The Unfortunate Truth Managin ing C Contam taminat ated S Site tes throughout the L Life fe-Of Of-Mine t e to Reduce e Ris isks an and L Liab iabilities
Overview Notable issues associated with application of requirements under the CS Act on mine sites due to: An inadequate understanding of the CS Act, and associated regulations and guidelines Misinterpretation and/or poor understanding of the legal and regulatory boundaries between the EP Act & CS Act, & between the Mining Act & CS Act Lack of a clear understanding of the relationship between contaminated sites and mine closure planning Absence of technical qualifications Potential solutions to address the issues Identification of resultant unnecessary corporate and legal risks if solutions are not applied, and methods to mitigate those risks
Key CS Act Aspects KEY ASPECTS DISCUSSION Contaminated: Having a substance present in or on land, water or site at above Definition of Contaminated background concentrations that presents, or has the potential to present, a risk to harm to human health, the environment or any environmental value ". • Provision to identify, assess remediation, record or report on known or suspected CS Act contaminated sites. Mandatory report of suspected or known contaminated sites. • An area of land (inclusive of underground water and surface water). • Boundaries recognised by state land administration system (i.e. lot, ‘interest only’ Site definition deposited plan). • A list provided in CSG December 2014. ID of potentially • Some of these activities include Part V prescribed premises. contaminating industries, activities & land uses (IAL) Suspected contaminated sites: The site is or has been subject to potentially ID of suspect/known contaminating IAL & secondary indicators. contaminated sites Known contaminated sites: The site is or has been subject to potentially contaminating & secondary indicators & complete exposure pathway. • Staged process required to ID risk to human health and/or environment from contamination. Site characterisation • Presence, nature and extent of contamination. • Risk-based (contaminant toxicity plus exposure). Seven classifications: Report not substantiated, Not Contaminated-Unrestricted use, Mandatory reporting and Decontaminated, Potentially Contaminated-Investigation Required (PCIR), Contaminated-Restricted site classifications Use (CRU), Remediated-Restricted Use (RRU), and Contamination-Remediation Required (CRR).
Key CS Act Aspects (cont.) KEY ASPECTS DISCUSSION High Priority: • Site classification: "CRR" or "PCIR" • Action required &Timeframes: PSI (3 mths), SAQP and DSI (6 mths), RAP (9 mths) Actions required in Standard Priority: response to site • Site classification: "PCIR" or "CRU" and "RRU" classifications • Action required & Timeframes: PSI (6 mths), SAQP and DSI (9 mths), SMP (18 mths). Low Priority: • Site classification : "PCIR" & no action required/timeframe specified • The attempted restoration of the site to its state prior to the contamination occurring • The restriction or prohibition, of access to, or use of, the site • The removal, destruction, reduction, contamination or dispersal of the substance causing Definition of remediation the contamination or the reduction or mitigation of the effect of the substance • The protection of human health, the environment, or any environmental value from the contamination • Site is classified as "PCIR", "CRR", "CRU" and "RRU" • Site is subject to an investigation notice, clean up notice or hazard abatement notice Memorials on Certificates of Title A restricted instrument memorial: "CRR" & cannot be sold, or a lease registered on the certificate of title, without obtaining written consent from the DER CSB
Key CS Act Aspects (cont.) KEY ASPECTS DISCUSSION • Landowners of a site classified as "CRU", "RRU" or "CRU", or subject to an investigation, Disclosure of clean up or hazard abatement notice = written disclosure of contamination 14 days Contamination during before the completion of a transaction Land Transactions • No formal disclosure required for land that is classified as "PCIR" There is a hierarchy of responsibility for remediation which is as follows: • Person/s caused or contributed to the contamination of the site • Owner/occupier of the site who has changed, or proposes to change, the land use • Owner of the site, or a source site Other key information: • Owner, by definition, includes a lessee • A person responsible for remediation remains so, even if they sell or otherwise exit the Responsibility of site, unless transfer of responsibility to another party or parties is approved by the DER remediation and CSB • Responsibility of remediation applies to an action that was done with and without lawful transferring responsibility for remediation authority • If person contributed or caused contamination to the site prior to the commencement of the CS Act, that person(s) is responsible for remediation of the site only to the extent that the person that caused/contributed to the contamination by an act that was without lawful authority Types of Transfer: • Certificate of Contamination Audit (issued by Government of WA) • Agreement (subject to approval by the DER CSB)
EP Act Part IV & CS Act: Common Misunderstandings An approved referral does not exempt any entity or person from obligations under the CS Act If there is a Ministerial Condition requiring assessment of contamination, a WA – accredited Contaminated Sites Auditor must be involved If contamination is not assessed under Part IV, it can still be subject to assessment under CS Act
EP Act Part V & CS Act: Common Misunderstandings ** Contamination is a result of pollution** DER Industry Licencing regulates industries on emissions and discharges (pollution/polluting activities) under Part V of the EP Act and DER Contaminated Sites Branch regulates contaminated sites under the CS Act Part V environmental approvals, licences or permits do not exempt any entity or person from obligations under the CS Act Reporting of a discharge under Part V does not exempt reporting requirements to the DER Pollution Response Unit. If not resolved through immediate clean-up response, the site may need to be reported as a known or suspected contaminated site. If emissions or discharges at a prescribed premise cause contamination, the site should be reported to the DER as a known or suspected contamination site Contamination issues at a Part V prescribed premise are regulated under the CS Act Information obtained for the purpose of licence compliance should be provided to the DER CSB if it is relevant to the contamination status of the site In addition to the data collected to comply with licence conditions, further monitoring and investigation may need to be undertaken in order to delineate and characterise contamination and assess the risk to potential receptors
Mining Act & CS Act: Common Misunderstandings Mining Act does not provide for environmental protection, but instead, facilitates environmental assessment through regulations, gazetted guidelines, and MOU between regulating agencies Contamination, unreported and/or reported contaminated sites can only be assessed by the DER CSB under the CS Act. It cannot be assessed by the DMP under any proposal, plan, approvals, permits, etc. Approval by the DMP of a mining proposal or Mine Closure Plan does not exempt any entity or person from obligations under the CS Act Whenever a provision of the CS Act is inconsistent with a provision of the Mining Act or a mining tenement, the provision of the CS Act prevails Relinquishment of tenement(s) with reported suspect or known contaminated sites that have Memorials on Title require written approval by the DER CSB Almost all operating mine sites will have suspected or known contaminated sites
Mine Closure & CS Act: Common Pitfalls Awareness that mine closure is a function of rehabilitation, revegetation and remediation, and remediation is a contaminated sites attribute Postponing investigation and remediation at areas identified in 2007 Form 1 reporting and/or not addressing immediately releases Absence of appropriate baseline environmental assessments and due diligence Limited awareness of existing viable data Monitoring usually done for compliance, and opportunities to collect data for post closure planning is missed Incorrect investigation and monitoring methods that may data unusable for contaminated site investigation purposes Staff undertaking site characterisation works that they are not technically qualified for
Recommend
More recommend
