Dahr Jamail | New Mexico: Where Polluting Groundwater Is Legal

Part of the Series

Planet or Profit

Also See: Dahr Jamail | Toxic Legacy: Uranium Mining in New Mexico

New Mexicans get 90 percent of their drinking water from groundwater. Yet the governor of this drought-plagued Southwestern state has given the copper industry carte blanche to pollute what is left of that essential resource.

New Mexico’s Republican governor is the industry-friendly Susanna Martinez, whose administration has been the bane of those concerned about the state’s environment and increasingly precious water resources from the moment she took power in January 2011.

“The Martinez administration behaves like a corporation focused on quarterly numbers,” northern New Mexico resident William deBuys, author of seven books, including A Great Aridness: Climate Change and the Future of the American Southwest, told Truthout. “Given the state’s long-term prospects under the warming and drying influence of climate change, New Mexico should be placing high priority on building its water resilience, including protection of its groundwater. Unfortunately, the Martinez gang doesn’t understand this, or doesn’t care. Susanna’s national aspirations and the hunger of her cronies for immediate profits trump everything.”

These are strong words, but deBuys is far from alone in his analysis.

William Olson is a hydrologist and geologist who worked 25 years for the state of New Mexico, including as the Environment Department’s chief of the Ground Water Quality Bureau as well as with the water quality control commission for 13 years.

“The Martinez administration has overturned the application of groundwater quality laws from how they’d always been,” Olson, who retired just before Martinez took power but continues to work as a contractor, told Truthout. “They allowed industry to pollute their property, as long as it doesn’t leave their property, and this sets the precedent for all other industry in the state to do the same thing.”

For a state that is now in chronic drought with no end in sight, and with climate change modeling predicting the situation will worsen, groundwater availability might well be the most important issue facing the people of New Mexico.

According to experts Truthout spoke with about groundwater, having a pro-industry governor such as Martinez could not have come at a worse time.

The Copper Rule

During his time as a contractor for the Environment Department, where he was hired to work on the legislation, Olson worked to temper the Martinez administration’s efforts to sharpen what is known as “the copper rule,” a rule that the state passed in 2013 to amend the Water Quality Control Act of 1977, which had prohibited groundwater pollution beyond water quality control standards.

The copper rule allows the copper industry to pollute the groundwater underneath the property where they operate mines beyond legally allowable limits and does not mandate them to clean it up.

Until last year, New Mexico’s ground water was relatively safe to drink, but the Martinez administration has now changed that by forcing through the copper rule with new legislation that now allows mining giant Freeport-McMoRan Copper and Gold to pollute groundwater within a 9-square-mile area of its Tyrone Mine, as well as under its other two mines in the state.

Olson, deBuys and others believe the adoption of the copper rule sets a precedent that allows the dairy, oil and gas, and other industries to have the same ability to change groundwater standards and gives them more latitude to pollute at will.

“Freeport ghost-wrote the [Environment] Department’s final statement of reasons, a 200-page document,” Olson said. “This was listed as the department’s document, but it of course was not.”

Olson would know: He worked for months to painstakingly cobble together a middle-ground approach that he’d hoped would work for everyone.

But his nine months of work that began in the fall of 2012 came to an abrupt close when, at the end of the negotiations, he watched the Environment Department “make a political move and adopted the copper industry’s rules en masse.”

Olson explained that the rules had not changed for 36 years, but for the Martinez administration to allow the copper industry to pollute, “it went against all the work I’d done for the state. I was working for the New Mexico environmental department at this point, but then I terminated my contract after watching what they were doing.”

Olson believes the administration was not being “truthful” about what it was doing, so he came back as a private citizen and testified against it as an expert witness. Now the ruling is in the court of appeals.

Nevertheless, the damage has been done, and the copper industry is now polluting the state’s groundwater like never before.

“Prior to the copper rule, everyone was prohibited from discharging contaminants like cadmium, beryllium, benzene and toluene,” Bruce Frederick, a staff attorney with the non-profit New Mexico Environmental Law Center (NMELC), told Truthout. “But that has now been changed.”

