Congress passed the FAA Reauthorization Act of 2024 (the Act) yesterday, sending it to the President’s desk to be signed into law this week.  Once signed, the Act will reauthorize the Federal Aviation Administration (FAA), the Airport Improvement Program (AIP), and numerous other aviation-related federal programs through September 2028.  Several airport-industry organizations have already comprehensively summarized the Act’s major provisions.  Rather than repeat those summaries, this Airport Law Alert focuses on several provisions in the Act of particular interest to airport lawyers and which may require further legal analysis.  In particular, this Alert discusses the Act’s provisions regarding airport land use oversight, environmental reviews, financial penalties for grant assurance violations and revenue diversion, disputes over airport sponsorship, and AIP eligibility and procedures.

FAA’s Land Use Oversight and Former Section 163

One of the most important provisions of the Act is Section 743, which substantially revises Section 163 of the FAA Reauthorization Act of 2018 (Section 163). Section 163 was intended to substantially limit FAA authority to regulate airport development that is not related to the agency’s core aeronautical expertise.  Since 2018, however, sponsors and FAA have often disagreed on the scope of FAA’s remaining authority under the law, and FAA has implemented at times cumbersome procedures to determine whether or not it has authority over particular projects or components thereof. (Our Firm has previously co-authored a guide to Section 163 and prepared an analysis on the FAA’s subsequently released guidance.)

Section 743 aims to resolve some of the ambiguity that resulted from FAA’s interpretation and implementation of Section 163. Not surprisingly, however, the language in Section 743 creates new potential uncertainties.

The new law continues the paradigm established by Section 163, namely that FAA’s authority should be limited in areas outside its core expertise.  As under Section 163, Section 743 generally provides that FAA retains authority to regulate activities that: (1) “materially impact the safe and efficient operation of aircraft at, to, or from the airport,” (2) “adversely affect the safety of people or property on the ground as a result of aircraft operations”, or (3) “adversely affect the value of prior Federal investments to a significant extent.”   

Section 743 makes several changes to the prior framework.  First, while Section 163 was framed in terms of FAA’s authority to regulate certain “uses” of airport property, Section 743 is framed in terms of FAA’s authority to regulate certain “projects.”  This change codifies FAA practice as set forth in its guidance.  Section 743 also reverses FAA’s prior position that the agency could exercise jurisdiction over an entire project even if only a portion of the project lies on property subject to FAA jurisdiction.  Instead, Section 743 provides that, if FAA has land use authority only over a portion of the project, the agency may not extend its authority to any “non-aeronautical portions of the project.”  Although not entirely clear, it appears this language presumes that FAA would retain jurisdiction over the aeronautical portions of a project that lies on both regulated and non-regulated land. 

Second, Section 743 clarifies that FAA retains jurisdiction over any property that was acquired with federal assistance – without exception.  Under Section 163, FAA had taken the position that it lacked approval authority for some projects on land acquired with federal assistance, so long as the proposed land use did not adversely affect the value of the federal investment to a significant extent. 

Third, Section 743 eliminates FAA’s so-called “Section 163 determinations,” whereby the agency required airport sponsors to obtain a jurisdictional determination for every FAA approval – even in cases where FAA’s authority (or lack of authority) was clear under Section 163.  Section 743 replaces that time-consuming (and sometimes onerous) requirement with a new notice requirement.  Now, sponsors need only notify FAA before proceeding with a project outside of FAA jurisdiction.  FAA has 45 days to assert jurisdiction, or the agency loses jurisdiction over that project.  It is not yet clear what opportunities, if any, airport sponsors may have to challenge FAA’s erroneous assertions of jurisdiction under these new procedures.

Finally, Section 743 introduces substantial uncertainty regarding FAA’s authority to regulate projects over which FAA has no approval authority.  Specifically, Section 743 provides that FAA may not “directly or indirectly regulate or place conditions on . . . any project,” for which it lacks ALP approval authority, expressly including exercising jurisdiction “through any grant assurance.”  This broad language appears to prohibit FAA from enforcing any grant assurance obligations with respect to a project that falls outside its land use approval authority.

It may be some time before the changes wrought by Section 743 are fully understood.  After Congress enacted Section 163, it took FAA almost two years to issue guidance, leading to a period of considerable uncertainty.  FAA’s current guidance regarding Section 163 is likely no longer effective, as it no longer reflects the state of the law.  Airport sponsors will have to assess how Section 743 affects their specific projects and move forward without the benefit of agency guidance.

For questions regarding the changes to Section 163, and the new provisions of Section 743, please contact Katie van Heuven or Peter Kirsch.

Environmental Reviews

Section 783 amends 49 U.S.C. § 47171, which addresses expedited and coordinated environmental reviews of airport projects under the National Environmental Policy Act (NEPA).  The new law expands the streamlined environmental review requirements to include a broader set of airport projects, adding terminal development projects and all airport capacity enhancement projects, not just those at congested airports.  It also adds a new process for determining aviation safety projects that should receive priority streamlined reviews.  Although most of the new language is procedural and largely restates provisions already codified in the NEPA statute and its regulations, one change that is noteworthy is the requirement (with some exceptions) to include the final EIS and Record of Decision in one document. 

