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Gila Resources Information Project v. New Mexico Water Quality Control Commission

Supreme Court of New Mexico

March 8, 2018

GILA RESOURCES INFORMATION PROJECT, AMIGOS BRAVOS, TURNER RANCH PROPERTIES, L.P., STATE OF NEW MEXICO, ex rel., HECTOR BALDERAS, Attorney General, and WILLIAM C. OLSON, Appellants-Petitioners,
v.
NEW MEXICO WATER QUALITY CONTROL COMMISSION, Appellee-Respondent, and FREEPORT-MCMORAN CHINO MINES COMPANY, FREEPORT-MCMORAN TYRONE, INC., FREEPORT-MCMORAN COBRE MINING COMPANY, and NEW MEXICO ENVIRONMENT DEPARTMENT, Intervenors-Respondents.

         ORIGINAL PROCEEDING ON CERTIORARI

          Douglas Meiklejohn, Jaime Park, Eric D. Jantz, Jonathan Mark Block, R. Bruce Frederick Santa Fe, NM for Petitioners Gila Resources Information Project, Amigos Bravos, and Turner Ranch Properties, L.P.

          Hector H. Balderas, Attorney General Tannis L. Fox, Assistant Attorney General Santa Fe, NM for Petitioner State of New Mexico

          Charles F. Noble Santa Fe, NM for Petitioner William C. Olson

          Hinkle Shanor LLP Thomas Mark Hnasko Gary W. Larson Julie Ann Sakura Santa Fe, NM for Respondent

          Modrall, Sperling, Roehl, Harris & Sisk, P.A. Stuart R. Butzier Emil John Kiehne Albuquerque, NM Gallagher & Kennedy, P.A. Dalva Lon Moellenberg Anthony J. (T.J.) Trujillo Albuquerque, NM Law Office of John J. Kelly, P.A. John Joseph Kelly Albuquerque, NM for Intervenors-Respondents Freeport McMoran Chino Mines Company, Freeport-McMoran Tyrone, Inc., Freeport-McMoran Cobre Mining Company New Mexico Environment Department Andrew P. Knight Albuquerque, NM Kathryn Suzanne Becker Santa Fe, NM for Intervenor-Respondent New Mexico Environment Department

          OPINION

          JUDITH K. NAKAMURA, Chief Justice

         {¶1} In September 2013, the New Mexico Water Quality Control Commission (the Commission) adopted the Copper Mine Rule, 20.6.7 NMAC (Copper Rule). Petitioners argue that the Copper Rule violates the Water Quality Act (WQA), NMSA 1978, §§ 74-6-1 to -17 (1967, as amended through 2013) because it is premised on an impermissible construction of the statutory phrase "place of withdrawal of water for present or reasonably foreseeable future use." Section 74-6-5(E)(3). Petitioners assert that, as a consequence of this impermissible construction of the statutory phrase, the Copper Rule permits rather than prevents groundwater contamination at open pit copper mining facilities. We reject these arguments, conclude that the Copper Rule is premised on a permissible construction of the statutory phrase, and affirm the Commission's decision to adopt the Copper Rule.

         I. BACKGROUND

         {¶2} The WQA was enacted in 1967. Its purpose is "to abate and prevent water pollution." Bokum Res. Corp. v. N.M. Water Quality Control Comm'n, 1979-NMSC-090, ¶ 59, 93 N.M. 546, 603 P.2d 285. Prior to 2009, the WQA did not allow the Commission to specify by rule the "method to be used to prevent or abate water pollution . . . ." Section 74-6-4(D) (2003). Amendments to the WQA enacted in 2009 altered this legislative framework.

         {¶3} The 2009 amendments to the WQA directed the Commission to adopt regulations particular to specific industries, including the copper mining industry, specifying "the measures to be taken to prevent water pollution and to monitor water quality." Section 74-6-4(K). The regulations were to be developed by the New Mexico Environment Department (NMED). Section 74-6-4(K) ("The constituent agency shall establish an advisory committee . . . to advise the constituent agency on appropriate regulations to be proposed for adoption by the commission."); Section 74-6-2(K)(1) ("'[C]onstituent agency' means . . . the department of environment[.]"). The NMED engaged in an open rulemaking process that resulted in the Copper Rule, which the Commission adopted when it entered its Order and Statement of Reasons on September 25, 2013. Petitioners appealed the Commission's decision to adopt the Copper Rule. See Gila Res. Info. Project v. N.M. Water Quality Control Comm'n, 2015-NMCA-076, ¶ 1, 355 P.3d 36.

