July 10, 2024
New Mexico requested a judge order the federal government to pay the past and future costs of cleaning up ‘forever chemicals’ from military bases across the state, per court documents filed Monday.
The costs to remove the toxic chemicals called per- or polyfluoroalkyl substances (PFAS) grows into the billions and cleanup efforts stretch for years.
New Mexico officials argue the federal government needs to be accountable for PFAS contamination costs at Cannon Air Force Base, Holloman Air Force Base, Kirtland Air Force Base, White Sands Missile Range and Fort Wingate.
Now, after a federal rules change on Monday, they hope it will allow the state to recover damages and future cleanup costs for PFAS contamination left by the U.S. Department of Defense at military bases across New Mexico.
“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. “This enables us to pursue monetary damages and costs at federal facilities, as stated in our amended complaint.”
Torrez said the change means a federal law requiring polluters to pay to clean up contamination now applies to PFAS.
The designation of PFAS as a hazardous substance is separate from the EPA’s efforts to remove the forever chemicals in drinking water.
The filing makes the federal government liable to pay for current and future costs, repair damages to water, land, air and address impacts to wildlife and the state’s economy.
“This opens the door for us to really help communities like Clovis who have been suffering for far too long with this threat, if not actuality of PFAS,” New Mexico Environment Secretary James Kenney said.
He told Source New Mexico that if a judge grants the request, the timeline for payment would be uncertain, but pointed to a similar process on the Gold King Mine, which took several years.
The state has spent an estimated $8 million to $10 million on technical, legal costs and clean-up at Cannon and Holloman, Kenney said, but the estimates for cleanup at all sites will be expensive.
“We could easily be looking at up to 150 million, if not more, especially once we understand the magnitude of the damages,” Kenney said.
He said it’s unclear when the state will have an estimated cost of damages available.
“It depends if we have cooperation by the United States,” Kenney said. “I would say to be five and-a-half years in, and to be where we are today, does not scream – to me – cooperation.”
As part of those costs, New Mexico is looking to recoup at least $850,000 for the removal of thousands of PFAS-contaminated cow carcasses from a dairy farm next to Cannon, another $1.3 million for investigation contamination around bases, according to the complaint.
The filing amends a five-year old civil case before the federal District of South Carolina Court. That case combined 500 claims from across the country seeking damages from contamination caused by the use of a fire-fighting foam containing PFAS. The case has been in a discovery phase since 2020.
Specifically, New Mexico said the U.S. Army and the U.S. Air Force broke state law by failing to contain or “address contaminants, hazardous wastes, and hazardous substances,” listing how PFAS was found in groundwater and surrounding environment.
The original 2019 complaint only focused on Cannon and Holloman Air Force bases, but the amended complaint filed Monday expands to five sites.
New Mexico argued in their 65-page motion that while the federal government has acknowledged that PFAS poses “an imminent and substantial danger,” at Cannon, that they have failed to take action to clean up.
The complaint asked that the court grant the state the power to direct the federal government to “to take all steps necessary” on clean-up.
The U.S. Department of Defense deferred comment to the U.S. Department of Justice Tuesday.
New Mexico is embroiled in a second, separate federal lawsuit with the U.S. Department of Defense over PFAS, which is still in mediation, and is not part of the effort to recoup damages.
