01/09/2017

Maine Board of Environmental Protection Unanimously Adopts Metallic Mineral Mining Rules

On January 5th, the Maine Board of Environmental Protection (Board) unanimously voted to repeal existing Chapter 200 Metallic Mineral Exploration, Advanced Exploration and Mining rules and adopt new Chapter 200 rules to implement the Maine Metallic Mineral Mining Act (Act), 38 M.R.S. §§ 490-LL et seq.  Enacted in 2012, the Act directed the Department of Environmental Protection (DEP) to provisionally adopt and submit to the Legislature major substantive rules related to the Act.  After years of public comment and deliberation, the Board intends to send the new rules, as well as its Basis Statement and a memorandum identifying areas of Maine’s metallic mineral mining laws for the Legislature to consider, to the Legislature’s Environment and Natural Resources Committee (ENR) within the next week.

This rulemaking was contentious from its outset.  In April 2014, despite the Board’s lengthy hearings, deliberative sessions, identification of changes for comment, as well as numerous oral and written comments, the Legislature passed a resolve disapproving the initial provisionally-adopted rule, which the Governor vetoed.  In January 2015, DEP resubmitted the provisionally-adopted rule to the Legislature, to which the ENR recommended specific revisions, but the bill still did not pass.

On August 18, 2016, DEP requested that the Board post further revisions to Chapter 200 for public hearing, re-initiating a public comment period and multiple Board deliberative sessions that extended to December of last year.  Over these four months, DEP and the Board received oral and written comments from nearly 500 people, the majority of whom were in opposition to the rules and the Act.

DEP’s final proposal incorporates a number of suggested changes, including:

  • Prohibiting wet storage of tailings
  • Prohibiting use of wet mine waste units after mine closure
  • Requiring independent third party inspection to monitor compliance with permit conditions throughout construction, operation, and closure
  • Requiring financial assurance that addresses a worst-case scenario, including the cost to investigate and remediate any possible releases of contaminants, and conduct treatment for at least 100 years
  • Standards for the protection of historic sites, unusual natural areas, scenic character, wildlife, and fisheries

The Board received 24 written comments on the final proposal before the close of the comment period on December 16, 2016, which, again, largely objected to the rules and the Act.  Issues raised during this final written comment period included:

  • Confusion over the definitions of, and provisions governing, tailings impoundments and wet mine waste units
  • Mining under water bodies
  • Mining on public lands
  • Mining and mining activities in floodplains and flood hazard areas
  • Discharge of contaminants to groundwater
  • The definition of mining area
  • Financial assurance and insurance requirements
  • Regulation of air emissions
  • The significance of a force majeure event
  • The rulemaking process and procedure

Many of these issues were raised again at the public comment session held on January 5 (and many were subsequently referred to the Legislature in memorandum topics approved by the Board, as discussed below).  Nevertheless, the Board unanimously voted to provisionally repeal Chapter 200 and provisionally adopt the proposed Chapter 200, as well as the Basis Statement, errata thereto, and an extra comment on mining under water bodies (that mining under great ponds, rivers, brooks, streams, and coastal wetlands has been successfully done in other jurisdictions, but that the absence of a prohibition on such mining does not constitute approval of such mining).

Subsequently, the Board discussed recommendations it would like to make to the Legislature regarding changes to the statutes governing metallic mineral mining.  It unanimously voted to include with the proposed Chapter 200 rules to be submitted to the ENR a memorandum outlining the following legislative recommendations:

  • Clarify the scope of 38 M.R.S. § 490(4)(H) regarding mining activities in flood plains and flood hazard areas to exclude beneficiation activities, waste treatment, and tailings impoundments
  • Clarify the scope of groundwater contamination exemptions under 38 M.R.S. § 490-OO(4)(D)
  • Amend the definition of mining area at 38 M.R.S. § 490-MM(12) to reflect clarification that multiple mining areas may exist on a mining site, consistent with the proposed Chapter 200
  • Clarify the definitions of tailings impoundments and wet mine waste units
  • Clarify financial assurance provisions
  • Clarify DEP’s regulatory authority for metallic mineral mining activities on public lands

The Board also expressed a desire that the Legislature understand that both the members of the public and the Board had concerns with the Act.  Nevertheless, the Board and DEP expect that any amendments made to the Act pursuant to these recommendations would not conflict with the substance of Chapter 200 as provisionally adopted.

If you have questions about this provisionally-adopted rule, please contact firm environmental attorney Lisa Gilbreath at 207.791.1397.