Senator Saviello, Representative Welsh, and members of the Environment and Natural Resources Committee:
My name is Nick Bennett, and I am the Staff Scientist for the Natural Resources Council of Maine (NRCM). NRCM is Maine’s largest environmental advocacy group with over 16,000 members and supporters. NRCM opposes the Committee’s proposed amendments to LD 750 because:
- They would allow mines that would require 20 years of wastewater treatment even after the mine is closed. This is unacceptably long and would allow mining companies to exploit even very dangerous sites. The rules should only allow mines that can demonstrate they can complete wastewater treatment within 10 years or less of closure. (Proposal Number 30, P.5.)
- They contain a proposal to allow mining on all public reserved lands, including spectacular consolidated public lands such as Deboullie, Nahmakanta, and Telos. The Committee should ban mining on public lands, including public reserved lands. (Proposal Number 17, P.3)
- The requirements concerning tailings ponds and “wet mine waste units” are not realistic or clear. LD 750 proposes allowing wet mine waste units and tailings ponds during the active life of a mine but not afterwards. It is, however, very difficult or impossible to dry out a wet tailings pond after closure unless it is designed and managed properly from the beginning, which LD 750 doesn’t require. Also, wet covers are often used because they reduce acid generation from very reactive waste, which would be expected at Maine mines, especially at Bald Mountain. If a company needs to use a wet cover during the life of a mine to prevent acid mine drainage, it can’t just switch to using a dry cover when it is done mining. The Committee should require dry management of mine waste from the beginning of a mine operation to avoid tailings dam failures, one of the most dangerous types of mining disasters. (Proposal Number 29, P.4)
- It proposes allowing DEP enormous discretion to complete the rules with no further legislative oversight or public hearing. This is unacceptable. The Legislature should review and the public have the right to comment on any new rules DEP develops. These rules are far too important to allow DEP to finalize them without any oversight. (Proposal Number 33, P.5).
These proposals are so contradictory in places that it is impossible to discern the intent of the Committee. These recommendations do not provide clear, protective requirements for mining companies and therefore will not protect Maine from mining pollution. The only clear and strong proposals concern financial assurance, the money mining companies must pay up front in case of an environmental disaster.
NRCM has the following specific comments on the proposed amendments to LD 750:
Sec. 2. 38 MRSA §490-MM, Sub-§3
NRCM supports the change to beneficiation to exclude in situ leaching.
Sec.3. 38 MRSA §490-MM, sub-§7
NRCM supports the change to prohibit in situ leaching. However, NRCM also urges the committee to ban block caving.
Sec.4 38MRSA §490-MM sub-§12
This definition remains unclear. Because the rules allow unlimited groundwater contamination in the mining area, the Committee must make sure that this definition is clear. NRCM recommends using the definition of mining area from LD 1302 and adding the definition of “mining activity unit” as in LD 1302.
Moreover, it remains unclear why reservoirs should be allowed to be a source of groundwater contamination, which their presence in this definition allows.
1-3. NRCM supports the prohibition of in-situ leaching.
4. NRCM objects to the proposed definition of mining area. See comments on Sec. Sec.4 38MRSA §490-MM sub-§12.
5. This definition is not clear. This should contain examples of passive treatment systems.
6. NRCM has no comment on this provision.
7. This definition is not clear. Is this both for fresh and process water?
8. NRCM opposes this language. The Committee should require the same testing regime as the 1991 rules. NRCM also disagrees with Heather Parent’s assertion during work session that baseline
testing is unnecessary for organic compounds. Mines use many organic solvents and petroleum compounds. Establishing baseline levels of these contaminants is essential in case of future spills.
9-11. NRCM supports these changes.
12. NRCM believes this language needs further clarification and is unaware of language in the Administrative Procedures Act (APA) describing the rights of citizen intervenors to participate in site visits. If such language exists, the rule should refer to it specifically by section. If it does not exist, the rule should drop reference to the APA.
13. NRCM opposes this language and believes it lacks teeth and clarity. At the very least, the Committee should remove the phrase “demonstrating that the applicant would not be capable of complying with the terms and conditions of a mining permit”.
