MESQUITE, N.M. — Near the center of this sun-scorched farming community, built alongside a narrow freight-car railroad, stand the green and pale-yellow warehouses of Helena Chemical Co. A church, the town’s only elementary school and rows of homes and trailers sit nearby, many within feet of the property’s chain-link fence topped with razor wire.
For nearly a decade, many of the 1,100 residents of this town 12 miles south of Las Cruces objected to the intimate proximity between their homes and the company, which processes and distributes fertilizers and other agricultural products. They claimed the fumes expelled from the facility drifted into their homes, businesses and the school, causing respiratory problems, headaches and frequent nosebleeds, especially among children and elderly people.
Their complaints led the New Mexico Environment Department to investigate Helena in 2004. In the six years that followed, the company was hit with an onslaught of fines totaling nearly $500,000 for polluting the air and groundwater, and for failing to operate the facility with proper safety standards, including an evacuation plan. The company fought back, suing the Environment Department, saying it had corrected the problems and didn’t need an air quality permit. Then the company sued some residents of Mesquite for defamation.
But beginning in 2011, the company found a friendlier atmosphere in Santa Fe, the state capital. Gov. Susana Martinez, a former district attorney from Las Cruces, had just swept into office, promising to revisit environmental rules she saw as unfriendly to business. Jeff Elmore, who at the time was the branch manager of the Helena plant in Mesquite, personally gave $15,000 to help fund the new governor’s inaugural festivities. The company, based in Collierville, Tenn., chipped in another $10,000, according to the inaugural committee’s records. That earned Jeff Elmore and his wife, Amy, a mention in the inaugural’s program among an elite group of 11 “silver” sponsors who contributed the committee’s self-imposed limit of $25,000, apparently adding Helena’s donation to theirs to reach that amount. More donations to Martinez would follow.
Within a year, the Environment Department had dropped the air quality permit required for industries that emit pollutants and sharply eased the close scrutiny of the company that existed under the previous administration.
“It became pretty obvious to us that we weren’t going to gain anything by going to the New Mexico Environment Department,” said Arturo Uribe, whose house sits just feet from the company’s property.
Environmental advocates have long criticized Martinez’s record, often pointing to groundwater regulations they say were weakened to the benefit of copper mining and oil and gas producers, charges the administration denies. What’s clear is that Helena’s fortunes improved greatly under the new administration, a review of state records, internal emails and interviews with people involved in regulating Helena show.
In addition to a more accommodating Environment Department, the company’s contracts with the state’s Department of Transportation for products such as weed killer nearly quadrupled in that first year, jumping to nearly $1 million in 2011 from $261,276 in 2010. The state faced a budget crunch in both years. During the first five years of the Martinez administration, the department awarded Helena $4.7 million in contracts, $1.6 million more than in the last five years of the administration of Democratic Gov. Bill Richardson.
The Martinez administration said that in easing environmental regulations over Helena, it was righting abuses made by the Richardson administration. Martinez’s staff said political donations had no influence over contract awards or how the Environment Department treated the company.
“Our decisions are based on science, they are based on the law and they are based on nothing else,” said Ryan Flynn, former Cabinet secretary of the Environment Department, who recently resigned from the department and has since taken a job leading the New Mexico Oil and Gas Association, an industry lobbying group. “Any suggestion that they are somehow, from Helena or any other entity, that they would be able to influence anything through any sort of donation is just ridiculous.”
The Elmores and Helena Chemical did not respond to multiple requests for comment for this story.
In the two years leading up to Martinez’s election in November 2010, the Elmores and the company donated more than $60,000 to candidates, mostly Republicans, including $28,800 to Martinez. Before that, the most they had ever given in a single year dating back to 2000 was $5,000, which the company contributed to then-Gov. Bill Richardson in 2005, according to a New Mexican analysis of campaign data from the Secretary of State’s Office, the governor’s 2011 inaugural committee and FollowTheMoney.org, a nonprofit group that tracks money in state politics. It was the first time either the company or the Elmores had donated to a New Mexico candidate over that period, and it came not long after Helena’s troubles with the Environment Department began.
