It Is Time To Commission a Panel of Risk Finance and Underwriti​ng Experts To Review Financial Capacity of British Columbias 10 existing Mine Operators


I only just stumbled across this article rightly questioning the wisdom of allowing Imperials other two mines , Huckleberry and Red Chris, both in B.C. to continue until a through  reexamination and “audit” is conducted.
I was just about to post what is now so obvious on a statistical actuarial basis that it requires some immediate speaking from the “Responsible Mining” movement.  I will frame it into a more usable “FAQ” form and seek expert peer review from my industries ( banking, insurance, underwriting & risk management)  but the picture on a financial responsibility basis is grim and the B.C. governments existing structure is without pathways and procedures for responding  adequately to that.
At this point Imperial( operator of two of B.C. 10 currently operating mines and seeking a permit on a third) is caught in its own self constructed trap and is really helpless as a corporation to do anything about it.  It really has reached the edge of the cliff( in my opinion and in the public opinion of market experts).
The call that needs to be made right now from the “responsible Mining community is on Imperials financial capacity to meet its obligations and fund its environmental loss exposures and present legal liabilities not just at Mt. Polley but at Huckleberry and at Red Chris which is in permit processing.  That financial capacity “audit” has to also take account of its JV in Nevada.ogether.  .
Bowker Associates is constantly combing through potential sources of data looking for documented or at least widely accepted data  to replace assumptions we have had to derive from what is available for our work on “moving theglobal risk curve” for mines.
 Last night I discovered that B.C. has only 10 operating mines and that Imperial is 2 of those ( Mt. Polley and Huckleberry) and Red Chris a third isand still seeking and expecting imminent approval..
In the insurance risk management business this is a major red flag  on risk regardless f what actually caused the TSF failure ( not that there is much question about what Vick, Zyl an Morgenstern(???) will say).
 It is simply not sound policy to issue permits to companies for anything let alone an endeavor like mining with a documented high public liability  risk profile if the company cannot fund  or otherwise meet its environmental and other public liabilities.
Full stop ( as they say in the U.K.). Period (in the U.S.)
The call can and should be made by the entire “Responsble Mining ” network in the Caada & The U.S. for an  independent qualified actuarial and accounting team of experts  to audit and assess the capacity not just of Imperial but of the owners of all 10 operating mines in B.C. to meet these financial public liabilities and to evaluate the adequacy of The B.C. governments present criteria and standards for making determinations on “financial capacity”. The panel of financial & riskfinance experts should  provide specific recommendations to B.C. on improving their “financial capacity ” criteria.
Failing their taking that up or perhaps preferably we responsible mining advocatesc should hire our own expert panel   and get that out in public view immediately.( It will be tricky to pull this panel together as no experts who understands mining and is currently serving the industry  but my work with this information so far suggests the numbers speak loud and clear and about such basic and funadmental risk management and risk finance issuse that they require no mining expertise to assess)Those audits should take a close look at what the B.C. government allows and what practices these 10 companies have on the creation of shielded LLC’s which funnel revenue up to the parent but shield the parent against liabilities.
This is an important and fundamental call on business practices that have so far not been a focus of the main  themes and work of  responsible mining and environmental justice but are so obviously  key now that we look at the reality of Mt. Polley
The implied “thought” behind what B.C. and other political jurisdictions interpret as “financial capacity” is that a company can always sell off its other assets, go to credit markets or fund out of cash flow from other operations.  This is flawed thinking and flawed policy as Mt. Polley makes very very clear.  
The present course of the deeply flawed public private partnership between the mining industry and its regulators, not just in B.C. but across the board is reckless and irresponsible and on “financial capacity” gaps alone ( a company’s own assessment of its capacity and the assessment required by regulators) is tantamount to an undeclared and unagreed, unacknowledged unlimited  public subsidy to the mining industry via unfunded and unfundable public liabilities.
The markets have already made the call on Imperial so there is no political risk or liability exposure and no vulnerability to a chrage of unqualified”” criticism ( who is mining watch and wman or Bowker Associates  to question  or assess a company’s financial capacity):
(1) Imperial announced in its 2002 annual   it was essentially going bare ( unfunded) for its environmental and other operations liabilties.  ( did B.C. make a response to that, notice that, consider that?) There is no evidence or reference in their annual reports since then of any effort to pre fund or even quantify what those liabilites are.  They have merely asserted that they can fund them out of cash flow w( which anyone who manages a check book can see is a stretch to say the least.  Almost no one can mange catastrophic losses out of cash flow).
(2) a key rating agency publicly challenged that whether Imperial can survive this
(3) the markets have made their call Imperials stock plummeted the “market” didn’t offer them that $100 million in unsecured debt, the two major investors with the most tol ose funded that whole debt and their levelof confidence is shown in the very high rate charged ( 6%)
(4) in their pre spill 2013 financial statement Imperial acknowledged that even to meet their production and development goals ( especially at Red Chrs) they had no cash flow and would have to rely on credit markes.
Just pointing to these four established indisputable facts, any citizen with a thinking cap on can legitimately say “hey wait a minute” this sounds like not a good deal for we taxpayers and quite reasonably make the call I am suggesting you make now.
As this article points to indirectly “financial capacity” must involve a full consideration of liabilities.  It is obvious to me even without the spill. Imperial does not have the financial capacity to meets its environmental and other liabilities at 4 mines ( It has Huckleberry & Mt. Polley  in production, Red Chris coming on line in B.C.) and one other JV operation in Nevada)
As you know, the  B.C. Spill response program is not funded ( nor is it mining specific..same program governs a tiny little oil delivery truck spill to a homeowner and a spill the size of Mt. Polley). The B.C.policy merely asserts, that it is reasonable for the government to seek reimbursement should the responsible party be unwilling or unable to respond..the maximum fines for non compliance are a joke in the context of a major or even average TSF spill
Also what this article is saying about the fundamental relationship between cash flow pressures and safety is really the entire issue in mining.
It is endemic and well documented.
It turns up again and again in dam review committee reports and it was the main point well made in this excellent piece presented at the 2011 tailings conference. 
This excellent paper is making the right call.  The industry itself is paying no attention to the operating phase of a TSF and their is no focus on oversight, not just in B.C. but again on an endemic basis.  Have to look up the exact number( AZAM 2010??) but something like 44% of all TSF failures occur during active mining operations.  It is the single largest threat of non remediable, non recoverable permanent environmental loss and yet regulations, not just in B.C. but everywhere fail to focus on the well known well established  causes of TSF failures in their requirements and provisions for oversight
At this same conference Dr. A. MacG. Robertson who has all his career called for voluntary self regulation on best practice principles called the May Day industry wide

