N.M. accuses EPA of breaking Wheeler’s PFAS cleanup pledge

By Corbin Hiar | 07/15/2019 01:30 PM EDT

New Mexico is pushing EPA to honor its PFAS enforcement promises.

New Mexico is pushing EPA to honor its PFAS enforcement promises. Steve Johnson/Flickr

This story was updated at 5:52 p.m. EDT.

New Mexico’s environmental chief has accused EPA of failing to live up to Administrator Andrew Wheeler’s promise to aid the state in toxic waste litigation against the Pentagon, raising questions about the agency’s commitment to fight water contamination and follow its new enforcement policy.

The claims from New Mexico Environment Department Secretary James Kenney were made in a July 2 letter to David Gray, the EPA regional administrator who oversees environmental regulators in the Land of Enchantment and four other states.


Kenney noted that at a Senate appropriation hearing in April, Wheeler had assured Sen. Tom Udall (D-N.M.) the agency would support his state’s effort to hold the Air Force accountable for allegedly contaminating drinking water around two bases with certain toxic chemicals known as per- and polyfluoroalkyl substances, or PFAS, which are found in military firefighting foams (Greenwire, March 6).

"It is my understanding we’ve already offered assistance to them," the EPA chief said. "If we haven’t, we certainly will."

Udall followed up by clarifying the state was suing the Department of Defense and asked if EPA could "share information with New Mexico on a confidential basis."

Wheeler responded with a "yes."

Yet in a May phone call with EPA General Counsel Matt Leopold, the agency "informed NMED that it would not join the State’s enforcement efforts against a sister executive agency,’" Kenney said in the letter. "Aside from holding federal facilities to a lower standard of compliance under [toxic waste law], EPA’s lack of engagement on this matter adversely impacts NMED’s litigation while leaving communities vulnerable to PFAS pollution."

Although EPA representatives said they would "look in to" providing the state with "technical resources related to the litigation," they hadn’t followed up with the NMED two months after that call, Kenney wrote.

"NMED encourages EPA to reassess its position regarding collaborative federal/state PFAS enforcement," he said in the letter, obtained by E&E News. "To the extent EPA maintains its current position, this raises serious concerns for NMED regarding EPA’s commitment to addressing PFAS contamination."

Asked about the standoff, an EPA spokesman said, "We will respond to the State through the proper channels."

After the story was published, NMED spokeswoman Maddy Hayden confirmed that the state agency hasn’t yet heard back from EPA and said she didn’t "have any additional comments beyond the letter."

But Udall slammed EPA’s alleged doublespeak on PFAS enforcement.

"This looks like another broken promise from the Trump administration when it comes to helping communities in New Mexico and across the country that have been devastated by exposure to PFAS," the ranking member on the Appropriations Subcommittee for EPA said in an email.

"Administrator Wheeler committed to me in person — in a public hearing — that the EPA would work to assist the New Mexico Environment Department in their efforts to clean up these toxic chemicals, which are ruining the livelihoods of our farmers and threatening communities," he wrote. "But once again, when it comes to PFAS, the Trump EPA is showing that it’s all talk and no action."

Earlier this year, EPA proposed cleanup guidance for groundwater contaminated by two types of PFAS that were less protective than some state standards and lacked any emergency removal provision for extremely contaminated areas (E&E News PM, April 25).

Concerns about the widespread chemicals and EPA’s slow response to the contamination they’ve caused has led to a flurry of legislative action on PFAS, with a raft of measures to address them included in both versions of Defense authorization legislation passed by the House and Senate (E&E Daily, July 11).

Enforcement contradictions

Moreover, EPA’s position on the New Mexico PFAS case contradicts its recently updated policy on partnering with states on environmental enforcement, according to a former agency official.

The new policy says "EPA will generally defer to a state as the primary implementer of inspections and enforcement." But it also says the agency "may take the lead in a case where the state does not have the equipment, resources or expertise necessary to enforce an aspect of an authorized statutory program," or in cases involving "a federally owned or operated facility" (E&E News PM, July 11).

NMED’s letter "means that the new EPA enforcement policy is not worth the paper it’s written on," said Tim Whitehouse, a veteran EPA enforcement attorney who is currently executive director of Public Employees for Environmental Responsibility, a watchdog group.

"EPA will continue to retreat from enforcement, and it will not make the difficult decisions necessary to protect public health and the environment," he predicted in an interview.

EPA didn’t respond to questions about how its actions in the New Mexico case comport with the agency’s stated enforcement policy.