On January 30, the Independent Expert Engineering Investigation and Review Panel appointed to investigate the August 4, 2014 breach of the Mount Polley Mine tailings storage facility (TSF) released its report on the causes of the dam failure. The report, which blamed the dam’s failure on poor design, made headlines across BC, as did subsequent raids on the corporate offices of the mine’s owner Imperial Metals and engineering firms as part of an investigation by the BC Conservation Officers Service, Environment Canada, Fisheries and Oceans Canada and the RCMP.
However, the expert panel, and an investigation by two levels of government and our national police force, have largely failed to ask key questions about whether a stronger regulatory framework could have prevented this breach.
Instead, the Panel focused on the geotechnical aspects of this particular dam failure and, only briefly, the oversight provided by Ministry of Energy and Mines staff of the TSF and dam, whereas the government and RCMP’s investigation is reportedly inquiring whether Imperial violated any laws or permit conditions.
The narrow focus of both investigations means the public, First Nations and government decision-makers are left without a sense of how our laws could better avoid future disasters.
The Report
The Panel described the breach as “a sudden failure without precursors” (p 116). That failure, which released at least 25 million cubic meters of water and effluent into Polley Lake, Hazeltine Creek and Quesnel Lake in south-central BC, led the Cariboo Regional District to declare a local state of emergency in several nearby communities, the Interior Health Authority to order drinking water bans, and the Department of Fisheries and Oceans to close the recreational salmon fishery on the Quesnel and Cariboo Rivers.
The Panel acknowledges the inherent risks associated with industrial projects and takes the position that any risk of dam failure is too great a risk. However, it concludes that “zero risk” is attainable through a combination of best available technology (BAT) and best applicable practices (BAP). The report states:
Human error is often, if not always, found to play a key role in technological failures. And human error will always be with us, as much as we might wish it to be otherwise. This is why failures invariably bring about improvements in technology that help compensate for human error. In perhaps the most notorious containment failure, double-hulled tankers were mandated after the Exxon Valdez oil spill. Similarly, improvements to rail tank cars are being adopted in the wake of the Lac-Mégantic tragedy. But tailings dams have no such redundancies. Without exception, dam breaches produce tailings releases. This is why best practices can only go so far in improving the safety of tailings technology that has not fundamentally changed in the past hundred years.
Improving technology to ensure against failures requires eliminating water both on and in the tailings: water on the surface, and water contained in the interparticle voids. Only this can provide the kind of failsafe redundancy that prevents releases no matter what. In terms of portfolio risk, Appendix I shows that this works by reducing the inventory of active tailings dams subject to failure in the first place. Simply put, dam failures are reduced by reducing the number of dams that can fail.
Thus, the path to zero leads to best practices, then continues on to best technology.
There are currently 123 active tailings dams in BC. The Panel concluded that, based on the frequency of dam failures in the province to date, and assuming that the same number of tailings dams perform the same as today in the future, BC will experience an average of two failures every 10 years. As it states, “In the face of these prospects, the Panel firmly rejects any notion that business as usual can continue.”
However, despite that strong conclusion, the panel failed to identify ways to avoid tailings dam failures until implementation of its BAT and BAP recommendations are feasible. Technological advancements and the application of best practices sound good, but they often raise their own risks. Not all future risks are known, and neither are all solutions.
More fundamentally, the hazards of mineral mining in British Columbia extend beyond just the risk of tailings spills, but as we have reported on again and again, include a myriad of environmental, social and economic impacts.
The narrow mandate of the expert panel meant that these broader implications were ignored.
Regulatory Oversight
In addition to such technical aspects as design and monitoring mechanisms, the Panel briefly reported on the regulatory oversight by the Ministry of Energy and Mines (MEM), Ministry of Forests, Lands and Natural Resources (MFLNR), and Ministry of Environment (MoE). However, its conclusions must be read in light of its admission of the inadequacy of its investigation:
“However, in conducting its inquiry, the Panel limited itself to relying on interviews and on the documents that it received from the various stakeholders, which were sufficient to determine root cause of the breach. The Panel did not conduct its process according to formal legal procedures. … As a result,the Panel is not able to offer an adequate assessment of the role of management and oversight in its contribution to the cause of the failure. In particular, the Panel has not explored the relationship between the designers and owner, contractual or otherwise. Accordingly, the Panel is unable to ascertain the circumstances that contributed to key decisions.”
Despite this limit on the scope of its investigation, the Panel concluded that the dam failed despite a “strong regulatory process and personnel.” It found the technical qualifications of MEM geotechnical staff to be “among the best that it has encountered among agencies with similar duties” and that those staff, as well as MEM’s contract inspectors, were “well qualified to perform their responsibilities.”
