2:19-cv-03288-RMG Date Filed 11/21/19 Entry Number 1 Page 1 of 30

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

ART SCHAAP AND RENEE SCHAAP d/b/a

HIGHLAND DAIRY,
COMPLAINT
Plaintiff,
Case No: 2:19-cv-03288-RMG
-against –
JURY TRIAL
UNITED STATES OF AMERICA; DEMANDED
UNITED STATES DEPARTMENT OF DEFENSE;
UNITED STATES AIR FORCE,

Defendants.

COMPLAINT

Plaintiffs, Art Schaap and Renee Schaap d/b/a Highland Dairy (hereinafter “Plaintiff”), by

and through their attorneys NAPOLI SHKOLNIK PLLC and DOERR & KNUDSON, PA as and

for its Complaint against the United States of America, the United States Department of Defense

and the United States Air Force (hereinafter, “Defendants”), allege as follows:

INTRODUCTION

1. Plaintiff, the Highland Dairy (hereinafter “Highland” or “Dairy”), brings this action

against the United States of America, the United States Department of Defense and the United

States Air Force, to recover past and future damages caused by the improper disposal of

contaminants and hazardous substances at the Cannon Air Force Base (“CAFB”), which has

contaminated and polluted public and private water sources for area residents, including Plaintiff

with per- and polyfluoroalkyl substances (“PFAS”), including but not limited to perfluorooctanoic

acid (“PFOA”) and/or perfluorooctane sulfonic acid (“PFOS”).

2. Plaintiff has been significantly damaged in its business and property as a direct and

proximate result of the Defendants’ conduct, as set forth herein. As a direct and proximate result
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of the PFAS contamination caused by Defendants, Highland has been forced to spend

approximately $200,000 for a PFAS filtration system to be installed on the impacted supply wells.

3. The CAFB used Aqueous film forming foam (“AFFF”) containing PFOA and

PFOS for decades for firefighting and training. This site has been linked to the widespread

contamination of surface and groundwater, as well as public drinking water wells, with PFOA,

PFOS, and other PFAS throughout the state of New Mexico.

4. PFOA and PFOS are associated with a variety of illnesses, including but not limited

to kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pregnancy induced

hypertension (including preeclampsia), and hypercholesterolemia. The chemicals are particularly

dangerous for pregnant women and young children.

USE OF AFFF AT CANNON AIR FORCE BASE

5. Defendant’s use of AFFF has been ongoing for almost 50 years at CAFB. During

routine training exercises, AFFF was sprayed directly on the ground and/or tarmac at several fire

training areas allowing PFOA/PFOS to travel to the surrounding groundwater, causing

contamination of various water supply wells, in various locations, in varying amounts, at various

times.

6. In addition to routine training for personnel, additional releases of AFFF have

occurred at CAFB through testing of the equipment, false alarms, equipment malfunctions, and

other incidental releases in the hangers, fire stations and other locations.

7. PFAS have been detected in on-base monitoring wells at concentrations exceeding

26,000 ppt. In a letter dated September 26, 2018, the New Mexico Environment Department

(“NMED”) required the Air Force to submit a comprehensive proposal to further delineate the

groundwater plume; sample all water supply wells within a four-mile radius of the southeastern

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corner of the Air Force base; supply drinking water to affected well owners; and to resample the

drinking water system on the Base.

8. Upon information and belief, Defendant’s handling, storage, treatment,

transportation, and disposal of AFFF containing PFAS wastes and storage and use of AFFF at

CAFB have contaminated and continue to contaminate the land in the area with PFAS, have

polluted and continue to pollute the groundwater relied upon by Plaintiff for use at Plaintiff’s

Dairy.

9. Perfluorohexanesulfonic acid or PFHxS is part of the group of Perfluorochemicals

(PFASs). Other well-known members of PFASs include PFOS and PFOA. PFHxS, PFOS and

PFOA share similar chemical structure and uses (i.e, surface treatment agents for textiles, paper,

and furniture etc. for its excellent waterproofing and oil-resistance performance). PFHxS have

been detected in endangered species and the human blood of the general population. It has long-

range transport potential and higher bioaccumulation in humans than PFOS.

10. Perfluorononanoic acid, or PFNA, is a synthetic perfluorinated carboxylic acid and

fluorosurfactant that is also an environmental contaminant found in people and wildlife along with

PFOS and PFOA.

11. Perfluorochemicals (PFAS) are a group of chemicals used to make fluoropolymer

coatings and products that resist heat, oil, stains, grease, and water. Fluoropolymer coatings can

be used in such varied products as clothing, furniture, adhesives, food packaging, heat-resistant

non-stick cooking surfaces, and the insulation of electrical wire. Many chemicals in this group,

including perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), have been a

concern because they do not break down in the environment, and they build up in wildlife. PFAS

have been found in rivers and lakes and in many types of animals on land and in the water.

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12. Like other ground water contaminants, PFAS that are released to the environment

can reach drinking water wells via the well-established pathway of migration of a ground water

plume that has been contaminated either directly from surface spills or by contaminated surface

water mixing with ground water drawn in by pumping wells.

13. Sources of human exposure to PFAS include drinking water, food, food packaging,

carpets, upholstery, and clothing treated for water and stain resistance, house dust, protective

sprays and waxes, and indoor and outdoor air.

14. Defendants knew or should have known that PFAS are highly soluble in water,

extremely mobile, persistent, and very likely to contaminate drinking water wells and present

significant risks to human health and welfare if released into the environment.

15. Nevertheless, Defendants handled, stored, treated, transported and disposed the

AFFF containing PFAS with the knowledge that PFAS would be released into the environment

reaching rivers, lakes, groundwater, soil, wells and/or aquifers.

16. Plumes of PFAS can persist in underground aquifers for many decades. Once the

plume reaches a well, it continues to contaminate the water drawn from that well. The most viable

technologies to remove PFAS from the groundwater are granulated activated carbon (“GAC”),

reverse osmosis, and ion exchange.

