Copper & Water

And Attorney General Hector Balderas isn't the only one who's still fighting for stronger environmental regulations. On May 8, environmental groups also asked the New Mexico Supreme Court to overturn a recent Court of Appeals decision declaring that a new rule on copper mining is consistent with the state law protecting New Mexico's water.

The Office of the Attorney General began its opposition to the copper rule under Gary King, says spokesman James Hallinan. This is Balderas' first foray into the issue, but the gist of the new petition centers around the same issue: an argument that the rule allows widespread contamination of groundwater—in perpetuity—at copper mines and also sets a precedent to allow pollution at oil and gas sites and 900 other facilities where groundwater has been protected since the late 1970s.

Since September 2012, the New Mexico Environment Department and the state's Water Quality Control Commission have been under siege from those who say that the new rule heralds a change in how the state protects groundwater from copper mining—and that the new rule, drafted by the department and approved by the commission, allows pollution rather than preventing it.

The fight has gone from back rooms, through commission hearings and on into court. But in early April, the Court of Appeals firmly dismissed the concerns of appellants, including the AG, the Gila Resources Information Project, Amigos Bravos, Bill Olson and Turner Ranch Properties.

NMED Secretary Ryan Flynn calls the rule "among the toughest such regulations in the nation." In a news release issued to announce the Court of Appeals decision, the department noted that the judge said allegations that the rule would allow "widespread" pollution are "unfounded or otherwise exaggerated."

(The department subsequently refused multiple requests to interview Flynn or anyone else who could talk about the rule. Communications Director Allison Scott Majure said the department had no comment on the rule.)

But a closer look at the 38-page decision reveals details about the judges' opinion that the rule doesn't violate the Water Quality Act of 1978. "Although the Regulations' provisions are not perfectly protective of groundwater underlying a mining facility," writes Judge Jonathan B Sutin on behalf of the three-judge panel, "the WQA did not require them to be." They recognize competing interests—the need to protect water and to allow mining—and add that "because mining has inevitable environmental impacts, it would be unrealistic and overbroad" to expect a mine to meet water quality standards everywhere within its boundaries.

Back in 2009, the New Mexico Legislature directed the commission to draft new rules related to groundwater pollution from two industries: dairies and copper mines. While industry officials and environmentalists recently came to an agreement on the dairy rule—the two opposing groups hashed out a settlement and then presented that compromise to the commission—the copper rule remains unresolved.

The New Mexico Environmental Law Center's new brief for the Gila Resources Information Project makes the argument that if the copper industry is allowed to pollute, others will also get a pass.

Bill Olson, a former Water Quality Control Commissioner and bureau chief at NMED, says he spent 11 years working on issues related to dairies and groundwater, and he has worked on the copper issue since 2003. At that time, the commission was in its second year of hearings on contamination from the Tyrone copper mine in southwestern New Mexico. Today, the state's three copper mines are owned by Freeport-McMoRan, Inc., the world's largest publicly traded copper company.

Perhaps more than anyone, Olson has delved deep into the details of the rule and rule-making process.

The 2009 law required agreement from stakeholders on all sides of the issue. Although he'd already retired from NMED, the department hired Olson in 2012 to draft the new rule with help from industry officials, technical experts, environmentalists and communities. For seven months, he wrestled with the copper advisory committee and a technical committee to write the rule, which would be approved by NMED's top staff and, eventually, promulgated by the Water Quality Control Commission.

After stakeholders had come to an agreement, NMED's senior staff made last-minute changes, inserting back in language that Freeport-McMoRan had requested but which other stakeholders had rejected. Olson objected—so strongly that he terminated his contract with NMED and testified against the rule before the commission, despite efforts by NMED to block him from appearing.

"The thing we're pointing out is that the rule violates the [Water Quality Act] on its face because you have to protect places of withdrawal, and they didn't do that," says Olson.

"Places of withdrawal" is one of the major catches. That term refers to any place where water could be taken from the ground, right now or in the future, to be used as drinking water. The rule, says Olson, also allows pollution beneath waste rock piles and impoundments.

In short, Olson says he believes the new rule allows water to be contaminated. Only after the pollution has already occurred does the rule require it to be contained from spreading by pumping or building containment systems.

Olson understands the need to balance industry's needs with environmental protections. But he sees a special urgency today, especially since 90 percent of the state's population relies upon groundwater—rather than water from rivers and reservoirs—for drinking water.

"These are public resources, and just because they're under your property, like for a mine, it's not a private resource," he says. "You have to have a right to use it, because it's a public resource—so why are we allowing our public resources to be contaminated and not be usable again?"

Santa Fe Reporter