The Toxic Tales Of Susana Martinez: How Mining Giant Freeport Mcmoran Is Rewriting Environmental Laws In New Mexico

How Mining Giant Freeport-Mcmoran Is Rewriting Environmental Laws In New Mexico

\ Aug 01, 2013

11 min read

The Toxic Tales of Susana Martinez — Chino Mine in Santa Rita, N.M. (David Correia)

The massive Chino Mine, an open-pit copper mine east of Silver City in southern New Mexico, is so large that it can be seen from space. It grew particularly big in the 1950s and ’60s, as more than 1,200 workers labored each year to remove as much as 140 million pounds of copper; it grew so big in fact that it slowly swallowed the town of Santa Rita. Most of the residents were relocated into former military barracks in the nearby town of Bayard. Some were happy to be living farther from the daily explosions—three mini-earthquakes each day—that blasted free millions of tons of rock and shook their homes day and night. In 2008 mining giant Freeport-McMoRan, the largest copper mining company in the world, bought the mine from its former owner, Phelps Dodge. After a hiatus following a drop in copper prices, Freeport ramped up operations in 2010. Today, if you stop at the overlook on Highway 152 east of Bayard, you’ll see huge 240-ton diesel trucks prowling along the terraced tracks that ring the mine, hauling away material dumped by massive electric shovels. But bring your binoculars; at nearly two miles across the mine is so wide that the 40-foot tall trucks are barely visible to the naked eye.

Phoenix-based Freeport-McMoRan owns three mines in New Mexico—Cobre, Tyrone and Chino—along with others in Arizona, Colorado and even further afield in Chile, Peru, Spain, the Democratic Republic of the Congo and, most notoriously, on the Indonesian side of the island of Papua New Guinea. There, at the Grasberg Mine, more than 20,000 workers toil for wages barely over $1 per day (U.S. currency); in 2011 the mine helped Freeport post record profits of more than $5 billion on more than $20 billion in revenue.

Labor strife defines everyday life for workers at the Grasberg Mine, but it’s Freeport’s shocking environmental record that is most egregious. After blasting entire hillsides of copper-laden rock, huge pulverizers grind the material into the consistency of sugar. The milled material is then mixed with a chemical slurry. Agitators inject oxygen and mix the concoction until a thick froth develops. This froth, called concentrate, contains the copper ore, which is skimmed off and sent to a smelter. Milling produces more waste than copper, however, and this leftover fluid, or tailings, constitutes a noxious stew. Freeport refuses to release accurate information on any of its mining operations, but environmental organizations estimate that Grasberg produces between 230,000 and 700,000 tons of tailings each day. Freeport dumps the tailings into the Ajkwa and Otomona rivers. Glacial runoff at high altitude feeds the Ajkwa and Otomona as the rivers travel through an ecosystem astonishing in its biodiversity. Scientists still find new species of insects and mammals in the cloud forests, rainforests, alpine forests, tidal swamps and mangrove forests. But nothing much lives in either river any longer. As the tailings makes its 80-mile journey to the coast, it leaves a toxic sediment of chemicals and heavy metals, including mercury, along the river bottom. This slurry skirts the western edge of the nearly 10,000 square-mile Lorentz National Park, a UNESCO World Heritage Site that is among the most ecologically diverse ecosystems in the world (Freeport euphemistically calls it the “controlled riverine tailings transport” system). The tailings eventually accumulate in what Freeport calls the “modified deposition area,” or more accurately, in the place where the spreading ruin of its toxic plume chokes coastal mangrove estuary habitat along the Arafura Sea.

Indonesia is the only country in the world that lets Freeport turn waterways into waste pits. This arrangement comes after decades of payoffs to successive military juntas that—despite enormous pressure from human rights groups and environmental watchdogs—lets Freeport regulate itself. And so the company calls this management nightmare the “best option available” and publishes maps with arrows captioned “No Tailings Impact” that point to estuaries ruined by tailings.

Freeport is accustomed to doing things its own way, workers rights and nature be damned, and this is the attitude Freeport brought with it when it arrived in New Mexico in 2008. Despite rising copper prices and record corporate profits, Freeport claimed that existing regulations in New Mexico were too costly and onerous, particularly those that governed the handling of toxic mine tailings. It made these claims despite the fact that Freeport received variances from the New Mexico Environment Department (NMED) for its Tyrone Mine southwest of Silver City that allowed it to ignore water quality standards and freely pollute groundwater, just like at the Grasberg Mine in Papua, Indonesia. But Freeport hates all environmental regulation, even those as toothless as the copper pit rule in New Mexico.

And so Freeport sought to write a new copper pit rule. Its timing was perfect. Susana Martinez arrived in the Governor’s mansion in Santa Fe at the same time Freeport-McMoRan restarted the Chino Mine. She established the Copper Rule Advisory Committee, stacked it with industry representatives, including from Freeport, and charged it with rewriting mining regulation. But representatives of environmental organizations also had a seat at the table and so the rule didn’t give Freeport the carte blanche it sought. So NMED General Counsel Ryan Flynn, a Martinez appointee and former lawyer at the Santa Fe firm Modrall Sperling (Freeport’s attorneys in New Mexico), set the draft rule aside and adopted language written entirely by Freeport-McMoRan instead.