Frederick, who also holds a master’s degree in hydrology, believes the copper rule was brought about almost exclusively by Freeport after the Martinez administration came to power. He said Freeport has “influenced the environmental department by writing regulations for them that allowed Freeport to contaminate and pollute groundwater above standards.”

Because there are already extensive amounts of pollution at Freeport’s three huge mines in New Mexico, the new law handily disposes of the company’s violations of previous rules. Frederick added, “This is good for them, because combined, their mines cover over 20,000 acres of land.”

Freeport Mining owns the Chino Mine, a scar in the Earth’s surface that is visible from space. (Photo: Erika Blumenfeld)

The three mines are all massive open-pit copper mines, like the Chino mine in southwestern New Mexico.

They create acid mine drainage, which includes sulfuric acid that eventually ends up in the state’s increasingly scarce groundwater.

Political Hegemony

Frederick said that for decades the state’s Environment Department has tried to get Freeport to clean up its pollution, and the battle has included Republican and Democratic governors fighting Freeport over the company’s ability to pollute the groundwater under its property.

“Now Freeport has unprecedented influence over the environmental department, and many call it the ‘Freeport Department’ because of that heavy influence,” Frederick said. “The environmental department enforces regulations, but the Water Quality Control Commission adopts the regulations. And they are composed of 14 people who are in agencies Martinez has control over in Cabinet posts, and she appoints them directly. Hence, she has influence over the entire commission.”

A case in point would be the recent confirmation of Ryan Flynn as Cabinet secretary of the Environment Department. Martinez works closely with Flynn, who was previously appointed as the general counsel for the department before being named secretary-designate in April.

Of his goals as secretary, Flynn told the state’s Senate Rules Committee that he needed to “make it possible for industry to operate” in New Mexico.

According to Olson, the Martinez administration has accomplished similar pro-industry political feats in the arena of oil and gas pit rules.

“I was involved in the development of the rules as they stood, until this administration came in,” Olson said. “Then industry came back with this administration, proposing their own rules, gutting portions of the rule. And it’s happening with oil and gas and dairy industries. And they come in and present these changes, and the Environment Department doesn’t present any witnesses of their own. … This is unheard of.”

Olson said one of the ways the Martinez administration is managing to give these industries exactly what they want is by prohibiting experts from being present at regulatory hearings, “because the administration was afraid they would be asked questions.”

“It’s all coming from industry being unopposed at the regulatory hearings,” he said. “There’s no real testimony from people within the agency who know what’s happening with all these rules. I’ve never seen this before. I’ve worked since 1986, involved in rule makings all the way back then, and the agencies were always out there trying to find a middle-ground position, and it seems like that has disappeared.”

A current state employee with intimate knowledge of the Martinez administration’s strategy of pushing through the copper rule as well as the inner workings of the Environment Department, spoke with Truthout on condition of anonymity because of fear of retribution from the administration.

He said the Martinez administration replaced the entire state Water Quality Control Commission (WQCC) when it took power, because, “The mining companies perceived the folks she let go as being friendly to the environmental organizations that were part of the hearing process. Her intent was to replace them and bring in industry-friendly members on the commission to vote in favor of her agenda items, like the copper rule.”

According to this source, the Martinez administration is “very friendly to the copper, dairy, and oil and gas industries,” and said that as state workers working to safeguard groundwater quality were pushed out, “the industry basically stepped in and could do anything they wanted, and basically wrote the rules for themselves,” and that this is “still going on today.”

The source added that as bad as the copper companies’ influence is, the oil and gas industries have been allowed even more latitude under Martinez. “Eighty percent of the facilities they used to require discharge permits for, it is no longer even necessary for them to have permits,” the source said. “The oil and gas industry have run roughshod and can do whatever they want; it’s even worse there than with the mining industries.”

