The Unfortunate Truth Managin ing C Contam taminat ated S Site - - PowerPoint PPT Presentation

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 Definition of Contaminated Contaminated: Having a substance present in or on land, water or site at above background concentrations that presents, or has the potential to present, a risk to harm to human health, the environment or any environmental value". CS Act

• Provision to identify, assess remediation, record or report on known or suspected

contaminated sites. Mandatory report of suspected or known contaminated sites. Site definition

• An area of land (inclusive of underground water and surface water).
• Boundaries recognised by state land administration system (i.e. lot, ‘interest only’

deposited plan). ID of potentially contaminating industries, activities & land uses (IAL)

• A list provided in CSG December 2014.
• Some of these activities include Part V prescribed premises.

ID of suspect/known contaminated sites Suspected contaminated sites: The site is or has been subject to potentially contaminating IAL & secondary indicators. Known contaminated sites: The site is or has been subject to potentially contaminating & secondary indicators & complete exposure pathway. Site characterisation

• Staged process required to ID risk to human health and/or environment from

contamination.

• Presence, nature and extent of contamination.
• Risk-based (contaminant toxicity plus exposure).

Mandatory reporting and site classifications

Seven classifications: Report not substantiated, Not Contaminated-Unrestricted use, Decontaminated, Potentially Contaminated-Investigation Required (PCIR), Contaminated-Restricted Use (CRU), Remediated-Restricted Use (RRU), and Contamination-Remediation Required (CRR).

Key CS Act Aspects (cont.)

KEY ASPECTS DISCUSSION Actions required in response to site classifications High Priority:

• Site classification: "CRR" or "PCIR"
• Action required &Timeframes: PSI (3 mths), SAQP and DSI (6 mths), RAP (9 mths)

Standard Priority:

• Site classification: "PCIR" or "CRU" and "RRU"
• Action required & Timeframes: PSI (6 mths), SAQP and DSI (9 mths), SMP (18 mths).

Low Priority:

• Site classification: "PCIR" & no action required/timeframe specified

Definition of remediation

• 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

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 Memorials on Certificates

• f Title
• Site is classified as "PCIR", "CRR", "CRU" and "RRU"
• Site is subject to an investigation notice, clean up notice or hazard abatement notice

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 Disclosure of Contamination during Land Transactions

• Landowners of a site classified as "CRU", "RRU" or "CRU", or subject to an investigation,

clean up or hazard abatement notice = written disclosure of contamination 14 days before the completion of a transaction

• No formal disclosure required for land that is classified as "PCIR"

Responsibility of remediation and transferring responsibility for remediation 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

site, unless transfer of responsibility to another party or parties is approved by the DER CSB

• Responsibility of remediation applies to an action that was done with and without lawful

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

• f 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



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

Mine Closure & CS Act: Common Pitfalls



No systematic involvement of key players in the mining team and their design consultants, and usually no incentive for the mine production team to meet and implement closure objectives throughout the mine operations



Absence of understanding risks and liability to enable effective management and mitigation of any contamination and certainty regarding relinquishment



No incorporating investigation and remediation in the design of closure strategies



Areas on the mine site identified in the MCP but not reported to the DER CSB as suspected or contaminated sites



Erroneous assumption is made that if the information is provided in the MCP and approved by the DMP, then legal obligations have been met



Significant underestimation of investigation and remediation costs associated with mine closure cost estimation



Inadequate planning for remediation as part of the mine closure planning process

Mine Closure & CS Act: Common Pitfalls (cont.)

