April 08, 2015 – Gila Resources Information Project, Amigos Bravos, Turner-Ranch Properties, L.P., StatE of New Mexico ex rel. Gary King, Attorney General, and Willaim C. Olsen v. New Mexico Water Quality Control Commission, No. 33,238 (consolidated with 33,238 & 33,245) and Freeport-Morgan Chino Mines Company, Freeport-McMoran Tyrone, Inc., Feeport-McMann Cobre Minining Co., and New Mexico Environmental Department.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: April 8, 2015
NO. 33,237
(consolidated with Nos. 33,238 and 33,245)
GILA RESOURCES INFORMATION PROJECT,
AMIGOS BRAVOS, TURNER RANCH
PROPERTIES, L.P., STATE OF NEW MEXICO,
ex rel. Gary King, Attorney
General, and WILLIAM C. OLSON,
Appellants,
v.
NEW MEXICO WATER QUALITY
CONTROL COMMISSION,
Appellee,
and
FREEPORT-MCMORAN CHINO MINES
COMPANY, FREEPORT-MCMORAN TYRONE,
INC., FREEPORT-MCMORAN COBRE
MINING COMPANY, and NEW MEXICO
ENVIRONMENT DEPARTMENT,
Intervenors-Appellees.
APPEAL FROM THE WATER QUALITY CONTROL COMMISSION
Butch Tongate, Chair

N.M. Environmental Law Center
R. Bruce Frederick
Douglas Meiklejohn
Santa Fe, NM
for Appellant Gila Resources Information Project and Turner Ranch Properties,
L.P.
High Desert Energy + Environment Law Partners
Tracy Hughes
Santa Fe, NM
for Appellant Amigos Bravos
Water, Environment and Utilities Division
Office of the N.M. Attorney General
Hector H. Balderas, Attorney General
Tannis L. Fox, Assistant Attorney General
Santa Fe, NM
for Appellant State of New Mexico
High Desert Energy + Environment Law Partners
Charles F. Noble
Santa Fe, NM
for Appellant William C. Olson
Hinkle Shanor LLP
Thomas M. Hnasko
Julie A. Sakura
Santa Fe, NM
for Appellee N.M. Water Quality Control Commission

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
John J. Kelly
Stuart R. Butzier
Emil J. Kiehne
Albuquerque, NM
Gallagher & Kennedy, P.A.
Dalva L. Moellenberg
Anthony (T.J.) J. Trujillo
Santa Fe, NM
for Intervenors-Appellees Freeport McMoRan Chino Mines Co., Freeport-
McMoRan Tyrone, Inc., and Freeport-McMoRan Cobre Mining Co.
N.M. Environment Department
Andrew P. Knight, Assistant General Counsel
Kathryn S. Becker, Assistant General Counsel
Santa Fe, NM
for Intervenor-Appellee N.M. Environment Department

OPINION
SUTIN, Judge.
{1} 	The Attorney General (hereafter the State) and, separately, a group of appellants
comprised of Gila Resources Information Project (GRIP), Amigos Bravos, Turner
Ranch Properties, L.P., and William C. Olson (collectively Gila) appealed the Water
Quality Control Commission’s (the Commission) order adopting a set of regulations
codified at 20.6.7 NMAC (12/1/2013) pertaining to ground water protection and
supplemental permitting requirements for copper mine facilities (the Regulations).
The Commission and, separately, a group of Intervenors-Appellees comprised of
Freeport-McMoRan Chino Mines Co., Freeport-McMoRan Tyrone, Inc., Freeport-
McMoRan Cobre Mining Co., and the New Mexico Environment Department
(collectively Freeport) filed answer briefs. We consolidated three appeals and address
both the State’s and Gila’s contentions in this Opinion.
{2} 	Primarily at issue in this appeal is whether the Regulations adopted by the
Commission violate the Water Quality Act (the WQA), NMSA 1978, §§ 74-6-1 to -17
(1967, as amended through 2013), and whether the Commission’s reasons for
adopting the Regulations were supported by sufficient evidence. We hold that the
Regulations do not violate the WQA. Additionally, we conclude that Appellants’
various attacks on the Commission’s statement of reasons in support of its adoption

of the Regulations do not warrant reversal. We affirm the Commission’s order
adopting the Regulations.
BACKGROUND
The Significance and Effect of the 2009 Amendments to the WQA
{3} 	Prior to 2009, the WQA did not allow the Commission to promulgate
regulations 	that 	specified 	the 	methods 	to 	prevent 	or 	abate 	water 	pollution.
Accordingly, the Commission, which is required to prevent or abate water pollution,
did so as part of the copper mine permitting process through its “constituent agency,”
the New Mexico Environment Department (NMED). See § 74-6-2(K)(1) (stating in
an appropriate context, “constituent agency” means the department of environment);
§ 74-6-5(A) (stating that the Commission “may require persons to obtain from a
constituent agency designated by the commission a permit for the discharge of any
water contaminant”). In the permitting process, an applicant was required to propose
pollution-control measures to NMED for approval and, if needed, NMED would
require specific pollution-control permit conditions. Parties who were adversely
affected by the permitting action were entitled to appeal NMED’s decision to the
Commission. Section 74-6-5(O).
{4} 	In 2009 the Legislature amended the WQA to require the Commission to adopt
regulations particular to the copper industry that would specify “the measures to be
taken to prevent water pollution and to monitor water quality.” Section 74-6-4(K).

