Pamela Digitally signed by

Pamela Jones

Jones Date: 2022.07.12

07:32:29 -06'00'

STATE OF NEW MEXICO

BEFORE THE WATER QUALITY CONTROL COMMISSION

NEW MEXICO ENVIRONMENT DEPARTMENT

WATER PROTECTION DIVISION,
GROUND WATER QUALITY BUREAU,

Corn plain ant,

No. WQCC 22 -(CO)

EL PASO WATER,

Respo iid ent.

REQUEST FOR HEARING AND ANSWER OF RESPONDENT EL PASO WATER

In accordance with 20.1.3.19.A(1)-(2) NMAC, Respondent The El Paso Water Utilities

Public Service Board (“EPWater’) submits this Request for Compliance Order 1-learing and

Answer to the Compliance Order issued by the Ground Water Quality Bureau for alleged

violations of the New Mexico Water Quality Act, NMSA 1978. Sections 74-6-1 to -17 Q’NM

WQA”) and the Ground and Surface Water Protection Regulations. 20.6.2 NMAC (WQCC

Regulations”). Subject to its Denial of Jurisdiction and without waiving EPWater’s ability to

challenge the New Mexico Environmental Department’s (“NMED”) jurisdiction over this matter,

EPWater responds to NMED’s Compliance Order as follows:

Denial of Jurisdiction

EPWater denies that the NMED has jurisdiction or authority over EPWater and denies that

NMED has subject matter jurisdiction over the matters which are the subject of the Administrative

Compliance Order Requiring Compliance and Assessing a Civil Penalty (“Compliance Order’”)

issued by the NMED Ground Water Quality Bureau (“Bureau”). Under controlling law, the “only

state law applicable to an interstate discharge is the law of the State in which the point source is
located,” and the NMED’s statutory claims are preempted by the federal Clean Water Act

(“CWA”), 33 U.S.C. § 1251, et seq. See In re Gold King Mine Release in San ,Jucin Cnty.,

Colorado, on Aug. 5, 2015, No. 1:18-MD-02$24-WJ, 2019 WL 1369349, at **4.5 (D.N.M. Mar.

26. 2019) (emphasis in original) (dismissing the state of Utah’s claims for violations of Utah’s

Water Quality Act because the discharge occurred in Colorado and, accordingly, the CWA

preempted Utah’s statutor claims), citing Arkal?sas Oklcihoma, 503 U.S. 91. 101, 112 S. Ct.

1046, 1054 (1992); Intemnationdil Papery. Onellette, 479 U.S. 481. 493, 107 S.Ct. 805. 812.

I. Request for Compliance Order Hearing.

EPWater hereby requests a hearing on this matter pursuant to NMSA 1978, Section 74-6-

10(G) and 20.1 .3. 1 9.A( 1) NMAC. A copy of the Administrative Compliance Order Requiring

Compliance and Assessing a Civil Penalty is attached hereto as Exhibit A.

II. Answer.

In accordance with 20.1.3.19.A( ), EPWater submits this answer to the Compliance Order

as follows:

A. Response to findings of fact

I. Paragraphs 1 throcigh 4 of the Compliance Order are statements of law which

require no response.

2. Answering paragraph 5, EPWater affirmatively states that under a grant of authority

from the City of El Paso, it is a municipal entity, a water, wastewater and stormwater utility for

the City of El Paso, and a political subdivision of the State of Texas providing water services to

the residents of El Paso County. EPWater further states that the correct name of the utility is El

Paso Water Utilities — Public Service Board. EPWater denies any allegations contained in

paragraph 5 that are inconsistent with EP Water’s affirmative statements.

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 3. Paragraph 6 is a conclusion of law which requires no response. To the extent that

a response is required, EPWater denies paragraph 6.

4. Answering paragraph 7, EPWater admits that it maintains and operates the sewer

collection system and wastewater treatment facilities for the City of El Paso. Texas. EPWater

denies the remaining allegations contained in paragraph 7 and affirmatively states during July and

August of 2021, the City of El Paso experienced a historically severe monsoon season that involved

some of the highest amounts of rainfall in its recorded history that created flooding in the area.

Starting on Attgust 13, 2021, EPWater experienced mciltiple breaks to its Frontera Force Main

wastewater pipelines. In response to this emergency, which threatened the health and safety of

local residents. EPWater made the difficult decision to discharge wastewatet into the Rio Grande

to prevent wastewater from endangering homes, businesses and streets in the area. Beginning on

August 27, 2021, wastewater was directed into the stormwater system via two (2) pump stations

and the flows were discharged via the Keystone Outlet (referred to as the Doniphan Outfall in the

Compliance Order) near the intersection of Doniphan and I-Iillside Drive in El Paso, Texas. At the

time, the Rio Grande River flows were at 500 cubic feet per second e’cfs”) and the EPWater

wastewater flows were estimated at 6-10 cfs.

5. Answering paragraph 8, EPWater admits that wastewater generally contains

contaminants such as the ones listed in paragraph 8, but is without knowledge of the unidentified

exceedances of 20.6.2.3103 NMAC standards alleged in paragraph 8; accordingly, EPWater denies

the remaining allegations contained in paragraph 8.

6. EPWater admits paragraph 9.

7. EPWater denies paragraph 10 and affirmatively states beginning on August 27,

2021, after a break occurred on the Frontera Force Main in an area that had experienced previous

3
breaks, to minimize the impact to residents and businesses in the area, wastewater was directed

into the stonnwater system via two (2) pump stationa, and the flows were discharged via the

Keystone Outlet (referred to as the Doniphan OutfIll in the Compliance Order) near the

intersection of Doniphan and Hillside Drive in El Paso, Texas. At the time, the Rio Grande river

flows were at 500 cfs and the EPWater wastewater flows were estimated at 640 c& EPWater

further affirmatively states that on average the sewer lines carry about 10 million gallons of

wastewater from West El Paso every day.

8. EPWater denies paragraph 11 and affirmatively states that on August 27,2021, the

day of the break necessitating the emergency diversion of wasWwater Denise Pan EPWater

Public Affairs Officer, e-mailed numerous people including New Mexico state employees

informing them of the emergency diversion. See Exhibit B, 8/27/2021 e-mail from D. Parra to

NMED employees including Susan Lucas Kamat, the NMED Program Manager, Point Source

Regulation Section of the NMED Surface Water Quality Bureau. Following the initial notice on

August 27, EPWater voluntary kept NMED apprised of the tatus of the discharge and EPWater’s

remediation and restoration efforts related to same. EPWater continued to voluntarily submit

information to NMED, include NMED in a site visit and including NMED in a progress briefing

that was provided to both the EPA and NMED on February 17,2022. NMED representatives were

also typically copied on (or otherwise provide) the communications involving EPWater, the EPA

the U.S. Army Corps of Engineers and the TCEQ related to the discharge and EPWater’s

remediation efforts and plans.

9. EPWater admits paragraph 12.

10. Answering paragraph 13, EPWater admits that NMED Surface Water Quality

Bureau representatives, including Susan Lucas Kamat attended the El Paso Frontera Force Main

a 4
4 4 4 4
Breaks and Mitigation Sites Tour on November 9, 2021. EPWater is without knowledge of the

unidentified “reported findings” referenced in paragraph 13; accordingly, EPWater denies those

allegations pertaining to the unidentified “reported findings” referenced in paragraph 13. Further

answering paragraph 13, EPWater affinnadvely states that the emergency discharge occurred at

the Keystone Outlet (referred to as the Doniphan Outfall in the Compliance Order) in El Paso,

Texas and that the wastewater travelled downstream from the discharge point EPWater denies

allegations contained in paragraph 13 that an inconsistent with the topography downstream from

the Keystone Outlet

11. EPWater is without knowledge of the allegations contained in paragraph 14;

accordingly, EP denies paragraph 14. EPWater further affirmatively states that it has no

knowledge of any groundwater contamination.

