Chairman Foley 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 (NRCM) and I reside in Hallowell. I am testifying in opposition to the draft Chapter 200 Metallic Mineral Mining Rules.
NRCM believes these draft rules will not protect Maine’s environment or Maine taxpayers from the risks of metal mining in sulfide ore deposits like those we have in Maine. When the material in these deposits reacts with air and water, it forms sulfuric acid. This acid can kill fish and other aquatic creatures when it enters surface water. The acid also leaches toxic heavy metals from rock– metals such as arsenic, lead, copper, and zinc (the last two are particularly deadly to aquatic organisms). This type of acid and heavy metal pollution is called acid mine drainage.
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 18 months. 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 allow large-scale metal mining again, it needs to have very protective and clear rules. These draft rules are neither protective nor clear.
The draft 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. Although the irony in this argument seems obvious, JD Irving’s bill passed and now the Board must grapple with these rules.
As you do that, please consider the following three points:
1. Bald Mountain is a very dangerous ore deposit with extremely high concentrations of sulfur and arsenic. It has a high risk of extensive pollution and large cleanup costs. A recent NRCM report I have attached to this testimony describes that risk. It is poor policy to weaken rules to allow mining at a site this dangerous. If anything, this is a site that calls for even stricter rules;
2. Although we are here today because of Irving’s interest in Bald Mountain, these rules will apply statewide. NRCM believes these weak rules will likely allow a Bald Mountain mine to pollute the Fish River and its headwaters in Aroostook County, which are very well known for their brook trout, but these rules could also threaten many other treasured places. I have attached a map of volcanic sedimentary deposits in Maine. These are places where mining companies would look for sulfide ore like that at Bald Mountain. Such deposits are present in much of the Western Mountains, along the Downeast Coast, in Central Aroostook County, near Moosehead Lake, and on both sides of Cobscook Bay. Thus, these rules are very significant policy for the entire state of State of Maine.
3. Mining companies are typically overconfident about their ability to mine without damaging the environment. JD Irving fits this pattern as well. Jim Irving is so confident that an open pit mine will not pollute the Bald Mountain area, he stated the following at a public forum: “If I can’t go and drink the water at the end of the pipe coming from the mine, we shouldn’t be doing it.” (1) However, a recent study shows this confidence is misplaced. The authors looked at 25 mines, and the owners of all 25 mines predicted their operations would cause no pollution. 76% of the mines had pollution that exceeded water quality standards. (2)
Specific recommendations to improve the rules
1. These rules are sprawling and poorly organized. They need to be shorter and clearer. Just considering the example of groundwater, if I were an applicant or a regulator, I would not be able to tell what substances and parameters I would need to collect data for, how many years of data (3) I would need, at what frequency I should collect the data, and what range of flow conditions I would need to ensure that I could calculate representative baseline concentrations of contaminants. I would later need these data to prove compliance, but would compliance be based on comparing samples downstream from a mine with long-term average background concentrations, instantaneous background concentrations obtained at the same time as the downstream sample, or some other scheme entirely? The rules are unclear on these points and should not be.
2. The Board should require that mining companies complete post closure wastewater treatment within 10 years after mine closure. DEP should not grant a permit to any mine that cannot demonstrate it can complete wastewater treatment within 10 years of closure. Ten years is ample time for cleanup. This is what a mine can accomplish if it adopts best practices. Allowing 30 years of treatment, as these rules would, increases the risk that a mine operator will run out of money for treatment—shifting costs to Maine taxpayers and increasing the risk of contamination of Maine waters. Allowing cleanup to extend for three decades post-closure also increases the risks that water treatment will have to continue in perpetuity, a serious problem for both the environment and taxpayers.
A recent study of 40 mines in the U.S. shows that all 40 of them will require treatment of wastewater in perpetuity, literally for hundreds or even thousands of years. Because this time span is likely to exceed the life of any mining company, taxpayers will probably pay the bulk of the long-term treatment costs, which the study estimates at $57-$67 billion per year in total. (4) Maine’s rules must prevent mines that would require water treatment forever.
2. The Board should strengthen the rules’ requirements to keep groundwater contamination to a minimum. Once groundwater pollution spreads over a large area, it is almost impossible to collect and treat. In Maine, it will also quickly flow in to surface water. NRCM recommends the board adopt the following language from Section 11 (3-A) of the majority report on LD 1302, Representative Jeff McCabe’s bill from last session, to minimize groundwater contamination (5):
Minimizing groundwater contamination. A permittee shall minimize the contamination of groundwater to the greatest extent practicable. The department shall require that compliance monitoring wells be located as close as physically practicable to, but not more than 100 feet from, the activity unit being monitored for groundwater contamination. The department may approve an alternative water monitoring location only if the operator demonstrates the location is protective of the environment and public health and safety and a closer location is not feasible or effective.
