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 co-leader of the firm’s nationally ranked State Attorneys General practice, vice chair of the firm, and a partner in its Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He helps his clients navigate the complexities involved with multistate attorneys general investigations and enforcement actions, federal agency actions, and accompanying litigation. |
 |
Clay Friedman – Co-leader Clayton is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice, multidisciplinary teams with decades of experience crafting effective strategies to help deter or mitigate the risk of enforcement actions and litigation. |
 |
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 leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on enforcement actions, investigations, and litigation. Stephen primarily represents clients engaging with, or being investigated by, state attorneys general and other state or local governmental enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, with a particular focus on 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 is a partner in the firm’s State Attorneys General and Regulatory Investigations, Strategy + Enforcement (RISE) Practice Groups, nationwide teams that advise clients on consumer protection enforcement matters and other regulatory issues. |
 |
Tim Bado Tim is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, where he represents corporations and individuals facing potential civil and criminal exposure. Tim’s experience in government investigations, enforcement actions, and white-collar litigation spans a number of industries, including financial services, pharmaceutical, health care, and government contracting, among others. |
 |
Chris Carlson Chris Carlson 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 Regulatory Investigations, Strategy and Enforcement (RISE) practice. She focuses her practice on two primary areas: government contracting and state attorney general work. |
 |
Namrata Kang Namrata (Nam) is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. She routinely advises clients on a wide variety of state and federal regulatory matters, with a particular emphasis on state consumer protection laws relating to consumer financial services and marketing and advertising. |
 |
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. |
 |
John Sample John is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on a wide range of general and complex litigation matters, including shareholder disputes, fraud, products liability, breach of contract, and Biometric Information Privacy Act claims. |
 |
Whitney Shephard Whitney is an associate 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. He focuses his practice on helping financial institutions and consumer facing companies navigate regulatory investigations and resulting litigation. |
 |
Daniel Waltz Daniel is a member of the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and State Attorneys General team. He counsels clients in connection with navigating complex government investigations, regulatory compliance, and transactions, involving state and federal government contracting obligations. Drawing on his broad experience as a former assistant attorney general for the state of Illinois, Daniel is a problem solver both inside and outside the courtroom. |
 |
Stephanie Kozol Stephanie is Troutman Pepper’s senior government relations manager in the state attorneys general department. |