Whitehead has a plan to fix city’s sewer woes

Truth or Consequences City Manager Gary Whitehead is on top of the city’s sewer problems and is communicating with officials to ensure it gets out from under a U. S. Environmental Protection Agency administrative order. 

His conscientiousness and leadership and forthright communication skills came in the nick of time. 

Since January 17 the City of Truth or Consequences has been under an EPA administrative order that states it is violating the Clean Water Act. Whitehead was hired at the end of February, so he was confronted with this issue immediately, since the EPA wanted a response within 30 days. The administrative order was addressed to then-Water and Wastewater Director Arnie Castaneda, who resigned in January. Whitehead has brought the administrative order up various times during budget and capital projects discussions in his short five-month tenure.

The city, like all cities in the U.S., must have a National Pollutant Discharge Elimination System (NPDES) permit in order to discharge its treated wastewater into a U.S. body of water–the Rio Grande. Permit requirements and adherence to those requirements are overseen by the EPA. 

New Mexico is one of three states that has not been given “primacy” to oversee NPDES permits. Even so, the EPA sends out NMED officials to do the onsite inspections and reports in conjunction with EPA inspectors and monitors. What can and cannot be discharged into the Rio Grande is defined in the Clean Water Act (CWA), which in turn defines NPDES permit requirements. If you are out of compliance with your permit, you are violating the CWA. 

Thank goodness the EPA administrative order stated that there would be “no monetary penalty” for CWA violations, which include “failure to meet permit effluent limits, failure to submit required reports, failure to properly maintain the wastewater treatment plant.” (Please find the EPA administrative order at the bottom of this article, which Whitehead promptly sent me in response to an IPRA request.)

Our poor town would be crushed by such penalties. See Google’s AI overview on CWA penalties below: 

AI Overview

CWA violations carry penalties including significant criminal fines and imprisonment for negligent and knowing violations, up to $250,000 and 15 years in prison for knowingly endangering others, and various civil penalties with inflation-adjusted maximums of over $100,000 per day. Penalties depend on the severity of the violation, intent, and whether they are criminal or civil actions. 

Criminal Penalties

• Negligent Violations:
  Fines up to $25,000 and/or one year in prison per day, with second convictions potentially doubling. 
• Knowing Violations:
  Fines up to $50,000 and/or three years in prison per day, with subsequent convictions having even higher potential penalties. 
• Knowing Endangerment:
  Knowing violations that place another person in imminent danger of death or serious injury can result in fines up to $250,000 (or $1 million for an organization) and up to 15 years in prison. 
• False Statements:
  Knowingly making false certifications or statements can lead to fines up to $10,000 and/or two years in prison. 

Civil Penalties

• Administrative Penalties:
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• The EPA can seek civil penalties, with Class I administrative penalties having a maximum of $25,848 per violation, with the total not to exceed $64,619. 
• Judicial Civil Penalties:
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• For violations like discharging fill material into a wetland, judicially-imposed penalties can be up to $64,619 per day for each violation. 
• Daily Fines:
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• For violations where EPA orders non-compliance, daily fines can be up to $25,000, though these amounts are adjusted for inflation. 

Factors Influencing Penalties 

• Seriousness of the violation .
• Degree of culpability: (negligence vs. intent).
• Good faith efforts to comply .
• Economic benefit gained from noncompliance .
• Ability to pay .

• Criminal Provisions of Water Pollution | US EPA
• Nov 4, 2024 — Negligently or Knowingly. Discharges a pollutant from a point source into a water of the United States without a NPDES …

AI responses may include mistakes. For legal advice, consult a professional. Learn more

The EPA is really giving the city a break considering that it has had three years of warnings before the administrative order was handed down. 

The city’s NPDES permit was last renewed by the EPA in May 2022 and runs through 2027. Half a year later, the state sent one of its water and wastewater engineering firms it has under contract as consultants and advisors. The state sends them to mostly rural communities and small towns–at no fee to the entity–in recognition that it’s hard for rural areas to find and keep qualified and certified water and wastewater operators and/or to hire private engineering firms to make up for that lack of skill. The one sent to T or C December 2022 was Oso del Agua, a non-profit firm in  Espanola. Their name translates to “water bear,” which refers to the microscopic tardigrade that is the subject of the feature photo above. That was the first warning. 

The wastewater department evidently did nothing about Oso del Agua’s recommendations. When they came back in May 2025, their report stated the prior-noted problems had remained unaddressed and the unqualified staffing problem had gotten worse. (Please find Oso Del Agua’s report at the bottom of this article, which Whitehead sent me in addition to my IPRA request.) But at the end of the report, Oso del Agua states the city is heading in the right direction under Whitehead’s helm. In chronological order, I am counting this second Oso report at the third warning.  

The city was put on notice February 9, 2023 for the second time when the NMED sent a letter “on behalf of” the EPA to then-Mayor Amanda Forrister concerning NPDES permit compliance issues raised during its inspection of the facility January 12, 2023. 

Forrister is currently mayor pro tem and is running for school board in addition to, supposedly, finishing out the remaining two years of her second four-year term as a T or C city commissioner. She never reported the existence of the compliance letter from NPDES, never brought it up in discussions about capital projects priorities. No other city official, such as City Manager Bruce Swingle or Water/wastewater Director Castaneda, reported on Oso del Agua’s and NMED’s warnings. (Please find the NMED compliance letter and report after the EPA Administrative Order, both documents comprising the 35-page document at the end of the article.)

As the AI overview above states, negligence and willfully ignoring compliance issues are weighed when the EPA decides whether to assess a monetary penalty and for how much. Supposedly Forrister informed Swingle and Castaneda of the NMED compliance letter, so all three are accountable for the two-years delay in addressing the problems and thus for bringing down the EPA administrative order on the city’s and the peoples’ head. Swingle left May 2023 after serving for two years. 

Whitehead again brought up the administrative order at the Aug. 27 regular city commission meeting as the basis for applying for a $2.5 million grant to the New Mexico Finance Authority’s Water Trust Board. 

To address the EPA’s and NMED’s requirements, old sewer works that were replaced but never removed need to be demolished, the headworks need to be fixed, the “weirs” need to be fixed, the skimmer in the run-off settling pond needs to be fixed and most importantly the cleaning of the headworks needs to be automated so the staff doesn’t have to go down into a methane-filled pit to do it manually. 

According to Oso del Agua, the headworks were installed incorrectly in 2019 leading to the breakdown of the automated cleaning function within a year. For five years the staff has had to put up with it. One of the staff members was hurt in the pit and the city received an OSHA violation in 2024, which Castaneda did report to the city commission, since he needed to expend thousands of dollars for masks and other mitigation equipment for the city to continue cleaning the heads manually. 

Whitehead said he and Assistant City Manager Traci Alvarez came up with the $2.5 million figure in the Water Trust Board grant request since the application deadline was looming, leaving no time for an engineer’s estimate. The city will have to put in a 10 percent match, which will come out of the city’s $3 million general obligation bond approved by voters in 2023 for water, wastewater and road expenditures. 

If the city gets the $2.5 million grant, it will be added to the $1 million the city was awarded in capital outlay from Governor Michelle Lujan Grisham for the wastewater treatment plant last legislative session. The city has not received the money yet, Whitehead said. 

These fixes to the plant are a “five to seven year stabilization plan,” Whitehead told city commissioners, who approved the grant application unanimously. 

“We are broken,” Whitehead said, “although we do meet effluent standards, but we’re doing it with a lot of effort.”