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.

The Michigan AG 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.

The Michigan AG 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.

Background

This site has operated as an airport since the 1960s and from then until the mid-1990s, federally required firefighting training activities were performed on-site on the northeast side of the property at the former firefighting training area (FFTA) using PFAS-containing aqueous film forming foam (AFFF). Training has occurred at other airports since the mid-1990s. Lesser volumes (10-15 gallons) of AFFF have been used annually at the “ARFF and Ramp 5” pad locations to test firefighting response equipment. AFFF use locations (FFTA, ARFF, Ramp 5) exist within the Outfall 011 drainage area. Storm water collected in the Outfall 011 drainage area flows through a permitted natural treatment system (NTS) designed to treat storm water from airfield de-icing & anti-icing areas and is then discharged to the Thornapple River. The approximate locations of two confirmed emergency response events where AFFF was used have also been identified at Taxiway D and Runway 26L.

A thick layer of clay beneath the FFTA investigation area was found between the surface and deep groundwater. Deep (beneath clay layer) groundwater flow direction in the FFTA investigation area is north/northeast. Shallow (above clay layer) perched groundwater has been identified in the FFTA investigation area. Storm water drainage flows to multiple locations off airport property toward either the Thornapple River (east) or Plaster Creek (west). Stormwater, in the vicinity of the FFTA, ARFF, and Ramp 5, drains toward the Thornapple River. 

History

In an article written by Arthur Siegal of Taft Stettinius & Hollister, it appears that Michigan AG tired of asking for the airport’s compliance and waiting for what the AG viewed as meaningful remediation. The Michigan AG 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 the Michigan AG 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 MIchigan AG’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 the Michigan AG 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.