Tag: airports

Eliminating Use of PFAS at Airports May Be Harder Than Congress Thought

Per- and polyfluoroalkyl substances (PFAS) are emerging contaminants that are subject to increasing environmental regulation and legislation, including legislation to outright ban their use in certain products. Congress directed the Federal Aviation Administration (FAA) to stop requiring PFAS in the foams used to fight certain fires at commercial airports, and to do so by Oct. 4, 2021. In complying with this order, FAA shows the difficult tightrope it has to walk to meet the “intent” of Congress’ directive, while not really meeting the goal Congress had hoped for.

The FAA issued Certification Alert (CertAlert) 21-05, “Part 139 Extinguishing Agent Requirements,” addressing the continued use of aqueous film-forming foam (AFFF) in order to meet the Oct. 4 deadline. In Section 332 of the FAA Reauthorization Act of 2018, Congress directed that after this date, FAA “…shall not require the use of fluorinated chemicals to meet the performance standards referenced in chapter 6 of AC No: 150/5210–6D and acceptable under 139.319(l) of title 14, Code of Federal Regulations.”

The CertAlert directs airports to continue using AFFF with PFAS unless they can demonstrate another means of compliance with the performance standards stablished by the Department of Defense (DoD) for extinguishing fires at commercial airports. The FAA alert also reminds airports about the need to test their firefighting equipment. Airports can perform the required testing by using a device that has been available since 2019 which does not require the discharge of any foam. Finally, the FAA also reminded airports to comply with state and local requirements for management of foam after it has been discharged.

The FAA reported in its communication that it began constructing a research facility in 2014 that was completed in 2019 and that it has been collaborating with DoD in the search for fluorine-free alternatives for AFFF. The FAA reported that it has tested 15 fluorine-free foams and found that none of them meet the strict DoD performance specifications that also are imposed on commercial airports. More specifically, FAA said the tested alternative foams had the following failings:

  • Increased time to extinguish fires
  • Not as effective at preventing a fire from reigniting
  • Not compatible with the existing firefighting equipment at airports

AFFF was developed to fight fuel fires on aircraft carriers where the ability to suppress fires as rapidly as possible and keep them suppressed is vital to the health and safety of pilots, crews, firefighters and the ship. The military specification (commonly known as MilSpec) for effective firefighting foams for fuel fires is in place for both military and civilian airports.  For many years, the consequences of the use of AFFF to fight aircraft fuel fires – most specifically, the adverse impact on groundwater and surface water – was not fully appreciated. Only recently has this threat been understood and only even more recently has the management of firefighting debris been directly addressed.

Congress may have thought it was eliminating a threat with the legislation directing the FAA to no longer require airports to use AFFF. But FAA’s latest messaging on AFFF highlights just how difficult it is to find suitable replacements, especially when they also have to meet the DoD’s stringent performance standards. The FAA did invite any airport, if they identify a replacement foam that meets the performance standards, to share that discovery with the FAA. However, it is unclear what that would accomplish when it is the DoD and not the FAA that certifies a particular foam’s performance.

In essence, FAA could not solve the challenge that Congress gave it (approve a fluorine-free foam) and instead used the CertAlert to approve airports to use such foams if they can find them on their own. The bottom line is that inadequate progress has been made to fulfill congressional intent to stop using AFFF at commercial airports, and airports are left with no choice but to use PFAS containing foams.

There is legislative activity in many states to ban products with PFAS and at the federal level there have been legislative actions targeting the same – like removing them from MREs. The FAA’s removal of its mandate to use AFFF without offering a PFAS-free alternative is a particularly visible example of the challenge in transitioning away from reliance on PFAS chemicals.

© 2021 BARNES & THORNBURG LLP
For more on travel and transportation, visit the NLR Public Services, Infrastructure, Transportation section.

Update: Suspension of Trusted Traveler Enrollment Extended to June 1, 2020

On April 22, 2020, Customs and Border Protection (CBP) announced it is extending its suspension of operations at all Trusted Traveler enrollment centers until at least June 1, 2020 to protect CBP officers and the general public from exposure to COVID-19.

Applicants with a previously scheduled appointment for a final interview will need to re-schedule for a date after June 1st. Applicants can log in to their online TTP accounts for more information on available appointments and to review the status of a pending application. Designated airports will continue to allow enrollment on arrival for conditionally approved applicants entering the United States.

