Historic Legislative Rejection of Mining Rule Expected

It seems there is political will to reject Maine’s Mining rules but a glitch in the mining statute requires some housekeeping and most likely also suspension of the 1991 rules until the legislature has rules it can approve.

https://drive.google.com/file/d/0Bw0jCpuVRzgEQWcyTjQ3LWMxa2xGWmQwMXowS2F2d0hjU2Fj/edit?usp=sharing

It has been clear since before the mining rules were sent over to BEP for public hearings and adoption that rejection was inevitable.  Over the course of the BEP proceedings as changes one after the other took the rule from bad to worse public outrage grew. At the very end  actions orchestrated by DEP and entrapping the BEP into concurrence made a mockery of the transparency and accountability  intended by Maine’s Administrative Procedure Act (MAPA).  Substantial changes with enormous adverse environmental consequence were passed off as minor and technical without the 10 day comment period required by law.  The “basis statement”, the MAPA required reckoning between the initial rule, public comment, and the final rule , was nothing short of contempt for the legislature and contempt for the public.   There is supposed to be opportunity for  public review and  comment on the reckoning but the basis statement was not made available until 24 hours before the provisional adoption hearing n January 10th.

He is the opinion of a major Portland law firm that rules are essentially not legal by virtue of the numerous MAPA violations.

http://www.mainelegislature.org/legis/bills/getTestimonyDoc.asp?id=15294

“Adoption of these rules is a waste of time.The courts will rule them invalid”
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Bowker Associates has called for a review of these procedural irregularities by the Joint Standing Committee on State and Local Government, which has subpoena power, to make a determination as to the validity of the provisional adoption vote on Januray 10th.

The rule itself is a defiance of the public will  and of legislative intent .

