SF 2873

as introduced - 91st Legislature (2019 - 2020) Posted on 05/15/2019 08:35am

A bill for an act
relating to mining; establishing requirements for nonferrous tailings storage
facilities; authorizing rulemaking; proposing coding for new law in Minnesota
Statutes, chapter 93.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

[93.435] STORAGE FACILITIES FOR NONFERROUS TAILINGS.

Subdivision 1.

Definitions.

(a) The definitions in this subdivision apply to this section.

(b) "Commissioner" means the commissioner of natural resources.

(c) "Constructor" means the company or companies constructing the built components
of a tailings storage facility, including but not limited to embankment dams, diversion
structures for surface water, tailings distribution systems, reclaim water systems, and
monitoring instrumentation.

(d) "Engineer of record" means a qualified engineer who is the lead designer for a tailings
storage facility.

(e) "Expansion" means a change in the size, height, or configuration of or a contiguous
addition to an existing tailings storage facility that increases or may increase the storage
capacity of the impoundment above the permitted capacity.

(f) "Nonferrous metallic mineral" means a metallic mineral from which iron is not the
predominant metal extracted.

(g) "Operator" means an owner or lessee of mineral rights engaged in or preparing to
engage in mining operations for a nonferrous metallic mineral.

(h) "Qualified engineer" means a professional engineer who has a minimum of ten years
of direct experience with designing and constructing tailings storage facilities and has the
appropriate professional and educational credentials to effectively determine appropriate
parameters for the safe design, construction, operation, and closure of a tailings storage
facility.

(i) "Tailings storage facility" means a facility that temporarily or permanently stores
tailings, including the impoundment, embankment, tailings distribution works, reclaim water
works, monitoring devices, diversions for storm water, and other ancillary structures. Tailings
storage facility does not include a facility that:

(1) stores 50 acre-feet or less of free water or process solution;

(2) is wholly contained below surrounding grade with no man-made structures retaining
tailings, water, or process solution or underground mines that use tailings as backfill; or

(3) stores dry stack or filtered tailings.

Subd. 2.

Design requirements.

The commissioner must not approve an application
proposing a new tailings storage facility or an expansion of a tailings storage facility unless
it is designed:

(1) with safety as the primary consideration;

(2) to withstand catastrophic events; and

(3) following the Canadian Dam Association Dam Safety Guidelines.

Subd. 3.

Design document required.

An operator proposing to construct a new tailings
storage facility, an operator that is constructing a new tailings storage facility, or an operator
proposing to expand an existing tailings storage facility must submit a design document for
the tailings storage facility to the commissioner.

Subd. 4.

Independent review panel.

(a) An independent review panel must review the
design document required under subdivision 3. The operator must select three qualified
independent review engineers to serve on the panel and submit the names to the
commissioner. The commissioner may reject any proposed panelist. If the commissioner
rejects a proposed panelist, the operator must continue to select independent review engineers
as panelists until three panelists are approved by the commissioner.

(b) An independent review engineer may not be an employee of:

(1) an operator; or

(2) the design consultant, the engineer of record, or the constructor.

(c) The operator must contract with panel members, process invoices, and pay costs.

(d) A representative of the Department of Natural Resources and a representative of the
operator may participate on the panel, but they are not members of the panel, and their
participation is nonbinding on the review. The engineer of record is not a member of the
panel but must participate in the panel review. The operator must provide each panel member
with a copy of the design document and other information requested by the panel.

(e) The panel must review the design document, underlying analysis, and assumptions
for consistency with this section. The panel must assess the practicable application of current
technology in the proposed design.

(f) The panel must submit its review and any recommended modifications to the operator
and the commissioner. The report must be signed by each panel member.

(g) The engineer of record must modify the design document for the tailings storage
facility to address the recommendations of the panel and certify the completed design
document. The operator must submit the final design document to the commissioner.

(h) For an expansion of a tailings storage facility for which the original design document
was approved by the commissioner, the operator must make a reasonable effort to retain
the previous panel members. To replace a panel member, the process in paragraph (a) must
be followed.

Subd. 5.

Design document; requirements.

