Good morning Chairman Parker and members of the Board of Environmental Protection.
My name is Nick Bennett, I am the Staff Scientist for the Natural Resources Council of Maine, and I am testifying in opposition to these proposed rules. Previous versions of these rules were not protective of Maine’s water quality or its taxpayers, and neither is this version.
The fundamental purpose of these rules is to allow unlimited pollution of groundwater in mining areas. DEP has admitted that this groundwater pollution will spread, stating in its 2014 basis statement: “such groundwater will almost inevitably leave the area where the discharge occurs (Basis Statement, Part I, P. 129).”
The Legislature rejected very similar rules from DEP in 2014 and 2015 by overwhelming bipartisan majorities.
Metal mining is one of the most dangerous industrial activities, and Maine is a tough place to mine. Cold, snowfall, and heavy rain all make mining particularly difficult in Maine. Maine metal deposits are also likely to have high levels of sulfur. When sulfur in wasterock and tailings react with air and water, it creates sulfuric acid. This is called acid mine drainage. Sulfuric acid is especially dangerous to cold water fish. Brook trout and landlocked salmon are Maine’s most important cold water game fish, and they are extremely sensitive to decreased water pH. Sulfuric acid can also leach out heavy metals naturally present in ore and wasterock—including arsenic, lead, mercury, zinc, and copper. Zinc and copper are particularly deadly to fish and other aquatic organisms. Arsenic is a known human carcinogen.
We have reviewed the records of many mines around the country, examined mining rules in other states, and spoken with mining experts and affected citizens about mining pollution over the past four years. We have learned that mining companies have a terrible record of polluting the environment and leaving the public to pay the cleanup costs. If Maine is going to have large-scale metal mining again, it needs to have very protective rules. These proposed rules are not protective enough.
The rules you have in front of you today exist because of JD Irving’s stated desire to construct an open pit mine at Bald Mountain in Central Aroostook County at the headwaters of the Fish River. In 2012, this huge Canadian company (and Maine’s largest landowner) pushed through a bill requiring a complete rewrite of Maine’s mining rules, claiming the existing rules were too strict to allow it to mine at Bald Mountain. At the same time, Irving also claimed that “new and advanced” technologies have made mining safer than ever before. If that statement were true, JD Irving would not need new, less protective mining rules that would allow them to cause unlimited contamination of Maine’s groundwater in mining areas. Given the fractured bedrock geology in Maine, it simply isn’t possible to contaminate large quantities of groundwater without also contaminating surface water. These rules will result in large-scale groundwater pollution and surface water pollution.
Here are some of the biggest specific problems with the proposed rules:
- The rules do not require mining companies to pay enough money up front to cover the costs of a mining disaster. Disasters happen frequently in the mining industry and can cost hundreds of millions of dollars to clean up. All too often, the financial assurance mining companies pay upfront is not sufficient to cover the costs of disaster cleanup. If a mining company goes bankrupt after a disaster, also a common occurrence, taxpayers must foot the bill for cleanup. This is what happened at the Summitville Mine in Colorado and the Beal Mountain and Zortmann-Landusky Mines in Montana, for example. All of these were modern mines and will cost hundreds of millions of dollars to clean up. Maine taxpayers are still paying about $1 million per year for cleanup at the Callahan mine in Brooksville. That mine closed in 1972, and the biggest part of the cleanup has not even started. The mine is still contaminating water, sediments, and fish in the area.
The rules should require a third party estimate of the cost of a worst case scenario mine failure and require a company to provide financial assurance in that amount as a permit condition. The mining company should maintain financial assurance for as long as such a risk exists.
- The rules should require stronger protection of Maine’s public lands, rivers, lakes, and coastal waters. Sections 20(B)(3-4) are confusing and not protective. On the one hand, Section 20(B)(3) states:
Removal of ore in, on or under from [sic] great ponds, rivers, brooks and streams, and coastal wetlands as defined in 38 M.R.S. § 480-B is prohibited.