12. Answering paragraph 15, EPWater admits that ft was able to cease diversion of

wastewater on January 11,2022 and affirmatively states that on average the sewer lines carry about

10 million gallons of wastewa from West El Paso every day.

13. Answering paragraph 16, EPWater admits that NMED issued a Notice of Non

Compliance to EPWater on February 7,2022 and affirmatively states that EPWater contacted the

Unites States Environmental Protection Agency (“U.S. EPA”) and NMED Surface Water Quality

Bureau on January 24, 2022 informing the two agencies that EPWater was ready to begin

remediadon activities, that the Texas Commission on Environmental Quality rTCEQ”) did not

require specific authorization top with remediation activities, and inquiring whether either

the U.S. EPA or the NMED required authorization to proceed with remediadon activities. See

Exhibit C, lfllfl2 e-mail from it Rodriguez to S. Lucas Kamat and it Matthews. Instead of

a a
5 a a a
receiving a response to this inquity from NMED, EPWater received the Notice of Non

Compl lance.

14. Answering paragraph 17, EPWater denies that it discharged an estimated 1.1 billion

gallons of untreated wastewater ‘to a dry reach of the Rio Grande in New Mexico.” EPWater

admits the remaining allegations contained in paragraph 17.

15. EPWater denies the allegations contained in paragraph 1$ and affirmatively states

that it substantially complied with all applicable notice requirements governing the emergency

diversion of wastewater necessitated by unforeseen main breaks that wei-e repaired and replaced

with all due speed.

3. Response to Violations

16. EPWater denies the allegations contained in paragraphs 19 through 24 and requests

a hearing to contest both the allegations of the Compliance Order and the penalties set forth in the

Compliance Order and accompanying exhibit.

C. Response to Compliance Order

17. Paragraphs 25 through 30 do not contain factual allegations and therefore require

no answer. EPWater denies that NMED has the authority and jurisdiction to impose the

requirements set forth in these paragraphs. EPWater further affirmatively states that on April 27,

2022, EPWater provided the NMED with a copy of the Pre-Construction Notification for

Nationwide Permit 2$ Verification and Section 1 0 Authorization frontera Force Main Project

that was submitted by EPWater’s rernediation consultant to the United States Army Corps of

Engineers, and the Corps of Engineers’ written approval of the same.

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 D. Response to Civil Penalty

18. EPWater denies that the civil penalties and payment directives set forth in

paragraphs 31-33 are legal. warranted or appropriate under these circumstances.

E. Response to Notice. Notice of Opportunity to Answer and Request a

Hearing. finality of Order. Settlement. Compliance with Other Laws.
Termination

19. The allegations contained in paragraphs 34-49 are administrarive notices regarding

Respondents’ rights and duties in appealing the Compliance Order and require no answer.

Affirmative Defenses

First Defense

EPWater’ s Answer and each denial contained therein constitute EPWater s first defense.

Second Defense

NMED lacks jurisdiction to enforce requirements and impose penalties under the NM

WQA because it is undisputed that the discharge occurred in Texas and NMED lacks the authority

or jurisdiction to regulate activities outside the boundaries of the State of New Mexico or which

are otherwise preempted by federal law. NMED cannot regulate activities that occur within the

sovereign State of Texas, and which are subject to the jurisdiction of Texas, See In i.e Gold King

Mine Relecise in San Juan CnIv., Colorado, 0,’? Aug. 5, 2015, No. 1:18-MD-02824-WJ, 2019 WL

1369349; Arkanscts v. Okicilioma, 503 U.S. 91; International Paper v. Onellette, 479 U.S. 481.

Third Defense

NMED lacks jurisdiction to enforce requirements and impose penalties under the NM

WQA because the discharge occurred into the Rio Grande. a navigable waterway governed by the

federal Clean Water Act. 33 [S.C. § 1251. ci seq.

7
 fourth Defense

NMED lacks authority and jurisdiction to enforce requirements and impose penalties on

EPWater because the NM WQA and the WQCC Regulations are preempted by federal law

pursuant to the Supremacy Clause of the U.S. Constitution. U.S. Const. art. VI, sec. 2. The NM

WQA and WQCC Regulations are preempted by the federal Clean Water Act “CWA”). including

without limitation 33 U.S.C. § 1341. 1342. 1344 and 1319. among others. The Texas

Commission on Environmental Quality (‘TCEQ”) has jurisdiction over the matters made the basis

of the Compliance Order, as delegated by the Environmental Protection Agency e’EPA”) pursuant

to 33 U.S.C. § 1342. The State of New Mexico has not been delegated such authority under the

CWA.

FifTh Defense

EPWater is exempt from the requirements of the WQCC Regulations, including but not

limited to Section 20.6.2.1203, because the activities complained of were made in conformance

with rules, regulations or orders ofa federal agency —the U.S .Army Corps of Engineers— pursuant

to the authority delegated to it under the Clean Water Act, 33 U.S.C. 1344.

Sixth Defense

NMED lacks authority and jurisdiction to enforce requirements and impose penalties on

EPWater because the NM WQA and the WQCC Regulations are preempted by federal law

pursuant to the Dormant Commerce Clatise of the U.S. Constitution. U.S. Const. art. VI, sec. 2.

Seventh Defense

NMED lacks authority and jurisdiction to enforce requirements and impose penalties on

EPWater because of the presumption that prohibits the extraterritorial application of state statutes

8
or regulations outside the borders of the enacting state — the extraterritoriality doctrine, pursuant

to the Dormant Commerce Clause of the U.S. Constitution. U.S. Const. all. Vt, sec. 2.

Eighth Defense

EPWater is immune from enforcement of NM \VQA requirements and imposition of NM

WQA penalties because it is a political subdivision of the State of Texas. EPWater is a department

and component unit of the City of El Paso. As a unit of Texas local government. EPWater is

immune from suit, claims and liability pursuant to the common law doctrines of sovereign and

governmental immunity. The state and its political subdivisions are protected by the common law

doctrines of sovereign and governmental immunity, respectively. Ben Bolt—Palito Blanco C’onsot.

ISD v. Texas Political Sttbdivs. Prop./Cas. Joint Selfhis. Fund, 212 S.W.3d 320, 323-24 (Tex.

2006). Political subdivisions olthe state, including counties, cities and school districts, are entitled

to such immunity —- referred to as governmental immunity -— unless it has been waived clearly and

unambiguously. TEx. Gov’T CODE § 311.034; Ircivis Cent. Appr. Dist. V Norman, 342 S.W.3d

54, 57-58 (Tex. 2011); Reatci Construction Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.

2006); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003). The Texas

Legislature is the only entity with authority to waive that immunity, and the Legislature has

expressed its desire to preserve its interest in managing fiscal matters through the appropriations

process by maintaining sovereign immunity unless it has clearly and unambiguously stated

otherwise. TEX, GOV’T CODE § 311.034. NMED’s Compliance Order does not fall within any

of the Texas Legislature’s waivers of immunity.

Ninth Defense

Complainant fails to allege facts that support a finding of a violation of a requirement,

regulation or water quality standard adopted pursuant to the NM WQA.

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 Tenth Defense

EPWater denies that it is a person” as defined within NMSA 1978. Section 74-6-2 or

within 20.6.2.7(P)(2) NMAC.

Eleventh Defense

By attempting to regulate activities outside of the State of New Mexico through the New

Mexico Water Quality Control Commission Regulations, NMED is seeking to act beyond its

delegated authority. The NM WQA only empowered the New Mexico Water Quality Control

Commission (the “Commission”) to adopt “water quality standards for sui-face and ground waters

of the state” (the State of New Mexico, not the State of Texas). NMSA 197$, Section 74-6-4(D).

Additionally, the Commission could only adopt regulations to “prevent or abate water pollution in

the state or in any specific geographic area, aquifer of the watershed state or in any pall thereof.”

