New Mexico Mining Association Weighs In on Corrections and Clarifications
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NMMA Focuses on Santa Fe New Mexican Story “Proposed rules could give copper mines free rein to pollute water”
In an effort to correct and clarify certain information reported by parties participating in the copper rules conversation who were relied upon or quoted in an August 25, 2013 story about the proposed copper rules by the Santa Fe New Mexican (SFNM), “Proposed rules could give copper mines free rein to pollute water”, the New Mexico Mining Association (NMMA) has issued this overview.
SFNM: Currently, state law prohibits pollution of groundwater above quality standards by any industry, but the Environment Department has provided some exceptions through variances.
NMMA: This statement is not an accurate statement of the law. The Water Quality Act prohibits the Environment Department from issuing a permit for a discharge “. . . if the discharge would cause or contribute to water contaminant levels in excess of any state or federal standard. Determination of the discharges’ effect on ground water shall be measured at any place of withdrawal of water for present or reasonably foreseeable future use.” Section 74-6-5.E(3) NMSA 1978. The Water Quality Control Commission is charged with setting standards and determining where they apply, including interpreting what constitutes a “place of withdrawal of water for present or reasonably foreseeable future use.” The proposed copper rules are based upon the Commission’s interpretation of how a copper mine must comply with ground water quality standards.
SFNM: Specifically, the change would allow Freeport-McMoRan Copper and Gold to contaminate groundwater beneath any of its Southern New Mexico mining properties, as long as it followed the containment and cleanup regulations.
NMMA: This statement is untrue, as the proposed copper rule does not allow contamination of ground water beneath all of a copper mine’s property. With regard to existing New Mexico copper mines, the proposed copper rule requires mining companies to operate under the same permit conditions imposed by the Department under the existing regulations. With regard to new or expanded mine facilities, the proposed copper rules requires facilities that hold the most concentrated solutions—particularly copper leach solutions—to be lined. This includes a proven liner system for copper leach stockpiles and double-lined ponds with leak collection systems for impoundments that hold process water. The Department may approve reduced liner systems without a variance, but only for facilities where any leakage would be fully contained within an open pit such that no water can migrate away from the pit. For waste rock stockpiles, liners are not required as long as a permit applicant demonstrates that any leachate will meet ground water quality standards or any leachate exceeding standards will be fully contained. By comparison, under the existing rules, the Department has issued discharge permits for unlined leachate stockpiles and unlined waste rock stockpiles both inside and outside of open pit areas and has approved unlined, clay-lined and various liner systems for process water impoundments.
SFNM: Other industries, like Los Alamos National Laboratory and a gold mine in the works near Santa Fe, could claim a legal right to pollute groundwater beneath their properties without variances.
NMMA: Other industries will continue to operate under the Commission’s general discharge permit regulations that have existed since 1977. The proposed copper rules do not change those regulations.
SFNM: “The evidence . . . shows that for 36 years, the New Mexico Environment Department, under the Water Quality Act and regulations has not allowed groundwater contamination above standards for any facility.” (quoting Tannis Fox, an assistant attorney general handling the case)
NMMA: It is true that Mr. Bill Olson, a geohydrologist and former chief of the Environment Department’s Groundwater Bureau gave that testimony, but his testimony is contradicted by the facts. For example, Mr. Olson himself signed numerous discharge permits that authorized unlined leach stockpiles and tailings impoundments without requiring a variance, and when monitoring data showed that there were contaminants in ground water above the Commission’s ground water quality standards.
SFNM: Mr. Olson said the proposed copper rule would give Freeport-McMoRan the right to pollute above state water quality standards below all of its mine operations. The copper rule as written would grant the company carte blanche to pollute groundwater under all of its property without needing a variance, including areas where the water has not yet been contaminated.