         {¶4} The Court of Appeals rejected Petitioners' contention that the Copper Rule violates the WQA and affirmed the Commission's order adopting it. Id. ¶¶ 2, 19, 61. We granted certiorari to review Petitioners' requests that we set aside the Copper Rule and remand this matter to the Commission with instructions that it promulgate a new rule that complies with the WQA.

         II. DISCUSSION

         {¶5} The Commission's order adopting the Copper Rule shall be set aside if it is "(1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not in accordance with law." Section 74-6-7(B). Petitioners contend that the Commission's decision to adopt the Copper Rule is not in accordance with law because the Copper Rule is inconsistent with and violates the WQA.

         {¶6} Petitioners do not ask us to evaluate the lawfulness of the Copper Rule under some specific set of circumstances; the Copper Rule has not yet been applied at a copper mine. Instead, Petitioners mount a facial challenge to the Copper Rule. See Am. Hosp. Ass'n v. N.L.R.B., 499 U.S. 606, 619 (1991) ("This case is a challenge to the validity of the entire rule in all its applications."). The inquiry before us is whether the Copper Rule is a permissible exercise of the Commission's statutory authority, N.M. Mining Ass'n v. N.M. Water Quality Control Comm'n, 2007-NMCA-010, ¶ 21, 141 N.M. 41, 150 P.3d 991, and Petitioners must establish that no set of circumstances exist where the Copper Rule could be valid. Reno v. Flores, 507 U.S. 292, 301 (1993).

         {¶7} Petitioners make varying specific claims in support of their assertion that the Copper Rule violates the WQA. To meaningfully discuss those specific claims, we must first examine how open pit copper mining is conducted. We then provide an overview of the Copper Rule focusing on the provisions that are central to its function as a regulatory tool and to which Petitioners object. Finally, we consider Petitioners' specific arguments.

         A. Copper Mining

         {¶ 8} Petitioners contend that "the undisputed testimony and other evidence in the record show[s] that open pit copper mines have caused tens of thousands of acres of ground water pollution in New Mexico and that this pollution persists for hundreds of years." Nevertheless, the legality of open pit mining is not disputed and no party advocates banning this form of mining.

         {¶ 9} According to Respondents, open pit copper mining is the typical method to mine copper. An "open pit" is "the area within which ore and waste rock are exposed and removed by surface mining." 20.6.7.7(B)(41) NMAC. For context of the scale of open pit mines, one such mine in Grant County, New Mexico is 11, 600 feet long, 8, 500 feet wide, and 2, 000 feet deep. Open pits eventually become deep enough to reach the groundwater table. At that point, water must be pumped out of the open pit to mine it any deeper.

         {¶10} As the depth of the open pit increases, gravity causes groundwater in the vicinity of the open pit to flow towards the bottom of the pit. The area affected by this hydrological phenomenon is referred to as the "[a]rea of open pit hydrologic containment." 20.6.7.7(B)(5) NMAC ("'Area of open pit hydrologic containment' means . . . where ground water drains to the open pit and is removed by evaporation or pumping, and is interior to the department approved monitoring well network installed around the perimeter of an open pit[.]"). Some surface waters also drain into the open pit. "[T]he area in which storm water drains into an open pit and cannot feasibly be diverted by gravity outside the pit perimeter" is referred to as the "[o]pen pit surface drainage area." 20.6.7.7(B)(42) NMAC. Petitioners aver that, while the area of open pit hydrologic containment and open pit surface drainage area are distinct in that one concerns groundwater and the other surface water, the areas both exist as a consequence of the open pit, exist at the same general location, and are properly considered as companion concepts.

         {¶11} The actual extraction of copper from mined rock occurs at mine "units." A "[u]nit" is "a component of a mining operation including but not limited to processing, leaching, excavation, storage, stockpile or waste units." 20.6.7.7(B)(63) NMAC. Some of the mined rock contains useful copper ore; other mined rock is waste. "Waste rock" is "all material excavated from a copper mine facility that is not ore or clean top soil." 20.6.7.7(B)(65) NMAC. Waste rock is typically placed in waste rock stockpiles. A variety of methods are used to process the ore.