(1)These rules assume that the removal of mining from site of development and other law was intended to exempt mining from the standards expressed when the statute clearly expects a restatement of these standards via the rule.
(2) These rules were written to a principle that new unproven technology should be encouraged and allowed even if there is no evidence of its ability to ever attain effective contaminant control.  The statute requires that the applicant evidence the efficacy of chosen technology in contamination control
(3)These rules will allow closure plans with indefinite reliance on manned mechanical treatment 24/7 with no hope of ever attaining a return to natural state as required by the mining statute.
These rules as written will result in the issuance of permits for mine and closure plans that have no realistic chance of ever attaining effective contaminant control risking catastrophic loss and attending unlimited unfunded public liability.
Here is Rep. Ralph Chapmans testimony a few moments ago before the Joint Standing Committee on Environment & Natural Resources.
Representative Chapman is the legislator for the district which includes the Callahan Superfund site. As a scientists himself, applied physicist, he has studied mining deeply to a point of command of best science on mining and the best policy.  In his oral presentation  Rep. Chapman specifically recognizes the value of . Dr. Chambers GO NO GO criteria developed under the direction of in collaboration with Bowker Associates.
BEP specifically refused consideration of this important policy statement before its meeting on January 3rd at which they approved these rules for submission to the attorney general.
All testimony given at the public hearing on February 24th 2014 is now up at the legislative
Here is the testimony of Susan Davies a water quality expert focused on the shortcoming of the water quality standards and the possible court challenges that will arise for choosing to deviate from federal standards.
Here is the written Testimony of Landis Hudson ( Maine Rivers) underscoring universally expressed concerns about the integrity of the proceedings and process that produced these rules and referencing Susan Davies’  critique as a water quality expert.
In her oral testimony which deviated considerably from this prepared written text, Ms. Hudson also called for responsible mining and referred to the responsible mining  “first principles” Dr. David Chambers had brought to the Committee and the public in his presentation last year during deliberation son LD1302.
Here is the testimony of NRCM who were called near to last and do not present this full text or a complete summary of it at the February 24th hearing.  He did have interesting and relevant exchange with the committee about osmosis and its role n mine closure citing SRK’s 1990 work for Boliden at Bald Mountain.  JD Irving apparently has a patented osmosis process and have tude they can produce drinkable water from any mine water wastes.  Bennett pointed out that the residue from that is still txicc waste and has to be managed and properly disposed of.  He also pointed out that the severe acidity in mine waters at Bald Mountain might be incompatible with the equipment used to extract metals ( in other words that it can only receive neutral mine waters)
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What will Happen in Committee?
It is clear that the committee does not want to visit the procedural issues which if followed could delare the provisonal vote at BEP invalid and therefore officially kill the rule at BEP for failing to meet the stutory deadline for a provisional vote. The basis for declaring the provisional adoption vote invalid would principally be that substantial changes were not given a statutorily required 10 day comment period.  If that period were given, the provisional adoption vote would have missed its MAPA deadline anyway and been officially dead anyway.  Of course they could have withdrawn all those substantive changes.
From the moment of the provisional adoption on Januar 10th, I had been urging that path with NRCM, and the environmental coalition but they seemed confident that the worst that could happen is that we would fall back to the 1991 rules if there were not a clear up or down vote in the legislature.  Section 31 of the mining rule provides that the 1991 rules stay in effect until the new rules are approved by the legislature.  They jointly retained Portland lawyer Chris Roach to advise the  Committee that section 31 took precedence over a MAPA 2011 poison pill  that provides for automatic enactment of the rules in the absence of a decisive up or down vote on the rules.
It will clearly be a divided ought not to pass ( rejection of the rules) ut of committee with Saviello and Ayotte and perhaps the two other republicans issuing a minority report..
It was clear through the course of the hearings that the majority of the committee are n no mood to consider trying to amend or fix the bill and certainly will not approve it as is.
What Will Happen In The Legislature?
Well. first, when the something other than a unanimous “ought to pass” lots of thing can happen including simply throwing out the committee report ( presumably on the assumption that f there is no consensus n the committee its up for grabs).  So this will clearly be an “up for grabs” possibility. Each body can actually even write its own version at that point .
But is the NRCM/Environmental coalition’s worst case assumption correct?  (That worst that can happen is we’ll fall back to the 1991 rules?)  I  am not so sure.
 Tom Saviello & Troy Jackson have been bringing republican legislators to U Miane to visit with Earth Sciences Professior Scott Johnson ( according to Johnsons stdents) and I belive they have garnered enough support to block a senate vote rejecting the rules.
But Troy Jackson was overheard yesterday advising a group of ladies that he would “by pass the house and run this right rough the senate”.  That is the worst that could happen.  That would mean the senate alone could vote to approve the rules.  I have sent an alert out to NRCM and the envois who went in  on the Chris Roach opinion and also written to ask the Senate President f there is any way that could happen ( by passing the house and going through the senate only).  I it is possible rules that are he worst possible could be enacted.
Is there a Way to Make Sure These Rules Are Not Enacted
Well if the provisional adoption vote on January 10th by the BEP is not valid because off the failure to give a 10 day public comment period on substantial changes, then the legislature doesn’t get into it all because the rule is dead in BEP.  I am hoping that can still happen.
So in any event lots of drama and controversy ahead.  The makings of a mini series.
Here is text of a press Release issued by Maine democrats after the hearing.  Clearly they have the political will and determination to reject these rules but they won’t be visiting some of the real legal complications until they begin deliberations at the work session scheduled for Monday, March 3rd at 10 am.

For Immediate Release

Feb. 24, 2014

Contact: Ann Kim 287-1488, c. 233-1838

Public speaks out against proposed mining rules

Weak proposed rules threaten Maine’s environment, taxpayers

AUGUSTA – Inadequate mining proposals that would put Maine’s environment and taxpayers at risk drew an outcry from concerned citizens at a public hearing Monday.

The proposal rules were the subject of a public hearing before the Environment and Natural Resources Committee. The Department of Environmental Protection drafted deficient rules last year, and they were further weakened by the Board of Environmental Protection, which gave its OK to them last month. The rules require the approval of the Legislature.

“Maine people are rightly worried that these proposed rules will not prevent water pollution or protect taxpayers from cleanup costs,” said Assistant House Majority Leader Jeff McCabe, D-Skowhegan. “So far, the folks who should listen to Maine citizens have dismissed their concerns and sided with mining advocates, putting Maine’s water and environment at risk.”

