“Forever Chemicals” in Arizona: Why the State Should be Concerned About PFAS and What to Do About it

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Lauren Swol is a 2nd year JD student at the University of Arizona James E. Rogers College of Law. Any opinions are the author's and not attributable to the University of Arizona.

1. What are PFAS?

Per- and Polyfluoroalkyl substances (“PFAS”) are a class of man-made chemicals that have been manufactured and used around the globe since their invention in the 1940’s.  Due to their flurosurfactant properties, PFAS are an important substance in reducing surface friction. Commercial applications for PFAS include manufacturing stain repellant clothing, food packaging, and nonstick cookware. In addition, PFAS is an important ingredient in firefighting foam, otherwise known as aqueous film-forming foam (“AFFF”). AFFFs were introduced in the 1960’s through a partnership with the 3M company and the Navy to be used for firefighting on military bases.

The widespread use of PFAS around the globe is cause for environmental concern because the perfluorocarbon molecules do not degrade in the natural environment. It is because of their persistence that PFAS have been called “forever chemicals.” PFAS are also highly mobile in water, soil, and air, and tend to bioaccumulate in plants and animal products.  All of these factors contribute to an overall high exposure level for humans globally.

The toxicity of PFAS was known as early as 1956, when scientists discovered that PFAS binds to proteins in human blood. One of the first studies of PFAS in the human body, conducted by DuPont in 1962, discovered that PFAS ingested through inhalation was very dangerous to human health. In the early 2000’s, human health surveys about the impacts of PFAS on the human body began as part of a class-action lawsuit against DuPont. For eight years, the C8 Science Panel collected samples and health surveys from the Mid.-Ohio Valley, before publishing their findings on probable health risks of PFAS exposure.  The C8 Science Panel found probable links between PFAS exposure and heart disease, ulcerative colitis, thyroid disease, certain types of cancer, and pregnancy-induced hypertension.  Other studies have concluded that PFAS exposure in-utero can lead to Celiac Disease, type 1 diabetes, and reproductive issues in both males and females.

Despite knowledge of the toxicity of these chemicals, PFAS products and AFFF remained widely popular across the country. In 2001, Federal Aviation Administration (FAA) required that airport operators “regularly train with… and test their fire-fighting equipment by discharging foam containing PFAS… into the ground.”  That mandate has since been repealed by the FAA Reauthorization Act of 2018, but FAA has stated that there are no current alternatives to AFFF.  In conjunction with airports, military bases are some of the contributors of PFAS releases into air, soil, and water.

2. PFAS Contamination in Arizona

At the time of this writing, there are four Superfund sites in Arizona that the EPA has identified as having PFAS contamination: Luke Air Force Base (“LAFB”), the former Williams Air Force Base (“WAFB”), the Tucson International Airport Area (“TIAA”), and the Marine Air Corps Station Yuma (“MCASY”). Superfund sites are those in which the EPA has identified significant risks to human health and allocated funds and authority to remove the hazardous substances. Superfund sites are authorized by the Comprehensive Environmental Response, Compensation, and Liability act (“CERCLA”), which was enacted by Congress in 1980.

LAFB consists of approximately 4,198 acres of land in the Phoenix area.  In 2017, the EPA began an investigation into PFAS contamination associated with the release of AFFF. This investigation is ongoing; however, a 2015 report reveals that the base acknowledges its water supply may be compromised due to significant releases of AFFF over the years.  The base has reported the use of AFFF in 13 different emergency response scenarios since the 1970’s. Each time there was an AFFF release, the base used between five and 100 gallons of the substance. Testing of the water on LAFB revealed that PFAS contamination has spread into both the surface water and the groundwater, but not the drinking water.  In addition, LAFB officials do not yet know exactly how far the PFAS has spread. LAFB has not yet released their plans for PFAS cleanup on the base, but has committed to providing drinking water if high levels of PFAS are found in water outside of the base.

WAFB consists of approximately 4,043 acres of land in Mesa.  In 1989, WAFB was placed on the Superfund National Priority list for groundwater contamination that did not, at that time, include PFAS. In 2018, a study identified that PFAS was an additional groundwater issue in the WAFB landfill.  In addition, the Air Force is conducting groundwater sampling related to AFFF releases on former fire training sites. PFAS have also been detected in the groundwater at a Fuel Spills Site and a cleanup area near the fire station. Though WAFB is already undergoing Superfund cleanup, agencies have not yet released a plan specifically related to PFAS cleanup.

