A couple weeks ago, we posted this article asking whether the Wisconsin Air National Guard (WIANG) will follow DNR laws regarding investigation and cleanup of its highly contaminated base in Madison.
Based on this recent report–Air Force says it won’t follow Michigan law during Wurtsmith cleanup–we are probably correct that the WIANG will blow off Wisconsin PFAS standards and adhere to more lenient federal standards under CERCLA. Wurthsmith AFB in Michigan and WIANG are both taking orders from the same big boss–the U.S. Department of Defense.
What about the construction projects for the F-35s at Truax Field?
Some have asked us how the ongoing construction projects in preparation for the F-35s fit into all of this. It’s very difficult to know, since these decisions are being made behind closed doors. There have been no public meetings to date.
One thing we’ve ascertained is that the F-35 construction projects are barrelling forward irregardless of WIANG’s years of delays in following state investigation and remediation laws (NR700). They are being treated separately from the broader, required comprehensive base PFAS investigations (not begun yet). As they go forward, each F-35 construction project is being assessed piecemeal (one by one) by DNR, which appears to be working to facilitate the F-35 related construction as quickly as possible.
So, in sum, the F-35 construction projects are moving forward even though we have no idea of the range of PFAS levels at the base or how deep and wide the contamination extends on and offsite. These projects will disturb PFAS-contaminated soils and groundwater, which will then run off into the already heavily contaminated Starkweather Creek. As far as we can tell, DNR is not requiring WIANG to monitor PFAS or other contamination migration into the creek from these projects.
This makes no sense.
For more details, here’s a rough timeline with bits and pieces of information we obtained from BRRTS and/or our activist networks:
-WIANG has been preparing for the F-35s for several years.
–In spring 2019, the EPA approved the Environmental Assessment (EA) required under the National Environmental Policy Act (NEPA) for 27 construction projects in preparation for the F-35s.
The city and county didn’t provide comments on the EA, but the DNR did. The DNR letter said (highlights added): “Section WI3.13.1 of the dEIS does not adequately address per- and polyfluoroalkyl substances (PFAS) contamination. Although there is mention of three construction projects associated with potential release locations (PRLs), there is no discussion of the probability that PFAS contamination exists beyond PRLs, of the need for a complete site investigation, or of the potential need for interim and remedial actions. Furthermore, the discussion of media management plans on page WI-120 runs counter to state requirements.
The DNR does not consider the site investigation conducted in 2018 (described on pg. WI-117) to be a complete site investigation as required under Chapter NR 716 Wis. Adm. Code. The discussion of that investigation should clarify that because it was limited to the nine PRLs identified in 2015, the extent and nature of PFAS contamination at the 115 FW has not been fully determined. Results of the 2018 site investigation indicate that there is a likelihood of PFAS contamination of soil and groundwater across much of the installation.
“There are currently no state or federal standards for PFAS… Section NR 722.09, Wis. Adm. Code, however, requires a responsible party to establish site-specific cleanup standards in the absence of promulgated, numeric standards. These standards must be established with approval from the DNR, in consultation with the state Department of Health Services.”
-Unfortunately, as described in our previous article, in summer 2020, the U.S. Air Force said it will not follow these standards; it will follow federal standards because it has “sovereign immunity” from state laws. See link and article below.)
-In its comments on the EA, EPA asked WIANG to take some steps, including engaging the nearby Truax neighborhood about the PFAS issues. They didn’t do so, but EPA approved the EA anyway.
–In fall 2019, DNR began working with WIANG to facilitate the F-35 construction projects, even before the EIS was finalized and approved (this shows how token the EIS process was).
–In February 2020, the Final F-35 Environmental Impact Statement (EIS) was released.
–In the last year, the many construction projects in preparation for the F35s are being addressed one-by-one by DNR. For each project, some minimal, shallow soil and groundwater PFAS testing is done and then a “Materials Management Plan” is approved by DNR.
