PFAS clean-up liability delays vote on airport deal between Dane County, National Guard

December 22, 2023, Lucas Robinson | Wisconsin State Journal
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The Dane County Board, county lawyers and the National Guard are at odds over a contract some supervisors and environmentalist groups fear will let the military get out of legal responsibility for its role in PFAS contamination of drinking water in the area.

The board voted to postpone a vote Thursday night on renewing a contract that allows the Air National Guard fighter wing at Truax Field to use the airport in exchange for providing firefighting services. At issue is new language in the contract that shields the military from legal responsibility for PFAS contamination they might cause.

The military says that’s a new Air Force policy that only applies to any future contamination. Some supervisors contend that isn’t clear enough in the contract.

PFAS and similar substances — also known as “forever chemicals” — are synthetic compounds that don’t break down naturally and have been used in firefighting foam, nonstick materials and a variety of other consumer products. Exposure to the chemicals has been linked to to health problems including low birth weight, cancer and liver disease.

Due to growing awareness about the health dangers of PFAS, the Air Force is now inserting language into agreements with airports to shield itself from legal responsibility for future PFAS contamination, according to an email, released by supervisors, from Randy Chambers, a lawyer for the National Guard Bureau.

Lawyers for the county also argue that the indemnification language in the contract does not apply to past PFAS contamination.

But that left board supervisors unsatisfied, leading to a 21-11 vote to postpone a decision on the contract until January. Supervisors against postponement were: Jerry Bollig, Cecely Castillo, Michael Engelberger, Jeff Glazer, Tim Kiefer, Maureen McCarville, Melissa Ratcliff, Dave Ripp, Andrew Schauer, Matt Veldran and Jeff Weigand.

The board called on county attorneys to ask the military to explicitly say in the contract that they’ll only be legally shielded in the case of future contamination. County lawyers have requested just that of the military multiple times, but the military isn’t budging.

“It’s Air Force policy,” county attorney Amy Tutwiler said during Thursday night’s board meeting.

In an email to the State Journal, Chambers reiterated the military’s interpretation of what the contract does and doesn’t apply to, saying the agreement “does not apply to past contamination because the new clause is not retroactive.”

Emails from military officials stating that the contract only applies to future contamination could be used in court in the event of a lawsuit, Tutwiler said.

Even if the military refuses to change the contract, some supervisors say postponement shows the board is at least trying to get the best possible outcome for the county.

Others worried about another part of the contract that specifies “there are no understandings or agreements, verbal or otherwise, among the parties” except what’s in the contract.

“An email exchange is not sufficient for us to hang our legal risks on and hope that the county will come out safe at the end of this ten year agreement,” said Sup. Sarah Smith, who represents Monona in the 24th District.

If the board ultimately doesn’t authorize the contract, the airport will have to set up its own firefighting service. Based on estimates from Milwaukee Mitchell International Airport compiled by the military, the start-up cost for a county-run fire fighting service at the airport would total $10 million, with annual staff and maintenance costs running at about $3 million a year.

Airport Director Kimberly Jones has said the airport risks shutting down if it doesn’t set up a fire department within a year of voting against the contract. But Chambers has assured the county that the military would provide firefighting services in the interim so that the airport doesn’t have to shut down, according to an email released by supervisors.

The Pentagon has ordered all military bases to stop using PFAS-laden firefighting foam by October 2024. In May, the 115th Fighter Wing at Truax announced it was the first Air Force installation to stop using firefighting foam containing PFAS.

This week, the DNR stopped work on drafting standards for measuring PFAS contamination because the estimated cost for businesses to comply with new regulations exceed Gov. Scott Walker-era rules that aim to protect corporations from regulation.