Entities nationwide grappling with per- and polyfluoroalkyl substances (“PFAS”) contamination should pay close attention EPA’s recently released pre-publication Notice of Proposed Rulemaking, which would designate PFOA and PFOS as “hazardous substances” subject to regulation under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  If finalized, this regulation will impose CERCLA’s release reporting provisions on those responsible for PFAS releases, allow EPA to investigate and require cleanups at properties where PFOA/PFOS have been released, and potentially make responsible entities liable for the cost to clean up the contamination.  For more information about the proposed rule and its projected impacts on municipalities, airport operators, and other entities, see LINK.

Kaplan Kirsch & Rockwell is honored to have represented the Tweed New Haven Airport Authority in reaching a transformative public-private partnership with airport operations and management specialist Avports for the management and development of the airport. This deal brings private investment enhance to the existing terminal and a new terminal, a runway extension, and other airport improvements, new jobs, and reliable, low-cost airline service to southern Connecticut. 

The first of its kind in the nation to pair parallel private airport management and development services in this manner, the agreements executed this week will lease airport property for the terminal and aeronautical businesses while continuing the 20+ year history of professional management by Avports on the remainder of the airport on behalf of the public and the Airport Authority.  We are proud to have worked with BJSA, Inc. as the Airport Authority’s financial partner and Updike Kelly and Spellancy as Airport Authority general counsel on this deal.  Congratulations to the Tweed New Haven Airport Authority and Executive Director Sean Scanlon!

Under the Biden Administration, the U.S. Department of Transportation has prioritized efforts to promote diversity, equity, and inclusion in all aspects of the transportation sector, including in the airport industry. On July 21, 2022, the Department took a significant step toward that goal by issuing a notice of proposed rulemaking (NPRM) regarding two related programs: the Disadvantaged Business Enterprise (DBE) program and the Airport Concession Disadvantaged Business Enterprise (ACDBE) program, administered by the FAA. Kaplan Kirsch and Rockwell has prepared a summary of some of the most significant proposals in the NPRM, available here.

Please contact David Bannard or Eric Smith if you have any further questions.

The first six months of 2022 have been turbulent, and the airport world has been no exception.  Airports have faced climbing material and labor prices from inflation, continued supply-chain disruptions, and the challenge of accommodating resurgent passenger demand in a capacity-constrained industry.  However, the FAA has also begun rolling out the first tranche of Bipartisan Infrastructure Law grant funds, which should provide needed assistance for many projects at airports across the country.  The next six months will likely prove just as unsettled for the industry, with the potential for the November midterm elections to influence the upcoming FAA reauthorization process.

This Airport Law Digest includes a list of principal cases decided over the past six months; new DOT and FAA rules, policies, and guidance; and reports, studies, and articles of interest to airport legal professionals.  As airports continue to recover from the effects of the COVID-19 pandemic, we have provided a select subset of materials relevant to COVID-19 at the end of this Digest.

We hope you find this Digest useful in your efforts to remain current in the always-evolving legal and regulatory framework that governs airports. If you have questions about any of the materials in this Digest, please contact editors  Nicholas M. Clabbers and Adam Gerchick, or any other Kaplan Kirsch & Rockwell attorney who normally represents you.

Read here.

Congratulations to the State of New Jersey, NJ TRANSIT, the State of New York and the Port Authority of New York and New Jersey on this monumental accomplishment! Kaplan Kirsch & Rockwell was proud to be a part of this effort. See the article here.

On June 3, 2022, Colorado Governor Jared Polis signed into law HB22-1345, a bipartisan measure that will limit the sale and/or use of a variety of products containing per- and poly-fluoroalkyl substances (PFAS).  PFAS are a class of chemicals linked to serious health impacts, such as reproductive and immunological harm and certain cancers.  While a substantial number of states (including Colorado) have already passed laws regulating PFAS in drinking water and other media, with the enactment of this law, Colorado joins a smaller but growing group of states that now restrict the sale of PFAS-containing consumer products and/or regulate the use of PFAS-containing firefighting foam.

The new law will phase out the sale and distribution of PFAS-containing consumer products in the State, including carpets, furniture, cosmetics, children’s products, fabric treatments, food packaging, fluids used in oil and gas production, textile furnishings, and upholstered furniture.  It will require cookware that contains intentionally added PFAS to be labeled with the PFAS chemicals in the cookware and to direct consumers to a website with information about why PFAS chemicals were intentionally added to the cookware.

