Commentary by DAVID CORREIA
Here’s what we know: Since Governor Susana Martinez was elected governor in 2010 she has repealed every major environmental regulation in the state. She rolled back climate change mitigation plans because it hurt industry. She repealed a dairy pit rule that promised to protect groundwater because it cost commercial farmers too much money. She gutted the oil and gas pit rule because her biggest campaign contributors—the oil and gas industry—didn’t want the added expense that came with lining the thousands of leaking pits of toxic slurry that dot the New Mexico landscape. And now, at her urging, the Water Quality Control Commission (WQCC) rewrote the copper pit rule. It was a criminal act. The 1967 Water Quality Act (NMSA 1978 S 74-6-1) established the authority, in fact the legal obligation, of the WQCC to protect surface and groundwater from the pollution and contamination of industrial activity. It was from this act that the WQCC and the New Mexico Environment Department (NMED) acquired the statutory authority to regulate the noxious effects of all kinds of industrial resource extraction in New Mexico. But appointees of Martinez have repealed all regulation regarding copper mining. You might want to read that last sentence again. It’s not hyperbole. I’m not exaggerating to make a point. As if the watered-down dairy and oil and gas pit rules weren’t bad enough, the new copper pit rule makes copper mining an activity wholly exempt from environmental regulation.
There are now no water quality standards regarding copper mining in New Mexico and no obligation to meet any water quality standards within the area of open pit hydrologic containment, beneath leach stock piles, waste rock piles, or tailings impoundments. In other words, there are now no environmental standards, oversight, regulations, or mitigation efforts at precisely the point at which the industrial activity of open pit mining contaminates groundwater.
This is a gift to an industry that has a history of groundwater contamination and a record of avoiding mitigation of that contamination. As I wrote in a recent story, at the same time that Martinez sought a repeal of environmental regulations that protected groundwater from copper mining, the New Mexico Attorney General was suing Freeport-McMoRan, the state’s only copper mining operator, for polluting groundwater. That lawsuit ended in February of 2011 when Freeport-McMoRan agreed to a consent decree with the state of New Mexico that its mines were the cause of historic groundwater contamination stemming from operations at its three copper mines: Tyrone, Cobre and Chino. According to the complaint, which described the need for remediation as “Superfund-like,” massive slag heaps and huge tailings ponds at the Chino Mine are laced with sulfuric acid and dissolved metals such as arsenic and mercury and leach into groundwater. The complaint notes that recent events have had significant impacts on surface and groundwater quality. Nearly 200,000 gallons of toxic tailings were accidentally released into Hanover Creek in 1996. Three years later a pipeline breach dumped 8 million gallons more.
In another case involving groundwater pollution at the Tyrone Mine, the New Mexico Court of Appeals concluded that “The process of mining copper produces acid drainage that significantly and adversely affects groundwater. Piles continue to create acid drainage for hundreds of years after mining has ceased, as the piles are exposed to water and oxygen.”
Despite the lawsuit and the consent decree, the new copper pit rule promises to make monitoring of future groundwater contamination difficult and mitigation impossible when it does happen.
And the WQCC knows all of this. This history of groundwater pollution was presented to the WQCC in testimony by both critics and industry-insiders alike. NMED’s own consultants and representatives of Freeport-McMoRan admitted that mining contaminants leach into groundwater. A number of environmental organizations, who opposed the rule, noted in arguments presented to the WQCC last month that “under NMED’s Rule, waste rock stockpiles, tailings stockpiles, and impoundments at all copper mines will intentionally be designed to cause groundwater pollution rather than prevent it.”
On September 10 the WQCC ignored this evidence and voted 9-1 to adopt this new rule, which is a rule that violates the legal obligation in the New Mexico Water Quality Act to protect groundwater.
It’s important to understand the logic of this new rule. The new rule begins with the premise that copper mining is inherently polluting but essential and therefore necessary and allowable. Wherever copper mining happens, so too will pollution. But since it’s an economic priority, as the logic goes, we need to identify sacrifice zones where this activity can occur and where pollution will be allowed to happen. But how should we do that? With Martinez in office, that decision is entirely one that industry makes. According to this new rule, a sacrifice zone is anywhere that copper mining giant Freeport-McMoRan operates. And at those sites, any and all polluting activity can occur, whether they are related to copper mining or not; and these activities will not require any permitting or regulatory oversight.
To Governor Martinez this is all just the price of doing business. Freeport-McMoRan says they just can’t turn a profit from copper mining in New Mexico without the economic relief that comes with this new rule (believing them, of course, requires ignoring the fact that Freeport is one of the most profitable companies on earth, with annual profits greater than McDonald’s).
This is depressing news but frighteningly it’s only half the story—it gets much worse. First, the new rule does not merely remove the requirement that operators (and there’s only one—Freeport-McMoRan) acquire a permit to extract copper (and thus pollute), it also removes any legal obligation to report unintended spills, leaks, or industrial accidents. They are, in a way, obligated by the new rule to pollute groundwater.
And second, these new groundwater sacrifice zones have vague and ill-defined boundaries and, perhaps worst of all, will be timeless in their application. These are superfund sites in the making and there no longer exists any way to monitor or mitigate polluting activity now or into the future.
The right to freely pollute groundwater will outlive us all and will only be surpassed by the persistence of toxic contamination in our soil and groundwater. This will be Susana Martinez’s legacy. And we’ll have to live (and die) with it.