By far the most significant change to environmental reviews is Section 788, which establishes two new NEPA categorical exclusions.  These categorical exclusions are available for projects approved, permitted, financed, or authorized by FAA that: (1) receive less than $6 million of federal funds; or (2) are for the repair or reconstruction of any airport facility, runway, taxiway, or other similar structure that is damaged in connection with a declared disaster or emergency.  The Act provides that these actions are presumed to be covered by a categorical exclusion, unless there are “extraordinary circumstances” with respect to the action – i.e., the project is known or expected to have potentially significant environmental impacts.  What is important here is that the eligibility for a NEPA categorical exclusion is based upon the level of federal investment, rather than on other FAA approvals, as was the prior law.  The new law will require FAA to update its list of categorical exclusions and perhaps provide more guidance on what constitute extraordinary circumstances. 

For questions regarding the changes to the environmental review process under NEPA, please contact Katie van Heuven.

New Grant Assurance and Monetary Penalties

The Act increases the potential penalty for airport sponsors who unlawfully divert airport revenue.  Under preexisting law, FAA could order a sponsor to reimburse the airport enterprise account for unlawfully diverted revenue and, if the sponsor failed to do, FAA could withhold grants from the airport sponsor equal to the diverted amount.  If the sponsor failed to reimburse the airport enterprise account and FAA could not withhold a sufficient amount, FAA could seek judicially to recover the illegally diverted amount, plus interest.  Section 703 of the Act now allows FAA to seek twice the value of the illegally diverted revenue if judicial action is required.  However, Section 703 will only apply to funds illegally diverted after the enactment of the Act.  (Separately, 49 U.S.C. § 46301(a)(3) permits the FAA to seek civil penalties of three times the amount of illegally diverted revenue within the statute of limitations.)

Section 770 of the Act requires FAA to establish a new grant assurance regarding leaded aviation gasoline, or “avgas.”  Under this new assurance, if 100-octane low lead (100LL) avgas was available at a given airport at any time in 2022, whether through the sponsor or an FBO or other fuel provider, that sponsor may not restrict the sale or self-fueling of 100LL avgas until the earlier of:  (a) Dec. 31, 2030 or (b) the date on which the sponsor, or any retail fueler at the airport, begins selling a form of unleaded avgas that FAA has approved as a replacement for 100LL and that FAA has deemed to meet industry standards.  Crucially, Section 770 imposes a steep monetary penalty for noncompliance:  Airport sponsors who violate this new grant assurance will face penalties of up to $5,000 per day. 

Section 770 marks the first time that Congress has authorized a financial penalty for a violation of grant assurance obligations (aside from revenue diversion, which is subject to independent statutory requirements).  While earlier versions of the bill proposed financial penalties for other grant assurance violations, Section 770 establishes a precedent that renders future financial penalties for grant noncompliance more palatable in future legislative proposals.

For questions regarding the new grant assurance and potential penalties, please contact Eric Pilsk.

Disputes Over Airport Sponsorship

Section 757 codifies existing FAA policy regarding which entity to recognize as an airport’s sponsor when two or more entities dispute who is the sponsor.  Per Section 757, FAA “shall have the sole legal authority to approve any [disputed] change in the sponsorship” or “operational responsibility” of a publicly owned airport.  Section 757 permits FAA to approve any disputed change in sponsorship only when the existing sponsor consents to the change or a court issues a final, non-reviewable order requiring such a change, and requires FAA to independently confirm that the new sponsor is able to satisfy all pertinent federal requirements.  FAA may not “evaluate or approve” a disputed change in sponsorship while a legal dispute over the change is pending. 

Section 757 is a response to several efforts by state legislators over the past decade to essentially seize control of major airports from local governments.  In several states, including Georgia, North Carolina, Mississippi, and Tennessee, state lawmakers have attempted to shift control of their states’ busiest airports from the cities or local bodies that run them.  By codifying FAA’s existing policy, the Act makes it more difficult for new administrations to modify the approach toward disputed changes in airport sponsorship, and may further dissuade states from attempt to take over locally controlled airports.

For questions regarding the changes to airport sponsorship disputes, please contact Peter Kirsch.

Advanced Air Mobility

The Act contains several provisions that would facilitate the adoption of advanced air mobility (AAM) in the United States, including by extending a pilot program to fund aircraft charging infrastructure, permitting AIP funding for other airside energy projects, and requiring FAA to accelerate its AAM rulemaking.  Among other provisions, the Act, at Section 953, directs the Department of Transportation to work with the federal Council on Environmental Quality to develop “appropriate” new categorical exclusions under NEPA for on-airport vertiport projects.  Section 955 requires FAA to finalize its proposed rule, issued last June, regarding pilot certification for, and operation of, powered-lift aircraft; Section 955 also requires the finalized version of that rule to include content intended to facilitate the qualification of powered-lift pilots.  Section 957 gives FAA 40 months to revise air traffic control policies to allow powered-lift aircraft to use existing air traffic procedures, to the extent FAA deems it safe to do so, and to develop any necessary airport, heliport, and vertiport procedures for powered-lift aircraft.  And Section 960 extends, by two years, a pilot program that grants up to $12.5 million per year to airports to develop vertiport and other AAM infrastructure, and expands the AAM infrastructure eligible for those grants.

For questions regarding these provisions or AAM matters generally, please contact Steven Osit.

