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Part D: Environment - 38. Environment | 38.6 Environmental Accidents

General operational safety requirements, training, labour standards, and geographic limits on where mining (and other industrial activities) may be conducted can be included in a mining code, or be addressed in separate laws or regulations and then referenced in the mining code as a source of additional requirements. Further, measures can and should be developed that seek to address environmental accidents once they have occurred. This would include not only remediation activities (discussed further as part of Section 7 of this document), but also the conduct of root cause analyses to evaluate what went wrong so that steps can be taken to minimize the risk of a similar environmental accident happening again.

38.6. Example 1:

Article [_]

(1) The holder of a mining right shall:

(a) Conduct prospecting/reconnaissance, exploration, or mining/exploitation activities in a safe, skilful, efficient and workmanlike manner; and

(b) Conduct prospecting/reconnaissance, exploration, or mining/exploitation activities in an environmentally and socially responsible manner.

Article [_] Technical supervision of mining under a Mining Lease

(1) A mineral right shall not be granted by the [Regulating Authority] to any company unless the company has employed a person who possesses adequate professional qualification and experience in mining and the [Regulating Authority] is satisfied that the company shall, during the currency of the lease, have such qualified person in its employment.

(2) Where a mineral right has been granted, the lease shall remain in force during such time only as the lessee employs a person who possesses adequate mining experience and qualification in mining, to supervise personally the mining operations being undertaken by the company during the period of the lease.

(3) Where a person with adequate mining qualification and experience in mining is not available to supervise the mining operations being undertaken under a lease, the company shall cease operations until a suitably qualified person is available.

Article [_] Lands excluded from minerals exploration and exploitation

(1) No mining right granted under this [Act][Code][Law] shall authorize prospecting/reconnaissance, exploration or mining/exploitation of mineral resources on, or in, or the erection of beacons on or the occupation of any land:

(a) Within [X] meters of an oil pipeline license area; and

(b) Occupied by any town, village, market, burial ground or cemetery, ancestral, sacred or archaeological site, appropriated for a railway or situated within fifty meters of a railway, or which is the site of, or within fifty meters of, any Government or public building, reservoir, dam or connection with the mining operations conducted under its lease, temporary title or license granted under this [Act][Code][Law] involving loss of life or serious injury to a person or significant impacts to the public road.

(2) No reconnaissance/prospecting activity shall be carried out and no mining right shall be granted under this [Act][Code][Law] over any area that is designated as closed to mining operations.

Article [_] Report of accident

(1) The mining right holder shall, if an accident occurs in any mine or in environment, report the accident immediately, with full particulars of the accident;

(a)To the nearest police station; or

(b) To the office of the [State Regulating Authority] in which the accident occurred.

(2) The place where the accident occurred shall be left undisturbed, and no person shall interfere with the surface working or any part in which or on which the accident has occurred until the place or anything at the place, has been visited or examined by an [Inspector or quarry officer].

Article [_] Panel of inquiry

(1) If an accident occurs in a mine, the [Regulating Authority] shall set up an independent panel consisting of not less than [X] members to inquire into the cause of the accident.

(2) The panel of inquiry shall determine the cause of the accident including:

(a) Whether the holder or its agent is guilty of negligence or took all reasonable and proper precautions to prevent the accident;

(b) Whether any person was killed or injured as a result of the accident or whether any significant environmental impacts were caused by the accident; and

(c)How future accidents might be prevented.

(3) For the purposes of an inquiry under the provisions of this [Act][Code][Law], the panel appointed by the [Regulating Authority] to conduct the inquiry shall have the power to:

(a) Authorize any person, where necessary, to have access to the mining operation or any surface area and remove anything from the place where the accident occurred and take such other measures as may be necessary for the conduct of the inquiry;

(b) Summon witnesses, require witnesses to give evidence on oath or produce any report, book or other document for the purpose of any examination and payment of expenses of witnesses; and

(c) Do or direct to be done such other things as the panel may deem necessary in order to investigate the accident.

(4) The panel holding an inquiry under this [section] shall have the powers of a judge under the [relevant judicial review Act].

(5) A person summoned to attend or to produce any report, book or document under subsection (1) of this section who refuses or neglects to do so, or refuses to answer any question put to him by or with the concurrence of the panel holding the inquiry, commits an offence and is liable on conviction to a fine.

Article [_] Inquiry by court

(1) Where in the opinion of a panel conducting an inquiry, the accident was not due to any of the causes mentioned in that section he may recommend that the report be referred to a [Judicial Reviewer] who shall hold an inquiry into the cause of the accident.

