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Cleaning Up is Hard to Do
Phelps Dodge Leaves a Legacy of Waste to New Mexico

By Harry Browne

For decades, three huge, open-pit copper mines have contaminated Grant County's groundwater, dirtied its air, damaged its wildlife and vegetation, and killed miles of intermittent streams. Frequent pipeline breaks, heap leach seeps, infiltration from tailings ponds, dam failures, windblown tailings and smelter emissions represent injuries to the ecosystem, as well as possible causes for respiratory illnesses, cancers, neurological and immune response deficiencies, and gastrointestinal distress.

All three mines — Chino, Tyrone, and Continental — are operated by the Phelps Dodge Corporation, the largest copper producer in the United States and the second largest in the world. Located about ten miles south of Silver City, these mines cover approximately 15,000 acres of private and public lands. The pits reach hundreds of feet below groundwater, requiring tremendous pumping operations and creating extensive cones of depression in the aquifers. The earth removed from these pits cover thousands of acres in the form of waste rock dumps, acid-saturated leach piles, and dry lakes of finely ground, processed ore called "tailings". Yet no plans had been developed to deal with the lakes of toxic water that would form when operations halted.

This began to change in 1993. Concerned about the environmental and financial liabilities that remained when mining operations shut down, the state legislature passed the New Mexico Mining Act. The Act required hardrock mining companies to reclaim the lands they dig up, along with the huge piles of rock, dirt, and tailings they created. Existing operations had until the end of 1997 to file and gain approval of reclamation plans (called "closeout plans" by the Act).

After two 2-year extensions of the Mining Act deadline, Phelps Dodge finally submitted proposed closeout plans to the New Mexico Environment Department (NMED) and the Mining and Minerals Division (MMD) of the New Mexico Energy, Minerals and Natural Resources Department (the administrators of the Act). These are massive documents, containing studies and models of groundwater, geochemistry, rainfall and evaporation, erosion and the possibility of landslides, how to cover leach dumps and where to get the cover material, what to plant, how to monitor results, and how much all this might cost.

But Phelps Dodge left unanswered dozens of questions regulators had identified as needing attention. Studies upon which the plans are based range from inconclusive to fatally flawed. Additional studies need to be done. Reclamation is put off until 2010, 2015, or 2030 — even if mining halts years earlier. And although Phelps Dodge promised to compare alternative approaches to reclamation, they instead set up a choice between two extremes: doing little, to doing a great deal of unnecessary work. They then argued that doing little is better for the environment, while the alternative is prohibitively expensive.

Some of the key issues are:

• Covering waste and leach piles. The addition of topsoil and plant material to prevent rainwater from seeping into the rock and contaminating the groundwater.
• Resloping waste and leach piles. Flattening the piles so runoff doesn't erode the newly added topsoil and vegetation, exposing the waste to rainwater.
• The open pits. Steps must be taken to prevent water from pooling, which can form acidic and metals-laden lakes several hundred feet deep.
• Waivers. Would release Phelps Dodge's from reclaiming the 5,800 acres of waste dumps, leach piles and pits. This widescale use of the waiver provision is an abuse of the Mining Act.
• Water treatment vs. dilution. Phelps Dodge would treat the contaminated surface and groundwater with lime, eliminating some of the contaminants, and dilute the rest with fresh groundwater. This would use an enormous amount of water just for dilution — almost 9,000 acre-feet per year at Chino and 6,400 to 8,600 acre-feet per year at Tyrone. The Town of Silver City, by contrast, uses only 3,000 acre-feet per year.

Decisions about these issues affect the total cost of cleaning up and reclaiming the mines. One measure of the comprehensiveness of a reclamation plan is the amount of financial assurance it calls for. Financial assurance represents what it would cost the state (i.e. taxpayers) to carry out the closeout plan if the mine operator cannot, or will not, do the job. Phelps Dodge's plan for Chino called for financial assurance of $135 million. Gila Resources Information Project (GRIP) hired mining engineer Jim Kuipers of the Montana-based Center for Science in Public Participation (CSP²) to prepare an alternative reclamation plan. The approach he took resulted in a very different financial assurance amount: $987 million.