17. Plaintiff brings this action to recover damages incurred and to be incurred that were

proximately caused by the PFAS/PFOA/PFOS water contamination.

THE PARTIES
Plaintiff

18. Plaintiff, Highland Dairy, has its principal place of business located at 650 Curry

Road O, Clovis, NM 88101. Highland sits directly to the south and slightly to the east of the

Cannon Air Force Base (“CAFB”).

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19. Highland is owned and operated by Art and Renee Schaap and has approximately

1,800 dairy cattle and 5,000 other head of cattle, including calves.

20. Highland has been operating for about 32 years since it was founded in about 1987

and generates about $2.6 million in annual revenues and employs approximately 40 people.

21. Mr. Schaap noticed a decline in the milk production at Highland Dairy and has

brought in various nutritionists and other experts in an attempt to help him determine why his cattle

were producing approximately 10 pounds of milk per day less than normal.

22. Mr. Schaap never considered water contamination as a possible source of that

decline in milk production, which has now resulted in an over one-million dollar annual loss for

several years.

23. On or about August 24th, 2018, Mr. Schaap, along with other property owners

adjacent to CAFB, received a letter from the base advising that the Air Force would be sampling

wells for the presence of PFAS contamination in and around CAFB. Prior to this date Mr. Schaap

had never heard of PFOS, PFAS, or PFAS.

24. A couple weeks later, the Air Force by letter dated September 13th, 2018 notified

Mr. Schaap that testing at his wells from samples recovered on August 24th, 2018 had detected

PFOA and PFOS in his wells at a combined concentration at 1,649 parts per trillion (ppt) (Site 1)

and 671 ppt (Site 2), respectively. These results are more than 23 times and 9 times EPA’s Health

Advisory Levels.

25. Thereafter, CAFB committed to provide one gallon of bottled water per resident

per day but offered no substitute water supply for Mr. Schaap’s dairy operation at Highland.

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26. On October 5th, 2018, Mr. Schaap received analytical results from GEL

Laboratories, LLC (“GEL Lab”) for testing performed at Highland. The results detected PFAS at

several dairy supply wells, milk tanks, and ground water wells.

27. On October 15th, 2018, Dairy Direct notified Mr. Schaap that it would terminate

the Milk Purchase Agreement executed with Highland Dairy as a result of the PFAS contamination

at his dairy.

28. As a result of the PFAS contamination in and around Highland, on November 5th,

2018, the New Mexico Department of Agriculture notified Highland that it has suspended

Highland’s Grade-A Permit for milk production.

29. Highland typically sells approximately 15,000 gallons of Grade A Milk from the

Highland Dairy each day.

30. On November 7th, 2018, results were received from the Food and Drug

Administration (“FDA”) for water and milk samples collected at Highland showing levels of 1,160

ppt & 1,620 ppt PFOS respectively.

31. On November 30th, 2018 the New Mexico Environment Department (“NMED”)

issued a Notice of Violation to the Air Force Civil Engineering Center regarding CAFB soil and

groundwater contamination with per-and poly fluoroalkyls substances (“PFAS”). NMED

determined that CAFB is operating in violation of the New Mexico Water Quality Act (“WQA”)

and its correlated Ground and Surface Water Protection Regulations observed in section 20.6.2 of

the New Mexico Administrative Code (“NMAC”).

32. On October 22, 2019, in a letter to Jeff M. Witte, Secretary of the Department of

Agriculture for the State of New Mexico, Frank Yiannas, Deputy Commissioner Food Policy and

Response, Food and Drug Administration, and Mindy Brashears, Deputy Under Secretary for Food

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Safety, United States Department of Agriculture, issued guidance in assessing the impact of PFAS

groundwater contamination on the production of milk at the Highland Dairy in Clovis, NM. After

analyzing the blood samples from affected dairy cattle at Highland Dairy, they determined that the

affected cattle were not suitable for food and meat and that the affected milk should not enter the

food supply.

33. As a direct and proximate result of Defendants’ AFFF contaminating the

groundwater, Plaintiff has incurred and will incur significant damages to the property and business.

Defendants

29. Defendant UNITED STATES OF AMERICA, by and through its federal agencies,

the Defendant, UNITED STATES DEPARTMENT OF DEFENSE and the Defendant,

DEPARTMENT OF THE AIR FORCE, which are federal government entities, own, operate, and

maintain CAFB. At all times material, Defendant(s) were the owner(s) of CAFB. At all times

material, the Defendant(s) had control and direction over the acts and failures to act of any and all

persons, agents, individuals, corporations, contractors, and/or independent contractors in the

operation and maintenance of CAFB.

JURISDICTION AND VENUE

30. This Court has subject matter jurisdiction over the Defendant(s) pursuant to the

FTCA, 28 U.S.C. § 1346(b). If the Defendant(s) were a private person, they would be liable to the

Plaintiff in accordance with the laws of the State of New Mexico.

31. For purposes of the claims alleged in this Complaint, the District of New Mexico

shall be the home venue, defined as the proper venue of origin where the claim could have otherwise

been brought pursuant to 28 U.S.C. § 1391.

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32. Venue is proper in cases involving tort claims against the USA where the Plaintiff

resides or where the act or omission complained of occurred. 28 U.S.C. § 1402(b); 32 C.F.R.

750.32(a).

33. Plaintiffs reside in this Judicial District and the acts and omissions complained of

occurred in this Judicial District.

34. On February 1, 2019, Plaintiff through their counsel submitted a claim to the

USAF for personal and property damages arising out of the USAF’s negligent, reckless, willful,

and intentional contamination with PFAS of drinking water that eventually contaminated

Highland’s water supply.

35. Within two years of the date of claims set forth herein which are subject to the

FTCA, the administrative claims were presented to the United States, the United States Department

of Defense, and the United States Department of the Air Force pursuant to 28 U.S.C. § 2675(a).

