July 13, 2025
The New Mexico Department of Justice and Environment Department have filed suit against the United States and the U.S. Air Force for per- and polyfluoroalkyl substances (PFAS) contamination from Cannon Air Force Base (Cannon) impacting the Clovis area. The lawsuit is one of numerous attempts by the State over several years to hold the Air Force accountable for contaminating the State’s resources and harming the environment and public health. The State’s complaint alleges violations of Cannon’s hazardous waste permit and other violations under the New Mexico Hazardous Waste Act (HWA), NMSA § 74-4-1 through -14.
Use and releases of aqueous film forming foam (AFFF) at Cannon, possibly among other activities, has resulted in PFAS contamination at the base and surrounding areas, including concentrations of up to 26,200 parts per trillion (ppt) of PFAS detected in the groundwater. For reference, the U.S. Environmental Protection Agency’s (EPA’s) drinking water regulations set a limit of 4 ppt in drinking water for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), two of the most well-studied PFAS. PFOS was historically used as an ingredient in AFFF.
The Air Force has identified approximately 12 locations at the base where PFAS have been released and detected during a site investigation. Contamination from Cannon has migrated at least three miles off-base and impacted local communities as well. Significant PFAS contamination has been detected in groundwater and livestock near the base resulting from Air Force activity.
New Mexico claims the Air Force has violated its state hazardous waste permit by, for example, failing to mitigate releases of PFAS into the environment by continuing to use AFFF despite available alternatives, refusing New Mexico Environment Department oversight of permit activities, and failing to characterize or clean up PFAS contamination that has migrated off-base. The State seeks a declaratory judgement finding the military in violation of its permit and the HWA, injunctive relief requiring the military to take corrective measures under State oversight and come into compliance with the permit, penalties for violations of the permit and the HWA, and attorneys’ fees and other costs.
A significant development in support of the State’s case is that the New Mexico legislature codified in its HWA that AFFF containing intentionally added PFAS is a “hazardous waste” under the statute effective June 20, 2025. This express addition of AFFF as hazardous waste under the State’s law addresses head-on the question of whether PFAS-laden AFFF waste from the base is covered under the Air Force’s site permit, which has been a point of contention in the years-long dispute between the parties.
This lawsuit marks the culmination of years of frustrated effort by the State to hold the Air Force accountable for its PFAS contamination from Cannon. The military’s response (or lack thereof) is characteristic of many military components’ behavior towards their host states at sites that are not listed on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, often referred to as Superfund) National Priorities List (NPL).
Under CERCLA, various federal agencies, including the Department of Defense, are authorized to investigate and clean up contamination at sites under their jurisdiction, custody, or control (see Executive Order 12580). Sites listed on the NPL (typically the most highly contaminated sites) are subject to EPA decision-making and oversight. Sites not on the NPL are subject to state oversight and state hazardous waste laws, including enforcement of those laws. However, the military regularly overlooks this provision of CERCLA in favor of self-regulation and refusing states’ efforts to exercise their authority. As seen at Cannon and other sites, this posturing may ultimately lead to states pursuing litigation to exercise their authority. As PFAS contamination from U.S. military installations continues to be of global concern, this and other such cases will be models to watch.