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Formidable legal bar shields military from PFAS lawsuits

The Hill logo The Hill 1/27/2022 Sharon Udasin and Rachel Frazin

Third in a four-part series

Military installations are a major source of community contamination from a class of toxic chemicals called PFAS, but trying to hold the Defense Department accountable can be formidable due to a labyrinth of legal limitations.

Mark Favors, an activist and nurse originally from Colorado Springs, has seen many family members, including his grandmother, die from cancer - which he believes resulted from the discharge of PFAS, per-and polyfluoroalkyl substances, from the nearby Peterson Air Force Base.

These so-called "forever chemicals," dubbed such due to their propensity to linger in the environment, are present in a variety of household products but are most well-known for their presence in aqueous film forming foam (AFFF), used to fight jet fuel fires on military bases and civilian airports. PFAS are linked to kidney cancer, thyroid disease and other illnesses.

While there are thousands of PFAS varieties, the two most researched types are called PFOS and PFOA.

Some of Favors's living relatives have signed on to multidistrict litigation (MDL) taking place against the companies that produced these chemicals. But Favors said that the legal hurdles associated with challenging the military in court, as well as the minimal changes that doing so could effect, have deterred him from trying to sue the Department of Defense (DOD).

"Say you could file a lawsuit - what could we really get that would prevent this from happening? I think it's so complex of an issue," Favors told The Hill. "To me, especially my grandma, there's really no financial amount that could compensate me for this, so I just don't see how it would be that beneficial."

Nonetheless, Favors is frustrated that no practical method exists for holding the Defense Department responsible for its actions, stressing that "we need congressional accountability."

Favors, who now works in an intensive care unit in New York, also served as a nurse in the military and was raised in El Paso County, Colo., "around a large loving family, many of whom are U.S. military veterans," he said in 2019 House testimony.

"However, we are struggling to obtain justice and accountability for our family members," he told the environment subpanel of the Oversight and Reform Committee.

Favors blames the deaths of his family members, some of whom are not related by blood, not only on the manufacturers of the chemicals in question, but also on the DOD. In Favors's region, decades of firefighting foam leached into the groundwater and contaminated both private wells and public waterways, a fact that the Pentagon has publicly acknowledged and worked to clean up.

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Family members of Mark Favors gather after the death of a loved one. © Courtesy of Mark Favors

The Air Force has also restricted the use of AFFF foam for emergencies only. But for many nearby families, who for decades were consuming the problematic water while unaware of the toxins, these efforts weren't enough - especially for those who have experienced deadly cancers that they believe were linked to the exposure.

The Air Force first began using AFFF in 1970 in firefighting and crash response vehicle testing and exercises, hangar system operations and emergency response, according to background provided by the branch. AFFF remains "mission critical because it is the most efficient extinguishing method for petroleum-based fires," and the Federal Aviation Administration requires its use at both military and civilian airport fire stations, the Air Force stated.

"We know our firefighting mission may have adversely affected human drinking water around our installations and we are working hard with our community partners and regulatory agencies to identify and resolve those impacts," a spokesman for the Air Force said in a statement.

"We are committed to protecting human health on and around former, active and National Guard installations and are working with regulators and community leaders," the statement continued. "We share concerns about potential PFOS/PFOA impacts to drinking water and we are moving aggressively to protect drinking water supplies affected by our Air Force mission."

In 2016, the Air Force Civil Engineer Center began working with public water suppliers and private well owners to provide drinking water alternatives, including bottled water and the installation of treatment systems for all public drinking water wells and private homes that tested above the EPA's health advisory levels, the statement said.

The Air Force Civil Engineer also conducted assessments at more than 200 installations early on in the response initiative. Wherever inspections have identified PFOS or PFOA in drinking water at levels that exceed the Environmental Protection Agency's (EPA) health advisory, the Air Force said it takes "immediate action to ensure access to an alternative drinking supply."

