AG Grewal, DEP Announce Lawsuit Against U.S. Government over Drinking Water Contamination from Military Bases’ Use of Firefighting Foam

TRENTON – Attorney General Gurbir S. Grewal and Department of Environmental Protection (DEP) Commissioner Catherine R. McCabe announced today that the State is suing the federal government over its contamination of groundwater and drinking water resources on and around U.S. military bases and other federal facilities in New Jersey through long-term use of aqueous film-forming foam (AFFF), a fire-suppressing substance that contains toxic chemicals proven harmful to human health.

Foam products used by firefighters contain PFAS. (Photo courtesy of U.S. Department of Health and Human Services)

The State’s two-count complaint centers on excessive levels of toxic per- and polyfluoroalkyl substances (PFAS), including perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) emanating from the federal facilities. PFAS substances – also called “forever chemicals”– are manmade substances desired for their ability to repel water, oil and fire, and were commonly used to make products like Teflon and Scotchgard. Highly resistant to environmental degradation and known to accumulate in the human body, PFAS are associated with serious adverse health effects such as cancer. The chemicals are also known to negatively impact the immune system and decrease vaccine response.

Specifically, today’s complaint alleges that the routine use of AFFF at U.S. military and other facilities throughout New Jersey over time caused the contamination of public and private drinking water sources that provide drinking water to those facilities, as well as to communities located near the military installations, where both military and civilians families live.

“During Commissioner McCabe’s tenure, New Jersey has become a national leader in responding to the scientific evidence of PFAS chemicals’ impacts on human health,” said Attorney General Grewal. “With today’s lawsuit, we are inviting the federal government to finally take the risks posed by PFAS chemicals as seriously as New Jersey does, and to take appropriate steps to protect the health of military and civilian families who live near our military bases.”

“Federally owned facilities in New Jersey that polluted the environment through the use of aqueous film-forming foams must do the right thing by properly investigating and remediating PFAS-contaminated water supplies,” said Commissioner McCabe. “Governor Murphy and I are proud of New Jersey’s accomplishments in leading the nation by taking strong health- and science-based actions to protect the health of our residents from PFAS chemicals. Through this legal action, we are demanding that the federal government follow New Jersey’s lead.”

Affected U.S. military facilities listed in the complaint include Joint Base McGuire-Dix-Lakehurst (JBMDL), a tri-service, joint-installation military complex made up of McGuire Air Force Base, the Naval Air Engineering Station-Lakehurst, and Fort Dix Army Base. More than 45,000 active duty, guard, reserve, family members and civilian personnel live and work on and around JBMDL. The combined population of municipalities surrounding JBMDL is approximately 600,000 people. Also listed in the complaint are the Naval Weapons Station Earle in Monmouth County, and the former Naval Air Warfare Center in Trenton.

Among other demands made in today’s lawsuit, the State asserts that the United States should be required to address contamination of drinking water supplies when present above New Jersey’s own safe drinking water standards for PFOS and PFOA – a maximum contaminant level of 13 parts-per-trillion for PFOS, and 14 parts-per-trillion (ppt) for PFOA – instead of using the significantly higher federal standard of 70 ppt. Limited sampling of drinking water supplies in the area around JBDML has identified, so far, three private drinking water wells with combined levels of PFOS and PFOA well in excess of even the federal limit – ranging from 152 ppt to 1,688 ppt.

The excessive PFAS levels can be traced to the use of AFFF products at federal facilities. AFFF products are mixed with water to form a foam solution, which is then used to extinguish fuel and other flammable liquid fires. Spraying a fire with AFFF creates a film that coats the fire, blocking its oxygen supply and preventing re-ignition.

According to the State’s complaint, the U.S. government is one of the nation’s largest users of AFFF, with its usage dating back to the 1970s, when it was employed for firefighter training activities and to extinguish fuel-based fires at federal government facilities.

AFFF is discharged directly on the ground and/or tarmac during emergencies, as well as during training exercises, and ultimately reverts from foam to a liquid solution. In liquid form, AFFF travels to surrounding groundwater, causing contamination onsite and also migrating offsite to contaminate nearby wells.

Today’s complaint notes that, in addition to AFFF’s routine use in suppressing fires at U.S. military bases, additional, inadvertent discharges of AFFF have occurred – and additional releases of PFOS and PFOA have taken place – at U.S. military facilities through the testing of equipment, equipment malfunctions and “other incidental releases.”

Among other things, today’s lawsuit seeks to recover costs to the State associated with DEP’s investigation of the PFAS contamination caused by U.S. military installations, as well as expenditures made by the State or to be made by the State to remediate the contamination.

The complaint also seeks a court order requiring the federal government to remediate the affected areas to levels that comply with State safe drinking water and water quality standards for PFOS and PFOA, conduct medical monitoring of residents whose drinking water supplies have been contaminated in excess of those levels, and provide alternative water supplies to New Jersey residents whose drinking water has been contaminated. The complaint is being filed in the U.S. District Court for the District of South Carolina, which is handling litigation from around the country relating to AFFF, but the case may ultimately be decided in the U.S. District Court for the District of New Jersey.

Deputy Attorney General Gwen Farley, of the Environmental Enforcement and Environmental Justice Section in the Division of Law’s Affirmative Civil Enforcement Practice Group, handled this matter on behalf of the State.