To me Dr Robertson is the wise man in the industry..I have immense respect for what he tries to do through info Mine and what he has done all his career as a consultant to mining companies.).  He said to his fellow miners as the key note speaker there the risk profile of modern era TSF is rising at the alarming rate of 20 fold per 1/3 century.
His reasoning and even his numbers look fine to me. and what it points to is exactly what the article that prompted this post is pointing to except the author doesn’t understand as Dr. Roberson obviously does that it is endemic to the whole industry.  
Mt Polley is just the mirror in which we see the face of most of the mining industry today and in which we see the details of a failed co-ventured historic public private partnership between the industry and its regulators..
Posted in Bowker Associates, Canada Dominance in Mining, CSP2, Financial Capacity Standrds Mines, Imperial Metals, Mining Risk Management, Mining Watch Canada, Mining Watch Maine, Mt. Polley, TSF Failures, WMAN | Tagged , , , , , , , , , , , , , , , , , , , , , | Leave a comment

Canada & Canadian Owned Mines In Foreign Countries Determine The Unacceptably High Risk & Loss Profile of Mines Globally

I am sure Mining Watch Canada and WMAN have long been aware of the stats and facts on Canadas global mining dominance which have appeared in the wake of the Mt. Polley TSF failure.

Looking at these stats in the context of my current work in analyzing  whether and how it is possible to move the unacceptably high global risk and loss profile of mines to levels that might shield against unlimited unfunded public liabilities  these numbers and facts are stunning.

They have implications for how U.S. and perhaps pronvicial law in Canada  needs to shield against public interest gaps in Canada’s legal structure for mining. .

They have implications for public interest advocacy and advocacy coalitions (mining watch groups and major voices like Sierra Club)

For those of  us numbers crunchers  and researchers  who sit in the dark drear bowels of government buildings pouring through records that may contain long hidden data   and who pour through compilations like ICOLD’s and WISE’s on TSF’s it puts a completely new light on interpretation and analysis.

“Over 75 per cent of the world’s exploration and mining companies are headquartered in Canada, and mining and energy investment is the third largest component of Canadian direct investment abroad. A leaked report by the Prospectors and Developers Association of Canada, the biggest industry lobby group, confirms that Canadian mining corporations are responsible for almost half of all the documented mining-related rights violations around the world, and in the global South are implicated in four times as many violations as companies from other countries.”

