Air Force lawyers are fighting an emergency order from the Environmental Protection Agency requiring the service to clean contaminated drinking water in Arizona, pointing to a recent Supreme Court ruling that restricts regulatory agencies as a justification to dodge the mandate.
In a letter last month, lawyers for the Air Force argued that a landmark June decision by the court in Loper Bright Enterprises v. Raimondo — which reduced regulatory agencies’ power by pushing authority to the courts to interpret ambiguous laws, referred to as “Chevron deference” — makes the EPA’s order asking the service to clean contaminated water from the Tucson International Airport moot.
“In this respect, the Supreme Court’s recent decision … makes clear that EPA’s interpretation of these statutory terms is not entitled to deference,” lawyers for the Air Force wrote, citing the recent ruling. “The EPA will not have the benefit of any ‘Chevron deference’ in any such proceeding.”
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In the 1980s, a 10-square-mile area around the Tucson International Airport and military facilities was designated as a Superfund site by the EPA. Groundwater was contaminated by “former aircraft and electronics manufacturing and aircraft maintenance,” “fire drill trainings” and “leaking of chemicals from unlined landfills” from Air Force Plant 44 and Morris Air National Guard Base, according to the agency’s website.
Joshua Alexander, a press officer for the EPA who provided the letter to Military.com, said Monday that trichloroethylene and 1,4-Dioxane have been detected in the past and, more recently, concentrations of per- and polyfluoroalkyl substances — known as PFAS or “forever chemicals” because they do not break down in the environment and build up in the body — have been detected in the environment and groundwater.
Potential adverse health effects from PFAS include kidney and testicular cancer, increased cholesterol levels and changes in liver enzymes, according to the Centers for Disease Control and Prevention.
“EPA is in the process of reviewing that correspondence and developing a response,” Alexander said, referring to the Air Force’s response to the agency’s order. “EPA will continue to carry out its oversight role and use its authority to protect public health.”
The EPA issued an order May 26 to the Air Force and Air National Guard citing the Safe Drinking Water Act, and asked the service to come up with a water treatment plan for PFAS within 60 days of that notice.
That May order referenced that the underground source of drinking water had PFAS in concentrations as high as 53,000 parts per trillion. The EPA standards list anywhere from 4 to 10 parts per trillion as acceptable.
But the service has pushed back, culminating in the most recent letter invoking the Supreme Court decision.
“Any enforcement of the order will not survive review, either in an administrative process or in federal court,” the letter reads.
The Air Force also argued in its letter fighting against the order that “there is no threat, ‘imminent’ or otherwise, to the public from the treated water.”
Environmental advocates have argued in the wake of the Supreme Court’s ruling in late June that the decision could cause harm to a host of regulatory agencies fighting for oversight.
“This is a profound change, and a terrible one,” David Doniger, senior attorney at the nonprofit Natural Resources Defense Council, said in a statement at the time of the ruling. “Whether they’re making food safer, air cleaner or safeguarding prescription drugs, agencies need to be able to respond to complex problems the modern world throws at us. This decision is profoundly destabilizing and leaves policy — and public health — up to the individual preferences and political biases of unaccountable judges.”
Despite the service’s opposition to the EPA in the letter, Laurel Falls, an Air Force spokesperson, told Military.com on Monday that the service will comply with its obligations.
“The Air Force will continue to meet our obligations under the federal clean up law [Comprehensive Environmental Response, Compensation and Liability Act], and the Safe Drinking Water Act while partnering with the City of Tucson, regulators and stakeholders on a regional solution for the Tucson community,” Falls said.
The news of the Air Force pushing back against the EPA’s order comes as the service has publicly announced it will be adopting new federal standards into its own PFAS testing and cleanup efforts. Since 2015, the Department of the Air Force has found that 191 of 204 installations that it inspected had released PFAS into the environment, Military.com previously reported.
