Toxic chemicals that do not break down in the environment have been threatening water sources nationwide, witnesses told the Senate Committee on Environment and Public Works during a hearing on Wednesday. Per- and poly-fluoroalkyl substances, better known as PFAS, have received attention in New Mexico and nationwide as they were used in firefighting foam at two air force bases. This contamination has migrated from the military bases and led to water contamination at a dairy farm near Clovis in eastern New Mexico. While these chemicals can lead to cancer as well as other health effects, there are no federal rules regulating them. That needs to change, according to New Mexico Environment Department Secretary James Kenney who told the committee that a federal regulatory framework is needed for PFAS.
The New Mexico Environment Department is investigating the size of the PFAS plumes in eastern New Mexico. PFAS, or per- and poly-fluoroalkyl substances, are chemicals that were used in firefighting foam at two air force bases in the state. The chemicals can impact human health and are known as “forever chemicals” because they do not degrade in the environment. For decades, the U.S. Department of Defense did not properly dispose of the foam at Holloman and Cannon air force bases. This led to groundwater contamination.
Many incarcerated women, often already traumatized from gender violence, potentially face re-traumatization once imprisoned in New Mexico through inhumane conditions and sexual assault, according to attorneys. Lalita Moskowitz, an attorney with the American Civil Liberties Union of New Mexico, said the inhumane conditions run the gamut in New Mexico prisons—from infestations of rodents and freezing conditions at Western New Mexico Correctional Facility outside of Grants to infrastructure that is “completely falling apart” and inadequate reproductive health care at Springer Correctional Center in the small northern town of Springer. She said the two New Mexico women’s correctional facilities are “some of the oldest (correctional) buildings in the state.”
There have also been numerous sexual assault allegations at both facilities, Moskowitz said, and several sexual assault lawsuits. Steve Allen, director of the nonprofit New Mexico Prison and Jail Project, called the sexual abuse at Springer, “systemic.”
Many of the women housed in New Mexico’s correctional facilities are nonviolent offenders. Allen said that many women who are housed in WNMCF, which is a medium-level security facility, are “overclassified,” which means the inmates are put into a higher security prison than they need to be.
Following concerns from members of the environmental community, the New Mexico Environment Department removed the exemptions from the oil and gas sector ozone precursor rule for stripper and marginal wells. The department released the ozone precursor rule Thursday and filed a petition with the Environmental Improvement Board to review it. A public hearing is anticipated this fall. If approved by the seven-member board, the rules would likely go into effect in early 2022. It is intended to work in conjunction with a methane waste rule that the Energy, Minerals and Natural Resources Department already finalized.
Mario Atencio, an activist from the Greater Chaco region of New Mexico, said the methane waste rule adopted by the Oil Conservation Commission on Thursday will set energy production in New Mexico on a path trending toward fairness. Atencio’s community in the Counselor Chapter of Navajo Nation is among the poorest in the state and, he said, it has long borne the impacts of oil and gas emissions. He is hopeful that the methane waste rule will significantly decrease emissions impacting his community. The Oil Conservation Commission, which falls under the state Energy, Minerals and Natural Resources Department, unanimously approved the final language of the new rule for venting and flaring of natural gas during its meeting and the commissioners expressed pride in the final language.
The methane waste rule requires 98 percent of the methane from oil and gas operations to be captured by 2026, although it leaves the companies with the flexibility to use a variety of technology to meet those goals. Work on the methane waste rule began in 2019 following an executive order from Gov. Michelle Lujan Grisham.
New Mexico Environment Secretary James Kenney told state lawmakers his agency needs more staffing to inspect worker safety violations, ensure businesses are preventing the spread of the novel coronavirus and better protect the state’s air and water quality. Kenney implored members of the Senate Finance Committee on Tuesday to approve a $3.7 million increase in the Environment Department’s budget for fiscal year 2022, saying it would beef up understaffed teams that probe workplace safety issues.
