On June 3, I asked “What is “progressive” Dane County doing about the PFAS oozing from the airport & burn pits?”
Today Chris Hubbuch at the Wisconsin State Journal reported that Dane County is legally fighting PFAS requirements in the WPDES stormwater permit DNR issued to the airport in April. Add this anti-regulatory, anti-environmental, anti-public health action to my previous list of what Dane County has been doing (or not doing) about their huge airport PFAS problems to date. Here’s that list again:
Ignoring and/or resisting DNR regulations. Tinkering around with taxpayer-funded pilot experimental treatments that have failed miserably to date. Ignoring the highly poisoned burnpits that they’ve known about for many decades or deflecting blame to others. Planning airport and runway expansions over contaminated, unremediated soils and groundwater. Refusing to test sediments in the creek downstream of the airport flowing through Truax and Darbo-Worthington neighborhoods–so MEJO and teens from these neighborhoods finally tested sediments (results were ignored). Not engaging the community beyond scripted, token online PR exercises at which the county’s corporate attorney assured community members that “everything is under control” with vague and misleading non-answers to their questions…
And now, after knowingly violating municipal (MS4) stormwater laws for many years (though they finally corrected this after being publicly shamed), Dane County is quietly–behind the scenes, without public discussion or even informing county supervisors–suing DNR in attempt to get out of PFAS sampling and pollution prevention requirements in WPDES industrial stormwater permit? Wow. I didn’t think it could get any worse.
This is especially appalling given yesterday’s announcement that EPA issued PFOS and PFOA drinking water “interim health advisory limits” of 0.02 ppt and 0.004 ppt (respectively)–in other words, almost zero. Since 2019, MEJO and other environmentalists, based on science available even then, have been arguing that the the standards being used and/or proposed (70 ppt, and even 20 ppt for PFOA + PFOS) were way too high and not protective. But our comments were dismissed and marginalized–or just ignored.
The levels of PFOS and PFOA compounds at the Dane County airport and Air National Guard military base (the airport’s tenants) are many orders of magnitude higher than the new EPA HALs. (The highest level of PFOS found in shallow groundwater at Truax Field to date–72,000 ppt–exceeds the EPA’s drinking water interim HAL by 3,600,000 times. And there are many other PFAS compounds at Truax Field that are not regulated now–and therefore they are mostly ignored. One day science will find that many if not all of these are also very toxic. I’m sure of it. This is why some top scientists have argued that we need a class-based PFAS standard).
The highest stormwater PFOS level at the airport to date, found in summer 2021, is 20,600 ppt (the total PFAS levels are over 40,266 ppt). The DNR’s proposed surface water standard for PFOS is 8 ppt (though they originally proposed that it should be 2 ppt to prevent PFOS from building up in fish to unsafe levels).
So, in sum, while the science is showing that PFAS compounds are vastly more toxic than previously thought, purportedly “progressive” and “green” Dane County is trying to legally shimmy out of having to follow Clean Water Act-based DNR stormwater regulations explicitly intended to prevent and/or reduce further discharges of toxic pollutants–in this case PFAS– into Starkweather Creek, Lake Monona, and fish. Why?
The county is clearly more interested in protecting its financial and legal interests than in preventing toxic stormwater pollution into our waterways and protecting public and environmental health. And it is being influenced and assisted by a national PFAS anti-regulatory lobbying group. More on that below.
But first–what are the county’s legal “substantial grievances” about the WPDES permit?
County claims its “injury is different in kind and degree from injury to the general public”
Yes, Dane County corporate counsel, Amy Tutwiler–obviously hired by the county in 2019 to help it deflect PFAS regulations and public concerns–actually had the gall to write this.
The legal petition the county submitted to the circuit court, signed by Ms Tutwiler, whined: “As owner of the airport, Petitioner’s injury is different in kind and degree from injury to the general public because Petitioner is the permittee that will be directly responsible for incurring the costs and undertaking the activities required by the Permit.”
The county then detailed why it is “substantially aggrieved” and how its “substantial interests are adversely affected,” listing “specific injuries” it will endure (regular font is verbatim from the petition, highlighted comments are mine):
a. substantial increased costs (Really? What are these costs? The county couldn’t answer this)
b. substantial administrative burdens, including probable controversy arising from unreliable analytical processes (Oh, boohoo. “Administrative burdens”? And what “probable controversy” are they anticipating?)
c. probable delays associated with sampling and other requirements that are redundant to and may conflict with ongoing remediation activities (Hmmm…How so?)
OMG!! I am crying into my porridge for poor Dane County, which might have to spend some money and there might be some “controversy”!! My heart goes out to them!
Meanwhile, the “kind and degree of injury” to the county is indeed “different in kind and degree from injury to the general public.” While the county will have to spend some money, the real physical injuries to the people exposed to the PFAS flowing from their airport and building up in fish could include immune, neurological and endocrine system disruption, pregnancy complications, infertility, developmental problems in infants, obesity, high blood pressure, several types of cancers, and many more.