Last session, McCabe sponsored LD 1302, which would have protected Maine’s water quality from metal mining pollution. The measure addressed a rollback of protections that took place in the previous Legislature. LD 1302 won House approval but fell three votes short in the Senate.

Problems with the proposed rules include allowing highly polluting mines that would require perpetual toxic wastewater treatment, the possibility of the spread of polluted groundwater, mining in areas targeted for conservation under the Land for Maine’s Future program and the siting of mines under and next to lakes and rivers.

“We need to protect Maine’s environment, natural resource-based economy and public health. These proposed rules fail to do that,” said Rep. Joan Welsh, D-Rockport, House chair of the committee. “Maine lakes alone generate $3.5 billion in annual economic activity and support 52,000 jobs. We have too much at risk to allow mining under these feeble rules.”

Concern about open-pit mining has focused on Bald Mountain in Aroostook County, but there are significant mineral deposits in Franklin, Hancock, Oxford, Penobscot, Piscataquis and Somerset counties that could also attract the interest of the mining industry.

Maine taxpayers have been stuck with mine clean-up costs before. The Callahan Mine in Brooksville hasn’t operated since 1972, but taxpayers are still paying for the cleanup.

Protecting Maine from the risks of metallic mineral mining is a top environmental priority for 2014.The Environmental Priorities Coalition, which includes 28 environmental, conservation and public health organizations, identified strong mining rules among its key legislative issues for 2014.

###

Ann Kim | Communications Director

Maine State House Majority Office

2 State House Station

Augusta, Maine 04333-0002

Phone: 207-287-1488 | Cell: 207-233-1838

Fax: 207-287-8338

www.housedemocrats.maine.gov

March 4, 2013 Joint Standing Committee on Environment & Natural Resources did take up the additional legislative work that will be necessary to accompany a rejection of the rules.  At the very brief work session March 3rd, Assistant Attorney general Mary Sauer confirmed all that I laid out in my testimony  but seemed to avoid clarity on the removal of mining from site of Development and all other environmental law of consequence until pressed by members of the Committee who I had separately and directly briefed,  Still avoiding that , she did conform that those sections of environmental law will be changed to remove mining on June 1.

My sense was the Committee were not at all deterred from their correct and determined position on rejection of the rules and were trying to understand what else they had to do at the same time to avoid any unforeseen consequences.  My sense was there was a commitment to  removing that effective date of all parts of Pl 2011 C.653 ( the so called “mining Statute” plus all the sections of law that would have removed mining from permitting under those separate sections).

As became clear over the course of discussion that also impacts the LUPC rules and  as I emphasized in my testimony the interim technical rules on  exploration and advanced exploration that DEP adopted and has been operating under.

It seems clear that the combined effect of rejection and all else that the are wisely committed to undertake in conjunction will effectively put the mining staute itself on hold for at least another year maybe more.

I heard rumblings and some questions about my proposal for creation of an all stakeholder open transpernt expert guided revisistation from scratch.   So that may come to pass as well but in what form is not yet clear.

Assistant AG Mary Sauer deubunked the findings of the Portlannd Law frm supporting compaints and documents by Bowker Associates and many others of MAPA violations of such severity that any court would deem the rules unenforceable.  The Committee seemed glad of that reassurance ven though it is not true.  They clearly have no taste for taking that issue on as well..

Bowker Associates is urging a legal response to Mary Sauers false statement that many substantive changes on which n public comment was afforded  were indeed minor and that she agreed with BEP they did not require a 10 day comment period.  She did acknowledge that she has no technical expertise in mining whatsoever but did also choose only examples that were not at issue to create a false impression that the significance of the substantial changes had been greatly exaggerated.    That these changes are substantial and germane to the  accountability of the rue to statutory mandates is a fact not opinion.  There is no gray area.  These were egregious and outrageous attempts to make major  and controversial changes outside of public scrutiny.  Even though it is clear they wont get away with it as the rules will be rejected, I still think it is important to have a legal finding of fact on these elements to make the point that DEP/BEP should have no control whatsoever on development of the replacement rules.