Some individuals opposed to strict mining rules have said that this 100 foot distance was arbitrary, but it is the exact same requirement Maine has for solid waste landfills. Chapter 405 of DEP’s solid waste rules states:
The downgradient monitoring wells must be located as close as practical to the solid waste boundary(s) of landfills, or the waste handling area of solid waste facilities that are not landfills, but in no case greater than 100 feet away, unless placing some of the wells at greater distances enhances the ability to detect a release from the facility. In such a case, placement of wells more than 100 feet distant may be proposed for approval by the Department. (6)
The 100-foot requirement is a place to start a conversation between DEP and an applicant. It is only a default requirement, and an applicant will still need to do hydrogeological studies as part of its baseline characterization of any site. However, if the board adopts this requirement and the applicant wants to put monitoring wells further away than 100 feet from any contaminating activity, the burden to prove that it is safe rests with the applicant, not with DEP. The current draft rules has this situation flipped: letting the applicant propose where to put compliance monitoring wells and placing the burden of proof on DEP if it wants to require that the wells be located closer.
In addition, at its September 12, 2013 presentation to the Board, DEP stated that the draft rules do not allow contamination of groundwater over an entire mining site but only in small rings around individual mining activities. (7) However, the draft rules do not actually say this. Rather, the draft rules allow unlimited groundwater contamination in a mining area, which is defined as follows:
“Mining area,” or “metallic mineral mining area” means an area of land described in a permit application and approved by the Department, including, but not limited to, land from which earth material is removed in connection with mining, the lands on which material from that mining is stored or deposited, the lands on which beneficiating or treatment facilities, including groundwater and surface water management treatment systems, are located, or the lands on which water reservoirs used in a mining operation are located.(8)
To accomplish this, we urge the Board to use the above language from LD 1302.
3) The Board should require mining applicants to pay 100 percent of financial assurance up front, not fifty percent as these draft rules allow. In addition, DEP should select a qualified third party to verify the amount of financial assurance and ensure that it is sufficient to pay the full costs of mine closure and reclamation. Mining companies often go bankrupt quickly if metal prices crash. This is exactly what happened at the Beal Mountain Mine in Montana. The liner underneath a part of this small, modern mine leaked cyanide for years (9). It began operation in the late 1980s and closed in 1998 when its Canadian owner went bankrupt. So far, the federal government has spent about $10 million in taxpayer dollars cleaning up this site. The company’s $6.6 million reclamation bond is also gone. Estimated additional cleanup costs range from $25 million to $200 million (10). The public will pay all of this. To prevent taxpayers from having to pay cleanup costs for mining messes in Maine, these rules need to require an applicant to verify the cleanup costs through an independent third party assessment and pay complete financial assurance up front.
The mining industry has a troubled record of overestimating jobs and underestimating environmental damage. The Callahan mine was supposed to rejuvenate the Downeast economy. It operated for only four years and forty years later Mainers and the American public are still paying to clean it up. A recent Dartmouth study shows the mine is still leaching dangerous levels of heavy metals into the surrounding waters.
We need strong standards to prevent this from ever happening again. We should not weaken Maine’s rules at Irving’s request just so it can mine Bald Mountain by open pit. We need strict and clear rules that protect the whole state from mining pollution.
Thank you for the opportunity to testify. NRCM will also submit detailed written comments by October 28. I’d be happy to take any questions.
2 Anne Meist and Jim Kuipers. 2006. Predicting water quality problems at hardrock mines. A Failure of Science Oversight and Good Practice. Accessed at www.earthworksaction.org/files/publications/PredictionsComparisonsWhitePaperFINAL.pdf. P. 2.
3 In its September 12, 2013 presentation to the Board on these draft rules 2013, DEP stated it would require two years of background groundwater and surface water data. See slide entitled: “Pre-application Phase, ‘Front-load” Process”. However, the draft rules do not state this anywhere in their text. Slide is attached to this testimony.
4 2013. Polluting the Future: How Mining Companies are Contaminating Our Nations Waters in Perpetuity. Earthworks. Accessed at http://www.earthworksaction.org/files/publications/PollutingTheFuture-FINAL.pdf. P. 4.
5 The LD 1302 Majority Report passed the House 97-40 but failed in the Senate 16-19.
6 DEP Rules, Chapter 405, P. 3. 2013.
7 DEP PowerPoint presentation on mining to the BEP. See slide entitled: “Metallic Mineral Mining Site.” September 12. Slide is attached to this testimony.
8 DEP Rules, 2013/08/16 Draft Chapter 200, Subchapter 1 (2)(BBB), P.6.
9 See the articles at http://mtstandard.com/news/local/beal-mountain-mine-reclamation-ongoing/article_4d60df92-5b1b-5a07-9d5f-deb0aceb9928.html and http://helenair.com/news/state-and-regional/cleanup-costs-mount-at-beal-mountain-mine-site/article_99b32fbe-351b-5fe6-9651-caeb10c14260.html.
10 See www.waterboards.ca.gov/academy/courses/ard/day4/day4_sec2a_i_iii_bealmt_stillwater_phoenix_jk.pdf