Comments on Proposed Changes to Groundwater Regulations

Below are the Sierra Club Rio Grande Chapter’s comments on the New Mexico Environment Department’s proposed changes to groundwater regulations.

The Environment Department says the changes will improve the state’s compliance with federal water requirements. But the changes would also allow facilities to permanently skirt water-quality rules and would weaken standards on some contaminants.

The biggest issue: The department is proposing that variances, which temporarily excuse facilities from complying with groundwater rules, become permanent.

Variances are supposed to be temporary exceptions to water-quality rules to be reviewed every five years (with public notice and participation) to give facilities time to come into compliance, not a permanent excuse to ignore the rules. Removing time limits also removes the public’s chance to oppose a variance.

The proposals are ostensibly to bring the state up to federal standards on contaminants. And some changes are worth supporting, such as increases to permit fees that haven’t been changed since 2004 and currently cover only 10% of staff costs. But the department also proposes to weaken standards on some contaminants, such as chromium.

To see the proposal, go to Please send comments by Oct. 17 to


Rio Grande Chapter comments on NMAC 20.6.2 proposed changes

Re:  Proposed Changes to 20.6.2 NMAC


Dear Ms. Hunter:

Thank you for the opportunity to comment on the proposed changes to NMAC 20.6.2 prior to their submission to the Water Quality Control Commission (WQCC).  On the behalf of our 7,000 members and over 20,000 supporters I submit the following comments.

The new concept of a ‘discharge permit amendment’ is from the Copper Rule, which is currently being challenged in the NM Supreme Court. This is very troubling to the Sierra Club, as this rule is verbatim what the Freeport/McMoran copper mining company proposed. We are concerned that after a permit is issued, a new contaminant could be grandfathered in. If a facility violates its permit, that is potential grounds to terminate the permit, not to amend the permit to make what was a violation permissible.

We are highly distressed by the higher barrier being placed on the public to challenge a variance. The burden of proof should be on the petitioner, not on the public.

Two concerns not mentioned in your proposed changes are:

  1. There are deleterious synergetic and cumulative effects of toxins that individually are below the danger limits established by the EPA. A number of research studies on this subject exist.
  2. How do you propose to deal with contaminants that are not yet adequately researched to have sound thresholds established? Testing of Rio Grande surface water in Albuquerque has shown many pharmaceutical and endocrine disruptors in measurable quantities, and these contaminants will eventually impact our groundwater.

If you could explain to the Sierra Club and to the public why you are proposing these changes, that would be very helpful. Federal rule changes generally include rationale behind proposed changes, I think that is a desirable model for NMED to follow.

Comments on the sections:

  1. Definitions, new term “discharge permit amendment” is a minor change to a permit that does not result in:
    1. 10% increase on a large permit is a large quantity. We disagree with this, should be zero
    2. 10% increase on a numerical threshold could exceed standards.

We disagree with this, should be zero

  1. Definitions, “toxic pollutant”

Thank you for adding newly identified pollutants

  1. Section Variance Petitions

Any variance should have a five year limit as is presently defined. We object to the elimination of the 5-year limit.

Further, the ability of parties to object at the time of renewal is limited to ‘new facts or conditions’ not known when the variance was originally granted. The understanding of the underlying science is constantly changing, so the variance could be significantly more serious (detrimental to groundwater) than originally presented, however, there may be no new facts or conditions specific to a specific permit, thus eliminating the public from commenting.

  1. Section Change of ‘unfiltered’ to  ‘nonfiltered’ and adding clarity. This appears to be an appropriate change.
  1. Section Human Health Standards

There are quite a few standards that are being reduced, presumably to match current federal standards.  We support these reductions.  We also support the inclusion of newly identified contaminants.

