As Governor Touts New Mexico’s Successes on Climate Change, Why Such a Low Bar to Control Harmful Levels of Fugitive Dust?

(This is Part Two of a Continuing Series on the Administration of Environmental Policy in New Mexico.)

Not many New Mexicans doubt that Governor Michelle Lujan Grisham is breaking critically significant ground relating to climate change.

That’s why President Biden and Special Presidential Envoy for Climate John Kerry invited her to speak at the 2021 Earth Day Summit on Climate last week.

She was clearly “talking the talk” … Innovation, Ambitious Standards, Accountability, and Leadership.

The message was clear: New Mexico was a leader in finding ways to deal with environmental problems.

Unfortunately, a few hours after her appearance with world leaders of climate change, her Environmental Department was distancing itself from “walking the walk” to protect against a local environmental problem which has been wreaking havoc for months endangering the health and safety of a community of several hundred senior citizens.

The problem – Fugitive dust from a construction site where the developer removed vegetation from hundreds of acres of land raising levels of fugitive dust and threatening the respiratory systems of residents – some already enduring COPD – and reducing the quality of their daily lives.

Despite Hundreds of Complaints Regarding Fugitive Dust Related Health Issues, New Mexico’s Environment Department (NMED) Side-steps the Problem.

In response to a request from The Candle for a statement regarding the status of actions the NMED’s Air Quality Bureau had taken, or contemplated taking, regarding the severe dust issues affecting these older and vulnerable residents, a NMED spokeswoman wrote NMED does not regulate fugitive dust emissions at construction sites.”

(Photo above of driveway in Jubilee neighborhood impacted by excessive dust resulting from the denuding of vegetation of about 270 acres for the “Legacy at Sierra Vista” development of Double M. Properties.)

NMED’s communications director Maddy Hayden also wrote, as reported in The Candle in an earlier report, that NMED takes all citizens complaints seriously, and “Local ordinances, to the extent they exist, are the governing regulatory mechanism that would establish such requirements.”

Hundreds of residents of Jubilee at Los Lunas signed petitions, wrote to local and state officials as well as one of their U.S. Senators regarding the health and property damage they have experienced since Double M. Properties scraped all the vegetation off about 300 acres of land it wants to develop as “Legacy at Sierra Vista.”

But the development moves on, while abatement of fugitive dust remains unmet.

These Residents, many in their 70’s and older, are frustrated and exhausted.

Residents – constituents of elected officials like the local mayor, councilors and the local magistrate – are frustrated by the inaction of the local government and municipal court in Los Lunas to hold the developer accountable for the careless and avoidable act of stripping so much land at one time.

And they are extremely exhausted, some literally losing their breath, as state government acquiesces, passing the buck to local and federal officials – despite a state law which mandates that New Mexico Environmental Improvement Board (EIB) create air quality regulations, and that the NMED enforce those regulations (more on that in the next installment of this series).

According to records received by The Candle through an Inspection of Public Records request, these constituents have even reached out to their Governor.

Judith Rosenstein, a retired attorney, forwarded a message she wrote to NMED along to the Governor’s on-line “Need Assistance From The Governor” webpage in early March:

“…I am writing to express the concern & disappointment we are experiencing as a result of how our serious health & environmental complaints have been dealt with by the Village of Los Lunas and the developer

” … I realize you have seen photographs & videos of the blowing dust & its consequences. All I can say is that they do not fully inform the viewer of the harsh reality of those consequences on a group of older people. I understand that your agency will soon be meeting with the developer about Sierra Vista and that the meeting is not public …”

” … We feel betrayed, as we keep hearing contradictory statements from various owners and employees of the developer as well as Village staff. We are anxious to have an open discussion with the State about the health and safety of the residents and the environmental damage the developer has allowed.”

Scores of complaints have been filed on the the New Mexico Environment Department’s webpage with residents clicking a big button that reads “REPORT AN ENVIRONMENTAL ISSUE OR INCIDENT”.

When you get to that page there is a list of questions, along with a guiding headline that says: “Please be ready with as much information as possible.”

For months, Jubilee residents have added information along with their complaints on that site.