The law has special requirements for users of PFAS-containing firefighting foam, also known as aqueous film-forming foam (AFFF), a fire suppressant favored because of the speed with which it extinguishes fuel fires.  Users of AFFF must prohibit releases to the environment, fully contain AFFF when it is used, safely store AFFF, and report any spills within twenty-four hours to the State’s water quality spill hotline. 

Three types of entities are exempt from the AFFF requirements of the new Colorado law: (1) entities who use PFAS-containing AFFF because such use is mandated or authorized by federal law (including Part 139 certificated airports); (2) entities who use PFAS-containing AFFF in accordance with Federal Aviation Administration (FAA) guidance; and (3) entities whose use of PFAS-containing AFFF is “otherwise required for a military purpose.”  However, the law contains a provision triggering the end of the exemption for particular users when federal laws or guidance change so that use of PFAS-containing AFFF is no longer required and/or recommended.  This provision anticipates a likely transition away from federally mandated and/or recommended use of AFFF at airports and for military purposes, as the FAA and the Department of Defense are presently considering modifying regulatory standards to allow for the use of new fluorine-free foams.  When federal laws or guidance that currently require and/or recommend the use of PFAS-containing AFFF no longer do so, the Colorado Department of Public Health and the Environment must take action to end the exemption with respect to any affected users.  Then, those entities will have at least two years before they must comply with the Colorado law.

The restrictions in the new law are effective January 1, 2024.

Please contact Polly Jessen, Tom Bloomfield, Sara Mogharabi, or Nick Clabbers with questions regarding Colorado’s new PFAS law.

On June 6, 2022, the Denver City Council approved legislation introducing mandatory affordable housing requirements for new development, updating the City’s existing linkage fees, and increasing zoning and financial incentives for affordable housing.  The legislation requires new market-rate housing developments of ten or more units to provide on-site affordable units (or pay fees in lieu thereof) and imposes increased linkage fees on new non-residential development.  The legislation implements these requirements through amendments to the Denver Revised Municipal Code and Denver Zoning Code.

Please note that this Alert provides general information regarding the City’s new affordable housing requirements.  We advise developers to seek legal counsel to understand how these requirements will affect their individual projects.  

Mandatory Affordable Housing

Under the legislation, developers of new market-rate residential housing of ten or more units must select one of two options to provide on-site affordable housing or pay fees in lieu thereof.  The mandatory affordable housing requirement applies to both rental and ownership housing, although the options differ between the two housing types.  The options also differ depending on whether the new development is in a “high market” location or a “typical market” location.  High market locations are the census tract areas in Denver with the highest land values compared to the citywide median land value.  The City currently is developing an interactive map that identifies these areas.  All options require a certain percentage of units to be provided at a set Area Median Income (“AMI”) or require a fee-in-lieu thereof.

Ownership Housing

Option 1
•    In high markets, provide 10% of total units at 80% AMI
•    In typical markets, provide 8% of total units at 80% AMI

Option 2
•    In high markets, provide 15% of total units at an effective average of 90% AMI
•    In typical markets, provide 12% of total units at an effective average of 90% AMI

Rental Housing

Option 1
•    In high markets, provide 10% of total units at 60% AMI
•    In typical markets, provide 8% of total units at 60% AMI

Option 2
•    In high markets, provide 15% of total units at an effective average of 70% AMI
•    In typical markets, provide 12% of total units at an effective average of 70% AMI

Fees-in-lieu are calculated for each income restricted unit (IRU) that would otherwise be required for the project based on 10% of total dwelling units in high market areas and 8% of total dwelling units in typical market areas.  These fees in-lieu range from $250,000 to $478,000 per required IRU depending on the development type (rental/ownership) and market area (typical/high). 

In certain cases, a developer may propose an alternative manner to satisfy the affordable housing requirements.  The applicant must demonstrate how the proposed negotiated alternative meets certain criteria set forth in the legislation.  The negotiated alternative may include a combination of one or more of, but not be limited to, land dedication for affordable housing, a plan for fewer IRUs on site with a greater depth of affordability, a greater number of IRUs with more bedrooms, or an agreement to provide off-site IRUs.  The legislation provides additional detail on each of these items.

The legislation also describes certain circumstances where projects are excepted from compliance with the new requirements.  In addition, projects that are ten or more acres and/or leveraging tax increment financing (TIF) or Metro Districts are considered ‘high impact developments’ and are subject to additional requirements.

Linkage Fees for Non-Residential Developments and Smaller Residential Developments

The City will require linkage fees rather than on-site affordable housing units for non-residential developments (such as commercial, office, and industrial uses) and residential developments of nine or fewer units.  The applicable fee varies depending on the project use(s) and is calculated on a square footage basis.  New linkage fees will go into effect on July 1, 2022, and will increase on July 1 each year thereafter.  The fees applicable on July 1, 2022, range from $0.96/sf for industrial use to $3.65/sf for commercial, office, and related uses in high market areas.  Fees applicable for projects of nine or fewer units range from $1.75/sf to $2.50/sf.   

