports for liability under CERCLA. Legislative amendments have been proposed to exclude these entities from liability through bills like The Fire Suppression PFAS Liability Protection Act and The Airports PFAS Liability Protection Act.
Despite potential legislative protections against liability, airports still face significant remediation costs and reputational risks. Cleanup costs at individual airports could reach tens of millions of dollars depending on site-specific contamination levels.
To address this issue effectively, airport organizations should begin by testing for PFAS on-site to identify hotspots. This data can inform broader discussions with local regulators and substantiate litigation claims against major PFAS producers. Consulting environmental engineering experts is crucial in developing a comprehensive remediation plan that includes selecting appropriate technologies for removing PFOA and PFOS.
Public communication is also essential; transparency about mitigation efforts can help build community trust despite ongoing contamination issues.
Many airports are pursuing litigation against PFAS manufacturers in multi-district litigation (MDL) proceedings aimed at coordinating complex cases across federal courts efficiently. Recent settlements include up to $12.5 billion from 3M, $1.1859 billion from DuPont, $750 million from Tyco, and $316.5 million from BASF.
Litigation can help recover remediation costs while demonstrating a commitment to protecting public health and the environment—a critical stance given increasing scrutiny of aviation’s environmental impact.
Airports should consider legal strategies early due to statutes of limitations affecting claims’ validity over time. Early litigants often benefit more significantly than those who delay action.
Mike DiGiannantonio of SL Environmental Law Group represents public entities in water contamination lawsuits involving substances like PFAS among others. With nearly two decades of experience in commercial litigation focusing on regulatory violations protection market integrity—DiGiannantonio emphasizes holding corporate polluters accountable while safeguarding public interests.
DiGiannantonio received his law degree alongside an undergraduate degree from the University of Michigan—bringing extensive expertise into representing clients across state/federal courts/trial/appellate matters within California/Illinois/Michigan jurisdictions.
