The public comment process for the draft Environmental Impact Statement (EIS) for basing F-35s at Madison’s Truax Air National Guard base was not only token—it was a total sham.
According to the Final F-35 EIS (released on February 19), 5,706 comments were received from the public and agencies on the Draft EIS (for the Madison F-35 basing only). Commenters expressed numerous critical health, safety, environmental, socioeconomic, environmental justice and other concerns about siting high-tech F-35 war machines in Madison at the 115th Fighter Wing at Truax Field.
The Final EIS is barely different than the Draft EIS. It is almost the same length, and there are only a few additional sentences and sections. Here’s a table outlining changes or additions in the Final EIS document.[1]
Are we to believe that these minimal changes reflect meaningful or sufficient responses to the comments and questions of 5,706 people and government agencies? Of course they don’t.
Most comments were ignored or dismissed and therefore not addressed at all in the Final EIS document.
This pretty much sums up how token the EIS process was. But if you are interested in more details, read on…
Most public comments were dismissed
Brenda Konkel’s excellent blog summarizes the Air National Guard’s dismissive responses (or non-responses) to many of the public comments on the Draft EIS (I won’t repeat them here–read her blog!).
Like everyone else’s, nearly all of MEJO’s Nov. 1, 2019 comments were dismissed with non-answers, meaningless assurances, and a variety of vague statements—or just ignored—and therefore not addressed in the Final EIS.
Along with thousands of others, MEJO’s concerns about noise impacts to people living near the Truax base, especially low income neighborhoods, were dismissed with inaccurate claims and/or general, vague assurances based on little or no evidence.
One comment we submitted—potential impacts on elderly living near the base—was addressed in the Final EIS but then dismissed as follows: “Most of the impacted block groups do not contain a higher proportion of elderly residents than the surrounding region and there are no nursing homes or assisted living facilities for the elderly in the impacted areas.” Based on this, “impacts to the elderly would not be disproportionate and would be minor.”
This conclusion is based on a critical problem with the EIS noise modeling that we and many other commenters, including the City of Madison, raised in official comments. Many of the low income areas such as the Truax neighborhood, and elderly and assisted-living facilities near the Truax base (on Tennyson/Packers, off Northport, etc), were deemed just feet outside of the 65 dB noise contour line (or right on the line) based on modelling experts say is flawed. So noise effects on the most at-risk neighborhoods were not considered at all in the Final EIS.
Our questions about hazardous chemicals potentially released via stormwater into Starkweather Creek were dismissed by assuring that relevant laws will be followed. These claims are laughable, given that a myriad of toxic chemicals, including PFAS, have oozed off the base into Starkweather Creek for decades, in violation of numerous laws.
Questions about specific kinds of toxic chemicals required for the F-16s now and for the F-35s in the future—and effects of toxic chemical releases on low income people of color, disabled, and elderly living near the base—were ignored.
Crashes of F-35s, made of composite materials that release a toxic stew of contaminants when they burn, pose significant risks to people and the environment near crash sites, as well as firefighters. These materials can also burn for days. The Draft EIS included a paragraph describing some of the toxic chemicals likely to be released when materials in F-35 burn—but it was omitted from the final document.[2]
Noise effects on birds and wildlife? The Wisconsin DNR, Friends of Cherokee Marsh, MEJO, and others raised questions about this. Both the draft and final documents explained that birds may be affected by noise, but “are habituated” to it—and therefore will get used to the F-35 noise too. Impacts to wetlands, which would in turn affect birds and wildlife, were also deemed insignificant.
MEJO also questioned the highly inadequate “cumulative impacts” section of the draft EIS. In a way this is the most important part of the analysis, because people, wildlife, and the environment will be exposed to many of the negative effects of the F-35s—noise, toxic pollution, effects on home values, stress—collectively, not one at a time.
