LANSING, MI — Gov. Gretchen Whitmer is attempting to use national defense policy legislation passed two years ago to force the U.S. Department of Defense into compliance with tough state pollution cleanup laws in Michigan.
In a March 31 letter to U.S. Secretary of Defense Lloyd Austin, Whitmer invoked a section of the 2020 National Defense Authorization Act (NDAA) that could force the Pentagon to meet the state’s new low PFAS standards while conducting cleanup at the former Wurtsmith Air Force Base in Oscoda and other military contamination sites.
The provision, added to the bill by Sen. Gary Peters, D-Mich., allows a state governor to request a new or amended cooperative agreement that would govern remediation at Department of Defense sites and require the military to comply with state pollution laws if those are more stringent.
The latest example occurred last week, when the Air Force said it plans to ignore state PFAS discharge rules while expanding a groundwater treatment system in Oscoda.
In the letter, Whitmer asked for the military’s upfront “commitment” to adhere to Michigan laws severely restricting how much PFAS contamination is allowed to remain in groundwater or treatment discharge and bake those thresholds into cleanup decision documents.
“I am also asking that the finalized cooperative agreement require these activities meet or exceed the most stringent standards for PFAS in any environmental media which, in this case, would be the enforceable State of Michigan standards,” Whitmer wrote.
The Michigan Department of Environment, Great Lakes and Energy (EGLE) released the letter Wednesday. Activists have been pushing Whitmer to invoke the provision for more than a year, arguing that accountability language giving Congress oversight of the cooperative agreement provides necessary leverage over the Department of Defense.
According to Section 332 of the bill, if an agreement isn’t reached within a year, the Secretary of Defense must explain why to Congress and offer a timeline for reaching one.
The provision was originally introduced by Sen. Debbie Stabenow, D-Mich., in 2018 as standalone legislation and later folded into the NDAA, an annual must-pass bill that sets spending and policy priorities for the military. It has been used as a vehicle to advance PFAS-related legislation unable to otherwise surmount Senate opposition in recent years.
Tony Spaniola, a metro Detroit attorney and PFAS activist who owns a home near Wurtsmith base in Oscoda, was happy to see the provision invoked but said the fight isn’t over.
“I thank the governor for intervening with the Department of Defense on behalf of the citizens of Oscoda,” Spaniola said. “I hope that she’ll continue to be personally engaged because there’s still a fight ahead and we need her help.”
The National Wildlife Federation also praised the move.
“The communities around Oscoda, that have been knowingly exposed to toxic PFAS from the former Wurtsmith Air Force Base for over a decade, deserve assurance that clean-up will meet the highest standards and the Governor invoking this authority is a critical step in that process.” said Mike Shriberg, NWF regional director. “This added layer of accountability for the Air Force is a critical step in helping to restore trust and transparency in the clean-up process and ensure that people, wildlife, our land and water are the priority.”
The Air Force did not immediately respond to a request for comment on Whitmer’s letter.
The Air Force is seeking public comment until April 17 on plans to expand a groundwater treatment system near Clark’s Marsh in Oscoda, a wetland south of the former base where some of the most highly PFAS contaminated fish, deer and other wildlife in Michigan are found.
The system expansion is one of several interim cleanup actions the Air Force agreed to undertake last year under heavy pressure from activists, state regulators and members of Congress — which gave the military $13.5 million in supplemental funding specifically for new stopgap cleaning measures at the former base in late 2019.
In a meeting last week, Air Force site managers said they weren’t designing the new treatment system to comply with state rules limiting PFOS discharge to 16 parts-per-trillion (ppt) and PFOA discharge to 8-ppt — levels formalized in December that mirror new state drinking water standards enacted last year. Air Force attorneys said federal law lets them ignore state rules until later stages in a slow-moving cleanup process that’s already eclipsed a decade.
State regulators discovered PFAS at Wurtsmith in 2010. The base is one of 16 sites in Michigan where such contamination is linked to toxic firefighting foam used by the military.
Total cleanup at Wurtsmith has been estimated to exceed $250 million and would require numerous groundwater treatment systems around the base. The chemicals are also widespread at various off-base sites around Oscoda that the Air Force refuses to accept responsibility for, although local officials say the contamination is linked to military foam.
The local NOW (Need Our Water) activist group is holding a webinar about the contamination on this evening at 7 p.m. The state of Michigan is holding a community meeting on April 20 and there’s an Air Force Community Restoration Advisory Board (RAB) meeting on April 21.