Since that first donation, the Elmores and the company have given more than $113,000 to New Mexico candidates, including $54,949 to Martinez and her political action committee, SusanaPac. Martinez’s office would not say if Helena and the Elmores donated to her 2015 inaugural gala. Martinez’s office and officials with her inauguration committee said they posted all the donations on the committee’s website around the time of the inauguration, but the records are no longer accessible and The New Mexican could not find any trace of them on internet archive searches. The nonprofit inaugural committee provided its tax documents to The New Mexican, but with donations redacted, as is allowed by federal law.
A cozy relationship
The Governor’s Office declined to answer questions about the relationship between Martinez and the Elmores. But their familiarity can be gleaned in part through photographs. In May 2012, Martinez went on a trip with the civic group the New Mexico Amigos, which pays for New Mexico governors to tour businesses outside the state. Photos posted online by Amy Elmore on May 15, 2012, show Martinez and Jeff Elmore, a former U.S. Secret Service official, at a Secret Service training facility outside Washington, D.C. Martinez, with a broad smile, is holding a target that she recently used for shooting practice.
On the post, Amy Elmore calls Martinez “a great shot.”
Soon after, on July 5, 2012, Amy Elmore again posted photos of Martinez at a fundraising party for a Martinez protégée, Amy Orlando, who was running for district attorney in the Third Judicial District, which was Martinez’s district and has jurisdiction to prosecute cases in Mesquite. And in 2013, the Martinez campaign reported more than $2,800 in an in-kind donation from Amy Elmore for catering.
The governor’s public calendar records also document a meeting between Jeff Elmore and Martinez at her office on July 25, 2011, just two days before the first draft of a settlement agreement that would ultimately nullify Helena’s air quality permit was circulated between Environment Department officials.
In an interview, Flynn accused the Richardson administration of treating the company unfairly. After The New Mexican began asking the department about Helena for this story, Flynn made a special point of highlighting the company in a May 9 story on the front page of the Albuquerque Journal in which he was quoted, citing it as an example of how he claimed the Richardson administration had abused the department’s penalty process to fund pet political projects, including requiring the company to donate money to Mesquite’s elementary school, fire department and community center. In May, Flynn proposed changes to how the department’s air quality bureau comes up with what are known as supplemental environmental projects, which are meant to benefit communities affected by pollution. Under his proposal, violating companies — not the department — would propose such projects, which would then have to be approved by the department.
“Why would a company look at how a company like Helena was treated here prior to 2011 and want to do business in New Mexico?” Flynn said in an interview with The New Mexican. “So from a variety of different perspectives, it’s an unfortunate situation.”
Flynn also said the projects were inappropriate because former state Sen. Cynthia Nava, D-Las Cruces, who represented Mesquite at the time and was among local elected officials who raised concerns about the plant, was in a relationship with, and is now married to, then-Environment Secretary Ron Curry. Curry and Nava did not return repeated phone calls for this story, but people close to the couple said she took her concerns to the department before the relationship began. Curry, who is currently the regional administrator for the U.S. Environmental Protection Agency based in Dallas, said through a spokesman that he does not comment on actions he took as state environment secretary.
Richardson did not respond to requests for comment from The New Mexican, but in an email to the Journal, he called the allegations “absurd” and said Flynn is “a political hack.”
Interviews with current and former Environment Department employees, many of whom spoke on condition of anonymity for fear of retaliation, say the handling of Helena is indicative of the Martinez administration’s dismantling of environmental policy and regulation, an exodus of seasoned environmentalists, and policy positions that strongly favor industry interests over residents or the land.
Several former Environment Department employees said supplemental environmental projects under the Richardson administration followed EPA guidelines for such undertakings.
“This is an issue of environmental justice,” said Jim Norton, the former director of the Environmental Protection Division of the Environment Department during the Richardson administration. “Now we have an administration that has a track record of turning public resources over to a corporation. This fits right into a pattern.”
“They are dismantling the system of environmental controls that has been put into place over decades, and it’s really sad to see,” added Norton, who no longer works for the state.
Paul Gessing, president of the Rio Grande Foundation, which advocates for a more business-friendly policy, disagrees. He said that, aside from overturning the pit rule, which eased regulations for how oil and gas operators must dispose of contaminated drilling water, and a coal emission cap earlier in her administration, “I wouldn’t say there has been a massive deregulation push under Governor Martinez.”
