On Sept. 8, 2023, the Michigan Attorney General’s office filed a lawsuit on behalf of the Michigan Department of Environment, Great Lakes and Energy (EGLE) against the Gerald R. Ford International Airport Authority (the Authority), the operator of the Gerald R. Ford International Airport in Kent County. The suit asserts claims under Part 31 and Part 201 of the Michigan environmental code.

EGLE alleged the presence of PFAS compounds in excess of Part 201 standards originating from operations at the Airport property and off-site in residential drinking water, streams, and groundwater nearby.

EGLE also alleged that the Authority exceeded permit limits for various non-PFAS compounds, that it failed to report other stormwater discharge sampling data, that it failed to submit certain monitoring reports in three successive years, and that PFOS detected also exceeded the Rule 57 (323.1057) Water Quality Values.

History

It appears that EGLE tired of asking for the airport’s compliance and waiting for what EGLE viewed as meaningful remediation. EGLE sent the airport the following:

  • On May 1, 2020, a Compliance Communication regarding PFAS substances released at the Airport attributable to aqueous fire-fighting foam (AFFF) use. The Authority was directed to immediately act to contain or remove the source of contamination, notify EGLE and affected neighbors of migrating contamination, define the nature and extent of the release, and undertake response activities to achieve Part 201 cleanup criteria.
  • On Oct. 9, 2020, another Compliance Communication noted EGLE’s determination that the releases had migrated off-site, contaminating nearby residential drinking water wells. The letter requested basically the same actions requested on May 1.
  • On Dec. 9, 2020, a Violation Notice that cited the Authority’s failure to undertake the response activities requested in the prior communications. The Violation Notice requested the Authority provide EGLE a written commitment to comply with Part 201.
  • On March 24, 2021, a Violation Notice regarding the Authority’s failure to adhere to the effluent limitations in its NPDES Permit and its discharge of PFAS substances in excess of state water quality standards. The Violation Notice requested a meeting to discuss the potential resolution of these violations of Part 31 and to establish a plan to prevent future discharges of PFAS substances.
  • On March 30, 2021, an Enforcement Notice included a list of the Authority’s violations of Part 201 and proposed resolving the Part 201 violations through an administrative settlement agreement.
  • On July 5, 2023, a Violation Notice and Enforcement Notice included a list of the Authority’s violations of Part 31 and the NPDES Permit.

The Lawsuit

The lawsuit alleges that the Authority violated the effluent limits and reporting requirements of its NPDES permit and sought both injunctive relief, attorney fees and costs, and civil fines of between $2,500 and $25,000 per day. The lawsuit also alleges that the State has incurred and continues to incur response activity costs responding to the alleged release and threatened release of hazardous substances and sought permanent injunctive relief and civil fines of between $1,000 and $10,000 per day for alleged multiple violations of Part 201 of NREPA by the Authority. Further, the lawsuit seeks a declaratory judgment that the Authority is obligated to perform all future response activities necessary to protect public health, safety, or welfare or the environment. If granted, this would be an open-ended obligation to at least study the site to delineate the extent of the PFAS compounds and pursue response activities to achieve Part 201 cleanup criteria. At this point, what those two tasks will cost is unknown.

In its Part 201 portion of the complaint, the State relies heavily on EGLE’s PFAS cleanup standards, even though, in August, the Michigan Court of Appeals determined that, in promulgating the rule adopting those standards, EGLE had “missed a step” by not preparing an estimate of the cost to comply with those rules under Part 201 (for more information on that please see another Taft article here). As the Court of Claims (the trial court) had stayed its order invalidating those rules pending appeals, for the moment, those standards remain in effect. Further, some at EGLE have reportedly argued that even if the Part 31 drinking water rules are held invalid, the identical Part 201 standards (adopted only because of the promulgation of the Part 31 drinking water rules) would still survive. In any case, the Rule 57 WQVs do not appear to be impacted by that Court of Appeals decision.

The State has identified 23 more airports that it claims have caused PFAS contamination (as well as hundreds of other PFAS sites), so this case could signal a willingness by the State to pursue similar claims against the 23 other airports and possibly other sources of spills and releases of PFAS compounds to the environment.

Airports are at increasing risk of claims arising from their use of AFFF, which historically has contained high quantities of PFAS compounds. The use of AFFF was required by the FAA, including the FAA compelling airports to annually test their systems by spraying foam on airport property. The makers of PFAS chemicals and AFFF typically did not disclose the presence or hazards of PFAS. Thus, airports, like many others now facing the potential costs of cleaning up PFAS contamination, are beginning to look to these manufacturers to cover these costs and liabilities.

Taft currently represents many parties, including airports, seeking to recover those costs and expenses through litigation against the PFAS and AFFF manufacturers, including in ongoing, nationwide AFFF multi-district litigation pending in federal court in South Carolina, where settlements valued at up to $13.6 billion have recently been announced relating to claims of public water providers. If you would like further information regarding this Michigan litigation or other PFAS-related litigation, contact a member of the Taft Environmental team.