MOUNTAIN X: WOULD YOU ISSUE A PERMIT TO THIS MINE

A Clinical Reassessment of Bald Mountain, Aroostook County Maine

February 28th, 2014

 LD 1772 A Resolution to Reject Maine’s Draft Mining Rules

Dear Co-Chairs Boyle and Welsh & Members of the Joint Standing Committee On Environment & Natural Resources:

I attach a major policy work by the eminent geophysicist Dr. David Chambers which was commissioned specifically to inform and guide the development of Maine mining policy We hope it will take you in the direction of a “best knowledge” based framework for responsible mining. Bowker Associates has managed and directed this work .

My cover transmittal explains what we were trying to convey in this work and why we went about it in this way fading the realities of Bald Mountain into the background as just an anonymous “mountain X” with a set of attributes indicating severity and source of environmental risk. We bring to the foreground the elements of this risk itself through two independent systems of risk assessment each of which is an authoritative expression of best knowledge (MEND/GARD GUIDE), best science and best available technology.

Each system produces an overall risk score intended to establish when a given mine is “No Go”,  that is,  is fatally flawed .

Yes, we did find that from a point of view of modern best knowledge and modern best available technology nothing has changed since 1990. Best policy would definitely not lead to issuance of a permit for any open pit extraction of the Bald Mountain sulfide itself and it is highly questionable whether even a small open pit focused only on the gossan above the deposit  itself is environmentally viable today any more that it was in 1997 when Black Hawk withdrew its application

This isn’t news.

I have been reporting this to all since June when I acquired  and compiled all the most relevant data  on Bald Mountain between its discovery in the late 70′s and 1997 when Black Hawk walked away.

We didn’t select and engage Dr. Chambers to just “grade my homework”

It was obvious to Dr. Chambers, who has more in depth experience at more northern cold wet climate volcanogenic massive sulfides than anyone else I’ve found, that there was no new proven technology that changed the advice SRK gave and Boliden took in 1990 ( before the 1991 mining rules were written)

I testified to that in my Oct 17th written comments to BEP.

What we really wanted to show is WHY it is the case;,to make it obvious what elements of law and regulation need to be in place to identify such risks and evaluate them in  a reliable decision framework where environmental risk and effective technology for controlling risk is the basis of granting or refusing a permit.

This work has never been about revelations on “the truth”  at Bald Mountain. It has never been a political work or intended to be used to support heated rhetoric, deeply held ideologies and preconceived positions. It has always been about trying to offer you the best possible guidance on what modern mining statutes and regulations have to look like to identify and avoid public risks of immeasurable and non recoverable loss.

We ask you to consider and use it in the spirit we offer it to understand how far off course the rules before you are. Please work through the the two independent risk screening tools we applied to Bald Mountain. Look at each criteria, look at its weight for severity of risk then see if you find anything in the rule before you that will bring the right information together to identify and evaluate the risk of catastrophic environmental loss.

We also ask you to then forget the rule before you , to forget that this environmental risk assessment is about “Bald Mountain” and all the controversy it conjures.  Consider it as “Mountain X “, a place you know nothing about . Work through the two screens and at the end ask yourself honestly would you issue a permit for “Mountain X’?.

I thank Dr. Chambers for allowing me to transmit this in a state we both consider not quite finished. It’s more a close to final working draft but it is serviceable for the purpose here and we hope you find it a constructive and informative guide to the task before you now.

With Appreciation & Gratitude For Your Willingness to Serve Us In This Challenging Deliberation

Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager

Bowker Associates

Science & Research In The Public Interest

15 Cove Meadow Rd.

Stonington, Maine 04681

Transmittal Letter:https://drive.google.com/file/d/0Bw0jCpuVRzgERDRHamMwampkdVE/edit?usp=sharing

Dr. Chamber’s Case Study On Bald Mountain: https://drive.google.com/file/d/0Bw0jCpuVRzgEZ3lPYmFibzB2RDFoWm1ZSmNGekpoc0FtQ0w4/edit?usp=sharing

 

ADDITIONAL BACKGROUND & RESOURCES

This paper on risk that can be inferred from geology is particularly helpful in understanding the preliminary assessment  portion of the Rio Tinto Risk Assessment protocol.https://drive.google.com/file/d/0Bw0jCpuVRzgEZEllbklZNjg0dlE/edit?usp=sharing  YK John Kwong ” ARD Assessment in Exploration” Mend Report 1.31.2

This paper by Dr. A.Mac G. Roberson & Shannon Shaw Explains how a mine plan is driven by the feasibility of closure http://www.infomine.com/library/publications/docs/e-book%2002%20mine%20closure.pdf.  Dr. Robertson applied this process to the work he and Linda Broughton did for Boliden in 1990 and 1992 at Bald Mountain.  Their professional analysis using this approach is borne out by both the Rio Tinto risk assessment ratings ( driven by issues with successful/viable closure) and the Chambers Go No Go technical criteria. ( where the No Go scores were related to  feasibility for a viable closure plan).  Dr. Robertson has not commented yet on our completed work but responding to my description of what Dr. Chambers & I had found, he said he was delighted to see that confirmation of this early work at Bald Mountain.

The long debate over the Pebble Mine, which would be one of the largest  copper mines in the world if allowed to be developed faces EPA challenge over  potential irreparable risk to Bristol Bay Salmon http://america.aljazeera.com/articles/2014/2/28/epa-deals-blow-toalaskacopperminepotentialboonforslamon.html This illustrates the point of the work Bowker Associates has been doing through Dr. Chambers to define where the line is between private privilege and the public interest. A partner had previously withdrawn over the salmon impacts issue.

Posted in Bald Mountain Aroostook Maine, BEP, Black Hawk Mining Co., Boliden, Bowker Associates, Bowker Associates Science & Research In The Public Interest, Center For Science in Citizen Participation, David Chambers, Environmental Risk Management, GO NO-GO Technical Framework, LD1772 126th Maine Legislature, Lindsay Newland Bowker, Maine Mining Regulations, Maine Mining Statute, massive sulfide risk management, Mining Regulation, politics of mining, volcanogenic massive sulfide | Tagged , , , , , , , , , , , , , | Leave a comment

Historic Legislative Rejection of Mining Rule Expected

It seems there is political will to reject Maine’s Mining rules but a glitch in the mining statute requires some housekeeping and most likely also suspension of the 1991 rules until the legislature has rules it can approve.

https://drive.google.com/file/d/0Bw0jCpuVRzgEQWcyTjQ3LWMxa2xGWmQwMXowS2F2d0hjU2Fj/edit?usp=sharing

It has been clear since before the mining rules were sent over to BEP for public hearings and adoption that rejection was inevitable.  Over the course of the BEP proceedings as changes one after the other took the rule from bad to worse public outrage grew. At the very end  actions orchestrated by DEP and entrapping the BEP into concurrence made a mockery of the transparency and accountability  intended by Maine’s Administrative Procedure Act (MAPA).  Substantial changes with enormous adverse environmental consequence were passed off as minor and technical without the 10 day comment period required by law.  The “basis statement”, the MAPA required reckoning between the initial rule, public comment, and the final rule , was nothing short of contempt for the legislature and contempt for the public.   There is supposed to be opportunity for  public review and  comment on the reckoning but the basis statement was not made available until 24 hours before the provisional adoption hearing n January 10th.

He is the opinion of a major Portland law firm that rules are essentially not legal by virtue of the numerous MAPA violations.

http://www.mainelegislature.org/legis/bills/getTestimonyDoc.asp?id=15294

“Adoption of these rules is a waste of time.The courts will rule them invalid”
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Bowker Associates has called for a review of these procedural irregularities by the Joint Standing Committee on State and Local Government, which has subpoena power, to make a determination as to the validity of the provisional adoption vote on Januray 10th.

The rule itself is a defiance of the public will  and of legislative intent .

(1)These rules assume that the removal of mining from site of development and other law was intended to exempt mining from the standards expressed when the statute clearly expects a restatement of these standards via the rule.
(2) These rules were written to a principle that new unproven technology should be encouraged and allowed even if there is no evidence of its ability to ever attain effective contaminant control.  The statute requires that the applicant evidence the efficacy of chosen technology in contamination control
(3)These rules will allow closure plans with indefinite reliance on manned mechanical treatment 24/7 with no hope of ever attaining a return to natural state as required by the mining statute.
These rules as written will result in the issuance of permits for mine and closure plans that have no realistic chance of ever attaining effective contaminant control risking catastrophic loss and attending unlimited unfunded public liability.
Here is Rep. Ralph Chapmans testimony a few moments ago before the Joint Standing Committee on Environment & Natural Resources.
Representative Chapman is the legislator for the district which includes the Callahan Superfund site. As a scientists himself, applied physicist, he has studied mining deeply to a point of command of best science on mining and the best policy.  In his oral presentation  Rep. Chapman specifically recognizes the value of . Dr. Chambers GO NO GO criteria developed under the direction of in collaboration with Bowker Associates.
BEP specifically refused consideration of this important policy statement before its meeting on January 3rd at which they approved these rules for submission to the attorney general.
All testimony given at the public hearing on February 24th 2014 is now up at the legislative
Here is the testimony of Susan Davies a water quality expert focused on the shortcoming of the water quality standards and the possible court challenges that will arise for choosing to deviate from federal standards.
Here is the written Testimony of Landis Hudson ( Maine Rivers) underscoring universally expressed concerns about the integrity of the proceedings and process that produced these rules and referencing Susan Davies’  critique as a water quality expert.
In her oral testimony which deviated considerably from this prepared written text, Ms. Hudson also called for responsible mining and referred to the responsible mining  “first principles” Dr. David Chambers had brought to the Committee and the public in his presentation last year during deliberation son LD1302.
Here is the testimony of NRCM who were called near to last and do not present this full text or a complete summary of it at the February 24th hearing.  He did have interesting and relevant exchange with the committee about osmosis and its role n mine closure citing SRK’s 1990 work for Boliden at Bald Mountain.  JD Irving apparently has a patented osmosis process and have tude they can produce drinkable water from any mine water wastes.  Bennett pointed out that the residue from that is still txicc waste and has to be managed and properly disposed of.  He also pointed out that the severe acidity in mine waters at Bald Mountain might be incompatible with the equipment used to extract metals ( in other words that it can only receive neutral mine waters)
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What will Happen in Committee?
It is clear that the committee does not want to visit the procedural issues which if followed could delare the provisonal vote at BEP invalid and therefore officially kill the rule at BEP for failing to meet the stutory deadline for a provisional vote. The basis for declaring the provisional adoption vote invalid would principally be that substantial changes were not given a statutorily required 10 day comment period.  If that period were given, the provisional adoption vote would have missed its MAPA deadline anyway and been officially dead anyway.  Of course they could have withdrawn all those substantive changes.
From the moment of the provisional adoption on Januar 10th, I had been urging that path with NRCM, and the environmental coalition but they seemed confident that the worst that could happen is that we would fall back to the 1991 rules if there were not a clear up or down vote in the legislature.  Section 31 of the mining rule provides that the 1991 rules stay in effect until the new rules are approved by the legislature.  They jointly retained Portland lawyer Chris Roach to advise the  Committee that section 31 took precedence over a MAPA 2011 poison pill  that provides for automatic enactment of the rules in the absence of a decisive up or down vote on the rules.
It will clearly be a divided ought not to pass ( rejection of the rules) ut of committee with Saviello and Ayotte and perhaps the two other republicans issuing a minority report..
It was clear through the course of the hearings that the majority of the committee are n no mood to consider trying to amend or fix the bill and certainly will not approve it as is.
What Will Happen In The Legislature?
Well. first, when the something other than a unanimous “ought to pass” lots of thing can happen including simply throwing out the committee report ( presumably on the assumption that f there is no consensus n the committee its up for grabs).  So this will clearly be an “up for grabs” possibility. Each body can actually even write its own version at that point .
But is the NRCM/Environmental coalition’s worst case assumption correct?  (That worst that can happen is we’ll fall back to the 1991 rules?)  I  am not so sure.
 Tom Saviello & Troy Jackson have been bringing republican legislators to U Miane to visit with Earth Sciences Professior Scott Johnson ( according to Johnsons stdents) and I belive they have garnered enough support to block a senate vote rejecting the rules.
But Troy Jackson was overheard yesterday advising a group of ladies that he would “by pass the house and run this right rough the senate”.  That is the worst that could happen.  That would mean the senate alone could vote to approve the rules.  I have sent an alert out to NRCM and the envois who went in  on the Chris Roach opinion and also written to ask the Senate President f there is any way that could happen ( by passing the house and going through the senate only).  I it is possible rules that are he worst possible could be enacted.
Is there a Way to Make Sure These Rules Are Not Enacted
Well if the provisional adoption vote on January 10th by the BEP is not valid because off the failure to give a 10 day public comment period on substantial changes, then the legislature doesn’t get into it all because the rule is dead in BEP.  I am hoping that can still happen.
So in any event lots of drama and controversy ahead.  The makings of a mini series.
Here is text of a press Release issued by Maine democrats after the hearing.  Clearly they have the political will and determination to reject these rules but they won’t be visiting some of the real legal complications until they begin deliberations at the work session scheduled for Monday, March 3rd at 10 am.

