May 26, 2018
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AG’s staff: DEP violated procedures by resubmitting unchanged mining rules

By Christopher Cousins, BDN Staff

AUGUSTA, Maine — The Maine attorney general’s office said Wednesday in a memo to the Legislature’s Environment and Natural Resources Committee that the Department of Environmental Protection’s resubmission of previously rejected mining rules violates the state’s Administrative Procedures Act.

At issue are mining rules that were under development for more than a year and approved last year by the DEP and the citizen-led Board of Environmental Protection. The rules hit a snag when they went to the Legislature, which rejected them over the veto objection of Gov. Paul LePage.

This year, the department has resubmitted the exact same rules verbatim. They were the subject of a heavily attended public hearing on Wednesday at the State House. The hearing stretched late into the afternoon.

A Feb. 23 memo from assistant attorneys general Mary M. Sauer and Jerry Reid said the DEP’s decision to resubmit an exact version of previously rejected rules was unprecedented. The memo states that it was not a formal opinion of the attorney general, “but a summary of our views as we have previously expressed them to you.”

“We believe the resubmission of the provisionally adopted mining rules about one year after the date of the [BEP’s] provisional adoption … is inconsistent with intent and language in the Maine Administrative Procedures Act,” states the memo.

Last year, the Legislature passed a bill that ordered the DEP to start over on the rules and resubmit them to the Legislature by February 2016. Some lawmakers and environmental groups objected to the fact that the rules did not adequately protect groundwater or provide enough protections for taxpayer dollars should a major cleanup be necessary after a mine closed.

The mining rules have been under development since 2012 when the Republican-controlled Legislature passed a bill that overhauled mining regulations that had been in place since 1991. The bill called for the DEP to launch a rulemaking process, which unfolded over the course of months in 2013. The citizen-led Board of Environmental Protection concluded a weeks-long public hearing and deliberation process with a unanimous vote in favor of the rules in January 2014.

JD Irving Ltd., a Canadian lumber company that owns vast swaths of the Maine wilderness, has an interest in mining for copper and zinc on a 500-acre site it owns on Bald Mountain in Aroostook County.

The Natural Resources Council of Maine, along with the Appalachian Mountain Club, Maine Audubon, Maine Conservation Voters, The Nature Conservancy and Trout Unlimited sent the committee a list of criticisms of the bill last week. The objections include, among others, that the rules allow the perpetual treatment of groundwater near closed mines instead of requiring cleanup to be done within 10 years; that pollution monitoring activities are inadequate; and that mining companies are not required to set aside enough money leading into a mining operation to cover any potential pollution.

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