AIP Eligibility and Project Requirements

Several sections of the Act expand the scope of projects eligible for AIP funding.  Among other projects, Section 702 adds projects to promote airport sustainability and environmental resiliency, certain cybersecurity projects, fuel storage and systems for unleaded and hydrogen fuels, and certain runway and taxiway rehabilitation projects as eligible airport development projects.  Section 702 also expands the categories of commercial service airports eligible to use AIP funds to acquire low-emission vehicles, develop low-emission fuel systems, electrify gates, and undertake related air-quality improvements.  Several sections of the Act alter AIP funding criteria for various project types and airport categories, including, among other sections:

• Section 708, which increases the federal share of allowable AIP-funded project costs at non-hub and non-primary airports to 95 percent for fiscal years 2025 and 2026;
• Section 710, which requires FAA to issue AIP letters of intent to non-hub and non-primary airports (currently, only larger airports are eligible for such letters);
• Section 712, which revises various AIP apportionment formulas and creates a sliding scale of funding for certain smaller commercial service airports;
• Section 713, which reduces, from 75 to 60 percent, the share of AIP funding that a large or medium hub must return to FAA if it collects a $4.50 passenger facility charge; and
• Section 716, which simplifies the distribution formula for FAA’s small airport fund.

Title VII of the Act contains numerous, sometimes-technical changes to AIP formulas and eligibility; airport sponsors are encouraged to review those provisions of the law carefully.  Generally, however, the changes expand airport sponsors’ eligibility for AIP funding and could prove especially beneficial to smaller commercial service airports.

For questions regarding AIP eligibility, please contact Nick Clabbers.

Further Reading

In addition to reviewing this Alert, airport sponsors are encouraged to review the text of the bill (available here) to understand the Act’s various airport-related provisions, including those concerning air traffic control staffing, contract tower programs and Essential Air Service.  The House Committee summary is also a useful tool, available here.  Many, but not all, of the key provisions for airport sponsors are included within Title VII of the Act.  Both ACI-NA and AAAE have prepared helpful summaries of near-final draft versions of the Act (available for their members on their respective websites), and both of those organizations have released statements explaining the airport industry’s position on several of the Act’s provisions. 

For additional information about provisions of the new law and how they may affect your airport, please contact the Firm attorney with whom you generally work.

NEW YORK, NY – May 08, 2024 – Kaplan Kirsch & Rockwell, a leading provider of legal services specializing in solving problems nationally that involve transportation, rail transit, public finance, procurements, natural resources, energy, water, infrastructure, public projects, land use, development, environmental and tribal law, is proud to announce the relocation and expansion of its New York City office to accommodate its rapid growth and commitment to delivering exceptional client services. The new office, located in the vibrant heart of Times Square, symbolizes the firm’s dedication to meeting the evolving needs of its clients and the community.

Strategically chosen to better serve the needs of our clients, the new location boasts modern amenities and advanced technology infrastructure. This move underscores the Firm’s commitment to delivering exceptional legal counsel while fostering a welcoming and efficient environment for our valued clients while also showcasing its internal growth with the addition of many new attorneys in New York.

The decision to relocate to the new, modern facility was driven by the Firm’s strategic vision for expansion and its unwavering commitment to providing innovative legal solutions to its clients. First established in 2017, the Firm’s New York office has grown over the intervening years from a single attorney to a team of eight professionals. With the new location situated in Times Square, it offers enhanced accessibility and convenience for clients and employees while providing ample space for the firm’s growing team.

“This move isn’t just about physical expansion; it’s a testament to our enduring commitment to serving our clients with unparalleled expertise and dedication. We’re poised to make an impact while continuing to leverage the energy of this dynamic city to drive forward-thinking legal solutions.”, says Firm Managing Partner, Bob Randall.

The office will continue to serve as a hub for the Firm’s involvement in high-profile projects in the New York metropolitan area, including the reconstruction and expansion of Penn Station NY, the Hudson Tunnel Project, operation of NJ TRANSIT’s Hudson-Bergen Light Rail System, and private development and terminal operations at Newark, LaGuardia, JFK, Long Island MacArthur, and Tweed-New Haven airports.

The new office address is: 1500 Broadway (at West 43rd Street), Suite 1605, New York, NY 10036

About Kaplan Kirsch & Rockwell

Founded in 2003, Kaplan Kirsch & Rockwell is a national law firm devoted exclusively to solving problems involving infrastructure, transportation, environmental, land use, and public and private lands, and tribal law. The Firm strives to craft innovative solutions to high-risk, complex problems involving the interplay of various disciplines of law and is committed to providing strategic counsel to achieve our clients’ objectives. The Firm has offices in Denver, New York, San Francisco, and Washington, DC.

On April 22^nd, the Interior Board of Land Appeals (IBLA), an administrative appeals body within the Department of the Interior, granted a motion from the Bureau of Land Management (BLM) that allows BLM to rescind its previous approval of a new motorized trail in a pristine alpine valley in the San Juan Mountains of southern Colorado.  In 2020, BLM had approved the construction of a new motorized trail in Minnie Gulch outside of Silverton, Colorado.  Minnie Gulch is a undeveloped and quiet valley that ascends to the Continental Divide and is an area of cultural importance to the Ute Tribes.  Based on BLM’s deficient environmental review and tribal consultation processes, San Juan Citizens Alliance, a citizens’ organization in southwest Colorado, filed an administrative appeal challenging the approval represented by Firm attorneys Lori Potter and Sarah Judkins.  While the administrative appeal was pending, over the course of many years, San Juan Citizens Alliance, with support of Kaplan Kirsch & Rockwell, persisted in seeking to maintain the pristine and quiet nature of this culturally important area.  This advocacy was critical to BLM’s recent decision to file a motion asking the IBLA send the decision back to the agency to allow it to rescind its prior approval, which the IBLA has granted.  Kaplan Kirsch & Rockwell is proud to have represented San Juan Citizens Alliance in this appeal and resoundingly positive result for quiet and culturally-important areas in southern Colorado.   

