Historic Rejecton Of Maine DEP’s Extraction Industry Oriented Rules Part of National Push For Responsible

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.

”  more than 175 years of experience sourcing precious metals tells us that there are certain places where mining cannot be done without forever destroying landscapes, wildlife and communities. We believe Bristol Bay is one such place. Tiffany & Co. was one of the first jewelers to sign the Bristol Bay Protection Pledge, and declare that should the proposed Pebble Mine be developed, we will not source gold from it”
Rio Tinto walked away on April 7th without even bothering to sell its shares
“Rio Tinto’s decision to walk away from the project without finding a buyer for its interest is the latest major blow to the project.  In 2011, Mitsubishi Corporation sold its interest, and in 2013, Anglo American withdrew from its 50 percent partnership in the project, leaving small Canadian mining company Northern Dynasty Minerals the 100 percent owner of the embattled project. http://switchboard.nrdc.org/blogs/jreynolds/thank_you_rio_tinto_british_mi.html
Minnesota’s Northmet recently received a not very encouraging EPA EC-2 ( environmental concerns which require further information to resolve).  Although touted by Polymet as an “upgrade in their rating” ( from EU1, an unsatisfactory indicating the project should should not proceed) it is hardly a “good to go”. Northmet, like our own Bald Mountain, was proposed by a limited liability company with no mining operations experience of any kind.  Northmet was also premised on the use of unproven closure technologies and untried scale of existing slurry wall technology.
At both the Pebble and Northmet the fidelity of a well informed grass roots, native people’s coalition  brought an informed independent scientific best practices analysis to bear against the false , misleading, and unsupported claims of would be mine developers.
As with our own engagement here in Maine the technical assistance and guidance of Dr. David Chambers ( www.csp2.org) and other scientific experts dedicated to informing grass roots stakeholders was a key factor. Dr. Robert Moran, Jim Kuipers, Anne Maest are among the many other leading scientists arming stakeholders with independent expert scientific analysis of environmental risks inherent in specific potential  mine sites.  Other scientists like Houston Kempton and Dr. Andy MacG. Robinson have addressed policy in constructive ways although primarily serving the mining industry, rather than the public sector.
Commissioned through and directed by Bowker Associates Dr. Chambers produced two major technical reports  with a specific bearing on DEP’s draft rules.  Both reports are technical advances in framing public policy founded on “Responsible Mining” standards and practices.   The most recent of these reports, an expert reassessment of envionmental risks of mining Bald Mountain was transmitted to Maine’s Joint Standing Committee on Environment and Natural Resources in advance of the first legislative work session on the rules.  An earlier report offering a technical “Go No Go” framework for responsible mining was transmitted to BEP via DEP & Executive Analyst Cynthia Bertocci in advance of the BEP’s January 3rd meeting.  Chairman Foley, according to Ms. Bertocci,  did not allow  BEP members  to see the report because it was not submitted during a pubic comment period.  Both reports were widely distributed to official “interested parties”,  and to stakeholders and legislators.
Maine’s historic rejection of the rules and the two year delay on implementation of the mining statute is a direct result of this and other excellent scientifically informed grass roots testimony offered by ordinary citizens who committed their professional expertise and skills over a sustained period to informing Maine’s mining policy.
Legislators , advocates  and stakeholders in Maine are not “starting from ground zero”.
All are starting from two years of faithful and diligent collaborative discernment on the modern science and technological realities of sulfide mining and how to express that in policy that speaks the values that bind us together as Mainers.
The resources most centrally at issue, the State’s ground and surface waters, and under federal law, the state’s “navigable waters” are owned in common by all the people.  They are not  privately owned or controlled unless it can be shown there is no hydrologic  connection with “waters of the state”.  So even where law and policy fail in expressing clear standards,  informed stakeholders expect protection and remedies in policy. Stakeholder unrest translates to political risk which translates in turn to investment jitters.
In Maine,  there is a 100% certainty that the rules that come before the legislature in February 2016 will be a full and well informed expression of “Responsible Mining” and that the statute itself may be considerably strengthened  or completley replaced over the next two years.

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.

Other such natural resource specific changes in statute will be made over the next two years which will directly affect the new  rules and most likely prompt reworking of the mining staute itself to better clarify that mining owes the same level of envionmntal proection to the states waters as any other activity, that mining doesn’t have its own separate and lower standards of natural resources protections.
It is very unlikely that our extensive and exceptionally well informed stakeholder group on mining will simply wait to see what DEP does next or wait for someone to officially convene a stakeholder group to reframe Maine’s mining policy.  A well informed and deeply committed grassroots stakeholder group  is already formed and will continue the work that is needed to frame a responsible mining framework for Maine.
Maine’s historic action at the same time as scientifically empowered grass roots efforts in Alasaka and Wisconsin have scored gains for “responsible Mining” signal a change of tide. It will no longer be possible for industry lobbyists, no matter how much money they have behind them, to peddle false information in support of their extraction based endeavors.  They will have to become collaborators and partners in discerning environmental feasibility site by site in accordance with the best science and the best practices available.
Maine’s Governor, Paul Le Page, will most likely veto both bills. That will still leave the 1991 rules in effect per the terms of the mining statute.  The veto of LD1772 cannot enact the rules rejected by the legislature.  Also,since the legislature has “taken action” under the applicable legal definition,   DEP does not have authority under MAPA, Maine Administrative Procedure Law  ( PL 2011 c.244) to enact the rules.  The veto of LD1851 would, however, allow  those provisions of the mining statute which remove mining from all other applicable environmental law to go into effect in June of 2014.   It is these provisions of environmental law, that Boliden and Black Hawk, both also clients of Pierce Atwood,  were unable to resolve and these are the provisions of law most eagerly sought by Pierce Atwood on behalf of current client JD Irving in drafting the 2011 mining statute.
It is not clear what remedy is available should the Governor’s expected veto of LD1851 not be overridden by the legislature.
Nontheless, Maine’s two year discernment on metallic mining is now well informed and moving clearly in the direction of responsible mining
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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 Adjacency Impacts, Bald Mountain Aroostook Maine, BEP, Bowker Associates, Bowker Associates Science & Research In The Public Interest, Center For Science in Citizen Participation, David Chambers, GO NO-GO Technical Framework, Highly Valued Natural Resources, History of Mining In Maine, Houston Kempton, JD Irving, LD1772 126th Maine Legislature, LD1851 Mine 126th Legislature, Maine Mining Regulations, maine mining rule rejection, Maine Mining Statute, massive sulfide risk management, Mining In Maine, Mining Regulation, Perpetual Treatment Policy, Robert Moran, volcanogenic massive sulfide and tagged , , , , , . Bookmark the permalink.

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