New Mexico Supreme Court to Determine if Copper Rule Prevents, Rather Than Encourages, Ground Water Pollution

Posted on September 23, 2016 by Thomas Hnasko

The New Mexico Water Quality Control Commission enacted what is arguably the most comprehensive copper mine remediation rule in the country.  The Copper Rule requires copper mines to uniformly implement prescriptive measures of pollution control and to protect ground water at “foreseeable places of withdrawal.”  But does the Copper Rule really prevent pollution, as required by the New Mexico Water Quality Act?  Not so, say the Attorney General and various NGOs, who appealed the case to the New Mexico Court of Appeals.  They claimed that the Copper Rule’s uniform monitoring criteria, which require the placement of a monitoring well network as close as practicable around the perimeter of mine units, does not sufficiently protect ground water and therefore fails to satisfy the Water Quality Act’s mandate that contaminant concentrations not exceed permissible standards at places of withdrawal.  The Court of Appeals affirmed the Commission’s rule-making in Gila Resources Information Project v. N.M. Water Quality Control Comm’n, holding that the determination of a “place of withdrawal” has always been and remains a matter committed to the Commission’s discretion. [Link to Case.] 

The New Mexico Supreme Court will now consider whether the New Mexico Water Quality Control Commission has the authority, under the Water Quality Act, to adopt the regulations imposing prescriptive pollution controls and defining by rule, rather than on a case-by-case basis, the type of monitoring controls which essentially define protectable ground water as that existing on the exterior of active mine units.  After a number of swings of the bat, the petitioners in the Supreme Court have refined their arguments. They now claim that the Water Quality Act requires a case-by-case determination of a place of withdrawal, based on particular aquifer characteristics, rather than a definition derived by rule.  To succeed with this challenge, the petitioners must overcome the legislature’s mandate, in the 2009 amendments to the Water Quality Act, that the Commission adopt uniform monitoring requirements for the entire copper industry.  The battle seems to be whether the Copper Rule is sufficiently flexible to protect all places of withdrawal – regardless of where located – or whether the rule imposes a de facto definition of a place of withdrawal based on criteria that may not be tailored specifically to the aquifer characteristics at a particular site.  Oral argument is set for September 28, 2016.

OSM Clarifies that Failure to Mine Does not Result in Automatic Forfeiture of Coal Mining Permits

Posted on January 6, 2014 by Eric Fjelstad

The Office of Surface Mining Reclamation and Enforcement (OSM) announced an important policy decision on August 20, 2013, clarifying the circumstances under which a coal mining permit can be terminated due to the permittee’s failure to commence mining operations.  Under Section 506(c) of the Surface Mining Control and Reclamation Act (SMCRA), a surface coal mining permit “shall terminate” if the permittee has not commenced coal mining within three years of the issuance of the permit.  The statute provides for extensions upon a “showing” that extensions are necessary for specified reasons, including for  “reasons beyond the control of the permittee.”  The statute and its counterparts in the approved SMCRA states, however, do not clearly indicate when a failure to mine will be deemed “beyond the control of the permittee.”  Thus, many state permitting agencies and permittees have lacked sufficient guidance on whether permits could terminate automatically with no notice to the permittee and whether extensions had to be in writing or could be obtained through verbal discussions alone.  And this, in turn, forced some permit-holders to review paperwork and interview employees -- in some cases from many years ago -- to determine if needed extension had been sought from regulators.  

The drama came to an end in August when OSM reversed the position of a West Virginia OSM regional office, clarifying that SMCRA permits do not terminate automatically.  Citing the line of cases disfavoring “automatic forfeitures,” OSM indicated that a coal mining permit remains valid, even if not used, unless and until the permitting authority takes an affirmative action to terminate it.  The decision provides much-needed clarity to permittees -- reportedly hundreds -- facing uncertainty on this front.  The battle continues, however, because environmental organizations recently filed suit in federal courts in West Virginia and Washington, D.C., arguing that OSM’s policy clarification constitutes an illegal rule that was issued in violation of the Administrative Procedures Act and SMCRA.  Stay tuned.