In response, ANG just repeated that “the ANG conducted a detailed analysis of the cumulative impacts…” It did not.[3]
What about PFAS? No full site investigation planned
MEJO, DNR, and other public commenters raised concerns about the fact that the aereal and vertical extents of the PFAS contamination at the base have not been investigated—and that construction on the base should not begin before these investigations are done because it will release PFAS into Starkweather Creek.
The DNR’s October 30, 2019 EIS comment letter stated that “The DNR does not consider the site investigation conducted in 2018…to be a complete site investigation as required under Chapter NR 716 Wis. Adm. Code and that “all planned construction projects will require a site investigation to determine whether PFAS contamination is present prior to construction.”
Further, the DNR letter included the following paragraph, with deletions/additions to the language already in the Draft EIS:
The letter also highlighted that “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.”
Did ANG blow off DNR comments? Or did they negotiate another arrangement? Public is in the dark…
The Final EIS says nothing about doing a full PFAS site investigation before construction begins and, again, only mentions three hangar locations where construction will occur. It includes a new table showing the levels of PFOA and PFOS at these locations: 238.5 ppt, 141.2 ppt, 3,676 ppt PFOA/PFOS. These levels are significantly over the 20 ppt standard proposed by WI Department of Health Services for PFOS + PFOA and the EPA’s 70 ppt “health advisory” for the same two compounds. [4]
As the October DNR EIS letter stated, “Results of the 2018 site investigation indicate that there is a likelihood of PFAS contamination in soils and groundwater across much of the installation.” A total of 46,000 ppt of six PFAS compounds were found in the limited soil and shallow groundwater testing done at the base, and this is likely just the tip of the iceberg. Many more than these six PFAS compounds were found in airport stormwater runoff and Starkweather Creek water in summer and fall 2019–most likely discharged from Truax Field. If more PFAS compounds were tested at the base, they would certainly find much higher total levels of PFAS.
Including the projects proposed in the Environmental Assessment (EA) approved last spring, the total acreage of planned construction on the base is almost 33 acres. All of the soils and likely most of the groundwater under and near these 33 acres will be disturbed during construction. Given that the groundwater at the base is very shallow, all or most of these areas will likely need to be “dewatered”–sucking up the shallow groundwater to keep the construction area dry–during construction.
Where will this highly contaminated water—likely millions if not billions of gallons—go? Into Starkweather Creek? Or the sanitary sewer—which goes to the Madison Metropolitan Sewerage District? Who will decide? What laws will determine this?
It’s not clear.
Will WI DNR and DHS laws and guidelines apply?
The DNR’s October 30, 2019 letter asked that the final EIS include a statement saying DNR dewatering permits would be required and noted that the “media management plan” in the draft EIS “runs counter to state requirements.”
DNR also noted in October that the Draft EIS said “media management plans are recommended for any area where soil or groundwater disturbance is expected to occur and site investigations indicate PFAS contamination above federal and/or state regulatory limits.” DNR questioned this. “There are currently no state or federal standards for PFAS” the letter stated, so “the statement quoted above suggests that media management plans would never be recommended.”
“Section NR 722.09, Wis. Adm. Code,” DNR continued, “requires a responsible party to establish site-specific cleanup standards in consultation with the state Department of Health Services. Furthermore, ch. 292, Wis. Stats. requires a response action whenever a hazardous substance discharge or environmental contamination is detected in any media, 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. Furthermore, ch. 292, Wis. Stats. requires a response action whenever a hazardous substance discharge or environmental contamination is detected in any media.”
On October 31, 2019—the day after the letter outlining the above requirements was sent—DNR sent ANG an official “Notice of Violation” and set a date (November 18, 2019) for a meeting with ANG to discuss the violations.
What happened at this meeting, and any subsequent meetings? What negotiations were made between DNR and ANG about which laws they would follow (or not)? We don’t know.
Is ANG hoping to be regulated under more lenient federal standards (or lack thereof)?
