Long Awaited Maine Mining Rules Laughable If Implications Weren’t So Grave

I sent the following to DEP Policy Director, Heather Parent on Friday August 16.  Repy came almost immediately Via Jeff Crawford  that DEP is “not taking comments at this time”.  When contacted by North Cairn, Press Herald Journalist, on Monday, Ms. Parent said she could not comment on the rules until they are transmitted to the Board of Environmental Protection before whom the rules will be presented argued & decided. (Ms. Cairns article is in today’s PPH) The rules are a complete sham.  Here are the rules http://www.maine.gov/dep/bep/Chapter%20200/Mining%20rules%20posted%20draft%2091313.pdf ( These are the official rules up for comment at BEP. A version dated 08/16/2013 accompanied notice to me as an interested party. I haven’t finished a line by line comparison but the substance of commentary and analysis apply to the version up for public comment)Below are the “clinical details” of that diagnosis as conveyed to Heather Parent on August 20th. The draft transmitted by DEP to the BEP for the September 12th formal initiation of rule making and to which this link still connects is a later draft. The basic issues and deficiencies conveyed to Ms. Parent ( and copied to Cynthia Bertocci at BEP) are still relevant.

Dear Ms. Parent:
The Chapter 200 draft mining rules, apparently complete  by DEP’s standards if they are under review by the attorney general, are completely disconnected from the last three decades of science, experience, research, and technology of metallic mining and from the continually  emerging global consensus on oversight of metallic mining.  It includes not one phrase or thought from the several U.S. examples of regulatory language with particular relevance at Bald Mountain and Maine’s other  massive sulfides.  It is completely devoid of all meaningful performance standards.

These regulations are not even close to ready for any meaningful consideration and comment before the BEP.
Just to take three particularly glaring omissions of important performance standards for which model language exists in other state regulations:
(1)  Even though it is known that the majority of mining sites of potential interest in Maine are in VMS ( Volcanogenic Massive Sulfide Deposits) known to be highly reactive ( see as one example YK John Kwong  1993 ARD prediction from geology alone https://drive.google.com/file/d/0Bw0jCpuVRzgEZEllbklZNjg0dlE/edit?usp=sharing   and to generate acid and leak toxic metals often uncontrollably once a reaction is triggered, there are no performance standards on  the handling of reactive materials. Excellent language exists right in the Michigan regs North Jackson is supposed to have worked on developing. At Bald Mountain which triggered our “revisitation” of mining legislation and regulation, where there is no neutralizing potential at all, even a highly skilled global  mining company (Boliden) extremely qualified in developing VMS deposits couldn’t figure out how to mine it safely and profitably.  It is just inexcusable and inexplicable that there are no clear performance standards for handling reactive materials.
(2)  The ground waters down gradient of Bald Mountain as far away as 12 km show contamination presumptively* from flow through of the VMS deposit at Bald Mountain of arsenic, and acidity yet there are no performance standards at all for adverse events detected through required monitoring wells even though  again Michigan offers excellent language(*Global expert  Dr. Seal in a recent email on which you were copied said, it would be hard to prove the ground waters at the deposit are not connected to down gradient groundwaters)
(3) Mark Stebbins, DEP’s  Mining Project Manager for the Black Hawk Application at Bald Mountain in 1997( and still listed as DEP’s mining coordinator) noted in concurrence with LURC Project Manager Catherine Varney that the drop in ground water down gradient for 3 to 4 years would cause possibly permanent loss and damage to water systems and habitats.  Such loss is basic and well known and is addressed specifically in performance standards in many U.S. regulations.  Our draft regulation includes no performance standards at all on the extreme water demands of metallic mining and its effects on off site ground and surface  waters.  This was one of the main reasons given by Mr Stebbins and Ms. Varney for not accepting the Black Hawk mining application  and is one of the most basic and well known of adverse off site effects of open pit mining.  It is inexplicable and inexcusable that no performance standards are included in our draft regulations.
The attached pdf (https://docs.google.com/file/d/0Bw0jCpuVRzgEbDIwSXJmeUF1cE0/edit?usp=sharing ) which I put together very quickly over the week end compares the 200 draft rules with prior rules and with other states on just a few very key performance standards for mining regulations . Please excuse the mixed type faces and formats resulting from cut and pace from many sources.  The document is still in development  but nevertheless useful I think in support of my point.
 I am not advocating inclusion of any of this other language nor suggesting that a few patches can fix up our woefully incomplete and inadequate draft regulations.
I am only offering support for my conclusion that DEP & North  Jackson have not evidenced the mastery of metallic mining and oversight  necessary to create an adequate performance based regulation for metallic mining and aren’t even close in this draft.
I am asking the legislative leadership copied above to also make note that the gaps in the reg reflect the gaps in our statute and to take the only action appropriate which is to repeal our mining statute, suspend all existing rules, including those for advanced exploration and start over after first convening an inclusive multi disciplinary process for articulating a sound statement of policy on mining in Maine around which a meaningful modern statute and regulations  can be developed ( by appropriate global experts ).
To do otherwise is a dash to disaster that will cost us permanent loss or damage to the watersheds whose headwaters are in the affected area of any mining at Bald Mountain whether surface mining ( which seems out of the question there) or underground mining, the indicated technology for extraction under the extreme conditions present there.
August 21,2013 Mineweb story on release of rules that included lengthy statement from DEP.  Local newspapers were told it would be inappropriate to comment until the BEP has had a chance to see them.

