Guam is jumping on board a multi-district litigation against chemical manufacturers responsible for a nationwide environmental horror that poisoned America’s drinking water. The Office of the Attorney General has finally formed a legal team, consisting of topnotch law firms to advocate for Guam in the burgeoning legal battle that involves per- and poly- fluoroalkyl substances or PFAS contamination.
“I want to thank Governor Leon Guerrero for making this a priority and our senators for recognizing the benefit of swift action,” Attorney General Leevin Taitano Camacho said.
The AG’s office commissioned six law firms by virtue of Prutehi I Hanom Act, which was hastily enacted into law to facilitate the legal service arrangement. “They trusted us to find the best experts to help recover for damage caused by the use of per- and poly- fluoroalkyl substances or PFAS, and we were able to do just that with terms that are good for Guam,” Camacho said.
Among the companies facing the lawsuit are DuPont and 3M, which manufactured and supplied a group of more than 4,000 compounds collectively known as PFAS. These chemicals were in use since the 1950s. Some companies have since discontinued their production but the nation first heard of these chemicals’ risks to human health just three years ago.
The U.S. Environmental Protection Agency first issued a health advisory for perfluorooctanoic acid (PFOA) and the related perfluorooctane sulfonic acid (PFOS) in 2016. While there are no EPA drinking water regulations for these compounds, the agency established advisory levels to offer a margin of protection from potential adverse health effects resulting from lifetime exposure to PFAS in drinking water.
On Guam, EPA’s sampling detected PFOS in three water wells near the airport with levels that ranged from 88 ng/L up to 410 ng/L — well above the 70 ng/L “advisory level.” The Guam Waterworks Authority’s subsequent health advisories were directed at customers in Santa Rita, Piti, Hagatna and Tinian.
A Pentagon’s report in March last year indicated that two of five groundwater monitoring wells inside the Navy Base on Guam were contaminated above acceptable levels. No groundwater sampling was done off-base, however.
The report identified a total of 401 active and Base Closure and Realignment installations throughout the U.S. and overseas, where PFAS compounds were released. These included 36 sites with drinking water contamination on-base, and more than 90 sites that reported either on-base or off-base drinking water or groundwater contamination, in which the water source tested above EPA’s acceptable levels.
PFAS can be found in legacy fire-fighting foam known as aqueous film-forming foam previously used on Guam for fire emergency response and training activities. It also can be found in many other commercial household products, including stain- and water-repellent fabrics, nonstick products, such as Teflon, polishes, waxes, paints, cleaning products. PFAS compounds are nicknamed “forever chemicals” as they are not known to break down in the environment. Moving through soil to drinking water, PFAS have become global pollutants that threaten the health of people and wildlife.
A Pentagon’s report in March last year indicated that two of five groundwater monitoring wells inside the Navy base on Guam were tested above the acceptable levels of PFOS and PFOAs.
Testing and monitoring
In August last year, GWA and the Joint Region Marianas tested all of the island’s production water wells for PFAS. “The NAS-1 water well, which is a former Navy-owned production well and now owned by GWA tested both positive and then negative for PFAS in the previous reports," JRM environmental specialist Maria Lewis said in a press release last year.
“Safe drinking water for our entire island community is a top priority,” said Naval Facilities Engineering Command Marianas Commanding Officer and JRM Regional Engineer Capt. Dan Turner. “To that end and in keeping with the One Guam pillar, JRM and GWA have taken voluntary and proactive measures toward monitoring potable water wells to determine if PFAS compounds are detected at levels above those established in the EPA health advisory limits, and if confirmed will immediately shut down the well until remediated.”
Lewis said NAS-1 “now does have an operational granular activated carbon (GAC) filtration system which eliminates any potential PFAS in the water entering the distribution system."
GAC is a multi-stage filtration type system that is installed at the water well, which is designed to treat the water for specific organic materials and related constituents by absorption onto the carbon of the filter, GWA general manager Miguel Bordallo explained.
“The GAC holds onto the organic material within the carbon until it is saturated, at which time the used GAC is replaced by new GAC. Water flowing through these systems is re-tested after various stages of the process of passing through the carbon and the test results through final filter have been negative. The replacement procedure is executed when the tests show that the carbon is no longer able to capture the target material.”
PFAS compounds have been in use since 1950s but the massive water contamination was not discovered until the last decade. The science and medical community is just beginning to understand the health effects of exposure to elevated levels of these toxic chemicals.
Studies link PFAS exposure to kidney and testicular cancer, thyroid disease and weakened childhood immunity, among a host of serious medical problems. These chemicals are found to bioaccumulate and stay for years in human tissue and blood.
According to the U.S. Centers for Disease Control and Prevention, PFAS are now detectable at low levels in the blood of virtually everyone. PFOA was found in the blood of every person tested in the United States, where PFAS contaminates the drinking water of about 19 million people in 43 states.
Most PFAS studies are done in continental U.S., leaving Guam outside of the radar. “The people of Guam deserve to know the full extent to which our island and our families may have been affected by these harmful chemicals,” Vice Speaker Telena Nelson said.
The Centers for Disease Control and Prevention, the Agency for Toxic Substances and Disease Registry and the Department of Defense are preparing to conduct a health study in multiple U.S. sites to learn more about the health effects of exposure to PFAS. Nelson has filed a legislative resolution, requesting the federal agencies to include Guam among the eight study sites.
