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Navigating Change: DEP proposes revisions to Maine Metallic Mineral Mining Rules and Administrative Procedures

On December 7, the Maine Board of Environmental Protection (BEP) voted to post to public comment amendments to two Department of Environmental (DEP) sets of rules. The first proposes changes to Chapter 200, Metallic Mineral Exploration, Advanced Exploration and Mining. The second proposes changes to Chapter 2, Processing of Applications and Other Administrative Matters.

Chapter 200 Changes

Chapter 200 implements the Maine Metallic Mineral Mining Act (the “Mining Act”) and establishes a comprehensive set of mining regulations. Both the Mining Act and Chapter 200 were designed to protect natural resources from the risks of acid rock drainage resulting from the mining of sulfide minerals. The statutory and regulatory language did not clearly address the applicability of the law to the extraction of non-sulfide material such as spodumene. Public Law 2023, Chapter 398 clarifies that the Mining Act applies to any material that includes metal or a metalloid element but then excludes from regulation under the Mining Act extraction of certain non-sulfides such as limestone, borrow, clay, and aggregate. It also allows a person to apply to the DEP for a determination that the removal of other material should be excluded from the requirements of Chapter 200. The proposed amendments detail the process and criteria for seeking and obtaining such a determination. The requirements include sampling and testing of the material proposed for removal to demonstrate that it will not be acid generating, as well as water quality testing and monitoring.

These are major substantive rules and, therefore, will require Legislative approval prior to final adoption.

A public hearing on the Chapter 200 changes is tentatively scheduled for January 18, 2024.

Chapter 2 Changes

Chapter 2 governs the administrative procedures of the Maine DEP, including the BEP. The amendments include a number of procedural, clarifying, and substantive changes. Specific changes include modifying the definition of abutter, extending the timeline for the DEP to take action on various submissions, clarifying language around the requirement to demonstrate title, right or interest, additional details regarding the format and content of the public informational meeting, modifications to the public notice requirements, extension of the time to file transfer applications for certain types of licenses, adding a mechanism for voluntary recission of a license, new procedures around BEP appeals and dismissal of such appeals, a new process related to appeals of insurance claim related decisions, express language authorizing the Board to modify a license during the pendency of a judicial appeal of the license, and a new section on administrative consent agreement proceedings. A DEP summary of the changes can be found here.

A public hearing on the Chapter 2 rules is tentatively scheduled for January 18, 2024.