A collapsed wall of a reservoir holding a highly acidic wastewater is seen in Mishor Rotem, in Southern Israel July 4, 2017. REUTERS/Baz Ratner




“Toxic wastewater that surged through a dry riverbed in southern Israel at the weekend left a wake of ecological destruction more than 20 km (12 miles) long.

“The flood began last Friday when the 60 meter (yard) high wall of a reservoir at a phosphate factory partially collapsed, letting loose 100,000 cubic meters (26.4 million gallons) of highly acidic wastewater in the Ashalim riverbed. One section of the Ashalim riverbed is made up of narrow canyons, popular for hiking, but no one was around when the wastewater first gushed through”


“Israel’s Ministry of Environment has opened a criminal investigation into the plant’s owner, Rotem Amfert, and its parent company Israel Chemicals (ICL), a leading potash and fertilizer producer with exclusive rights in Israel to mine the Dead Sea.

“All the plants and animals in the valley during the tsunami of acid were probably highly damaged, probably dead,” said Oded Netzer, an ecologist for the ministry. “In the long term, there will be soil damage and large functional ecological problems.”

He said weeks of intense clean-up work, including pumping out small pools of the wastewater that remain along the path, lay ahead, and complete rehabilitation would likely take years.

ICL has stopped using the series of reservoirs where the breech occurred. They contained a production by-product called phosphogypsum water.

The company declined to answer questions on the criminal investigation or about the impact the incident will have on its operations.

Shares in ICL fell almost 4 percent after the spill but partially recovered to trade 1.3 percent higher on Tuesday.

In a statement, Rotem Amfert said it was working “around the clock” in full coordination with authorities, and it would spare no resources to clean up the riverbed.” Ari Rabinovitch for Reuters, July 5th http://www.reuters.com/news/archive/environmentNews

“Israel Chemicals first identified the spill at 11:45 a.m. on Friday (June 30, 2017), after workers found a hole in the eastern embankment of the Rotem Afert plaster pools, which allowed “plaster water” to leak into both pool #4 at the factory and part of Nahal Ashalim, the company said. Plant workers arrived quickly and stopped operations of the relevant facility and the sewage flow, the statement added.

“On Saturday afternoon, the INPA said its teams were scanning areas along a 20-km. strip from the Mishor Rotem area to the Ashalim reservoir, which included numerous basins created by “the tremendous sewage flow.” The flow was so strong at times that water levels reached as high as 4 meters in some of the channels, the authority reported.

“At the same time, inspectors were working to keep animals away from the water and prevent the entry of hikers, because the conditions could be very dangerous to them, the INPA warned. As of late afternoon, the authority said there was still considerable sewage flow in many of the streambed’s channels, as well as a large amount of foam and sludge forming in the very wide opening of the channel.

icl6302017israel3Meanwhile, the Environmental Protection Ministry said it had ordered the Rotem Afert factory to cease pumping wastewater into its pools until the ministry is convinced that such an event would not reoccur.

“We estimate that we will complete the samples and measures in the field by the end of the day, and then we will be able to complete the mapping and estimate the initial damage in order to examine and plan with the rest of the authorities how to continue to handle the area from this point on,” Gilad Gabbai, director of the INPA’s southern region, said on Saturday.

“It is important to emphasize to travelers that they should not come to the area until further notice, because it could be very dangerous for them. We estimate that the rehabilitation in the field will take at least a few weeks.” Jersusalem Post   Read more: http://www.digitaljournal.com/news/environment/tsunami-of-toxic-wastewater-inundates-israel-desert-over-weekend/article/496912#ixzz4m5qUa6On


Here is a description of the process and some of the difficulties managing “plaster pools” as they are often called during operations and how difficult they are to close. A ton of tailings is create for every ton of phosphate produced.


“If one of the operating plants is shut down and it is necessary to close the phosphogypsum stack and pond water system, the water in inventory must be treated before it can be discharged. The volume of water that would need to be treated could be as much as 2 to 3 billion gallons. The process water has a low pH of about 1 to 2 and contains a dilute mixture of phosphoric, sulfuric, and fluosilicic acids. It is saturated with calcium sulfate and contains numerous other ions found in the phosphate rock used as a raw material, as well as ammonia from the solid fertilizer manufacturing process.


A Re Examination of How We Provide Phosphates For Fertilizers


Israel Has Lower Grades & Higher Costs Than Other Phosphate Producing Nations


ICL Has Implemented a Filter Press Back Fill System At Its Boulby Mine In Cleveland UK


Andrew Fourie’s latest paper is on the use of Potash tailings for backfill but we have not had an opportunity to read it.  Due to cost, Boulby did not use any other fillers.  A recent study presented at Marrakesh 2011 concluded that Portland cement was an essential component to the successful long term performance of potash based backfill.

Deposition of phosphate slurry into the sea was common practice until the use of the tailings impoundments .

In the U.S. the western states use underground extraction where backfill might work but in the eastern U.S. most extraction has been by open pit.

There Are Alternatives to Semi Liquid Deposition of Phosphate  Tailings




Phosphate Tailings Have a Higher Severity Profile Than Metals Floatation Tailings

The ostensible goal of all slurry deposition of tailings is a dry stack within the impoundment that is stable, non permeable and without seepages. Metal slurries are 68% solid, however, phosphate slurries are only about 3% solid at deposition and never attain a dry state with its own internal structural integrity. As compared with most metal slurries from concentrators, phosphate slurries are characteristically more toxic.

Classified as “Serious” per Bowker Chambers severity classifications based on the described “100,000 M3” release . Images and descriptions suggest a much larger total releases volume. By the Rico-Benito formula the estimate is in the range 700,000 to 1 million m3 for a 60 meter high dam with a 20km runout.


Timeline  Details on Criminal Investigation Of  Rotem Afert


This link includes video of the release as it occurred and images of the scoured river bed.

The MoEP has launched a criminal investigation against managers from Rotem Amfert and its parent company, Israel Chemicals Ltd. This after a hearing was held at the MoEP’s Southern District office, headed by Baruch Weber.

The Ministry’s Green Police will lead the probe, which will include series of investigative actions against corporate officers.

During the hearing, ways in which the Rotem Fertilizers plant could refrain from activities that could cause additional environmental damage were examined. It should be noted that the MoEP ordered the immediate discontinuance of the use of evaporation ponds 1 to 3, where the collapse occurred. The MoEP has ordered the use of a temporary pond until it is satisfied that the factory’s operations will not create additional environmental hazards.”





Will add more information on history & severity of phosphate tailings failures in history and add correct photo credits for the two additional photos above. Will also post here new information as it develops including on the criminal investigation of ICL subsidiary Rotem Afert for  this failure.





Posted in ICL Waste Dam Failure, Mishor Rotem Israel, Phosphate Tailings Failures, Rotem Afert Crminal Investigation, Rotem Amfert Nedev, Rotem Arfert, Uncategorized | Leave a comment


In the shadow of the “supercycle”,[1] and propelled by its dysfunctional economic dynamics, risk and public liability from mine tailings storage facility (TSF) failures have reached all-time highs. The annual failure rate for significant TSF events has escalated from a 50-year average of 0.56 “Very Serious“[2] TSF failures per year (33/50) to 1.0 (10/10) for the period of price run up 2000-2010 as described by the HHWI (Rossen, Anja 2015), a 78% increase. In this period, copper prices steadily climbed reaching an all-time post war3 high of $9411 per ton ($2015) in 2011 as compared to the prior 50 year average price of $5133. These facts challenge the widely held notion that failures are mainly shaped by falling prices. They point to more fundamental and still not fully examined or understood root causes of TSF failures.


What is apparent in the forensic record is that the increasing severity and frequency of high consequence failures reflects in part an aging infrastructure at depleted mines which are no longer economically viable even at record high prices. There are also indications that many were never viable and were just abetted into existence through venture capital on loosely regulated exchanges or advanced on faulty feasibility studies.

What seems apparent and even widely understood within the industry, though not yet widely acknowledged, is that we have reached the outer limit of the mining industry’s long standing metric that ever lower grades of ores can be mined through “economies of scale”. A close examination of the data seems to show that the “mining metric”[3] stopped working sometime in the mid 90’s. It is from this turning point in the efficacy of the mining metric that conditions which evolve to catastrophic failure began forming, incubating and progressing. During the supercycle as prices climbed to all-time post war highs, grades, even at major producing large mines, dropped to all-time lows. Meanwhile mines still premised on this economies of scale model continue to be put forward with unverifiable claims of economic viability, or with a reasonable expectation of full compliance with external environmental and other community protective standards.

The data increasingly dictate that we need a completely new approach to navigate this new era of mining. We need action to identify and correct already accrued public liability the end of this era has left behind in standing operating TSFs. This can only be accomplished through the application of comprehensive law and policy addressed to these two imperatives. The fragmented legal frameworks for mining in most prevalent use today globally have conclusively demonstrated their failure to adequately protect the public interest. Post Mt. Polley, and now post Fundão, none of the much publicized government and industry studies and reforms announced address the key root causes of high severity high consequence tailings failures or commit to any changes in law and policy that will be effective in preventing the man made losses in existing, not yet closed marginal mines.

This is the introduction for our soon to be released new research on how the longest and biggest price rise in recorded history created the biggest elevation ever in portfolio risk , not just on the public liability side as measured in trends of TSF failures but on the investment side as well.

Here are a few of the highlights of the dysfunctional and damaging economics of the supercycle.


The Co-Entanglement of Supercycle Economics & TSF Failures


It is irrefutable that the frequency and consequence of Very Serious Failures and of “Serious”[4] Failures is continuing to increase at alarming rates, that the trend emerged and grew post 1990 and that it is in large part a consequence of conscious decisions made at the mine-level to make up for fundamental mine and miner specific economic disadvantages viz global economics. Short cuts on waste management, especially of tailings management, were and are a fast, easy, under the radar way to try to meet the high production volumes and low cash costs investors insist on (Bowker & Chambers 2015, Bowker & Chambers 2016).


