On January 17, 2018, the FAA issued a CertAlert to all certificated Part 139 Airports providing new guidance to assist airports seeking to manage environmental, liability, and community risks associated with certain chemicals found in airport firefighting foams. Airports have been in a bind because Part 139 currently requires the use and periodic discharge of these foams, even though doing so can release more of the chemicals into stormwater, groundwater, and soils. All airports should carefully examine their current and past use of these foams and take steps to manage the environmental and liability risks associated with them.
The CertAlert provides an interim way to reduce potential environmental contamination from mandatory testing of Aircraft Rescue and Firefighting (ARFF) equipment using Aqueous Film Forming Foam (AFFF), which contains a class of chemicals known as per- and polyfluoroalkyl substances (PFAS). Presently, FAA regulations require airport operators to use firefighting foams that contain PFAS. Although foams with PFAS are highly effective at extinguishing fires, they also have come under increasing scrutiny from the EPA and state environmental regulators over concerns about groundwater contamination and risks to public health impacts. The FAA Reauthorization Act of 2018 requires the FAA to stop mandating the use of PFAS in firefighting foams by October 4, 2021, but the FAA has not yet identified an equally effective substitute.
The FAA’s current requirements mandate that airport operators regularly test firefighting equipment, including by discharging foam that contains PFAS onto the ground. If not properly managed, such discharges can result in PFAS being released into groundwater.
The FAA’s new CertAlert announces that airport operators may immediately begin using three new testing systems that do not involve dispensing foam onto the ground.
The CertAlert further recommends that airport operators:
Although these latest recommendations are not legally binding, airport operators should carefully evaluate implementing these recommendations as soon as possible as part of an overall plan to manage risks associated with PFAS in AFFF. For more information, please contact John Putnam, Polly Jessen, or Nicholas DiMascio.
Kaplan Kirsch & Rockwell publishes Airport Law Alerts to announce late-breaking developments in legislation, regulation, and policy for our clients and colleagues. Nothing in our Alerts is intended as legal advice, and readers are reminded to contact legal counsel for legal advice on the matters that appear in our Alerts.