Some Municipal Airports Designated As Superfund Sites Due to Fire Suppression Agents
The New York State Department of Environmental Conservation (“NYSDEC”) has recently classified several municipal airports as inactive hazardous waste sites (i.e., Superfund sites), due to FAA-required use and storage of aqueous film-forming foam (“AFFF”), a fire suppression agent used for training and to extinguish jet fuel fires. Since 1960, AFFF contained the chemicals known as PFOA and PFOS, which have recently been designated hazardous substances under New York law.
How much PFOA/PFOS Makes A Site Contaminated
New York State’s water quality standard for PFOA/PFOS is very strict, allowing only 10 parts per trillion, which is approximately equal to a single drop of chemical in an amount of water that could fill one hundred Olympic-sized swimming pools. If NYSDEC identifies the presence of contamination, the airport may be classified as a Superfund site requiring an expensive cleanup.
After such designation, DEC will demand that the owner/operator of the property investigate and remediate of the contamination. The municipality can either reject NYSDEC’s demand and allow DEC to conduct the work itself or enter into a consent order agreeing to conduct and pay for the cleanup under NYSDEC oversight.
The first option is not the preferred choice. It will likely be more expensive, may cause negative press, and will result in NYSDEC either sending a bill to the municipality for the entire cost, suing the municipality for recovery or both.
Entering into a consent order is the far better option in cases like this. It allows the municipality to control the cleanup, minimize costs, and manage the process through professionals. It also allows the municipality to pay the costs as they are incurred, as opposed to receiving a large bill from DEC at once.
In addition, entering into a consent order affords the municipality with statutory contribution protection, materially enhancing the municipality’s litigation position. Contribution protection precludes most third parties from suing the municipality for cleanup costs, while allowing the municipality to sue any responsible party for cost recovery to recoup the costs expended. This is important because without this defense, the municipality as landowner and/or airport operator, has strict joint and several liability for all cleanup costs, on-site and off-site.
Funding Sources For Airport Contamination Cleanup
To avoid or reduce the use of tax revenue, there are two primary sources of funding the cleanup that a municipality can pursue, insurance and litigation.
The first is insurance. Often municipalities with airport operations will have airport liability insurance policies. However, this coverage, is often very nuanced and may contain pollution exclusions that will require expert review before submitting an insurance claim or seeking a reversal of a disclaimer. On the other hand, such policies can be very valuable as they may provide significant coverage for cleanup costs and other related liability, which can easily be in the millions.
The second potential funding source is litigation. Lawsuits should be filed against two sets of parties: (i) the manufacturers of AFFF for products liability, including 3M and DuPont, and (ii) local fire departments that contributed to AFFF use at the site. While local fire departments themselves may not have deep pockets, they will often have insurance policies with very high limits that contain applicable exceptions to pollution exclusions. It is important to act quickly due to statute of limitations concerns.
Airport Contamination Is A Three-Front War
In sum, once NYSDEC identifies the existence of PFOA/PFOS at an airport, the municipality must fight a three-front war to minimize exposure. They must contend is regulation, insurance and litigation. Rigano LLC has been retained by municipalities in New York to handle all three at their airport Superfund sites.
On behalf of those municipalities, we:
- have managed the DEC Superfund process with respect to AFFF releases at municipal owned/operated airports.
- have reversed an insurer’s disclaimer resulting in millions of dollars of insurance coverage for the airport cleanup.
- are litigating against AFFF manufacturers and local fire departments triggering millions in insurance coverage.
Of course, prior results do not guarantee a similar outcome, but we have a distinguished history of over forty years litigating environmental issues and negotiating with regulatory agencies, insurance companies and responsible parties. Our experience has resulted in relationships with all segments of the environmental community, making Rigano LLC a leading authority on AFFF contaminated property, particularly municipal-owned airports.