Home Care In Dona Ana, NM

LAS CRUCES, N.M. (CBS4) — A second district attorney's office in New Mexico has now provided CBS4 with information the Dona Ana County DA refuses to release.

This is a story CBS4 has been following since October when people came to CBS4 with concerns that their cases were dropped abruptly only to be re-filed.

CBS4 filed an inspection of public records requests with DA Gerald Byers's office to find out how many cases were dismissed in the past year.

However, Byers stands by his word that he cannot provide that information without breaking the law.

Something former DA Amy Orlando said is not the case.

"He's hiding that information. If you weren't, you would be transparent as is the DA and Albuquerque and then Scott Key in Alamogordo," Orlando said.

CBS4's initial request to find out how many cases Byers's office had dropped was denied because he said his office does not keep those records.

RELATED: Doña Ana District Attorney's Office appears to drop, refile cases without explanation

Both the 2nd and 12th Judicial District Attorney's office did have those records and handed them over to CBS4 without hesitation.

"That is what he is expected to do just as the DAs in Albuquerque did and just as the DA in Alamogordo did. You make a printout of those cases and hand it over," Orlando said.

CBS4 asked Byers why we would not be able to provide a list of dismissed cases similar to the other two DA's offices.

Byers sent back a statement saying it would be against the law for him to create a new public record.

As a New Mexico State Government office, we abide by the New Mexico Inspection of Public Records Act. The statutory responsibilities of IPRA are clearly defined by New Mexico Law. My office supports all requests to provide access to information about governmental affairs. Our records custodian has responded readily and has provided and answered all queries that follow legal procedure. Our response to KFOX IPRA request is under VII. Section 14-2-8, Procedure for requesting Records (B.) Nothing in the Inspection of Public Records Act shall be construed to require a public body to create a public record. We cannot create a public record, by law. The request by your station invites us to violate the law - which we will not do.
– Third Judicial District Attorney Gerald Byers.

RELATED: Dona Ana DA denies record request on case dismissals, Bernalillo County readily shares

However, Orlando said that is not how public records requests work.

"They can't just say because I don't have that copy sitting on my desk already. I don't have to turn it over. It's in my possession. I have to create it for you," Orlando said.

Which is exactly what the DA in Alamogordo, Scot Key, did.

In a statement, Key told CBS4:

We executed a query within our case management system to retrieve data on all cases resolved in the past 12 months. Subsequently, we extracted the results into an Excel spreadsheet to filter cases marked with the NP and DM disposition codes, which signify cases that were dismissed.

CBS4 tried to get answers from DA Byers in Dona Ana County.

However, Byer's office did not answer phone calls or emails.

Byer's secretary said an appointment must be scheduled ahead of time, which is what CBS4 has tried to do.

His spokesperson, Roxanne Garcia McElmell, told CBS4 the DA is "a busy man."

She also said we would have to send over questions in advance as well as the expected time it would take to interview him.

McElmell told CBS4 she would look at his calendar and let us know when he would be available.

Meantime, CBS4 filed open records requests with the remaining 10 DAs in New Mexico to find out if they too have the records we are looking for.

RELATED: District Attorney clarifies reasons behind case dismissals in Doña Ana County

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New Mexico Environment Department identifies 58 ‘significant deficiencies’ in Camino Real Regional Utility Authority management and operations.

New Mexico environmental officials issued an unusual report Friday, detailing their findings into the cause of an “uncommon” water quality issue at a Doña Ana county water utility from December.

While the report identified issues that caused high pH sent to homes at the end of 2023, it also listed dozens of serious defects that could affect the water system’s daily operations, including concerns leading to “high levels of arsenic” being sent to customers.

From the plant to the tap

The Camino Real Regional Utility Authority (CRRUA) provides water and wastewater for border communities Sunland Park and Santa Teresa. According to state officials, more than 19,000 people rely on the utility for water and sewer services, up from an estimate of 17,000 people previously provided by the New Mexico Environment Department.

