COMPARATIVE REVIEW OF TAILINGS STORAGE FACILITY REGULATION
| Jurisdiction | Derecho Internacional |
COMPARATIVE REVIEW OF TAILINGS STORAGE FACILITY REGULATION
Morales & Besa Ltda
Santiago, Chile
Casper Herler
Borenius Attorneys Ltd
Helsinki, Finland
Alan Hutchison
Osler, Hoskin & Harcourt
Vancouver, British Columbia, Canada
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PALOMA INFANTE is a Chilean environmental lawyer of the Universidad de Chile and Master of the Environmental LLM Program at the New York University. Mrs. Infante concentrates her practice in environmental law and natural resources, with special emphasis on environmental evaluation of projects, administrative and judicial litigation, application of extended responsibility to the producer, negotiations with communities and land use regulations. She currently works as the head of the Environmental and Regulatory Practice in Morales & Besa. Previously she served as head of the Legal Division of the Ministry of the Environment and the head of the Environmental Regulations Department of the same institution. She is the author of several articles, the main ones being "Environmental (un)justice in Chile and main mechanisms to mitigate inequality: land use planning and rights of vulnerable communities", Environmental Law Magazine 2016; "Main challenges of the Superintendence of Environment one year after its entry into operation", Yearbook of Public Law 2014, Universidad Diego Portales; and "Effectiveness of REDD programs in the protection of sui generis indigenous rights", Tribuna International Magazine, 2 (3), 2013. Mrs. Infante is a member of the Environment Commission of the Chilean Bar Association and the Environmental Justice Institute of Germany. Mrs. Infante has been awarded with the Fulbright Scholarship and the CONICYT Scholarship from the Chilean Government.
CASPER HERLER is managing partner for Borenius Attorneys Ltd, one of Finland's largest law firms. In addition to heading the firm, Casper practices environmental, natural resources and energy law with an emphasis on strategic project planning of large industrial and infrastructure projects. Herler was laterally hired to Borenius in 2010 from another Finnish firm to build up a leading environment & natural resources practice at Borenius. He joined private practice in 2007 and has before that held positions at a leading Finnish consulting firm and at the Ministry of the Environment. Herler has been a researcher at University of Helsinki teaching environmental law and has dissertated for the doctoral degree in law in 2008 on environmental liability for soil and groundwater contamination. He still teaches environmental law at the same university. Casper is very active in advising exploration and mining clients and is one of the leading European mining lawyers. He currently serves as the senior vice chair of the IBA mining law committee. Casper was the secretary of the Finnish working group reforming the mining act and has published several articles on Finnish and Nordic mining law.
ALAN HUTCHISON is co-chair of Osler's mining group and a partner in the Corporate Group. He practises in the areas of corporate finance and securities and corporate/commercial law with an emphasis on mergers and acquisitions, corporate finance and corporate governance. Alan also practises in the areas of mining law and specializes in the mining sector. Alan regularly advises public companies and securities dealers in public and private financing transactions (both equity and debt), including private placements and prospectus offerings. Alan also regularly acts in take-over bids, mergers and acquisitions, corporate reorganizations and joint ventures. He also advises public companies on general corporate and securities law matters, including stock exchange listings, continuous disclosure obligations and other regulatory compliance issues. Alan has been recognized as a leading practitioner by Chambers Canada: Canada's Leading Lawyers for Business (Energy & Natural Resources: Mining), Best Lawyers in Canada (Corporate Law, M&A, Mining Law, Natural Resources Law and Securities Law), The Canadian Legal Lexpert Directory (Mining Law, Corporate Finance & Securities), The Canadian Legal Lexpert Directory (Corporate Mid-Market) and Chambers Global: The World's Leading Lawyers for Business (Energy & Natural Resources: Mining (Canada)).
Following a series of high profile disasters in recent years, the regulation of mine tailings is one of the most talked about issues in the mining industry. It has always been a core element of managing mining operations, as the volume of waste rock always far exceeds the amount of marketable metals extracted from a mineral deposit. But as issues like sustainable development, protection of the environment and support for local communities have become more significant components to the development of mining projects, the management of tailings storage facilities ("TSFs") has come to epitomize good operatorship by mining companies. The design and management of TSFs also gives rise to other issues affecting the global economy such as climate change, as the occurrence of more significant weather events highlights the importance of sound engineering practices and the importance of TSF design to prevent TSF failures.
