AG’s Office accused of foot-dragging on PFAS pollution crisis
Source: https://www.freep.com, November 1, 2018
By: Paul Egan
The Michigan Attorney General’s Office dragged its feet on putting legal muscle behind state claims that the U.S. Air Force is liable for chemical contamination of waters around a former military base in northern Michigan, according to an attorney who owns nearby property.
Anthony Spaniola’s allegations — in part corroborated by minutes of meetings and other records — relate to contamination from PFAS (per- and polyfluoroalkyl substances used in firefighting foam and other substances) that is spreading from contaminated groundwater beneath the former Wurtsmith Air Force Base in Oscoda Township into Van Etten Lake and other adjacent bodies of water.
The chemicals, which don’t break down in the environment, have been linked to cancers, reproductive problems and other health issues. State officials have warned people not to eat both fish and deer from around the base and PFAS has been found in high levels in a white foam increasingly coating the surface and shores of waters surrounding the base.
The Air Force, which closed the Wurtsmith base in 1993, has been working to clean up contamination on the former base and has also provided bottled water and/or reverse osmosis filtration systems to the few area residents whose wells contain PFAS compounds above the U.S. Environmental Protection Agency’s health advisory limit of 70 parts per trillion.
But there was a dispute — until recently — about whether the Air Force is liable under state law for plumes of groundwater contamination entering adjacent Van Etten Lake, Van Etten Creek and the Au Sable River, which pours into Lake Huron.
Spaniola, a Troy attorney and Democratic donor who owns a family cottage across the lake from the former base and has been a leader of residents’ efforts to get the Air Force to act, said the applicability of state law to the surface water contamination is straightforward under Michigan’s administrative rules and Natural Resources and Environmental Protection Act.
But the state, he said, lost more than nine months of precious time — from late April 2017 to early February of this year — that could have been spent pushing the Air Force to stop the pollution because a requested letter detailing the applicability of the statute and related rules got held up in the Attorney General’s Office.
It’s not clear what role, if any, Attorney General Bill Schuette, the Republican nominee for governor in Tuesday’s election, had in the apparent delay. But Schuette is ultimately responsible for the operation of his office and was similarly accused of being slow to act on the Flint drinking water crisis — a charge he denies. In that case, Schuette’s office opened an investigation in mid-January 2016, about four months after Sheldon Neeley, a Democratic state representative from Flint, asked him to do so. Since then, Schuette’s office has brought criminal charges against 15 current or former state and city employees and Schuette has touted his role in bringing justice to Flint residents.
In the case of the growing PFAS crisis, “there has never been any foot dragging,” said Schuette spokeswoman Andrea Bitely. But she refused to disclose what advice the Attorney General’s Office gave the Michigan Department of Environmental Quality about Air Force liability for PFAS contamination of waters around the former base, or when that advice was given. Bitely cited attorney-client privilege, which can exist between the Attorney General’s Office and state agencies.
Minutes of meetings of the Base Realignment and Closure Cleanup Team show Department of Environmental Quality (DEQ) officials raised the issue of requiring the Air Force to investigate the contamination of nearby waters at an April 25, 2017, meeting.
The Air Force asked that the request be put in writing, but records show the requested DEQ letter was not sent until Feb. 8 of this year.
In between, there is a reference in the minutes to the requested letter being “in the Attorney General’s Office” on Sept. 28.
On Oct. 17, the DEQ’s remediation and redevelopment coordinator for Oscoda, Robert Delaney, told Spaniola in an email that “the Air Force requested an analysis from the State of Michigan, Attorney General’s Office” of their legal responsibility to “remediate … plumes that are discharging to surface water.” In the meantime, “we will continue to work with the Air Force to obtain compliance,” Delaney said.
And at an open house held about the PFAS issue at an Oscoda church on Dec. 6, Benjamin “Matt” Marrs, the Air Force Civil Engineer Center’s base environmental coordinator for the Wurtsmith project, told Spaniola the Air Force was “still waiting on the letter from the Attorney General’s Office,” Spaniola said.
It wasn’t until Feb. 8 of this year that the DEQ wrote the Air Force a letter, copied to officials in the Attorney General’s Office, that,”as requested,” cited specific statutes and regulations that make the Air Force liable for investigating and addressing the impact of contaminated groundwater moving from the base into adjacent waters, along with copies of nearly 100 pages of legislation.
Even after that, WOOD-TV in Grand Rapids reported on Feb. 20 that Air Force consultant Paul Rekowski said at a recently held community meeting that “the Air Force doesn’t see an applicable law that applies to that foam or to that surface water.”
Then, in a Feb. 26 letter to Spaniola, Marrs confirmed that the Air Force accepts the applicability of state law to contamination of waters adjacent to the base. That was after Spaniola, in a Feb. 20 email to Marrs, pointed to the relevant sections of state law, as well as a March 2017 letter to the Michigan Senate Fiscal Agency in which a top Air Force official appeared to concede the applicability of that law.
