Bowker Associates Calls For immediate Suspension of LUPC Rezoning Reg for Metallic Mining Citing Revelations On Risk at Bald Mountain

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.

BACKGROUND

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

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.

https://docs.google.com/file/d/0Bw0jCpuVRzgEZ3hva1ItbXpPTjg/edit?usp=sharing

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

lindsaynewlandbowker@gmail.com  lindsaynewlandbowker.wordpress.com

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

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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 Boliden, History of Mining In Maine, JD Irving, LUPC, Maine Mining Regulations, Maine Mining Statute, massive sulfide risk management, Metallic Mining, metallic mining zoning ordinances, Mining Regulation, NPR-S Plot, Robert Seal, Robert Seal USGS, Zoining and Landuse for Metallic Mining and tagged , , , , , , , . Bookmark the permalink.

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