WQCC Decision in Tyrone Case
John Vanvig, Acting Director of Responsible Mining Program
The Gila Resources Information Project hailed state regulators in January for placing valuable New Mexico groundwater supplies ahead of corporate profits generated by Freeport-McMoRan’s Tyrone copper mine in Grant County. The state’s Water Quality Control Commission sided with its Environment Department and GRIP in the mining company’s appeal of its Tyrone closure permit. The action has wide-ranging implications statewide.
GRIP applauded the WQCC action as “the right decision” and New Mexico’s top environmental regulator, NMED Secretary Ron Curry, praised the commission for reestablishing “the state’s right to protect water quality and all groundwater now and for future generations. This precedent- setting decision is important not only for the Tyrone mine site but for the regulation of groundwater quality in Grant County and the rest of the state as well.”
The WQCC move came in response to Freeport-McMoRan’s appeal of two separate 2003 permit conditions in the company’s closure plan for the Tyrone Mine. Arguing that “institutional controls” such as zoning signs and warning regulations would prevent people from using contaminated groundwater beneath the sprawling mine for centuries to come, the company maintained it should not be required to treat such groundwater.
GRIP and state regulators contended this approach would amount to creating groundwater “sacrifice zones” at and around the mine site. The Water Quality Control Commission agreed, rejecting the company’s arguments and finding that the purpose of the state’s Water Quality Act is to protect all present and reasonably foreseeable uses of groundwater.
“Based on the evidence presented during this proceeding,” commissioners declared in a statement outlining their conclusions, “the Commission finds that factors appropriate for identifying a ‘place of withdrawal of water for present or foreseeable future use’…include site hydrology, the quality of groundwater prior to any discharge from a facility, past and current land use in the vicinity of a facility, potential future water use and potential future water demand in the vicinity of a the facility and population trends in the vicinity of the facility.”
GRIP’s executive director, Allyson Siwik, applauded the WQCC’s conclusions. “In an arid state like New Mexico that is very dependent on groundwater supplies,” she noted, “we cannot afford to use our aquifers as waste dumps. We need every drop. The New Mexico Environment Department issued a solid permit in 2003 and the commission made the right decision in supporting it.”
Bruce Frederick is an attorney with the New Mexico Environmental Law Center, which represented GRIP in the proceeding. “The case,” he noted, “has significant statewide implications for how we treat our most valuable resource — our water. The WQCC has studied this issue for more than a year and heard 24 days of expert testimony on the importance of protecting that resource for the people of our state now and well into the future. The appeal decision is a clear loss for Freeport and goes a long way toward protecting New Mexico’s water.”
However, the WQCC decision still has not resolved where the effects of Tyrone’s discharges shall be measured, as requested by the Court of Appeals’ remand of the case in June 2006. The commission has given NMED and Freeport a year and one-half to determine the effectiveness of permit conditions on water quality at the Tyrone Mine. “This battle is not over,” said Siwik. “We must work closely with the Environment Department on its ‘place of withdrawal’ determination over the next 18 months.”