Air Force Veteran Files Kidney Cancer Lawsuit Citing Firefighting Foam

Charleston, SC On May 26, Jeffrey Clark filed a lawsuit against 3M and a host of other corporate defendants citing his exposure to perfluoroalkyl and polyfluoroalkyl (PFAS/PFOA) firefighting foams as the likely cause of his kidney cancer. Clark v. 3M Company will be consolidated for pre-trial proceedings into the Multidistrict Litigation now currently before the U.S. District Court for the District of South Carolina.

Like other PFAS/PFOA lawsuits, Clark outlines the history of the development of aqueous firefighting foams (AFFF), which contained chemicals known as PFC’s (per fluorinated compounds) including PFOS and PFOA, from the 1960s onward. The foams are highly effective for fighting jet fuel fires and were heavily marketed to airports and fire departments, especially those operated by the Navy, Air Force, Army, and Marine Corps. The chemicals, however, do not biodegrade and may contaminate groundwater and water supplies. They have been widely linked to an increase in birth defects, various forms of cancer and adverse liver enzyme impact. Environmental concerns about AFFF were raised as early as 1964.

The new wrinkle in this lawsuit is an exploration of the role played by the Firefighting Foam Coalition (FFFC), a private information and business trade association dedicated to the continuation of the use of AFFF. The FFFC allegedly played a major role in hiding the truth about the chemicals’ toxicity from the public and from regulators.

Water contamination leading to kidney cancer

Jeffery Clark was a member of the U.S. Air Force, who was stationed at Norton AFB. He worked on base, using and drinking the water. Norton AFB has a PFAS environmental contamination level many times over the California limits. In 2011, he was diagnosed with renal cancer, and subsequently underwent a partial kidney removal.

However, he did not discover that PFAS was a cause of the kidney cancer until approximately mid-2020, when he found information on the internet. This was more than thirty years after his exposure, and questions abound over what might have been possible had he and others known earlier about the effects of the water contamination.

The hand of the FFFC – nefarious or informational?

The FFFC, according to its website, is a non-profit trade association formed in 2001 to focus on issues related to the efficacy and environmental impact of firefighting foams. “The coalition provides a focal point for industry technical reviews, development of industry positions, and interactions with relevant organizations such as environmental agencies, militaries, approval agencies, and standards bodies. Members are AFFF manufacturers, fluorosurfactant manufacturers, and distributors.” They include defendants named in Clark. The issues raised by the lawsuit focus on evidence given by the FFFC over the last 20 years in connection with the Environmental Protection Agency’s ongoing safety investigations of PFAS and PFOAs.

Currently, there are no federal EPA standards for this family of chemicals in drinking water. There are state standards in California and Michigan, among other states. In Michigan, 3M Company has been actively litigating to repeal the Michigan regulations.

Studied to death

Since environmental issues were first raised, questions regarding the safety of various different PFAS and PFOA firefighting foams have been reviewed, investigated and re-reviewed by a variety of federal and quasi-governmental agencies, including the Department of Defense, the National Fire Protection Association, as well as the EPA, state environmental agencies and the manufacturers, themselves. Certain manufacturers, including 3M Company, voluntarily pulled certain products off the market, while promoting the safety and efficacy of newer AFFFs. The issue of clean-up does not seem to have been as thoroughly addressed.

In 2003, the FFFC asked the EPA to exempt its members from the regulatory process arguing that the newer chemicals were safe. The EPA essentially acceded to the FFFC’s request, but the study process seems to continue. In 2017, the National Defense Authorization Act included $7 million for a nationwide study of the health effects of PFAS chemicals and a requirement that the military investigate foam alternatives.

Two steps back, one step forward, lots of skullduggery at the EPA

On January 19, the outgoing Trump administration announced its intention to proceed quickly with the process of finalizing drinking water regulations relating to PFAS. On February 9, however, the EPA announced  that:

“EPA career scientists have reviewed content shared in a January 19, 2021 press release ….  and made an initial determination that the conclusions in the PFBS (Perfluorobutanesulfonic acid, a PFAS compound) Toxicity Assessment posted in that release were compromised by political interference as well as infringement of authorship and the scientific independence of the authors’ conclusions. This constitutes a violation of the agency’s Scientific Integrity Policy and the documents have been removed from the EPA website while the agency completes its review.”

On March 17, the EPA published an Advance Notice of Proposed Rulemaking (ANPRM) that poses 28 questions to manufacturers and formulators of PFAS. This essentially takes the regulation-making process back several steps. Many are still hopeful, though that scientifically sound federal PFAS drinking water regulations will be finalized by the end of the year.

That could do a lot to prevent future harms from PFAS/PFOA water contamination. In the meantime, however, people like Jefferey Clark, who are only now beginning to have information about their cancer risks, appear to be protected, if at all, from state regulation and federal courts.