Dunleavy: Their Mess, Their Responsibility

Military sites must be subject to their state’s environmental regulations.

by Hannah Dunleavy | 8/20/21 4:05am

As national and local concerns mount over contamination from perfluoroalkyl and polyfluoroalkyl substances — a class of over 4,700 synthetic chemicals that are resistant to environmental degradation and are commonly referred to as PFAS, or “forever chemicals” — states are working to address the PFAS contamination found in soil, water, air, wildlife and humans with more comprehensive regulations and regard for environmental and human health. Indeed, in the absence of federal regulations from the Environmental Protection Agency and Congress regarding PFAS, states are taking the lead in addressing PFAS issues. However, the U.S. military — one of the largest PFAS polluters — is not beholden to state standards and can escape responsibility for their role due to lackluster federal standards. To hold the military responsible for its actions that damage both the environment and human health, states must subject the military to their respective PFAS regulations.

PFAS pollutants build up in soil, wildlife, water and our bodies, causing damage to our immune system, reproductive organs and endocrine system and increasing the risk of cancer, asthma and thyroid disease. PFAS contamination is widespread: The majority of Americans have perfluorooctanoic acid, PFOA, and perfluorooctanesulfonic acid, PFOS, two common and dangerous PFAS, present in their tap water, and a 2015 Centers for Disease Control and Prevention study found PFAS in 97% of Americans’ blood. In Hanover, three groundwater samples surrounding our beloved Co-op food store have total PFAS contamination levels of 223.10 ppt, 139.20 ppt, and 55.88 ppt. Two Hanover wastewater treatment facilities on the Connecticut River have PFAS contamination levels of 42.60 ppt and 80.27 ppt.  The majority of these samples have contamination levels above the EPA’s health advisory level of 70 ppt, and all of these samples have contamination levels well over New Hampshire’s maximum contaminant levels.

The EPA’s efforts have mostly focused on conducting research and issuing an unenforceable drinking water health advisory at 70 parts per trillion for PFOA and PFOS. Health advisories are non-enforceable and non-regulatory, serving mostly to provide information to state agencies and other public health groups.  Meanwhile, some states are conducting thorough PFAS testing, mapping PFAS contamination, passing legislation that reduces the use of PFOS-containing products, suing polluting PFAS manufacturers, funding PFAS cleanup, establishing consumer notices, requiring PFAS testing and creating drinking water contamination limits. In New Hampshire, the state government set maximum contaminant levels for four PFAS compounds (including PFOA at 12 ppt and PFOS at 15 ppt), gave officials two years to implement changes to ensure PFAS contamination levels are below those maximum contaminant levels, created a $50 million fund in low-interest loans for PFOS-cleanup and required insurance companies to cover blood tests for PFAS.

States’ ability to address PFAS contamination, however, is limited by states being unable to regulate military sites despite them producing some of the highest levels of PFAS in the country.  Sovereign immunity — which protects the federal government from lawsuits with a few exceptions —  prevents military sites from being sued for not following state environmental regulations. In 2020, the Department of Defense found 600 military sites with PFAS contamination, on top of some states finding thousands of PFAS-contaminated sites on and near military sites. The most significant source of military PFAS contamination is the firefighting foam, an aqueous film-forming foam, used on high heat fuel fires during emergencies and training exercises. Once used, military employees sometimes hosed the spent PFOS-containing AFFF into the soil or dumped it into the sewage system. 

When states have asked the military to take responsibility and contribute to cleanup efforts, the military has, time and time again, refused. In 2017, the EPA found 96,900 ppt of PFAS contamination in the drinking water on the Pease Air National Guard Base right here in New Hampshire. When New Hampshire officials asked the Air Force to pay for clean drinking water for those affected by Pease’s PFAS contamination offbase, the Air Force refused, and New Hampshire was forced to provide the drinking water assistance instead. In 2019, DOD officials testified before Congress that regardless of total PFAS levels, if combined PFOA and PFOS levels are below 70 ppt, the military would not follow state regulations.

Historically, the DOD has opposed environmental regulations, claiming that such regulations interfered with military readiness, hindered the military's ability to train and were economic burdens. In the case of PFAS, the DOD taking responsibility for their contamination would not compromise national security, as most PFAS contamination is legacy pollution — pollution that remains in the environment after the pollutant is no longer emitting from the original source of the pollution. Additionally, working to clean up PFAS pollution caused by past actions would not interfere with current or future training methods, as there are now PFAS-free alternatives that can fit the role that PFAS-containing products once had. There are over 100 firefighting foams without PFAS that meet international aviation standards available for military use. Although PFAS-free firefighting foam is more expensive than AFFF, using PFAS-free firefighting foam decreases cleanup and disposal costs. Thus, despite the military’s resistance to making this transition, state demands for AFFF to be replaced with PFAS-free alternatives will not interfere with firefighting training. And finally, the DOD estimates that it would need $2.1 billion for PFAS cleanup and investigation. With a budget of $703.7 billion in fiscal year 2021 and states already conducting thorough investigations, the economic burden of PFAS cleanup should not be a barrier to the military taking responsibility. The Project On Government Oversight found in 2019 that the DOD budget could be cut by $199 billion without undermining national security, and implementing Defense Department Inspector General recommendations based on investigations into waste, fraud, and financial abuse in the military could save $2.3 billion. By refusing to spend 0.298% of its budget on PFAS cleanup, the military is saying “Americans’ health is less important than even the amount of money we could save by decreasing corruption and inefficiency,” a clear misalignment of priorities. The DOD was created to protect Americans’s safety – so why does the DOD avoid acknowledging the harm they do to their own citizens?

The military following state regulations is thus necessary for service members’ and citizens’ health. People living near military sites have significantly higher blood PFAS levels compared to the national average. Additionally, the DOD has known of PFAS’s toxicity since the 1970s and, in 2001, described PFAS as “persistent, bioaccumulating and toxic.” Yet, remarkably, the DOD did not alert service members to the dangers of PFAS until 2011. Knowingly allowing service members and their families to be exposed to significant amounts of PFAS disrespects service members’ sacrifices for their country. The DOD must take responsibility for their role in contaminating drinking water, which means that PFAS cleanup cannot be left to military jurisdiction alone. As long as states are unable to enforce their PFAS regulations, the military will continue to be negligent in its obligation to care for the health of service members and dodge responsibility for harming Americans.  

To allow for states to regulate the military, one of two actions can and must happen. One, the president can issue an executive order that commands the DOD to heed state regulations. Two, states can utilize the Federal Tort Claims Act of 1946, a federal statute that waives sovereign immunity in cases of government officials committing civil wrongs against citizens. States may argue that the environmental harm done by military officials is a tort, giving states the ability to sue the military for its role in PFAS contamination. If these lawsuits are successful, the military will be incentivized to get its act together — and state environmental departments can use the awarded compensation to pay for PFAS cleanup and provide clean water for Americans everywhere.

Dunleavy is an intern at the Maryland Department of Environment, where she has worked on PFAS projects in the drinking water program.