The FAA is seeking comment on a draft document, “Noise Abatement Entries in the Chart Supplement,” proposing ways to standardize language for airport sponsors to describe local noise abatement measures in the FAA’s Chart Supplement, which includes the Airport/Facility Directory.  Because the Chart Supplement is the primary source of information to pilots on operational information about airports, the FAA hopes that standardized language for noise abatement measures will improve pilot compliance.

Airport operators with local noise abatement measures and procedures, including voluntary measures, may want to submit comments to assure that the FAA’s final guidance document includes standard language that would clearly and accurately describe their specific local noise abatement measures.

The FAA’s efforts to improve how the Chart Supplement describes noise abatement measures includes the following specific steps:

• Creating a new “Noise” entry in the Chart Supplement to describe local noise abatement measures.
• Consulting with pilot, operator, and airport stakeholders to develop preliminary recommendations for best practices to describe noise abatement measures.
• Publishing best practices for the Noise entry structure and nomenclature.
• Expanding the standard list of Chart Supplement abbreviations to include terms commonly used to describe noise abatement measures.
• Adding guidance on how to include noise abatement information in the Chart Supplement into draft advisory Circular 150/5020-1, “Noise Control and Compatibility Planning for Airports.”  

The FAA is seeking comments on all aspects of the proposal, including its proposals on structure and nomenclature, but has requested information on the following questions in particular:

• Is the term “Noise Abatement Information (NAI)” an effective term to cover operational noise abatement information, or should another term be used?
• Most noise abatement measures nationally are voluntary.  Accordingly, the FAA proposes not using the word “voluntary” for each measure but would identify which measures are mandatory.  Would that be readily understood by pilots and other stakeholders? 
• Quiet hours are defined as voluntary, and curfews are defined as mandatory.  Would those definitions be readily understood by pilots and other stakeholders?
• How should complex local noise abatement information, such as noise abatement flight paths or aircraft performance criteria, be included in the new “Noise” entry and/or point to the “Notices” entry in the Chart Supplement, where such measures are often described?
• What is the best way to describe preferential runway use programs that are tied to reported wind velocities?
• Is the proposed structure, nomenclature, and template for describing noise abatement information logical, complete, and clear? If not, how can it be improved?

ACI-NA and AAAE are preparing general comments on behalf of their membership, and Kaplan Kirsch attorneys are working with clients to assess whether airport-specific comments are appropriate.  For additional information contact Eric Pilsk, Peter Kirsch, or Steve Osit.

On April 19, 2024, the United States Environmental Protection Agency (EPA) issued a prepublication version of its final rule establishing some per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Recovery Act (CERCLA, or Superfund).  Simultaneously, EPA issued a PFAS Enforcement Discretion and Settlement Policy Under CERCLA (PFAS Enforcement Policy) that describes EPA’s approach to enforcement. 

The Rule designates two of the most widely used PFAS – perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers – as hazardous substances under CERCLA.  It implements the August 2022 proposed rule and will go into effect 60 days after publication in the Federal Register. 

As anticipated, the Rule will have far-reaching impacts on the regulatory and litigation landscape for all entities responsible for and/or contending with the effects of PFAS contamination, including airport operators grappling with the effects of decades of FAA-mandated use of PFAS-containing Aqueous Film-Forming Foam (AFFF) at Part 139-certificated airports nationwide.  Because CERCLA imposes statutory liability that is joint, several, and retroactive for owners or operators of sites where there are or have been releases of hazardous substances, airport operators are potentially liable for past releases of PFAS on their airport property, regardless of full compliance with all applicable laws and regulations, and regardless of who was responsible for the release.  The same is true for operators of solid waste landfills with PFAS releases, operators of public water supplies containing PFAS, and other entities.  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 responsible parties.  Thus, the designation is a significant development indeed. 

However, EPA, in response to widespread concerns from airport operators and other municipal entities, has softened the blow of the PFAS designation by simultaneously issuing its PFAS Enforcement Policy.  This policy clearly sets forth EPA’s intent to focus enforcement efforts on PFAS manufacturers and other industrial entities, not on a defined list of municipal entities that provide important public services: publicly owned airports and local fire departments, community water systems and publicly owned treatment works, municipal separate storm sewer systems, publicly owned/operated municipal solid waste landfills, and farms where biosolids are applied to the land.  Further, EPA indicates it will do its best to shield such parties from the long arm of CERCLA liability as much as possible using the tools at its disposal, by requiring in EPA settlements that settling responsible parties like PFAS manufacturers or other industrial entities waive their right to sue municipal entities for contribution, or offering agency settlement agreements with municipal parties where factors do not support enforcement so as to provide settlement protections like bars against third-party contribution claims.

EPA’s enforcement policy is a positive development for airport operators and other public entities now saddled with CERCLA liability for PFAS releases.  However, such entities should still take care to comply with all applicable laws and guidance regarding PFAS, and to act with great care not to release PFAS or exacerbate any existing PFAS contamination.  EPA’s policy cannot undo statutory liability, and the policy itself indicates that even public entities will be held accountable by EPA for PFAS releases where appropriate.  Indeed, EPA warns that even municipal actors will be held accountable if their “actions or inactions significantly contribute to, or exacerbate the spread of significant quantities of PFAS contamination, thereby requiring a CERCLA response action.”  It also is still possible that municipal entities like airport operators and wastewater treatment plants may be held liable in cost recovery suits for PFAS releases where EPA is not a party.