(a) The design document for a tailings
storage facility must contain:

(1) the certification of the engineer of record;

(2) a detailed description of the proposed facility and site characteristics;

(3) maps, sections, and associated design drawings;

(4) the raw data for models used in developing and evaluating the design;

(5) an evaluation indicating that the proposed tailings storage facility will be designed,
operated, monitored, and closed using the most-applicable, appropriate, and current
technologies and techniques practicable given site-specific conditions and concerns;

(6) a site geotechnical investigation;

(7) a demonstration through site investigation, laboratory testing, geotechnical analyses,
and other appropriate means that the tailings, embankment, and foundation materials
controlling slope stability are not susceptible to liquefaction or to significant strain
weakening;

(8) for a new tailings storage facility, design factors of safety against slope instability;

(9) for expansion of an existing tailings storage facility, either an analysis showing the
proposed expansion meets the minimum design requirements for a new tailings storage
facility under this section or an analysis showing the proposed expansion does not reduce
the tailings storage facility's original design factors of safety;

(10) a dam-breach analysis, a failure modes and effects analysis or other appropriate
detailed risk assessment, and an observational method plan addressing residual risk;

(11) a description of the chemical and physical properties of the materials and process
solutions to be stored in the tailings storage facility;

(12) when appropriate, depending on the chemical and physical properties of the materials,
a detailed description of how undesirable constituents contained in the impoundment will
be isolated from the environment;

(13) a description of the tailings storage facility capacity over time and the estimated
ultimate capacity;

(14) specifications for impoundment construction, including the specifications for the
foundation, abutments, embankment, means of containment, and the borrow materials;

(15) a construction management plan;

(16) a list of quantitative performance parameters for constructing, operating, and closing
the tailings storage facility;

(17) a list of the assumptions used during the analysis and design of the facility and a
description justifying the validity of each assumption;

(18) a description of how the design integrates into a closure plan that facilitates, to the
extent possible, dam decommissioning resulting in a maintenance-free closure;

(19) requirements for postclosure monitoring, inspection, and review, including the
frequency of inspections by the engineer of record, independent panel reviews, and retention
of an engineer of record;

(20) a description of proposed risk management measures for each facility life-cycle
stage, including construction, operation, and closure;

(21) a detailed water balance; evidence of calibration, if available; and the raw data used
to develop the water balance;

(22) a detailed description of how water, seepage, and process solutions are to be routed
or managed during construction, operation, and closure;

(23) a detailed description of controls for storm water, including diversions, storage,
and freeboard, and how extreme storm events will be managed;

(24) a design storm event for operation and closure conforming to engineering best
practices at the time the design document is prepared for the type of facility proposed;

(25) for a new tailings storage facility, design sufficient to store:

(i) the probable maximum flood event plus maximum operating water or solution volume
plus sufficient freeboard for wave action; or

(ii) a design criterion for a flood event less than the probable maximum flood but greater
than the 1-in-500-year, 24-hour event if the panel agrees that site-specific conditions justify
that design to the probable maximum flood standard is unnecessary;

(26) for an expansion of an existing tailings storage facility, either an analysis that the
proposed expansion meets the minimum requirements in this section to manage storm or
flood events or an analysis that the expansion does not reduce the tailings storage facility's
ability to store or otherwise manage the storm or flood events of the original facility design;

(27) quantitative estimates of the potential impacts of climate change over the facility's
design life;

(28) an operation manual as described in subdivision 6;

(29) any other information, drawings, maps, detailed descriptions, or data to assist the
panel in determining whether the new or expanded tailings storage facility protects human
health and the environment; and

(30) any other information required by rule adopted by the commissioner under this
section.

(b) The design document must be submitted before the draft permit to mine is issued.

Subd. 6.

Operation manual.

