By Mary Alice Murphy

Published on Tuesday, 10 November 2015 17:09

By Mary Alice Murphy

Today, Tuesday, Nov. 10, 2015, at the Santa Clara National Guard Armory, New Mexico Environment Department Cabinet Secretary Ryan Flynn discussed the Copper Rule, which faces a New Mexico Supreme Court battle.

The special meeting of the Gila Economic Development Allaince Roundtable, which featured the presentation by Flynn, was sponsored by the village of Santa Clara, the Gila EDA and the Silver City-Grant County Chamber of Commerce.

Jeremiah Garcia, Gila EDA chairman, had attendees introduce themselves. Santa Clara Mayor Richard Bauch gave a short welcome, and Rep. John Zimmerman gave some facts about copper production in the area.

"Last year, copper prices dropped by 25 percent," Zimmerman said. "The drop caused Freeport-McMoRan Copper & Gold Inc. to curtail production. There has been a 50 percent reduction in mining at Tyrone, causing a reduction in force of about 200 people. Chino Mine has absorbed some of the employees and retirement packages were offered to others. I recently was given a tour of the mine, which was enlightening. Copper prices fluctuate up and down, usually in concert with construction.

"The Copper Rule is so important," he continued. "It is a structure for planning. It is being challenged by Attorney General Hector Balderas and his environmental associates.

"The Copper Rule is the most stringent set of environmental constraints in the U.S. and in the world," Zimmerman said. "It creates environmental rules and holds the mining companies to them. The new regulatory framework was supported by all local officials. It is vital to future copper mining operations. I always say: 'If you acquiesce to others, you are condoning what they say.' I encourage you as citizens of the importance of speaking up . When you hear preposterous comments [about the Copper Rule], speak up. If we don't speak up, we allow a few people to control what's happening in our state. I'm passionate about this. I'm plugging along, because I care what's happening in my district and in my state. Pray for me!"

Sen. Howie Morales was also presented briefly, and said: "Whenever there is a community discussion, I want to be part of it. I lived the copper industry. When the mine announced production reduction, we were concerned about the loss of jobs. You've created a good balance with absorbing some employees and offering retirement packages to others."

"When we had to confirm Ryan Flynn in the Senate, I was pleased to vote for him," Morales said. "It's about collaborating and working together."

He excused himself to attend the Senior Olympics Board meeting.

Secretary Flynn said the Copper Rule has created a "huge conversation about mining in Santa Fe, a county that does not have a single mining operation. But we are missing an important voice, that of this community, [Grant County]. Santa Fe opposes mining. It has none, and attorney Rep. Brian Egolf, representing Santa Fe, is working with the [mining] opposition. The issue is pitting environmental protection against industry."

"I read often in the newspaper in Santa Fe that this rule will allow widespread groundwater pollution," Flynn said. "The Copper Rule was created to prevent pollution. I am here to celebrate this rule. The environmental movement is fighting to preserve the old rule, which is four pages long. The new rule is 44 pages long and is the most comprehensive and environmentally protective rule in the country. That is fact."

Taos, Santa Fe, and one environmental group in Grant County, the Gila Resources Information Project, are fighting to keep the old 4-page rule. "They all suggest that the new Copper Rule will not protect groundwater."

"My job is to protect the environment," Flynn said. "I try to do it, without destroying economic development and jobs. All the Grant County mayors and country commissioners support the rule. In addition, New Mexico Tech, The New Mexico Mining Association, Western New Mexico University and the local and state Cattlegrowers organizations support the rule. There is bipartisan support of the rule.

"I see issues that pit one region against another, and I have to listen to all sides. The debates have become so divisive and devoid of fact. The opposition is being funded by Ted Turner of the Ladder Ranch, because there is a proposed new mine next to his property, which he does not support."

In a briefing handed out to participants, Flynn noted that, in 2009, the New Mexico Legislature decided the previous system for regulating ground water at copper mines needed to be reformed. "The previous system provoked nearly 10 years of litigation with the mining industry, litigation that ultimately diverted taxpayer dollars away from protecting New Mexico's precious groundwater resources. After years of litigation, the New Mexico Court of Appeals soundly rejected the position taken by the Environment Department under the Richardson Administration, calling the interpretation 'unrealistic' and 'broad and impractical.' '...It is also unrealistic to require all water at the Tyrone mine site to meet drinkable water standards. ...we reject such a broad and impractical interpretation of the Act; so interpreted, it would not reflect a balance between the competing policies of protecting water and yet imposing reasonable requirement on industry,'" the briefing paper stated.

"The Legislature said they were tired of continuing litigation between the Environment Department and industry, especially mining and dairies." He said the 2009 Legislature passed Senate Bill 206, which amended the Water Quality Act and required the state to develop regulations that clearly set forth the appropriate controls to prevent or abate groundwater pollution.

