Read the full article by Pat Rizzuto (Bloomberg Law)

“The Pentagon and environmental groups have asked a federal court to approve a settlement ending the last of three challenged military contracts to incinerate materials contaminated with PFAS.

The proposed settlement, filed on Thursday with the US District Court for the Northern District of Ohio, would terminate a contract the Defense Logistics Agency awarded in 2019 to Heritage Environmental Services.

The defense agency tasked Heritage with incinerating aqueous film forming foam (AFFF)—a type of fire suppressant that uses per- and polyfluoroalkyl substances (PFAS)—along with PFAS-contaminated soils, sludge, and other materials in specially permitted incinerators.

If approved by the court, the agreement will protect communities living near incinerators burning the military’s PFAS wastes, said Jonathan Kalmuss-Katz, a senior attorney at Earthjustice, which represents community and environmental groups that filed the lawsuit in February 2020.

‘No administration that is committed to environmental justice can send toxic, non-combustible waste into overburdened communities to be burned,’ he said. Federal agencies must require the use of disposal technologies that permanently destroy PFAS, Katz said.

The settlement also increases communities’ ability to know about Department of Defense PFAS incineration contracts.

Community, Congressional Concerns

The defense agency ended in June and July of 2020 two other contracts the groups challenged that the agency had awarded in 2018 to Tradebe Treatment and Recycling LLC for AFFF and related materials incineration.

That followed research showing Tradebe’s Norlite incinerator in Cohoes, N.Y., which had burned more than two million pounds of PFAS-contaminated waste shipped from more than two dozen states, also had strewn PFAS into the air and water and onto local soil.

The research scared people like Joe Ritchie, a resident of the Saratoga Sites public housing complex in Cohoes, located next to the incinerator.

In November, New York banned incineration in designated environmental justice areas, such as Cohoes.

A study published in June examined the soil around a hazardous waste incinerator operated by Heritage in an Appalachian community in East Liverpool, Ohio. It found concentrations of two PFAS commonly used in AFFF and measured between 50 parts per trillion (ppt) to 1,300 ppt.

Save Our County, a community organization that opposes that particular hazardous waste incinerator, is among the groups Earthjustice represents that challenged all three incineration contracts.

Burning AFFF wastes violated the 2020 National Defense Authorization Act (Public Law 116-92), and the National Environmental Policy Act (NEPA), maintained a complaint Earthjustice filed.

The defense act required the Department of Defense to ensure that ‘all incineration is conducted at a temperature range adequate to break down PFAS chemicals.’

But the Pentagon continued to burn AFFF without specifying temperatures needed to fully destroy the chemicals, Earthjustice said.

The DoD also failed to conduct the required environmental review before awarding its contracts, the nonprofit environmental law firm said in materials filed with the district court.

Congress banned PFAS incineration by the military through the fiscal 2022 National Defense Authorization Act (Public Law 117-81) unless the Pentagon could meet specific criteria to prove its safety.

The DoD said in July that it could resume incineration later this year by meeting that criteria.

Public Awareness

The Pentagon could do that and remain in compliance with the settlement by modifying existing contracts that weren’t part of this litigation or developing new ones.

The settlement requires the DoD to establish a website where it will post information about current or new incineration contracts.

‘The transparency measures in this settlement will shine a needed light on DoD’s PFAS incineration practices,’ Katz said. ‘The public has a right to know of government decisions that place their communities and families at risk.’

Communities and Congress became aware of DoD’s incineration and the risks of incomplete PFAS destruction in 2019 through an investigation first published by The Intercept.

More Sites

The volume of AFFF and other PFAS wastes that the DoD will have to eventually dispose of is unknown. But the number of current and former military bases the department is investigating has grown, according to recently posted information.

The DoD is assessing 714 active military installations, Base Realignment and Closure locations, National Guard facilities, and Formerly Used Defense Sites properties, according to the department’s data updated as of June 30. That’s up from 706 sites as of the end of 2022.

The sites under investigation, the status, and some cost information are included in the updated report.

The Pentagon’s PFAS disposal will be informed by updated guidance the Environmental Protection Agency is expected to issue by the end of this year, DoD said in its July statement.

Research the EPA and academic partners have published, such as a study on thermal AFFF destruction, and public comments the EPA received on its 2020 disposal guidance will inform the updated recommendations it makes, the EPA said.

Other recently published studies include insights into ways PFAS in landfills can volatilize into the air in addition to being released via landfill leachate. Incinerator ash is typically disposed in certain landfills along with many other PFAS-contaminated materials.”