For Immediate Release

Feb. 24, 2014

Contact: Ann Kim 287-1488, c. 233-1838

Public speaks out against proposed mining rules

Weak proposed rules threaten Maine’s environment, taxpayers

AUGUSTA – Inadequate mining proposals that would put Maine’s environment and taxpayers at risk drew an outcry from concerned citizens at a public hearing Monday.

The proposal rules were the subject of a public hearing before the Environment and Natural Resources Committee. The Department of Environmental Protection drafted deficient rules last year, and they were further weakened by the Board of Environmental Protection, which gave its OK to them last month. The rules require the approval of the Legislature.

“Maine people are rightly worried that these proposed rules will not prevent water pollution or protect taxpayers from cleanup costs,” said Assistant House Majority Leader Jeff McCabe, D-Skowhegan. “So far, the folks who should listen to Maine citizens have dismissed their concerns and sided with mining advocates, putting Maine’s water and environment at risk.”

Last session, McCabe sponsored LD 1302, which would have protected Maine’s water quality from metal mining pollution. The measure addressed a rollback of protections that took place in the previous Legislature. LD 1302 won House approval but fell three votes short in the Senate.

Problems with the proposed rules include allowing highly polluting mines that would require perpetual toxic wastewater treatment, the possibility of the spread of polluted groundwater, mining in areas targeted for conservation under the Land for Maine’s Future program and the siting of mines under and next to lakes and rivers.

“We need to protect Maine’s environment, natural resource-based economy and public health. These proposed rules fail to do that,” said Rep. Joan Welsh, D-Rockport, House chair of the committee. “Maine lakes alone generate $3.5 billion in annual economic activity and support 52,000 jobs. We have too much at risk to allow mining under these feeble rules.”

Concern about open-pit mining has focused on Bald Mountain in Aroostook County, but there are significant mineral deposits in Franklin, Hancock, Oxford, Penobscot, Piscataquis and Somerset counties that could also attract the interest of the mining industry.

Maine taxpayers have been stuck with mine clean-up costs before. The Callahan Mine in Brooksville hasn’t operated since 1972, but taxpayers are still paying for the cleanup.

Protecting Maine from the risks of metallic mineral mining is a top environmental priority for 2014.The Environmental Priorities Coalition, which includes 28 environmental, conservation and public health organizations, identified strong mining rules among its key legislative issues for 2014.

###

Ann Kim | Communications Director

Maine State House Majority Office

2 State House Station

Augusta, Maine 04333-0002

Phone: 207-287-1488 | Cell: 207-233-1838

Fax: 207-287-8338

www.housedemocrats.maine.gov

March 4, 2013 Joint Standing Committee on Environment & Natural Resources did take up the additional legislative work that will be necessary to accompany a rejection of the rules.  At the very brief work session March 3rd, Assistant Attorney general Mary Sauer confirmed all that I laid out in my testimony  but seemed to avoid clarity on the removal of mining from site of Development and all other environmental law of consequence until pressed by members of the Committee who I had separately and directly briefed,  Still avoiding that , she did conform that those sections of environmental law will be changed to remove mining on June 1.

My sense was the Committee were not at all deterred from their correct and determined position on rejection of the rules and were trying to understand what else they had to do at the same time to avoid any unforeseen consequences.  My sense was there was a commitment to  removing that effective date of all parts of Pl 2011 C.653 ( the so called “mining Statute” plus all the sections of law that would have removed mining from permitting under those separate sections).

As became clear over the course of discussion that also impacts the LUPC rules and  as I emphasized in my testimony the interim technical rules on  exploration and advanced exploration that DEP adopted and has been operating under.

It seems clear that the combined effect of rejection and all else that the are wisely committed to undertake in conjunction will effectively put the mining staute itself on hold for at least another year maybe more.

I heard rumblings and some questions about my proposal for creation of an all stakeholder open transpernt expert guided revisistation from scratch.   So that may come to pass as well but in what form is not yet clear.

Assistant AG Mary Sauer deubunked the findings of the Portlannd Law frm supporting compaints and documents by Bowker Associates and many others of MAPA violations of such severity that any court would deem the rules unenforceable.  The Committee seemed glad of that reassurance ven though it is not true.  They clearly have no taste for taking that issue on as well..

Bowker Associates is urging a legal response to Mary Sauers false statement that many substantive changes on which n public comment was afforded  were indeed minor and that she agreed with BEP they did not require a 10 day comment period.  She did acknowledge that she has no technical expertise in mining whatsoever but did also choose only examples that were not at issue to create a false impression that the significance of the substantial changes had been greatly exaggerated.    That these changes are substantial and germane to the  accountability of the rue to statutory mandates is a fact not opinion.  There is no gray area.  These were egregious and outrageous attempts to make major  and controversial changes outside of public scrutiny.  Even though it is clear they wont get away with it as the rules will be rejected, I still think it is important to have a legal finding of fact on these elements to make the point that DEP/BEP should have no control whatsoever on development of the replacement rules.

March 7, 2014 ENR REJECTS MINING RULES AND DEFERS IMPLEMENTATION OF THE MINING STATUTE FOR TWO YEARS

Yesterday afternoon in  vote along party lines and a determined avoidance of even attempting  a discussion of reasons beyond those given in the party statement ( above), the Joint Standing Committee on Energy and Natural Resources  rejected the mining rules.  They also struggled through and ultimately took the necessary action of  deferring implementation of the statute itself for two years .  They left the 1991 rules in place ( by default  under Section 31 which provides that the old rules remain in effect until the new rules are approved) but allowed DEP the opportunity to keep their interim technical rules on exploration and advanced exploration assuming that they need no direction on the changes that will be necessary to reconcile those with the absence of authority under the now deferred statute.  They also recognized that the LUPC mining related changes ( expressed in LD1771) were intended to work in tandem and so also rejected the LUPC  rule changes directed by statute and expressed in LD1771..

It appears now that on the terms expressed in the redrafted  LD1772, the votes are there in the Senate to approve the rejection and to defer implementation of the statute.  Tom Saviello voted against the Committee amendment but indicated on the floor vote he would most likely support it. ( meaning I guess the Republican caucus hasn’t really come to terms with a response)

For one brief shining moment there it seemed there was hope of something very very strong afoot that would say and do more than reject in accordance with the official party position.

There was recognition that the ENR did not have the expertise and BEP/DEP did not have the expertise to write or evaluate the rules.  Briefly there was hope that the ENR would make that a part of their finding and insist that real expertise be brought into the rewrite.

There was briefly a recognition that just sending these back into the same environment that produced them would accomplish nothing.  There was talk of creating a stakeholder process with a budget to retain experts.

There was briefly a recognition that falling back to the 1991 rules and simply leaving all the environmental law in place (from which the mining statute removed mining) was not a good idea.  Several were pointing ina  direction that would have lead to suspending those rules as well.

That all fell apart .  The rejection was presumed ( by virtue of the Democratic Party press release) so nothing was discussed beyond that except  what other housekeeping was needed to accomplish that without “unintended consequences”

Best line of the hearing in a discussion of undo political influence and control by JD Irving I believe it was Ayotte who said indignantly  when the discussion was a general one and not pouting to any Committee member “I sent every check back” ( I listened via live audio stream so it was not always clear who the speaker was)

Most interesting event uring the hearings/work sessions was the off mic threat to the Committee by Doyl ( of Pierce Atwood) and Jim Mitchell ( to whom Irving paid nearly $1 million in lobbying fees on the mining issue) to sue the Committee if the rules were rejected because they asserted the rules are in complete compliance with statute.  On mic right after that the composed, civil and clear Senator Saviello briefly  became agitated and threatened a “blood bath” which the other members simply side stepped.

No question our mining statute is the worst ever written but in its sfforts with it somehow the ENT then seated did build in a few clear guideposts and mandates that these rules blatantly violated.  I am disappointed that our Committee did not speak for these mandates in directing the redrafting of the rules.  I am disappoi nted that they fell back from a user controlled expert guided rewirte and just tossed it back into the same process which Heather Parent correctly said would produce the same result.  As she put it “What new is there to say.  We already heard all that,  We already took that into account.  We already reflected that in this rule.  What would change having a stakeholder process?” ( approximate quote)

But maybe what ENR is hoping is that the two year delay in implementation itself will bring a 100% fresh start.  All new DEP.  All new Executive Leadership.  All new Committee.

Posted in Bald Mountain Aroostook Maine, bannaism of maine, BEP, Black Hawk Mining Co., block caving, Boliden, Bowker Associates, Bowker Associates Science & Research In The Public Interest, Callahan Mine Superfund Site, Center For Science in Citizen Participation, Charles Roy Fitzgerald, David Chambers, electrowinning, Environmental Risk Management, GO NO-GO Technical Framework, History of Mining In Maine, in situ leaching, in situ leaching prohibition, ITRC, JD Irving, LD1772 126th Maine Legislature, Lindsay Newland Bowker, LUPC, Maine Mining Regulations, maine mining rule rejection, Maine Mining Statute, massive sulfide risk management, Metallic Mining, Mining Regulation, Perpetual Treatment Policy, politics of mining, Ralph Chapman, Science for Sale, Troy Jackson | Tagged | Leave a comment

LD1750 Propriety Jurisdiction and Free For All On Administrative Procedure

 A state’s clear unassailable APA is its hallmark of transparency and integrity.

