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Anaya talks about Superfund lawsuit

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Lynda Anaya alleges that her husband’s illness and death were the result of contaminants at this West Second Street building. (Lisa Dunlap Photo)

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Decision pending on city’s motion in suit

Lynda Anaya says that the legal fight she is waging with the city of Roswell and the New Mexico Environment Department is about more than herself and the husband she lost, which she contends was due to chemical pollutants at a local office where they ran a tax business for about 10 years.

“I feel the public needs to understand that this is not just about me and my family,” Anaya said. “This is about the city and everyone in the city.”

Anaya has filed a lawsuit alleging that the city of Roswell and the New Mexico Environment Department were negligent by not informing her and her husband — Raymond Anaya — about the contaminants at the building that housed their rented office at 508 W. Second St.

The area eventually was designated as a Superfund site by the U.S. Environmental Protection Agency.

Locations with known chemical pollutants can become Superfund sites if the EPA determines that they need to be placed on a national priority list for clean-up and remediation.

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Roswell has two designated Superfund sites, one called the McGaffey and Main Street Groundwater Plume and the other called the Lea and West Second Street Superfund Site.

The Lea and West Second Street Superfund Site, officially designated as a Superfund site in April 2016, includes four locations. One of those is a large area that includes the building at West Second Street and North Missouri Street where the Anayas ran their business, Anaya Gross Receipts Consulting and Tax Services LLC.

In her complaint filed in November 2019, Anaya alleges that the city and the Environment Department knew for many years that dry cleaning operations in the area had released chemical pollutants that contaminated the soil and groundwater. She alleges that they had “breached (their) duty to inform, notify and warn” her of the situation. Air vapor tests conducted in 2017 on behalf of the Environment Department also concluded that air pollutant levels far exceeded recommended amounts, Anaya’s suit has indicated.

Both the city and Environment Department have asked for the lawsuit to be dismissed.

The city’s dismissal motion was heard Monday morning at the Chaves County Courthouse by Judge Thomas Lilley of the New Mexico 5th Judicial District Court.

After hearing legal arguments from the plaintiff’s lawyer, William Griffin of Ruidoso, and the lawyer for the city of Roswell, Richard Olson of Hinkle Shanor LLP, Lilley indicated that he will consider the issues and notify the parties when has made a decision.

The hearing to consider the state’s motion to dismiss has been set for April 9 at 3 p.m. in Lilley’s court.

Such hearings do not consider the evidence for or against the claims, but whether the plaintiff has sufficient legal basis for making the claim as presented.

Griffin said he and Anaya realize they are in an “uphill battle” in seeking to make a claim under the New Mexico Torts Claim Act. Generally the statute gives the state and other governmental entities in New Mexico “sovereign immunity” from lawsuits. But it does include some waivers of that immunity, one example being in cases where damages or injuries were caused by law enforcement officers acting within the scope of their duties.

But Griffin said he thinks legal precedent exists to consider that the statute is intended to refer to any time the government has a “duty to act,” rather than to law enforcement officers specifically. In the city’s case, he contended, the duty was with the code enforcement division.

Lilley’s questions indicated that he will weigh that argument in his decision. Another issue he questioned Griffin about is whether the complaint filed by Anaya needs to name a specific person or even a “John Doe code enforcement officer” in making the claim that someone had a duty to inform but failed to do so. Griffin said the complaint could be amended, but that he cannot know prior to conducting discovery who might be held responsible, other than the head of code enforcement at the time when contamination was known.

Olson asserted that the Torts Claim Act’s provisions for waiver of immunity is specific to law enforcement officers only.

“One searches in vain … to determine any basis of the waiver of sovereign immunity for any of the city’s actions,” he said.

He added that he does not believe that a code enforcement officer has a special duty to inform people in the same way that law enforcement officers have a duty to act.

After the hearing, Anaya talked about the suffering her husband experienced for several years prior to his death in November 2017 from what she said was diagnosed as Mallory-Weiss syndrome, a tear in the esophagus.

She said that they were not informed about the Superfund designation until August 2017, and that she and her husband were unable to move out of the office until October 2017, shortly before his passing in November 2017. She said she and her husband met with clients outside the office once they found out the building was in a Superfund site.

She also noted that the building had other tenants at the time they were renting their office there.

“If atrocities like this are allowed to happen and the city and state can hide behind sovereign immunity, then who is protecting the people of Roswell?” Anaya asked.

Senior Writer Lisa Dunlap can be reached at 575-622-7710, ext. 351, or at reporter02@rdrnews.com.