14-15. NRCM supports both 14 and 15. These are the clearest, strongest proposals in the proposed amendments to LD 750.
16. NRCM opposes this change. If the Committee adopts proposals 14 and 15, 16 is unnecessary. If the Committee fails to adopt 14 and 15, the sum of money in 16 is inadequate to cover a catastrophic event such as a tailings dam failure.
17. NRCM opposes this provision. Title12, Chapter 201-A appears to allow mining on all state-owned public lands. NRCM opposes mining on public lands and believes the Committee should amend or eliminate Title12, Chapter 201-A — which dates from 1985 — to ban mining on public lands. Also, the statement in 17 reading: “no mining shall be conducted in or on public reserved lands, but not including public reserved lots described in Title 12, section 1801(8)A)” allows mining on both consolidated lots (such as Deboullie, Nahmakanta, and Telos) and unconsolidated lots. This is because Title 12, section 1801(8)(A) does not distinguish between consolidated and unconsolidated lots. The Committee should strike all of 17 and should instead adopt the following requirement:
Mining should not be allowed “in, on or under” the following:
(a) National and state parks;
(b) National wilderness areas;
(c) National wildlife refuges;
(e) State-owned wildlife management areas pursuant to 12 M.R.S. § 10109(1);
(f) Public reserved lands;
(g) State or national historic sites;
(h) The Allagash Wilderness Waterway;
(k) Lands under great ponds and other state-owned submerged lands;
18. NRCM supports this provision but believes it is insufficient and recommends banning mining from all of the lands listed above.
19. NRCM supports this provision but believes it does not provide setbacks for the consolidated lots (such as Deboullie, Nahmakanta, and Telos). This is because Title 12, section 1801(8)(A) does not distinguish between consolidated and unconsolidated lots. This provision also does not provide a setback for lakes that may not be outstanding scenic resources but have outstanding fisheries or wildlife values because 20(B)(4) only includes lakes with outstanding scenic values. This provision also does not require setbacks on outstanding river segments. The Committee should require a one mile mining setback from the following resources:
(a) National and state parks;
(b) National wilderness areas;
(c) National wildlife refuges;
(d) State-owned wildlife management areas pursuant to 12 M.R.S. § 10109(1);
(e) Consolidated public reserved lands; State or national historic sites;
(f) The Allagash Wilderness Waterway;
(g) Any river or stream designated pursuant to the federal Endangered Species Act as critical habitat for Atlantic salmon;
(h) One of the great ponds located in the State’s organized area identified as having outstanding or significant scenic, fisheries, or wildlife quality in the “Maine’s Finest Lakes” study published by the Executive Department, State Planning Office in October 1989;
(i) One of the great ponds in the State’s unorganized or de-organized areas designated as outstanding or significant from a scenic, fisheries, or wildlife perspective in the “Maine Wildlands Lakes Assessment” published by the Maine Land Use Regulation Commission in June 1987.
(j) Rivers designated as “outstanding river segments” under the NRPA and/or under 12 MRSA Section 403;
(k) Any river or stream with water quality classified by the DEP as Class AA.
20. NRCM supports this provision.
21. NRCM opposes this provision. The term “to the extent feasible and practicable” is too vague. How will the Department measure this?
22. NRCM supports this provision but also believes the Committee should amend the rules further to require at least monthly sampling for metals.
23-25. NRCM does not oppose these provisions but believe they provide only minimal clarification.
26. NRCM opposes this provision. We believe this provision is the result of a discussion during work session in which Senator Saviello stated that the rules require monitoring wells within mining areas. NRCM supports requiring monitoring wells within mining areas in addition to compliance monitoring wells, which would be at the edge of mining areas. This provision does not require monitoring wells within mining areas.
27. NRCM believes this provision is unrealistic. There will be no way for the Department to determine all of the possible areas where groundwater may discharge to surface water.
