THE VENERABLE TODD MARTIN & OTHER AMEC ENGINEERS FACE DISCIPLINARY INQUIRY ON MT POLLEY A time for Examination & Discernment For Needed Changes To Governance

CONTACT Lindsay Newland Bowker, Bowker Associates Science & Research In The Public Interest LNBowker@BwkerAssociates.org 207 367 5145

September 27, 2018

https://www.ctvnews.ca/mobile/business/three-engineers-to-face-disciplinary-hearings-in-mount-polley-disaster-1.4110941

 

This is good news indeed to have this focus on a key aspect of  the events leading to failure at Mt Polley..the  AMEC team ‘s rejection of MEM’s insistence that the original slope be restored and the construction of the rock wall that was part of Knight Piesolds original plan be undertaken( as I recall..I am writing this from memory without re reference to all the original documents).

Knight Piesold the original designer of the center line plan for Mt Polley did not concur with the deviation in slope which resulted from the discovery that the material  from the superficially vetted  reopening plan had too much PAG material to provide for the original flatter more stable slope.  Knight Piesold objected to continuing that slope and had raised issues  about the stability of the dam insisting on a stability analysis.

Knight Piesold , as they had done at one other famous tailings failure resigned stating the clients refusal to follow the advice given.( I have and will excavate from my files the identical letters Knight Piesold wrote for both).The engineering services contract was awarded to AMEC a company with a formidable reputation for quality engineering and professional integrity including the celebrated and oft cited Todd Martin who is included in this professional conduct review.

AMEC, as I recall, was undergoing a huge global expansion at the time and issues were publicly raised  about the “junior” caliber of the team they assigned to Mt Polley.  The engineer in charge , per AMEC’s corporate action , Laura Fidel, is also a central figure in this disciplinary investigation which describes her as having no experience whatsoever in tailings design and management.

It is in the public interest that this decision is being reviewed as a matter of professional conduct in the context of a professional accreditation process that the public relies on for safety and soundness of all structures.

Engineering, like all professional services not only implies,but relies on,the training and experience to create innovation working from the established body of practice and study but going soundly beyond  to new approaches addressing previously unsolvable problems.   In mining, the role of the engineer , the experience and qualifications of the people focused on the specifics of each deposit is critical  as no two deposits are alike in composition and setting. The experience and standard of conduct of the engineering team  including, as Geoff Blight often emphasized, a thorough command of available technology and its appropriate use  is the entire underpinning of  “the public interest”.  A name like “AMEC” and highly regarded frequently cited in tailings research  engineer Todd Martin’s senior engineering position in that firm  has great weight with regulators, with the public, and in the community of professional engineers globally.

What came from AMEC’s involvement,according to the documents referenced and presented in the Mt Polley panel report, was AMEC’s defense of  Imperials disagreement with Knight Piesold even to the point of  objecting to the measures MEM had recommended in the interests of safety..the construction of the full retaining wall and , the return of the slope to its original design .

The auditor general’s report maintains that MEM had authority it didn’t use to insist  but without offering defense or excuse I can understand as a career public official  and advisor a reluctance to challenge a company as venerable as AMEC with a senior engineer as famous and highly regarded as Todd Martin.

It was Jack Caldwell’s now obliterated discourse post failure that first publicly named the inferior quality of the team AMEC put in place.

The dam design  was taken over by a British company that had no objective other than full time-sheets.  BGC had raided AMEC years before of its competent tailings engineers, and AMCE youth were left naked and beholden to computer analyses and bereft of shovel-turning expertise.  Many months before the failure, the joke at BC meetings was how BGC had gotten all the good tailings engineers from AMEC and how sad it was that the AMEC folk continued in honest attempts at what was not within their sphere of competence. ” Jack Caldwell

Jack wants engineering in mining to always be the best of what the profession of engineering is about.  His bombastic commentary at the demolished “I Think Mining” was almost always about ways in which engineers let the profession down or ways in which corporate structure and policy made it impossible for engineers to do what’s right.

This investigation is critical to restoring public confidence in the entire system of mine approvals and oversight. It is truly shocking if AMEC in fact assigned an  unqualified engineer as RE without adequate supervisory oversight and deeply troubling to have a name as venerable and as associated with tailings management standards as Todd Martin’s name is in a news headline like this but he does owe British Columbia and the world an explanation.  This was a critically vulnerable time in  the life of that already failing TSF.  The entire AMEC supervisory structure in place at Mt Polley  needs to be laid out and examined in detail. The refusal to follow MEM’s recommendations needs to be laid out and examined in the context of professional conduct and as importantly in the context of law & policy. Did MEM ever challenge Ms. Fidel’s qualifications or raise the issues of this investigation with AMEC?

I hope Jack gets no black marks for his commentary on the junior caliber AMEC assigned or on the absurd profile of the TSF as it was taken over by AMEC.  Even  a layman like me could see it was neither fish nor fowl in engineering design. Jack wants engineering to be what it should be in all situations. All engineers should want that and do that. The public interest relies on that.

The outcome that matters here isn’t what disciplinary action the famous and revered Todd Marin may face. What matters is a fuller explanation of how the system failed  so that we can better understand what we need to do to fix it.

The larger issue here in my mind is the brain drain in mining globally.  It is widely recognized  that there simply aren’t enough properly trained and experienced engineers to manage the estimated 18,000 tailings facilities globally.

This disciplinary inquiry is ultimately about one of the most serious global issues  in delivery of  community of origin security and the security of environments surrounding mineral extraction & processing  sites.  In theory young engineers working under people of Todd Martins caliber and folk approved by him as supervisory should satisfy the public interest.  How else do we expand the number of tailings experienced engineers?.

All professional services rely on  internship and residency as a mode of professional training and development: one senior person passing skill and experience onto many new entrants.  Ms. Fidels  alleged lack of training and experience is not per se an issue if the supervision and oversight was there but at the same time anyone holding a title and performing services in accordance with that title must have the qualifications  to perform those services and make decisions in the field.

It is important for future safety not to gloat and point fingers at those under investigation nor  to just rejoice that someone is being held to account.  If we are going to meet the very serious elevated risk at mineral extraction and processing  sites around the world we must follow and listen to these proceedings with a view to understanding how we fix the mining brain drain and what qualifications standards must be in law and regulation.

Here are the actual Notices of Inquiry

Todd Martin

LAURA FIDEL

Stephen Rice

 

 

Stonington, Maine

**** Additional Links & Info****

 

 

Michael Davies, Todd Martin & AMEC challenging the Knight Piesold Requirement for a rockwall in 2007

 

https://www.mountpolleyreviewpanel.ca/sites/default/files/background-documents/MP10035_2007-02-23_AMEC_2007%2002%2023%20Dam%20Safety%20Review%20Follow-up%20%28AMEC%29.pdf

 

The entity bringing the charges of negligence & professional misconduct describing the investigation that lead to this announcement on September 25,2018.

At this stage, the allegations have not been heard by a disciplinary panel and are unproven.

The investigation was led by a 3-person subcommittee of senior professionals from Engineers and Geoscientists BC’s Investigation Committee. During the course of its investigation, the subcommittee received more than 13,000 documents for review, including contracts, reports, correspondence, and daily site reports. In addition, it considered the reports resulting from other public investigations conducted by the Independent Expert Engineering Investigation and Review Panel and the Chief Inspector of Mines.

https://www.egbc.ca/News/News-Releases/Mount-Polley-Disciplinary-Hearings-Announced

 

The British Columbia Engineer & Geoscientists Act under which the investigation was conducted and the hearings noticed to the three engineers at AMEC

http://www.bclaws.ca/civix/document/id/complete/statreg/96116_01

 

Duties and objects of the association

4.1   (1)It is the duty of the association

(a)to uphold and protect the public interest respecting the practice of professional engineering and the practice of professional geoscience,

(b)to exercise its powers and functions, and perform its duties, under this Act, and

(c)to enforce this Act.

(2)The association has the following objects:

(a)subject to subsection (1), to uphold and protect the interests of its members and licensees;

(b)to establish, maintain and enforce standards for the qualifications and practice of its members and licensees;

(c)to promote the professions of professional engineering and professional geoscience.

 

Disciplinary inquiry

32   (1)[Repealed 2007-8-34.]

(2)On receipt of the investigation committee’s recommendation under section 30 (9) or (10) for an inquiry, the discipline committee must cause an inquiry to be held before it by causing written notice of an inquiry to be personally served on the person who is the subject of the inquiry or, failing personal service, by leaving the notice at, or by mailing it by registered mail to, the person’s last address on file with the association.

(3)Notice under subsection (2) must be given at least 14 days before the inquiry unless this requirement is waived by the person who is the subject of the inquiry.

(4)The notice must include all of the following:

(a)a statement of the time, place and purpose of the inquiry;

(b)a reference to the statutory authority under which the inquiry will be held;

(c)a statement that if the person who is the subject of the inquiry does not attend the inquiry, the discipline committee may proceed with the subject matter of the inquiry in that person’s absence and make findings of fact and its decision without further notice to that person.

(5)In the event of nonattendance of the person who is the subject of the inquiry, the discipline committee, on proof of service of the notice under subsection (2), which proof may be made by affidavit, may proceed with the subject matter of the inquiry in that person’s absence and make findings of fact and its decision without further notice to that person.

(6)The discipline committee, or any member of the discipline committee, may issue a subpoena for the attendance of a witness at an inquiry and for the production of records by the witness at the inquiry.

(7)Failure of a witness to attend or produce the required records makes the witness, on application by the association to the Supreme Court, liable to be committed for contempt as if in breach of an order or a judgment of the Supreme Court.

 

 

 

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Posted in mining resident engineer qualifications, Mt Polley TSF Failure, professional misconduct inquiry of 3 AMEC Engineer at Mt Polley, Todd Martin, Uncategorized | Leave a comment

Herbert Hoover& The Birth Of Mining Finance Globalization

An exercise of scouting a preliminary list of mining history’s most important books, documents and manuscripts  has been a fascinating journey.  Technology advances but the fundamentals of “extraction” are eternal in all cultures for all time.  Those eternals play out over and over across the millennia.

Take for example, Herbert Hoover’s first overseas assignment and the “misunderstanding” with the Chinese government  a story that still plays out in one form or another everywhere.

