Councilman wants to sue Department of Defense and Air National Guard over PFAS groundwater contamination and ban class of firefighting foams

Councilman Steve Kozachik urged the City Council to take a hard line against the Arizona State Air National Guard and the Department of Defense by initiating litigation over PFAS contamination in the Tucson groundwater system at yesterday’s study session. He also moved the council to establish a local ordinance banning the use and disposal of PFASs within city limits and urging, if not requiring, current users of aqueous film-forming foams to adopt the use of fluorine-free foams instead.

The council unanimously agreed with Kozachik’s motion for Principal Assistant City Attorney Chris Avery to begin researching the drafting of such an ordinance, but his motion to initiate a lawsuit against the state and DOD was reserved until after the council meets in a future executive session in January.

Avery’s future findings, and perhaps a draft ordinance, are slated for discussion at the first study session in February.

Tucson Water Director Tim Thomure updated the council on PFAS contamination, an acronym for perfluoroalkyl substances, and told the council Tucson Water is treating deliverable water contaminated with PFAS to levels that are “mostly zero everywhere” and has shutdown contaminated wells where there currently is no treatment option.

Thomure assured the council that all water currently delivered by the water utility to residents is safe and the water utility has adopted strict target concentrations for five PFASs – PFOS, PFOA, PFHxS, PFHxA and PFPS – relative to other states across the nation.

“Those are our targets, the water is always below those targets, therefore it is safe,” Thomure said.

However, concern remains for private well owners who are in the vicinity of known PFAS contamination such as in the areas to the east end of the Tucson International Airport property known as “West Plume B.” Any well owners who have not had their wells tested are encouraged to contact the Arizona Department of Environmental Quality’s Tucson office at 628-6733.

Thomure outlined the “future threat” of PFAS encroaching on Tucson’s central wellfield with a map illustrating how the substances appear to be “moving downgradient” and indicated the water utility is working on preventing the substances from further contaminating groundwater wells but did not provide any specific actions, aside of detection, being taken at this time.

Map provided by Tucson Water

PFASs have been found “at wells in northwest Tucson, in the vicinity of Davis-Monthan Air Force Base (DMAFB), in the TARP well field, and some wells associated with the Reclaimed Water System,” according to the Tucson Water website.

A report by local environmental reporter Tony Davis also found “extensive” PFAS contamination under the state air base.

The Tucson Area Remediation Project (TARP) treatment plant, located just north of Irvington Road and west of Interstate 19, is currently the only treatment operation equipped to clean water of PFASs and was originally built to remediate historic TCE contamination in the 1990s from the Tucson International Airport Area Superfund site.

The facility was later upgraded to treat 1,4-dioxane discovered in the area groundwater and included the use of granular activated carbon vessels, which now also treat for PFASs.

Ironically, in 1995 Tucsonans voted for Proposition 200 which directed water treated at the TARP facility to be recharged into the ground rather than delivered to residents, but an EPA consent decree mandated the TARP water be delivered to homes and overrode the will of Tucson voters.

The question of how long PFASs might have been in the mix at the TIAA area went unanswered by the water utility in a September 25, 2018, response-email to a TDSN reporter.

The water utility spokesperson responded at the time, “Water quality sampling in 2014 and 2015 of the influent (contaminated water coming into the plant) and effluent (treated water leaving the plant) at TARP indicated non-detectable levels. Our first detection of PFC’s there was in 2016.”

However, five days later Davis reported the sampling point the water utility had been testing was in fact not connected to the treatment plant.

Since that time the water utility has gone to great efforts to assure the public and city officials that PFAS detection and remediation remains a top priority by increasing transparency and attention to the issue. And the city joined a class-action lawsuit against 3M and other defendants that is on-going and currently taking place in South Carolina.

3M is one of the larger manufacturers of PFAS products including aqueous film-forming foams and is currently involved in a number of class actions across the U.S. including another lawsuit where they are co-defendants with DowDuPont and Chemours, also known to be manufacturers of PFAS products.

Environmental Working Group alleged in a September 2019 post that, “As early as the 1950s, 3M’s own studies showed that PFAS chemicals built up in blood, and by the 1960s, 3M’s own animal studies showed the potential for harm. Yet 3M continued to produce PFAS chemicals without notifying its employees of the risks,” in response to claims made by 3M on its “pfasfacts” website.  

Though two PFASs, PFOS and PFOA, are no longer used in the U.S. or Europe EWG estimates there are over 5,000 other PFASs in use today.

At yesterday’s meeting Thomure said Tucson could become a bellwether litigant in the 3M lawsuit. Bellwether trials are used in complicated mass tort cases such as class actions where there are potentially thousands of litigants and act as a sort of test-case for all the other cases.

The city is suing 3M in pursuit of damages to pay for expenses incurred for the detection, analysis and treatment of PFASs, read the original complaint.

But the question of how long PFASs have been in Tucson’s water system remains vital to understanding how the health of residents may have been impacted by past exposure to the detected substances.

Ward 2 Councilman Paul Cunningham asked if residents who may have been affected by PFAS exposure can join the lawsuit against 3M, perhaps to file an amicus brief, and Avery said any residents would have to file in federal court but did not elaborate any further.

A science panel that conducted health impact studies in West Virginia related to a different PFAS class action for medical monitoring, Leach et al. v. E. I. Du Pont De Nemours and Company, found a probable link between PFOA, also known as C-8, and the following diseases: kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pregnancy induced hypertension (including preeclampsia), and hypercholesterolemia. The panel ruled out a number of other diseases as having probable links, but this was only for PFOA.

Robert Jaramillo, a retired Sunnyside High School teacher and leader of Las Aguas, a community organization concerned with water contamination on Tucson’s southside, attended the study session and was recognized by the council for his group’s work in the community.

Jaramillo mentioned he’s been waiting since March to hear back from Dr. Francisco Garcia, director of the Pima County Health Department, regarding research into PFAS impacts in the community. Jaramillo said the county had been awarded a $1.2 million grant.

TDSN attempted to contact the PCHD about this research and confirm it had in fact received the grant but has not received a response by the time of publication.

Stay tuned as TDSN will continue to track developments related to PFAS contamination.