The military is running away from its legacy of PFAS-contaminated water.
By Jessica A. Knoblauch
When Hope Grosse’s daughter was five years old, a dental X-ray showed her entire set of adult teeth were missing. There were just holes where there should be new teeth. After her daughter got dentures, she would often call Grosse from school, sobbing. One of her fake teeth had chipped or broken, again, and the kids started asking questions.
“I’d pick her up for half days all the time,” says Grosse. “I felt horrible because there wasn’t much I could do to make it better.”
This wasn’t the worst health issue facing Grosse’s family members. Some were diagnosed with skin cancer, ovarian cysts, Lupus, brain cancer, rare tumors, fibromyalgia. Even the family dogs died of cancer — all six of them.
For years, Grosse felt trapped with fear and uncertainty over what was causing her family’s illnesses. Then, scientists learned that the nearby military base in Warminster, Pennsylvania, had leaked toxic chemicals into the local groundwater. Among them were chemicals called PFAS, often referred to as “forever chemicals.” Soon there came more revelations. The chemical industry had kept secret for decades that PFAS are toxic to both people and the environment. And the illnesses weren’t just hitting Grosse’s family, but her community, other military base communities, and many more places across the country. According to a 2018 report, the drinking water of up to 110 million Americans could be contaminated with unsafe levels of PFAS.
Then Grosse — along with other affected families and state and local officials nationwide — came to one of the cruelest realizations of all: Her own government is actively trying to bar people who have been exposed to PFAS from seeking justice through the U.S. legal system.
With the help of Earthjustice, Grosse is fighting to make sure that justice is served.
PFAS, the Forever Chemical
PFAS, short for per- and polyfluoroalkyl substances, are a group of man-made, highly persistent chemicals known for their ability to repel water, grease, and stains. Most people are familiar with PFAS’ nonstick coating application, known under the brand name Teflon. But waterproof jackets, carpets, and even personal-care products like mascara can also contain PFAS.
The ubiquity of PFAS in everyday products has resulted in 95 percent of the U.S. population having some PFAS in their blood, according to the Centers for Disease Control and Prevention.
Far more concentrated exposure is happening around U.S. military bases. In the 1960s, officials patented and then began requiring that a firefighting foam containing PFAS be used in training exercises at hundreds of bases around the country. Commercial airports, of which there are hundreds, were also legally required to use foam containing PFAS up until 2018, when Congress eliminated the requirement.
Despite PFAS’ widespread use, only recently have independent researchers begun to uncover their harmful effects, linking PFAS to a wide range of health problems, including several types of cancer. Chemical companies have also since replaced older PFAS with newer versions, which early studies show act similarly and may be just as dangerous.
The more that scientists research PFAS, the more dangerous they seem. Over the past decade, the EPA has ratcheted down the level at which it considers PFAS in drinking water “safe” from a whopping 400 parts per trillion to 70 parts per trillion.
In 2018, the Department of Health and Human Services recommended that the current safe threshold should even be seven to 11 times lower. And although the EPA has issued a health advisory regarding the supposedly “safe” level of PFAS in drinking water, it has yet to set an enforceable limit.
“This is getting to be like lead,” says Earthjustice attorney Suzanne Novak, who is leading the PFAS litigation. “The more we learn about these chemicals, the more we’re seeing that they’re dangerous at even very low levels.”
A Toxic Government Conspiracy
Warminster, Pennsylvania, is a traditional American suburb complete with modest single-family homes, white picket fences, and shady oak trees lining wide, sleepy streets. Located just north of Philadelphia, it began as a small farming community in the late 1600s. During World War II, it became home to a military base where personnel tested weapons, airplanes, and space technology.
Growing up in Warminster, Grosse would spend hours outside with her neighbors and siblings, playing in the streets until the skies darkened. Once or twice a week, the Navy would perform fire drills at its base across the street, and Grosse remembers running up to the chain link fence surrounding the base to watch the action with her friends. With pudgy hands pressed against metal and eyes opened wide, they’d shriek as firefighting personnel blew the siren and then drenched the burning planes in foam. Sometimes, firefighters would even hose them with it.
“As a kid, it was awesome,” says Grosse.
At the time, the kids and their parents had no idea that the foam contained hazardous chemicals. In addition to PFAS, the military bases in both Warminster and nearby Horsham used a number of other toxic chemicals that would also leach into the groundwater of the surrounding communities. Every time that Grosse’s family turned on the tap to brush their teeth, to bathe, to mix the baby formula, they ingested toxic chemicals.
“You think you’re drinking good water and that you’re safe,” says Grosse. “Instead, the government’s been poisoning you.”
In her early 20s, Grosse discovered a spot on her ankle that turned out to be a rare tumor that a doctor later removed. A few years later, her dad died from brain cancer at the age of 50. Three months after that, at age 25, Grosse was diagnosed with stage 4 melanoma, the most serious form of skin cancer, which had spread into her lymph nodes and into her blood. During her treatment, doctors also removed several rare tumors from her body.
In addition to her own illness, Grosse learned of several neighbors and friends who had also become ill over the years. One day, she met a woman who worked at the county health department who mentioned that her office had a huge local map with “little dots of all the people who have died over the years.” Around the same time, the Warminster naval base was named a Superfund site.
