Viewpoint: PFAS Regulation Attempts To Ground Aviation

Per- and polyfluoroalkyl substances (PFAS) are a family of more than 10,000 man-made chemicals that have been used for almost 70 years in many manufacturing and industrial applications, including extensively in the aviation industry. Aqueous film-forming foam (AFFF) has been used at airports since the 1970s, while polytetrafluoroethylene is used in numerous aircraft components. In addition, some aviation hydraulic fluids have been reported to contain PFAS, while PFAS have also reportedly been used in aviation metal finishing.
 
As recently as 2018, the term “PFAS” was relatively unknown to the media, the public, environmental groups and, perhaps most importantly, regulators. The past five years, however, have seen increased scientific inquiry into the impact of PFAS on human health. Dozens of studies have been conducted over that time, and despite no definitive scientific evidence that exposure to PFAS causes adverse health effects in humans, federal, state and foreign governments are throwing down the regulatory gauntlet against these “forever chemicals.”

Regulatory Impact On The Aviation Industry
The FAA has for many years required airports and other aviation-related businesses to use firefighting foam that contains PFAS. On Jan. 6, 2023, the Department of Defense released a new military specification for PFAS-free firefighting foam. The specification mandates that there can be no PFAS intentionally added to the foam, although there are still no PFAS-free foams qualified to the new standard. That is expected to change within the next few months. 

The FAA is authorizing the use of qualified foams but will no longer require their use at Part 139 airports. A number of states, however, have banned PFAS-containing firefighting foam, although there are exceptions where required by federal law. Once PFAS-free foams are qualified and available, those exceptions will no longer be effective. Therefore, and due to potential liability issues, aviation-related entities should switch to PFAS-free alternatives when available.

As for liability, multiple state and local agencies have brought enforcement actions against owners of airports and other aviation-related businesses to clean up and abate PFAS at the facility and off-site where they exceed state maximum contaminant levels (MCLs). The Environmental Protection Agency (EPA) recently proposed even lower MCLs for six PFAS. If the rules are finalized, the vast majority of water systems will require costly remediation, likely leading to an explosion of enforcement actions.

The EPA also proposes to designate certain PFAS used in AFFF as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act. If that occurs, properties currently or formerly owned by aviation-related entities where PFAS were used could be subject to Superfund designation, which could result in current and former owners of the property, as well as those deemed to have generated PFAS on the property, being held strictly liable for cleanup costs, damage to natural resources and health assessment costs.

There may, however, be grounds for aviation-related entities to challenge these regulations based on the lack of a valid scientific basis for the action, given the lack of any toxicological evidence concerning certain PFAS and the lack of consensus concerning adverse health effects. In addition, the regulations may be challenged based on insufficient cost-benefit analyses.

But perhaps the greatest impact that the current regulatory climate may have on the aviation industry is from the European Chemicals Agency’s proposal to ban more than 10,000 PFAS chemicals. The proposed restriction addresses the manufacture, distribution (including import), and use of PFAS, including as constituents of other substances, in the European Union. 

If enacted, this regulation would have a staggering impact on the aviation industry. The proposal would ban chemicals (1) for which there is currently no evidence that exposure causes adverse health effects; (2) that are vital to the production of aviation products; and (3) for which there are currently no alternatives. Therefore, the ban will impact not only companies’ ability to sell products in Europe that contain PFAS but also their ability to obtain necessary component parts.
 
Advice For Aviation Companies
Due to increased public awareness, PFAS regulation has exploded over the past few years, with additional regulations on the horizon. These regulations will have a tremendous impact on the aviation industry. As a result, aviation companies should immediately begin assessing the impact on their business to determine a strategy moving forward. In addition, they must begin preparation for litigation that is likely on the horizon.

Partner Brian Gross and Law Clerk Sonia Niekrasz work for MG+M The Law Firm.