“She had not always done as much as I would like to see,” he said.
An analysis by The New Mexican of data from the department’s Air Quality Bureau shows the bureau assessed about $16.5 million for violations issued or detected in the final four years of the Richardson administration, nearly four times the $4.4 million the department assessed for violations issued or detected from 2012 through 2015, the last four full years of the Martinez administration. During those same periods, the Richardson administration opened 355 air quality cases compared to 245 by the Martinez administration.
In an email, Allison Scott Majure, a spokeswoman for the Environment Department, said the decline was the result of “previous ineffectual leadership” and an “increased emphasis on voluntary self-disclosure.” She added that “fewer cases signify that the air quality regulations are in force” and being followed.
Flynn defended his former department’s record.
“When people violate our laws, we are going to hold them accountable,” he said before he resigned as environment secretary. “To me, it is what we are supposed to do. It is the right way for a regulatory agency to operate. I am proud of our record.”
History of violations
Helena Chemical is a subsidiary of Marubeni America Corp., a New York City-based unit of a Japanese company, and opened its doors in Mesquite in 1989. It took over a fertilizer processing plant that had been operated by Georgia-based AGCO and, residents say, polluting since the 1950s. Marubeni America oversees a range of ventures, from nuclear energy equipment to oil production in the Gulf of Mexico, earning more than $5.59 billion for the 12-month period that ended in March 2015. Its agricultural business in the United States is dominated by Helena Chemical and Helena Professional, with 450 locations from California to New Jersey that produce and sell a range of fertilizers, fungicides, herbicides and surfactants.
Helena Chemical has a long history of chemical contamination and workplace violations in at least 11 states during the last three decades. The New Mexico Environment Department has not conducted an air quality inspection at Helena Chemical’s Mesquite facility since 2011, and the federal EPA has not inspected the plant since 2007. Yet other states continue to have a turbulent relationship with the company, where communities protest its proximity to homes and businesses, and states continue to issue high fines for violations.
As recently as May 2015, a Helena Chemical factory in Oklahoma was fined $225,000 after an investigation by the EPA and the state found the company had been improperly disposing of restricted-use pesticides and allowing the chemicals to leak onto adjacent properties. Exposure to the chemicals, Atrazine and S-Metolachlor, causes respiratory problems, nausea and liver damage. The U.S. attorney for the Northern District of Oklahoma said the majority of the fines were criminal, but $75,000 was put toward supplemental environmental projects — the kind Flynn has been critical of — to fund emergency response and education in the polluted community.
The company’s operations also have been connected to ongoing EPA Superfund cleanup sites in Texas, South Carolina and Florida.
In Mesquite, which is largely Hispanic, more than 40 percent of residents live below the poverty line — a distinction that townspeople say is loosely defined by which side of the railroad tracks that service Helena Chemical a family lives.
For decades, families in Mesquite have lived alongside the plant, which was a seed and chemical company before Helena took over. They grew accustomed to shutting the doors on days when the fumes were especially strong. Children held towels over their mouths when they played outside, residents say.
“We made the mistake to build a house right almost in front of Helena,” said Edna Orona, 77, who settled in Mesquite 40 years ago, before Helena expanded its Mesquite facility. She said the property was cheap, but had her family known how close the warehouse would be, she and her husband would have chosen differently. Now, she says, she can’t afford to move.
“Who would want to live near a chemical plant? I just don’t have very much choice of getting up and leaving,” she said.
Roberto “Marty” Nieto, 52, president of the Lower Rio Grande Public Water Works Authority, is a lifelong Mesquite resident. “We never thought of it as a threat until it was brought to our attention,” he said of the Helena facility.
For Arturo Uribe, 46, a social worker and community activist whose family has lived in Mesquite since the 1800s, the issues involving Helena became personal in 2004, the year his son was born. His son was healthy at the hospital, Uribe said, but when the family brought him home two days later, he went into respiratory arrest. Doctors at the hospital put the baby on a nebulizer treatment, allowing him to inhale medicine through a plastic mask.
Neighbors visiting Uribe’s newborn said many of their children also had required nebulizers, and they began to wonder why. Nurses at the elementary school reported children had high rates of asthma. One woman whose child was born with too many fingers and toes feared it was the result of chemical exposure.
