Posted 5 months ago on March 10, 2014, 3:42 p.m. EST by LeoYo
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New Mexico: Where Polluting Groundwater Is Legal
Monday, 10 March 2014 09:11 By Dahr Jamail, Truthout | Report
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 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."
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.
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."