Gwynne Ann Unruh is an award-winning reporter formerly of the Alamosa Valley Courier, an independent paper in southern Colorado. She covers the environment for The Paper.

Photo Cred: Erika Burke volunteer

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Correction: This story has been corrected to state that Jay Bird Canyon runs into Sapillo Creek, not into Sappy Oak Creek.

Be forewarned. If you mess with the Gila River in southern New Mexico, a wall of community members and organizations stand ready to defend their beloved waters. The Gila River Festival, now in its 18th year, exemplifies the commitment that Gila River communities pledge to the river and its tributaries on their wild journey across the state.        

An alleged series of failures by the State Police and the state Transportation Dept. to properly report and respond to an asphalt emulsion spill in the Gila National Forest has angered community members. The spill has been slowly draining into a steep canyon that feeds tributaries of the Gila River with runoff water. When a community member saw that eight days after the spill there was still no cleanup happening, he recruited volunteers to start the cleanup.

On Sept. 26 a tanker owned by trucking contractor R. Marley, LLC overturned on State Hwy. 15 approximately 20 miles north of Silver City in the Gila National Forest. According to the State Police report, the tanker was hanging off a cliff and the tanker trailer was leaking asphalt emulsion down the steep cliff into Jay Bird Canyon. There were no injuries and the driver told the police the fluid was not hazmat material. Jay Bird Canyon runs into Meadow Creek, which is a tributary to Sapillo Creek, a tributary to the Gila River. A trout reintroduction recently has been done in Sapillo Creek. The area of the spill is one of the most botanically diverse in the Gila National Forest and a popular recreation area.

The Paper. spoke with Allyson Siwik, Executive Director of the Gila Resources Information Project, to understand the significance of the spill and the community’s response to the incident. According to Siwik, eight days after the accident with the tanker occurred, community member Geronimo Cassidy drove by the site and saw black goo everywhere running down into Jay Bird Canyon. Cassidy raised the alarm with locals and began organizing volunteers who started cleaning up the nearly 2,000-gallon asphalt emulsion spill themselves and putting it into bags.

“We had concerns about emulsion impacting water quality, which in turn could impact this threatened trout species and the whole aquatic ecosystem,” Siwik said.

Leaders of four Grant County-based environmental advocacy organizations wrote to the State Police and Dept. of Transportation demanding investigations into, and accountability for, the lack of reporting of the environmental incident.

“We are grateful to the volunteers who raised the alarm and have been out there cleaning up the residue-covered soils. It demonstrates how much the Gila means to so many people in this community,” said Patrice Mutchnick, Director of Heart of the Gila.

The asphalt emulsion spilled contained 50- 75 percent asphalt, 30-50 percent water and less than 1 percent of hydrochloric acid. Asphalt emulsion is not listed as a hazardous material. Asphalt itself has a Hazard Class 3 – 1999 rating. Polycyclic aromatic hydrocarbons (PAH) are present in asphalt structure, which also contains toxic elements such as benzene, toluene, nitric and carbonic acid, benzo(a)pyrene, formaldehyde, carbon monoxide, nitrogen dioxide, sulphur dioxide and hydrogen sulphide. Health effects from exposure to asphalt fumes include headache, skin rash, sensitization, fatigue, reduced appetite, throat and eye irritation, cough and skin cancer.

The environmental organizations also wrote to the New Mexico Environment Dept. and the U.S. Forest Service – Gila National Forest, urging them to take appropriate enforcement action and to carefully coordinate the cleanup of the spill and long-term restoration of the area. In addition to demanding public transparency around reporting and responding to failures, they requested monitoring, oversight and reliable public information from the New Mexico Environment Department (NMED).

Siwik said R. Marley, the trucking company responsible for the spill, held a three-hour public meeting which became very emotional as there were several discrepancies between what the trucking company reports said about the clean up and what the community volunteers were reporting.

