Saskatchewan’s extensive mine closure regulations ensure ongoing trust between stakeholders
Environmental practices and regulations have advanced significantly since Canadian mine operations were developed in the early 1900s, and they now cover all aspects from construction to closure. Similarly, most jurisdictions around the world now also require mining operations to prepare closure plans and to post financial assurances to cover the cost of closure from the time a mine is first approved. However, few jurisdictions have developed a formal institutional control management framework that provides for custodial transfer and long-term management of sites once the operator has fulfilled its closure obligations and is eligible for release from further financial bonding (closed sites). Post-closure management of such sites is an issue of concern that has been identified by public, industry and government stakeholders.
Institutional Control Program
For over two decades, the Government of Saskatchewan had consistently stated that once the operator of a mining facility has fulfilled its decommissioning and reclamation obligations, and demonstrated that the site is chemically and physically stable, it would accept custodial responsibility of the property. The government successfully developed a formal, effective Institutional Control Program (ICP) that defines the conditions under which it will accept custodial responsibility for closed mine sites and provide for the long-term stewardship of each site.
The process was undertaken by a working group led by a consultant and composed of representatives from the Ministries of Environment, Energy and Resources, Northern Affairs, Justice, Finance, and the Executive Council. The choice of member departments was critical to the success of the process, as was having a consistent management participant from each department. The process was initiated in 2005 with a comprehensive assessment of policy and legislative requirements, including identifying the risks and liabilities associated with developing such a program. The process also included extensive consultations with industry, Aboriginal traditional users, and other stakeholders in order to secure their input and support. The entire process was completed with the promulgation of the Act and associated Regulations in 2007 and the acceptance of the first sites in 2009.
In the context of the ICP, institutional control consists of those actions, mechanisms and arrangements implemented in order to maintain control or knowledge of a remediated site after final closure and custodial transfer to some form of responsible authority.
The primary objectives of the ICP are to:
- protect human health and safety
- protect the environment
- permanently preserve knowledge of the site including all relevant documentation
- ensure, to the extent possible, that future generations are not burdened with the costs of long-term monitoring and maintenance following decommissioning and reclamation activities
- be sustainable
- recognise and respect federal jurisdiction, regulatory roles and responsibilities for national and international obligations.
The legislative authority to implement and enforce the ICP is the Reclaimed Industrial Sites Act (RISA) and the Reclaimed Industrial Sites Regulations (RISR). As identified by public, corporate and government stakeholders, it was considered important to have stand-alone legislation for the program. Custodial responsibility for the ICP has been assigned to Saskatchewan Energy and Resources (SME)(custodian). The ICP is restricted to remediated mine and/or mill sites on provincial Crown land, but the institutional control framework has been designed to be able to manage a broader scope of sites, such as private land or other industrial sites, in the future.
Components of the Institutional Control Program
The ICP has two primary components: the Institutional Control Registry (Registry) and the Institutional Control Funds, namely the Monitoring and Maintenance Fund (ICMMF) and the Unforeseen Events Fund (ICUEF). The RISR prescribe the conditions under which a closed site may be accepted into the ICP, the requirements of the custodian managing the ICP to monitor and maintain a closed site, the funding method, and the enforcement of the preservation of records and information.
Activities undertaken by the custodian under the ICP can range from simply recording the location of a remediated site all the way to conducting regular inspections, sampling, and the forecasted maintenance of the property. It should be noted that the ICP is not responsible for decommissioning and reclamation. A site cannot be accepted into the ICP until the remediation activities have taken place and regulatory authorities have issued a release.
In Saskatchewan, all mine/mill facilities are carefully governed under environmental regulation, from construction through operations to final remediation. The process begins with an environmental assessment for a proposed mine/mill, administered by the Saskatchewan Ministry of Environment (SE), which requires the proponent to include a conceptual decommissioning and reclamation plan in its environmental impact statement. A proposed project may also require a review under federal regulation through the Canadian Environmental Assessment Agency (CEAA). For uranium mines/mills, the review is also undertaken through the Canadian Nuclear Safety Commission (CNSC). Further information on the environmental approval process is available from SE, and federally through CEAA and the CNSC.
Decommissioning and reclamation plan
Once approval for the proposed mine/mill is received, the regulations require the operator seeking the approval to submit for review a decommissioning and reclamation plan which includes post-closure transitional phase monitoring. The operator is required to post a financial assurance of sufficient value to cover the cost of the approved decommissioning and reclamation plan. Both the plan and financial assurance undergo regular review.
A flowchart of the regulatory processes as they apply to final closure is presented in Figure 1. If the site has performed as predicted, the operator may apply for a release from further monitoring and maintenance responsibilities and the financial assurance obligation. At that time, the operator may also apply for a release from its surface and mineral tenure. In Saskatchewan, mineral tenure and surface tenure are separate, which is not true for all jurisdictions.