Mr & Mrs Hoover

Hoover had negotiated the deal with China in good faith .  His employer without consulting him  made changes they felt were essential to preserving access to capital on London exchanges needed to develop the project.  Hoover went along to get along.
Chang [Yen-mao] described the circumstances under which he signed the deed…. He said he repeatedly refused to sign... its terms did not agree… with his agreement with [Herbert] Hoover. Upon being told by Hoover that the deed was merely meant for the purpose of registration in England, and that the memorandum would be the ruling instrument, he eventually signed… with reluctance….
Chang told in detail of… threats… by Hoover… that the mines would be confiscated by the [European] Allied governments and that he and the Chinese stockholders would get nothing [if he did not agree to the terms]….”
Ouch!!!
Yikes!!!
This is the future President of the United States Mr Chang is testifying against in complete truth alleging a bait and switch.
After maintaining in court that he was not aware of the changes that had been made until he got back to London  it came out in court that he was aware of the changes, argued with his employers for preservation of the terms he & Chang had agreed on, but did not insist or even ask that changes be made to reflect the deal he had negotiated with Chang.
Hoover admitted that he had not asked de Wouters to alter the letter, or not to send it, but insisted nevertheless that he was not in accord with de Wouters on this point and that the letter did not correctly represent the situation.
The China deal gave Hoover a ginormous salary that made it possible to ask his brilliant fellow geologist wife to marry him. 
They shortly  left China returning to an elegant mansion in the heart of London where together they translated  De Re Metallica( Giorgius Agricola 1556 ( George Bauer latinized).
220px-De_re_metallica_title_page_1556
Mining was a great love of Hoovers  in that sort of cowboy appeal of adventure, camels, horses in wild  far away places, the hunt for the hidden .
I expected to see Hoover’s stamp on U.S. mining law & policy but after De Re Metallica he turned to civic duty and public affairs and at least as far as I have gone I see no Hoover stamp on US mining policy.  He was very concerned though with efficient and reliable global and international markets.
And so it goes.  A history untold and little referenced but  very much present in the headline news on mining today including the rise of nationalism the drama around unmet expectations, uncompensated losses, and the  BHP investor law suits and the lingering  unresolved $47.5 bn damage claims.
Lindsay Newland Bowker, Stonington Maine , August 13,2018
LNBowker@BowkerAssociates.org
Posted in BHP Investor Lawsuits, De Re Metallica, Herbert Hoover, Mining Finance, Nationalism, Uncategorized | Leave a comment

BHP INVESTOR LOSSES BRAZILIAN LAW & NAVIGATING NON OPERATED JOINT VENTURE LIABILITY EXPOSURES

Contact : Lindsay Newland Bowker LNBowker@BowkerAssociates.org      Date July 27, 2018

Brazilian mining law wants foreign investment but not foreign owner control of its mineral resource extractions. From a liability point of view Brazilian law sets up a circular firing squad in the context of the two investor lawsuits against BHP, one still active one recently settled with no admission of liability.  They want foreign investment. They need the exchanges for the equity capital to develop and operate its large mines but they place themselves and their citizens ahead of the interests and protections of the individuals  and institutions who provide the essential equity capital.  (Sounds good but it hasn’t done well protecting its citizens either). Brazilian law explicitly states that the settlement of its demands is without regard to impacts on investors.

This sets up a drama that may ultimately not serve Brazil well with current and future investors when the specific provisions of its law come to the fore in the context of the still active Australian Class investor  action suit . ( Just days ago the earlier filed New York suit was settled without admission of liability by BHP for $50 million  precluding the requested jury trial in which the issues discussed here may have come to the fore).   There is a moral tale here too for nationalism in general and for aggressively protective but not ulitmately effective local law ( eg the well aimed but very poorly framed Sierra Club “Prove It  Statute in Wisconsin).  All mining these days takes place in a global context of available capital and a dwindling cadre of well trained technical resources. All national and local laws operate in a context of international or other law that has its own standards and remedies. 

The fatal flaw in Brazils structure with respect to attracting that foreign capital is that it expects to be able to successfully separate responsibility and control, a fatal flaw at  the “get go” in terms of sound risk management.

BHP1

Source ASX BHP Price July2015-July2018

“BHP chairman Jac Nasser told shareholders at this week’s BHP Billiton AGM: “This year will go down as one of the most difficult in [BHP’s] 130 years.” Not only is BHP facing vastly reduced commodity prices, since the disaster investors have heavily sold down BHP shares to the level of ten years ago.”The Conversation.com November 2015

THE SEPARATION OF RESPONSIBILITY AND CONTROL  UNDER BRAZILIAN MINING LAW

Under Brazilian law the 50%-50% joint ownership of the Samarco, makes BHP a “silent /deep pocket ” partner forbidden by law to have any management control.  Brazilian law does not limit liability to the ownership percentage of a joint venture.  Which ever partner can pay does pay if a partner or the owned subsidiary can’t. Brazilian law  supersedes whatever agreement Vale & BHP may have. It is structured to insure the government and Brazilian citizens  are held harmless and reimbursed even at the peril of value to all investors, a specific provision of Brazilian law. ( a provision potentially essential to all mining law but only in the context of an entire legal framework that actually works.   At the scale of $50 bn in claimed damages,  BHP’s investors are as at risk as Vale’s.  Their exposure may even be greater than Vale’s as BHP is the deep pocket in terms of revenues and market cap. (  Vale has a current cap of $us76 bn.  Samarco in essence no longer exists).

“Corporate and industry reputations are big losers. It is estimated the disaster has affected 15 million people. “The Conversation.com

Under law only Vale, the “native” Brazilian company  was allowed any management control. To complicate matters  further with respect to BHP’s opportunity to manage its liability exposures in the deal within the constraints of Bazilian law, Vale was found by the government to have actively contributed to the failure through unauthorized use of the Fundao for deposition of their own high slime tailings from their adjoining facility. It is not clear whether this arrangement was disclosed in the JV agreement but it was right there in the plans and specifications for the Fundao: a direct pipeline for deposition from the Vale site as needed. It seems impossible to believe BHP was unaware, that they would not have had “their people” at least review the mine plan.  If I were advising a JV partner  in this situation I would have built in specific compensation from Vale  for the benefit of that use and required an enforceable  hold harmless and indemnity  from Vale for all losses and damages raising from operations. As Risk Manager for BHP I would have insisted on a right to independently assess all inspection reports and consultant reports including the ITRB and I would have insisted on a “buy out” escape hatch.  ( I would have invoked it at the point Vale approved the go ahead on the Samarco expansion fully aware there was not adequate capacity at the Fundao and that there was capacity on site and no viable plan to create capacity.)bhp2

The Conversation.com November 16, 2015 “Samarco Mine Costs Will Make For More Than One Difficult year

In effect, under Brazilian Law the lion’s share of damages could accrue to BHP and at the levels at issue, a total of $50 bn that will continue to have a major impact on BHP as a whole until the payment arrangements and amounts are firmly settled.  Even behemoth BHP is not big enough to absorb the lion’s share of a $US50 bn legal demand for payment. The Investors in the US  settled for only $US50M. Australia represents a demand for another $US25bn (more or less).  BHP’s market cap is only $US133 bn.  Even at 50% of Brazil damages the combined total  arising from a basically insignificant operation (in the scheme of revenues from the  whole BHP portfolio ) presents liabilities which are as much as 38% of present market cap.   That in turn will have, and has had, a major impact on the value of BHP shares. Investors have in fact been, and will continue to be, under the shadow of the Fundao failure for two more years  or until BHP’s share on the $US50bn in Brazilian damages is resolved in law.

“Last month, the company reached a deal with Brazilian authorities to push back a $47.5bn civil lawsuit for two years while both sides negotiate a settlement”.

 

A circular firing squad.

Some shots already  fired.

Some wounds already suffered with slow and incomplete “healing”.

The recently announced  Australian class action suit against BHP estimates $AU25billion in ASX investor losses between November 5th, 2015 ( the date of the largest mine failure in recorded history ) and November 30th, 2015, the period of the class action claim brought by Phi Finney McDonald. The insert chart above shows both values and volumes traded. Of course this suit and the now settled American parallel are under applicable securities law and have nothing to do with Brazil’s laws and structure.  However, the generic standards for adjudication of investor lawsuits don’t work well for mining especially when paired with a legal structure such as exists in Brazil. In the U.S. version of the BHP investor suit the ruling disallowing a fraud charge under section  was based in part on assumed control by BHP when in fact Brazilian Law specifically disallows control by foreign owners.

If the non control provisions of Brazlian law are  found to constitute a complete defense for BHP under security law, investors are possibly squeezed out again.  All  await the outcome of both the US and Australian investor suits.

The structure of law determines the structure and path for a cause of action .  Both the U.S. & Australian class action investor suits rely on similar securities law requiring immediate continuous disclosure ( not just waiting for the next annual report or quarterly review) of material adverse conditions which might affect value. In the US case under US law the standard for a securities fraud claim requires that:

the plaintiff sufficiently alleges that the registrant had ‘actual knowledge’ of the relevant trend or uncertainty. [A]nalysing SEC guidance, the court held that the regulation requires disclosure only if there is a substantial probability that the trend or uncertainty would come to fruition and that such occurrence would have a material impact.

The fraud charges  (in a very flawed ruling) were rejected but other elements allowed to stand in the US proceeding.

The total liability just from the governments Brazil damage claims and the two investor lawsuits ($us100 bn more or less ) represents about 1/2 of the combined market cap of these two top 40 behemoths ($us200 bn more or less).  The two active suits will drag on for some time.  Hard to put a smiley face on the situation for either Vale or BHP, for their investors, for the displaced and made homeless, for the survivors of the 19 killed, for the long term loss of livelihood, for the irreparable generational  loss of essential natural resources.

Sticky Wickets of Securities Law Applied To Mining

“Substantial Probability” and “material impact” are the sticky wickets of securities law when applied to mining.  It is hard to even a imagine  that a plain vanilla interpretation of these terms could be contrived or applied to mining even though the history of the TSF from its failure at opening and over its entire and short life continuously built to a fully formed fatal event months before the actual event according to the miners own commissioned cause of failure report.  Even though it was known a failure would wipe out Bento in minutes and cause massive damage.    Even at the moment the failure was fully matured,  if asked, a Vancouver mining consultant would likely spout some ridiculous non applicable probability theory “demonstrating” that the probability of failure was less than 1 in 1million. MAC would back them up. ICMM would back them up.  No one in court would know enough about Poisson Distributions and probability  theory to know it only applies to “acts of god” , to truly random events not to  the cumulative and inevitable results of ignoring one warning  after another, making one decision after another not in line with best knowledge or best practice. All would be wrong but it wouldn’t matter because securities law doesn’t match up with mining realities and no one involved in  a securities action knows beans about probability theory or poisson distributions….or mining.

Securities law standards on breach of duty to investors just don’t work for mining.

Investors again will most likely get the short end of the stick.  That is already suggested in the $US50 M U.S. settlement.