36. More than 6 months has elapsed since the filing of the Claim and Defendant(s) have

not issued a Final Decision. Plaintiff has exhausted all administrative remedies. Pursuant to the

FTCA, Plaintiff is now entitled to proceed with this action in the United States District Court

pursuant to 28 U.S.C. § 2675(a).

GENERAL FACTUAL ALLEGATIONS RELEVANT TO ALL CLAIMS

40. Perfluorooctanoic acid (PFOA, also known as C8 or perfluorooctanoate) is a man-

made, manufactured chemical not found in nature that belongs to a group of fluorine-containing

chemicals called perfluorinated chemicals (PFC’s). These chemicals were and are used to make

household and commercial products that resist heat and chemical reactions, and repel oil, stains,

grease, and water as well as other uses.

41. In 1947, 3M began producing PFOA via electrochemical fluorination.

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42. Over the years, a number of companies, including but not limited to, Arkema,

Asahi, BASF, Clariant, Daikin, DuPont, and Solvay Selexis have manufactured PFOA within the

United States.

43. PFOA is a fluorine-containing chemical that is primarily used in the production of

fluoropolymers such as poly-tetra-fluoro-ethylene (“PTFE”).

44. PFOA and PFOS are readily absorbed after consumption or inhalation, and

accumulate primarily in the blood stream, kidney and liver.

45. In 2006, eight major PFOA manufacturers agreed to participate in the U.S.

Environmental Protection Agency's (“EPA”) PFOA Stewardship Program. The participating

companies made voluntary commitments to reduce product content and facility emissions of

PFOA and related chemicals by 95%, no later than 2010.

46. In the May 2015 “Madrid Statement on Poly- and Perfluoroalkyl Substances

(PFASs)1,” scientists and other professionals from a variety of disciplines, concerned about the

production and release into the environment of PFOA’s, called for greater regulation, restrictions,

limits on the manufacture and handling of any PFOA containing product, and to develop safe non-

fluorinated alternatives to these products to avoid long-term harm to human health and the

environment.

47. As of May 2016, the EPA issued Lifetime Health Advisories and Health Effects

Support Documents for PFOA and PFOS2. The EPA identifies the concentration of PFOA or

1
Blum A, Balan SA, Scheringer M, Trier X, Goldenman G, Cousins IT, Diamond M, Fletcher T,
Higgins C, Lindeman AE, Peaslee G, de Voogt P, Wang Z, Weber R. 2015. The Madrid statement
on poly- and perfluoroalkyl substances (PFASs). Environ Health Perspect 123: A107–A111;
http://dx.doi.org/10.1289/ehp.1509934
2
Lifetime Health Advisories and Health Effects Support Documents for Perfluorooctanoic Acid
and Perfluorooctane Sulfonate, 81 Fed. Reg. 101 (May 25, 2016).

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PFOS in drinking water at or below which health effects are not anticipated to occur over a

lifetime of exposure at 70 parts per trillion (ppt). While health advisories are non-regulatory, they

reflect the EPA’s assessment of the best available peer-reviewed science.

48. PFOS and PFOA get into the environment from industrial facilities that make

PFOS or use PFOA to make other products. It also enters the environment when released from

PFOA-containing consumer and commercial products during their use and disposal.

49. PFOS and PFOA can remain in the environment, particularly in water, for many

years and can move through soil and into groundwater or be carried in air.

50. Human studies show associations between increased PFOA and PFOS levels in

blood and an increased risk of several health effects, including high cholesterol levels, high blood

pressure, changes in thyroid hormone, ulcerative colitis (autoimmune disease), pre-eclampsia (a

complication of pregnancy that includes high blood pressure), and kidney and testicular cancer.

51. These injuries can arise months or years after exposure to PFOS and PFOA.

52. PFOS's extreme persistence in the environment and its toxicity, mobility and

bioaccumulation potential, pose potential adverse effects to human health and the environment.

AFFF Background

53. AFFF is Class-B firefighting foam. It is water based and used to extinguish fires

that are difficult to fight, particularly those that involve petroleum or other flammable liquids.

54. AFFF was introduced commercially in the mid-1960s and rapidly became the

primary firefighting foam in the U.S. and many parts of the world. AFFF provided superior

performance over normal Protein foam, which had been in widespread use since World War II.

55. AFFFs are synthetically formed by combining fluorine free hydrocarbon foaming

agents with highly fluorinated surfactants. When mixed with water, the resulting solution has the

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characteristics needed to produce an aqueous film that spreads across the surface of a hydrocarbon

fuel. It is this film formation feature that provides fire extinguishment and is the source of the

designation, aqueous film forming foam.

56. The USAF began using PFC-based AFFF in 1970 to extinguish fuel-based fires.

57. Fluorosurfactants used in 3M’s AFFF were produced by a unique process known

as electrochemical fluorination (ECF). The ECF process results in a product that contains and/or

breaks down into compounds containing PFOS and/or PFOA.

58. In the foam industry, concentrates are typically referred to as “3%” or “6%”

concentrate, depending on the mixture rate with water. AFFF concentrates contain about 60-90%

water and have a fluorine content of about 0.3-1.8%.

Specific Factual Allegations Relevant to All Counts

A. PFAS Soil and Groundwater Contamination at Cannon Air Force Base (CAFB)

59. On or about October 16, 2018 New Mexico Environment Department (“NMED”),

New Mexico Department of Health (“NMDOH”) and New Mexico Department of Agriculture

(“NMDA”) announced that the Air Force had informed them of wells contaminated with PFAS,

including but not limited to PFOA and PFOS, both on and off the base.

60. The three state agencies stated that until further testing confirms otherwise, all

residents and businesses with private wells within a four-mile radius of the entire CAFB property

should use bottled water.

61. PFAS has been detected in on-base monitoring wells at concentrations exceeding

26,000 ppt.