Will the DNR still insist on a full site investigation for PFAS at the Truax base? We have seen no evidence of that since the October 30 letter, and have heard rumors that the DNR has accepted a piecemeal investigation approach instead. The Final EIS does not mention a full site investigation or many of the points in the October 30 DNR letter described above. Instead, it refers to military and other federal guidance on how it will manage PFAS-contaminated soils, groundwater, and other media.
For instance, this paragraph was added to the document: “The 115 FW will comply with Air Force Guidance Memorandum (AFGM2019-32-01) AFFF-Related Waste Management Guidance to manage waste streams containing PFOS/PFOA (USAF 2019). The AFGM will be updated as needed to address changes in regulatory requirements, DoD determinations of risk, or development of new technologies.”
Problematically, this guidance in some places appears to only address PFOS and PFOA (it may address 6 carbon PFAS compounds as well; it’s not clear). Either way, as described above, there are numerous toxic PFAS compounds in soils and groundwater at the base. Just as troubling, the guidance refers to the highly inadequate and unprotective EPA “health advisory” level of 70 ppt as the trigger for different remedial options. [5]
Further, the ANG public comment response document says “The USAF is transitioning to an alternative firefighting foam and taking steps to reduce the opportunity for this alternative formulation to enter the environment. Transition to use of this alternative foam in the hangar systems is expected to be complete by the end of 2019, and retrofitting of the fire vehicles is 97 percent complete.”
This may sound good—but what is the “alternative foam” USAF is switching to? Is it PFAS free? As far as we know, U.S. airports and military bases are still required to use PFAS-based foams. Many “alternative” foam formulations include PFAS compounds that are just as toxic as the ones they replaced.
This paragraph was also added to the Final EIS: “Per the Site Investigation Report, no soil samples exceeded the USEPA risk-based screening level for PFOS/PFOA within the planned construction area. Groundwater samples for PFOS/PFOA exceeded the USEPA Lifetime Health Advisory of 70 parts per trillion (ppt) for drinking water at all three locations within the planned construction area. The next step in the CERCLA process is the Remedial Investigation. During the Remedial Investigation, the agency will collect detailed information to characterize site conditions, determine the nature and extent of the contamination, and evaluate risks to human health and the environment posed by the site conditions by conducting a baseline ecological and human health risk assessment. The CERCLA process will continue regardless of any construction activities.” (CERCLA is the Comprehensive Environmental Response Compensation and Liability Act).
As for construction, it says “Construction activities, to include the handling, mitigation, and disposal or other disposition of contamination discovered before or during the construction activity, will proceed in accordance with all applicable legal requirements.”
What does “all applicable legal requirements” mean? Does this include local and state laws, or just federal? Again, it’s not clear.
Should we be comforted by the PFAS contamination at the base being regulated under CERCLA?
The Truax base has been regulated under CERCLA since June 1980, when DoD issued a Defense Environmental Quality Program Policy Memorandum requiring identification of past hazardous waste disposal sites on DoD installations. The policy was issued in response to the Resource Conservation and Recovery Act of 1976 (RCRA) and in anticipation of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCIA, Public Law 96-510) commonly known as “Superfund.”
Currently, PFAS compounds are not listed as hazardous substances under CERCLA, so we’re not sure what it means that CERCLA will be applied in this context.
We have heard rumors that this CERCLA involvement in the PFAS contamination means there could be some federal money for investigations/remediations at the planned construction areas on the base—and that DNR has agreed to this deal because some limited cleanup is better than nothing.
Because discussions between DNR and ANG have all been behind closed doors, we don’t know if these rumors are true. If they are, we agree that some cleanup is better than nothing. That said, we have many questions and concerns about what this means about the potential for full site investigations at the site, control of PFAS discharges from it, and the adequacy of health/environmental risk assessments and triggers for cleanup.