Prospective regulations were to be developed by a constituent agency, here NMED,
which was charged with establishing “an advisory committee composed of persons
with knowledge and expertise particular to the [copper] industry . . . and other
interested stakeholders to advise [NMED] on appropriate regulations to be proposed
for adoption by the [C]ommission.” Id. Further, the Legislature mandated that, after
the regulations were adopted, “permits for facilities in that industry shall be subject
to conditions contained in the regulations.” Section 74-6-5(D).
The 2012-2013 Regulation-Making Proceedings
{5} 	NMED formed two committees to advise it on appropriate regulations to
propose to the Commission: a “Copper Rule Advisory Committee” (the advisory
committee) and a technical committee. The advisory committee included, among
others, representatives from environmental groups (including GRIP and Amigos
Bravos), mine owners and operators (including Freeport), and former Ground Water
Quality Bureau Chief of NMED, William C. Olson, who was hired by NMED in this
instance as a contractor to assist the advisory committee. The two committees met
regularly over the course of seven months to review draft language and different
approaches to regulating copper mining, and in August 2012, Mr. Olson provided
NMED with a draft of copper mine regulations. NMED caused the draft regulations
to be edited by instructing Mr. Olson to incorporate modifications that had been
suggested by Freeport, and although Mr. Olson argued that a number of Freeport’s

suggested modifications would violate the WQA, he eventually complied by
incorporating Freeport’s changes into the draft regulations. NMED submitted the
edited version for public comment in September 2012. After holding two public
meetings at which it took public comments on the draft regulations and after meeting
with interested stakeholders, NMED prepared proposed regulations, and in October
2012, NMED petitioned the Commission to adopt its proposed regulations.
{6} 	GRIP, Amigos Bravos, and Turner Ranch Properties submitted a response to
NMED’s petition in which they argued that the Commission should reject the petition
because NMED’s proposed regulations violated the WQA. The Commission voted to
accept the petition, assigned a hearing officer to the matter, and scheduled a hearing
on the petition to be held in April 2013. Prior to the hearing, the State moved to
remand NMED’s proposed regulations to NMED on the ground that the proposed
regulations would violate the WQA. On the same grounds, GRIP, Amigos Bravos, and
Turner Ranch Properties moved to dismiss the petition. The Commission denied these
respective motions.
{7} 	Additionally, the Commission granted, in part, a pretrial motion by the State to
admit portions of the record from a 2007 adjudicatory proceeding titled “In the Matter
of Appeal of Supplemental Discharge Permit for Closure (DP 1341) for Phelps Dodge
Tyrone, Inc.” (the Permit Adjudication). Specifically, the Commission ruled that its
February 4, 2009, “Decision and Order on Remand” in the Permit Adjudication would

be admitted at the hearing, while all other portions of the record from the Permit
Adjudication would be excluded so as to avoid confusion and to save unnecessary
expenditure of the Commission’s time and resources. Although it will be discussed
more thoroughly later in this Opinion, the Permit Adjudication and the 2009 Decision
and Order on Remand proceeded from this Court’s Opinion in 2006 in Phelps Dodge
Tyrone, Inc. v. New Mexico Water Quality Control Commission, 2006-NMCA-115,
140 N.M. 464, 143 P.3d 502.
{8} 	Following further reviews by NMED staff and expert witnesses, NMED edited
the proposed regulations and filed a notice of amended petition in February 2013 that
included a redlined version of the proposed regulations (the amended regulations),
showing all changes. Over the course of ten days in April and May 2013, the
Commission held a hearing on NMED’s proposed amended regulations. All of the
parties to this appeal presented technical testimony during the hearing. Following the
hearing, the hearing officer gave all parties the opportunity to submit written closing
arguments and proposed statements of reasons for the Commission’s consideration.
Attached to its proposed statement of reasons, NMED proposed additional changes
to the amended regulations. We will refer to this draft as the “final proposed
regulations.”
{9} 	After reviewing the record including the pleadings, the written testimony,
exhibits, hearing transcript, public comments, and the hearing officer’s orders, and

after hearing final oral arguments from the parties during a public meeting, the
Commission issued its Order and Statement of Reasons (the Order) on September 25,
2013, adopting NMED’s final proposed regulations. The Order, which is the subject
of this appeal, is a 214-page document that includes, among other things, the
Commission’s statement of 1,306 reasons supporting its decision to adopt the
Regulations. NMED’s final proposed regulations, to which we refer in this Opinion
as “the Regulations,” were codified in December 2013 at 20.6.7 NMAC.
Legal Context and Terminology
{10} 	The objective of the Regulations is “to supplement the general permitting
requirements” of the permitting and ground water standards regulations, 20.6.2.3000
to .3114 NMAC (12/1/1995, as amended through 8/1/2014), “to control discharges of
water contaminants specific to copper mine facilities and their operations to prevent
water pollution.” 20.6.7.6 NMAC. In the context of the WQA and the related
regulations, the phrase “ground water” refers to “interstitial water which occurs in
saturated earth material and which is capable of entering a well in sufficient amounts
to be utilized as a water supply[.]” 20.6.2.7(Z) NMAC (8/1/2014). The term
“discharge” means “spilling, leaking, pumping, pouring, emitting, or dumping of a
water contaminant in a location and manner where there is a reasonable probability
that the water contaminant may reach ground water.” 20.6.7.7(B)(18) NMAC.

{11} 	Discharge is regulated through a permitting process. See § 74-6-5(A) (stating
that the Commission may require “persons,” i.e, the owner or operator of a copper
mine facility, to obtain a permit for the discharge of any water contaminant (a
discharge permit)). Any person, in this case, a mine owner or operator, who wishes
to discharge “effluent or leachate . . . so that it may move directly or indirectly into
ground water” is required to apply to NMED for a discharge permit. 20.6.2.3104
NMAC (requiring a discharge permit). The Regulations reiterate this requirement. See
20.6.7.8(A) NMAC (“No person shall discharge effluent or leachate from a copper
mine facility so that it may move directly or indirectly into ground water without a
discharge permit approved by [NMED].”).
{12} 	Ground water quality standards are provided by 20.6.2.3103 NMAC that
specifies the pH range and the maximum concentration of various contaminants
applicable to ground water for various uses, including human health, domestic water
supply, and irrigation use. For ease of reference in this Opinion, we refer to the
standards set forth in 20.6.2.3103 NMAC as “the 3103 standards.” Pursuant to the
WQA, NMED is required to deny an application for a discharge permit if, in relevant
part, its approval would violate any provision of the WQA or if “the discharge would
cause or contribute to water contaminant levels in excess of [the 3103 standards]” as
“measured at any place of withdrawal of water for present or reasonably foreseeable
future use.” Section 74-6-5(E)(2), (3).