The BHP Billiton opinion [in the NY case] may be found in BHP Billiton Limited Securities Litigation, 276 F Supp 3d 65 (SDNY 2017). The case is currently in the discovery phase.

The recently announced Australian investor class action suit relies on similar provisions in securities law has has similar vulnerabilities when applied to mining sector investor claims.

The PHI Finney McDonald suit, financed by the same party bringing the US investor suit (G&E KTMC Funding).will allege that BHP knew, or should have known, there was a significant risk the dam would collapse as early as October 2013. Despite knowing this information, BHP failed to ‘immediately disclose’ this risk to investors as required under § 674 of the Corporations Act 2001 (Cth) (the Act) and Australian Securities Exchange (ASX) Listing Rule 3.1.

The complaint will also allege a claim against BHP for engaging in misleading or deceptive conduct contrary to § 1041H of the Act.

In this post we are mainly focused on how Brazilian mining Law  played a role in events leading up to the failure  and failed to bring about a timely and effective  mobilization  in response to the failure.  Arresting executives as “environmental criminals” doesn’t help villagers who have lost everything.

The effects of Brazilian Law on the standing of investors  to recover actual losses is not insignificant and should not be minimized or overlooked.  Equity capital raised though the major exchanges is essential to  production of the minerals the world actually needs to function. Those acquiring equity need to know that the company is responsibly managing all risks that may affect value.  How the SEC  and Australian counterpart apply securities law to the BHP investor suits could further chill investor enthusiasm for the metals sector and the outcome may point to a need for exchanges to revise standards as applicable to minerals extraction and finishing.  BHP’s defense will obviously cite their legally  limited role as a “silent partner”.

Brazilian Law serves Brazilian government interest very well  or rather aims to do that above all else but it may end up working to shield BHP from accountability to investors .   It has already failed its people and failed the environment.

bhp3

Financial Review 2016

Brazils law and BHP’s corporate approach to the unique liability it created for BHP and its investors are co responsible for whatever economic damages ultimately accrue to BHP. Separating responsibility and control is never a good idea in risk management /loss prevention terms yet there were at the outset remedies possible within the terms of Brazilian Law that would have reduced BHP’s total liability and better protected its investors.  In fact  belatedly BHP has initiated an Non Operated Joint Venture Program policy that does that.  It applies to BHP’s other existing non owned joint ventures Antamina, Cerrejon and Resolution and will apply to the vetting of any new positions where responsibility  and control are separated ( mining by contractor..also not a sound idea in risk management terms).

 

BHP SPECFICALLY RECOGNIZED INVESTOR & CORPORATE LIABILITIES IN NON OPERATED JOINT VENTURES

 

Although it is not referenced in the particulars of the present investor class action suit by Phi Finney McDonald  on behalf of  a class of 3000 investors, BHP did recognize the liability of the arrangement could be extensive for its investors and for the company as whole.

Up to and including the Samarco failure BHP recognized the liability and exposure of NOJV’s but did nothing about it.

 

Our non-controlled assets may not comply with our standards. Some of our assets are controlled and managed by joint venture partners or by other companies. Some joint venture partners may have divergent business objectives which may impact business and financial results. Management of our non-controlled assets may not comply with our management and operating standards, controls and procedures (including health, safety, environment). Failure to adopt equivalent standards, controls and procedures at these assets could lead to higher costs and reduced production and adversely impact our results and reputation.  Risk Factors 2009 annual report https://www.bhp.com/~/media/bhp/documents/investors/reports/2009/annualreport2009.pdf?la=en pdf p 12

 

Some of what the new program aims at will help avoid getting in another hole as deep and dark as BHP embarked on with Samarco and Vale.  But it also shows BHP had plenty of room within Brazilian law to protect investors and excercise more influence to protect Bento and the entire downstream community.”2018 non operated joint venture oversight https://www.bhp.com/our-approach/operating-with-integrity/non-operated-joint-ventures

“Non-operated minerals joint ventures

Our non-operated minerals joint ventures include Antamina (33.75 per cent), Cerrejón (33.33 per cent), Resolution (45 per cent) and Samarco (50 per cent).
Following a review of governance at our non-operated minerals joint ventures (NOJV), we have focused on the following actions.

Risk management and processes: a global standard has been developed that defines the requirements applicable to all of our NOJVs. These minimum requirements are consistent with BHP’s standards for our operated assets, and establish a framework for identification and management of NOJV risks, including identification of governance risks. We are working closely with our NOJV partners to establish priority areas, communication strategies and work plans in line with this global standard.
Accountability and structure: the management of all of our NOJVs has been centralised in our Minerals Americas asset group. We have created a NOJV leadership team and supporting team, who are a single point of accountability with responsibility for all NOJVs.

People: we have added to the capabilities of our teams to manage the risk and opportunities at each NOJV. Further resources have been allocated to provide functional support, and for projects, governance, and planning. This dedicated NOJV team of subject matter experts provide support to the NOJVs, enabling strong management of risk and performance and contributing to discussions on governance improvement and value generation opportunities.

Our focus for FY2018 is on our governance processes for NOJVs, including:

  • reviewing the effectiveness of risk management processes to drive improvements and share good practices;

    ·further development and implementation of specific standards for NOJVs, based on best-practice governance benchmarking;

    ·         improving governance and assurance processes across the NOJVs”.

Sounds great on paper and would endorse as an essential strategy for all non operated joint venture positions.  Certainly every non native  JV partner  in Brazil mines needs this.

The details and the effectiveness lie in the implementation not in the words, however. On that no details as yet.

 

WHAT DID BHP KNOW & WHAT DID THEIR AGREEMENT WITH VALE PROVDE AS REMEDY

It has been assumed and argued by NGO’s and claimants and critics that because BHP  had a representative on the Board of Samarco that it was fully aware of all the events that created, incubated and finally matured to the largest mine failure ever in human history.  Having served on a few boards (Government Regulation and professional society), I know that Board members get what the corporate body thinks is needed to keep them from getting in the way or to secure a positive vote on a particular issue.  Board members are not part of the day to day deliberative process. They don’t automatically see all information known to the operators & managers.  But on all boards I have served on, it is possible to get any records requested and to have influence, even decisive influence on how that information should be acted on.

It is reasonable to assume that BHP always had the right to review any documents, see the ITRB reports, Inspection reports, opinions of outside consultants etc. BHP is doing that now for all non-operated joint ventures.  It seems it just didn’t think to do that in the course of co ownership of Samarco up to the date of failure.

BHP’s revenues less acquisition cost less judgments will make the project a huge net loss.

Having explicitly recognized the liability to the whole company and to investors, in risk management terms BHP  committed an error of mission in not doing what it could all along to protect itself and investors.

 

 

Not knowing is not a defense in common law.

Not having management control is not a defense

It had a recognized liability of acknowledged large consequence.

It took no action to reduce or eliminate the risk.

Not knowing is a defense, possibly, in securities law.especially as Brazils law forbids BHP’s management control or direction.

There is no place to hide terms of justice.

There is no large ground on which to launch a defense asserting there was nothing BP could do to affect the outcome.

Depending on how it is framed, the particulars of the Phi,Finney McDonald may give them considerable ground as it reportedly asserts witholding of information on warning signs about the dams condition.   The negligence seems rather to be BHP didn’t ask or care even though it had specifically acknowledged the liability in its annual report.

The key issue, it seems to me, was in what they chose not to know or try to effect.  But that may not be at issue in the lawsuit.

Depending on the particulars, BHP may have a winning defense.on that one at least.

 

WHO IS SERVED BY BRAZILIAN LAW

I just peer reviewed a paper mapping how many suits have resulted from the Samarco failure, through what avenues within law these suits and claims have been advanced and against whom.  An important endeavor because as we see Brazilian Law did not work at all to prevent a completely preventable loss. (In that article I saw no reference at all to suits against the government)  (We frequently say “all tailings failures are failed public private public partnerships”)

Brazilian Law clearly has not worked to mobilize relief and restitution for an entire village decimated by the wall of fast moving sludge & debris and soils pulled into the flow by its force. It took three years just to get the long demanded, long resisted upfront $US5 bn mobilization money agreed to and paid, the bulk of that to the Renovo Foundation under miner control not to help claimants directly.

We are three years past a responsible reasonable mobilization & response effort.

The law, created in 2010 as part of privatization of its mineral sector, did do very well protecting Brazil itself against abandonment through bankruptcy or otherwise:

 

(1) Brazilian law does not allow transfer or dissolution of property that has an unresolved ,unfunded public damages.

Every wise legal framework should have his same provision

(2) Brazilian law asserts joint and several liability that extends to non-operated JV partners .  Liability does not stay with some single purpose subsidiary easily just extinguished by bankruptcy.  The bankruptcy of a subsidiary does not extinguish parent company obligations. (Every  mining statute should have that provision)

(3) Brazilian Law asserts strict liability when extensive damage has occurred.  There is no defense.  The financial responsibility is complete and without recourse ( can’t endorse that one as written but a version of it could and should be crafted consistent with common law principles and established case law on strict liability e.g. on facilities with a high hazard rating)

(4) Brazilian law forbids foreign control but recognizes it is deep pockets and foreign dollars needed to develop Brazils’ resources.  It is a have your cake and eat it too statute. We don’t endorse or recommend that.  The objective should be to attract the brightest and the best for all operations.

(5) Brazil holds itself harmless under law from any and all damages arising from a mining operation ( ie it transfers 100% of liability to owners whether controlling or not. We don’t recommend or endorse that.  The first obligation is to its people.  If it is necessary to lay out fund for the protection of its people especially an entire displaced  village..that should come first.i

All of this is at work and not helpful to BHP in getting out from under what could end up being the lion’s share of damages.  The total even on an equal 3 way share makes the whole venture a huge net loss.

We shall see.

 

 

Posted in BHP Investor Lawsuits, Brazilian Mining Law, Fundao Talings Dam, Linhares Civil Action Against Samarco, Non-Owned Joint Ventures, Phi Finney McDonald, Samarco Dam Failure, Samarco Environmental Crimes Investigation, samarco failure government findings, Uncategorized | Leave a comment

PREVIOUSLY UNREPORTED LINER FAILURE AT KOKOYA GOLD MINE LIBERIA PUTS SPOTLIGHT ON DEFICIENT INTERNATIONAL CYANIDE CODE

TAGS: International Cyanide Code; CIL Process Risk;Severity Rating Of Tailings Failures;Robert Moran;FrontPageAfricaOnline

CONTACT: Lindsay Newland BowkerLNBowker@BowkerAssociates.org

DATE: June 25, 2018

kokoyaprefailurtsf                 KOKOYA Tailings Facility Pre-Failure (Source Miner Annual Report)

 

Although it must have been widely known in mining circles, a liner failure releasing  11,500 cubic meters of cyanide tainted CIL  tailings at the the Kokoya gold mine in Liberia on September 27, 017 was not reported in mainstream mining media or at WISE, the “official” world chronicler of “serious tailings incidents post 1960”. It came to us via a google alert through a recent article in FRONTPAGEAFRICAONLINE summarizing the Liberian government’s legal findings of “public harm” related to measured evidence of consequence attributable to the cyanide levels in the tailings.  Although the journalist  was allowed to apparently read the full report in situ  he/she  was not , presumably allowed to make a copy and the government is now refusing to release the full report.

