Fire Retardant Use – Federal Court Decision Prioritizes Lives, Land, Businesses, and Forests

MISSOULA, MT — The U.S. District Court for the District of Montana (Court) has ruled that the US Forest Service (USFS) may continue using aerial fire retardants while pursuing a Clean Water Act (CWA) permit, a AerialFireMagazine.com article reports.

In June 2022, The U.S. Environmental Protection Agency (EPA) issued test orders to require companies to conduct and submit testing on per- and polyfluoroalkyl substances (PFAS), chemicals that comprise fire retardants (in addition to many other industrial and consumer products). When EPA announced its Strategic Roadmap to confront PFAS contamination nationwide, the agency also released the National PFAS Testing Strategy to help identify PFAS data needs and require testing to fill those gaps.

The court’s ruling came following a case brought by Forest Service Employees for Environmental Ethics (FSEEE) against the U.S. Forest Service (USFS) that sought to stop USFS’ use of aerial fire retardants during firefighting activities.

In the PFAS National Testing Strategy, EPA assigned 6,504 PFAS into smaller categories based on similarities in structure, physical-chemical properties, and existing toxicity data. EPA selected 6:2 fluorotelomer sulfonamide betaine (CASRN 3445529-3) as the first order issued pursuant to the National PFAS Testing Strategy. This chemical substance is a surfactant used to make commercial fire-fighting foams and may be found in certain floor finishes. The EPA noted that 6:2 fluorotelomer sulfonamide betaine has been manufactured (defined to include importing) in significant quantities (more than 25,000 pounds in a given year) according to TSCA Chemical Data

Reporting (CDR) rule reports.

CDR data indicate that at least 500 workers in a given year could be potentially exposed to this chemical. Although there is some hazard and exposure information about this PFAS, EPA found there is insufficient data to determine the effects on human health associated with the inhalation route of exposure. The agency issued its first test order to address the need for further data. The Chemours Company, DuPont De Nemours Inc., E. I. du Pont de Nemours and Company, National Foam Inc., and Johnson Controls Inc. were the recipients of the first test order.

Based on available information and predictive models, testing on 6:2 fluorotelomer sulfonamide betaine will also inform the agency’s understanding of the human health effects of 503 additional PFAS with similar structures as detailed in the Testing Strategy.

On October 11, 2022, Forest Service Employees for Environmental Ethics (“FSEEE” or “Plaintiff”), represented by Timothy M. Bechtold of Bechtold Law Firm, PLLC, filed a civil action against the United States Forest Service (“Defendant”), seeking declaratory and injunctive relief for alleged discharge of aerial fire retardant into navigable waters of the United States in violation of the Clean Water Act. This case was filed in the U.S. District Court for the District of Montana with Judge Dana L. Christensen presiding.

The plaintiff alleged, that “the U.S. Forest Service and its contractors have discharged and continue to discharge retardant from aircraft into navigable waters without a National Pollution Discharge Elimination System (NPDES) permit.”

“Between 2012 and 2019, the Forest Service discharged retardant pollutant on at least 459 occasions, totaling 761,282.5 gallons, from aircraft directly into national forest navigable waters. The Forest Service asserts that a June 23, 2011, letter from EPA excuses its failure to obtain a NPDES permit. However, the factual basis for the letter – ‘operators [] are not discharging into waters of the US’ – is simply not true,” the plaintiff further alleged.

“The Forest Service acknowledges hundreds of retardant discharges into waterways from misapplications and allowable exceptions.” Plaintiff also alleged that “[the] Forest Service’s discharges of retardant pollutants into waterways from aircraft point sources is continuous, on-going, and unpermitted, in violation of the Clean Water Act.”

On March 9 of this year, a coalition in opposition to the complaint was formed by the California Forestry Association, the Town of Paradise, California, which was devastated in the 2018 Camp Fire; Butte and Plumas counties, California; Rural County Representatives of California; American Forest Resource Council; National Alliance of Forest Owners; Federal Forest Resource Coalition; Montana Wood Products Association; Oregon Forest Industry Council; Washington Forest Protection Association; California Farm Bureau Federation; National Wildfire Suppression Association; and California Women for Agriculture to petition the U.S. District Court for the District of Montana to join the case brought in October 2022 by Forest Service Employees for Environmental Ethics.

The U.S. District Court for the District of Montana granted the coalition the right to file an amicus brief and participate in the upcoming oral arguments on the summary judgment motion. The coalition filed the amicus brief in April.