Michigan Attorney General (AG) Dana Nessel has filed suit against the Gerald R. Ford International Airport Authority to enforce demands by the Michigan Department of Environment, Great Lakes, and Energy (EGLE) related to alleged per- and polyfluoroalkyl substance (PFAS) contamination of the regional drinking water supply caused by the airport authority.
Filed on September 8 in Michigan’s Kent County 17th Judicial Circuit Court, the lawsuit seeks injunctive and declaratory relief, past and future remediation and monitoring costs, and damages for the loss and destruction of natural resources for, among other issues, the airport authority’s alleged PFAS releases into the below-ground water supply, according to a statement from Nessel on her action.
The various forms of PFAS are commonly referred to as toxic “forever chemicals” because they do not break down in the environment. According to the U.S. Environmental Protection Agency (EPA), “removing PFAS from drinking water can be an expensive proposition.” The EPA is proposing to designate two forms of PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability (Superfund) Act, while an EPA final rule designating maximum contaminant levels in drinking water for PFOA and PFOS has been slated for promulgation in January 2024.
According to the Environmental Commitment: PFAS section of the Gerald R. Ford International Airport Authority’s website, the Federal Aviation Administration requires the airport, and other similar airports, to employ aqueous film-forming foam (AFFF) containing PFAS “because of its effectiveness in extinguishing jet-fuel fires.” The airport authority states that it “took proactive steps by voluntarily moving to an AFFF product that is asserted to have less environmental risk.”
According to Nessel’s statement, issued on September 11, her lawsuit contends that the airport authority is liable for previous and known releases of PFAS-containing firefighting material under Part 201 (Environmental Remediation) of Michigan’s Natural Resources and Environmental Protection Act (NREPA), and for violations of the airport authority’s National Pollutant Discharge Elimination System (NPDES) permit. The lawsuit alleges that these PFAS releases have impacted nearby properties and that PFAS has been discovered in residential drinking water wells in neighboring Cascade Charter Township, as well as in streams and other groundwater downgradient of the airport. Nessel’s statement contends that “the full breadth of the PFAS emanation from the Airport remains unknown.”
The AG’s statement further provides that EGLE sent “numerous compliance communications” to the airport authority dating back several years demanding information on its uses of AFFFs and the known releases of AFFFs. In September 2020, EGLE issued a violation notice under Part 201 of the NREPA that demanded, among other things, the creation and implementation of a plan to investigate the nature and extent of PFAS contamination from the airport authority’s historical use of AFFFs and “notices of migration of hazardous substances” to residents of Cascade Charter Township. Nessel’s statement contends that the airport authority did not comply and denied liability. According to the statement, the EGLE sent a final enforcement notice in March 2021, resulting in “many months” of unsuccessful settlement negotiations between the Michigan Department of AG and the airport authority.
Why It Matters
Nessel’s action is yet another example of a state AG’s use of her enforcement authority in relation to PFAS releases into the environment that also demonstrates the state and federal regulatory challenges facing the owners and operators of sites that are alleged sources of PFAS contamination in drinking water.
Troutman Pepper State Attorneys General Team
|Ashley Taylor – Co-leader and Firm Vice Chair |
Ashley is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. He focuses primarily on federal and state government regulatory and enforcement matters involving state attorneys general, the Consumer Financial Protection Bureau (CFPB), and the Federal Trade Commission (FTC). Drawing upon his experience as a deputy attorney general, Ashley has developed an extensive consumer practice with regard to the consumer financial services industry.
|Clay Friedman – Co-leader |
Clay is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. Informed by nearly a decade in a state attorneys general office, and more than 25 years in private practice, Clay spends much of his time representing clients in singular or multistate regulatory actions. Clay has repeatedly led teams before all 50 state attorneys general and also handles matters with the Federal Trade Commission, the Consumer Financial Protection Bureau, and other local, state and federal agencies.
|Judy Jagdmann |
Judy is a partner in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice, based in the Richmond office. She brings experience serving as chair and commissioner of the Virginia State Corporate Commission (VSCC) from 2006 through 2022, which includes regulating the utilities, insurance, banking, and securities industries. She also served as Virginia’s attorney general from 2005-2006.
|Stephen Piepgrass |
Stephen represents clients interacting with, and being investigated by, state attorneys general and other enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, particularly in heavily regulated industries.
|Avi Schick |
A former deputy attorney general of New York, Avi applies his experience in bet-the-company matters, representing clients in criminal and civil investigations and enforcement actions before state and federal regulators, prosecutors and enforcement agencies.
|Michael Yaghi |
Michael handles high-profile state attorneys general, FTC, and CFPB investigations by advising clients through these complex government inquiries. He assists clients through the entire life cycle of investigations, from regulatory enforcement through formal litigation.
|Ketan Bhirud |
As a former government official at the state and federal level, Ketan leverages extensive experience in the public and private sectors to skillfully represent client interests.
|Tim Bado |
Tim is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, with a primary focus on financial services litigation.
|Chris Carlson |
Chris represents clients in regulatory, civil and criminal investigations and litigation. In his practice, Chris regularly employs his prior regulatory experience to benefit clients who are interacting with and being investigated by state attorneys general.
|Natalia Jacobo |
Natalia is an associate in the firm’s business litigation practice. She recently received her J.D from the University of California, Davis School of Law.
|Namrata Kang |
Namrata is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. Her work includes advising clients in regulatory investigations and compliance matters, in addition to representing clients in civil litigation matters.
|Michael Lafleur |
Michael is an associate in the firm’s Regulatory Investigations, Strategy, and Enforcement Practice Group. Based out of the firm’s Boston office, Mike has deep experience in litigation, investigations, and other regulatory matters involving state-level regulators and state attorneys general.
|Susan Nikdel |
Susan is an associate in the firm’s Consumer Financial Services Practice Group, and focuses her practice on consumer financial services matters. She has defended several of the nation’s largest and most influential financial institutions in individual and class action litigation involving the Telephone Consumer Protection Act (TCPA), Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), and other consumer privacy statutes. Susan also represents banks, fintechs, and financial services companies in connection with regulatory examinations and investigations brought by the CFPB, state attorneys general, and the California Department of Financial Protection and Innovation.
|John Sample |
John represents clients in a wide variety of general and complex litigation matters, shareholder disputes, products liability, and privacy claims.
|Whitney Shephard |
Whitney is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. She represents clients facing state and federal regulatory investigations and enforcement actions, as well as related civil litigation.
|Trey Smith |
Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement practice. His experience includes serving as a summer associate at the firm in 2021.
|Daniel Waltz |
An experienced litigator, Daniel advises and represents regional, national and international companies, financial institutions and insurers in all facets of business, complex commercial and insurance coverage litigation. He is committed to working with his clients to find creative solutions to meet their needs.
|Stephanie Kozol |
Stephanie is Troutman Pepper’s senior government relations manager in the state attorneys general department.