On reviewing the World Mine Tailings Failures data base from 1915 it became apparent that the absence of scieitfic assessment of the persistence and effects o cyanide tainted releases had not been taken into account in any of the of the narrartives and therefore any of the the severity classifications of prior tailings releases from gold mine leach facilities.  All but a few had been rated “minor failures” due to the absence of any science or examination of the actual  cyanide consequences.

The following was shared with the international tailings working Group, a multi stakeholder mult disciplinary roundtable convened by Minng Watch Canada.to bring forward the intentional obfuscation and avoidance of cyanide effects .  Citing this presentation to UNEP and the European Commisison by hydrogeologist Robert Moran we are removing all  severity codes for failures of gold leach tailongs facilities  that do present authoritative science on cyanide related consequence and presently rated as “minor failures”.

Kokoyacilmneplan

Kokoya Mine Plan ( Source Miner Annual Report)

KOKOYAprodutcinandgradeprefailure

http://bankwatch.org/documents/decodingcyanide.pdf

 

Following the Baia Mare spill and several other environmental incidents involving cyanide, a mining industry-funded research association, the International Council on Metals and the Environment (ICME), together with the United Nations Environment Programme (UNEP) organized a series of meetings in an effort to prepare a cyanide “code”, with the objective of describing “best use” practices. Unfortunately, this process has been funded primarily by the industry, and is largely controlled by it.  Even the participants from the UNEP staff come largely from industry-sponsored positions.  Therefore, the “code” draft (UNEP/ICME, 2002) reflects, predominantly, what is best for industry, not the interest of the environment or the public.  The author is concerned that the outcomes of the flawed UNEP sponsored process, will impact decision-making in the EU.  (Note:  ICME is now defunct and has been replaced by a new industry trade association, the International Council for Mining and Metals—ICMM.) 

To be sure, there are some positive practices recommended in the draft UNEP report.  However, the draft document continues to recommend environmental monitoring that focuses only on WAD CN, thereby neglecting to evaluate many other toxic forms of CN.  Incredibly, the draft (Section: Standard of Practice 4.5, pg. 15) states that direct or indirect discharges to surface waters can contain up to 0.50mg/L WAD CN.  Aside from recommending an analytical procedure (WAD) that fails to detect many of the toxic CN species, such a concentration would be lethal to most of the aquatic life in many settings.  This is hardly protective and amounts to a UNEP/ICME sanction for the destruction of aquatic systems.

Robert Moran 2002 ( emphasis added)

 

 

Where a beneficiation or extraction process that is wide spread practice and considered  indispensable for the production of a certain mineral or mineral group presents very high potential risks to human and environmental security, and where there are no known effective alternatives to those methods,industry avoids any visitation of science & reality that may lead to extra costs or preclude some deposits from being mined at all.

 

With respect to cyanide released with the <12,000 cubic meters of tailings at Kokoya, a full understanding of consequence, or a finding of no consequence , must be science based and if it is good science will be in line with what Dr.Moran  had always urged and what we must urge now. International Cyanide code is not good practice not good science.

 

What standard did the Kokoya miner employ?  What standard did the Liberian government employ in its statute and in its findings of impacts report that the journalists has been trying to get released.

 

Tailings Failures begin in pre feasibility and take a step forward when a miner advances a plan that does not control risks and a government agency approves that plan.

 

What standards were set by government on cyanide, what test procedures were specified?  What measurements of cyanide level were required by the government or initated by the miner?

 

​​

the Code makes recommendations regarding Free CN (again in Standard of Practice 4.5), where they state that a Free CN concentration less than 0.022 mg/L downstream of any established mixing zone is acceptable. In some environments this concentration would be toxic to many sensitive species. More importantly, most objective experts would agree that there is no reliable analytical method to analyze Free CN (C. Johnson, US Geological Survey; G. Miller, U. of Nevada). The authors then add a very self-serving phrase, that “the lower quantification limit (LQL) for free cyanide analysis achievable by most laboratories is 1 mg/l.” Most high quality commercial labs can, in fact, reproducibly report to the nearest 5 to 10 mg/L (0.005 to 0.01 mg/L). Thus the report is misleading in its assertion that “most laboratories” cannot achieve this standard. Clearly the Code is not being particularly protective or accurate when it recommends (Standard of Practice 4.4, pg 14) that WAD CN concentrations up to 50 mg/L in open waters are acceptable regarding safety to wildlife and livestock. There are many examples where numerous birds and other animals have been killed by lower concentrations   Several Code statements regarding Emergency Response are extremely relevant to the present EU purposes. For example, in Standard of Practice 7.5, pg. 29, if read carefully, one concludes correctly “that there are no safe and effective options to treat cyanide once it has entered natural surface waters such as streams and lakes.” 

 Robert Moran Op Cit 2002​

 

 

Can we even assess how much cyanide was in that small release at Kokoya from data required by law and regulation and independently measured and maintained by Government.?

 

The publicly available data from the Baia Mare spill reported only total cyanide, and selected determinations of copper, manganese, iron, lead, and zinc—for river samples. No detailed analyses of the actual gold-process waste liquids were made public. No field measurements (temperature, specific conductance, or pH) were reported. Such measurements are, in some ways, the most useful data for understanding such a spill.

Robert Moran Op.Cit 2002​

 

A recent report sponsored by the mining and cyanide manufacturing industries (Logsdon, M.J., et. al., 1999) states: “Since cyanide oxidizes when exposed to air or other oxidants, it decomposes and does not persist. While it is a deadly poison when ingested in a sufficiently high dose, it does not give rise to chronic health or environmental problems when present in low concentrations.” This statement is misleading and presents a falsely benign picture. Robert Moran Op.Cit 2002

 

The UNEP Baia Mare report indicates that elevated total cyanide concentrations were detected for, as a minimum, hundreds of kilometers downstream, for up to four weeks after the Baia Mare spill. Clearly the total cyanide in the Tisza River did not decompose quickly. Robert Moran Op.Cit 2002

 

 

​Baia Mare was a release of 100,000 cubic meters, 10 times the Kokoya suggesting that the Kokya 11,000​ cubic meters could also have had cyanide concentrations affecting possibly 10 km of running water for up to a month after release on 09/27/2017/.

 

 

Dr Moran says of vat leaching of which CIL is an advanced ore process form:

 

From an environmental point of view, there may be some 13 preference for vat-leach approaches, mostly because there are no open process solution ponds, and some of the tailings liquids may be treated. However, higher concentration cyanide solutions are often used in vat-leach facilities. Vat-leach approaches could be improved through requiring that tailings be deposited essentially dry. Robert Moran Op.Cit 2002

 

Of the many many AU tailings failures in the data base, the Kokoya  is the first that had sufficient data available on harm (a government legal finding viewed and relayed by the journalist) after release attributable to cyanide to include the cyanide toxicity as part of the consideration  severity code.  All the others are based on release runout and deaths only and most are presently rated 3, “minor failure”‘–that can’t be right...I am removing any severity code rating for all AU tailings  failures presently rated “minor”.  The absence of data or the use of false science to minimize harm and long term risk should not result in a severity classification of “minor failure”.  Henceforth any AU tailings  release without specific good science assessment o cyanide effects will cite this Moran report to explain why no severity rating can be assigned.  To do otherwise may lead to misleading use of the database stating that 100% of cyanide containing releases were found to be “minor”

 

Tailings waste risks begin in pre feasibility when the beneficiation process determined

 by grade and mineral type is identified. 

 

The advances in beneficiation and extraction technology that accompanied the push to mine lower grades of mineral ores cost effectively  and  brought us bulk mining and its main asset open pit mining.   These technologies enabling low grade mining also brought us:

 

(1) higher volumes of ore processing per unit of mineral produced and greatly pushed margins

 

(2) Robert Moran Op Cit 2002​ effects and implications for closure for wet tailings resulting from CIL, Bayer, and even hard rock floatation slurries in which a recent report in Spain found 80% of very old tailings  didn’t dry out and still liquefy.

 

(3 un examined effects and implications for zero public consequence management of the wastes of these wet disposal, wet permanent state  technologies

 

An exceptional high grade deposit  brings more options, lower risks, and more value per tonne.  Higher grades make it possible to maintain solid margins and actually can  put public and environmental safety first and still produce within market price.

 

At Bill Williams Zero One Zinc deposit in Peru, good vetting work on the deposit itself ( by Bill) redefined it from a small marginal low grade deposit of no economic interest to an exceptionally high grade deposit of much larger size than previously hurried not as competent analysis  revealed. This will allow beneficiation with.no tailings ponds. The wastes will be usable product for asphalt and other surfacing.

 

 

THE WORLDS NEEDS FOR METALS & MINERALS DO NOT REQUIRE A LOCAL SACRIFICE ZONE AS AGRICOLA LAMENTED

 

Writing at the same time of Dr. Moran’s iconic message to the European Commission and UNEP on Sustainability mine economist David Humphreys concluded that there is no inherent conflict between sustainable mining of the minerals the worlds needs and community/environmental security.  Where technology is available and proven to reduce risks to a “no public consequence level” ( my framing not Dr. Humphreys) he opined that the tighter controls required would actually improve overall  productivity and thus be largely funded through revenue and that what results in increased non recoverable costs of production will raise prices and thus become funded. He counseled wisely that any deposit that can’t attain community and environmental security within the known efficacy of existing technology shouldn’t be mined.  When we ignore this wisdom we end up with catastrophic non remediable tailings failures and giant write offs and losses to investors impairing the flow of private capital needed to actually supply the minerals the world needs..

 

Tailings failures are germinated in pre-feasibility.

 

That this hasn’t been the standard of resource governance globally leaves us with the following serious unexamined unaddressed tailings issues for the coming decade

 

(1A)The accrued liability in existing tailings is world problem #1A..these faciities have to be assessed and prioritized for treatment and closure as Dragana Nilsic is doing in Serbia and Roberto Pacheco is doing in Spain. This work of realistic science based independent risk assessment of existing in use tailings facilities must be a top funding priority for every nation, every permitting jurisdiction.  We can’t defer or ignore that just because existing and planned production needs tailings storage capacity that does nor presently exist.