Again, comprehensive PFAS investigations at the site—and pathways of migration off the site, per NR 700 laws—are critical. Will this happen under CERCLA? The ANG document says that the CERCLA process will involve a “Remedial Investigation, which would determine the nature and extent of contamination and assess the potential risk to human health and the environment. If CERCLA’s risk assessment process ultimately determines there is a need for cleanup action, federal and state cleanup standards will be evaluated under the CERCLA process to see if they are Applicable or Relevant and Appropriate Requirements at the specific site. If so, they are incorporated into the cleanup levels that must be attained at the site.”
What does this mean? Will DNR be issuing “site specific standards” for the Truax base, as mentioned in the agency’s October 30 letter—or is that now moot?
Again, PFOA and PFOS are currently not considered hazardous substances under CERCLA (though environmental advocates and some federal legislators are working on listing them under CERCLA). In June 2019, DHS proposed a 20 ppt standard for PFOA and PFOS combined—and the Madison Water Utility and other government agencies are using this as an interim groundwater standard in the state. Will the 20 ppt be applied at Truax, or will the EPA’s highly inadequate 70 ppt for only two PFAS compounds apply? The new language in the Final EIS (and, as discussed above, the USAF AFFF guidance referred to) indicate that it’s the latter. If so, this is a significant problem.
Further, does this CERCLA language mean that soil and groundwater contamination at the entire Truax ANG site will be promptly and comprehensively investigated, as the DNR laws require? It seems unlikely. The ANG response document says “the only known potential for existing PFOA/PFOS contamination to be encountered as a results of the F-35A beddown is through construction activities” and the Final EIS lists only the construction planned at three hangars, not the whole base.
The history of contamination at the Truax base doesn’t bode well for any prompt or complete investigation of PFAS under CERCLA. The CERCLA process guided toxic contaminant investigations and remediations at the base from 1988 to 2012 (for PCE, TCE, PAHs, PCBs, metals, petroleum compounds and more).
As described in MEJO’s “background document” submitted with our comments for the February 28, 2018 F-35 listening session called by city alders, these investigations were spotty, inadequate, and incomplete (this was before PFAS data from the site was made public). Many Wisconsin NR 700 laws were not followed. Though many of the contaminated “hotspots” were issued “no further action” letters from DNR by 2012, much of the contamination remains in soils and groundwater under the site; some contaminated soils that were excavated on the site were used as fill elsewhere on the site. (Given that PFAS hadn’t been tested at the site yet (as far as we know), this would have spread PFAS around the base.)
MEJO’s February 28 background document also describes glaring gaps in how Air National Guard consultants, following the CERCLA “Relative Risk Evaluation” process, purportedly identified human and ecological risks to inform decisions about remedial actions. For instance, following this process, they concluded that there was no reason to test discharges of toxic chemicals documented all over the base into Starkweather Creek. The evaluations admitted that “Drainage on the base is channeled by excavated ditches and culverts which are routed into Starkweather Creek” and “Starkweather Creek discharges into Lake Monona south of the facility.”However, on subsequent pages when rating risks, the ANG consultants concluded that surface water and sediments were “not proximate to the site” (!) and therefore did not need to be sampled or otherwise evaluated.
DNR did not step in during all all the years of investigations under CERCLA and insist that Starkweather Creek (a major pathway of migration off the base) be sampled, in line with NR 700 regulations (which based on documents we have, still applied to the base at that time).
Now, decades later, we have data showing that Starkweather Creek water, sediments, and fish are heavily contaminated with PFAS and probably a plethora of other toxic chemicals that haven’t been tested.
Given this history, should we feel reassured that the CERCLA process will mean there will be comprehensive investigations of PFAS at the base and offsite—and that DNR will step in to assure that this is done according to NR 700 regulations? No.
City and county say they are “powerless.” NO, they aren’t.
Regardless of what the DNR and U.S. military do or don’t do, what can local agencies do?
For the last couple years, and during the EIS process, city and county officials have told us repeatedly that they are “powerless” to do anything about the PFAS contamination at the Truax base, including about construction projects that could release PFAS into Starkweather Creek.