The dysfunctional, reactive economics of the supercycle are expertly analyzed and well characterized by Deloitte in their 2014 market trend analysis.In their relentless pursuit of growth in response to pressure from investors and analysts, companies developed massive project pipelines. Some also developed marginal mines, hoping commodity prices would buoy poor project economics. In their headlong pursuit of volume, many mining companies abandoned their focus on business fundamentals. They compromised capital allocation decision making in the belief that strong commodity prices would compensate for weak business practices. Rather than maintaining a long-term view of the market, many acted opportunistically.”(Deloitte 2014).

Price Waterhouse Coopers, looking at the performance of the top 40 over the supercycle, note that much of the massive commitment of capital to expansion and production at any cost ended up as impairment write offs: “… from 2010-2015, the top 40 have impaired the equivalent of a staggering 32% of the capex incurred”. They note that $36 billion, or 68 % of the total impairments, were taken by Glencore, Freeport Vale and Anglo American and that “2015 saw the first widescale mothballing of marginal projects”. The top 40 took a collective net loss of $27 billion and investors punished them for “squandering the benefits of boom” and for “poor capital management and investment decisions“. (PWC 2016).

It is in this dysfunctional “maximum production at any cost” dynamic of the supercycle that we see a dramatic upturn in the frequency and severity of failures, and in which there is with very little doubt a higher global portfolio risk of accrued and unexamined public liability. Changes in waste rock to metals ratios for gold suggest the possibility of a more than 100% increase in the level of potential unexamined risk (SRS Rocco 2016).

The amount of capital just wasted during the supercycle would have gone a very very long way to correcting everything that needs correcting in all the pollution generating waste piles in all the mines in the world.  Instead it just became investor losses and unfunded mine catastrophe’s .
To achieve stability and a lower public liability profile the system does need to be cleansed of the 30% to 50% of mines that are no longer viable.  That is in the public interest.  That is a necessity for the mining industry.
To protect the public and communities in the sacrifice zone of potential catastrophe’s that cleansing has to be planned and orderly. The permitting jurisdictions who abetted these mines into existence need to share some of the financial risk and responsibility for this essential cleansing.  It cant just be a big shuffle of public risk to less and less competent, less and less well financed  or less reputable mine operators.


[1] Supercycle refers to a multi-year period of sustained price increases in commodities and raw materials.

[2] We define “Very Serious” TSF failures as those involving a release of 1 million cubic meters or more

3 The all-time annual average high since 1896 was 1916 at $13,572 ($2015) followed by 1917 at $11,876

[3] The “mining metric” is higher mine production necessitated by lower grades of ore, a century of declining prices offset by declining costs per ton. The metric is to continuously develop the resource through economies of scale, larger and deeper footprints, more efficient operations, bigger and better bulk mining technology.

[4] We define “Serious” TSF failures as those with a release of greater than 100,000 m3, but less than 1 million m3.



Posted in Analysis TSF Failures, Measuring Magnitude of Consequence TSF Failures, mineral economics, Resources Policy, TSF Failures, TSF Failures Consequence, Uncategorized | Leave a comment

Root Causes of Tailings Dam Overtopping: The Economics of Risk & Consequence

Root Causes of Tailings Dam Overtopping: The Economics of Risk & Consequence

Lindsay Newland Bowker1 and David M. Chambers2

1Bowker Associates Science & Research in the Public Interest 15 Cove Meadow Rd Stonington, Maine 04681 USA lindsaynewlandbowker@gmail.com

2Center for Science in Public Participation 224 N. Church Ave. Bozeman, Montana 59715 USA Email: dchambers@csp2.org


This paper examines overtopping failures of embankments at tailings impoundments from 1915-2015 and compares the severity of consequence for overtopping failures to that of other causes of failure. We find that the distribution by severity of consequence for overtopping at active mines is not significantly different from any of the other established “causes of failure.” Further we find that the distribution by severity within and across all active TSF recorded failure causes (N=125) is also reflected in the mean distribution of severity for all of our recorded TSF failures (N=267) suggesting that a common root cause, rather than the individual causes of failure, may determine the severity of failure. We look here at the demonstrated link between severity of consequence of failure and the economic dynamics of the “Mining Metric” over 100 years (Bowker and Chambers 2015) as it applies to overtopping. We offer what is available from authoritative sources on the economics backstory of known overtopping failures and crises. We conclude that the deviations from best available technology and best applicable practices at the mine level are conscious choices driven by economics and that without a reframing of the professional, regulatory, and legal frameworks for mining these choices will continue to be made even where proven technology and new promising technology are available and better suited to a given mining asset. Solutions that will prevent mine failure require not only the work of evolving consensus on best available technology/best applicable practices, but also the recognition of root causes which build to catastrophic failure. A complete solution cannot be attained without accountability to best knowledge, best practice, best effective technology in mining law and regulation, as permit standards, as standards for oversight for life-of-mine and of life-of-tailings storage facilities.

rootcauses fig1


The BC Ministry of Energy and Mines, like most regulatory agencies, allows the dual use of the facility for storage of water. In May, 2014, prior to the dam failure, there had been an overtopping of the dam, but quick action by mine personnel prevented failure of the dam (Mt Polley Expert Panel 2015). Overtopping at Mt Polley could also have led to a dam failure, with similar damage as eventually occurred in the foundation failure in August in 2014.


Throughout Canada and all over the world new mines and new dams are approved within regulatory and legal structures that do not hold miners to best available technology and best applicable practices.  Until this changes, it is clear that the industry will not consistently choose best available technology and best applicable practices unless required to do so. Geoffrey Blight emphasizes this in his authoritative and informed re-visitation of several notorious failures, among his very last works and summing a life time of excellence and insight on design and management of tailings storage facilities (Blight 2010).


rootcauses tab1.png


  • Economic Root Causes of Well Known Overtopping Failures: Grade as a Key Root Determinant


The fundamentals of how this plays at the mine level is simply and succinctly expressed by Andrey Dashkov, Senior Analyst, Casey Research: “As a project moves to the development stage, the higher the grade, the more robust the projected economics of a project. And for a mine in production, the higher the grade, the more technical sins and price fluctuations it can survive.” (Dashkov 2013). Continuing in this analysis Dashkov goes on to declare that volume and throughput (the Scholz foundation for profitability of low grade mines) is “no longer king,” and that grade is “now king” in determining which mines will be successful and which will fail. This was essentially validated by Bowker and Chambers (2015) as the context and main driver of the emerging prevalence of catastrophic failure. This applies equally to failure by any of the 8 causes of failure, including overtopping.


Dashkov’s analysis that a grade advantage is a critical determinant of ability to survive serious technical flubs and dramatic unpredictable price fluctuations, a norm for all metals, means that smaller, lower grade mines will suffer more and have more physical manifestations of their economic stress than larger, higher grade mines. Very simply, smaller, lower grade mines operated by junior and midsize miners have no cushion. They have to ride too close to the edge of financial viability viz. global metals markets and major producers to stay in production. They also have less access to high quality capital markets, paying more and operating under more onerous terms of credit than the top producers at higher grade mines, a factor that George Ireland has frequently cited as creating financial instability and uncertainty when the due dates of credit don’t match up with cash flows needs, expected revenue generation, and production capacities of the mine. This mismatch can actually lead to failure or involuntary investor takeover elevating uncertainty and instability (Sylvester 2012).


In gold, as a respected analyst Mark Fellows explains, a 10% fall in global average ore grade gives rise to a $50/oz rise in average global production costs (Fellows 2010). At the mine level, a difference between a gold mine with 1.72g/t and 2.2 g/t translates to a likely cost difference of $100/oz in total production costs. These are the actual differences at the Gold Ridge mine, Guadalcanal, in 2009. This mine never achieved profitability, not because of political unrest, but because the low quality of the deposit compared to the quality of ores shaping world markets. Gold Ridge, with a 20 million cubic meter capacity tailings storage facility with a long history of many owners, frequent interruptions, and continually falling recovery rates (another emerging consequence of mining very low grade ores), under ownership of landowners with no technical competence, has hovered on the brink of complete failure by overtopping for two years. Blight and Fourie (2004), George Ireland (Sylvester 2012) and Irwin Wislesky (Moore 2016), among others, all cite technical competence, technical mistakes, and caliber of mine operators as an unexamined and significant back drop to mine failures.



As we see most stunningly at Samarco’s largest failure ever in recorded history, without clear standards in law and regulation viz. best available technology and best applicable practices, and adequate competent independent life of facility oversight, efforts to attain profitability will continue to lead to choices at the mine level that can eventually lead to catastrophic loss. As we see at Mt Polley, that eventual catastrophe could emerge as any one of several causes of loss. Mt Polley could have been an overtopping failure of the same magnitude as the foundation failure. Samarco’s Fundao dam, it is important to note, was only put in service in 2009, had an Independent Tailings Review Board, and highly regarded expert advisers. In British Columbia, Imperial Metals was found not to be in violation of any law and regulation, even though its economically driven deviations from best available technology and best applicable practices culminated one as one of the 10 largest failures ever in recorded history. Similar economic forces and economically driven decision making that maximize throughput have shaped the wrong choices that have led to very serious failures throughout recorded history.


… a better understanding of causes of loss establishes a basis for intervention in time to prevent tailings dam failures. If we can recognize the early warning signs that could evolve to catastrophic loss, we will be able to address actions and changes to prevent that ultimate manifestation.

We can expect future losses to routinely exceed the severity of Mt. Polley. With so many very large upstream tailings dams in use and continuing to be authorized, we can also expect others to fail at the scale of Samarco, a very small impoundment compared to others standing ,in operation ( and planned).

 In this paper we are suggesting that best available technology and best applicable practices must be partnered with reforms in law and regulation, and an awareness of the role of economics.to build solutions that will save investors, communities, and natural resources from the un fundable damages of catastrophic failure at super-sized tailings storage facilities. If permits continue to be given to mines that are not economically competitive in the present and emerging global markets, even with apparent or agreed compliance with best available technology and best applicable practices, there will be economic pressure on mine operators to bend the rules.