“A recent Globe and Mail article reveals startling facts about Canadian International Development Agency (CIDA) poverty-reduction aid funds being prioritized to countries that have deposits of mineral resources and are of “strategic” and “commercial” interest to Canada’s resource-extractive sector. According to Maude Barlow, CIDA has approved $50 million in projects linked to the mining industry since the Harper government took power (Common Dreams Op.Cit Mt. Polley Mining Disaster”

( I vetted this back to its source)

Canada has no equivalent to the U.S. Alien Torts Acts which allows injured and aggrieved persons in foreign operation to of U.S. Companies to seek remedy under U.S. Law. to the International Business Times, that leaked industry report found that of the 171 high-profile incidents of pollution, human rights violations, and unethical behavior, 34 percent were committed by Canadian companies.

The companies’ actions and the government’s inability to regulate them have gained Canada a reputation as “worst offenders in environmental, human rights and other abuses around the world.”

This is presumably how it came to be that the Canadian Government refused to hear the $2 billion in damages claimed  by the OMAI (Guyana)TSF failure victims and actually ended up being directed by the Guyana government to reimburse the Canadian mining company, its insurer ( Home) and all named parties for their legal defense costs even though the dam committee report  found gross and fundamental errors in design, management and construction of the TSF.  ( By the way Steven Vick, who is one of the three member Committee appointed to review Mt. Polley, was chair of the OMAI dam review committee. And Knights Piesold, original designer and long term consulting engineer on the failed Mt. Polley TSF also designed the OMAI dam and has a major footprint on TSF’s globally having designed over 400 TSF’s according to their website)

Rushing through volumes of studies & stats in my quest for numbers that may add more rigor to calculations on  what it would take (and whether it is possible) to shift the entire risk profile for TSF’s from its present global rate of 1.2% to something more like the fallure  rate of water dams (0.01%) I recall seeing that Canada has previously absorbed costs of $400 million and $69 million in two other  failures.

In his 2011 key note address at a conference on TASF’s Dr. A. Mac G. Robertson, owner of INFO Mine , the original “R” in SRK, the Principal consultant on the Bald Mountain analysis here in Maine,  and someone I respect immensely, presented his calculation that contrary to industry claims that new technology  has made mining safer, the risk profile of modern TSF’s was actually elevating 20 fold ever 30 years.

Mike Davies, AMEC, has framed that for the industry but also for we who are  legislators, regulators and advocates:

“{I}f one becomes a student of tailings impoundment case histories, an interesting conclusion arises. Tailings dam failures, each and every one, are entirely explainable in hindsight. These failures cannot be described as unpredictable accidents. There are no unknown loading causes, no mysterious soil mechanics, no “substantially different material behaviour” and definitely no acceptable failures. There is lack of design ability, poor stewardship (construction, operating or closure) or a combination of the two, in each and every case history. Tailings impoundment operational “upsets” or more catastrophic failures are a result of design and/or construction/operational management flaws – not “acts of god”.(Davies et ,al 2002)

ICOLD ( International Committeee on Large Dams is saying the same thing.

“The ICOLD Tailings Dams Committee has concluded that effective reduction of the cost of risk and failure can only be achieved by a commitment from Owners to the adequate and enforced application of available engineering technology to the design, construction and closure of tailings dams and impoundments over the entire period of  their operating life. “

Canada, Canadian Mines, Canadian Statutes and Regs are the key to preventing unfunded unlimited public liabilities world wide ( and from a risk finance point of view any real possibility of “polluter pays”.  If Canadian mining companies don’t change voluntarily or through force of law, the global risk and loss profile of  mines in general and TSF’s in particular will play out as Dr. Robertson has warned.

The unnamed dragon in Dr. Robertsons 2011 slide presentation in addition to standing for the threat of losing the social license to operate completely and/.or  the  treat  of onerous and poorly informed reactive legislation  is also, in light of these stats and facts, Canada itself and the policies of most of its provincial governments.

 beyond here be dragons

UPDATE 09/20/14

I just posted this end note addressed to Dr.Roberston and Jack Cassidy at the I Think MIning piece reprinting my email to  Mining Watch Canada and Western mines Alliance Network. (WMAN)


May I just add the end note here and address it to you Jack and to Dr. Robertson?

On the charts of ancient mariners where it once said at the edge of the known charted traveled seas “BEYOND HERE BE DRAGONS” we modern blue water mariners now travel routinely and with confidence..small crews and single handed sailors on small boats traversing once unknown oceans with giant freighters and huge pods of all kinds of whales and dolphins. All of us crossing together..

It was the mariners who ventured into that unknown who have made that possible.

