By Mary Alice Murphy

On Oct.11, 2022, representatives from the R. Marley trucking company, whose truck was involved in an accident that closed down New Mexico 15 due to an asphalt spill, spoke to a rowdy and rude crowd, with many respectful ones asking reasonable questions, at the Grant County Veterans Memorial Business and Conference Center.

James Bearzi, a consultant who was retained by R. Marley to deal with government agencies, led the discussion. "We're here tonight to discuss the spill response, including what's been done and what will happen. We want to spend about 25 minutes telling you what happened, then we want to listen to your questions and comments."

He introduced Dane Marley, one of the company's principals, and Chris Gray, who is the company's reclamation specialist.

"Chris has been on scene almost every day," Bearzi said. "This community meeting is convened by R. Marley, which owns the truck that spilled. We will do everything we can to answer your questions, but we cannot speak for government agencies. I have been doing this for more than three decades. I spent most of my career working for the New Mexico Environment Department as a scientist and later as an administrator. I worked with hazardous waste and radioactive waste, as well as with surface water quality. I also worked as an ecologist with the Interstate Stream Commission. For the past eight years, I have been consulting. I put out information starting last Thursday."

District 28 Sen. Siah Hemphill thanked the volunteers who took the initiative to start a cleanup. She asked them to stand. Several stood.

Silver City Councilman Nick Prince said he has been on the site regularly.

Grant County Commission Chair Chris Ponce also was in attendance but said nothing. Commissioner Alicia Edwards also attended.

"I want to set ground rules for when you ask a question," Bearzi said. "Please wait until the microphone gets to you. I know that passion is running high, but please be respectful. I want to thank all of you for being here. I hope you realize this isn't normal that so many people are here. Throughout the state, this kind of interest for an issue isn't as normal as it should be. We wouldn't be here, if you weren't going to be here. It was community members who brought it to our attention."

Geronimo Cassidy, one of the volunteers working on the cleanup, said he was born and raised in the forest near to where the spill happened, "so it's in my backyard."

"You guys got the ball rolling," Bearzi said. "It didn't take long for a call to Dane. You also brought it to the attention of government officials. Things often end there. In this case, many of you were at the site doing cleanup because you weren't seeing cleanup. Even though R. Marley said they were doing something, you're still out there cleaning up the site. I truly mean this. If even a fraction of our environmental problems were met with this kind of reaction, we'd be in a far better place. It's always better when there is substantial community involvement. Keep paying attention."

He said frequently asked questions will be answered in a regular email blast and "in the reports we make to the NMED."

"What happened?" Bearzi asked and answered. "There was a tanker accident on Sept. 26. The tanker tipped on the downside of the road and some of the asphalt emulsion spilled and moved down into the canyon. We don't know exactly how much spilled."

Kyle Johnson asked what the volume of the tank was.

Dane Marley said: "We truck materials. We run tankers to run the asphalt emulsion for chip sealing projects. The trailer was wrecked and is not road worthy, so it's not on level ground, so can't measure what's in it. We can weigh it and subtract how much is still in the tank, but not until we get the go ahead. The truck is at an impound facility."

A woman asked why a truck that size was on that road.

Marley agreed there was not enough signage warning large trucks of the narrow and curvy road. "The evening before, the New Mexico Department of Transportation notified us that the weather would not be good for their continuing to work on the chip sealing of NM 15. The shipper was notified about midnight. By the time the trucker was notified, he was past cell phone coverage. He was through a curve and was trying to turn around, which led to the unfortunate accident."

The woman said it was miscommunication that the driver wasn't notified.

Marley agreed and said the order was canceled at midnight because of rain by the NM DOT to the supplier.

"Our truck was staged at Deming, and the shipper opened at 7:30," Marley said. "The driver had already left when the supplier got the message. The driver was looking for road crews on the road."

Marley replied that the GPS was not effective.

He reported that the total capacity of the tank was 7,500 gallons. "It is unwise to fill to capacity, so all we've been able to do is estimate the volume, which still has about half a load in it."

A woman asked where the Department of Transportation "was in all this?"

Marley said he couldn't answer that question.

He said the accident involved a 41.5-foot trailer plus the 18-foot truck, plus the front of the truck.

The same woman said the road is challenging even for a passenger car, so she wondered why the NM DOT authorized it.

