The Unfortunate Truth
Managing Contaminated Sites
throughout the Life-Of-Mine to Reduce
Risks and Liabilities
Overview

Notable issues associated with application of requirements under the CS
Act on mine sites due to:
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An inadequate understanding of the CS Act, and associated regulations and
guidelines
Misinterpretation and/or poor understanding of the legal and regulatory
boundaries between the EP Act & CS Act, & between the Mining Act & CS
Act
Lack of a clear understanding of the relationship between contaminated sites
and mine closure planning
Absence of technical qualifications

Potential solutions to address the issues

Identification of resultant unnecessary corporate and legal risks if
solutions are not applied, and methods to mitigate those risks
Key CS Act Aspects
KEY ASPECTS
Definition of Contaminated
CS Act
Site definition
ID of potentially
contaminating industries,
activities & land uses (IAL)
ID of suspect/known
contaminated sites
Site characterisation
Mandatory reporting and
site classifications
DISCUSSION
Contaminated: Having a substance present in or on land, water or site at above
background concentrations that presents, or has the potential to present, a risk to harm to
human health, the environment or any environmental value".
• Provision to identify, assess remediation, record or report on known or suspected
contaminated sites. Mandatory report of suspected or known contaminated sites.
• An area of land (inclusive of underground water and surface water).
• Boundaries recognised by state land administration system (i.e. lot, ‘interest only’
deposited plan).
• A list provided in CSG December 2014.
• Some of these activities include Part V prescribed premises.
Suspected contaminated sites: The site is or has been subject to potentially
contaminating IAL & secondary indicators.
Known contaminated sites: The site is or has been subject to potentially contaminating
& secondary indicators & complete exposure pathway.
• Staged process required to ID risk to human health and/or environment from
contamination.
• Presence, nature and extent of contamination.
• Risk-based (contaminant toxicity plus exposure).
Seven classifications: Report not substantiated, Not Contaminated-Unrestricted use,
Decontaminated, Potentially Contaminated-Investigation Required (PCIR), Contaminated-Restricted
Use (CRU), Remediated-Restricted Use (RRU), and Contamination-Remediation Required (CRR).
Key CS Act Aspects (cont.)
KEY ASPECTS
Actions required in
response to site
classifications
Definition of remediation
Memorials on Certificates
of Title
DISCUSSION
High Priority:
• Site classification: "CRR" or "PCIR"
• Action required &Timeframes: PSI (3 mths), SAQP and DSI (6 mths), RAP (9 mths)
Standard Priority:
• Site classification: "PCIR" or "CRU" and "RRU"
• Action required & Timeframes: PSI (6 mths), SAQP and DSI (9 mths), SMP (18 mths).
Low Priority:
• Site classification: "PCIR" & no action required/timeframe specified
• The attempted restoration of the site to its state prior to the contamination occurring
• The restriction or prohibition, of access to, or use of, the site
• The removal, destruction, reduction, contamination or dispersal of the substance causing
the contamination or the reduction or mitigation of the effect of the substance
• The protection of human health, the environment, or any environmental value from the
contamination
• Site is classified as "PCIR", "CRR", "CRU" and "RRU"
• Site is subject to an investigation notice, clean up notice or hazard abatement notice
A restricted instrument memorial: "CRR" & cannot be sold, or a lease registered on the
certificate of title, without obtaining written consent from the DER CSB
Key CS Act Aspects (cont.)
KEY ASPECTS
Disclosure of
Contamination during
Land Transactions
Responsibility of
remediation and
transferring responsibility
for remediation
DISCUSSION
• Landowners of a site classified as "CRU", "RRU" or "CRU", or subject to an investigation,
clean up or hazard abatement notice = written disclosure of contamination 14 days
before the completion of a transaction
• No formal disclosure required for land that is classified as "PCIR"
There is a hierarchy of responsibility for remediation which is as follows:
• Person/s caused or contributed to the contamination of the site
• Owner/occupier of the site who has changed, or proposes to change, the land use
• Owner of the site, or a source site
Other key information:
• Owner, by definition, includes a lessee
• A person responsible for remediation remains so, even if they sell or otherwise exit the
site, unless transfer of responsibility to another party or parties is approved by the DER
CSB
• Responsibility of remediation applies to an action that was done with and without lawful
authority
• If person contributed or caused contamination to the site prior to the commencement of
the CS Act, that person(s) is responsible for remediation of the site only to the extent that
the person that caused/contributed to the contamination by an act that was without lawful
authority
Types of Transfer:
• Certificate of Contamination Audit (issued by Government of WA)
• Agreement (subject to approval by the DER CSB)
EP Act Part IV & CS Act:
Common Misunderstandings