(Photo: Erika Blumenfeld)

State Response

Environmental groups in New Mexico saw the confirmation of Flynn as Cabinet secretary of the state’s Environment Department as a slap in the face, coming on the heels of the recent decision supporting the copper rule.

New Mexico’s Environment Department holds reach over every part of the state: It oversees groundwater and surface water contamination, septic tanks, hazardous waste permits, industrial air emissions, drinking water systems and other programs.

Major New Mexico conservation groups such as the Sierra Club and Conservation Voters New Mexico have been vocal about their opposition to Flynn. They, like other experts Truthout spoke with on this issue, contend Flynn has put industry ahead of protecting groundwater, in particular. They believe Flynn is doing exactly what Martinez mandated for her administration in ensuring that environmental regulations are business-friendly.

Truthout contacted Jim Winchester, the public information officer for the state’s Environmental Department, but he failed to respond to repeated requests for comment on these issues.

Meanwhile, the copper rule has been appealed by New Mexico’s attorney general, Gary King, as well as the New Mexico Environmental Law Center.

King stated in October 2013 that the copper rule violated state law because it allows groundwater at copper mine sites to be contaminated at levels beyond water quality standards.

“Ninety percent of New Mexicans rely on groundwater for drinking water, and this new rule, if allowed to be implemented, could render our water undrinkable for hundreds of years,” King said in a statement.

“The copper rule is the first WQCC regulation that expressly permits pollution above standards, in perpetuity,” Frederick said of the recent decisions on the copper rule. “Existing permits that require abatement of the pollution at copper mines can now be modified to make them consistent with the copper rule.”

According to Frederick, this means that although the state previously has sued Freeport for injuring water resources, the company’s widespread pollution of groundwater is now fully legal under the copper rule – and other companies are free to follow suit.

Frederick’s analysis of what this means is a dire warning for the environment and for people of New Mexico.

“The WQCC has basically decided that copper mining is more important than any other possible use of water in New Mexico. It has effectively given Freeport the right to pollute the public’s water above human health and other water quality standards. The rule allows the pollution to persist forever, which it will likely do.”

According to a 2012 report by the New Mexico Office of the Natural Resource Trustee, groundwater pollution already totals more than 20,000 acres beneath the three mines. In 2010, Freeport paid the state $13 million to settle allegations it had contaminated that water.

Groundwater as “Waste Dump”

In addition to pollution from the copper mining industry, New Mexico has chronic pollution problems related to the uranium industry, which used to be so active in the state.

A 1979 uranium mill spill at Church Rock, New Mexico, remains the third-largest nuclear disaster in the world. Cleaning this site alone will cost billions of dollars, but that astronomical price tag fails to address cleaning the contaminated groundwater.

“You’re looking at decades worth of pumping and treating [groundwater], and even then you may not get the water clean,” Eric Jantz, a staff attorney with the NMELC, told Truthout. “Those decades of treatments cost a lot of money.”

More than three decades of groundwater remediation operations at the Homestake mine cleanup site “hasn’t been able to make a dent,” said Jantz, who had this to say about how challenging it is to clean up uranium tailings: “These tailings piles are plenty radioactive and full of heavy metals, like mercury and arsenic. They are giant mounds of dirt, but once rain percolates through them the rainwater transports all these contaminants into the ground as part of the hydrological cycle and that’s how groundwater becomes contaminated.”

Once groundwater becomes contaminated, it is extremely difficult to clean.

“It’s going to be around tens of thousands – even hundreds of thousands – of years, because that is the half-life of some of this material,” Jantz said.

Olson sees the copper rule and its impact on New Mexico’s groundwater as “the most significant change in water quality in New Mexico since rules began in 1977.” He said the rule “allows pollution” and that with it the copper industry is allowed to contaminate and pollute waters. And “it’s essentially irreparable.”

“The Tyrone mine is a 9-square-mile area that is contaminated, and it’s going to go on in perpetuity,” he added.

Olson views the actions of the Martinez administration as “unconscionable.”