NMMA: As discussed above, it is patently untrue that the proposed copper rules will grant mining companies “carte blanche” to pollute groundwater under all of its property. The proposed copper rule retains in place permit conditions imposed by the Department for existing facilities. The proposed copper rule imposes stringent liner system requirements for leach stockpiles and process water and impacted stormwater impoundments that are at least as strict, if not more strict, than anything the Department has required through permit conditions. The proposed copper rules specifically require the same mine closure requirements that the Department has imposed through permit conditions. The copper rules do allow for unlined tailings impoundments, but that is based on expert testimony that lined tailing impoundments may not be feasible or consistent with state engineer requirements and may affect stability, and other testimony that unlined tailings impoundments have been used in New Mexico without causing ground water quality standards to be exceeded.
SFNM: In their first decision, in 2006, justices determined that while the state’s Water Quality Act plainly says all water on a mine site should be protected to drinking water standards, “we reject such as broad and impractical interpretation of the act.”
NMMA: The justices did not determine that the Water Quality Act plainly requires that all water on a mine site should be protected to drinking water standards. In fact, the justices rejected the Commission’s first decision to that effect.
SFNM: Olson said parts of the proposed copper rule suggested by Freeport are contrary to what the company agreed to in the settlement.
NMMA: The settlement agreement addressed only a couple of specific points with respect to the proposed copper rules, and those with the understanding that the settlement agreement was not binding upon the Commission. In particular, our understanding of the settlement agreement specified that the Department and Freeport-McMoRan agreed that the proposed copper rules should provide for variance hearing before the Department, rather than the Commission. During the Advisory Committee process, the Department, Freeport-McMoRan, and the other participants all agreed that this change in the hearing requirement was not a good idea, and the settlement agreement was later amended to remove this provision.
SFNM: In the end, he (Olsen) said, the language that administrators wanted in the rule stuck closely to what Freeport wanted, including allowing the company to pollute groundwater beneath all of the mine’s 9,000 acre property as long as it was captured and contained.
NMMA: This again is patently untrue, as discussed above. The copper rules requires the use of various technologies to contain water contaminants, including liners when appropriate and other systems where liners are not feasible. If the Department concludes that unlined facilities would not appropriately contain contaminants, then it has express authority to require liners or other improvements to ensure compliance. Exceptions from compliance with standards are provided only for the open pit areas, and even Mr. Olson does not oppose that exception in his own changes to the proposed copper rules.
SFNM: They (Olsen and Fox) say that if the copper rule is approved as written, Freeport-McMoRan will win everything it had sought through a decade of litigation against the state.
NMMA: We understand that Freeport-McMoRan’s litigation opposed certain conditions required by the Department in permits for closure of portions of the Tyrone Mine. The proposed copper rules contain all of the closure requirements specified in the Tyrone Settlement Agreement, which was negotiated and signed by the Department before the end of the Richardson administration. The referenced litigation was not directed toward the requirements for continued operation of existing mining operations under existing discharge permits or the requirements for future new mines or expansions of the existing mines.
SFNM: “We would like to see all leach pits lined, all waste rock piles lined and tailings lined, or some other technology to prevent contamination in the first place, rather than allow the contamination and then crossing your fingers and hoping it is all captured,” Fox said.
NMMA: This statement mischaracterizes the proposed copper rules. The rules retain the existing discharge permit conditions imposed under the Water Quality Act and the existing Commission regulations that authorize the continued operation of existing mines. It requires liner systems for all leach stockpiles (subject to modified liner requirements inside open pits) and for process water impoundments. According to the hearing testimony, liners for waste rock stockpiles and tailings impoundments have not been required in the past in New Mexico or elsewhere and rarely, if ever, are necessary as long as other appropriate pollution prevention measures are taken. Nevertheless, under the proposed copper rules, the Department still retains authority to require liners for both waste rock stockpiles and tailings impoundments where it determines that other measures will not be effective.
The New Mexico Mining Association is committed to advancing the mineral resources and related industries in New Mexico and to protect New Mexico’s environment. The NMMA serves as a spokesman for the mining industry in New Mexico and works to keep the industry informed on pending legislation.