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Tuesday's postcard, and the trouble Spokane's airport may face for not disclosing its contaminated groundwater problem
August 15, 2023
When last we visited the toxic “forever chemicals” story unfolding on the plains west of Spokane, the Washington Department of Ecology had sent a pointed message to Larry Krauter, the CEO of Spokane International Airport (SIA).
The July 6th letter has important legal ramifications. It notified SIA (a public entity created by the City of Spokane and Spokane County) that Ecology was moving to treat the airport as a “potentially responsible person” under Washington’s toxic pollution control law. Over the signature of Nicholas Acklam, a top manager with the state’s Toxics Cleanup Program, it informed SIA that Ecology only recently learned that groundwater at the Spokane airport has been contaminated with highly toxic per-and polyfluoroalkyl (PFAS) chemical—for at least six years. (PFAS chemicals are so toxic they are regulated in parts per trillion, as compared to better known toxics like lead, arsenic and mercury which are regulated in parts per billion.) Records show SIA officials were aware of the contamination.
Even more important was the context of the letter.
Under state law (RCW 70A .305.110) facility operators “shall issue a notice to the department [Ecology} within ninety days” of learning of a release of hazardous material. Yet—as an Ecology spokesperson confirmed late last week—there has been no such notification. Instead, the pollution was brought to light by a private citizen who’d discovered the evidence in a pile of SIA internal documents obtained via a public records request. That evidence was shared with public health officials who, in turn, shared the documentation with Ecology.
Spokane International Airport with arrow pointing to general area where PFAS was found in groundwater samples in 2017.
The state’s law also requires that owner/operators timely notify neighboring property owners and community organizations of the discovery of contamination.
That didn’t happen either.
SIA’s response —or lack thereof—to discovering the contamination in its groundwater is conspicuous compared to how the U.S. Air Force reacted to the discovery, in early 2017, of high levels of PFAS chemicals in groundwater at Fairchild Air Force Base, just four miles west of SIA. The Air Force’s discovery was disclosed to a Spokane health district official and led, in short order, to groundwater testing of the City of Airway Heights’s domestic water supply wells. The city’s well water was found to be contaminated with PFAS chemicals, and Airway Heights moved quickly to replace it with water piped in from the City of Spokane. The cause of the contamination at Fairchild—as it almost certainly is at SIA—is flame retardant foam (used to suppress aviation fires and in fire-fighting training) in which PFAS has long been the main ingredient. In recent years, both state and federal governments have enacted new laws to limit and phase-out the use of fire-fighting foam containing PFAS.
As Airway Heights and other affected water systems raced and struggled to find replacement sources of safe drinking water, personnel from the base assisted in distributing bottled water. On May 23rd, 2017, the base commander, Col. Ryan Samuelson, convened a meeting at a nearby high school to pledge the Air Force’s leadership in helping to resolve the crisis. The Air Force invited representation from SIA to help respond to public questions but SIA’s ambivalence about the invitation is reflected in an email exchange between the airport’s public affairs director, Todd Woodard, and CEO Krauter. When Woodard passed the invitation on to his boss, seeking Krauter’s guidance, the SIA CEO responded: “Let’s discuss. I am not sure we want to jump in here. It’s not our public meeting.”
Fairchild Base Commander Col. Ryan Samuelson at the May 2017 public meeting following the discovery of the extensive groundwater contamination. (Air Force photo)
John Hancock is one of the founders of the West Plains Water Coalition organized in response to the PFOS contamination. He lives in the Deep Creek community, northwest of the airport and Fairchild, where several private wells have tested positive for PFOS.
“It seems like Colonel Samuelson at Fairchild did his duty in a good way by simply owning the problem, promising transparency, and getting busy right away to test the neighborhood,” Hancock says, noting that the Air Force began installing water filtration systems on neighbors’ wells in 2018. ”So after this groundwater trouble was acknowledged by the Air Force, they got busy pretty quickly to protect us. And the contrast with how the airport and/or the [county] commission behaved around the same aquifer with the same chemical is pretty stark.”
