Local Governments Demand Action on Toxic Spill

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mara yarbrough rio arriba county commission superfund

To the Rio Arriba County Commissioners Jan. 28, UNM Law Student Mara Yarbrough presents a letter addressed to the EPA and the New Mexico Environment Department.

Rio Arriba County and the city of Española sent letters Jan. 31 to the New Mexico Environment Department and the U.S. Environmental Protection Agency, inviting officials to the table for a conversation about how the agencies will follow through on their obligation to clean up the North Railroad Avenue Plume Superfund site.

The EPA stopped funding clean-up of the site in summer 2019 and in an Aug. 27, 2019 letter passed responsibility for all future remediation to the NMED–even though the remedy officials selected has been ineffective for part of the plume, and the EPA is supposed to continue funding clean-up for up to ten years after the selected remedy becomes “operational and functional,” according to federal law.

To draft the letters, officials from the County and city worked with law students at University of New Mexico’s law clinic.

Third-year law student Mara Yarbrough presented the County’s letter at a Jan. 28 County Commissioners’ meeting.

She and County Attorney Adán Trujillo also encouraged the commissioners to pass a resolution urging the state of New Mexico and the federal congressional delegation to lobby the EPA to fulfill its duty to the community and continue remediating the site.

The resolution requests that they lobby the agencies to conduct new studies into the site and the selected remedy, in order to better characterize the nature and extent of the plumes there, the effect on human health and the effectiveness of the remedy and other possible remedies.

It requests too that a contaminant plume that was recently discovered in the same area, containing the same chemicals, be considered part of the same Superfund site.

The letters refer to this plume as the Calle Chavez plume.

EPA Project Manager Mark Purcell said in a Dec. 11 meeting that the EPA will not fund remediation of the Calle Chavez plume, nor will officials consider it part of the same site.

The letters from the city and the County challenge this stance.

Federal law states that a single site where hazardous waste is located may include multiple sources and the area between those sources, the letters state.

In contrast with the EPA’s decision to treat the Calle Chavez plume as separate from the site, EPA officials in 2016 listed multiple sources of contamination as part of a single Superfund site, the Bonita Peak Mining District in Colorado, the letters note.

The D.C. District Court of Appeals upheld this position in 2018, concluding that the EPA was correct to list all the sources of contamination as a single site.

The letters from Rio Arriba County and Española also cite a provision from federal law that authorizes the treatment of two sites containing hazardous material as one, if they are “reasonably related” geographically or in how they threaten public health, welfare or the environment.

And they cite a federal regulation stating that the following considerations should determine whether two sites are treated as one: the distance between the two sites, whether they threaten the same surface water or groundwater and whether the target population is the same at both sites.

“The Calle Chavez plume and NRAP must be treated as one site because both plumes threaten the same groundwater and surface water resources, are geographically related, and affect the same populations in Española and Santa Clara Pueblo,” the letters state.

The County Commissioners passed the resolution, and they endorsed the County letter.

Yarbrough mailed the letters Jan. 31.

“It is the hope and trust of the County and the City that EPA and NMED will employ environmental justice principles, exercising fair treatment and meaningful involvement of the affected community by embracing a process designed to ensure the full and final cleanup of the NRAP Site,” the letters state.

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