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Southwestern New Mexico's Chino Mine opened in 1910. Under current rules, copper mines are allowed to pollute the underlying groundwater as long as they obtain a "variance," or exemption, from the Water Quality Control Commission.
This week, state officials will make a decision that could affect New Mexico's groundwater forever.
Almost a year ago, the New Mexico Environment Department proposed a new rule related to copper mine pollution and groundwater. The state, mining companies, scientists, community members, and environmental advocates spent seven months hammering out a draft rule.---
Just before releasing it to the public, however, NMED’s top attorney changed it to include provisions friendly to Freeport McMoRan Copper & Gold, Inc., which owns three copper mines in New Mexico. As SFR reported in May: “Rather than prescribing and enforcing how mines must keep waste from seeping into groundwater, the new rule allows NMED to defer to mining companies themselves.”
Last spring, the state’s Water Quality Control Commission heard weeks of testimony about the rule—and it’s scheduled to make its decision on Tuesday.
In case rules and regulations set you snoozing, here are five reasons SFR readers should pay heed to the state's proposed copper rules:
1. According to the New Mexico Attorney General's Office and environmental groups opposing the rule, as proposed by NMED, the copper rule violates the state's 1978 Water Quality Act, which protects the state's streams, rivers, and lakes—as well as the underground networks of water that most communities in New Mexico rely upon for drinking water.
2. Prior to coming to NMED in 2011, general counsel Ryan Flynn—the person who changed the draft rule in 2012 before it went public—was an associate attorney at Modrall Sperling, a law firm that counts Freeport among its clients. Flynn’s no longer the top lawyer at the department: In April 2013, Gov. Martinez named him the new Cabinet Secretary-designee of NMED.
3. During last spring’s hearings on the rule, NMED tried to block Bill Olson, the former bureau chief it had hired to write the rule, from testifying before the commission. Olson, who spent 25 years working on groundwater issues and is a former commissioner himself, ended up testifying as a private citizen. So who did NMED line up to defend the rule? An acting director who wasn’t involved in the rule-making process and a private contractor it paid $75,000 to act as an expert witness.
4. NMED's proposed rule overturns the state's earlier victory over Freeport. More than a decade ago, Freeport and NMED began duking it out over the Tyrone Mine, which includes eight open pits and 2,800 acres of leach ore stockpiles and waste rock piles. NMED disagreed with Freeport's claim that since water beneath the mine would never be used for drinking water, it could pollute there with impunity.
Finally, in 2010, they reached an agreement : Freeport could legally pollute the groundwater beneath Tyrone as long as it obtained a five-year variance, or exemption, from the Water Quality Control Commission.
Under the new rule, Freeport would no longer need variances. Instead, copper mining companies will be allowed to pollute groundwater above the state’s legal levels—as long as the pollution doesn’t reach monitoring wells. Oh, and under the new rule, the mining company—not the state—decides where to sink those monitoring wells.
5. There's no reason to think that once the state gives a pass to copper mines that other industries whose activities can pollute groundwater—factories, dairies, wastewater treatment plants, other mines, and even the federal nuclear laboratories—won't wonder why they can't do the same.
