Via E-Letter to Nicholas Livesay Executive Director of the Department of Agriculture Conservation and Forestry (DACF), dated October 14, 2013, Bowker Associates has called for an immediate suspension of all rules in effect on sub district rezoning for metallic mining in the unorganized territory of the State of Maine. Most of Maine’s potential mines are in the unorganized territory (“UT”)and all are located in a zoning designation where mining is by regulation a forbidden use except through a sub district rezoning,( an unusual concept with no precedent in planning and zoning elsewhere). LUPC is administered within the DACF.
The basis for Bowker Associates call for suspension is that data separately selected and separately analyzed by Bowker Associates Science & Research in the Public Interest ( “Bowker Associates”) and by the Natural Resources Council of Maine (“NRCM”) show ,without, question that the application of LUPC’s existing recently adopted rule for sub district rezoning for mining would violate the still over riding statutory mandate of LUPC to insure and enforce adjacent zone compatibility and to protect the natural resources of the unorganized territory. (“UT”) which comprises about ⅓ of Maine’s geography.
Under the rule as adopted by LUPC in the spring of 2013, an approval for rezoning would be allowed even though there is indisputable evidence of extremely high risk of permanent, devastating,non-remediable, offsite damages at Bald Mountain from a conventional open pit “top to bottom” mining operation and without required presentation of any documented reassurance that the zoning change applicant has a mine plan that will prevent these damages.
The rule as adopted by LUPC essentially gives an open carte blanche rezoning “as of right”. DEP via the permit process under its mining and exploration regulations is responsible for insuring those damages do not occur…….to the extent and only to the extent that the law and the regulation insures that.
DEP’s rule is also not risk based , lacks clear standards and does not require any independent verification and so would not “drive” to a rejection of a conventional open pit minining of the Bald Mountain deposit top to bottom nor would it drive towards any available alternatives or approaches that might lower or eliminate risk.
In the midst of an unprecedentedly thoughtless and ill advised slice and dice of environmental law, LUPC’s mandate and DEP’s role in metallic mining, LUPC had a deadline, mandated by statute, to revise its rules on rezoning for metallic mining in a way that clearly separated the functions of “zoning/land use” and “permitting” . Under a separate statute which changed DACF’’s responsibilities to only “planning and zoning” and delegated, all “permitting” in the “UT” to DEP ,earlier action had been taken to effect this statutory distincion for all areas except mining.
LUPCs rulemaking on metallic mining “subdistrict rezoning” did not receive the same level of attention as DEP’s concurrent Chapter 200 rule making on Explorations/Advanced Explorations which were allowed to go into immediate effect as “interim technical rules”.
Those interim technical rules are now before the Board of Environmental Protection (“BEP”), a citizens board with authority for all substantive rule making, along with DEP’s recently released draft rules rewriting Chapter 200, Mining Rules established in 1991.. A public hearing on those rules is scheduled for October 17th, 9:00 am Augusta Civic Center. Written statements will be accepted until October 28th, 2013.
Bowker Associates, Science & Reserach In The Public Interest, is an independent non profit (in formation) providing analysis on key issues with a potential for massive adverse environmental impact in Maine. Bowker Associates has deeply engaged and been a public voice in the Searsport DCP LPG Tank, The Cianbro proposal for a Private East West Toll Road, JD Irvings rolling pipeline of Bakken crude to its plant in St. John and review of Phase II plans at The Callahan Superfund site in Brooksville, Maine..
Our only “client”: is always “the pubic interest”.
Our model is to focus on only one or two issues at a time so that we have a substantive command of the relevant field as our foundation for ongoing engagement. The focus is on envirommental risk management, science and technology as well as bringing any available “best practices” models to the fore. The legal and regulatory history/best practices are also a major thrust of our work.
Director/Principal Lindsay Newland Bowker, CPCU, ARM is a recognized expert in Environmentall Risk Managment., Heavy Construction Risk Management and Marine and Transit Risks and has more than 3 decades of engagement in buiding public policy.
October 14, 2013
Dear Commissioner Livesay,
It is possible that no one at LURC/LUPC has seen SRK’s 1990 report, for Boliden at Bald Mountain ( The first report in this list of reports https://docs.google.com/file/d/0Bw0jCpuVRzgEQUZ0Y0RqS21YOW8/edit?usp=sharing ) which was a main basis of NRCM’s recently released report ,of which I am sure you are aware.
This 1990 SRK report for Boliden together with the risk analysis at Bald Mountain which Bowker Associates has been sharing since June with Samantha Horn Olsen& all parties with a known interest in mining in Maine vividly demonstrates the fatal flaw and errors in judgment in the recently adopted rule on subdistrict rezoning for metallic mining.
I believe the revelations of the degree of risk of widespread, non remediable, non reversible environmental degradation at Bald Mountain surfaced by the research of Bowker Associates and independently by NRCM, are of sufficient gravity to justify an immediate suspension of that rule and the prior rule and I am asking you to do just that.