 

1B) world problem 1B  the bulk of the mineral production this decade will come from the same beneficiation and extraction technologies.designed for lower grade ores at all new low ore grades presenting more challenges to processing and to safe retention and they will look to these existing tailings facilities globally to accommodate ever higher volumes of tailings waste per tonne of mineral produced.

 

(2) Tailings storage that can be safely managed and closed  with zero public consequence depends not just on leak & release proof containment but on new technologies for extraction and beneficiation.  It makes no sense just to continue to produce metals and minerals  outside the known limits of existing technology to realistically aim at zero public consequece. It isn’t necessary to do this to produce the minerals and metals the world actually needs.

 

 

 

(

 

 

 

Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager

Bowker Associates

Science & Research In The Public Interest

15 Cove Meadow Rd.

Stonington, Maine 04681

 

207 367 5145

 

lindsaynewlandbowker@gmail.com

lindsaynewlandbowker.wordpress.com

 

 

On Fri, Jun 22, 2018 at 8:19 AM, Lindsay Newland Bowker <lindsaynewlandbowker@gmail.com> wrote:

https://frontpageafricaonline.com/news/liberia-suspicions-heighten-over-undisclosed-reports-of-cyanide-pollution-of-communities-in-bong-county/

 

This kind of  intentional always present fuzziness about the actual details of “consequence” of failure attends all catastrophic failures. 

 

This reporters original story cited excerpts from the governments own official findings and used the text from those findings which included specifically the words “catastrophic” and “failure to follow best practice as required by law”. This follow up report by the same journalist now explains that the government has refused to make its investigative report and findings public.

 

We are still classifying this as a 2 , “serious failure”  based on the toxicity of the release despite its small volume (<12,000 cubic meters).  With no specific disclosure on the composition of tailings in publicly available inventories of the portfolio of tailings facilities globally we have only post failure texts f varying reliability and quality  to rely on to properly describe severity and consequences of a given release. We consider legal findings authoritative. Our 2, “serious” trusts the veracity of this journalists excerpts from the governments legal findings.

 

Bill Williams, who added the data we have in the World Mine Tailings Failures data base included a column”toxic elements in the deposit’ which gives us a start on distinguishing the toxicity and persistence of adverse effect from a given release.

 

There is a scale of “inherent risk”, inherent human and natural security risks by type of deposit  which Bill Williams also added as a descriptor for as many deposits  as he had  from his own database.

 

Many years ago NRCAN’s YT John Kwong classified degree of risk by deposit type.( see attached)  We will look into adding Dr. Kwomgs “inherent risk’ scale to the database.  Through our planned lat/lon  addition and the addition of USGS deposit id we should have 100% data on depsitt classification and be able to assign Dr. Kwongs inherent risk classifications to 100% of all failure records.

 

Beneficiation processes and “most common practices” for different minerals also have differing inherent risks for which we do not have and need to develop a coherent mathematically clear risk classficatons.

 

Lower grades across thee board create higher risks in many ways. 

 

Grade drives process for a given mineral.

 

The CIL process used at Kokoya is applicable only to higher grades of gold ( and much safer than the heap leach process which is still the only viable method for very low grade gold) produces a completely liquid tailings slurry which will contain cyanide residuals  in the same way that the floatation slurry contains the chemical additive for that beneficiation process.  The BAYER Process an ancient never improved on technology is still the most common fr for Alumina and also produces high risk very liquid tailings requiring much higher standards fr secure retention and more back up system to capture any releases.  Phosphates and fertilizers use a water blasted extraction process that produces a permamently wet tailings residue that is extremely toxic .  Common practce is that process.  CIL tailings wastes require a much higher standard of construction  for safe retention  and that includes not just the need for water dam like standards for containment walls but permanently secure leak proof loners. A complete failure after only two years indicates either a wrong spec on the llne or its improper installation. This facility employed a completely rock fill dam ( I  believe I previously shared the pre failure photo)

 

Th degree of harms a measurable reality.

 

The degree of rsk pre failre s a measurable reality.

 

We just aren’t properly measuring it yet in a fully transparent way.

 

Still need info on the dimensions of this dam and its intended useful life, factor safety etc.and obviously need a lot of information on thisl lner and on protocols for liners of CIL tailings wastes.

 

Posted in Avesoro Holding, CIL Tailings Failures, cyanide risk management, Front Page Africa Online, International Cyanide Code, Kokoya Mine, Robert Moran, Uncategorized | Leave a comment

RESPONSIBLE MINING INDEX 2018 A DISAPPOINTING REPORT CARD FOR THE WORLD’S TOP 30 MINERS

The Responsible Mining Foundation has just released its Responsible Mining Index 2018  after two years in development with extensive informed rounds of multi stakeholder comment. Rating the 30 largest mining companies worldwide responsible for 700 mining operations and undertaking a close examination of 127 mine sites in countries with significant income inequality, the results are sobering and disappointing for an industry that has long insisted on self-regulation.  Ultimately the index reflects a prevalent inadequacy of minerals resource governance in responsibly sourcing the minerals the world needs.  The purpose of the foundation and the index is not to berate but to encourage. It provides an authoritatively vetted map of what constitutes “responsible mining” and what standards can be applied to assessing a company’s practice with reference to those standards.  To the end of encouraging the index brings forward the unique company created initiatives which best illustrate policy harnessed to action.

These two aspects of the work are its greatest contributions to the pursuit of “Responsible Mining” as the shared global standard for all mining.

The foundation has just announced that the index s available in 6 languages Bahasa Indonesia, Chinese, French, Russian and Spanish as well as English.

The different language versions of the RMI 2018 website can be accessed using the following links:

简体中文:        www.responsibleminingindex.org/zh
English:           www.responsibleminingindex.org/en
Español:          www.responsibleminingindex.org/es
Français:         www.responsibleminingindex.org/fr
Indonesia:       www.responsibleminingindex.org/id
Русский:         www.responsibleminingindex.org/ru
The RMI 2018 summary report is downloadable at: www.responsibleminingindex.org/en/downloads.

 

 

Where other codes articulate a range of standards, the RMF code emphasizes the measurable evidence of implementation: proof of  commitment, effectiveness of realization of the standards in practice, and accountability through public reporting of progress.   They specifically note that many have formally adopted policies mirroring the words of key  standards as official policy, especially on human rights and the rights of indigenous peoples but that few actually follow through on the commitment or track and report publicly on progress towards achievement of  responsible mining goals.  RMF is not hesitant to state that. The very low average scores, compared to what was a maximum possible score tell the story  of how far the industry as a whole is from “responsible mining” as the norm.

The following charts and quotes present key findings.  Current “Best Practice” as used by RMF is the scoring for those most exemplary corporate programs for each index component. ( In the report the company name is displayed by user selection of any given bar.)

 

RMI1

RMI2

 “The vast majority of companies have made policy commitments on topics such as business ethics, human rights, occupational health and safety, and environmental impact management. Beyond this, few companies can demonstrate that they have systematically operationalised their commitments into effective actions and fewer still show they are tracking their performance on these issues. In the absence of evidence of such efforts, commitments by themselves might appear as meaningless gestures or simply tick-box exercises.”

 

“The widespread existence of commitments on human rights is at odds with the fact that violations of human rights (including forced evictions, land grabs and violent attacks on community members) are among the ten most common types of severe impacts identified in the RMI research”.

 

“At the mine-site level, some of the leading practices on performance tracking and reporting are the direct result of conditions set by an investor or a producing country government. By contrast, few companies show they go beyond compliance to proactively disclose public-interest information, and fewer still take the lead to address emerging concerns, such as the impacts of mining on children, where external interest has been slower to manifest.”

 

“Only a small proportion of mine sites show evidence of reporting on matters of direct interest to mining-affected communities, workers and other stakeholders. This includes information on how a site performs on local employment, local procurement, grievance, water use and biodiversity impacts. For one-third of the mine sites assessed, no evidence was found of performance reporting on any of these issues. In the absence of publicly reported data, it is more difficult for companies and local stakeholders to develop trust-based relationships or engage in constructive discourse on issues of shared interest.”

 

“A few companies illustrate the use of open data principles to ensure the reported information is provided in a way that enables users to readily understand it and use it for meaningful assessment and comparison. Adoption of leading practice would ensure that data are disaggregated, provide regular or real-time information, allow change to be seen, allow users to understand the context, and are locally accessible and machine readable. Disclosure of public-interest data in an effective manner can help companies foster more informed engagement with their stakeholders, including governments, investors and civil society.”

 

While the performance stats are dismal the Responsible Mining Foundation finds in the few outstanding initiatives and the few very high scores n some elements by some companies the affirmation that responsible Mining is possible now everywhere.

 

“While individual company results still show considerable scope for improvement, the RMI-assessed companies have collectively proven that responsible mining is a realistic goal – it can be done. The RMI 2018 results show that if one company were to attain all the highest scores achieved for every indicator, it would reach over 70% of the maximum achievable score. This implies that existing best practice, if systematically applied by all companies, could already go some way to meeting society expectations.”

 

Mine Site Analysis Shows Extent of Shortfall On Responsible Mining Practice

The 127 mine sites were selected to represent those in areas with the greatest income disparity, 3 or 4 chosen from each company.  The rating categories are specific to the mine specific analysis and not included in the overall company scores.” These mine-site indicators help to shine a spotlight on how companies tackle some of the most important issues for workers, local people, local environments, and local economies. These indicators also give an indication of how consistently companies apply their policies and practices throughout their operations.”

“ it appears that no single company has an effective systematic corporate-wide approach to mine-site level reporting as none of the 30 companies assessed show consistent reporting across all the indicators and all the mine sites assessed.”

“Three indicators stand out because of the widespread lack of evidence found on performance tracking. These relate to performance of community and workers’ grievance mechanisms and biodiversity management; the vast majority of mine sites show no evidence of tracking the effectiveness of their work on these issues . More broadly though, the results for all six indicators show many sites providing no relevant information. Indeed, for approximately one-third (35%) of the mine sites assessed there was no evidence of any performance reporting on any of the issues. In general, very few companies provide information disaggregated by mine site.”

