Per- and polyfluoroalkyl substances, commonly known as PFAS, are long-lasting chemicals that are quickly gaining notoriety for both their persistence in the environment and their ubiquity in water, air, and soil. Developed in the 1950s, PFAS are used in a wide range of products including firefighting foam, stain-resistant and water-repellant fabrics, nonstick cookware and many others. Concerns over PFAS contamination are mounting and the associated caselaw is growing. Federal contractors could be impacted by PFAS in two primary ways: first, contractors may face PFAS-related litigation resulting from the manufacture and distribution of affected products and second, contractors may have to adjust specifications to comply with the government’s shift away from products containing PFAS.
Government Contractor Defense & PFAS Liability
The Department of Defense (DoD) began using PFAS in the 1970s in the form of aqueous film forming foam (AFFF). Current estimates suggest that there are likely hundreds of military installations in the U.S. that are contaminated by PFAS. This contamination has started to lead to litigation: For example, approximately 500 cases were consolidated into multidistrict litigation before the District Court of South Carolina – these cases allege groundwater contamination (among other issues) based on AFFF use at military bases and other sites. The defendants have raised the government contractor defense which is now a key issue in the case.
In Boyle v. United Technologies, the Supreme Court outlined three factors required for the government contractor defense finding that liability cannot be imposed on contractors when:
Here, the Defendants have moved for partial summary judgment on the second and third elements and the Court has set the issue for oral argument this month. Defendants are arguing that Military Specification Mil-F 24385, first promulgated in 1969, and other related military specifications, required the use of AFFF, thereby affording Defendants immunity from liability under the government contractor defense. While this issue is still ongoing, government contractors, especially those that work at military or NASA bases, should monitor developments concerning the applicability of the government contractor defense to PFAS contamination. This issue is critical due to the scale and associated cost of PFAS contamination.
Purchasing Power Preferences
Government contractors may also encounter PFAS and associated restrictions via the Government’s purchasing power. In December 2021 Biden issued an Executive Order on Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability. Section 208 of the Order, Sustainable Acquisition and Procurement, requires agencies “to the maximum extent practicable, purchas[e] sustainable products and services identified or recommended by the Environmental Protection Agency (EPA).” In response, EPA has developed a webpage, Recommendations of Specifications, Standards, and Ecolabels for Federal Purchasing, to guide purchasing activity. Contractors should be aware of government procurement preferences and EPA recommendations especially because of the wide range of PFAS applications.
Government contractors should monitor PFAS developments both in the litigation and government acquisition space to ensure they are prepared should an issue arise.