Source NM previously reported on the utility’s issuance of a “do not drink” order after a high pH issue affected more than 1,000 homes. We also reported on utility officials’ knowledge of the issue in the days before the order.

State environment officials said the preliminary cause of high pH was caustic soda, a chemical after treatments are done removing the naturally occurring high levels of arsenic from drinking water.

Most recently, we reported on state environmental agency notices that CRRUA sent “high levels of arsenic” to customers over the past year, without notifying the state or the public, and the utility’s response.

The 132-page report is broken into two sections. It leads with documents that show how “systematic failures by management” led to a multi-day “do not drink” order for about 1,000 households in early December 2023.

In a press release, the New Mexico Environment Department said utility management and staff had several key failures causing water with an “extremely high” pH to be sent to customers.

State environment inspectors concluded that a pH sensor malfunction, combined with a failure of utility staff to recognize the water treatment failure led to too much caustic soda entering the treatment process, and raising the pH levels of water.

The agency also said the utility failed to look into customer complaints in the days before the order, failed to test monitoring equipment and did not inform the public that facilities used to treat arsenic were offline “periodically over the past year.”

“While many of New Mexico’s water utilities face challenges from lack of staff, funding, and the changing climate, our investigation identified that CRRUA failed at multiple levels and showed a disregard for operating under basic state and federal regulations,” said Drinking Water Bureau head Joe Martinez.

JC Crosby, the interim director for Camino Real Regional Utility Authority, did not respond to texts, emails or voicemails left on Friday.

Water utilities have a “legal and moral obligation” to provide safe drinking water, said John Rhoderick, who directs the Water Protection Division at the New Mexico Environment Department.

“CRRUA repeatedly failed to follow basic protocols in water management, implement safeguards to ensure compliance, and inform their customers when they fell short,” Rhoderick said in the statement.

A sanitary survey of CRRUA operations on two consecutive days beginning Dec. 5 makes up the second portion of the report. It notes that the utility had 58 “significant deficiencies” that are causing or might pose potential threats to public health.

Staff concerns, such as an operator in charge “was not familiar with the arsenic treatment process,” or that staff were not trained on drinking water regulations, are highlighted in the report.

Facility and management issues were also noted.

Some deficiencies include a lack of alarms or automatic shutdowns for when treatment chemicals are out of acceptable range, no emergency plans, and leaks in treatment chemical storage tanks.

Previously, the water utility’s seven-member governing board promised to schedule a public hearing after the release of state investigation. No meetings are currently posted on the Camino Real Regional Utility Authority website.

The utility may face fines from the state in the future, if it fails to meet deadlines set by the agency, said Matt Maez, a spokesperson for the New Mexico Environment Department.

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Findings from the high pH investigation

State environment inspectors provided additional details about the December water quality incident, including a timeline and narrative. It reinforced the preliminary cause that the utility added too much caustic soda during treatment.

Officials met Camino Real Regional Utility Authority staff at the Santa Teresa Industrial Park Arsenic Treatment Plant on Saturday, Dec. 2, just 24 hours after the “do not drink” order was issued.

That plant has several wells that provide drinking water for the community, and is supposed to be disinfected using chlorine and have arsenic removed, the report said.

Geology in the area causes arsenic to be concentrated in groundwater at higher amounts than allowed by federal drinking water standards (10 parts per billion), according to the utility.

The Santa Teresa Industrial Park Arsenic Treatment Plant is able to treat up to 4.5 million gallons of water daily.

Part of that process, the report said, is injecting sulfuric acid into the water high in arsenic, causing a reaction, and eventually allowing another process to filter arsenic out. After the arsenic removal, caustic soda is added to neutralize the water and raise the pH before it’s sent to storage tanks, and eventually, customers.

New Mexico Environment Department inspectors found as much as 1,484 gallons of caustic soda may have been injected into the water supply, causing the high pH levels, which were at levels that were unsafe to drink, bathe in or wash dishes.

