NM Environment Department seeks more PFAS cleanup authority

SANTA FE — In 2018, chemical contamination stemming from a U.S. Air Force base in eastern New Mexico resulted in 3,665 euthanized cows and a cost of nearly $6 million to a fourth-generation dairy farmer. The contaminated cow carcasses still sit decomposing on the farm.

Six years of litigation and ignored cleanup orders later, the New Mexico Environment Department is looking for legislative approval to enforce specific contamination cleanups, even over the federal government. House Bill 140 would give the agency’s Environmental Improvement Board authority to enforce cleanup of disposed firefighting foam that contains per- or polyfluoroalkyl substances, known as PFAS.

The legislation passed the floor unanimously Thursday and heads to the Senate.

“By correcting that in our state law and clearly identifying the Department of Environment as having that authority, we are in a stronger position to force the (U.S. Department of Defense) through litigation to do what’s right,” said bill sponsor Christine Chandler, D-Los Alamos.

PFAS is a carcinogenic substance that doesn’t break down naturally. In addition to the everyday items the human-made chemicals are found in, from food packaging to carpet cleaners, PFAS is found in firefighting foams.

In 2018, dairy farmer Art Schaap found out his well water was contaminated with PFAS that came from Cannon Air Force Base near Clovis. All of his milk was pulled off the market and Schaap had to euthanize thousands of cows.

Despite the contamination stemming from an Air Force base, under the purview of the Department of Defense, the federal agency hasn’t “cleaned up a drop of PFAS that has migrated off their base,” New Mexico Environment Secretary James Kenney told the Journal on Thursday.

When state and federal agencies initially detected the contamination in 2018, NMED directed the DOD to clean it up. DOD in turn sued New Mexico on the basis that the state didn’t have the authority to order the federal government to clean up the contamination.

Meanwhile, NMED is still working to clean up the contamination, “spending taxpayer and permit fee dollars on something that the federal government has taken responsibility for in other states, but not here,” Kenney said. New Mexico has spent $12 million so far on understanding the extent of the PFAS contamination, according to NMED.

That’s why Kenney is working with legislators to pass HB140, which would amend the state’s definition of “hazardous waste” under the Hazardous Waste Act, giving the Environmental Improvement Board authority to enforce the cleanup of PFAS as a result of discarded firefighting foam.

That’s in addition to the board’s current authority to enforce cleanup of other hazardous waste defined by the U.S. Environmental Protection Agency.

“The fact that DOD, after six years of suing us, has not cleaned up a drop of PFAS that has migrated off their base is the exact reason that we need this bill,” Kenney said. “I’d be saying something very different to you in the Legislature if they were at least trying to clean up the PFAS.”

As for the still-toxic Clovis farm, Kenney said NMED is working to help clean up the contamination. The agency’s next step is pumping and treating the groundwater to ensure the toxic plume doesn’t continue toward the southwest.

Rep. Rod Montoya, R-Farmington, said it’s an issue that PFAS are in so many everyday products, and there’s a larger issue at stake than strictly PFAS from firefighting foam. He said New Mexicans are poisoning themselves “just a little bit every day.”

“Until we or till the federal government or someone deals with the fact that PFAS cannot be in our daily products — everything from Scotchgard, plastics, petroleum jelly, things that are placed directly on the skin … — this does not fix the whole problem,” he said.

To that end, Kenney said, NMED is also pursuing House Bill 212, the PFAS Protection Act. It would ban the sale of specific products that contain PFAS, from medical devices and drugs to heating and cooling equipment, and require PFAS disclosures on other products sold.

The legislation is sitting on the House floor calendar.

“We can talk about climate, we can talk about air quality, we can talk about oil and gas, we can talk about all these issues. And I very much believe we need to talk about them,” Kenney said. “The one thing that we’re not talking about is the one thing that’s at your breakfast table. The amount of times you experience it before you even leave for work is remarkable, and you don’t even know it.”