LOST ACCOUNTABILITY TO GROUND & SURFACE WATER PROTECTION UNDER MAINE’S MINING STATUTE

Our 2011 Mining Statute effectively exempted mining from a broad legislative standard that applies to all other large scale projects in the state of Maine including those of the state itself and of all the states municipalities.

See the testimony of JD Irving Lobbyist Tom Doyle of Pierce Atwood, architect of this systematic stripping of mining from all existing environmental law if you have any doubt abot the net effect of what I outline below or summarize above.  (Aroostook Resources C-564)r

http://www.maine.gov/dep/bep/featured.html

In this testimony Doyle is taking issue with the DEP Chapter 200 draft rules now before the BEP for stating that mining is still accountable to all other environmental law .  He is saying..no no..we changed all that.  Mining is only accountable as spelled out in the statute.

Here are the details of this very thorough edit of Maine’s environmental law by Doyle that accomplished this systematic exemption for mining from all existing environmental law.

First and most significantly, here is the statement of Findings and Purpose from the Site of Development Law from which our mining statute exempted mining

Ҥ481. Findings and purpose

The Legislature finds that the economic and social wellbeing of the citizens of the State of Maine depends upon the location of state, municipal, quasi municipal, educational, charitable, commercial and industrial developments with respect to the natural environment of the State that many developments because of their size and nature are capable of causing irreparable damage to the people and the environment on the development sites and in their surroundings; that the location of such developments is too important to be left only to the determination of the owners of such developments; and that discretion must be vested in State authority to regulate the location of developments which may substantially affect the environment and quality of life in Maine.[1987, c. 812, §§1, 18 (AMD)]

“The Legislature further finds that certain geological formations particularly sand and gravel deposits. contain large amounts of high quality ground water. The groundwater in these formations is an important public and private resource, for drinking water supplies and other industrial, commercial and agricultural uses. The groundwater in these formations is particularly susceptible to injury from pollutants, and once polluted, may not recover for hundreds of years.

“It is the intent of the Legislature that activities that discharge or may discharge pollutants to groundwater may not be located on these formations.[1981, c. 449, §3 (NEW).]

“The purpose of this subchapter is to provide a flexible and practical means by which the State, acting through the department, in consultation with appropriate state agencies, may exercise the police power of the State to control the location of those developments substantially affecting local environment in order to insure that such developments will be located in a manner which will have a minimal adverse impact on the natural environment within the development sites and of their surroundings and protect the health, safety and general welfare of the people.[1989, c. 890, Pt. A,§40 (AFF); 1989, c. 890, Pt. B, §84 (AMD).]”

By redefinition metallic mining, the most egregious and significant of all large scale projects threatening irreparable environmental harm ,was simply removed from accountability under site of development law and PL 2011 c 653, our mining statute, did not restore comparable protections for ground and surface water.

As we anticipate the BEP’s consideration of mining rules  released for public comment on September 16 pursuant to a mining statute that leaves higher standards in place for gravel pits than it applies to mining, it is important to understand what was lost under this phrase “Streamlined Permitting”.

I hope to have a table ready to share soon that will detail what we started with and what we ended up with provision, by provision so the total loss of protections for ground and surface water and other natural resources are very clearly understood. It is much harder to follow these losses as text without a graphic or table..

It is critically important to understand and take account of these risks of irreversible permanent loss now allowed by law under our internally self contradictory mining statute as we anticipate the imminent possibility of:

(1) Irving applying for a sub district rezoning under the new LUPC rules forced under the mining statute and the slice and dice of the LUPC mandate accomplished concurrently with the mining statute.

(2) Irving applying for an advanced exploration permit under DEP’s recklessly irresponsible new Chapter 200rules for advanced exploration at a scale that could easily trigger releases of acid and metal through chemical reactions that are non remediable and irreversible.  These riles are now also before the BEP for approval and are already in legal effect as interim technical rules. ( We now know that Bald Mountain is very risky mountain even compared to other VMS deposits now on the superfund list including our own Callahan mine in Brooksville )

(3) the dog & pony show of the now scheduled public hearing ( October 27th Augusta Civic Center) on new mining rules pursuant to a statute that is badly informed public policy.

Under 482 (Definitions) Maines mining statute simply took mining as a named activity out of the definition of “Development of state or regional significance that may substantially affect the environment” Mining and oil and gas exploration had been specifically added in 2005. by a bill sponsored by Tom Saviello.

“2. Development of state or regional significance that may substantially affect the environment.

“Development of state or regional significance that may substantially affect the environment,” in this article also called”development,” means any federal, state, municipal, quasimunicipal,educational, charitable, residential,commercial or industrial development that:

A. Occupies a land or water area in excess of 20 acres;[1997, c. 502, §5 (RPR).]

B. (TEXT EFFECTIVE UNTIL 6/1/14) Is a metallic mineral mining or advanced exploration activity as defined in this section or an oil or gas exploration or production activity that includes drilling or excavation underwater[2005, c.330, §18 (AMD).]

