By Mary Alice Murphy

On Nov. 3, 2022, Heather Bergman served as facilitator at a meeting called by state and federal agencies addressing the asphalt spill on NM 15 in late September. A driver contracted by R. Marley Trucking had an accident near Jaybird Canyon that culminated in a spill of asphalt into the water course.

Bergman said: “The primary goal is to give you information and answer questions.” She asked the panel participants to introduce themselves

John Moeny, NM Environment Department Surface Water Quality Bureau is a watershed protection specialist.

Shelly Lemon, NMED Surface Water Quality Bureau Chief said: “Public complaints are important. That’s how we found out about the spill.”

Camille Howes, Gila National Forest Service supervisor, said she has been on the job for only 2½ months.

Randy Guidry of the U.S. Environmental Protection Agency, said he is the on-scene coordinator for the clean up.

“My involvement is in the spill origin,” Moeny said. A driver contracted by R. Marley Trucking had an accident near Jaybird Canyon that culminated in a spill of asphalt right at the canyon. “About 2,000 gallons spilled. The second day I was there, we found remnants of the spill 950 meters down from the point of entry where the flow had fouled the rocks and vegetation was covered, and asphalt was in the stream bottom. I went down as far as I could find traces of asphalt. We had some data that people have seen bits as far down as 1.6 miles near the confluence of Jaybird and Meadow Creek. We took samples of water and oil. With the third wettest October on record and 6.2 inches of precipitation since it happened it will make Jaybird kind of perennial for three to four months. Once the water came up, it was hard to see. It was a bad time for it to happen.”

Lemon said the ingredients in the emulsion that spilled include caustic soda to combine with the tall oil to keep the water and asphalt mixed. “We have heard a lot of questions. Is it hazardous? No, it is not hazardous, but it could be harmful. There is a quantity threshold to reach before it is hazardous. Prolonged inhalation can be harmful and breathing in fumes. You need protection. You need proper protective equipment. Asphalt is not a human carcinogen. To questions about environment damage and toxicity, there is no known harm to aquatic organisms. It is hydrocarbon based, and the heavy molecules are hard to get into an organism. No prolonged ecologic impacts are expected.”

R. Marley Trucking has done some stream and soil testing, but as of the meeting, the results had not been received. The NMED did some asphalt emulsion testing with data also pending at the time of the meeting.

Moeny said onsite volatile organic compound testing done by the EPA had not detected any VOCs. Future monitoring of water and soil will be informed by Phase I testing.

Phase 1, according to Moeny, includes the initial cleanup, which involved removing the spilled product and rocks and natural forest debris to which the spilled product had stuck; sifted and screened stream sediments for asphalt; and using best management practices (BMPs), including check dams and putting in absorbent booms or “sausages.”

He emphasized that R. Marley was doing what NMED or EPA contractors would do. R. Marley put in wire and screen check dams. And the absorbent booms had gone out the week of the meeting.

A question about rocks: “Remove them or keep them in place?”

Rocks 10-inches or smaller and coated 50 percent or more with asphalt on their exposed face and not fixed to or embedded in the streambed should be removed.

For larger rocks, rocks embedded in the stream channel, boulders and bedrock with asphalt, removal of this glued-on material would cause more environmental damage to remove than to keep in place.

Phase 1.5 will continue now through winter by maintaining site conditions.

The slide stated that before shutting down operations for the winter, the contractors would return cleaned rocks and cobble to the stream to add roughness and prevent erosion. Water bars will be constructed according to USFS specifications to stabilize trails and during the winter, crews will continue to periodically check the absorbent booms and check dams.

Phase 2 will commence in spring and summer, with stream repair and enhancement. Prior to snowmelt the booms and check dams should be redeployed if they were removed. Additional cleanup will take place, along with reseeding, stream repair, enhancements and restoration to make it look more natural. Water and soil sampling and analysis will begin, and trails will be assessed and rehabilitated or decommissioned as needed.

Lemon said the NMED is committed to holding responsible parties accountable under the Water Quality Act. The agencies are committed to mitigating impacts and enhancing site conditions. “We are working with the NMDOT and the NM Department of Public Safety to prevent unreported spills in the future. We are reviewing policies for prompt reporting. Although asphalt is not a hazardous material, the spill should have been reported.”

She ended the formal presentation by reading a quote from Luna Leopold, the first chief hydrologist of the U.S. Geologic Society: “Water is the most critical resource issue of our lifetime and our children’s lifetime. The health of our waters is the principal measure of how we live on the land.”

Matthew Maez, NMED communications director, addressed questions that people had written down.

Q: Will the NMDPS and NMDOT be held responsible?

