Under the terms of the Defense Authorization Act of 2020, the DoD must ensure that PFAS-free foams are available for use at military installations by October 2023 and that all installations cease using them by October 2024. Nearly half the states already either ban or limit their use at non-military facilities.
This is cold comfort, though, to those who now suffer serious health problems because of their exposure to PSAS and PFOAs. These lawsuits are now consolidated in multidistrict litigation in the District of South Carolina. The first bellwether case has yet to be selected, but is tentatively scheduled to go to trial in March 2023.
The Frankenstein problem
The central problem is that PFAS never biodegrades, and the chemicals seep into water systems. Developed in the wake of the disastrous 1967 U.S.S. Forrestal fire they have been used in military and civilian firefighting operations for decades. They also made their way into consumer products, like non-stick cookware, as well as in military and civilian firefighting These “forever chemicals” are now so widespread that they are found in the blood of 97 percent of all Americans. Babies can ingest them through breast milk, and they remain in the human bloodstream for years. Some of these compounds may decrease fertility, cause metabolic disorders, damage the immune system and increase the risk of cancer. The first legal priority has been to address the harm done to unwitting victims.
But that is hardly the full extent of the problem. With the efforts to both prevent further damage to and to clean up existing contamination, the ambitious federal schedule may be outstripping the facts. The FAA has already missed its October 2021 deadline to eliminate the use of PFAS firefighting foam at civilian airports. As of April 2022. the DoD had identified six possible PFAS-free replacements, but it acknowledges that each has significant flaws. The 2024 deadline looks ambitious.
Far-ranging cleanup headaches
It is not clear how cleanup efforts can be managed. The DoD has 2.5 million gallons of PFAS firefighting foam in service and 500,000 gallons in reserve that it must manage or destroy. Burning the material seems to create additional hazards and has now been banned.
Both civilian and military fire departments must clean thousands of trucks, other vehicles, aircraft hangers and other buildings. PFAS foams are “sticky” and hard to wash away from anything they have touched.
There are also no clear standards for what constitutes “clean.” Does a six-thousand-gallon tanker truck need to be flushed once or five times to reduce or eliminate the risk of continuing PFAS contamination? What is an acceptable level of risk? And then what happens to the rinse water? The water must, itself, be treated as contaminated over the long term and cannot be released in any way that might contaminate other water sources. The problems of storage and possible destruction of the chemicals will likely continue far into the future.
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It is reasonable to expect that after the bellwether trials begin in 2023, the defendant chemical companies, including E.I DuPont, 3M Co., Chemguard Inc., Kidde-Fenwal Inc., National Foam Inc., and Dynax Corp., will begin serious settlement negotiations. Money is not a replacement for life and health, but it can defray some of the costs associated with serious illness. If you believe that you were sickened because of your exposure to PFAS firefighting foam, you would be well-advised to consult with an experienced attorney. The predicament now faced by states, municipalities and other entities may have to wait for other and subsequent avenues of redress.