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,
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.
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.
H. Balderas, Attorney General Tannis L. Fox, Assistant
Attorney General Santa Fe, NM for Petitioner State of New
Charles F. Noble Santa Fe, NM for Petitioner William C. Olson
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
K. NAKAMURA, Chief Justice
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
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.
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.
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.
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.
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).
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.
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." 220.127.116.11(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.
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." 18.104.22.168(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."
22.214.171.124(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.
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." 126.96.36.199(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."
188.8.131.52(B)(65) NMAC. Waste rock is typically placed in waste
rock stockpiles. A variety of methods are used to process the
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."
184.108.40.206(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
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." 220.127.116.11(B)(59) NMAC. Tailings are deposited
in "[t]ailings impoundments, " which can be as
large as several square miles. 18.104.22.168(B)(60) NMAC.
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.
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
The Copper Rule
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 . . . ." 22.214.171.124 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 126.96.36.19903 NMAC at
locations of present and potential future use." The
groundwater quality standards set out at 188.8.131.5203 NMAC
(3103 standards) specify the allowable pH range and maximum
allowable contaminant concentration for groundwater.
184.108.40.20603(A)-(C) NMAC. Groundwater is polluted when the
contaminant concentration levels identified in the 3103
standards are exceeded.
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
220.127.116.1103 NMAC do not apply within the area of open pit
hydrologic containment." 18.104.22.168(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. 22.214.171.124(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." 126.96.36.199(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 . . . ."
Section 74-6-5(E)(3) and "place of
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 ...