The Environmental Protection Agency and the New Mexico Environment Department have denied requests from the city of Española and Rio Arriba County that the agencies take more robust action to clean up the North Railroad Avenue Plume Superfund Site.
The EPA declared the site a Superfund site in 1999, thereby agreeing to fund clean-up of the soil and groundwater contaminant plume, which, at its deepest, extends about 260 feet into the ground.
Clean-up of the plume began in 2009.
In August 2019, the EPA passed responsibility for all future remediation to the NMED, 10 years after the agencies implemented a selected remedy to remove the contamination from the area.
In the winter, numerous community members, UNM Law Professor Cliff Villa and Law Student Mara Yarbrough questioned the decision, pointing to a 2015 EPA report that states that the selected remedy was ineffective for a deep section of the plume, and to a clause in federal law that states that the EPA is supposed to continue funding clean-up for up to 10 years after the selected remedy becomes “operational and functional.”
They argued in community meetings that an ineffective remedy cannot be considered “operational and functional,” and that the EPA should not stop funding the clean-up until 10 years after implementing a remedy effective for all parts of the plume.
And they noted another 2015 EPA report that recommended that the site managers consider switching to another type of remedy and performing a study to evaluate other remedial options–recommendations that the agencies never implemented at the site.
Representatives of the agencies defended the EPA’s decisions, saying that they were following their interpretation of federal law and that they were looking into ways to enhance the original remedy.
They said, however, that they decided on the remedy without knowing the full extent of the contamination, and that they should have ascertained the plume’s boundaries before selecting the remedy.
The city and the County, in consultation with University of New Mexico’s law clinic, sent letters in January to the agencies, urging them to conduct new studies about the site and the selected remedy, in order to better characterize the nature and extent of the plume, the effect on human health and the effectiveness of the remedy and other possible remedies.
The letters also request that the agencies treat another contaminant plume, recently discovered in the same area and containing the same chemicals, as part of the same Superfund site.
EPA representatives said in a December community meeting in Española that the EPA will not fund remediation of this other plume, nor will officials consider it part of the same site.
The letters from the city and the County challenge this stance.
A provision from federal law 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, the letters state.
They also 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- 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.
A March letter from the EPA and an April letter from the NMED turned down the city and County’s requests.
EPA Regional Administrator Ken McQueen states in the March letter that the EPA “has every confidence” that the selected remedy will achieve the agencies’ objectives for site clean-up.
“We have achieved significant reduction in contaminant mass over the last four or five years,” he states.
Data presented in the winter community meetings, gathered since the 2015 review, demonstrates that concentrations of contaminants in the deep parts of the plume have decreased since the 2015 review in six testing wells—though in two wells, levels have risen.
Neither the EPA nor the NMED addressed the increase in contaminant levels in their letters.
NMED Cabinet Secretary James Kenney states in the April letter that the Department plans to implement an enhanced remediation strategy in 2020 to address residual contamination.
NMED Water Protection Division Director Rebecca Roose wrote in a Tuesday email that the NMED conducted annual groundwater sampling at the site in June and that the results of that sampling, and the status of concentration trends, will be made publicly available at the end of 2020.
She wrote too that in February and March, NMED’s contractor was able to fully define the North Rairoad Avenue Plume’s boundaries.
Both McQueen and Kenney also stated in their letters that the agencies will not treat the Calle Chavez Plume as part of the North Railroad Avenue Plume.
Kenney wrote that the NMED is reviewing regulatory and enforcement options to compel the party responsible for the contamination in the Calle Chavez Plume to clean it up.
The NMED is actively investigating the source of the contamination, Roose wrote.
“Both letters directly rejected the very clear united requests of the local communities to begin another investigation,” said Villa, who is working with the city and the County. “Both of them seem to rely on some sort of magical thinking that there’s another responsible party there, with infinite funding, who can go and do an investigation and clean-up of Calle Chavez. Neither letter, though, indicates any more information than we already had in hand in December.”