“My request is that you (R. Marley consultant James Bearzi) further vet your information before you send it out in an email as a blast to our senators, congressmen, or whoever it is,” Silver City resident and volunteer Cecilia Marie said. “It is dampening our volunteer efforts — saying that there’s more people out there than there really is, saying that the check dams are natural when our team built them, that your teams are professional but they are people wearing trash bags as rain ponchos and don’t have gloves. It wasn’t a question,” she continued. “It was a request to please tell the truth.”

“We do not believe they (NMED) are responsible for the long delay in starting cleanup,” said Donna Stevens, executive director of the Upper Gila Watershed Alliance. “But we need them to commit adequate personnel and resources to ensure the private contractor does a good job to ensure the area is remediated and restored adequately and, if not, call on the state to intervene.” 

Community organizations had not had any contact from the state agencies and the Gila National Forest on their oversight of the cleanup prior to the meeting, which created additional anger and distrust of the state and federal agencies that have responsibility for environmental spills.

In addition to representatives of the trucking company, the meeting included staff from the New Mexico Environment Dept., New Mexico State Police, the U.S. Forest Service and the New Mexico Dept. of Transportation. The state representatives observed but did not participate in the meeting. The meeting was hosted by the trucking company and Bearzi made it clear that other agencies would have to host their own meetings and were not there to speak.

Under the New Mexico Water Quality Act, there is a 24 hour window to report a spill of toxic material or any kind of contaminant. R. Marley has admitted they were wrong and should have reported the spill, saying they were under the impression it was being taken care of by the State Police; however, the State Police did not report the spill to any environmental agency. The driver of the truck stated to the police that the black fluid leaking down the cliff into the canyon was asphalt material and was not hazardous. It was treated as an accident, not an environmental spill. There were no Hazmat signs visible on the tanker.

Remediation Efforts

On Oct. 6, R. Marley contractors deployed the first few workers to begin cleanup efforts. The terrain of Jaybird Canyon is very steep and, to preserve forest resources, mechanized equipment is not being used. Removal of the asphalt emulsion, earth materials and vegetation the emulsion is adhered to is being done by hand in 5-gallon buckets. Dime-sized particles of the emulsion have been found a mile downstream from the release site. Recent rainfall has created high runoff waters in the canyon and is hindering the cleanup process. Community volunteers continue to work at the spill site alongside the workers R Malley has hired. NMED is monitoring the remediation.

Ironically, the driver of the tanker was scheduled to meet a DOT crew working on a chip repair near Pinos Altos. Due to weather conditions, the delivery of the asphalt emulsion was canceled. However, the driver did not get the message due to lack of cell phone service and kept driving into the narrow winding forest highway looking for the DOT crew. R Marley stated that equipping their drivers with satellite phones was cost prohibitive.

NMED has issued a Notice of Noncompliance to R. Marley, LLC for failing to notify the department that approximately 2,000 gallons of asphalt emulsion was released into Jay Bird Canyon on Monday, Sept. 26, when their truck overturned in the Gila National Forest. NMED’s NONC also covers noncompliance related to disposal of refuse in a watercourse. NMED is holding R. Marley, LLC accountable for their failure to report that caused an eight-day delay in official clean-up response. NMED anticipates additional compliance and enforcement measures associated with this spill in the future. Violations of State water quality standards can lead to penalties under the New Mexico Water Quality Act. Section 74-6-10 NMSA 1978.

Since the spill, NMED Incident Response personnel are engaging with both the New Mexico Department of Transportation and the New Mexico Department of Public Safety to update their standard operating procedures regarding spills on the roadways of New Mexico to prevent unreported spills in the future. The state’s Hazardous Material Emergency Response Plan is scheduled for an update by the Hazardous Materials Safety Board in the coming months. NMED’s Surface Water Quality Bureau (SWQB) will sample the material remaining inside the tanker and analyze it to identify the composition of material that entered the stream and help target water quality analysis post clean-up to confirm or refute that no further actions are required.