U.S. Department of Defense and PFAS - Shaun PehlAugust 19, 2020
Shaun Pehl - LLM Student
The U.S. Department of Defense (DoD) is currently grappling with a pollution problem that formed over decades at military sites across the nation and around the world. The problem stems from the widespread use of chemicals broadly categorized as per- and polyfluoroalkyl substances (PFAS). PFAS is a group designation for a class of man-made chemicals used in several industries, and within this group are a large number of individual chemicals. PFAS chemicals are typified by long chain molecules made of carbon and fluorine, and they are noted for their persistence in the environment. They are designed at the chemical level so that they will not break down very easily through naturally occurring processes. While there are hundreds of PFAS chemicals, only two have been studied even somewhat extensively, PFOS and PFOA, and these studies have linked human exposure to these chemicals to, among other things, high cholesterol, thyroid disease, reduced fertility, kidney cancer, and testicular cancer.1 However, the research into just these two discrete chemicals has not produced substantive action on the part of the federal government, and, to date, there are no pollution control statutes or regulations that govern the use of PFAS.
The only existing federal guideline relating to PFAS is a non-mandatory drinking water health advisory issued by the Environmental Protection Agency (EPA) in 2016 recommending that concentrations of PFOS and PFOA in drinking water not exceed 70 parts per trillion.2 The EPA has been slow to take any more substantive regulatory action because, in the words of EPA Assistant Administrator for Water Dave Ross, “the science to fully understand these chemicals…is not yet as robust as it needs to be.”3 While getting the science right is of the utmost importance, the problem here is that EPA is the lead agency, and it has not been leading. It has been four years since the health advisory was issued. Only now, on March 10, 2020, has EPA finally proposed a rulemaking for PFOS and PFOA.4 The nation is still potentially years away from a final, fully vetted rule regulating the drinking water presence of just two of the hundreds of PFAS chemicals. In the meantime, DoD already knows that it used massive quantities of these substances at hundreds of facilities, it knows that some sites have groundwater contamination above the health advisory limit, and it has initially estimated cleanup costs at over $2 billion.5 Without substantive standards to reference, however, DoD is forced to wait before it can implement substantive cleanup measures. While DoD can take some preliminary steps, it cannot begin a robust cleanup of a chemical that is not designated as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), nor can it begin to know what level of PFAS remediation is required. DoD cannot, with any confidence, tell servicemembers and their families that 70 parts per trillion in drinking water is safe when EPA has not yet undergone the public rulemaking process to set a Maximum Concentration Level under the Safe Water Drinking Act. EPA must expeditiously do the work to regulate these chemicals before DoD will be able to fix this massive pollution problem that risks the health of its servicemembers, their families, and the surrounding communities.
In order to understand the scale of DoD use of these substances, it is important to understand how they came to be used in the first place. On July 29, 1967, the aircraft carrier USS Forrestal was stationed off the coast of Vietnam and getting ready to conduct flight operations when a stray spark ignited a Korean war-era bomb on the flight deck. A fire quickly spread, instantly setting several armed and fueled jets aflame. When the last fires were extinguished, 134 sailors were dead, and another 161 sailors were severely injured. The disaster led to changes in the way the Navy conducted operations at sea, many of which were focused on damage control operations. One of those most important changes was the requirement that all vessels carry a newly developed fire-fighting agent called aqueous film forming foam (AFFF).
AFFF was jointly developed by the Navy and the 3M Company in the mid-1960’s to fill the Navy’s need for an effective agent to fight fuel fires. Vessels at sea are under constant risk of fire, and each of the four different types of fires (e.g. trash/paper fires, fuel fires, electrical fires, and metal fires) requires a different method of firefighting. Fuel fires are particularly difficult to fight, and AFFF is the best way to fight them. When mixed with water, AFFF creates a blanket of foam that spreads across the surface of the burning fuel, preventing volatile vapors from rising into the atmosphere while also cooling the heated fuel below. This foam revolutionized firefighting, and it was so successful in stopping fuel fires that it was rapidly adopted by all branches of the armed forces, as well as by fire departments and airports worldwide. The rapid adoption of the chemical meant thousands of firefighters needed to train to use it, and centers were created on military bases where personnel trained in the use of AFFF for decades.