The temporary closures apply to all enrollment centers – Global Entry, NEXUS, Sentri, and FAST.

The closures are expected to add to the already extensive backlog of pending applications. In response to this, CBP will allow current members to continue using their trusted traveler benefits for 18 months after the date of expiration provided members submit an application for renewal before their current membership expires. Additionally, applicants now have 485 days (just under 16 months) to complete their final interview from the date of conditional approval.

Please click the following links for our previous posts on this issue:

COVID-19 Immigration-Related Updates

Trusted Traveler Processing Delays 

 

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Authored by Colleen DiNicola in the Immigration Practice at Mintz Levin.
For more on travel restrictions, see the National Law Review Immigration law page.

Court to Consider Whether California Ride Share Drivers Who Make Airport Runs Are Exempt from the Federal Arbitration Act

On November 26, 2019, San Francisco Superior Court Judge Richard B. Ulmer ruled that the Federal Arbitration Act (“FAA”) might not apply to Uber drivers who are engaged in interstate commerce while driving passengers to or from international airports.

In his claims before the Division of Labor Standards and Enforcement (“DLSE”), driver Sangam Patel (“Patel”) seeks recovery of unpaid wages, overtime pay, vacation pay, meal and rest break premiums, and unpaid business expenses allegedly owed by Uber. Uber petitioned to compel arbitration of Patel’s (“Patel”) claims under the FAA.

The Labor Code provides a right to bring an action to collect wages notwithstanding the existence of an arbitration agreement. Cal. Lab. Code § 229. If the FAA applies, a written arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The FAA applies to any “contract evidencing a transaction involving commerce” that contains an arbitration provision. Id. The FAA does not apply, however, to “contracts of…workers engaged in foreign or interstate commerce.” Id., at § 1.

Notably, there is a distinction between the term “involving” for purposes of section 2 and the term “engaged in” for purposes of section 1.

As the California Court of Appeal explained earlier this year in Muller v. Roy Miller Freight Lines, LLC (2019) 34 Cal.App.5th 1056, 1062, “the [United States] Supreme Court reasoned the plain meaning of ‘engaged in’ interstate commerce in section 1 is narrower in scope than the open-ended phrase ‘involving’ commerce in section 2. Unlike section 2’s reference to ‘involving commerce,’ which ‘indicates Congress’ intent to regulate to the outer limits of its authority under the Commerce Clause’ and thus is afforded an ‘expansive reading,’ section 1’s reference to ‘engaged in commerce’ is ‘narrower,’ and therefore ‘understood to have a more limited reach,’ requiring ‘a narrow construction’ and a ‘precise reading.’” (Internal citations omitted.)

Uber argued that the FAA applies to its arbitration provision because it involves commerce as the Uber app is available to riders and transportation providers in over 175 cities across the United States. Relying on precedent that stands for the proposition that workers need only engage in activities that affect interstate commerce to be considered “engaged in interstate commerce,” the Labor Commissioner argued that Uber drivers such as Patel engage in interstate commerce when they transport passengers to and from international airports, thus rendering the FAA inapplicable.

The argument is similar to that raised Singh v. Uber Techs. Inc. earlier this year, where the U.S. Court of Appeals for the Third Circuit rejected Uber’s argument that a group of New Jersey drivers suing for unpaid overtime wages were required to arbitrate their claims. The Singh Court found that transportation workers who transport passengers may be exempt from the FAA if they are engaged in interstate commerce. Singh claimed that he frequently transported passengers on the highway across state lines, between New York and New Jersey. In light of the factual dispute as to whether Uber drivers engaged in interstate commerce, the Third Circuit sent the case back to the district court to decide, after discovery on the issue, whether Singh and the proposed class of Uber drivers engaged in interstate commerce. If they did, the FAA would not apply.

Consistent with the Third Circuit in Singh, Judge Ulmer granted the Commissioner’s request for limited discovery on the issue of whether Uber drivers engage in interstate commerce. Following that discovery, Uber may then re-calendar its petition for hearing.

