LEGAL BRIEF: New Mexico Seeks Damages in Court, Citing CERCLA Hazardous Substance Designation of PFOA and PFOS

On 8 July 2024, the state of New Mexico and the New Mexico Environment Department filed the second amended complaint against the United States, the Department of the Army, and the United States Department of the Air Force, for contamination of the environment with per- and polyfluoroalkyl substances (PFAS) at military facilities in the state.

The second amended complaint seeks to invoke Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which makes certain entities liable for a state's cost of remedial or removal actions at a site contaminated by hazardous substances designated under CERCLA, along with natural resource damages and certain health assessments.

This remedy under CERCLA became available to the state on 8 July 2024 when the EPA rule that designates perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two of the most used PFAS, as CERCLA hazardous substances became effective.

In addition to the new claim based on the hazardous substance designation under CERCLA, the second amended complaint seeks to introduce the following changes as well:

• Adding other PFAS contaminated sites that were not part of the original lawsuit, including Kirtland Air Force Base, White Sands Missile Range, and Fort Wingate
• Listing the U.S. Department of the Army as a new defendant to the complaint
• Seeking costs, damages, and other relief from the Department of Defense under CERCLA

“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,” Cabinet Secretary James Kenney of the New Mexico Environment Department said in a press release issued by the department.

“Thanks to the U.S. Environmental Protection Agency's science-driven leadership on PFAS, New Mexico will now hold the U.S. Department of Defense accountable for the monetary costs of clean-up and damages to our environment,” Kenney added.

Expanded Scope of Contaminated Sites

According to the memorandum supporting the second amended complaint, the state accuses the defendants of inaction to remediate PFAS contamination in their military facilities. They have “failed to cooperate or coordinate with the State regarding the contamination and their response” while “PFAS contamination has continued to spread.”

The state indicates that an estimated area of at least four miles off-base of the Cannon Air Force Base shows PFAS contamination in groundwater and this contamination continues to “spread at approximately a foot per day.”

Additionally, New Mexico points out that PFAS contamination has been discovered at several other military facilities in the state, such as the ones that are newly added to the lawsuit: Kirtland Air Force Base (near Albuquerque, New Mexico), the Army's White Sands Missile Range (in a rural area south of Albuquerque, New Mexico), and the Army's Fort Wingate (near Gallup, New Mexico).

NM Estimates at least $12 Million Total to Investigate, Respond to PFAS Contamination

In the second amended complaint, the state claims that releases of PFOA and PFOS have “caused the State to incur response costs,” including at least $1,310,000 for the investigation of PFAS contamination at and around Cannon, Holloman, Kirtland, White Sands, and Fort Wingate, as well as another $124,500 for the oversight of the defendants' ongoing efforts to investigate and remediate PFAS contamination at and around these sites.

These releases, according to the state's estimate, will incur significant response costs in the future as well, including at least $1,625,000 for the continued investigation and assessment of PFAS contamination; at least $870,000 for a planned medical monitoring program for New Mexico residents living at and around Cannon; and at least $4,000,000 to address PFAS contamination in Curry and Otero Counties.

The state also estimates the costs of assessing natural resource damage caused by the releases of these two substances to be around $3,625,000 in the future.

The complaint requests payments of past costs incurred by the state, as outlined above, that have not been reimbursed, in addition to a mechanism for reimbursement of future costs.

First State to Take Advantage of CERCLA Designation

This newly amended complaint is notable since it makes New Mexico the first state in the nation to take advantage of the new EPA rule designating PFOA and PFOS as hazardous substances under CERCLA.

CERCLA was enacted by Congress in 1980. It aims to “promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.”

Section 107 of CERCLA, which was invoked by the state of New Mexico in this case, makes certain parties liable for the costs of response to contamination due to hazardous substances, such as the current owners and operators of a contaminated site.

As indicated in the second amended complaint, the liability under section 107 of CERCLA is retroactive, which means that a party may be held liable even if the release of hazardous substances occurred prior to them being designated as a hazardous substance under CERCLA.

Release of PFAS “Injured the Most Valuable Natural Resource on Earth”

“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. PFAS has now contaminated freshwater aquifers on which the communities and hardworking people of New Mexico depend,” New Mexico's Natural Resources Trustee Maggie Hart Stebbins said in a press release. “Our residents suffer when they can't use that groundwater and it's time for the federal government to compensate communities that are bearing the burden of its pollution.”

“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. We are committed to holding all responsible parties, including federal agencies, accountable for their contamination to protect public health and safety.”

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