{13} 	“Copper mine facility” refers to “all areas within which copper mining and its
related activities that may discharge water contaminants occurs and where the
discharge will or does take place[.]” 20.6.7.7(B)(13) NMAC. The phrase “copper
mining and its related activities” includes, among other things, open pits, waste rock
piles, ore stockpiles, leaching operations, tailings impoundments, and tailings or
impacted stormwater. Id. An “open pit” is “the area within which ore and waste rock
are exposed and removed by surface mining.” 20.6.7.7(B)(41) NMAC. “Waste rock”
is “all material excavated from a copper mine facility that is not ore or clean top soil.”
20.6.7.7(B)(65) NMAC. “Tailings” means “finely crushed and ground rock residue
and associated fluids discharged from an ore milling, flotation beneficiation[,] and
concentrating process”; the “final repository of tailings” is a “tailings impoundment.”
20.6.7.7(B)(59), (60) NMAC. “Impacted stormwater” is “direct precipitation and
runoff that comes into contact with water contaminants within a copper mine facility
which causes the stormwater to exceed one or more of the . . . 3103 [standards.]”
20.6.7.7(B)(29) NMAC.
{14} 	“Leaching” refers to the process of “placing acidic leach solution on the tops
and sides of [stockpiles]” of ore and other rock piles such that “[t]he solution
percolates through the piles . . . dissolv[ing] the copper[.]” Phelps Dodge, 2006-
NMCA-115, ¶ 5; 20.6.7.7(B)(33) NMAC (defining a “leach stockpile” as “stockpiles
of ore and all other rock piles associated with mining disturbances that have been

leached, are currently being leached[,] or have been placed in a pile for the purpose
of being leached”). The leach solution is then collected and “pumped to a solvent
extraction and electrowinning plant where the copper is removed from the solution.”
Phelps Dodge, 2006-NMCA-115, ¶ 5.
“Place of Withdrawal” and the Earlier Phelps Dodge Appeals
{15} 	The phrase “place of withdrawal” in Section 74-6-5(E)(3) is not defined by the
WQA nor is it defined in any related regulation. The Legislature’s intended meaning
of “place of withdrawal” was the subject of this Court’s discussion in Phelps Dodge,
2006-NMCA-115, ¶¶ 2, 7-8, 26-38, in which we considered Phelps Dodge’s appeal
from the Commission’s imposition of conditions on its discharge permit for its copper
mine. In Phelps Dodge, this Court concluded that while “the [L]egislature meant to
capture the concept that clean water that is currently being withdrawn for use, or clean
water that is likely to be used in the reasonably foreseeable future, must be
protected[,]” this standard is “difficult to apply to a [copper mine facility because] . . .
it raises the question . . . as to the point at which the [L]egislature intended to measure
compliance . . . . That is, should water quality be measured at the bottom of a waste
rock pile, at the bottom of the mine pit, at wells located at the perimeter boundary of
the mine property, or at some other point or points?” Id. ¶¶ 27-28. Recognizing that
as a Court, and lacking the “technical expertise in hydrology, geology, or other
applicable scientific topics[,]” we were ill-equipped to define “place of withdrawal”

in the context of a copper mine facility, we remanded the matter to the Commission
to “create some general factors or policies to guide its determination” of what
constituted a “place of withdrawal.” Id. ¶¶ 35-37. In so doing, we offered “no opinion
as to whether the Commission should do so by way of rule[-]making or by simply
deciding the factors as a part of [a] specific case, or both.” Id. ¶ 35.
{16} 	On remand from our Phelps Dodge Opinion, in 2007 the Commission held a
hearing, and in its February 4, 2009, Decision and Order on Remand referred to earlier
in this Opinion identified several factors that NMED should consider in identifying
places of withdrawal at the copper mine facility. The Commission’s Decision and
Order on Remand required NMED to act consistently with the order in identifying
places of withdrawal and appropriate locations at which the effects of the mine’s
discharges on ground water were to be measured and required NMED and the facility
to 	“negotiate” 	permit 	conditions 	that 	appropriately 	reduced 	ground 	water
contamination at those places of withdrawal.
{17} 	In a second appeal, in 2009, Phelps Dodge appealed the Commission’s 2009
Decision and Order on Remand to this Court. During the pendency of that second
appeal, some of the parties, including NMED and Phelps Dodge, sought the
Commission’s permission to depart from the remand order so as to pursue regulatory
solutions to determine places of withdrawal, thereby avoiding further litigation over
the meaning of that phrase. The Commission granted the parties relief from the

directives of the Decision and Order on Remand to allow the parties to reach a
settlement through various regulatory actions and processes, and Phelps Dodge
subsequently withdrew its second appeal. One such regulatory action was the
proceeding to establish the Regulations that are at issue in this appeal.
The Present Consolidated Appeal
{18} 	In the consolidated appeal now before us, Gila and the State (Appellants)
contend that the Order should be reversed. Although they each present various
arguments in support of this overarching contention, the main crux of their respective
appeals is that the Regulations violate the WQA by allowing copper mines to pollute
ground water wherever the mines operate regardless of whether the ground water is
or will be withdrawn for uses that require potable water. Additionally, Appellants
challenge the sufficiency of the evidence supporting aspects of the Order. And finally,
although they approach it differently, Appellants argue that by adopting the
Regulations the Commission improperly circumvented the Decision and Order on
Remand in the Permit Adjudication.
{19} 	We conclude that the Regulations do not violate the WQA, and we reject
Appellants’ challenges to the sufficiency of the evidence supporting the Commission’s
decision to adopt the Regulations. We further conclude that the Decision and Order
on Remand had no bearing on the Commission’s authority to adopt the Regulations.
We affirm.

DISCUSSION
Standard of Review
{20} 	Regulations that have been enacted by an agency “are presumptively valid and
will be upheld if [they are] reasonably consistent with the authorizing statutes.” N.M.
Mining Ass’n v. N.M. Water Quality Control Comm’n, 2007-NMCA-010, ¶ 11, 141
N.M. 	41, 	150 	P.3d 	991. 	“A 	party 	challenging 	[regulations] 	adopted 	by 	an
administrative agency has the burden of establishing [their] invalidity[.]” N.M. Mining
Ass’n v. N.M. Mining Comm’n, 1996-NMCA-098, ¶ 8, 122 N.M. 332, 924 P.2d 741.
{21} 	This Court will set aside the Commission’s order adopting regulations only if
the order is “(1) arbitrary, capricious[,] or an abuse of discretion; (2) not supported by
substantial evidence in the record; or (3) otherwise not in accordance with law.”
Section 74-6-7(B); see Gila Res. Info. Project v. N.M. Water Quality Control
Comm’n, 2005-NMCA-139, ¶ 16, 138 N.M. 625, 124 P.3d 1164 (stating that an
agency action is arbitrary or capricious “if it is unreasonable or without a rational
basis, when viewed in light of the whole record.” (internal quotation marks and
citation omitted)); Regents of the Univ. of Cal. v. N.M. Water Quality Control
Comm’n, 2004-NMCA-073, ¶ 29, 136 N.M. 45, 94 P.3d 788 (stating that an agency
decision is supported by substantial evidence where “relevant evidence that a
reasonable mind might accept as adequate” supports the conclusion (internal quotation
marks and citation omitted)).