“NMED staff were unable to calculate the exact amount of caustic soda injection due to the lack of monitoring, process control and recordkeeping by CRRUA operations staff,” investigators wrote.

The probe, which helps detect pH levels of treated water, could have failed as early as Nov. 21, investigators said. Readings are attached to the report that show significantly abnormal pH levels.

“The pH sensor displaying a negative value should have indicated a treatment failure to CRRUA operations staff,” the report stated.

Additionally, state environment officials concluded the utility “also failed to fully investigate complaints from customers” who had alerted Camino Real Regional Utility Authority to “slimy water” as early as Nov. 28.

Caustic soda can cause a “soapy” or “slick” feeling to the touch, according to the report, potentially explaining the complaints from customers.

58 significant deficiencies

State officials said the utility needs to immediately address dozens of shortfalls in operation and management across the entire Camino Real Regional Utility Authority.

Immediate corrections included training the operator on arsenic treatment and required checks of chemical-testing equipment.

Investigators said that Camino Real Regional Utility Authority must provide arsenic treatment and documentation by no later than Dec. 31, 2023.

It’s unclear if CRRUA has provided documentation to address these deficiencies from the report.

“At the time of the sanitary survey, three of four arsenic treatment plants were intentionally bypassed, allowing untreated water into the distribution system,” the report said.

State officials say CRRUA has a long line of other fixes.

In the next two to three months the utility must address leaks that left caustic soda to build up “three inches deep” around tanks, create an emergency response plan, install alarms and automatic shutdowns during emergencies, buy replacement equipment to continue treating water, check to see how much water is lost every year and require staff to attend trainings on the state’s drinking water regulations.

Within the next six months to a year, New Mexico environment officials said the utility must build splash pads to reduce erosion around a crucial tank for Sunland Park and perform an inspection for every storage tank that holds water.

In addition to the significant deficiencies the utility is legally required to address, environment department inspectors also recommended the utility add safety features, to prevent fines from other agencies, such as the federal Occupational Safety Health Administration (OSHA).

In areas using gaseous chlorine, the agency suggested the utility install safety features, such as push bar doors, ventilation systems and alarms.

Officials won’t say water is currently unsafe to drink, but warned some people with at-risk medical conditions may need to consult with a doctor

In the days after the Camino Real Regional Utility Authority issued a “do not drink” order for about 1,000 households in Southern New Mexico last month, state officials issued a violation notice for providing “drinking water to your customers with high levels of arsenic” across the water system.

In the notice dated Dec. 6, the New Mexico Environment Department wrote that the Camino Real Regional Utility Authority failed to tell the agency and the public that three arsenic treatment plants were “offline and bypassed” for more than a year.

Under the federal Safe Drinking Water Act, public utilities are responsible for alerting people to any contamination of their drinking water.

The letter was released on the agency’s Enforcement Watch database on Jan. 2.

The Camino Real Regional Water Utility (CRRUA) provides water and sewage services for about 17,000 people living in the Doña Ana county border communities of Santa Teresa and Sunland Park.

It’s unclear if this is directly related to the malfunction that occurred at one of the utility’s arsenic treatment plants, which meant that water that was unsafe to drink last month. The utility spent days flushing the unsafe water from the system. The water has since been reported within a safe pH, or acidity level, by utility and state environment officials.

Utility knew about water quality problems two days before public notices

This is not the first time the utility is in hot water over its arsenic levels. In 2016, an investigation by state environment department officials found that one of the utility’s two arsenic treatment plants was down for “maybe more than two years,” according to an article from Frontera NorteSur.

Despite the warning letter to the utility, officials from the New Mexico Environment Department and the New Mexico Department of Health did not explicitly call the water unsafe to drink.

What is Arsenic?

Arsenic is a naturally occurring mineral, which appears in high amounts in southern Doña Ana County due to a combination of geology and industry, according to a recent consumer confidence report. Drinking water with low levels of arsenic is associated with diseases such as diabetes, increased risk of cancers, and can contribute to heart and lung diseases and skin problems, according to the Environmental Protection Agency.

