This feedlot sits empty at the Highland Dairy near Clovis on Friday, Aug. 5, 2022. Thousands of farmer Art Schaap's cows were euthanized due to PFAS contamination. (Photo by Patrick Lohmann / Source NM)
New Mexico will have to wait at least another three months before more progress could ensue on tracking toxic chemicals coming from the U.S. Air Force Base in the eastern part of the state.
Meanwhile, the wastewater treatment plant at Cannon Air Force Base near Clovis will continue dumping treated sewage into nearby water sources. The base’s discharges in the past have contaminated water with per-and poly-fluoroalkyl substances, otherwise known as PFAS.
PFAS can contaminate drinking water and are known as “forever chemicals” that can cause illnesses like cancer. They can be found in fire-fighting foams used on Air Force bases like Cannon.
Outflows from Cannon AFB contaminated water sources with PFAS in 2018 and caused dairy farmers to euthanize thousands of cows.
As a result, the New Mexico Environment Department is trying to get Cannon to follow state-issued standards for tracking and cleaning up PFAS chemicals. In December 2018, New Mexico’s Hazardous Waste Bureau issued rules for Cannon to follow that are intended to regulate PFAS spread in water systems and soil.
Cannon AFB responded by challenging the state’s authority in federal court. That case was dismissed last year.
The federal judge ordered that the case go to the New Mexico Court of Appeals. The case currently sits with that chamber for mediation work. New Mexico and Cannon AFB lawyers anticipate it will drag out for at least a few more months.
As a result, a similar issue on the state level is being delayed as well.
Other state-issued PFAS regulation and clean-up standards that Cannon objects to sit before the New Mexico Water Quality Control Commission. Last week, state water officials approved a roughly three-month delay to inspect the matter, in part because the other issue is now in the hands of a state court.
This issue before the state water agency goes back about five years.
In September 2018, Cannon AFB requested that the New Mexico Environment Department renew a permit that allows Air Force officials to dump 900,000 gallons of treated wastewater per day into nearby water sources.
The state released a draft permit in February 2021 and a final permit in December 2021. However, Air Force officials expressed extensive issues with the permit, specifically with precautionary requirements for PFAS. They also questioned some contingency plan measures in place in the case of excessive contamination.
Cannon AFB took the issue to the state’s Water Quality Control Commission in January 2022.
Air Force officials object to state-mandated measures like setting up new monitoring wells and checking soil, in order to have consistent updates on water quality, according to the petition they submitted to the state water agency.
Cannon AFB said these precautionary conditions are repetitive, since the base already has to adhere to similar requirements in the federal Comprehensive Environmental Response, Compensation and Liability Act.
“These provisions are duplicative, wasteful and fail to account for actions performed under other permits and regulatory programs,” the petition reads.
The petition also disputes deadlines set by the state, such as the process to set up the new wells, because of lengthy federal funding and contracting processes.
The New Mexico Environment Department wants a safety plan in place if excessive toxic chemicals like PFAS are found in the groundwater. Cannon AFB doesn’t agree with conditions that would require plugging, replacing and abandoning wells that aren’t set up correctly per state standards, according to the petition.
Air Force officials also argued in the petition that the New Mexico Environment Department doesn’t even have the authority to issue these conditions because Cannon is a U.S. Air Force Base.
The state’s Water Quality Control Commission has yet to resolve the matter. It’s the oldest open case on the commission’s table and will stay unresolved for at least another three months.
Lawyers from Cannon AFB and the New Mexico Environment Department asked that the state water commission approve a 90-day pause on the matter because the mediation from the 2022 federal court case could help resolve issues around the state permits.
The New Mexico Water Quality Control Commission allowed a halt until the commission meets again in July.
Joseph Sanchez, counsel for the water agency, said last week that the PFAS debate is taking a long time to resolve. He said he hopes the federal court mediation actually does help the Water Quality Control Commission wrap this up.
“I’m really hoping that we can finally conclude this,” Sanchez said.
Commissioner Larry Dominguez said this permit review is quite complex and has a lot of moving parts.
“If some things can get resolved, I think that the stay may provide some light at the end of the tunnel,” he said.
N.M. Environment Department spokesperson Matthew Maez said the agency couldn’t disclose specifically how the mediation could help the state permit issue due to confidentiality clauses at the federal court level.
He said other than the conditions being debated about PFAS tracking and clean-up standards, the Cannon AFB wastewater discharge permit generally remains in operation.
That means the Air Force base in eastern New Mexico continues to release wastewater without the precautionary measures the state wants federal officials to follow.
That could change when a resolution is met.
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