Tyrone Mine Appeals WQCC Permit Decision Closure Goes Back to Court of Appeals – a Second Time
by Allyson Siwik, GRIP Executive Director
Freeport-McMoRan’s Tyrone Mine has appealed a February decision by the New Mexico Water Quality Control Commission (WQCC) requiring that the polluted groundwater underneath the 12,000-acre Tyrone Mine Site be reclaimed and protected from further pollution by Tyrone’s ore and waste rock stockpiles. The company’s notice states that the appeal is taken on “all substantive, procedural and evidentiary issues” related to the WQCC decision. Bruce Frederick, the New Mexico Environmental Law Center attorney who represents GRIP in the Tyrone appeal, stated that “the company is basically taking the position that its ownership and control of property allows it to pollute the groundwater below the mine.”
A review of the legal history of this case demonstrates that the firm doesn’t give up easily. Apparently, Freeport has sufficient resources to continue its legal efforts to get out of environmental requirements, despite repeated denials of its petitions and years of legal proceedings. In April 2003, for example, Phelps Dodge Mining Company (now a subsidiary of Phoenix-based Freeport-McMoRan) appealed two conditions for reclaiming the Tyrone mine site upon closure, arguing that water under the mine is not “a place of withdrawal of water for present or reasonably foreseeable future use” and is thus not protected under the state’s Water Quality Act. A decision in the company’s favor would have relieved it of some reclamation requirements at the site designed to protect groundwater quality.
After a 10-day appeal hearing in June 2004, the WQCC reaffirmed the original Tyrone permit conditions. Phelps Dodge then appealed to the New Mexico Court of Appeals, which reversed the WQCC’s decision. The court remanded the case back to the commission and directed the WQCC to develop factors for determining where water quality standards must be met. After more than a year of study and 24 days of expert testimony, the WQCC ruled last winter that New Mexico has the right to protect the quality of all groundwater now and for future generations. Additionally, it outlined the factors appropriate for identifying a “place of withdrawal of water for present or foreseeable future use.”
At press time, the appeal had not yet been briefed and no date for oral argument was scheduled.