NM Court of Appeals Denies GRIP’s Motion to Stay Copper Rule
FOR IMMEDIATE RELEASE
May 10, 2014
Allyson Siwik, Executive Director
575.538.8078 voice; 575.590.7619 cell
NM Court of Appeals Denies Motion to Stay Copper Rule
Court Ruling Does Not Decide Merits of Copper Rule Case
Silver City, N.M.— In a decision filed on May 7, the New Mexico Court of Appeals denied GRIP’s motion to stay the implementation of the Copper Rule until its appeal of the Rule can be decided. In September 2013, the Water Quality Control Commission adopted the Rule which allows contamination of groundwater beneath copper mine sites in New Mexico. The stay would have prevented the new Rule from being used by the New Mexico Environment Department (NMED) in copper mine permitting decisions while the Copper Rule is under appeal in the NM Court of Appeals.
Douglas Meiklejohn, Executive Director and attorney with the NMELC, stated that the Court’s ruling is just preliminary. “Contrary to the assertions of state officials, the ruling does not determine the merits of the appeal. We requested the Court to delay implementing the rule until it determined whether the rule violated state law. We are confident that the Rule does indeed violate state law, because it permits copper mines to permanently pollute groundwater,” said Meiklejohn.
“It could be a year before a decision is made on our appeal. In the meantime, we are extremely concerned that without the stay of the Copper Rule Freeport-McMoRan will be allowed to contaminate the area’s groundwater, the only source of drinking water for Grant County residents,” stated GRIP Executive Director Allyson Siwik. “Permitting decisions will now be made under the new Copper Rule related to groundwater discharges at the Tyrone and Chino mines. Freeport will be allowed to pollute our groundwater rather than implement measures to prevent pollution at their mine sites. This ruling is a tragedy for the citizens of Grant County who will ultimately have to deal with this contamination when the mines have played out and Freeport is gone.
The Motion to Stay was filed by the Gila Resources Information Project (GRIP), Turner Ranch Properties, L.P., and Amigos Bravos represented by NM Environmental Law Center. In the Motion, the appellants argue that the case raises important legal questions that must be resolved by the Court of Appeals, and that irreparable harm to public water resources is likely if the Copper Rule is implemented. The Rule marks the first time since the state Water Quality Act was adopted that the WQCC has adopted regulations that would allow contamination of groundwater by an industry.
The Motion was supported by the New Mexico Office of the Attorney General and opposed by the NMED and multinational copper mining corporation Freeport-McMoRan Copper & Gold that worked together to draft and advocate for the Rule. Freeport operates three open-pit copper mines in Grant County.
• In 2009, the New Mexico Legislature mandated the Water Quality Control Commission to specify water discharge regulations for the dairy and copper mining industries that would prevent water pollution and protect water quality.
• In 2012, the NMED put together an advisory committee that included members from the copper mining company Freeport-McMoRan, environmental groups and technical experts to craft the new copper rule to present to the WQCC. The advisory committee met for eight months and in mid-August a draft rule was sent to NMED.
• At Freeport’s request, the NMED’s upper management overruled the recommendations of the advisory committee, including those recommendations of its own technical staff, and incorporated language that would allow Freeport (and other copper mine operators) to routinely pollute groundwater with acid rock drainage, metals and other contaminants in the course of its mining operations.
• In April 2013, the NMED presented its draft water quality rules for copper mines before the WQCC. The NMELC and its clients opposed the rules on grounds that they are illegal under the Water Quality Act. NMED’s own technical staff involved in the copper rules development process did not attend the hearing to support the draft rules.
• The WQCC voted 9 – 1 in September 2013 to approve the draft copper rules with little deliberation. In making its decision, the commission adopted, with one small non-substantive change, the Proposed Statement of Reasons submitted by NMED with substantial help from Freeport-McMoRan.
• The NMELC and its clients filed an appeal against the adopted Copper Rule in October 2013.
• The NMELC and its clients filed in October 2013 a motion to stay the adopted Copper Rule until the Copper Rule appeal is decided.
• The WQCC denied NMELC and clients’ motion to stay the copper rule in January 2014. NMELC and its clients filed with the NM Court of Appeals in February 2014 a motion to stay the adopted Copper Rule until the appeal is decided.