CAFB WPD GWQB DP-873.pdf

SCIENCE | INNOVATION | COLLABORATION | COMPLIANCE

Ground Water Quality Bureau | 1190 Saint Francis Drive, PO Box 5469, Santa Fe, New Mexico 87502-5469

Telephone (505) 827-2900 | www.env.nm.gov/gwqb/

MICHELLE LUJAN GRISHAM JAMES C. KENNEY

GOVERNOR CABINET SECRETARY

CERTIFIED MAIL – RETURN RECEIPT REQUESTED

December 15, 2021

Colonel Robert A. Masaitis, USAF Cannon Air Force Base 506 North Air Commando Way Cannon Air Force Base, New Mexico 88103

RE: Discharge Permit Renewal and Modification, DP-873, Cannon Air Force Base

Dear Colonel Masaitis:

The New Mexico Environment Department (NMED) issues the enclosed Discharge Permit Renewal and Modification, DP-873, to Cannon Air Force Base (Permittee) pursuant to the New Mexico Water Quality Act and the New Mexico Ground and Surface Water Protection Regulations, 20.6.2 NMAC.

NMED sent you a draft permit dated February 8, 2021 and also made the draft available to the public for a 30-day comment period. NMED received comments from you. NMED considered the comments and changed some provisions in the draft permit for the reasons described in the enclosed Response to Comments.

NMED will send you an invoice for the Discharge Permit Fee of $8,150.00 under separate cover.

NMED advises you to submit an application for renewal or renewal/modification at least 180 days prior to December 14, 2026, the end of the Discharge Permit term, in order to avoid a lapse in permit coverage which could result in enforcement action.

This approval is issued pursuant to WQCC Regulation 20.6.2.3109 NMAC, and the NMED Delegation Order dated May 24, 2021, through which the Cabinet Secretary has delegated this authority to sign a Discharge Permit to the Chief of the Ground Water Quality Bureau. If you have any questions, please contact Avery Young at (505) 699-8564. Thank you for your cooperation during the application review process.

Sincerely, Justin D. Ball, Acting Chief Ground Water Quality Bureau

JB:AY

Encl: Response to Comments on Draft DP-873 Discharge Permit Renewal and Modification, DP-873

Discharge Permit Summary Table of 20.6.2.3103 Standards for Ground Water

Ground Water Discharge Permit Conditions for Synthetically Lined Lagoons – Liner Material and Site Preparation, Revision 0.0, May 2007

Ground Water Discharge Permit Monitoring Well Construction and Abandonment Conditions, Revision 1.1, March 2011

Land Application Data Sheet (LADS - https://www.env.nm.gov/forms/) Fertilizer Log NMED Ground Water Quality Bureau Guidance: Above Ground Use of Reclaimed Domestic

Wastewater cc: William Chavez, Acting District Manager, NMED District I

John Romero, Office of the State Engineer John Rhoderick, Acting Director, Water Protection Division, NMED Chris Atencio, Assistant General Counsel, Office of General Counsel, NMED Sara Newton, Water Quality Program Manager, Cannon Air Force Base, sara.newton@us.af.mil

RESPONSE TO COMMENTS

Discharge Permit, DP-873

Cannon Air Force Base

December 15, 2021

On February 14, 2021, the New Mexico Environment Department (NMED) published notice of the availability of a draft version of the above-referenced Discharge Permit or “Permit” and invited the public to comment on that Permit. In accordance with 20.6.2.3109.B NMAC, NMED provides the following responses to comments received by Cannon Air Force Base (CAFB).

COMMENTS RECEIVED WITH NMED RESPONSES IN ITALICS

General Comments

1. In accordance with 20.1.3 New Mexico Administrative Code (NMAC), it is the Air Force’s intent to appeal the terms and conditions of the Draft Discharge Permit 873 (DP-873) issued to CAFB.

NMED does not have a response to this general statement.

2. CAFB has maintained a state groundwater discharge permit since 1994. This permit, DP-873, regulates future discharges from the on-base wastewater treatment plant (WWTP) and septic tank/leach field systems. New Mexico Environment Department (NMED) states in the Introduction to the draft permit that: “Data collected from on-site monitoring wells document exceedances of groundwater quality standards for PFCs [perfluorinated chemicals] according to the criteria of Sections 20.6.2.3101 and 20.6.2.3103 NMAC…. requirements, actions and/or contingencies intended to address the sources of documented groundwater contamination.”

These requirements include, but are not limited to, “a site investigation work plan to evaluate the presence of PFCs in soils within the re-use areas, the former sewage lagoons, the WWTP, and surrounding the North Playa Lake”.

The Air Force strongly disagrees that DP-873 is the legally appropriate vehicle for addressing any groundwater impact from the prior use of aqueous film forming foam (AFFF) at CAFB. As NMED is aware, the Air Force follows the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) process to address suspected releases of perfluorooctane sulfonate/perfluorooctanoic acid (PFOS/PFOA) (see Defense Environmental Restoration Program (DERP), 10 U.S.C. Section 2701). Our priority is to address PFOS/PFOA to protect personnel living and working on our installations and the surrounding communities that we have impacted. The 2018 Site Investigation Report identified the presence of PFOS/PFOA in groundwater at CAFB. The initial focus was identifying if there is an exposure through drinking water of PFOS/PFOA above the U.S. EPA Lifetime Health Advisory (LHA) for drinking water of 70 parts per trillion (ppt). If there is an exposure the Air Force’s priority is to provide bottled drinking water. First, alternate drinking water was provided to locations with detections above the LHA, followed by the installation of point of use filtration systems. The Remedial investigation was awarded August 2020 and will determine the nature and extent of the PFOS/PFOA impacts.