Kaplan Kirsch & Rockwell regularly counsels clients, both public and private, on regulatory compliance, emerging contaminants, and strategies to comply with environmental laws and reduce environmental liability.  For more information about PFAS, the proposed rule, or how PFAS regulation or liability may impact your organization, please contact Thomas A. Bloomfield, Polly B. Jessen, Sara V. Mogharabi, or Timothy Roth.

On April 10, 2024, the United States Environmental Protection Agency (EPA) issued a pre-publication version of its final rule establishing nationwide drinking water standards for some per- and polyfluoroalkyl substances (PFAS) under the federal Safe Drinking Water Act (SDWA).  The long-anticipated rule marks the first binding federal regulatory standard for PFAS, a group of thousands of man-made chemical compounds widely used since the mid-Twentieth Century in myriad products and processes that are now known to contribute to adverse health impacts and some cancers.  Public drinking water systems nationwide who will have to comply with the new rule over the next several years, and other entities that may face scrutiny as potential sources of PFAS contamination found in drinking water supplies, should take note of this important development in PFAS regulation.  The final rule will take effect 60 days after its publication in the Federal Register (it has not yet been published).  A pre-publication version of the final rule is available here. Given the scope of the rule, its anticipated costs and the emerging nature of the science of potential health impacts, legal challenges are certain to follow.

Federal Standards for PFAS in Drinking Water

EPA has studied PFAS for years but, until now, has left the imposition of regulatory standards to states.  Currently about half of states regulate PFAS in some manner.  Regulating PFAS nationwide via public drinking water standards has been a goal of EPA for many years and is a cornerstone of the Biden Administration’s PFAS Strategic Roadmap.  EPA announced its proposed rule in March of 2023 (for a summary of that proposal, see here).  After considering 120,000 comments on the proposed rule from stakeholders and engaging with the water sector and state regulators, a year later, EPA has issued a final rule.

The final rule will regulate PFOA and PFOS, the two most well-known and widely used PFAS, as individual contaminants, each with a regulatory limit called a Maximum Contaminant Level (MCL) of 4 parts per trillion (ppt) in public drinking water systems throughout the country.  The rule establishes a binding MCL of 10 ppt for three additional PFAS (PFNA, PFHxS, and HFPO-DA). HFPO-DA is commonly known as “GenX.”  Additionally, EPA will regulate mixtures of four PFAS (PFHxS, PFNA, HFPO-DA, and PFBS), which are prone to co-occur in drinking water, through a Hazard Index MCL.  EPA states that mixtures of different chemicals can elicit adverse health effects, even when individual chemicals are present at “safe” levels.  A Hazard Index MCL, which is calculated by adding the ratio of the water sample concentration to a Health-Based Water Concentration, is intended to address the adverse health effects associated with mixtures that include two or more of the four PFAS above.  Rule opponents claim EPA is over-estimating the risks posed by these compounds.

These standards are striking in their stringency.  To provide a sense of scale, 1 ppt is the equivalent of one drop of ink in twenty Olympic-sized swimming pools.  The low regulatory standards reflect EPA’s determination that some PFAS, like PFOA and PFOS, have detrimental health impacts at any measurable level, and that exposure to other PFAS are associated with a range of adverse health effects.  Indeed, as part of the final rule establishing MCLs, EPA is setting non-enforceable health-based goals called Maximum Contaminant Level Goals (MCLGs) of 0 ppt for PFOA and PFOS and 10 ppt for PFNA, PFHxS, and HFPO-DA.  EPA has indicated it would have preferred a lower MCL for PFOA and PFOS, but 4 ppt is the lowest concentration to which laboratories can reliably measure, and therefore, is the lowest regulatory standard feasible. 

Summary of Regulatory Levels in Final Rule

Implementation Timeline & Methods

Within three years of rule promulgation (i.e., 2024-2027), regulated public water systems must complete initial monitoring for regulated PFAS.  Three to five years following rule promulgation (i.e., 2027-2029), these public water systems must publish the results of their initial monitoring in a Consumer Confidence Report (CCR), also known as an Annual Water Quality Report, begin regular monitoring for compliance and publication of monitoring results, and provide public notice for monitoring and testing violations.  Starting five years after rule promulgation (i.e., beginning in 2029), public water systems must comply with all MCLs and provide public notification for any MCL violations. The rule provides mandatory exposure notification language that must be included in CCRs for MCL violations of each PFAS.

The final rule does not specify how water systems remediate water supplies that exceed the MCLs.  EPA designated four Best Achievable Technologies (BAT) that are technologically feasible for treating drinking water for the six PFAS: granular activated carbon (GAC), anion exchange resins (AIX), and high-pressure membranes (i.e., nanofiltration (NF) and reverse osmosis (RO)). This BAT designation is merely informational, and using BAT is not required.  Nonetheless, EPA indicated that the efficacies of these treatment technologies are supported by their histories of full-scale use as documented in the Best Achievable and Small System Compliance for Per- and Polyfluoroalkyl Substances (PFAS) in Drinking Water document (USEPA, 2024), information in the rule preamble, and public comments containing full-scale data and case studies, e.g., the 45 military installations that have treated PFAS.  Additionally, water systems may, in some cases, close contaminated wells or obtain new, uncontaminated sources.  Of course, both PFAS remediation and obtaining new water supplies can be costly undertakings.  Therefore, these providers will need to consider site-specific circumstances as well as technical, economic, and local regulatory considerations when choosing a compliance technology and approach.

