Maine laws governing metallic mineral mining mean a Newry couple cannot mine an estimated $1.5 billion worth of lithium from their property.
Mark Stebbins, director of field services for the Bureau of Land Resources, housed within the Department of Environmental Protection (DEP), informed Mary and Gary Freeman in a July 8 letter that the state would consider their lithium mining project as a metallic mineral mine rather than a quarry.
The deposits on the Freemans’ property are estimated to have a higher percentage of lithium by weight than any known deposit.
At issue is the state’s definition of metallic mineral, defined in the law as “any ore or material to be extracted from natural deposits on or in the earth in order that its metallic mineral content be used for commercial or industrial purposes.” Thorium and uranium are excluded from this definition, but spodumene, the mineral that contains lithium, is not.
Quarry operations are subject to less stringent regulations than metallic mineral mines, which are subject to the Maine Metallic Mineral Mining Act (MMMA), passed by the legislature in 2012.
The bill created a statutory framework for the regulation of metallic mineral mining under the DEP, which came into effect in January 2014. Prior to the passage of the law, metal mining was approved in territories not organized by the Maine Land Use Regulatory Commission.
Under the bill, a permit is not required for a metallic mineral mining project that is reviewed under the MMMA. It requires a person wishing to mine metallic minerals in the unorganized territory of the state to submit a permit application to the DEP and file a Notice of Intent to Develop a Mine with the Land Use Regulatory Commission . The commission must then certify to the DEP that the proposed development is within the permitted use of the sub-district in which it is located and meets land use standards.
In 2014, the legislature passed legislation that would have delayed implementation of MMMA for two years, taking effect in June 2016, but the bill was vetoed by then-Governor Paul LePage. .
The Legislature amended the MMMA in 2017. In addition to prohibiting mining located in whole or in part on protected state lands such as historic sites, state parks or wildlife management areas, the bill also created new regulations and prohibitions for metallic mineral mines located near water sources.
With the changes to the MMMA, permit approval is only granted to metal mines that do not result in groundwater contamination beyond the mining area and contribute to minimal groundwater contamination within the mining area. Mining area is defined more narrowly in reference to this requirement to mean an area of land that does not exceed 100 feet from a mine shaft or surface pit.
Amendments to the MMMA in 2017 also prohibit mining operations in or on a floodplain or hazard area. Additionally, they prohibit the removal of metallic minerals from a river, pond, or wetland, and prohibit placing mine shafts in or under rivers, waterfowl habitats, or ponds.
The 2017 amendment also prohibits surface mining.
The bill changes the regulatory authority of the DEP and the Maine Planning Commission, requiring the DEP to seek legislative approval for proposed rule changes before final adoption of the new rules can be enacted, and requiring the Land Use Commission to adopt new rules consistent with changes to the MMMA.
The bill passed the legislature in May 2017 and was later vetoed by LePage, citing fears it would make mining impossible.
“The bill will deter any company from operating mines in Maine and will discourage exploration of our mineral deposits because this bill would render them unmineable. As a state, we must encourage innovation and welcome businesses that will employ our citizens and contribute to our gross domestic product. This bill takes away the ability of innovative companies to choose safe and profitable methods of operation, and it perpetuates the hypocritical, not in my backyard attitude that keeps Maine at a competitive disadvantage,” LePage wrote in his veto letter.
The Legislature later overruled LePage’s veto, with the House of Representatives voting 122 to 21 and the Senate voting 35 to 0 to allow the bill to become law.
The Maine Monitor reported that Stebbins conceded in the letter that mining spodumene, the lithium-containing mineral, is more comparable to mining granite or limestone and that MMMA regulations go beyond what is necessary to extract the mineral responsibly. However, Stebbins wrote that spodumene still falls under MMMA because it is not clearly excluded and because there is no history of its regulation in the state.
“[A]As a result of essentially defining metallic mineral as any material excavated for its metallic mineral content – circular use of the term to define itself – the definition requires interpretation by the Department,” Stebbins wrote.
“Spodumene mining for the use of a metallic element component, on the other hand, is new to Maine with no history of regulation. The Department does not view the lack of legislative discussion of spodumene mining as evidence of legislative scope to exclude spodumene from the definition of metallic mineral and its extraction from MMMA Therefore, faced with the obligation to interpret MMMA and the definition of metallic mineral, the Department concludes that the best interpretation of the term “metallic mineral” is that it includes any mineral containing metallic elements extracted for the use of the metallic element component – whether the final product is a pure elemental metal or another chemical compound such as salt – except where there is a clear legislative intent to exclude such mineral.
Stebbins said The thread of Maine that the DEP “is not considering any amendments to the Metal Mining Act at this time”, which would allow spodumene to be regulated differently from other metallic minerals. Under the MMMA, any regulatory DEPs that may wish to pursue would require the legislation to become final.
Lithium is an important material for many reusable batteries and is also used in electric vehicle batteries.
Transportation emissions account for more than half of Maine’s greenhouse gas emissions. As part of the state’s climate action plan, the Maine Climate Council estimates that the state must put 19,000 light-duty electric vehicles on the road by 2030 to meet its goal of reducing emissions by 45% by that year.
During the last legislative session, lawmakers passed legislation, signed by Governor Janet Mills on May 2, that directs the Department of Administrative and Financial Services and the Department of Public Safety to aim for 50% of their vehicle fleets are plugging into hybrid and zero-emission vehicles by 2025, and 100% by 2030.
The act also set a target for the Commissioner of the Department of Education to have 75% of school buses purchase zero-emission vehicles by 2035. Additionally, by 2035, the act sets the 100% county and municipal light-duty motor vehicle acquisition target – in hybrid and zero-emission vehicles.
Stebbins further noted that the DEP is aware of the critical minerals required for green power, but in this case the department has strictly focused its assessment on interpreting the definition of metallic mineral under the law.
Editor’s Note: This article was updated 7/26/22 12:47 PM to reflect comments from the Maine Department of Environmental Protection..