In accordance with CERCLA § 121(e)(1), actions under CERCLA do not require a permit for activities on-site. As such, this action would be exempted from permit requirements as the Air Force is assessing and mitigating PFOS and PFOA contamination from past use of AFFF under CERCLA, DERP, and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). CERCLA Section 120(a) dictates the environmental remediation process for Federal facilities and CERCLA Section 120(a)(4) makes certain State environmental removal and remedial action laws, including enforcement, applicable to Federal facilities. That provision, is not relevant to the GW discharge permit issued because the Ground and Surface Water Protection Regulations are not "removal and remedial action laws."

The general objective of this draft permit seems to be an attempt to regulate in an impermissible fashion prior work (e.g., on PFOS/PFOA) or other emerging contaminants accomplished by the Air Force under CERCLA authority, rather than monitoring current discharges of constituents that have appropriate scientifically backed concentration trigger levels, under, respectively, CERCLA/Integrated Risk Information System (IRIS), the Safe Drinking Water Act (SDWA), or Resource Conservation and Recovery Act (RCRA). With due respect for NMED’s need to protect the integrity of its groundwater, the Air Force intends to resist any attempt by the State to implement abatement under the terms of this permit when the same is not supported by sound science or applicable law.

Specifically, NMED is attempting to use the addition of PFCs to the list of toxic pollutants in the 2018 amendment of the Ground and Surface Water Protection regulations as a mechanism to require investigation and abatement for discharges that were compliant with prior versions of DP-

873. The permitted wastewater discharges under the prior versions of DP-873 never resulted in the initiation of a Corrective Action Plan or abatement under 20.6.2.4104. The Air Force is exempt from the abatement regulations in 20.6.2.4103 NMAC for the investigation and restoration activities related to PFOS/PFOA because we are following the CERCLA process in accordance with 10 U.S.C. Section 2701. As stated in 20.6.2.4105(A)(2) NMAC: “Except as provided in Subsection B of this Section, Sections 20.6.2.4104 and 20.6.2.4106 NMAC do not apply to a person who is abating water pollution… under the authority of the U.S. Environmental Protection Agency pursuant to either the federal Comprehensive Environmental Response, Compensation and Liability Act, and amendments…”.

States may regulate Federal facilities only to the extent that such regulation is clearly authorized by Congress through “waivers of sovereign immunity.” Where no waiver of sovereign immunity exists, the Federal government is not subject to State regulation. There is no Federal environmental statute for which a waiver of sovereign immunity makes the New Mexico Ground and Surface Water Protection Regulations applicable to the Air Force.

With respect to sovereign immunity, the Clean Water Act (CWA) does not specifically address contamination of groundwater resources, but is a subject addressed by provisions in other laws including SDWA; RCRA; and CERCLA. For the SDWA, sovereign immunity is Waived under 42 U.S.C.

§ 300j-6, for “Each Federal agency . . . engaged in any activity resulting, or which may result in, underground injection which endangers drinking water...shall be subject to, and comply with, all Federal, State, interstate, and local requirements. . .to the same extent as any person is subject to such requirements...” First and foremost, drinking water would need to be implicated for the substantive provisions to be requirements, however, drinking water is not implicated.

The Air Force posits that this permit should focus on the current discharges from the WWTP and septic tank/leach field systems. The effluent samples analyzed for PFOS/PFOA in the fall of 2019 at the request of NMED found little to no PFOS/PFOA concentrations present in the effluent (ranging from 0 ppt to 17 ppt). These concentrations in the effluent are well below the current EPA LHA for drinking water of 70 ppt. These concentrations would not trigger a corrective action plan because corrective action under the 20.6.2.3109(E) require initiating corrective action only if water quality standards under the Rules are exceeded because of a permittee’s discharge.

NMED Response: The main objective of this Discharge Permit is to monitor the current discharge at CAFB, which is a discharge that contains PFCs; therefore, the inclusion of conditions to monitor existing discharges that contain PFCs is appropriate. The purpose of this Discharge Permit is not to require remediation of existing contamination as a result of previous discharges. While the Ground and Surface Water Protection Regulations and the Water Quality Act are remedial action laws that require abatement for groundwater contamination, NMED is not currently requiring CAFB to abate groundwater contamination under these authorities.

CAFB is correct that a facility under the authority of the EPA pursuant to CERCLA and amendments are exempt from abatement regulations pursuant to 20.6.2.4104 NMAC. It is NMED’s understanding that CAFB is following the CERCLA process but not under the authority nor the oversight of the EPA. CAFB also has not notified NMED of what actions they are taking under CERCLA and how such actions are in conflict with requirements of this Discharge Permit.

3. NMED’s use of residential screening levels in DP-873 is inappropriate. In Condition #6 NMED states that “The Permittee shall apply reclaimed wastewater to re‐use areas and for dust control and construction purposes in a manner that does not result in the exceedance of PFCs in soils of the residential, non‐cancer soil screening level specified in the most current NMED Risk Assessment Guidance for Site Investigations and Remediation (Risk Assessment Guidance) and the associated soil screening levels for contaminants presented in Table A‐1”. The use of this Risk Assessment Guidance as an automatic trigger for investigation and/or abatement is inappropriate for a number of reasons:

a) Although guidance documents, such as the referenced Risk Assessment Guidance, are intended to clarify regulations they are not enforceable. The soil screening levels (SSLs) in Table A-1 never went through notice and comment rulemaking.