Posted in Bowker Associates Science & Research In The Public Interest, Lindsay Newland Bowker, Mine Risk Management, Responsible Mining, Responsible Mining Foundation, Responsible Mining Index 2018, Uncategorized | Tagged | Leave a comment

CADIA TAILINGS FAILURE: THE BEST REGULATORY REGIME IN THE WORLD & RESPONSIBLE PRACTICE CANNOT GUARANTEE ZERO FAILURE

March 14, 2018 Stonington, Maine

contact:  Lindsay Newland Bowker , Compiler@WorldMineTailingsFailures.org

Lindsay Newland Bowkerm LNBowker@BowkerAssociates.org

Bowker Associates has not been able to piece together much of the history leading up to this failure nor much about the details of the two impoundments, the only tailings storage facilities for the Cadia Project which comprises 62% of Newcrest’s revenue.   In our tailings management focused work we often cite the exemplary national and provincial policies of Australia and in particular the regulatory framework of New South Wales (NSW).   While all that excellence didn’t prevent  quite a large slump in the south wall of the north impoundment, perhaps the forensics will show that NSW and national law and regulations for mining  did work to effectively minimize public consequence viz the immediate surrounding down slope community.

These are both impoundments of upstream construction. Australia  and ANCOLD have adamantly resisted any call for any form of prohibition on upstream construction or on adoption of all the Mt Polley panel recommendations as international standards.

A picture is worth a thousand words.  A big breach but  a nice neat slump of thick material.  It looks like perhaps a paste thickened deposition  and clearly no water cover.

18_03-Cadia-2-e1520841733486Aerial Photo Released By Newcrest

There was no runout or big slide so perhaps investigation will show that even without the south impoundment  the tailings would have made a nice neat slump with no run out, no liquefaction, no slide threatening or harming the downstream community.( NSW law and Newcrest business practices are insuring there is no risk of that and so far have detected no further movement in the wall)

So perhaps, hopefully, the forensics on this failure will ultimately bear out the wisdom that, as the Mt Polley panel urged, no large tailings facility should be conventional slurry and no large TSF should have a water cover during operation or have a wet closure.

Excellence in law and policy, we shall perhaps confirm, cannot achieve “zero failure” but it can perhaps consistently attain “zero public consequence”, zero  risk of harm to the surrounding community, zero public liability.

In our four tier severity rating system we have provisionally included this in the failures data base as a “3”..a minor failure meaning a runout less than 0.5k, a release of less than 100k, no deaths. It has a tentative public consequence score of “0” and that should be the aim of all practice and law.  Even if it turns out that the loss was preventable and forseeable, that will not change the severity designation nor the public consequence score.

There are questions that hopefully will be answered with full transparency through NSW’s exemplary investigation process as to whether this failure was preventable and the risk of breach discernible. How did Newcrest with everthing riding on the successful extension of mine life  from 2013 to 2030 come to still be relying on these two upstream impoundments with an original design life ending in 2013.  Was an increased rate of deposition a cause of failure.  ( Even paste needs time to settle and drain).  Newcrest apparently knew it had a tailings capacity problem and was looking at the feasibility of using the mined out Cadia Hill open pit for tailings deposition ( and is now looking to that as a way to get back into production as quickly as possible).

cadiafailedtsf

Newcrest Photo with long view of north and south impoundment and break (far left)

Whether it was preventable and foreseeable should matter in consequence to Newcrest and in the best of all possible worlds might have prevented the big 5% hit Newcrest has taken on its stock which will effect its entire portfolio until Cadia is back in production.

In Risk Management this would be an insurable loss ( business interruption)  and therefore a loss that could be covered through a reciprocal risk pool.  In a situation where a revenue interrupting loss occurs through no fault of, and beyond the control of the miner, there can and should be no interruption in revenue and if needed should provide  funding for repair or complete closure of the damaged facility as well as for all cleanup.  There wouldn’t need to be a hit to investors or the associated portfolio wide impacts Newcrest may be facing. ( We have no information  on what part of this may be insured .)

My advocacy, as a risk manager who has designed and managed a high risk owner controlled insurance program , OCIP, ( for NYC’s Water Tunnel construction) is that miners who actually are following best practice portfolio wide should have complete and low cost coverage for lost earnings and recovery when events that are actually accidents happen. ICMM could provide a useful leadership role or any group of miners ( eg those in the International Responsible Mining Assurance program) could form such an owner controlled insurance program.

In an OCIP the package of coverages are conventional with manuscript modifications suitable to the unique aspects of the exposure.  It can extend to all contractors and consultants as well lowering their overhead costs and thereby lowering overall costs of production .  It can include all portfolio projects which are also operated under the strict underwriting of the experience rated OCIP .

It could include as well the full costs of an unplanned closure necessitated by the failure or impairment.

Four years ago Bowker Asssociates took up this work in tailings secifically to assess whether the losses were insurable and therefore “poolable” or good candidates for an OCIP.  It became quickly apparent that the third party ( and most of the first party losses like business interruption did not meet the requirements of insureable risk”..they were all preventable, none of them acts of god or true “accidents”.

It also became apparent, because  insurers are not actively “partners” in big mine projects that there is no underwrting ..none of those monthly independent inspections and meetings with the insureds  involved.  An OCIP would build that  essential underwriting oversight  into all  covered projects.

If the OCIP ( whether as a reciprocal or through a global carrier) were large enough..covered enough of global minerals production then the participation in the OCIP would have other cost reducing , confidence inspiring benefits e.g. in issuing bonds for expansion on good terms and  meaning something in investment and investor analysis.

This is how financial assurance can and should work with respect to the liabilities, first and third party , from high consequence tailings failures.

Obviosuly the other side of the coin is that miners and project which don’t meet OCIP standrds shouldn’t be eligible for permits in the first place.  A project or a miner that can’t meet “insureable/bondable  standards” can’t possibly provide any meaningful assurance to the local community or to investors .

Financial assurance isn’t a meaningful or sensible expectation of miners and projects that are not economically sound.

The OCIP could give an extra discount for mines in jurisdictions like NSW with exemplary responsible permitting and oversight but it could still provide  coverage and sound practices whether or not the government regulatory structure is up to par.”  The OCIP could also influence governance by disallowing coverage in jurisdictions where provisions directly conflict with sound underwriting.

 

Back to Cadia, it is nor clear yet that this failure was unpreventable and unforseeable but investors and the local community can have confidence that ANCOLD, Australian Law and NSW law and regulations will arrive at a fully evaluated responsible conclusion and insure a safe ultimate disposition for these impoundmets and for Cadia’s long term tailings management.

That can’t be said of failures in most government jurisdictions.

****UPDATES & ADDITIONAL INFORMATION****

 

April 24,2018 Stonington, Maine

 

CADIA GAINS APPROVAL FOR PART OF OLD OPEN PIT FOR STORAGE

http://www.canberratimes.com.au/business/mining-and-resources/newcrest-confirms-tailings-solution-for-cadia-gold-operation-20180423-p4zb85.html

Cadia has gained regulatory approval to use 200 m of the mined out pit ad is awaiting approval for use of the other 300m . Approaching capacity at still operating north dam  which failed, Cadia had been exploring the in pit storage option with regulators but had not secured approval. This approval allows a restart  and investors have responded with an improvement in per share trading value.

In pit storage is a deposition method of last resort post failure or on reaching usable capacity at existing TSF’s.  It has not,until the world reached a global tailings capacity , been considered a desirable or permanent option for tailings management and presents many technical and safe containment hazards especially where he old pit has a flow through of groundwater and eventually with respect to overflow unless the pit is filled.  Tailings Info has a good basic summary of the pros and cons of in-pit storage

The technology and protocols for “best practice” are still emerging.  To our knowledge,the first major mine plan for which in-pit storage has been proposed at the outset is at the Langer-Heinrich Uranium facility , Paladin Energy Ltd (Paladin)  located in the Republic of Namibia in southern Africa where SRK’s 2015 plan addresses and proposes long term solutions.

We have not reviewed NSW regulatory standards and regs on in pit storage but in general their approval  deserves greater confidence than most jurisdictions.

OTHER POST FAILURE USES OF IN-PIT STORAGE

Imperial Metals resumed operations at Mt Polley with regulatory permission for temporary use of a mined out pit.  Those tailings are now being re watered  to facilitate pumping back to to the now buttressed failed dam. At the Fundao , still not approved for restart after the worst tailings failure in recorded history, Vale had contributed adjacent lands at its pit for deposition.  As we have written elsewhere at this website with supporting cited documentation, there was not adequate tailings capacity for the $3.2 billion expansion at Samarco .  Vale’s own consultants confirmed that as a significant red flag before Vale approved  the expansion.

These three failures, indeed most catastrophic failures, point to a global tailings capacity problem. where life of facility, height of facility, rate of deposition are exceeded and pushed by the hugely greater volume of tailings wastes due to falling grades and tighter margins.

POOR QUALITY OF ORES PUSHES TSF’S

Cadia East PC1 according to Macquarie hurdles standards is a reach in terms of economic viability as assembled by “The Angry Geololgist” (TAG), a reputable if somewhat colorful, tracker of the quality of drill reports.

 

hurdlechartswhichblockcavesmakethegrade

Investors who simply bounce back  when operations resume and an immediate tailings plan is approved  would be well advised to  undertake a more thorough  independent analysis  of economic viability of the present mine plan and technical viability of the proposed tailings .

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Posted in ANCOLD, Bowker Associates Science & Research In The Public Interest, Cadia Tailings Failure, dam failue envronmental costs, Environmental Risk Management, Financial Capacity Standrds Mines, financial risk and public liability, hurdle charts, ICCM Tailings Management Report, in pit tailings storage, Lindsay Newland Bowker, Measuring Magnitude of Consequence TSF Failures, Mine Risk Management, mineral economics, minerals waste management, Mining Financial Feasibility, Rate of Raise for Upstream Tailings Dams, Risk & Public Liability of Tailings Dams, Risk Avoidance & Loss Prevention Metallic Mining, Tailings Dam Failures, tailings dewatering, Tailings Legal Reform, Tailings Risk Management, TSF Design & Management Standrds, Upstream Tailings Dam Safety | Leave a comment

Time To House Clean For a Sustainable Viable World Minerals Supply

This appeared as a guest Column by Invitation at at Hallgarten March 7,2019.  I am honored to have what Bowker Associates has been reporting out through Bowker Chambers 2015, Bowker Chambers 2016 and Bowker Chambers 2017 understood by an analyst with as much distinction as Christopher Ecclestone.