A: We have been working with the agencies. They are scheduled to update their hazardous spills policies. Once we’ve determined the responsiblity, someone will be held accountable.

Patrice Mutchnick of Heart of the Gila said she had a lot of questions.

She said she drives the road at least once a week and it’s not just a road. It is access to forest trails and the interior of the forest. She said it would be considered toxic if an animal becomes embedded in the asphalt. “I understand a squirrel and a snake were collected.”

Another questioner asked if a physical threat such as VOCs and MSDs had been glossed over.

Lemon said The SD sheet is what “we have. We’re doing the soil and water sampling and we will adjust as needed.”

Another woman asked about the biota factory.

Lemon said the material is not posted as a toxic pollutant. None of the ingredients listed is hazardous. “Yes, it can be harmful, but is not hazardous under the Clean Water Act. We’ve done a lot of removal of material. That is why we are doing tests to see if trace amounts of the material is there. Depending on the results, that will be part of the process. We understand your concerns, but with the data, we will be able to make decisions. We are thinking about having a virtual meeting to show results.”

A woman said she was exhausted from this “being in my backyard. You’re cleaning up to state standards. Have you consulted with others from out of state?”

Howes replied: “All of you are checking us. It’s a bad situation. We do not deny that it took more time than we would have preferred to find out about it. We are accountable to you.”

Lemon said the Water Surface Quality Division received a call about it on Oct. 4. “John Moeny was out here that afternoon. We’re looking into the accountability issue.”

The same woman said: “I’m not talking about when it happened. I am talking about going forward. I don’t trust you. Will you have an outside review?”

Guidry said if the agencies do the work, it is paid for using taxpayer funds. “Your representatives put laws in place. We can’t trust outside consultants.”

A man asked when the first soil samples were taken. The answer was Oct. 19.

The same man asked if hydrocarbons can be eaten by bacteria. “We were in a pool of nasty sludge. On Oct. 5, we waited for you to come. You still act like you’re doing something. You all messed up. NMDOT is not here. Why not? I was in the toxic sludge, but you didn’t test anything. The first water samples taken were thrown out.”

Moeny agreed that Dylan had taken samples, and “we don’t know what happened to them. We don’t know how they were taken.”

The same man said the “state covers the state covers the state. This could have been solved the first day. What was it me and 10 friends doing the work? Did anybody lose their job, other than R. Marley?”

Lemon said the situation is still under investigation.

The same man went on. “Can you sue another state? It’s under investigation. We’re waiting for the day you tell us you messed up.”

Lemon said: “We’ve already told you that.”

Bergman asked what the time frame is.

Lemon said enforcement takes a couple of months. “We issued a notice of non-compliance to R. Marley.”

“On one day, I saw about 9 people show up to work, but they left by 2 p.m.,” one of the audience members said. “I went to the Forest Service to call the NMED to tell them what was happening. I sent a file to see what James Bearzi (consultant for R. Marley) would think about how dedicated the workers were. Maez told me the ED would fire the R. Marley group if they were not doing a good job. They were not putting the material into bags but throwing it up on the banks into the grass. They tried to throw us volunteers under the bus. Where is the accountability? They tried to blame the volunteers.”

Bergman asked if the agency had the authority to fire, and Lemon said yes.

A Pinos Altos resident named Scott said R. Marley presented information from the manufacturer about the asphalt emulsion. “The sheet said immediately after a spill, they should have gathered up as much material as possible as soon as possible. What is the statute on required reporting?”

Lemon said it’s under Regulation 24, but the reporting failed. “That’s part of what we’re looking into.”

Guidry said it should have been reported to the National Response Center. “Anyone can send a report to them.”

Lemon said state regulations require reporting anything that may impact ground or surface water quality. It’s the same as the federal regulation.

A man asked again why it wasn’t reported. “This was an accident. A DPS report was taken. As far as protocol, they said the driver aid the material was not hazardous.”

[Autor’s comment: At this point, the meeting started getting rowdy with people talking over one another, so it was hard to understand.]

Another man pointed out that he was likely the first on the scene and he reported it to 911. “I expected the report to be made where needed from the beginning.”

A man said hydrochloric acid is listed. “It keeps getting buried. I had hoped to get some better answers tonight.”

Guidry reiterated that the material is not listen as hazardous, but as oil. “We clean it up as if it were oil.”

The same man said the driver said he had hydrochloric acid as listed on the side of the truck.

Richard McDonnell, herbalist, said it seemed pretty screwed up that different agencies have different regulations. “You should be doing the determination of the ingredients, not relying on the manufacturer. If we go under the Wild and Scenic designation, we need to make sure things like this are not allowed into the Gila. These people have to be bonded to the hilt to clean up. There seems to be definite collusion among the agencies.”