NMSA 1972, Section 74-6-4(E).

Twelfth Defense

Complainant fails to substantiate claims that EPWater violated 20.6.2.3 103 standards.

Vague and unsupported allegations that EPWater violated 20.6.2.3 103 standards: (1) violate due

process and are arbitrary, capricious, and an abuse of discretion; (2) are not supported by

substantial evidence; and (3) are otherwise not in accordance with the law.

Thirteenth Defense

NMED failed to avail itself of the administrative remedies afforded by the \VQA and

TCEQ.

fourteenth Defense

The civil penalties set forth in the Compliance Order exceed the NMED’s statutory

authority and are otherwise not in accordance with law.

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 Fifteenth Defense

The civil penalties set forth in the Compliance Order constitute punitive damages that are

barred by the Constitution of the State of New Mexico. the Constitution of the State of Texas, and

by the Constitution of the United States.

Sixteenth Defense

The civil penalties contained in the Compliance Order are excessive and violate EPWater’s

due process of law.

Seventeenth Defense

The penalties and corrective actions set forth in the Compliance Order are barred by the

doctrine of estoppel.

Eighteenth Defense

Complainant failed to consider EPWater’s cooperation with NMED and EPWater’s good

faith efforts in keeping NMED apprised of the emergency discharge and of its remediation efforts

pursuant to NMSA 1978, Section 74-6-10(D).

AFFIRMATION

The information contained herein is to the best of the undersigned’s knowledge believed to

be true and correct and the undersigned is authorized to sign this Request for Rearing and Answer

on behalf of EPWater.

WHEREFORE. PP Water respectfully requests the NMED grant the following relief:

1. Grant PP Water a Compliance Oider Hearing pursuant to the NM WQA and WQCC

Regulations;

2. Dismiss the Compliance Order;

3. Dismiss the Civil Penalty; and

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 4. Provide such other relief as may be just and reasonable.

Respectfully submitted this 1 1 day of Juiy. 2022.

I-TINKLE SHANOR LEP

is.’ Thomas ii Hnasko
Thomas M. Hnasko
Julie A. Sakura
P.O. Box 2068
Santa Fe, NM 87504-2068
(505) 982-4554
thnasko(thhinklelawfirm.com
j sakura iThinklelawfirrn .com

and

BICKERSTAFF HEATH DELGADO ACOSTA LLP

Steven H. Weller
Gunnar Seaquist
3711 5. MoPac Expressway
Building 1, Suite 300
Austin. TX 78746
(512) 472-8021
swell er(ibickerstatLcom
gseaq uistiicerstaff.com

A ttornevs for Respondent EP Wciter

CERTIFICATE OF SERVICE

I hereby certit’ that on July 11, 2022, a copy of the foregoing Request JOr Hearing and
Ansii’er of Respondent EPiVater was c-mailed to the following:

Andrew Knight
Assistant General Counsel
New Mexico Environment Department
121 Tijeras Avenue NE, Suite 1000
Albuquerque. NM 87102
Andrew.kniehtiLstate.nm.us

‘s’ Thomas Af ilnasko

Thomas M. Hnasko

12
 STATE Of NEW MEXiCO
BEFORE THE WATER QUALITY CONTROL COMMISSION

NEW MEXICO ENVIRONMENT DEPARTMENT

WATER PROTECTION DIVISION,
GROUND WATER QUALITY BUREAU,

Complainant,

v. No. WQCC 22-_ (CO)

EL PASO VATER,

Respondent.

ADMINISTRATIVE COMPLIANCE ORDER

REQUIRING COMPLIANCE AND ASSESSING A CIVIL PENALTY

Pursuant to the New Mexico Water Quality Act (“Act”), NMSA 197$, Sections 74-6-1 to

-17, and the New Mexico Water Quality Control Commission Regulations (“Regulations”),

20.6.2 NMAC, the Director of the Water Protection Division of the New Mexico Environment

Department (“NMED”) issues this Administrative Compliance Order (“Order”) on behalf

of
NMED’s Ground Water Quality Bureau (“Bureau”) to El Paso Water (“Respondent”). The

purpose of this Order is to assess civil penalties for the Respondent’s violations of the Act and

Regulations.

I. FINDINGS OF FACT

1. Pursuant to NMSA 1978, Section 9-7A-4, NMED is an executive agency within

the New Mexico state government. Pursuant to NMSA 1978 Section 74-6-2(K)(1), NMED is
a
constituent agency of the New Mexico Water Quality Control Commission.

2. The Bureau is an organizational unit of NMED within its Water Protection

Division. The Bureau was created pursuant to authority granted under NMSA 1978, Section 9-

Administrative coinptiance Order

EX Fl I B I ELPaso Vater June 2022
11
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Page 1 of 11

A
 7A-6(B)(3).

3. Pursuant to NMSA 1978 Section 74-6-lO(A)(l), when NMED determines that a

person violated or is violating a regulation or permit created pursuant to the Act,

NMED may
issue a compliance order assessing a civil penalty.

4. Pursuant to a delegation of authority from the Secretaiy of NMED, the Director

of
the Water Protection Division of NMED has authority to issue Administrativ
e Compliance
Orders on behalf of the Bureau. NMSA 1978, § 9-7A-6(B)(2).

5. Respondent owns and operates a wastewater utility doing business by the name of

El Paso Water, which operates in El Paso, Texas.

6. Respondent is a “person” as defined in Section 74-6-2(I) of the Act and

20.6.2.7(P)(2) NMAC.

7. Respondent maintains the sewer collections system, wastewater treatment

facilities and is responsible for the treatment and discharge of domestic wastew
ater to multiple
outfalls in the Rio Grande for the City of El Paso, including a temporary discharge
site identified
as the Donaphin Road Outfall which was used to divert untreated sewage from
the failed
Frontera force Main sewer collection infrastructure directly into the Rio Grande
near Sunland
Park, New Mexico, Doña Ana County.

8. The wastewater in the sewer collection system and wastewater treatment faciliti
es
contains water contaminants such as nitrate, chloride, total Kjeldahl nitrogen, and total
dissolved
solids that may exceed the standards of 20.6.2.3103 NMAC.

9. The temporary discharge site is located near the intersection of Doniphan Drive

and Hillside Drive in El Paso, Texas, El Paso County.

10. Due to multiple collection system infrastructure failures and ongoing failed repair

Administrative Compliance Order

El Paso Waler Jwne 2022
—

Page 2 of 11
 attempts, on August 27, 2021, Respondent began diverting approximately ten million gallons per

day of raw, untreated sewage from the inoperative El Paso Frontera Force Main into the Rio

Grande just upstream of Corchesne Bridge at the Doniphan Outfall.

11. El Paso Water did not notify NMED of the unauthorized discharge.

12. El Paso Water reported the discharge to the Texas Commission on Environmental

Quality (TCEQ), United States Environmental Protection Agency (LJ$EPA) and to the

International Boundary and Water Commission (IBWC) stating that the diversion of untreated

wastewater was necessary due to multiple collection system infrastructure failures and ongoing

failed repair attempts made by Respondent.

13. November 9, 2021, NMED Surface Water Quality Bureau representatives (Susan

Lucas Kamat and Davena Crosley) attended the El Paso Frontera force Main Breaks and

Mitigation Sites Tour. The reported findings focused on the reach of the Rio Grande between the

Rio Grande Discharge Point and the recently installed American Dam. El Paso Water was

discharging raw wastewater into the Rio Grande just upstream of Corchesne Bridge at the

Doniphan Outfall. The raw wastewater traveled downstream along the New Mexico-Texas

border for approximately 1.7 miles.

14. The Rio Grande in this reach is most likely a losing stream with the groundwater

level in winter near the discharge site being approximately 15 to 20 feet below ground surface.

Based on the conservatively estimated total volume discharged of 1.1 billion gallons, it is likely

that the untreated wastewater infiltrated the shallow groundwater in this reach.

