Almost two years ago, we posted on the civil settlement of a dispute between the New Mexico Environment Department (NMED) and the U.S. Department of Defense (DoD) over a state-level enforcement action against Cannon Air Force Base (CAFB), a federal facility, relating to the facility’s discharge of PFAS-containing wastewater to groundwater without a permit.  NMED settled a $1.7 million civil penalty assessment against CAFB for $250,000, and we noted the difficulty state agencies were facing in enforcing their state PFAS standards against DoD. 

On August 19, 2022, in a matter arising out of a hazardous waste permit for the same facility, a federal judge ruled that under New Mexico’s state Hazardous Waste Act (HWA), an administrative appeal related to a HWA permit must be heard in New Mexico state court.  CAFB had objected, in relevant part, to provisions in NMED’s renewal of the facility’s HWA permit that included PFAS as a hazardous waste requiring corrective action – an alternative path to holding CAFB responsible for remediating its PFAS plume under New Mexico state law.  The federal court ruled it lacked the necessary jurisdiction to determine CAFB’s appeal and dismissed the appeal.  The court based its ruling in part on the federal Resource Conservation and Recovery Act’s (RCRA) express waiver of federal sovereign immunity. The RCRA waiver provision makes federal facilities like CAFB subject to state requirements where EPA has authorized the state to manage its own hazardous waste program in lieu of the federal RCRA program – as New Mexico does.  CAFB had originally brought a sovereign immunity challenge to the permit provisions but amended its complaint to appeal the terms of the permit directly under the HWA.  The court held that the revised challenge amounted to an administrative appeal of the permit, which properly belonged in the New Mexico Court of Appeals (and, even if that were not the case, concluded that federal abstention doctrine would also counsel in favor of deferring to the state court).  Now the New Mexico Court of Appeals will have the opportunity to determine the validity of NMED’s permit terms requiring CAFB to take corrective action for its PFAS plume.