Keywords: overtopping failures, embankments, tailings impoundments, severity of consequence of failure , resource policy, mineral economics



Full text of paper :

Protections 2016 2nd International Seminar on  Dam Protection Against Overtopping ISBN: 978-1-1889143-27-9



Posted in Analysis TSF Failures, Bowker Associates Science & Research In The Public Interest, Canadian Mine Risk & Loss Profile, Catatrophic Tailings Dam Failures, Causes Of Catastrophic Tailings Dam Failures, Center For Science In Public Participation, CSP2, CU Average Grade 1910 2010, CU Average Ore Production 1910 2010, CUCosts of Production 1910 2010, David M. Chambers, financial risk and public liability, mineral economics, resource policy, Uncategorized | Leave a comment


Beyond “proximate cause”, the focus of most dam committee reports,  are the root economic causes of most catastrophic failures.  Imperial Metals had two principle mines, Huckleberry and Mt Polley that never achieved profitability and were developed and run on “shoe string” economics from the outset.

Writing in the cover to the 2000 Imperial Metals annual report , then CEO and Chair Murray Edwards ;”

“While both mines have been a technical success, they have yet to generate the financial returns that were expected when they were given the go ahead for construction in 1996, on the assumption that long term metal prices would be US$1/lb for copper and US$380/oz for gold.”

In 1996 the global average cu grade was .79 ( 1.26 weighted average grade) while grade at Mt Polley was .35.   The CU Equivalent for Mt Polley taking into account other metals mined and processed was only 0.5 as compared with a Cu Equivalent of 300 copper mines over roughly this same period of over 2.0(Per Aguirregabiria & Luengo 2016).  (http://isites.harvard.edu/fs/docs/icb.topic1465230.files/copper_mining_victor_27112014.pdf)

 (The Aguirregabiria & Luengo is the first research we have seen taking full account of the role of  metals  other than copper in production volumes at copper mines.  In their sample of 300 copper mines representing 85% of copper production globally, other metals accounted for abut 25% of equivalent cu production volume  and value.  Mt Polley, with both a very substandard primary ( CU) grade also had a very limited added value in other metals.  Their profile of the 300 by “realized grade” (ie Cu equivalent) puts Mt Polley at about  the 25%percentile whereas  even any mine below a 50% percentile level would be marginal and struggling to stay alive and in production)


The 2000 annual report acknowledged  falling grades and its spiraling economic impacts on overall performance and profitability: 


 “The average grade of both copper and gold mined during the year was down from 1999 levels resulting in lower metal production. In 2000, 34.2 million pounds of copper and 83,194 ounces of gold were produced, compared to 37.1 million pounds of copper and 99,585 ounces of gold in 1999.  Improved copper prices and a weaker Canadian dollar were not sufficient to offset lower metal production in 2000. Operating revenues were $94.4 million and operating loss was $9.6 million compared to operating  revenues of $98.1 million and operating loss of $2.4 million in 1999”.


The NI43101 prepared for the re-opening in 2005 after 4 years in stand-by ( 2001-2005) was  by in house geologists based on a limited drilling program which had indicated a potential higher grade zone prior to standby.  The re-enrty involved no re examination or independent expert review of economic feasibility.  Stated expectations were never achieved.


Meanwhwile things got worse at Huckleberry also as a result of falling/inadequate grades according the 2007 annual report:

“Mill feed at Huckleberry is now sourced exclusively from the Main Zone Extension pit. This pit will extend mine life to the year 2010 but annual production will be reduced as the copper grade there is approximately 0.35% compared to historic grades of nearly 0.5%.”


The chart above is for the re-opening period pre-failure, 2005-2013. Recovery rates were low and uneven averaging 0.71.  Expected grades were no better than the pre standby brief operating period 1997-2001.


Life of mine to failure, the “Very Serious” failure rate for Mt Polley is .011 per million tonnes of ore to the mill vs .0004 globally, that is 27 times higher than the global failure performance..


Operations at both Huckleberry and Sterling, Imperials in situ leaching project in the States, have ceased further impairing Imperials frail and declining economic condition.


In 2014 BC MOM approved Mt Milligan a very low grade deposit in the same area and having the same profile. It has a CU EQ of only 0.45, even lower than the Mt Polley re-opening period 2005-2013. It uses outmoded slurry deposition in its centerline TSF designed by Knight Piesold


Red Chirs, Imperials only other operating mine is operating with a water cover on tailings completely contrary to the stern and precise warning of the Mt Polley expert panel that stability concerns trump ARD generation in the sense that a method used to suppress ARD generation is not acceptable if it undermines stability of the structure containing the ARD generating materials.

Although the Mt Polley expert panel did address the specific importance of proven economic feasibility, QPO ( Quantitative Performance Objectives) and the need for checks and balances and standards/limitations on the invocation of “the Observational Method” ( responses in the field to changing or unexpected conditions) no part of this has been addressed discussed or responded to as reform of the regulatory framework in British Columbia, elsewhere in Canada or anywhere else..


Bowker Associates has long and repeatedly called for a financial audit of all still permitted and active ( i.e.not safely and permanently closed) mines . BC and other mining jurisdictions need to examine accept responsibility for accruing public liability risk, possible  already formed failure conditions under the control of miners who can barely manage to stay in production at all and have never attained profitable operations.


This report sourced all data on Mt Polley entirely from Imperial Metals annual reports and from its NI43 101.


Lindsay Newland Bower, CPCU,ARM, Environmental Risk Manager






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




Posted in Bowker Associates Science & Research In The Public Interest, Catastrophic Tailings Failures, Causes Of Catastrophic Tailings Dam Failures, Environmental Risk Management, financial risk and public liability, Imperial Metals, Lindsay Newland Bowker, Mine Feasibility, Mining Economics, mining environmental risk management, Mining Financial Feasibility, Mining Regulation, Mt. Polley, Risk & Public Liability of Tailings Dams, Risk Avoidance & Loss Prevention Metallic Mining, Uncategorized | Leave a comment


CONTACT: Lindsay Newland Bowker, Bowker Associates lindsaynewlandbowker@gmail.com

DATE Of Release: December 5, 2016


Today ICMM ( “The International Council on Mining & Metals”) issued its report on Tailings Management. Written by Golder Associates who played a major role in the PR for Mt Polley and Samarco, the report is on behalf of ICMM’s 23 members who are the largest miners in the world controlling more than 2/3 of all production globally.


It is really more a PR document attempting to assure investors and the public that its 23 large members have been following and continue to follow all best practice standards for tailings design and management.  There is nothing in it that recognizes the elevated levels of catastrophic tailings loss  globally not just as forecast but as evidenced in the record . There is nothing offered that addresses root causes or solutions.



This is pretty  much as expected from ICMM and from Golder who have become more a mega PR firm, a “fixer” for  big miners in the wake of big disasters. Golder’s is  very different voice  when its client is the  World Bank or the IFC.


This report  is  on a parr with the superficial   response and reassurance given by BC MOM in its directed re evaluation of all B.C Tailings Facilities.  What was actually directed and the information actually produced did nothing to actually assess the level of risk in BC MOM’s standing operating already permitted TSF’s



This report falsely states the historic record on TSF failures still quoting that tired old worn out 21 year old ICOLD stat that the  mining industry insists on as its meme : “2 significant failures occur per year”. Historically and in  the most recent decade the actual number is 3.4 per year.  In 2016, there are already 5 “significant events”.


The “2 per year” comes from including pre-1936 decades for which ICOLD//WISE reporting was sparse and anectdotal(far left of chart above). The actual long term “significant incidents” rate from 1936 is 3.3, continuing the last two decades at about the same level (3.4).  The real story is in the frequency of high severity events such as Mt. Polly and Samarco.  In the last two decades that rate is 180% above  the 80 year rate of 0.5/year at 0.9. For the coming decade, actuarial science puts the expected rate at 1.4 to 1.5 per year for failures with releases exceeding 1 million cubic meters. ( see trend lines, below)

 Many will be in the range of severity between Mt Polley (25 million)and Samarco.(40 to 60 million)


 If ICMM’s model is taken up as a standard for the legal frameworks of mining globally or as standards for responsible self governance we can expect these drastically elevating trends of catastrophic failures to rise even more steeply with ever greater non remediable consequence.


The ICMM/Golder “report”  gives a cursory and poorly informed examination of root causes of failure again based on ICOLD’s 21 year old report, selecting only 3 out of the total 18 catastrophic failures since 1996   ICMM/Golder systematically  avoid the many authoritative deeply informed reviews of cause of failure especially Blight et. al’s re- review Merriespruitt which summed up a better list of root causes of failure.


These roots of failure, as Golder and each of ICMM’s members knows include

  • a brain drain in the industry;
  • incompetence in understanding and applying available technology;
  • global shifts which have determinant long term adverse financial viability at the nation level
  • the proof that the “economics of scale” metric no longer works at the very low grade levels where head grades and discovery fgrades converge.
  • A dramatic and debilitating 23% loss in productivity industry wide between 2004 and 2013 according to McKinsey
  • That grade is now “king” and the mining industry has entered  an entirely new era where old assumptions, old industry standards and even the body of existing “best knowledge” no longer apply. Deloitte and many others naming this.

Writing before Mt Polley right after Anglo, one the “ICMM 23”  took a public hit from Chile  on tailings and other violations, Jack Caldwell foreshadowed and summarized some of these same elements at work within Anglo.

After it audited several mining projects at Anglo Sur’s El Soldado, located 132 kilometres from Santiago in the district of Nogales, the authority detected multiple irregularities, including failing to fully preserve and relocate vegetation, ineffective wetland conservation plans and water management, lack of environmental monitoring, and tailings in in unpermitted areas

Do they really have tailings in unpermitted areas?  How can so large a mining company make so egregious a mistake?

