New Mexicans await military response two years after Cannon revealed PFAS contamination
September 22, 2020
“I’m still dumping milk, my cows are still dying, and the Air Force hasn’t done nothing.”
It’s been more than two years since the U.S. Air Force notified state officials that toxic chemicals from their firefighting foams had seeped into the groundwater below Cannon Air Force Base—and into the well water of nearby homes and Art Schaap’s Clovis dairy.
“Right now, they’re still polluting the groundwater,” says Schaap, whose farm overlooks Cannon’s airfield. “It’s unbelievable. We can’t believe it. We cannot believe it.”
When Schaap learned the military had polluted his well water with PFAS, or per- and polyfluoroalkyl substances, he had to stop selling milk from his Clovis dairy.
Even though the Air Force stopped using the firefighting foams with high levels of PFAS, those toxic compounds persist in the environment. PFAS don’t biodegrade, but in fact, do the opposite: they bioaccumulate, moving on up the food chain. They’ve been linked to cancer and many other health problems.
Today, Schaap estimates he still spends somewhere between $7,600 and $11,400 a day feeding the 3,800 cows he can’t milk or sell because they drank contaminated water. He says his dairies in Portales keep his family afloat. But that’s not going to last much longer, and he worries that by the end of this year, he’ll file for bankruptcy.
“Right now, we’re just standing on our own,” says Schaap. “They’ve been polluting this water for 20 years, but we found out two years ago.”
In 2018, the Air Force notified New Mexico officials that tests at Cannon—and Holloman Air Force Base in Alamogordo—detected perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) from firefighting foams that the military started using in the 1970s. PFOA and PFOS are just two of the thousands of compounds in the PFAS family.
Since then, New Mexico has tried to hold the Air Force responsible for the pollution. But despite cleanup orders, lawsuits, widespread acknowledgement of the dangers of PFAS, and progress at other contaminated bases across the nation, the military has yet to even map the pollution at Cannon and Holloman. And while the state and the Air Force recently settled over a disputed wastewater discharge permit at Cannon, that agreement doesn’t move cleanup forward, New Mexico Environment Department (NMED) Secretary James Kenney told NMPBS.
“We’re always appreciative when people want to settle,” Kenney says. “Because at the end of the day, it’s about compliance, not penalties.”
But the Air Force has yet to demonstrate a similar willingness to come to the table over cleanup, he says.
“When it comes to the delineation and remediation of the plume, if they wanted to settle with us, they could reach out. And that has not happened,” Kenney says. “That is a good indication that they are not respecting the community in which they do business, and the community in and around Clovis who rely on well water and public water supplies fed by the aquifer where PFAS has been detected.”
After learning about the groundwater contamination at Cannon and Holloman, New Mexico issued notices of violation against the Air Force in 2018. According to the state, the military had violated the state’s Water Quality Act—and at Cannon, the notice required the Air Force come up with a plan to protect dairies and evaluate the possibility of installing filtration or treatment systems.
Instead, the Air Force sued New Mexico, challenging the state’s authority.
Then, in March 2019, New Mexico filed a separate lawsuit, asking a federal District Court judge to order the military to act on and fund cleanup at Cannon and Holloman.
“The idea was to get immediate relief to the people whose groundwater had been affected,” says Cholla Khoury, director of consumer and environmental protection at the New Mexico Office of the Attorney General.
That suit was meant as something of an emergency action—to get the Air Force moving on cleanup, and quickly.
“We know there is significant contamination in the groundwater at those two locations and we’re claiming substantial and imminent endangerment under [the federal Resource Conservation and Recovery Act] and New Mexico state laws,” Khoury says.
Since 2019, she explains, the case has been moved to multi-district litigation and a court in South Carolina which is overseeing all cases regarding PFAS and the military’s use of the polluting firefighting foams. Currently, that includes 750 separate cases.
NMED’s Kenney says the state tried to extricate itself from the multidistrict litigation and pursue its case against the Air Force without being slowed down and tied to hundreds of other cases.
But United States District Judge Mark Gergel agreed with the Air Force, the U.S. government, the Defense Coordination Committee, and the Plaintiffs’ Executive Committee and denied that request. According to Gergel’s order, “resolution of the issues raised [by New Mexico] is premature and it could prejudice other cases involving the same issues.”
Kenney says that among the plaintiffs who opposed New Mexico’s request were attorneys for Art Schaap, who sued the U.S. Department of the Defense and the Air Force for failing to notify dairies of the contamination and failing to supply replacement water. He also sued the manufacturers of the toxic chemicals, and like the state’s lawsuit against the military, the suit was moved to the South Carolina district court.
“Our ability to hold DOD accountable more quickly was effectively blocked by Mr. Schaap’s counsel,” Kenney says. “And we don’t know why that is.
NMPBS left messages with attorneys with both the firms representing Schaap, Napoli Shkolnik PLLC and Portales-based Doerr & Knusdon. We’ll update our coverage with that information once we hear back from them.
Meanwhile, local officials have no idea when the pollution will be tackled.
“A lot of us have this feeling, well, we just feel like we’re like the little bitty guy facing the big giant of the Air Force,” says Robert Sandoval, a Curry County commissioner. “I've been frustrated for a long time now, and I don’t see the light at the end of the tunnel. I know it’s there. But it’s too far away for me to see it.”
A self-described optimist, Sandoval does believe the Air Force has finally decided it has a responsibility to fix the problem.
“But it seems like government works very, very slowly,” he says. “And I have no idea what they’re going to do or when they’re going to start doing it.”
