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Clouds of black smoke erupt from a jet fuel-powered blaze at a commercial airport. The high-hazard, intense liquid fire cannot be put out with water alone-like a grease fire in your kitchen, it must be smothered. Firefighters are called to administer a fire suppressant foam that is resilient to heat, pressure, and oxidation. The foamy substance quickly covers the fuel source feeding the inferno and forms a blanket preventing oxygen from reigniting the flames. The emergency is contained, and as firefighters hose down the site, the fuel, water, and foam mix together. Some of this watery discharge is diverted to a holding tank and will be collected, treated, and sent to a disposal facility, while some spills onto a nearby field and soaks into the soil. The liquid percolates into the groundwater, which is later pulled up by wells for drinking water.
A similar scene could occur at a petroleum refinery, military base, chemical plant, or fire training academy-anywhere that Aqueous Film Forming Foam (AFFF) is used. Incredibly effective at containing and extinguishing hazardous fires, AFFF contains fluorine chemicals collectively referred to as per- and polyfluoroalkyl substances (PFAS), which present a variety of risks to human health and the environment.
While PFAS are sometimes referred to as "emerging contaminants," they have been used for over 70 years, and approaches to mitigate their risks have been topics of discussion and litigation for decades. The U.S. Environmental Protection Agency (EPA) launched a PFAS stewardship program in 2006, and one of the first PFAS lawsuits was filed in 1999. Tennant v. DuPont. No. 6:99-cv-00488 (S.D.W. Va., filed June 11, 1999). Given their wide use since the 1970s, the exact volume of watery PFAS-laden foam that has entered groundwater is difficult to ascertain. One group's recent search of EPA's National Response Center database found nearly 900 documented spills or usage reports of AFFF entering waterways since 1990, with the amount exceeding 800,000 gallons. Env't Working Grp., EPA Data Show Almost 900 "Forever Chemical" Foam Releases, Many into Local Waterways (Mar. 22, 2022).
Fast forward to 2022, and thousands of cases involving AFFF-contaminated groundwater have been consolidated into a multidistrict litigation (MDL). They involve diverse plaintiffs, including water providers, states, and residents, as well as a wide variety of defendants,...