by Brad Maurer, JD, CPCU
Published in Midwest Flyer – August/September 2020 issue
Airports have long been concerned about environmental quality. Ever since we have understood the impact of fuel and degreasing solvent releases to the ground and the groundwater, airports have taken extra measures to prevent them as best as they reasonably can.
There is a surprising recent development in the world of environmental protection and it directly impacts airport operations – the adverse health effects and omnipresence of perfluoroalkyl substances (PFASs), mainly Perfluorooctanoic acid (PFOA) and Perfluorooctanesulfonic acid (PFOS). Collectively deemed the “forever chemicals,” PFASs have been used for decades in common consumer products due to both their durability and surfactant qualities.
PFOS is the main ingredient in waterproofing/stain resisting chemicals applied to carpet and furniture, as well as clothing items like raincoats and shoes. PFOA is used commonly in food-contact materials, such as fast food wrappers, pizza boxes, microwave popcorn bags and even as a component of non-stick cookware. It is no wonder that nine (9) out of every 10 Americans have some level of PFOA/PFOS in their bloodstream with all of the products that use these materials.
For those in the aircraft industry, there are two important facts about PFASs that you need to be aware of: 1) Together, they are ingredients for aqueous film forming foam (AFFF); and 2) They are currently being considered by the United States Environmental Protection Agency (USEPA) to be regulated as hazardous substances.
AFFF is an effective fire suppressant, particularly for high intensity fires, such as those involving jet fuel and aircraft. The surfactant qualities of PFASs make them so effective that only AFFF that contains it meets military specifications (MIL-PRF-24385). This compounds the problem for airports that operate under a Part 139 Certificate, as they must provide Aircraft Rescue and Fire Fighting (ARFF) services that must be routinely tested.
While fires at airports are infrequent, training and testing of ARFF capabilities are not, and the training currently involves the dispersal of AFFF.
In January 2019, the FAA issued guidance for certificated airports to meet the ARFF training requirements using non-fluorinated AFFF alternatives. This is a smart move for environmental protection, as it reduces the amount of PFASs that is released into the environment, while at the same time maintaining ARFF readiness. Even non-certificated airports should consider this practice for the firefighting services they employ. When PFOA/PFOS-containing foam is necessary for training, its containment and removal is worth the effort, considering the next important fact about these substances.
USEPA is starting to regulate PFASs. Human PFAS exposure has been linked to six major health impacts: kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, hypercholesterolemia (high cholesterol), and pregnancy-induced hypertension. Despite years of information about the adverse health effects of PFASs, it wasn’t until February 2019 that USEPA officially announced a plan to deal with these substances. Even as of today, there is no federal drinking water standard for PFASs, but it is coming soon.
Currently, USEPA has issued a health advisory of 70 parts per trillion for drinking water. This is an extraordinarily small amount, as most drinking water standards are measured in parts per billion. In the absence of a federal standard, many states have issued their own – some as low as 20 parts per trillion. It is estimated that 16 million Americans have above-standard PFASs in their drinking water, and this number will increase as more communities test their water supplies.
What Does This Mean For The Airport Industry?
The most important concern is the inevitability that USEPA will classify PFASs as “hazardous substances.” That is item number two in its 2019 February 2019 Action Plan. There is an administrative process for this to occur, but once it does, all PFAS contamination will be subject to the Comprehensive Environmental Response, Compensation, and Liability Act (AKA “Superfund”). The Superfund law holds parties liable for, among other things, the cleanup costs of hazardous substances that are released at a facility that they own or operate. The key word here for fixed base operators is the term “operate.” You need not own the airport to be responsible for PFAS contamination cleanup under the Superfund law.
The frightening thing about the Superfund law is that it applies not only to events from now on, but also in the past.
Past releases of AFFF and hazardous substances, no matter how lawful they were at the time of the release, can become the source of liability for both past airport owners and operators, as well as the current ones.
Many airports may be familiar with the Superfund law because, although it exempts petroleum, it applies to volatile organic solvents which are used extensively in aircraft repair and maintenance.
Many airports, particularly large commercial and military bases, have incurred some sort of cleanup under the Superfund law. Smaller airports will likely not escape responsibility under the Superfund law for PFASs, since they are likely to be located closer to drinking water sources than major ones. A site does not need to be declared a “Superfund Site” for the law to apply. It only takes a release of a hazardous substance.
Considerations & Summary
It’s a Catch-22 for an airport to be required to use AFFF and yet be held liable for its release. The best practice is to eliminate or at least contain and limit the use of PFAS containing AFFF that is dispersed at the airport for training. Insurance-wise, almost all insurance policies have an exclusion for “pollutants.” Even though PFASs are not currently regulated as a hazardous substance, it is reasonable to presume that it would qualify as a “pollutant” for insurance purposes.
There are special types of insurance that do cover liability for PFASs. Contractors Pollution Liability (CPL) insurance can be purchased for businesses that provide services at airports, as well as services anywhere else.
Environmental Impairment Liability (EIL) insurance can be purchased by owners and operators of airport facilities.
The restriction with CPL coverage is its use of a retroactive date – typically the date the airport or operator first purchase the insurance, which is carried through the subsequent years the policy is renewed. EIL insurance can either have a retroactive date (and then only cover pollution conditions that first occur from the first date of purchase forward), or it can be devised to insure against past releases that may have happened, but are unknown as of yet. This is called EIL insurance with full retroactive coverage – something airport operators may wish to consider with the impending laws that will soon regulate PFASs.
The time to manage risk is now! While those of us in the environmental protection industry have known about these contaminants for a little while now, the 2019 major motion picture “Dark Waters” starring Mark Ruffalo has raised national attention to the issue. In that movie, local landowners sued a product manufacturer for various claims arising from PFOA that it manufactured at its plant. Another PFAS manufacturer has settled with the State of Minnesota for $850 million for PFASs issued in the state and currently is in litigation with six other states – just for PFAS products in general. That manufacturer and other PFAS manufacturers now face 190 class action lawsuits arising from their manufacture of AFFF.
And there you have it. While the manufacturers are the first to face litigation, soon those who released the products will follow. When a community discovers PFASs in their drinking water, where are they first to look if there aren’t any manufacturers of the product nearby? Airports.
About the Author
Brad Maurer (JD CPCU) is an environmental insurance expert with American Risk Management Resources Network LLC based in Middleton, Wisconsin. As a former environmental scientist working on Superfund sites, Brad Maurer has been specializing in managing environmental risk for clients for over 25 years. Maurer@ARMR.Net (www.ARMR.Net).