Although a representative of NMDOT was present, Bearzi said R. Marley had agreed to convene the meeting and would not involve any of the agencies. "The government agencies may have their own meeting. This is our meeting. That's the direction we got from the higher ups in the agencies."

[Editor's Note: The agencies will hold their own meeting on Nov. 3, 2022. Visit https://www.grantcountybeat.com/news/news-releases/74914-usfs-and-epa-host-community-meeting-on-emulsified-asphalt-spill-nov-3-2022 for more information on time and place.]

A man noted that it was an accident. "We can blame the driver, but what about what happened after the accident?"

Marley said he was told "we're taking care of it."

The same man asked: "Where is it eight days later?"

Bearzi agreed that "it was a huge ball that got dropped. We thought the NMDOT had it covered. We got an email from someone asking: 'who's on the hook?' There are a lot of different parties. We had assurance that government agencies would take care of it. Now, we are taking care of it."

A woman said she heard a rumor and was wondering if it was true that the truck tipped over after the accident.

Marley said that was untrue, because the seal was still on the back of the truck.

Bearzi noted that asphalt is not listed as hazardous.

A man asked when the driver reported the spill.

Bearzi said it happened Sept 16, and "Geronimo notified us Oct. 4."

A woman accused Marley of lying to her.

A man asked if there had been an investigation by the police if the accident happened because of recklessness or speed. "I saw the truck and it was speeding. I wondered about his speed. I also witnessed the bringing out of the truck and cylinder."

Bearzi said, according to the police, the driver was cited.

A man asked if when a truck is carrying a load such as this, "don't you carry something like matted straw?"

Marley said the truck did have a spill kit, but it was too small.

A man said he was curious as to what agency investigated the accident.

Bearzi said a state patrolman wrote it up. "I don't know if a subsequent investigation treated it as an accident."

The same man said probably why it was not sent to the NMED was because the substance is not technically a hazard.

Bearzi also noted: "If we had known the state police and the NM DOT hadn't reported it to the NMED, we would have."

The man said even if milk were dumped, depending on where it went, it would be an environmental hazard.

Marley said: "In no way shape or form should others have reported it. We dropped the ball for not reporting it. It was not anyone else's fault. It's not what we as a company would do. We're here to clean up and we'll come back to check on it to make sure it was cleaned up properly."

Bearzi said the word hazardous has been bandied about. "It doesn't have to be a hazardous material to report it. Milk is a potential water contaminant. It doesn't have to be hazardous to be reportable."

A woman demanded: "This isn't hazardous waste?"

Bearzi explained that if any material is used wrong, it can be damaging to the environment. "Icky, gooey tar is not hazardous by regulation, but it can damage the environment."

A woman said: "By coincidence I went for a lab test at Gila Regional Medical Center. At the ER, there were people sitting at the door. What's going on in the ER that's full of people short of breath and throwing up? If that a coincidence? It was kind of bizarre."

Bearzi said if she was asking if people could get sick with the material, "yes, they can. It is emulsified asphalt, and if microscopic droplets of the emulsion are suspended in water, it can cause issues. The thing you need to pay attention to is not the water or the emulsion. The primary problem is temporary eye or skin irritation. Nausea and gastrointestinal upsets are not caused unless someone ingests it somehow. Asphalt is a petroleum distillate, which is a listed substance as poly-aromatic hydrocarbon. This product and the way it is used is through a spray bar to put it on the road to do the chip seal. It goes on cool, so it's not hot so workers don't get burned."

A man demanded to know: "If it's not something volatile to humans, why have my friends who are cleaning up the site been puking and getting sick? Why are we still using it on roads?"

Bearzi said the material doesn't make the workers sick. It coagulates on the gravel. "Workers are picking up blobs that are not coagulated."

The same man said the NMDOT is doing chip seal up to the Gila Cliff Dwellings. "You'll be hauling more material. Please work with the Department of Transportation."

Marley said his company had not received any orders for new material. "I'm not going to speak for others."

A woman asked: "Why the silence? Did you think no cleanup was required?"

Marley repeated that "we were informed it would be taken care of. When we were notified on Oct. 4 that it was not being taken care of, we mobilized a labor force and came on the site before dawn on Oct. 5. It's been a process, and we're ramping up with 19 working there today."

A woman said the toxicology report would show a risk of cancer from prolonged exposure to the material.

