When a massive fire broke out on the anti-mine ship USS Devastator earlier this year, sailors from five different vessels and the nearby naval base immediately leaped into action. They extinguished the blaze within an hour without suffering any injuries. That’s a testament to their skill and training.
It’s also a testament to their state-of-the-art equipment. Previous generations of sailors lacked such tools — and suffered terribly as a result. During the Vietnam War, a rocket misfire triggered cascading explosions and fires on the aircraft carrier USS Forrestal, killing 134 sailors. The ship itself was almost lost. The disaster triggered an extensive review of safety and firefighting protocols.
That tragedy helped lead to the widespread deployment of AFFF, or aqueous film-forming foam, which is very effective for smothering large-scale fires. First responders at virtually every military base, as well as many civilian fire departments, airports, and refineries, rely on such foams to save lives.
Unfortunately, the trial lawyer lobby — and its allies in Congress — could soon make it impossible for firefighters to use these foams.
One of the main ingredients in the AFFF used in the United States belongs to a class of chemicals known as per- and polyfluoroalkyl substances, or “PFAS”. PFAS have been around for generations and permeate our daily lives. Various PFAS are found in a wide variety of products, from nonstick pans we use to cook to the carpets our family walks upon to clothing our kids wear.
Nevertheless, the Environmental Protection Agency is doing its due diligence and studying whether these compounds are dangerous — and taking the appropriate regulatory action if necessary. Thus far, scientists have reviewed certain PFAS and concluded that most used in consumer products are generally safe for humans and the environment at current exposure levels, akin to being outside in the summer where sunlight exposure is acceptable in most circumstances for most people.
But the House of Representatives is trying to sidestep this process. This summer, the House passed its version of the National Defense Authorization Act (NDAA). It includes a provision that would designate all PFAS as “hazardous substances” under the Comprehensive Environmental Response Compensation Liability Act — commonly known as “CERCLA” or “Superfund.”
The law, which was enacted in 1980, authorizes Congress to use a science-based regulatory process to determine whether substances are hazardous — and hold parties accountable for the releases or potential releases of those substances. Now, the House hopes to broadly regulate PFAS — without the scientific evidence to support it.
Unless the CERCLA provision is stripped out during the conference committee, ambulance-chasing trial lawyers will file frivolous lawsuits against fire departments and PFAS manufacturers. Except this time they were the ones calling the ambulance. And if first responders can’t stock PFAS-containing AFFF, without a viable alternative, due to liability concerns, innocent lives could be lost in future blazes, which other trial lawyers will surely sue over as well. For trial lawyers it sounds like a win-win, for Americans it sounds like a lose-lose.
It’s not just firefighting that would be affected. Consider, for example, that many medical devices are made from various fluoropolymers, which have different PFAS in their molecular structures. The Food and Drug Administration has rigorously tested such devices for safety. And doctors have implanted these devices in patients for more than 50 years with minimal adverse consequences. Now, suddenly, Congress has decided that there is a Love Canal environmental disaster lurking in every hospital medical supply closet.
There’s zero scientific justification for the House’s across-the-board “dangerous substances” classification. Congressional Democrats have criticized the EPA for supposed foot-dragging, because the EPA refused to toss science overboard and do the bidding of trial lawyers without taking the time to execute a serious process. Officials need to evaluate each chemical, either individually or based on their subclass
By circumventing the EPA’s methodical review, the so-called “party of science” is ignoring actual scientists and bowing to the wishes of trial lawyers. So much for all the hand wringing that the EPA might be getting some political pressure.
Trial lawyers have already started filing lawsuits against a host of industries for the use of PFAS. And those lawsuits will undoubtedly increase tenfold in the coming years. Lawyers will likely target military bases, for example, which conduct frequent firefighting drills using AFFF. Without access to best-in-class foams, the risk of another Forrestal disaster only increases.
They could also sue medical device manufacturers, unnecessarily driving up costs of medical care for little or no benefit.
The Senate already approved its own version of the NDAA without the PFAS provision, and now the two chambers are reconciling their differences in a conference committee.
It’s possible the EPA may determine the risk of the AFFF systems are minor when compared to losing an aircraft carrier at sea due to a fire that can not be properly contained. As it is, ship AFFF systems are generally tested in the open ocean, not near the coast.
Such decisions to effectively ban something needs to be balanced against real-world applications with strategic and practical elements considered. Even if exposure presents some level of risk, is eliminating that risk worth hundreds or thousands dead because fires couldn’t be effectively contained fast enough? Let the scientists, engineers, firefighters, and military experts decide, not Congress.
It’s up to conferees to strike this provision from the final bill. Otherwise, trial lawyers will enrich themselves at the expense of our military, first responders, and children being rescued from fires.
Michael James Barton is the founder of Hyatt Solutions and speaks around the country on energy and energy security matters. He previously served as the deputy director of Middle East policy at the Pentagon.