However, the report states that MEM has had difficulty filling staff positions and suggests that MEM salaries are not competitive with industry salaries. It also states that there were no geotechnical inspections of the mine during 2009, 2010 and 2011 while a geotechnical inspector position at MEM went unfilled. Most alarmingly, the report did not address the appropriateness of aspects of the Memorandum of Understanding between the MEM, MFLNR and MoE regarding the regulation of tailings impoundments.
Notably, under the MOU the MoE has passed off responsibility for both water licenses for tailings facilities and applications for Environmental Management Act permits and amendments dealing with tailings discharges. Water Act permits are to be dealt with by MEM and MFLNRO, and EMA applications by MEM. The MOU also specifically states that “MoE is not responsible for regulating the structural safety and integrity of impoundments,” despite the fact that where an environmental assessment of a mine is required, MoE has responsibility for deciding whether to issue an EA Certificate.
In its report, the Panel fails to address the appropriateness of the Minister divesting herself of matters for which she has express statutory responsibility, a key shortcoming of the investigation and report.
The Panel’s Terms
In the wake of the spill, Energy and Mines Minister Bennett appointed the Panel “to investigate into and report on the breach.”
Its Terms of Reference gives the Panel a mandate to report generally on the cause of the failure and grants it broad investigatory and reporting powers, including the power to investigate into regulatory best practices in other jurisdictions:
The purpose of the Panel is to investigate into and report on the cause of the failure of the tailings storage facility that occurred on August 4, 2014 at the Mount Polley mine in BC.
The Panel will report on the cause of the failure of the tailings storage facility at the Mount Polley mine. In addition, the Panel may make recommendations to government on actions that could be taken to ensure that a similar failure does not occur at other mine sites in BC.
The Panel is authorized, as part of its investigation and report, to comment on what actions could have been taken to prevent this failure and to identify practices or successes in other jurisdictions that could be considered for implementation in BC. [emphasis added]
It was also expressly granted the power to assess the regulatory oversight of MEM and MoE:
“… the Panel may, at its discretion, and as it deems necessary, examine some or all of the following in respect of the Mount Polley mine in BC:
" … regulatory oversight by the Ministry of Energy and Mines and the Ministry of Environment;”
Thus the Panel was authorized to investigate and report on gaps in the regulatory framework that contributed to the breach, as well as ways the applicable regulatory regime could be improved to prevent future failures.
However, it can hardly be blamed for limiting its report to the technical causes of the failure; called an “Independent Expert Engineering Investigation and Review Panel,” all three members are geotechnical experts and the general focus of the Terms of Reference is the geotechnical causes of the breach. It appears that the province intended the investigation to be limited to technical rather than regulatory causes.
Needed: a review of BC’s mining laws
In many ways the Mount Polley disaster demonstrated the need for a broader review of the laws governing mining and its impacts on BC’s communities and environment.
Until we reach the admirable goal of zero risk, and in order to address broader concerns regarding decisions related to mining and other proposals in the province, BC needs to critically examine the laws and policies in place that permitted Mount Polley to operate despite indications of it being a potential environmental and safety hazard. Technology may address known problems, but it is not in the best interests of British Columbians or the environment to wait until a problem becomes known before addressing it.
Such a broader review could have also made recommendations about legal mechanisms for allowing First Nations, local governments, the public and others to have a meaningful say in planning for and deciding on mining proposals in BC.
It is significant that the incremental expansions of the Mount Polley dam did not receive any review under the BC Environmental Assessment Act, which only requires environmental assessments of projects or expansions that meet or exceed the thresholds of projects listed in the Reviewable Projects Regulation to the Act. These thresholds have been criticized for, among other things, allowing proponents to scope projects and expansions to come in just below the thresholds, knowing that they can apply for an expansion at a later date and thus incrementally increase projects’ size without undergoing an environmental review.
Environmental assessment is the “look before you leap” of environmental regulation, with the purpose of identifying potential hazards before they happen through comprehensive investigations involving best available scientific information and traditional knowledge, meaningful public participation and First Nations involvement as decision-makers.
Clearly a broad review could have looked at strengthening BC’s environmental assessment laws as a possible tool to examining the types of risks posed by Mount Polley mine.
Conclusion
As I have blogged previously, citizens have a legitimate expectation that the regulatory framework will safeguard their environment, health and economy from risk of harm by proposals like the Mount Polley Mine. Given the size of the Mount Polley spill, Minister Bennett was remiss not to expressly require an investigation of potential holes in the environmental legal safety net through which such environmental risks may slip. Mount Polley occurred on this government’s watch, and it would be a failure of this government to not inquire as to how.
By Anna Johnston, Staff Counsel