62. In a letter dated September 26, 2018, NMED required the Air Force to submit a

comprehensive proposal to further delineate the groundwater plume, sample all water supply wells

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within a four-mile radius of the southeastern corner of the Air Force base, supply drinking water

to affected well owners, and to resample the drinking water system on the Base.

63. New Mexico Administrative Code, section 20.6.2.1201(A) requires a Notice of

Intent to Discharge, relevant to this case stating the following:

Any person intending to make a new water contaminant discharge

or to alter the character or location of an existing water contaminant
discharge, unless the discharge is being made or will be made into a
community sewer system or subject to the Liquid Waste Disposal
Regulations adopted by the New Mexico Environmental
Improvement Board, shall file a notice with the Ground Water
Quality Bureau of the department for discharges that may affect
ground water, and/ or the Surface Water Quality Bureau of the
department for discharges that may affect surface water. […]

64. The United States Air Force (USAF) has advised that PFAS has been detected in a

number of the 19 off-base wells tested thus far. Some of these wells supply drinking water to local

dairies, including Highland. The Air Force has reported detections in off base wells with

concentrations ranging from 25 to 1,600 ppt.

65. NMDA requested the FDA to immediately determine if any impacts on health exist

regarding the presence of PFAS in the food supply, including milk, and if so, that the FDA establish

a regulatory threshold for PFAS in dairy products.

66. As part of the Notice of Violation issued on November 30th, 2018 by NMED to the

Air Force, State Officials determined that the WQA and the Ground and Surface Water Protection

Regulations (“Regulations”) provide explicit authority to NMED to prevent and abate water

pollution. The WQA at NMSA 1978, §74-6-2(B) defines the term “water contaminant” as “any

substance that could alter, if discharged or spilled, the physical, chemical, biological or

radiological qualities of water.” As such, all of the PFAS, and not solely PFOA and PFOS,

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compounds that the Air Force has discharged into groundwater are “water contaminants” under

New Mexico law.

67. Additionally, the WQA defines the term “water pollution” as introducing or

permitting the introduction into water, either directly or indirectly, of one or more water

contaminants in such quantity and of such duration as may with reasonable probability injure

human health, animal or plant life or property, or to unreasonably interfere with the public welfare

or the use of property.” NMSA 1978, §74-6-2(C).

68. The above statutory definition is not limited to human health, and explicitly

includes animal and plant life and property.

69. NMED concluded that to the extent that the PFAS water contaminants emanating

from CAFB have injured or threaten to injure human health, animal or plant life, or property, or

have unreasonably interfered with public welfare or the use of property such as water wells, farms

and dairies, such injuries and interferences are clearly subject to the abatement requirements of the

WQA and Regulations.

70. Chemicals associated with AFFF used at CAFB near Clovis have been detected in

groundwater on and near the military installation, prompting requests by state officials for more

tests and a study to determine the extent of the toxic plume.

71. The contamination has imperiled the future of Plaintiff and their employees.

B. Background of PFOA and PFOS and the Known Risk to Groundwater

72. PFAS are chemical compounds containing fluorine and carbon atoms. These

substances have been used for decades in the manufacture of, among other things, household and

commercial products that resist heat, stains, oil, and water. These substances are not naturally

occurring and must be manufactured.

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73. The two most widely studied types of these substances are PFOA and PFOS, which

each contain eight carbon atoms.

74. PFOA and PFOS have unique properties that cause them to be: (i) mobile and

persistent, meaning that they readily spread into the environment where they break down very

slowly; (ii) bioaccumulative and biomagnifying, meaning that they tend to accumulate in

organisms and up the food chain; and (iii) toxic, meaning that they pose serious health risks to

humans and animals. Because PFOA and PFOS have these properties, they pose significant threats

to public health and the environment.

75. PFOA and PFOS easily dissolve in water, and thus they are mobile and readily

spread in the environment. PFOA and PFOS also readily contaminate soils and leach from the soil

into groundwater, where they can travel significant distances.

76. PFOA and PFOS are characterized by the presence of multiple carbon-fluorine

bonds, which are exceptionally strong and stable. As a result, PFOA and PFOS are thermally,

chemically, and biologically stable and they resist degradation due to light, water, and biological

processes.

77. Bioaccumulation occurs when an organism absorbs a substance at a rate faster than

the rate at which the substance is lost by metabolism and excretion. Biomagnification occurs when

the concentration of a substance in the tissues of organisms increases as the substance travels up

the food chain.

78. PFOA and PFOS bioaccumulate/biomagnify in numerous ways. First, they are

relatively stable once ingested, so that they bioaccumulate in individual organisms for significant

periods of time. Because of this stability, any newly ingested PFOA and PFOS will be added to

any PFOA and PFOS already present. In humans, PFOA and PFOS remain in the body for years.

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79. Third, they biomagnify up the food chain, such as when humans eat fish that have

ingested PFOA or PFOS.

80. Exposure to PFOA and PFOS can be toxic and may pose serious health risks to

humans and to animals. Human health effects associated with PFOA exposure include kidney and

testicular cancer, thyroid disease, high cholesterol, ulcerative colitis, liver damage, and pregnancy-

induced hypertension (also known as preeclampsia). Human health effects associated with PFOS

exposure include immune system effects, changes in liver enzymes and thyroid hormones, low

birthweight, high uric acid, and high cholesterol. In laboratory testing on animals, PFOA and PFOS

have caused the growth of tumors, changed hormone levels, and affected the function of the liver,

thyroid, pancreas, and immune system.

C. Evolving Understanding of the Levels of Acceptably Safe Exposure to PFOA/S

81. In or around 1998, EPA began investigating the safety of PFOA and PFOS after

some limited disclosures by 3M and others.