The increase would raise the agency’s general fund budget to $16.8 million and be on par with the 28 percent bump the governor has proposed.
“That is, all things considered, a very modest increase,” Kenney said. “That investment in the Environment Department — $3.7 million — will definitely save lives [and] protect public health and the environment.”
In all, the agency’s revenue last year was $90.7 million, counting grants and fees collected.
The Legislative Finance Committee recommended keeping the agency’s general fund allocations the same as last year’s, which Kenney argued was not enough to provide effective oversight.
Kenney said the requested funding increase is the difference between the agency being able to investigate workplace complaints and deaths and leaving those incidents unchecked.
Probing workplace violations through the state office of the Occupational Safety and Health Administration is imperative in New Mexico, where worker deaths are 77 percent higher than the national average, Kenney told the committee.
The agency’s budget was cut by 42 percent in the last three years that former Gov. Susana Martinez was in office, Kenney said. It has regained about 22 percent of its spending but is still operating at a lower funding level than it requires, he said.
The agency has a vacancy rate of 17.7 percent, which adds up to 63 jobs that should be filled, Kenney said.
None of the committee members spoke against the requested increase.
Sen. Jeff Steinborn, D-Las Cruces, expressed strong support, saying the agency’s mission should be a priority in New Mexico.
The committee is considering hefty increases in spending on economic development and tourism, he said.
“And those are great things, but I would hope we’d all agree that environmental protection and protecting public health are at least equally important,” Steinborn said.
Subpar environmental oversight can hurt economic development because companies don’t want to locate in places that are unhealthy and unsafe, he added. The proposed budget includes a $1.7 million for rapid responses to workplaces where one or more employees tested positive for COVID-19.
New Mexico’s environmental and oil and gas regulators are facing budget cuts for the next fiscal year, as nine months of the COVID-19 pandemic and a significant downturn in the oil market has depleted the state’s budget.
The budget reductions come after years of attrition in regulatory budgets under the Susana Martinez administration. The New Mexico Environment Department’s budget was cut by 32 percent between fiscal years (FY) 2012 and 2019, which was the last fiscal year budget passed by the legislature in 2018 before Martinez left office, according to a report released by the New Mexico Wilderness Alliance. The Energy, Minerals and Natural Resources Department (EMNRD) saw its budget drop roughly 24 percent under the Martinez administration between fiscal years 2012 and 2019.
In Gov. Michelle Lujan Grisham’s first budget proposal for FY2020, NMED’s general fund increased 6 percent compared to FY2019, while EMNRD saw a 9 percent increase in fiscal year 2020 over 2019. The departments saw similar increases in the FY2021 budget. But some of that progress will be reversed as the state grapples with the fiscal ramifications of a nearly year-long public health emergency and an oil boom bust.
NMED to cut back on some services
NMED submitted a $89.2 million budget request for fiscal year 2022.
New Mexico Environment Department Secretary James Kenney said his department is working through hundreds of comments related to a proposed rule for regulating air pollution associated with oil and gas development.
“We received over 400 comments on our rule,” Kenney told state legislators during a recent committee meeting.
Last year, NMED and the state Energy, Minerals and Natural Resources Department (EMNRD) were tasked with developing new rules targeting methane emissions in the state resulting from oil and gas activity. While EMNRD’s rule addresses methane emissions directly, NMED’s draft rule instead targets volatile organic compounds (VOC) and nitrous oxide (NOx) emissions from oil and gas wells.
Both NMED and EMNRD released draft proposals for their respective rules in July for public comment, after a year of work by the state’s Methane Advisory Panel, which was composed of oil and gas representatives, environmental groups and other stakeholders. EMNRD released a finalized version of its rule in mid-October. On Nov. 4, the Oil Conservation Commission agreed to set a hearing for the finalized rule in January.
But NMED still has some work to do before it releases a finalized version of its rule, Kenney said.
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.
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.
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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.