On September 8, the Water Quality Control Commission (WQCC) voted unanimously to approve a proposed settlement agreement between the state of New Mexico and the Air Force over a wastewater discharge permit at Cannon Air Force Base.
In a settlement dated in early July, the two parties agreed: Cannon would submit a new permit application and pay an administrative fee of $250,947.60.
During that meeting, in response to a question from WQCC Chair Jennifer Pruett, New Mexico Environment Department (NMED) attorney Chris Atencio said it was in the state’s interest to accept the settlement—and accept the difference between the proposed $1.7 million fine and the much smaller administrative fee.
“I can’t go into all those reasons and exact thinking in all that,” Atencio said, “except that it was appropriate given the nature of the non-compliance, the efforts of the Air Force, and the interest in moving in getting an effective discharge permit in place for Cannon Air Force Base.”
And Major Mark Coon, counsel for the Air Force, noted that “it’s effectively illegal” for the U.S. government to “pay something that’s characterized as a fine or a penalty,” whereas it can pay an administrative fee.
Moments after the vote, counsel for the commission—who had lost his internet connection during the virtual meeting—pointed out an error within the agreement. Some of the language within the settlement agreement, Robert Sanchez pointed out, doesn’t comply with state statute.
After hearing additional comments from Atencio and Coon, commission chair Jennifer Pruett asked Sanchez if the vote should be re-opened. After he replied “yes,” Pruett solicited a motion from commissioners, and received a motion—but no second—to reopen the discussion.
Pruett waited for additional comment or action from commissioners, and after receiving none, said the original vote stood, and the commission moved on to the next agenda item.
In response to an email from NMPBS about that error in the agreement, Pruett noted that some of the language required by the commission within a final order was missing, and “is being corrected in a revised stipulated final order.”
Both parties still disagree over the permit, which was initially issued in 2014 and expired in 2019. But they are moving forward with a new permit, the application for which the department is currently reviewing.
NMED communications director Maddy Hayden noted in an email to NMPBS that Cannon has submitted information about PFAS discharges, as requested, and the department is considering that data as it develops the draft permit.
“With these in hand, the Bureau wants to focus its resources on ensuring that CAFB’s wastewater treatment plant is not contributing to the ongoing contamination in and around CAFB rather than a protracted fight that diverts resources from where they are needed most,” wrote Hayden.
When the New Mexico Water Quality Control Commission met this month to vote on the settlement agreement between the Air Force and the state of New Mexico John Kern with the group Clean Water Partnership opposed that agreement.
Kern believes the settlement allows Cannon to continue releasing wastewater onto leach fields and a lagoon, into arroyos, and onto the base’s golf course—and continue polluting.
To be clear, the agreement doesn’t affect the dueling lawsuits. Rather, it centers around a wastewater discharge permit. In early 2020, the New Mexico Environment Department dinged the Air Force for not monitoring the groundwater at Cannon for PFAS contamination—which the state said was required under the military’s wastewater discharge permit. In its January 2020 order, the state demanded compliance with state law and fined the military nearly $1.7 million.
In a settlement dated in early July, the two parties came to an agreement: Cannon would submit a new permit application and pay an administrative fee of $250,947.60. And at its September meeting, the state’s Water Quality Control Commission voted unanimously to accept the settlement.
Kern says that two years ago the commission added three PFAS chemicals, including PFOA and PFOS, to the state’s list of toxic pollutants. “They passed a regulation about PFAS in 2018 but have now exempted [Cannon] to continue operating according to a 2014 permit?” he says. “All is forgiven, for a quarter of a million dollars?”
Kern’s group is also frustrated at how base officials have battened down against any communication with the community. “CWP tried to schedule a town hall with the base commander this summer, but he refused, citing the ongoing litigation,” Kern says.
Cannon has yet to even map out where the contamination has spread. Instead, New Mexico is spending a million dollars to fund that work, which is expected to begin in 2021.
Nationwide, the military is investigating PFAS contamination at more than 700 bases and installations—34 more were added to the list this month, including New Mexico’s Fort Wingate. And those site studies and cleanup efforts are all in various stages. In Texas, for example, Kern points out that near the now-closed Reese Air Force Base, the military has tested hundreds of wells and provided hundreds of homes with filtration systems.
Kenney agrees that cleanup at New Mexico’s bases lags those in other states.
He speculates that the military considers various factors when prioritizing cleanup, including whether the PFAS levels in drinking water exceed the lifetime health advisory, whether state and federal officials are pursuing a remedy, and if NGOs and the community are urging action. And, he added: “I hope the DOD is not treating states differently for political purposes.”
The public information officer for Cannon Air Force Base did not respond to emailed questions from NMPBS or a request for an interview with Coon.
Meanwhile, Art Schaap is still waiting for the military to supply clean water to his dairy. As a dairy farmer, Schaap says, he follows state and federal laws. If he broke those laws, regulators would shut him down. The same is true for any other industry in the state, he says.
“But for some reason, [state regulators] gave a pass to Cannon,” he says, referring to the settlement. “My community has done nothing, the City of Clovis has done nothing, the county has done nothing. Everybody’s like a deer in the headlights with Cannon Air Force Base.”
The settlement, he says doesn’t stop the pollution or protect people like him from the Air Force’s continued contamination of the groundwater around Clovis. He’s also disappointed that city and county officials don't stand up to the Air Force.
“There’s been communities in other states that had PFAS, and they pushed back, and the Air Force there started cleaning up the water,” says Schaap. “When I read about that, I thought, ‘If our community would put pressure on Cannon, would they do that?”