Recall that Mike Davies (now VP Environmental Things for Teck) said that mining companies cut cost to the point that failures occur and then they take another look at costs and maybe adjust cost cutting and staff layoff.  Maybe Anglo is at that point.

I know the past head of tailings for Anglo in South Africa quit because he was overworked: required to review at least one facility a week, including those worldwide.  You cannot even travel to most of the mines in a week, net alone review their tailings operations.

“Tonight at the party for next week’s Heap Leach Conference, we discussed this story.  One cynic told the story of McMillian Blodell in BC who decided it was cheaper to pay the fines than obey the laws.  His opinion is that maybe this is what is happening in Chile.  As he noted, $5 million is a hell of a lot less than $300 million or the cost of establishing wetlands and putting tailings in distant sites.

Jack Caldwell.September 23, 2013 I think Mining.com ( reprinted at Mining.com)

This is the basket of snakes the Golder concocted ICMM Tailings Management Report is trying to keep the lid on.

ICMM/Golder cite three main national systems of guidance as containing a complete and thorough reference on “best knowledge/ best practice” and specifiy that adoption of any of these systems as corporate policy on Tailings Management would satisfy the ICMM commitment: ANCOLD( Australian National System), MAC/CDA( Canadian National Systems) and SANS(South African National System.  They identify 6 additional provisions not explicit in these three framework standards that must additionally be incorporated in company policy to meet the ICMM commitment. The 6 provisions are essentially what constitutes BHP’s recently announced “reforms ” in tailings management.

The venerable Dirk Van Zyl , a member of the ICMM expert review panel noted that ICMM did not address the root causes of the Samarco failure nevertheless congratulated them on what they had addressed.

-size:medium;”>Dirk van Zyl, a member of the expert panel that was constituted for the review, said

: “I am delighted that as a result of the review, CEOs of the world’s 23 leading mining companies committed to a new ICMM framework on how to further enhance the safe management of tailings dams.

The review did not cover how or why the Samarco tailings dam failed, but takes lessons from the tragic event as well as from other tailing dam failures. It finds that a higher level of governance and assurance is key to confirming existing safety standards are implemented consistently.”

Coverage in main stream business and mining news has been sparse and  without enthusiasm, analysis or comment.


Golder / ICMM ignore the facts of this new era which began about 10 years ago even as they have intentionally orchestrated  their version of the new era at increased global risk  of failures by over producing to intentionally drive out smaller mines, intentionally cause them to fail.  ICMM and its membership have their own version of a new era governed by their membership, a few large miners who can better manipulate supply, demand and thereby better control price.  The outfall of that ICCM plan is dramatic and precipitous escalation of public risk and consequence in the intentionally squeezed mines which will be left to fail or spun off to speculative avaricious foreign investors who want a foothold for other business opportunities. ( somewhere I have the article by Cecelia Jasmine of Info Mine/mining.com actually quoting this from ICMM) 

Essentially in this intellectually thin document Golder ICMM cling to the old model  and try to minimize any expectations of needed changes and new directions in business fundamentals among their 23 dominant metals producing members. 


This clinging to worn out no longer valid old ways,old assumptions and old models is apparent in several notable quotes for which there is no excuse and no defense and which frame the cornerstone of the approach and decalarations


(1) They essentially say  that all that exists as best knowledge needs no expansion, addition, or fundamental change to stem the ever rising trend of catastrophic failures



“Existing published guidance and standards documentation fully embrace the knowledge required to prevent such failures. The shortcoming lies not in the state of knowledge, but rather in the efficacy with which that knowledge is applied. Therefore, efforts moving forward should focus on improved implementation and verification of controls, rather than restatement of them.


There are numerous clearly established trends which desperately need addressing to prevent catastropic loss and stem its ever rising trend of annual frequency and severity of loss: the increasing levels of fines in lower grades that preclude the use of alternatives of slurry deposition which the Mt Polley Dam Committee has declared to be “outmoded technology”, the proportion of major producers with older TSF’s at maximum  design capacity and height,  the increasing deviation between predicted and actual performance of processing and production measures and on financial feasibility,the work of Bernhrad Dold on how ARD emerges in tailings, the absence of adequate in house competence to oversee or even evaluate the competence of outside consultants, a severe shortage of competence industry wide.


2.  Ignoring the actual vastness of this leading edge and in some cases long  established  “best knowledge” more deeply mapping the circumstances and attributes which have manifested and will continue to manifest in  catastrophic failure ICCM Golder cite adherence to a few very vaguely developed standards and guidelines like ANCOLD, MAP/CDA and SANS as evidencing sustainable performance

A year ago an international coalition of responsible mining advocates wrote to ICMM urging their members to undertake reforms and formally adopt the guidance of the Mt Polley Dam Committee and a loss prevention risk management response to the alarming rise of catastrophic failures post 1995 mapped by Lindsay Bowker and Co-author David Chambers in July 2015.  .


Earthworks and the international coalition is still considering what response to make.to this ICMM “report” completely avoiding every issue raised by the International Coalition.



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





Additional background and links on ICMM’s Tailings Initiative and Policy

  1. Annoucement that this study would be undertaken.  Includes a list of all members and contact info at ICMM


Posted in ANCOLD, AngloAmerican, Dirk Van Zyl, Golder Associates, ICCM Tailings Management Report, Jack Caldwell, MAC/CDA Tailings Guidelines, Mike Davies, Uncategorized | Leave a comment

Full Government Report on Samarco:Vale’s Unauthorized Slimes Depositions a Primary Cause of The Fatal Failure Indictment Finds

In stark contrast to the scene and tone of the public release of the BHP commissioned “Cause of Failure Report ” where Dr. Morgenstern gave the committees version of events poised , elegant in his immaculate suit from a large video screen, the government report released this week begins with a poem speaking to the unspeakable.

“O sertão vai virar mar
É o mar virando lama
Gosto amargo do Rio Doce
De Regência a Mariana

Quantas pessoas sem rumo como canoas sem remos
Ou pescadores sem linha e sem anzóis?
Quantas pessoas sem sorte, quantas pessoas com fome?
Quantas pessoas sem nome, quantas pessoas sem voz?

Morreu debaixo da lama, morreu debaixo do trem?
Ele era filho de alguém, e tinha filho e mulher?
Isso ninguém quer saber, com isso ninguém se importa
Parece que essas pessoas já nascem mortas

Quem olha acima, do alto, ou na TV em segundos
Às vezes vê todo mundo, mas não enxerga ninguém
E não enxerga a nobreza de quem tem pouco, mas ama
De quem defende o que ama e valoriza o que tem”1

O MINISTÉRIO PÚBLICO FEDERAL, por seus Procuradores da República
signatários, no exercício de suas atribuições constitucionais e legais, comparecem,
respeitosamente, perante Vossa Excelência, com base nos procedimentos investigatórios em
epígrafe e com fundamento no art. 129, I, da Constituição Federal, para oferecer DENÚNCIA
1 Cacimba”

The bumps and squiggles of the Bing translation soften its deep grieving somewhat

The backcountry will turn sea
Is the sea turning into mud
Bitter taste of Rio Doce
Regency Mariana
How many people aimless as canoes without oars
Or fishermen without line and without hooks?
How many people no luck, how many people hungry?
How many people without name, how many people without a voice?
Dead under the mud, died under the train?
He was the son of someone, and had a son and wife?
That nobody wants to know, with that nobody cares
It seems that these people are born dead
Who looks up, from the top, or on TV in seconds
Sometimes you see everyone, but I can’t see nobody
And can’t see the nobility of who has little, but he loves
Who defends what he loves and appreciates what has 1
The FEDERAL PROSECUTORS, for their public prosecutors
Contracting Parties, in the exercise of their constitutional and legal assignments, attend,respectfully, before your Excellency, on the basis of the investigative procedures in epigraph and based on art. 129, I, of the Federal Constitution to provide
Remembering Emanuely, age 5, swept from her fathers arms as he tried to outrun the towering wall of advancing mud.  While her parents held out hope they posted this sign,  Her tiny shattered body was found 40 km downstream.
The full text of the report in Portuguese is at http://www.mpf.mp.br/mg/sala-de-imprensa/docs/denuncia-samarco.
Indictments and poems of lament and sorrow certainly belong after such an event and what is now known about how this avoidable catastrophe formed and evolved but surely more was needed.  In Brazil, In Canada,  within the world’s major mining associations, in the Board rooms of the worlds largest miners, in legislative chambers, not one useful reform has been put forward.  A lot of rhetoric has been thrown as around  declaring “no more failures” but it all just allows what was to continue..There is no real change.
Our data tell us this decade 2015-2025 will see the largest number of catastrophic mine failures ever in recorded history.
Indictments and poems of lament at the devastation a greedy thoughtless trio of companies co created is just not enough in the face of what is to come.
Lindsay Newland Bowker, Executive Director
Bowker Associates Science & Research In The Public Interest
Stonington Maine
November 4 2016
Here are some excerpts from the report
On p. 41 of the charge sheet, it says Vale sent 5.817 million cubic meters of waste into the Dike 2 reservoir,  meant for slimes. A simulation detailed in SETEC Report no. 994 (whatever that is) found that without Vale, the slimes would never have flowed into the sands reservoir. 