Technical Qualifications

 Site characterisation is technically complicated  T

echnically skilled contaminated sites practitioners are generally geologists, hydrogeologists, geochemists and toxicologists

 Assessment of technically complicated sites should be undertaken by contaminated

sites practitioners with at least 10 to 15 years of experience

 Assessment of contamination on mine sites should be undertaken by the above

with a thorough understanding of application and relevance of other legislative instruments associated with the mine site

 Auditors legally cannot consult, they can only assess information given against the

contaminated sites guidelines to ensure compliance

Solutions

Throug ugho hout ut l life-of

• f-mine

ne:



A mining tenement should not be used as the boundary of a contaminated site. Instead, a site can be identified by surveyed boundaries and registered as an ‘interest only’ deposited plan(s)



Undertake process monitoring (both compliance and assessment of contamination):

• As a minimum, a baseline for soils and water quality (surface and groundwater) should be established
• Inclusion of additional laboratory parameters associated with existing or other monitoring requirements or as part of
• ngoing field work associated with other disciplines
• Pre-emptive data gap management through compilation and validation (if viable ) of existing site data
• Monitoring against baseline during operations with adaptive management responses.



Undertake immediate response when a release occurs as studies show that there is an exponential increase in costs over time in relation to investigation and remediation if left unattended



Undertake soil validation sampling immediately following clean-up of impacted soils from a

• release. Dispose of the soil appropriately and document waste management. Complete the

soil validation sampling and reporting in line with the Contaminated Sites Guidelines and by a contaminated sites consultant

Solutions (Cont.)

Throug ugho hout ut l life-of

• f-mine

ne:



Systematically adding suspected or known contaminated sites to the site register throughout operations. Define areas that warrant further investigation and prioritise those areas through ongoing risk assessment



Be aware that in addition to mineral processing and extraction activities, other examples of specific mining-related potentially contaminating industries, activities and land uses include landfills, tailing facilities, chemical and hydrocarbon storage, drilling, workshops, electricity generation and power stations



Train and educate on legal obligations under the CS Act, the duty of care to mitigating risk to human health, and ensuring immediate response to releases



Contaminated sites assessment is highly technical. Ensuring that commissioned contaminated sites consultants are experienced, technically skilled, and professionally competent will reduce risks to the program of identification, remediation and management

Solutions (Cont.)

Min ine C Clo losure P Pla lannin ing:



Successful mine closure planning requires the systematic involvement of key stakeholders (managers, scientists and engineers) across business units to define and implement closure objectives, including those associated with remediation. This can allow for the combined mine closure planning efforts through the provision of road maps and benchmarks to measure progress. Incorporating the outputs of site investigation and remediation or the strategies to investigate and remediate into mine closure planning and Mine Closure Plans



Enhance internal communications between and within business units for more efficient management of budgets, resource allocation and decision making processes



Closure strategies will need to be designed to incorporate investigation and remediation of contamination.



Correlate contaminated sites to closure domains in the Mine Closure Plan



Define options for risk management/remediation approaches best suited for mine closure and in line with agreed post closure land use



Maintain open dialogue with the DER and DMP for checks and balances and acceptance and approval of a Mine Closure Plan

Corporate and Legal Risks and Mitigation of Risks

Ri Risk sks:

 Breach of legal obligations under the CS Act  Hierarchy of responsibility (Polluter pays/buyer beware)  Transfer of liability (written approval by DER)  Relinquishment of T

enement (Memorials)

 Gross underestimation of mine closure cost estimation.

Mitig igatio ion o

• f Risks:

s:

 Buyer undertake due diligence and baseline surveys  Have parties agree on risk allocation and liability for any contamination and/or

remediation

 Ensure contamination liability and remediation clauses are accurate and suit to the

legislative and regulatory regime

 Contractual arrangements need to include tailored basic warranties and

indemnities that are fit for purpose in relation to contaminated sites.

Contacts

If you have any questions or would like more information please feel free to contact via the details below or sign up to our E-newsletter via the link below. Visit our website at www.360environmental.com.au Sign up for our newsletter on our website Scott B tt Bird Director 0419 405 341 scottbird@360environmental.com.au Barbar ara Heem eemink Principal Scientist 0420 667 523 barbaraheemink@360environmental.com.au http://www.linkedin.com/company/360-environmental