The Air Force did not respond to a series of emailed questions sent Tuesday and Wednesday, including a question about whether Marrs recalled making the Dec. 6 statement attributed to him by Spaniola.
Officials in the DEQ and the governor’s office have criticized the Air Force for being slow to stop the spread of contaminated groundwater into the lake and other waters surrounding the base, and on Oct. 19, the DEQ sent the Air Force a violation notice after measuring levels of PFAS in a nearby marsh that far exceed the state limit of 12 parts per trillion for contamination spreading from groundwater to an adjacent surface water, such as a lake.
The Oct. 19 violation notice followed a January violation notice from the DEQ to the Air Force for missing a 2017 deadline to set up a second filtration system at the base to stop discharges of contaminated groundwater into the Au Sable River and Van Etten Creek.
If the AG’s Office had acted sooner, “it would have made a huge difference,” Spaniola said. “It would have focused the issue on the fact that there is a … cleanup standard that has to be complied with.”
The U.S. Department of Defense, in a March 2018 report to the House Armed Services Committee, said waters around at least 126 military installations nationwide are contaminated with PFAS. It’s now likely going to be more difficult to get funds to clean up Wurtsmith than if state and Air Force officials had acted in 2017 because there is so much competition for available funds from other cleanup sites, Spaniola said.
Oscoda Township Supervisor Aaron Weed, a Republican, said he shares the concern about now competing with more sites for cleanup funds. “We’re going to get pushed down the priorities list,” he said.
Weed said he doesn’t feel he has been getting copied on enough documentation and he isn’t specifically aware of a letter being held up in the Attorney General’s Office. But he said he’s fed up with what he sees as a lack of aggressiveness by state agencies generally.
“This is a crisis,” Weed said. “I want somebody to get a hold of a backbone and make something happen. That falls in the realm of several areas — the Legislature, the DEQ, the governor, and the AG.”
Spaniola is a Democrat who gave $350 each to the Democratic State Central Committee and ActBlue Michigan, a Democratic political action committee, in 2016, records show. He also gave $100 this year to the attorney general campaign of Democrat Dana Nessel.
U.S. Rep. Dan Kildee, D-Flint Township, who has also been pushing for a speedier Air Force cleanup, said Wednesday he shares Spaniola’s frustration with the Attorney General’s Office.
“It’s hard to argue to the Air Force that they ought to comply when the State of Michigan is not doing everything they can to assert that position,” Kildee said.
The Free Press sent a Michigan Freedom of Information Act request to both the DEQ and the AG’s Office on Sept. 24, requesting copies of communications between the two agencies sent or received between April 2017 and February 2018 about the applicability of state law to PFAS contamination of waters around the former base.
After seeking time extensions permitted under FOIA, the agencies responded on Oct. 16. The DEQ said it would cost an estimated $1,558 and the AG’s Office said it would cost an estimated $2,223 to compile and redact the requested records. Even once the requested fees were paid in full, both agencies estimated it would take another 30 business days to produce the records, which would be well after Tuesday’s election.
DEQ spokesman Scott Dean told the Free Press on Oct. 24 that the DEQ and a team of state officials has “worked through the AG’s office — our lawyer” on addressing the issue of Air Force liability and required action.
“Speaking on behalf of DEQ … I can tell you Michigan is aggressively working to hold the U.S. Air Force accountable for PFAS-containing firefighting foam contamination coming from the former Wurtsmith base,” Dean said.
“Our approach to holding the Air Force accountable is science-based and data-driven. It is also based on state regulations — regulations that the Air Force initially questioned being governed under,” Dean said.
“That has changed and the Air Force now acknowledges state regulations.”
But Dean repeatedly refused to say when the DEQ requested a legal analysis from the AG’s Office or when it received that analysis, referring those questions to the AG’s Office.
At the AG’s Office, Bitely said “we are, and have been, working with our client-agency, the DEQ, daily on issues related to PFAS contamination” for more than a year.
“However, we have an attorney-client relationship with the DEQ and as a result, the advice we have provided to them is subject to attorney-client privilege,” she said. “That is not our privilege to waive, so we can’t provide documents showing what advice we have given and when.”
Bitely said the AG’s Office has also had ongoing discussions with lawyers for the Air Force and “provided guidance” on the violation notice the DEQ sent the Air Force on Oct. 19.
Beyond the Wurtsmith situation, Schuette faces allegations of delay from Kildee and others for not promptly filing a state lawsuit against a PFAS manufacturer after he was requested to do so by Gov. Rick Snyder.
In July, Snyder asked Schuette to “immediately” sue manufacturer 3M over high levels of PFAS found in sites across Michigan.
The company began manufacturing chemicals linked to PFAS in the 1950s and stopped production in 2002. They were used in Scotchgard, fire retardants, nonstick cookware and other products.
The requested lawsuit has not yet been filed.
“We are continuing to work with our client agency, the DEQ, to evaluate what laws have been broken and to determine a legal basis for any future potential lawsuit,” Bitely said Wednesday.