Last week we began our series of blogs reflecting on material covered in the Impact of PFAS on Environmental Litigation (Virtual) Conference hosted by Perrin Conferences, with a look at the federal government’s recent actions to address PFAS in the environment. This week, we’ll take another look at military sources of PFAS contamination.
The list of PFAS chemicals that are under scrutiny as potential hazardous substances has continued to grow—but it is still the compounds perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), and specifically their application within the firefighting suppressant known as Aqueous Film-Forming Foam (AFFF), that account for much of the known PFAS contamination. Originally adopted by the U.S. Navy in the wake of the infamous and deadly 1967 fire aboard the aircraft carrier USS Forrestal, AFFF was considered invaluable for its ability to protect against and extinguish jet fuel and other Class B (inflammable liquid and gas) fires, and it quickly entered widespread use within the armed forces.
While the military has not been the only user of AFFF, according to conference presenters, greater than 75% of AFFF usage was at airports [the largest of which often have a National Guard presence] and military facilities. At least 679 military facilities within the United States are suspected of or known to have historical PFAS releases via AFFF discharges, with 651 sites currently being assessed for historical releases by the Department of Defense (DoD). For decades, AFFF was used in both training and “real-world” fire response, as we discussed in a previous blog.
An aerial view shows Badger Army Ammunition Plant in Baraboo, WI, which is one of the 679 military facilities with known or suspected PFAS discharges. Photo Credit: Wisconsin Watch (License).
For all of the concern about AFFF containing PFAS, it may be a surprise to learn that its use has not yet been entirely halted, another point made by conference presenters. The manufacture of “legacy AFFF” containing PFOS was voluntarily phased out in 2002, and the manufacture of “legacy fluorotelomer” AFFF—which can potentially break down into PFOA—ceased in 2016. The National Defense Authorization Act for Fiscal Year 2020 (NDAA 2020), as part of a variety of measures to assess and curtail harm from PFAS, halted the use of “fluorinated” AFFF in training exercises, and since May 2019 the military has not required fluorinated surfactants in its specification for AFFF. Yet the current specification still permits PFOS or PFOA at a count of less than 800 parts per billion (ppb), and military use of legacy fluorotelomer AFFF is still permitted, at least in emergency situations (as well as in situations where the foam can be completely recovered and does not endanger groundwater).
U.S. Marines use firefighting foam to put out a fire during a training exercise at Marine Corps Air Station Cherry Point in 2013. Photo Credit: North Carolina Health News (License)
A major factor in the continued use of PFAS-containing AFFF is its necessity for national defense. As conference presenters pointed out, no AFFF formulation without PFAS has yet met the military’s performance standards, being less effective at quickly extinguishing fires. That includes the so-called “modern fluorotelomer” AFFF, which uses “short chain” PFAS that have generally been viewed as less toxic than “long chain” PFAS such as PFOS and PFOA. Nonetheless, NDAA 2020 requires the military to end usage of legacy AFFF and replace it with a substitute (along with an accompanying revised standard) by October 2023. The DoD is already funding studies of replacements, including their ecotoxicity. It remains to be seen whether a satisfactory, non-toxic replacement for PFOS/PFOA AFFF can be developed and produced prior to the October 2023 deadline. If not, military exigency may demand its continued use, even if heavily restricted as is the case today.
In the meantime, conference presenters noted that there are approximately 2,000 AFFF-related cases in Multi-District Litigation in the U.S. District Court, District of South Carolina, with a variety of private entities and agencies of the federal government as defendants. The first (or “bellwether”) trials are expected to commence in 2023. In the years to come aggressive federal action by both the DoD and the EPA—whose PFAS Strategic Roadmap includes efforts to enable cost-recovery and remediation under CERCLA—may jumpstart additional litigation. A number of current and former military bases are already Superfund sites (142 DoD properties are currently on the National Priorities List), and more may be added if—as expected—the federal government declares PFOS and PFOA as CERCLA hazardous substances.
TRG has been a pioneer in researching historical usage and disposal of PFAS end-products such as AFFF during the last decade. In the coming years, we expect our research into AFFF and other PFAS and PFAS-containing chemicals to continue to grow, as our current and future clients in both government and the private sector seek out our in-depth knowledge of the relevant federal, state, and local records and our ability to provide detailed information for their cases.
Stay tuned for the next post in our PFAS series in which we reflect on new developments in PFAS regulation. Next week, we will examine the increasing focus on civilian and industrial uses of PFAS and the accompanying litigation.