New Mexico adopted rules this week to allow state environment officials to regulate fire-fighting foam containing so-called “forever chemicals” as hazardous waste, the first state in the country to apply the strict requirements to the substance.
A unanimous decision by the state Environmental Improvement Board on Monday allows the New Mexico Environment Department to monitor and limit the use of the firefighting foams that have polluted groundwater in and around military installations in New Mexico. The rules are the result of law enacted last year.
Aqueous Film-Forming Foams, which are used to put out fuel fires at airports or oil and gas sites, contain per-and-polyflourylakyl substances — PFAS — that build up in water and soil and in people’s bodies and are linked to serious health conditions.
State environment officials can now treat AFFF substances as they do other toxic substances, such as lead or benzene. The state will roll out efforts to document where the foams are stored, on military bases, oil fields or other areas that require immediate fire suppression. The rules require facilities that store the foams to report the quantities to the environmental department.
“Designating discarded PFAS-laden firefighting foams as a hazardous waste means the Environment Department can require cleanup,” Environment Secretary James Kenney said in a statement. “This week’s decision puts to rest any argument to the contrary and will help expedite cleanup efforts around military installations.”
The state remains mired in litigation over the cleanup of PFAS, including a U.S. Department of Defense case in Denver federal appeals court from 2022 over New Mexico’s authority to require the federal government follow state hazardous waste laws.
Zachary Ogaz, general counsel for NMED, told Source NM the rule change is a direct response to the appeal.
“This does give us a much stronger footing in our litigation, the Department of War is going to have to find a more creative legal argument, if it hopes to prevail against us in court,” Ogaz said.
Cameron Oden, a University of New Haven assistant professor in environmental engineering who studies PFAS disposal, said New Mexico is the first state to classify the fire-fighting foam itself as hazardous waste.
He said the state’s law change is part of a broader patchwork of state laws responding to the ambiguity of federal law governing hazardous waste, particularly PFAS.
“This is a prime example of the issue, as historically, military installations have been exempt from state regulations because they are a federal institution,” Oden said.