Like this one, filed on November 24, 2020:

“Issue involves significant dust blowing from stripped acreage by a real estate developer, Sierra Vista Property Development Co.. Dust is contaminating adjacent over-55 adult community (Jubilee at Los Lunas) creating issues including frequent clean-up measures, potential damage to outside air conditioning units and other equipment of the Jubilee homes, health concerns for senior residents and the negative impact on property values of neighboring community due to grading problems from the developer. Situation has occurred several times in recent weeks after developer’s actions of massive earth movement. To date, developer has taken minimal steps to control the dust blowing issue, with any efforts taken having proven largely unsuccessful.”

And, this one filed five months later, on April 18, 20214/18/2021:

“Dust Storms and the related issues ( air quality, health, cleanup, landscaping effects HVAC repair costs etc). The flour sand comes through closed doors, windows, ceiling fans, chimneys to constantly cover our floors and furniture indoors, too. We have allergies and an autoimmune disease so we are now constantly coughing. Our quality of life is greatly reduced. We are 73 years old and can’t continue this level of cleanup necessary to live in our home and outdoor areas. Pounds of flour sand swept up after every dust storm for months now!”

Yet, as the Governor takes the World Stage on Climate Change, a looming question: Why doesn’t her Environment Department regulate Fugitive Dust throughout New Mexico?

Last week, after The Candle reported we had asked follow-up questions regarding NMED’s statement that it did not regulate fugitive dust at construction sites, we received the following additional response from NMED’s communications director:

The Candle’s Question: Why doesn’t NMED regulate such air quality problems?

NMED’s Response: “Both the federal Clean Air Act and state Air Quality Control Act target stationary sources (equipment, operations, and processes) of air pollution in their programs. These are typically factories, industrial sources, power plants, etc.  Neither act has specific requirements for windblown dust from construction sites. Windblown dust from construction sites are intermittent in nature and typically caused by high wind events. These types of emissions are normally regulated by counties and cities in local ordinances, which cover nuisance issues, such as odors, noise, and minimizing dust from parking lots, construction sites, and unpaved roads.”

The Candle’s Question: If local government fails to address what is an increasingly dangerous situation for residences, especially for residents that suffer from respiratory problems, does NMED have any extraordinary jurisdictional ability to protect the public?

NMED’s Response: “No, NMED does not have additional jurisdictional ability to require controls at facilities beyond what is required under the state or federal act.

The Candle’s Question: What about the federal rules on air quality? Can NMED coordinate with any federal agency?

NMED’s Response: The Air Quality Bureau looked at both state and federal air quality regulations before making this determination.

Aside from the Air Quality Bureau, our Surface Water Quality Bureau and the U.S. Environmental Protection Agency (EPA) are also involved at this site and have coordinated extensively on this issue.

“The EPA administers the National Pollutant Discharge Eliminations System (NPDES) program in the state of New Mexico, including the Construction General Permit for stormwater discharges related to construction activities. These permits generally require some amount of dust controls to be in place. The Bureau audited the site and forwarded site conditions and concerns to EPA. EPA is currently investigating whether any action related to stormwater permit infractions may be warranted.

From those responses, it is clear the best the state has done for the senior citizens of Jubilee is to pass the buck to the local government of the Village of Los Lunas the federal government’s Environmental Protections Agency (EPA).

However, after poking around the state statutes establishing the New Mexico Environment Department, the Environmental Improvement Board, the Secretary of NMED, and the related rules and regulations spawned from the state law, the responses seem more like a carefully crafted way to dodge any criticism for not adequately addressing a serious problem.

To be more accurate, and contrary to the impression given by the NMED response above, New Mexico does regulate fugitive dust.

But, apparently, the state’s Environmental Improvement Board decided it depends on where you live as to whether you get the protections of the regulation.

More on that point in Part Three, as The Candle will provide a more detailed analysis of the responsibilities of the state’s environmental brain trust, as well as reporting on responses from the Village of Los Lunas and communications The Candle discovered between NMED, EPA and the developer Double M. Properties’ agents.

Meanwhile, the residents of Jubilee, and others concerned about the health, safety and property problems resulting from the NMED unregulated excavation at Legacy at Sierra Vista development, can register their complaints and concerns directly to Governor Lujan Grisham by clicking on the following title to link to the Governor’s “Need assistance From The Governor” official on-line form.

It’s your government, so don’t be hesitant to petition it.

The First Amendment of the United States Constitution guarantees the right of citizens to to petition their government.   

(For earlier reporting, click here to read previously posted article entitled: For Jubilee Residents It’s a Matter of Life and Breath. But for NMED, This Fugitive Dust Is Not Its Problem.)

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