Judge: Cannon Air Force Base is subject to NM’s hazardous waste laws

State waiting to see whether the Department of Defense and Air Force will keep challenging the Environment Department’s PFAS cleanup demands

By: - August 26, 2022 5:00 am

A cow with high levels of per- and polyfluoroalkyl substances or PFAS at a farm in Maine. (Photo by Adam Glanzman / Bloomberg)

A federal judge dismissed a lawsuit by Cannon Air Force Base last week that challenged demands for the base to clean up PFAS contamination in New Mexico. The case was dismissed without prejudice and can still be heard in state court, according to the ruling.

Spreading pollution is threatening groundwater sources in and around the city of Clovis.

What’s PFAS?

Per- and polyfluoroalkyl chemicals, called “PFAS,” are known as forever chemicals that don’t break down naturally and cause illness, including cancer.

The chemical is often present in fire-fighting foams that are used on Air Force bases and can leak into groundwater.

The state’s Environment Department has been grappling with PFAS contamination coming from Cannon for four years, NMED Secretary James Kenney explained to the Legislature’s Water and Natural Resources Committee on Thursday. It’s still spreading, he said, and NMED is working to keep track of it. 

Meanwhile, the Department of Defense and the U.S. Air Force pushed back on remediation mandates in court, trying to get out of state-mandated cleanup.

“The Department of Defense is waging a groundwater war against the state of New Mexico, and they’ve been doing it since 2019,” Kenney said. “Caught in the middle of that groundwater war is the community of Clovis, as well as other communities around the state.”

In December 2018, the state’s Environment Department demanded that Cannon take corrective actions after the state was informed of PFAS contamination. But the Air Force and Department of Defense challenged NMED in federal court the following month, arguing that New Mexico’s demands don’t adhere to hazardous waste definitions and rules outlined in state and federal acts.

A judge ruled that Cannon is subject to the state’s hazardous waste laws on Aug. 18 and that the federal court didn’t have jurisdiction over the case. 

Bill Grantham, assistant attorney general in the Consumer and Environmental Protection Division, said on Thursday that this decision works in the state’s favor. 

“It would be better if we weren’t involved in litigation, but it’s good for us that we’re starting to see the tide turn,” he said.

NMED is waiting to see if the Department of Defense and Air Force will keep pursuing the case in New Mexico’s Court of Appeals, Grantham said.

Separately, another lawsuit is ongoing, filed in 2019 by NMED and state Attorney General Hector Balderas against both Cannon and Holloman Air Force Bases. It calls for cleanup, saying there is imminent, substantial danger at and around the two bases because of their PFAS contamination.

Regardless, Cannon officials are also attempting to modify the permit that allows the base to discharge waste into water sources through the N.M Water Quality Control Commission. The base filed a petition in early 2021 to waive some state contaminant testing requirements, including for PFAS, since it follows federal regulations anyway.

Community, state response

People near Clovis are frustrated that Cannon isn’t holding more public forums to talk about the issue. Art Schaap is a fourth-generation dairy farmer who had to euthanize 3,600 cows contaminated with PFAS, which put him out of business. He questioned at the legislative hearing what Cannon is hiding.

Costs adding up for the state

The Environment Department records over $6 million spent so far trying to protect local communities in eastern New Mexico from PFAS.

For instance, $850,000 was committed from the Hazardous Waste Emergency Fund just for the disposal costs of thousands of cows that had to be euthanized because they drank water with PFAS, and it contaminated them. The state is still trying to figure out where to dispose of the dead, toxic cows.

“They claim to guard our community and state, but neighbors don’t run over each other,” he said.

Kenney said Cannon has failed to be transparent, referencing a $16.6 million effort to investigate PFAS and begin cleanup. After they wouldn’t share details with NMED, he said, the state got more info this week through a Freedom of Information Act request. 

So far, it looks like there’s no attempt to repair damage beyond the base, he added.

Schaap said that money should go directly to the state instead to ensure remediation really happens.

NMED has been mapping the contamination spread since November 2021, Kenney said. The department wants to remove the chemicals from water and store the contaminants until they can figure out how to destroy them. Nobody’s sure how to destroy the chemicals yet, but Kenney said NMED is digging through new information on the subject.

“This is not just a matter of our groundwater and our national resources,” Kenney said. “This is a matter of our economy and the future of Clovis.”

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Megan Gleason
Megan Gleason

Megan Gleason is a journalist based in Albuquerque. She recently graduated from the University of New Mexico, where she served as the editor-in-chief of the Daily Lobo. Other work has appeared under the New Mexico Press Association as well as in the Independent, Gallup Sun and Silver City Daily Press.