If that is the case, why did the October 30, 2019 DNR letter specifically add the word “local” to the list of regulations the ANG should follow at the site regarding construction projects (see above)? Certainly DNR understands what laws apply to construction projects at the base.
As our 2019 Starkweather EJ report outlines, the city and county have various regulatory and permitting authorities and responsibilities they can use to assess and prevent further discharges of PFAS from the airport and Truax base into stormdrains and local waterways.
In addition, in the section on permits needed, the Final F-35 EIS lists Dane County ordinances that need to be followed. See footnote [6].
City and county officials need to pull their heads out of the toxic muck, stop claiming powerlessness, and use all available powers they have to stop the flow of PFAS—and myriad other toxic chemicals—from Truax Field into Starkweather Creek and Lake Monona.
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[1] I went through and compared each page and pulled out any changes and/or additions that weren’t in the draft. I cannot claim this is 100% of the changes/additions; I could have inadvertently missed some.
[2] This paragraph was REMOVED from page WI-63 of the draft EIS: “The F-35A aircraft has a 42 percent composite material by weight, while the F-16 aircraft has 13 percent. One disadvantage of composite materials is that they have the potential to degrade under extreme temperatures, resulting in the production of toxic fumes and airborne respirable fibers. Laboratory studies have identified respirable fiber products and toxic gases (including high levels of CO, NOx, and hydrogen cyanide) from burning composite materials. Because of these characteristics, composite aerospace materials present unique hazards to mishap responders. Individuals exposed to a crash site could experience dermatological and respiratory problems. Exposure to these hazards would not necessarily end when a fire is extinguished; exposure to recovery crews, site security, the surrounding population, and others could continue (Naval Air Warfare Center 2003). However, research on aircraft composite materials similar to that used on F-35A aircraft demonstrate that combustion characteristics of composite materials are similar to other combustible materials and rapid flame spread or excessive heat releases are not a concern. Additionally, data and experience from several crash responses indicate that single fiber concentrations are typically very low, and a very specific and rare set of conditions is needed to produce airborne carbon fires. Due to the rarity of mishaps involving composite aerospace materials, no epidemiological data are available on personnel exposure to burning composites, and no studies have assessed the toxicology of carbon fibers generated in fire scenario with extended post-exposure duration.”
[3] A small section in the Draft EIS called “unavoidable impacts” stated that: “Certain F-35A beddown activities are projected to result in disturbance and/or noise within areas not previously or recently subjected to these effects. Some of these noise effects could be considered adverse or annoying to potentially affected individuals.” (pg. 2-44) This little section, which most public reviewers probably didn’t notice, seemed to be a cover for a wide range of unpredictable negative impacts that could result from the F-35s that the DEIS doesn’t discuss. MEJO asked that ANG articulate what kinds of “unavoidable impacts” might occur with the F-35 A beddown. Which “F-35A beddown activities” are “projected to result in disturbance and/or noise within areas not previously or recently subjected to these effects”? These comments were ignored.
[4] These levels are significantly above the EPA’s inadequate 70 ppt “health advisory” for these two compounds and exceed the Wisconsin Department of Health Services (DHS) proposed standard of 20 ppt by even more. The Final EIS also only mentions two PFAS (PFOA and PFOS), though a total of up to 46,000 ppt of six PFAS compounds were found in fairly limited shallow groundwater testing at the base. If more PFAS compounds were measured, much higher total PFAS levels would be found—and over a much wider area.
[5] https://static.e-publishing.af.mil/production/1/af_a4/publication/afgm2019-32-01/afgm2019-32-01.pdf
[6] Final F35 EIS, pg. WI-14-15
(pertaining to the county, see bullet point three below)
Permitting. The following section describes the permits that would be required to implement at this alternative location.
- Facilities that discharge stormwater from certain activities (including industrial activities, construction activities, and municipal stormwater collection systems) require Clean Water Act (CWA) Section 402 National Pollutant Discharge Elimination System (NPDES) permits.
