Airport lease lets military off the hook for pollution, critics say

By Andrew Bahl and Allison Garfield | The Capital Times, December 4, 2023
Read online

Residents, environmental advocates and elected officials are worried an effort to formalize the Wisconsin Air National Guard’s presence at the Dane County Regional Airport could make it hard to hold the military legally responsible for pollution.

The Dane County Board is weighing whether to approve a joint use agreement among the airport, state and federal military officials. The proposal could be considered by the County Board later this month.

The upshot of the arrangement is that the military would continue to provide fire and rescue at the airport, which would save local taxpayers and possibly airline passengers from having to pay for those services.

Without help from the Air National Guard, airport leaders said the county wouldn’t be able to install a firefighting force without significantly hindering operations and incurring millions of dollars in costs.

Critics say that benefit doesn’t make it a good deal for the airport.

Under the arrangement, the county would receive a one-time $100 lease payment over the 10-year deal. The county and military would handle maintenance costs for their respective facilities.

The deal, however, releases the military from liability for ”hazardous substance exposure or pollution of or contamination to air, land, water, person or property” that might result from providing those fire and rescue services.

County Supervisors Yogesh Chawla, Heidi Wegleitner, Sarah Smith and Jacob Wright hope to modify the agreement to remove that clause — which they worry shields the military from claims related to existing and future PFAS contamination caused by military use and firefighting service — and to make other adjustments.

“We’ve seen quite a bit of irreversible environmental damage that has stemmed from the airport. What we’re trying to do going forward through this airport joint-use agreement is to protect the health and safety — and most importantly the drinking water — of our community,” Chawla told the Cap Times. “We’ve already seen it’s been contaminated by these PFAS chemicals. We’re trying to stem any further damage.”

‘A multimillion-dollar issue’

Madison’s Truax Field Air National Guard Base and Dane County Regional Airport are PFAS-contaminated sites, according to the state’s Department of Natural Resources, as a result of their longtime use of firefighting foams. The PFAS chemicals then washed into a nearby creek and seeped through the soil into the groundwater in the area, contaminating a large part of Dane County, Public Health Madison & Dane County reported.

The DNR identified Dane County, the city of Madison and the Wisconsin Air National Guard as responsible for remediating contamination at the airport in 2019. Since then, the city, county and Guard have worked on remediation efforts addressing PFAS, or per- and polyfluoroalkyl substances, a group of manmade chemicals that can exist in the environment for possibly centuries.

PFAS are believed to potentially cause cancer, high cholesterol and other health problems.

In a memo sent to Airport Director Kim Jones and other county officials on Dec. 1, the four supervisors also requested:

• “Fair compensation” to the county for use of the airport and the associated costs to environmental and community health.
• Removal of language that releases the state or federal government from any claims related to military negligence in its operations out of the Dane County Regional Airport.
• Use of only fluorine-free foams, which don’t contain PFAS, in all firefighting activity and training.
• A renegotiated termination agreement to remove any damages to the county if the joint-use agreement is ended.

The contract will go before the county’s Personnel and Finance Committee on Dec. 18.

Supervisors Chawla, Wegleitner, Smith and Wright are asking that the modifications be made no later than Dec. 15 to allow the committee to consider the changes. They also want the airport and corporation counsel, the county’s lawyer, to begin negotiations on modifications prior to the Dec. 18 meeting.

“We know that there is no solution for PFAS cleanup, and we know that it’s going to be a multimillion-dollar issue, not only in Dane County, but across the United States,” Chawla said. “We need to make sure that in any agreement we enter into we’re not releasing the other party for the damages they’ve already done, or for any potential damages that they could be doing in the future.”

Airport officials maintain that the contract language applies only to future contamination, meaning that it would not address liability for past use of potentially toxic chemicals in firefighting foam.

“As with all contract negotiations, every attempt was made to create the most favorable contract terms for the airport, the county, and its residents,” Michael Riechers, a spokesperson for Dane County Regional Airport, said in an email. “Given the known environmental risks, any entity doing this work for the airport on contract would include a similar provision as a condition of providing the service.”

The clause releasing the National Guard from liability was interpreted to apply only to the future use of firefighting foam on non-military aircraft, with the airport responsible for cleanup and possible litigation against whomever is responsible, such as the foam’s manufacturer, Riechers wrote.

The state National Guard said the contract language at issue was crafted by the National Guard Bureau, the federal agency responsible for administering the national guard. The National Guard Bureau has not yet answered the Cap Times’ questions about their legal interpretation of the contract wording.

PFAS concerns persist in Madison

Truax Field became the first U.S. Air Force facility in the country to eliminate the use of PFAS in its firefighting foam. But prior use of the foam is believed to have resulted in the chemicals seeping into Starkweather Creek and nearby Dane County lakes. The airport has worked to reduce possible soil contamination caused by PFAS, but local residents’ wells have been polluted.

Dane County previously joined a class-action lawsuit against the makers of the firefighting foam but has yet to take any sort of legal action against state or federal military officials.

Jake Schlachter, a community organizer in Madison, said that if officials so firmly believe the proposed agreement references only future contamination events, then they should clarify that explicitly in the contract.

“Clearly the only good solution to this agreement is to get the military to drop their objections to having a one-sentence clarification in the contract that stipulates that that is everybody’s understanding,” he said. “And if they won’t agree to that one sentence, well, then that should raise a red flag about what their true intentions are.”

Schlachter and others want the airport to renegotiate the agreement to remove the liability waiver. Airport officials say they have already tried to do so, with the U.S. Air Force effectively issuing an ultimatum: Sign the deal as written or formalize the current arrangement to receive military-funded crash and fire response services for only one more year.

The second option would effectively require the county to create a fire department at the airport to respond to any accidents involving commercial or civil aircraft. Under the joint use agreement, the county would merely reimburse the military for their efforts.

Chawla said the $100 lease payment currently designated in the contract is “nominal at best” and could be considered “insulting.”

“The lease payment gives the county no financial incentive to basically jeopardize our entire drinking water system. We’re basically getting very little compensation to take on an enormous amount of risk,” he said.

He anticipates pushback on the proposed alterations to the contract from other supervisors and military officials. The supervisors who sponsored the resolution authorizing the joint-use agreement, Maureen McCarville, Jerry Bollig and Michael Engelberger, did not respond to Cap Times requests for an interview.

Potential affect on fliers

There also are concerns about the logistics of creating an airport firefighting department.

In a Nov. 15 email to County Board members, Jones, director of the Dane County Regional Airport, said that forcing this setup might actually increase the risk of environmental problems. Having two fire departments on airport premises would also mean both agencies would need to maintain firefighting foams consistent with federal regulations.

“This cost would be borne by air carriers, travelers, and/or taxpayers and would in all likelihood increase the cost of flights into and out of the Dane County region,” Jones wrote. “Under this scenario, the airport and its users would bear this new expense but the military would still maintain its own fire equipment on the premise and staff to service their aircraft.”

Airport officials have not come up with a formal estimate for what it might cost to create their own firefighting force, Riechers said, but he said it could run upwards of $20 million based on the experience of other airports.

“It is very unlikely that Dane County could build a new (fire and crash response) station quickly enough to avoid the worst-case scenario, which is a major disruption to the private and commercial use of Dane County Regional Airport,” he said. “The (Federal Aviation Administration) will not allow commercial flights into our airport without approved fire services. However, military use of the airport would continue and not be impacted because they will still have their own fire department.”