82. Beginning in 2009, EPA issued health advisories about the levels of exposure to

PFOA and PFOS in drinking water that it believed were protective of public health. As described

on EPA's website, "health advisories are non-enforceable and non-regulatory and provide technical

information to states [,] agencies and other health officials on health effects, analytical

methodologies, and treatment technologies associated with drinking water contamination.3"

83. The recommendations in EPA's health advisories evolved as EPA learned more

about PFOA and PFOS.

3
Drinking Water Health Advisories for PFOA and PFOS, What's A Health Advisory, available at
https://www.epa.gov/ground-water-and-drinking-water/drinking-waterhealth- advisories-pfoa-
and-pfos (last visited June 5, 2018).

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84. On January 8, 2009 EPA issued Provisional Health Advisories for PFOA and

PFOS, advising that "action should be taken to reduce exposure" to drinking water containing levels

of PFOA and PFOS exceeding 400 parts per trillion ("ppt") and 200 ppt, respectively. Provisional

Health Advisories for Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS),

available at https://www. cpa.gov/sites/productionlfiles/2015 0-9/documents/pfoa- pfos-

provisional.pdf, at p. 1, n. 1 (last visited June 5, 2018).

85. On or around May 19, 2016, the EPA issued updated Drinking Water Health

Advisories for PFOA and PFOS, recommending that drinking water concentrations for PFOA and

PFOS, either singly or combined, should not exceed 70 ppt. See Lifetime Health Advisories and

Health Effects Support Documents for PFOA and PFOS, 81 Fed. Reg. 33, 250-51 (May 25, 2016).

86. In June 2018, the Agency for Toxic Substances and Disease Registry (“ATSDR”)

and EPA released a draft toxicological profile for PFOS and PFOA and recommended the drinking

water advisory levels be lowered to 11 ppt for PFOA and 7 ppt for PFOS.

D. The Use of AFFF Products Containing PFOA/PFOS in New Mexico

87. AFFF products containing PFOA and PFOS has been used for decades throughout

New Mexico at civilian airports and other facilities, including the CAFB.

88. Upon information and belief, Defendants handled, stored, treated, transported and

negligently disposed of AFFF containing PFOA and PFOS into the environment contaminating

the land in the area with PFAS; polluting continuously the groundwater relied upon by Plaintiff

for use at Plaintiff’s dairy.

89. Defendants failed to warn the end user and sensitive receptors, such as Plaintiff,

that AFFF permeates through the ground to the groundwater.

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90. Defendants knew or should have known that the matter in which AFFF was

transported, used, utilized, stored, dumped, handled and/or disposed of at CAFB would result in

the contamination of the water supply and eventually the groundwater relied upon by Plaintiff for

use at Plaintiff’s dairy as a result of its proximity to CAFB.

91. Sampling results of surface water, groundwater, and soil, at or near CAFB

demonstrate the presence of elevated concentrations of PFOA, PFOS and other PFAS chemicals,

which are and/or were components in Defendants’ AFFF products.

92. Defendants knew or should have known that the matter in which AFFF was

transported, used, utilized, stored, dumped, handled and/or disposed of at CAFB would result in

the contamination of the water supply and eventually the groundwater relied upon by Plaintiff for

use at Plaintiff’s dairy as a result of its proximity to CAFB.

93. Defendants had a duty to warn Plaintiff that the aforementioned releases of toxic

substances including but not limited to PFOA and PFOS had occurred and that migration of the

contaminants could foreseeably contaminate groundwater relied upon by Plaintiff for use at

Plaintiff’s dairy.

CAUSES OF ACTION
Count I: Negligence

94. Plaintiff hereby repeats, realleges, and reiterates each and every allegation in the

preceding paragraphs as if fully restated herein.

95. State law governs claims under the FTCA. 28 U.S.C.A. § 1346(b). Fontanez v. U.S.,

24 F. Supp. 3d 408 (D.N.J. 2014). The United States’ liability under the FTCA is determined in

accordance with the law of the state where the event giving rise to liability occurred. 28 U.S.C.A.

§ 1346(b)(1). Wilburn v. U.S., 22 F. Supp. 3d 691 (W.D. Ky. 2014).

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96. To prevail on a negligence claim, New Mexico state law requires that there be “ a

duty owed from the defendant to the plaintiff; that based on a standard of reasonable care under

the circumstances, the defendant breached that duty; and that the breach was a cause in fact and

proximate cause of the plaintiff’s damages.” Zamora v. Wells Fargo Mortgage, a Division of Wells

Fargo Bank, N.A., 2012 WL 12895364 (citing Thompson v. Potter, 268 P.3d 57, 63 (N.M. Ct.

App. 2011).

97. Where a “duty” exists, it generally requires that the defendant’s conduct conform

to the same standard of care, that of a reasonable person under the same or similar circumstances,

usually referred to as the “ordinary care” standard. Prosser & Keeton on the Law of Torts §37[4]

at 236 (5th ed. 1984).

98. The existence and scope of a defendant’s duty of care is a question of law. Romero

v. Giant Stop-N-Go of New Mexico, Inc., 212 P.3d 408, 411 (2009). A “[d]uty may be based on

common law, statutory law, or general negligence standard.” Id. citing Lessard v. Coronado Paint

& Decorating Ctr., Inc., 168 P.3d 155, 166 (N.M. Ct. App. 2007).

99. Negligence may exist both as an omission as well as an affirmative act. A cause

sounding in negligence allows for the recovery for an injury that was proximately caused by

another’s violation of a duty of reasonable care.

100. At all times relevant to the present action, Defendants were the owner(s),

controller(s), and/or operators of CAFB where AFFF containing PFOA and PFOS was used for

decades and which was discharged and/or otherwise emanated contamination into Plaintiff’s

drinking water and wells.

101. At the time these affirmative, voluntary, and intentional acts were performed by

Defendants, Defendants had good reason to know or should have known that large quantities of

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PFOA and PFOS could be introduced into Plaintiff’s property and wells as the result of their

actions.

