July 16, 2020

New Mexico joins multidistrict litigation against firefighting foam manufacturers for PFAS contamination

The state of New Mexico has joined a multidistrict litigation against the manufacturers of the aqueous film-forming foams that were used in firefighting activities across the country and in Air Force Bases in New Mexico which led to groundwater contamination. A U.S. judicial panel earlier this year flagged the state’s lawsuit against the U.S. Department […]

Kendra Chamberlain

The state of New Mexico has joined a multidistrict litigation against the manufacturers of the aqueous film-forming foams that were used in firefighting activities across the country and in Air Force Bases in New Mexico which led to groundwater contamination.

A U.S. judicial panel earlier this year flagged the state’s lawsuit against the U.S. Department of Defense over the contamination for inclusion in the multidistrict tort proceeding, which encompasses roughly 500 pending cases related to PFAS contamination. The litigation will be heard in a U.S. District Court in South Carolina.

“That’s a recent development,” said Chris Atencio, Assistant General Counsel at the New Mexico Environment Department. “We’ve gone through that process and our case is now included in that. We’re working with our council, the Attorney General’s office and folks internally to try to evaluate the requirements of that process and how best to proceed. That’s where our litigation stands now.”

Defendants in the cases include chemical manufacturing companies Dupont, 3M and The Chemours Company, a spinoff of Dupont. Both Dupont and 3M have a long history with PFAS compounds. PFAS, or per- and poly-fluoroalkyl substances, refers to a family of at least 600 synthetic compounds that are widely used in commercial products ranging from fire-resistant carpeting to fast-food wrappers. The first generation of PFAS compounds, including PFOA and PFOS, were first created in a lab in the 1940s. These “long-chain” PFAS compounds are sometimes referred to as C8 compounds, named for a chain of eight carbon atoms in each molecule. Dupont used “C8” PFOA for decades in its production of Teflon, a patented non-stick coating used for cookware; 3M, on the other hand, used PFOS in its Scotchgard product.

Documents show those companies were aware as early as the 1950s of the dangers to human health posed by exposure to these PFAS chemicals, but did not alert federal regulators of their findings until much later. The first litigation related to PFAS contamination — recently dramatized in the 2019 film Dark Waters — began in the late 1990s between a farmer in Parkersburg, West Virginia and Dupont.

Nearly three decades later, communities across the country, including here in New Mexico, are still dealing with the legacy of PFAS compounds as more groundwater is being contaminated by the chemicals.

A body of research pointing to negative health impacts

The West Virginia case revealed Dupont had contaminated the drinking water supply of the town of Parkersburg. A subsequent medical monitoring program found nearly every single resident of the town of 70,000 had PFOA chemicals in their blood.

“Part of the reason we know so much about the toxicity of these compounds in general, and in particular about PFOA, is because of the contamination of over 70,000 people in Parkersburg, West Virginia and the surrounding communities in the Ohio River Valley,” David Andrews, senior scientist at the nonprofit Environmental Working Group, told NM Political Report.

The C8 Science Panel, the medical panel in charge of the Parkersburg monitoring program that was convened in 2005, “linked a number of health harms from increased exposure to PFOA in terms of increases in a number of types of cancers, increased cholesterol, pregnancy-induced hypertension, ulcer colitis, a range of different health impacts,” Andrews said.

After Parkersburg, interest in studying how PFAS chemicals impact the body gained traction.

“In the last 20 years, the amount of academic and research interests has really exploded in terms of other chemicals in this class and what harms they may be causing,” Andrews said.

Subsequent monitoring and research has led scientists to conclude that nearly every single person in the world has PFAS chemicals in their blood.

“There are a number of specific products that can be directly attributed to higher levels [of PFAS chemicals] in the body, but there’s also a large amount of unknown in terms of how much of it is coming from dust versus our water and food supply,” Andrews said.

He pointed to an as-of-yet unpublished study in which researchers collected rain samples from across the country.

“In every single sample, you could detect some of these compounds. They are released into the air in manufacturing and production,” Andrews said. “Some of that likely explains why there is a background level that you can find in just about everyone.”

Cleanup hasn’t yet begun in New Mexico

In New Mexico, PFAS chemicals were used in firefighting foam at Cannon and Holloman Air Force Bases until 2016. The Air Force began investigating PFAS discharges across its installations in 2015, and in 2018 the chemicals were detected in groundwater at Cannon Air Force Base, located west of Clovis and at Holloman Air Force Base, located west of Alamogordo. The pollutants have also been detected at several dairy farms and private wells that surround the bases.

