New Mexico environmental oversight increases, but officials say more funding needed

Mar. 1—A disastrous blowout at the Gold King Mine near Silverton, Colo., released tons of toxic metals and acidic waste into the Animas and San Juan rivers in 2015, resulting in an $11 million settlement with the state of New Mexico.

An open-pit mining operation contaminated Questa's surface and groundwater badly enough to put it on a federal Superfund list, leading to a recent $2.3 million payout to cover water improvements.

And last week, the state Environment Department sued the U.S. Department of Energy for what it contends is the agency's slow and deficient effort to clean up nuclear waste generated during the Cold War and the Manhattan Project.

These cases are examples of New Mexico strengthening its environmental oversight — one of the promises Gov. Michelle Lujan Grisham made upon taking office.

The Office of Natural Resources, which played a key role in the Gold King and Questa cases and is pursuing even bigger pollution claims, has a full staff and ample funding for the first time in years.

It's an independent agency that works with the Environment Department and attorney general to assess the damage contaminants cause to natural resources and then seeks compensation from polluters.

The Office of Natural Resources and the Environment Department saw their funding reduced in past years under Republican Gov. Susana Martinez, who sought laxer environmental oversight. The heads of these agencies say their funding has improved under Lujan Grisham, but they believe more money is needed to tackle the state's pollution problems.

"Moving forward, I think we will eventually need more staff," state Natural Resources Trustee Maggie Hart Stebbins said, noting her office has had four people since the 1980s. "Right now, we realize the state's financial constraints, and we are making do with what we have."

Hart Stebbins was appointed as trustee in December 2019. Before that, the position was vacant for almost a decade, with the environment secretaries taking on the duties as best they could.

Under Martinez, a fund used to assess environmental damage and to build cases against polluters dwindled to about $17,000, Hart Stebbins said. Letting this fund dry up stalled legal actions, she said, including for big cases such as the Gold King spill. "Any work that was underway was brought to a halt."

At Lujan Grisham's request, Hart Stebbins said, the Legislature pumped $2.5 million into the assessment fund.

Having a trustee addressing environmental damage is vital in settling cases such as Gold King, and the assessment fund is crucial in crafting a legally defensible estimate of the damage, she said.

A longtime environmental attorney said lack of funding has been a problem for the Office of Natural Resources, especially in recent years.

"I don't think it was much of a priority for the Martinez administration," said Charles de Saillan, an attorney at the New Mexico Environmental Law Center who counseled the natural resources trustee when he worked for the attorney general in the 1990s.

Having a full-time trustee and a well-funded office will make the agency more able to aggressively pursue claims than in past decades, he said.

Matt Baca, a spokesman for the Attorney General's Office, agreed. "Adequate funding for law enforcement is absolutely critical," he wrote in an email.

In the Gold King case, the damage was estimated at $1 million, so that portion of the settlement will pay for restoration of the contaminated area.

The remaining $10 million will go to the attorney general and Environment Department to boost the state's enforcement.

Current plans call for disbursing future Gold King settlement money to affected local governments to assist farmers and economic development, Baca wrote.

He also said the attorney general is using teams of scientists, economists and other experts to strengthen the state's cases and hold polluters accountable.

Meanwhile, the Environment Department is making some gains in funding and staffing.

The agency's budget was cut by 42 percent in the last three years Martinez was in office, and it has regained about 22 percent of its spending, Environment Secretary James Kenney said in a recent legislative hearing.

Still, it is operating at a lower funding level than it requires, Kenney told The New Mexican.

"We were on the decline for many years," Kenney said. "We are doing better, but we are deep in a hole, and we are trying to get out of a hole."

Last year, the agency's funding increased by 4 percent, which was much less than the 14.5 percent bump the governor had proposed, Kenney said. He now is asking lawmakers to boost his agency's general fund by $3.7 million, a 28 percent increase he says is needed to adequately oversee workplace safety and the environment.

The agency is understaffed and must make hard choices, Kenney said. If it goes after companies spilling chemicals or it haggles with Los Alamos National Laboratory over hazardous waste cleanup, then it must forgo dealing with other violations.

"You don't want to choose one community over another," Kenney said. "Our job is to protect all communities equally. But we can't."

Hart Stebbins said the $2.5 million allocation has been sufficient so far. But her office is preparing to wade into more complex cases that are likely to require more funding.

For instance, she plans to look at areas around Grants and Milan that are contaminated from uranium mining. The U.S. Environmental Protection Agency and state agencies have probed those areas, so her office will look at the data for possible impacts on natural resources.

Meanwhile, a consultant for her office is assessing the widespread waste contamination surrounding the Los Alamos lab, she said, adding some of the lab's waste has reached Cochiti Lake.

The study of the lab's off-site contamination began years ago, and there's no way to predict when it will finish, Hart Stebbins said.

Her agency also will get involved with the state's cases against two Air Force bases discharging carcinogenic chemicals known as PFAS — short for per- and polyfluoroalkyl substances — into groundwater.

The Environment Department is studying the PFAS pollution from Cannon and Holloman Air Force bases, located near Clovis and Alamogordo, respectively. Hart Stebbins said her office will use that data to help assess how extensively the PFAS have damaged those areas' natural resources.

Agencies' roles in these type of collaborative actions are well-defined, she said.

In this case, the Environment Department is tasked with ensuring the water is cleaned up to meet health standards, she said. The attorney general can seek to compensate those who suffered economic losses, such as farmers.

Her office would look at projects to replace the contaminated water and protect other water sources.

For instance, in Questa, the settlement money is paying for a new drinking water well and extending sewer lines to prevent future nitrate contamination, she said.

Assessing the areas contaminated by PFAS could cost her agency $750,000, underscoring why the agency will need more money in the coming years, Hart Stebbins said.

"So $2 million might seem like a lot," she said, "but for a complicated case, that can get absorbed pretty quickly."