-According to a recent communication from DNR, a storm water construction site permit will be required of WIANG because the cumulative area of land disturbance is over one acre. DNR admitted that “[t]he DNR storm water permit is designed to limit sediment loss from the site but it is not designed to address soil or groundwater pollutant concerns that are potentially above a level of concern.” (What does “limit sediment loss” really mean? Will anyone be monitoring how much is lost to the creek and what PFAS levels are in the sediments?)
– WIANG is arguing that they will not need to do any dewatering for the projects even though the water table at the base (a former wetland) is very shallow. In July 2020, DNR proposed that if WIANG does need to dewater, it could choose the following options for discharging the water:
“For the projects at Truax Field this means that, based upon the available sample results, WiANG may either: (1) install PFAS treatment to remove PFOS and PFOA to below detection levels, as confirmed by regular sampling during the period of discharge, or (2) store the dewatered groundwater for further analysis after dewatering. If option (2) is chosen, the discharge may proceed without treatment if the well-mixed, containerized water is measured at <20 ng/L PFOS+PFOA. However, if the containerized water is ≥20 ng/L, the water would require treatment for removal of PFOS and PFOA to below detection levels prior to discharge.”
The water will be discharged into Starkweather Creek.
Given that as of fall 2020 (as outlined below) WIANG will be regulated under CERCLA, will they follow DNR’s proposed 20 ppt standard for dewatering–or will they insist on the federal government’s unprotective 70 ppt “health advisory level”? Will the DNR allow that?
Moreover, DNR recently proposed a surface water standard of 2 ppt for PFOS (alone) to prevent harmful levels of this very toxic commpound from building up in fish. Why isn’t DNR insisting that Truax treat PFOS to 2 ppt before discharge to the creek?
What about public engagement?
There are many holes and gaps in our timeline above. We and other community members have countless questions. DNR has faciliated 20+ public meetings in the Marinette/Peshtigo area–while there have been NONE in Madison. Why not?
Starkweather Creek and Lake Monona are public waterways. They belong to us. Where is the public engagement, which DNR can require of WIANG and other parties responsible for PFAS at Truax Field (city, county) through NR714? Will WIANG engage the public as required via the CERCLA process–or will they blow that off too, as they did in previous contamination investigations/remediations at the base?
Starkweather Creek flows through several residential neighborhoods before discharging into Lake Monona two miles south of the base. Shouldn’t the residents of Madison and Dane County, including people living in the low income Truax, Darbo-Worthington neighborhoods the toxic creek flows through have a say? The toxic creek water floods into people’s yards, gardens, and basements when it rains a lot. (Photo above: Starkweather Creek flooding in Darbo neighborhood).
Shouldn’t people who eat Starkweather and Lake Monona fish and feed it to their families have a say in how much PFAS is discharged to the creek?
Shouldn’t city and county elected officials have a chance to weigh in?
(Photo: Men fishing at the Olbrich fishing pier).
To make your voice heard, please participate in the Water is Life event this Saturday, April 3.
March 17, 2021
Will the Wisconsin Air National Guard follow DNR laws on PFAS investigations & cleanup? Probably not
Last year in a Cap Times op-ed, I asked whether regulating the heavily contaminated Truax Air National Guard site under Superfund Law or CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) means the base will be cleaned up more quickly and thoroughly.
The answer then was no. The answer now is also probably no.
It is now over three years since PFAS was first discovered at the base (in November 2017), and about three years since Truax ANG received its first “responsible party” letter from DNR. Meanwhile, PFAS and other contaminants continue to slosh into Starkweather Creek, Lake Monona and downstream lakes, as they have for decades.
Whether or not F-35s come to Madison (we hope they do not–and have publicly opposed them since early 2018), the base is heavily contaminated with PFAS and other toxic chemicals. Thorough investigation and cleanup of the site should begin immediately, and should have begun a long time ago.
Unfortunately, under CERCLA, based on our research and experiences (explained in more detail in the op-ed linked above), prompt and complete investigations and remediation are not likely to happen at the base, and state environmental laws will be minimally adhered to, if at all.
