Background
Following the 2014 breach of the Tailings Storage Facility (TSF) at the Mount Polley Mine, the British Columbia Government formed a Code Review Committee (CRC) to improve TSF management in BC by revising the TSF regulatory framework. In BC, TSFs are governed by the Mines Act (the Act) and by the Health, Safety, and Reclamation Code for Mines in British Columbia (the Code). The CRC's revisions were published as the 2016 Code revisions alongside the Health, Safety and Reclamation Code Guidance Document (the Code Guidance Document).
Given the extent of the 2016 Code revisions, the BC government commissioned an audit to evaluate the efficacy of these revisions in improving the TSF regulatory framework. The objective of the April 2021 Audit (the Audit) was to assess whether the 2016 Code revisions were consistent with CRC objectives; their enforceability and consistency with best practices; their systematic verification and enforcement by BC's Ministry of Energy, Mines and Low Carbon Innovation (the Ministry) and finally, industry compliance with the Code.
The Audit provides three overarching objectives, which are accompanied by corresponding recommendations. For the first objective, "Consistency," the Audit analyzed whether the 2016 Code revisions align with the CRC's objectives. This included comparisons against regulations, standards and practices of other jurisdictions, as well as BC's TSF-related regulations. For "Clarity," the second objective, the Audit evaluated the language of the revised Code, the Code Guidance Document and compliance requirements in terms of interpretation, specificity, application and enforceability. For the third objective, "Compliance Verification and Enforcement," the Audit analyzed Ministry and industry compliance with regulatory requirements for both annual TSF safety inspections and the roles mandated by regulation.
Objective 1: Consistency
1. Objectives of the CRC
The Audit found that while the 2016 Code revisions were generally consistent with earlier recommendations that came out of the 2014 breach at Mt. Polley, certain facets of implementation did not match the intent of the recommendations. For example, the Audit found a lack of sufficient requirements to submit records and data to the Ministry; a lack of sufficient requirements to resubmit quantifiable performance objective data after obtaining a permit; and divergence in the definition of "Best Available Technology" between the Code and the original recommendations.
2. Comparison to extra-provincial regulations
Technical experts conducted a comparative analysis of BC's regulations and guidance for TSFs against regulations in Alberta, Quebec, Alaska, Montana, Australia, Peru and Brazil. These jurisdictions were chosen for the following key criteria (as applicable to the jurisdiction): proximity, recently updated regulations, recent dam failures, and maturity of the jurisdiction's mining sector. Based on a comparison of 13 key elements of TSF design, construction, management and operations, the Audit found that BC's legal framework is clear, straightforward, and it is the only jurisdiction requiring all 13 key elements in their regulations. Finally, the Audit concluded that the existing framework is "as good as exists anywhere in the world."
3. Interaction with other provincial regulation
The Code gains its regulatory force from the Act and functions as the primary TSF regulatory tool. However, the Audit found that related acts such as the Dam Safety Regulation under the Water Sustainability Act interact with TSF requirements in the Code. For example, the Code and Dam Safety Regulation were both found to include similar sections that differ in their definitions, applicability and specific requirements.
Recommendation #1: the Audit provided recommendations thatthe Ministry, together with related regulatory bodies, should revisit the 2013 Memorandum of Understanding regarding Dam Safety Regulation as applied to TSFs. This would create a common understanding between the Government, TSF operators, and TSF Engineers of Record regarding regulatory roles of the Ministries and the application of existing regulatory requirements to TSFs in BC.
4. Comparison to industry best practice
The Audit concluded that industry best practice documents remain more detailed than the requirements of the Code, which allows flexibility in regulating constantly evolving TSF best practices. However, the Audit recommends that the relationship between the regulatory framework and industry best practices should be revisited as they evolve over time.
Recommendation #2: the Audit recommended that the Ministry develop a change management process for determining when and how BC's regulatory framework for TSFs (including the Code and the Code Guidance Document) will be updated to reflect new management programs, guidelines, standards, external regulations and other sources that inform or seek to inform industry best practice or regulation relating to TSFs.