Soon, local elected officials, including then-state Sen. Nava — Uribe’s cousin by marriage — and then-Rep. Joseph Cervantes, D-Las Cruces, began asking questions about the safety of the plant.
In November 2004, following an inspection, the state Environment Department issued Helena a notice of violation for operating for 15 years without an air quality permit.
The department required Helena to install three groundwater monitoring wells. Test results revealed nitrate levels four times higher than state standards allowed and fluoride levels three times above the threshold. Total dissolved solids, which can cause water to be corrosive and taste salty, were found to be twice as high as the safe level in water. The Environment Department offered free well water testing and required the company to install additional sampling wells.
Helena Chemical later reported 130 domestic wells and four community wells were within a mile of the company’s facility in Mesquite. The nearest wells were within 600 feet of the plant.
The facility’s estimated emissions have fluctuated significantly based on reports from the Environment Department and an independent inspector, and they remained a point of contention over much of the next decade. Emissions calculations ranged from 7.2 pounds per hour to 21.5 pounds per hour. A facility is required to hold an air quality permit and face annual inspections if emissions exceed 10 pounds per hour.
In June 2005, the state fined the company $233,777 for failing to comply with New Mexico’s air quality laws and regulations. The company also was required to limit its hours of operation, pave roads used to transport chemicals and file for an air quality permit. The Environment Department later reduced the fine to $202,500. As part of the state supplemental environmental projects that Flynn criticizes, the company had to pay $35,000 of the total fine to Mesquite’s elementary school for curriculum development, equipment and training in environmental sciences; and $65,000 to the Mesquite volunteer fire department for hazardous materials equipment and training to help minimize impacts of a fire or other emergency at Helena.
It was the beginning of a series of battles between the Richardson administration and the company over regulatory violations, some resulting in substantial fines. These included a $30,000 fine in 2006 after a tank carrying 500 gallons of liquid fertilizer from Helena Chemical spilled on a road in Mesquite. It flowed into a resident’s yard, killing the grass on contact. State law requires a company to report an accident like this within 24 hours. Helena took 12 days to report the spill.
Residents say they were told the chemicals that spilled were not harmful, but the grass never grew back.
“Helena continues to have lax air monitoring methods that put residents at risk,” then-Environment Secretary Curry said in a 2007 news release after the state fined the company $279,076 for 10 violations of its air quality permit.
Curry’s agency, in negotiations with the company, reduced the fine to $208,331. “We will not tolerate that behavior from any company, and will continue to ensure residents have the protection they deserve from problematic companies like Helena,” he said at the time.
In October 2008, a group of Mesquite residents led by Uribe and represented by Linda Thomas, a lawyer for 1,700 residents in a class-action lawsuit against a Helena Chemical outlet in South Mission, Texas, filed a toxic tort suit against Helena Chemical.
The Mesquite suit alleged that, as a result of the soil and groundwater contamination discovered by inspectors, residents suffered “personal injury and property damage … as a result of their exposure to hazardous dusts, fumes and contaminants emanating from the defendant Helena Chemical Company.” The company and townspeople later settled under confidential terms.
Just months later, Helena sued Uribe, his wife, Pamela, and their lawyer, Linda Thomas, for defamation. A state district judge dismissed the claims against Uribe’s wife and lawyer, but a jury in Las Cruces upheld the defamation claim against Arturo Uribe. It awarded Helena $1 in actual damages and $75,000 in punitive damages, which a judge reduced to $5,000 on appeal. Uribe also was ordered to pay $9,000 for Helena’s court costs, according to court records. Environmentalists assailed the verdict, calling it an assault on free speech and warned it would chill environmental activism.
Among the allegations, the suit contended Arturo Uribe displayed images in a public meeting, including slides of a neighbor’s baby that was born with six fingers and 12 toes, without showing that they had anything to do with Helena’s operations.
“We had the opportunity to provide factual information to a jury in open court and they agreed that Mr. Uribe has been spreading falsehoods about our operations and injured our reputation,” Louis Rodrigue, vice president of the Southern Business Unit for Helena, said in a news release at the time. “The truth is Helena is not adversely impacting air quality, drinking water quality or the health of the citizens of Mesquite.”