This industry-written rule defines copper pit mining as an activity entirely exempt from the water quality standards established by the New Mexico Water Quality Act. Freeport can pollute as it wishes within what the rule calls areas of “hydrologic containment” and “open pit surface water drainage.” A lawyer involved in the copper pit rule described it to me as an “unprecedented attack” on nature and the authority of the state to regulate extractive industries in New Mexico.

And this was not the first time Martinez weakened environmental regulation. Shortly after she came into office, she fired the entire Environmental Improvement Board (EIB), the body that creates the policies that guide environmental rule-making in New Mexico. Under Governor Richardson, the EIB established sweeping climate change mitigation rules that promised to curtail greenhouse gas emissions among New Mexico’s biggest polluters. Martinez replaced them with new members committed to overturning those policies. Two of her appointees had demonstrated their anti-environmental bona fides when, prior to their appointment, they testified against the proposed climate change mitigation rules. Another, Elizabeth Ryan, worked for a law firm that represented energy industry clients. After her appointment the firm bragged to its clients that one of its lawyers now served on the EIB. The new board quickly repealed the climate change rule.

Martinez then turned her attention to three waste pit rules. Her first act was to scuttle a new dairy pit rule that would have required synthetic liners in all manure lagoons in New Mexico.

The oil and gas waste pit rule was next. In 2005 the Oil Conservation Division finally admitted that thousands of oil and gas pits—the ponds that hold the chemical waste slurry of oil and gas extraction—were leaking into groundwater. It proposed a new rule that, among other improvements, banned open-pit storage entirely. Martinez refused to publish the rule and early last month, after ignoring the pleas of environmental organizations and a history of groundwater contamination by industry, ordered that the state publish an oil pit rule weaker than the original standard. In a press release, Eric Jantz, an attorney with the New Mexico Environmental Law Center, condemned the rule that now allows oil firms to construct “multi-acre artificial lakes filled with toxic fracking fluids. They have no size limit. These lakes are new to New Mexico, and they may remain in place until drilling or fracking operations are completed – typically ranging from 5-15 years.”

The copper pit rule rounded out the coordinated attack on the environment. Freeport-McMoRan can now operate the Chino Mine as it operates the Grasberg Mine in Papua, unburdened by even the most minimal environmental standards.

The copper rule rewrite and Martinez’s attack on environmental regulation is laced with as many ironies as southern New Mexico groundwater is with toxic tailings. At the same time that the New Mexico Environment Department was repealing environmental regulations that protected groundwater from Freeport-McMoRan, the Attorney General of the state of New Mexico was suing Freeport-McMoRan for polluting groundwater. That lawsuit ended in February of 2011 when Freeport-McMoRan agreed to a consent decree with the state of New Mexico regarding historic groundwater contamination stemming from operations at the Tyrone, Cobre and Chino mines. According to the complaint, which described the need for remediation as “Superfund-like,” massive slag heaps and huge tailings ponds at the Chino Mine are laced with sulfuric acid and dissolved metals such as arsenic and mercury and leach into groundwater. Just as in Grasberg, the Chino Mine relies on natural streambeds to transport tailings, and this practice guarantees that toxic slurry will eventually percolate into groundwater. Historic contamination is more difficult to determine, but the complaint notes that recent events have had significant impacts on surface and groundwater quality. Nearly 200,000 gallons of toxic tailings were accidently released into Hanover Creek in 1996. Three years later a pipeline breach dumped 8 million gallons more. Despite the consent decree, however, the new copper pit rule promises to make monitoring of future groundwater contamination more difficult.

I drove west last week along Highway 152 toward Silver City hoping to get a look at the Chino Mine. Just west of Truth or Consequences the road erupts out of the Love Ranch Basin west of the Caballo Reservoir and into the Black Range of the Rio Grande uplift. It snakes up and over the Mimbres Mountains along 50 miles of hairpin turns through ponderosa pine forest, much of which was charred by the 2012 Whitewater Baldy Fire. The western edge of the Chino Mine comes into focus just as the road finally straightens out and drops into a wide valley just east of the Continental Divide. It had just rained and the mine, really a series of mountain peaks that surround a deep valley that looks like it’s been slowly turned inside-out after more than 100 years of industrial mining, appears to be melting. Terraced slopes that look painted in vertical streaks of red and copper and yellow bleed into one another as water travels down along deep rills and gullies toward the base of the mine where the runoff pools into mini-lagoons in shades of deep red and dark yellow. I pulled over at the lookout along the northern edge of the mine in order to take pictures, but the incomprehensible vastness of the mine escapes capture by photography.

The week before, I called Eric Kinneberg, Freeport’s director of media relations, hoping to get access to the mine. He told me that they never let media poke around their mines. “It’s too disruptive,” he said. While Governor Susana Martinez flung open the doors of the New Mexico Environment Department to Freeport-McMoRan, the mining giant is reluctant to return the favor. There are no tours of the facility, particularly for curious reporters. So I lingered at the lookout because it’s a long way back to Albuquerque, and it’s as close as I’ll get to the mine. Freeport’s policy of no access extends to nearly every aspect of its operation. It refuses to release data on its mining practices—no one knows how many workers Freeport employs at Chino or how much copper it mills.

But now, thanks to Susana Martinez and her new copper pit rule, we know one thing for certain: Freeport will dump millions of tons of toxic tailings into Whitewater Creek, and those tailings will eventually make it into groundwater. And it will do this because it has a permit, not despite it.