Bearzi agreed that it could be carcinogenic. "That's why we don't use hydrochloric acid. Components of asphalt are known carcinogens."

Cassidy said asphalt is genotoxic for future generations.

A man said: "I hope that we are all gearing up for some more of our government agencies to address us. How much communication are you having with the Department of Transportation?"

Marley said his workers are continuing the project and "we are in communication with the NMDOT."

A man asked: "Since the spill is on forest land, when was the Forest Service notified?"

The Gila National Forest Silver City District Ranger Elizabeth Toney said she saw the information on Facebook on Oct. 4, and on October 5, "we went out."

A woman asked who was the original person of what entity that authorized the driver to take that road. "Who made the decision? Was it your company or the DOT?"

Marley said the driver was set to deliver the material just past Pinos Altos. He was looking for the road crews.

"Even though the sign says that the road is restricted for large vehicles?" she demanded. "The load amazes me. Did the Department of Transportation know the size of the truck?"

Marley said it is standard-sized truck.

A man asked how the company vets the drivers. "Why don't they have satellite phones? Was there any evidence on the GPS tracker?"

Marley said the GPS pings and "lets us know if it's a speeding truck. The truck was inspected by the DOT. We were well within the specifications. Our company is better than the national average. We vet our drivers strictly. They must have at least two years of CDL experience. We don't use satellite phones because the costs are prohibitive, and it would raise the costs of transporting material all over the state. It is a tight market, and we do it safely and cost effectively. We do randomized drug tests and background checks."

A man said he was pretty sure he was the first person on the scene at about 9:30 a.m. and the asphalt was already spilling. "I engaged the driver. He was shaken, and he knew the material was bad."

Marley agreed that the company was aware of the accident that day.

The same man said he appreciated "that you're taking responsibility. We think the state police are at fault. It seems to be a disconnect of communication of the material going into the stream. I realize it's needed on roads, but it was a liquid."

Marley said one reason for the emulsion is so that it is not at a high temperature and is more environmentally friendly.

The same man said that because it is not heated there are no vapors with the low temperature.

Bearzi said because it went into the water as a liquid, "we need to know how far it went downstream. We will clean it up. One problem is the stream was running the whole time. The first thing we're doing is getting the globs out of the stream. Early on the first day we were there, our focus was to go down the stream looking for globs. There are natural check dams. About 900 yards from the release site, was our first assessment and where major blobs were found. That was on Oct. 5. We have crews that think it will be done at 90-95 percent on or before Oct. 18. But before we say we are done, we will walk down the stream to see if it is impracticable to get more or if there would be any benefit or if getting it out would disrupt the forest ecology. Or if a government agency says: 'You're done.'"

Gray, Marley reclamation specialist, said the company is taking advantage of natural check dams, such as nature's fallen trees.

A woman yelled: "We did those dams. All our dams were taken up and put on the bank!"

Gray said they would be restored the next day if that indeed did happen.

Bearzi said: "We're there every day. Send me photos if there is not something you want to happen."

Gray also said that protective equipment includes rubber gloves, because the material is sticky and sticks to skin.

Bearzi said Level D gloves, hard hats and Tyvex suits and respirators are not required for this job.

A woman demanded: "You need to further vet your information that you send out. I request you tell the truth."

"Every day, we are coming out and we report how many people are working and how far along we are progressing," Bearzi said. "One of my jobs is to get the information out. When you say that volunteers built the check dams and put them in place after the accident, we're grateful for them. Why were they taken out?"

Marley said: "They were there today. Our plan is to install more, so we don't have to go through the same areas again."

Bearzi said the workers are going from the bottom up toward the spill site. "We're also responding to the government agencies."

Marley said the purpose of the evening meeting "is to inform you of what we're doing."

Bearzi said: "As far as we are concerned, we want to take care of the situation as best we can."

A woman alleged that the water color is brown and it smells funky. "We're pulling out the tar shit and have filled 15 Walmart shopping bags. I went to the Forest Service, and they said they had learned about it two days ago. People in clean clothes with clipboards were assessing the situation, so I called NMED, and a contractor had told him that 12 people were working all day through the weekends and holidays. Nine people came out at a quarter to 2. It seems like today there were more people, but they haven't been there the whole day. On Oct. 7, they left before 2 p.m. On Oct. 8, the crew was there for two hours. Oct. 9, they worked with Marley at the top."

