Testing Confirms PFAS in Drinking Water at Military Bases Across US

The Department of Defense (“DoD”) last week published its first set of Per- and Polyfluoroalkyl (“PFAS”) testing data pursuant to new public disclosure requirements under Section 345 of the National Defense Authorization Act for Fiscal Year 2022 (“FY22 NDAA”). DoD released data showing PFAS in drinking water at sites in Washington, Pennsylvania, Michigan, Florida, Virginia, and Montana, after recently producing guidance implementing its Section 345 testing transparency requirements. The data demonstrates that PFAS contamination at tested sites greatly exceeds federal and certain state levels.

DoD revealed the following data for sites exceeding federal advisory guidelines for PFOA and PFOS[i]:

Testing at the sites in Washington, Florida, Michigan, and Pennsylvania, reveals PFAS levels that exceed current EPA health advisory levels of 70ppt,[ii] and certain enforceable state levels. The State of Washington sets state action levels at 10ppt for PFOA and 15 for PFOS.[iii] The State of Michigan set its standards at 8ppt for PFOA and 16ppt for PFOS.[iv] The State of Pennsylvania also recently proposed enforceable standards at 14ppt for PFOA and 18ppt for PFOS.[v]

DoD will continue to provide updates to its new publicly available Section 345 data page that can be found here.

DoD’s Section 345 Guidance

The disclosed data comes after DoD implemented two policies on April 26, 2022, directing Section 345’s testing and disclosure requirements.[vi] The guidance obligates DoD to publicly disclose a final drinking water test result for PFAS in a covered area.[vii] The guidance also addresses the requirement that DoD provide local notification before any testing of PFAS occurs at a military or military-adjacent facility.[viii]

DoD components must continue to publish the final test results received between December 27, 2021, and April 26, 2022, for public access.[ix] Further, DoD must also provide a monthly summary of completed PFAS sampling on the fifth day of the following month.[x] DoD is required to disclose which military component conducted the test, the specific installation, laboratory sample and date, sample method, and final result.[xi] DoD must update its database within seven days of receipt of final test results that occur after April 26, 2022.[xii]

The new policy also requires that, before conducting any testing, DoD provide testing notice to the managers of the public water system, heads of the municipal government serving the area where testing is set to occur, and members of a restoration advisory board for the impacted military installation, if applicable. A policy addressing the requirements for public notice of planned testing is forthcoming.[xiii]

Implications

By publishing this data, DoD has taken the first step in fulfilling its requirement to provide PFAS test results to the public. The initial set of data reveals that concentrations of PFAS at tested sites is much higher than previously revealed, and in certain circumstances, above state action levels, which will require immediate action. Continued testing will also likely generate additional funding needs beyond the already $500 million allotted to PFAS testing in the FY22 NDAA. The public will now have access to testing data that is critical in understanding how military-adjacent communities are impacted by PFAS contamination.

Marten Law will continue to monitor and provide updates on DoD’s public disclosure of test results.

For more information about Marten’s PFAS practice, please contact practice leads Jeff Kray or Jess Ferrell.

[i] DoD also released data for Fort Williams Henry Harrison in Montana and Naval Air Station Oceana in Virginia that are lower than the federal health advisory of 70ppt.

[ii] The State of Florida, follows the EPA Health Advisory Guidelines of 70ppt. see DEP’s Efforts to Address PFAS in the Environment, Florida Department of Environmental Protection, https://floridadep.gov/waste/waste-cleanup/content/dep%E2%80%99s-efforts-address-pfas-environment.

[iii] PFAS, Washington State Department of Health, https://doh.wa.gov/community-and-environment/contaminants/pfas.

[iv] PFAS MCLs and Drinking Water, Michigan Department of Environment, Great Lakes, and Energy, https://www.michigan.gov/pfasr...

[v] DEP Proposal to Set Stricter PFAS Limits Approved by Environmental Quality Board, DEP Newsroom, https://www.ahs.dep.pa.gov/New... (Nov. 16, 2021).

[vi] Department of Defense: Public Disclosure of Department of Defense Testing Results of Per- and Polyfluroalkyl Substances in Drinking Water Within a Covered Area, Office of the Secretary of Defense (April 26, 2022).

[vii]Id.

[viii]Id.

[ix]Id.

[x]Id.

[xi]Id.

[xii]Id.

[xiii]Id.