Objective 2: Clarity
1. The Code
The Audit maintained that the Code should be clear and unambiguous to foster a common understanding of requirements, giving both the Ministry and operators confidence that their actions are compliant with the Code. The Audit found that several key Code definitions were ambiguous, and that some responsibilities of mandated roles were unclear. Further, the Code provisions did not clarify which requirements applied to various TSF lifecycle stages, and additionally, how each stage was determined.
Recommendation #3: the Audit recommended that the Ministry develop a list of and rationale for priority revisions to TSF provisions in the Code to improve clarity, including but not limited to definitions, consistency of terms and the use of vague language.
2. The Code Guidance Document
The Code Guidance Document provides context for the application of, and what constitutes compliance with, the revised Code. The Audit found that while it was not intended to be prescriptive, several provisions of the Code Guidance Document were presented as requirements that are not supported by the Code.
Recommendation #4: the Audit recommended that the Ministry revise the Code Guidance Document to be consistent with the Code, to supply the Ministry's interpretation of ambiguous Code requirements and to reference the most current sources of external guidance that the Ministry considers significant.
3. Enforceability – Lack of support for enforcement of quality and implementation
The Audit concluded that the Code generally includes clear, measurable actions for TSF parties. However, the Audit also found that the Code varies in requirements to notify the Ministry when certain documents are developed or updated; whether to submit documentation in full or in summary; and whether the documents are subject to Ministry approval. Additionally, the Audit determined that several Code provisions lack clarity regarding when and for what facilities compliance is required.
The Audit concluded that the Code often does not prescribe quality or content expectations for documents. Without this defined regulatory standard, the Ministry may lack the statutory authority to require document changes for compliance verification or enforcement. One such example provided by the Audit is where the Code requires document submission but not Ministry approval or implementation by the operator, there is no mechanism to require document changes prior to its use at the mine or to enforce the implementation of the contents of the document through Ministry orders.
Recommendation #5: the Audit recommended that the Ministry review its current practices respecting TSFs for consistency with the Code, and document its interpretations and expectations regarding compliance with Code requirements, to ensure that Ministry staff and regulated parties have a common understanding of the Ministry's compliance verification and enforcement approach.
Objective 3: Compliance verification and enforcement
1. Ministry actions and policies – Inconsistent priorities, verification and enforcement
The Audit found that Ministry staff and document owners have conflicting expectations for how the Ministry prioritizes inspections, document review, and feedback, and no policy or procedure exists to set these expectations. For example, the Audit determined that the 2009 Ministry Inspection Procedures include objectives for inspections at major mines, leading the geotechnical group to prioritize inspections at major operating mines over document review or inspections at regional or non-operating mines. This procedure predates the 2016 Code revisions, so the Audit concluded that it is not an up-to-date decision prioritization tool and does not reflect perceived risks associated with some types of mines, such as non-operating mines.
Recommendation #6: the Audit recommended thatthe Ministry develop written policies and procedures governing expectations for the geotechnical group regarding prioritization of work across the lifecycle of a mine, including TSF document review and inspections, to support the systematic verification and enforcement of regulatory requirements for TSFs at mines in BC.
2. Compliance with TSF regulations
The Audit examined whether a sample of TSFsin BChad a recent Dam Safety Inspection and whether personnel in the mandated roles of Engineer of Record, TSF Qualified Person, and Independent Tailings Review Board had been hired. The Audit found that in 2018, the majority of TSFs (72%) complied with inspection requirements, and that most mandated roles were appropriately filled. The Audit concluded, however, that the data used was pieced together from multiple sources, and that while the Ministry is adopting new technology systems to improve efficiency, there are still instances of incomplete data, inappropriately completed fields, unfiled reports and discrepancies between new and legacy systems.
Recommendation #7: the Audit recommended that the Ministry ensure that data systems are used in accordance with policies and procedures such as the Compliance and Enforcement Policy (2020) and the Mine Inspection Procedure (2018). Consistent data system use supports systematic compliance verification and enforcement of regulatory requirements for TSFs at mines in BC.
While it remains to be seen whether the recent changes to the regulatory regime will improve TSF safety in BC overall, the Audit provides further indication that this issue (and the steps the province has taken following the 2014 breach) remains top of mind for the BC Government.
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