Read full article by Kyle Bagentose (Burlington County Times)
“It’s been five years since the military first discovered widespread PFAS contamination at bases in the Philadelphia suburbs, but the chemicals continue to pollute the aquifer and waterways. We asked more than half a dozen experts a simple question: Why?
In February 2017, after listening to military officials talk for more than an hour about ongoing environmental pollution in his hometown, Pennsylvania state Rep. Todd Stephens’ frustrations boiled over.
Representatives of the Navy and Air National Guard had just freely admitted that toxic firefighting chemicals continued to pour off the former Naval Air Station Joint-Reserve Base Willow Grove and into surrounding waterways. It had been three years since major contamination was first discovered, and Stephens, R-151, wanted to know why the military still hadn’t contained it.
‘It is beyond my comprehension that these unbelievably talented and bright individuals can’t figure out how to stop polluting our water … and still don’t even have a timeline,’ Stephens said then, of the military’s array of contractors and engineers…
This news organization spent a year reviewing military documents and talking to legal and environmental experts to determine why the military isn’t cleaning up. The effort led through a dizzying maze of regulations and policies, but ultimately ended at a simple answer: Nobody is forcing the military’s hand, and perhaps nobody can.
The Department of Defense estimates its cleanup costs could reach $2 billion, and it’s spending tens of millions of dollars studying cost-effective treatment systems and other technologies that could help. Nathan Frey, a policy advisor with the environmental law firm Marten Law, says the DOD appears to be wary that taking a cleanup action at one base before it’s ready could set a precedent for others.
‘They’re very aware that the extent of the problem is very large,’ Frey said. ‘And once they do something voluntarily, there are a lot of dominoes that are going to fall.’
Other experts say regulators like the Environmental Protection Agency don’t have many clear-cut authorities to push the military, particularly when it comes to the speed of a cleanup. Bill Muno, a former EPA Superfund director in the Midwest, says federal policy technically doesn’t allow the EPA to order or sue the Department of Defense.
‘There really is no Environmental Protection Agency authority to force the Department of Defense to expedite a cleanup,’ Muno said…
Others agree the dynamic is complex. Charles Howland, a former EPA attorney and now head of the Environmental Group at the Curtis, Mallet-Prevost, Colt & Mosle law firm in New York City, said he butted heads with the DOD in numerous disputes during his 29 years with the agency. According to Howland, issues with PFAS, which have quickly risen to the top of the federal government’s chemical priority list, aren’t so different legally than past problems with spills of jet fuel and degreasing agents.
‘This is all old stuff,’ Howland said…
According to Howland, the EPA does have some options in its legal toolkit to try to exercise greater control, but some of them require sign-off by the Department of Justice and in practice are rarely used. Disputes in gray areas are often settled internally by political appointees, or the EPA prefers to hold its fire for fear of losing a court fight, and with it future authority.
‘EPA is very reluctant, and DOJ is reluctant, to try to stretch a statute too far, because they don’t want a court putting in writing “Oh, you misinterpreted that, you definitely don’t have that authority,”‘ Howland said.
Others say that even when the military does not clean up contaminated sites to EPA standards, consequences do not always follow. Jessica Ferrell, a partner at Marten Law, has litigated against the military on pollution issues. In a legal analysis, Ferrell noted that the U.S. Government Accountability Office looked at the issue and found the military has in multiple cases across the country ignored or failed to meet EPA demands on a range of environmental issues…
For all the criticism leveled at the federal government over its approach to PFAS cleanup, not all think the issue is so clear cut. Frank, the Philadelphia attorney, offered that research around PFAS just isn’t as advanced as it is for other chemicals.
‘Right now, the fumbling around that all of these agencies are engaging in, is really driven by literally not knowing basic answers to basic questions,’ Frank said. ‘That level of uncertainty will paralyze a cleanup at any level.’
Others pointed out that the EPA hasn’t yet finalized its guidance or set regulations, and said it would be unfair for any polluter to have to perform robust cleanup before it does so.
‘The thought of EPA acting without the science, I think is scary,’ said Adam Sowatzka, an attorney with the Atlanta-based firm King & Spalding and a former EPA lawyer. ‘I think there’s a real gap here, without fixes in the regulatory program’…
But others remain critical. Melanie Benesh, legislative attorney for the nonprofit Environmental Working Group, said PFOS and PFOA in particular are already ‘incredibly well-studied’ chemicals, for which there is little doubt about toxicity.
“This comes up a lot, where people say, ’Well there’s not enough research, we need to know more about these chemicals,” Benesh said. “But there is a lot of science already.”
For now, it appears the military is comfortable in its position. At the March congressional hearing, U.S. Rep. Harley Rouda, D-Ohio, closed the session by asking Sullivan point blank if there is ‘Anything preventing the DOD from cleaning up all these sites and contaminated soils immediately?’
Sullivan stayed on message.
‘We’ve been moving out for almost three years, very aggressively,’ Sullivan responded. ‘We’re actively investigating sites, we’ve cut off exposure already through drinking water, and are installing remedies across the nation.'”