| Since our last Molycorp report, Amigos Bravos has been attending something called the "DP-1055 hearing". If you thought that sounded like some obscure and tedious government gathering for technical types you'd be only partly right – and not at all about the tedium part.
The hearing, starting in late May, began with mine manager Dave Shoemaker stating that there had only been one tailings spill, polluting the Red River, since the late 'Seventies. The mine's environmental wrongs, implicitly, were history. Our attorney, Doug Wolf from the NM Environmental Law Center, then inquired if that was one of the five spills in 1990 for which a $125,000 fine was assessed, or one of the 47 in five years for which a consent decree, ordering Molycorp to upgrade the tailings pipes, had been issued in 1981. Shoemaker's memory failed him at this point, though the very same mine manager had presided over the failure to upgrade the pipes which resulted in the 1990 spills.
Not only was Molycorp trying to forget some of its past, but it still seemed reluctant to come to terms with its present. The entertainment – some of it of the late-night variety with sessions going on till midnight – continued as mine consultants grappled with the perplexing problem that natural background conditions, as defined by them, seemed as bad as the allegedly polluted groundwater emanating from the mine itself. Just presenting this problem required two days of evidence.
But cross-examination by Amigos Bravos revealed that the sites sampled to make this characterization had been limited to – the worst natural scar areas in the catchment. Despite the veneer of technical sophistication, this was a sampling design to make a high school student blush. We can assume that presenting this flawed evidence at the hearing was a ploy to bog down the permitting process: all good dirty fun, but it's a game Molycorp are no longer likely to get away with.
The failure of these last-ditch attempts to avoid responsibility is indicated by the agreement, following the hearings, that an independent expert will now be needed to characterize the 'background', or natural, ground water standards (above which Molycorp will be required to treat the contaminated seepage coming from its acid-generating waste rock dumps). Molycorp also seem to have backed down on the previous claim that their seepage collection system was fully capable of handling all acid mine drainage coming from the waste rock dumps. Evidence was presented at the hearing that only 60% of the contaminated ground water getting into the Red River from the mine site is actually collected by this system. In subsequent negotiations the mine has come up with a draft of a completely revamped system, which will treat larger quantities of seepage and polluted stormwater too.
Also at the hearing, Amigos Bravos' technical experts presented our 'citizens' alternative' mine restoration plan, making that formally part of the hearing record. The carefully calculated costings presented there have acted as a counterweight to Molycorp's initially derisory financial assurance offerings, and the presently agreed bond is now – partly as a result, we believe – at a much more respectable level, similar to what the Environment Department itself has estimated.
The hearings 'end-game'
DP-1055 was the first in a series of hearings which, together, are going to set the terms for the restoration of the Questa mine. It is easy to lose sight of their importance amidst the technical jargon. Only eighteen months ago Molycorp was contesting before the NM Water Quality Control Commission even the jurisdiction of the Environment Department to issue the mine with a ground water permit; today that permit, a highly detailed regulatory document, is near completion and will ensure a high level of protection for the Red River and its aquifer.
Amigos Bravos supported the Department in its efforts to secure ground water permits from the start, receiving official standing to present technical testimony on the issue in 1997 and advocating before the Water Quality Commission in early 1999. A parallel initiative has been to cajole and encourage the US EPA into doing the necessary research and then issuing a permit to control surface water pollution. Our own experts' investigation of a hydrological connection between the mine waste dumps and contaminated seeps discharging to the river, followed by our 1999 lawsuit, bore fruit in May with the issuance by EPA of a draft Clean Water Act (NPDES) permit. Negotiations to finalize this are now taking place with detailed comments submitted through our lawyers at the Western Environmental Law Center, who can take credit for much of the success of this initiative. It is partly in response to this permitting pressure that Molycorp has designed the much-improved pollution collection system mentioned earlier.
The same process – draft permit, hearing, negotiation and final permit – will take place for the mine tailings and the final Closeout Plan under the NM Mining Act. And then there is Superfund – as yet no more than a sword dangling over Molycorp should it fail in its prior responsibilities, but a process which the mine should work hard to pre-empt, with luck in a responsible manner, given its high costs. (The continuing unknowns about Superfund should not prevent the formation of a community-based mine restoration oversight group, which Amigos Bravos is already helping to set up.) Overall, it is hard to avoid the impression that with five strong regulatory processes tightening the noose around it, Molycorp – which until so recently seemed ready to fight everything and continue as it has always done – is now prepared to come relatively quietly. Its original groundwater protection bond offer of $3 million, now likely to be upped to well over $100 million, seems pretty tangible evidence.
The future
This does not mean that our work has been completed: far from it. After years of laying the groundwork, now is the most critical period of all. Amigos Bravos will continue to place all the resources at its disposal into effective and successful participation at the hearings and the all-but continuous negotiations. (Just the first hearing took eight days, during which Amigos Bravos was represented by its technical experts from Southwest Research & Information Center and Center for Science in Public Participation, and by our pro bono lawyers, to all of whom we are exceptionally grateful.) Although everything that has gone before has been essential prerequisite, this is the stage that really matters.
Two major, connected areas where there is still much to play for are the enforcement of the NM Mining Act, and the differing philosophies of 'pump-and-treat' versus 'prevention-at-source'. The Mining Act, passed after concerted environmental lobbying in 1993, is thought of as one of the most enlightened mine restoration laws in the West. But as recently as 1997 the Mineral Policy Center's 'bible' on America's hard rock mining, "Golden Dreams, Poisoned Streams" concluded that, "judged by the inadequacies of the state's water quality program, regulation of hardrock mining in New Mexico, even with the new program [i.e. the Mining Act], is likely to sustain continued problems".
A particularly ambitious requirement under the Act is for reclamation to achieve a "self-sustaining ecosystem or post-mining land use". Molycorp, not surprisingly, interprets this minimally to include only those areas directly disturbed by mining activities plus the most basic of revegetation schemes. Amigos Bravos, by contrast, is promoting a much more searching definition of the words "self-sustaining ecosystem", which would require returning the disturbed land to something much closer to natural contours, soils and vegetation, thereby binding-in contaminants at source and minimizing man-made leaching. This approach requires investment now for the long-term security and health of the environment – minimizing the need for perpetual pump-and-treat with its invitations to human error, fly-by-night operators and the like. We will continue to pursue this ideal – the idea that it is wrong to desecrate a piece of land, then write it off as contaminated and ring-fence it in perpetuity – even as we attempt to bring realism to the fine ideals expressed in the New Mexico Mining Act. |