Perhaps no jurisdiction has been impacted as much as Brazil. On November 5, 2015 the Fundao tailings dam at the Samarco iron ore mine in Mariana, Brazil collapsed, killing 19 people. Then on January 25, 2019 the tailings dam at the Fejiao iron ore mine in Brumadinho, Brazil collapsed with even greater loss of life than with the Samarco TSF failure. Following the Brumadinho tragedy both mining companies and regulatory authorities have commenced a review of TSF management in Brazil. It is much too soon to speculate on exactly what will change, but it is clear that there will be significant change in the construction, operation, management and regulation of TSFs in Brazil.
But Brazil is not alone in experiencing significant TSF failures. In particular, the Talvivaara gypsum pond failure in Finland and the Mount Polley TSF failure in Canada are two recent examples that highlight the significance of TSF management to the global mining industry as a whole. This paper attempts to review some of the recent TSF failures in significant mining jurisdictions and outline the responses to these disasters and the lessons learned that can be, and indeed are being, applied to the global mining industry going forward.
I. OVERVIEW OF TAILINGS STORAGE FACILITY REGULATION
The following is a summary of TSF regulation in each of British Columbia, Canada, Chile and Finland.
British Columbia, Canada
Mining operations in British Columbia are principally regulated by the Mines Act (British Columbia) and the regulations promulgated thereunder, which is administered by the Ministry of Energy, Mines and Petroleum Resources (at the time of the Mount Polley TSF failure and subsequent reports this ministry was called the Ministry of Energy and Mines). The most significant regulation is the Health, Safety and Reclamation Code for Mines in British Columbia
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which is an omnibus code regulating virtually all aspects of mining operations within British Columbia, including certain prescriptive requirements for tailings dams. Environmental permits for mining operations are granted pursuant to the Environmental Management Act (British Columbia) which is administered by the Ministry of Environment and Climate Change Strategy. The Engineers and Geoscientists Act (British Columbia) also prescribes the responsibilities and regulation of professional engineers in British Columbia, which is relevant to the design, construction and monitoring of tailings dams.
Most companies operating mines in British Columbia are also members of the Mining Association of Canada ("MAC"). MAC has taken a leading role on tailings management within the global mining industry as part of its Towards Sustainable Mining initiative. It has established A Guide to the Management of Tailings Facilities and the Towards Sustainable Mining Tailings Management Protocol that addresses procedures and systems for responsible tailings management. The Protocol seeks to ensure that tailings facilities have a formal policy in place, have developed and implemented a tailings management system, have assigned accountability to the board of directors or other top governance level of mining companies, and have developed operation, maintenance and surveillance manuals for all tailings facilities. Mining companies must also conduct annual reviews of their tailings management system and report the results of this evaluation to the accountable executive officer to meet the requirements of the Protocol.
Chile
Mining Code and its regulation.
The Chilean Mining Code contemplates a general overview about TSFs, but the principal regulations regarding TSF are included in the Supreme Decree No. 284 of 2007, which regulates the "Approval of Projects regarding the Design, Management, and Closure of Tailing Storage Facilities".
The aim of this regulation is to set norms concerning the approval of TSF's projects, as well as their design, building, operation and shutdown requirements, along with the arrangement of adjoining constructions so that the people's and goods' safety is guaranteed. The Servicio National Service of Geology and Mining (SERNAGEOMIN) oversees and enforces the fulfillment of the aforementioned dispositions.
The most relevant rules stemming from this regulation are concerned with the fact that companies in need of a TSF must be granted with a specific permit prior to their construction. Such permit is given by the SERNAGEOMIN. Furthermore, the Service must be informed of any modification which may only be executed after its approval, once it is rightfully justified in technical antecedents. Furthermore, the SERNAGEOMIN must carry out periodical technical inspections in...
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