FAA Reauthorization Act Creates PFAS Replacement Program for Airports

President Joe Biden signed the bipartisan, bicameral Federal Aviation Administration Reauthorization Act of 2024 into law on May 16, 2024, extending many old provisions as well as creating new policy. One new provision is Section 767 of Title VII, Modernizing Airport Infrastructure, setting aside per- and polyfluoroalkyl substances (PFAS)-related resources for airports. The primary application for PFAS use in airports is in aqueous film-forming foams (AFFFs) used to fight fires caused by liquid fuels such as aviation fuels. According to the U.S. Fire Administration, PFAS have been used in such firefighting foams since the 1970s due to their effectiveness at containing flammable vapors.

In the National Defense Authorization Act for Fiscal Year 2020, Congress required the U.S. Department of Defense (DOD) to create new specifications for firefighting foams to accomplish the same goal without the use of PFAS. This performance specification for fluorine-free foams (F3), known as MILSPEC F3, was published in January 2023. It outlines the requirements a nonfluorinated foam product must fulfill to be considered a qualified replacement for traditional, fluorinated firefighting foams. At the same time the Federal Aviation Administration (FAA) published a Part 139 CertAlert that expressly permitted Part 139 airports to substitute AFFF for any F3 agent that meets the MILSPEC F3 and is listed in the DOD's Qualified Product List (QPL). Subsequently, in September 2023 DOD identified the first fluorine-free firefighting foam agent that meets the department's F3 performance standards in its QPL. The FAA issued a follow-up Advisory Circular on Nov. 27, 2023, allowing adoption of F3 foam for firefighting.

To ensure widespread adoption of new, nonfluorinated firefighting foams that meet new government specifications such as MILSPEC F3, the FAA Reauthorization Act creates a PFAS Replacement Program to offset the costs placed on airports. This program will reimburse sponsors of eligible airports for the costs incurred after Sept. 12, 2023, for the following activities:

• initial acquisition of MILSPEC F3 foams for twice the quantity for all required aircraft rescue and firefighting equipment
• disposal of firefighting foams that contain PFAS, such as AFFFs
• cleaning or disposal of existing equipment or their relevant components to ensure the complete absence of PFAS residue
• acquisition or replacement of any equipment necessary to ensure the transition to nonfluorinated firefighting foams

Similarly, the PFAS Replacement Program establishes grants of up to $2 million each for 14 C.F.R. Part 139-certified airports that do not have existing capabilities to produce non-fluorinated firefighting foam to make the transition away from traditional AFFFs

Section 767 of the FAA Reauthorization Act of 2024 requires that the PFAS Replacement Program be established within three months of the law's enaction, and based on current FAA actions, it is likely that this obligation will be met. Independent of the 2024 FAA Reauthorization Act, the FAA published an Aircraft Firefighting Foam Transition Plan one week before the bill's enactment. This document, congressionally directed in December 2022, was developed by the FAA, U.S. Environmental Protection Agency (EPA), industry work groups and the DOD to effectively transition from fluorinated firefighting foams to nonfluorinated foams that are approved under MILSPEC F3. This transition plan omits funding mechanisms and instead focuses on how to issue guidelines and transition requirements.

Conclusion

In practice, the FAA Transition Plan will serve as the roadmap for airports to make the transition to nonfluorinated firefighting foams, and the PFAS Replacement Program will serve as the means for accomplishing key milestones. The updated provisions fall within the Airport Improvement Program Modifications portion of the new law, and grants are likely to be disbursed within that same existing framework in the coming months.

For more information or questions, contact the authors or a member of Holland & Knight's Emerging Contaminants and PFAS Team.

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