The standard for drinking water issued by the U.S. Environmental Protection Agency is 10 micrograms per liter (10 parts per billion) of arsenic, the goal for human health is no exposure.

“Drinking water with arsenic at levels lower than the EPA standard over many years can still increase your risk of cancer,” according to the Minnesota Department of Health page.

To determine arsenic exposure, the EPA said tests are available to measure levels in blood, urine, hair or fingernails. Tests on hair or fingernails measure exposure over the last six to 12 months.

“These tests can determine if you have been exposed to above-average levels of arsenic. They cannot predict whether the arsenic levels in your body will affect your health,” according to the Agency for Toxic Substances and Disease Registry.

“CRRUA customers should not be concerned about their drinking water,” said state department of health spokesperson David Morgan. “However, if anyone with specific health concerns, a severely compromised immune system, have an infant, are pregnant, or are elderly, may be at increased risk and may consider seeking advice from their health care provider about drinking this water.”

One year is not considered long-term in this case, Morgan said, 10-plus years is considered “long-term chronic exposure.”

“The most severe outcome, cancer, is usually only observed after over 10 years of exposure,” Morgan said, linking to a University of Maine article on arsenic health impacts.

JC Crosby, the interim director for the Camino Real Regional Utility Authority said he had no answers to Source NM questions when reached by phone Friday. Crosby said he would provide answers next week, after speaking with the operators.

‘I’m retired and on vacation’

The New Mexico Environment Department said that the utility must notify the customers that the water is high in arsenic, by using media, direct delivery and posting notices in conspicuous locations.

Failing to comply with requirements to alert the public may open the utility up to fines or additional violations under state law.

There were no notices regarding the arsenic plants when Source NM visited the Sunland Park City Hall, Library, and Camino Real Regional Utility Authority offices on Jan. 5.

The only notice posted acknowledged that the utility failed to notify the public about the high pH issue in December. It did not address two elevated levels of arsenic found in December.

In emailed answers to follow-up questions, the New Mexico environment department inspectors found the utility was only disinfecting and treating water, but not removing arsenic, said spokesman Jorge Estrada.

“The actual chemicals and filters used for arsenic removal were not being used,” Estrada said. “CRRUA suggested that this was being done due to needed maintenance on the treatment systems. While it is not uncommon for water systems to take treatment systems offline for short periods of time to perform routine maintenance, in this case, the treatment systems had been offline for an extended period of time, up to one year, without notification to NMED nor their customers.”

Estrada said the water sent to customers violated federal standards, and that the utility will now be required to provide samples to test for arsenic levels every three months until results are within federal requirements.

When reached by phone Friday, Brent Westmoreland, the former director of the Camino Real Regional Utility, denied all three arsenic treatment plants were not functional over the past year.

“They’ve been periodically on and off waiting for parts to come in,” Westmoreland said.

When asked if he could furnish proof or documents, Westmoreland deferred to current staff.

Westmoreland did not deny the water given to the public was high in arsenic.

“Well, it was non-compliant, as far as EPA requirements,” he said, adding that the board was notified of that.

Westmoreland provided conflicting accounts of the cause of the pH incident, telling the El Paso news station, KFOX that the cause of slimy water was first “food-grade oil” to flush the systems, and then later telling Source NM it was sulfuric acid. State officials said the cause of the incident was caustic soda, a chemical used in arsenic treatment.

Westmoreland, who held the position since 2015, retired abruptly in mid-December.

When asked if he was concerned about the safety of the water, Westmoreland declined to comment.

“You need to speak to the board or to the people who are in place now,” he said. “Once again, I’ve retired and I’m on vacation.”

Only one person on the seven-member board which oversees the utility responded to requests for comment from Source NM.

Utility staff did not tell the board that all three arsenic plants were not functioning at any board meeting, said Jonathan Orozco, who was termed out from his at-large position on the board in December.

Instead, if the board asked questions about high levels found in monthly tests by a contractor, Orozco said the explanation was maintenance on one plant.