If government is to operate with both efficiency and justice, it is essential to the protection of individual and public rights that procedural safeguards be built into the administrative process. An ill-conceived regulation, a hasty administrative decision, or a hearing conducted unfairly is far more likely to affect our daily lives than most court rulings.

The rights to drive, to hunt or fish, to practice a profession or trade, to be assured of proper regulation of public facilities-literally thousands of activities interwoven with the fabric of society to the extent that much of our life is spent in their pursuit-are subjected to daily administrative scrutiny and control.”http://mainelaw.maine.edu/academics/maine-law-review/pdf/vol18_2/vol18_me_l_rev_218.pdf

THE QUEST FOR JUSTICE IN MAINE ADMINISTRATIVE PROCEDURE: THE ADMINISTRATIVE CODE IN APPLICATION AND THEORYProfessor Julius Stone of the University of Sydney ( Maine Law Review)

LD 1750 is an assault on our already imperfect Administrative procedure Act and sets a very troubling precedent that all advocates should  stand up to  and push back against.

Downeast Lakes Bowers Mountain Wind Impact

Photo courtesy of Paula Moore.  Downeast Lakes Bowers Mountain Wind Farm Impact Area.

The towers would be at the far right and cast a reflection on the lake all along the shore according to Downeast Lakes advocates..

Downeast Lakes Photo Gallery:http://www.ppdlw.org/gallery.htm

Both Sierra Club and Maine Audubon have actively supported First Wind in their efforts to reverse DEP’s denial.  Here is Sierra Club’s national policy on wind which is binding on local chapters http://www.sierraclub.org/policy/conservation/wind_siting.aspx. Here is Audubon’s http://policy.audubon.org/wind-power-overview-0.  In their policy statement on wind Audubon states that they were instrumental in developing siting guidelines for the wind industry.  In Maine. the President of Audubon submitted written testimony in support of First Winds appeal of the Bowers Mountain denial.  Here is the Natural Resources Defense Council Policy on Wind Energy  http://www.nrdc.org/energy/renewables/wind.asp. It does not appear that the Natural Resources Council of Maine testified in the matter of the First Wind Appeal of  DEP’s denial of the Bald Mountain in Farm application.

 

Statement to the Joint Standing Committee on Energy Utilities & Technology

February 18, 2014

LD 1750 An Act To Amend the Maine Administrative Procedure Act and Clarify Wind Energy Laws

My  first concern is propriety especially with this bill advanced as an “emergency bill”.  The text and issues of this bill are drawn specifically and directly from the First Wind Appeal of the DEP’s Bowers Mountain decision.  That adjudicatory proceeding is still active before the BEP.  For that reason alone this bill should be withdrawn. The Bowers Mountain project has been twice denied. The facts and circumstances of the most recent denial are well known and have been well publicized. It was a very close call as James Palmer, DEP’s own expert noted.

“James Palmer the DEP expert testified that while it was within the law it was right at the edge of constituting a significant adverse impact” https://bangordailynews.com/2013/09/04/news/penobscot/first-wind-appeals-department-of-environmental-protections-rejection-of-bowers-mountain-project/

This was really a too close to call kind of case not a matter of DEP wandering beyond or defying legislative intent as DEP’s expert further explained:

In addition, while the project area is designated as part of the expedited permitting area for wind energy projects, the great ponds are primarily located in the only area in southern and eastern Maine that is not designated as a wind expedited area, which is the Downeast Lakes Region,” ( op cit.)

DEP exercised reasonable discretion fully in line with legislative intent.  There were and are issues with the  clarity of protection  intended  for the Downeast Lakes in their exclusion from the “expedited permitting” area.  What the Bowers case tells us more than anything is not that MAPA isn’t working well  or has gaps and deficiencies that impede the intended working of the  “wind statute” but that DEP,LUPC and perhaps this Committee, in conjunction with, and with guidance from,  the stakeholders and advocates for the Downeast Lakes need to revisit the adequacy of protections now in place .

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My second concern is of jurisdiction.  Administrative Procedures are under the jurisdiction of the Joint Standing Committee on State & Local Government, not this committee.  Any clarifications of the wind power statutes are clearly within the jurisdiction of The Joint Standing Committee on Energy Utilities &Technology  but these should be  addressed via statutory  amendment to the “wind  statute”  and not the Administrative Procedure Act (MAPA).

I think it sets a very bad precedent for each Committee of jurisdiction to be making MAPA changes as a way of clarifying legislative intent even if the changes are specific to an area of law and a set of statutes under that Committee’s jurisdiction.

On the basis of these two principles alone LD1750 should be withdrawn , tabled or referred to the JSC State & Local Government.  No  legislative action by either committee, however, is appropriate while the Bowers Mountain appeal is still pending before the BEP.

LD1750 though does address and bring up many issues of substance and significance in Administrative Procedure and in some cases does point to gaps that could and should apply across the board.  Focusing on these issues of significant public policy on Administrative Procedure, and contemplating the possibility of consideration by the JSC State & Local Government at some time in the future, my comments  address:

(1) whether the changes suggested in LD1750 that are proposed across the board  changes would strengthen and improve MAPA and  therefore merit further consideration by the   JSC of jurisdiction.

(2) whether the changes superseding  MAPA in  the “wind statute” are justifiable and appropriate Is there actually a limitation in MAPA that frustrates intended implementation of the “wind statute”  that can only be addressed by setting a different procedural standard in statute?

(3) whether changes suggested in LD1750 in the context only of adjudicatory proceeding s are standards which should apply  more broadly in administrative procedure law.

In particular I encourage  the JSC State & Local Government to consider and expand upon holding agencies accountable to seeking best knowledge and best guidance. The same with the principle that an agency must make account of any decision contrary to that of a qualified expert whether procured by the agency, offered  directly by the expert or retained by  a stakeholder.  I encourage this Committee to consider building this mandate into future legislation.

WHY NO COMMITTEE OTHER THAN THE COMMITTEE OF JURISDICTION SHOULD MAKE MAPA CHANGES

 

All  of  Title 5, Chapter 975, ( MAPA)  expresses what duty the agency owes  with respect to transparency, clarity, consistency and integrity of conduct and decision making.  In public policy in most states and at the Federal level Administrative Procedure Law is a uniform set of performance standards and   universally   there is only one entity with jurisdiction.

In general a statute should address or supersede MAPA only where there are unique conditions which are clearly not anticipated by or addressed in MAPA.  For example Section 31 of the mining statute (P.L..2011 C653) provides that until the legislature actually approves the new  mining rules, the old rules remain in effect while MAPA  provides that an agency may proceed with a final adoption of rules  if the legislature does not take definite yes or no action.

Any statutory provisions that supersede or override MAPA should  in general set a standard not in conflict with MAPA and not at a lower standard than MAPA.  In other words, a statute should not be written with its own version of Administrative Procedures . That would confound and effectively disenfranchise the public interest.

 

All provisions on Administrative procedure in statute should have the specific approval and concurrence of the JSC State & Local Government.  That is an amendment I would like to see made explicit in our MAPA.

ARE THERE ATTRIBUTES OF THE “WIND STATUTE” THAT  ARE UNIQUE AND NOT SPECIFICALLY ANTICIPATED BY MAPA?

 

The expedited permitting provisions of the wind statute may  place it outside the “norm” contemplated in MAPA.  It is basically very close  to “permit by rule” for a scale of impact that  can be as large as  projects falling under site of development law, depending on the number of towers and the extent of clearing and infrastructure needed to erect and maintain the towers. In that context the specificity of the rule and all the documentation required to support an agency  decision may indeed  rise to a much higher standard  than may be contemplated in MAPA.

However The “wind  statute”  has been in effect since 2003 and there have been no indications  of any sort, especially in the Bowers Mountain , that MAPA has been an impediment to implementation of the wind statute in accordance with legislative intent,

That case should have to be  made to the committee of jurisdiction to justify any revisions in wind statute that address administrative procedure.

 

HOW SHOULD STATUTORY SPECIFIC ADMINISTRATIVE PROCEDURES BE RECONCILED WITH MAPA?

 

Any changes made in statute which supersede or replace MAPA provisions must still meet the fundamental principles of MAPA.  L D1750 is in specific conflict with MAPA in proposing to afford all “application instructions” the weight of judicial enforcement.  The language in MAPA specifically excluding “application instructions” was only enacted in 2011 and so presumably represents the current and binding view of the Committee of Jurisdiction.

“B. The term( “rule”) does not include:

(1) Policies or memoranda concerning only the internal management of an agency or the State Government and not judicially enforceable;

(2) Advisory rulings issued under subchapter 3;

(3) Decisions issued in adjudicatory proceedings; or

(4) Any form, instruction or explanatory statement of policy that in itself is not judicially enforceable, and that is intended solely as advice to assist persons in determining, exercising or complying with their legal rights, duties or privileges. [2011, c. 304, Pt. G, §1 (AMD).]

 

Therefore it would clearly seem  not appropriate for this committee to write that into wind statute without making a clear and acceptable case to the Committee of Jurisdiction  and having the concurrence of that committee.

(MAPA could probably use a clarification that all forms instructions and explanations should be consistent with statute and I hope the Committee of Jurisdiction will consider that as part of MAPA reforms and updates.)

“The weight given” in evidence provisions suggested in LD1750 clearly do not belong in the definition of “rule” as “evidence” is only relevant in adjudicatory proceedings.

However,   it is a fundamental “good government “  principle that the implementing agency’s  reasoning  and assimilation of factors in decision making should be fully and clearly transparent and consistent.  MAPA does not have that standard clearly expressed.  It is too easy to lose accountability and clarity in a  “basis statement”.  This clarity on the relative weight  given  to different factors and elements should be clear in any rule as a matter of good government and full transparency.

Rulemaking licensing permitting and adjudicatory proceedings should never be a “black box” So I hope this is a consideration the Committee of jurisdiction may take up in considering future reforms to MAPA.

EXPRESS OBLIGATION OF AGENCY TO  SEEK BEST KNOWLEDGE: ACCOUNTABILITY TO QUALIFIED EXPERT OPINION

 

It is presumed but not explicitly stated in MAPA that an agency charged with interpreting and applying law, especially in  permitting or licensing functions, will seek to posses “best knowledge” in all areas of its statutory mandate and will seek “best knowledge “ , especially in rulemaking.  This is a principle that should be explicit in MAPA and explicit in every single statute.

An agency should have to make a clear written explanation whenever its rulemaking, licensing or permit decision is at variance with the opinion of a “qualified expert” whether that expert is retained by the agency or a stakeholder or simply submitted by the expert  to the agency.  This is a principle that should be part of MAPA and explicit in every single statute. ( and of course we should be clear on what a “qualified expert” is and clear on the situations in which agency variance is justified)

SUMMARY

To restate, LD1750 should be set aside for the sake of propriety until Bowers Mountain  is decided by the BEP.  It is unseemly given the exact and specific connection between First Winds appeal and the language in LD1750  to consider this language in any form until Bowers Mountain is decided.