The Air Force also said it is conducting groundwater cleanup pilot studies, and all in all has spent $110 million in investigation, response and mitigation efforts at Peterson.

Peter Hughes, a DOD spokesperson, said via email that the department has been "taking action to address PFAS since 2016," when the EPA issued a drinking water health advisory - a guideline indicating at what concentrations PFOS and PFOA could cause harm to human health.

He noted that the department has put nearly $1.5 billion toward addressing PFAS releases through fiscal year 2021.

And he highlighted other actions the department has taken, including convening a task force that meets with the goals of mitigating AFFF use and taking on cleanup responsibilities, as well as making research and development investments in technologies aimed at speeding up the clean up process.

He also said that the department is assessing 699 installations where it may have used or released PFAS, having completed 190 assessments so far. Of those, the department has found that 115 warrant additional actions in the cleanup process.

But for activists like Favors, suing the DOD would usually mean fighting a losing battle, due to federal legal protections that make lawsuits against it precarious, if not impossible.

What does suing the military look like?

One of the only ways that a plaintiff can sue the Air Force is through the Federal Tort Claims Act, according to Kevin Hannon, an attorney from the Denver-based Morgan and Morgan Law Firm and The Hannon Law Firm, who serves on the plaintiffs' steering committee for the nationwide MDL taking place against manufacturers of PFAS in South Carolina.

The Federal Tort Claims Act is a 1946 statute that enables private individuals to sue the U.S. in a federal court that recognizes liability for negligent or wrongful acts of the government's employees.

But for the most part, suing the military remains difficult because "the government has what they call discretionary function immunity," explained Paul Napoli, co-lead counsel for the MDL.

Such immunity means that if a government employee's action was based on discretion - the individual thought an action was in the best interest of a certain cause - then a plaintiff cannot usually sue, even if harm occurs.

This special status means that the federal government can retain immunity when an action "requires the exercise of judgment in carrying out official duties," unless the plaintiff shows that a reasonable person would have known that the action was illegal or beyond the official's authority, according to Louisiana State University's Public Health Law Map.

In general, this means "that you cannot sue the government unless the government says you can sue the government," David McDivitt, vice president of the Colorado Springs-based McDivitt Law Firm, told The Hill. McDivitt represents local clients in the Colorado Springs region in the MDL.

Federal immunity, according to the legal dictionary Wex Law, stems from the concept of "sovereign immunity," based on the British common law doctrine "that the King could do no wrong."

When asked if it is possible, in theory, to sue the Air Force for injuries incurred due to toxic exposure, a spokesman for the Air Force declined to "speculate on possible or ongoing litigation."

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A mock-up of an airplane is seen at Peterson Air Force Base, Colo., on Nov. 2, 2016. Emergency crews use the planes to practice firefighting. © Associated Press - Dan Elliott

"The facts and situations vary and may impact the outcome of an action," the spokesman said in a statement. "The Air Force is subject to the same laws and governance as other federal entities."

However, one of the things for which plaintiffs might actually be able to sue the military is medical monitoring, health screenings that give people information in an effort to prevent illness after they were exposed to toxic substances - even if they haven't yet been made sick.

The U.S. Court of Appeals for the 3rd Circuit, in Pennsylvania, ruled in 2018 that medical monitoring is "not barred by sovereign immunity." However, the plaintiffs of that case ultimately did not get medical monitoring because the court determined that it "challenges ongoing cleanup efforts."

Mark Cuker, the lawyer representing those plaintiffs, said he believes that if the federal or state government in Pennsylvania, where the plaintiffs live, had declared the contaminants - certain types of PFAS - "hazardous substances," he would have been able to get a remedy for his clients.

"We would have sought and I think we would have gotten blood testing for anybody in the community who wanted to get their blood tested," he said.

The EPA has indicated for years that it wanted to designate PFOA and PFOS as hazardous substances, but has yet to do so. According to a plan released in October, the agency plans to implement these changes by summer 2023.