An approved referral does not exempt any entity or
person from obligations under the CS Act
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If there is a Ministerial Condition requiring assessment
of contamination, a WA – accredited Contaminated
Sites Auditor must be involved
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If contamination is not assessed under Part IV, it can
still be subject to assessment under CS Act
EP Act Part V & CS Act:
Common Misunderstandings

**Contamination is a result of pollution**
DER Industry Licencing regulates industries on emissions and discharges (pollution/polluting activities)
under Part V of the EP Act and DER Contaminated Sites Branch regulates contaminated sites under the
CS Act

Part V environmental approvals, licences or permits do not exempt any entity or person from obligations
under the CS Act
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Reporting of a discharge under Part V does not exempt reporting requirements to the DER Pollution
Response Unit. If not resolved through immediate clean-up response, the site may need to be reported as a
known or suspected contaminated site. If emissions or discharges at a prescribed premise cause
contamination, the site should be reported to the DER as a known or suspected contamination site
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Contamination issues at a Part V prescribed premise are regulated under the CS Act
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Information obtained for the purpose of licence compliance should be provided to the DER CSB if it is
relevant to the contamination status of the site
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In addition to the data collected to comply with licence conditions, further monitoring and investigation may
need to be undertaken in order to delineate and characterise contamination and assess the risk to potential
receptors
Mining Act & CS Act:
Common Misunderstandings