Apesar disso, a VALE encaminhou, entre os anos de 2008 a 2015, para o SRF, no Dique 2, o volume de 5.187.610 m3. Em média, a produção de rejeito da VALE encaminhada para a barragem do Fundão foi igual a 648.451 m3, anualmente. O Laudo SETEC n.º 994 identificou, por meio de simulação, que se não houvesse a contribuição de rejeitos da VALE para o reservatório de Fundão a premissa de separação dos rejeitos, concebida no projeto original com o alteamento conjunto dos dois diques, não teria se perdido durante a operação.
From the introduction
“The victims have been identified. All those who lost their lives.
Can you imagine being overtaken by a wall of mud and waste ? An accident? No. It was caused by  technical flaws in implementation and maintenance consciously
chosen  to reduce costs and increase dividends.Over many years, countless actions by all three companies at the highest levels, aware of the dangers in their choices,  avoided that reality  hoping to buy time with technically dubious measures”.
With respect to VOGBR, the indictment refutes almost every declaration briefly posted by VOGBR after they learned they were named.  Bowker Associates excerpted and posted some of that text which maintained that they did no site inspections, were given the data and the form of analysis to be performed by Samarco.  The indictment says VOGBR was fully aware of the history of the Fundao and of the specific deficiencies that were cited as the root cause of failure and leant their name to a finding of stability when they knew that was not true.(pp 28-30+)
“It was determined Vale’s tailings depositions greatly  influenced  the rise of the
reservoir level,contributing  about 27% of all the mud deposited between the
years 2008 to 2015 in Fundão dam. Without their contribution, despite the ommission of drainage elements and the poor planning on the slimes dam, the slimes would not have  overrun their dam into the  sandy tailings or resulted in the failure to maintain the 200m beach.  Vale is found to have itentionally hidden and falsified information information on its long term use of the Fundao for it sown tailngs ” PP 40-41+ ( For further details see Bowker Associates post on Vale’s use of the Fundao)
Posted in samarco failure 1 year anniversary, samarco failure government findings, Uncategorized | Leave a comment


CONTACT: Lindsay Newland Bowker 207 367 5145/lindsaynewlandbowker@gmail.com

DATE: October 1, 2016





According this 2014 report by the Brazilian Government, Brazil has 633 tailings dams, the overwhelming majority built after enactment of the   2010 statutory overhaul. 144 are large enough to cause catastrophic social, environmental economic  and public liability loss in the event of failure . In this report, Brazil classifies only 32 of the 633 facilities as high risk  by its procedures for analyzing risk.  Those procedures however are more like the standard hazard classification which speaks simplistically  and narrowly to the issue of how much harm a given outflow could cause.  They do not recognize whether what is built and operating  can be reasonably expected to attain environmental standards. For example it does not recognize the different propensity for failure  for a given height and capacity configuration based on ARD, rate of raise, or dam design, drainage system, capacity to separate silt from sands , proportion of fines, dryness through the stack and other tailings specific characteristics not shared by water dams.


All will recall that the July 2015 inspection report prepared by VOG BR gave a satisfactory rating to the Fundao.  As VOGBR explained in a briefly posted letter that is excerpted at length at our wordpress, the report was a required annual compliance report whose form and content is dictated by the regulations and law.


VOG BR wrote that Samarco did not  allow them to take any independent measurements or visit the site.  Samarco, they said,  gave them the data and contractually specified the analysis to be used.  This same level of “annual safety inspection” pursuant to law has presumably  attended oversight of all of Brazils large dams

 Vale Tailings Dams Map.png

Photo From valeaguamais.wordpress.com

Taking a more  comprehensive, forensically informed view of risk  and evaluating Brazils legal framework, its obviously  low  level of technical competence   in mining, we believe  all 144 large tailings facilities in Brazil should be considered at significant risk of failure and a program of independent multi-disciplinary  risk assessment  be undertaken for all 144. All upstream dams higher than 50 m should receive top priority attention..  The  immediate priority should  be on the  15 mega dams of extreme height and size relative to the world’s tailings dams.  Vale’s  mega dam at the Tapira Complex, already exceeding permitted capacity  and in process of further expansion and already evidencing cracks and other signs of strain  has been widely identified as of particular concern. Our reasons for  considering all 144 large tailings dams at risk are:


(1) the 2010 statute reform did not address any of the root causes of catastrophic failure focusing instead on the structure of  criminal and civil liability. Under that law the fatal flaws in the Fundao were not detected or addressed until the worst failure in recorded world history actually occurred


(2) Vale controls 114 of 633 total TSF facilities  and accounts for a very significant  part of all of Brazils iron ore production  generating 200 million tonnes of ore per year  more than  40% of that in tailings and wastes in just the Iron Quadarangle area.. Vale aim to increase throughput in the 19 Quadrangle by 50% by 2030. Its own 2013 self assessment of the safer alternative of paste thickening  and dry stack concluded  most of its  presently generated tailings did not meet technical criteria for the safe alternatives of paste thickening and dry stack.  Only 4 of its 114 TSF’s nationwide , 4%,  met the criteria for dry stack or paste thickening.  Vale  succeeded in making Brazil back down from post Fundao failure reforms that would have put controls on height and rate of rise ( per globally recognized best practice) and banned upstream construction for large dams. (Eisenhammer) Vale, 50% owner of the Samarco vetted the major expansion and ok’d proceeding even though its own consultant flagged the absence of adequate capacity on the Fundao and the absence of any plan or space on site to provide capacity .  Vale’s inventory  of TSF’s includes many, if not most, of these very large tailings dams. 


(3) there is no mining  competence within any of the permit issuing entities or within the state of Brazil so even if the legal framework addressed root causes of catastrophic failure there is no technical capacity within government to determine whether environmental and conservation standards are actually attainable . Virtually all of the 144 large tailings dams and the 15 mega talings dams were permitted  with no technical competence on the part of regulatory oversight


(4) Minas Gerais alone, a major center of mining in Brazil, .seems both inept and a victim of complete regulatory capture (as was and is the case in Brtish Columbia) . Rio Pomba had two prior serious events (2003 and 2006) before the final very serious failure on 2007.   Minas Gerais is responsible for 3 of the world’s 18 very serous failures 1/1/1996-12/31/2015, 17%)   and 3 of the worlds 20  serious failures post 1996,15%.  We don’t need details on Minas Gerais’ total ore throughput to know that this  is out of scale with Minas Gerais’ rank  in global ore throughput..


(5) Brazil, since passage of its 2010 statute has embarked on a massive improperly regulated expansion of metals production sowing the seeds for catastrophic failure (http://www.ibram.org.br/sites/1400/1457/00000294.pdf There were only 241  tailings dams in Brazil in 2011, 641 by 2012.( see Figure  9  of cited report)

 herculao dam failure_

Herculano Tailings Dam Failure Minas Gerais

To Brazils credit and pursuant to the 2010 statutory overhaul, Brazil here has at least made some account of its TSF’s and reported out a few useful publicly available stats. Every nation should publicly report and monitor the condition of all permitted large TSF dams as this Brazil report does. It’s major flaw, however is that it focuses on a common set of measurements amongst all types of dams and neglects to address key elements of risk and function that are use specific. For example, no discussion of upstream construction  and rate of raise in tailings dams.


As you may know ICOLD, the International Committee on large dams  does not keep track of tailings dams for fear their terrible safety record would reflect adversely on public perception of water dam safety (Kiernan 2016)  Brazil here at least counts and gives basic stats on its tailings dams. and we can, because of our deep immersion in the forensics of the worlds mining catastrophes make some inference from these data on the likely massive public liability already formed in these 144 large TSF’s.


It is our advocacy that Tailings Dams require their own risk assessment criteria and their own relevant stats and legal framework.  Our advocacy is that every permitting district should have an independent multi -disciplinary Mine Review Board  separately appointed and mandated in statute similar to Buildings Departments and the Inspection process for construction of large buildings. They should have the power to act against or in lieu of permitting districts that are not applying existing authority, a reality that is itself a root cause of failure ( BC Auditor Generals’ Report 2016)


This report  applies the same size categories to tailings dams as to other dams using the ICOLD definitions  where a large dam is defined as a height greater than 15m or a capacity greater than 3 million cubic meters. 


In this case the criteria that define a large water dam and those that define a large talings dam are reasonable and fit with the forensics of tailings dam failure. Tailings dams of 3 M cubic meters are capable of catastrophic failure which Dr Chambers & I define as a release > than 1M cubic meters.( Bowker Chambers 2015, Bowker Chambers 2016)  In a total failure  30%-50% of contents is generally released.( Rico 2010 and forensics)



In general as a risk analysts and as an anlayst in general, I discourage comparisons between water dams ( purpose built to completion to  a known range  of flow with materials rigidly meeting specific specifications, retaining only water  and build as you go and mostly earthen from  materials at hand, retaining various toxic materials and variability in the structural integrity of materials available for each raise.  Obviously they are not meaningfully  comparable.. 

We have to reiterate that the meaningless manufactured stat that tailings dams fail at a rate 10 times water dams  should be permanently retired and never again cited. by any responsible researcher, journalist or spokes person.


Each type of retention dam should be assessed for its own distinct  inherent engineering and failure risks based both on contents and means methods and materials of construction.


To discourage comparisons with water dams it would be better if water dams were separately reported and monitored on standards suitable for them and mine tailings  ( and other type of waste and  waste dams eg those retaining pregnant leach solutions) were reported and monitored on their own terms for risks specific to the dam type.)




Ignoring the comparisons by dam type in this report ( and resisting any urge to cite them on a comparison basis) here are some of the stats in this 2014 Brazilian government report.


per figure 4:


519 of the 663  Brazilian tailings dams are not “large dams” by definition and therefore also not capable of catastrophic failure  as defined in Bowker Chambers 2015 and Bowker Chambers 2016.


144  of the 663 are large dams.


of these  15 have a dam capacity of  greater than 75 M cubic meters ( 7 of these > 200 M cubic meter  capacity ( see Figure 10 as well)


The distribution of Brazils tailings  dams by height is show at figure 12 on page 29


The Fundao was 74 M high at failure and had a capacity of 62 million cubic meters. Mt Polley was 40 m high at failure and had a capacity of  75 million cubic meters ( Chambers Bowker Failure Data Base 2015, revised 2016)


 As we learned lately BHP did not even have a geophysicist on staff before the man made catastrophic failure of the Fundao and had no informed risk management policy on the many TSF’s at its mines all over the world..  Samarco had an independent Tailings Review Panel  but the effect of that on loss prevention and control is apparent.  It s not an exaggeration to consider all 144 large dams in Brazil as at risk .