You are the wise man in mining, Dr. Robertson. This moment in mining history needs you to lead the way into those uncharted and dreaded waters.

If you don’t chart the course for the essential legislative andlindustry partnership needed to fix that risk profile for TSF’s you yourself have called the MAY DAY on,.the folk who will do it will make it a tough voyage for all concerned.

It won’t be pretty.

It will be very disruptive unless you lead the way.

Your ebook with Shannon Is the blue print. West Australia has already put that work in law and regulation..

It is too late to still hope for a fix through a self regulated industry.

You can’t just leave it at marking the chart “beyond here be dragons”

Here I might add looking at Jacks chosen illustrations for his report of my email, a child learning braille

,which of us is having trouble seeing?

action not angst is the answer.

UPDATE  0/19/2014

This has now been reported at Info Mine’s blog “Ithink”

I apologize for offending Jacks sensibilities by including in the cites I used  human rights violations Canadas overseas mines have been implicated in.It was not central to my key point in my email to Mining Watch Canada and the Western Mining Alliance ( though it is a very large part of my larger “ministry” on mining).

Jacks reaction to that apparently overshadowed his thoughtful consideration of my main point. ( my fault I’m sure)

Please join the blog at Jack’s site.

We have a saying in Maine “You can’t get theyah from heeyah”

As I look at the risk and loss profile of mining globally I don’t really see how we change that overall profile one new permit, one new mine at a tme. Somehow correction of serious flawed mines already in operations has to go alongside that.  And as painful as it is for Jack who has in fact always called for best practice, best knowledge, best science..he & Dr. Roberston have “waited to ong at the fair” on their call for respomsble self regulation.  Dr Robertsons own 2011 key note address makes that perfectly ckear.  Some sort f well thought out collaborative public private partnership is needed to make this shift. It’s time to begin that collaborative work on what government has to do to force that shift.I hope jack & Dr. Robertson will make that call and lead that effort.

Here is the link to Mining Watch Canadascommentray on the leaked Industry report

(Ths is the report hyperlinked in the quote above)

Additional Studies Reports on Canadas Foreign Mines Profile

My focus in exploring Canadas dominance globally in mining is about whether its possible to shift the high risk profile of mining as a whole to more acceptable numbers,  My searches for numbers and stats keep mumping into reports I was not previously aware of that document the Canadians Governments direct implication in human rights abuses and other conduct in foreign nations.   With the spotlight here on Canadas global presence therefore We will be posting what we bump into on human rights abuses and conduct.

Canadas Presence in Latin America

Canadas Presence in Africa

“Some readers might be surprised therefore to learn that Canada – with a population less than one-tenth that of China’s and geographically about as far from Africa as one can get – has quietly grown to become one of the largest stakeholders in Africa’s mining sector – possibly the largest, depending on how you quantify it”

“According to these documents, in 2011 – the most recent year for which statistics are available – 155 Canadian companies were operating in 39 African countries. Their combined assets* totalled more than $30.8 billion, up from $26.5 billion in 2010.

“According to a December 2012 report drafted by the TSX, during the first nine months of 2012, 89% of all global mining equity financings were done on the TSX and TSX Venture (up one point from 2011). “

“There are approximately 315-20 listed [mining] companies that are not African but are doing business in Africa”, says Bruce Shapiro, president of Mine Africa, a Canada-based business and marketing company. “Of those, over 50% are Canadian. So in terms of the companies that we would normally look at, we certainly dominate that market.”

Posted in Bowker Associates, Canadian Mining Dominance Globally, Huncleberry Mine, Metallic Mining Risk Management, Mining Watch Canada, Mt. Polley, Red Chris Mine, Tailings Storage Facility Risk Management, WMAN | Tagged , , , , , , , , , , , , , , , , , , , , | Leave a comment


Background & Analysis: Total Volume Of Mt Polley TSF Failure Significantly Higher

RevIsed Estimate Puts Toxic Sediments at 60% of Total Spill Volume

Mt Polley was already the largest TSF failure in recorded history. (   Canadian press now reports that the release was not 14.8 million M3 but 24.8 million M3. The difference, significantly, is in the revised estimate of highly toxic sediments from an initial estimate of 4.6 million M3 to 14.8 million M3 (and the addition of  0.6 million M3  of construction waste). This represents a 300% initial under reporting/underestimating of sediment release. 

Whether it is significant or just a number remains to be seen but that also means that sediments were 60% of the total release not 29%.   Just intuitively that  seems to suggest the possibility that the pressures on the face of the  112’ man made wall and resulting breach originated in/ or through the sediment layer.