The Regulations Do Not Violate the WQA
{22} 	Appellants make a number of arguments in support of their respective claims
that the Regulations violate the WQA. We address these arguments in turn, combining
them where it is reasonable to do so in order to avoid duplication. We begin, however,
by describing the Regulations, generally.
{23} 	Because the phrase “place of withdrawal” is not defined in the WQA,
designating places of withdrawal is a matter left to NMED’s and the Commission’s
expertise. See Phelps Dodge, 2006-NMCA-115, ¶ 37 (recognizing NMED’s authority
to determine the locations of places of withdrawal, subject to the Commission’s
review and authority to define relevant factors). As we recognized in Phelps Dodge,
in determining places of withdrawal, two competing interests are at stake: the need to
protect water sources and the need to allow mining operations, which are “a necessary
and important component of our economy and our modern way of life.” Id. ¶¶ 27, 29.
Further, we recognized that because mining has inevitable environmental impacts, it
would be unrealistic and overbroad to conclude that an entire mining facility is a place
of withdrawal such that water quality standards must be met everywhere within the
facility’s boundaries. Id. ¶ 33.
{24} 	Under the Regulations, the primary method for protecting groundwater during
the mine’s operation is through discharge control at each mining “unit,” that is, at the
place of each mining-related activity, by containing ground water that exceeds

1 “Downgradient” means “[t]he direction that ground[]water flows[.]” Ecomii
Green Dictionary a to z, http://www.ecomii.com/dictionary/downgradient (last visited
Mar. 12, 2015).
applicable standards. Although the containment strategy may allow ground water
underlying certain units to exceed the 3103 standards during mining operations,
pursuant to the Regulations, those areas are not available as “places of withdrawal”
during mining operations. The effectiveness of the discharge control at each mining
unit is determined by monitor wells that are located on the perimeter of each unit, and
should a monitor well detect an exceedance of the 3103 standards, the Regulations
require emergency repair, corrective action, and, if necessary, abatement measures.
See 20.6.7.30(A) NMAC (governing the contingency requirements for copper mine
facilities in the event of an exceedance of the 3103 standards).
{25} 	The Regulations require monitor wells to be installed “as close as practicable
around the perimeter and downgradient1 of each open pit, leach stockpile, waste rock
stockpile, 	tailings 	impoundment, 	process 	water 	impoundment, 	and 	impacted
stormwater impoundment.” 20.6.7.28(B) NMAC (footnote added). Monitor wells
must be located in such a manner as to “detect an exceedance[] or a trend toward
exceedance[] of the [3103] standards at the earliest possible occurrence, so that
investigation of the extent of contamination and actions to address the source of
contamination may be implemented as soon as possible.” Id. The prospective locations
of a monitor well must be stated in an application for a discharge permit for NMED’s

review and must include, among other things, information pertaining to “[t]he ground
water flow direction beneath the copper mine facility used to determine the
monitoring well locations[], including supporting documentation used to determine
ground water flow direction.” 20.6.7.28(A)(2) NMAC. In the event that monitor
results reflect that the 3103 standards are exceeded, the Regulations require corrective
action, and if NMED determines that a monitor well “is not located downgradient of
or does not adequately monitor the contamination source [that] it is intended to
monitor,” the Regulations require its replacement. 20.6.7.30(A), (B) NMAC. After the
mine closes, the discharge permittee is required by the Regulations to take a number
of steps to ensure continued ground water protection. See generally 20.6.7.33 NMAC
(governing the closure requirements applicable to a copper mine facility); 20.6.7.35
NMAC (governing the post-closure requirements applicable to a copper mine facility).
{26} 	Appellants argue that, in contravention of the WQA, the Regulations create a
“point of compliance system” that allows a mine facility to pollute water under the
entire mine facility up to a designated point (a point of compliance) at which a
monitor well is used to ensure compliance with the 3103 standards. Appellants argue,
further, that the Regulations violate the WQA because they allow 	discharge
permittees to pollute ground water underneath a mining facility without regard for
places of withdrawal.
Point-of-Compliance Argument

{27} 	We begin by addressing Appellants’ point-of-compliance arguments. In Phelps
Dodge, we noted the phrase “point of compliance” as being “a vertical surface located
at the hydraulically downgradient limit of the waste management area that extends
down into the uppermost aquifer underlying the regulated units[.]” 2006-NMCA-115
¶ 36 (internal quotation marks and citation omitted). A point of compliance was one
“possible factor[]” this Court suggested that the Commission might consider in
establishing a set of factors that could be used to determine places of withdrawal in
the Permit Adjudication or in future rule-making proceedings. Id. ¶¶ 35-37. In 2009
the Legislature instructed the Commission to establish regulations for the copper
industry based upon scientific and statutory considerations; however, the Legislature
has remained silent on the issue of whether a point-of-compliance system is
appropriate for New Mexico copper mining operations. See § 74-6-4(E), (K).
{28} 	Whether Appellants’ characterization of the Regulations as a point-of-
compliance system is or is not proper is not significant to the outcome of this appeal.
Assuming that the Regulations created a system that is properly characterized as a
point-of-compliance system, nothing in the WQA prohibited the Commission from
doing so. We are unpersuaded by Appellants’ citations to out-of-state statutes and
regulations by which they attempt to demonstrate that where legislators intended to
create point-of-compliance systems, they did so expressly and/or with certain
provisions that are not found in New Mexico’s laws or regulations. We assume, based

