Dear Editor,

I read the letter from Mr. de Saillan posted on your editorial page this evening and noticed a number of statements that do not “square up” historically, and while I appreciate his optimism on a mining company’s ability to obtain a variance, there are glaring problems with that logic that the casual observer will not know. While I am a copper mine employee, I am writing to you and your readers as a resident of Grant County who cares that my community know the facts and not as a representative of the mining company. I would ask your readers to consider the following points.

Indeed, the legislature knew when it adopted the New Mexico Water Quality Act in 1978 that the beneficial activities of copper mining impact water quality such that large areas within the mine operation will not meet standards. It is impossible for a typical open pit copper mine to meet drinking water standards within an open pit, for example, because of the chemistry of the naturally-occurring minerals within the typical ore body. This was a commonly known fact in 1978 because the copper mines had been operating since the early 1900s and water quality conditions were well known. The legislature clearly and wisely used the language they did in the current law because these water quality impacts already existed, and they did not want to impose a new law that would place these beneficial activities and legal businesses in violation of the law. Instead they opted to write the law to prevent these beneficial activities from causing impairment of the water quality of other users. That is exactly why they used the term, which I understand was chosen by the New Mexico State Engineer at the time, compliance with standards shall be measured “at any place of withdrawal of water for present or reasonably foreseeable future use.” It was clearly understood then that the open pit of a copper mine, or water underneath a tailing dam would not be suitable for a drinking water supply and therefore not “a place of withdrawal of water for present or reasonably foreseeable future use.” But the mines were required to contain these impacts within a reasonable distance of mine operations, and that is exactly what has been accomplished for decades around the mines.

The term the legislature adopted was not ambiguous at that time because permits were issued to operating copper mines even though there were exceedances of groundwater standards within the mine area. If this condition did not meet the intent of the law, then the New Mexico Environment Department would have been required to deny the discharge permit applications. Not only were they issued, but they continued to be re-issued for decades under similar circumstances. The intent was clearly not to require mines to do the impossible – meet drinking water standards within the mine facility, but to ensure that the contamination would not migrate significantly away from the mines.

Proponents of House Bill 220 make exaggerated claims that the Rules for Copper Mine Facilities (Copper Rules) caused “relax standards and mines can pollute as much as they want.” This is simply not true. The Copper Rules are a comprehensive set of regulations and required practices that enhance groundwater protection within and around the copper mines. They ensure that water resources are protected.

Mr. de Saillan stated that the variance option was provided to accommodate industries that could not meet standards. If this were true, then all the permits originally issued and subsequently renewed, would have required variances, but none of them required variances. The early permits were issued with no variance in spite of the fact that water quality standards were already exceeded at the mines.

The concept of utilizing a variance for the purpose Mr. de Saillan described is a relatively recent proposal that was demanded of the mines within the last 10 years due to a desire to interpret the law differently during a particular administration. Because the mines do their level best to work with regulators, there were a few variances requested and granted as Mr. de Saillan points out for some very basic permit changes that really should have been easy to deal with at the New Mexico Environment Department level rather than in front of the New Mexico Water Quality Control Commission. It basically turned a decision that should have been granted in 3 months into a decision that had to be drug out for over a year. That kind of permitting process will not be workable and will create a quagmire of unending appearances before the commission. Variances are not needed to allow public interaction and comment either. That opportunity exists in the regulation for most of the discharge permitting that is needed at a copper mine.

Finally, Mr. de Saillan’s letter does not answer the biggest problem of all. The Water Quality Control Commission can only grant a variance from a regulation adopted by the Commission. There is no provision in the law for them to grant a variance from the statute. By changing the statute to the language proposed in House Bill 220, the mines would now have to seek a variance from the statute which is not allowed. It’s a “Catch 22.” It is not a return to “life before the Copper Rules,” as several have claimed. No, in fact, the legislature would be putting the copper mines in an impossible situation based on the plain language of the law. Therefore, it is a real possibility that permits will be denied that the mines rely upon to operate.

Mr. de Saillans claims that House Bill 255 is needed to eliminate a “risky” form of financial assurance. This form of financial assurance has not been risky for New Mexico mines. There have been no failures of this form of financial assurance for a New Mexico mine. The proponents of this bill are trying to alarm our community and the legislature citing examples where no financial assurance existed. So, it is not even comparable to the legitimate use of this instrument which requires rigorous quarterly financial testing of the guarantor (which by the way has to be a legally separate entity from the company for which the guarantee is provided). This form of financial assurance has functioned exactly as it was intended. It has already been tested and where necessary, replacement financial assurance was provided. That is an example of a success, not a failure. Allowing this form of financial assurance is a balanced approach that encourages business investment in our state while still being protective and ensuring reclamation liabilities are fully covered. I suppose that is why the federal EPA allows it as a form of financial assurance. Proponents of this bill don’t talk about the fact that two prior Democrat administrations have committed to New Mexico mines that this form of financial assurance will be an allowable instrument. If a state keeps changing the rules to operate in the state and to back out of their commitments of the agreements after the fact – i.e., after the business met its part of the agreement – why would a business continue to invest and grow its business in that state?

For all of these reasons, speaking only for myself as a resident of Grant County, I ask you and your readers to oppose and ask county and state representatives to oppose House Bills 220 and 255.

Thomas (Tom) L. Shelley is a resident of Grant County, a professional civil engineer, rancher, Army veteran and a copper mine employee.