“The public health risks raised by the prolonged presence of these chemicals are deeply concerning to our community and the many families stricken by health issues, such as thyroid disease and cancer,” Nelson said. “We look forward to the Department of Defense providing answers to our people and acting on our contaminated water wells.”
At the informational hearing held by the Guam Legislature on July 25, environmental officials and activists disclosed that there is still no federal standards for safety levels of PFAS in drinking waters.
Walter Leon Guerrero, administrator of the Guam Environmental Protection Agency, told the senators that the agency does not have the technical expertise to determine a maximum contaminant level. “At the end of 2020, USEPA must move forward with its regulatory determination which is basically a go or no-go decision by the administrator of the United States EPA on whether to regulate PFOS and PFAS components, Leon Guerrero said.
According to USEPA’s website, researchers are developing analytical chemistry methods to detect and quantify PFAS. Data are being assessed on chemical toxicity and environmental exposures for PFAS of highest concern. The agency’s goal is to find the effectiveness and cost of different technologies for treating or removing PFAS in drinking water and contaminated sites.
The military knew
The Environmental Working Group pointed to the military as “one of the primary sources of PFAS contamination in drinking water.”
EWG, an American activist group that specializes in research on toxic chemicals, drinking water pollutants and corporate accountability, found an internal memo from the Department of Defense indicating that the military had known since 2000 that PFOS was “persistent, bioaccumulating and toxic.”
Curtis Bowling, assistant deputy undersecretary of Defense, stated in the memo that “PFOS has been found in the blood of general U.S. population and wildlife and in people overseas.”
Yet, EWG said, “the department waited another decade to issue a risk alert.”
The Government Accountability Office said the Navy authored the military specification for firefighting foam. Defense officials told GAO that there was no PFAS-free firefighting foam that could meet DOD’s “performance and compatibility requirements.”
“As a result, the Navy had no plans to remove the requirement for firefighting foam to contain PFAS,” GAO said in a March 2019 report.
DOD told the U.S. Congress last year that its military specification for firefighting foam was amended to set a maximum level of PFOS and PFOA (800 parts per billion). “The DOD officials also said that 800 parts per billion is the lowest level of PFOS and PFOA that can be detected in firefighting foam concentrate by current testing methods and technologies, but DOD is working with foam manufacturers and laboratories to achieve lower detection limits,” GAO said.
DOD, however, reiterated that no commercially available PFAS-free foam has met the performance requirements of the military specification.
The National Defense Authorization Act of 2020 passed by the U.S. Senate contains a list of critical PFAS monitoring and cleanup provisions. The bill requires the Pentagon to phase out the use of PFAS-based firefighting foam by 2023 and require military facilities to meet state cleanup standards. The House version of HR 2500 would to designate PFAS as “hazardous substances” under CERCLA, the Superfund law.
Poison island
On Guam, PFAS is just the tip of iceberg. The use of Agent Orange at military installations remains an unresolved issue. At Coco’s Lagoon, more federal investigation is being conducted to analyze the level of polychlorinated biphenyls or PCBs presence in this site.
In 2005, Dr. Luis Szyfres, former University of Guam professor, warned that the island is filled with all sorts of toxic chemicals — remnants from the war — that caused the abnormal rate of cancer prevalence on Guam. Citing studies by the Agency for Toxic Substances and Disease Registry and the USEPA, Szyfres said toxic chemicals found on Guam included aluminum, barium, antimony, arsenic, cadmium, copper, chromium, lead, manganese, unspecified metals, nickel, pesticides, polychlorinated biphenyls or PCBs, polycyclic aromatic hydrocarbons, selenium, silver, thallium, tetrachloro dibenzeno dioxins, total petroleum hydrocarbons, vanadium, volatile organic compounds, trichloroethylene, benzene, toluene, ethyl benzene, xylenes, and semi-volatile organic compounds and zinc.
Szyfrez submitted the report to UOG but it was rejected. He left Guam in 2006 after being fired from his job at the university.
Besides the yet-to-be-filed PFAS case, Guam has an ongoing lawsuit against the U.S. Navy under the Comprehensive Environmental Response Compensation and Liability Act over the contamination of the now-closed Ordot Dump and its surrounding areas. Federal Judge Ketanji Jackson of the District Court of Columbia upheld Guam’s lawsuit last year.
In the PFAS case, the Pentagon has acknowledged that it is facing a global bill of at least $2 bullion to clean up groundwater and drinking wells contaminated by years of seepage from the military’s firefighting foams.
On Guam, Carlina Charfauros, spokeswoman for the Office of the Attorney General, said, “At this time, litigation is focused on companies that produced and manufactured PFAS products.”
The PFAS litigation team includes Kelley Drye & Warren LLP, which represents Guam in the CERLA lawsuit. They are joined by Taft Stettiniuis & Hollister LLP, Kennedy & Madonna, LLP, Douglas & London, P.C., SL Environmental Law Group PC, and Levin Papantonio Thomas Mitchell Rafferty & Proctor.
“The PFAS litigation team brings expertise that includes acting as lead counsel in the first PFAS exposure case filed in 1999, involvement in complex multidistrict litigations such as deepwater Horizon oil spill in the Gulf, and recovering billions of dollars in settlements on behalf of states through environmental litigation,” according to OAG.