JSC ENR & MAINE LEGISLATIVE LEADERSHIP PUSHING AHEAD ON HEARING OF RE SUBMITTED MINING RULE THOUGH IT HAS NO LEGAL STATUS BEFORE THE LEGISLATURE

Maine’s lobbyist/ extraction industry dictated mining rules were rejected by majority vote of the Maine legislature  last term.  In the interim new elections changed the party balance in the senate and reduced the majority in the house of its  legislature. Without authority, and contrary to the advice of Maine’s Attorney General, DEP simply re submitted the rejected rules with no changes.  This questionably legal deliberation is proceeding under LD146.
An alternative ‘”responsible mining” bill, LD750, has been advanced by physicist Ralph Chapman, a member of Maine’s legislature representing  a district which includes Maine’s only two prior mine developments both failed and one a superfund site.( The Callahan Mine, Brooksville and the Kerramerica Mine Blue Hill). The bill, as Rep. Chapman characterizes it, represents a paradigm shift from the obviously failed “punitive  model of deterrence via payment for damages to one that attempts to prevent outcomes which will likely  compromise environmental security. and/or pose challenges to environmental security that  cannot be managed by any known proven technology.
Here is Representative Chapmans  framing of his bill at a hearing before  Maine’s Committee of jurisdiction on Monday March 30 in Augusta.
IP – LD 750 Pt 1 of 3 http://youtu.be/Vxmcbldh8Ys 53m
 

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The film was made by Eric A. Tuttle ,  one of several Maine videographers who have “Occupied Democracy” by filming public hearings sessions and posting publicly so Mainer’s unable to travel to Augusta can hear and evaluate for themselves.
At the end of his quiet professorial presentation, Rep. Chpaman in follow up questions with JSC ENR Committee members, had an an iconic exchange with Rep. John Martin that crystalizes the central issue: whether metallic mining is so valuable to the worlds economy that its pollution should be tolerated  for the “greater good” of having the metals or whether the world demand for metals should be met only through responsible  sustainable methods that insure environmental security now and in the future as closed facilities age and weather.
Representative Chapman summarizes his paradigm of repsonsible mining as founded on four common sense  principles:
(1) disallowing miners  and key consutant/sub contractors with bad track records
(2) allowing only those plans which can control or prevent contamination with known proven technology and
(3) continual acquisition of best knowledge and best guidance through  independent expert peer review ( independent of regulator and of mine proponent/operator) and
(4) a “life of mine” approach to oversight geared to  early recognition and response to contingences which fundamentally increase the level of environmental security risk.
Rep John Martin,  the original champion of Maine’s new mining statute challenged ” Aren’t you really just prohibiting mining, putting up barriers that make it impossible to mine in Maine?” ( paraphrased not transcribed)
Comfortaby, simply, non reactively, Representative Chapman replies: “Are you saying you don’t think there are responsible miners or that the mining industry is incapable of mining without pollution?  I don’t believe that.  I think the industry can attain responsible mining and I think we in Maine should frame our law to allow only that.  We should do it right if we are going to do it all” ( paraphrased)
The second part of LD750 proposes a moratorium on all mining permits until the statute can be realigned with its implementing rules,  In what may or may not have been an error in framing, the statute( Pl 2011 c.653)  provided a date certain (June 1, 2014) , for implementation of the statute but provided that its implementing rules required legislative approval before going into effect.  It stipulated that the old 1991 rules remain in effective until the new rules are legislatively approved.  This has left the old rules in effect without the law to which they refer in tact and with many areas of direct conflict between the statute and the old 1991 rules.
Bowker Associates wrote the following to Maine’s Committee of Jursidiction (JSC ENR) on the conflict in legal opinion as between DEP & Mining Lobby advocates on behalf of JD Irving and a lawyer retained by public advocate Charles Fitzgerald.to advise JSC ENR on interpretation of the statute..
Dear Members of the Joint Standing Committee on Environment and Natural Resources:
Further to yesterdays hearing on LD750, there is an obvious legal discrepancy between DEP/Irving Lobbyist interpretation of what applies under the status quo ( 1991 rules with new statute already law  as of June 1,2014) and what was opined to you by  Clifford Ruprecht, Esq. counsel to Charles Fitzgerald last term.
This alone calls for a change of planned course to insure once again that the JSC ENR seeks a clear and  legally binding alignment of the mining statute with its implementing rules as proposed in  LD750.  With this much legal uncertainty  on what would fundamentally govern any mining permit advanced, any consideration of continuing the status quo ( old rules new statute) is not an option in the public interest.
JSC ENR has no choice but to either provide a legislative cure as (proposed by LD750) or to suspend all work sessions and further consideration of the re submitted previously rejected rules until the Attorney General has ruled on this matter in a way that firmly binds DEP to a specific interpretation of law.
This letter from Portland Law Firm Roach, Ruprecht, Sanchez and Bischoff initiated by Bowker Associates(1)  opines that interpretation of the statute per normal rules of construction means the 1991 rules in their entirety ( not the mining statute that went effect June 1) now  governs any permit application. (ie any new permits would have to rely still on the pre-June1 revisions to Maine’s mining Law on which the 1991 rules rely). In the cpurse of public heraings  on March 30, 2015, Representative Duchesne wisely pointed to the circularity that would otherwise apply if this were not the case.
If Portland Attorneys are correct, this trumps Governor Le Page’s veto of proposed law in the  126th Session which sought this clear statutory alignment between the mining statute and its implementing regulations.  That is, if Mr. Ruprecht is correct,  we already have  the pre -mining statute status legally. If Mr. Ruprechts interpretation is correct that PL 2011 c.53 ( Ld 1853) is not “self implementing”  the slice and dice of the Maine’s environmental law that went into effect on June 1 cannot actually be applied to the processing and oversight of any permit.  Surely our own Attorney General can and should resolve this.  If the Ruprecht  letter is correct then we in effect already have a moratorium on implementation of PL 2011 C.653.
But given First Deputy Commissioner Heather Parents strong and repeated different interpretation, affirmed at the end by Irving lobbyist Tom Doyle of Pierce Atwood there is still uncertainty if nothing in  law actually binds DEP to the Ruprecht interpretation or even the Attorney General’s concurrence with it.
 I know you had no stenographer at yesterdays hearings but we have the video from which a transcript of exactly what both Ms. Parent & Mr.Doyle said .  My very clear memory ( this has been a key Bowker Associates issue from the outset so I pay very close attention to all that is said and written on this point) is that Ms. Parent more than once said that presently in processing a permit DEP would go by the new mining statute where there is a conflict.  Irving lobbyist Tom  Doyle  who had not planned to testify ( he said) thought it important enough  to affirm the same as Ms. Parent when he got up to  speak at the end of the hearing.  This is an untenable difference of opinion  with Maine’s environmental security and purse strings so highly at stake.
 Co-Cairs, Weslh & Savilelo , and members Harlow & Chipman know and hopefully have already shared with other committee members, how and why JSC ENR wisely decided last session not withstanding this  letter to call for the “moratorium” LD750 advcates now. ( That was also Bowker Associates advocacy)
It is on the basis of this letter that NRCM, Conservation Law  and other signatories to a 2nd  letter from the same law firm  have not, until the most recent hearing on March 30, called for the moratorium LD750 advocates ( by way of crystal clear clarification of intent).
LD750 is a certain path to legal clarity that is unambiguously binding on DEP.This alone clearly establishes that statute is the only way to resolve  this issue and avoid the chaos that will otherwise ensue.
JSCENR cannot and should not take any further action on LD146 until this issue is resolved in a way that is legally binding on DEP and all mining proponents in simple clear unambiguous language.
 
