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New Mexico says EPA abandoned state in fight against 'forever chemicals'

New Mexico’s Democratic governor is pushing back against the Environmental Protection Agency (EPA) for failing to help the state fight contamination from “forever chemicals” spread by a military base.

In a Friday letter to EPA Administrator Andrew Wheeler, Gov. Michelle Lujan Grisham said the lack of help from the EPA “is inconsistent with its mission to protect public health and the environment” and is an example of “EPA’s failure to uphold compliance with federal environmental laws.”

The EPA responded Tuesday that it cannot let "short-term litigation posturing" interfere with its mission to protect human and environmental health.

Lujan Grisham’s letter is in reference to a class of chemicals abbreviated as PFAS, cancer-linked substances used in a variety of nonstick products and firefighting foam relied on by the military and airports.

PFAS are often referred to as “forever chemicals” due to their persistence in the environment.

The letter, first reported by Politico, is the latest example of frustrations from states in getting the military to work with local leaders in cleaning up contamination.

Some of the blame has been levied against the EPA after suspicions the agency weakened its own PFAS regulations to help the military avoid what could be a $2 billion cleanup bill.

Lawmakers, however, have worked to strengthen the military’s PFAS culpability, including measures in the National Defense Authorization Act to force the military to work with states to clean up contamination.

A measure from Sen. Tom Udall (D-N.M.) included in the House bill would require the military to provide clean water to farms contaminated by PFAS.

The NDAA has passed both chambers but a final bill has yet to be sent to President Trump, who specifically threatened to veto Udall’s contribution to the legislation.

Udall was motivated by the plight of a New Mexico dairy farmer who euthanized 4,000 of his cows after the milk they produced tested positive for high levels of PFAS. That farm, located near a military base, caught the attention of Food and Drug Administration researchers in documenting the spread of PFAS from water to food.

New Mexico sued the Air Force for PFAS contamination in March, and Lujan Grisham’s letter criticizes EPA for reneging on a promise from Wheeler to help the state “with legal and technical assistance in a confidential manner.”

“Providing fact sheets and offering webinars are not meaningful,” she wrote.

In responding to request for comment, the EPA pointed to a July letter from the agency’s top lawyer and assistant administrator that said EPA is not permitted to bring judicial action against another executive branch agency.

It goes on to list actions EPA has taken to assist New Mexico, including providing fact sheets and webinars along with attending meetings and calls.

But a separate Friday letter from New Mexico Environment Department head James Kenney to another EPA office disputes that reasoning, arguing that “EPA is unrestricted from taking administrative enforcement actions against federal agencies under its controlling acts.”

The EPA responded to that letter Tuesday, saying its work with New Mexico should not be disparaged.

"If the state has not found our assistance useful, that has not been communicated as we have worked jointly on this issue," the agency wrote to the governor, adding that the state's letter "has the potential to miscommunicate to the public the truth of the federal-state collaboration."

The Department of Defense did not respond to request for comment.

New Mexico is not alone in its frustration with the EPA or the military. Last month 22 attorneys general wrote a letter to Congress asking lawmakers to compel action from the two agencies.

An analysis from the Department of Defense shows the Air Force diverted more than $66 million to cover the cleanup costs of harmful “forever chemicals” that have leached into the water supply.

Those funds were originally intended to cover a number of other projects, including asbestos abatement, radiological cleanup, removing contaminated soil, repairing the protective covering for a landfill and several projects to monitor water for contaminants and pesticides.

The class of chemicals, commonly referred to as PFAS, have been widely used by emergency fire response teams at commercial airports, the Air Force and other services to combat petroleum-based fires. Often called “forever chemicals” due to their persistence in the environment, the military has now identified more than 400 sites contaminated with PFAS. Cleaning it up is expected to cost the military $2 billion.

The analysis was provided at the request of Sen. Tom Carper (D-Del.).

“Congress needs to ensure that the Department of Defense has the resources needed to fully address its millions of dollars — perhaps billions of dollars — in liabilities related to the DOD-related PFAS contamination in our communities. Otherwise, the DOD will just keep robbing Peter to pay Paul by putting important projects on standby and stretching budgets to clean up PFAS contamination,” he said in a release.

In the DOD’s response, the agency said the Army and Navy “have been able to address these emerging requirements without diverting funds” not intended for PFAS cleanup.

The House Armed Services Committee approved provisions in the defense policy bill that would force the agency to phase out the use of firefighting foams with PFAS. Several senators have also pushed for such a move.

Carper has also advocated for declaring PFAS a hazardous substance so that superfund money could be used to cover the costs of cleanup.

“We also need to understand that this problem is not just a money matter,” Carper wrote. “There are a number of ways that Congress must begin tackling this multifaceted problem.”

In late August 2018, Cannon Air Force Base in Clovis, New Mexico was informed that several groundwater monitoring sites near the south east corner of the base boundary registered levels of Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA) above the EPA Lifetime Health Advisory for drinking water, of 70 parts per trillion.

The Air Force Civil Engineer Center (AFCEC), who leads the testing program, determined that per groundwater hydrology analysis, that an Expanded Site Inspection (ESI) was necessary to determine potential impacts to private drinking water wells off base. The sampling and testing is part of the Air Force’s proactive, service-wide investigation to assess potential risk to drinking water from PFOS / PFOA contamination. The ESI commenced in late August and is ongoing.

Through frequent dialogue with the Curry County Commission, Cannon leadership was informed of the concern in the local community. “Cannon’s relationships in this community are invaluable to us,” said Colonel Stewart Hammons, 27th Special Operations Wing, Commander. “Their enduring support enables us to do the extremely important operational mission we have in defending our nation’s freedom and supporting Special Operations Forces across the globe,” he elaborated. “When we realized we had an issue at Cannon, the first thing we did was reach out to our community partners.

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