on our Phelps Dodge discussion, and based on the pervasiveness in other jurisdictions
of 	laws 	and 	regulations 	pertaining 	to 	point-of-compliance 	systems, 	that 	our
Legislature was aware of the concept of a point-of-compliance system when it vested
the Commission with authority to establish copper mine regulations. Attorney Gen.
v. Pub. Regulation Comm’n, 2011-NMSC-034, ¶ 10, 150 N.M. 174, 258 P.3d 453
(stating that appellate courts presume that the Legislature is fully aware of relevant
statutory and common law). We further assume that had the Legislature intended to
expressly prohibit the Commission from establishing such a system, it would have
done so. Instead, our Legislature chose to leave the decision whether to establish a
point-of-compliance system or an alternative to the expertise of the Commission, and
Appellants’ argument to the contrary, that the WQA prohibits a point-of-compliance
system, is not supported by the language of the WQA. We turn now to Appellants’
additional arguments that the Regulations violate various specific provisions of the
WQA.
Places-of-Withdrawal Argument
{29} 	Section 74-6-5(E)(3) requires NMED to deny any application for a discharge
permit if the discharge would cause or contribute to water contaminant levels in
excess of the 3103 standards at any place of withdrawal. In turn, the Regulations
expressly condition approval of a discharge permit upon the applicant’s compliance
with Section 74-6-5(E)(3). See 20.6.7.10(J)(3) NMAC (recognizing that NMED must

deny a discharge permit if so required by Subsection E of Section 74-6-5(E)).
Nevertheless, although they approach it differently, Appellants argue that the
Regulations violate Section 74-6-5(E)(3) because they permit water pollution without
regard to places of withdrawal.
{30} 	Appellants argue that the Regulations violate Section 74-6-5(E)(3) and
disregard this Court’s Phelps Dodge “mandate” because the Regulations do not
provide any basis for identifying places of withdrawal. Rather, Gila argues, the
Regulations permit “extensive ground water pollution at all copper mines so long as
‘applicable standards’ are met in distant monitoring wells” and they “blindly permit[]
widespread ground water pollution wherever copper mines happen to be located.” The
State shares Gila’s view regarding the extent of ground water pollution permitted
under the Regulations and argues that the Regulations allow copper mining facilities
to pollute ground water underneath “its site up to a certain point, be it a monitoring
well . . . or a property boundary.”
{31} 	Appellants’ argument that, pursuant to our 	Phelps Dodge 	Opinion, the
Commission was required to include in the Regulations factors to be used in
identifying places of withdrawal is premised on a misunderstanding of our holding in
Phelps Dodge. In Phelps Dodge, this Court required the Commission, on remand, to
create some general factors or policies to guide its determination of the location of
places of withdrawal on the mine site; however, “[w]e offer[ed] no opinion as to

whether the Commission should do so by way of rule[-]making or by simply deciding
the factors as a part of [the Permit Adjudication].” Phelps Dodge, 2006-NMCA-115,
¶ 35. The Commission’s Decision and Order on Remand in which the Commission
identified a number of factors to be used by NMED and the mining facility to establish
places of withdrawal at the mine site reflects the Commission’s compliance with our
Phelps Dodge Opinion. The Regulations that are the subject of this appeal reflect
further compliance with our Phelps Dodge Opinion, and as we discuss next, they
reflect compliance with the WQA, insofar as the Commission created a set of concrete
regulations via the rule-making process that specifically protect ground water
underlying mine facilities so that areas within a mine facility may become places of
withdrawal.
{32} 	As discussed earlier in this Opinion, nearly three years after our Phelps Dodge
Opinion was published, the Legislature amended the WQA to require the Commission
to establish regulations particular to the copper mine industry. See § 74-6-4(K).
Notably, however, the Legislature did not require the Commission to include in those
regulations a list of factors or policies that must be used to determine places of
withdrawal. See id. After the 2009 amendments to the WQA, determining the
locations of places of withdrawal under Section 74-6-5(E)(3) was, as it always had
been, left to the Commission’s discretion. See Phelps Dodge, 2006-NMCA-115, ¶ 35
(recognizing that pursuant to Section 74-6-5(E)(3) the Commission must determine

places of withdrawal). In sum, the Commission’s decision not to include in the
Regulations factors or policies to be used for determining places of withdrawal did not
violate the WQA nor did it disregard a “mandate” from this Court.
The Regulations Do Not Permit Widespread Ground Water Pollution
{33} 	Next we consider Appellants’ arguments that the Regulations allow widespread
ground water pollution in excess of the 3103 standards under an entire mine facility
up to “distant” monitor wells or even to the property boundary. As discussed later in
this Opinion, and having reviewed the Regulations, we conclude that the notions that
the Regulations allow widespread pollution or that they allow a mine facility to pollute
ground water underlying the entire facility or that the monitor wells may be “distant”
are unfounded or otherwise exaggerated.
{34} 	Pursuant to the Regulations, all areas within a mine facility except areas that fall
within the perimeter of the monitor wells must meet the 3103 standards. See
20.6.7.28(B) NMAC (governing the placement of monitoring wells and requiring that
the 3103 standards be met at each monitoring well and outside the monitoring-well
perimeter). Thus, within a mine facility, any place at or beyond the monitor-well
perimeter is water that may now and may in the future be withdrawn for human uses.
Accordingly, every place within a mine facility at and beyond the monitor-well
perimeters is protected from ground water pollution, and therefore, may be used as a
“place of withdrawal.” See Phelps Dodge, 2006-NMCA-115, ¶ 27 (stating that the

Legislature’s use of the phrase “place of withdrawal” in Section 74-6-5(E)(3) captured
“the concept that clean water that is currently being withdrawn for use, or clean water
that is likely to be used in the reasonably foreseeable future, must be protected”).
{35} 	Appellants’ contentions that the monitor wells would be “distant” from the
mining units or that the monitoring would only occur at the perimeter of the mine
facility, thus allowing the entire area within the mine facility to exceed the 3103
standards are not supported by the language of the Regulations. The monitor wells
must be placed as close as practicable around the perimeter and downgradient of each
mining unit, and the placement of monitor wells and the number of monitor wells that
are required at each unit is subject to NMED’s approval. See 20.6.7.28 (A), (B)
NMAC. In the hypothetical event that a prospective permittee intended to place
monitor wells at a distance that any interested party deemed excessive, that party may
raise the issue during the permitting process. See § 74-6-5(G) (“No ruling shall be
made on any application for a permit without opportunity for a public hearing at
which all interested persons shall be given a reasonable chance to submit evidence,
data, views[,] or arguments orally or in writing and to examine witnesses testifying
at the hearing.”).
{36} 	We next address Appellants’ arguments regarding the extent to which the
Regulations allow ground water pollution. Having rejected the notion that the
Regulations permit water pollution within the entire boundary of a mine facility, we