B. (TEXT EFFECTIVE 6/1/14) Is an oil or gas exploration or production activity that includes drilling or excavation underwater;[2011, c. 653, §16 (AMD); 2011, c. 653, §33 (AFF).]

It even stripped out of site of development law the definition of mining itself.

2B.

(TEXT EFFECTIVE UNTIL 6/1/14) Metallic mineral mining or advanced exploration activity. “Metallic mineral mining or advanced exploration activity,” in this article also called “mining,” means an activity or process necessary for the extraction or removal of metallic minerals or overburden or for the preparation, washing, cleaning or other treatment of metallic minerals and includes the bulk sampling, extraction or beneficiation of metallic minerals, not including test sampling methods conducted in accordance with rules adopted by the department such as test boring, test drilling, hand sampling and digging of test pits with a limited maximum surface opening or methods determined by the department to cause minimal disturbance of soil or vegetative cover.

A.[1995, c. 700, §4 (RP).]

B.[1995, c. 700, §4 (RP).]

C.[1995, c. 700, §4 (RP).]

[ 1995, c. 700, §4 (AMD) .]

2B.(TEXT REPEALED 6/1/14) Metallic mineral mining or advanced exploration activity.[ 2011, c. 653, §17 (RP); 2011, c. 653, §33 (AFF) .]

It created a nonsensical insensible mandate that a sand and gravel operation can’t discharge pollutants to groundwater but a mine containing arsenic, toxic metals and destructive acids can.

Article 9, of PL2011 c.653 specifically allows on site contamination of ground and surface water. with no recognition at all that such discharges to groundwater on site will almost certainly create subsurface release to surrounding ground and surface waters. There are absolutely no requirements for liners or other protections for any on site waters.

Removing mining from the definition of “development of state or regional significance that may affect the environment also exempted mining , the most dangerous and egregious of all large scale developments from all of the following that apply to every hospital, school, state agency, nonprofit, subdivisions or mall :

483 A Department ( Bureau of Land & Water Quality DEP) approval of sale or lease
484 Standards for Approval including financial and technical capacity of the owner, a finding of no adverse effect on the envionmnet, including specifically noted effects of removal of ground and surface waters and effects on vernal pools.”

It undoes a 2009 law that held mining operations specifically accountable for storm water management:

4A.(TEXT EFFECTIVE UNTIL 6/1/14) Stormwater management and erosion and sedimentation control. The proposed development, other than a metallic mineral mining or advanced exploration activity, meets the standards for stormwater management in section 420D and the standard for erosion and sedimentation control in section 420C.

A proposed metallic mineral mining or advanced exploration activity must meet storm water standards in department rules adopted to implement subsections 3 and 7. If exempt under section 420D,subsection 7, a proposed development must satisfy the applicable storm water quantity standard and, if the development is located in the direct watershed of a lake included in the list adopted pursuant to section 420D, subsection 3, any applicable storm water quality standards adopted pursuant to section 420D. For redevelopment projects only, the standards for stormwater management in section 420D are met if the proposed development is located in a designated area served by a department approved management system for storm water as described in section 420D, subsection 2, as long as the owner or operator of the parcel upon which the proposed development will be located enters into or obtains and remains in compliance with all agreements, permits and approvals necessary for the proposed development to be served by such management system for storm water. [ 2009, c. 506, §1 (AMD); 2009, c. 506, §3 (AFF) .]

(TEXT EFFECTIVE 6/1/14) Stormwater management and erosion and sedimentation control. The proposed development meets the standards for stormwater management in section 420D and the standard for erosion and sedimentation control in section 420C.If exempt under section 420D,subsection 7, a proposed development must satisfy the applicable storm water quantity standard and, if the development is located in the direct watershed of a lake included in the list adopted pursuant to section 420D,subsection 3, any applicable storm water quality standards adopted pursuant to section 420D. For redevelopment projects only,the standards for stormwater management in section 420D are met if the proposed development is located in a designated area served by a department approved management system for storm water as described in section420-D, subsection 2, as long as the owner or operator of the parcel upon which the proposed development will be located enters into or obtains and remains in compliance with all agreements, permits and approvals necessary for the proposed development to be served by such management system for storm water.[ 2011, c. 653, §33 (AFF) .]

Lindsay Newland Bowker. Environmental Risk Manager
Bowker Associates
Science & Research In The Public Interest
15 Cove Meadow Rd
Stonington, Maine 04681
207 367 5145
lindsaynewlandbowker@gmail.com

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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, JD Irving, Maine Mining Regulations, Maine Mining Statute, massive sulfide risk management, Metallic Mining, volcanogenic massive sulfide and tagged , , , , , , . Bookmark the permalink.

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