b) The residential SSLs referenced by NMED are based on exposure to soil (to depths of zero to 10 feet below ground surface [bgs]) through three exposure pathways: direct ingestion, dermal absorption, and inhalation of volatiles and fugitive dusts. In Appendix E of the Risk Assessment Guidance, NMED acknowledges that there are no promulgated federal regulatory criteria for evaluating the intake via the soil exposure pathway.

c) As stated in the Introduction to this Risk Assessment Guidance “It is important to note that SSLs do not in themselves represent cleanup standards, and the SSLs [soil screening levels] alone do not trigger the need for a response action or define “unacceptable” levels of contamination in soil”. As NMED correctly states on pg. 5 of the Risk Assessment Guidance:

“The exceedance of an SSL does not necessarily indicate that current conditions are not safe or that they present an unacceptable risk. Rather, a site risk calculation that exceeds a target value may simply indicate the need for further evaluation or refinement of the exposure model”. NMED is attempting to use screening levels as black and white triggers for initiating corrective action contrary to its own guidance.

d) Finally, these SSLs are unrelated to permitting under the Ground and Surface Water Protection regulations. The SSLs referenced by NMED in Condition #6 are completely unrelated to the assessment of the potential for PFOS/PFOA to migrate from shallow soil to groundwater. As stated above, these SSLs only evaluate three exposure pathways: direct ingestion, dermal absorption, and inhalation of volatiles and fugitive dusts.

NMED Response: NMED is not using the NMED Risk Assessment Guidance for Site Investigations and Remediations as an automatic trigger for investigations and/or abatement in this context.

NMED has included this condition to be protective of groundwater since PFOS, PFOA, and PFHxS do not appear to attenuate in the vadose zone. Per the NMED Risk Assessment Guidance for Site Investigations and Remediations, the screening levels for migration to groundwater are based on NMED‐specific tap water screening levels; therefore, NMED has updated the screening level in this condition to the Tap Water, Noncancer level specified in the most current NMED Risk Assessment Guidance for Site Investigations and Remediations. The Tap Water Screening Level identified in Table A‐1 of the most current NMED Risk Assessment Guidance for Site Assessments and Investigations was determined by credible scientific data through the development of the document, which utilizes methodologies developed by the U.S. Environmental Protection Agency;

however, if CAFB would like to calculate an alternate screening level for approval by NMED, NMED would consider such a proposal.

4. As NMED notes in the Introduction to the draft permit, the list of “toxic pollutants” in 20.6.2.7(T)(2) did not include any PFCs (namely PFOS/PFOA) until the Ground and Surface Water Protection rules were amended in 2018. NMED has not formally established numerical standards for PFCs, as stated in 20.6.2.3103(A)(2). NMED acknowledges that there are no federal maximum contaminant levels (MCLs) for any PFCs (which includes PFOS/PFOA). Rather than engaging in the formal notice and comment rulemaking process that would: (1) facilitate a robust and transparent vetting of the scientific data and (2) allow for public comment, NMED has chosen to use tap water screening levels from the Risk Assessment Guidance as enforceable standards to drive corrective action and possibly abatement. As stated above, guidance documents cannot be treated as rules.

NMED Response: It is appropriate and customary for NMED to implement guidance through permit terms and conditions that are subject to public notice and comment. Per 20.6.2.3103 NMAC, the standard for a toxic pollutant is determined by credible scientific data and other evidence. The Tap Water Screening Level identified in Table A‐1 of the most current NMED Risk Assessment Guidance for Site Assessments and Investigations was determined by credible scientific data through the development of the document, which utilizes methodologies developed by the U.S. Environmental Protection Agency; however, if CAFB would like to propose an alternate standard for approval by NMED, NMED would consider such a proposal. In the 2018 Site Investigation Report, CAFB used the EPA’s Lifetime Health Advisory of 70 ppt, which is the same number as the Tap Water Screening level identified in Table A‐1. In addition, CAFB participated in the rulemaking that led to the updated Ground and Surface Water Protection regulations in 2018, which included a public hearing, public participation, and public comment.

5. The requirement to establish a financial assurance instrument imposed by NMED on Page 3 of the draft permit is unacceptable. The language starting on line 1 of Page 3 with the words: “This Discharge Permit requires…ending with the word, “activities” shall be struck and in substitution add: “CAFB commits to seeking appropriate funding from Congress to meet the fiscal expenditures required by the tasks determined to be legally applicable to the United States set forth within this Discharge Permit. Nothing in this Discharge Permit shall be interpreted in a manner that will cause the United States Air Force to be in violation of the Anti‐Deficiency Act, 31 U.S.C. § 1341.”

NMED Response: NMED disagrees. 20.6.2.3107.A NMAC requires each groundwater discharge permit to include financial assurance provisions “as the secretary may require.” Federal facilities are not excluded from this regulatory provision. However, NMED understands that federal facilities, including CAFB, are subject to Congressional appropriation constraints, and, therefore, NMED has revised DP‐873 to address those constraints and to incorporate a portion of CAFB’s proposed comment language.

6. In Conditions 3, 8, 28, 29, 37, and 69, the permit uses a combination of periodic monitoring reports or quarterly reporting. In Condition 23 quarterly monitoring reporting is required and a schedule is provided. The Air Force is asking for clarity between periodic monitoring reporting and quarterly reports

NMED Response: Periodic is equivalent to quarterly in this context; however, NMED agrees to change all references of periodic to quarterly to avoid confusion.