Marley said: "We've been trying to increase the labor numbers. Yesterday there were 16 and today 19. It's not easy. I've made multiple calls to lots of companies trying to find crews to work. I pay a contractor who provides the crews. I will deal with them on what is acceptable or not."

An audience member had asked how volunteers could get paid.

A woman said she talked to the NMED, and they said that workers could be fired if they don't know what they are doing.

Gray said he walked the drainage, and "it is unsafe in a hard rain. If you can't see the material, we didn't want to dislodge anything for it to go farther downstream. I'm focusing on the first phase. For restoration, I would have to submit to the Army Corps of Engineers, if I want to put equipment into the stream. You all built great check dams."

Bearzi said after all the hue and cry for agencies, he got on a Zoom call with the Forest Service, the Environment Department and the Army Corps of Engineers. "On the first or second call, the senior leaders of the agencies we interpreted them to say that it's R. Marley's problem and not an agency issue. Staff from the NMED wanted us to start down low to make the dams better. The first think you do is remove the source, and the biggest mass was at the top. We are doing both top to bottom and bottom to top."

Cassidy said: "You say it's about half a mile down. The first day I walked a mile down and that was not far enough, then another ¾ of a mile down I was still finding tar."

Marley said the crews will be on site around 7 or 7:15 in the morning for a safety meeting. "Then we get rolling about 7:30. The crew will walk downstream and work the majority of the days from 7:30 a.m. to 2:30 p.m. Some folks will stay until about 5:30 to start moving bags to the roll off."

A woman accused: "We need to know we can trust you. I see a little lie, a squirm here and them. You made a mess."

Gray said he had to step away for 36 hours because of a prior commitment, but "we won't quit until the job is done. Although I just had a knee replacement, we are there for the long haul. I'm in constant communication with the agencies. We are getting information on how much was released. We are sorry it took place in your community."

Marley answered an accusation that the company was calling it non-hazard or non-toxic. "Folks that identify it say it isn't. We're telling you what we're told. We're a trucking company. We are not in the business of hauling hazardous materials. It's coming from the supplier. We're labeling it what we're told. We're here to clean up until it's cleaned up. The material is labeled by the manufacturer and by the state."

Bearzi said asphalt can make some people sick if they are in contact, but "we're telling you what the supplier says."

A woman asked about health insurance for the workers.

"We haven't had any health issues with us or the crews," Marley said.

A man said the volunteers for the first couple of days wanted to get rid of the worst problems. "The sludgy stuff was at the top. We saw you working from the bottom up and thought 'What are you doing?' In the big picture, if you're mad at the trucking company, they are in the creek with us. Forest Service where have you been? I just want to see it cleaned up. It's all of us."

A woman said: "We need a genuine response. People are putting their lives on the line to take care of it."

Another woman accused them of not putting the material in bags. "You're throwing it up on the ground."

Gray said the protocol is to tie the bag up. "We're getting estimates of how much we're pulling out."

An additional woman said she was backing the other woman up. "You have no containment on the stream. You are contaminating the stream."

Gray said: "We have instructed every bag to be transported to the roll off."

Silver City Daily Press reporter Jordan Archunde asked: "Where does it go after you put it in the roll off?"

Bearzi said it is transported to the R. Marley yard in Roswell and the company will work with the government agencies on where to send it. "The company will pay for its disposal. You may ask why I have not been to the site yet? A shout out to the Forest Service who asked when will you know when you're done. I will be the fresh set of eyes after the crews say it's done. I will inspect Phase 1. Then I can say, there's more to be done and once that's done, we will send a formal report to the NMED and have them go through an evaluation. If Chris (Gray) says there will be more damage if we do more, then we'll wait. The Forest Service or the NMED can tell us to do more. The report doesn't mean we're done. What about subsequent analyses of soils, banks, water quality in the drainage? We don't have direction from any agency to do more yet. We will have to come up with a plan for analysis. The data must be of sufficient quality to make good decisions."

Johnson asked about the evaluations. "What if you do nothing from this point forward? You will make that decision?"

Bearzi said the goal is to remove 90 percent of the stuff.

Marley said it was difficult to determine the weight of material already removed, because some of the tar is stuck to branches, gravel, rocks. "We've exceeded the weight of the original material. We are doing it by yards."