28. NRCM has no comment on this provision.
29. NRCM strongly opposes this provision. Many times during the work session, members of the Committee and Department officials said that the final rules would no longer contain the term “wet mine waste” unit. Nevertheless, this provision again uses the term. The rules do not contain a robust definition of wet mine waste unit. Also, if a wet mine waste unit is necessary to provide a water cover to limit oxygen exposure to acid-generating waste, the need for a water cover will not end with the completion of mining. The waste will likely require the wet cover in perpetuity.
NRCM still does not understand what a wet mine waste unit is. This is not a typical mining technical term, and it appears that the Department invented it. Also, a tailings impoundment would be a wet mine waste unit as defined in the rules. Tailings are typically wet and they are a type of mining waste. Therefore, how could a tailings impoundment not be a wet mine waste unit?
NRCM previously sent the Committee the following excerpt from a mining industry paper on tailings impoundments in British Columbia:
The mining industry in British Columbia is in the process of constructing a number of large mine waste impoundments contained by large dams, and given robust conditions within the industry, more such facilities are being planned. In many instances, these impoundments are required to maintain a state of permanent submergence to prevent acid rock drainage from the impounded tailings and waste rock. Much has been learned in how to properly characterize and manage these wastes, and how to construct the dams required to contain and flood them. British Columbia has made substantial contributions to this body of knowledge, experience, and evolving practice. What has been learned and incorporated into the construction of these mine waste impoundments will be the mining industry’s bequest to future generations. The principles of sustainability mandate that we consider fully, today and in the future, the nature of that bequest, how best to manage it, and how it is likely to come to be viewed, and managed, by future generations, for there is never an inopportune moment to step back and contemplate what we are doing today and planning for tomorrow… In B.C., Provincial ML/ARD guidelines observe that for subaqueous disposal to effectively prevent ARD over the long term, “the storage location must remain permanently flooded and geotechnically stable.” Italics in original. Accessed at: http://www.infomine.com/library/publications/docs/Martin2011b.pdf.
The Committee should take away two key conclusions from the above excerpt:
1) Tailings impoundments are wet mine waste units; and
2) For wet covers of acid-generating mining waste to work, they must cover the waste permanently.
Although the committee can issue a paper requirement for mining companies to switch from wet waste management to dry waste management at closure, mining companies will not be able to meet this requirement in the real world. Maine will then be stuck with tailings impoundments that the Department and state taxpayers will have to deal with in perpetuity.
If the Committee 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 the Committee should require dry stacking of tailings. If the Committee wishes to allow some degree of wet storage of tailings but eventually require drier storage, it should require companies to design tailings impoundments with drains underneath them and require paste or thickened tailings management (see, for example, http://www.tailings.info/disposal/paste.htm).
Finally, 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 80% 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).
30. NRCM strongly opposes this provision. The Committee should amend the rule to provide that perpetual treatment means treatment for more than 10 years post-closure.
31-32. NRCM has no comment.
33. NRCM strongly opposes this provision. The Committee is likely to propose many changes to the rules. It has the duty to ensure that the public has the opportunity to comment on the Department’s interpretation of these proposed changes. The Committee also has the duty to ensure that the Department makes any changes accurately.
Conclusion
In conclusion, NRCM strongly opposes this proposed version of LD 750 and urges the Committee to vote ought not to pass for all of the reasons listed above. NRCM believes the Committee should reject the proposed mining rules outright as it did last year.
However, if the Committee is determined to issue a revised set of rules, it should make sure it understands exactly what it is asking for and what it is likely to get. For example, it should examine the details behind the pretty pictures of tailings ponds Mr. Butler passed around. Did these mines use paste or thickened tailings? Are they pictures of true dry covers or are they wetlands covers with a tailings slurry underneath them? Do these “dewatered” tailings ponds have dams? If so, that would suggest they are not truly dewatered.
Similarly, mining industry lobbyists and Department officials have talked about lining waste rock piles and tailings ponds, but the rules do not require this anywhere. If the industry plans to line waste rock piles and tailings ponds, it should not object to the rules requiring this. There are likely many other examples where the rules do not require the type of management the Department and the mining industry says will occur. The Committee should amend the rules to require mining companies to do what the Department and industry lobbyists have said they will do.
Thank you for the opportunity to testify. I would be happy to answer any questions.