Orozco said he had no answer if Westmoreland told the board the truth.

“I’ve never got that impression that he would mislead us. But, honestly, I don’t know,” Orozco said in a phone call. “I don’t know why he wouldn’t have said anything or the engineer that we have given us the reports wouldn’t have said anything.”

Orozco encouraged the public to listen to health officials’ recommendations about the water.

When asked, Orozco said he does drink “a combination of bottled water” and tap water provided by the utility.

Asked if he would continue to drink it, Orozco paused for a few seconds.

“I think so,” he said. “I don’t think the impact to my heath would be that big of a deal.”

“But for like, my daughter, maybe not,” he said.

The interim director at a southern Doña Ana water utility has responded with more details about an incident in late December where water high in pH was sent to about 1,000 households in Santa Teresa and Sunland Park.

JC Crosby, the interim executive director for the Camino Real Regional Utility said the “do not drink” warning was related to an out-of-order arsenic treatment plant.

The Camino Real Regional Utility Authority (CRRUA) provides water and sewage for approximately 17,000 people in the New Mexico border communities, according to state officials. Utility officials told Source NM that’s about 7,300 households.

The levels of arsenic occurring naturally from local geology requires the utility to remove the mineral to meet federal drinking water standards, according to the New Mexico Environment Department. Equipment failures made it so Camino Real could no longer meet that requirement.

“In the process of getting the Industrial Arsenic Plant operational, a pH probe malfunctioned, thus elevating the pH in the system,” Crosby said in an email to Source NM regarding the contamination issue.

The New Mexico Environment Department said that arsenic treatment plants were “offline and bypassed” meaning that the arsenic levels in drinking water were above the federal requirements and said that Camino Real Regional Utility would need to do additional testing for arsenic every quarter.

Going forward Crosby said the utility will monitor its systems with water samples it plans to collect on a “frequent basis” and will also use a third-party state-certified laboratory to certify results.

The utility will use a contract to “address and secure additional technology and resources necessary to ensure the event does not recur.”

He reiterated that the water was safe to drink, noting that the public notice statement did not require a boil water requirement, or additional corrective actions.

“This is not an emergency,” Crosby wrote. “However, some people who drink water containing arsenic in excess of the maximum contaminant level over many years could experience skin damage, problems with their circulatory systems and may have an increased risk of getting cancer.”

Notifying the public

In the days after the pH incident, the New Mexico Environment Department sent a notice of violation, as Camino Real Regional Utility failed to tell regulators and the public that all three of its arsenic treatment plants were “offline and bypassed,” and the water sent to consumers contained “high levels of arsenic.”

NMED: Water utility in Doña Ana Co. sent customers ‘high levels of arsenic’ in their tap water

A public notice on the water utility’s website makes the timeliness of alerting people very clear.

“Camino Real Regional Utility Authority failed to notify NMED that the arsenic treatment plants were intentionally bypassed and that we were providing drinking water to your [sic] customers with high levels of arsenic,” according to the posting now available online.

A letter dated Dec. 6 was sent to the former CRRUA executive director, Brent Westmoreland, who retired shortly thereafter, according to board members. The letter was made available to the public on the agency’s Enforcement Watch database on Jan. 3.

Crosby said he received a letter from state environmental officials on Dec. 12.

Staff from the utility told the board about the conditions of the arsenic plants, Crosby said. The operator reported “equipment failure to the arsenic treatment plant facilities” and updated the board on delays for equipment repairs.

Crosby did not dispute the state environment inspector’s characterization that all three arsenic treatment plants were “offline and bypassed,” in his written statement.

The pH of water describes how acidic or alkaline it is. While the former executive director gave conflicting causes for the “bitter and slimy” water, New Mexico Environment officials determined later the high pH was from an addition of too much caustic soda – a chemical used in water treatment.

What are the concerns with arsenic?

Drinking water with low levels of arsenic over time is associated with diseases such as diabetes, increased risk of cancers, and can contribute to heart and lung diseases and skin problems, according to the Environmental Protection Agency.

