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As Congress Eyes AFFF Ban For DOD, Industry Concern Grows Over PFAS Liability

June 10, 2019

As Congress weighs barring the Defense Department (DOD) from procuring aqueous firefighting foam (AFFF) containing per- and polyfluoroalkyl substances (PFAS) due to contamination concerns, parties at large industrial and mining sites that may also have used the foam are growing increasingly concerned about their potential cleanup liability.

“I think there’s a quiet degree of concern” about how much PFAS and what types of PFAS might be at sites where cleanup is in progress as well as at closed sites, says Jane Luxton, an industry attorney with the firm Lewis Brisbois who tracks PFAS issues.

She says these could include any large mining, industrial or manufacturing facility, such as refineries, that faces fire risks and have similar firefighting capabilities as DOD.

The military’s use of aqueous firefighting foam (AFFF) -- which can contain PFAS -- has triggered potentially significant liability for DOD across multiple sites, with DOD having identified 401 active or closed bases with known or suspected releases of PFAS.

DOD also says 24 of its drinking water systems contained perfluorooctane sulfonate (PFOS) or perfluorooctanic acid (PFOA) -- two of the most prevalent PFAS -- above EPA's non-enforceable drinking water health advisory. PFAS have been linked to adverse health effects but remain unregulated by EPA.

But DOD environment chief Maureen Sullivan has defended DOD’s actions to cut off exposures of PFOA and PFOS in drinking water supplies and has sought to downplay DOD’s role among PFAS users. She noted in congressional testimony that just 3 to 6 percent of PFAS produced was used for AFFF, and that DOD is one of many users of AFFF, “which also includes commercial airports, the oil and gas industry, and local fire departments."

Nevertheless, DOD is under increasing pressure to find fluorine-free substitutes as a replacement to PFAS and other fluorine-based chemicals in AFFF.

In the latest move, the Senate Armed Services Committee May 22 approved a measure in the fiscal year 2020 defense authorization bill that would bar DOD from procuring firefighting foam containing PFAS starting in 2022 -- pushing DOD to take the next step to limit the substance beyond its current actions as it faces significant potential cleanup liability.

The measure, advanced by Sen. Jeanne Shaheen (D-NH) -- the second-highest-ranking Democrat on the Armed Services Committee -- would bar DOD from procuring firefighting foam that contains PFAS after Oct. 1, 2022, according to a summary of the bill.

The legislation also contains a measure that would ban DOD from land-based uses of firefighting foam with PFAS by 2023, excepting ship and submarine uses from that ban, according to an environmentalist familiar with the measure.

The committee markup came just days after dozens of environmental and citizen groups -- many state-based -- wrote to Senate and House defense authorizers urging passage of legislation to phase-out the military’s PFAS use within three years.

Shaheen, who has long advocated for measures to address PFAS contamination, noted in a May 23 press release, “PFAS exposure has been linked to adverse health effects and contamination has required substantial remediation efforts in New Hampshire and across the country.” She continues that DOD “should be working proactively to eliminate its use in firefighting foam in order to prevent further harm."

Fluorine-Free Formulation

The military currently lacks a fluorine-free formulation of AFFF that is commercially available and meets critical military specification requirements that will suppress aircraft fires effectively, Sullivan said, although she notes DOD is testing alternatives.

As such, restrictions such as those in the Senate bill could further pressure DOD to develop replacements for AFFF formulations -- which currently contain fluorine-based formulations. While AFFF that is currently on the U.S. market does not contain PFOS or PFOA above trace amounts, the department still may have legacy stocks with PFOS, according to Sullivan’s testimony to the Senate environment committee.

So far, the military has acted to remove AFFF containing PFOS from its inventory, and has policies to avert uncontrolled land-based AFFF releases during training, testing and maintenance, according to DOD.

Nevertheless, DOD’s use of AFFF has triggered lawsuits over cleanup and damages, with one of the latest being a suit brought by Westchester County, NY, against military entities over PFAS contamination stemming from AFFF use at a county airport. It seeks cleanup and an alternative water supply, as well as damages and restitution.

Industry representatives say many commercial entities with similar firefighting capabilities may face similar concerns.

In a blog post written last November, Caron Koll, with the environmental consulting firm Antea Group, notes that “[p]etroleum refineries and bulk storage facilities are required to maintain AFFF by the National Fire Protection Association [(NFPA)],” which also requires that these be routinely tested. “These capacity tests and time-and-distance calibrations result in the discharge of relatively large volumes of AFFF, whereas actual use on a fire results in very small volumes,” she writes.

She adds that past uses and testing of AFFF therefore may have caused significant releases.

“Will the oil and gas industry be held responsible for environmental cleanup of a substance that has not been previously regulated?” she asks, answering, “Likely, yes.” Despite the NFPA requirements, oil and gas companies are nonetheless “vulnerable to regulatory actions for assessment and remediation.” She suggests oil and gas companies follow best practices for AFFF testing to reduce their risk -- including keeping records of AFFF purchases and testing and of the types of AFFF in stock, as well as waste minimization and containment practices.

And an industry source believes that the oil, gas and mining industries -- due to their possible use of PFAS-containing firefighting foam to contain fires -- may face a “whole lot scarier” situation with regard to cleanup than even the waste and chemical industries, which, the source notes, have been “regulated forever."

In contrast, the source says, industries that produced large amounts of high-volume, low-toxicity wastes -- known as Bevill wastes -- “managed to cruise around for decades without any rigorous controls.” But the source adds that now, if something such as this arises from an environmental and health perspective, they will have nothing to fall back on.

The source is referring to the often-lighter regulations mining and oil industries are subject to under laws, such as the federal Resource Conservation & Recovery Act’s Bevill Amendment, which allowed for federal regulatory exemptions to fossil fuel combustion and mining waste.

PFAS contamination at these sites “might tip the difference between no action and having to implement some measures,” the source says. -- Suzanne Yohannan (syohannan@iwpnews.com)

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