IV Conditions A. Operational Plan

7. Condition #2, Page 5 - See General Comment #1 above

NMED Response: This is a standard condition in every discharge permit issued by the Ground Water Quality Bureau since compliance with Sections 20.6.2.3101 and 20.6.2.3103 are the central tenants of a discharge permit. Similar language has been included in previous discharge permits issued to Cannon Air Force Base.

8. Condition #6, Page 6 - See General Comment # 2 above

NMED Response: See NMED response to Comment #2.

9. Condition #10, Page 8 - Condition 10(b)(vii) should be deleted for the reasons detailed in Comments #1 and #2 above.

NMED Response: PFCs are toxic pollutants as defined by 20.6.2.3103.A(2) NMAC. The purpose of a discharge permit is to protect human health and the environment. Requiring notification to persons utilizing reclaimed wastewater that contains PFCs is justified and within the scope of this Discharge Permit. CAFB may opt to not use reclaimed wastewater for dust control and construction purposes, and, with appropriate notice, NMED would remove Condition 10 and other related permit language in its entirety.

10. Condition #14, Page 9-10 - The language is confusing as it appears to incorrectly imply that the North Playa Lake is lined. Please clarify.

NMED Response: NMED agrees and has separated this condition into two conditions: one for lined impoundments and one for the unlined North Playa Lake.

B. Monitoring and Reporting

11. Condition #24, Page 13 - Prior versions of DP-873 limited groundwater sampling to monitoring wells MW-E, MW-F, MW-G, MW-H (annually), MW-N, MW-O, and MW-P (quarterly) for the following monitoring parameters nitrate (NO3), Total Kjeldahl Nitrogen (TKN), chlorine (Cl), and total dissolved solids (TDS). The 2009 permit did not contain any monitoring well sampling requirements. In 2014 the permit required the Air Force to sample monitoring wells MW-Na, MW0Oa, and MW-Pa during the first year of the permit for the 53 constituents then associated with NMAC 20.6.2.3103. The Air Force agrees that these wells are representative of monitoring the performance of the WWTP and septic tank/leach field systems.

As detailed in Comment #1 above, the Air Force opposes the installation of any additional groundwater monitoring wells intended to monitor impact from the prior use of AFFF at CAFB.

The investigation of the nature and extent of any groundwater impact from these past activities is being implemented under CERCLA.

NMED Response: 20.6.2.3107.A(2) NMAC authorizes NMED to require the installation and use of monitoring devices for groundwater most likely to be affected by a discharge. The four monitoring wells required to be installed per Condition 26 (previously Condition 25) of the Discharge Permit are intended to improve groundwater monitoring at discharge locations authorized by the Discharge Permit, either by monitoring more directly downgradient of the discharge location, monitoring more proximal to the discharge location, or monitoring locations previously not monitored. Condition 25 (previously Condition 24) does not reference AFFF or PFCs and is not solely in response to prior use of AFFF at CAFB.

12. Condition #25, Page 13 - See Comment #10 above.

NMED Response: NMED believes that CAFB meant Comment #11 above. See NMED response to Comment #11.

13. Condition #25, Page 13 - Please clarify the following statement: “Unless otherwise noted in this Discharge Permit, the requirement to install a groundwater monitoring well down gradient of a source is not contingent upon construction of the Facility, or discharge of wastewater from the Facility”

NMED Response: NMED has removed the statement from Condition 26 (previously Condition 25) of the Discharge Permit.

14. Condition #26, Page 14 - See Comment #10 above.

15. Conditions #24, 25, 26, 27, 50, and 51, Pages 13-14 and 26-27 - The Air Force does not believe that these conditions are applicable (see Comment 1). Even if they were applicable, the timelines associated with them are too short to accommodate the federal contracting process. The existing contract in-place to support the Cannon AFB DP-873 does not include the installation of monitoring wells, survey work, preparing a monitoring well completion report, and the new sampling requirements in this draft permit. Therefore, this would be a new requirement, and would require the Air Force to go through the proper funding cycles and the acquisition process.

Part of this process is determining the availability of funds. Since this would be a new requirement within the current fiscal year, there are no funds planned for such an event. In accordance with the Anti-Deficiency Act, 31 U.S.C. § 1341, an agency of the federal government, such as the Air

Force, may only spend in a given fiscal year the amounts which have been properly appropriated to that agency for the needs of that agency during that fiscal year. Additionally, as outlined in the Federal Acquisition Regulation (FAR) 32.702, no officer or employee of the Government may create or authorize an obligation in excess of the funds available, or in advance of appropriations.

The length of time that this process takes is related to the dollar amount of the contract. To fulfill a requirement such as the one outlined by this comment would require a minimum of 120 and 180 days to obtain project funding, identify the acquisition strategy, and award a contract.

With this being said, it should be noted that the USAF is currently funding a Remedial Investigation for PFOS/PFOA under the CERCLA process. Installation of these wells and sampling for PFOS/PFOA outside of this process may be considered as waste, and/or abuse as defined by the Office of Inspector General, United States Agency for International Development (https://oig.usaid.gov/node/221).

NMED Response: NMED believes that CAFB meant Comment #2 above. NMED agrees to extend the deadlines for implementation actions associated with the identified conditions and has included the extended timelines in the Discharge Permit. NMED has extended Condition 25 (previously Condition 24) from 60 days to 90 days, Condition 26 (previously Condition 25) from 60 days to 120 days, Condition 27 (previously Condition 26) from 45 days to 60 days, and Condition 28 (previously Condition 27) from 30 days to 60 days. If CAFB needs additional time to comply with these conditions, CAFB may request an extension at the appropriate time. Conditions 24, 25, 26, 27, 50, and 51 are not solely in response to prior use of AFFF at CAFB. Collaboration with other investigations or activities at the Facility is possible to ensure monitoring wells are installed to satisfy multiple purposes. All monitoring wells involved in this type of collaboration would still be required to follow the attached Monitoring Well Guidelines and timelines associated with DP‐873.

