AFFF Litigation

 

Litigation is pending in federal and state courts to recover damages and remediate contaminated sites. The majority of cases are filed in federal court. The Judicial Panel on Multidistrict Litigation determined that the AFFF cases filed involved common questions of law and fact such that centralization of the cases was appropriate. Weighing a number of factors, the Judicial Panel selected the District of South Carolina as the forum for this litigation. These cases have been assigned to the Honorable Richard M. Gergel for coordinated discovery and pretrial matters. This multidistrict litigation is currently comprised of approximately five hundred cases pending before this Court. These cases all involve varied causes of action and claims relating to per- or polyfluoroalkyl substances (PFAS). Plaintiffs generally allege that aqueous film-forming foams (AFFFs) containing perfluorooctanoic acid (PFOA) and/or perfluorooctane sulfonate (PFOS), two types of PFAS, contaminated groundwater near various military bases, airports, and other industrial sites where AFFFs were used to extinguish liquid fuel fires.

Health Effects of PFAS

 

Aqueous Film Forming Foam (AFFF) containing Per- and polyfluoroalkyl substances (PFAS) including perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), are a group of man-made chemicals that are an emerging contaminant in soil and groundwater across the country.  The negative health outcomes associated with exposure to PFAS include:

  • Hepatic Effects (increased cholesterol, increased liver weight; hypertrophy)
  • Cardiovascular Effects (pregnancy-induced hypertension and pre-eclampsia)
  • Endocrine Effects (thyroid disease); Immune Effects (decreased vaccine response)
  • Respiratory Effects (asthma, COPD, bronchitis)
  • Reproductive Effects (decreased fertility)
  • Skeletal Effects (osteoarthritis)
  • Developmental Effects (decreased birth weight)
  • Carcinogenic Effects (kidney, liver, testicular, prostate, non-Hodgkin’s lymphoma)

As a result of these health risks, on May 19, 2016, EPA issued a SDWA lifetime health advisory (LHA) recommending that the individual or combined levels of PFOS and PFOA concentrations in drinking water be below 70 ppt.

 

AFFF Use at Airports

 

Airports are required by law to provide aircraft rescue and firefighting (ARFF) services during operation. Airport fire-fighting personnel have historically trained with Aqueous Film Forming Foam (AFFF) containing PFOA and/or PFOS, either at the airport itself or an off-site facility. FAA regulations previously mandated the discharge of AFFF in training exercises.  On January 17, 2018, the FAA issued new guidance to assist airports seeking to manage environmental, liability, and community risks associated AFFF.  The FAA announced that airport operators could begin using 3 new testing systems for fire-fighting equipment that do not involve dispensing foam.

Unfortunately, still today many airports conduct training on property and discharge AFFF directly onto the ground surface.  Many airports also fail to realize the level of involvement in decontaminating fire trucks and hangar suppression systems to get concentrations in rinse water below EPA levels. While current AFFF formulations generally do not contain PFOA and PFOS, many older formulations purchased years ago are still in use due to their long shelf-life. Even if an airport conducts non-discharge training and utilizes newer formulations of AFFF, decades of training with AFFF’s containing PFOA and PFOS has very likely resulted in soil and groundwater contamination on and around airport property.

 

Steps for Airports to Take

  • If not already in place, immediately institute new training and systems testing methodology that does not require the discharge of AFFF.
  • Immediately discontinue the use of older AFFF formulations which contain PFOS and/or PFOA.
  • Begin formulating a PFAS sampling and mitigation plan for airport property – identify areas of concern (training areas, maintenance areas, storage areas, disposal areas, vehicle wash areas, drainage systems, and any area with documented AFFF discharge/release), identify potential exposure pathways, thoroughly sample soil and groundwater in all areas, and immediately implement containment/mitigation measures.
  • Once a comprehensive sampling plan is completed and PFAS contamination is delineated, a remediation plan should be developed and implemented.
  • Research insurance policies to determine coverage for the sampling and remediation of AFFF contamination, for potential liability for contamination of surrounding properties and underlying aquifers, and for potential liability for exposure of airport personnel.
  • Evaluate whether to file a claim against the manufacturers of AFFF for the significant costs of sampling and remediation.
  • File Complaint to recover damages, including costs of environmental investigation and cleanup

 

 

 

 

 

 

 

* For comprehensive information, please see “Use and Potential Impacts of AFFF Containing PFASs at Airports” (2017) published in the National Academy of Sciences as Airport Cooperative Research Program (ACRP) Report 173.

 

 

 

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