NMED issued two notices of violation against the Air Force and asked the Air Force to clean up the contamination found at Cannon and Holloman AFB. The Air Force instead sued the state, challenging NMED’s authority to compel PFAS cleanup under the state permit. New Mexico Attorney General Hector Balderas and NMED later filed a complaint in federal district court, asking a judge to compel the Air Force to act on cleanup. The state also filed a preliminary injunction in federal court to get the Air Force to regularly test groundwater and surface waters, provide alternate water sources for those affected and provide voluntary blood tests for those who may have been exposed to the toxic chemicals.

While the state’s lawsuits against the Air Force move slowly along, the Air Force has been supplying bottled water and water filters to residents whose water supplies were contaminated with the chemicals. But a plume of PFAS-contaminated water is still beneath the ground just outside of Cannon Air Force, near Clovis.

“There’s been no progress made on cleaning up the contamination by the Department of Defense,” said Stephanie Stringer, Resource Protection Division Director at NMED. “That being said, the Environment Department was able to secure funding through the legislature to start the process, just because we don’t like that there’s no action.”

NMED secured $1 million in funding to begin the cleanup process while the state’s cases move through the court system. The first task, Stringer said, is to fully delineate the plume itself in order to identify the extent of the contamination.

“We needed to wait until after the special session to make sure we still had the funding. But that funding is still there, so we will be proceeding with that project as quickly as we can,” Stringer said.

Meanwhile, the DoD expanded its investigation into possible groundwater contamination to at least four more military installations in the state, including the Army National Guard armories in Rio Rancho and Roswell, the Army Aviation Support Facility in Santa Fe, and White Sands Missile Range, according to journalist Laura Paskus at NM PBSs Our Land NM.

At the time, NMED spokesperson Maddy Hayden said the DoD did not alert the state that it had expanded its investigation to include more sites in New Mexico. Stringer told NM Political Report the DoD hasn’t been completely transparent with the state about its investigation into PFAS contamination.

“There are areas where the Department of Defense is very communicative, and other areas where they are not,” Stringer said. “They’re not overly communicative with [their PFAS action plan] with New Mexico. A limiting factor of that communication is the ongoing litigation.”

‘We don’t want to repeat those mistakes’

Some cite a lack of federal leadership as a key challenge for states dealing with PFAS-contaminated water supplies. The U.S. Environmental Protection Agency does not currently have a federal drinking water standard for any of the PFAS chemicals. These compounds are designated as an “emerging contaminant” and the agency has only established a non-enforceable “lifetime health advisory level” of 70 parts per trillion of PFAS chemicals for drinking water.

Monitoring wells near Cannon Air Force Base found PFAS chemicals present at levels 370 times the EPA’s advisory level; while samples showed PFAS chemicals present at 27,000 times the advisory level in groundwater beneath Holloman Air Force Base. But without a federal drinking water standard, NMED cannot do much to hold the Air Force accountable for the contamination.

The EPA released its PFAS action plan in February 2019, eight months after the DoD first revealed the contamination. The first task of that action plan: for the EPA to determine whether a federal drinking water standard for PFAS chemicals was warranted.

To everyone’s relief, the EPA made that determination earlier this year for two of the 600 PFAS chemicals, PFOS and PFOA.

“We do not want EPA to rush it at the expense of sound science, but we do want to make sure they keep this on the front burner and devote the best and adequate resources to it, so that it can move as quickly as possible,” Rebecca Roose, Water Protection Division Director at NMED, told NM Political Report.

Roose said NMED expressed “strong support” for the EPA’s decision to move forward with drinking water standards during the public comment period, but added that the EPA should consider expanding its drinking water standards beyond just those two chemicals.

“There are hundreds of others that are known to be out in the environment,” Roose told NM Political Report. “There are four additional PFAS contaminants that we encourage EPA to add to their standards development process.”

Others, like Andrews, have called for the EPA to regulate PFAS at the class level, rather than take an incremental, chemical-by-chemical approach. Andrews was co-author of a recent paper published in Environmental Science & Technology Letters that establishes a scientific basis for managing the chemicals as a class.

“This entire class really needs incredible scrutiny from both regulators and legislators and from the public. All efforts should be made to eliminate all non-essential uses as a first step — just because of how concerning these chemicals are,” Andrews said.

Andrews pointed to the “PFOA Stewardship Program” created by the EPA in 2006. Under the program, the agency invited eight major companies, including Dupont, to voluntarily reduce their use of PFOA in products by 95 percent by 2019.

“The chemical manufacturers, when they voluntarily phased out these compounds, they replaced them with shorter chain length compounds,” Andrews said. “There’s a significant number of different versions of these shorter chain compounds that different companies are using. The studies to date indicate that many of these shorter compounds may be impacting health in the same way.”

“The lag time we have in finding out if they’re dangerous —Teflon and Scotchgard were used for decades and decades before the evidence accumulated about how toxic these were to the body and to the environment,” Andrews added. “We don’t want to repeat those mistakes.”