16. Condition #28, Page 15-16 - See Comment #10 above.

17. Condition #28, Page 15-16 - The Air Force respectfully requests the technical and regulatory justifications for analyzing groundwater for all constituents listed in Section 20.6.2.3103 NMAC and all toxic pollutants listed in the definitions of 20.6.2.7 NMAC. The effluent from the WWTP is well characterized and has been sampled regularly under both DP-873 and the NPDES permit.

Groundwater monitoring in this permit should be related to the characteristics of the discharge going forward.

The combined list of constituents that is required in the first year of the permit includes 151 constituents, formerly 103 constituents. Analyzing them would cost taxpayers approximately $2,000.00 each year, and the additional analysis of PFOS/PFOA (not historically included in the permit) will increase the cost by approximately $1,300.00 each year. The overall cost increase is approximately $3,300.00 each year.

As NMED is aware, the Air Force samples monitoring wells associated with its CERCLA activities and the corrective action provisions in the RCRA Permit. Under the existing RCRA permit groundwater samples are collected from 11 monitoring wells, and analyzed for volatile organic compounds (VOCs), target analyte list (TAL) metals (including mercury), hexavalent chromium, perchlorate, chloride, nitrate/nitrite, sulfate, ammonia, total organic carbon (TOC), and water quality parameters (pH, dissolved oxygen (DO), specific conductance, turbidity, and temperature).

Of the 11 monitoring wells sampled under the RCRA permit, five of them (MW-F, MW-G, MW-Na, MW-Oa, and MW-Pa) have been monitored and sampled under previous permits for nitrate, TKN, Cl, and TDS. Monitoring wells MW-Na, MW-Oa, and MW-Pa have also been sampled once under the 2014 permit requirements for the constituents listed in 20.6.2.3103 NMAC. There is no technical or regulatory basis for such an extensive monitoring list under this permit.

Lastly, as stated in Comment #1 above, the Air Force is addressing the investigation and possible remediation for PFOS/PFOA from the historical use of AFFF under CERCLA.

NMED Response: NMED believes that CAFB meant Comment #2 above. 20.6.2.3107.A(2) NMAC authorizes NMED to require the installation and use of monitoring devices for groundwater most likely to be affected by a discharge. CAFB’s January 2020 discharge permit application, Attachment 5, Sources of Discharge, states that the types of sources [of discharge] are similar to what one would find at a small city, including residential wastewater and minor industrial wastewater. It is prudent to completely and continually characterize the groundwater at a facility that has industrial wastewater components and authorizes reuse to various locations. Since CAFB sampled three monitoring wells (MW‐Na, MW‐Oa, and MW‐Pa) for all constituents listed in Section

20.6.2.3103 NMAC in 2014, 14 constituents have been added to Section 20.6.2.3103 NMAC. In addition, in 2014, CAFB did not sample any monitoring wells for all toxic pollutants listed in the definitions of 20.6.7 NMAC. Further, in 2014, CAFB only sampled the three monitoring wells intended to monitor the North Playa Lake and not any monitoring wells intended to monitor other authorized discharge locations. Note, the sampling requirement for Condition 29 (previously Condition 28) is for a one‐time sampling event, and, therefore, does not represent an annual cost to taxpayers.

CAFB does not have to duplicate the sampling required by the Hazardous Waste Bureau of NMED, but rather, CAFB may submit any duplicative data to the GWQB provided the sampling and analytical procedures used to derive that data are consistent with DP‐873 requirements.

On March 12, 2019, NMED mailed notification to all entities holding a groundwater discharge permit, including CAFB, of recent amendments to the Ground and Surface Water Protection Regulations (20.6.2 NMAC), including changes to the groundwater numerical standards at

20.6.2.3103 NMAC and the addition of several regulated contaminants. The notice informs permittees that “[w]hen your groundwater discharge permit is renewed or modified, it may contain specific requirements to sample for specific additional contaminants.”

18. Condition #29, Page 16 - As summarized in Comment #1 above, the Air Force is currently monitoring for PFHxS, PFOS, and PFOA that resulted from the past use of AFFF under CERCLA.

Therefore, the sampling requirements for these compounds in Condition #29 should be deleted in their entirety.

NMED Response: NMED believes that CAFB meant Comment #2 above. The presence of PFHxS, PFOS, and PFOA in groundwater below CAFB are well‐known and well documented. NMED required CAFB to update its 2018 permit renewal application to include PFC data to inform NMED’s development of appropriate permit conditions, which CAFB submitted in January 2020. The New Mexico Ground and Surface Water Protection Regulations (20.6.2 NMAC) lists PFHxS, PFOS, and PFOA as toxic pollutants and, therefore, NMED can require permittees to sample for them. CAFB does not have to duplicate the sampling for the three constituents, but rather, CAFB may submit its CERCLA data associated with the wells listed in Condition 30 (previously Condition 29) provided the sampling and analytical procedures used to derive that data are consistent with DP‐873 requirements.

19. Condition #33, Page 18 - NMED identifies six different areas (Treated Wastewater Storage Basin, North Playa Lake, Golf Course Impoundment, driving range, softball fields and dog park) that shall be measured monthly using four totalizing flow meters. CAFB has four totalizers, located at the WWTP that monitor the flow of effluent water to the golf course pond, North Playa, Treated Wastewater Storage Basin, and the contractors fill point for construction water. The remaining areas have supply meters. Cannon AFB fails to see a need to add additional totalizing meters.