Mining Act does not provide for environmental protection, but instead, facilitates
environmental assessment through regulations, gazetted guidelines, and MOU
between regulating agencies
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Contamination, unreported and/or reported contaminated sites can only be
assessed by the DER CSB under the CS Act. It cannot be assessed by the DMP
under any proposal, plan, approvals, permits, etc.
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Approval by the DMP of a mining proposal or Mine Closure Plan does not exempt
any entity or person from obligations under the CS Act
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Whenever a provision of the CS Act is inconsistent with a provision of the Mining
Act or a mining tenement, the provision of the CS Act prevails
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Relinquishment of tenement(s) with reported suspect or known contaminated
sites that have Memorials on Title require written approval by the DER CSB
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Almost all operating mine sites will have suspected or known contaminated sites
Mine Closure & CS Act:
Common Pitfalls
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Awareness that mine closure is a function of rehabilitation, revegetation and
remediation, and remediation is a contaminated sites attribute
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Postponing investigation and remediation at areas identified in 2007 Form 1 reporting
and/or not addressing immediately releases
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Absence of appropriate baseline environmental assessments and due diligence
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Limited awareness of existing viable data
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Monitoring usually done for compliance, and opportunities to collect data for post
closure planning is missed
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Incorrect investigation and monitoring methods that may data unusable for
contaminated site investigation purposes
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Staff undertaking site characterisation works that they are not technically qualified for
Mine Closure & CS Act:
Common Pitfalls (cont.)
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No systematic involvement of key players in the mining team and their design consultants, and
usually no incentive for the mine production team to meet and implement closure objectives
throughout the mine operations
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Absence of understanding risks and liability to enable effective management and mitigation of any
contamination and certainty regarding relinquishment
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No incorporating investigation and remediation in the design of closure strategies
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Areas on the mine site identified in the MCP but not reported to the DER CSB as suspected or
contaminated sites
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Erroneous assumption is made that if the information is provided in the MCP and approved by the
DMP, then legal obligations have been met
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Significant underestimation of investigation and remediation costs associated with mine closure
cost estimation
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Inadequate planning for remediation as part of the mine closure planning process
Technical Qualifications
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Site characterisation is technically complicated
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Technically skilled contaminated sites practitioners are generally geologists,
hydrogeologists, geochemists and toxicologists
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Assessment of technically complicated sites should be undertaken by contaminated
sites practitioners with at least 10 to 15 years of experience
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Assessment of contamination on mine sites should be undertaken by the above
with a thorough understanding of application and relevance of other legislative
instruments associated with the mine site
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Auditors legally cannot consult, they can only assess information given against the
contaminated sites guidelines to ensure compliance
Solutions
Throughout life-of-mine:
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A mining tenement should not be used as the boundary of a contaminated site. Instead, a
site can be identified by surveyed boundaries and registered as an ‘interest only’ deposited
plan(s)
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Undertake process monitoring (both compliance and assessment of contamination):
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As a minimum, a baseline for soils and water quality (surface and groundwater) should be established
Inclusion of additional laboratory parameters associated with existing or other monitoring requirements or as part of
ongoing field work associated with other disciplines
Pre-emptive data gap management through compilation and validation (if viable ) of existing site data
Monitoring against baseline during operations with adaptive management responses.
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Undertake immediate response when a release occurs as studies show that there is an
exponential increase in costs over time in relation to investigation and remediation if left
unattended
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Undertake soil validation sampling immediately following clean-up of impacted soils from a
release. Dispose of the soil appropriately and document waste management. Complete the
soil validation sampling and reporting in line with the Contaminated Sites Guidelines and by
a contaminated sites consultant
Solutions (Cont.)
Throughout life-of-mine:
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Systematically adding suspected or known contaminated sites to the site register
throughout operations. Define areas that warrant further investigation and prioritise those
areas through ongoing risk assessment
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Be aware that in addition to mineral processing and extraction activities, other examples of
specific mining-related potentially contaminating industries, activities and land uses include
landfills, tailing facilities, chemical and hydrocarbon storage, drilling, workshops, electricity
generation and power stations
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Train and educate on legal obligations under the CS Act, the duty of care to mitigating risk
to human health, and ensuring immediate response to releases
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Contaminated sites assessment is highly technical. Ensuring that commissioned
contaminated sites consultants are experienced, technically skilled, and professionally
competent will reduce risks to the program of identification, remediation and management
Solutions (Cont.)
Mine Closure Planning:
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Successful mine closure planning requires the systematic involvement of key stakeholders (managers,
scientists and engineers) across business units to define and implement closure objectives, including those
associated with remediation. This can allow for the combined mine closure planning efforts through the
provision of road maps and benchmarks to measure progress. Incorporating the outputs of site
investigation and remediation or the strategies to investigate and remediate into mine closure planning and
Mine Closure Plans
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Enhance internal communications between and within business units for more efficient management of
budgets, resource allocation and decision making processes
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Closure strategies will need to be designed to incorporate investigation and remediation of contamination.
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Correlate contaminated sites to closure domains in the Mine Closure Plan
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Define options for risk management/remediation approaches best suited for mine closure and in line with
agreed post closure land use
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Maintain open dialogue with the DER and DMP for checks and balances and acceptance and approval of a
Mine Closure Plan
Corporate and Legal Risks
and Mitigation of Risks
Risks:
 Breach of legal obligations under the CS Act
 Hierarchy of responsibility (Polluter pays/buyer beware)
 Transfer of liability (written approval by DER)
 Relinquishment of Tenement (Memorials)
 Gross underestimation of mine closure cost estimation.
Mitigation of Risks:
 Buyer undertake due diligence and baseline surveys
 Have parties agree on risk allocation and liability for any contamination and/or
remediation
 Ensure contamination liability and remediation clauses are accurate and suit to the
legislative and regulatory regime
 Contractual arrangements need to include tailored basic warranties and
indemnities that are fit for purpose in relation to contaminated sites.
Contacts
If you have any questions or would like more information please feel free to contact via the details
below or sign up to our E-newsletter via the link below.
Visit our website at www.360environmental.com.au
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Scott Bird
Director
(08) 9388 8360
[email protected]
Barbara Heemink
Principal Scientist
(08) 9388 8360
[email protected]
http://www.linkedin.com/company/360-environmental