The Pentagon is not part of the ongoing national MDL targeting companies that manufacture AFFF foam, so the plaintiffs can't sue it, but these circumstances have actually made the military an ally in their case against the manufacturers.

Napoli said that trying to sue the military as part of the case would be impractical and counterproductive - and could "essentially let the manufacturers off the hook."

"One of the aspects of the litigation, the defendants' defense, was 'the government made us do it,'" Napoli said. "By not suing the government at this point, we have been able to get testimony where they said it wasn't our fault - it was the manufacturers' fault."

If the military had been among the defendants, Napoli continued, the Justice Department could have come in and argued that the PFAS discharge occurred out of military necessity.

"Instead, the government came in and said, 'Listen, we did not tell them to do this. We told them that we need to be protective of human health. It's not our fault. It's their fault,'" Napoli said. "And that's major for us."

Emerging science behind these contaminants can pose additional hurdles

But regardless of who precisely is at fault, both military cases and PFAS suits in general face another hurdle - the fact that science on PFAS exposure is still emerging. Many medical professionals are not fully familiar with the substances, potentially risking additional health impacts, even if the link between those impacts and the contaminants hasn't been sufficiently established to form a legal case.

As science continues to develop, Napoli said that he is basing his arguments on the results of the "C8 Science Panel." The panel - completed in 2012 following the settlement of a 2004 PFAS exposure case in Parkersburg, W.Va. - which established a link to diagnosed high cholesterol, testicular cancer, kidney cancer, ulcerative colitis, thyroid disease and pregnancy-induced hypertension.

While Napoli said that the MDL team has changed which illnesses they are including over time - and are now considering prostate and pancreatic cancer, as well as other illnesses with emerging connections to PFAS - he stressed that "it is a little bit of a moving target."

This issue is particularly relevant in Warminster, Pa., where Hope Grosse said she had been exposed to PFAS from a very young age, growing up "literally 25 feet" from a naval air base.

"[The] runway was right across the street from our house, our house shook when planes landed," she said. "The firefighting training center was right across the street from our house where we hung out with our faces on the fence while they blew these planes up and put the fires out."

She said that growing up nearby was "fun," but now she's worried about exposure to PFAS and other chemicals.

Grosse suspects that exposure to chemicals from the base is the cause of her melanoma and other health issues in her family. But, she said, there hasn't been enough research to say for sure.

"The lawsuits around here today are on, I believe, testicular cancer. I had melanoma cancer - stage four - my dad had brain tumors. People that have those brain tumors aren't proven to be PFAS - not yet," she said. "There's a lot of breast cancer around here, a lot of childhood autoimmune diseases and stuff."

"There's so many things, I feel like that haven't been totally connected to PFAS yet, which I think some of them are showing up little by little, inch by inch," she said.

And, Grosse said, even if she did have a case, she too, would be deterred from suing the military due to the high bar for legal action against it.

When asked in a follow-up email about whom she'd want to sue, she said, "I would love to sue the federal government/Department of Defense, and also know that isn't how things work. So the makers of [firefighting foam] - PFAS."

Dawn DeFreitas, the Navy's environmental cleanup coordinator for the Warminster Base, referred The Hill to a Centers for Disease Control and Prevention disease registry and webpages related to the Warminster base cleanup when asked for comment.

These documents include an August presentation that notes that the Navy has reached an agreement with the town to provide treatment to remove certain kinds of PFAS from municipal wells, in addition to other actions. The Navy said that so far, it has provided a total of $18 million in funding.

The medical profession is also playing catch-up with PFAS, advocates say.

South of Colorado Springs in El Paso County, Colo., there are few hospitals and specialists familiar with PFAS exposure, according to Liz Rosenbaum, founder of the Fountain Valley Clean Water Coalition. The northern part of the county has six hospitals, but the southern part - where she lives - has none, aside from the military hospital at Fort Carson, which does not treat civilians, according to Rosenbaum.