Changes from the Proposed Rule

The MCL of 4 ppt for PFOA and PFOS and the approach for a hazard index for four other compounds (PFHxS, PFNA, HFPO-DA, and PFBS) did not materially change from the proposed rule to the final rule, but other aspects of EPA’s proposal did evolve.  The final rule now includes MCLs for PFHxS, PFNA, and HFPO-DA, which were not in the draft rule text.  In addition, EPA extended the compliance deadline for achieving MCLs to five years instead of the proposed three years, giving public water systems more time to plan, fund, and construct capital improvements necessary to meet the standards.  EPA also added flexibility on PFAS monitoring, allowing a decrease in monitoring frequency from quarterly to annually or triennial, if monitoring results support a reduction in frequency.

Impacts on Public Water Systems

The final rule requires public water systems nationwide to monitor for the regulated PFAS, notify the public if PFAS levels exceed their respective MCLs.  If the MCLs are exceeded, public water systems must reduce PFAS concentrations below the MCLs.  Thus, public drinking water systems nationwide will have to implement programs for monitoring, notification, and, if necessary, PFAS remediation.  EPA estimates that 6-10% of the 66,000 public drinking water systems in the country subject to the rule will have to take action to reduce PFAS because of the rule, and that the annual cost will be around $1.5 billion.  EPA estimates the benefits are in the order of $1.5 billion and that around 100 million Americans will have improved drinking water as a result of the rule, preventing 9,600 deaths and reducing cases of serious illness by approximately 30,000.  Critics of the rule claim the actual costs will be much higher and the benefits much lower. 

There is some funding and technical assistance available for public water systems, especially for small, disadvantaged, and rural communities.  The Bipartisan Infrastructure Law (BIL) dedicates $9 billion for investment in communities that have drinking water impacted by PFAS and other emerging contaminants.  Note that $1 billion of these funds can be allocated to private well owners that have adverse PFAS impacts.  The BIL also allocates $12 billion more generally for drinking water improvements.  EPA’s Water Technical Assistance team has resources to help communities identify water challenges, develop plans to address them, build technical, managerial, and financial capacity, and develop application materials to access water infrastructure funding.

Impacts on Other Entities

Entities, both private and public, that may be sources of PFAS contamination can expect that the new standards will increase both regulatory and public scrutiny and the likelihood of legal claims.  Such entities may include private manufacturers of PFAS, manufacturers of products that contain PFAS, and/or industries that have historically used PFAS in certain processes (i.e., textiles, petroleum refining, semiconductors, metal working).  Affected entities also include public entities that may not have been responsible for generating PFAS but may now have PFAS contamination on their property or within their control.  Municipalities, for instance, may have PFAS in their solid waste landfills due to leaching of PFAS from consumer products.  Water utilities or water purveyors may have PFAS accumulated in their water supplies due to releases from multiple sources.  Commercial services airports, which had long been required by the Federal Aviation Administration to use and discharge PFAS-containing fire-fighting foam, may find PFAS contamination on or emanating from their properties, even if they historically complied with all applicable laws and regulations.

Whether fairly or unfairly, PFAS sources, both public and private, will be in the crosshairs of regulators and the public alike if testing reveals PFAS in public drinking water supplies and communities work to identify where the PFAS originated.  The notice requirements triggered by this rule is likely bring even more attention these compounds, particularly given their ubiquitous nature.  This scrutiny, in turn, could result in greater regulatory enforcement and/or private party lawsuits, even in advance of other pending rulemakings discussed in more detail below.

Big Picture Take-Aways

After years of states leading the charge on PFAS regulation, EPA has stepped into the arena and established binding drinking water standards for some PFAS.  This rule may be just the tip of the iceberg for federal regulation of PFAS via the SDWA, as there are thousands of different PFAS compounds, and EPA is already in the process of testing water systems for more PFAS beyond those covered in this rule.  Further, regulation under the SDWA is just one of the ways EPA plans to address PFAS.

Simultaneous with issuing this rule, though separate from the establishment of drinking water standards, EPA is in the process of finalizing another significant PFAS rulemaking: its designation of PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  See KKR’s alert on that topic here.  That final rule, expected later this year, will expand EPA’s authority to investigate and remediate sites with PFAS contamination and create liability for various entities deemed responsible for PFAS releases.  EPA is also evaluating whether to regulate PFAS under the Resource Conservation and Recovery Act and considering guidance on PFAS enforcement.  

Just days ago, on April 9, 2024, EPA released a revised non-binding Interim Guidance on Destroying and Disposing of Certain PFAS and PFAS-Containing Materials That Are Not Consumer Products for public comment.  This interim guidance is an update over a prior non-binding interim guidance document the agency published in 2020.  It provides current information on options for PFAS destruction and disposal and encourages managers of PFAS and PFAS-containing waste to use destruction and disposal technologies that have a lower potential for releasing PFAS to the environment.  Recommended technologies are: underground injection in permitted Class I non-hazardous industrial or hazardous waste injection wells, landfilling at permitted hazardous waste landfills, and thermal treatment in permitted hazardous waste combustors.  The guidance provides an in-depth discussion of these and other destruction and disposal strategies, including emerging technologies.  The discussion may be helpful for managers trying to select a disposal strategy.  For instance, EPA provides advice on what type of landfill a manager should select for PFAS disposal depending on the state of the waste (solid, liquid, or gas) and its characteristics (i.e., whether the PFAS species in the waste are soluble, volatile, oxidizable, or biodegradable).  It identifies certain disposal technologies that might be most appropriate for certain products, such as liquid AFFF concentrate that many airports will be looking to dispose of as they switch to fluorine free fire-fighting foams (underground injection control or thermal treatment).  EPA notes throughout the guidance where uncertainties remain regarding effective PFAS treatment and disposal.  An update to this non-binding, interim guidance is expected within the next three years.  