Flynn said the state of New Mexico has set a higher bar for protection than any other state. "Groundwater is precious. "

"Opponents of the Copper Rule say it represents a new paradigm shift, which allows pollution," Flynn said. "The facts are that with the old rule, we had extensive groundwater pollution. We decided to put into effect a copper rule to prevent that pollution.

"The opposition, by supporting the old rule, supports pollution," Flynn said. "They support solar, but how do you build solar panels, or cell phones or laptops, without copper?

"It is intellectually dishonest to say the Copper Rule is a license to pollute. You have to decide what standards are required so you do not pollute above those standards."

He said one of the principal architects of the old rule was charged with a felony for stealing gas from the department, yet the opponents to the rule rely on him for expert testimony. "They gloss over his felony."

Flynn said the opponents talk about the need for variances. "They fight about the process. The center of the fight is whether a variance is required. In 35 years, we have issued only two variances under the old Rule. If that rule required a variance for every case, then why did one of the experts sign so many permits where there were no variances? The new Rule provides regulatory certainty and does not rely on inconsistently applied variances.

"This Copper Rule case is important," he continued. "If the New Mexico Supreme Court strikes down this rule, mining will die in New Mexico, not all at once, but slowly."

He said the variance issue is important, because to open a mine requires probably tens to hundreds of millions of dollars of investment and up to 10 years before the mine can be opened.

The opposition says, to get a variance to open a mine, the company should go back to the New Mexico Water Quality Control Commission every five years to get a permit. If the Copper Rule is struck down, mines will have to go back for a variance every five years. Which immediately inserts political risk," Flynn said, "because the commission changes with each administration. What company would invest the time and money if there were no certainly that it will be able to operate? No one would make that decision, and New Mexico will be competing with Arizona and the world. The company will invest where it has some certainty of getting a permit and operating.

"We are fighting not about the content of the rule, but about process," Flynn said. "The practical impact will be that mining will die. The industry would make their investment decision on whether the risk is worth it.

"There have never been any impacts to drinking water quality in this area due to mining," he said. "It all comes down to facts, law, technology and science. Over 90 percent of the rule is not in dispute. But objecting to the rule has become a fundraising tool for the environmental groups. People are listening to these objections, which have no basis in fact.

"We ask you to lend your voice to this rule," Flynn said. "This community needs to make its voice heard. It is a critical voice that is missing—the community that is impacted.

"My job is to balance everyone's interests," the secretary continued. "The Supreme Court will decide once and for all. If you see the common sense of this rule, you will be both protecting the environment as well as jobs. I have said that what I've seen is industry versus environment in the Supreme Court documents from the environmental groups and the attorney general.

"My job is to dispassionately apply the law. I'd rather not announce a settlement against anyone, but would rather protect the environment in the first place."

Zimmerman commented that the comment about the money coming from Ted Turner caught his interest. "It's always 'Follow the money.' You know where your opposition is. We need other voices."

Tom Shelley of Freeport asked what the timeline was for the Supreme Court decision

Flynn estimated about a year. "Our response brief is due in February, then the opposition files a reply, after which the Supreme Court could make the decision the next day, but typically it takes six to eight months."

Nick Seibel of the Silver City Daily Press asked: "Since it's at the Supreme Court, is it realistic that a local outcry can help?"

Flynn replied that one would hope there is an outcry because "what is happening is wrong."

"I want the facts to come out," Flynn said. "It's an opportunity for reason to prevail. The fight first was launched by then Attorney General Gary King and now, it's Balderas. I think the position needs to be impressed on the current attorney general to save the taxpayer resources required to continue bickering over the Copper Rule. He solved the dairy issue. They went to the attorney general and said: 'What are you doing?' They asked for compromise for the Dairy Rule, which was supported by the Environment Department and by the attorney general. We have to work together to protect the environment and our communities.

"I think to the attorney general is where you need to go," Flynn said. "To the attorney general and ask him to listen to the community.

"As a public servant, the same as the attorney general, I need to dispassionately follow the law," Flynn continued. "I think our briefs will do the talking in court. But we want to continue to see how this community can flourish."

He noted that under the Martinez administration, the state has seen the "largest reduction in greenhouses gases. We dealt with the fuel contamination at Kirtland Air Force Base and the Waste Isolation Pilot Plant emergency and the Gold King mine spill. We are proud of our record."

"Once this is solved, the environmental groups will have to move on," Flynn continued. "They will go after the national labs in New Mexico next."

John Brack, Freeport vice president of New Mexico Operations, thanked Flynn for the forum. "It's important for any decision to be based on fact rather than emotion."



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