In June 2001, the state's draft permit for the Chino Mine adopted many of GRIP's recommendations, calling for financial assurance of $759 million. A public hearing on Chino's closure plan was held in August. It was intended to give NMED Hearing Officer Felicia Orth the information she needed to approve the draft permit, or to make changes to it.

But in late August pressure from Governor Gary Johnson's office short-circuited the public hearing process, forcing two state agencies to dramatically soften their requirements. Concerned that the state's proposed $749 million bond might bankrupt Phelps Dodge, Johnson asked his science advisor, Dr. Larry Winter of Los Alamos National Laboratory, to meet with Phelps Dodge and the secretaries of the environment and energy departments to negotiate a compromise. There might have been room for a compromise that wouldn't sell out Grant County's environmental health, but what followed did nothing to help develop such a compromise:

• The negotiations were conducted in secret, so the public could not challenge Phelps Dodge's assertions.
• Although Winter has expertise in hydrology, he and the cabinet secretaries representing the state lacked the agency staffs' years of familiarity with the mine site and with the dozens of studies that had been conducted and reviewed. Nevertheless, negotiators rejected staff recommendations and insisted staff prove the Phelps Dodge plan wouldn't work, rather than, as the law requires, insisting Phelps Dodge prove it could.
• The talks took place after the public hearing had been held, reducing the public's ability to participate.

On September 5, the secretaries of the state environment and energy departments announced they had reached an "agreement-in-principle" with Phelps Dodge. The agreement reversed the most important stances taken by the agencies' staffs: Chino would be allowed to dilute partially treated water, and it would not be required to reslope and cover a large portion of the waste and leach piles.

GRIP was then offered the opportunity to join in further talks — under the condition that we sign a confidentiality agreement. This was like being invited to dinner after the main course had been eaten. GRIP declined. Instead, working with our partners in the New Mexico Mining Act Network (eight organizations, including SRIC), GRIP took its outrage at the secret deal to Santa Fe. Together with the New Mexico Environmental Law Center, we hired Mary Feldblum, an experienced environmental and health lobbyist, to help us develop a strategy and contact legislators, and at the same time, we contacted prominent journalists.

A front-page story and editorial in the Santa Fe New Mexican appeared, causing the state agencies to drop the gag orders placed on their staff as part of the secret negotiations. And a half-hour segment devoted to the Mining Act aired in October on KNME-TV's "In Focus" program, with a panel discussion which included GRIP Director Harry Browne, Larry Winter, the Governor's science advisor, and Paul Robinson, SRIC's mining expert.

This attention added to the difficulties by state and company officials in turning their "agreement-in-principle" into a concrete settlement. Negotiations went down to the wire, but both finally agreed on a draft permit, submitted to the NMED Hearing Officer on December 21. The new draft permit allows dilution instead of adequate treatment, and appears to allow waivers from reclamation within the pit's "capture zone." It calls for financial assurance of $375 million, and for a dozen studies that could result in changes to the plan.

On December 14, the Mining Commission granted Phelps Dodge a third extension of the Mining Act. Deadline: October 1, 2002. It is doubtful this new deadline can be met. There are significant legal issues that could prevent the plan from being approved by that date. One of the most important is whether the Water Quality Control Commission will allow Chino to leave contaminated groundwater under a large area of land, with the hope that it won't spread due to continuous pumping. The other is whether the use of fresh groundwater to dilute partially treated water from under the mine constitutes a "beneficial use" of Phelps Dodge's water rights.

The process for Chino picks up again during the week of February 25, 2002, when the new draft permit will be discussed in a public hearing in Grant County. A draft permit for Tyrone is not expected until April at best, and no one can guess when one might be ready for Continental.

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Gila Resources Information Project (GRIP) began in early 1997 as an informal network of Grant County residents concerned about the area's environmental and community health. We now have 350 members who share our concerns about water quality and quantity, clean air, and unplanned growth. Our primary activity has been to advocate strong environmental protections from and effective regulation of mining in Grant County.