Decoding The PFAS Paradox

On a bright, sunny morning on July 29, 1967, the aircraft carrier USS Forrestal was on station off the coast of Vietnam when an underwing rocket accidentally launched from an F-4 fighter-bomber, streaking across the deck toward another jet piloted by future U.S. Senator John McCain. Shrapnel from the exploding rocket ignited the fuel in McCain’s jet as well as another one next to it.

McCain and the other pilot escaped their planes, but the expanding pool of burning fuel set off a chain reaction of fire and explosions that eventually penetrated the Forrestal’s flight deck, killing 134 sailors and nearly sending the carrier to the bottom. Investigators blamed obsolete WW II–era bombs and water fire extinguishers that washed away more effective foam.

In the wake of the Forrestal disaster, the U.S. Department of Defense adopted MIL-F-24385, requiring the use of “aqueous film-forming foam,” or AFFF, based on fluorocarbon compounds originally developed by 3M in the 1940s. The following year, the Federal Aviation Administration adopted the same military specification for civilian airports, eventually ordering them to conduct live exercises twice a year, including spraying firefighting foam over the runways.

That lifesaving regulation is now responsible for a growing wave of litigation, including a proposed class action on behalf of virtually everyone in the U.S. Unfortunately, the fluorocarbons that transform ordinary water into an oxygen-blocking firefighting blanket also break down into compounds known as PFOS and PFAS, extraordinarily durable molecules that have leached into water systems and persist in human tissue for decades.

Advanced technology now allows scientists to detect PFAS down to parts per trillion. Plaintiff lawyers were quick to use that breakthrough to file lawsuits against everyone who touched the stuff, from chemical companies like DuPont and 3M to product manufacturers and the local airport. It has even prompted litigation squared: Municipal water systems hit with lawsuits over PFAS contamination by their customers are installing expensive filtration equipment and then suing airports and even the U.S. military to recover their costs.

All of which raises the question: Can it be a tort to use a chemical that is required by government regulation? A federal judge in South Carolina overseeing thousands of PFAS lawsuits is pondering that question right now, as some defendants press the “government contractor defense,” arguing they can’t be sued for following the rules.

“The defense is basically ‘the government made me do it,’” says Brian Gross, a partner with MG+M in Boston who’s active in toxic-tort defense. “‘I didn’t have a choice. There was no wiggle room.’”

Plaintiff lawyers argue the law doesn’t specify PFAS, only fluorocarbons. But defendants say the exacting specifications in MIL-F-24385 left them no choice but to use the chemicals they are now being sued over. They’re hoping a precedent set in litigation over another Vietnam-era chemical, Agent Orange, will protect them this time. In that case, Dow Chemical and Monsanto won rulings dismissing plaintiff lawsuits because they made the herbicide to exacting government specifications.

One critical difference is that those companies made Agent Orange under contracts that spelled out the chemical formula. 3M has failed to dismiss similar litigation over military earplugs because the military bought a design that 3M developed on its own. Firefighting foam is somewhere in the middle.

Another factor might help defendants, at least in lawsuits by individual plaintiffs. Because PFAS is everywhere and is only weakly associated with a variety of conditions, it will be hard for them to prove any one company’s products made them sick.

“PFAS is ubiquitous,” Gross says. “It makes specific causation difficult.”