By Jack Caldwell - Mining Engineer - Robertson GeoConsultants

Mine Closure in any jurisdiction is fraught with difficulty. There are as many rules, and as many different systems of regulations, as there are mining locales. Yet, mostly nobody seems to be getting it right. The failure to fully provide for and implement responsible mine closure arises from the tension between what the miners want to do during mining and when the mine closes, what the regulators should do during mining and when the mine closes, and what the public expects, or at least is entitled to expect at all stages of mining.

No mining company wants to post large sums of money during active mining to pay for future mine closure. Most jurisdictions do not have the political muscle to force up-front financial instruments of sufficient value to pay for mine closure, and most of the public just does not care.

True it is that some of the major mining companies are making adequate provision for future mine closure. So too a few of the mid-tier and junior mining companies. True some jurisdictions have powerful regulations that are well enforced to ensure responsible mine closure planning and implementation.

There are of course exceptions to the bad cases like Faro and Giant. But too frequently the norm is what the middle tier and junior mining company does, does not do and what may well happen on mine closure. Namely, a failure to plan, a failure to make full financial provision for closure, and an onus thrust on the taxpayer to pay for ultimate mine closure.

The issue of how to ensure responsible mine closure planning and implementation is raised yet again in a report produced this week by the University of Victoria’s Environmental Law Centre Clinic. This new report, as noted by The Tyee questions the ability of British Columbia government in particular to prevent future environmental and taxpayer liabilities from mining. “Both industry and government often contend that mining activities will not harm the environment because strict standards will be followed both during and after operations,” concludes author Maya Stano, a law student and former private sector mining engineer. “Unfortunately, the evidence suggests that compliance is not being adequately enforced to ensure that these commitments are indeed upheld.”

The report introduces its subject thus:

This paper provides an assessment of Government’s ability to protect the Comox Valley should the proposed Raven Coal mine be approved. It addresses two fundamental questions:

  • Does Government have adequate legal and staff resources to protect the local environment from potential harm from coal mining activity in BC?
  • Will Government require the company to provide enough financial security to ensure that the company – not the public and Mother Nature – pay for all environmental damage that may be caused by the mine?

Here is a long quote from the report that concludes that the answer to both questions in no in that the BC government is unable to enforce closure funding or action.

Today it is more important than ever for environmental protection laws to be adequately enforced. Yet there is considerable evidence that the current enforcement regime is inadequate. For example:

  • Conditions attached to Environmental Assessment Certificates are often written by proponents, are vague and unenforceable, and are not monitored over the life of the mine. Further, existing legislation that promotes concurrent approvals of mine operation licenses with Environmental Assessments sets short time periods for reviews, and practical experience shows that these concurrent reviews seldom, if ever, lead to the withholding of permit approvals.
  • Mine permit conditions provide for inconsistent environmental protection, with lax enforcement of conditions and long delays before corrective action is taken. Government commonly responds to a company’s failure to meet its permit conditions by simply relaxing the permit requirements.
  • There is insufficient public reporting of non‐compliances at mines in the province.
  • The annual number of mine visits done by mine inspectors has dropped to half of what it was a decade ago. These inspections rarely result in environmental orders.
  • The number of provincial government staff dealing with mine reclamation issues has dropped precipitously. Regional reclamation inspectors have been replaced by one inspector in Victoria, which is situated far from the province’s important mining centers.
  • The provincial MOE’s enforcement actions often lead to trivial fines.
  • Although Environment Canada recently increased enforcement staff, the department itself has acknowledged that its staff levels remain insufficient to meet increasing enforcement requirements under an expanding regulatory regime. In addition, there is an increasing trend towards off‐site inspections as opposed to on‐site field inspections.
  • The federal Auditor General has highlighted deficiencies in Environment Canada’s enforcement of Fisheries Act pollution prevention provisions, and the lack of coordination between Environment Canada and DFO. The Auditor General also concluded that DFO had reduced enforcement activity to enforce the Fisheries Act habitat provisions by half, without the intended offset of hiring new habitat monitors, as originally planned.
  • Since online reporting began in 1998 there have been no convictions under the MMER (or former MMLER).
  • Failure to comply with legal requirements to publicly disclose releases of key pollutants from industrial facilities in Canada (including mines) has not led to any prosecutions or convictions.
  • The provincial MOE’s Environmental Protection budget has been slashed by approximately 75% over the last five years. During the same time period, the MOE’s Compliance Operations and the MEMPR’s Mining and Minerals budgets have also been reduced. These budget cuts are reflected in the number of government staff, which is dramatically less than a decade ago.

The NGOs and the BC government are talking - not to each other mind you, but to the press. I quote from a long, detailed, and generally balanced article in The Tyee

”The main thing that society needs to grapple with now is, what is the long term vision for these sites?” asks Ramsey Hart, Canada program coordinator for Mining Watch Canada. “Some will require someone to be looking after them for hundreds of years if we are to maintain [adequate] protections in terms of water. Who will take responsibility?”

Al Hoffman, B.C.’s chief inspector of mines, says we’ve come a long way since the ’60s, when B.C. became one of the first provinces in Canada to enact mine reclamation legislation, including the requirement that companies post up-front financial securities to guarantee mine clean-up costs. “There were no reclamation securities before 1969, and certainly since that time, B.C.’s mining industry has had a stellar record,” he told The Tyee.

Calculating the details of that financial guarantee today is the subject of considerable exchange and negotiation during the development of a project. “We look at two things: company and environmental risk,” says Diane Howe, B.C.’s deputy chief inspector of mines and senior reclamation specialist.

When determining the form of that guarantee, Howe says they look at the financial strength of the company, its diversification, its credit rating, whatever liability it has elsewhere, and what its performance has been in the past. Mine capacity, mine cash flow, value of commodities and even property values are also weighed.

The degree of environmental risk is determined by looking at the need for physical reclamation, such as the resloping and revegetation of a mine site; the removal of all buildings, roads, power ways and pipelines. The last piece is long-term closure, including the operational costs of ongoing water treatments, and any monitoring and maintenance at the site.

Beyond ongoing payments into a security, Hofmann says a company is bound by the conditions of its mine permit. “We can request an increase in securities at any time,” he says. “If they don’t fulfill those conditions, we have the authority to order them to do so, we can write orders and if they don’t there are legal penalties.”

The capacity of government to monitor the commitments made by B.C. mining companies during the environmental assessment process is virtually nil, says Stano. The monitoring that does happen is now generally limited to proponent-hired monitors and in place only for a limited period at the construction and early operational stages of the project. “This leaves environmental protection at the operations and closure stages extremely vulnerable.”

In 2003, the province eliminated all regional mine reclamation inspectors, leaving just one position in Victoria. By 2004, mine visits by inspectors fell to 400 from 2,000 visits in 2001; by 2008, just over 1,000 visits had been made, still only half the inspections done in 2001.

The latest information on such mine visits is not publically available because the chief inspector of mines, who is required to file annual reports online, is currently out of compliance with his own reporting requirements for 2009 and 2010. “It’s coming,” said chief inspector Hoffman when pressed for the missing online reports by The Tyee. “To be honest, it’s partially from lack of staff.”

Unfortunately the current lack of enforcement – combined with the willingness to relax permit conditions when faced with non-compliance -- runs counter to both public sentiment and sound environmental management. This places local communities and provincial taxpayers at significant risk.