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Kaplan Kirsch & Rockwell regularly counsels clients, both public and private, on regulatory compliance, emerging contaminants, and strategies to reduce environmental liability.  For more information about PFAS, the proposed rule, or how PFAS regulation or liability may impact your organization, please contact Thomas A. Bloomfield, Polly B. Jessen, Sara V. Mogharabi, or Timothy Roth.

The Federal Transit Administration (FTA) issued a Final Rule amending 49 C.F.R.  Part 673, which governs Public Transportation Agency Safety Plans (PTASPs), on April 11, 2024.  The Final Rule implements changes to safety planning required by the Infrastructure Investment and Jobs Act (IIJA), also known as the Bipartisan Infrastructure Law.  FTA has adopted the new regulations with limited substantive changes since it issued its Notice of Proposed Rulemaking (NPRM), notably eliminating independent requirements regarding a proposed safety risk reduction program and clarifying certain procedures involving the new Safety Committee and the Accountable Executive.

The most novel change to Part 673 is the addition of two new sections intended to foster cooperation between labor and management in safety planning.  The provisions set out different requirements for agencies depending on whether they serve large urbanized areas.  Agencies serving smaller areas must develop their PTASPs in cooperation with frontline transit worker representatives and describe that cooperation in their PTASPs.  Agencies serving large areas are required to convene a body made up of an equal number of representatives of frontline transit workers (selected by unions where they exist) and management: a Safety Committee.

The Safety Committee’s role is partially, but not fully, advisory.  The Committee is responsible for reviewing and approving the PTASP, setting annual safety performance targets, identifying safety deficiencies, and identifying risk-based mitigations that the agency should implement or that may be ineffective, inappropriate, or not implemented as intended.  If the Committee recommends a safety risk mitigation and the agency’s Accountable Executive—defined in the Final Rule as the single person with the ultimate responsibility for carrying out the PTASP—decides not to implement the mitigation, the Accountable Executive must prepare a written statement explaining their decision and present it to the Safety Committee and the agency’s Board of Directors. 

The Final Rule also revises the requirements for PTASPs in large urbanized areas, in part to accommodate the new Safety Committee regulations.  Such PTASPs must include what are effectively bylaws for the Safety Committee, such as procedures for developing meeting agendas and accessing technical experts.  The Final Rule also adds a requirement that PTASPs include a safety risk reduction program for transit operations that addresses vehicular and pedestrian safety events involving transit vehicles and assaults on transit workers—both of which are referenced in the IIJA—and safety performance targets designated by the Safety Committee.  The agency has also made adjustments to other sections of Part 673 to reflect the existence of the Safety Committee and the requirement to consider its recommendations. 

Elsewhere, the Final Rule requires agencies, in identifying hazards and mitigation measures, to consider infectious disease exposure data from public health authorities and data from state safety oversight agencies.  Agencies must also include de-escalation training and safety concern identification training in their safety training programs.  Finally, the Final Rule also extends the applicability of Part 673 to reach all agencies that operate rail fixed guideway systems, even if they only receive formula funds for rural areas or transportation for seniors and those with disabilities.

If you have questions about the Agency Safety Plan regulations, please contact Ayelet Hirschkorn, Suzanne Silverman, Charles Spitulnik, Christian Alexander, or Grant Glovin.

The Federal Railroad Administration (FRA) issued a Final Rule on April 2, 2024 setting forth a general rule that railroads must operate with two crewmembers. The FRA has made several revisions since it issued its Notice of Proposed Rulemaking (NPRM) in July 2022, including some in response to comments from passenger rail operators. The Final Rule will be effective 60 days after publication in the Federal Register for passenger rail service; the rule will likely be published imminently, putting the effective date sometime in early June. For freight service, different provisions take effect at different times; specific dates vary based on the class of the operator.

As in the Proposed Rule, the key portion of the Final Rule is its two-person requirement, which governs all railroads unless an exception applies. The Final Rule lists several such exceptions. Those relevant to passenger rail include (1) rapid transit operations in urban areas that are temporally separated from conventional rail operations and are subject to a State Safety Oversight Agency and a Public Transportation Agency Safety Plan, and (2) passenger trains with approved passenger train emergency preparedness plans under 49 C.F.R. Part 239. There are also exceptions for certain tourist trains, certain slow-moving unit freight trains, and legacy one-person crews on Class II and III railroads (subject to notice requirements and the adoption of certain operating rules). On other lines, railroads may petition for special approval to operate one-person service.

FRA’s Federal Register notice responds to the thousands of comments it received, including comments from the two transit authorities whose operations would not have met the requirements in the Proposed Rule (Utah Transit Authority (UTA) and the Denver Regional Transportation District (RTD)), the American Public Transportation Association, and the Commuter Rail Coalition. Each of those parties submitted comments arguing that UTA’s and RTD’s operations, although classified as one-person operations under the proposed rule, did not need additional approvals because they had already received sufficient review under the Part 239 emergency preparedness planning process. FRA agreed and accordingly added a provision permitting legacy one-person train operations where the operator has an approved emergency preparedness plan. However, FRA rejected the suggestion to amend its definition of “train or yard crew” so that UTA and RTD’s operations would meet the two-crewmember requirement.

