Michigan AG Brings PFAS Lawsuit Against the Gerald R. Ford International Airport Authority

Troutman Pepper

[co-author: Stephanie Kozol]*

Michigan Attorney General (AG) Dana Nessel has filed suit against the Gerald R. Ford International Airport Authority to enforce demands by the Michigan Department of Environment, Great Lakes, and Energy (EGLE) related to alleged per- and polyfluoroalkyl substance (PFAS) contamination of the regional drinking water supply caused by the airport authority.

Filed on September 8 in Michigan’s Kent County 17th Judicial Circuit Court, the lawsuit seeks injunctive and declaratory relief, past and future remediation and monitoring costs, and damages for the loss and destruction of natural resources for, among other issues, the airport authority’s alleged PFAS releases into the below-ground water supply, according to a statement from Nessel on her action.

The various forms of PFAS are commonly referred to as toxic “forever chemicals” because they do not break down in the environment. According to the U.S. Environmental Protection Agency (EPA), “removing PFAS from drinking water can be an expensive proposition.” The EPA is proposing to designate two forms of PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability (Superfund) Act, while an EPA final rule designating maximum contaminant levels in drinking water for PFOA and PFOS has been slated for promulgation in January 2024.

According to the Environmental Commitment: PFAS section of the Gerald R. Ford International Airport Authority’s website, the Federal Aviation Administration requires the airport, and other similar airports, to employ aqueous film-forming foam (AFFF) containing PFAS “because of its effectiveness in extinguishing jet-fuel fires.” The airport authority states that it “took proactive steps by voluntarily moving to an AFFF product that is asserted to have less environmental risk.”

According to Nessel’s statement, issued on September 11, her lawsuit contends that the airport authority is liable for previous and known releases of PFAS-containing firefighting material under Part 201 (Environmental Remediation) of Michigan’s Natural Resources and Environmental Protection Act (NREPA), and for violations of the airport authority’s National Pollutant Discharge Elimination System (NPDES) permit. The lawsuit alleges that these PFAS releases have impacted nearby properties and that PFAS has been discovered in residential drinking water wells in neighboring Cascade Charter Township, as well as in streams and other groundwater downgradient of the airport. Nessel’s statement contends that “the full breadth of the PFAS emanation from the Airport remains unknown.”

The AG’s statement further provides that EGLE sent “numerous compliance communications” to the airport authority dating back several years demanding information on its uses of AFFFs and the known releases of AFFFs. In September 2020, EGLE issued a violation notice under Part 201 of the NREPA that demanded, among other things, the creation and implementation of a plan to investigate the nature and extent of PFAS contamination from the airport authority’s historical use of AFFFs and “notices of migration of hazardous substances” to residents of Cascade Charter Township. Nessel’s statement contends that the airport authority did not comply and denied liability. According to the statement, the EGLE sent a final enforcement notice in March 2021, resulting in “many months” of unsuccessful settlement negotiations between the Michigan Department of AG and the airport authority.

Why It Matters

Nessel’s action is yet another example of a state AG’s use of her enforcement authority in relation to PFAS releases into the environment that also demonstrates the state and federal regulatory challenges facing the owners and operators of sites that are alleged sources of PFAS contamination in drinking water.

*Senior Government Relations Manager

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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