On the other hand, Section 20 (B)(4) lists numerous waterbodies and lands over which DEP says it may lack jurisdiction. Specifically, Section 20(B)(4) states:
These setbacks shall apply unless and until another state or federal agency with management authority determines that mining is allowed in, on or under the following:
(a) National and state parks;
(b) National wilderness areas;
(c) National wildlife refuges;
(d) The Allagash Wilderness Waterway;
(e) State-owned wildlife management areas pursuant to 12 M.R.S. § 10109(1);
(g) State or national historic sites;
(ah)Any river designated pursuant to the federal Endangered Species Act as critical habitat for Atlantic salmon;
(bi) One of the 66 great ponds located in the State’s organized area identified as having outstanding or significant scenic quality in the “Maine’s Finest Lakes” study published by the Executive Department, State Planning Office in October 1989; and
(cj) One of the 280 great ponds in the State’s unorganized or de-organized areas designated as outstanding or significant from a scenic perspective in the “Maine Wildlands Lakes Assessment” published by the Maine Land Use Regulation Commission in June 1987.
This is some of the strangest language for rules that NRCM has ever seen. DEP is essentially admitting it does not know its own jurisdiction. That is unacceptable given the need for clear and protective mining rules. If DEP is concerned that it lacks jurisdiction over the specific waterbodies and lands in 20(B)(4), how can it also be confident that it has jurisdiction to prohibit mining in, on and under the waterbodies in 20(B)(3), which include waterbodies in 20(B)(4)?
DEP has also stated orally to this board that it has no authority to protect Public Reserved Lands. Does that mean it believes mining is acceptable anywhere in those lands, including in on and under waterbodies?
Title 12 Section 549 et. seq. contains laws related to mining on state lands. Title 12 Section
549-C states: “Nothing in this subchapter may be deemed to relieve any explorer or mining lessee from the obligation to comply with all applicable environmental or other regulatory laws and rules of the State.” NRCM reads this to mean that any mining company would have to comply with all DEP mining rules on any state lands, including public reserved lands and lots.
However, even if DEP is correct that it lacks statutory authority to protect state lands, it has had five years to ask for the statutory authority to do so. If the Administration asked for this authority, the Legislature would almost certainly grant it, but the Administration has not asked. DEP asked for other statutory changes in 2015 in LD 750, but it has not sought the ability to better protect Maine’s public lands and waterbodies. Why not? NRCM fears that it is because the Administration wants to encourage mining in, on, and under public lands and waterbodies throughout the state. NRCM strongly opposes this.
- The rules should prohibit dangerous components of mines from floodplains and flood hazard areas. Allowing mine pits, shafts, wasterock piles, and tailings ponds in floodplains and flood hazard areas is very dangerous. There is no way to make these sorts facilities safe from a 500-year flood, as Section 20(B)(1) states it would require. This is a meaningless requirement. Mining is a very risky activity under any circumstances. Allowing mining in flood-prone areas increases its risks.
- As in prior versions of these rules, the requirement that wet mine waste units only operate during the active life of a mine is unenforceable and meaningless. It would force Maine to cope with large quantities of submerged, acid-generating waste forever. Section 2 defines wet mine waste unit as:
“Wet mine waste unit” means a mine waste unit that uses water as a cover to minimize oxygen advection and diffusion to Group A waste in a manner that effectively inhibits formation of acid rock drainage. Wet mine waste units shall not be used for storage or treatment of mine waste after closure.”
