State Environmental Improvement Board hears air quality permits appeal

The state Environmental Improvement Board heard arguments during a hearing on Thursday about air quality permits issued by the New Mexico Environment Department that an environmental group alleges are illegal. 

WildEarth Guardians appealed four permits issued by NMED for oil and gas facilities in Eddy and Lea counties, where ozone levels now exceed the U.S. Environmental Protection Agency’s (EPA) National Ambient Air Quality Standards (NAAQS). 

Ozone is the only pollutant under the NAAQS that is not directly emitted from any source. Instead, ozone is formed when volatile organic compounds (VOCs) and nitrous oxides (NOx) are exposed to sunlight and warmer temperatures. Summer months are usually when ozone levels reach their highest point. In addition to Lea and Eddy counties, ozone levels in five other counties in the state are at 95 percent of the NAAQ standard. Source: New Mexico Environment Department

NMED recently released draft rules targeting reductions in VOCs and NOx emissions at oil and gas facilities.

Testimony highlights conflicting reports on support for Wild and Scenic bill for Gila Wilderness

Representatives from two opposing groups in New Mexico testified before the U.S. House Energy and Natural Resources Committee Wednesday, painting conflicting portraits of support for a bill that would see portions of the Gila River receive federal Wild and Scenic designations. 

The M.H. Dutch Salmon Greater Gila Wild and Scenic River Act would designate 446 miles of the Gila River and other waters in the Gila and San Francisco water basin as either wild or scenic, protecting those portions of river from future development. U.S. Sens. Tom Udall and Martin Heinrich presented the legislation at the hearing. The bill is named after M.H. Dutch Salmon, a nature writer and longtime advocate of the Gila River who passed away in 2019. Heinrich said the bill would “permanently protect some of the most dynamic and spectacular rivers and streams in our country.”

“The Gila and San Francisco Rivers are the beating heart of southwest New Mexico and are home to some of the most spectacular places in the west, full stop,” he said. 

Udall said the bill was the result of two years of work by groups in New Mexico, and said the bill was drafted with extensive input from various stakeholders. 

“Sen. Heinrich and I took the unusual step of posting a discussion draft of the legislation early this year, which we revised to reflect community concerns,” Udall said. 

RELATED: A win for the state’s last wild river

Udall and Heinrich were joined by Jamie Crockett, the co-owner of Gila Backcountry Services, who also spoke in favor of the bill. 

“This bill is the result of a grassroots movement and nearly a decade of work, from and by the people of my community, to guarantee protections of these rivers, their values, their current uses, and our traditional ways of life,” Crockett said.

Cannon Air Force Base to pay $250k for PFAS permit violations; contamination cleanup slow

Cannon Air Force Base will pay a $251,000 “administrative fee” to the state in lieu of the $1.7 million fine that the New Mexico Environment Department (NMED) imposed on the Air Force earlier this year for alleged permit violations related to PFAS contamination.  

PFAS, or per- and poly-fluoroalkyl substances, are toxic, human-manufactured chemicals that can move through groundwater and biological systems. Human exposure to PFAS increases the risk of testicular, kidney and thyroid cancers as well as other severe illnesses. The chemicals were used in firefighting foam in military bases across the country, including at Cannon and Holloman Air Force Bases, until 2016. The Air Force began investigating PFAS discharges across its installations in 2015, and the chemicals were detected in 2018 in groundwater at Cannon Air Force Base, located west of Clovis in Eastern New Mexico and at Holloman Air Force Base, located west of Alamogordo in Southern New Mexico. The pollutants have also been detected at several dairy farms and private wells that surround the bases. 

RELATED: ‘Everyone is watching New Mexico’: Update shows no progress on PFAS clean up

In January, NMED fined the Air Force $1.7 million for multiple violations of state law regarding PFAS chemicals at Cannon Air Force Base and issued an administrative compliance order to the Air Force for unlawfully discharging wastewater without a groundwater permit at Cannon Air Force Base since April 1, 2019, after the permit expired at the end of March. 