Likely Resuident Lawna Bourassa-Kuester With Sediment Cloudedaden Water From Quesnel Lake24hrs Vancouver

Resident Of Likely With Sediment Clouded Water From Quesnel Lake

Sediments were the major issue raised by Brian Olding Associates in its 2009 review for Imperial and First Nations of the permit application for annual discharge 1.4 million cubic meters of waste water per year. .  The TSF had been doing double duty as a temporary holding pond for mine and drainage waters, a common practice. The Olding Associates report concluded that the risk of contamination of receiving waters was too high without a “polishing pond” for sediments prior to discharge. “Sediment or associated contaminants could enter Hazeltine Creek unless there is an effective sedimentation pond between the Tailings Storage Facility (TSF) and Hazeltine Creek. (T)he sedimentation/polishing pond that is mentioned in the TA Report should be a condition of the discharge permit. “

Olding Associates  also found that the data presented in the discharge permit application tended to under assess and/or not accurately measure the risk to receiving waters and habitats of the requested 1.4 million M3 annual discharge.“Throughout the TA Report, predicted chemical concentrations in Hazeltine Creek are based on annual or monthly mean values of effluent discharge to Hazeltine Creek. This approach can mask the potential for short-lived high concentrations of potentially harmful chemicals to exceed water-quality guidelines and potentially be harmful to the aquatic life of Hazeltine Creek. To correct this in a precautionary way, maximum concentrations of chemical parameters such as Sulphate, Selenium, Copper and Cadmium need to be calculated for minimum ( emphasis added) flow rates in Hazeltine Creek”

The B.C. Government was slow to release raw data on sediments. Recently released, the  raw data , a combination of post failure grab  samples and averages from a sampling program of TSF sediments 2010-2014 shows that sediments which are presently laying in the immediate vicinity of the spill have a contaminant profile consistent with the  pre breach average profile of sediments within the TSF. Post failure grab samples reported in this raw data do not show those characteristics at other sample sites but do show some exceedances which could be pre-failure or could have resulted from operations and not be related to the failure.

Before the raw data was released, the provincial government had released this August 15th analysis of sediments and visual inspections.

“Quesnel Lake near mouth of Hazeltine Creek in water 1 and 2.5 m deep. The lake bottom appeared to be covered in tailings and no aquatic plants were visible”.

It is not clear whether the two grab sample columns labled “Outside Tailings Dam Breach” are this observed “dead zone” at Quesnel Lake. These two columns show exceedances  as follows as compared with the “Impoundment Average 2010-2014” and “Outside At the Breach” ( all measurements in ug/g dw)

                                                       Sample Sites   Inside AVG   At Breach.            

                                     Arsenic     12        12.4         12.32              11.7

                                     Copper   646      723            931                 918

                             Manganese   757       705           652                 525

                                  Selenium   1.2          1.1           1.04                 1.4

                                        Sulfur  3410     3320        ——–             2750 

                                Vanadium    161        162         180.54            145

No further studies or results on sediment impacts are listed at the provincial government website as completed or in progress.  No footnotes or commentary are offered on the consistent pattern of lower measurements  “At the breach” as compared with the two sample sites.

Unfortunately no geographic coordinates were provided with the raw data which would have facilitated spatial analysis. This Mount Polley Mine Corporation (MPMC) map of sample sites appears at the Ministry of Environment  (MOE) website but does not clearly correlate with the raw data on grab samples  released a few weeks ago  It does,however show the location of these MOPC sediment sampling results reported to MOE ,

“Environment Canada’s data on Imperial Metal’s mine tailings show mercury compounds, a neurotoxin that can cause degenerative disease, ramped up from 435 kilograms in 2012 to 3,114 kg last year – a seven-fold increase in one year.” (No exceedances of mercury are shown in the raw data either in the area immediately next to the breach or in any grab sample sites.)

Vanadium is not regarded as a serious (human) health hazard, is found in most soils and common in foods including olive oil, eggs, apples and soya beans . It does strongly bio accumulate in mussels and crabs causing inhibitions to certain enzymes.( )

Large metallic mineral deposits have natural releases of toxic metals which are established in background water quality studies pre-mining.  Different parts of a deposit can have a very different profile of metals and very varying levels of environmental risk. Mining operations and advanced explorations can create new pathways. Exceedances shown in the raw data need further explanation and analysis to assess what is attributable to the failure beyond what is immediately at the breach. 

The day after the failure, Brian Olding, the consultant to Imperial & First Nations on the 2009 re analysis of Imperials permit application to discharge 1.4 million M3 per year said “More water was coming in over the year than they could deal with…They just kept building the walls up higher and higher every year and it got to the point where that was untenable.”

