Gila Res. Info. Project, Amigos Bravos, Turner Ranch Props., L.P. v. New Mex. Water Quality Control Comm'n

• Decision Date: 08 March 2018
• Docket Number: S-1-SC-35289,S-1-SC-35290,NOS. S-1-SC-35279,S. S-1-SC-35279
• Parties: 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.
• Court: New Mexico Supreme Court

417 P.3d 369

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,andFreeport-mcmoran Chino Mines Company, Freeport-mcmoran Tyrone, Inc., Freeport-mcmoran Cobre Mining Company, and New Mexico Environment Department, Intervenors-Respondents.

NOS. S-1-SC-35279

S-1-SC-35289

S-1-SC-35290

Supreme Court of New Mexico.

Filing Date: March 8, 2018

New Mexico Environmental Law Center, 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

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, 111 S.Ct. 1539, 113 L.Ed.2d 675 (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, 113 S.Ct. 1439, 123 L.Ed.2d 1 (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...