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New Mexico wants federal court to speed up toxic foam lawsuit against Air Force

A map shows the location of Air Force facilities in New Mexico. PFAS use at Cannon and Holloman Air Force Bases is the subject of a lawsuit filed by the state.

By THERESA DAVIS | Albuquerque Journal, N.M. | Published: February 2, 2021

ALBUQUERQUE, N.M. (Tribune News Service) — New Mexico is asking a federal court to reverse a decision that combined its lawsuit against the Air Force over contamination at military bases with lawsuits filed in other districts.

At issue is PFAS (per- and polyfluoroalkyl substances), a class of toxins in the firefighting foam used for training exercises at Cannon and Holloman Air Force bases.

The New Mexico Environment Department and the New Mexico state attorney general filed a petition for writ of mandamus in the U.S. Court of Appeals for the 4th Circuit on Monday.

New Mexico argues that multidistrict litigation means "the State's case must now take a back seat to water providers and other private litigants seeking to recover money damages."

The state sued the Air Force in July 2019. New Mexico asked a federal court to compel the Air Force to outline contamination plumes at Cannon and Holloman, test water sources and clean up the chemicals.

In June 2020, a federal panel transferred the lawsuit into the U.S. District of South Carolina.

"The matter has now been pending in the (multidistrict litigation) for more than six months, despite the ongoing injuries to human health and the environment," New Mexico's petition reads.

The U.S. Environmental Protection Agency has linked PFAS contamination to low birth weights, high cholesterol and certain cancers.

State Attorney General Hector Balderas said returning the case to a federal court in New Mexico would give the matter "the immediate and proper attention it deserves."

The Air Force first informed the state of PFAS in groundwater at Cannon in 2018. The waterproof nature of the "forever chemicals" makes them difficult to remove.

"What is at stake is the health and livelihood of New Mexico families — families that just want the Defense Department to do the right thing, and get PFAS out of their lives and communities for good," said NMED Cabinet Secretary James Kenney.

Another demand in New Mexico's original lawsuit is that the Air Force provide alternative water and voluntary blood tests to those who may have been exposed to the toxins.

At least one Clovis-area dairy was forced to euthanize its cows because of groundwater contamination that likely migrated from Cannon Air Force Base.

Maggie Hart Stebbins, state natural resources trustee, said New Mexico has been aggressive at tackling an environmental issue that is gaining national prominence.

"We do intend to pursue a natural resource damage claim (for PFAS), but there's still a few steps that need to happen before we can pursue that," Hart Stebbins told the Journal prior to Monday's court filing. "We have to wait on the Environment Department and the responsible parties to characterize and evaluate the extent of PFAS contamination, and that will take some time."

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