15. Respondent diverted an estimated ten million gallons per day of untreated

wastewater through the temporary discharge location for 156 days, ceasing the discharge on

January 11, 2022.

A thninistratiwe Coinpilance Order

El Paso Waler mite 2022
—

Page 3 of 11
 16. NMED issued a Notice of Non-Compliance to Respondent on february 7, 2022,

notifying El Paso Water of the violations of the WQA and WQCC regulations.

17. After discharging an estimated LI billion gallons of untreated wastewater without

a permit to a dry reach of the Rio Grande in New Mexico, Respondent provided NMED with
a
briefing and presentation on the discharge and proposed remediation efforts on February
17,
2022.

1$. As of the date of the issuance of this Administrative Compliance Order,

Respondent has not submitted any official notification of an unauthorized discharge or

any
discharge permit application to NMED.

II. VIOLATIONS

19. The Respondent violated 20.6.2.3 104 NMAC by discharging effluent or leachate

from a sewerage so that it may move directly or indirectly into groundwater without a discharge

permit approved by the Bureau.

20. The Respondent violated 20.6.2.1203.A(1) NMAC for failure to orally notify the

Bureau of the discharges of sewage and water contaminants no later than 24 hours after
the
discharge event.

21. The Respondent violated 20.6.2.1203.A(3) NMAC for failure to send written

notification to the Bureau within one week verifying prior oral notification.

22. The Respondent violated 20.6.2.1203.A(5) NMAC for failure to take conective

action to contain and remove or mitigate the damage caused by the discharge as soon as possible

after learning of the discharge.

23. The Respondent violated 20.6.2.l203.A(6) NMAC for failure to consult with the

Bureau and for failure to send the Bureau a written report within fifteen (15) days after learning

Compliance Order
Adininistrailve
ft Paso Water Junc.2022
—

Page 4 of 11
 of the discharge describing the proposed corrective actions or actions already taken relative to

the discharge.

24. The Respondent violated 20.6.2.3106, 20.6.2.31 14.F and Table 2 NMAC by

failing to submit a completed Discharge Pci-mit application for the discharge of untreated sewage

into the Rio Grande, including a $100 filing fee, to the Bureau.

IlL COMPLIANCE ORDER

25. Based upon the foregoing findings and conclusions, Respondent is hereby ordered

to complete the following actions.

26. No later than fifteen (15) calendar days after this Order becomes final, the

Respondent shall send a written report to the Bureau describing any corrective actions taken

and/or to be taken relative to the discharges pursuant to 206.2 1203.A(6) NMAC.

27. NMED may require additional corrective actions if NMED finds that previous

corrective actions are insufficient as specified in WQCC Regulation 20.6.2.1203 NMAC.

28. No later than thirty (30) calendar days afler this Order becomes final, the

Respondent shall submit for Bureau approval an Application for Discharge Permit as specified in

20.6.2.3 106 NMAC. The Respondent must include with the application the appropriate fees

found in 20.6.2.3114 NMAC.

29. All applications, corrective action, work plans, progress reports, other reports, or

other documents or information to be submitted to the Bureau under the terms of this Order shall

be sent to:

Jason Herman
Ground Water Quality Bureau
New Mexico Environment Department
P.O. Box 5469
Santa Fe, New Mexico 87502
(575) 649-3871

.4 thninistrative Compliance Order

El Paso Waler Junc’ 2022
Page 5of11
 30. Failure to comply may subject Respondent to additional civil penalties. Section

74-6-10(F) of the Act authorizes the additional assessment $25,000 for each day of
continued
noncompliance if Respondent fails to submit the plan or evidence of hardship as required
by this
Order.

IV. CIVIL PENALTY

31. Section 74-6-10(C)(2) of the Act authorizes a civil penalty of up to $10,000.00

per day for each violation of a provision of the Act other than those based in Section
74-6-5.
32. NMED hereby assesses a civil penalty in the amount of S 1.284,375.00 for the

violations set forth in Paragraphs 17 through 22. The penalties are based upon the
penalty

calculation narrative attached to this Order. See Attachment].

33. Payment of the civil penalties is due no later than 30 calendar days after this

Order becomes final. The Respondent shall make the payment

by certified or cashier’s check
payable to the State of New Mexico and mailed (certified) or by pre-arranged hand
delivery to
the Bureau at the following address:

Justin D. Ball, Chief

Ground Water Quality Bureau
New Mexico Environment Department
1190 St. Francis Dr., Suite N-2250
Santa Fe, NM $7505
Telephone: 505-231-3773

Written notification of the payment shall also be provided to the following address:

Andrew Knight, Assistant General Counsel

New Mexico Environment Department
121 Tijeras Avenue NE, Ste. 1000
Albuquerque, New Mexico $7102
I’elephone: (505) 470-8215
Email: Andrew.knightstate.nm.us

Ad;niiiistrative Compliaiice Order

El Paso I Voter Jume 2022
—

Page 6 of 11
 V. NOTICE Of OPPORTUNITY TO ANSWER AND REQUEST A HEARING

34. Pursuant to Section 74-6-10(G) of the Act. Respondent has the right to answer

this Order and to request a public hearing.

35. If Respondent: (a) contests any material or legal matter upon which the Order is

based; (b) contends that the amount of the penalties proposed in the Order is inappropriate;
(c)
contends that Respondent is entitled to prevail as a matter of law; or (d) otherwise contests
the
appropriateness of the Order, Respondent may mail or deliver a written Request for Hearing
and
Answer to the Order to the WQCC, at the following address:

Commission Administrator
Water Quality Control Commission
P.O. Box 5469
Santa Fe, NM 87502
Telephone: (505) 827-2425

36. Respondent must file the Request for Hearing and Answer to the Order within 30

days after Respondent’s receipt of the Order.

37. Respondent must attach a copy of this Order to its Request for Hearing and

Answer to the Order.

38. A copy of the Answer and Request for Hearing must also be served on counsel for

NMED at the following address:

Andrew Knight
Assistant General Counsel
New Mexico Environment Department
121 Tijeras Avenue NE, Suite 1000
Albuquerque, New Mexico $7102
Email: Andrew.knightstate.nm.us

39. Respondent’s Answer shall clearly and directly admit, deny, or explain each of

the factual allegations contained in the Order of which Respondent has any knowledge. Where

Respondent has no knowledge of a particular factual allegation, Respondent should so state,

and

Actizzinistrative compliance Order

El Paso Water Juize 222
—

Page 7ofll
 Respondent may deny the allegation on that basis. Any allegation of the Order not specifically

denied shall be deemed admitted. Respondent’s Answer shall also include any affirmative

defenses upon which Respondent intends to rely. Any affirmative defense not asserted in the

Answer, except a defense asserting lack of subject matter jurisdiction, shall be deemed waived.

40. The Water Quality Control Commission’s Adjudicatory Procedures, 20.1.3

NMAC, shall govern the hearing if Respondent requests a hearing.

VI. FINALITY OF ORDER

41. This Order shall become final unless Respondent files a Request for Hearing and

Answer to the Order with the WQCC within 30 days of receipt of this Order.

42. The failure to file an Answer constitutes an admission of all facts alleged in the

Order and a waiver of the right to a hearing under Section 74-6 10(G) of the Act concerning this

Order.

43. Unless Respondent requests a hearing and files an Answer, the penalty proposed

in this Order shall become due and payable without further proceedings within 30 days after

receipt of this Order.