Just the existence of this conflict in interpretation is reason to adopt the the path Rep Chapmans bill LD750 urges.  To do otherwise puts Maine’s environmental security and Maine taxpayers at extraordinary and inexcusable risk.
I have copied other parties of interest to this further comment on LD750 includig Maine press who have covered mining and all official “interested parties”
Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager
Bowker Associates
Science & Research In The Public Interest
15 Cove Meadow Rd.
Stonington, Maine 04681

(1) Bowker Associates was pursuing a legal opinion of Mr. Roach of whether the BEP vote approving the rule was legal as substantive additions had been made without the MAPA required 10 day notice and also on whether a failure to reject the rules would trigger “the poison pill” and automatically make the rules legal.  Mr.Fitzgerald had agreed to fund that engagement of Roach under Bowker Associates direction and control but after conferring with NRCM and Conservation Law, Mr. Fitzgerald elected to go this route. Unfortunately there was never an official finding as to whether Mr. Roaches opinion is correct and legally binding on DEP and mining proponents.

Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager
Bowker Associates
Science & Research In The Public Interest
15 Cove Meadow Rd.
Stonington, Maine 04681

Here are two additional portins of the entire hearing on LD75 on Monday March 30 in Augusta.

IP – LD 750 Pt 2 of 3 http://youtu.be/xbV_p6hFr28 1h21m
IP – LD 750 Pt 3 of 3 http://youtu.be/IgfSrnJWfbY 1h16
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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, Bowker Associates Science & Research In The Public Interest, JD Irving, John Martin Maine Legisilature, LD146127th Maine Legislature, LD1750 Maine 126th Legislature, Lindsay Newland Bowker, Maine Mining Law, Maine Mining Rules, Mining In Maine, Mining Risk Management, Ralph Chapman, Responsible Mining and tagged , , , , , , , . Bookmark the permalink.

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