Incinerating “forever chemicals” without consistent controls violates a newly enacted defense law, environmental groups said in a lawsuit filed Thursday.
Environmental groups, led by the nonprofit legal firm Earthjustice, allege the Department of Defense violated the National Defense Authorization Act of 2019, which spelled out guidelines for safely incinerating firefighting foam containing per- and polyfluoroalkyl substances, or PFAS.
The groups allege the Defense Department entered into three contracts between November 2018 and May 2019 to incinerate more than 2 million gallons of stockpiled waste despite having concerns about the disposal process.
The Pentagon hasn’t shown the contracted incinerators can burn the foam at high enough temperatures to completely break down PFAS, the groups claim. The chemicals are environmentally persistent—leading them to be dubbed “forever chemicals"—resistant to heat, and have been found in drinking water across the country.
The lawsuit comes more than a month after the groups notified the government of their intent to sue. The Department of Defense can’t comment on pending litigation, spokesman Chuck Prichard said.
For decades, the Pentagon has used the foam for training and firefighting, activities that have contaminated soil and water supplies at some 200 military bases.
The defense bill (P.L. 116-92), which President Donald Trump signed into law Dec. 20, requires the department to use incinerators that reach especially high temperatures to destroy the foam.
‘No Satisfactory’ Method
The complaint said the Pentagon is moving forward with incineration without making sure the burning process won’t release toxic chemicals that would harm nearby residents.
The groups allege the Defense Department has been aware of the risks associated with the incineration of PFAS for years. In April 2017, the Department solicited proposals for “novel” foam disposal technologies since “no satisfactory disposal method has been identified.” This same solicitation acknowledged that burning of foam faced “several significant challenges,” including the absence of information about “products of pyrolysis or combustion, temperatures at which these will occur, or the extent of [PFAS] destruction that will be realized,” the complaint notes.
Some of the owners and operators of these sites, including Ross Environmental Services Inc. and Veolia North America, said their incinerators are designed to burn hazardous waste with appropriate scrubbers to pick up any toxic byproducts.
Although the Environmental Protection Agency hasn’t classified PFAS as a hazardous substance, “Ross uses the same the same incinerator operating limits and air pollution controls when incinerating PFAS-containing waste as it does for all hazardous wastes incinerated at the facility,” the company wrote in an email.
Ross also said the company employs an air pollution control system which captures, scrubs, and neutralizes any remaining gases from the incinerator so they aren’t emitted into the environment.
Leftover ash is carted to landfills that are lined to handle hazardous wastes, said Bob Cappadona, president and chief operating officer of Veolia North America Environmental Solutions and Services.
Lack of Research
High temperature incineration is the “best method we have today” for destroying PFAS, but there hasn’t been extensive research into the temperatures required to destroy different types of the chemicals, said Phil Retallick, senior vice president of compliance and regulatory affairs for Clean Harbors Environmental Services Inc.
Clean Harbors’ incinerator stacks aren’t tested for PFAS, he said. Instead, the company relies on compliance testing to ensure it meets standards for hydrogen chloride and fluorine, byproducts of PFAS destruction.
Earthjustice filed the lawsuit on behalf of local environmental groups Save Our County of East Liverpool, Ohio; Community In-Power and Development Association of Port Arthur, Texas; and St. Louis-based United Congregations of Metro East as well as the Sierra Club. All these groups have members residing in communities where the Pentagon is sending waste for incineration.
Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
The case is Save Our County v. U.S. Defense Logistics Agency, N.D. Cal., No. 3:20-cv-01267, 2/20/20.
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