VII. SETTLEMENT

44. Whether or not Respondent requests a hearing and files an Answer, Respondent

may confer with NMED concerning settlement. NMED encourages settlement consistent with

the provisions and objectives of the Act and Regulations. To explore the possibility of settlement

in this matter, Respondent may contact the attorney assigned to this case at the following

address:

Andrew Knight
Assistant General Counsel
New Mexico Enviromrient Department
121 Tijeras Avenue NE, Ste. 1000

,1 tb,ihzisrrative Compliance Order

.El Paso Waler June 2O22
—

Page 8ofl]
 Albuquerque, New Mexico 87102
Phone: (505) 470-8215
Email: Andrew,[email protected]

45. Settlement discussions do not extend the 30-day deadline for filing
of
Respondent’s Request for Hearing and Answer to the Order, nor alter the
deadlines for
compliance with this Order. Settlement discussions may be pursued as an
alternative to and
simultaneously with the hearing proceedings.

46. Respondent may appear at the settlement conference alone or represented

by legal
counsel.

47. Any settlement reached by the parties shall be finalized by written settlem
ent
agreement and a stipulated final order. A settlement agreement and stipula
ted final order must
resolve all issues raised in the Order, must be final and binding all parties to
the Order, and may
not be appealed.

Viii. COMPLIANCE WITH OTHER LAWS AND WAIVER

48. Compliance with the requirements of this Order does not relieve Respondent
of
the obligation to comply with alt other applicable laws and regulations, includ
ing compliance
orders or enforcement actions.

IX. TERMINATION

49. This Order shall terminate when Respondent certifies that all requirements
of this
Order have been met, and NMED has approved such certification, or
when the Secretary
approves a stipulated final order.

A dndnistrative Compliance Order

El Paso Water June 2022
—

Page 9 of 11
J o h n Rh o U eric k DigitaHysignedbyjohnRhouerjck
Date: 2022.06.0910:07:14-0600’
John Rhoderick, Acting Director Date
‘Water Protection Division,
New Mexico Environment Department

Administrative Compliance Order

El Paso lYater Juize 2022
—

PagelO of 11
 CERTIFICATE OF SERVICE

I hereby certify that on June 9, 2022 a true and accurate copy of the Administrative

Compliance Order Requiring Compliance and Assessing a Civil Penalty was served
by certified
mail and email on Respondent at the following address:

John E. Bafliew, President and CEO

El Paso Water
6400 Boeing Dr
El Paso, Texas 79925
ehalliew(epwater.org

Is! Andrew Knirht

Assistant General Counsel
New Mexico Environment Department
121 Tij eras Avenue NE, Ste. 1000
Albuquerque, New Mexico $7102

Administrative compliance Order

• El Paso Water June 2O2
—

Page 11 of 11
PENALTY CALCULATIONS

NMED EXHIBIT 1
 FIRST VIOLATION

20.6.1203 and 20.6.2.3104 NMAC — No Discharge Permit

1, Gravity Based Penalty

a. Potential for Harm

The potential for harm is major.

With respect to environmental harm, the WQCC Regulations, 20.6.2.3104 NMAC,

prohibit any person from causing or allowing effluent or leachate to discharge so that
it may
move directly or indirectly into groundwater unless the person discharges pursuant to a
discharge permit. The discharge of water contaminants without a permit increases the
probability that the discharge will not be managed in a manner that is protective of
groundwater quality and human health. In this case, the Respondents discharged
approximately 10 million gallons per day of domestic waste into a dry reach of the Rio Grande.
With respect to groundwater, the discharge of domestic liquid waste and its effluent or
leachate from sewerage systems typically contains pathogens, ammonia nitrogen and organic
nitrogen. The latter two contaminants readily transform into nitrate as they pass through
the
vadose zone prior to reaching the aquifer. The discharge poses a hazard to public health by
allowing the discharge of domestic liquid waste and its effluent or leachate containing
high
concentrations of pathogens and nitrogen compounds to move directly or indirectly into
groundwater. Because the discharge has the potential to transmit disease and to exceed
the
health-based standard for nitrate, 20.6.2.3103.A NMAC, it poses a significant potential
for
harm.

With respect to regulatory harm, the discharge permit is the primary regulatory
mechanism for protecting groundwater under the WQA. Accordingly, the Respondent’s failure
to comply with this fundamental requirement poses a major harm to the integrity of the
groundwater protection program.

b. Extent of Deviation

The extent of deviation is major. The Department has not been able to issue a
Discharge Permit to the applicant because the Respondent has not filed a Discharge Permit
application.

c. Gravity Based Penalty Assessed

The discharge of water contaminants without a permit violates a regulation adopted

pursuant to the WUA, §74-6-5, and is punishable by a civil penalty not to exceed
$15,000 per
day. Using the appropriate gravity-based penalty matrix, this violation is assessed a civil
penalty of $15,000.
 U. Multi-Day Penalty

August 27, 2021 to January 10, 2022. Maximum of $7,500 for 59 days (day
2 through 60)
and $7,500 for days 61-136 (76 additional days).
• Days 2-60 $442,500
• Days 61-156 = $570,000

2. Adjustment Factors

The Department made an adjustment of 25% upward for the egregiousness

of the
discharge. A discharge of mote than one billion gallons of raw sewage discha
rged to a dry
reach of the New Mexico portion of the Rio Grande causing an unknown
amount of damage.
This unprecedented, egregious discharge has no comparisons in the area
of discharge and
warrants adjustment upward of the fine amount by 25%.

3. Economic Benefit

The economic benefit gained from noncompliance is the amount that

the Respondent
would have spent in order to comply with the discharge permit require
ment, including delayed
costs, such as installing an approvable wastewater treatment system, and
avoided costs, such
as routine sampling. The Department did not calculate economic benefit
.

4. Total Penalty

Gravity Based Penalty $15,000

Multi-Day Penalty $1,012,500
Total Prior to Adjustments $1,027,500
Adjustment Factors (+25%) $256,875
Economic Benefit $0
Total $1,284,375
 From; Denise Prr
To: SteDhen Lopez Becker. Kathryn. NMENV: Gilbert.anaya: Wayne Beizer: Rosalba Montes; Rincon, Carlos; Ii1
Maria Sisneros; Paz. Armpr’dp, NMNV: Javier Guerra; mkhael,mahezdWofsunIandoark-nmoov;
hector.ranosunlendoark-nni,00v; Brent Westmoreland; GUERRERO-)R. SALVADQR GALVAN. GERARDO;
0rs1ieX’ue.QQbm çcaj; JqRamlrp Cados Meza de Ochoc:
paomorno0imasl’iarez,ciob.mx mherrerairrnasiuarez.oob,jnx
crnrypnueLsiAcynpouscyb Lycesl’lemat, Susan, NMENV: Rodriguez, Jorge A.: Ortlz-Wertheim, Bianca.
DHSEJ Cc: Rascón Mer,&ze Luis AntQni; Ramo” Maclas; connoily. Steohen. NMENV; Amends Bowen:
Hamilton, K&ly, DHSEM: Christine t.lontgya; Usa F.Rgndori; Gisela Dagnino; AienShybart GUbeTto:
LailcIe Auqsherosr: John B. Ballew
Subject: Frontera Force Main break
Date: Friday, August 27, 2021 5:26:00 PM
Attachments: Weate water ralesse ooint,oo

Good evening,

In response to your questions, below are the latest developments:

On Friday morning, El Paso Water experienced another break in its Frontera Force Main at a point
near the Frontera Lift station, located at Frontera Road and Doniphan Drive in West El Paso. This is
the same line that has seen other breaks in recent weeks. To minimize the impact to residents and
businesses in the area, crews worked to divert wastewater to El Paso Water property that is adjacent
to the lift station.

From there the wastewater is being directed into the stormwater system, where it will eventually
empty into the Rio Grande. River flows are currently at 500 cfs and EPWater wastewater flows are
estimated at 6-10 cfs. Even with this dilution, EPWater advises the public to avoid contact with river
water.

We estimate repairs may take several days, and we will keep you apprised of any new updates and
developments. Within the last week, EPWater river water treatment plants stopped treating water
for the season. EPWater is communicating with the Texas Commission on Environmental Quality on
this incident.

Attached is a map showing where the wastewater is being released.