DEP seems to have developed term “wet mine waste unit”, which is not a common mining term specifically for a mine at Bald Mountain. In a 1990 report, a consultant for the mining company Boliden, a prior owner of Bald Mountain, stated:
“Acid-base accounting tests performed on the mine rocks as part of this study have demonstrated that the 13 million tons of foot wall mine rock and 12 million tons of massive sulfide mine rock would be potentially highly acid generating.”; and
“The massive sulfide rock contains up to 50% sulfur and exhibits a very high net acid generation potential. It would be necessary to place this material below water soon after the rock has been mined…”
The reason mining companies place mine wastes underwater is because doing so helps reduce acid generation by limiting exposure to oxygen. This does not eliminate acid generation because oxygen is also present in water. Companies must keep highly acid-generating rock or tailings covered with water permanently.
It makes no sense to allow water covers only during the life of a mine. DEP cannot possibly enforce this requirement. How will it make any mining company move millions of tons of wasterock from underwater to some other sort of storage? This will never happen. Instead, Maine will have to deal with large quantities of submerged acid-generating waste permanently. Over time, the waste will eventually contaminate groundwater and surface water.
If DEP wants to eliminate the use of water covers, it needs to require dry management of wastes from the start at all mines. This also means that DEP would have to deny permits to mine orebodies that generate large amounts of acid-generating waste that requires wet covers. NRCM would support this.
DEP cannot reasonably claim it can allow mining companies to discard millions of tons of acid-generating waste underwater temporarily and then find a safe, dry home for that material at a later date.
- As in previous versions of these rules, DEP does not clarify why a tailings pond is different from a “wet mine waste unit”. Tailings ponds contain the waste slurry from ore processing. The slurry is a mix of processing chemicals, water, and fine wasterock. At sulfide metal mines, the subject of these rules, the tailings often generate acid when exposed to air and water. Companies therefore keep the tailings flooded to reduce acid generation. How is this different from a “wet mine waste unit”? Does DEP plan to require companies to use tailings ponds only during the active life of a mine? If so, where does it expect a mining company to take its tailings after mining is completed? Or, does DEP plan to allow companies to take waste out of “wet mine waste units” and put it in tailings ponds?If DEP wants an effective requirement that mining companies not use wet management after closure, it needs to require that mining companies plan accordingly from the start. NRCM believes these rules should require dry stacking of tailings. Allowing wet management of tailings and other mine waste during the life of the mine but not after will not lower the risk of tailings dam failure very much. The majority of tailings dam failures – more than 90% according to one study – occur during the active life of mines (M. Rico, G. Benito, A.R. Salgueiro, A. D´ıez-Herrero, H.G. Pereira, Journal of Hazardous Materials 152 (2008), pp. 846–85), accessed at http://pebblescience.org/pdfs/Ricoetal2008TailingsDamFailures.pdf).
NRCM strongly opposes these rules. Maine people depend on clean water to support critical economic engines for our state: tourism, fishing, hunting, guiding, paddling, and many other activities. Wildlife watching, hunting, and fishing combined are worth about $1.4 billion annually. Fishing alone is worth about $370 million per year. Maine lakes support about 52,000 jobs with an economic impact of $3.5 billion annually. These weak mining rules are a serious threat to our clean water and sustainable, job-creating industries that depend on a clean environment.
I would be happy to take any questions.
 In 2014, the House voted 98-39 to reject the rules. The Senate did not have a roll call vote. In 2015, the House voted 109-36 and the Senate voted 26-8 to reject the rules.
 Associated Press. 2013. Study: Closed Maine mine polluting water with toxic metals. September 20. Published in Portland Press Herald. Accessed at: http://www.pressherald.com/2013/09/20/researchers-look-at-maine-mine-contamination/.
 Steffen Robertson, and Kirsten (B.C.) Inc. 1990. Opinion of Technical and Economic
Aspects of Waste Management, Bald Mountain Project. P. 5-7. Foot wall rock is rock from
underneath the ore body.
 Ibid., P. 5-8
 U.S. Fish and Wildlife Service. 2012. 2011 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation, State Overview. P. 8. Accessed at: http://digitalmedia.fws.gov/cdm/ref/collection/document/id/858
 Ibid., P. 18.