Maine’s laws regulating metallic mineral mining mean a Newry couple cannot extract an estimated $1.5 billion worth of lithium from their property.
Mark Stebbins, field services director 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 proposed lithium mining operation 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 statute as “any ore or material to be excavated from the natural deposits on or in the earth for its metallic mineral content to be used for commercial or industrial purposes.” Thorium and uranium are excluded from this definition, but spodumene, the mineral that contains lithium, is not.
Quarrying operations face less strict regulations than metallic mineral mines, which are subject to the Maine Metallic Mineral Mining Act (MMMA), adopted by the legislature in 2012.
The bill created a statutory framework for the regulation of metallic mineral mining under the DEP, which went into effect in January 2014. Prior to the law’s passage, metallic mining was approved in unorganized territories by the Maine Land Use Regulation Commission.
Under the bill, a permit is not required for a project of mining metallic minerals that is reviewed under the MMMA. It requires a person wishing to mine metallic minerals within the state’s unorganized territory to submit a permit application to the DEP and to file a notice of the intent to develop a mine with the Land Use Regulation Commission. The commission must then certify to DEP that the proposed development is within the allowed use of the subdistrict in which it is located and meets land use standards.
In 2014, the legislature passed legislation that would have delayed the MMMA’s implementation 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. On top of banning mining located wholly or partially within 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 sources of water.
With the changes to the MMMA, permit approval is only granted to metallic mines that do not result in groundwater contamination beyond the mining area and which contribute to minimal groundwater contamination within the mining area. Mining area is more narrowly defined in reference to this requirement to mean an area of land that does not exceed 100 feet from a mine shaft or surface pit.
The 2017 changes to the MMMA also prohibit mining operations in or on a flood plain or hazard area. Further, they prohibit the removal of metallic minerals from a river, pond, or wetland and ban placing mine shafts in or under rivers, waterfowl habitats, or ponds.
The 2017 amendment also bans pit mining.
The bill amends the rulemaking authority of both the DEP and the Maine Land Use Planning Commission, requiring DEP to seek authorizing legislation for proposed rule changes before final adoption of new rules can be enacted, and requiring the land use commission to adopt new rules consistent with changes to the MMMA.
The bill was passed by the legislature in May 2017 and subsequently vetoed by LePage, citing concerns it would make mining impossible.
“The bill will deter any company from mining in Maine, and it will discourage exploration of our mineral deposits because this bill would make them undevelopable. As a state we should encourage innovation and welcome businesses that will employ our citizens and contribute to our gross domestic product. This bill takes away the opportunity for innovative companies to select safe and cost-effective methods to mine, 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 subsequently overrode 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 extracting spodumene, the mineral containing lithium, is more comparable to extracting granite or limestone and that the MMMA’s regulations go beyond what’s necessary to responsibly extract the mineral. However, Stebbins wrote spodumene still falls under the MMMA because it is not clearly excluded and because there is no prior history of its regulation in the state.
“[A]s 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,” wrote Stebbins.
“The extraction of spodumene for use of a metal element component, on the other hand, is new in Maine with no prior history of regulation. The Department does not view the absence of legislative discussion of spodumene extraction as evidence of legislative extent to exclude spodumene from the definition of metallic mineral and its extraction from the MMMA. Therefore, confronted with having to interpret the MMMA and the definition of metallic mineral, the Department concludes that the better interpretation of the term “metallic mineral” is that it captures any mineral containing metallic element(s) that is excavated for the use of the metal element component–regardless of whether the end-product is a pure elemental metal or another chemical compound such as salt–except where there is clear legislative intent to exclude such a mineral.”
Stebbins told The Maine Wire that the DEP “is not considering any changes to the Metallic Mining Act at this time,” that would allow spodumene to be regulated differently than other metallic minerals. Under the MMMA, any rulemaking DEP might wish to pursue would require legislation to become final.
Lithium is an important material for many reusable batteries and is also used in electric vehicle batteries.
Transportation emissions make up more than half of Maine’s greenhouse gas emissions. As part of the state’s climate action plan, the Maine Climate Council estimates the state needs to put 19,000 light-duty electric vehicles on the road by 2030 in order to meet its goal of curbing emissions 45 percent by that year.
During the most recent legislative session, legislators passed a law, signed by Gov. Janet Mills on May 2, that directs the Department of Administrative and Financial Services and the Department of Public Safety to aim to make a combined 50 percent of their vehicle fleets plug-in hybrid and zero-emission vehicles by 2025, and 100 percent by 2030.
The law also set a goal for the Department of Education commissioner to make 75 percent of school bus purchases zero-emission vehicles by 2035. Further, by 2035 the law sets the light-duty motor vehicle acquisition goal for counties and municipalities to 100 percent plug-in hybrids and zero-emissions vehicles.
Stebbins further noted that the DEP Is aware of the critical minerals required for green energy, but in this case, the department strictly focused its evaluation on the interpretation of the definition of metallic mineral under the statute.
Editor’s Note: This article was updated on 7/26/22 at 12:47 p.m. to reflect comments from the Maine Department of Environmental Protection.