When a site is accepted into the ICP, a site holder is required to relinquish the associated surface lease (ie surface tenure). Based on a site’s operational use and the remediation methods implemented, it may be necessary to restrict future surface use to ensure the stability and function of engineered structures. The ICP may restrict or prohibit access to a closed site if it is considered to be in the public interest. The land use restrictions are to be determined at the time of application to enter into the ICP.
Similarly, a site holder is required to relinquish the associated mineral dispositions. Based on the land remediation and engineered structures incorporated in the site remediation, it may prove necessary to restrict future mineral activities, such as exploration, to maintain the integrity of the site.
Since Saskatchewan is a uranium producing jurisdiction, the ICP must meet national and international regulatory framework requirements regarding the institutional control of radioactive wastes (and therefore uranium mine/mill facilities). The Government of Canada is a member of the International Atomic Energy Agency (IAEA), and party to their safeguards and protocols. Canada is a ‘Contracting Party’ to the IAEA’s Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (Convention). As a Contracting Party to the Convention, Canada is required to take the steps to ensure that an appropriate institutional control framework is in place to address the long-term management of decommissioned uranium mine/mill wastes, which applies to such sites in Saskatchewan. The responsible federal authority for Canada’s obligations under the Convention is the CNSC and the Registry has been designed to meet those obligations.
The Government of Canada’s regulatory framework as it applies to mine/mill facilities is exercised through a number of departments and agencies and the legislation that empowers them. A site is required to meet federal environmental objectives, in addition to provincial requirements, in the completion of their remediation plans prior to a site being considered for entry into the ICP. The responsible federal authority for Canada’s Nuclear Safety and Control Act (NSCA) and associated regulations that apply to uranium mine/mill facilities is the CNSC. If a site holder does not receive consent for exemption from licensing by the CNSC, the site will not be accepted into the ICP.
A primary component of the ICP is the Registry. The Registry is a record and information archive for accepted sites, and provides the custodian (or responsible authority) the information required to ensure that the monitoring and maintenance is performed as prescribed, and that the site remains compliant with established land use restrictions. The Registry is a portal for public access to information and responsible for reporting on all its activities to regulatory authorities.
One of the prescribed conditions to be accepted into the ICP is that a site holder must submit a monitoring and maintenance plan that identifies the future obligations that should be undertaken at the site, and the future costs associated with those obligations. The value of those future costs determines the amount to be deposited into the ICMMF. Deposits are site specific and must be sufficient to generate revenue to pay the future costs in perpetuity. The contribution is calculated based on the ‘net present value’ of the obligation at a forecast inflation rate and forecast investment return rates.
Unforeseen Events Fund
In addition, a site holder must include a contribution to the ICUEF. The contribution must be of sufficient value to generate revenue to pay the costs of future unforeseen events and eventually release a site holder from the financial assurance requirement. Unforeseen events could include site failures due to weather occurrences or changes in regulatory requirements. The ICUEF will fund these contingent events.
Understandably, concerns were raised by stakeholders, and in particular the mineral industry, that the funds be prudently managed and that the monies not be expended elsewhere subjecting a site holder to future liabilities after having paid deposits in good faith. The funds are managed separately from the province’s General Revenue Fund, and SME has established an Institutional Control Funds Investment Advisory Committee comprised of stakeholders – including former site holders and industry representatives – to provide investment advice and make recommendations on fund management. Fund management must be transparent and as a government managed fund, the Provincial Auditor audits the accounts and transactions, tables an annual report and financial statement each fiscal year. In this manner, the information is available for public and stakeholder review.
A financial assurance requirement has been implemented to minimise the ICP’s financial risk during the initial years while the ICUEF is building in value. To transfer a site into the ICP, a site holder must post an assurance equal to the cost to remediate a maximum failure event that could occur at the site. The failure event is to be identified in the monitoring and maintenance plan submitted in the ICP application.
The legislation requires SME to prepare a report every five years identifying the condition of all closed sites accepted into the ICP. As with the Registry and audit records, the report is made available for public and stakeholder access.
To initiate the transfer of a site into the ICP a site holder is required to submit an application to SME which describes the site, the results of the transition phase monitoring and a detailed assessment of the remaining liabilities on the site. The documentation should also include site specific historical information, site holder (corporate) information, inclusion of release or proof of eligibility to be released from all licenses, permits and leases. The application is subject to a review by the SME with input from SE in order to ensure accuracy and that all required documentation has been included. The Registry maintains all these documents on file. Once the application passes the SME’s review, SME will enter into discussion with the site holder to determine the amount to be deposited into the ICMMF and the ICUEF. On approval the site holder is required to submit a registration fee and the prescribed fund deposits.
Since its inception, the ICP has accepted one gold mine/mill and five uranium mine sites into the Registry and in 2014 completed the first scheduled inspections. SME, with input from other Ministries, is expected to regularly assess the program and explore ways to further define and improve the approval process, review funding levels and investment management, and emergent issues such as a proposal to re-develop a site that has been accepted into the Registry. It is anticipated that the review of the program and any changes will require consultation with industry and all relevant stakeholders and include a review of, and potentially revisions to, the Act and Regulations.
Feature image credit: Kyla Duhamel. Used under the Creative Commons License.