Jurisdictionally only the Joint Standing committee on State & Local Government can make any changes to MAPA itself.  If the JSC Environment,  Utilities & Technology has identified specific areas where MAPA has impeded the intended implementation of Wind Energy Law it should identify these areas to the Committee of jurisdiction and seek relief either in MAPA or through the wind statute itself.

LD1750 raises many issues of jurisdiction and policy that merit further consideration both in setting guidelines for when and how a statute may include procedures that are different from or not included  in MAPA.  In general the case should be made that MAPA is unable to accommodate intended implementation of the statute and even then the allowed procedural language in statute should be narrowly focused .

Respectfully Submitted With Appreciation For Your Consideration of these Comments

Lindsay Newland Bowker, CPCU,ARM,  Environmental Risk Manager

Bowker Associates Science & Research In The Public Interest

15 Cove Meadow Rd

Stonington, Maine 04681

207 367 5145  lindsaynewlandbowker@gmail.com

Posted in Adjacency Impacts, BEP, Bowers Mountain, Bowker Associates, Bowker Associates Science & Research In The Public Interest, carbon emmissions, Downeast Lakes, Environmental Risk Management, Expedited Permitting, First Wind, Forest Ecology Network, Highly Valued Natural Resources, James Palmer, Lindsay Newland Bowker, LUPC, Maine Audubon, Restore North Woods, Scenic Impacts, Sierra Club, Uncategorized, Wind policy | Tagged , , , , , , , , , , , | Leave a comment

GIant Cups of Poison: The Politics of Mining & Mining Science For Sale

Dr. Robert Moran, has been out front in calling attention to the existence of a body of “fake science” that is creeping its way into public policy, mostly in the form of mathematical models purporting to predict the behavior of complex natural systems. I like using entire email threads on a topic like this especially when the voice is one of unquestioned authority as Dr. Moran is. This form of presentation preserves the voice, original words and thought of the speaker. Also I think a quote from a conversation doesn’t convey as much as the conversation itself.

Giant Cups Of Poison is the title of Chapter 7 of the Pilkey’s book on this topic “Useless Arithmetic” which Dr. Moran reviewed.

I think this is a very significant public policy issue in metallic mining especially where nearly al state laws and rules are vulnerable to this kind of invasion where science for sale masks the actual risks of an undertaking for which a permit is sought

This chain of correspondence began with Dr. Moran expressing his reservations about a specific mining company y developed mining risk assessment tool.

Email January 10, 2014

Dear Lindsay—I suspect we are “on the same page”, but , I focus  mostly on how water-related predictions have been used to mislead the public. …

Part of the reason I am so outspoken on this issue is that civil society is MUCH more effective when they force companies to make public actual data–not predictions. Generally companies (and governments) would prefer to release models rather than the original data. It is the data (or the lack of) which you can attack most readily.
   cheers—Bob Moran

PS:Below is a 2007 article from The Guardian (of London), which was written by a friend, Robert Goodland, who died unexpectedly a few weeks ago. He started the Environmental Dept. at the World Bank in the 1970s, and was their main in-house environmental adviser for 23 years. This article presents, very simply, his real-world experiences in this arena.

Comment

How to aid destruction

My former employers, the World Bank, are damaging the planet and punishing the poor
  •         Robert Goodland
  • The Guardian,        Monday 22 October 2007

    I worked as environmental adviser for the World Bank Group,  headquartered in Washington, for 23 years. I joined because I believed  the bank wanted to improve the lot of the poor and conserve the  environment. Before going to Washington I did an environmental study for the government of Tucurui, the first big dam in Amazonia. A vast part  of the forest was flooded, so I saw at first hand the huge environmental and social cost of misguided development projects.The bank knew how  impassioned I was but hired me none the less. I thought I would work  with colleagues to prevent blunders in the future. Indeed, we achieved a lot. Perhaps our greatest feat was having the bank adopt a suite of  social and environmental policies to be applied to all projects.The bank also adopted policies for reducing poverty directly, instead of  relying on “trickle-down” economics. In 2000 I was thrilled when James  Wolfensohn, then president of the bank, led it to pursue the UN’s  Millennium Development Goals. Assessing risks and impacts, we failed to  stop the bank funding ExxonMobil’s oil pipeline in Chad and Cameroon,  but managed to prevent it supporting China’s Three Gorges dam.

Progress faltered in the late 90s. Most social and environmental policies were  gutted, and those that remain are no longer being rigorously followed.  During the Wolfowitz presidency, policy work on the two key challenges  of population and climate change was crippled. While governments around  the world are regulating carbon dioxide as a pollutant, the bank is not  yet doing anything like this. The bank has encouraged India to resume  investing in coal and nuclear energy. Social and environmental policies  have been handed over to developing countries to implement – or not, as  the case may be. The bank’s private sector affiliate, the International  Finance Corporation (IFC), is backing oil palm plantations in Indonesia  and cutting protective mangrove forests. Among the worst is financing  for monoculture soya plantations in Amazonia, even though soya is  suicide for Brazil’s rich agricultural lands.

The Bank Group is  stimulating hundreds of millions of dollars’ worth of cattle ranching in Amazonia, an activity I campaigned against strongly. These ranching  investments violate applicable standards for both deforestation and  slavery. Bank Group policies mandate that the companies it finances are  responsible for compliance, yet in this case, the IFC is abetting  Brazil’s biggest beef exporting company’s noncompliance by bringing in  donated funds to pay for some compliance in the future. Since such  efforts historically have had no previous success, the bank’s  independent evaluation group has stated that the IFC’s efforts pose “a  grave risk to the environment and to the bank’s reputation”.

A  quarter of the Amazon forest has already been destroyed, aided and  encouraged by the bank. Amazonia suffered its most devastating drought  yet in 2005. The 2007 drought and fire seasons look like being even more shattering. This loss of forest is intensifying climate change, and  there are reports of impending reductions in rainfall and farm yields in the rest of Brazil. While Brazil is possibly crossing the threshold  into free fall, plans are being drawn for massive dam, cattle ranching  and highway projects.

Robert Zoellick, the new president of the  bank and IFC, has not yet changed course for the better. On the  contrary, at last weekend’s annual meetings of the world’s finance  ministers, he urged the private sector arm of the Bank – IFC – to lead  in setting priorities for the Bank Group. Ahead of the meetings, he  pushed through an initiative to have net income from IFC transferred to  fund the majority of Bank operations for the poorest tier of developing  countries, meaning private interest in those operations will now  supplant public interest.

Zoellick’s focus is on globalisation,  helping multinationals extract oil, gas and other resources from  developing countries. This hugely helps industrial nations, but does  nothing for the world’s poorest, who should be the paramount focus of  the bank. Fostering climate change through deforestation, cattle  ranching and fossil fuels are all anti-poor priorities that the Bank  must halt.

In recent years, many stakeholders have expressed doubt that it is possible for the World Bank and IFC to serve public interest as they should. I believe they can, but only if the world’s governments  – the shareholders of the World Bank – demand accountability,  transparency and consensual development. Citizens of every country  should demand that their governments take responsibility for the Bank to end its procrastination on climate change, before it is too late. rbtgoodland@aol.com

Robert E Moran, PhD Michael-Moran Assoc. LLC Golden, Colorado  USA +1 303.526.1405 remwater@gmail.com
Lindsay Newland Bowker <lindsaynewlandbowker@gmail.com>
Jan 10 (2 days ago)

Dr. Moran,
Thanks you so much for this paper.  I hope it has been published and is in general circulation.

https://drive.google.com/file/d/0Bw0jCpuVRzgEZVFfYzNHVnlzUTkwNzhubzRGUWJqY2x3Um9B/edit?usp=sharing

I have seen and have been advocating from many of the principle works you cite (in particular Lapakko’s & Price’s emphasis on long term testing to assess ARD), the importance of complete independence & integrity of all science used to make public decisions on mining, the caliber of expertise employed, and the principle of responding to uncertainty with an abundance of caution (with the most conservative assumptions).  These have all been the main parts of my “sell” here in Maine but here, “no sale” due to what I call the “bananaism of Maine”.
Your paper is a very powerful summing up of all these critical core issues of science integrity & reliability on which public decisions on mining are based.  Presenting this summation in application to a real world situation of government review and approval of a particular mine gives it added thrust that brings the message home with your characteristic clarity.  I too feel an urgency about this message and my testimony and statements also reflect that in the increasing use  of bold letters, red letters, italic letters and words and observations not customarily associated with writing on science.
Part II of what we are trying to do in  our GO/NO GO project with Dr. Chambers is aimed exactly at this cluster of critical issues in the science of authorizing mine activity.  We actually did have some excellent early work by Mac Robertson and others going back to after the deposit was first discovered that tells exactly the story you are telling about this mine in Guatemala. Fortunately that long term testing well past the customary 20 weeks was done.( I think I may have sent you some of that and my analysis of it).  Bald Mountain has no neutralization potential , sulphur over 20% throughout the deposit itself and its footwall  and  all of the NP:AP ratios in the sulfide itself are below 1. It has extremely high levels of arsenic.  The public data record was not complete ( some $30 million was spent over 20 years) but the quality  and relevance of what we do have will enable us ( Like your paper here on Guatemala) to bring these central issues to light before Maine’s mining law and policy is cast in stone.
 Your paper will help us enormously and by bcc of this letter I am sharing it with Maine’s most important environmental advocates and our key legislators and agency policy makers.
Best to you & In gratitude
Lindsay
On Thu, Jan 9, 2014 at 6:25 PM, Robert Moran <remwater@gmail.com> wrote:

Dear Lindsay—Thanks for the kind words. I do not recall if I previously sent you a copy of the attached report. I send it because I encourage you to review the details of the sulfide-oxidation tests (LONG-TERM) conducted by Kim Lapakko (see refs.), which show how foolish most short-term test results are. It is such short-term results that are usually incorporated into most geochemical predictions of ARD generation.
In addition, you probably know that the Zortman-Landusky Mines in Montana, with which Dave Chambers has been involved, developed severe ARD problems despite having an average / median waste rock sulfide concentration of less than 0.2 % total sulfur—in contrast to all the consultant’s predictions. I managed the water quality and geochemical portions of the Zortman-Landusky EIS field activities and report writing (for the U.S.BLM), and was the center of most of the criticism when we (Woodward-Clyde) refused to pretend to use geochemical models to make quantitative predictions of future constituent concentrations. Nevertheless, the company and BLM ultimately accepted the wording of our document (I don’t recall if it was officially a Draft EIS), and you might find the original wording quite useful. Not long after we released this document the company declared bankruptcy, leaving the State of Montana with the long-term treatment and remediation costs. Dave probably has access to the original document. I also have one–somewhere in my files, but I don’t have an electronic copy.
   cheers—Bob Moran
Robert E Moran, PhD Michael-Moran Assoc. LLC Golden, Colorado  USA +1 303.526.1405 remwater@gmail.com
Seal, Robert
Jan 10 (2 days ago)

to me
Lindsay,

Thanks for keeping me bcc’ed on these discussion threads. They are very interesting and highlight the challenges of gaining comfort with the fate of a proposed mine site. As a risk assessor , I am sure that you are more familiar than most with the uncertainty in all risk assessment.
In Kirk Nordstrom’s defense, when he gives presentations on “models”, one of his first slides is a quote that says “All models are wrong, but some are useful” (from George Box, a statistician). The idea is that all “models” are simplifications of nature and merely represent working hypotheses destined to be tested and further refined. If you meet anyone who believes otherwise, you should run the other way. I am sure that Kirk would agree.
Bob
Bibliography

