Introduction

On July 20, 2016, the Government of British Columbia (“BC”) introduced regulatory changes designed to strengthen the safety of mine tailings storage facilities (“TSFs”) and their dams. These changes were predominantly made as a response to the catastrophic 2014 failure of the Mount Polley Mine TSF. To date the regulatory changes have revolved around Part 10 (Reclamation and Closure) of the Health, Safety and Reclamation Code for Mines in British Columbia (the “Code”), with other changes forthcoming, as discussed below.

Mount Polley Breach – A Major Trigger for Change

On August 4, 2014, a large breach at the Mount Polley Mine TSF led to the release of approximately 25 million cubic metres of wastewater and tailings into adjacent water systems and lakes.

Shortly after the breach, the Chief Inspector of Mines (“CIM”) ordered mines in BC with an operating TSF or a non-operating TSF with a dam safety classification of significant or higher to undertake an accelerated assessment to determine if any of the dam(s) associated with their TSFs may be at risk. In particular, these mines were ordered to provide information on: (i) un-drained shear failure of silt and clay foundations below their dams, (ii) water balance adequacy, and (iii) filter adequacy to prevent piping and cracking of dams. In addition, all mines with high to extreme consequence classifications were required to conduct Dam Break Inundation Studies and to update and test their Emergency Preparedness and Response Plans.

The Ministry of Energy and Mines (“MEM”) retained an independent, qualified, third-party professional engineer to review the submissions. The results, which are available online, suggest that the dams at the 51 mines reviewed are in generally good condition, with no immediate safety concerns identified. Some areas of concern were identified for specific mines, with recommendations to rectify them provided to the mine owners.

The Mount Polley Mine breach also spurred several independent investigations, including investigations by (i) an Independent Expert Engineering Investigation Panel, (ii) the CIM, and (iv) the BC Conservation Officer Service. The former two investigations have been completed with reports and recommendations issued, while the latter investigation by the Conservation Officer Service remains underway.

The Independent Expert Engineering Investigation Panel (the “Panel”) issued a report of its investigation findings on January 30, 2015. The Panel concluded that the dam failed because the strength and location of an underlying clay layer was not taken into account in its original design. Accordingly, the Panel made seven recommendations, including: implementation of best available technologies (“BAT”); improvement of corporate governance and expansion of corporate design commitments; use of independent tailings review boards and quantitative performance objectives to improve the regulation of TSFs; and improvement to professional practice and dam safety guidelines.

Later in the same year, the CIM issued a report of his findings on December 17, 2015. The CIM reached the same conclusion for the breach as the Panel had – namely that the Mount Polley dam failed because the strength and location of an underlying clay layer was not taken into account in its original design. Accordingly, the CIM made 19 recommendations, including: minimum requirements for various plans and site operations manuals; specific roles and responsibilities for mine staff, qualified professionals and independent technical review boards; and enhancement of investigative, compliance and enforcement capacities. 

The BC government committed to implementing all the recommendations from the Panel and the CIM. In June 2015, MEM Minister Bill Bennett appointed a Code Review Committee to determine how to implement these recommendations. This committee is chaired by the CIM and includes an equal number of representatives nominated by First Nations, mine labour unions and industry. The committee has completed its technical review of the TSF portions of the Code, which has led to the recent changes to the regulation of TSFs, which changes became effective July 20, 2016. The review of the health and safety portions of the Code is currently underway.

Changes to Regulation of Tailings Storage Facilities

The recent changes to the Code mandate new design standards for TSFs, such as slopes and safety factors, and emphasize the protection of the public and the environment. Key aspects of the new provisions are as follows:

  1. Best Available Technologies (“BATs”): The Code now requires that new Mines Act applications include an alternatives assessment of BATs for tailings storage (Code, s. 10.1.3). Concurrently, the BC Environmental Assessment Office (“EAO”) now requires all new mine projects to provide an alternatives assessment that considers BAT for tailings management. As part of this assessment, alternatives to water covers should be considered.
  2. Corporate Governance: All mines in BC must develop and maintain a Tailings Management System that includes regular system audits (Code, s. 10.4.2). The BC government has stated that the Mining Association of Canada’s Towards Sustainable Mining Program is an example of a Tailings Management System that meets these requirements.
  3. Expanded Corporate Design Commitments: Mines Act permit applications must provide a declaration of Quantifiable Performance Objectives and include a proposed program for prediction, identification and management of physical, chemical, and other risks associated with TSFs and dams (Code, Part 10).
  4. Independent Tailings Review Boards (“ITRB”): All existing mines in BC with TSFs must establish an ITRB by December 31, 2016. The Terms of Reference and the proposed membership of the ITRBs must be approved by the CIM. The ITRB will be responsible for providing independent assessments on whether TSFs are designed, constructed and operated appropriately, safely and effectively. In addition, ITRBs will provide non-binding advice and guidance to the mine operators. Each mine must submit an annual report that includes an overview of its ITRB’s activities, which report must be posted online and describe: (i) the reviews completed by the ITRB that year; (ii) whether the work reviewed met the ITRB’s expectations of good practice; and (iii) any conditions that compromise the TSF integrity or occurrences of non-compliance with recommendations from the Engineer of Record.
  5. New Dam Safety Guidelines: New design standards for TSFs that are tailored to the conditions encountered in BC and that emphasize protection of the public and the environment have been implemented in the Code. These include: TSF design requirements for the steepness of downstream slopes; minimum static factor of safety; new seismic and flood design criteria; and defined roles and responsibilities for the Engineer of Record, including a duty to report any safety concerns to the regulator (note: the Engineer of Record may be a third party engineer or an employee of the mine).

In addition, the Association of Professional Engineers and Geoscientists of BC (“APEGBC”) recently developed new site characterization guidelines titled Professional Practice Guidelines – Site Characterization Assessments for Dam Foundations in B.C.. These guidelines establish standards for site characterization for tailings dams in BC with respect to the geological, geomorphological, hydrogeological and seismotectonic characteristics. The guidelines are expected to be posted online on the APEGBC website in August 2016.

Changes to Compliance and Enforcement

There has been a significant focus on compliance and enforcement activities for mines over the past few years.

On May 3, 2016, the Office of the Auditor General of British Columbia (the “Auditor General”) issued its report titled An Audit of Compliance and Enforcement of the Mining Sector. This audit sought to evaluate whether the MEM and the Ministry of Environment (“MOE”)'s compliance and enforcement activities of the mining sector are protecting the province from significant environmental risks. Interestingly, the Auditor General commenced its audit before the Mount Polley mine disaster occurred and found major gaps in resources, planning and tools which led to inadequate monitoring and inspections of mines to ensure mine operators complied with their legal requirements.

In March 2016, the BC Government amended the Mines Act to strengthen compliance and enforcement by providing for administrative monetary penalties, and increasing penalties available for court prosecutions (from $100,000 and/or up to 1 year imprisonment, to $1 million and/or up to 3 years imprisonment). Concurrently, the MEM implemented a new web-based records system that provides easier public access and greater transparency to permit information, inspection reports and other details about mines in BC. Finally, a Mining Compliance and Enforcement Board is being created to provide compliance and enforcement oversight and integration for the MEM, the MOE and the EAO. The annual compliance and enforcement planning undertaken by this new board will be risk-based to optimize the capacity and effectiveness of the ministries’ and agency’s resources.

Next Steps

The Health and Safety portion of the Code review is now underway, with all revisions expected to be complete by early 2017. The focus of this stage of the review is on the following areas:

  • occupational health program exposure limits and monitoring requirements;
  • geotechnical standards for pit slopes, waste dumps and underground development;
  • use and installation of equipment for underground coal mines;
  • mechanical and equipment maintenance standards;
  • emergency preparedness and mine rescue requirements;
  • qualification and certification requirements for selected professionals and skilled trades positions; and
  • references to standards.

The public can provide input on the Health and Safety provisions of the Code from now until September 30, 2016. Written comments can be emailed to CodeReview@gov.bc.ca.

Finally, changes to BC’s Environmental Management Act are also forthcoming to address various matters raised by the CIM and the Auditor General, as well as new guidance materials for mine operators. For more information on the new and forthcoming legal requirements for mines in British Columbia, please contact our Vancouver office.