Why Dayton says it had to file $300M lawsuit against Wright-Patt over water contamination

The Air Force also ignored the city’s offers to work together, as well as calls from the Ohio Environmental Protection Agency to implement short-term solutions until it comes up with a long-term plan to prevent a group of chemicals known as PFAS from getting into some of the city’s drinking water wells, city and state officials said.

Wright-Patt and DoD officials denied the city’s allegations, saying they’re following federal guidelines and taking an aggressive approach to ensure contaminants migrating from the base remain below the federal recommended guidelines. By the city’s own admission, the base said, Dayton’s water is safe to drink.

The Dayton Daily News Path Forward project digs into solutions to the biggest issues facing our community, including the safety and sustainability of our drinking water. In an exclusive interview, Powell and one of the city’s lawyers provided in-depth explanations about why city leaders say they felt obligated to file the lawsuit last month and efforts they’ve made to minimize the amount of PFAS in the drinking water.

Dayton’s lawsuit seeks damages that range from $10 million to as much as $300 million, based on whether the DoD and Wright-Patt implement various treatment options to stop the alleged ongoing contamination, according to the lawsuit.

What are forever chemicals?

Per- and polyfluoroalkyl substances ― or PFAS ― are used in waxes, some food packaging, water-repellent fabrics, nonstick products, polishes and firefighting foam. Exposure to the chemicals can lead to birth defects, increase cholesterol levels and cause some forms of cancer, according to the Centers for Disease Control and Prevention.

Women who are exposed to PFAS, dubbed “forever chemicals” because they are indestructible, can pass it along to their babies during pregnancy and while breastfeeding. The chemicals can also decrease vaccine response in children, the CDC said.

Forever chemicals have been detected in 24 public drinking water systems in Southwest Ohio, including Areas A and B at Wright-Patt, according to the Ohio EPA, which conducted a statewide study in 2020. All but one public water system in the region ― Aullwood Audubon Farm Discovery Center ― were below the federal recommended level of 70 parts per trillion. A part per trillion is equal to about a grain of sand in an Olympic-size pool.

The contaminants from Areas A and B on the base affect surface and groundwater, and the soil in the Mad River Wellfield, Powell said. Several hotspots, including a storm water outfall that passes through the base into the river, have PFAS levels of 600 ppt, Powell said.

Why the city says it needed to sue

The city would have preferred not to take legal action, Powell said. But it has grappled with the problem for four years, he said, and the Air Force insists on studying the issue for several more years before deciding if it should take action, he said.

In the meantime, the contaminants will continue to threaten the drinking water supply and the entire Buried Valley Aquifer, which 1.5 million people in the Dayton region depend on, he said.

The city supplies drinking water to more than 400,000 customers in Dayton and Montgomery County. So it’s imperative that the issue is addressed now, Powell said, and delaying could affect human health and cost millions more in the long run.

“We take this very seriously, so seriously to the point that we would go through all the painstaking details to file a lawsuit like this,” he said. “I don’t know how we could emphasize it anymore; (it’s) the region’s drinking water.”

What has the city done to address PFAS?

Dayton has shut down several wells to help slow PFAS migration into the wellfield and ensure that it isn’t delivering tainted water to its customers, Powell said. The city also developed and implemented a detailed, extensive pumping program with its wells to reduce PFAS levels in raw and treated drinking water.

In addition, there’s ongoing modeling, testing and analysis, and those services are paid for through the water department’s annual operating budget, which is funded by water customers, Powell said.

As an extra precaution, the city borrowed more than $5 million to expand its monitoring well network in the Mad River Wellfield, he said, adding that the city will repay the loan through water rates. Adding more monitoring wells improves data collection and helps the city make better decisions to generate the highest quality water, Powell said.

Many of the steps the city has taken are not EPA mandates, he said. “But it shows our commitment to keeping the water safe” from contaminants that continuously flow in from the base, Powell said.

The Ohio EPA said the city has taken all the actions it has recently recommended.

Air Force says it’s taking an aggressive approach

The Air Force said it has also gone beyond what is required to ensure that water migrating into the city’s wellfield from Areas A and B meets federal guidelines. Four years of sampling data and technical assessments show PFAS concentrations at a steady state, and no indication of higher concentrations in groundwater migrating off base, officials said, noting that Dayton and Wright-Patt’s drinking water is below the U. S. EPA recommended action level of 70 ppt.

