On Dec. 21, 2018, in the closing days of the (Gov. Susana) Martinez administration, the former Environment Department secretary issued a final groundwater discharge permit for the Copper Flat Mine, a proposed open-pit copper mine near Hillsboro, Sierra County, N.M. Issuance of the permit followed a one-week public hearing before an Environment Department hearing officer beginning Sept. 24.
On July 28, the Journal published the views of two local politicians, Rep. Rebecca Dow from Truth or Consequences and Sierra County Commission Chairman James Paxton, both of whom strongly support the discharge permit. It is important that Journal readers hear a different point of view.
Contrary to the statements of Dow and Paxton, the parties seeking review of the discharge permit by the Water Quality Control Commission (WQCC) are not “activist environmental groups who oppose copper mining in general.” The parties are the owners of the Ladder Ranch, which borders the mine to the north; the owners of the Hillsboro Pitchfork Ranch, which borders the mine to the west; Elephant Butte Irrigation District, which distributes Rio Grande water to local farmers; and, indeed, one environmental organization, Gila Resources Information Project (GRIP), which has worked – often cooperatively – with the copper mines in Grant County to protect groundwater both during mining operations and after the mine closes. The ranches and GRIP are represented by the New Mexico Environmental Law Center, a non-profit public interest law firm.
These parties have sought review of the permit, not because they generally oppose mining, but because the discharge permit is deficient. It fails to protect water quality, and it creates an undue risk to neighboring property.
First, the permit does not adequately protect surface water. The permit is based on a novel and dubious legal theory that the pit lake that will form in the open pit after mine closure is not subject to New Mexico surface water quality standards. The pit lake will exceed the standards for mercury and other toxic metals.
Second, the permit is based on an inadequate evaluation of the bedrock formation that underlies two of the proposed waste rock piles at the mine. Fractures in this bedrock could transport pollutants into groundwater, but the extent of fracturing has not been evaluated.
Third, the risk to nearby private property was not adequately considered before the permit was issued. Under the applicable regulations, a discharge permit cannot be issued if it would pose an undue risk to property. The adjacent ranch properties encompass fragile ecosystems, such as Las Animas Creek, and support abundant fish and wildlife. The ranches engage in bison and cattle ranching, guided hunting expeditions and ecotourism. The hearing officer was clearly concerned about risk to ranch property and made no recommendation on the question. In issuing the permit, the former secretary gave little consideration to risk to property.
Fourth, the permit requires a groundwater monitoring well network that is inadequate. Expert testimony at the hearing indicated contaminants could move between monitoring wells undetected.
Finally, the financial assurance – which guarantees that the mine will be properly closed and reclaimed when mining operations cease – is seriously inadequate as proposed. The mining company and the Environment Department agree the financial assurance proposal is insufficient; they are currently negotiating a stronger proposal. But an adequate financial assurance proposal should have been agreed to before the permit was issued. The public was deprived of the opportunity to review and comment on the financial assurance during the permit hearing; even the WQCC will not see the final proposal before it rules on the permit.
It is imperative that the WQCC carefully review this discharge permit. If it finds the permit to be inadequate to protect water quality and nearby property, it must send the permit back to the Environment Department for further evaluation, consideration and revision.