focus on the State’s argument that the Regulations violate the WQA because they
allow copper mining facilities to pollute ground water within a unit up to the point of
a monitor well. We also address the related argument, raised by Gila, that the
Regulations “frustrate[] the [WQA’s] basic purpose” because the Regulations permit
rather than abate and prevent ground water pollution within mining units.
{37} 	In promulgating the Regulations, the Commission was acting pursuant to the
Legislature’s mandate that it formulate regulations to “prevent or abate water
pollution” while simultaneously weighing, among other things, the “social and
economic value of the sources of water contaminants” and the “technical practicability
and economic reasonableness of reducing or eliminating” them. Section 74-6-4(E)(2),
(3). Thus, the Commission was required to strike what it deemed to be an appropriate
balance between the need to prevent or abate water pollution and the need to create
regulations with which the mining industry could reasonably and practicably comply.
To the extent that Appellants’ arguments are implicitly based on the premise that the
Commission was required by the WQA to establish regulations that would totally
prevent mining operations from polluting ground water, we reject them. See Phelps
Dodge, 2006-NMCA-115, ¶ 33 (recognizing that it is unrealistic to require that all
ground water underlying a mine site meet drinkable standards).
{38} 	Appellants cite various provisions of the Regulations pursuant to which the
ground water underlying discrete mining units is not required to meet the 3103

standards to exemplify their point that the Regulations permit ground water
contamination. While the Commission acknowledged that the containment strategy
required by the Regulations may allow ground water underlying certain units to
exceed the 3103 standards during mining operations, to say that the Regulations
therefore permit ground water contamination goes too far. As noted earlier, containing
ground water that exceeds the 3103 standards is the primary method of controlling
discharge. Pursuant to the Regulations, each mining unit is governed by requirements
that specifically identify the method by which contaminated water is controlled.
{39} 	For example, Appellants argue that the Regulations permit ground water
pollution because, during mining operations and after closure, the 3103 standards do
not apply to ground water that is located inside the “ ‘area of open pit hydrologic
containment’ and related ‘open pit surface drainage area.’ “ See 20.6.7.24(D) NMAC
(“During operation of an open pit, the [3103 standards] do not apply within the area
of open pit hydrologic containment.”). An
“[a]rea of open pit hydrologic containment” means, for an open pit that
intercepts the water table, the area where ground water drains to the open
pit and is removed by evaporation or pumping, and is interior to the
department approved monitoring well network installed around the
perimeter of an open pit[.]”
20.6.7.7(B)(5) NMAC. An “ ‘[o]pen pit surface drainage area’ means the area in
which storm water drains into an open pit and cannot feasibly be diverted by gravity
outside the pit perimeter, and the underlying ground water is hydrologically contained

by pumping or evaporation of water from the open pit.” 20.6.7.7(B)(42) NMAC.
Thus, although it is true that the 3103 standards do not apply to open pits during
mining operations, Appellants fail to acknowledge the Regulations’ provision for
ground water protection in that area by removing the contaminated water from the
open pit. See 20.6.7.33(D) NMAC.
{40} 	After closure of mining operations, Part 20.6.7.33(D) NMAC of the Regulations
requires a permittee to provide a detailed closure plan for open pits that will
“minimize the potential to cause an exceedance of” the 3103 standards. Under that
part of the Regulations, any water within an open pit that is predicted to flow into the
ground water must meet the 3103 standards. 20.6.7.33(D)(2) NMAC. An exception
applies only to open pits that are determined to be “hydrologic evaporative sink[s],”
meaning that evaporation of the water in the open pit will exceed the inflow and will,
therefore, not flow into the ground water. 20.6.7.33(D)(1) NMAC. Thus, Appellants’
assertion that the Regulations permit the water from open pits to exceed the 3103
standards perpetually after closure is inaccurate.
{41} 	Gila argues, further, that the Regulations violate the WQA because they permit
widespread ground water pollution above the 3103 standards without requiring the
permittee to apply for a variance. Section 74-6-4(H) provides that under particular
circumstances, the Commission “may grant an individual variance from any
regulation[.]” Nothing in the Regulations purport to alter the Commission’s ability or

discretion to grant a variance under Section 74-6-4(H), and having rejected Gila’s
premise that the Regulations “permit[] widespread ground water pollution[,]” we
decline to consider this argument further.
{42} 	In sum, Appellants have failed to demonstrate that the Regulations violate any
provision of the WQA. Although the Regulations’ provisions are not perfectly
protective of ground water underlying a mining facility, the WQA did not require
them to be. See § 74-6-4(E). The Commission determined that the Regulations
established “efficient measures and clear provisions to prevent and contain ground
water contamination[,]” and having reviewed the various at-issue provisions, we
cannot conclude that the Commission reached this conclusion in error.
Collateral Estoppel Does Not Apply to the Commission’s Rule-Making Procedure
{43} 	Appellants each argue that collateral estoppel precluded the Commission from
“re[-]litigating” or “re[-]adjudicating” facts or issues that were resolved in the
Commission’s Decision and Order on Remand. Yet, the State acknowledges that
issues related specifically to the mine at issue in Phelps Dodge “were not in fact
re[-]litigated in the Commission’s rule[-]making” and that the purpose of rule-making
proceedings that ultimately resulted in the Commission’s adoption of the Regulations
at issue in this appeal was “entirely different” from the purpose of the Commission’s
proceedings on remand from our 	Phelps Dodge 	Opinion. We disagree with

