United States: The DoD Has Played A Card That Only It Has In The AFFF Litigation But It Won't Get It Out Of PFAS Purgatory

Lara Beaven, of Inside PFAS Policy, has an excellent report on the Defense Department's motion to dismiss claims for injunctive relief against the military in the AFFF multi-district litigation continuing before Federal District Court Judge Richard Gergel in South Carolina.

The United States Departments of Defense and Justice say that CERCLA section 113(f) prohibits Judge Gergel from requiring any response actions, as broadly defined in CERCLA, other than those the Department of Defense is choosing to take in compliance with the National Contingency Plan.

The Department of Defense – and no other entity responsible for a release of any of the hundreds of chemicals collectively known as PFAS - will likely prevail in this argument because the DoD, and not the Environmental Protection Agency, is the Federal agency responsible for implementing CERCLA at contaminated properties at which the DoD is the only responsible party.

And the DoD has determined that, even though no PFAS have yet been identified as "hazardous substances" under CERCLA, CERCLA applies to the investigation of and response to at least certain PFAS at DoD facilities because they are "any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare."

While I expect that the DoD's motion to dismiss the "Remedial Claims" made by certain of the AFFF plaintiffs will be successful, that doesn't nearly mean that DoD is out of the PFAS woods.

First, the motion to dismiss has no bearing on any claims other than the "Remedial Claims" for injunctive relief.

Second, and more importantly, I notice that the DOD is currently only offering "expedited removal actions" to any individual or business whose drinking water contains more than 70 parts per trillion ("ppt") of PFOS and/or PFOA (though it says it may also act respecting concentrations below 70 ppt if site-specific hydrogeological conditions are expected to result in a future exceedance of that level).

A footnote to DoD's and DOJ's memorandum in support of its motion says that this 70 ppt "expedited removal action" cutoff is based on EPA's 2016 lifetime health advisory for these contaminants. 2016 is a lifetime ago when it comes to EPA's thinking on PFAS. What DOD and DOJ don't say in their papers is that EPA's current assessment is that 4 parts pertrillion, not 70, is the appropriate Maximum Contaminant Level for these contaminants.

Who knows how many more sites will require "expedited removal actions" once EPA's MCLs are finalized and DOD needs to substitute 4 for 70?

The number of PFAS cleanups DoD is already dealing with, having only begun to assess their PFAS problem in 2010, is staggering. The DoD and DOJ memorandum reports that PFAS releases at 715 DoD facilities have been or are being investigated. Remedies are being designed or implemented at 445 of those facilities. DoD estimates that the total cost of these CERCLA response actions will be $7 billion but that number will most certainly go up, including because the concentrations of PFAS requiring a response is going to go down dramatically. And, that number doesn't include sites at which DoD isn't the only responsible party.

So while DoD will likely streamline the AFFF claims against it, it is going to be in PFAS purgatory for a very long time.

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