         {¶12} Some ore is placed into leach stockpiles, which are "piles associated with mining disturbances that have been leached, are currently being leached or have been placed in a pile for the purpose of being leached." 20.6.7.7(B)(33) NMAC. Once the leach stockpile is formed, acidic solution is poured onto it. Copper is extracted at the bottom of the leach stockpile and piped to a processing plant.

         {¶13} Other ore is sent to a concentrator where it is ground into small particles and mixed with water to form a slurry. Some of the slurry becomes copper, and other portions of it become "tailings, " which are "finely crushed and ground rock residue and associated fluids discharged from an ore milling, flotation beneficiation and concentrating process." 20.6.7.7(B)(59) NMAC. Tailings are deposited in "[t]ailings impoundments, " which can be as large as several square miles. 20.6.7.7(B)(60) NMAC.

         {¶14} All of these copper extraction processes, as well as waste rock stockpiles, can cause discharges that impact groundwater quality. For this reason, mining units are frequently located near the open pit and within the open pit surface drainage area so as to capture any discharges at a mining unit.

         {¶15} The open pit itself is also capable of generating discharges that may contaminate groundwater. When rain water contacts the exposed surfaces of the open pit, acidic solutions can be generated. Other sources of possible contaminant discharge at open pit mining facilities include "surface impoundments that store or retain process water; wastewater or storm water runoff that has contacted mined materials; pipeline and tank systems used to convey or store process water; and equipment washing facilities."

         B. The Copper Rule

         {¶16} The Copper Rule is comprised of thirty-nine different sections and a myriad of subsections which address all manner of discharge control for the copper mining industry. It is a "supplement [to] the general permitting requirements . . . to control discharges of water contaminants specific to copper mine facilities . . . ." 20.6.7.6 NMAC. The "purpose" of the Copper Rule, as stated by the Commission, "is to control and contain discharges of water contaminants specific to copper mine facilities and their operations to prevent water pollution so that ground water meets the quality standards of 20.6.2.3103 NMAC at locations of present and potential future use." The groundwater quality standards set out at 20.6.2.3103 NMAC (3103 standards) specify the allowable pH range and maximum allowable contaminant concentration for groundwater. 20.6.2.3103(A)-(C) NMAC. Groundwater is polluted when the contaminant concentration levels identified in the 3103 standards are exceeded.

         {¶17} Petitioners' objections to the Copper Rule arise from two of its features. First, the Copper Rule specifies that, "[d]uring operation of an open pit, the standards of 20.6.2.3103 NMAC do not apply within the area of open pit hydrologic containment." 20.6.7.24(D) NMAC. Second, the Copper Rule requires an applicant for a discharge permit to install monitoring wells in specific locations at an open pit mining facility. 20.6.7.28(A) NMAC. The monitoring wells must be placed "around the perimeter and downgradient of each open pit, leach stockpile, waste rock stockpile, tailings impoundment, process water impoundment, and impacted stormwater impoundment." 20.6.7.28(B) NMAC. The monitoring wells must also be installed "as close as practicable" to the open pit or mining unit in order "to detect an exceedance(s) or a trend towards exceedance(s) of the applicable standards at the earliest possible occurrence, so that investigation of the extent of contamination and actions to address the source of contamination may be implemented as soon as possible." Id. "The [NMED] may require additional wells around the perimeter of mine units that are underlain by areas where ground water flow directions are uncertain" and may "require additional monitoring wells at any other unit of a copper mine facility that has the potential to cause an exceedance of applicable standards . . . ." Id.

         C. Petitioners' Arguments

         1. Section 74-6-5(E)(3) and "place of withdrawal"

         {¶18} Petitioners' primary contention in this appeal is that the Copper Rule permits the copper mining industry to pollute groundwater above the 3103 standards wherever its mines are located. It does this, Petitioners explain, by waiving compliance with 3103 standards within the area of open pit hydrologic containment and by assessing the impacts of mining on groundwater at monitoring wells rather than at the open pit and mining units themselves. This is, Petitioners argue, inconsistent with the plain language of Section 74-6-5(E)(3), which states that

[t]he [NMED] shall deny any application for a permit or deny the certification of a federal ...

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