"Doctors have no idea what this is," she said. "I can't just go on base and say, 'Hey, test my blood.'"

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Deonte Andrew Spratley and his mother, DeAmbra Jones. Spratley, who has a rare kidney disease called focal segmental glomerulosclerosis, had a kidney transplant. Jones thinks her son's condition may be linked to PFAS exposure. © Courtesy of DeAmbra Jones

Due to the lack of treatment available in El Paso County, another former area resident, DeAmbra Jones, said that she needed to make repeated 80-mile trips to Children's Hospital Colorado in Denver for her son's kidney transplant and dialysis appointments.

Three summers ago, Jones's now 17-year-old son underwent a kidney transplant due to a rare kidney disease called focal segmental glomerulosclerosis, which she suspects may have been linked to ongoing exposure to PFAS from the base.

"Anytime he was hospitalized, it was always in Denver," Jones said, noting she also has three other children. "A lot of times, I would stay in the hospital with my son and my husband would drive back down to Colorado Springs to make sure that the other kids made it to school."

Anger and frustration

Jones, who is Favors's first cousin once removed, also expressed disappointment that there are "no repercussions" for the military's role in the PFAS contamination, adding that they just "want to blame it on the manufacturer."

"But then they knew that something was wrong, which is why they were dumping it," said Jones, 39, who served in the Navy about 15 years ago.

While she and her family have since moved to Phoenix, Jones said they still use a water filtration system and supplement that with bottled water.

"It's just become such a habit," she told The Hill. "I don't know what this water tastes like; I don't care to even try it."

The initial development of the AFFF responsible for contamination in a number of communities like Jones's was a 1960s-era partnership between the Department of Defense and PFAS manufacturers.

The military and manufacturers "really worked together to create and test a product" that could pass regulatory standards "with clear and documented collaboration," according to Sonya Lunder, a Colorado-based senior toxics policy adviser for the Sierra Club.

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Lunder slammed the military for its "legacy of toxic waste and contamination" and for "really egregious" behavior on PFAS in general.

The military, she continued, has access to an "amazing database" of which employees lived where, as well as their health and employment records, and would technically be able to notify anyone who might have been exposed in the past about the potential injury that occurred.

"We're dealing with an incredibly fragmented and chaotic system with a large responsible party who's not doing the basics of identifying, informing people that they were exposed, who has immunity, and whose use of PFAS chemicals has created some of the most widespread and intense and damaging exposures within the United States - and that's the military," Lunder said.

Hughes, the Defense spokesperson, said that the Pentagon is "committed" to addressing PFAS releases and sharing information with military families and community members "in an open and transparent manner," as well as to improving its efforts.

"While this program is both legally and technically complex, its underlying purpose is simple; to address the releases we made and keep the American people informed," he said.

Another complicating issue is that when testing for such a contaminant occurs, the DOD "gets to determine what the boundary is," added Rosenbaum, the Fountain Valley Clean Water Coalition founder.

"Once they determine that boundary, screw everybody else - you're outside of the boundary," she said.

Rosenbaum's son is currently in the Navy and has to deal directly with AFFF foam as part of his assignment, so she said she has made sure "he takes it seriously," particularly after having grown up in this region.

Despite the grievances with past military inaction on PFAS, Rosenbaum maintained that she is part of "a huge military family" and that she has "no problem" with her son serving his country. That said, she would like the military to be using the correct protocols when handling toxic chemicals - a shift she said she does see beginning to occur now.

New Hampshire Assemblywoman Suzanne Vail (D) - who fought to strengthen PFAS protections in her state - suggested that a veteran could seek relief through Veterans Affairs (VA), although such relief would not apply to the veteran's family members, even if they had lived on the same contaminated property.

Only individuals with occupational exposure can receive VA coverage, added Lunder, who stressed that the military health systems are "wholly inadequate to identify and figure out any kind of fair compensation."