Olding & Associates had also urged a structural reassessment which Imperial did not agree to. “I requested a structural engineering company be involved, and that was nixed. They did not want to deal with that problem at that time.”( op.cit

Today (September9) a non compliance directive on continued unauthorized discharges was issued to Imperial/Mt.Polley

At an inspection on Sep 4 it was discovered that Mont Polley Mining Corporation (MPMC) was discharging effluent into Hazeltine Creek.Order 107461 directed the installation of passive and or active sediment control systems designed to a 1 in 10 year 24 hr rainfall event.

Interflow & Salmon Spawning Impacts

Scientist Carl Walters is keeping a close eye on the “interflow” which has suspended the sediments released in TSF failure in a layer under the top warm layer of water and above the deeper cold waters.

This situation, Walters said, can worsen for the coming sockeye run given three possible conditions:

  1. It is common for a strong west wind to blow through the area for a day or two every few weeks this time of year, and if this happens the warm surface water will be pushed east away from the lake outlet where it can be carried out of the system, and the polluted water may surface and run downstream past Likely.
  2. Samples of the polluted water have shown that it has copper levels that are “close” to levels that can impair the salmon’s directional sense of smell, which the sockeye may need to move up Quesnel Lake and find their primary spawning areas in the Horsefly and Mitchell Rivers. As they move into the lake, they may seek deeper, cooler water and so will encounter the polluted, colder, dense water of the interflow layer cake. “This is especially worrisome for the Mitchell River fish that need to make a left turn about 20 km up the lake into the lake’s north arm and travel 60 km up that arm,” he said.
  3. About 20 km up the lake from the outlet, there is a shallow area called a sill, across which the lake water usually flows westward. That flow concentrates small plankton that feeds young salmon, but the polluted water has spread eastward enough to reach the sill, which could affect both the young fish and its food supply.

“I still don’t think it will be a serious problem, but I just can’t say for sure,” said Walters. “But at this point all we can do is to keep our fingers crossed that the polluted layer will be diluted enough by the time the main body of fish arrives so as not to be a major problem for them.”

Posted in Adjacency Impacts, Mt. Polley Sediments, Tailings Storage Facility Failures | Tagged , , , , , | Leave a comment

Historic Rejecton Of Maine DEP’s Extraction Industry Oriented Rules Part of National Push For Responsible

Maine joins Minnesota and Alaska in pushing back against the idea that mining is such a valuable and essential economic endeavor that it warrants lower levels of protection for natural resources than apply to other industries.

LD1772 rejected the rules promulgated by both DEP and LUPC .  LD1851 delays implementation of Maine’s mining statute itself for two years, from Jun 2014 to June 2016.  Essentially it holds the pre mining statute status quo for both statute and regulations.

For all its flaws the hastily constructed mining statute (P.L. 2011 c.653) did include several key “responsible mining” provisions which were avoided and ignored in DEP’s draft rules in favor of extraction industry regulatory and legislative agendas which have also advanced controversial mining projects in Alaska and  Minnesota. “Responsible mining” requires that an applicant provide independently verified evidence that its mine and closure plan can adequately control all contamination and attain a naturally self sustaining closure and a post mining viable landuse compatible with adjacent designated uses.

Both legislators and environmental groups immediately red flagged the DEP rules as grossly deficient even before DEP transmitted them to BEP for consideration in early September.

DEP’s rules went against  the statutes mandates for proven contaminant control technology, for adequate protections against offsite releases of contaminants to ground and surface waters, for adequate protections for wildlife habitats, and for restoration of the site at closure to its natural pre-mining state .

The rules were also in obvious conflict with Maine’s  Title 12 protections for highly valued park and conversation lands, including Land for Maine’s Future and lands deeded for conservation. Title 12 establishes no “buffer zones” from activities inconsistent with the protections extended and Maine’s mining rules failed to establish adequate buffers despite the statutes clearl mandate and expectation of a mining specific protective standard

In general the rules insistently and with determination avoided, and were inconsistent with,  the universally regarded “best practices”, “best science” guidance of GARD Guide & MEND a long term mining industry & science and technology  collaboration aimed at prevention and control of acid mine drainage and toxic metals leaching.  In particular DEP’s insistence on, and vigorous defense of, “wet mine waste units” was based on specific extraction industry  “guidance” on bioreactors, a technology that has no demonstrated field success as a permanent closure methodology for sites like Bald Mountain where mine waters and tailings will have extraordinarily high levels of arsenic .