Helena, meanwhile, continued efforts to have its air quality permit rescinded, eventually leading to a series of hearings in 2010 before the Environmental Improvement Board, a seven-member body appointed by the governor that promulgates regulations and hears administrative appeals of Environment Department decisions.
On Dec. 6, 2010, following seven public hearings, including a four-day hearing in Santa Fe and a hearing in Mesquite, the board voted 4-1 to uphold Helena Chemical’s air quality permit. In its ruling, the board criticized Helena for providing at least five different variations of its air quality emissions over the years, and on each significantly modifying the underlying facts of the company’s operation, including its hours of operations and the kind of work it performed. The board concluded that “Helena’s emission calculations are not reliable or credible.”
It added that “Helena has made no modifications to its operations and its air emissions had not decreased since the department issued the permit in 2005.”
The board recognized some improvements the company made after the hearings began, including paving additional roads. Board members did not consider those improvements in their decision, but said that “the new data should be given a dispassionate look by the department” in the future.
Helena appealed the ruling to the state Court of Appeals. But just three weeks after the board’s decision, Gov. Martinez took office and Helena’s relationship with the department began to change.
Upon taking office, Martinez quickly prioritized an overhaul of the state’s environmental regulators. Her second meeting as governor, on Jan. 3, 2011, was with David Martin, who she appointed as secretary of the Environment Department within the month. He replaced Ron Curry, who resigned before Martinez’s inauguration. Two days later, she met with attorney Ryan Flynn, who had represented industry in environmental cases for the Modrall Sperling Law Firm in Albuquerque. Under Martinez, Flynn became general counsel for the Environment Department.
Flynn would soon take the lead on proceedings with Helena, which had been handled since 2007 by Tannis Fox, a deputy general counsel. By the end of the second week of the Martinez administration, the governor also met with candidates to replace the Environmental Improvement Board, eventually reshaping the seven-member body from one that consisted of mainly environmentalists to one slanted toward ranchers and industry.
Internally at the Environment Department, the first six months of the Martinez administration saw a series of restructuring efforts and resignations. Five bureau chiefs, each with at least a decade of experience, resigned or were moved to drastically different areas of oversight. Fox was removed entirely from the Helena proceedings, according to legal documents and a source inside the department familiar with the situation. She resigned from the Environment Department in October 2011.
Internal correspondence between employees at the Environment Department also indicates a shift in the department’s attitude toward Helena Chemical. In April 2011, for example, after meeting with Jeff Elmore, Flynn sent a memo to his staff that said: “According to Mr. Elmore, Helena is the ONLY fertilizer processing facility that is being required to obtain a permit. … If his facility were in Texas, then it would not be subject to a permit … [and] Mr. Elmore claims that NMED kept changing the standards and emissions figures during the hearing.”
Fox, and Mary Uhl, then chief of the Air Quality Bureau, disputed Elmore’s claims, calling his final assertion “a complete lie” and that “… Elmore was untruthful on the stand as well,” referring to his testimony in an Environmental Improvement Board hearing. Uhl gave Flynn a list of other fertilizer companies in Southern New Mexico that also had air quality permits.
Weeks later, Uhl was transferred to oversee the state’s office of the Occupational Safety and Health Administration, a division of the Environment Department, despite 20 years of experience in the air quality field and a degree in atmospheric sciences.
“I was removed from my job,” she said in an interview, though she said she believed she was transferred because of other disagreements with management.
On July 25, 2011, the governor met with Elmore in her office at the state Capitol, according to Martinez’s public calendar. Administration officials did not respond to questions about that meeting. The sit-down between Elmore and Martinez stood out in a calendar of appointments otherwise dominated by meetings with local politicians, reporters, ribbon-cuttings and executives with large corporations, like Intel.
Two days later, the company and the state signed the basic elements of a settlement agreement, according to internal records obtained through a public-records request. As part of that agreement, Helena and the Environment Department agreed to hire an independent inspector, to be paid by Helena, to assess the company’s emissions.
Six months later, on Jan. 27, 2012, the parties reached a final settlement, under more generous terms for Helena, the documents show, including increasing the amount of dry bulk fertilizer the company could process to 60 tons an hour instead of the 50 tons an hour allowed under the July agreement. The company also was no longer required to carry an air quality permit, meaning the Environment Department would no longer monitor it.
