Final decision on asphalt plant on Santa Fe’s South Side expected this summer

A final decision on whether an asphalt company can expand its operations on Santa Fe’s South Side is expected this summer, after community groups appealed the project’s approval by state environmental regulators and hundreds of local residents petitioned Monday for the decision to be overturned.

Associated Asphalt and Materials, LLC in 2019 applied for a permit to consolidate two hot-mix asphalt batch plants and accompanying facilities into one location north of Airport Road on Santa Fe’s South Side, an area with extremely high rates of people living in poverty and without health care.

At a three-day hearing in March 2021 before the state Environment Department, Earth Care members said the permit for the project ignores the health and social impacts of locating multiple polluting industries in the area. They said residents could smell fumes in their homes from industry already nearby, and the expected pollution from the consolidation will adversely impact students.

The department in July 2021 issued the permit to the company, which activists say will violate air quality standards.

Santa Fe-based nonprofit Earth Care New Mexico and the New Mexico Environmental Law Center in August 2021 appealed the permit, arguing that it will disproportionately impact the communities and residents in the area.

The state Environmental Improvement Board will ultimately decide the outcome of the appeal.

Most of those signatures came from people who live near the proposed consolidation site, said Domenica Nieto, a project assistant with Earth Care, during a virtual community meeting on Tuesday night.

“Each signatory represents a household, family members, loved ones whose interests are at stake, and that is a substantial number of people in our community that support the appeal and oppose the permit,” Nieto said. “It is clear that the community is asking for the reversal of the NMED decision and reconsideration based on more stringent air quality standards and more appropriate data.”

Health equity and environmental justice are the community’s priorities, Nieto said. She testified to the board that they are concerned about environmental racism.

More and more businesses are coming to the South Side, she testified, which is the most densely populated part of the city and is home to the greatest number of youth, low-income and immigrant families.

“Our community is already the most impacted by COVID, and now we may see increased rates of asthma and other diseases in our children,” Nieto told the board. Her group doesn’t believe that the permit addresses human and environmental concerns or current U.S. Environmental Protection Agency standards.

The community organizations argue that the permit uses a definition of ambient air quality that is contrary to law, and it’s a deficient model of air dispersion that violates state and federal air quality standards.

The department responded in September that the community groups “raise no grounds on which the board could reasonably reverse the department’s decision” and that the asphalt company and the state “adhere to all legal and regulatory requirements” to issue the permit.

The department argued that its definition of ambient air is reasonable and in line with EPA rules, and that the air dispersion modeling used in the permit is appropriate and lawful. It characterized the community’s objections as “without legal merit,” saying they are “rooted in an aspirational interpretation of the law and flawed data.”

The department wrote that the community’s objections are “little more than a string of unsupported allegations” that provide no reason for the board to overturn its decision.

Maslyn Locke, a staff attorney with the New Mexico Environmental Law Center, said the department “really did a lot of gymnastics to explain away some issues that existed in their air dispersion modeling that were either contrary to law or can’t be verified, really, by anybody.”

Based on the company’s permit application, the department can’t reasonably say they actually know what the facility will be emitting, she said.

“We know they’re emitting a lot of air pollution that’s harmful to public health, but we don’t know in what quantity that’s going to be emitted,” she said.

Attorneys filed their closing arguments with the board at the end of the day on Monday. They expect a decision probably some time around July at the earliest, Locke said.

Spanish speakers discouraged from commenting

Earth Care’s appeal also alleges that during the March 2021 hearings that led to the permit, the department violated federal civil rights law because they did not provide interpreters for people who do not speak English.

The Environmental Law Center has filed a complaint with the EPA Civil Rights Compliance Office, Locke said. As of Wednesday, the office had not posted the complaint online.

The appeal states that the department’s hearing officer decided to move forward with the hearing even though the interpretation for people who can’t or don’t speak English was not ready, and alleges that this “violated limited English proficient community members’ right to meaningfully participate in the hearing.”

Miguel Acosta, a co-director at Earth Care, said other Spanish speakers decided to not participate and not present their public comment when they saw what happened at the hearing.

Locke said the department treated community members “quite poorly in the way that they handled the entire hearing.”

The state countered by arguing that there were Spanish interpreters present at the hearings in-person and on Zoom. It also dismissed the community’s concerns about civil rights violations by saying the board doesn’t have authority over them.

“Contrary to what petitioners claim, at no time did the hearing officer deny the community member an opportunity to participate, nor did the hearing officer deny any participant an interpreter or force anyone to speak in English,” the department wrote. “Rather, the hearing officer took the time to work out any technical issues in order to ensure that the community members could fully participate in the language they preferred.”

After three years of resistance to the asphalt project, multiple paths forward may develop, Nieto said. One path may continue to be through the courts. Another may be a political path that targets local government. Another may be a public health approach. Input from their community members, she said, will determine which gets priority at any point.