However, there are also quite a few that have been raised.  Chromium is known serious toxin, we object to doubling the standard. Barium is also a known toxin, and the threshold for this is doubled.  Total xylenes went from 0.62 to 10mg/l, a very large increase. 1,1,1-trichloroethane went from 0.06 to 0.2 mg/l, a large increase.  Vinyl chloride doubled to 0.002 mg/l.   We object to all of these increases in standards.

In the area of standard increases, fluoride more than doubled.  Lots of debate on this one, based on review of impact of fluoride on human systems.  However, what is the impact of fluoride to other organisms and the ecosystem?  Does research on these impacts support raising this standard?

  1. 6.2.3105 Exemptions. We support the ‘blending’ language added to this section.
  1. 6.2.3105 Exemptions, (L.) why is a ‘mining plan’ being removed? We concur with the retention of a permit requirement, but we do not see why the requirement for a mining plan is being removed.
  1. 6.2.3105 Exemptions (N. new section) NM Hazardous Waste Act or federal Resource Conservation and Recovery Act may supersede. Historically, much of 20.6.2 has been more stringent or clearer than other acts. Further, this section eliminates public participation of 20.6.2 and defers decisions to the secretary. We prefer to drop this new section.
  1. 6.2.3106 Adding the concept of modifications and amendments to the section on the application process for permits and renewals. This potentially has the problem of reducing public input on the process.  Given the new definition for an amendment, permittees can routinely keep asking to exceed quantities discharged by 10% and exceed permitted rates of contaminants by 10%. We strongly object to this. Even more egregious would be the potential of stacking these amendments to considerably exceed the conditions of the original permit.
  1. 6.3.3108 Public Notice

(B.1) We strongly object to the reduction in the size of signage.  Please retain the current size, this is much needed means for the public to be aware of the process.

(B.2) We object to the proposed change that email can be used for notice to affected properties.  Email is not a guaranteed means of communication, whereas mail is generally considered to be highly reliable.  Further, email filters are frequently set to reject email from unknown senders, and to not notify the sender of this action.

  1. 6.2.3109 Abatement plan process.

(B) We strongly object to the proposed language for amendments which eliminates public notice and a hearing process.

(C) Given you have removed public notice of change, you are now limiting notice of the change to only parties privy to the nearly secret amendment. This is absurd

  1. 6.2.3114 Fees

(G) we support the proposed tie to the consumer price index.

(Table 1) Why are fees for the following categories being dropped: mining dewatering, mining leach dump, mining tailings, and mining in situ leach?

The fee of $40K for a mine greater than 1,000 acres is not proportional to the fee of $20K for a mine under 100 acres. Similarly, a fee of $30K for a mine from 100 to 1000 acres in not proportional to the fee for a mine under 100 acres.

  1. 6.2.4103 Abatement Standards

We object to the changes in this section. The previous language was clear and unambiguous.

Further, the notion of ‘technical infeasibility’ in being eliminated or greatly reduced. The proposed language is much more focused on ‘alternative abatement’ which is being granted at a much easier to pass threshold, thus risking recovery of pollution from a permittee.

(B) We are concerned about the language presented here. Proof of meeting these qualifications of pollution on various human and plant systems must be presented, which is a much more difficult barrier for the public to challenge an abatement decision. This looks to be a means to remove the public from decisions of the bureau.

(E) The monitoring of an abatement plan is based on reporting of quarterly samples. We object to allowing the cabinet secretary to defining other periods of time, which could be excessively long.

  1. Public Notice

We are unclear on why these changes are being proposed. The prior language is clear. We are concerned that the effect of these changes will be that public notice provisions to the public will be made more difficult.

Thank you for considering our concerns to these regulations. We appreciate your bureau’s task of permitting and monitoring activities that impact the groundwater of New Mexico, and keeping it clean and usable for all our citizens.  Please keep me informed on the progress and details of the proposed changes and timeline of submission to the WQCC.

John R. Buchser
Water Issues Chair

Featured image, Chino mine pit

Comments on Proposed Changes to Groundwater Regulations