Lawsuit filed over arsenic levels in water from Southern New Mexico utility

Danielle Prokop, Source New Mexico

This story was originally published by Source New Mexico.

Attorneys for Sunland Park residents filed a lawsuit against a troubled Southern New Mexico water utility, a former operator and the city and county running it, alleging the sale of arsenic-contaminated water to the 19,000+ residents violated their civil rights.

The civil suit filed Wednesday in the Third Judicial District Court in Doña Ana County, comes nearly a year after the revelation from state agencies that the Camino Real Regional Utility Authority sent water with “high levels of arsenic” to residents, without telling the public.

The lawsuit stems from the December findings from state regulatory officials that determined the authority’s arsenic treatment plants were “offline and intentionally bypassed” for more than a year, and no public notification was sent out.

Arsenic naturally occurs at higher levels in Southern Doña Ana’s aquifers, a remnant of ancient volcanic activity, but also gets concentrated due to some industrial activity, according to the consumer confidence report. The water pulled from the aquifers has levels of arsenic that violate federal drinking water legal limits, and must be treated to remove the mineral.

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 EPA is 10 micrograms per liter of arsenic, but the goal for human health is no exposure.

The 49-page complaint alleges that the utility, city, county and the utility’s former executive director failed in their duty to provide safe drinking water and were negligent in operating and maintaining the system or alerting the public to contamination from arsenic.

The lawsuit claims that officials ignored the unsafe levels of arsenic in drinking water, failed to correct them and that the failure to notify the public was a means of covering up the unsafe levels.

The complaint also listed out the harms the high levels of arsenic caused to residents, naming corroded pipes, water that made people’s eyes burn, a concern that using the water places people at risk, and increased bills when the utility flushed water from the system.

The lawsuit also alleged unfair business practices, saying that since people paid to receive clean water but sold water that was “contaminated and unsafe.”

Doña Ana County declined to comment, citing the pending lawsuit. The City of Sunland Park confirmed the city had received the lawsuit, and also declined to comment.

Emails and calls requesting comment to the Camino Real Regional Utility Authority went unreturned Friday.

The utility’s former executive director, Brent Westmorelandsaid he has not retained a lawyer when reached by phone, and said he “probably shouldn’t get into any pending litigation,” declining further comment. Westmoreland led the utility starting in 2015, and resigned abruptly after a series of water quality incidents in November 2023.

One of the newer laws that impact the case is the 2021 New Mexico Civil Rights Act, which ended qualified immunity as a defense for public officials and allowed people whose state constitutional rights were violated to seek a civil lawsuit.

“When a utility, like CRRUA, has an obligation to provide citizens clean drinking water, not to hide really important details about that water, like that it contains arsenic – that violates the New Mexico Civil Rights Act,” said attorney Knut Johnson, an attorney from Singleton Schreiber, a firm representing Sunland Park residents.

The utility has a history of violating federal drinking water arsenic standards, the lawsuit stated. It included U.S. Environmental Protection Agency records showing the utility reported that its drinking water violated the arsenic standard every three months for the last decade. The levels were as high as three times the maximum level allowed.

Johnson said laying out a timeline of arsenic violations and prior citations from state regulators as far back as 2016 shows a history of problems with clean drinking water and failures to warn the community.

“It tells us what all the principal actors in the area knew about, and what they didn’t do about it, including telling the public about it for many, many years,” he said.

In recent months, the utility has posted tests showing the utility’s arsenic levels in the water are below the federal maximum limit, after repairs were made in January to the arsenic treatment equipment. Since April, the tests submitted to the state have been under the arsenic maximum limit.

Currently, attorneys represent five residents, but held a town hall in Sunland Park on Thursday to represent additional people. Nearly 40 people attended the listening session in the Doña Ana Community College lecture hall.

Attorneys are seeking monetary damages but also asking the court to address the longstanding water quality issues.

“We would like to secure compensation for the residents affected by the health and financial impacts of the contaminated water,” Johnson said. “And we want to demand corrective action, to ensure safe drinking water for Sunland Park, moving forward.”

Danielle Prokop covers the environment and local government in Southern New Mexico for Source NM. She can be reached at dprokop@sourcenm.com.