At the time, NMED said it may assess penalties of up to $25,000 per day for “continued noncompliance.” 

Last week, the Water Quality Control Commission approved a settlement agreement between NMED and the Air Force over the permit violations. The Air Force submitted its permit renewal documents on January 15, 2020, five days after the compliance order was issued. 

The permit renewal has not yet been approved, but NMED and the Air Force reached a settlement agreement that allows the Air Force to continue operating and discharging effluent from its wastewater treatment facility in the meantime. 

The two parties also agreed that the Air Force would pay an administrative fee of $250,947.60 to NMED instead of the $1.7 million fine, thereby resolving the compliance order “in compromise” and “to avoid further legal proceedings,” the settlement agreement states. 

An NMED spokesperson confirmed that the $251,000 fee and settlement agreement is “entirely limited to the Department’s January 2020 administrative compliance order for violations of groundwater discharge permitting program requirements.” The settlement has no bearing on litigation between the state and the U.S. Department of Defense related to PFAS contamination at Cannon and Holloman Air Force Bases “caused by decades of use of PFAS-containing firefighting foams,” according to NMED. 

RELATED: New Mexico joins multidistrict litigation against firefighting foam manufacturers for PFAS contamination

“Unfortunately, federal facilities in New Mexico have a history of disregarding state environmental laws,” said NMED Secretary James Kenney in a statement.

Congressional panel examines environmental justice issues in New Mexico

U.S. Reps. Deb Haaland and Raúl Grijalva hosted a panel discussion this week about environmental justice issues in New Mexico. Local speakers discussed a wide range of environmental issues during the panel, which was held in support of the Environmental Justice for All Act currently sitting in the House Natural Resources Committee. 

“Race, poverty and the environment are increasingly recognized as interlocking issues,” said panelist Richard Moore, coordinator of the Albuquerque-based Los Jardines Institute. Moore described environmental racism as “the intentional targeting of communities of color and other communities for anything that they [wealthier communities] don’t want in their neighborhoods.”

“Low-income communities, especially people of color, are impacted by toxic pollution,” Moore said. “Children, the elderly and women—especially women of color—are paying the highest price from pollution as a result of increased work and health problems, and economic devastation.”

Haaland said COVID-19 pandemic has “put a spotlight on the legacy of environmental racism and injustice that has left frontline communities far more susceptible to that disease than others.” 

RELATED: For Greater Chaco communities, air pollution compounds COVID-19 threat

“For years, powerful elites have treated some communities as sacrifice zones.

A ‘humanitarian crisis’: To’Hajiilee’s aquifer is running out of water

The Diné community of To’Hajiilee is named after a spring in the area, which at one point sputtered up enough freshwater to fill one bucket after another. That’s what the name references, roughly translated into English. Today, the segment of Rio Puerco aquifer that is located beneath the village, which sits just outside Albuquerque near I-40, is running out of water. “It appears the aquifer has been decreasing,” George Mihalik, an engineer with the firm Souder, Miller and Associates, told NM Political Report. “If you go up and down the Rio Puerco aquifer, like Laguna Pueblo to the south, they have similar issues with the wells there.”

Souder, Miller and Associates is working with To’Hajiilee’s chapter government to improve the chapter’s internal water systems. Mihalik has been working with To’Hajiilee for at least eight years, he said.

Speakers tout NM’s climate leadership, but are quiet on oil and gas production

A group of local leaders touted New Mexico’s work towards addressing climate change during a recent webinar on public health and climate change. But speakers such as Speaker of the House Brian Egolf, a Santa Fe Democrat, and New Mexico Department of Health (DOH) Sec. Kathyleen Kunkel tip-toed around the state’s recent record oil production and its contribution to climate change. Fossil fuel combustion is the chief driver of carbon dioxide emissions that are causing climate change. While many states have begun transitioning to renewable energy sources to replace coal, oil and natural gas, New Mexico is the only state to adopt a 100 percent clean energy mandate while also producing record levels of oil. 

