New Mexico amends PFAS lawsuit after new EPA rule

New Mexico is relying on a new Environmental Protection Agency rule to pursue the Department of Defense for the costs of cleaning up PFAS contamination near several military installations and for damages from contamination.

The New Mexico Environment Department, New Mexico Office of Natural Resources Trustee and the New Mexico Attorney General on Monday amended New Mexico’s lawsuit against the United States regarding per-and polyfluoroalkyl substances (PFAs) contamination present in and around military communities across the state.

The state added the U.S. Department of the Army as a defendant and adds Holloman and Kirtland Air Force bases, White Sands Missile Range and Fort Wingate as PFAS contaminated sites. The lawsuit already lists Cannon Air Force Base as a location with PFAS contamination.

“For over five years, the U.S. Department of Defense failed to take accountability for PFAS clean-up in New Mexico – leaving New Mexicans with a legacy of toxic PFAS pollution to shoulder,” NMED Cabinet Secretary James Kenney said.

“We applaud the EPA’s listing of certain PFAS, or ‘forever chemicals,’ as hazardous substances under the Superfund statute,” New Mexico Attorney General Raúl Torrez said. “We are committed to holding all responsible parties, including federal agencies, accountable for their contamination to protect public health and safety.”

“The releases of PFAS into the ground surrounding Cannon Air Force Base and other DOD facilities have injured the most valuable natural resource on Earth – our water,” ONRT spokesperson Maggie Hart Stebbins stated in an Environment Department news release.

The U.S. Department of Justice declined to comment on the lawsuit.

PFAS, or per- and poly-fluoroalkyl substances, are a group of long-lasting chemicals that can be found in a wide range of consumer goods and have been linked to health issues.

Firefighting foam was the source of much of the PFAS contamination at the military installations listed in the lawsuit, Kenney said.

The new EPA rule classifies two common PFAS chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act.

The rule allows states to hold polluters liable for contamination remediation and for damaging natural resources.

“We wanted to be first in line bright and early Monday morning to let the Department of Defense know they’re on the hook, and that’s why we amended our lawsuit, so that we could make sure the communities, like Clovis, are fully made whole,” Kenney said.

A request for comment from Air Force Special Operations Command at Hurlburt Field, Fla. was not returned.

To clean up PFAS in groundwater, the water has to be pumped out of the ground and run through a treatment system, Kenney said. The water usually goes through an activated charcoal filter, which pulls the PFAS out of the water. Then the filter has to be properly disposed of to avoid contaminating any other water sources.

The state has spent close to $10 million studying the PFAS contamination at Cannon Air Force Base, and Holloman Air Force Base near Alamogordo, Kenney said.

“Once we have those models of the groundwater hydrology better understood, which we’re getting close to now, we’ll be able to establish what it would take to pump and treat that water,” Kenney said. “But with respect to all the sites we have, when we look at the cleanup costs as well as the natural resource damages, I could easily see this costing the Department of Defense $150 million or more.”

In 2019, the Department of Defense sued New Mexico, claiming the state did not have the authority to require the agency to clean up PFAS.

“There’s no other state that I’m aware of that has ever been sued by the Department of Defense over PFAS contamination, which is entirely frustrating considering, subsequent to their lawsuit with us, they voluntarily cleaned up PFAS at Reese Air Force Base in Texas under the exact same authority,” Kenney said.

PFAS contamination needs to be addressed for the long-term well-being of New Mexico water systems, according to Kenney.

In 2022, Clovis area Highland Dairy had to euthanize 3,600 dairy cows because the milk the cows produced was contaminated with PFAS. The contamination came from Cannon.

The cows were composted on site, and eventually those remains will have to be dug up and disposed of so that they do not contribute to PFAS groundwater contamination, Kenney said. Other Clovis dairies are monitoring the water coming in for PFAS contamination before allowing their cows to drink the water, Kenney said.

“So we stand by our ag industry that our milk is safe, but it feels a bit like a ticking time bomb to me that we’re managing this sample to sample, gallon of milk by gallon of milk, and that’s completely unacceptable for the Department of Defense, 5 1/2 years after they launched their lawsuit to erode our authority, to still have our dairies in this position,” Kenney said.

Kenney appeared Monday in Clovis and Tuesday in Portales with Gov. Michelle Lujan Grisham and her cabinet.

During those events at Clovis Community College and Eastern New Mexico University, Kenney told the audience about the superfund action and “the state of New Mexico is the first in the country to be suing the feds.”

University of New Mexico researchers had a study published in February that found high levels of PFAS contamination in wildlife around Holloman Lake near Holloman Air Force Base.

The paper’s lead author, biology professor Christopher Witt, said the PFAS found in the tissues of wildlife living around Holloman Lake were in the tens of thousands of parts per billion.

Much lower levels of contamination, PFAS concentrations in the order of one, two or three parts per billion, have been linked to health issues, Witt said.

Grant McGee, The Staff of The News, contributed to this report.