The case bears watching as it may provide employees in some industries with arguments to try to circumvent the otherwise enforceable arbitration agreements that they signed with their employers. Ultimately, if Uber drivers are found to be engaged in interstate commerce such that the FAA is inapplicable, the FAA would not preempt their right to file suit under Labor Code section 229 notwithstanding any private agreement to arbitrate. But section 229 only applies to actions to collect due and unpaid wages. Any other claims – such as claims for missed meal or rest periods, failure to reimburse business expenses, or failure to provide accurate wage statements – would not be covered and, thus, should still be subject to a valid and enforceable arbitration agreement. It will be interesting to see if and how that issue is addressed.

©2019 Epstein Becker & Green, P.C. All rights reserved.

More on the Federal Arbitration Act can be found on the National Law Review ADR, Arbitration and Mediation law page.

Full Enforcement of REAL ID Act Set for October 1, 2020

Because some of the 9/11 terrorists used fraudulent driver’s licenses to travel, Congress passed the REAL ID Act in 2005 to comply with the 9/11 Commission’s recommendation that the federal government establish minimum standards for the issuance of forms of identification, such as state driver’s licenses. After many starts, stops, and delays, the deadline set by the government for full enforcement of the Act is October 1, 2020. By that date, individuals must have compliant IDs in order to access certain federal facilities, enter nuclear power plants, and, importantly, board any commercial aircraft – even for in-country flights.

Acceptable identification would include passports, border ID cards, trusted traveler cards, permanent resident cards, and REAL ID-compliant driver’s licenses, among others. For a state driver’s license to be REAL ID-compliant, states must verify that the individual applying for the license is legally in the U.S. and biometrics were used for identification purposes. This was easier said than done. It required setting up new databases and new technologies. Not only is that an expensive proposition for states, many have expressed privacy concerns and some state legislatures blocked compliance.

While most individuals have been able to board aircrafts with state-issued driver’s licenses if the state was compliant with REAL ID or if the state was granted an extension to become compliant, by October 1, 2020, individuals must have identification compliant with REAL ID standards to even pass through security. Minors under 18, travelling with an adult with REAL ID-compliant identification, will not need such documentation.

Most, but not all, REAL ID-compliant driver’s licenses have a black or gold star on the front. States will not automatically send individuals compliant driver’s licenses. Individuals must apply in person and bring identifying documentation, such as a birth certificate or a passport. Individuals with a passport, or one of the other designated documents, may not need a REAL ID-compliant driver’s license. Although DHS has not recommended which form of identification is “best,” the State Department has been encouraging all U.S. citizens to apply for passports. Currently, about 40 percent of Americans have passports. Of course, passports are more expensive than REAL ID-compliant driver’s licenses, but they serve other purposes, such as for international travel.

TSA has launched a public-awareness campaign, including new signs that will be popping up at airports around the country.

 

Jackson Lewis P.C. © 2019
This post was written by Brian E. Schield of Jackson Lewis P.C.

New Report on Renewable Energy as an Airport Revenue Source

The Airport Cooperative Research Program (ACRP) has recently published a guidebook on Renewable Energy as an Airport Revenue Source. The link to the guidebook on the ACRP website is here. David Bannard is a co-author of the guidebook, for which the lead authors were Stephen Barrett and Philip DeVita of HMMH.

solar energy, sustainable, clean power, renewable, source, sun

Airports are exploring non-traditional revenue sources and cost-saving measures. Airports also present a unique and often accommodating environment for siting renewable energy facilities, from solar photovoltaics (PV) to thermal, geothermal, wind, biomass and other sources of renewable energy. Although the guidebook focuses on the financial benefits of renewable energy to airports, it also notes other business and public policy benefits that can accrue from use of renewable energy at airports.

The guidebook includes case summaries of 21 different renewable energy projects at airports across the United States and in Canada and the U.K. Projects summarized include solar PV, wind, solar thermal, biomass, and geothermal technologies. In addition the guidebook examines factors to be considered when evaluating airport renewable energy projects, conducting financial assessments of airport renewable energy and issues relating to implementing airport renewable energy projects. Airports present unique challenges and opportunities for development of renewable energy facilities. The ACRP’s recent publication helps both airport operators and renewable energy providers and financiers understand and address many of these complex issues presented in the airport environment.

ARTICLE BY David Y. Bannard, Jason W. Allen & Jeffery R. Atkin of Foley & Lardner LLP

© 2015 Foley & Lardner LLP