- For construction activities disturbing 1 or more acres, the project would require the application for, and compliance with Wisconsin’s general stormwater permit, “General Permit to Discharge under the WPDES – Land Disturbing Construction Activities.” Site-specific stormwater pollution control plans will be developed, and practices implemented, in conformance with the permit and State Regulations NR 151 and 216.
- The 115 FW installation has industrial activities as defined in 40 Code of Federal Regulations (CFR) 122, and is covered as a co-permittee under Dane County Regional Airport’s Wisconsin Pollutant Discharge Elimination System (WPDES) permit (WPDES Permit No. WI-0048747-04-0) (WIANG 2016). The conditions of the permit are intended to comply with existing water quality standards contained in Chapters NR 102 and NR 105 of the Wisconsin Administrative Code. The permit also regulates stormwater point discharges and wastewater discharges to the airport’s separate storm sewer system and requires periodic reporting by the Dane County Regional Airport. As required by the installations WPDES stormwater discharge permit specifically, the 115 FW installation has developed and implemented a Stormwater Pollution Prevention Plan (SWPPP) (WIANG 2016) with the purpose to provide a management and engineering strategy specific to the 115 FW installation to improve the quality of stormwater runoff and thereby improve the quality of receiving waters. The existing SWPPP (WIANG 2016), already in place for the installation, would be amended, as necessary, to reflect post-construction operations and potentially new best management practices (BMPs).
- Additionally, the discharge from one oil/water separator (OWS) operated by WIANG that discharges to Starkweather Creek is covered under the 2015 Dane County Regional Airport WPDES permit.
- Federal projects with a footprint larger than 5,000 SF must maintain predevelopment hydrology and prevent any net increase in stormwater runoff as outlined in Unified Facilities Criteria (UFC) 3-210-10, Low Impact Development, and consistent with the U.S. Environmental Protection Agency’s (USEPA’s) Technical Guidance on Implementing the Stormwater Runoff Requirements for Federal Projects under Section 438 of the Energy Independence and Security Act (EISA) of 2007.
- Control of stormwater flow and pollution controls would be applied in accordance with Chapter 14 of the Dane County Ordinances: Erosion Control Permits and Stormwater Control Permit (Chapter 14, Subchapter II: Erosion Control and Stormwater Management). Chapter 14 regulates stormwater pollution and flow for construction activity that disturbs more than 4,000 SF of land area and/or creates more than 20,000 SF of impervious surface. In addition, a cumulative soil annual loss rate of less than or equal to 7.5 tons per acre from construction activity areas will be achieved in accordance with the Dane County Erosion Control and Stormwater Management Manual, by following procedures outlined in Chapter 2, Erosion Control, of the Manual.
- The 115 FW will coordinate with the USEPA, Region V and Wisconsin Department of Natural Resources (WDNR) regarding proposed construction near Environmental Restoration Program (ERP) sites on the 115 FW installation.
- A conformity applicability determination is required for federal actions occurring in nonattainment or maintenance areas for criteria pollutants when the total direct and indirect stationary and mobile source emissions of nonattainment pollutants or their precursors exceed de minimis thresholds. Because the 115 FW installation is located within an area in attainment for all criteria pollutants, a conformity applicability analysis is not necessary.
- Personnel conducting construction and/or demolition activities will strictly adhere to all applicable occupational safety requirements during construction activities.
- Sampling for asbestos-containing materials (ACMs) and lead-based paint (LBP) would occur prior to demolition and renovation activities for those buildings not previously tested; all materials would be handled in accordance with USAF policy. If ACMs or LBP is present, the 115 FW would employ appropriately trained and licensed contractors to perform the ACM and/or LBP removal work and would notify the construction contractors of the presence of ACMs and/or LBP so that appropriate precautions could be taken to protect the health and safety of the workers.
Some of the construction and modifications would require prior Federal Aviation Administration (FAA) approval of a change to the airport’s Airport Layout Plan. Before providing such approval, the FAA would have to comply with NEPA.
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