Companies operating in the aerospace, defense, and government services (ADG) industry are increasingly being impacted by regulatory scrutiny of a group of man-made materials called per- and poly-fluorinated alkylated substances (PFAS). Beginning in the 1970s, PFAS were widely used in firefighting foam at military bases, airports, and large industrial facilities. These facilities are therefore especially susceptible to PFAS contamination. ADG companies that have historically used PFAS, including in firefighting operations, may be responsible for environmental clean-up of military sites and may be susceptible to other PFAS-related liabilities that we discuss further below.
The impact of PFAS on human health and the environment is currently not well understood, but some scientists have identified these chemicals as suspect carcinogens and some studies link them to reproductive disorders. Alleged health impacts caused by PFAS have been prominently featured in the news media. Recent attention on these "emerging contaminants" has focused public attention on the widespread presence of these contaminants in the environment and in drinking water sources in the United States and internationally.
In February 2019 the Environmental Protection Agency (EPA) published a PFAS action plan2 that outlines the steps the agency is taking toward establishing a comprehensive regulatory regime to address PFAS. Several states also have undertaken measures to regulate these chemicals. Below, we provide a brief overview of these chemicals and their potential impacts on human health and the environment, summarize current and proposed regulation of PFAS, and advise ADG companies on several actions they can take to address the potential liabilities associated with PFAS.
PFAS: What are they?
PFAS are chemicals that are widely used in industrial and consumer products including in firefighting foam, waterresistant and nonstick fabrics and materials such as waterproof clothing, Teflon products, and other household products such as stain-resistant carpets. U.S. manufacturers began to phase out PFAS production of certain so-called "long-chain" PFAS in 2002. EPA subsequently led a voluntary phaseout of "longchain" PFAS that was completed in 2015.3 PFAS are still used internationally, however, and companies in the United States regularly import products containing PFAS.4
There are hundreds of chemicals that are classified as PFAS including perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), and others.5 If released into the environment, PFAS can seep into the groundwater and impact drinking water sources. Consumption of contaminated drinking water and contaminated fish and vegetables are the primary ways by which humans are exposed to PFAS. PFAS are persistent in the environment (i.e., they do not readily degrade)6, may bio-accumulate in blood of humans and animals, and have been linked to adverse human health effects by some studies.7
PFAS are considered so-called "emerging contaminants" because (1) their impacts on human health and the environment are not fully understood, (2) some scientists suspect that they can have significant human health impacts, and (3) there is no comprehensive regulatory regime regulating them. EPA has set a health advisory of 70 parts-per-trillion (ppt) for exposure to certain types of PFAS, but it has not established an enforceable drinking water standard under the Safe Drinking Water Act and has not yet adopted federal cleanup standards for soil or groundwater.
Four percent of public drinking water systems contain some level of PFAS, and 1.3 percent of public drinking water systems contain PFAS above EPA's current health advisory limit.8 This means that millions of people are consuming drinking water that contains PFAS.
While treatment technologies exist, they are complicated and expensive.9 There is no proven in-situ method of treatment, although EPA has indicated that it is experimenting with some methods.10 The current treatment methods mostly consist of pumping contaminated groundwater and treating it using activated-carbon treatment systems.11
PFAS impact in the aerospace, defense, and government services industry sector
Installations such as military bases, airports, fire stations, and refineries are potentially significant sources of PFAS contamination as a result of the use of aqueous film-forming foam (AFFF) for fire suppression at these sites. AFFF has been widely used since the 1970s, but restrictions regarding PFAS used in AFFF did not begin to develop until the early 2000s. Approximately 75 percent of the AFFF produced is used by the military and the remaining 25 percent is used by oil refineries, municipal airports, fire stations, and storage tank farms.12
In March 2018 the U.S. Department of Defense (DoD) released a study on the impact of PFAS on drinking water systems operated by DoD.13 The study indicated that 24 drinking water systems where DoD is the supplier of drinking water had levels of PFAS above EPA's health advisory limit of 70 ppt.14 DoD indicated that it was following EPA's recommendations at these sites, including taking wells offline and providing alternative drinking water in response to the findings.15 DoD also indicated that it was working with communities and individuals to test private drinking water wells that could be affected by the spread of PFAS contamination off-base. As of August 2017 DoD had tested almost 2,500 off-base public and private drinking water systems and 564 of those tested above EPA's health advisory limit.16 For instance, at the Peterson Air Force Base in Colorado Springs, DoD recently indicated that it found PFAS contamination in groundwater at levels as high as 88,000 ppt - more than 1,000 times EPA's health advisory limit.17
Historically, site investigations at contaminated sites or potentially contaminated sites did not include testing for PFAS chemicals. This was due in part to the fact that these chemicals are not detectable using conventional analytical tools.18 In addition, the potential health impacts from these chemicals were not identified until the 1990s.19 As a result, historically, environmental cleanups at contaminated facilities did not address PFAS impacts to soil or groundwater. This has changed as a result of recent media and regulatory attention on these chemicals throughout the country, including at DoD installations, as well as more and more studies that have linked these chemicals to significant human health concerns.
1 This article is based on research conducted by the authors and does not represent the views of Hogan Lovells US LLP.
2 Environmental Protection Agency (EPA), EPA's PFAS action plan, available here.
4 Interstate Technology Regulatory Council (ITRC), History and Use of Per- and Polyfluoroalkyl Substances (PFAS) (November 2017) (ITRC PFAS History) at 4 available here.
5 Id. at 1.
6 ITRC, Environmental Fate and Transport for Per- and Polyfluoroalkyl Substances (March 2018) (PFAS Fate and Transport) at 1, available here.
7 EPA, Basic Information on PFAS, available here.
8 EPA, EPA Activities on Per- and Polyfluoroalkyl Substances (PFAS), presented at Environmental Law Institute Webinar (September 12, 2018).
9 ITRC, Remediation Technologies and Methods for Per- and Polyfluoroalkyl Substances (PFAS) (March 2018) (ITRC PFAS Remediation), available here.
10 EPA Activities on Per- and Polyfluoroalkyl Substances (PFAS), presented at Environmental Law Institute Webinar (September 12, 2018).
11 ITRC PFAS Remediation.
12 Geosyntec, Overview of PFAS Technical Issues, presented at Environmental Law Institute Webinar (September 12, 2018).
13 Report presented by M. Sullivan, Deputy Assistant Secretary of Defense, "Addressing Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA)" (March 2018).
14 Id. at 7.
15 Id. at 11.
16 Id. at 8.
17 See B. Finley, The Denver Post "Air Force admits firefighting foam that was spilled on base contaminated water and soil; people south of Colorado Springs left in lurch," (July 25, 2017), available here.
18 Geosyntec, Overview of PFAS Technical Issues, presented at Environmental Law Institute Webinar (September 12, 2018).
19 ITRC PFAS History at 2.
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