Sam’s ‘Best Try’
In a recent interview, Environment Department officials said they were justified in removing the air quality permit, providing The New Mexican with an internal memo dated Feb. 9, 2010, between Richard Goodyear, then the permit programs manager for the Air Quality Bureau, and air quality permit writer Sam Speaker. The memo stated that Helena no longer needed a permit.
In the memo, Speaker said that based on a site visit and information provided by the company, emissions were estimated at that time to be 7.44 pounds per hour and 20.7 tons per year.
“The facts speak for themselves,” Flynn said.
But just months after that memo, Speaker and Goodyear both testified under oath during the Environmental Improvement Board hearings that, after receiving additional information in March 2010, they found Helena’s emissions were as high as 21.5 pounds per hour and 85.4 tons per year. The rates were nearly double the acceptable hourly rate and more than three times the acceptable yearly rate.
Asked in the hearing if, in his professional opinion, Helena Chemical should be required to have an air quality permit, Goodyear replied: “Absolutely, yes. I have no doubt.” Speaker, also under oath, agreed with Goodyear later in the hearing, as did Uhl.
Internal memos obtained through a public-records request indicate other inconsistencies in the department’s 2011 evaluations of Helena.
For example, in October 2011, Speaker was again tasked with examining Helena’s emissions, and again found them over the acceptable threshold, records show.
“Because Sam [Speaker] has dedicated so much time to support the Department’s previous position, he is understandably having a hard time accepting this new approach,” Trais Kliphuis, a permitting program manager with the Environment Department, wrote in an internal email dated Oct. 3, 2011. “I believe at this stage, this situation warrants a different person completing this action.”
“I am willing to do this if you prefer,” Kliphuis added.
A spreadsheet attached to the email chain was titled “Calcs 10-3-11 Sam Best Try.” Records show Kliphuis was allowed to take over. She since has been promoted to director of the Water Protection Division.
Speaker, who still works at the Environment Department, declined to comment for this story.
‘Not much you can do’
The Environment Department never issued a news release announcing the settlement, and Mesquite residents say they weren’t informed of it at the time.
State records show there has not been an air quality inspection or violation issued to the Helena Chemical facility in Mesquite since the settlement.
“We treat this facility the exact same way we treat each and every facility in the state of New Mexico,” Flynn, who Martinez named environment secretary in April 2013, told The New Mexican in a recent interview.
Kliphuis, also present for the interview, said the department is not required to inspect facilities that do not hold permits. And she said that, for Helena, the paved roads were the tipping point in deciding that the company did not need an air quality permit.
“We have people in the field driving by, watching what’s going on, but they are not formal inspections,” she said.
Flynn said the state continues to monitor ambient air quality throughout the region.
He said he had been to Mesquite and Helena Chemical’s facility there several times since taking office. When asked if he had spoken with community members about their concerns, he did not answer directly, saying instead that he is “aware of some of the allegations that were perpetrated by Arturo Uribe and certainly, as I am sure you are aware, of the guilty verdict that was rendered against him for defamation.”
Residents in Mesquite said they have never spoken with Flynn about their continued concerns regarding Helena. Four months after the settlement was reached, Doña Ana County Commissioner Billy G. Garrett asked the department to hold a public meeting in Mesquite to discuss the decision. Flynn, in an April 27, 2012, letter, declined.
“My question would be which community leaders have you [Flynn] met with that don’t have offices within the Helena Chemical plant?” Sen. Joseph Cervantes, D-Las Cruces, one of the lawmakers involved in the issues in Mesquite since 2004, said in an interview.
“There is no reason why those chemicals can’t be handled or sold in a safe way,” he said. “And that requires going back to the level of scrutiny for air quality and groundwater that I know was being done in the past, at a minimum.”
Uribe, sitting recently on dust-coated lawn furniture just yards from the Helena Chemical fence, said the work done under the previous administration made a difference.
“Paving up some of this stuff did help,” he said, “and some of the things they were doing in the past that they stopped did make some of the smells go away.”
But he and others here maintain that other smells remain, fumes that drift into their homes at night and force them to shut off the air conditioning on hot days.
“We want to have a better quality of life,” he said. “… you just feel like there is not much you can do about it.”
Ray Rivera performed data analysis for this story.