March 7, 2014 ENR REJECTS MINING RULES AND DEFERS IMPLEMENTATION OF THE MINING STATUTE FOR TWO YEARS

Yesterday afternoon in  vote along party lines and a determined avoidance of even attempting  a discussion of reasons beyond those given in the party statement ( above), the Joint Standing Committee on Energy and Natural Resources  rejected the mining rules.  They also struggled through and ultimately took the necessary action of  deferring implementation of the statute itself for two years .  They left the 1991 rules in place ( by default  under Section 31 which provides that the old rules remain in effect until the new rules are approved) but allowed DEP the opportunity to keep their interim technical rules on exploration and advanced exploration assuming that they need no direction on the changes that will be necessary to reconcile those with the absence of authority under the now deferred statute.  They also recognized that the LUPC mining related changes ( expressed in LD1771) were intended to work in tandem and so also rejected the LUPC  rule changes directed by statute and expressed in LD1771..

It appears now that on the terms expressed in the redrafted  LD1772, the votes are there in the Senate to approve the rejection and to defer implementation of the statute.  Tom Saviello voted against the Committee amendment but indicated on the floor vote he would most likely support it. ( meaning I guess the Republican caucus hasn’t really come to terms with a response)

For one brief shining moment there it seemed there was hope of something very very strong afoot that would say and do more than reject in accordance with the official party position.

There was recognition that the ENR did not have the expertise and BEP/DEP did not have the expertise to write or evaluate the rules.  Briefly there was hope that the ENR would make that a part of their finding and insist that real expertise be brought into the rewrite.

There was briefly a recognition that just sending these back into the same environment that produced them would accomplish nothing.  There was talk of creating a stakeholder process with a budget to retain experts.

There was briefly a recognition that falling back to the 1991 rules and simply leaving all the environmental law in place (from which the mining statute removed mining) was not a good idea.  Several were pointing ina  direction that would have lead to suspending those rules as well.

That all fell apart .  The rejection was presumed ( by virtue of the Democratic Party press release) so nothing was discussed beyond that except  what other housekeeping was needed to accomplish that without “unintended consequences”

Best line of the hearing in a discussion of undo political influence and control by JD Irving I believe it was Ayotte who said indignantly  when the discussion was a general one and not pouting to any Committee member “I sent every check back” ( I listened via live audio stream so it was not always clear who the speaker was)

Most interesting event uring the hearings/work sessions was the off mic threat to the Committee by Doyl ( of Pierce Atwood) and Jim Mitchell ( to whom Irving paid nearly $1 million in lobbying fees on the mining issue) to sue the Committee if the rules were rejected because they asserted the rules are in complete compliance with statute.  On mic right after that the composed, civil and clear Senator Saviello briefly  became agitated and threatened a “blood bath” which the other members simply side stepped.

No question our mining statute is the worst ever written but in its sfforts with it somehow the ENT then seated did build in a few clear guideposts and mandates that these rules blatantly violated.  I am disappointed that our Committee did not speak for these mandates in directing the redrafting of the rules.  I am disappoi nted that they fell back from a user controlled expert guided rewirte and just tossed it back into the same process which Heather Parent correctly said would produce the same result.  As she put it “What new is there to say.  We already heard all that,  We already took that into account.  We already reflected that in this rule.  What would change having a stakeholder process?” ( approximate quote)

But maybe what ENR is hoping is that the two year delay in implementation itself will bring a 100% fresh start.  All new DEP.  All new Executive Leadership.  All new Committee.

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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, bannaism of maine, BEP, Black Hawk Mining Co., block caving, Boliden, Bowker Associates, Bowker Associates Science & Research In The Public Interest, Callahan Mine Superfund Site, Center For Science in Citizen Participation, Charles Roy Fitzgerald, David Chambers, electrowinning, Environmental Risk Management, GO NO-GO Technical Framework, History of Mining In Maine, in situ leaching, in situ leaching prohibition, ITRC, JD Irving, LD1772 126th Maine Legislature, Lindsay Newland Bowker, LUPC, Maine Mining Regulations, maine mining rule rejection, Maine Mining Statute, massive sulfide risk management, Metallic Mining, Mining Regulation, Perpetual Treatment Policy, politics of mining, Ralph Chapman, Science for Sale, Troy Jackson and tagged . Bookmark the permalink.

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