In the statute, 490-QQ 1. “performance standards” provides that

“If the applicant proposes a control device or measure, it must demonstrate that there is reasonable assurance that the device or measure will achieve the performance standard.”

In defiance or avoidance of that very clear mandate , DEP’s rules were written with a specific and determined aim to allow unproven new technologies. This was especially at issue in DEP’s vigorous and contorted defense of its controversial “wet mine waste units” language that specifically contravenes universally recognized best practice guidance in GARD Guide and MEND. The specific defense given by DEP Mining Team member David Burns was directly based on and influenced by an extraction industry promoted guidance paper on bioremediation, a technology as yet undemonstrated in the field and without promise for management of arsenic leachates or materials with a very high acid generation potential.  Current best practice guidance at sites like Bald Mountain contra indicates long term wet cover for arsenic contaminated  mine waters.

On January 10th, David Burns of DEPs “mining Policy Team” provided false and misleading testimony in response to concerns raised by both Sue Lessard and by BEP Executive Analyst Cynthia Bertocci that all wet closures involved uncertainty as to attainment of neutral water quality and that all involved some level of active treatment for an indefinite period. (Efficacy of wet cover can be assessed in advance at Bald Mountain was rejected by applicant Black Hawk as effective even for the very small open pit gold and silver extraction that didn’t involve the actual sulfide deposit itself) He falsely advised that to require “Passive treatment only” precluded the use of all wet cover closures.

The statute provides that “Both the mining area and the affected area must be reclaimed with the goal that the affected area be returned to the ecological conditions that approximate pre-mining conditions to the extent feasible and practicable and considering any changes caused by non-mining activities or other natural events” A bio reactor or water pollution control plant would leave a distinctly “industrial” profile landscape in place into perpetuity. certainly a questionable interpretation of “natural pre mining the extent feasible and practicable”

In taking this very significant action Maine’s Legislature joins a growing trend of awareness of, and commitment to, “Responsible Mining”.

. The limiting and more challenging issue is available technology for a permanently, perpetually self sustaining closures. Mine waters requiring active treatment at closure will most likely require active treatment forever and most likely at the public expense ( What financial instrument  or institution can provide adequate funding for operation and maintenance of a water pollution control plant for 1,000 years or more?)

In Alaska the Pebble Mine, which would be the largest copper mine in the world with a 100 year operating lifetime and  in which $500 million was invested in explorations and lobbying , has suffered likely fatal set backs  due to irresolveable environmental impacts. Northern Dynasty has lost its two major investors/partners, and Pebble stock has been driven down to under  $1 per share.   Tiffany’s  had announced before the withdrawal of a major partner that it would not source from the Pebble.