In addition, the base is following the federal Comprehensive Environmental Response, Compensation, and Liability Act, which is not an EPA requirement for PFAS. CERCLA, also known as Superfund, was created to set aside money for cleaning up abandoned or uncontrolled hazardous waste sites.

Wright-Patt is also taking an aggressive approach to PFAS remedial activities. It has agreements with appropriate regulatory and municipal authorities, and continues to work with the state and Dayton concerning PFAS-related issues, a spokesperson said.

“In addition, it should be noted that the Dayton water department has stated on its webpage that EPA stated that the quality of Dayton’s drinking water is ‘excellent,’” Wright-Patt said in a statement.

Ohio EPA wants to see more done

The base hasn’t gone far enough to address the immediate concerns, Dayton and the Ohio EPA said. The agency has consistently stated in letters and discussed with Wright-Patt that taking additional measures now can ensure Dayton’s wells are protected while the Air Force completes its investigations and implements longer-term solutions, said Heidi Griesmer, Ohio EPA’s deputy communications director.

“The CERCLA process does not align with the need to implement remedial measures with a sense of urgency, which is why Ohio EPA continues to ask WPAFB for expedited, proactive measures to mitigate PFAS contamination into the Mad River wellfield,” she said. “The actions we have described will protect the Mad River wellfield while WPAFB takes the time they need to complete the CERCLA process.”

The agency has asked the base to:

Those measures were included in notices of violations issued to the base, and were dated Jan. 29, 2018, and Aug. 15, 2019. However, Wright-Patt has not adequately responded to the NOVs, Griesmer said, and has not taken adequate, proactive measures to mitigate forever chemical contamination into the Mad River wellfield.

The Air Force disagrees. It has responded to the Ohio EPA, detailing the steps it was taking to address the chemicals under the CERCLA framework, base officials said.

In addition, the base will conduct a remedial investigation at sites identified in inspections, officials said. It is validating off site water samples from 22 private drinking water wells, and expects to have that information this month.

“All of these actions are consistent with the CERCLA process that the Air Force follows across the country,” the base said in a statement. “Our number one goal is to ensure no one is drinking water above the Lifetime Health Advisory as we move through this thorough process to evaluate future actions.

What else could be done?

The Water User Committee set up by U.S. Rep. Mike Turner has hired a consultant to study the region’s drinking water system, including forever chemicals, said Tom Raga, the committee’s chairman.

“We expect the final report to recommend best practices for water quality and other system improvements to meet the community’s long-term needs for infrastructure and safety,” Raga said. “The report is an important component to maintain confidence for all water users, which aids community and economic development.”

The final report is expected to be complete by mid to late September, Raga has said, noting that it will be released to the public.

Perhaps the most effective and economical way of addressing the problem is to treat it at the source, where the contaminants are most concentrated, Powell said. In this case, the contaminants are entering the wellfield from various locations along Areas A and B of the base. Therefore, the Air Force should treat it within those boundaries, he said.

However, the base has refused numerous times, insisting on conducting studies first, Powell said.

“It’s a little frustrating,” he said. “We don’t need additional studies. There are things that can be done now to help to mitigate (the PFAS) and slow it down, even if you are going to do additional studies.”

It is best to remediate the contaminants at the source, said Abinash Agrawal, a groundwater remediation expert and professor of earth and environmental sciences at Wright State University. However, if the chemicals have already left the source and start to spread, it would be better to stop the plume just ahead of the leading edge, he said.

The best treatment option for the source zone is some sort of inground treatment that destroys the contaminant or minimizes further leaching from the source, Agrawal said. A cost-effective way would be to excavate the soil, and inject a carbon-based product such as PlumeStop that will reduce leaching.

The carbon pulls the PFAS from the water and makes it stick to the ground, making the water clean.

Regardless of the treatment method, Powell said the city will remain diligent in ensuring it continues to deliver quality water to customers while also holding the base responsible.

“We believe that the ratepayers should not be responsible for treatment; the responsible party should,” he said. “That’s the whole purpose of the lawsuit, to have the parties that are responsible to bear the costs.”