The standard for drinking water issued by the U.S. Environmental Protection Agency is 10 micrograms per liter (10 parts per billion) of arsenic, the goal for human health is no exposure.

Water high in pH was distributed to about 1,000 households in Santa Teresa and Sunland Park, and Westmoreland told Source NM he waited several days before telling the public not to drink, bathe or wash dishes in the water.

After days of flushing the high-pH water from the system, utility and state officials said the water returned to a normal range.

The New Mexico Department of Health, and Crosby, said that people who have severely compromised immune systems, are pregnant or have an infant, are elderly or are at increased risk should consult with a doctor about drinking the water.

As of Saturday, Crosby said Camino Real Regional Utility Authority posted public notices at the City of Sunland Park Public Library, two grocery stores, the Sunland Park Post Office, and the utility’s office.

Letters were sent on Jan. 5, with the notice arriving to customers shortly, Crosby said.

There are no upcoming governance meetings currently scheduled on the utility’s website, and the meeting for Jan. 8 was canceled, according to public notices posted at the Sunland Park Library.

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LAS CRUCES, N.M. (KFOX14/CBS4) — The Doña Ana County District Attorney's Office addressed the reason behind cases being dismissed Thursday afternoon during a news conference.

The District Attorney, Gerald Byers, said the press conference was in response to KFOX14's previous report as he believed it to be "inaccurate."

The dismissed cases from the DA's office were due to the case management rule created by the New Mexico Supreme Court, according to Byers.

The case management rule has a multitude of requirements, including the requirement to formally chard (or arraign) a defendant within 15 days of being indicted.

RELATED: Doña Ana District Attorney's Office appears to drop, refile cases without explanation

DA Byers blamed the rule and it's strict deadlines for a backlog of cases in his office.

"We didn't ask for it. The local district court didn't ask for it. It was provided by the state Supreme Court," Byers said.

The case management rule was implemented by the state supreme court to eliminate the case backlog.

"It was to provide a more streamlined process for moving cases through the system," Byers said.

But that's something the DA's office has had a hard time doing, due to other requirements in the rule, according to Byers.

BYERS FULL PRESS CONFERENCE:

“The total number of cases that may be arraigned that the state may bring forward for arraignment is 40. Once per week. So, if we go to Grand Jury, and we indict 60 people and you have seven days in which to arraign them if they're in custody for 15 days in which to arraign them if they are out of custody," Byers said. "The math does not work. You create a backlog. That's what was happening."

KFOX14 put in several open records requests in October to find out exactly how many cases had been dismissed by the DA's office for the past year.

However, those requests were denied.

The office saying that record does not exist.

Something the former district attorney, Amy Orlando, said is simply untrue.

"That’s a bold-faced lie," Orlando said. "They have to keep them. We have to give our statistics to the legislature."

During the conference, Byers backtracked and said he does knows how many cases have been dismissed.

“Last fiscal year, there were 5682 cases that were filed in the third judicial district," Byers said. “There were 1782 cases that were dismissed.”

Byers admitted that he did submit the report to the state legislature, but said the system does not retain that statistical data on a day-to-day basis.

"Yes, there is a report that is run at the end of the fiscal year to provide information to the legislature," said Byers.

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Byers also addressed KFOX14's open records requests.

He said his office wasn't required to answer our request, based on wording.

“The government does not have to respond and create a new record in response to an inspection of a public records request. It's all in how the question is phrased," said Byers.

Byers also said what is happening at his office is very different from what happened in El Paso County and the case dismissals under former DA Yvonne Rosales.

“The state of Texas El Paso does not have a case management rule. So the comparison to of this office to what happened with regard to former district attorney, Yvonne Rosales is at the least unfair and quite frankly uninformed," he said.

Although Byers said KFOX14's report was inaccurate, he didn't say exactly what was inaccurate.

Byers did not take questions at the press conference.

KFOX14 will be resubmitting more public record requests.

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