Moran, Robert E., 2000, Is This Number To Your Liking? Water Quality Predictions in Mining Impact Studies, p. 185-198, in Prediction: Science, Decision Making and the Future of Nature. D. Sarewitz, R. Pielke, Jr., and R. Byerly, Jr., eds., Island Press, Washington, D.C., 405 pg.

http://www.unc.edu/~mwdoyle/riverretreat2009/Moran_2000.pdf

Moran, Robert E., 2005 (February), New Country, Same Story: Review of the Glamis Gold Marlin Project EIA, Guatemala [Nuevo País, la Misma Historia:

Revisión del EIA del Proyecto Glamis Gold Marlin,Guatemala] : Prepared for Colectivo Madre Selva, Guatemala City, Guatemala. Available at:

http://www.madreselva.com.gt/documento_de_robert_moran.pdf

http://www.miningwatch.ca/index.php?/Glamis_Gold/Moran_Glamis_en

http://www.miningwatch.ca/index.php?/Glamis_Gold/Moran_Glamis_sp

http://www.theminingnews.org/pubs/Moran_Marlin_rpt_Feb_2005Eng.pdf

http://www.guatemalanetz.ch/dokumente/minen/2004-02-moran_marlin_rpt_sp.pdf

http://www.saviaguate.org/documentos.html

Moran, Robert E., 2005, CAO Marlin Mine Assessment: Technical Responses. Available at: http://www.miningwatch.ca/sites/www.miningwatch.ca/files/Marlin_CAO_Respuesta.pdf

http://www.miningwatch.ca/updir/Marlin_CAO_Response.pdf

http://www.madreselva.com.gt/Guat%20Marlin%20CAO%20Response.pdf and http://www.madreselva.com.gt/Guat%20Marlin%20CAO%20Respuesta%20Rept.%209-28-05%20FINALTradMFCcorJC.pdf

http://www.bicusa.org/bicusa/issues/Guat%20Marlin%20CAO%20Response%20Rept.%209-28-05%20FINAL.pdf

http://www.cao-ombudsman.org/html-english/documents/MadreSelvaResponseCAOAssessmentReportEnglishwithtechnicalReviewAnnexEnglish_000.pdf

http://www.saviaguate.org/documentos.html

Continuing this round table, Houston Kempton forwarded the attached exacellent example of this fake scienece at work in the presentation of the North Met in Minnesota.

Posted in Bowker Associates Science & Research In The Public Interest, Center For Science in Citizen Participation, David Chambers, Environmental Risk Management, Houston Kempton, John Seal USGS, Lindsay Newland Bowker, massive sulfide risk management, Perpetual Treatment Policy, politics of mining, Robert Moran, Robert Seal, Robert Seal USGS, Science for Sale, Uncategorized, volcanogenic massive sulfide | Tagged , , , , , , , , | Leave a comment

A NEW STATUTORY & REGULATORY FRAMEWORK FOR RESPONSIBLE SULFIDE MINING: SHOULD THIS MINE BE BUILT?

In a work commissioned to guide Maine’s mining policy Dr. David Chambers, a recognized leader in building international  policy for responsible mining, has pointed to a fatal flaw in  the fabric of sulfide mining oversight in the U.S.: no one has specific statutory authority to ask and answer the question “should this mine be built”

As geophysicist Chambers puts it so insightfully  from 35 years of work at sulfide mines all over the U.S.:

“In many regulatory jurisdictions in the US today there could still be a risk of a catastrophic event if conservative design or operating procedures are not followed, or if a natural disaster, for example a flood or earthquake, or another ‘act of God’ might occur. Regulatory agencies themselves have a limited range of authorities, and are often restricted from requiring any action of a permittee that is not explicitly authorized in statute or regulation. Another limitation of the regulatory system is that there is no entity that has either the responsibility or authority to address the question of “should this mine be built” in the overall context of the economic, social, and environmental benefits and impacts of the mine. Instead, the surrogates for this debate take place at various regulatory hearings, in the editorial columns of local and regional newspapers, at corporate annual shareholder meetings, on websites, and most relevant of all in the courts, where the issues argued are often endangered species, water and air quality, or the adequacy of an environmental impact statement – when the real issue is “should this mine be built.”

Go/No-Go criteria might be viewed as an intermediate step in addressing the fundamental issue of should this mine be built”.The Go/No-Go criteria evaluation process{ employed as corporate policy by Rio Tinto} is comparing potential economic benefits against potential impacts. This is in contrast to the regulatory approach, which is that a permittee must show that they meet criteria (a), (b), (c), (d), etc. If they can show the regulator that they meet these criteria, then the regulator must issue a permit. The Go/No-Go criteria process {housed in public policy would drive} to a yes/no resolution to the mine proposal.”

This important new policy work, commissioned by Maine North Woods advocate Charles Fitzgerald  of Atkinson Maine and directed by Bowker Associates  Science & Research In The Public Interest ( Stonington Maine) asked Dr Chambers to speak in his own voice, from his own experience and insight to considering a technical, scientific , best practices founded “Go/NO-GO” policy framework aimed at performance criteria for  key mine development elements where  poor pre planning and engineering are known to have resulted in  catastrophic environmental loss.  Rio Tinto is already using this approach to guide all investment decisions:

They were encouraged to do so by their investors and underwriters who recognized that environmental compliance is a significant cost that must be factored into all development decisions..   What Dr. Chambers has offered for our consideration is a “public  policy” version of that  aimed at insuring that permits are not issued for any mine and development plans that cannot attain effective prevention and control of contaminants.

While at this stage of development the paper is more a starting place for discussion on how to build this approach into law and policy,  it seems to offer a much more rational, strategically effective and efficient  approach to natural resource protection in sulfide mining policy with a more predictable path for both regulators and developers.
An important modern case in point  is the  Polymet’s Northmet project in Minnesota where due to fatal flaws in the structure of their mining statute & regulations, they will be forced, politically, to issue a permit even though the Northmet will unavoidably require active treatment into pepetuity, contrary to Minnosotas stated permitting criteria.  So much money has been spent analyzing the Polymet that even though the final answer was “This mine should not be built” it most likely will be.  Policy gaps create a political squeeze.
This new Truth In Mining report  explains the dilemma of  both having and enforcing the correct perpetual policy..no active treatment after clsoure….. without a foundation of technical/scientific/best practices “NO-GO” permitting standards.  The Polymet  shows  us that the right perpetual treatment policy alone does not drive soon enough or with enough precision to preventing the permitting of mines that cannot effectively control contamination without  costly reliance on active treatment systems into perpetuity.
This important new paper by Dr. Chamber’s on “Go/No- Go” Policy  is  possibly the answer to the Polymet/Northmet  dilemma.
At its heart what Rio Tintos Environmental Risk Assessment says, and what Dr. Chambers new  paper is  basically saying,  is that what is allowed and what is actually done from the very beginning  is what determines whether a mine closure with no active treatment is possible.  If we permit on the basis of these technical/scientifically based “GO/NO- GO” criteria all mines issued permits wil be able to attain a naturally self sustaining closure not relying on active treatment.( more on that soon but options include targeting smaller parts of a deposit with a higher grade and a smaller over all foot print and  removing all ore for off site processing .  Both were done at the  much touted Flambeau which overall had a much much lower risk profile than our Bald Mountain.
In other words, closure is more than what you do with the stuff you have left over at the end of mining when the deposit is exhausted or market prices don’t warrant a continuance.  It is about , as Dr. Chambers said “should this mine be built”.
We know, and there is no debate,  that a very high percentage of sulfide mines cannot and should not be built. They are beyond  any known combination of  technology & engineering for effective contaminant control. What Dr. Chambers new work points to is a clearer way of separating the wheat  from the chaff..of not issuing permits to mines that are beyod any known combination of technology and engineering.
This is a major and critically important advance over the poison pill, catch 22 of the Wiscosin “Prove It” statute.
In support of environmental advocacy for repsonble mining I will be bulding a resource directory at wordpress on peprpetual treatment policy and on other foundations from which we can all further explore this major course correction in oversight of sulfide mining Dr. Chambers new work is poiningt to.
Would welcome your thoughts comments and shares of other work  that lays important foundations for sulfide mining
Lindsay Newland Bowker, Environmental Risk Manager, CPCU ARM
Director, Bowker Associates, Science & Research In The Public Interest
lindsaynewlandbowker@gmail.com
Stonington Maine January 5, 2014
January 24, 2014  This excellent Minn Post article on the Northmet, the squeeze between science and politics,  highights the elephant in the room on responsible mining.  Companies lie and get away with it.http://www.minnpost.com/author/ca-arneson.  Kim Lapakko is one of the finest mining scientists in the world but on this he is not free to speak as the scientists he is, perhaps.  On official business perhaps he has to speak as an “employee”.  That troubles me as a risk manager.  That even with one of the finest mining experts on staff, someone all look to and respect, politicis does not allow Dr. Lapakkos expertise to enter decision making on the Northmet. Politics will allow a globally resected expert on the state’s own team to be second guessed by a mining company and mining interests.
February 2, 2014  Here is another excellent article on the “squeeze” at the Northmet forwarded by Houston Kempton, a ledaern responsible mining policy and a leading advocate for not issuing permits to mines that will be indeibitely reliant on active water treatment
This article, without the authors apparent awareness of the fact, is pointing to the “science for sale” fuzzy science” that is finding its way into EIS statements and mine applications.

February 7, 2014

This wonderful E-Book By Robertson & Shaw s what I am suggesting should be the framework for public policy as well.

http://www.infomine.com/library/publications/docs/e-book%2002%20mine%20closure.pdf

In this risk/solution driven process of mine development a mine & closure plan are indivisible. A mine plan that can satisfy all business and environmental criteria that doesn’t have a workable closure is a no go. The concept “mine and closure plan” has to be revised until there is a solution that is both workable in operation and for which there is also a workable closure. Also importantly, Robertson & Shaw stress that it is not just the inherent risk of the mine materials that need to be “put to rest” at closure that determine whether the closure plan is attainable but how these materials are handled on site during operations that determines the success of the closure plan.

In other words, a sound closure plan on paper only becomes a sound closure plan in reality trough a rigorous program of constant technical monitoring and reassessment throughout operations. So protection of the public interest requires that a statutory and regulatory framework for responsible.sustainable mining must provide for periodic technical audits and mandated reassessments over the life of the mine to insure that the closure objective
is still attainable.

Implicit in this approach and not spoke by Robertson & Shaw who are not addressing the “public side of mining risk management, is that if that monitoring should indicate a likelihood of non attainment of the closure plan ( through errors or just through actualities that don’t match predictions) the public authority has to have control to force a shut down, a midstream “NO-GO” . more on that later..it is not presently an element on the GO No Go .

.