Dylan said he would like to clarify that he was at the site on Oct. 10 and Oct. 11 and went out with jars and containers to take samples. “As a citizen scientist, I thought they would be analyzed.”

A woman asked if the material is not acutely toxic to aquatic life, could it be cumulatively harmful.

Lemon said the manufacturer tells its ingredients. “We determine whether they are toxic. This asphalt emulsion, we know was not used the way it should have been used.”

Mutchnick said the Heart of the Gila and other environmental groups sent someone down from Jaybird Canyon to Meadow Creek to see how far the material had gone. “For the Forest Service, we know we don’t want this material in the canyon. How do we get it out to make sure it’s not getting to Meadow Creek? Are we going to finish phase 1? How will you monitor it?

Moeny said he had gone as far as Meadow Creek and did not see anything “I will continue to monitor it this winter and spring. We are still active in Phase 1. The EPA, Forest Service and NMED met today. We agree there is still some material. R. Marley will be out again next week or the week after. Some material is not removable. NMED and the Forest Service will determine when Phase 1 is complete.”

Howes said: “We would like 100 percent removal, but that would cause more harm to remove it all.”

A woman said credibility and trust were in short supply. “When did the NM SDs change and why are they different from the first public meeting. VOCs would have been gone immediately and especially after the rain. Why did it take so long to get the booms out? If R. Marley is your contractor, they came out because the public held their feet to the fire. You’re saying they are doing what you would have contracted to have done.”

Lemon said Bearzi had been sending out daily updates. He sent the SDs sheet with the change. “In my first email to R. Marley, I asked them to put out the booms immediately and I dropped the ball to monitor it. The rain would have impacted getting the booms out.”

A woman noted that there are dead animals out there.

“We do not deal with deal animals,” Lemon said. “We have notified the Fish and Wildlife Department.”

A woman said she had a comment about the driver and DPS deciding it wasn’t hazardous. “I’m tired of boys not taking care of our sacred Earth.”

Another woman said the first entire meeting was on different SDs. “Even if you are being honest, it does say on the new sheet that the material is banned in New Jersey, California and Pennsylvania.”

An audience member noted that in one of Bearzi’s update,s the new SDs were listed as a hazardous substance.

Another woman said: “I know we had citizens call the EPA, but nobody called back.”

Guidry said he called back. “I got my first call on Oct. 6. I came out here on Oct. 20. I was talking to R. Marley every day. There are oyster mushrooms that eat hydrocarbons. We could use them to get rid of it.”

A man who said he was the first person on site said he regrets that he did not call Moeny that day. “We’ve been hearing rumors that the decision was determined by funding. We know you agencies are woefully underfunded.”

Mutchnick said she had one more question about the cleanup. “I looked at the stuff the Nick Prince brought. I’m asking the environment department o take more. If we can still pick up bags of goop, why can’t the NMED and Forest Service do the clean up more effectively and get paid back by R. Marley. We appreciate that Elizabeth Toney, Gila National Forest Silver City District Ranger has been steadfast.”

Guidry said by federal law, “we have to let the responsible party, R. Marley do the cleanup. If they don’t do it, then we can step in.”

Lemon said: “For surface water, I would have to talk to my hazardous waste people. R. Marley is under our direction and we’re telling them what to do.”

The original man to speak asked: “If I decided to build a road and my buddy spilled all the material, I would not be happy. Where has NMDOT been in this? I don’t care about the state law and the government.”

A woman asked how many failures would have to happen before the crews were fired. “I’ve made numerous calls. I’ve had employees call. If people keep doing the opposite of what they should when do you determine they aren’t doing it?”

Lemon said: “We are monitoring. Yes, it is slow. John (Moeny) is monitoring. We understand your frustrations. It is up to the responsible party and John is out there every day. Elizabeth and John are telling them what to do.”

Moeny said: “We instructed R. Marley to pick up the material and cast it to the side. We pin-flagged places where it needed to be re-cleaned. R. Marley went back ,and it is being incrementally cleaned and they are making progress.”

A pregnant woman said: “You drive by my house every day. You will keep lying. The initial workers were agricultural workers. How much are they being paid?”

Moeny said he didn’t know how much they were paid.

The same woman said: “If the job is subpar, and the cleanup is not good enough for us, where is the power of the people on this?”

Guidry said the agency cannot access pay records.

Bergman said it sounded like more people had questions. “Should we reconvene?”

Lemon said: “If you want to request another meeting, we will think about it.”

Maez said he had the comment forms and email addresses. “I am always open to the public for questions.”

Bergman instructed anyone with questions and comments to write them down on the forms and Maez would try to reply to them all.