A partial recent regulatory history related to PFAS…
2012 (before PFAS was discovered): Investigations and cleanup of extensive contamination at the base (chlorinated solvents, petroleum compounds, metals, etc) were deemed complete by the National Guard, with the DNR’s approval even though much of the contamination was not fully investigated or remediated.
November, 2017: Soil and groundwater tests at Truax ANG show total levels of six PFAS up to over 46,000 ppt in groundwater (the report was publicly released in March 2018). No further testing of groundwater at the base has been done since then. The vertical and lateral extent of the plume has not been defined, per NR700 law. So, we have no idea how far and wide this plume has spread offsite. (Groundwater under the nearby burn pits on Dane County airport land was tested in 2020 and up to over 85,000 ppt of total PFAS was found. The burn pits were used by the military, city, and county.)
April 26, 2018: DNR responsible party letter to Truax ANG re NR 700 laws they are required to follow
June 22, 2018: Revised DNR responsible party letter to Truax ANG, with added caveat referring to the DSMOA (Department-State Memorandum of Agreement): “Note: Based on the existing agreement between the Department and the Department of Defense, the Department will work cooperatively with Air National Guard staff to develop an agreeable project timeline for addressing the known contaminant release.”
Oct. 30, 2019: DNR’s formal comments for the draft EIS state: “There are currently no state or federal standards for PFAS. As such, the statement quoted above suggests that media management plans would never be recommended. Section NR 722.09, Wis. Adm. Code, however, requires a responsible party to establish site-specific cleanup standards in the absence of promulgated, numeric standards. These standards must be established with approval from the DNR, in consultation with the state Department of Health Services.”
Oct. 31, 2019: DNR Notice of Violation (NOV) to ANG for not meeting NR 700 deadlines.
Dec. 2, 2019: DNR enforcement conference with ANG (the meeting is listed on BRRTS but no documents are linked to it)
Feb. 19, 2020: The final Environmental Impact Statement for the F-35 projects said the Superfund/CERCLA would guide the cleanups at the site.
March 13, 2020: Response action letter from DNR to ANG, with specific deadlines—an excerpt:
By May 4, 2020 WANG will submit a site investigation workplan to the DNR for determining the degree and extent of PFAS contamination from WANG.• By August 17, 2020, WANG will submit to the DNR the results of the site investigation and plan for proposed interim remedial actions to stop the ongoing contaminant discharge of PF AS contamination from the WANG facility. • By November 30, 2020, WANG will have in place and operating the DNR-approved response actions to eliminate the discharge of PFAS contaminants and environmental pollution to the Starkweather Creek watershed from the contaminated groundwater known to exist beneath Truax. This includes mitigating and treating stormwater runoff and groundwater migration into surface waters and off-site of the Truax property.
April 9, 2020: DNR approved ANG’s request for 60-day compliance extension from the above deadlines, due to COVID.
Needless to say, WIANG didn’t meet the original or the extended deadlines…
Summer, 2020: Truax ANG was removed from the DSMOA.
June, 2020: the Air Force outlined its legal position, stating that it has “sovereign immunity” from state PFAS standards and laws.[1] Conclusion: “USAF is immune under CERCLA from Wisconsin’s attempts to enforce state laws regarding substances that are not designated as hazardous substances under CERCLA. However, if Wisconsin promulgates standards for PFOA/PFOS, USAF may subsequently be required to follow them as ARARs and cleanup accordingly. Until such time as that occurs, USAF remains committed to public health and the environment and will continue to follow CERCLA as its guide for PFOA/PFOS cleanup.”
Fall 2020: Truax ANG received money through the Congressional O & M budget to begin remedial investigations at the site under CERCLA (as publicly shared by Mayoral staff Christi Baumel at a recent Common Council Executive Committee meeting).