I am asking you to also publicly commit to a reconsideration of approach more in line with what I had recommended in my testimony ( https://docs.google.com/file/d/0Bw0jCpuVRzgERHZqdzU0Mzh3Qm8/edit?usp=sharing )a risk based approach against a standard of neutral drainage,( ie reasonable and documented expectation of no offsite degradation) and more in line with the concept of conditional use as is the customary planning/zoning approach for metallic mining..
I urge you to seek outside guidance in this reconsideration and there is only one person who can give that guidance based on prior work, expert knowledge and global stature and that is David Chambers, Director of CSP2 Bozeman Montana. After two years of deep immersion in metallic mining especially on the look out for expertise that might be available to us in Maine, I have really good sense, I think of who’s who among experts. Dr. Chambers is the only person who possesses both top level expertise in mine operations risks respected throughout the mining industry but who also has done work in relating this to land use and zoning issues. Literally the only one. I urge you to immediately enter a negotiated contract for professional services with him.
This1990 SRK report for Boliden, together with the risk analysis on ARD and toxic metals risks at Bald Mountain, which Bowker Associates has been sharing with Samantha Horn Olsen and all parties of interest in mining since June makes it very clear that a subdistrict rezoning for metallic mining under the rule that was adopted and is now in force would violate LUPC’s statutory mandate.
It also highlights the fatal errors in LUPC’s final rule on subdistrict rezoning under which this information would not be/will not be required or considered even though it is at the heart of the consideration of the most fundamental rule in zoning, compatibility with adjacent landuses and zoning designations.
My testimony,https://docs.google.com/file/d/0Bw0jCpuVRzgERHZqdzU0Mzh3Qm8/edit?usp=sharing), outlined a course for the rulemaking on sub district rezoning for metallic mining which was fully within the LUPC’s mandate and also fully compatible with the existing statutory mandates to delegate all permitting to DEP and the mandates of the mining statute which prompted the redrafting of the sub district rezoning rule for metallic mining. My approach was/is fully consistent with accepted and commonly used planning approaches for metallic mining and emphasizes a risk based consideration against an expressed standard of neutral drainage (i.e.a reasonbale expectation no off site environmental degradation.supported by ARD analysis)
When I wrote my testimony,,I had asked DEP & LUPC repeatedly about the Boliden permit and Black Hawk application and had not been able to obtain any information ( I had seen references in many trade journals and the eminently distinguished global expert Dr. Robert Seal credited Black Hawk’s cooperation is allowing use of their wells and drill core in his 1997 study)
Without access to the acual data that existed the whole time, my testiomy therefore advocated a threshold based on the ARD/Toxic Metals leaching risk of the planned operations within the district and using widely accepted and almost universally applied ABA accounting based risk criteria.
Bowker Associates prepared an NPR-S Plot of the actual full profile of the “mining area” at Bald Mountain.upon finally obtaining access to the Black Hawk data many months after the adoption of the LUPC rule.
The data and NPR-S plot prepared by Bowker Associates on that data is what is customarily developed right up front at exploration to aid explorations and to eventually inform the mine plan.
As you can see, the entire “mining area”, except the hanging wall (the rock overlaying the deposit itself) is in the category of very high risk according to criteria almost uniformly applied by experts evaluating an un mined deposit.
It was exactly this analysis of risk that SRK applied to these same data in writing their 1990 report for Boliden which offered the opinion of unavoidable off site degradation for a top to bottom open pit mine as Boliden had initially assumed possible.
Commisisoner Livesay, I think if you read through this application of Black Hawks and many mnay mining apllications as I have it will be very clear to you that a sub district rezoning or more appropriately conditional use approval by LUPC should not really occurr until there is a full blown mining application
The mine plan is the document that attempts to resolve the risk of off site degradation with available technologies and strategies for mitigation and control . Until that document is prepared the data needed to consider a subsitrict rezoning (or more appropriately a conditional use approval) by LUPC does not exist.
It is at that point in the process where LUPC should, with outside expertise on every single application,determine whether the mine plan satisfies the standard of comaptibility ( subdstricts stautorily cannot violate inherent compabtibility with the existing adopted land use and zoning plan) and no off site degradation.
I proposed that in my testimony and this actual real data makes that crystal clear. I urge you to go back to the legislature for the clarifications and revisions that will be needed to fix the errors in mandate. A full fix consistent with sound planning and zoning practice cannot be effected without statutory revisions.
Thank you for your consideration and I hope, your prompt and timely action.
Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager
Bowker Associates Science & Research In The Public Interest
15 Cove Meadow Rd.
Stonington, Maine 04681
cc: Mari Wells, Eagar, Assstant to Commisisoner, Dept Of Agriculrure, Firest & Conservation
Heather Parent, POlicy Direcor, Legislative Liaison DEP
Mark Stebbins, Mining Coordinator DEP ( since 1990)
Samantha Horn Olsen , Planning Manager former Acting Director LUPC
William Galbraith , LUPC
Jeff Crawford, Office of the Commissioner DEP
Cynthia Bertocci, Executive Analyst BEP
Andrea Lani, FOAA DEP
Carol White, C.A. White Associates advisor to LUPC