“For the [Gov. Michelle] Lujan Grisham administration, environmental issues are public health priorities,” Kunkel said in her remarks, adding that DOH is part of the governor’s climate change task force.

BIA: Navajo members can ‘work around’ connectivity issues to participate in online forum on oil and gas development

Representatives from the U.S. Bureau of Indian Affairs (BIA) and the U.S. Bureau of Land Management (BLM) told participants of a virtual meeting Wednesday that they can “work around” connectivity issues to participate in information sessions about proposed amendments to the BLM’s Resource Management Plan for the Farmington field office. 

The comments came after Navajo Nation Council Delegate Daniel Tso called for the BLM to “immediately and indefinitely suspend” the amendment process, in a letter that was read aloud by Mario Atencio during the online meeting. Tso represents the northwest New Mexico Navajo Chapters Baca/Prewitt, Casamero Lake, Counselor, Littlewater, Ojo Encino, Pueblo Pintado, Torreon and Whitehorse Lake. “The Navajo Nation is still in the midst of an extreme public health emergency caused by the SARS-CoV-2 virus,” Tso’s letter stated, adding that for a period of time, the Navajo Nation was experiencing an infection rate that was “among the highest in the world per capita.”

“The expectation for the Navajo Nation to engage in ‘meaningful consultation’ regarding the amendment of a resource management plan while the Navajo Nation has been singularly focused on fighting the SARS-CoV-2 global pandemic is extremely burdensome to the Navajo Nation,” the letter stated. 

RELATED: Planting hope amid a plague

The BLM’s draft Resource Management Plan Amendment (RMPA) was initially released in late February about a week before New Mexico recorded its first cases of COVID-19. The 400-plus page draft amendment outlines a preferred alternative that would increase oil and gas activity in the Greater Chaco region. 

Tribal governments, environmental groups and members of the state’s Congressional delegation all subsequently called for the U.S. Department of the Interior to extend or halt the process until after the pandemic. 

RELATED: BLM will move forward on Greater Chaco drilling proposal while communities grapple with COVID-19 surge

BLM decided in early May to extend the deadline for submitting public comments by 120 days.That period ends September 25. But all of the public outreach and information sessions have since been conducted online. 

Sixty percent of Navajo Nation residents currently lack access to broadband, according to Navajo Nation President Jonathan Nez.

NMED says it cannot deny oil and gas permits due to ozone concerns

The New Mexico Environment Department (NMED) doesn’t have the authority to deny permits to companies for oil and gas facilities over concerns about impacts to already high levels of ozone in Eddy and Lea counties, according to an NMED spokesperson. 

Ozone levels in Eddy and Lea counties are in violation of the U.S. Environmental Protection Agency’s (EPA) National Ambient Air Quality Standards (NAAQS), while ozone levels in five other counties in the state—concentrated in the state’s two oil and gas producing zones in the northwest and southeast—are at 95 percent of the NAAQ standard. 

Source: https://www.env.nm.gov/air-quality/wp-content/uploads/sites/2/2019/10/OAI_Presentation_09262019.pdf

The environmental organization WildEarth Guardians has filed challenges against permits authorized by NMED, arguing that the department is violating state law by continuing to issue permits for new oil and gas facilities that will contribute to a growing air quality problem in the Permian Basin. WildEarth Guardians argued in its appeals that NMED approved three permits and one natural gas plant “without considering the cumulative impacts on air quality, and the subsequent impact on public health.”

State law holds that NMED “shall deny any application for a permit or permit revision” if, when considering emissions after controls, the permit activity “will cause or contribute to air contaminant levels in excess of any National Ambient Air Quality Standard or New Mexico ambient air quality standard.”

“It’s a pretty straightforward requirement, it says, if there’s a problem, don’t make it worse,” Jeremy Nichols, director of the climate and energy program at WildEarth Guardians, told NM Political Report. 

RELATED: Worsening air quality in Permian Basin ‘cause for concern’

But NMED told NM Political Report that ozone levels are not always considered in permit approvals for oil and gas facilities. 