102. Defendants knew or should have known that exposure to PFOS and PFOA was

hazardous to the environment, animal, and human health.

103. Knowing of the dangerous and hazardous properties of the AFFF, Defendants had

the duty to warn of the hazards associated with AFFF entering and poisoning the environment and

water.

104. Defendants knew or should have known that safety precautions would be required

to prevent the release of PFOS and PFOA into surrounding environment.

105. Defendants owed a duty to Plaintiff to ensure that AFFF was used in a manner as

to prevent the exposure from creating an imminent and substantial health threat.

106. Upon learning of the release of the contaminants, Defendants owed Plaintiff a duty

to warn and notify them of the release of the contamination before it injured Plaintiff and their

property and/or act reasonably to negate and/or minimize the damage to Plaintiff and the property.

107. Defendants breached their duty by allowing PFOS and PFOA to be released into

the environment, whether on the ground, into the air, or through a wastewater treatment system.

The PFOS and PFOA from CAFB eventually contaminated Highland’s water supply that was

provided directly to Plaintiff’s livestock and used to water the crops that were grown to feed

Plaintiff’s livestock for decades.

108. As such, the Defendants, negligently, gross negligently, recklessly, willfully,

wantonly, and/or intentionally breached their legal duties to the Plaintiff, causing the

contamination of drinking water that eventually contaminated Highland’s water supply.

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109. Defendants further breached the duties owed to the Plaintiff by failing to take

reasonable, adequate, and sufficient steps or actions to eliminate, correct, or remedy any

contamination after it occurred.

110. Defendants’ failure to notify the Plaintiff in a timely manner of the contamination

in the drinking water, and consequently, the presence of PFOA and PFOS in the real properties of

Plaintiff constitutes another breach of the duties that Defendant owed the Plaintiff.

111. Defendants’ breaches of their duties were direct and proximate causes of Plaintiff’s

damages and the imminent, substantial, and impeding harm to their business, property, homes, and

health.

112. Further, Defendants’ breach of their duty in failing to timely notify Plaintiff and act

reasonably in warning of the presence of PFOS and PFOA in AFFF, forestalled Plaintiff from

undertaking effective and immediate remedial measures. Plaintiff has expended and/or will be

forced to expend significant resources to test, monitor, and remediate the effects of Defendants’

negligence for many years into the future.

113. Plaintiff suffered foreseeable injuries and damages as a proximate result of

Defendants’ negligent breach of their duties as set forth above. At the time Defendants breached

their duties to Plaintiff, Defendants’ acts and/or failures to act posed recognizable and foreseeable

possibilities of danger to Plaintiff so apparent as to entitle them to be protected against such actions

or inactions.

114. Accordingly, Plaintiff seek damages from Defendants, in an amount to be

determined at trial, directly resulting from their injuries to their persons and property, in a sufficient

amount to compensate them for the injuries and losses sustained and to restore Plaintiff to their

original position, including but not limited to the cost of repair or restoration of their property,

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including but not limited to their cattle, the value of the filtration system installed to prevent water

contamination, the value of the use of the continuous trespass, injuries to persons, the value of the

damages caused to their business, and actual, consequential and nominal damages, flowing from

the negligence which are the natural and proximate result of Defendants’ conduct in an amount to

be proved at trial.

Count II: Nuisance

115. Plaintiff hereby repeat, reallege, and reiterate each and every allegation in the

preceding paragraphs as if fully restated herein.

116. New Mexico recognizes private and public nuisances. “A private nuisance is a civil

wrong based on a disturbance of rights in land.” Jellison v. Gleason, 1967-NMSC-033, ¶ 6, 77

N.M. 445, 423 P.2d 876, 877 (finding no nuisance where “there was no wrongful invasion of

property rights”). See, e.g., Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, ¶ 33, 132 N.M. 382,

49 P.3d 61, 72 (“A private nuisance is a nontrespassory invasion of another's interest in the private

use and enjoyment of land.” (quoting Restatement (Second) of Torts § 821D (1979)); State ex rel.

Vill. of Los Ranchos de Albuquerque v. City of Albuquerque, 1994-NMSC-126, ¶¶ 51-53, 119

N.M. 150, 889 P.2d 185, 198-99 (describing a private nuisance as an invasion of interests in land).

To establish a private nuisance, a plaintiff must show “ ‘an intentional invasion [that] is

unreasonable,’ ” i.e., that “ ‘the gravity of the harm outweighs the utility of the actor's conduct.’ ”

Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, ¶ 33, 132 N.M. 382, 49 P.3d at 72 (quoting

Padilla v. Lawrence, 1984-NMCA-064, ¶ 11, 101 N.M. 556, 685 P.2d 964, 968). “[T]he nuisance

must ‘cause [ ] significant harm, of a kind that would be suffered by a normal person in the

community or by property in normal condition and used for a normal purpose.’ ” Cooper v.

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Chevron U.S.A., Inc., 2002-NMSC-020, ¶ 33, 132 N.M. 382, 49 P.3d at 72-73 (alteration in Cooper

v. Chevron U.S.A., Inc.) (quoting Restatement (Second) of Torts § 821F).

117. In analyzing the harm's gravity, courts consider “ ‘the suitability of the particular

use or enjoyment invaded to the character of the locality.’ ” Cooper v. Chevron U.S.A., Inc., 2002-

NMSC-020, ¶ 33, 132 N.M. 382, 49 P.3d at 72-73 quoting Restatement (Second) of Torts §

827(d)). “[T]he utility of the conduct also takes into account ‘the suitability of the conduct to the

character of the locality.’” Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, ¶ 33, 132 N.M. 382,

49 P.3d at 72-73 (quoting Restatement (Second) of Torts § 828(b); and citing Restatement

(Second) of Torts § 831).

118. In the case at bar, Plaintiff is the owner of land, crops and livestock that relies on

groundwater for use in its dairy production and quality assurance for its clients.

