U.S. Claims Immunity in Some PFAS Water Contamination Lawsuits Over Use of AFFF Foam on Military Bases

The U.S. government has asked a federal judge to dismiss more than two dozen water contamination lawsuits brought by several farms and the state of New Mexico, over toxic per- and polyfluoroalkyl substances (PFAS) contained in firefighting foam used on military bases, arguing that the government is immune to those specific complaints under federal law.

In recent years, individuals, municipalities and states throughout the U.S. have filed firefighting foam lawsuits against DuPont, Chemguard, Inc., 3M Company and other companies involved in the sale of fire safety products that contained toxic per- and polyfluoroalkyl substances (PFAS), which have been widely used by the U.S. military and local fire departments, to combat fuel-based fires. Some claims have also been filed against the U.S. government and military, for its use of PFAS-laden aqueous film-forming foam (AFFF) on its military bases, which has caused water contamination in surrounding areas.

Lawsuits allege that the companies and the military ignored the risk that run off from AFFF used during training and response exercises may contaminated water supplies with toxic chemicals, which are known to build up and persist in the environment, increasing the risk of cancer and other serious health problems.

Last summer, the communities reached a tentative settlement with DuPont, Chemguard, Inc. and others for $1.18 billion, to resolve claims over their role in the water contamination. A separate $12.5 billion AFFF settlement has been reached with 3M Company, which is still awaiting court approval. However, no deal has been reached in claims against the federal government.

Given common questions of fact and law presented in the litigation, all PFAS water contamination lawsuits are currently centralized before U.S. District Judge Richard M. Gergel in the District of South Carolina, for coordinated discovery, pretrial proceedings and a series of early bellwether trials.

Government Argues for PFAS Water Contamination Immunity

In a memorandum of law (PDF) and accompanying and a supporting memorandum (PDF), both filed on February 26, the U.S. Department of Defense indicates that it faces about 30 PFAS water contamination lawsuits as part of the litigation. However, it argues that the government is immune from any liability in these cases due to federal law.

The complaints at issue were filed by dairy and agricultural farms adjacent to the Cannon Air Force Base (CAFB) in New Mexico under the Federal Tort Claims Act (FTCA), and another was filed by the state of New Mexico itself. At least 27 complaints could be affected.

According to the memorandums, plaintiffs have failed to identify any specific federal violations broken by the U.S. Air Force in its use of AFFF on the base. They also argue that New Mexico’s claim lacks jurisdiction under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The memorandums also claim the state’s lawsuit “would interfere with the Air Force’s ongoing investigation and remediation efforts at CAFB.”

The government argues that such complaints can be brought only if plaintiffs argue that specific government policies were violated, and claim no such violations occurred.

March 2024 AFFF Injury Lawsuits Status Update

In addition to claims being pursued over costs associated with water contamination, the manufacturers of the toxic chemicals an firefighting products also face thousands of individual AFFF cancer lawsuits, brought by firefighters and other individuals who developed testicular cancer, kidney cancer, pancreatic cancer and other forms of cancer following exposure to the toxic chemicals.

In May, Judge Gergel issued a case management order that directed the parties to prepare a list of 28 AFFF personal injury claims to serve as a bellwether pool, which will be prepared for a series of early trial dates to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation. These cases focus on plaintiffs who say they were exposed to AFFF through drinking water contamination, as opposed to direct exposure claims brought by firefighters.

The personal injury bellwether claims will include eight kidney cancer claims, eight testicular cancer claims, eight thyroid disease claims and four ulcerative colitis claims involving individuals exposed to contaminated water near Peterson Air Force Base, Colorado Springs Municipal Airport, the Willow Grove Naval Air Station Joint Reserve Base and the Naval Air Warfare Center in Warminster.

While the outcome of these early bellwether trials will not have any binding impact on other claims, it is expected that the amount of any AFFF lawsuit payout awarded by juries may influence future firefighter cancer settlement negotiations to resolve the litigation.