TIAA is a vast expanse of acreage in Tucson that consists of seven project sites: Air Force Plant 44, Tucson Airport Remediation Project, the Airport Property, the 162nd Fighter Wing Arizona Air National Guard facility, Texas Instruments, Inc., the former West-Cap property, and West Plume B.  In 1983 TIAA was placed on the Superfund National Priority List over concerns of toxic chemicals and heavy metals in the groundwater. Like LAFB and WAFB, TIAA has had groundwater sampling done to assess PFAS contamination. PFAS has been detected in several wells across the area. The base shares a water source with the City of Tucson, and Tucson Water is taking precautions to remove PFAS from the water supply. In addition, Tucson Water now diverts approximately 80% of the city’s overall water supply from the Colorado River.  On the base itself, the EPA has not yet released any plans on how the PFAS will be removed.

MCASY occupies about 4,800 acres within the city of Yuma. It was added to the National Priority List in 1990 for concerns of toxic materials in the groundwater and soil. PFAS sampling at MCASY was done in 2016 and again in 2018 at several locations on the property. Those studies revealed seven different wells on the property that had combined PFAS concentration above the safe limit designated by the EPA. Soil sampling was also conducted in 2019, after a preliminary assessment revealed that AFFF had been released in thirteen locations on the property. PFAS was reported in all 55 soil samples collected; however, only one soil sample was reported to contain PFAS above the EPA limit. Although the reports suggest that the groundwater PFAS pathways are potentially complete for human receptors, research into the extent of the PFAS contamination at MCASY is ongoing. As of the time of this writing, MCASY has not released a plan to remediate the PFAS.

3. Lack of Federal Cleanup Support

            CERCLA is a statutory scheme that allows the federal government to remediate environmental releases of hazardous materials.  Instead of laying out specific plans for hazard cleanup, “CERCLA requires that response actions under the Superfund program protect public health and the environment, and normally comply with federal laws and regulations that constitute ‘applicable or relevant and appropriate requirements (ARAR).’” If PFAS is regulated under CERCLA, it could create remediation liability for areas that have released AFFF.[1] In order to do this, EPA must designate PFAS and AFFF as a “hazardous substance.” Thus, the PFAS cleanup of the four Arizona sites cannot commence under federal law until PFAS is listed as a hazardous substance.

4. What the State Can Do

Currently, Arizona is working on testing and screening water supplies to understand the pervasiveness of PFAS in drinking water.  ADEQ reports that approximately 94 percent of public water systems testing since 2018 either have no detectable PFAS contamination, or have traces of PFAS that are less than the EPA’s lifetime health advisory limits.  Those water systems that have higher concentrations of PFAS are voluntarily working with ADEQ to reduce exposure to customers. In addition, Tucson Water has closed wells that have concentrations of PFAS that are above EPA’s lifetime health advisory limits. ADEQ has already dedicated funds to capture PFAS in groundwater to prevent it from impacting additional drinking water production wells. Though state money has already been allocated for PFAS cleanup in both Tucson and Marana, the funding sources for future cleanup is unknown.  The city of Marana has been given a $16 million dollar loan to use in PFAS cleanup, though it is unclear how the city will pay back that money.

While ADEQ’s current work is helpful in protecting consumers from PFAS exposure, it is inadequate for dealing with PFAS contamination at superfund sites. Without State action, cleanup at superfund sites will be impossible until the federal government regulates PFAS under CERCLA.

Other states have already taken action to address PFAS. For example, at least three states have implemented or proposed maximum containment levels for PFAS.[2] Four other states, including Arizona’s eastern neighbor, California, have committed to establishing PFAS standards. Wisconsin has developed and released a statewide PFAS action plan that addresses many areas of concern. The action plan has a focus on testing and research, but also advocates for forming a formal working group with the federal Department of Defense to clean up military bases.  In addition, the plan provides funding for local governments to remediate PFAS contamination. New York has similarly taken action against PFAS contamination. The state has banned PFAS materials in food packaging and has banned PFAS incineration.  New York is also the first state to designate PFAS as a hazardous substance.

Taking a cue from other states, Arizona should similarly take statutory and regulatory action against PFAS. One way the state could do this is through the allocation of grants to local governments that would allow them to remediate PFAS contamination, as has been done in Wisconsin. The development of a PFAS action plan, as Wisconsin has developed, could provide the State with a framework that will prioritize state action on PFAS contamination, rather than waiting on the federal government to initiate PFAS cleanup. The State should also set its own health advisory limits, as three states have already done. The legislature could amend existing water quality standards to account for PFAS contamination above the State’s advisory levels and regulate cleanup under a statutory scheme.