“I was a bureau chief. We regulated the mines and worked deals to recognize the economics that come with the mines, but it was always understood they would always have to clean up any messes they made,” he said. “But now all that is thrown by the wayside. They can pollute, and they’ll never have to clean it up. And you’re looking at a total loss of resources. Industry is given a blank check now. They aren’t even trying to protect our resources.”

Welcome to the Reckoning

DeBuys, an expert on the precarious water resource issues plaguing the Southwest, said the water crisis in New Mexico is only growing worse.

“The reckoning is already at our doorstep in the form of Texas’s suit against groundwater pumping in the Mesilla Valley (which reduces flow of Rio Grande water owed downstream) and last year’s standoff between Carlsbad and Roswell over use of the Rio Pecos,” he told Truthout. “There simply is not enough water to go around, and the gap between supply and demand will only widen. One consequence of this will be severe shrinkage of vulnerable agricultural districts, with parallel damage to the economies of the communities they support.”

Save radical change within the state government apparatus, New Mexico is well along a collision course with increasing pollution in its shrinking groundwater supply.

“There will be extensive and permanent groundwater pollution at copper mines now,” Frederick said. “There are four mines now, and there may be more coming, and the rule codifies practices that led to pollution that shouldn’t be allowed anymore.”

Frederick is clear that the copper industry wants to be able to pollute the groundwater underneath its properties, despite the fact that under New Mexico’s Constitution, groundwater is public property.

“Just because it’s under their property, it does not belong to them,” he added. “You don’t have a right to own or pollute that water.”

Frederick does not hold Martinez in high regard, when it comes to her administration’s environmental policies.

“In my work, she has no regard for the environment and no regard for opinions that don’t come from the oil, gas, mining or dairy industries,” he said. “The polluters, she gives them whatever they want.”

If deBuys’ predictions are accurate, New Mexicans should prepare to live in chronic crisis when it comes to reliable access to clean, safe groundwater.

This would entail having to regularly ration water or even abandon their homes to move elsewhere as towns and cities eventually run out of water altogether. As a harbinger of things to come, in summer 2013, the town of Magdalena literally ran out of water.

Even without widespread contamination by the copper and uranium industries, deBuys said, there will be “wrenching adjustments in certain agricultural districts as water becomes unavailable,” either because the water is simply no longer there or because a court decides to shut down water use in one area to protect “more important” uses in another area.

New Mexicans living in smaller towns that depend on small, vulnerable watersheds and limited groundwater access also will have to make such “wrenching adjustments,” and the priority of concern for environmental uses of water and the sustaining of riparian and aquatic ecosystems will experience “panicked abandonment.”

Lack of water, coupled with the ongoing and increasingly intense impacts of climate change, point to a bleak future in a state that can ill afford the ongoing pollution of its groundwater.

DeBuys concluded that his state should expect “more catastrophic fires in the mountains, further compromising the watershed and also increasing risk of devastating floods.”

Olson’s final thoughts on the situation his state now finds itself in were bleak.

“We’re losing our groundwater resources,” he said. “We’re donating them to private industry to use as a waste repository. Our groundwater has become a waste dump that is never required to be cleaned up.”

Toxic chemicals already contaminate groundwater on every inhabited continent because of the use of pesticides, nitrogen fertilizers, industrial chemicals and heavy metals. Just like in New Mexico, the damage is usually worse in the places where people need the water the most.

Almost 99 percent of the rural population in the United States depends on groundwater for drinking, according to Worldwatch Institute, a Washington, DC-based research organization, and some 97 percent of all the planet’s liquid fresh water is stored in underground aquifers.

“Groundwater contamination is an irreversible act that will deprive future generations of one of life’s basic resources,” said Payal Sampat, author of Deep Trouble: The Hidden Threat of Groundwater Pollution. “We’re polluting our cheapest and most easily accessible supply of water.”

And now, in the face of widespread epidemics of both drought and deregulation, New Mexico’s rampant, legal groundwater contamination sets a frightening precedent.