In response to comments from other stakeholders, FRA made several other changes to the rule. The agency extended compliance dates and amended the procedure for risk assessments of one-person operations. For freight operators, FRA moved away from a blanket prohibition on the transportation of hazardous materials by one-person service and instead decided to permit it under limited circumstances on Class II and III railroads. FRA also responded to comments by clarifying the effect of the rule in the Federal Register notice. Most notably, the agency made clear its expectation that the two-crewmember requirement will create a nationwide standard and preempt state laws governing crew size, aside from those that cover “essentially local” (and not statewide) hazards. FRA also defined the term “one-person train crew” to mean that only one person is assigned to the train and performs the duties of both the locomotive engineer and the conductor, or that only the locomotive engineer travels on the train while the train is moving.

If you have questions about the crew size rule, please contact Ayelet Hirschkorn, Suzanne Silverman, Charles Spitulnik, Christian Alexander, or Grant Glovin.

The Federal Transit Administration (FTA) issued a Notice of Proposed Rulemaking on March 25, 2024, that proposes new regulations governing rail transit roadway worker protection (RWP). The regulations would require rail transit agencies that are part of the state safety oversight program under 49 C.F.R. Part 674 to plan for and implement an RWP program that complies with minimum standards and program elements. The program would reach transit workers whose duties involve inspection, construction, maintenance, repairs, or safety on or near the roadway or right-of-way with the potential of fouling a track (defined under the proposed regulations as placing the worker’s self or equipment in a position that a moving vehicle or on-track equipment could strike either). If adopted, the regulations will replace the currently voluntary standards and will be codified in a new Part 671 in Title 49 of the Code of Federal Regulations.

The NPRM explains that FTA, after a review of safety events, concluded that current safety programs are too weak to protect against roadway worker fatalities and injuries. The regulations build off that review, recommendations from the National Transportation Safety Board (NTSB), submission in response to a request for information published in September 2021, and voluntary RWP standards developed in a collaboration between FTA and the American Public Transportation Association (APTA). Those processes identified particular safety problems that the regulations seek to address. 

As drafted, the regulations would require rail transit agencies to adopt and implement an RWP program. The program would include certain minimum program elements, including:

• The designation of a roadway worker in charge for each roadway work group;
• Job safety briefings, to be delivered by the roadway worker in charge before a roadway worker group fouls a track and to include certain minimum elements;
• A prohibition on lone workers fouling the track outside of certain limited circumstances;
• The use of redundant protections; and
• A RWP training program, subject to certain content and timing requirements.

These policies would be adopted into agency safety plans. Agencies would also need to develop certain procedures that would dictate methods for:

• Accessing the track zone;
• Providing ample time (defined as the time necessary to clear a track zone or reach a place of safety 15 seconds before a rail transit vehicle moving at the maximum authorized speed on the track could reach the worker’s location);
• Determining appropriate sight distance the length of track visible to a roadway worker);
• Providing job safety briefings whenever a rule violation is observed;
• Providing transit workers the right to challenge and refuse an assignment based on safety concerns (a “good faith safety challenge”);
• Reporting unsafe acts, unsafe conditions, and near-misses on the roadway;
• Training workers to understand and comply with the RWP program.

Each agency would document its program in an RWP manual, which would describe the program elements and the required procedures, include a track access guide, and document the training, qualification, and supervision required for workers to access the track zone. Agencies would be required to update the manual at least every two years. State Safety Oversight Agencies (SSOAs) would be required to review and approve each agency’s RWP manual and program elements, to update their Program Standards in light of the RWP program, and to audit agencies annually for compliance with their RWP programs and to analyze their effectiveness.

The regulations also stress redundant protection. Agencies would be prohibited from using individual rail transit vehicle detection — in which a lone worker visually detects approaching vehicles or equipment — as the only form of protection. Each agency would instead be required to use its existing Safety Management System to establish physical or procedural redundant protections consistent with its Agency Safety Plans and each agency’s SSOA’s Program Standard. An agency would need to provide redundant protections specific to the category of work a given roadway worker was performing. SSOAs would also be authorized to require that agencies implement alternate redundant protections.

FTA projects that the regulations would result in $14.2 million in annual benefits due to a reduction of 1.4 fatalities and 3.9 injuries per year. That is balanced against $2.0 million in projected start-up costs and $11.3 million in projected ongoing annual costs, due primarily to redundant worker protections and training. FTA selected its regulations from a pool of three options because it prevented more roadway worker injuries and fatalities while maintaining net positive benefits.

The regulations are authorized by 49 U.S.C. § 5329(b), which directs FTA to create and implement a national public transportation safety plan containing minimum safety standards. Agencies and SSOAs would be permitted to implement additional or more stringent standards.

Interested parties are invited to comment on the regulations. Comments can be submitted to docket number FTA-2023-0024 on regulations.gov, and are due May 24, 2024. The NPRM is published at 89 Fed. Reg. 20605 (Mar. 25, 2024).

If you have questions about the RWP regulations, please contact Ayelet Hirschkorn, Suzanne Silverman, Charles Spitulnik, Christian Alexander, or Grant Glovin.

Kaplan Kirsch & Rockwell is pleased to announce three attorneys have been selected for inclusion to the 2024 Colorado Super Lawyers^® list.

2024 Colorado Super Lawyers:

• Polly B. Jessen  Environmental 
• Peter J. Kirsch  Aviation and Aerospace
• Lori J. Potter  Environmental

Super Lawyers^® utilizes a rigorous selection process based on peer nominations and independent research evaluating 12 indicators of peer recognition and professional achievement. This multi-phase process ensures that all Super Lawyers lists provide users with a credible, comprehensive list of outstanding attorneys in the state. Only the top 5 percent of outstanding lawyers in Colorado are rated by Super Lawyers.