Ozone is formed when volatile organic compounds (VOCs) and nitrous oxides (NOx) are exposed to sunlight and warmer temperatures. While oil and gas facilities are known sources of VOCs and NOx emissions, these ozone precursor pollutants are regulated differently than the other air contaminants that are considered in the NAAQS. 

“These sources are classified as major or minor, depending on the amount of pollutants they emit (in tons per year),” NMED said in an email. Applications for permits for facilities that are identified as “major” sources of VOCs and NOx typically include air quality monitoring “to see how the emissions will impact ozone formation in the area where the source is located,” the Department said, but no modeling is done for minor sources on a facility-by-facility basis. 

Instead, NMED said it uses “protocols and guidance developed by EPA to determine if emissions from these sources meet significance levels considered to contribute to ozone concentrations.”

Ozone formation modeling is more complex than modeling for other types of air contaminants, because ozone is not directly emitted, but rather is the result of chemical reactions related to VOCs and NOx emissions and sunlight. 

Sufi Mustafa, Modeling and Emissions Inventory Unit Manager at NMED’s Air Quality Bureau, said ozone formation must be evaluated in relation to emission sources that are “hundreds of miles away” that could also be contributing to ozone formation in New Mexico, in his testimony submitted to the Environmental Improvement Board, which handles appeals of permit applications for NMED under the state’s Air Quality Control Act. 

“Predicting an individual facility’s contribution to the ozone levels in a region is extremely difficult compared to the directly emitted pollutants,” Mustafa said in the testimony, adding that NMED’s modeling guidelines do not require source-specific ozone modeling for minor sources. “None of the sources whose permits are being challenged by [WildEarth Guardians] have emissions that meet those significance levels,” the department told NM Political Report.

ISC: Intrepid water rights could make or break Pecos River settlement agreement

After a dry and hot summer this year, the Office of the State Engineer is preparing to pump water from wellfields in the Pecos Basin to meet the state’s water obligations to Texas in 2021. 

Despite a substantial credit under the Pecos River Compact, an agreement between New Mexico and Texas for water that flows through the Pecos River, dire drought conditions in the basin this year mean the state might need to spend as much as $1.4 million in pumping to deliver enough water to the New Mexico-Texas border. 

Source: Interstate Stream Commission

“If we go below that zero red line, we’re risking federal takeover of the river,” Nathaniel Chakeres, attorney for the Interstate Stream Commission (ISC), told legislators in a presentation to the legislative Water and Natural Resources interim committee. 

But drought isn’t the only thing threatening the state’s deliveries, according to Chakeres. The ISC, along with the Carlsbad Irrigation District (CID), the Pecos Valley Artesian Conservancy District (PVACD) and other water managers in the basin are currently protesting an industrial company’s claim to some of water in the Pecos River. Intrepid Potash is hoping to temporarily lease 5,700 acre feet of water from the Pecos to oil and gas operators in the area to use in extraction. The water is too saline for agricultural or municipal use, but could be used in lieu of potable freshwater in activities such as drilling. Intrepid, which says it holds water rights to 19,000 acre feet per year, has not diverted its water from the Pecos in years, due to extenuating circumstances.

‘Dereliction of duty’: 1.6 million gallons of produced water spilled so far in 2020

Penny Aucoin’s chickens are all dead.  

A produced water pipe located across the street from her Carlsbad-area home burst in mid-January, drenching her house and yard with the toxic water for an hour before it was shut off. In the aftermath, Aucoin was forced to euthanize 18 chickens and one dog, and give up her remaining goat. A county official told her she couldn’t eat her chicken eggs, couldn’t eat their meat, and said she probably shouldn’t eat anything grown on her property, either. 

The operator responsible for the spill, WPX, attributed the incident to equipment failure. The company removed 25 cubic yards of topsoil from the property, and paid for a third-party contractor to treat the remaining soil. 

Aucoin’s life has changed dramatically since the incident. What’s left of her yard is basically useless.