February 9, 2014 Several of the “No-GO” elements in Dr. Chamber revolutionary approach to the permitting of sulfide mines pertain to “tailing impoundments”. This paper provides an in depth look at the science and analysis underlying the impoundment related “no go” criteria. (Long Term Risks of Tailings Dam Failure, Chambers & Higman)

https://docs.google.com/file/d/0B4KW-VmaJQhZMVk2ODVjVzFVZXc/image?pagenumber=7&w=800

Critically this article points to the gap in regulatory standards for mining impoundments. The idea of the GO-NO framework in policy is that best science best knowledge design & performance criteria would be embodied in regulation for each criteria.

Posted in Bald Mountain Aroostook Maine, Bowker Associates, Bowker Associates Science & Research In The Public Interest, Center For Science in Citizen Participation, David Chambers, Environmental Risk Management, GO NO-GO Technical Framework, Go NO-GO Zones, Lindsay Newland Bowker, Maine Mining Regulations, Maine Mining Statute, massive sulfide risk management, Metallic Mining, Mining Regulation, Perpetual Treatment Policy, politics of mining, volcanogenic massive sulfide | Tagged , , , , , , , , , | Leave a comment

Global Expert to Reassess Environmental Risks of Mining At Bald Mountain/ Address Limits of Modern Technology

Image

Carr Pond “Mining Affected Area” by Craig Terrell

Contact: Lindsay Newland Bowker, Environmental Risk Manager               November 12, 2013

207-367 5145         lindsaynewlandbowker@gmail.com

Globally respected Geo-Physicist Dr. David Chambers has been retained  to re assess 20 years of scientific data on the Bald Mountain deposit compiled by Bowker Associates of Stonington Maine . The project will specifically address the level of environmental risk presented by the deposit and  the limits, if any, of known technology and approaches to effectively mitigate and control those risks. This aims at the heart of the premise on which Maine rewrote its mining statute, the claim that modern technology can solve all problems.

Bald Mountain, even among  a class of deposits (Volcanogenic  Massive Sulfide “ VMS” ) considered very high risk  has an  extremely high risk profile. JD Irving , owner of the mountain and 1.25 million surrounding acres, has brought about a revisitation of Maine’s law and policy on Metallic Mining. In 1990 looking at the environmental risks of behalf of Boliden, top consultant Mac Roberston ( SRK) said the deposit could not be developed open pit top to bottom without causing significant off site degradation that would require waivers from environmental law. We have asked Dr. Chambers whether any technology has  emerged since 1990 to change that and whether there any  best practices  “Go” Options for the deposit taking into consideration both risk and proven technology .

Lindsay Newland Bowker, Environmental Risk Manager , Stonington Maine, will coordinate and direct the project  through her non profit in formation, Bowker Associates, Science & Research in the Public Interest.

The study was commissioned by North Woods Advocate, Charles Fitzgerald

Over the course of his 35 year career, Dr. Chambers has addressed virtually  every  phase of mine exploration, planning, operations and closure and  has  experience at VMS deposits in similar climates to Maine. He will speak from this universally respected experience  and expertise to this 20 years of data on Bald Mountain  and its relevance today for Maine Mining policy.

Dr. Chambers will make the presentation at an interactive press conference via skype or video early to mid December.

Background Fatal Flaw Analysis ”Go NoGo Decisions” on Mines

“GO/NO Go “decisions are routinely made very early on in the  exploration phases of a deposit including reassessment of previously mined deposits through a process called “fatal flaw analysis” The shrinking global market of mine investors and underwriters require a consideration of environmental risk. That this is a de facto consensus policy among responsible mine developers speaks to the myth that any mine can be developed without environmental risk through modern technology.  Partners just withdrew from the large high grade Pebble Mine  in Alaska citing uncertainty  about control of  environmental damages in their statement. Rio Tinto , at the direction of its investors and underwriters, is the first major global mining company to incorporate an environmental risk based “NO/GO” threshold early on in explorations before it invests resources in advanced explorations and pre feasibility studies that can take many years and costs $millions.

This project will address how  public policy can drive to an early “GO/NO GO” Exploration Phase decision on whether the prospects for management and control of environmental risks are good enough to allow permitting  to go forward.  Some of the questions we have asked Dr. Chambers to address are:

  1. In the normal flow of a mines development how early in the process can that decision be made?
  2. In the normal flow of things will the public sector and the private sector arrive at the same decision at the same point in the process.?
  3. What are the key indicators  of a “NO/GO” based on Natural Resources Protection given best practices, best available technology  and  measured environmental risk

This project was informed by and builds on CSP2’s  important 2005 work “Framework for Responsible Mining . “  A global   “responsible-source minerals dialogue” hosted by  Tiffany & Co., EARTHWORKS, and World Wildlife Fund (WWF) resulted in a call for a summary  co authored by Dr. Chambers.  The framework identifies best practices in metallic mining  and in its first chapter considers “GO/NO GO” thresholds.

http://www.frameworkforresponsiblemining.org/pubs/Framework_20051018.pdf.  .

Back Ground on Project Principals

 Dr. David Chambers is  President of the Center for Science in Public Participation (CSP2), a nonprofit corporation headquartered in Bozeman Montanna  and  formed to provide technical assistance on mining and water quality to public interest groups and tribal governments.

Before forming CSP2 Dr. Chambers had 15 years of management and technical experience in the mineral exploration industry, and for the past 20 years has served as an advisor on the environmental effects of mining projects both nationally and internationally. He is a registered professional geophysicist (California # GP 972) with a Professional Engineering Degree in Physics from the Colorado School of Mines and a Masters Degree in Geophysics from the University of California at Berkeley. Dr. Chambers received his Ph.D. in Environmental Planning from Berkeley. His doctoral dissertation analyzed the U.S. Forest Service’s efforts to plan for and manage minerals in the National Forests Dr. Chambers also is a frequent contributor of science & research informing further development of Canada’s MEND ( Mine Evironmental Neutral Drainage) Program.

Charles Roy Fitzgerald .  For the past 40 years, Charles FitzGerald has actively worked to protect Maine’s North Woods.  Ending the aerial spraying of pesticides and herbicides, stopping the Big A dam, ending the practice of clear cutting, preserving the Allagash Wilderness Waterway, restoring wild Atlantic salmon to Maine’s rivers and defending the legacy of Percival Baxter are some of the goals that he has pursued in court and in the public arena.  Now nearly 80 , he has  spent a lifetime , spontaneously invisibly and often behind the scenes, often alone, supporting and facilitating advocacy that threatens Maine’s north woods.

Lindsay Newland Bowker is a recognized expert in Environmental Risk Management., Heavy Construction Risk Management and Marine and Transit Risks and has more than 3 decades of engagement in building public policy. Bowker Associates, Science & Research In The Public Interest, is an independent non profit (in formation) providing analysis on key issues with a potential for massive adverse environmental impact in Maine.  Bowker Associates has deeply engaged and been  a public voice in the Searsport DCP LPG Tank, the Cianbro proposal for a Private East West Toll Road, JD Irvings rolling pipeline of Bakken crude to its plant in St. John and review of Phase II plans at The Callahan Superfund site in Brooksville, Maine

Posted in Bald Mountain Aroostook Maine, Black Hawk Mining Co., Boliden, Bowker Associates, Bowker Associates Science & Research In The Public Interest, Center For Science in Citizen Participation, David Chambers, Environmental Risk Management, JD Irving, John Seal USGS, JS Cummings, Lindsay Newland Bowker, Maine Mining Regulations, Maine Mining Statute, massive sulfide risk management, Metallic Mining, Mining Regulation, Robert Seal USGS, volcanogenic massive sulfide | Leave a comment

JOBS AT BALD MOUNTAIN NEVER THERE:Bowker Associates Provided Saviello, Key Agency Officials & Key Legislators With Hard Evidence in August 2013

Senator Tom Saviello <drtom16@hotmail.com>
cc: Joan Welsh <joanwelsh08@gmail.com>,  Ed Mazurek <EdMazurek1@aol.com>,  “Heather Parent, Director Policy, Office of the Commissione , Maine DEP” <heather.parent@maine.gov>,  “Horn-Olsen, Samantha” <Samantha.Horn-Olsen@maine.gov>,  Ralph Chapman <chapmanHD37@gmail.com>,  Ben Chipman <votechipman@gmail.com>,  Emily Cain <emily.cain@gmail.com>,  Katherine Cassidy <katherine.cassidy@gmail.com>,  Jeff McCabe <jeffmccabe4me@gmail.com>,  Jeff Gifford <jeffery.gifford@gmail.com>,  James Gillway Town Manager Searsport <searsportmanager@roadrunner.com>,  denise harlow <deniseharlow@hotmail.com>,  “Stebbins, Mark N” <Mark.N.Stebbins@maine.gov>,  Bill Galbraith william.galbraith@maine.gov
date:  Tue, Aug 20, 2013 at 8:41 PM
subject:  Only 30-140 jobs ever anticipated at Bald Mountain to Do Entire Deposit

 

 
See the1990 Interdepartmental memo in this group labled 1992 correspondence by LUPC describing a very early tour of Bald Mountain by Boliden.  It shows that initially Boliden had anticipated mining the entire deposit top to bottom in 13 years and that the entire operation would employ between 30 and 130 people. ( This document by the way is also available as a link for anyone who would like to post it or include it in emails https://docs.google.com/file/d/0Bw0jCpuVRzgEWElOT3p4WmhDRTg/edit?usp=sharing)
 
Almost immediately on doing a risk assessment of the mountain which identified both the highly reactive acid generating character of ores and waste, the complete absence of neutralizing potential and anomalously high levels of arsenic, and the extremely high risk of toxic metals leaching into surrounding ground and surface waters, Boliden, the only qualified mine planning, mine development company to ever work at Bald Mountain realized that at a grade of 1% copper the cost of addressing the environmental hazards made developing the whole mine impossible.  Not because the regulations had impossible or unrealistic standards but because the deposit itself was just too risky in Bolidens highly regarded professional judgment..
 
By 1992 they had scaled back to a much much smaller mine..only 500 feet deep as compared to the original plan of 800 and a much much smaller surface area, only 30 acres focused on a part of the deposit with  a much higher average grade 1.5%.  Obviously that would have employed much less than 130 and would have completed in  a much shorter time frame than 13 years,
 
In 1993 when they basically dumped the mine for $2 million even though they had spent $20 million on it Black Hawk scaled back to an  even tinier area of feasibility..a tiny little gossan pit that would have exhausted in 3 years and employed a maximum of 65 people
 
That is irrefutable and clearly documented in official public records..
 
So this jobs jobs jobs aspect has been created out of whole cloth.  Just invented out of thin air.
 
Lindsay
 
Lindsay Newland Bowker, Environmental Risk Manager
Bowker Associates
Science & Research In The Public Interest
15 Cove Meadow Rd
Stonington, Maine 04681
 
 
 
 
So what is the point of releasing this email now, the day after the due date for all public comments on the appalling Chapter 200 Draft rule on metallic mining other than the obvious” public right to know” aspect  ?
 