The primary chemical component of AFFF is a type of PFAS called perfluorooctane sulfonate (PFOS), and this chemical can break down into perfluorooctanoic acid (PFOA). When AFFF is employed in either a training or firefighting scenario, the resultant foam is primarily comprised of water, with the AFFF being either 3% or 6% of the total volume.6 When AFFF is used on shore, it spreads across the ground where it is absorbed. When used at sea, it either runs off the side of the ship when employed on the weather decks, or it is pumped out of an enclosed interior space and overboard. Since AFFF traditionally entered the environment after it was used, PFOS entered the environment on a scale that is not known. Once DoD discovered the problematic nature of AFFF, it altered the way it handled the substance. For instance, DoD no longer uses AFFF for testing and training on any installations, and when it is necessary to use AFFF in an actual firefighting event, the resultant discharge is treated as though it is a spill of hazardous material.7 This means that the AFFF expended is collected and ultimately incinerated.
The biggest change that DoD has made when it comes to AFFF is that it updated its material requirement so new formulations of AFFF do not contain PFOS and PFOA. This does not mean, however, that AFFF has been phased out or that the new AFFF formulations rely on something other than PFAS chemicals. For now the formulations of AFFF in use are based on PFAS chemicals with shorter molecule chains, and those PFAS chemicals have not been studied to the extent that PFOS and PFOA have.8 According to an article in The Intercept, the research that has been done tends to show that these shorter chained molecules may leave the human body quicker than PFOS and PFOA, but that they still accumulate in human tissue and blood.9 The worry is that the new AFFF chemicals will present further health issues if they are heavily relied upon in the future since they come from the same group of PFAS chemicals as the ones that were phased out. DoD has designated AFFF as a “mission critical” substance because of its efficacy in fighting fuel fires, so it will not phase the substance out entirely while there is not fluorine-based replacement available.10 While DoD is funding significant research into non-PFAS foam alternatives,11 there does not appear to be any timeline for a viable replacement.
DoD has done extensive testing of current and former operations sites, and it has found 401 sites where the PFOS formulation of AFFF was used.12 Not all of these sites include areas that have water exceeding the health advisory limit. Military Times has compiled a searchable list of current and former bases that have had groundwater tested by DoD, as well as what the results of those tests revealed.13 It takes no more than a cursory glance at the data to realize the overwhelming extent of the problem past PFOS/PFOA releases have caused. Take, for example, the bases that comprise Naval Air Station Whidbey Island in Washington state. On and off base wells were sampled for each of the two main bases, Ault Field and OLF Coupeville. The total number of wells sampled in and around these two closely connected bases was 235. Of those 235 wells, 13 tested above the EPA recommended level of 70 parts per trillion. That alone might not seem like a large number, but 9 of those 13 wells are off base public or private water drinking systems. Furthermore, for those off base wells that tested above the EPA threshold, the level of PFAS chemicals detected ranged from a low of 130 to a high of 3,823 parts per trillion. The Navy has already informed the personnel whose residences are attached to these wells, and it has supplied these residents with bottled water, but those efforts are only preliminary ones, and the ultimate dollar cost of fixing this problem unknowable at this point. The human cost is even harder to measure. Beyond just the health impacts, at least one Whidbey Island resident had his real property rendered essentially unmarketable, leaving him stuck in a home he was planning to sell and drawing water from a well containing as much as 3,800 parts per trillion of PFAS chemicals.14 And while the off-base problems in Whidbey Island are substantial, the water situation on base at Ault Field may be even more dire. Of the 5 groundwater monitoring wells tested at Ault field, 2 of them came back with PFAS concentrations between 28,470 and 58,922 parts per trillion. Again, in this situation DoD has taken preliminary steps such as providing alternative water sources to users working at Ault Field. Unfortunately, there is not much else it can do right now beyond waiting for EPA to officially determine what levels of PFOA and PFOS are ultimately acceptable and then work through the CERCLA process in order to determine what level of cleanup is required.