Certainly one of the questions raised by Ecology’s notice to SIA in July is whether and how much SIA will be forced to pay to remediate the contamination at the airport. But the circumstances of its non-disclosure of the groundwater contamination also deepen its potential liability.
Under state law (RCW 70A.300.090) failure to comply with state hazardous waste rules—including failures to disclose contamination to Ecology—“shall be subject to a penalty in an amount of not more than ten thousand dollars per day for every such violation.”
Conceivably, that could put SIA on the hook for penalties of $10 million or more given that evidence of the contamination was noted in SIA’s records and internal communications six years ago.
In a November 2017 email to CEO Krauter and Jennifer West, the Secretary of the SIA board, Woodard wrote:
“In June 2017 we sampled four existing monitoring wells on Airport property, which had been installed years ago as part of the Airport’s State Stormwater Discharge Permit. PFOA/PFOS (the most common PFAS variants) was detected at levels in three of the four wells at higher than the established screening levels.”
How Ecology and the state Attorney General are approaching this evidence is part of what I hoped to learn, last week, when I contacted Ecology and made a public records request for SIA’s response to Acklam’s July 6th letter. Acklam’s letter had given SIA a 30 day deadline to either accept or contest its designation as a “responsible person” for the PFAS contamination.
Obtaining SIA’s answer to the letter should have been a straight-forward matter. Both Ecology and SIA are public entities subject to common expectations of transparency and, more importantly, the state’s public records law. My record request consisted of a single sentence and was sent Wednesday, August 9th.
The response was a surprise. I was notified by an Ecology public records administrator that the document I’d requested—SIA’s response to Ecology—had been withheld for “third party” notification, meaning an unnamed third party would have to be notified and given an opportunity to contest the release of the letter. The earliest I could expect a response, I was told, was Sept. 7th.
Long story short, it turns out the “third party” is a Washington, D.C.-based lawyer, Jeffrey S. Longsworth, a partner at Earth & Water Law that specializes in counseling and representing companies involved in environmental litigation. Longsworth has identified himself to Ecology as “Special Environmental Counsel to SIA.”
In lieu of the letter I requested, the only clue was in an electronic cover sheet from Longsworth that Ecology did release. It included the subject line: “Confidential settlement discussion correspondence from Spokane International Airport.”
I have appealed Ecology’s decision to withhold the requested letter and have also requested a copy of it from SIA. I will report on it if and when it becomes available.
Assuming that the state and SIA are involved in settlement discussions, it does raise the question of whether and to what extent SIA will be fined for failing to inform the state and its neighbors of the PFAS contamination in its groundwater.
An Ecology spokesperson, Stephanie May, did answer my questions on this subject. She reported that PFAS was treated as “an unregulated chemical” prior to Washington state finalizing its State Action Levels for PFAS variants. But that changed on January 1, 2022, she noted, when the state Health Department issued its final PFAS rule with “State Action Levels for five PFAS compounds. Once this rule was finalized, it required notification of PFAS detection to Ecology.”
Even though Washington state has been among the most proactive of the states in regulating PFAS, the regulatory standards for PFAS chemicals are still a patchwork. The Environmental Protection Agency is expected to finally issue national standards for PFAS in drinking water before the end of 2023.
The long delay in finalizing rules for PFAS contamination is disturbing but not baffling. As I noted in an earlier post, the delay is partly attributable to chemical giants like DuPont and 3M actively suppressing disclosure of scientific evidence of the “forever chemicals” toxicity. It’s also partly attributable to political foot-dragging. It invariably led to the tragic circumstances in 2017, not only with the discovery of the PFAS in Airway Heights drinking water, but subsequent testing that showed disturbingly high levels of PFAS chemicals in the bloodstreams of Airway Heights residents. It’s more than enough to show that time really matters.