”  more than 175 years of experience sourcing precious metals tells us that there are certain places where mining cannot be done without forever destroying landscapes, wildlife and communities. We believe Bristol Bay is one such place. Tiffany & Co. was one of the first jewelers to sign the Bristol Bay Protection Pledge, and declare that should the proposed Pebble Mine be developed, we will not source gold from it”
Rio Tinto walked away on April 7th without even bothering to sell its shares
“Rio Tinto’s decision to walk away from the project without finding a buyer for its interest is the latest major blow to the project.  In 2011, Mitsubishi Corporation sold its interest, and in 2013, Anglo American withdrew from its 50 percent partnership in the project, leaving small Canadian mining company Northern Dynasty Minerals the 100 percent owner of the embattled project.
Minnesota’s Northmet recently received a not very encouraging EPA EC-2 ( environmental concerns which require further information to resolve).  Although touted by Polymet as an “upgrade in their rating” ( from EU1, an unsatisfactory indicating the project should should not proceed) it is hardly a “good to go”. Northmet, like our own Bald Mountain, was proposed by a limited liability company with no mining operations experience of any kind.  Northmet was also premised on the use of unproven closure technologies and untried scale of existing slurry wall technology.
At both the Pebble and Northmet the fidelity of a well informed grass roots, native people’s coalition  brought an informed independent scientific best practices analysis to bear against the false , misleading, and unsupported claims of would be mine developers.
As with our own engagement here in Maine the technical assistance and guidance of Dr. David Chambers ( and other scientific experts dedicated to informing grass roots stakeholders was a key factor. Dr. Robert Moran, Jim Kuipers, Anne Maest are among the many other leading scientists arming stakeholders with independent expert scientific analysis of environmental risks inherent in specific potential  mine sites.  Other scientists like Houston Kempton and Dr. Andy MacG. Robinson have addressed policy in constructive ways although primarily serving the mining industry, rather than the public sector.
Commissioned through and directed by Bowker Associates Dr. Chambers produced two major technical reports  with a specific bearing on DEP’s draft rules.  Both reports are technical advances in framing public policy founded on “Responsible Mining” standards and practices.   The most recent of these reports, an expert reassessment of envionmental risks of mining Bald Mountain was transmitted to Maine’s Joint Standing Committee on Environment and Natural Resources in advance of the first legislative work session on the rules.  An earlier report offering a technical “Go No Go” framework for responsible mining was transmitted to BEP via DEP & Executive Analyst Cynthia Bertocci in advance of the BEP’s January 3rd meeting.  Chairman Foley, according to Ms. Bertocci,  did not allow  BEP members  to see the report because it was not submitted during a pubic comment period.  Both reports were widely distributed to official “interested parties”,  and to stakeholders and legislators.
Maine’s historic rejection of the rules and the two year delay on implementation of the mining statute is a direct result of this and other excellent scientifically informed grass roots testimony offered by ordinary citizens who committed their professional expertise and skills over a sustained period to informing Maine’s mining policy.
Legislators , advocates  and stakeholders in Maine are not “starting from ground zero”.
All are starting from two years of faithful and diligent collaborative discernment on the modern science and technological realities of sulfide mining and how to express that in policy that speaks the values that bind us together as Mainers.
The resources most centrally at issue, the State’s ground and surface waters, and under federal law, the state’s “navigable waters” are owned in common by all the people.  They are not  privately owned or controlled unless it can be shown there is no hydrologic  connection with “waters of the state”.  So even where law and policy fail in expressing clear standards,  informed stakeholders expect protection and remedies in policy. Stakeholder unrest translates to political risk which translates in turn to investment jitters.
In Maine,  there is a 100% certainty that the rules that come before the legislature in February 2016 will be a full and well informed expression of “Responsible Mining” and that the statute itself may be considerably strengthened  or completley replaced over the next two years.
The first example of that has already been accomplished with enactment  of LD1671 which forbids the use of motorized metal dredging in certain designated key fish breeding habitats.  The mining rules just rejected by the legisature specifically allowed motorized dredging without limitation

“1.B. Removal of ore from great ponds, rivers, brooks and streams, and coastal wetlands as defined in 38 M.R.S. § 480-B, except that gold panning and recreational motorized gold prospecting are permitted pursuant to 38 M.R.S. §§ 480-Q(5) and 480-Q(5-A) and are exempt from the requirements of this Chapter “

LD 1671 became law with bi- partisan support and multi stakeholder collaboration lead by Jeff Reardon of Trout Unlimited  and supported by Maine Audubon .  The Act sustained a veto by Governor Paul LePage.

Other such natural resource specific changes in statute will be made over the next two years which will directly affect the new  rules and most likely prompt reworking of the mining staute itself to better clarify that mining owes the same level of envionmntal proection to the states waters as any other activity, that mining doesn’t have its own separate and lower standards of natural resources protections.
It is very unlikely that our extensive and exceptionally well informed stakeholder group on mining will simply wait to see what DEP does next or wait for someone to officially convene a stakeholder group to reframe Maine’s mining policy.  A well informed and deeply committed grassroots stakeholder group  is already formed and will continue the work that is needed to frame a responsible mining framework for Maine.
Maine’s historic action at the same time as scientifically empowered grass roots efforts in Alasaka and Wisconsin have scored gains for “responsible Mining” signal a change of tide. It will no longer be possible for industry lobbyists, no matter how much money they have behind them, to peddle false information in support of their extraction based endeavors.  They will have to become collaborators and partners in discerning environmental feasibility site by site in accordance with the best science and the best practices available.
Maine’s Governor, Paul Le Page, will most likely veto both bills. That will still leave the 1991 rules in effect per the terms of the mining statute.  The veto of LD1772 cannot enact the rules rejected by the legislature.  Also,since the legislature has “taken action” under the applicable legal definition,   DEP does not have authority under MAPA, Maine Administrative Procedure Law  ( PL 2011 c.244) to enact the rules.  The veto of LD1851 would, however, allow  those provisions of the mining statute which remove mining from all other applicable environmental law to go into effect in June of 2014.   It is these provisions of environmental law, that Boliden and Black Hawk, both also clients of Pierce Atwood,  were unable to resolve and these are the provisions of law most eagerly sought by Pierce Atwood on behalf of current client JD Irving in drafting the 2011 mining statute.
It is not clear what remedy is available should the Governor’s expected veto of LD1851 not be overridden by the legislature.
Nontheless, Maine’s two year discernment on metallic mining is now well informed and moving clearly in the direction of responsible mining