Statutory requirements in other jurisdictions

Niklas Vartiainen, Geological Survey of Finland, PO Box 96, FI-02151 Espoo, Finland; niklas.vartiainen(at)gtk.fi

Following article presents some of the main principles of the legislation concerning mine closure in Sweden, Canada, Western Australia and Norway. A detailed description of Finnish mine closure legislation is given in the article: “Statutory requirements for mine closure in Finland“.

Sweden

The principal legislation governing mining activities in Sweden is the Minerals Act[1]. Exploration permits and exploitation concessions are issued pursuant to the Minerals Act and in most cases the authority issuing these rights is the Mining Inspectorate.

While the Minerals Acts governs inter alia the issuing of exploitation concessions, the environmental aspects of mining activities are governed by the Swedish Environmental Code.[2] Exploitation of landowner minerals (industrial minerals) is also governed by the Environmental Code.[3]

In addition to an explotation concession, exploitation of minerals requires an environmental permit from the Environmental Court.[4]

These both permits, which must be obtained prior commencing mining activities, contain requirements regarding mine closure and orders regarding collateral.

According to Chapter 13, Section 3 of the Minerals Act when an exploitation concession is terminated, the concession-holder forfeits his right to such constructions which have been erected for strengthening and maintaining the mine or equivalent plant, including the lining of drill-holes and the fence which the concession-holder has been required to provide. Such installations shall be left on the site.

According to Chapter 13, Section 4 of the Minerals Act to the extent that this is justified in the public or private interest, the concession-holder shall carry out after-work and remove other installations than those stated above.

The authority with responsibility for examination shall determine above mentioned after-work duties.

According to Chapter 13, Section 5 of the Minerals Act installations which are not removed shall be in such condition that no danger to the public will occur. The concession-holder shall make sure that fencing referred to in Section 3 remains durable after the concession has been terminated.

Installations referred to in Section 3 which are left on the site shall accrue to the owner of the property or to whoever has later been granted a concession within the area. Other installations which are left shall accrue to the owner of the property.

According to Chapter 13, Section 8 of the Minerals Act the Government may issue regulations regarding protective measures at mine-shafts or excavations which are closed and regarding control measures for protection against landslides or subsidence at mines which are closed.

According to Chapter 4, Section 6 of the Minerals Act the concession-holder shall be ordered to furnish security that his obligations under Chapter 13, Section 4 may be fulfilled, unless there are special reasons to order otherwise. If such security proves to be insufficient, the County Administrative Board may decide that additional security shall be lodged.

According to Chapter 10, Section 2 of the Environmental Code persons who pursue or have pursued an activity or taken a measure that is a contributory cause of the pollution (operators) shall be liable for the after-treatment of land and water areas, buildings and structures that are so polluted that they may cause damage or detriment to human health or the environment.

According to Chapter 10, Section 4 of the Environmental Code after-treatment liability shall mean that the person who is liable for after-treatment shall, to the extent reasonable, carry out or pay for any after-treatment measures that are necessary in order to prevent or combat subsequent damage or detriment to human health or the environment.

Ontario, Canada

Mining Act of 1990 and accompanying regulations govern the mining activities pursued in Ontario.[5]

Mine closure in Ontario is regulated through the Mining Act and Ontario Regulation 240/00 setting out the requirements and standards regarding mine closure, closure plan and financial assurance.[6]

The Mine Rehabilitation Code of Ontario, a section of the Ontario Regulation 240/00, contains a listing of required measures and sets out the principles regarding rehabilitative measures which must be performed before a mining project is terminated. The Mine Rehabilitation Code of Ontario also contains objectives and detailed specifications related to protection of mine openings, open pits, stability of pillar operations, tailings dams and other containment structures, surface and ground water monitoring, metal leaching and acid rock drainage requirements, physical stability monitoring and revegetation.[7]

Closure Plan

The measures required to rehabilitate the mining site once the operations have been terminated are outlined in a Closure Plan. Prior commencing mining operations the mining operator must file a Closure Plan to the relevant authorities and it must be approved by the ministry before mining may commence.[8]

The Ontario Regulation 240/00 sets out the contents and format of a Closure Plan, which accordingly must contain inter alia:

• detailed plan of the rehabilitation measures to be executed in due course
• details of the monitoring programs and procedures to ensure that the
  • physical stability of mine hazards located on the site provide the level of protection required for each stage of closure
  • chemical stability of tailings, waste rock, ore stockpiles, concentrate stockpiles, overburden and other stockpiles, and surface and subsurface effluents provide the level of protection required for each stage of closure
• details of any biological monitoring programs and procedures to assess the effects of the project on any biological communities
• details of the expected costs of implementing the rehabilitation measures and monitoring programs
• the form and amount of the financial assurance to be provided.[9]

Financial assurance

Prior commencing mining operations the mining operator must deposit a financial assurance in order to ensure that the costs related to rehabilitation measures are covered in the event the mining operator fails to perform the rehabilitation measures set out in the Closure Plan.[10]

Western Australia

The principal statute governing exploration, extraction and exploitation of mining minerals in Western Australia (WA) is the Mining Act 1978.