“Until then, I had anecdotes, a thousand little stories,” says Grosse. “It got me thinking.”
Later, two separate lawsuits revealed documents that indicate chemical manufacturers like DuPont and 3M covered up evidence of the negative human and environmental impacts of PFAS for decades. A settlement from one of the lawsuits helped fund scientific research proving the links between PFAS and serious medical harms.
Soon after, officials tested Warminster’s water, including Grosse’s well. They found some of the highest levels of PFAS in the nation. The township shut down the private water supply and connected people to a public water source that was later found to also be contaminated. Eventually, residents were given bottled water.
“We went from one polluted source to the next,” says Grosse.
Grosse then got in touch with Joanne Stanton, a former classmate whose son was diagnosed with a brain tumor when he was 6. The women decided to team up. They spent hours at their local library, reading through newspapers to learn more about PFAS contamination. Ultimately, they were looking for documents that would help “hold the military responsible for what they did to us.”
Says Grosse, “We knew that if we did find the military responsible, it’s not just here. It’s almost every military site across the country.”
Taking the Military to Court
Grosse and Stanton eventually reached out to Mark Cuker, another community member impacted by the PFAS contamination who is also one of the nation’s foremost environmental tort attorneys.
Cuker began to build his case against the government, which was essentially this: For decades, the Navy used PFAS-laced firefighting foam that contaminated water sources in communities surrounding the two naval bases. Given PFAS’ links to serious health effects, residents were reasonably concerned that the contaminated water they drank for many years may cause health issues later on in life. Cuker’s lawsuit asked that the Navy pay for medical monitoring of those impacted, so that they might catch and then treat those illnesses sooner and more effectively.
But the military fought hard to keep people like Grosse from seeking that justice in court. It argued that the government had not agreed to be sued in this scenario, a prerequisite for bringing it to court. It also claimed the medical monitoring suit couldn’t proceed until after the site was cleaned up, which would likely take decades and defeat the very purpose of seeking medical monitoring. Both arguments would essentially bar people impacted by some of the most contaminated sites in the country from seeking justice from one of the biggest polluters in the world.
In 2017, a federal district court ruled in the Navy’s favor and dismissed the lawsuit. Cuker appealed to the Third Circuit Court of Appeals, and he began looking for environmental organizations that could submit legal briefs in support of his argument. He came across Earthjustice, which at first he thought might be just a bunch of “tree-hugging snowflakes.” Then he met Suzanne Novak, an Earthjustice attorney who had previously worked on reproductive rights issues in the South.
“She is definitely not a snowflake,” says Cuker. “This woman is tougher than I am!”
Earthjustice agreed to support the case, and Novak filed a brief on behalf of eight current and former residents of the area, including Grosse.
“We’re asking for medical monitoring so that people can catch PFAS-linked illnesses before they manifest and maybe give [people] a chance,” says Novak, who adds that Earthjustice is also pushing for medical monitoring of impacted residents in Hoosick Falls, New York. “Shame on the military for trying to avoid this.”
In 2018, the appellate court ruled for the residents and against the Navy. It was clear from the court’s opinion that Earthjustice’s legal brief had made a significant impact.
“What Earthjustice did so well was tell the stories of people that had been exposed,” says Cuker. “They made clear that if these people had to wait 20 years for medical monitoring, it wouldn’t do them any good. The judges agreed, so obviously that argument resonated.”
Still, the Navy wasn’t ready to give up, so it asked the Third Circuit Court of Appeals to reconsider its ruling. Given Earthjustice’s extensive knowledge of both environmental and administrative law, as well as its decades-long experience in suing the government, Novak took over as lead counsel on the case on appeal.
“We have lots of expertise in the government’s shenanigans and efforts to use procedural and federal laws to try to avoid responsibility by keeping us out of court,” explains Novak.
She adds that these types of suits can also be very costly and time consuming. Earthjustice’s donation based model allows the organization to step in and litigate cases that do not involve monetary damages, which can include important issues like defending the right to medical monitoring.
“Earthjustice takes on the cases that benefit everyday people but that may not provide the financial incentives for private attorneys to bring,” says Novak. “That’s where we’re needed.”
Justice Is Served
In April, the Third Circuit Court of Appeals reaffirmed its earlier decision, which determined that the U.S. can be required to pay for medical monitoring due to exposures at military Superfund sites. The court’s ruling meant that Cuker and the families could finally move forward to prove that the Navy is responsible for the contamination. Unfortunately, in January 2020 the district court judge tossed the lawsuit, ruling that to pursue claims under the Pennsylvania law at issue, PFAS needed to be regulated. As a result, lawsuits like Cuker’s cannot proceed in Pennsylvania until federal and state regulators do their jobs and take action on these chemicals.
Despite the recent setback, Grosse and Stanton continue to work to protect future generations. After Earthjustice’s Novak put them in touch with the nonprofit Water Foundation, they were given a $60,000 grant to educate their community about the dangers of PFAS.
“I won’t ever get to the bottom of my melanoma or my daughter’s missing teeth, but I pray to God that our kids can have kids without these problems,” says Grosse. “The hardest part is seeing deaths and illness in children. I think that’s a crime. I think they’ve committed a crime.”
A version of this story was originally published in the Earthjustice Quarterly Magazine, Fall 2019 issue.