Air Force scolds Michigan for tough tone on Wurtsmith contamination

The U.S. Air Force has chided the state of Michigan for arguing the military agency violated state and federal water regulations near the former Wurtsmith Air Force Base in Oscoda and warned the state that it had no authority to regulate federal facilities.

In the Dec. 7 letter, the Air Force said it would not make any new efforts to clean up chemical contamination at the former base and criticized the state Department of Environmental Quality for sending an October notice of violation while the state and federal agency are in the dispute resolution process.

The 2017 dispute agreement “requires MDEQ to exhaust the dispute resolution process before resorting to issuing a violation notice,” the Air Force wrote.

The letter from the Air Force, first reported by MLive, is the latest exchange in an increasingly tense relationship between the state and the U.S. Department of Defense regarding responsibility for the full scope of per- and polyfluoroalkyl substances. 

Republican former Gov. Rick Snyder's administration has sparred over contamination attributable to Air Force activities at the former Wurtsmith Air Force Base, where personnel used PFAS-containing firefighting foam for training.  

That dispute is unlikely to be resolved soon under Democratic Gov. Gretchen Whitmer as the question of an applicable federal PFAS drinking water standard remains unanswered. The U.S. Environmental Protection Agency's PFAS management plan, which could include federal standards, is undergoing interagency review. 

Politico is reporting, citing anonymous sources, that the EPA doesn't plan to set required PFAS drinking water standards. The federal agency has set a voluntary health advisory level of 70 parts per trillion for PFAS or "forever chemicals," a standard that Michigan follows.

But U.S. Environmental Protection Agency Office of Water Assistant Administrator David Ross countered in a Tuesday statement that "any information that speculates what is included in the plan is premature."

Using a “science-based and data driven” approach, the state is “aggressively working” to hold the Air Force accountable for the Wurtsmith contamination and provide a “full remedy” for the area, said DEQ spokesman Scott Dean.

“The slow response by the Air Force to the Wurtsmith contamination is having an increasingly negative impact on the people, wildlife and environment in Oscoda,” Dean said. “Although Michigan seeks to work cooperatively with the Air Force, slow response to PFAS contamination is not acceptable.”

The Air Force did not respond Tuesday to a request for comment. 

A toxic class of chemicals, PFAS is linked to some health effects, including cancer and immune system problems. The chemicals were widely used in Teflon, Scotchgard and firefighting foam and have been found at high levels at more than 30 sites throughout Michigan, including five former or active military sites.

Since the contaminant was confirmed at Wurtsmith in 2010, the chemical has traveled through ground and surface water, Clark’s Marsh, the AuSable River and is now threatening Lake Huron.

While the Air Force has taken some action at the site, such as installing filtration devices and monitoring wells around the area, it has so far been slow to admit full responsibility for all of the contamination.

In dispute resolution with the Air Force since January, the state issued a notice of violation in October, alleging that the federal agency was violating federal and state rules because water in Clark’s Marsh tested for PFAS levels higher than the state’s surface water quality standard of 12 parts per trillion. The marsh's surface water tested at 42,000 ppt in 2016 and its pore water tested at 6,240 ppt in September 2018.

The state demanded a compliance plan within 30 days of the Oct. 19 notice.

The Air Force fired back on Dec. 7, noting that, unless the Air Force waives its sovereign immunity, the state lacks the authority to regulate federal facilities and the federal Clean Water Act would not apply to the contamination occurring at Wurtsmith.

The seeping of PFAS-contaminated groundwater into larger bodies of water such as Clark’s Marsh, called “venting groundwater,” is not considered a point source discharge subject to the Clean Water Act, the letter said. And PFAS chemicals are not defined as a “hazardous substance” under the Comprehensive Environmental Response, Compensation and Liability Act of 1990, a contamination identification and cleanup process also called Superfund.

“The federal government is immune” from state laws for release of anything other than hazardous substances as defined by the federal law, the letter said.

Despite those objections, the Air Force said it would evaluate Michigan’s rules “when it reaches the groundwater remedy-selection phase” of the cleanup process and “continue to work with MDEQ” to address issues in the violation notice.

Among the actions already taken, was the 2015 installation of a pump and treat system to stop the migration of PFAS chemicals into Clark’s Marsh, which sampling shows has resulted in “major reductions” in contaminated groundwater reaching the marsh, the letter said.  

Additional wells to monitor migration and assess the depth and spread of PFAS contamination have also been installed by the Air Force, the letter said.

Without a federal threshold for PFAS contamination in ground water and drinking water, the state may end up setting its own. But its unclear whether the Air Force would recognize those state standards. 

State Sen. Winnie Brinks, D-Grand Rapids, this month re-introduced legislation that would allow no more than 5 parts per trillion of PFAS or PFOS chemicals in drinking water.

Michigan should set its own standard “ to protect public health,” Brinks said. “That’s what it comes down to. Human health is being impacted negatively.”

Brinks sponsored similar legislation in the House last session but her bill did not get a committee hearing in the Republican-led Legislature. Local officials have voiced concerns about costs, she acknowledged.

Detroit News Staff Writer Jonathan Oosting contributed 

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