A mining lease issued under the Mining Act 1978 is a prerequisite to exploit mining minerals in WA. The Department of Mines and Petroleum (DMP) acts as the authority administering and regulating the activities performed in accordance of the Mining Act 1978.[11]

Mine Closure Plan

An application for a mining lease must be accompanied by a mining proposal, which must contain a Mine Closure Plan. Approval of the Mine Closure Plan is one of the prerequisites of obtaining a mining lease.[12]

The Mine Closure Plan is drawn up in accordance with guidelines issued by the mining and environmental authorities. According to the guidelines “a mining proposal is a document prepared by a proponent or tenement holder, containing detailed information on identification, evaluation and management of significant environmental impacts relevant to the proposed mining operations and the surrounding environment.”[13]

According to the Mining Act 1978 an approved Mine Closure Plan is to be regularly reviewed. This is to ensure that the Mine Closure Plan reflects relevant development of the mine, the Mine Closure Plans are to be submitted to DMP for review and approval every three (3) years or as stipulated in the mining lease condition. An approval of relevant authorities is also needed if changes to the Mine Closure Plan are made.[14]

The following principles should be taken into consideration when drawing up the Mine Closure Plan:

• At all stages, from the project approval stage onwards, the Mine Closure Plan should demonstrate that ecologically sustainable mine closure can be achieved consistent with agreed post-mining outcomes and land uses, and without unacceptable liability to the State.
• Planning for mine closure should be fully integrated in the life of mine planning, and should start in the project feasibility stage.
• Mine closure plans must be site-specific.
• Closure planning should be risk-based taking into account results of materials characterisation, data on the local environmental and climatic conditions, and consideration of potential impacts through contaminant pathways and environmental receptors.
• Consultation should take place between proponents and stakeholders
• Post-mining land uses should be identified and agreed upon through consultation before approval of new projects
• Characterisation of materials needs to be carried out prior to project approval to a sufficient level of detail to develop a workable closure plan
• Closure planning should be based on adaptive management.
• Closure plans should demonstrate that appropriate systems for closure performance monitoring and maintenance and for record keeping and management are in place.[15]

Since the Mine Closure Plan is required to be prepared in the planning stages of the mining project, the relevant authorities accept that the plan may not contain all the necessary detail for final closure. At the early stages of the project, it is sufficient that the applicant clarifies through the Mine Closure Plan the issues that require management at closure.[16]

If the mining project is planned as a short term project, it is expected that the Mine Closure Plan submitted at the project approval stage provides more detailed level of information on final closure. For longer term projects, less detailed information on the final closure may be required at the project approval stage.[17]

Post-mining land use

One of the core functions of the Mine Closure Plan is to identify post-mining land use of the site, which should satisfy the following criteria:

• relevant to the environment
• achievable
• acceptable to the key stakeholders
• ecologically sustainable in the context of local and regional environment[18]

Closure objectives

The Mine Closure Plan must also contain closure objectives. The objectives should based on the proposed post-mining land use and clearly discribe what is to be achieved at closure.

The post-mining land use and closure objectives will form the basis on which the relevant authorities approve a mine closure plan.

If changes to the objectives are made, the changes need to be approved by the relevant authorities.

Termination of Mining Activities

An written acceptance from the competent authorities is required prior the termination of mining activities. The acceptance certifies that all obligations under the Mine Closure Plan have been met and future management of the site has been properly arranged.[19]

The Contaminated Sites Act 2003 requires that the mining site is investigated appropriately. Investigations are to be carried out in order to identify, assess and manage any contamination issue.[20]

As standard provisions included in mining tenements, mining operators are required to “fill in all holes on the land and to take steps to minimise damage to trees and property.”[21] In addition to the conditions mentioned above, other conditions may also be imposed, such as reporting responsibilities and other rehabilitation duties.[22]

Norway

The principal statute governing exploration, extraction and exploitation of mining minerals in Norway is the Minerals Act of 2009.[23]

According to Section 5 of the Minerals Act permits issued pursuant to the act do not replace requirements in other legislation for permits, approvals, land-use plans or licences.

Mining is subject to an extraction permit issued by the Directorate of Mining.[24] The licence may be made subject to conditions regarding inter alia measures to be performed once the operations are terminated.[25]

According to Section 42 of the Minerals Act the Directorate of Mining may require the submission of a plan of operations. The Directorate of Mining may decide that operations may not begin until the plan of operations has been approved. Mine closure measures are regulated through the plan of operations.

According to Section 49 of the Minerals Act the area shall be permanently secured once operations are completed. The Ministry may issue regulations concerning how openings in the ground and other interventions in the terrain are to be secured, and about the maintenance of safety measures.

According to Section 50 of the Minerals Act the extracting party shall ensure that the area is properly cleaned up, both while operations are in progress and after they have been completed. The Directorate of Mining may set a deadline for the completion of clean-up works.

According to Section 51 of the Minerals Act a financial security for the implementation of safety measures pursuant to section 49 and clean-up measures pursuant to section 50 may be ordered to be provided by a party initiating mining operations.

The environmental aspects are regulated mainly through Nature Diversity Act[26] and the Pollution Control Act[27]. The Nature Diversity Act lays down basic principles such as general duty of care, knowledge base, precautionary principle, user-pays principle and environmentally sound techniques and methods of operation.[28] These principles are applied when decisions are made under the Minerals Act.[29]

The purpose of the Pollution Control Act is to protect the outdoor environment against pollution and to reduce existing pollution, to reduce the quantity of waste and to promote better waste management.[30]  The Pollution Control Act contains provisions related directly to closure. According to Section 20 of the Pollution Control Act “if a facility is closed or an operations are stopped, the owner or user shall take the action necessary at any given time to prevent pollution. If the facility or operations may result in pollution after closure or stoppage, the pollution control authority shall be given reasonable prior notice of this. The pollution control authority may further determine which measures are necessary to prevent pollution. The authority may order the owner or user to provide a guarantee for payment of future expenses and any liability for damages that may arise.