Dr. Chambers & I  know from our deep dive into the forensics of all catastrophic TSF failures  recorded history ( Bowker Chambers 2015, Bowker Chambers 2016) that the greatly expanded volume of ore production needed to attain a unit of finished metal as grades fall precipitoulsly worldwide is accommodated mostly by pushing existing TSF’s beyond their design capacity in height, volume, years of useful life and foot print.  Chuquicamata , for example,   still planning to use  its same  43 SqKM  1985 TSF for its current massive underground expansion. At Samarco  it was known the Fundao did not have capacity for the planned expansion. Vale who control 144 of Brazils tailings dams ( see Quadra 4 p 51) signed off on that. All knew the Fundao never had its two key engineering requirements for safe operation from the beginning .  All knew there was no identified vetted plan for expanding onsite capacity to adequate and soundly manage the volume and rate of tailings deposition that the expansion would require.  That happens everywhere.  We rarely see  a specific focused review of tailings capacity for these big throughput expansions and investors , before Fundao, never thought to ask these questions.


Dr. Chambers and I have been saying for two years now hat the records tells us the first and most urgent regulatory and public attention must be directed to the already accumulated but not  yet manifest catastrophic failure in existing permitted operating facilities.( Bowker Chambers 2015, Bowker Chambers 2016)


It is clear that this cannot be a self evaluation and it is clear that Minas Gerais and most permitting districts do not have the competence to  either oversee or conduct these re evaluations.


These re evaluations have to reach well beyond the usual routine proximate cause of failure.  The world record of failure is now perfectly clear that root causes of catastrophic failure  which lay behind these incompetent or just wrong engineering choices cited as “proximate cause” ( Bowker Chambers 2016)



Brazils risk classification and its overhaul of mining law miss what have been identified as key root causes of catastrophic failure( Bowker Chambers 2016)



Brazil needs to stop the clock on its aggressive mine expansion agenda, assess the liabilities they have allowed to accumulate in this massive improperly regulated expansion post 2010 and form a strategy for unwinding  that liability.  Unfortunately it seems that present law des not provide any response until the destruction happens.  They need new law now to specifically address what they will find when they undertake a more meaningful risk assessment than is provided in this 2014 perfunctory report.





Blight, Geoffrey (2010). “Management & Operational Background to Three Tailings Dams Failures in South Africa.” Chapter 42, Slope Stability in Surface Mining, ed. Hustrulid, W.A., McCarter, Kim, Van Zyl, Dirk, Society for Mining Metallurgy and Exploration, e-book, 2010.


Blight, G.E. and A.B. Fourie (2004). “A Review of Catastrophic Flow Failures of Deposits of Mine Waste and Municipal Refuse.” Proceedings International Workshop, “Occurrence and Mechanisms of Flow-like Landslides in Natural Slopes and Earthfills.” Sorrento, 19-36, Picarello (ed), Patron, Bologna


Bowker, L.N. and Chambers, D.M. (2016).” Root Causes of Tailings Dam Overtopping: The Economics of Risk & Consequence”  Proceedings of “Solutions 16”, (September 2016 ) ( presently in compilation by Solutions16  meanwhile pre publication copy available from the authors) 


Bowker, L.N. and Chambers, D.M. (2015). “The Risk, Public Liability, & Economics of Tailings Storage Facility Failures.” July 21, 2015, http://www.csp2.org/technical-reports, (June 14, 2016).

Chambers D.M. and Bowker L.N.(2016)  Tailings Dam Failures 1915-2015 (excel Free publicly downladadble) www.csp2.org


Chambers, D.M. (2014). “Options For Defining Environmental “GO/NO-GO” Zones For Mines.”January2, 2014 http://www.csp2.org/technical-reports, (June 14, 2016). Commissioned Directed By Bowker Associates) http://www.csp2.org/files/reports/Go-NoGo%20Zones%20-%20Chambers%202Jan14.pdf





Eisenhammer, S and Nogueira, M (2016). “Brazil Mining Dam Reforms Unsettle Companies, Do Little for Safety.” Reuters, May 11, 2016


Kiernan, Paul (2016b). “Engineers Say Brazilian Disaster Shows World-Wide Danger from Hoover Dam-Size Earthen Structures Holding ‘Tailings’ Waste.” Wall Street Journal (WSJ), April 5, 2016


Mt Polley Expert Panel (2015). “Report on Mount Polley Tailings Storage Facility Breach.” Independent Expert Engineering Investigation and Review Panel, Province of British Columbia, January 30, 2015.


http://www.e-mj.com/features/850-brazil-mining.html?showall=1#.WAUkSWYzUjU  Excellent and through Engineering and Minig Journal 2011 article on the economics of mining, economic policy, economic and political history of mining in Brazil( n English)

This thesis which also combines analysis of water dam and tailings dam failures has good text and photos of all of Brazils failed dams  (in portuguese)http://www.smarh.eng.ufmg.br/defesas/656M.PDF

Mining.Com’s 2013 profile of 10 largest foreign investments in Brazil Mines..No details on tailings..just thumbnail sketches  Anglo America is prominent on the list http://www.mining-technology.com/features/featurethe-10-biggest-foreign-owned-mines-in-brazil-4415407/2

Vale’s History In Its own words  .http://www.vale.com/Documents/valehistorybook10.pdf

Vale’s Self Assessment of  Possibility of Using Safer  Sounder Tailings  Storage http://www.paste2013.com/wp-content/uploads/2013/07/Mendes-et-al-Geotechnical-parameters-of-iron-ore-tailings-from-the-Quadrilatero-Ferrifero-after-different-treatments-and-ore-processing.pdf

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




Posted in BHP, Bowker Associates Science & Research In The Public Interest, Brazil 's High Grade Iron Ores, Brazil Tailings Dam Failure Risk, David M. Chambers, Lindsay Newland Bowker, Minas Gerais Mining Oversight, Samarco $44 billion lawsuit by Brazil, Samarco Dam Failure, Samarco falha de barragem de rejeitos, Samarco Indepemdent Panel Report, Tapira Complex, Uncategorized, Vale Indictments, Vale SA., Wonder Dam III | 2 Comments