NMED Response: Since the draft Discharge Permit was issued, CAFB has informed NMED that it no longer discharges reclaimed wastewater to the softball fields or dog park. NMED has revised DP‐ 873 accordingly to accurately represent current metering conditions at CAFB.

20. Condition #38, Page 20-21 - Consistent with Comment #1 above, the Air Force is already assessing PFOS/PFOA compounds under the CERCLA authority; therefore, the sampling requirement in Condition #38 should be deleted in its entirety. In addition, as stated in Comment #2 above, NMED cannot use tap water screening levels as effluent criteria.

NMED Response: NMED believes that CAFB meant Comment #2 above. See NMED response to Comment #2 and #18.

21. Condition #42, Page 22-23 - See Comment #16 above. The effluent from the WWTP is well characterized and has been sampled regularly under both DP-873 and the NPDES permit.

NMED Response: NMED believes CAFB meant Comment #17 above. Condition 43 (previously Condition 42) conforms to the requirement at 20.6.2.3107.A(1) NMAC that a discharge permit provide for the use of effluent monitoring devices. CAFB no longer has a NPDES permit and, therefore, it is not applicable in this context. Influent into and effluent out of a WWTP have temporal components, which allows for the fluctuation of chemical constituents and constituent concentrations in influent and effluent. Although CAFB has characterized the effluent in the past, wastewater requires continued characterization and monitoring. NMED consistently requires industrial facilities discharging wastewater for reuse to adhere to this or a similar requirement.

22. Condition #43, Page 23-24 - See Comment #16 above. The effluent from the WWTP is well characterized and has been sampled regularly under both DP-873 and the NPDES permit.

NMED Response: See NMED response to Comment #21.

23. Condition #43, Page 23-24 - Consistent with the prior Air Force comment that NMED is inappropriately invoking tap water guidance as an enforceable standard for a 1,4-dioxane screening level; Condition 43 is/should be deleted in its entirety. See Comment #2 above.

NMED Response: Per 20.6.2.3103 NMAC, the standard for a toxic pollutant is determined by credible scientific data and other evidence. The Tap Water Screening Level identified in Table A‐1 of the most current NMED Risk Assessment Guidance for Site Assessments and Investigations was determined by credible scientific data through the development of the document, which utilizes methodologies developed by the U.S. Environmental Protection Agency; however, if CAFB would like to calculate an alternate screening level for approval by NMED, NMED would consider such a proposal.

C. Additional Studies Required

24. Condition #48, Page 25 - As detailed in Comment #2 above, this requirement for a soils investigation work plan is unrelated to permitting under the Ground and Surface Water Protection regulations. The SSLs referenced by NMED in the Risk Assessment Guidance are completely unrelated to the assessment of the potential for any constituent to migrate from shallow soil to groundwater. These SSLs only evaluate three exposure pathways: direct ingestion, dermal absorption, and inhalation of volatiles and fugitive dusts.

In addition and consistent with Comment #1 that the Air Force is already assessing PFOS/PFOA under CERCLA authority; the soils investigation work plan is/should be deleted in its entirety.

NMED Response: NMED believes that CAFB meant Comment #2 in both paragraphs above.

NMED requires a soils investigation at Condition 49 (previously Condition 48) to protect groundwater and to protect human health in general. Groundwater sampling at CAFB demonstrates the ability of PFCs to migrate from the surface, through the vadose zone, to groundwater.

CAFB’s Site Inspection of AFFF Release Areas Final Report (SIR) dated August 2018 does and does not do the following:

• Does not address constituent migration from shallow soil to groundwater. Migration to groundwater is not listed in the SI objectives identified in the SIR Executive Summary.

• Does not address PFCs releases at the WWTP (not considered an AFFF Release Area).

• Does state in the Executive Summary:

o “PFOS in surface soil was detected above the calculated [Regional Screening Level (RSL)] in AFFF release areas 2, 3, 4, 5 [i.e., Former Sewage Lagoon], 9, and

11. PFOS in subsurface soil was detected above the calculated RSL in AFFF Release Area 5 [i.e., Former Sewage Lagoon].”

o “PFOS was detected in sediments collected at AFFF release areas 6 (North Playa Lake Outfall] and 8 [Golf Course Reuse Areas] at concentrations below the calculated RSL.”

• Does state at Section 2.3 that “Any wastewater collected at the WWTP containing AFFF therefore has the potential to be released at the golf course.”

• Does state at Section 3.14.3 that “PFOS, PFOA, and/or PFOS+PFOA in groundwater exceeded the [Health Advisory for Drinking Water or HA or 0.07 ug/L per USEPA] at six monitoring wells at Cannon AFB. The monitoring wells with PFAS detections above the HA include monitoring wells MW‐GA and LF25‐MWPA located in the east‐central portion of the installation, southeast of the sewage lagoon area (AFFF Release Area 5).

• Does state at Table 5.0‐1 that the Former Sewage Lagoons and the North Playa Lake should advance to an “RI” (Remedial Investigation) and that “no further remedial action” should occur at the Golf Course.

CAFB’s Comment #2 refers to a “Remedial investigation [that] was awarded August 2020 and will determine the nature and extent of the PFOS/PFOA impacts.” NMED has not been included in the review and formulation of the “investigation” workplan and has not been provided with the resultant investigation report, assuming the report has been finalized.