119. Plaintiff utilizes drinking water for their family members from the groundwater

supply wells that are used for drinking, bathing, washing, cooking, watering vegetables, and other

uses.

120. Plaintiff also utilizes the drinking water to water their cattle and irrigate their crops

from the groundwater supply wells that are used for the milk and dairy production as well as for

other livestock and agricultural uses.

121. Defendants, through the negligent, reckless and/or intentional acts and omissions

have contaminated Plaintiff’s wells, rendering water served from them unfit for human, animal or

agricultural consumption.

122. At all times relevant to the present action, Defendants were the owners, controllers,

and/or operators of CAFB where AFFF containing PFOA and PFOS was used for decades and

which discharged and/or otherwise emanated PFOS contamination to Plaintiff’s drinking water.

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123. At the time the above-described, affirmative, voluntary, and intentional acts were

performed by Defendants; Defendants had a good reason to know or expect that large quantities

of PFOA and PFOS would and/or could be introduced into Plaintiff’s property.

124. The above-described affirmative, voluntary, and intentional acts were performed

with the reckless disregard of the potential for PFOA and PFOS to be disbursed through the water

and onto Plaintiff’s land and property.

125. Defendants’ intentional, negligent, and/or reckless conduct, as alleged herein, has

resulted in substantial contamination of Plaintiff’s supply wells by PFOA and PFOS, human

carcinogens that cause adverse human, animal and agricultural health effects and render water

undrinkable.

126. Defendants had knowledge of PFOA and PFOS unique and dangerous chemical

properties and knew that contamination of public groundwater supply wells was substantially

certain to occur, but failed to provide adequate warnings of, or take any other precautionary

measures to mitigate those hazards.

127. The contamination caused, contributed to, and/or maintained by Defendants

substantially and unreasonably interfered with Plaintiff’s property rights to appropriate, use, and

enjoy water from its wells as a reasonable person would expect to.

128. Consequently, Defendants substantially interfered with and caused damage to a

public or common resource that endangered private property, as well as the health, safety, and

comfort of a considerable number of persons, animals and the agricultural and livestock business.

129. Defendants actions have made Plaintiff’s land and property unsuitable for their

normal, reasonable, and intended uses.

130. Such action creates, contributes to, or maintains a private nuisance.

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131. Defendants knew it was substantially certain that their acts and omissions described

above would cause injury and damage, including PFOA and PFOS contamination of the

groundwater supply. Defendants committed each of the above-described acts and omissions

knowingly, willfully, and with oppression, fraud, and/or malice. Therefore, Plaintiff requests an

award for damages in an amount sufficient to punish these Defendants and that fairly reflects the

circumstances alleged herein.

132. Defendants’ negligent, reckless and/or intentional acts and omissions were

unreasonable and constitute a continuous invasion of Plaintiff’s property rights.

133. The potential danger from the drinking water at Plaintiff’s residence and place of

business caused Plaintiff significant inconvenience and expense.

134. In order to remediate the groundwater contamination, Plaintiff was forced to spend

great quantities of money in the installation a PFAS Filtration System and the maintenance that

such system entails.

135. By reason of the foregoing, Defendants are liable to Plaintiff for the damages that

they have suffered as a result of Defendants’ actions, the amount of which will be determined at

trial, plus reasonable attorneys’ fees and costs.

Count III: Trespass

136. Plaintiff realleges and reaffirms each and every allegation set forth in all preceding

paragraphs as if fully restated herein.

137. In New Mexico, trespass is defined as a direct infringement of another's right of

possession. Pacheco v. Martinez, 97 N.M. 37, 41, 636 P.2d 308 (Ct.App.1981). See also

Restatement (Second) of Torts § 158 (“One is subject to liability to another for trespass, irrespective

of whether he thereby causes harm ..., if he intentionally (a) enters land [of another or] causes a

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thing or third person to do so....”). A trespass may be committed on or beneath the surface of the

earth. Restatement (Second) of Torts § 159 (1977).

138. Plaintiff actually and actively exercises its rights to appropriate and use

groundwater drawn from its wells for the dairy production.

139. Plaintiff did not give any Defendant permission to cause PFAS to enter its

groundwater wells.

140. Defendants knew or reasonably should have known that: (a) PFAS have a

propensity to infiltrate groundwater aquifers when released to the environment; (b) PFAS are

mobile and persistent groundwater contaminants capable of moving substantial distances within

aquifers; (c) they are toxic to human health; and (d) they are therefore hazardous to public water

systems and human health and welfare.

141. Defendant’s intentional acts and/or omissions caused toxic substances, including

but not limited to PFOS, to be spilled or disposed of and released into the ground at CAFB and to

enter the groundwater and aquifer beneath.

142. Defendants’ willful conduct directly resulted in use and consequent migration of

PFOS from CAFB to and invade Plaintiff’s property and drinking water.

143. Defendants’ intentional acts and omissions caused toxic substances to enter and

trespass upon the land and subsurface waters of Plaintiff without consent and interfere with

Plaintiff’s exclusive possession and/or right of possession, resulting in a non-permissive entry onto

Plaintiff’s land and subsurface waters.

144. At the time of the above-described affirmative, voluntary and intentional acts and

omissions, Defendants knew or should have reasonably known that PFOA and PFOS would pass

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through the soil, groundwater and into Plaintiff’s water supply system, contaminating Plaintiff’s

property.

145. The intentional actions by Defendants resulted in the immediate and continued

trespass, injury and damage to Plaintiff, their water supply and/or properties from the introduction

of PFOA and PFOS into the properties, pipes, and appliances of Plaintiff.

146. Defendants knew or should have known that failing to properly remediate the

contamination would result in a further trespass upon Plaintiff’s properties and exacerbate the harm

to Plaintiff.

147. Each Defendant is a substantial factor in bringing about the contamination of

Plaintiff’s wells, and each Defendant aided and abetted the trespasses and is jointly responsible for

the injuries and damage caused to Plaintiff.