Respectful iy,

Denise Parra I Public Affairs Officer

El Peso Water
1154 Hawkins Boulevard I El Peso, TX 79925
(915) 594-5510 Office 1(915) 319-3284 Mobile

EI Bn
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 Ruben Rodrrguez

Frons: Ruben Rodriguez

Sent: Monday, January 24, 2022 911 AM
To: Matthews, Rachel
Cc: Bernier, Roberto: tsparza. David: Smalley, Bryant: kystrom, Thomas: LucasKamat Susan, NMENV, Mansele Montelongo
Subject: RE: Froetera FM Break Ramediatlon Efforts and River Authorization
-

Good morning Ms. Matthews,

I appreciate the information, twill keep yoa posted on any developments.

Bats regards,

Ruben Rodriguez I Environmental Compliance Manager

255 N Lee St. I El Pace, TX 73505
lnsSl sn.t-tiss ralephnr.r I latRi 2ue-tuSn t,tnb:Ie

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From: Matthews, Rachel <[email protected]>

Sent: Monday, January 24, 2022 7:07 AM
Tn: Ruben Rodriguez <[email protected]>
Cc: Bernier, Roberto <[email protected]>: Eupama, David eesparza.davidepo.gov>, Smalley,
Bryant <umaliey.bryuntepa.gova: Nystrom, Thomas
[email protected]; Lucssfiumat, Susan, DIMEN’J eSusan.LucasKamat@Sst
ate.om.un>: tutariselu Montelongo <[email protected]>
Subject: RE: Frontera FM Break Remediation Efforts and River Authorization
-

Good morning,

Thorn ia no process through EPA for approval of remediation. The fedorol process
for approval is to through the US Army Corps of Engineara.
We opprociote you Reaping us updated.

Thank you,

Rachel Marthewa
Manicipal & Industrial Wastewater Section
Enrorcenreet and Compliance Ass’aece Div.
U.S. EPA—Re3icn B (ECDWMI
1201 Elm St. Suite 500
Dallas, TX 75270
12141 65SBSBO

From: Ruben Rodriguez <[email protected]>

Sent: Friday, January 21, 2022 11.03 AM
To: Matttsews, Rachel cMa5thewr,Racy,elepa.govv; Lacasllamat, Susan, NMENV
[email protected]; Marisela Menlelongo
<[email protected]
Sabject: Prantera FM BreakS Remediaben Effarts and River Authorizatio
n
Importance: HiBh

Good morning ladies,

Hope this email finds you all well I wanree to tate this opportunity
Sn update you en our rernediatiuri eftcrts and to reach out to you to inquire about
authorization to begin remediatinn efforts en the Rio Grunde River.

RPwster will beworting diligently with our partners Arcadia, Inc. U.S., the International
Boundary and Water Commission (IBWC) and the El Paso County Water
Improvement District No.1 over the neet fees months to complete clean-up of
the Rio Grands River and the American and Riverside Canals before the start of the
2022 irrigation season which is eapecsed to begin in late May to early lane. We will
also be working svith our partners et Oscar Rendu Contracting end Blue Life
Environmental en clean-up and restoration efforts at the break sites and the
sheeted ponding sites, while moving forward on Phase 2 of oar Frentera Farce
Main replacement prsiect with our partners Jacobs Engineering and Oscar Renda Contracting.

EFWater is working with ear environmental consultant Arcadis on start-up of

remediatien arrd restoration efforts along the first two-mile stretch of the Rio
Grende River. We have also had preliminary cnsrdinatioe discussions with
IBWC staff on the general clean-op procedures, start-up, access, logistics, end other
related ectiaities and they have given us aurhorieatioe to begie these efforts and will
continue to be available for support and guidance on cur rewediaticn plan
moving forward, Arcadis has also reached oat to the US Army Corps of Engineers
and will be submitting the pre-applicetions needed Se access surface waters of
the U.S. such in the Rio Graede, and they have received initial positive feedback
from the USACE Albuquerque District staff who will work to expedite the
approval process given the emergency situation Arcadis will also be requesting ‘e2sz ;_
a riglrt of entry access tsr the portions of the ricer that are within IBWC
jurisdiction.

Additionally, I have received verbal confirmation from Ms. Montelnngo that

EFWater does cot require any specific permittJuuthzrieatiens from TCtQ to proceed
with remediotion effects an tht river, Does EffAlster require any authorization
from EPA cr NMED to proceed y:rth these activilien along the Nesv Mesico
border? I will of course follow-up with a erore details from our remedialionf
restnration plan from ourcoesul:ant Arcadia when it becomer available, bat I
uvonted so reads to you to inquire oboes any authorization procedures yze many
require to przceed. Given our limited window of opportunity, your pronrps
response is greatly appreciated a: we wnald like proceed us soon as possible.
Thank you.
Kind regards,
•
‘
Ruben Rodriguez Environmental Compliance Manager
2tt N. Lee St. I ti Paso, cx 75905
915) 5535772 nelephose 119151238-5510 7.lobie

A5 paso
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 STATE OF NEW MEXICo
BEFORE THE WATER QUALITY CONTROL COMMISSION

NEW MEXICO ENVIRONMENT DEPARTMENT

WATER PROTECTION DIVISION,
GROUND WATER QUALITY BIJREAU,

Complainant,

V.

No. WQCC 22- (CO)

EL PASO WATER,

Respondent.

PRELIMINARY DENIAL OF JURISDICTION

The El Paso Water Utilities — Public Service Board (“EPWater’”) denies that the New

Mexico Environment Department (‘NMED”) has jurisdiction or authority over EPWater and

denies that NMED has subject matter jttrisdiction over the matters which are the subject of the

Administrative Compliance Order Requiting Compliance and Assessing a Civil Penalty

(‘Compliance Order”) issued by the New Mexico Environment Department’s (“NIvIED’) Ground

Water Quality Bureau (“Bureau”). Under controlling law, the “only state law applicable to an

interstate discharge is the law of the State in which the point source is located,” and the NMED’s

statutory claims are preempted by the Federal Clean Water Act (“CWA”), 33 U.S.C. § 1251. ci

seq. See In re Gold King tliine Release in San Juan Cmv., Colorado, Ofl Aug. 5, 2015, No. 1:1 8-

MD-02824-WJ, 2019 WL 1369349, at ‘‘*45 (D.NM. Mar. 26. 2019) (emphasis in original)

(dismissing the state of Utah’s claims for violations of Utah’s Water Quality Act because the

discharge occurred in Colorado and, accordingly, the CWA preempted Utah’s statutory claims).

citing Arkcmsas v. Oklahoma, 503 U.S. 91, 101, 112 S. Ct. 1046, 1054 (1992); International Pciper

v. Ouellette, 479 U.S. 481, 493, 107 S.Ct. 805. 812.

 REQUEST FOR HEARiNG AND ANSWER Of RESPONDENT EL PASO WATER

Subject to its Preliminary Denial of Jurisdiction and without waiving EPWater’s ability to

challenge NMED’s jurisdiction over this matter, EPWater responds to NMED’s Compliance Order

as follows:

In accordance with 20.1 .3.19.A(l)-(2) NMAC, Respondent EPWater submits this Request

for Compliance Order Rearing and Answer to thc Compliance Order issued by NMED’s Ground

Water Quality Bureau for alleged violations of the New Mexico Water Quality Act, NMSA 197$,

Sections 74-6-1 to -17 (“NM WQA”) and the Ground and Surface Water Protection Regulations,

20.6.2 NMAC (“WQCC Regulations”).

I. Request for Compliance Order Hearing.

EPWater hereby requests a hearing on this matter pursuant to NMSA 1978. Section 74-6-

10(G) and 20.1.3.19.A(l) NMAC. A copy oF the Administrative Compliance Order Requiting

Compliance and Assessing a Civil Penalty is attached hereto as Exhibit A.