Zoning and Financial Incentives

The City is expanding zoning and financial incentives to offset some of the costs of providing mandatory affordable units.  Developers providing on-site affordable units in certain areas will benefit from reduced parking requirements and commercial construction permit fee reductions.  Additionally, enhanced incentives are available to developers who exceed the affordable housing requirements outlined above.  These incentives include height and floor area ratio (“FAR”) bonuses.

Effective Date

Projects subject to site development plan review that: (i) submit concept site plans to the City by June 30, 2022; (ii) have an assigned concept number for the concept site plan; and (iii) receive final SDP approval by August 30, 2023 may continue to proceed under the current affordable housing requirements.  In the case of projects subject to Large Development Review, and individual site development plans within the legally described property of an active subdivision application, the final approval deadline is extended to December 31, 2023.  Additionally, separate effective dates apply to projects under residential review (single/two-units).  These projects may continue under the existing rules if they have: (i) a building permit submitted by June 30, 2022 and all applicable plan review fees paid; and (ii) a building permit approved and issued by December 31, 2022.  Projects that do not meet these deadlines will be subject to the new affordable housing requirements.  

Please contact Sarah Rockwell or Hanna Gustafsson if you have any questions.

The Colorado General Assembly recently passed numerous energy and environmental bills, including bills related to oil and gas, the electric grid and transmission, energy efficiency and the built environment, geothermal energy, air quality, water use and quality, wildfire and disaster mitigation and recovery, recycling, pollutants and contaminated lands, and a just energy transition.  Read the 2022 Legislative Year in Review here.

If you have questions regarding the recent energy & climate legislation please contact Tom Bloomfield, Bob Randall, Sarah Keane, Sarah Judkins, or Sam Caravello.

Last week, the Ninth Circuit issued its opinion in Center for Biological Diversity v. US Fish & Wildlife Service, which challenged the mining plan of operations for the proposed Rosemont Copper mine in Arizona.  The court upheld the district court’s conclusion that the US Forest Service was arbitrary and capricious in approving Rosemont’s mining plan of operations.  

 Rosemont Copper Company had proposed to dig a large open-pit copper mine in the Santa Rita Mountains just south of Tucson, Arizona, partially within the Coronado National Forest.  Because pit mining produces large amounts of waste rock, Rosemont had proposed to dump 1.9 billion tons of waste rock near its pit on 2,447 acres of National Forest land.  By the time operations cease in twenty to twenty-five years, the waste rock on the 2,447 acres would be 700 feet deep and would permanently occupy the land.  The Forest Service approved Rosemont’s mining plan of operations, including the use of National Forest lands to dump waste rock in its entirety.
 
The federal district court in Arizona held that the Forest Service improperly approved the mining plan of operations, which the Ninth Circuit majority upheld.  The Ninth Circuit concluded that the Mining Law of 1872 does not permit Rosemont to permanently dump waste rock on National Forest lands for which it lacks valid mining rights.  Although Rosemont had located mining claims on 2,447 acres of National Forest land throughout the designated disposal site, the court concluded that even if it was appropriate to dump waste rock on unpatented mining claims, the claims were not valid because “undisputed evidence show[ed] that no valuable minerals [were] found on the claims.”  Thus, the court agreed with the District Court that the Mining Law only extends rights to lands where valuable minerals have been found, which it concluded was not true of the location where Rosemont planned to dump its waste.  The majority remanded the issue to the Forest Service to determine whether the agency could and should authorize a mine waste dump under its existing regulations.
 
One judge dissented and would have held that the Forest Service properly approved the mining plan of operations proposal to dump mine waste Forest Service regulations.
 
Firm attorneys Lori Potter and Sarah Judkins filed the amicus brief on behalf of a group of environmental and natural resources law professors in support of affirming the district court’s decision.  
 
Click here to read the Ninth Circuit’s decision.  Click here to read the amicus brief.
 
Press Coverage
 
Earthjustice: 9th U.S. Circuit Court of Appeals Upholds Landmark Ruling Blocking Arizona Copper Mine
Reuters: 9th Circuit Rules against Rosemont Copper Mine
Tucson Sentinel: 9th Circuit uplands ‘landmark’ ruling blocking Rosemont copper mine

The Workshop will be October 2-4 in Seattle. Details to be announced in coming weeks. For the agenda, click here.