Lindsay Newland Bowker

Stonington, Maine

March 7, 2017

 

 

After studying minerals waste management almost exclusively for 4 years from a perspective of governance, I see no easy fixes, no whole set of corrections. Yet I see no component (exchanges, resource assessment, permitting, planning, management) that is working as it should to provide the checks and balances needed to keep an efficient reliable supply of minerals to the world. The very nature of the minerals industry is a bad fit with all known models and traditions of governance and yet
the industry  is so deeply affected with a public interest beyond the worlds needs for minerals that sound responsible governance is essential. That can’t be entrusted to self -governance under negotiated terms.
It is often the case that by the time the entrenched practices and technologies essential to the economics of a given industry begin to cause real public harm necessitating correction by governance that what emerges as governance is not a result of systematic thinking and meaningful negotiation with the regulated industries. Law emerging in public anger and crisis often ends up only creating a
structure/framework for the ongoing polarities and conflicts of the debate rather than resolving or even understanding the fundamental problems. In many parts of the world this is playing out now in minerals governance in the form of reactive prohibitions.
Australia is the best model of “what could be” in minerals production governance. I am impressed with what I am beginning to understand about the supply side reforms China has undertaken. Both are a continuing process of systematic thinking, long term planning, active national mineral resource portfolio management aimed at an adequate within nation supply, an outflow of globally competitive mineral
product with an environment- and community-first standard.

Governance needs to start thinking about the set of mines it gives permits to as a portfolio that needs wise stewardship and management. It needs to work explicitly like a public private partnership because its output is required in all communities and an adequate, reliable supply matters.
There should be a solution but mining is so complex, so unique, so high risk and involves so much inherent uncertainty there are no exactly suitable models and traditions of governance that really fit. Utilities regulation and commercial goods transport are probably the closest. But even, if a model of governance could be put to paper and agreed to by all, where is the technical capacity to implement it?
Developing a mineralized deposit is far more complex than building a rail line or creating a distribution network for power supply. It requires specific, not generalized, expertise and field experience for every part. Even within the consultant autocracy the well of real talent is going dry. Old venerable company
names go on some pretty shoddy work these days. There isn’t enough talent to even do adequate self-governance so obviously it can’t be built into the system at the permitting level.

As you may have seen, Bowker Associates is advocating some version of “Buildings Codes & Buildings Departments” tailored to the unique qualities of mineral exaction and its waste management. That can’t be staffed or rely on the
consultant autocracy but whence cometh a cadre of professionals willing to be in governance? Though it aims only at “public safety”, only at the waste management part of minerals extraction, that may be enough to make a major part of the needed shift.
The investment and equity sector also needs its own reforms. Fitch gave a glowing endorsement to Samarcos $2.2Bn bond offering for its planned expansion in July of 2015, just 4 months before the worst minerals waste disaster in recorded history. BHP/Vale’s own retained Cause of Failure Expert, the elegant Dr. Norbert Morgenstern stated unequivocally that the failure event was already irrevocably
formed and advancing for a long time.

Day by day I see no match between what appears in enthusiastic
investment analysis and what I know of the qulaity and condition of the deposit and its infrastructure through authoritative assessment.

The entire industry is awash with memes & mayhem at the edge of the great minerals abyss.

Rio Tinto’s$38Bn aluminum acquisition error followed by the SEC charges of fraud alleging an attempt to hide a $3bn mistake in Mongolia while trying to raise capital on U.S exchanges is a sobering reality check that juniors are not the only poor performing high investor risk/high community risk part of the minerals
production industry. Even after OK Tedi, it had never occurred to BHP that a corporate wide tailings and waste policy made sense until they got a glimpse of the unexpected findings of their own cause of failure analysis for the Fundao.

It should be easy to fix.

The world actually does need minerals not just for “obnoxico” as Bucky Fuller
used to call much of what industry produces and consumerism adores but for essentials. Within the limits of existing proven technology there is an adequate supply in all minerals sectors at the global level.
Even economists like David Humphreys agree that there is no inherent conflict between environmental/community security and the minerals production the world needs.

Bowker Associates work has hopefully made it undeniably clear that the public consequence of minerals production grows astronomically as grades across the sector have reached the limits of presently known technology. The forensics on the failures we have mapped show that all was and is preventable not just unavoidable risk as the industry has tried to insist. There is no need for a local “sacrifice zone” to serve the larger good of the worlds needs for minerals.
Our most recent research (Dark Shadows) suggests that not more than 70% of all permitted mines are economically viable now and that many weren’t viable at permitting. Somewhere recently I saw an estimate by one of the big auditing firms that at least 50% of what is already permitted isn’t actually needed to meet world mineral needs. The other 50% aren’t just mistakes in judgment but a whole
industry within the industry where money is made until the game is up.

The consultant autocracy makes plenty on that not needed half of the minerals industry where individual sites are traded like commodities themselves even by top producers and the top 40.
As an analyst of large complex systems, I honestly have no idea how to bring about the big shift.

I have only this vague idea that it involves getting rid of the 50% of the minerals industry that is pure speculation and nothing to do with the worlds actual needs for minerals and that portfolio management at the national level, radical de novo, never done or tried supply side reforms in minerals resource
governance is the key to ongoing stability between supply and demand.

That’s not much of a start standing here at the edge of the minerals production abyss.

Posted in christopher ecclestone, mineral economics, mineral speculation, minerals waste management, supply side mineral reform, Uncategorized | Leave a comment

Path To Zero Failures “NET PLUS” Benefits In Mining Lies In Radical Reform of RESOURCE GOVERNANCE

The Following was addressed to Luke Fletcher, Executive Director of Jubilee Australia whose economics centered systematic approach to advocacy has always been exemplary and worthy of emulation.  Glad
to provide email contacts for those interested in following up with the several related recent in the news initiatives mentioned in the missive to Luke.
Lindsay Newland Bowker
Bowker Associates Science & Research In The Public Interest
LNBowkerAssociates.org
Dear Luke,
The quality, clarity, and precision of your analysis  sets a high bar for all of us.  As a body of work, the projects you highlight in this remarkable annual report are evolving universal  modern terms for resource management policy. As Jubilee Australia so wisely and beautifully models, it is in the redefinition of natural resources policy that the broad reforms we all seek in the name of “responsible mining” and “sustainable mining” will be achieved. That of course includes a complete revamping of attending  fiscal policy away from production volume only and toward a more  deeply informed policy on the distribution of costs and benefits.
Globally, as we map in our latest partnered work with David Chambers, present “production volume focused” policy  governing almost all legal frameworks and their attending fiscal policy has created a portfolio  in which less than 70% of all approved mines are actually capable of  production at all unless new higher grade discoveries are made or viable new technology emerges.  We have shown that mines that are not economically viable and were not viable at the time permits were issued (eg Mt Polley),are the main source  of the  world’s permanent catastrophic loss to culture, community, environment and impairment of other essential uses of land and water.
Since publishing a few weeks ago, I  saw and widely distributed  a research report  concluding that only 50% of the mines in the world’s‘pipeline of mines “in development” are actually needed to meet world needs for  metals, fertilizers and hydrocarbons.  The other 50% fostered and facilitated by  present prevailing legal frameworks is  only about speculation and profiteering and nothing to do with actual global needs.  The value that is added for speculators and profiteers is through the granting of the permit, the unfettered exchange of the permitted entity with its value adding  permit status intact and in the structure of law that allows the trade  not just of the extracted commodity but of the mine itself as “commodity”.
Our latest  findings suggest that every nation, every community can formulate a resource management policy on the terms you and others have begun to map out that in aggregate will supply all the metals, fertilizers and hydrocarbons the world needs within a “zero failures”, “zero harm” mandate. Perhaps you have seen Andrew Bauer’s ( Natural Resources Governance Institute) exemplary work on this kind of rethinking and revamping for the Northwest Territories in Canada.
Policy reforms, including the Mt Polley expert panel recommendations on tailings management and those parts of it endorsed in the recent UNEP report and the reformulation of Initiative For  Responsible Mining Assurance standards (now under leadership of two of the world biggest polluters)  that don’t address the need for a fundamental shift  on resource management policy  offer incomplete solutions that will not prepare us  for this new era of  low grade mining that is already well underway and for which there is no present  proven technical capacity.
You have gone a long way toward mapping the route and foundations needed for a the radical restructuring of law and policy we must accomplish to prepare for what lies ahead for the next two to three decades of human history and resource extraction.  You are right in your analysis of the deep flaws in the World Bank drafted Mining Law for Bougainville that sound resource management policy  begins with the granting of mineral rights  and the consideration of whether that use will benefit the local community  and fit harmoniously with that community’s overall vision of its own economic future.
 
Thank you, Luke. Thank You, Jubilee Australia!!!
 
Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager
Bowker Associates
Science & Research In The Public Interest
15 Cove Meadow Rd.
Stonington, Maine 04681
LNBowker@BowkerAssociates.org​
———- Forwarded message ———-
From: Jubilee Australia<inquiry@jubileeaustralia.org>
Date: Sun, Nov 19, 2017 at 8:00 PM
Subject: Jubilee Australia Helps Launch Australia Corporate Accountability Network …
To: Lindsay Newland Bowker <lindsaynewlandbowker@gmail.com>

Dear Lindsay,

Two weeks ago in Melbourne, Jubilee Australia was at RMIT in Melbourne for the launch of an exciting new project: the Australian Corporate Accountability Network.

Jubilee has played a crucial role in setting up this network and our Business and Human Rights Advisor Brynn O’Brien, who is on the network’s secretariat, addressed the launch event.

We have big hopes that this new project will be able to shine a brighter light and ultimately hold to account any Australian companies committing human rights violations and environmental damages either at home or overseas.

ACAN_Launch_RMIT_-_small.jpg

Caption: From left Michelle O’Neil (Textile, Clothing and Footwear Union of Australia) Catherine Coumans (Mining Watch Canada), Serena Lilywhite (Transparency International Australia) and Shelley Marshall (RMIT) discuss the potential for better corporate accountability in Australia.

 

Here is a snapshot of what we have already accomplished this year:

And here is just a few of the projects that we are working on now:

 

Stay tuned to hear more about all these issues in the near future. We can continue to carry on this important work with your generous continued support. All donations are tax deductible.

 

Luke Fletcher

Executive Director, Jubilee Australia

Jubilee Australia engages in research to seek reform of Australian government and corporate practices, and of the global financial system, to support community wellbeing and a just, sustainable, global economy.

