In response to the Environmental Protection Agency’s (EPA) proposed designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS), including their salts and structural isomers, as Hazardous Substances under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Airlines for America® (A4A)[1] submitted formal comments requesting that EPA abstain from finalizing the proposed designation (the “Proposed Rule”).

We previously issued a Legal Alert concerning EPA’s proposal to designate PFOA and PFOS as CERCLA Hazardous Substances. The public comment period on this proposal closed approximately two months ago. A4A’s comment letter was submitted to EPA on the final day of the public comment period.

PFOA and PFOS are among the family of Per- and Polyfluoroalkyl Substances (PFAS), a large, complex group of manufactured chemicals that have been used in industry and consumer products worldwide since the 1940’s, and are ingredients in various everyday products. They are used to keep food from sticking to packaging or cookware, make clothes and carpets resistant to stains, and create firefighting foam that is more effective. They have been used to make nonstick cookware, water-repellent clothing, stain resistant fabrics and carpets, some cosmetics, and products that resist grease, water, and oil. Of significance to this Legal Alert, aqueous film forming firefighting foams (AFFF) contain PFAS for safety and performance reasons.

In their comments, A4A advances a number of policy and law-based arguments in support of its position. A4A’s first, and perhaps most compelling, argument is that EPA’s Proposed Rule is premature because a technically feasible PFAS-free AFFF has not been identified for use in aviation fire-suppression activities.

The Federal Aviation Administration (FAA) requires airports that serve scheduled and unscheduled air carrier aircraft with more than 30 seats (these are commonly referred to as “Part 139” airports, constituting the vast majority of all airports) to comply with Department of Defense (DoD) Military Specifications (“MIL-SPEC”) in certain firefighting efforts. Until recently, DoD’s MIL-SPEC only identified PFAS-containing AFFF as compliant. Although the MIL-SPEC no longer requires the use of fluorinated chemicals, the existing performance standard for firefighting foam remains unchanged. Part 139 airports must remain in compliance through use of an approved firefighting foam that satisfies the MIL-SPEC performance requirements. A4A points out that, while current MIL-SPEC allows for use of AFFF that is PFAS-free, “there is no product available on the market that meets the MIL-SPEC requirements as currently written.” Consequently, A4A argues, Part 139 airports have no choice but to use PFAS-containing chemicals (such as PFOA and PFOS).

Argument: Foams with PFAS Necessary to Protect Against Aviation Fires

A4A argues that the aviation industry’s “limited use” of AFFF, together with appropriate containment, does not necessitate designation of PFOA and PFOS as CERCLA Hazardous Substances. A4A also argues the Proposed Rule will have unintended consequences, most notably, greatly burdening the aviation industry’s efforts to protect against aviation fires.

A4A also argues that the Proposed Rule is deficient because “the criteria for triggering Section 102(a) does not apply to aviation industry uses.” Further, A4A asserts, “the Proposed Rule does not adequately quantify replacement and disposal costs, will not result in meaningful environmental improvement, and does not reflect adequate consultation with the FAA.” As we have highlighted previously, the regulatory landscape concerning PFAS is changing in rapid and significant ways. These changes will undeniably have significant impacts on any number of industries due to worldwide, decades-long, ubiquitous reliance on PFAS-containing materials and products. We are continuing to track these issues and will be issuing further alerts as more becomes known. While this is occurring, those whose activities are touched by this issue should be consulting with knowledgeable technical and legal consultants in order to stay abreast of coming changes.

If you have any questions about the matters in this Legal Alert, please contact: Gene Kelly at 518-701-2740/, Kelly Jones Howell at 212-912-3652/, or the Harris Beach attorney with whom you usually work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.

[1] A4A’s members are Alaska Airlines, Inc.; American Airlines Group, Inc.; Delta Air lines, Inc.; Federal Express Corporation; Hawaiian Airlines, Inc.; JetBlue Airways Corp.; Southwest Airlines Co.; United Airlines Holdings, Inc.; and United Parcel Service Co. Air Canada is an associate member.