Three Non-Profit Environmental Organizations File Lawsuit Against U.S. Department of Defense for Burning Toxic Chemicals With “PFAS”

According to the suit, the case challenges the U.S. Department of Defense’s failure to conduct an environmental review and to comply with applicable environmental requirements before approving the incineration of millions of gallons of toxic firefighting foam. Photo: wellphoto / Adobe Stock.

ALBANY, N.Y. – The Pentagon is being sued for quietly contracting to burn millions of gallons of foam containing toxic chemicals at incinerators around the country, including New York.

The unused firefighting foam contains PFAS, a class of chemicals now so persistent in the environment they’re called “forever chemicals.” PFAS, which has been found in the drinking water in Hoosick Falls and Newburgh, New York, has been linked to a number of serious health conditions, including cancer.

According to Jonathan Kalmuss-Katz, a staff attorney at the environmental law firm Earthjustice, the incineration has already begun.

“This was shipped to the Norlite kiln in Cohoes,” says Kalmuss-Katz. “But there was no public announcement, no local awareness, and even (the Department of Environmental Conservation) and (the Environmental Protection Agency) were kept in the dark.”

The lawsuit charges that the incineration violates the National Environmental Policy Act or NEPA, and the National Defense Authorization Act.

Kalmuss-Katz notes that NEPA requires federal agencies to examine the environmental consequences of their actions before approving them, as well as public disclosure of any environmental or health impacts.

“Here, there was no NEPA review,” says Kalmuss-Katz. “DOD rushed into these contracts without looking at the impacts on the surrounding communities, and really put large amounts of people at risk without ever considering the chemicals they were going to be exposed to.”

He adds that the National Defense Authorization Act contains a specific provision regulating the incineration of PFAS.

Facing lawsuits and potentially billions in liability for releases of PFAS in firefighting foams used at bases around the country, the Department of Defense chose to incinerate its unused stock. But as Kalmuss-Katz points out, PFAS was used in the foam precisely because it doesn’t burn.

“When you send that foam to the incinerator, you not only end up with the risk of PFAS coming out of the stack, but also hazardous chemicals that are produced by incomplete combustion,” says Kalmuss-Katz. “So, it poses a serious threat to the surrounding community.”

The lawsuit asks the court to annul the contracts for incinerating PFAS and to require the DOD to conduct the environmental studies it should have done before burning the chemicals.

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