Maine joins Minnesota and Alaska in pushing back against the idea that mining is such a valuable and essential economic endeavor that it warrants lower levels of protection for natural resources than apply to other industries.
LD1772 rejected the rules promulgated by both DEP and LUPC . LD1851 delays implementation of Maine’s mining statute itself for two years, from Jun 2014 to June 2016. Essentially it holds the pre mining statute status quo for both statute and regulations.
For all its flaws the hastily constructed mining statute (P.L. 2011 c.653) did include several key “responsible mining” provisions which were avoided and ignored in DEP’s draft rules in favor of extraction industry regulatory and legislative agendas which have also advanced controversial mining projects in Alaska and Minnesota. “Responsible mining” requires that an applicant provide independently verified evidence that its mine and closure plan can adequately control all contamination and attain a naturally self sustaining closure and a post mining viable landuse compatible with adjacent designated uses.
Both legislators and environmental groups immediately red flagged the DEP rules as grossly deficient even before DEP transmitted them to BEP for consideration in early September.
DEP’s rules went against the statutes mandates for proven contaminant control technology, for adequate protections against offsite releases of contaminants to ground and surface waters, for adequate protections for wildlife habitats, and for restoration of the site at closure to its natural pre-mining state .
The rules were also in obvious conflict with Maine’s Title 12 protections for highly valued park and conversation lands, including Land for Maine’s Future and lands deeded for conservation. Title 12 establishes no “buffer zones” from activities inconsistent with the protections extended and Maine’s mining rules failed to establish adequate buffers despite the statutes clearl mandate and expectation of a mining specific protective standard
In general the rules insistently and with determination avoided, and were inconsistent with, the universally regarded “best practices”, “best science” guidance of GARD Guide & MEND a long term mining industry & science and technology collaboration aimed at prevention and control of acid mine drainage and toxic metals leaching. In particular DEP’s insistence on, and vigorous defense of, “wet mine waste units” was based on specific extraction industry “guidance” on bioreactors, a technology that has no demonstrated field success as a permanent closure methodology for sites like Bald Mountain where mine waters and tailings will have extraordinarily high levels of arsenic .
In the statute, 490-QQ 1. “performance standards” provides that
“If the applicant proposes a control device or measure, it must demonstrate that there is reasonable assurance that the device or measure will achieve the performance standard.”
In defiance or avoidance of that very clear mandate , DEP’s rules were written with a specific and determined aim to allow unproven new technologies. This was especially at issue in DEP’s vigorous and contorted defense of its controversial “wet mine waste units” language that specifically contravenes universally recognized best practice guidance in GARD Guide and MEND. The specific defense given by DEP Mining Team member David Burns was directly based on and influenced by an extraction industry promoted guidance paper on bioremediation, a technology as yet undemonstrated in the field and without promise for management of arsenic leachates or materials with a very high acid generation potential. Current best practice guidance at sites like Bald Mountain contra indicates long term wet cover for arsenic contaminated mine waters.
On January 10th, David Burns of DEPs “mining Policy Team” provided false and misleading testimony in response to concerns raised by both Sue Lessard and by BEP Executive Analyst Cynthia Bertocci that all wet closures involved uncertainty as to attainment of neutral water quality and that all involved some level of active treatment for an indefinite period. (Efficacy of wet cover can be assessed in advance at Bald Mountain was rejected by applicant Black Hawk as effective even for the very small open pit gold and silver extraction that didn’t involve the actual sulfide deposit itself) He falsely advised that to require “Passive treatment only” precluded the use of all wet cover closures.
The statute provides that “Both the mining area and the affected area must be reclaimed with the goal that the affected area be returned to the ecological conditions that approximate pre-mining conditions to the extent feasible and practicable and considering any changes caused by non-mining activities or other natural events” A bio reactor or water pollution control plant would leave a distinctly “industrial” profile landscape in place into perpetuity. certainly a questionable interpretation of “natural pre mining landscape..to the extent feasible and practicable”
In taking this very significant action Maine’s Legislature joins a growing trend of awareness of, and commitment to, “Responsible Mining”.
. The limiting and more challenging issue is available technology for a permanently, perpetually self sustaining closures. Mine waters requiring active treatment at closure will most likely require active treatment forever and most likely at the public expense ( What financial instrument or institution can provide adequate funding for operation and maintenance of a water pollution control plant for 1,000 years or more?)
In Alaska the Pebble Mine, which would be the largest copper mine in the world with a 100 year operating lifetime and in which $500 million was invested in explorations and lobbying , has suffered likely fatal set backs due to irresolveable environmental impacts. Northern Dynasty has lost its two major investors/partners, and Pebble stock has been driven down to under $1 per share. Tiffany’s had announced before the withdrawal of a major partner that it would not source from the Pebble.
The first example of that has already been accomplished with enactment of LD1671 which forbids the use of motorized metal dredging in certain designated key fish breeding habitats. The mining rules just rejected by the legisature specifically allowed motorized dredging without limitation
“1.B. Removal of ore from great ponds, rivers, brooks and streams, and coastal wetlands as defined in 38 M.R.S. § 480-B, except that gold panning and recreational motorized gold prospecting are permitted pursuant to 38 M.R.S. §§ 480-Q(5) and 480-Q(5-A) and are exempt from the requirements of this Chapter “
LD 1671 became law with bi- partisan support and multi stakeholder collaboration lead by Jeff Reardon of Trout Unlimited and supported by Maine Audubon . The Act sustained a veto by Governor Paul LePage.