NMED has included this condition to be protective of groundwater since PFOS, PFOA, and PFHxS do not appear to attenuate in the vadose zone. Per the NMED Risk Assessment Guidance for Site Investigations and Remediations, the screening levels for migration to groundwater are based on NMED‐specific tap water screening levels; therefore, NMED has updated the screening level in this condition to the Tap Water, Non‐cancer level specified in the most current NMED Risk Assessment Guidance for Site Investigations and Remediations. The Tap Water Screening Level identified in Table A‐1 of the most current NMED Risk Assessment Guidance for Site Assessments and Investigations was determined by credible scientific data through the development of the document, which utilizes methodologies developed by the U.S. Environmental Protection Agency;

however, if CAFB would like to calculate an alternate screening level for approval by NMED, NMED would consider such a proposal.

D. Contingency Plan

25. Condition #49, Page 25-26 - As detailed in Comment #1 above, this permit focuses on the current quality of the treated effluent. Any exceedance in a groundwater well monitored under this permit must be related to the discharge during the pendency of the permit. The corrective action provisions under 20.6.2.3109(E) NMAC require the initiation of corrective action only if water quality standards under the Rules are exceeded because of a permittees’ discharge.

Consistent with Air Force comments that specific compounds identified, as appropriate, by either a 40 CFR Part 264 standard or a SDWA standard (MCL), the Corrective Action Plan (CAP) requirement is/should be deleted in its entirety.

NMED Response: This is a standard condition that is included in every Discharge Permit issued by NMED that includes monitoring wells. This condition is enacted based on the current monitoring results required by this Discharge Permit. 20.6.2.3107.A(10) NMAC requires the inclusion of contingency plans to cope with the failure of the discharge system, which in this case would be the presence of contamination in groundwater associated with an authorized discharge.

26. Condition #49, Page 26 - As stated in Comment #1 above, the Air Force is exempt under 20.6.2.4105(A)(2) NMAC from the abatement regulations in 20.6.2.4103 NMAC for the investigation and restoration activities related to PFOS/PFOA because we are following the CERCLA process. The Air Force is also exempt under 20.6.2.4105(A)(3) NMAC for groundwater remediation being performed pursuant to the corrective action provisions in the RCRA Hazardous Waste Corrective Actions Only Permit for Cannon AFB (NM EPA ID#NM7572124454).

NMED Response: NMED believes that CAFB meant Comment #2 above. Not all groundwater standards or toxic pollutants, such as total dissolved solids, are covered under CERCLA or RCRA remediation activities, and, therefore, it is appropriate to cover groundwater exceedances of those constituents in a groundwater discharge permit. Furthermore, NMED believe CAFB’s CERCLA and RCRA related activities insufficiently evaluate impacts to environmental media at the DP‐873 authorized discharge locations.

27. Condition #50, Page 26 - See Comment #14 above.

NMED Response: NMED believes CAFB meant Comment #15 above. This is a standard contingency condition that is included in every Discharge Permit issued by NMED that includes monitoring wells. 20.6.2.3107.A(10) NMAC requires the inclusion of contingency plans to cope with the failure of the discharge system, which in this case would be the failure of a monitoring device intended to monitor a discharge location.

28. Condition #51, Page 27 - See Comment #14 above.

NMED Response: NMED believes CAFB meant Comment #15 above. This is a standard contingency condition that is included in every Discharge Permit issued by NMED that includes monitoring wells. 20.6.2.3107.A(10) NMAC requires the inclusion of contingency plans to cope with the failure of the discharge permit, which in this case would be having a monitoring device improperly located and it not being able to fulfill part of the discharge permit’s objective of monitoring a discharge.

29. Condition #52, Page 27 - As detailed in Comment #3 above, NMED cannot use tap water screening levels from the Risk Assessment Guidance as enforceable standards to drive corrective action and because guidance documents cannot be treated as rules.

As stated in Comment #1 above, the Air Force employs the current EPA lifetime health advisory for drinking water of 70 ppt. PFOS/PFOA concentrations below this level would not trigger a corrective action plan because corrective action under the 20.6.2.3109(E) require initiating corrective action only if water quality standards under the Rules are exceeded in groundwater because of a permittees’ discharge (not historical discharges).Therefore, the requirements set forth in Condition #52 should be struck in their entirety.

NMED Response: Per 20.6.2.3103 NMAC, the standard for a toxic pollutant is determined by credible scientific data and other evidence. The Tap Water Screening Level identified in Table A‐1 of the most current NMED Risk Assessment Guidance for Site Assessments and Investigations was determined by credible scientific data through the development of the document, which utilizes methodologies developed by the U.S. Environmental Protection Agency; however, if CAFB would

30. Condition #52, Page 27 - Conditions #52, 53, 54, and 55 all describe the steps that must be taken if the concentrations of a contaminant in reclaimed wastewater exceeds a specified criteria. Only Conditions #52 and #54 would require an immediate halt to the distribution of reclaimed wastewater and the closure of the WWTP if the effluent standard was exceeded. NMED must be aware that if this action would lead to the potential shutdown of the base and to avoid an imminent threat to National Security, the Air Force will seek to continue to operate the WWTP in accordance with national security procedures. 33 USC §1323.

NMED Response: These are standard conditions included in every discharge permit issued by NMED that authorizes reuse in order to protect human health and the environment. There are many operational changes or modifications that can be made to a WWTP in order to not exceed reuse standards. In addition, Conditions 54 (previously Condition 53) and 55 (previously Condition

54) do not require the closure of the WWTP for exceedances but require the discharge of reclaimed wastewater to reuse areas to cease. CAFB would still be able to discharge to the North Playa Lake and the Treated Wastewater Storage Basin if that were to be the case.