February 15, 2021: DNR letter to Truax ANG recognizing that the cleanup process will follow CERCLA but state laws are still relevant. Some key excerpts (in italics):
“Staff at the DNR have been meeting with WIANG staff and working through the many issues presented by the environmental issues at the airport facility. We understand that the WIANG has been working with the federal government and that the federal government is beginning a remedial investigation, and we very much appreciate those efforts. We expect that remedial investigation work to continue and look forward to receiving regular updates from you.”
Action Required:
Wis. Stat. § 292.11(3) requires persons who possess or control a hazardous substance discharge, or who caused the discharge of a hazardous substance (the “responsible party or parties”) to take actions necessary to restore the environment to the extent practicable and minimize the harmful effects of the discharge to air, lands and waters of the state.
Wis. Admin. Code § NR 708.11 requires responsible parties to take an interim action where necessary to contain a discharge of a hazardous substance in order to minimize any threat to public health, safety, welfare or the environment.
Skipping forward, DNR then outlines how the CERCLA process relates to DNR laws:
“Conducting early (aka interim) actions prior to or during the investigation phase is a fundamental principle of the Superfund/CERCLA process in order to address immediate risks to human health and the environment and to control migration of contaminated media. DNR is familiar with Superfund/CERCLA as we oversee several federal cleanups, including those involving the Department of Defense. DNR’s request for an early or interim action is consistent with the National Contingency Plan and EPA’s August 2019 guidance, “Use of Early Actions at Superfund National Priorities List Sites and Sites with Superfund Alternative Approach Agreements.” These documents encourage responsible parties to act – which may include interim or early action — when there is data available to do so.
DNR has a memorandum of agreement with the EPA that confirms that following the state’s NR 700 regulatory process is functionally equivalent to the federal CERCLA and RCRA hazardous waste corrective action process. Thus, the technical oversight that the DNR provides is in no manner inconsistent with what would be expected of a site undergoing a Superfund/CERCLA cleanup.”
What will DNR do? Will ANG care?
It’s good that the DNR is suggesting that Truax ANG follow state environmental laws–but the language in this letter is vague and weak. What does it really mean?
There are no deadlines mentioned, as in previous DNR responsible party letters (in line with NR 700 rules). There is no mention of which PFAS standards DNR will ask ANG to follow, since there are no promulgated state or federal standards. As stated in its Oct. 30, 2019 letter for the EIS (linked above): Section NR 722.09, Wis. Adm. Code, however, requires a responsible party to establish site-specific cleanup standards in the absence of promulgated, numeric standards. These standards must be established with approval from the DNR, in consultation with the state Department of Health Services.”
Will DNR and DHS ask ANG to follow the 20 ppt groundwater standard proposed by WI DHS for PFOS + PFOA? Or will DNR and DHS allow ANG to use the very unprotective 70 ppt federal “health advisory level” for PFOA and PFOS in groundwater, as they have been insisting they will do?
Perhaps the more important question is–will the ANG care what DNR requires? For three years, ANG has blown off DNR’s laws regarding PFAS, following directives from U.S. Air Force/Dept of Defense. Will DNR have the authority, capacity and political will to do anything if the military continues to blow off state laws? Will local, state and federal leaders and elected officials use their political power to demand that they do so? Will Dane County demand that its lessees at the Dane County Regional Airport follow state laws?
We’ll see. Unfortunately, as outlined in my op-ed last year, the environmental contamination investigation and remediation track record at the Truax base to date has been dismal, no matter who was president.
[1] As outlined in my op-ed a year ago, the military would prefer to follow federal laws (CERCLA) because right now PFAS is not designated as a “hazardous substance” by EPA, and the federal drinking water “health advisory level” (HAL) for PFOA and PFOS combined is 70 ppt. The Wisconsin Department of Health Services has proposed a groundwater standard of 20 for these two compounds combined, and DNR is using this as an interim standard–but it has not been promulgated as a standard yet in the state and will be fought tooth and nail by Wisconsin Manufacturers and Commerce, industries, and likely the military when it goes through the rule-making process in the Legislature.