H. Answer.

In accordance with 20.1.3.19.A(2), EPWater submits this answer to the Compliance Order

as follows:

A. Response to findings of Fact

1. Paragraphs 1 through 4 of the Compliance Order are statements of law which

require no response.

2. Answering paragraph 5, EPWater affirmatively states that under a grant of authority

from the City of El Paso, it is a municipal entity, a water. wastewater and stormwater utility for

the City of El Paso, and a political subdivision of the State of Texas providing water services to

the residents of El Paso County. EPWater further states that the correct name of the utility is El

2
Paso Water Utilities — Public Service Board. EPWater denies any allegations contained in

paragraph 5 that are inconsistent with EPWater’s affirmative statements.

3. Paragraph 6 is a conclusion of law which requires no response. To the extent that

a response is required, EPWater denies paragraph 6.

4. Answering paragraph 7, EPWater admits that it maintains and operates the sewer

collection system and wastewater treatment facilities for the City of El Paso, Texas. EPWater

denies the remaining allegations contained in paragraph 7 and affirmatively states during July and

August of21,the City of El Paso experienced a historically severe monsoon season that involved

some of the highest amounts of rainfitil in its recorded history that creatcd flooding in the area.

Starting on August 13, 2021, EPWater experienced multiple breaks to its Frontem Force Main

wastewaler pipelines. In response to this emergency, which threatened the health and safety of

local residents, EPWater made the difficult decision to discharge wastewater into the Rio Grande

to prevent wastewater from endangering homes, businesses and strects in the area. Beginning on

August 27, 2021, wastewater was directed into the stormwater system via two (2) pump stations

and the flows were discharged via the Keystone Outlet (referred to as the Doniphan Outfall in the

Compliance Order) near the intersection ofDoniphan and Hillside Drive in El Paso, Texas. At the

time, the Rio Grande River flows were at 500 cubic feet per second (“ci’s”) and the EPWater

wastewater flows were estimated at 6-10 cfs.

5. Answering paragraph 8, EPWaWr admits that wastewater contains contaminants

such as the ones listed in paragraphS, but is without knowledge of the unidentified exceedances

of 20.6.2.3 103 NMAC standards alleged in paragraph 8; accordingly, EPWater denies the

remaining allegations contained in paragraph 8.

a a
3 a a a
 6. EPWater denies paragraph 9 and affirmatively states that prior to the emergency

repair of the pipeline breaks and accelerated installation of a new pipeline, wastewater was directed

into the stormwater system via two (2) pump stations and the flows wetc discharged via the

Keystone Outlet (referred to as the Doniphan Outfall in the Compliance Order) near the

intersection of Doniphan and 1-lillside Drive in El Paso, Texas.

7. EPWater denies paragraph 1 0 and affirmatively states beginning on August 27,

2021, after a break occurred on the Frontera Force main in an area that had experienced previous

breaks, to minimize the impact to residents and businesses in the area, wastewater was directed

into the stormwater system via two (2) pump stations, and the flows were discharged via the

Keystone Outlet (referred to as the Doniphan Outfall in the Compliance Order) near the

intersection of Doniphan and Hillside Drive in El Paso, Texas. At the time, the Rio Grande river

flows were at 500 cfs and the EPWater wastewater flows were estimated at 6-10 cfs. EPWater

further affirmatively states that on average the sewer lines carry about 10 million gallons of

wastewater from West El Paso every day.

8. EPWater denies paragraph 11 and affirmatively states that on August 27, 2021, the

clay of the break necessitating the emergency diversion of wastewater. Denise Parra, EPWater

Public Affairs Officer, c-mailed numerous Texas and New Mexico state employees informing

them of the emergency diversion. See Exhibit B, 8/27/2021 e-mail from D. Parra to NMED

employees including Susan Lucas Karnat, the NMED Program Manager, Point Source Regulation

Section of the NMED Surface Water Quality Bureau.

9. EPWaier admits paragraph 12.

10. Answering paragraph 13, EPWater admits that NMED Surface Water Quality

Bureau representatives, including Susan Lucas Kamat. attended the El Paso Frontera Force Main

4
Breaks and Mitigation Sites Tour on November 9, 2021. EPWater is without knowledge of the

unidentified ‘reported findings” referenced in paragraph 13; accordingly, EPWater denies those

allegations pertaining to the unidentified ‘reported findings” referenced in paragraph 13. Further

answering paragraph 13, EPWater affirmatively states that the emergency discharge occurred at

the Keystone Outlet (tefened to as the Doniphan Outfall in the Compliance Order) in El Paso,

Texas and that the wastewater travelled downstream from the discharge point. EPWater denies

allegations contained in paragraph 1 3 that are inconsistent with the topography downstream from

the Keystone Outlet.

Ii. EPWater is without knowledge of the allegations contained in paragraph 14;

accordingly, EP denies paragraph 14. EPWater further affirmatively states that it has no

knowledge of verifiable groundwater contamination.

12. Answering paragraph 15. EPWater admits that it was able to cease diversion of

wastewater on January 11, 2022 and affirmatively states that on average the sewer lines carry about

10 million gallons of wastewater from West El Paso every day.

13. Answering paragraph 16. EPWater admits that NMED issued a Notice of Non

Compliance to EPWater on february 7, 2022 and affirmatively states that EPWater contacted the

Unites States Environmental Protection Agency (“U.S. EPA”) and NMED Sctrface Water Quality

Bureau on January 24. 2022 informing the two agencies that EPWater was ready to begin

remediation activities, the Texas Commission on Environmental Quality (“TCEQ”) did not require

specific authorization to proceed with remediation activities, and inquiring whether either the U.S.

EPA or the NMED required authorization to proceed with remediation activities. See Exhibit C,

1/21/22 e-mail from R. Rodriguez to S. Lucas Kamat and R. Matthews. Instead of receiving a

response to this inquiry from NMED. EPWater received the Notice of Non-Compliance.

5
 14. Answering paragraph 17, EPWater denies that it discharged an estimated 1.1 billion

aallons of untreated wastewater to a dry reach of the Rio Grande in New Mexico.” EPWater

admits the remaining allegations contained in paragraph 17.

15. EPWater denies the allegations contained in paragraph 1$ and affirmatively states

that it substantially complied with all applicable notice requirements governing the emergency

diversion of wastewater necessitated by unfbreseen main breaks that were repaired and replaced

with all due speed.

B. Response to Violations

16. EPWater denies the allegations contained in paragraphs 19 through 24 and requests

a hearing to contest both the allegations of the Compliance Order and the penalties set forth in the

Compliance Order and accompanying exhibit.

C. Response to Compliance Order

17. Paragraphs 25 through 30 do not contain factual allegations and therefore require

no answer. EPWater denies that NMED has the authority and jurisdiction to impose the

requirements set forth in these paragraphs. EPWater further affirmatively states that on April 27,

2022, EPWater provided the NMED with a copy of the Pre-Construction Notification for

Nationwide Permit 28 Verification and Section 1 0 Authorization — Frontera force Main Project

that was submitted by EPWater’s remediation consultant to the United States Army Corps of

Engineers. and the Corps of Engineers’ written approval of the same.

D. Response to Civil Penalty

1$. EPWater denies that the civil penalties and payment directives set forth in

paragraphs 3 1-33 are legal. warranted or appropriate under these circumstances.

6
 E. Response to Notice. Notice of Opportunity to Answer and Request a
Hearing. Finality of Order. Settlement. Compliance with Other Laws.
Termination

19. The allegations contained in paragraphs 34-49 are administrative notices regarding

Respondents’ riehts and duties in appealing the Compliance Order and require no answer.

Affirmative I)cfenses

first Defense

EPWater’s Answer and each denial contained therein constitute EPWater’s first defense.