31. Condition #52, Page 27 - See Comment #3 above.

NMED Response: Per 20.6.2.3103 NMAC, the standard for a toxic pollutant is determined by credible scientific data and other evidence. The Tap Water Screening Level identified in Table A‐1 of the most current NMED Risk Assessment Guidance for Site Assessments and Investigations was determined by credible scientific data through the development of the document, which utilizes methodologies developed by the U.S. Environmental Protection Agency; however, if CAFB would

32. Condition #58, Page 31 - See Comment #14 above.

NMED Response: NMED does not understand the reference to Comment 14. Condition 58 addresses requirements should solids accumulation in impoundments exceed one‐third the maximum liquid depth. Comment 14 references Condition 26 and Comment 10. Condition 26 addresses the constituents to be measured in new monitoring wells. Comment 10 references Condition 14 regarding the maintenance of impoundment liners. NMED considers the issues of solids accumulation in impoundments and the maintenance of impoundment liners different and unrelated subjects. CAFB should further explain.

E. Closure Plan

33. Condition #62, Page 33-34 - The following components of the WWTP system and septic tank/leach fields are identified as solid waste management units under the corrective action provisions of CAFB’s RCRA Permit: SWMU 102 WWTP Effluent, Discharge Pipe and Inlet Chamber (currently on Table 2 CAC Approved Jan 2015, and Approval with Modifications April 11, 2019).

As such these SWMUs are not subject to the closure or post-closure requirements of this discharge permit. Clearly, it is not the Groundwater Quality Bureau’s intent to conflict or supersede the corrective action provisions of the RCRA Permit. These corrective action requirements apply to releases of hazardous constituents listed in 40 CFR Part 261, Appendix VIII or 40 CFR Part 264, Appendix IX.

As detailed in Comment #1 above, Air Force is assessing and mitigating PFOS and PFOA contamination from past use of AFFF under CERCLA, DERP, and NCP. This includes any impacted SWMUs.

NMED Response: NMED believes that CAFB meant Comment #2 above. Comment #33 references SWMU 102, the WWTP Effluent, Discharge Pipe and Inlet Chamber. The Comment further references a Corrective Action Complete determination. The GWQB is unfamiliar with the limits of SWMU designation and will assume it is only includes the discharge pipe and inlet chamber, presumably two locations. CAFB should provide all associated reports to NMED/GWQB regarding the SWMU CAC determination.

As stated in Condition 63 (previously Condition 62), closure under DP‐873 involves the step necessary to close, e.g., remove or make unable to discharge, the referenced structures. The RCRA Permit corrective action procedures do not address making a SWMU incapable of causing an unacceptable discharge, but instead evaluates past releases from the SWMUs. Therefore, the Condition 63 closure requirements will remain in the Discharge Permit.

34. Condition #62, Page 33-34 - As stated above, the groundwater monitoring provisions for hazardous constituents listed in 40 CFR Part 261, Appendix VIII or 40 CFR Part 264, Appendix IX also do not apply to any of the SWMUs listed above.

As detailed in Comment #1 above, Air Force is assessing and mitigating PFOS and PFOA contamination from past use of AFFF under CERCLA, DERP, and NCP. This includes any groundwater monitoring from impacted SWMUs.

NMED Response: NMED believes that CAFB meant Comment #2 above. Condition 63 (previously Condition 62) does not reference PFCs. The GWQB will require groundwater monitoring for any constituent found associated with the discharge location and included in 20.6.2.3103 NMAC, including the hazardous constituents referenced in CAFB’s comment. Therefore, the Condition 63 closure requirements will remain in the Discharge Permit.

35. Condition #62, Page 33-34 - As stated above, NMED cannot impose a financial assurance requirement on the Air Force. The following language should be stricken: “The Permittee shall ensure the closure plan has sufficient detail to estimate the cost of complete closure of all wastewater related infrastructure and post‐closure monitoring for the purpose of establishing and maintaining financial assurance. The detailed closure plan shall provide sufficient detail to estimate the cost of operation and maintenance of the groundwater monitoring system. Inherent in this detail is an estimate of the time (after the cessation of Facility operation) that the groundwater monitoring system will have to remain in place and in operation, i.e., until WQCC groundwater standards or background concentrations have been met for at least eight consecutive quarters”.

NMED Response: NMED disagrees. See NMED response to Comment #5.

36. Condition #63, Page 34 - As stated above, NMED cannot impose a financial assurance requirement on the Air Force. Therefore Condition #63 should be stricken in its entirety.

NMED Response: NMED disagrees. See NMED response to Comment #5.

37. Condition #64, Page 34-36 - As stated above, NMED cannot impose a financial assurance requirement on the Air Force. Therefore Condition #64 should be stricken in its entirety.

NMED Response: NMED disagrees. See NMED response to Comment #5.

38. Condition #65, Page 36-37 - As stated above, NMED cannot impose a financial assurance requirement on the Air Force. Therefore Condition #65 should be stricken in its entirety.

NMED Response: NMED disagrees. See NMED response to Comment #5.

39. Condition #66, Page 37-38 - The following components of the WWTP system and septic tank/leach fields are identified as solid waste management units under the corrective action provisions of CAFB’s RCRA Permit: SWMU 102 WWTP Effluent, Discharge Pipe and Inlet Chamber (currently on Table 2 CAC Approved Jan 2015, and Approval with Modifications April 11, 2019).

As such these SWMUs are not subject to the closure or post-closure requirements of this discharge permit. Clearly, it is not the Groundwater Quality Bureau’s intent to conflict or supersede the corrective action provisions of the RCRA Permit.