GRIP Settles Appeal of Chino Mine Dilution Proposal
Freepor t-McMoRan Agrees to Water Treatment, Saving 9000 ac re -feet of Clean Groundwa ter Annually

GRIP has won its five-year fight against Chino Mine’s proposal to dilute contaminated water with clean groundwater rather than use more effective treatment technology. The environmental group reached a settlement with the mine under which Chino will use an advanced form of reverse osmosis to remove metals and sulfates from the wastewater it will produce for hundreds of years after mining stops at the site.

“After five years of legal wrangling,” said GRIP president Sally Smith, “this is an enormous victory for the residents of Grant County. After committing to this new technology, it is unlikely that Chino Mines ever will return to its irresponsible and unsustainable plan to waste nearly 9000 acre-feet per year of clean drinking water. This adds up to an annual savings of three times the amount of water Silver City uses each year. In an arid state like New Mexico, we must do our utmost to conserve our valuable groundwater resources. Freeport-McMoRan is no exception.” (Freeport-McMoRan acquired Phelps Dodge Corporation in March 2007.)

In exchange for Chino’s commitment to use the new water treatment technology, GRIP agreed to withdraw its appeal of the mine’s closure plan, approved by the state of New Mexico in 2003. GRIP had appealed to the Water Quality Control Commission both No. 15, Summer 2008 see Appeal Settled on page 6 the dilution plan and the mine’s proposal to leave unreclaimed several hundred acres of waste rock slopes around the open pit.

“This is the best use of GRIP’s limited resources,” said GRIP Executive Director Allyson Siwik. “Eliminating dilution was our top priority. Reclaiming the outslopes of the piles nearest the pit is important, and we believe it would be the responsible thing for Chino to do, but saving up to 9,000 acre-feet of water per year represents the biggest bang for the buck.”

“We had to ask ourselves how much longer we could spend our supporters’ donations on technical and legal hearings in Santa Fe,” Smith added. “Freeport has enough money to drag out our appeal for several more years. We took the proposal seriously when they offered to settle in advance of yet another round of hearings.”

Other aspects came into play in GRIP’s decision. Based on the New Mexico Environment Department’s current comments on the Chino five-year permit renewal application, NMED is requiring reclamation of the piles nearest the open pit. Although GRIP dropped its appeal of these aspects of the permit, the department appears to be unwilling to allow Chino to leave the piles unreclaimed. Additionally, it was clear that the Office of the State Engineer was unwilling to make a decision on the dilution question until closure actually occurred— possibly decades into the future. This made it difficult for NMED to make a decision now on water treatment for the closure permit. GRIP’s fear was that the dilution issue would fall through bureaucratic cracks and the situation would be allowed to remain unresolved.

Both GRIP and Freeport-McMoRan are bound by the settlement for 10 years. Beyond that the mine will be free to propose other water treatment options and GRIP has the right to oppose any unreclaimed waste rock piles still included in the mine’s closure plan. “We believe that because the mine now acknowledges advanced water treatment is technically feasible at Chino, it will be very difficult to convince the state to accept dilution again,” said Smith.

This legal battle began in August 2003 when the Santa Fe-based nonprofit law firm, the New Mexico Environmental Law Center filed an appeal to the Water Quality Control Commission on behalf of GRIP. Chino was then owned by Phoenix-based Phelps Dodge Corporation, which tried for two years to get GRIP’s case dismissed. After GRIP’s appeal to the New Mexico Court of Appeals, the organization won the right to have its case heard and Phelps Dodge saw the writing on the wall. GRIP’s appeal and related permit conditions forced the company to reassess its dilution proposal. During 2006 and 2007 the company developed and tested a treatment technology that would remove enough heavy metals and sulfates from pit water and runoff to meet water quality standards for discharges of treated water. GRIP and the New Mexico Environment Department reviewed the results and determined that Chino appears capable of eliminating dilution sufficiently. Under the settlement agreement, this new water treatment proposal will be included in the five-year renewal of Chino Mine’s closure permit scheduled for approval this year.