Second_Defense

NMED lacks jurisdiction to enforce requirements and impose penalties under the NM

WQA because it is undisputed that the discharge occurred in Texas and NMED lacks the authority

or jurisdiction to regulate activities outside the boundaries of the State of New Mexico or which

are otherwise preempted by federal law. NMED cannot regulate activities that occur within the

sovereign State of Texas, and which are subject to the jurisdiction of Texas. See In re Gold King

Mine Release in San ,h,an Cnin, Colorado, on Aug. 5. 2015, No. 1:1 8-MD-02824-WJ, 2019 WL

1369349; Arkansas v. Oklcthonmci, 503 U.S. 91; Jnterncitional Paper v. Ouellette, 479 U.S. 481

Third Defense

NMED lacks jurisdiction to enforce requirements and impose penalties under the NM

WQA because the discharge occurred into the Rio Orande, a navigable waterway governed by the

federal Clean Water Act, 33 U.S.C. § 1251, et seq.

fourth Defense

NMED lacks authority and jurisdiction to enforce requirements and impose penalties on

EPWater because the NM WQA and the WQCC Regulations are preempted by federal law

pursuant to the Supremacy Clause of the IJ,S. Constitution. U.S. Const. art. VI, sec. 2. The NM

7
WQA and WQCC Regulations are preempted by the federal Clean Water Act “C WA”). including

without limitation 33 U.S.C. §S 1341. 1342, 1344 and 1319. among others. The i’exas

Commission on Environmental Quality (‘TCEQ”) has jurisdiction over the matters made the basis

of the Compliance Order, as delegated by the Environmental Protection Agency (“EPA”) pursuant

to 33 U.S.C. § 342. The State of New Mexico has not been delegated such authority cinder the

CWA.

Fifth Defense

EPWater is exempt from the requirements of the WQCC Regulations. inciLiding but not

limited to Section 20.6.2.1203. because the activities complained of were made in conformance

with rules, regulations or orders of a federal agency — the U.S. Army Corps of Engineers — pursuant

to the authority delegated to it under the Clean Water Act, 33 U.S.C. 1344.

Sixth Defense

NMED lacks authority and jurisdiction to enforce recluirements and impose penalties on

EPWater because the NM WQA and the WQCC Regulations are preempted by federal law

pursuant to the Dormant Commerce Clause of the U.S. Constitution. U.S. Const. art. VI, sec. 2.

Seventh Defense

NMED lacks authority and jurisdiction to enforce requirements and impose penalties on

PP Water because of the presumption that prohibits the extraterritorial application of state statutes

or regulations outside the borders of the enacting state — the extraterritoriality doctrine, pursuant

to the Dormant Commerce Clause of the U.S. Constitution. U.S. Const. art. VI. sec. 2.

Eighth Defense

EPWater is immune from enforcement of NM WQA requirements and imposition of NM

WQA penalties because it is a political subdivision of the State ofTexas. EPWater is a department

8
 and component unit of the City of El Paso. As a unit of Texas local government, EPWater is

immune from suit claims and liability pursuant to the common law doctrines of sovereign and

governmental immunity. The state and its political subdivisions are protected by the common law

doctrines of sovereign and governmental immunity, respectively. Ben Bob-PaUlo Blanco ConsoL

L9D v. Ten, Political Subdivs. Prop./Cas. Joint &j/li..t Fund, 212 S.W.3d 320, 323-24 (Tex.

2006). Political subdivisions ofthe state, including counties, cities and school districts, are entitled

to such immunity - referred to as governmental immunity - unless it has been waived clearly and

unambiguously. Tax. Gov’T CODE § 311.034; Travis Cent. Appr 1)1st. V. Norman, 342 S.W.3d

54, 57-58 (Tex. 2011); Reata Construction Corp. v. City ofDallas, 197 S.W.3d 371, 374 (Tcx.

2006); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003). The Texas

Legislature is the only entity with authority to waive that immunity, and the Legislature has

expressed its desire to preserve its interest in managing fiscal matters through the appropriations

process by maintaining sovereign immunity unless it has clearly and unambiguously stated

otherwise. TEX. GOV’T CODE §311.034. NMED’s Compliance Order does not fall within any

of the Texas Legislature’s waivers of immunity.

Ninth Defense

Complainant fails to allege facts that support a finding of a violation of a requirement,

regulation or water quality standard adopted pursuant to the NM WQA.

Tenth Defense

EPWater denies that it is a “person” as defined within NMSA 1978, Section 74-6-2 or

within 20.6.2.7(P)(2) NMAC.

S S S
9 S S S
 Eleventh Defense

By attempting to regulate activities outside of the State of New Mexico through the New

Mexico Water Quality Control Commission Regulations, NMED is seeking to act beyond its

delegated authority. The NM WQA only empowered the New Mexico Water Quality Control

Commission (the “Commission to adopt “water quality standards for surface and ground waters

of the state” (the State ofNew Mexico, not the State of Texas). NMSA 1978, Section 74-64(D).

Additionally, the Commission could only adopt regulations to “prevent or abate water pollution in

the state or in any specific geographic area, aquifer of the watershed state or in any part thereof.”

NMSA 1978, Section 74-64(E).

Twelfth Defense

Complainant fails to substantiate claims that EPWater violated 20.6.2.3 103 standards.

Vague and unsupported allegations that EPWater violated 20.6.2.3 103 standards: (I) violate due

process and are arbitrary, capricious, and an abuse of discretion; (2) are not supported by

substantial evidence; and (3) are otherwise not in accordance with the law.

Thirteenth Defense

NMED failed to avail itself of the administrative remedies afforded by the WQA and

TCEQ.

Fourteenth Defense

The civil penalties set forth in the Compliance Order exceed the NMED’s statutory

authority and are otherwise not in accordance with law.

a a
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a a a
 Fifteenth Defense

The civil penalties set forth in the Compliance Order constitute punitive damages that are

barred by the Constitution of the State of New Mexico. the Constitution of the State of Texas. and

by the Constitution of the United States.

Sixteenth Defense

The civil penalties contained in the Compliance Order are excessive and violate EPWater’s

due process of law.

Seventeenth Defense

The penalties and corrective actions set forth in the Compliance Order arc barred by the

doctrine of estoppel.

Eiuhteenth Defense

Complainant failed to consider EPWater’s cooperation with NMED and F? Water’s good

faith efforts in keeping NMED apprised of the emergency discharge and of its remediation efforts

pLirsuant to NMSA 1978, Section 74-6-10(D).

AFFIRMATION

The information contained herein is to the best of the undersigned’s knowledge believed to

be true and correct and the undersigned is authorized to sign this Request for Hearing and Answer

on behalf of EPWater.

WHEREFORE, EPWater respectfully requests the NMED grant the following relief:

L Grant EPWater a Compliance Order 1-learing pursuant to the NM \VQA and WQCC

Regulations;

2. Dismiss the Compliance Order;

3. Dismiss the Civil Penalty; and

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 4. Provide such other relief as may be just and reasonable.

1th
Respectfully submitted this 1 day of July, 2022.

IIINKLE SHANOR LLP

/5/ Thomas AL Hnasko

Thomas M. Hnasko
Julie A. Sakura
P.O. Box 2068
Santa Fe, NM 87504-2068
(505) 982-4554
thnaskoZihinktelawtirm.com
I saktira(hinklelavfirrni .com

and

BICKERSTAFF HEATH DELGADO ACOSTA LLP

Steven H. Weller
3711 S. MoPac Expressway
Building 1, Suite 300
Austin, TX 78746
(512) 472-8021

A ttorneys /br Re.sponclent ER Water

CERTIFICATE OF SERVICE

I hereby certi that on July 11, 2022. a copy of the foregoing Request/br I-fearing and
Answer ofRespondent ER Water was c-mailed to the following:

Andrew Knight
Assistant General Counsel
New Mexico Environment Department
121 Tijeras Avenue NE, Suite 1000
Albuquerque, NM 87102
Andrcw.kniuhtbstate.nntus

/s’/ Thomas A’! 1-Inasko

Thomas M. 1-Inasko

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