FOR IMMEDIATE RELEASE:  September 16, 2016 CONTACT: Lindsay Newland Bowker, Managing Director, Bowker Associates, Science & Research In The Public Interest 207 367 5145  lindsaynewlandbowker@gmail.com
The following letter was sent by Bowker Associates Managing Director, Lindsay Newland Bowker to DEP Policy Director Jeff Crawford who, along with former Deputy Commissioner Heather Parent, had falsely testified to the BEP and the legislative committee of jurisdiction that above ground tailings facilities are temporary structures removed at closure.  Such facilities are the leading cause of mine failure at a catastrophic level and such failures occur predominantly during operations and arise primarily from deviation from best knowledge, best practice and best known technology for the geology, climate, geochemistry of the deposit.  Both Mr. Crawford and former Deputy Commissioner Heather Parent were advised immediately after their testimony last session (on the original version of LD750)  of the error in their advice and its enormous consequence. They were specifically apprised in writing that  such facilities are permanent and key to environmental risk management and public liability risk management.  Mr. Crawford repeated the false information in his briefing to the BEP on August 18th.
This letter to DEP Policy Director Crawford, copied to LURC Executive Director Livesay, DEP Commissioner  Paul Mercer and DEP Deputy Commissioner Melanie Loyzim, State Attorney General Janet Mills and JSCENR Co-Chair Dr. Tom Saviello allows that the adherence to this misinformation may have been a matter of inexcusable lack of due diligence as the facts of the permanence and vulnerability  of tailings impoundments are extremely well known,well documented and undisputed.  Michigans statutes and rules have been much used as a reference by DEP and JSCENR and were the basis of draft rues prepared for DEP by North Jackson, an obscure  minor mining subcontractor in Michigan.  Those Michigan rules stipulate that all tailings impoundments are to be removed at closure. That is not practice, however.  Indeed there is no known incident in history where dismantling and removal of a tailings facility is a planned event. That Michigan directive, which occurs in the context of a mandate for return at closure to pre mining state and pre mining ecosystem function, presents  nearly insurmountable technical and economic and environmental issues.
Although Maine has a similar statutory mandate   on return to pre mining condition and function the DEP rule itself lacks this specific mandate on tailings  impoundment removal at closure .DEP Policy Director Crawford continues to assert it as an ordinary assumed general practice, which it most definitely is not.
The letter urges  that DEP stop repeating this false information, makes in writing corrections and apologies to JSCENR and the present and former BEP explaining how senior DEP officials came to have  such a fundamentally importantly  wrong  concept of tailings management.  It further urges DEP to stop the clock, withdraw the rule from further  consideration and exercise due diligence by retaining an independent multi faceted expert panel  to lay down the basics of modern metallic mining statutory and regulatory frameworks from which further informed action can be considered by all stakeholders.
In private correspondence initiated with us by JSCENR Co-Chair Dr. Tom Saviello, Bowker Associates laid out a specific panel and specific work products.  Prospective panel member,s all globally revered and respected in their separate  disciplines, had agreed to serve and make room in their schedules to deliver a timely work product. Many weeks before DEP announced its new draft rule,  Dr. Saviello wrote that he had presented the concept to DEP and received no response.
Dear Mr. Crawford:
On three occasions briefing the BEP and the JSCENR  you have stated incorrectly that tailings impoundments are removed at closure.  Deputy Commissioner Loyzims predecessor  Heather Parent made this same false statement to JSCENR in the course of the public hearing on the original version of LD750.  There is, of course, no transcript of the JSCENR proceedings but as you know we have all of your testimony and Ms. Parents on video so there is an exact record of what you have repeatedly and falsely advised the BEP and  the JSCENR.
I see now where you and former Deputy Commissioner Parent may have come by this wrong and crucially consequential impression. In a recent review of the Michigan statute and rules  ( in connection with our risk assessment of catastrophic failure for mining legal frameworks),  I notice for the first time that Michigan stipulates that all structures including tailings impoundments must be removed at closure .  This language is in the context of a similar but much clearer  closure standard than is given in Maine’s Statute.  Michigan’s standard, like New Mexico’s ,  is  that the site must be returned to its pre mining state with pre mining function of its eco system.
Without this specific clarity in rule or statute that tailings impoundments must be removed at closure, that is not the norm or practice nor are we aware of any case in history where a tailings facility has been removed at closure.  Indeed that mandate in Michigan is problematic technically, operationally  and environmentally  because tailings have different texture and geochemical properties than what once was solid rock. It is widely recognized and understood that an earthen tailings impoundment  or any deposition of tailings  during operations  is permament and that the placement during operations is the permanent placement.
In emergency situations  or discovered instability of an existing operating impoundment,  tailings have been removed and re deposited elsewhere.  In general, however, the deposition and management of tailings should be to a standard that is structurally sound into perpetuity.  The tailings themselves should be dry enough and remain dry enough to be structurally sound as a mass in all phases of operation and at closure.
Your misunderstanding on this important and universally recognized  fact about tailings impoundments perhaps explains the complete absence of mandates and guidance in the rule  on  sound  design, risk management and oversight of tailings impoundments which are the single largest origin of catastrophic failure.  The overwhelming majority of such catastrophic failures occur during operations, not post closure or in stand by and the overwhelming majority  of catastrophic tailings failures are man made resulting from deviations from best knowledge, best practice, and best technology for design and management.
It is possible to have a site with no tailings through off site processing of all ore as at Flambeau in Wisconsin where a small open pit was reclosed and recapped at closure with stockpiled spills and overburden.
That of course reduces risks of environmental harm and loss considerably and greatly simplifies the return of a mine site to its pre mining state as mandated in our statute ( that, by the way, would not include mowing into perpetuity in a wilderness area).
The Mt Polley Dam Review Committee, charged with examining the causes of failure of the August 2014 failure in British Columbia, declared slurry deposition “an out moded technology” advocating that the standard for all land based tailings be that they have their own structural integrity rather than relying on the wall of the impoundment.  Pre processing methods like filter press pioneered at Greens Creek in Alaska, Paste Thickening or dry stack can attain this inependent structural integrity if managed properly and if the tailings output is viable for these technologies ( which is often not the case). Economically marginal mine plans and expansions, however, cannot afford these technologies and that is a central policy issue any modern legal framework for mining must examine closely and address.  In the creation of this statute and these rules that due diligence has not occurred.
Mr. Crawford, having stumbled on this phrase in the Michigan rules with which I know both the DEP and the JSCENR are very familiar, I now see that your misinformation to BEP and JSCENR ( and former Deputy Commissioner Parent’s as well) was a lack of basic due diligence and not an intentional misrepresentation.  The facts I lay out above are so plain and so universally known and undisputed that there is still grave fault on DEP’s part on “due diligence” but I am satisfied that the misinformation derives only from that lack of  even basic due diligence.
In the workings of law in any state, the agency charged with implementing a statute and writing its rules is presumed to have superor knowledge and indeed that is essential.  Applying that to the  high envionemntal liability, high public liability risk where that superior knowledge clearly does not exist and has not been sought is extremely dangerous.
I urge you to immediately rectify your past and very recent mis advice to the JSCRENR and the BEP present and past by a formal letter correcting your mis advice and explaining how you came by that understanding that tailings impoundments are temporary structures used only in the course of operations and then removed.
 In light of the gravity of consequence of this lack of due diligence on the part of DEP to the major public liability environmental  security risks of metallic mining in a high Sulphur high arsenic VMS deposit I request that DEP stop the clock and withdraw the rule from further consideration while DEP seeks better guidance through the convening of a multi expert technical panel to lay out for all of us the essential foundations of law and policy on metallic mining in volcanogenic massive sulfides, the secnd highest  geological risk group of all metallic mining.  I had previously named for JSCENR Co-Chair Dr. Tom Saviello a specific panel composition and all but one, although always fully committed for months ahead had agreed to serve, provided the committee is coordinated   by a person  independent of DEP JSCENR and all lobbyists who has recognized competence.  The work product Bowker Associates had suggested in private correspondence with Dr. Saviello, nitated by him, was a very short piece on essential foundations and mandates which could then be presented to all, DEP, BEP, JSCENR and the public  and from which a meaningful workable and effective complete legal fraeowrk could be created, again wth continuing guidance by the expert panel.  Dr. Savilllo indicated to me ( and others) in private correspondence that he agreed with this approach, had presented it to DEP and had received no reply. If that is so, DEP’s actions exceed a failure of due diligence.
Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager
Bowker Associates
Science & Research In The Public Interest
15 Cove Meadow Rd.
Stonington, Maine 04681
Posted in bannaism of maine, Catastrophic Tailings Failures, Catatrophic Tailings Dam Failures, Causes Of Catastrophic Tailings Dam Failures, Maine Mining Law, Maine Mining Regulations, Maine Mining Rules, Mining In Maine, Uncategorized | Leave a comment

Maine’s Statute & It’s Draft Implementing Rules Score Poorly on Catastrophic Failure Risk Assessment

FOR IMMEDIATE RELEASE   September 14, 2016  1333 EST   Contact lindsaynewlandbowker@gmail.com 207 367 5145



Lindsay Newland Bowker, CPCU ARM, Environmental Risk Manager

Risk of Catastrophic Failure analysis of Maine’s Mining Statute ( Pl 2011 c.653) and its now under review draft rule concludes that Maine’s statute itself is a potential root cause of such failure as has been the case in many of history’s most dramatic and costly failures including Mt Polley and Samarco, both modern mines and both among in history’s top 10 in terms of consequence and scale of failure. Maine’s statute scored 43 out of a maximum “worst case” score of 50 and is classified as “High Risk”, against 5 key criteria focused on most commonly found root causes of catastrophic failure.

Although the poorly framed, poorly informed Maine statute is among the worst among post 1990 new laws and overhauls it nevertheless contained a few very common mandates including “technical and financial capacity of the applicant” and a mandate for the use of best proven technology . Otherwise it is vague on mandates on policy, but with no changes in statute at all it would be possible to write a rule substantially reducing risk of catastrophic failure. This risk assessment analysis concludes that a score of 16 out of a possible best case score of 10 can be attained within the existing statute despite its many flaws, gaps, internal inconsistencies and contradictions through wiser better informed rules alone. .

The statute’s implementing rule drafted by the Department of Environmental  Protection (DEP) and accepted for review by Maine’s unique Citizen Panel (Board of Environmental Protection,(BEP)) scored lower than the statute itself at 44 out of a “worst case”  score of 50 because it constructively nullified the key mandates of the statute by not developing them. Its low score was otherwise attributable to  dropping better and more professional language in the 1991 draft rule that is not in any conflict with statute and not including any useable language that would be effective in preventing or reducing the risk of catastrophic non remediable failure.

Michigans new rule for non ferrous metals, well known to Maine’s DEP and the legislative committee of jurisdiction ( JSCENR)  and developed specifically for sulphides, the  kind of high risk metallic mineralization Maine has, contains provisions  addressing may of the root causes of catastrophic failure scores 32 out of  a worst case score of 50.

In Maines latest draft rules, that difference between what is possible and its best possible outcome score of 16 and the score of 44 is a void in which the seeds of catastrophic failure can germinate, incubate and mature to a manmade catastrophic failure. Of the 33 million tons of metallically mineralized rock at the state’s largest metallic deposit, Bald Mountain, 22 million tonnes will become toxic high arsenic tailings with high ARD potential and another 11 million tonnes of wastes posing high level environmental security risks so there is significant  potential for a man made catastrophic failure at Bald Mountain , should any mining at all ever become economically viable, under the present statute as “risk elevated” by DEP’s draft rule.

A tailings facility failure would travel many kilometers not thousands of feet and result in a complete non remediabe loss of downstream lands ponds, streams and brooks and all terrestal and marine habitat .Tailings can never become soils capable of supporting and sustaining any kind of plant life long term as a recent evaluation of the Los Frailles failure in Spain has shown . At a previously undocumented 1937 failure in Mexico which we discovered and have added to our global failures database 1906-2016, to this day no sustained growth has occurred on the lands despoiled by the tailings flow 80 years ago.

Michigan’s statutes, indeed most presently governing statutes world wide including New Mexico’s relatively new statute  would score not much better than Maine’s.  Improvements in the legal framework for mining have come mainly through  rules.  West Australia for instance working form a very primitive pre modern legal framework has developed one of the wisest and most comprehensive rules in the world.

The full report  will be submitted as  Bowker Associates testimony on the draft rule and published as a case study further developing and now applying our work with eminent Geophysicist on the relationship between mining economics environmental risk and public liability.



Posted in Analysis TSF Failures, Bald Mountain Aroostook Maine, BEP, Bowker Associates Science & Research In The Public Interest, Catastrophic Tailings Failures, Causes Of Catastrophic Tailings Dam Failures, Center For Science In Public Participation, CSP2, CU-Arsenic Standards For Concentrates, David M. Chambers, Environmental Risk Management, Global Capital Squeeze In Mining, History of Mining In Maine, Imperial Metals, lacustrine mine waste disposal, Maine Mining Law, Maine Mining Regulations, Maine Mining Rules, Maine Mining Statute, Metallic Mining Risk Management, Mine Feasibility, Mine Risk Management, Mining Economics, mining environmental risk management, Mining Financial Feasibility, Mining In Maine, Mining Regulation, Mining Risk Management, Uncategorized | Leave a comment

Maine’s Pristine Public Lands In Statutory Limbo: Large Scale Metallic Mining On Public Lands Presently Authorized Under Relaxed Environmental Law

Mining, including Metallic Mining, has been allowed by Statute  in Maine back to 1977 under Title 12, the statute that protects and conserves public lands.  Referred to as the “Mining on Public Lands Statute”,  it designates  “Director of Survey ( Sate Geologist Dr. Robert Marvinney), not DEP, as the regulatory authority for establishing rules and for  writing ,reviewing and approving permits pursuant to those rules.  The “Mining on Public Lands Statute” under Title 12, was last substantively revised in 1985 when Maine was going through its last turbulent push for metallic mining in Maine.  In that same legislative session, a separate one line statute clearly addressed to all other lands  directed DEP and LURC ( Now LUPC) to jointly write rules for metallic mining.  After a 6 year hulabaloo, mostly arising from then DEP Commissioners refusal to accept mining applications without implementing rules and a long delay in getting to that, the “19991 rules” emerged and are still the state’s official mining rules.