“We applaud the mine’s research and development efforts,” said Siwik. “Our technical consultant proposed this kind of technology five years ago, but only with Chino’s expertise and commitment could it be adapted to the specific chemistry of the Santa Rita pit and surrounding area.”

Phelps Dodge Appeals Permit for Discharge of Toxics in Tyrone
State commission will decide future of groundwater at closure of Grant County mine.

Summer '07

In its continued efforts to get out of legal environmental requirements when the Tyrone copper mine closes, Phelps Dodge (PD) was back in front of the state of New Mexico Water Quality Control Commission (WQCC) in Santa Fe in July and August. Company officials argued at the WQCC hearing that the giant copper mining company didn't need to "regrade" and cover stockpiles in and around the Tyrone mine open pit. Regrading and covering would prevent acid rock drainage and protect groundwater quality below the mine site. The outcome of the case will determine if community groundwater resources in the Mimbres and Gila basins is protected. The state body's decision also has implications for groundwater protection around the state.

Phelps Dodge, now a subsidiary of Phoenix- based Freeport-McMoRan, appealed two conditions for closing the Tyrone site that were originally issued in April 2003. Company officials argued that water under the mine site is not "a place of withdrawal of water for present or reasonably foreseeable future use" and thus is not protected under the state's Water Quality Act. This was not the first time that Phelps Dodge has objected to a crucial facet of the process known as "reclamation," which is the process of safely cleaning up a mine. After a 10-day appeal hearing back in June of 2004, the WQCC reaffirmed the same two conditions.

PD took the case to the courts, appealing the decision to the New Mexico Court of Appeals. In June 2006, the Court of Appeals reversed the WQCC's decision, remanding the case back to the Commission so that it could "create some general factors or policies to guide its determination" of where water quality standards must be met. Since late July 2007, the WQCC has been hearing testimony from Phelps Dodge, the New Mexico Environment Department (NMED) and GRIP technical witnesses regarding factors that should be used in a determination.

Through its nine witnesses, Phelps Dodge again argued that water under the Tyrone mine site isn't required to be protected under the Water Quality Act. PD contends that it will to continue to pump and treat contaminated groundwater from three open pits and various wells, for hundreds of years if necessary, to prevent the existing and future contaminated groundwater at its mine site from spreading offsite. Because of this, PD argues, it does not need to place a cover on hundreds of acres of leach ore and waste rock piles, although it admits this would substantially reduce the discharge of acid rock drainage into groundwater. PD further admits that a substantial portion of the alluvial and regional aquifers lying beneath its 12,000 acre mine site will be contaminated above state standards, but it argues that no one will ever withdraw groundwater from the mine site, even for hundreds of years. PD makes this argument despite the fact that water is currently withdrawn from the mine site each year for purposes of water supply, that this withdrawal of water will likely continue for hundreds of years, and that it is reasonably foreseeable that third persons will use the water withdrawn from the mine site.

Rick Mohr, General Manager at Tyrone, testified that rather than implementing source control -- preventing pollution at its source -- PD will implement institutional controls to prohibit anyone from withdrawing water from the mine site. This is the equivalent of keeping a dangerous hole in a playground, fencing it rather than filling it in.

The hearings aren't over. When they resume in September, NMED officials will argue that the mine site is in fact a place withdrawal in the foreseeable future and therefore the groundwater under the mine site needs to be protected.

GRIP agrees. The GRIP position is that PD intends to pump and treat contaminated groundwater from the open pit after the mine is closed. It is therefore reasonably foreseeable that the company will want to use or sell this water for municipal or agricultural use. Moreover, there are locations within the mine site where water could be withdrawn for domestic or agricultural use.