Appellants’ invocation of the doctrine of collateral estoppel in the context of this
appeal.
{44} 	Collateral estoppel bars “the re[-]litigation of . . . facts or issues actually and
necessarily determined in [a] previous litigation” where, among other things, the same
issue was presented and finally adjudicated in a previous lawsuit between the same
parties. Rosette, Inc. v. United States Dep’t of the Interior, 2007-NMCA-136, ¶ 39,
142 N.M. 717, 169 P.3d 704. Unlike the Permit Adjudication that involved a dispute
between Phelps Dodge Tyrone, Inc. and NMED concerning a single discharge permit,
the Commission’s adoption of the Regulations at issue in this case was not an
adjudicatory proceeding. Phelps Dodge, 2006-NMCA-115, ¶ 2; see Rauscher, Pierce,
Refsnes, Inc. v. Taxation & Revenue Dep’t, 2002-NMSC-013, ¶ 42, 132 N.M. 226, 46
P.3d 687 (recognizing that rule-making and adjudication are characteristically distinct
because, among other things, rule-making affects the rights of a broad class of
individuals, whereas adjudication involves concrete disputes affecting specific
individuals). Because the at-issue rule-making proceeding was not an adjudication, the
principle of collateral estoppel has no bearing on the Commission’s decision to adopt
the Regulations.
{45} 	Setting aside the “collateral estoppel” label, it is clear that Appellants’ argument
is actually an attack on the Commission’s decision, as stated in the Order, to allow the
Phelps Dodge Tyrone mine to operate prospectively under the Regulations instead of

under the directives of the Commission’s Decision and Order on Remand. This
argument is not persuasive.
{46} 	The Commission’s Decision and Order on Remand preceded the Commission’s
rule-making activity at issue in this appeal. Before the Commission’s Decision and
Order on Remand went into effect, and while it was the subject of a pending appeal,
the Commission granted the parties in Phelps Dodge relief from the directives of the
order, including any directives applicable to determining where, within the Phelps
Dodge Tyrone mine facility then at issue, places of withdrawal were located. The
Commission’s stated purpose for relieving the parties from the directives of the
Decision and Order on Remand was, in relevant part, to allow the parties to achieve
a settlement by allowing the at-issue rule-making process to occur. According to
legislative mandate, after the Regulations were adopted, copper mine permits were to
be subject to the conditions of the Regulations. See § 74-6-5(D) (“After regulations
have been adopted . . . permits for facilities in [the copper] industry shall be subject
to conditions contained in the regulations.”). Thus, contrary to the State’s argument
that the Commission violated the WQA by permitting the Phelps Dodge Tyrone
mining site at issue in Phelps Dodge to operate subject to the Regulations, the
Commission is, in fact complying with Section 74-6-5(D). To the extent that
Appellants wish to challenge that mine’s future application for a permit under the

Regulations, they may do so in the relevant permit proceedings. See § 74-6-5(G)
(requiring a public hearing before a ruling is made on a permit application).
The Order Does Not Require Reversal
{47} 	Appellants argue that because the Commission adopted Freeport’s version of
the regulations verbatim, the Order adopting the Regulations should not be afforded
deference. Further, the State urges this Court to adopt an alternative version of the
Regulations that was submitted jointly by Appellants to which they refer as the “Joint
Proposal.” Gila argues that the Order does not support its adoption of the Regulations
because many of its 1,388 findings are contrary to law, arbitrary and capricious, and
not supported by substantial evidence. We address these arguments in turn.
{48} 	Appellants’ argument that the Order is not entitled to deference derives from
the proposition that courts and administrative agencies acting in an adjudicatory
capacity should avoid “wholesale verbatim adoption of a party’s proposed findings
[of fact] and conclusions” of law. Bernier v. Bernier ex rel. Bernier, 2013-NMCA-
074, ¶ 15 n.4, 305 P.3d 978 (“The practice of full scale verbatim adoption of extensive
requested findings of fact and requested conclusions of law of the prevailing party .
. . can cause this Court on appeal to grant less deference to [them] than is otherwise
accorded.”); Nunez v. Smith’s Mgmt. Corp., 1988-NMCA-109, ¶¶ 1, 4, 108 N.M. 186,
769 P.2d 99 (indicating that the principle applies as well to administrative agencies
acting in their adjudicatory capacity). The State does not cite any authority to show

that this principle applies to an agency’s statement of reasons in support of its adopted
regulations which are “presumed valid and will be upheld if reasonably consistent
with the statutes that they implement.” Wilcox v. N.M. Bd. of Acupuncture & Oriental
Med., 2012-NMCA-106, ¶ 7, 288 P.3d 902 (internal quotation marks and citation
omitted).
{49} 	Further, we summarily reject the State’s suggestion that this Court “should”
adopt the Joint Proposal. The authority to adopt regulations pertaining to the copper
industry was granted exclusively to the Commission by the Legislature. See § 74-6-
4(K). This Court’s authority is limited to reviewing the Regulations, and if called for,
under particular circumstances, setting aside the Commission’s actions. See § 74-6-
7(B).
{50} 	We turn now to Gila’s attack on the Order. Gila argues that a number of the
Commission’s reasons for adopting the Regulations should be set aside because they
are based on an incorrect interpretation of the WQA. To the extent that Gila’s
argument in this regard reiterates contentions that were addressed earlier in this
Opinion, we do not address them again.
{51} 	Gila attacks a portion of the Order adopting Part 20.6.7.21(B) NMAC. Part
20.6.7.21(B) NMAC governs the “[e]ngineering design requirements for new waste
rock stockpiles[,]” and it enumerates the minimum requirements that must be “met in
designing engineered structures for waste rock stockpiles at copper mine facilities

unless the applicant or permittee can demonstrate that an alternate design will provide
an equal or greater level of containment.” In relevant part, the Commission stated in
its reasons for adopting that provision that
[an NMED witness] testified that, during mining operations, water use
within the mine area would be controlled by the mine operator and that
water produced would be used for mining purposes. Consequently,
during the period of mine operation, ground water within the mine area,
including the area of a waste rock stockpile, would not be available for
domestic or agricultural use. [The witness] further testified that,
following closure, the area around and under a waste rock stockpile
could become a place of withdrawal of water for domestic or agricultural
use.
{52} 	Gila argues that the Commission relied on the foregoing witness testimony to
find that “places of withdrawal are limited to present domestic and agricultural uses
of water that occur somewhere outside the copper mine facility.” Gila does not
demonstrate where, in the record or in the Regulations, the Commission stated that
“places of withdrawal are limited to [areas] . . . outside the copper mine facility.” Nor
can such a finding or provision be reasonably inferred from the foregoing testimony.
We do not consider this unsupported argument further. See Rule 12-213(A)(4) NMRA
(requiring an appellant to provide record proper citations in support of each
argument).
{53} 	Gila also argues that the witness’s testimony supports a conclusion that the
ground water underlying a waste rock stockpile is entitled to protection because it has
a reasonably foreseeable future use. Gila’s argument in this regard does not

