By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — The town of Marana is suing the federal government, claiming “forever chemicals” from Davis-Monthan Air Force Base are contaminating its water supply.

Attorneys for the town want the government to pay past, present and future damages causing by “ongoing contamination of plaintiff’s drinking water supply with per- and polyfluoroalkyl-based substances disposed of at, or otherwise released” at the base in Tucson.

“DMAFB has taken no action to stop or even mitigate the ongoing migration of its PFAs contamination into plaintiff’s water supply, nor has agreed to pay for, reimburse, or otherwise offer to share any of the monetary damages incurred by plaintiff in response to the contamination,” the lawsuit reads.

This isn’t the first litigation in Arizona over what are known as PFAs which are considered a cause of cancer.

They were used for decades in everything from nonstick cookware to stain-resistant fabrics. More to the point as to the Air Force, they also were found in some firefighting foams.

Last year Attorney General Kris Mayes sued several major companies for producing and selling the chemicals, saying the knew or should have know are hazardous.

That lawsuit, now pending in federal court, says the state Department of Environmental Quality has detected these compounds in groundwater near Davis-Monthan and in both groundwater and drinking water supplies at several locations across the state. But to date the state has not sued the federal government for investigation and remediation costs.

Several communities have filed their own legal actions against manufacturers, including Tucson, Marana and Gilbert.

But this lawsuit is different — and apparently the first of its kind in Arizona over the issue of PFAs. Marana is going the extra step of demanding compensation not just from the companies that made the chemicals but also from the Air Force for using them at Davis-Monthan, something it began doing in the 1970s to extinguish fuel-based fires.

Erik Montague, the deputy town manager, told Capitol Media Services such a move is necessary.

He said Marana already has spent $16 million for two treatment plants operating to remove the chemicals from the water supply. But that, said Montague, is likely only the beginning as the U.S. Environmental Protection Agency is setting the maximum contaminant levels for these chemicals at 4 parts per trillion; the lawsuit says multiple city wells are testing far above that.

It starts, he said, with the fact the community has only about 60,000 people.

“We have a very daunting task ahead of us with tens of millions of dollars that are likely going to need to be spent over the upcoming decade or more to comply with the new regulations,” Montague said.

“We’re obligated to find money to solve a problem that we didn’t create,” he said. “And we’re going to look to pursue, by any means we can get, some recovery from responsible parties.”

Strictly speaking, a successful lawsuit would need to show not only that there are PFAs in town wells but also trace the source back to Davis-Monthan. Montague said he believes the evidence is there to support that conclusion.

He said there is a record of the use of “aqueous fire fighting foams” containing the chemicals at the base for years. The Air Force itself admitted in 2018 it had been using them until just the prior year.

Add to that the fact the chemicals showed up in high concentrations in and around the base itself. In essence, what Montague is saying is there is no other possible source for what Marana is now finding in its wells.
There was no immediate response from the federal government to the litigation.

But the Air Force has taken a hard-line stance in other efforts by the EPA to force some immediate action.

In May, EPA issued a “Unilateral Administrative Order” to both the Air Force and the Air National Guard, which is stationed at Tucson International Airport, saying they have to come up with a plan within 60 days to deal with the pollution problem in the Tucson area.

A month later, however, the U.S. Supreme Court struck down what is known as the “Chevron deference.” That precedent had said courts generally have to defer to agencies when interpreting their regulations.

The result was a letter from attorneys for the Air Force back to the EPA.
“In this respect, the Supreme Court’s recent decision ... makes clear that EPA’s interpretation of these statutory terms is not entitled to deference,” they wrote. “The EPA will not have the benefit of any ‘Chevron deference’ in any such proceeding.”

Still, the Air Force said it remains committed to conducting a cleanup under the Comprehensive Environmental Response, Compensation and Liability Act, more commonly known as Superfund.

But it argued there is no need for that EPA order because there is no immediate threat to drinking water supplies. And the Air Force said what the EPA had ordered “will not and cannot result in the elimination of PFAs contamination” from the aquifer any faster than the existing process.

The new Marana lawsuit takes a different approach than federal laws and regulations. It relies not on legal theories under federal law about responsibility for pollution and how fast it can or should be cleaned up but instead on what are more common types of litigation that can be filed by those who believe they have been injured by someone else’s action.

One is the claim that the actions of Davis-Monthan constitute a nuisance.

“Plaintiff was supplying what it believed to be a clean, safe, potable source of water when it was discovered that PFAs contamination originating from DMAFB had migrated to plaintiff’s water supply at concentrations exceeding applicable federal and state drinking water standards and health advisory levels,” the town claims. More to the point, the lawsuit claims the base not only knew of the problem but “consciously disregarded a known risk that the contamination had already migrated off-site and into plaintiff’s water supply or that such risk was imminent.”

The town alleges Davis-Monthan “knowingly and deliberately” failed to remove the PFAs from the soil and groundwater underneath its property and failed to halt migration of the chemicals. All that, the lawsuit says, interfered with common-law rights of residents and business to a safe source of drinking water, creating an “ongoing public nuisance.”

Marana’s lawyers also say the migration of the chemicals constitute illegal trespass against the town’s wells. And, in a third legal theory, they say the government had a “duty to warn” the town of the releases of PFAs and other toxic chemicals.

The lawyers say what makes the chemicals so dangerous — and why they are called “forever chemicals” — is that their structure makes them “resistant to breakdown or environmental degradation.”

They also “bioaccumulate,” the lawsuit says, remaining in the body for years.

While the Marana litigation against Davis-Monthan appears to be unique, a spokesman for Mayes said her office is weighing whether to file similar litigation against the federal government for the damages caused by pollution from PFAs.