The Water Quality Control Commission, thanks to the appeals court remand, must identify specific policies by which to make a decision. On behalf of GRIP, Bruce Frederick, attorney with the New Mexico Environmental Law Center, filed a motion that the WQCC adopt three policies to guide its decision on whether the Tyrone mine site must be protected under the Water Quality Act:

1) The Commission should assume that every aquifer within a declared underground water basin is a "place of withdrawal" and that it is the applicant's burden to prove otherwise. The New Mexico Constitution provides that all "unappropriated water within New Mexico… is public water and subject to appropriation for beneficial use." Since the Tyrone mine sits above the Mimbres and Gila-San Francisco groundwater basins with discharges from the mine site directly affecting water in these aquifers, the Commission should assume that the Tyrone mine is a place of withdrawal for present or reasonably foreseeable future use.
2) The Commission should assume that in an arid state such as New Mexico, it is contrary to public policy that an aquifer will NOT be a "place of withdrawal" for extremely long or indefinite periods of time. It has long been the policy of the state to maximize the utilization of water and not underutilize it. Because the state is "water-poor", we can't afford to "write-off" our groundwater supplies. Existing contamination of the shallow and regional aquifer caused by the Tyrone mine and the potential for continued contamination of groundwater for hundreds of years is against public policy as it promotes the underutilization of groundwater resources.
3) The Commission should favor closure plans that do not rely on perpetual maintenance. Phelps Dodge argues that because all contaminated water flows to the open pit and the closure plan requires perpetual pumping and treating to meet water quality standards, it doesn't need to prevent groundwater contamination from acid rock drainage from stockpiles at the mine site. However, the state's Mining Act requires that mine closure plans be "designed to meet without perpetual care all applicable environmental requirements of the Mining Act."

There is also uncertainty in predicting what will happen hundreds of years from now. What if Freeport-McMoRan/Phelps Dodge goes bankrupt and can no longer pump and treat contaminated water from the pit? GRIP's technical witness, mine engineer Jim Kuipers, testified that source controls are the only long-term solution for minimizing creation of pollution, resulting in the reduction of treatment and long-term operation and maintenance costs. In many cases it is not possible to capture and treat contamination, thus source control methods, such as regrading and covering stockpiles, typically take a high priority in reclamation and closure plans. At the Tyrone mine, site-specific geological and hydrological conditions make it impossible to capture all of the groundwater contamination. Historical and current monitoring well data shows exceedances of water quality standards in the shallow and regional aquifers at various locations in and around the mine site.

It is hard to overstate the importance of the Water Quality Control Commission's decision, since this is, after all, our local water supply at issue. A decision that the mine site is not a place of withdrawal of water for present or reasonably foreseeable future use would allow Phelps Dodge to forego source control that would otherwise prevent continued acid rock drainage. If the company prevails in this case, Phelps Dodge officials have proposed applying "institutional controls" to reduce public health risk from groundwater contamination. This means that rather than implementing a comprehensive discharge plan to prevent acid rock drainage, PD would try to prohibit groundwater use from within the permit boundary. The enforceability of institutional controls over hundreds of years -- the potential time frame of discharges from the mine site -- is highly uncertain. Institutional controls reduce clean-up costs for Phelps Dodge, but may transfer the cost of water treatment to the public, if and when contaminated groundwater needs to be used by municipalities in the future.

The WQCC's decision is expected in the fall, after the hearing ends in mid-September. The hearings are open to the public and oral and/or written public comments will be accepted. PD has stated that active mining will end at the Tyrone and Chino mines in the next 10 - 15 years.

Silver City Contemplates Water Main Extension Policy

Recognizing that the municipality lacked a clear policy for reviewing requests for water main extensions, the Silver City town council in March approved a moratorium on approval of new water main extension applications until an ordinance could be put in place. To learn more, read our article in our Summer '06 Get A GRIP:
page 1
page 1 continued on page 5
page 5 continued on page 7

To download a copy of the draft water main extension ordinance, visit www.townofsilvercity.org