demonstrate a conflict. The Commission found that a new waste rock stockpile that
is designed in accordance with Part 20.6.7.21(A) and (B) NMAC will “not typically
result in ground water contamination.” Thus, although, according to the witness, the
mine will use the underlying ground water for its own purposes, the area underlying
waste rock stockpiles could be used as a place of withdrawal after the mining
operations because the requisite design of the waste rock stockpiles is expected to
preserve the ground water quality. Therefore, to the extent that Gila contends that the
ground water underlying a waste rock stockpile is entitled to protection, the
Regulations comport with Gila’s contention.
{54} 	Gila argues, further, that the Commission’s finding that an NMED witness
“testified that requiring a variance versus approving proven technologies by rule is a
distinction without a difference” was “contrary to law and not based on substantial
evidence.” In support of this argument, Gila claims that the witness was not competent
to testify regarding rule-making or variance proceedings. Contrary to the Rules of
Appellate procedure, Gila does not show whether, and if so, where in the record it
raised the issue of the competence of NMED’s witness to testify regarding a
distinction between a variance and the Regulations. See Rule 12-213(A)(4). We will
not search the record to determine whether the argument was raised before or resolved
by the Commission, and therefore this argument presents no issue for our review.

{55} 	Gila also attacks the Order on substantial evidence grounds. On appeal, the
party challenging the sufficiency of the evidence supporting an administrative
agency’s action “must set forth the substance of all evidence bearing upon the
proposition” in the light most favorable to the agency’s decision and “then
demonstrate why, on balance, the evidence fails to support the finding made.”
Martinez v. Sw. Landfills, Inc., 1993-NMCA-020, ¶¶ 8-11, 115 N.M. 181, 848 P.2d
1108; see Rule 12-213(A)(3). Instead of presenting its argument in the foregoing
manner, Gila points to the evidence in the record that contradicts the Commission’s
findings and that, in Gila’s view, supported adoption of an alternative version of the
Regulations and repeatedly asserts that “substantial evidence contradicts” various
findings of the Commission.
{56} 	Gila’s decisions to omit citations to the evidence in the record that supported
the agency’s decision and to present the evidence in the light most favorable to itself
leaves to this Court the task of digging through the voluminous record to determine
whether, “on balance, the evidence fails to support the [Commission’s] finding[s].”
Martinez, 1993-NMCA-020, ¶ 10; see McNeill v. Burlington Res. Oil & Gas Co.,
2007-NMCA-024, ¶ 16, 141 N.M. 212, 153 P.3d 46 (“The question is not whether
substantial evidence exists to support the opposite result, but rather whether such
evidence supports the result reached.” (internal quotation marks and citation omitted)),
aff’d, 2008-NMSC-022, 143 N.M. 740, 182 P.3d 121. This we will not do. Martinez,

1993-NMCA-020, ¶¶ 13, 15 (stating that “it is not the responsibility of the reviewing
court to search through the record to determine whether substantial evidence exists to
support a finding[,]” recognizing that in a whole record review this Court “should be
able to rely entirely on the appellant’s brief-in-chief in canvassing all the evidence
bearing on a finding or a decision,” and noting that “the reviewing court should [not]
have to supplement the appellant’s presentation of the evidence”). Gila’s substantial
evidence arguments do not warrant reversal.
{57} 	Gila also argues that the Commission failed to review Appellants’ Joint
Proposal or any of Appellants’ “closing submittals,” and as a result, the Commission
“made numerous erroneous findings in which it mischaracterize[d] . . . Appellants’ . . .
recommended 	[regulation] 	changes 	or 	states 	that 	they 	failed 	to 	submit 	any
recommended changes.” In support of this argument, Gila cites more than 100 of the
Commission’s allegedly erroneous findings and hundreds of pages of Appellants’
supporting documentation. Apparently Gila’s expectation is that as to each of the 100-
plus findings, this Court will ferret out the relevant portions from the hundreds of
pages 	of 	Appellants’ 	broadly 	cited 	documentation 	to 	determine 	whether 	the
Commission’s findings were erroneous. Additionally, having itself notably failed to
set out the evidence bearing upon the proposition in the light most favorable to the
agency’s decision, Gila admonishes this Court that after we review the record, we
must refrain from “supplying the reasons” supporting the Order.

{58} 	Again, we remind Gila that it is Appellants’ burden in challenging the
sufficiency of the evidence to set out all of the evidence bearing on a proposition and
to specifically attack contested findings. Martinez, 1993-NMCA-020, ¶ 9; see Rule
12-213(A)(3), (4). Even when undertaking a whole-record review, it is not the duty
of this Court to search through the record seeking the bases for reversal or to re-weigh
the evidence. See Martinez, 1993-NMCA-020, ¶¶ 12-15 (explaining that in a whole-
record review it is incumbent upon the appellant to present “all the evidence bearing
on a finding or a decision, favorable or unfavorable” to show that the evidence
supporting the decision is not substantial “when viewed in the light that the whole
record furnishes” and “it is not the responsibility of the reviewing court to search
through the record to determine whether substantial evidence exists to support a
finding” (internal quotation marks and citation omitted)); see also Regents of the Univ.
of Cal. v. N.M. Water Quality Control Comm’n, 2004-NMCA-073, ¶ 29, 136 N.M. 45,
94 P.3d 788 (stating that in reviewing an agency’s decision, this Court will not re-
weigh the evidence). Further, we need not search the record to supply support for the
findings in the Order, in the absence of a showing to the contrary, we presume that
those findings were correct. Pickett Ranch, LLC v. Curry, 2006-NMCA-082, ¶ 57, 140
N.M. 49, 139 P.3d 209 (“[C]ourts presume regularity and correctness on the part of
administrative [agencies.]”).

{59} 	Additionally, 	Gila’s 	assertion 	that 	the 	Commission 	failed 	to 	consider
Appellants’ Joint Proposal and their “closing submittals” is directly contradicted by
the record. To that end, we observe the Commission’s transcribed deliberations in
which each member of the Commission confirmed that they had reviewed each party’s
“written closing arguments and proposed statements of reason” and during which the
contents of Appellants’ Joint Proposal were reviewed and discussed.
{60} 	In sum, Appellants have not demonstrated that the Order provides any basis for
reversal. We conclude that Appellants’ attacks on the Commission’s findings as
unsupported by sufficient evidence or as being contrary to law do not warrant reversal.
CONCLUSION
{61} 	We affirm the Commission’s order adopting the Regulations.
{62} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_______________________________
MICHAEL E. VIGIL, Chief Judge
_______________________________
LINDA M. VANZI, Judge