It is shocking (disgusting?) to say the least, that Dane County is suggesting, and supporting with its legal actions, that its potential “injuries”–having to spend money, administrative work, possible “controversies”–are more important and “grievous” than significant, irreversible health effects (some leading to death) that city and county residents could suffer (and likely are suffering, but nobody is assessing them) from exposures to the PFAS that has been spewing out of their airport site for decades.
Dane County is being advised by the PFAS Regulatory (read, anti-regulatory) Coalition
In its response to the county’s comments on the draft permit (the “Final Determination”), DNR explained that the WPDES permit requirements are “to reduce the PFAS concentrations to meet the water quality standards in s. NR 102.04(1)(d)…The requirements of this WPDES permit are focused on actions the permittee can take to actively reduce concentrations of PFAS in the permitted outfalls with quarterly sampling proposed to track these reductions over time…this WPDES permit is requiring that DCRA reduce concentrations of PFAS in permitted outfalls moving forward.” (highlights added)
As the “Final Determination” document shows, the county had some help in resisting the permit requirements. A national anti-regulatory lobbying group called the “PFAS Regulatory Coalition” (the “Coalition”) also submitted comments on the permit.
The “PFAS Regulatory Coalition” is a national anti-regulatory lobbying group run by the DC law firm Barnes & Thornburg LLP. Since it formed in 2019, this “Coalition” has been helping airports, municipalities, and other polluters fight PFAS regulations, including in Wisconsin.
Here are some of the comments the Coalition submitted to DNR, questioning the “best management practices” required in the permit.
“The Coalition expressed concern with the fact that the BMPs proposed in the WPDES permit are inconsistent with the proposed new rule WY-23-19. The Coalition claimed that the determination of need as specified in the rule has not been met, since the permit doesn’t allow for two years of data collection prior to implementing the PFAS best management practices (BMPs). Furthermore, the Coalition questioned the department’s authority to include BMPs in the absence of numeric water quality criteria for PFAS due to there being no reduction targets and thus no ability to determine the efficacy of the BMPs. Last, the Coalition urged the department to await forthcoming federal guidance on NPDES permits as proposed in the USEPA’s PFAS Strategic Roadmap.
DNR responses to county’s complaints
In response, DNR explained that the PFAS discharging from DCRA storm drains exceed health-based water quality standards and this is why they included Best Management Practices (BMPs) in the permit: “In situations where a discharge has reasonable potential to cause or contribute to an exceedance of a water quality standard, including a narrative standard, the department must establish a water quality based effluent limit (s NR 106.04(1) or, where limits are infeasible or where BMPs are reasonably necessary carry out the purposes and intent of the Clean Water Act, require BMPs to control and abate the discharge of pollutants (s NR 205.10 Wis Adm. Code). The department concluded that BMPs are appropriate in this instance based on the criteria in s. NR 205.10, Wis Adm. Code.”
And…
“The requirements outlined in s. 5.2.12 of the proposed permit are consistent with the department’s authority
to include conditions in permits that are necessary to ensure the discharge meets state water quality
standards. The water quality standard in s. NR 102.04(1)(d), Wis. Adm. Code, states that “Substances in
concentrations or combinations which are toxic or harmful to humans shall not be present in amounts found to be of public health significance…” Given the significant concentrations of PFAS which were detected in DCRA’s permitted outfalls, the department has determined that the required actions in the WPDES permit are needed to reduce the PFAS concentrations to meet the water quality standard in s. NR 102.04(1)(d), Wis. Adm. Code.“
DNR also explained that their requirements are consistent with EPA’s PFAS approach.
The PFAS anti-regulatory “Coalition” also complained–in a now familiar trope from the anti-regulatory community and polluters who adopt their arguments–about the PFAS monitoring requirements in the permit, saying “the permittee will be relying on a sampling method that is not yet approved, not approved for all of the PFAS analytes specified, or not approved for sampling effluent” and more. The DNR responded that “While there are currently no EPA-approved methods for analyzing PFAS in 40 CFR Part 136, the department has authority to require monitoring for a pollutant using other suitable methods. Under 40 CFR 122.44(i)(iv)(B)” and more. Read the rest here.
Though in their initial comments on the permit, Dane County only resisted some permit requirements, by the time it submitted the legal petition weeks later–clearly influenced by the Coalition’s advice– it asked that ALL of the PFAS requirements in the permit be removed. In making this request, the county’s legal petition included several of the Coalition’s talking points and arguments.
Where do the highly PFAS-contaminated burn pits fit at the Dane County airport into all of this?
As I’ve written in the past, groundwater and soils at the two burn pits on the airport property–both just feet from Starkweather Creek, have some of the highest PFAS levels on the site. The burn pit saga, dating back to the 1950s, is long and ugly; the city, county and military have passed around responsibility for investigating and cleaning them up for decades.
The military recently reneged on its previous offer to include the burn pits in its CERCLA investigation. Who will take responsibility now?
And the contested WPDES stormwater permit DNR issued to the county doesn’t even include the burn pits. Why not?
More on this in another post…
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