September 11, 2013

DEP Mining Rules to go to be formally presented to BEP tomorrow, September 12, 2013 at 9:00 AM. I wrote to the Chair and Members asking that the commission deny the Departments request for a public hearing in October and instead reach out to Maine stakeholders and global experts for advice on whether these rules were at all close to ready for public comment in the usual sense and what BEP should do with them.

https://docs.google.com/file/d/0Bw0jCpuVRzgEMmRGS2lzSlBtOUk/edit?usp=sharing

I have been advised by Peggy Bensinger at the Attorney Generals’ office that only oral statements will be heard at tomorrows meeting and that letter will not be shared with members in any form or otherwise accepted as any part of the deliberation tomorrow.

I have appealed that decision as I am not physically able to make a personal appearance.

https://docs.google.com/file/d/0Bw0jCpuVRzgERzIwMDRCY1pHZjQ/edit?usp=sharing

Cynthia Bertocci has confirmed it was forwarded to the Chairman for his consideration.

To me, this does not bode well either for the level of transparency or any meaningful response to the regulations that will have any effect .

September 13th 2013

I received word via email from Cynthia Bertocci that the Chairman had agreed to refer to the issues in my letter to the BEP Board and place a copy of the letter in the official folder but to distribute it to all members ( even though it was addressed to all members) or read it aloud. In otherwords, only Ms. Bertocci and the Chairman have a copy of the letter and it is presumably in the file should any member wish to see it. This was an accommodation for my physical disability, presumbably.

Ms. Bertocci said in her email to me ( availbale to anyone who would like to see it that there would be an opportunity after Ms. Parents staff presentation of the rule for those present to briefly give comment on whether this rule should go forward to rulemaking . It wasn’t clear whether those present would be given the clear option of sending it back for more professional development.