Due to a technical error in drafting the new mining staute that replaced that 1985 one liner,  the 2011 statute (PL 2011 C. 653) became law in July 2016 without its implementing regulations which were twice rejected by the State legislature.  The sweeping changes in environmental law  specifically to accommodate metallic mining  therefore also apply  to metallic mining on  public lands.  No rules or procedures have ever been developed for exploration, claims and mining on public lands and the Department of Agriculture Conservation and Forestry’s (JSCACF)public guidance on the Mining On Public Lands Statute makes no reference whatsoever to the mining statute or the DEP/LUPC permitting process directed under Article 9 of that statute.   The current posting dates to September 2013.

According to one long term member of the JSCACF there has never been any discussion of, or reference to, the possible effects on Public Lands of the separate and lower environmental standards set by Title 38 changes to environmental law.  Dr. Marvinney, “Director of Survey” seems to believe that the twice rejected DEP rules apply to public lands as well.

In his testimony September 15th 2016 before the BEP as the only witness in support of the draft mining rules, Dr.Marvinney’s testimony on his authority under the “Mining on Public Lands” statute, seems to conflict with the plain reading of the staute.  Dr. Marvinney asserts that his authority is only for granting or not granting a lease to mine on public lands and that if the lease is granted that lessee would then apply to DEP under the Article 9 of Pl 2011 C.653.  Dr. Marvinney did, however, acknowledge that something like a large scale mine or a large open pit would trigger the requirement for a 2/3  majority approval in both houses of the legislature.

Daniel Tratakoff, Legislative Analyst for JSCENR,  the Committee who created the Metallic Mining Statute, has written to Bowker Associates  that JSCENR has been aware of the contradictions and conflicts between the two different mining statutes  and wrestled with it at length without any clarifying statements or changes to their Mining Law PL 2011 c. 653.

On closer re examination of the legislative history of the Metallic Mining Statute PL 2011 C. 653, it is clear that the concept draft envisioned that the article 9 rules ( then not fleshed out) would provide unified review under DEP/BEP for all metallic mining.  It appears that this was not actually effectuated and that DEP does not have any statutory authority for rule making or permitting under the “Mining on Public Lands” statute.  Perhaps that was intended in the phrase “Mining Applications reviewed uder this Article do not require permitting” but  the clarifying language needed to extend that to Public Lands as well was not part of the overall law ( PL 2011 C. 653) even though other changes to Title 12 were made as part of PL2011 C.653.

Despite overwhelming and committed public opposition, JSCENR has made no changes to its poorly informed badly written law.  DEP has initiated new rule making which was to be briefed on September 7th at 1pm .  That briefing did not occur. BEP has voted unanimously to accept the rule for review  and public comment on it is now open with a public haring secluded  September 15th at 9 AM.  The new rule simply omits all  specific reference to public lands removing specific prohibitions on mining on or near public lands which had initially been in the rule as first submitted to BEP.  New language has been added, however, prohibiting  the “extraction of ore”  on or under coastal waters, great ponds, and  upstream of streams or brooks used for public drinking supply .  If Alder Pond  exceeds which has an active exploration permit has a mineralized vaguely explored deposit under the lake which was deemed not economical for exploration in prior investigation.   Alder Pond was addressed in Dr. Marvinney’s September 15th testimony before the BEP and as a submerged land falls under Title 12, 549 the mining on public lands statute. Apparently the prohibition on ore extractions in the pending Chapter 200 rule does not include Alder Pond.  The “Mining on Public Lands Statute” specifically authorizes the draining or diversion of lakes and  streams “to facilitate mining” thus raising the specter of  draining lakes for use as tailings impoundments or mine waste dumps  or for submarine deposition of Acid Rock Generating waste in lakes or rivers. There is no scientific evidence of “no harm” from such practices nor is there evidence that Acid Generation is permanently suppressed.

Bowker Associates therefore wrote and submitted  following summary to JSCENR, JSCACF, DEP, BEPand “Director of Survey ” Dr. Marvinney  urging them to clarify the present status of existing law as to metallic mining on public lands .  To date we have received no response or acknowledgment.

At the September 7th JSCENR, in an exchange with Deputy Commissioner Loyzim, the JSCENR and DEP acknowledged that the Attorney Generals advice as to jurisdiction for mining rules on public lands comports fully with our analysis.  As this is the last meeting of the presently constituted JSCENR no specific action was taken beyond acknowledging the resolution lies with JSCACF.

There are no transcripts of JSCENR work sessions or meetings but we understand videographer Eric A Tuttle did film the entre segment on mining and we hope to be able to offer you a link to that video on the next few days.


Bottom line.  No change in stasus of public lands.


Dear Members of the JSCENR, JSCACF, Commissioner Mercer, Commissioner Livesay , Dr. Marvinney and Ms. Bertocci & Members of the BEP

I hope the following analysis will be helpful in addressing the public’s and the legislature’s concerns about metallic mining on public lands. Bowker Associates did not retain counsel in forming this summary nor do we think that is necessary.  It seems very clear that as to rule making DEP/BEP have no authority to write rules for metallic mining on public lands.  That authority rests with Dr. Marvinney as “Director of the Survey“.

The language of the original concept draft was that ALL metallic mining review and approval would fall under DEP through Article 9 however the mining proponent influence was so focused  on JD Irvings interests at Bald Mountain that it appears this was not actually effected with respect to public lands in the final as enacted PL 2011 C.653.

Under the separately titled “Statute for Mining on Public Lands” there is a duty to ascertain that the planned use is “consistent with the trust” and the designated land use of the public lands and its surroundings but permit application and review is under the Director of Survey, not DEP as the law presently reads.

Of course all the Title 38 ( environmental law changes) of PL 2011 C.653 also apply to public lands and of course DEP has authority to enforce those laws however all actually remove  mining so there is nothing to oversee or enforce.

The provisions of the changed Natural Resource Protection Law are in direct conflict with the provisions of Title 12 in that Public Lands Law sets the a very clear dual mandate of “no environmental harm” and  the mandate of consistency with the established “trust” and established land use.  Natural Resources Law modifications specifically states that no  better use than mining exists.

 JSCENR legislative analyst  Dan Tartakoff has already acknowledged that  there are recognized and as yet unresolved ambiguities and inconsistencies  as between the mandate of Article 9 and the separate mandate of the “Mining on Public Lands Statute” and that JSCENR recognized that these ambiguities could only  be resolved in consultation with JSCACF  Mr. Tartakoff in  his written summary to us  said the JSCENR felt there was nothing they could do to resolve this in the timeframe  they had for action last session.

   It is in JSCENR’s power to address that error now by correcting PL 2011 c 653 to recognize explicitly  that the changes do not apply to metallic mining on public lands or to change Title 12 to clearly stipulate that article 9 applies to all metallic mining in public lands. .  Bowker Associates is hereby  making that recommendation as an emergency measure.  That should be taken up as part of the JSCENR briefing on the re initiation of rules and some form of public announcement should be made to clarify for the public what the present legal status is of metallic mining on public lands  and that any public concerns or objections to this status can only be addressed statutorily via change to PL 2011 c 653 Title 38  changes and/ or to the long standing policy of allowing metallic mining on public lands along with many other forms of nonmetallic mining.

   There is no question that the public at  large , the legislature and environmental advocates,   thanks to the work of Lew Kingsbury , will be focused mainly on outrage at the very idea of any metallic mining on public lands other than recreational and artisanal ( e.g. recreational gold panning).  There is no question that this gravely offends public  and bipartisan legislative sensibility.  Taking some protective reassuring clarifying legislative action to address JSCENR/JSCACF intent with respect to metallic mining on public lands may be essential to even preserving the public tolerance for the idea of metallic mining anywhere in Maine.

Lew Kingsbury’s argument that the use of the statutory authority for mining in general  under  the Mining On Public Lands Statute  to automatically allow metallic mining as well  would require a 2/3  vote of the legislature for each project is valid and obviously correct.

That would still apply whether or not JSCENR takes this opportunity to correct its prior action on metallic mining via PL 2011 C. 653.

I understand Lew  has brought this to the Attorney General.

JSCACF and or petition from Dr. Marvinney could and perhaps should trigger statutory clarification affirming Lew’s  reasonable and logical interpretation of the “Mining on Public Lands” Statute. This clarification is currently not part of the Department of Conservations Public Guidance on mining on Public Lands as posted September 2013.

If Director of Survey (Dr. Marvinney) does not concur with Lew’s interpretation ( which seems obviously correct) then the only resolution is statutory via clarifications to the “Mining on Public Lands Statute”

Of course there is no question that public sentiment and likely legislative majority sentiment will be for an outright ban on metallic mining on public lands

This summary/briefing was prepared for, and has been used  in, our ongoing collaborative work with all stakeholders and parties with legal obligation and authority in this matter as well as with press.  It will be posted at our website in its entirety as an ongoing guide and press reference. Our site and our counsel serves the Wall Street Journal, Reuters, Associated Press, Major dailies in Brazil, London and Australia as well as major international mining magazines and journals and US and international investor analysts.

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



Posted in Maine Mining Rules, Metallic Mining On Public Lands, Mining In Maine, Uncategorized | Tagged , , , , , , | Leave a comment