(2)The [Judicial Reviewer] shall within fourteen days of the determination of the inquiry, send a copy of his findings to the [Regulating Authority] and, if so requested, a copy of the record of the proceedings.

Annotation

Drawn from Nigeria’s mining law (2007), this provision imposes general safety requirements upon mine operations, which, as discussed above, help to reduce the risk of environmental accidents. These types of requirements can be imposed on different types of mineral rights holders.

Provisions like those in paragraph (2) impose obligations on license holders to ensure that qualified persons are overseeing mine operations.

Because environmental accidents are unfortunately inevitable given the nature of the operations and human error, it is important to consider and evaluate the amount of risk assumed by governments and the communities in close proximity to the operations. The risk of harm to the environment and human health are reduced when operations are located away from sensitive locations (e.g. lands of cultural significance, population centres, and environmentally-sensitive areas). Therefore provisions that explicitly exclude mining operations from certain “closed” areas that, if involved in an accident, would experience significant impacts (i.e., oil pipelines, public buildings, reservoirs, etc.) may be warranted.

The remaining provisions pertain to what happens once an environmental accident occurs. As a general matter, accidents should first be reported to the relevant officials and then investigated. The nature of the accident, based on the potential environmental impact, generally dictates what type of reporting and investigations are conducted. The larger the accident, the more significant a role the government should play. For smaller accidents, the responsibility for investigating the root cause of an accident could rest with the mineral right holder as maintaining a large governmental role in investigating the cause of all accidents could be an administrative burden. Note, however, that small accidents, if not addressed, could lead to larger accidents in the future. Therefore, in cases where smaller accidents are investigated by the mineral right holder, the reports should still be filed with the regulating entity. It is important that these matters are also addressed, even if in a manner different than larger environmental accidents.

To the extent that the government is involved in investigating an accident, it is not necessary for that investigative body to have powers similar to that of judges. However, the investigative body should (1) be neutral and independent, and (2) have the authority to make recommendations either to the government or to the mineral right holder directly. These provisions should be used in conjunction with any established enforcement provisions.

Officials should ensure that the scope of accidents that are addressed include not only human health injuries, but also environmental impacts (e.g. soil and groundwater contamination).

38.6. Example 2:

Article [_]

(1) A mineral right holder shall:

(a) Backfill or otherwise make safe any excavation made during the course of the exploration operations; and

(b)Make safe any borehole in the manner directed.

(2) A mineral right holder shall:

(a) Develop the mining area, and carry on mining operations, with due diligence and in compliance with the program of mining operations and the environmental management plan; and

(b) Take all reasonable measures on or under the surface to mine the mineral to which the license relates.

(3) Application for a mineral right shall include:

(a) In respect of radioactive minerals, the application shall contain the following additional information:

(i) A program to educate persons living in the vicinity of the mine or processing facilities of the general nature and characteristics of anticipated effects on the environment, health and safety of persons;

(ii) Programs to assist authorities outside the mining area in planning and preparing to limit the adverse effects of an accidental release of radioactive substances; and

(iii) In relation to security, the proposed measures during storage and transportation of any radioactive mineral products and measures to alert the holder to acts of sabotage at the mine or processing facility.

(3) Subject to the other provisions of this section, a mineral right holder may suspend or curtail production for any of the following reasons:

(a) An unsafe working environment;

(b) Uncontrolled pollution of the area resulting from the mining operations.

(4) The [Regulating Authority] shall, where the [Minster] receives notice under subsection (3) or becomes aware of any suspension or curtailment of production, cause the matter to be investigated.

Annotation

Drawn from Zambia’s mining law (2008), this provision imposes general safety requirements for mine operations, which, as discussed above, helps reduce the risk of environmental accidents.

Zambia’s legislation provides an alternative approach for how governments can impose requirements on license holders to ensure safe operations to minimize the risk of environmental accidents. Whereas Nigeria’s legislation requires the employment of a person with sufficient technical expertise to oversee operations, Zambia’s legislation requires mineral right holders to reach out to nearby communities to ensure that they understand the risks of mining activities and to develop mechanisms to prepare for and to limit the adverse impacts of accidents.

Often mineral right holders must develop the mineral assets within a certain time period. This ensures that governments and landowners ultimately are paid any royalty payments that might be due to them. However, it is prudent to include provisions to allow mineral right holders to legally stop production in certain instances to minimize the risk of a significant environmental accident.