The spouse and children cannot qualify for such benefits, which Rosenbaum described as the "worst thing" for military families such as her own.

"They have no way to go in and get tested, but they moved from military base to military base, and they're exposed," she said.

In response, a VA spokesman said that the department "has limited authority to provide health care to family members."

"VA does have authority to provide some health care to certain family members of veterans who resided at Camp Lejeune," the spokesman said, referring to a Marine Corps training base in Jacksonville, N.C., where residents were exposed to discharges of toxins including trichloroethylene, perchloroethylene, vinyl chloride and benzene.

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Mark Favors testifies in Congress on Nov. 19, 2019. © Courtesy of Mark Favors

Another problem activists are facing in their quest to hold the DOD accountable is the idea that the EPA is often powerless against it, Favors, the Colorado-based military veteran and nurse, told The Hill.

Even if a contaminated military site receives Superfund designation - a status that enables the EPA to clean up a site or require a polluter to do so - the DOD remains in charge of the relevant investigation, Favors explained.

The EPA said via email that the DOD is the lead agency for Superfund cleanups at military sites, but added that the EPA provides oversight to make sure investigations and cleanups are consistent with relevant laws and regulations.

In New Hampshire, the former Pease Air Force Base - which had significant PFAS contamination - was designated as a Superfund site several years ago, explained James Martin, spokesman for New Hampshire's Department of Environmental Services.

Although the DOD sold the property to a private developer, PFAS "is basically bubbling out of every tap on the whole place," but everyone is "going about business as usual" and "no one is remediating," according to Vail.

"We provide a supporting role in that situation," Martin said. "But the jurisdiction essentially comes down to the federal government."

The Air Force acknowledged in a statement that "AFFF from Air Force mission activities likely contributed to PFOS/PFOA in drinking water supplies on and near the former Pease AFB." The statement detailed cleanup and mitigation efforts that the Air Force has undertaken in the area.

Addressing PFAS contamination from its bases in general, the statement said that no one is consuming drinking water with PFOS or PFOA concentrations above the EPA's health advisory levels where the Air Force is the known source, and that the branch "takes swift action to address drinking water and provides alternatives" when contamination is found.

"We are taking aggressive action to determine if Department of Air Force activities have impacted human drinking water with PFOS/PFOA and will respond appropriately as identification efforts warrant," the statement said. "The Air Force is working with community and regulatory agencies to identify and implement long-term solutions for drinking water."

Despite the vast contamination that has occurred at the nation's military bases - and the illnesses and deaths that Favors believes this pollution has caused in his own family - his relatives continue to enlist, and without hesitation.

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"Our culture is that we have to serve the country, and the thing about it is, America's a great enough nation where they can do both," Favors said. "This whole thing that it's impossible for the DOD to dramatically change their pollution practices is just not acceptable to me. That's the whole crux of this whole thing - can we hold the DOD accountable? And I think that they should be able to clean up their act."

Favors is looking for sweeping federal action that holds the Pentagon responsible for exposure-related illnesses - and he believes that such action can only occur in Congress. He advocated the appointment of independent entities - outside of the DOD - to investigate pollution incidents at military sites and ensure that residents of military-adjacent contamination zones are treated "with equity and fairness."

"Nothing's going to solve it until they know if they do something, there's going to be repercussions," Favors told The Hill.

He insisted that there must "be a way that's apolitical, that holds the DOD accountable for their pollution."

Napoli, co-lead counsel for the MDL, echoed Favors's sentiments that, ultimately, the only way that the military - or the federal government - could end up compensating PFAS exposure victims would be an act of Congress. He expressed some optimism, however, that this could occur, noting that "both sides of the aisle recognize that this is a problem."

"I think at some point, there may be a victim's compensation fund for military families that lived on bases," Napoli said.

Also in this series:Justice for PFAS exposure confronts ticking clock

State resistance foils law changes, hampering 'forever chemical' suitsPast toxics cases set the stage for PFAS lawsuits

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