148. Upon information and belief, Defendants affirmatively, voluntarily and

intentionally failed to act in a manner that would prevent the migration of the contaminants into

Plaintiff’s properties.

149. As a direct and proximate result of Defendants’ acts and omissions resulting in

PFAS entering Plaintiff’s water wells at Highland Dairy, Plaintiff sustained actual injuries and

damages related to the PFAS contamination of its wells in an amount to be proved at trial.

150. Defendants knew it was substantially certain that their acts and omissions described

above would cause injury and damage, including PFAS contamination of the public groundwater

supply. Defendants committed each of the above-described acts and omission knowingly, willfully,

and with oppression, fraud, and/or malice. Therefore, Plaintiff requests an award damages in an

amount that fairly reflects the circumstances alleged herein.

Count IV: Failure to Warn

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151. Plaintiff hereby repeat, reallege, and reiterate each and every allegation in the

preceding paragraphs as if fully restated herein.

152. Under New Mexican law, the general tort law definition of proximate cause is

applicable in products liability cases, except those premised on a failure to warn. N.M.U.J.I. 13–

1424, Committee Comment.

153. A plaintiff asserting causes of action based on a failure to warn must prove that, (1)

no warning was provided or the warning was inadequate; and (2) the inadequacy or absence of the

warning caused the plaintiff's injury. Richards v. Upjohn Co., 95 N.M. 675, 678, 625 P.2d 1192,

1195 (Ct.App.1980).

154. Defendants failed to employ reasonable care that a reasonably prudent person

would have under the circumstances by allowing AFFF containing PFOS and PFOA to be

transported, used, utilized, stored, dumped, handled and/or disposed while operating CAFB, in a

manner that led to their release into the soil and local groundwater.

155. Defendants knew or should have known that the manner in which AFFF was

transported, used, utilized, stored, dumped, handled and/or disposed of at CAFB would result in the

contamination of Plaintiff’s water supply as a result of its proximity to CAFB.

156. Defendants have negligently, gross negligently, recklessly, willfully, wantonly,

and/or intentionally caused the immediate and continuing contamination of soil and groundwater at

Plaintiff’s property.

157. Defendants had a duty to warn Plaintiff that the aforementioned releases of toxic

substances including but not limited to PFOA and PFOS had occurred and that migration of the

contaminants could foreseeably contaminate Plaintiff’s wells.

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158. Defendants breached their duty by failing to warn Plaintiff that they had failed to

prevent the migration of PFOA and PFOS from CAFB, which led and is leading to further migration

of PFOS into Plaintiff’s wells.

159. As a result of Defendants’ breach of their duty to warn the Plaintiff was forestalled

from undertaking effective and immediate remedial measures, and Plaintiff. Consequently, when

Plaintiff came into knowledge of the contamination, he was forced to spend great quantities of

money in a PFAS Filtration System and the maintenance expenses that such a system entail. Also,

Plaintiff will be forced to expend large amounts of money and significant resources to test and

monitor the effects of Defendant’s negligence for many years into the future.

160. Defendants’ breach of their duty to warn was the actual and proximate cause of

Plaintiff’s injuries and the actual, imminent, and substantial damage to Plaintiff.

161. Plaintiff’s injuries are the natural and probable consequence of Defendants’ breach

of their duty.

162. Defendants’ failure to warn was a direct and proximate cause of the environmental

and health impacts from PFOS/A, and potentially other toxic substances, that came from the use,

storage, and discharge of AFFF and its constituents at CAFB.

163. As a result of Defendants’ conduct and the resulting contamination, the value and

marketability of Plaintiff’s property has been and will continue to be diminished.

164. Alternatively, as a direct and proximate result of Defendant’s acts and omissions,

Plaintiff has suffered the need for and the cost of remediation of their property and/or mitigation

system for the property, and the cost of alternative water.

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165. As a result of the contamination, Plaintiff has lost the use and enjoyment of their

property and place of business and have suffered annoyance and discomfort, inconvenience and

annoyance as a consequence of the contamination of their property by Defendants.

166. As a result of Defendants’ conduct and the resulting contamination, the Plaintiff

has been injured in that their exposure to PFOS, PFOA, and potentially other toxic substances has

increased their risk to develop illnesses associated with this exposure as more fully described and/or

significantly increased their fear of developing those illnesses.

PRAYER FOR RELIEF

WHEREFORE, Highland Dairy prays for a judgment against these Defendants for:

1. Highland Dairy is not asking for any equitable or injunctive relief, but

compensatory damages only;

2. Compensatory damages in an amount to be demonstrated and proven at trial but

which is:

a. Above the jurisdictional minimum of this court on the First Cause of Action;

b. Above the jurisdictional minimum of this court on the Second Cause of Action;

c. Above the jurisdictional minimum of this court on the Third Cause of Action; and

d. Above the jurisdictional minimum of this court on the Fourth Cause of Action;

3. Interest on the damages according to law;

4. Costs, disbursements and attorneys’ fees of this lawsuit; and

5. Any other and further relief as the Court deems just, proper and equitable.

JURY DEMAND

Plaintiff demands a trial by jury of all claims asserted in this Complaint.

Dated: November 21, 2019 Respectfully submitted,

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NAPOLI SHKOLNIK PLLC

/s/ Patrick J. Lanciotti

Patrick J. Lanciotti, Esq.
Paul J. Napoli, Esq.
Louis R. Caro, Esq.
360 Lexington Ave., 11th Floor
New York, NY, 10017
Tel: (212) 397-1000
Fax: (646) 843-7603
planciotti@napolilaw.com
pnapoli@napolilaw.com
lcaro@napolilaw.com

-and-

DOERR & KNUDSON, PA

Randy Knudson, Esq.

212 West First Street,
Portales, New Mexico 88130
Tel: (575) 359-1289
Fax: (575) 359-1898
lawyers@yucca.net

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