Johnson asked: "If you're past any diminishing returns, is there anything left that you can estimate how far and how long it will take for it to become inert? Will the state of things change over time?"

Marley said it is designed to break out of water like it breaks out of a roadbed over time. "The goal is to remove the majority of the material. If it adheres to trees and rocks, we may leave some of it so as not to create further damage."

"If some material is left in place, what is the likelihood of it migrating?" Bearzi asked. "What it is likelihood of it degrading in place or further degrading the environment? There may be post closure care. There may be long-term maintenance. The NMED and the Forest Service will weigh in on the plan. The Forest Service will want to know the threat long-term."

A woman asked if anyone was looking at other than material removal, such as surfactants.

Bearzi replied that there may be future phases. Stream restoration happens in phases.

Johnson again raised the question of paying the volunteers.

Marley said: "We can't pay them cash. We are not allowed to. I can put them in contact with the contractor or you can create an LLC and I can contract with you. We donate hundreds of thousands of dollars to conservation issues."

Johnson noted that the meeting had been informative. "It's been stressing all of us to see the gaps in time before it was taken care of. The communication among the agencies is appalling that no one took the initiative. Young people here dived in and could see the situation needed to be addressed. Democracy is on the ballot, when people no longer trust government. If we don't trust government, we need to trust ourselves. I came here to learn more. I didn't know the trucking company was hosting the forum. I thank you for being as open as you have been. But between the company and the agencies, the delay is shameful. Normally the NMED doesn't tell you what to do; they tell you what you did wrong. We'll keep using our experiences with formal contact with the agencies."

A woman said: "It's obvious we need more hands on deck. The Forest Service has crews."

Bearzi said the agencies were in attendance as observers. "This is our meeting."

Marley said: "We've made a significant amount of progress."

Bearzi said he believed it would be the following week when he would go out to assess. "I want to make sure people are there who want to show me what I need to see. You say it's brown water down as far as Red Rock."

Gray said that will be determined with water sampling in phase 2 or 3, and Bearzi said he was already working on devising a sampling plan.

A man said the brown water was already in Meadow Creek.

"I would be thrilled to talk to any of you about the sampling plan," Bearzi said.

Gray noted that the company was not allowed to dislodge sediment.

The man said "it's floating on the water and moving faster than solids on the ground. It's moving into other water sources."

A woman said it's valid why sampling is needed now.

Gray agreed that they need to sample.

Allyson Siwik asked what they would sample for.

"Petroleum aromatics, semi-organic compounds and a separate test for VOCs or other volatile materials," Bearzi replied. "We will also look at field parameters, such as pH and temperatures. The analysis is driven by the target. We would look at the drainage and how fast the water is moving into the first perennial stream, which I guess is Meadow Creek. The problem with sampling is that it takes time to get the results. We would like to build a retention basin, but we are not allowed to do that."

Marley explained the product doesn't degrade in water, but it will break down into water and black tar.

Bearzi said: "We're taking the responsibility in not using mechanical equipment until it's the best time. We would need permission from the Forest Service and the Army Corps of Engineers."

A woman demanded: "You're waiting for permission, while the pollutants are going downstream?"

Bearzi said he is trying to cut through red tape and would revisit the issue.

A man demanded to know why the company was not allowed to create a retention basin.

"We actually haven't asked to do it yet, but we would have to ask for permission," Bearzi said. "From the Army Corps of Engineers for sure, and maybe the Forest Service would have to approve it. I'm not sure if the NMED surface water division would weigh in, too."

"It's been 16 days," a woman blustered. "I'm guessing, if you have a plan, why hasn't it been implemented in 16 days?"

Marley said he is first generation in trucking. "This accident is unique. We should have reported it, but we were told it would be taken care of. We don't want to disturb the natural resources. That's why we plan to do it the way we are doing it."

A woman suggested that the community could put pressure on the agencies to cut the red tape.

Bearzi said the agencies may have emergency plans that won't involve red tape.

Because it was the end of 3 ½ hours and the venue had been rented for only three hours and most people had left, the meeting ended.

[Editor's Note and Opinion: I didn't include a lot of the things said that were simply shouting over the speakers and not listening to answers and then later demanding answers. The meeting had respectful moments, but much of it included screaming obscenities and saying things like "It's killing me." The company representative maintained their composure and tried their best to be respectful and answer questions the best they could.]