Unsubscribe

Contact us:
PO Box 20885 World Square NSW 2002
Email: luke@jubileeaustralia.org
Website: www.jubileeaustralia.org

Lindsay Newland Bowker <lindsaynewlandbowker@gmail.com>

9:39 AM (4 minutes ago)

to david.winning
David,
Understand Rhiannon is still on maternity leave.  Her instructions are to forward to you.  Happy to assist on background, sources contacts of you are interested in this area and this subject.
Lindsay
Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager
Bowker Associates
Science & Research In The Public Interest
15 Cove Meadow Rd.
Stonington, Maine 04681
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Posted in Andrew Bauer, Bowker Associates Science & Research In The Public Interest, David M. Chambers, Jubilee Australia, Lindsay Newland Bowker, NET PLUS BENEFIT EXTRACTION POLICY, Resource Governance, Uncategorized, UNEP TAILINGS MANAGEMENT REFORMS | Leave a comment

Building Codes & Building Boards BEST MODEL For Regulatory Reform In Tailings Management

 

 

There are companies, consultants and regulators around the world that have a high level of commitment to tailings dam safety and have developed practices which have been instrumental in ensuring the safe operation of tailings dams by many companies in many countries. Their experience should be taken advantage of in striving to further improve industry’s performance through the development of a comprehensive Tailings Responsibility Code that will establish well defined standards of practice, provide detailed audit protocols and require third party audits, all of which should be made available to stakeholders in a transparent manner. Henry Brehaut Key Note Address Tailings& Mine Waste  2017 Banff Nov5-8 2017

 

Though there was too much industry control when the then existing UNEP Metals & Mining  division created the cyanide code to address public alarm at the frequency and consequence of cyanide heap leach failures and head off outright cyanide bans, I do believe that a mutually informed all stakeholders code in local/national law that does as the Mt Polley Panel advised  and UNEP has endorsed  to put  safety first is the way to go.  Global organizations need some uniformity in code and regulation to function.

 

The legal model that works best for that is  the universally familiar  “buildings code” model  under a separate enforcement and oversight structure.  That is what Tailings Management needs..not just for tailings dams but for all means of deposition. That model works through a legally established building code with checks and balances in its  governance and enforcement structure.

Through buildings codes and professionally staffed Buildings Departments urban areas have accommodated ever higher buildings and ever more creative engineering designs for high rises that provide for innovation and advancement and a means of always being in tune with innovation & advancement through code revisions and the statutorily provided  process for that.

 

The Buildings Codes/Building Department model  forces accountability to best practice, to the costs of  managing tailings to best practice and to a means of insuring that best practice keeps pace with innovation and new research . 

 

The Buildings Code/Buildings Department model also works for investors, insurers , sureties and lenders as it provides a built in “underwriting” process  where  competence and ongoing professional development of all inspectors and each key position is defined in law.

 

I recently heard from a research team looking at how to reorient taxation for mines to better capture revenue and fund capacity focused on the public liability center of mining..its waste management practices.

 

Together these two shifts in public policy would more or less cure the loss prevention dilemma built into almost all the legal code for mining world wide.

 

The big question, is where is the professional capacity to make this work. ?  Does it actually exist presently within top producing companies with major international tailings portfolios, let alone regionally resident in adequate numbers relative  to the size of existing and planned tailings facility portfolios?

 

Jack Cadwell has written that even among the top 40 there are  too few qualified tailings management engineers to cover a given company’s global portfolio of  tailings facilities and that many, like BHP as of Samarco, have non at all relying completely on consultants .  In the long dry time prior the supercycle  professional competence was stripped to bare bones everywhere.  As we lay out piece by piece in our new paper the industry globally  gave us all time highs in consequence by rushing to maximum production from this bare bones place.

 

I wonder in the agenda or in lunch discussions there at Tailings 2017  whether is any actual  realization of this massive gap in technical competence or any plans afoot on how to build it?  Is anyone talking about how to build  professional development and competence to enforce and oversee an international tailings code?

 

 

 

 

 

Posted in Bowker Associates Science & Research In The Public Interest, Henry Brehaut, Jack Caldwell, Lindsay Newland Bowker, Mt Polley Expert Panel Reccommendations, Tailings & Waste Management 2017, Tailings Legal Reform, Uncategorized | Leave a comment

UNITED NATIONS ENVIRONMENT PROGRAM TAILINGS MANAGEMENT REFORMS SHOULD BE PUBLICLY  ACCEPTED BY MAC & ICMM AND PRESENTED AT TAILINGS 2017

FOR IMMEDIATE RELEASE  Stonington Maine November 1, 2017

CONTACT: Lindsay Newland Bowker, LNBowker@BowkerAssociates.org +1 207 367 5145

TAGS: UNEP Tailings Management Report; Reform Of Legal Framework for Tailings Facilities; Tailings Conference 2017; 2nd Anniversary Samarco TSF Failure; Mt Polley TSF Failure Management & Closures; Mining Watch Canada; London Mining Network; Amnesty International;Tailings Risk Management

Last week  the United Nations Environmental Programme (UNEP) released its call for reforms in the legal framework for oversight of tailings facilities. The report was endorsed by an international coalition of NGO’s who have been active for many years providing competent and thorough documentation on local public consequence from many aspects of mining activities.  The endorsing coalition included Mining Watch Canada, The London Mining Network and Amnesty International.   The report comes after  two  years of non-governmental response to the full program of reform recommended by the Mt. Polley expert panel. Here at this forum are several posts chronicling in some detail the response avoidance initiatives  of the Mining Association of Canada ( MAC) the International Council on Mining & Metals ( ICMM) and even the British Columbia government itself who sought the recommendations when it commissioned the Mt Polley panel.

The catastrophic failures phenomenon is world wide as illustrated in the spectacular graphic superimposing  failures by severity on a map of the world. As as we document in our latest research in partnership with Dave Chambers, scale of impact  of catastrophic failures has reached all new magnitude and the highest frequency of occurrence ever.   No  government in the world has enacted any meaningful reforms either.

Bowker Associates  had no part in developing the UNEP report or writing its promotion  though our data base ( Bowker Chambers TSF Failures 1915-2017 was the source of reported data and charts.  We are very glad of, and wholly endorse this united global expression of refusal to accept the program of non reform held fast by MAC, ICMM and all nations but Australia who offer many excellent models all should look to.

This step of united global expression of the public interest has claimed global ownership of  the narrative on public interest consequence, including human rights and social consequence, especially to the lands and communities of indigenous peoples.  The coalition is at work continually in a living collaboration but this is the first formal public expression  Of widely shared views and advocacy.  And of course UNEP is a natural global umbrella for that united advocacy.

Neither the mining industry, its lobbies MAC and ICMM nor any government  with an active  resource policy in support of mining can debate or duck the four main UNEP calls for action by governments issuing permits: (1) call for an official public policy of loss prevention with a goal of zero failures ;( 2) the Mt Polley core mandate of safety above economics and cost as a foundation stone of all public policy; (3) the obligation of each government issuing permits to provide a complete available on demand public data base on all tailings facilities under their jurisdiction; (4) the obligation to provide checks and balances protective of the public interest through independent expert review of all aspects of facility design management oversight and closure especially  with a bearing on public liability and public consequence.
There is great and reasonable frustration in the public interest sector globally that ICMM, and MAC and governments like BC Ministry of Mines have taken a watered down chinese menu approach to the wisdom of the Mt Polley Panel recommendations .  The core recommendations cited above are based on the Mt Polley expert panel reccommendations. As Dave Chambers & I warn  in our industry peer reviewed new paper just published in Environments , the continued avoidance of a full commitment to all the Mt Polley recommendations as policy in all legal frameworks will just spawn a wider tide of reactive populist anti mining legislation as was just brought into existence by a state wide coalition of NGO’s here in Maine( LD820).
Mining Watch Canada, who have been the gold standard for impeccably good research  as the foundation for their advocacy, has already endorsed  the same reactive populist call as Maine for upfront security  in the amount of a worst case scenario  That is not a worthy advocacy but it reflects popular thinking and is what the mining industry will continue to invite  if it doesn’t heed  the call for every nation to reframe its law from scratch embracing the 4 foundation stones advocated by UNEP and the full menu of Mt Polley recommendations, not just for new projects but in application to all existing TSF’s and ATDS( Alternative Tailings Deposition, such as in pit or underground workings deposition, use of caves or natural underground openings, use of marine environments ( lakes, rivers, streams, bays and ocean)).
 The Mt Polley expert panel did not address human rights and social impacts reforms or the need for miner funded immediate mobilization for relief , assistance and compensation in the wake of catastrophic failure because they were working under a framework  that contractually focused their  scope.  UNEP is the first government entity to demand that all legal frameworks for mining  include creation of a global disaster relief fund, presumably miner funded and contributions mandated by law in all permits.
This is UNEP’s central mandate all over the world and they were on the ground and present post Samarco as a voice of truth against the manufactured narrative in the wake of the Samarco man made disaster in Brazil.  I had advocated here in Maine that companies on government divestment lists and on the World Banks “black list” be specifically disallowed as applicants or having any control or directive role in any aspect of mine operations.  Had I been involved in the preparation of this report I would have recommended that inclusion.
Bowker Associates endorses a more complete legal framework in all permitting regulations addressing human rights , including locally expressed standards  of community and environmental security and requiring a fair level of contribution via the local government to emergency response for all high hazard facilities. Spill response laws are not adequately conceived or framed to respond to catastrophic tailings facility failures.
Each of the main endorsing NGOS ( London Mining Network, Mining Watch Canada and Amnesty International) have done work of impeccable quality in documenting mine specific public interest consequences of mining practice and Bowker Associates fully embraces their consensus on these mandates of reform in all legal frameworks for mining.
I was very glad to see Mining.com’s brief but balanced coverage  of the UNEP report and it has been reported in several other mining  media as well including investment analysts websites.
It would move the conversation and the continuing informed mapping of the public interest if  MAC and ICMM immediately concede and endorse these five  main recommendations in advance of, and at , Tailings 2017, Alberta November 5-8.
Jack Caldwell has updated his planned presentation in recognition of the UNEP, including its global map of failures post Mt Polley and in recognition of our latest paper.
Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager
Bowker Associates
Science & Research In The Public Interest
15 Cove Meadow Rd.
Stonington, Maine 04681
LNBowker@BowkerAssociates.org

 

Posted in Analysis TSF Failures, BHP, Bowker Associates Science & Research In The Public Interest, Brazil Tailings Dam Failure Risk, Canadian Mine Risk & Loss Profile, Catatrophic Tailings Dam Failures, Causes Of Catastrophic Tailings Dam Failures, Center For Science in Citizen Participation, David M. Chambers, Environmental Risk Management, financial risk and public liability, Fundao Talings Dam, Germano Tailings Dam Failure, GO NO-GO Technical Framework, Jack Caldwell, MAC/CDA Tailings Guidelines, Measuring Magnitude of Consequence TSF Failures, Minas Gerais Mining Oversight, Mine Disaster Recovery, Mine Risk Management, mineral economics, Mining Watch Canada, Mt Polley TSF Failure, Mt. Polley, Public Liability & Financial Risk, Rate of Raise for Upstream Tailings Dams, Uncategorized, UNEP TAILINGS MANAGEMENT REFORMS | Leave a comment