Of those on this original cc list, Ralph Chapman is the only legislator to speak publicly and on the official record about the myth of mining jobs.  At the October 17 BEP Hearing on the rules Representative Chapmans testimony, which will shortly be available online at DEP’s website, spoke directly and wisely to the myth of mining as a major job creator in the local economy.  My recollection is that he recalled for the BEP and Commisisoner Aho that the same sales pitch brought us the Callahan Superfund site.  I believe he also referred to the data Bowker Associates had distributed in August through this email.  His unreported line of the day was that mining does indeed create lots of high paying jobs….20 years later at public cost in superfund clean ups.
 
Lance Tapley reported this in his August article for the Phoenix as well as disclosing the huge risks  at Bald Mountain Bowker Associates and JS  Cummings had relayed to key legislators: Jeff McCabe, Troy Jackson,and in the  very beginning John Martin
 
All press who had ever written about Bald Mountain or mining in Maine were also copied .  So why is it with solid irrefutable proof that the claims of local jobs were pure myth, was this not reported in the coverage by Bangor Daily News of the PPH.  I happen to know but cannot yet say publicly what the answer to that is.  The PPH coverage of the October 17th hearings still contained that headline framing the issue as tree huggers v. jobs.  What I don’t know is why.  Is that because controversy sells papers or is there another agenda at work in the official editorial positions of our two major papers of record.  Certainly their coverage of the October 17th hearing bore no resemblance to what I saw and heard that day.
 
Partly I guess, in this Bowker Associates editorial, I want to say be wary of any politician running for office or testifying who cites support for metallic mining as proof that they are for job creation.  Make it a litmus test and completely disenfranchise any politician who continues this total lie about metallic mining and jobs with your vote and with your public opinion.
 
Lies about mining will not bring jobs to the counties.
 
 Sound economic development policy will.
 
Ralph Chapmans very wise and insightful testimony pointed out that the downward population trends  in the counties and his Blue Hill Peninisula district and  including my own Stonington, were set in motion by forces long ago that the State of Maine under both Republic and Democrat Gubernatorial leadership just failed to address.
 
Insist that your legislators, your candidates for office bring real insight, real solutions to the table if their campaigns promise jobs.
 
 
 
Insist that our entire legislature get real on jobs and mining and stop asserting complete lies for their own gain.
 
This is critically important to moving us to the high ground on what we want our law and policy on mining to be.
 
.These past lies about the economic benefits of mining in Maine are what has kept us on this path to disaster.  Those who have carried this banner of jobs for Maine through mining don’t have the political will or courage to stand up and admit that they were wrong, that they were mislead and to finally take up the task of building wise law and policy for metallic mining in Maine.
 
Our reality, once we put aside this smoke screen about mining bringing jobs to Maine, is that our statute, written by Pierce Atwood for its client JD Irving went through our entire code of environmental law and simply exempted mining from each and every environmental law.  Our legislators say they really believe they have delivered a statute that provides an appropriate balance between whatever economic stimulus mining might really have and natural resource protections that formerly applied to mining and still apply to much less environmentally risky enterprises.  A plain reading of the statute as artfully, Robert Moses style crafted by Pierce Atwoods, Tim Doyle, says in fact. mining liberated from all other law on natural resource protection  and all will be well just in reliance on a promise from applicants that they will not cause any harm to the environment.
 
That was a huge mistake involving both republican and democrat leadership and again, no one is willing to have the political courage to admit that mistake and now step up and work to make our law and policy on mining wise and sound.
 
“We the people” have to make it clear that that’s what we demand, that political courage to correct course on metallic mining in Maine.  If we keep on with this jobs vs trees rhetoric, we ourselves are the architects of the disaster that will costs us many pristine watershed in the state of Maine.
 
Our political leaders cannot will not take political risks.
 
We the people have to make it clear that there is no political risk in admitting we made a huge mistake with our written to JD Irvings spec statute and that  we were mislead by false claims of jobs.
 
What I heard at the public hearing on October 17th is consensus by “we the people ” on that.  We have to keep on and speak louder on that .  It is clear that the Portland Press Herald and the Bangor Daily News are bot going to do what the 4th estate is supposed to do on any pubic issue.  We ourselves have to get the message across to our legislative leaders loud and clear  that mining is just too risky for politics.
 
It is urgent that we get past this dales claim of local jobs and  it is urgent that we start making law and policy on metallic mining that is risk focused .
 
It’s almost too late.
 
 
 
 
Posted in Bald Mountain Aroostook Maine, bangor daily news, BEP, Black Hawk Mining Co., Boliden, Callahan Mine Brooksville Maine, Callahan Mine History, Callahan Mine Superfund Site, corporatocracy, Heather Parent, History of Mining In Maine, JD Irving, JS Cummings, Maine Mining Regulations, Maine Mining Statute, massive sulfide risk management, Mining Regulation, plutonomy, politics of mining, portland press herald, volcanogenic massive sulfide | Tagged , , , , , , , , , , , , | Leave a comment

Plea To BEP To Not Allow Rehash Of Old Debate & Seek Expert Help on Mining Rule

In testimony today ( October 17,2013), Bowker Associates  called on BEP to not allow a rehash of the debate to date, to hold all commenters to high standards of constructive input, truth and supported statements and to ask an outside expert to review our statute, our draft rule and our old rules and recommend a course of action.

https://docs.google.com/file/d/0Bw0jCpuVRzgEN190S3BNa0hwTkU/edit?usp=sharing

The statement also explained the relationship between the inherent risk in the geology of a mineral deposit and the range of decisions and technologies that might be applied to control or mitigate those risks cautioning  that there have been no major new technologies addressed to risk management since SRK’s 1990 report for Boliden at Bald Mountain.  In that report SRK advised Boliden that there would be significant, unavoidable  off site environmental degradation and that there were no known technologies that could be expected to control or mitigate that.

 

Lindsay Newland Bowker, CPCU, ARM, Environmental Risk Manager

Bowker Associates, Science & Research In the Pubic Interest, Stonington Maine

 

 

 

Posted in Uncategorized | Leave a comment

Bowker Associates Calls For immediate Suspension of LUPC Rezoning Reg for Metallic Mining Citing Revelations On Risk at Bald Mountain

Via E-Letter to Nicholas Livesay Executive Director of the Department of Agriculture Conservation and Forestry  (DACF), dated October 14, 2013, Bowker Associates  has called for an immediate suspension of all rules in effect on sub district rezoning for metallic mining in the unorganized territory of the State of Maine.  Most of Maine’s  potential mines are in the unorganized territory  (“UT”)and all are located in a zoning designation where mining  is by regulation a forbidden use except through a sub district rezoning,( an unusual concept with no precedent in planning and zoning elsewhere). LUPC is administered within the DACF.

The basis for  Bowker Associates call for suspension is that data separately selected and separately analyzed by Bowker Associates Science & Research in the Public Interest ( “Bowker Associates”) and by  the Natural Resources Council of Maine (“NRCM”) show ,without,  question that the application of LUPC’s existing recently adopted rule for sub district rezoning for mining would violate the still over riding statutory mandate of LUPC to insure and enforce adjacent zone compatibility and to protect the natural resources of the unorganized territory.  (“UT”) which comprises  about ⅓ of Maine’s geography.

Under the rule as adopted by LUPC in the spring of  2013, an approval for rezoning would  be allowed even though there is  indisputable evidence of extremely high risk of permanent, devastating,non-remediable,  offsite damages at Bald Mountain from a conventional open pit  “top to bottom” mining operation and without  required presentation of any documented reassurance that the zoning change applicant has a mine plan that will prevent these damages.

The rule as adopted by LUPC essentially gives an open carte blanche rezoning “as of right”.  DEP via the permit process under its mining and exploration regulations is responsible for insuring those damages do not occur…….to the extent and only to the extent that the law and the regulation insures that.

DEP’s rule  is also not risk based , lacks clear standards and does not require any independent verification and so would not “drive” to a rejection of a conventional open pit minining of the Bald Mountain deposit top to bottom nor would it drive towards any available alternatives or approaches that might lower or eliminate risk.

BACKGROUND

In the midst of an unprecedentedly thoughtless and ill advised slice and dice of environmental law, LUPC’s mandate and DEP’s role in metallic mining, LUPC had a deadline, mandated by  statute,  to revise its rules on rezoning  for metallic mining in a way that clearly separated the functions of “zoning/land use” and “permitting” . Under a separate statute which changed DACF’’s responsibilities to only “planning and zoning” and delegated, all “permitting” in the “UT” to DEP ,earlier action had been taken to effect this statutory distincion for all areas except mining.

LUPCs rulemaking on metallic mining “subdistrict rezoning” did not receive the same level of attention as DEP’s concurrent Chapter 200 rule making on Explorations/Advanced Explorations which were allowed to go into immediate effect as “interim technical rules”. 

Those interim technical rules are now before the Board of Environmental Protection (“BEP”), a citizens board with authority for all substantive rule making, along with DEP’s recently released draft rules rewriting Chapter 200, Mining Rules established in 1991..  A public hearing on those rules is scheduled for   October 17th, 9:00 am Augusta Civic Center.  Written statements will be accepted until October 28th, 2013.

BOWKER ASSOCIATES

Bowker Associates, Science & Reserach In The Public Interest,  is an independent non profit (in formation) providing analysis on key issues with a potential for massive adverse environmental impact in Maine.  Bowker Associates has  deeply engaged and been  a public voice in the Searsport DCP LPG Tank, The Cianbro proposal for a Private East West Toll Road, JD Irvings rolling pipeline of Bakken crude to its plant in St. John and review of Phase II plans at The Callahan Superfund site in Brooksville, Maine..

Our only “client”: is always “the pubic interest”.

Our model is to focus on only one or two issues at a time so that  we have a substantive command of the  relevant field as our foundation for ongoing engagement.  The focus is on envirommental risk management, science and technology as well as bringing any available “best practices” models to the fore. The legal and regulatory history/best practices are also a major thrust of our work.

Director/Principal Lindsay Newland Bowker, CPCU, ARM is a recognized expert in Environmentall Risk Managment., Heavy Construction Risk Management and Marine and Transit Risks and has more than 3 decades of engagement in buiding public policy.

**************************

       
 

October 14, 2013

   

Dear Commissioner Livesay,

It is possible that no one at LURC/LUPC has seen SRK’s 1990 report, for Boliden at Bald Mountain ( The first report in this list of reports https://docs.google.com/file/d/0Bw0jCpuVRzgEQUZ0Y0RqS21YOW8/edit?usp=sharing  ) which was a main basis of NRCM’s recently released report ,of which I am sure you are aware.

This 1990 SRK report for Boliden together with the risk analysis at Bald Mountain  which Bowker Associates has been sharing since June with Samantha Horn Olsen& all parties with a known  interest in mining in Maine vividly demonstrates the fatal flaw and errors in judgment  in the recently adopted rule on subdistrict rezoning for metallic mining.

I believe the revelations of the degree of risk of widespread, non remediable, non reversible  environmental degradation at  Bald Mountain surfaced by the research of Bowker Associates and independently by NRCM, are of sufficient gravity to justify an immediate suspension of that rule and the prior rule and  I am asking you to do just that.

I am asking you to also publicly  commit to  a reconsideration of approach more in line with what I had recommended in my testimony  (  https://docs.google.com/file/d/0Bw0jCpuVRzgERHZqdzU0Mzh3Qm8/edit?usp=sharing )a risk based approach against a standard of neutral drainage,( ie  reasonable  and documented  expectation of no offsite degradation) and more in line with the concept of  conditional use as is the customary planning/zoning approach for metallic mining..