States are not waiting for EPA to set these standards anymore. To further the Whidbey Island example, Washington is setting its own limits for five different PFAS chemicals, not just the two that EPA is considering, and it is setting the limits for PFOS at 15 parts per trillion and PFOA at 10 parts per trillion.15 The DoD will be required to use these state water drinking standards if they pass into law and are ultimately more stringent than the federal standards.16 This means that DoD is potentially facing a patchwork of standards nationwide, which will increase the cost and complexity of any future cleanup activities. This is a predictable result of the slow process EPA has taken up to this point, but the patchwork approach still might be avoided through the recently launched EPA rulemaking process. As of now, EPA is seeking to regulate only PFOS and PFOA, and it is seeking to regulate them at the 70 parts per trillion level. Multiple states have already set their levels significantly lower than that,17 and EPA is likely to receive public comments during this rulemaking period. It is imperative that EPA give thorough consideration of the various state standards and strongly consider lowering the federal standard to be in accord with the lower levels recognized by states. EPA should also expedite reviewing other chemicals in the PFAS categories that states have begun to regulate with an eye toward potentially proposing a new minimum concentration level for those chemicals as well. EPA could take the step of regulating all PFAs as a class, but with hundreds of these chemicals in use and not much science quantifying the health risks of them, this approach may cause more harm than good and should be avoided for the time being. But the time for national regulation of PFOS and PFOA is long overdue. EPA’s very recent rulemaking proposal is a belated step in the right direction, but it needs to keep moving forward both mindfully and expeditiously so that other federal agencies like DoD can establish robust cleanup plans. This pollution problem has accumulated over decades; the nation should not have to wait decades more for the pollution to get cleaned up.
As far as DoD liability to individual plaintiffs is concerned, the question is very difficult to answer. It is foreseeable that future plaintiffs medically harmed by PFOA exposure will sue DoD using Federal Tort Claims Act (FTCA), but the unusual facts here complicate the situation. Plaintiffs would most likely proceed under the theory of a negligent tort (since the circumstances don’t support an intentional tort theory), but that requires the plaintiff to prove the familiar elements of duty, breach, causation, and damages. While damages may be easy for an affected plaintiff to prove, duty, breach, and causation will all be substantially more difficult. On the duty and breach elements, PFOS and PFOA were used for decades without public knowledge of their harmful nature. It is difficult to show that DoD breached a standard of care when there was no public knowledge that the chemical was harmful and no laws designating the chemicals as hazardous. Furthermore, there is no violation of applicable law because PFOS and PFOA remain unregulated to this day. However, there is some question about what DoD knew and when it knew it; the Environmental Working Group has assembled a timeline it asserts shows that DoD knew of the harmful effects all the way back to the 1970s,18 and the timeline cites to nine reports from 1973-2000 that indicate toxicity in PFOS and PFOA. Much of the toxicity cited in these reports is toxicity to fish and wildlife. Nevertheless, the existence of these reports indicates that DoD faces substantial discovery obligations in tort suits, and discovery may unearth further reports indicating that DoD knew or should have known about the toxic health effects of PFOS and PFOA. It is far from certain that discovery could show this kind of knowledge, but, if it does, then plaintiffs would be much more likely to succeed in demonstrating that DoD breached a standard of care it owed. Plaintiffs would also have to prove causation, and this will depend on the individual circumstances of each case. Plaintiffs may have an easier time demonstrating that PFOA/PFOS exposure caused kidney cancer than high blood pressure, but causation of any particular health effect is dependent on an enormous number of factors and litigation on each individual case will be intensely fact specific. Assessing liability for DoD in a general sense is thus impossible. However, DoD will face tort suits, and it will likely have substantial discovery obligations pursuant to those suits. If DoD has not begun preparing for this, it is behind the curve and needs to start preparing now.
As mentioned earlier, DoD will bear substantial cleanup costs. DoD is aware of this and has already told congress that it expects cleanup to cost in excess of $2 billion.19 If EPA does finally designate these chemicals as hazardous and begins regulating them under RCRA and CERCLA, DoD can expect these costs to increase, and it will need to continue asking congress for supplemental funding to aid the efforts. Many of the properties affected will be former military bases, so DoD will be liable for contamination it placed there as the former owner/operator. Many of the properties affected will be downstream from former military bases, and this would be the consequence of a release from a DoD facility, also rendering DoD liable for cleanup costs. DoD knows this is coming, and the worst thing for everyone involved is continued delay. The CERCLA process is the best way to proceed with cleanup as it provides for a centralized mechanism from which EPA can promulgate national cleanup standards. Cleaning up to various state set minimum safe drinking water levels is a recipe for costly and varying standards. EPA should be the lead agency that sets the standard and oversees the cleanup. DoD will work with EPA to accomplish the cleanup required, but congress needs to its part to both appropriate cleanup funds and ensure that the national standard set by EPA is the one that federal departments are required to clean to. EPA needs to do its part by ensuring that the cleanup levels it sets are correct, and it needs to listen to the states before making that determination. All parties need to act with greater urgency in order to fulfil their most important duty, protecting the American people.