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About lindsaynewlandbowker

Bowker Associates, Science & Research In The Public Interest, is an independent non profit providing self initiated pro bono analysis on key issues with a potential for massive adverse environmental impact . Bowker Associates has been an internationally recognized and cited voice in analysis of the Samarco failure, its consequence, and the possibilties for recovery. In 2015 Bowker Associates collaborated with globally respected geophysicist David M. Chambers to recompile global authoritative accounts of significant TSF failures in recorded history and to analyze these data in the context of gloal mining economics 1910-2010 ( Risk, Economics and Public Liability of TSF Failures, Bowker/Chambers July 2015) In 2014 Bowker Associates commissioned globally respected geophysicist and hydrogeologist Dr. David Chambers to undertake two technical works: (1) development of technical go no go criteria for vetting mine applications tp://lindsaynewlandbowker.wordpress.com/2014/01/05/a-new-statutory-regulatory-framework-for-responble-sulfide-mining-should-this-mine-be-built/ and (2) a case study of Maine's Bald Mountain, an un mined low grade high risk VMS deposit demonstrating the efficacy and accuracy of two risk assessment tools in vetting mine proposals https://lindsaynewlandbowker.wordpress.com/2014/02/28/mountain-x-would-you-issue-a-permit-to-this-mine/ In Maine, Bowker Associates has deeply engaged and been a public voice in the Searsport DCP LPG Tank, The Cianbro proposal for a Private East West Toll Road, JD Irvings rolling pipeline of Bakken crude to its plant in St. John and review of Phase II plans at The Callahan Superfund site in Brooksville, Maine, and Maine's revisitation of mining in statute and regulation... Our only “client”: is always “the pubic interest”. Our model is to focus on only one or two issues at a time so that we have a substantive command of the relevant field as our foundation for ongoing engagement. Our core work is in envirommental risk management, science and technology as well as bringing any available “best practices” models to the fore. The legal and regulatory history/best models are also a major thrust of our work in building and evaluating public policy. Director/Principal Lindsay Newland Bowker, CPCU, ARM is a recognized expert in Environmental Risk Management., Heavy Construction Risk Management and Marine and Transit Risks and has more than 3 decades of engagement in buiding public policy. Appointed by Governor Mario Cuomo to New York State Banking Board (served 1986-1996); President New York Chapter Chartered Property and Casualty Insurers; Environmental Committee, Risk and Insurance Management Society; Director, Convenor/Co-Chair Bermuda Market Briefing "From Captive to Cats" Hamilton Bermuda. Published Articles of Significance The Risk Economics and Public Liability of Tailings Facility Failures, co-authored with David M. Chambers, July 2015 Beyond. Polarization: Superfund Reform in Perspective, Risk & Insurance Managing Risk For Loss Prevention & Cost Control (Jan. 24, 1997). Lead Hazards and Abatement Technologies in Construction: A Risk Management Approach CPCU Journal 1997 Employee Leasing: Liability in Limbo Risk Management June 1 1997 Environmental Audit Privilege and the Public interest Risk & Insurance Managing Risk For Loss Prevention & Cost Control, April 1997 Asbestos:Holes In Abatement Policies Need To Be Plugged, Lloyd’s Environmental Risk International, May 1993 Editor Published Letters Evironmental Risk Management Beware of Facile Policies Like Fetal Protection Business Insurance 1995(?) High Court Review May Increase Sale of Bank Annuities Business Insurances August 8, 1995 Professional Profiles Protecting the Big Apple’s Core Managing Risk For Loss Prevention & Control December 1996 Major Career Highlights First rigorous analysis showing Relationship Between declining ore grades and TSF Failures of increasing consequence ( July 2015) FIrst Documentation that Gentrification Has Same Impacts as Unassisted Displacement from Urban Renewal Sites Direted Court Ordered EIS of FHA Mortgage Scandal Created Nation's First Homeownership Program for Low Income People (SHIP) Created Earliest Geographic Information Systems Using Defense Technology Developed By IBM Designed and Conducted Parallel Census Count to Show Systematic undercount in minority neighborhoods Documented Bias in ISO Territory Rating Plans for Private Passenger Auto Insurance Using ISO's own Rating Techniques Demonstrated Inherent Bias in Mortgage Policies of Banks With Inner City Branches Demonstrated that NY Telephones Plan for Area Code Split To accommodate anticipated cell phone demand was not efficient and would exhaust in 5 years ( which it did) Undertook First Systematic Evaluation of Child Protective Services Caseload Using Multi Variate Analyic Techniques Developed Child Protective Caseload Management and Tracking System (CANTS) and directed implementation in 4 client states including Illinois, Florida and New York Created and Ran Office of Risk Management for NYC DEP the Nations largest Water & Sewer Authority . Designed, Created and Administered Nation's First Owner Controlled Insurance Program (OCIP)for High Risk Tunneling Education Masters NYU Graduate School of Public Administration BSC New School For Social Research Maine Public Schools Deering High School
This entry was posted in Bald Mountain Aroostook Maine, BEP, Heather Parent, JD Irving, Maine Mining Regulations, Maine Mining Statute, Metallic Mining and tagged , , , , , , , . Bookmark the permalink.

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