I  urge you to seek outside guidance in this reconsideration and there is only one person who can give that guidance based on prior work, expert knowledge and global stature and that is David Chambers, Director of CSP2 Bozeman Montana. After two years of deep immersion in metallic mining especially on the look out for expertise that might be available to us in Maine, I have  really good sense, I think of  who’s who among experts.  Dr. Chambers is the only person who possesses both top level expertise in mine operations risks respected throughout the mining industry but who also  has done work in relating this to  land use and zoning issues.  Literally the only one.  I urge you to immediately enter a negotiated contract for professional services with him.

This1990 SRK  report for Boliden, together with the risk analysis on ARD and toxic metals risks at Bald Mountain,  which Bowker Associates  has been sharing with Samantha Horn Olsen and all parties of interest in mining  since June  makes it very clear that a subdistrict rezoning for metallic mining  under the rule that was adopted and is now in force would violate  LUPC’s statutory mandate.

It also highlights the fatal errors in LUPC’s final rule on subdistrict rezoning under which this information would not be/will not be required or considered even though it is at the heart of the  consideration of the most fundamental rule in zoning, compatibility with adjacent landuses and zoning designations.

My testimony,https://docs.google.com/file/d/0Bw0jCpuVRzgERHZqdzU0Mzh3Qm8/edit?usp=sharing),  outlined a course for the rulemaking on sub district rezoning for metallic mining which was fully within the LUPC’s mandate and also fully compatible with the existing statutory mandates to delegate all permitting to DEP and the mandates of the mining statute which prompted the redrafting of the sub district rezoning rule for metallic mining.  My approach was/is  fully consistent with accepted and commonly used planning approaches for metallic mining  and emphasizes a risk based consideration against an expressed standard of neutral drainage (i.e.a reasonbale expectation  no off site environmental degradation.supported by ARD analysis)

When I wrote my testimony,,I had asked DEP & LUPC repeatedly about the Boliden permit and Black Hawk application  and had not been able to obtain any information ( I had seen references in many trade journals and the eminently distinguished global expert Dr. Robert Seal credited Black Hawk’s cooperation is allowing use of their wells and drill core in his 1997 study)

Without access to the acual data that existed the whole time, my testiomy therefore advocated a threshold based on the ARD/Toxic Metals leaching risk of the planned operations within the district and using widely accepted and almost universally applied ABA accounting  based  risk criteria.

Bowker Associates prepared an NPR-S Plot of the actual full profile of the “mining area” at Bald Mountain.upon finally obtaining access to the Black Hawk data many months after the adoption of the LUPC rule.

https://docs.google.com/file/d/0Bw0jCpuVRzgEZ3hva1ItbXpPTjg/edit?usp=sharing

The data and  NPR-S plot prepared by Bowker Associates on that data  is what is customarily  developed right up front at exploration to aid  explorations and  to eventually inform the mine plan.

As you can see, the entire “mining area”, except the hanging wall (the rock overlaying the deposit itself) is in the category of very high risk according to criteria almost uniformly applied by experts evaluating  an un mined deposit.

It was exactly this analysis of risk  that SRK applied to these same data in writing their 1990 report for Boliden which offered the opinion of unavoidable off site degradation for a top to bottom open pit mine as Boliden had initially assumed possible.

Commisisoner Livesay, I think if you read through this application  of Black Hawks and  many mnay mining apllications as I have it will be very clear to you that a sub district rezoning or more appropriately conditional use approval by LUPC should not  really occurr until there is a full blown mining application

The mine plan is the document that attempts to resolve the risk of off site degradation with available technologies and strategies for mitigation and control .  Until that document is prepared the data needed to consider a subsitrict rezoning (or more appropriately a conditional use approval) by LUPC does not exist.

It is at that point in the process where LUPC should, with outside expertise  on every single application,determine whether the mine plan satisfies the standard of comaptibility ( subdstricts stautorily cannot violate inherent compabtibility with the existing adopted land use and zoning plan) and no off site degradation.

I proposed that in my testimony and this actual real data makes that crystal clear.  I urge you to go back to the legislature for the clarifications and revisions that will be needed to fix the errors in mandate. A full fix consistent with sound planning and zoning practice cannot be effected without statutory revisions.

Thank you for your consideration and I hope, your prompt and timely  action.

Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager
Bowker Associates Science & Research In The Public Interest
15 Cove Meadow Rd.
Stonington, Maine 04681

lindsaynewlandbowker@gmail.com  lindsaynewlandbowker.wordpress.com

cc: Mari Wells, Eagar, Assstant to Commisisoner, Dept Of Agriculrure, Firest & Conservation

     Heather Parent, POlicy Direcor, Legislative Liaison DEP

     Mark Stebbins, Mining Coordinator DEP ( since 1990)

     Samantha Horn Olsen , Planning Manager former Acting Director LUPC

     William Galbraith , LUPC

     Jeff  Crawford, Office of the Commissioner DEP

     Cynthia Bertocci, Executive Analyst BEP

     Andrea Lani, FOAA DEP

     Carol White, C.A. White Associates advisor to LUPC

Posted in Boliden, History of Mining In Maine, JD Irving, LUPC, Maine Mining Regulations, Maine Mining Statute, massive sulfide risk management, Metallic Mining, metallic mining zoning ordinances, Mining Regulation, NPR-S Plot, Robert Seal, Robert Seal USGS, Zoining and Landuse for Metallic Mining | Tagged , , , , , , , | Leave a comment

MDOT Rail Safety Report Greenwashes/Ducks Unresolved Rolling Pipeline Risks

On ..MDOT released its Rail safety  study directed by Governor Paul LePage immediately after the Lac Megantic tragedy.  The report is a classic of misdirection and green washing completely avoiding the many still unresolved issues of ” rolling pipeline safety” .  In Maine the tern , “rolling pipeline” is inextricably linkedto JD Irving.  The train that caused a nearly total devastion of tiny little Lac Megantic village and the trains that rill through Old Prchard, Portland, Yarmouth, Lewiston and Maine’s wilderness  all  carry Bakken crude from North Dakota and are all  bound for JD Irvings refinery in St. John, New Brunswick.  Indeed, JD Irving is the architect of the rolling pipeline system that allows Bakken from its isolated non pipeline served extraction and processing center sin North Dakota to reach U.S. and Canadian refineries.  When Enbridge pipeline refused to accept Bakken  because of its corrosive and explosive qualities, not usually associated with crude, that pushed Bakken to a “rail only” distribution until  the issues with Bakken are more closely studied and addressed.

Also at the heart of Lac Megantic was the suitability of use of  old un retrofitted DOT-111′s known to explode and leak in derailments.  Retro fit is cheap and yet the industry has effectively and with determination rebuffed all FRA efforts to mandate retro fit or replacement of all DOT 111′s by a date certain.

And then in Maine we have a problem common to all Class II and Class III rail in rural areas all over America: old and failing track with shrinking markets and not enough business to keep them afloat.  That is especially true of the MMA rail including the 220 mile portion the State of Maine purchased  for $20 million after abandonment was approved by the FRA.  MDOT with help from our congressional delegation procured an additional $10 million TIGER grant intended to improved infrastructure and create jobs.  MDOT leased this back to JD Irving for $1 a year under a the most unconscionale lease I have ever seen.   Among the outrageous provisions of this lease D Irving may use equipment that is not recommended as safe by FRA and is not required to bid any of the work for maintenance and repairs or even use Maine companies for any wok it contracts.

MDOT Commisisoner Bernhardt and Deputy Commissioner Bruce Van Note have been very clear from the day of Lac Megantic that they consider rolling pipeline essential to  viability of the remaining privately owned rail systems serving Maine’s businesses..and JD Irvings.  Commissioner Bernhardt knows there is no believable way to assert that rolling pipeline is safe or that any Maine community these trains have been rolling through for almost two years is “safe”.  The world has declared, the FRA has declared that is simply not the case and that every aspect of “rolling pipeline” has to be studied closely and a much better safety program put in place.

The report does not address any aspect at all of the huge and still unresolved environmental and public risks of JD Irvings rolling pipeline.  It is basically a reaffirmation of the Commissioner Bernhardts determined silence on this issue.
The MDOT  report doesn’t even include   any one  of the following key areas of risk and concern concerning J D Irvings rolling pipeline
(a) the cause of the 3Pan Am rolling pipeline derailments in Maine already
(b) FRA’s current   work and lack of answers on the rolling pipeline issue especially the use of DOT-111′s for Bakken
(c) the results of and details  of any of the defects noted in FRA inspection of Maine track
(d) the condition of the 220+ mile section of track Maine owns and leases to D Irving for $1/yr.
In short, it totally ducks the rolling pipeline safety issue as the Commissioner has as a matter of policy from the outset.
The Commissioners position clearly remains that rolling pipeline is needed income for Maine’s frail rail system and that the public risks, including a Lac Megantic tragedy, are secondary to the income rolling pipeline might bring to the rail system.
The report and the Governors executive order are completely disingenuous in its blanket reassurance of rail safety.
It is important to bear in mind that Canada’s ability to respond and effect safety corrections is very different from ours in the U.S.  They license railroads so they can simply direct the terms and conditions of the license including insurance and bond requirements, capitalization, etc.  The FRA struggles with a much mire tenuous and indirect influence over what is essentially a self regulated industry. But even within this framework there are many opportunities, including the State Safety Option, that allow states to appropriate local input to local safety issues.  Our MDOT doesn’t participate in this program.  And of course a Governor of DOT Commissioner can always write to the FRA to express concerns.  MY FOAA’s to MDOT have produced  o evidence of any written expression of concern about the very great risk so many Maine communities are exposed to for the sake of JD Irvings rolling pipeline.
We have a breather at the moment.  Bakken prices and foreign crude prices are too close in global markets to justify the extra cost of transportation  by rail cross country.  We may even have  along term reprieve because D Irvings off load station on the Hudson, in partnership with Buckeye, is now bringing Bakken to Irvings refinery via marine transport..much much cheaper than rail.
No question that Maine economic vitality requires a shift away from trucks and trucking which add as much as 40% to the price of any Maine product according to the 2010 Can Am report. All with any environmental sensibility support rail over trucks for Maine. We definitely do need a modern, reliable Class II and Class III rail system here in Maine.  But our Commissoner and our governor have to be willing to take a realistically hard look at whether we dare risk the easy immediate choice of rolling pipeline to keep us afloat until we have a better answer.
(Please see long chain of updates and links at end of post on MM&A underinsurance..I will try to bring those relevant to the background discussed here to this post as time permits)
Lindsay Newland Bowker, CPCU ARM Environmental Risk Manager
Bowker Associates Science & Research In The Public Interest
15 Cove Meadow Rd
Stonington, Maine 04681
October 19, 2013
Class I Railroad Rolling Pipeline Derailment In Edmonton
Posted in Bakken Crude, bakken flammability, Enbridge 9 Pipeline Reversal, Energy East Pipeline, Irving OIL, JD Irving, Portland Montreal Pipeline, rolling pipeline | Leave a comment