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.
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.
“Adoption of these rules is a waste of time.The courts will rule them invalid”
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 .
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
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.