(a) The operator must prepare and submit to the
commissioner an operation, maintenance, and surveillance manual for a tailings storage
facility. The operator must develop the manual, which must:

(1) identify the roles and responsibilities of the agents of the operator of the tailings
storage facility, including identifying the senior organizational role with ultimate
responsibility for the tailings storage facility;

(2) identify necessary maintenance and frequency of maintenance to safely operate the
tailings storage facility;

(3) identify training needs and training plans for persons with responsibilities identified
in the manual;

(4) identify operational aspects employed to facilitate, to the extent possible, a
maintenance-free closure;

(5) identify all inspections and monitoring and the frequency of inspections and
monitoring to ensure that the tailings storage facility is performing as intended;

(6) identify monitoring and data collection necessary to maintain and calibrate the tailings
storage facility's water balance;

(7) describe how issues identified by routine inspection or monitoring are resolved and
how the progress toward resolution is tracked;

(8) list quantitative performance parameters for construction, operation, and closure;

(9) include an emergency preparedness and response plan based on the failure modes
and effects analysis or other appropriate risk assessment;

(10) identify specific trigger levels or events when the commissioner and the engineer
of record are immediately notified. When possible, trigger levels must be sufficiently
conservative to allow time for corrective actions to be implemented; and

(11) include any other information necessary to ensure that the tailings storage facility
is operated and maintained, is performing, and can be closed as intended.

(b) The engineer of record must certify that:

(1) the operation, maintenance, and surveillance manual for the tailings storage facility
is consistent with the facility's design;

(2) the inspections and monitoring described in the operation, maintenance, and
surveillance manual:

(i) are reasonably sufficient to ensure that the tailings storage facility will perform as
intended; and

(ii) will reasonably be expected to detect deviations if they occur; and

(3) the emergency preparedness and response plan describes reasonable measures that
can be taken to protect human health and the environment.

(c) The operator must annually review the operation, maintenance, and surveillance
manual to ensure that the manual reflects current conditions. The engineer of record must
certify any revision of the manual occurring during operation or at closure.

Subd. 7.

Periodic review and inspection.

(a) During mining, at least once every five
years after the commissioner approves a design document for a tailings storage facility
under this section or as required in a reclamation plan approved by the commissioner, the
operator must assemble a panel according to subdivision 4. A reasonable effort must be
made to retain previous panel members. The panel must:

(1) inspect the tailings storage facility;

(2) review the operation, maintenance, and surveillance manual and records collected
in association with the manual;

(3) interview people with responsibilities identified in the operation, maintenance, and
surveillance manual; and

(4) review annual engineer of record inspection reports, corrective action plans, records
associated with construction, and any other aspect, plan, record, document, design, model,
or report related to the tailings storage facility that the panel needs to review to ensure that
the tailings storage facility is constructed, operated, and maintained as designed; is
functioning; can be closed as intended; and meets acceptable engineering standards.

(b) The operator must provide documents and records necessary for the panel to complete
a periodic review.

(c) The panel must prepare a report detailing the scope of review and include any
recommendations resulting from the review. The panel must immediately notify the
commissioner and the operator if there is an imminent threat to human health or the
environment. The final report must be signed by each panel member and provided to the
commissioner and the operator. If the commissioner determines that a corrective action plan
is required to implement recommendations of the panel, the commissioner must notify the
operator in writing.

Subd. 8.

Corrective action plan; compliance.

(a) When notified by the commissioner
under subdivision 7, paragraph (c), the operator must prepare a corrective action plan and
schedule to implement the recommendations included in the panel's report. The operator
must submit the corrective action plan and schedule to the panel within 60 days after
receiving the panel's report.

(b) The panel must review the corrective action plan and schedule to determine whether
the corrective action plan and schedule proposed by the operator will effectively implement
the recommendations included in the panel's report.

(c) Within 30 days after receiving approval from the panel, the operator must submit to
the commissioner the approved corrective action plan with an implementation schedule.

(d) Failure to implement the approved corrective action plan according to the
implementation schedule is subject to section 93.51.

Subd. 9.

Annual inspections; compliance.

(a) The engineer of record must annually
inspect a tailings storage facility during operation or as required during closure.

(b) The engineer of record must prepare a report describing the scope of the inspection
and actions recommended to ensure the tailings storage facility is properly operated and
maintained. The engineer of record must submit the report to the operator and the
commissioner and immediately notify the commissioner and the operator if the tailings
impoundment presents an imminent threat or the potential for an imminent threat to human
health or the environment.

(c) If the report contains recommendations, the operator must prepare a corrective action
plan implementing the recommendations of the engineer of record and an implementation
schedule. The operator must submit the corrective action plan and schedule to the engineer
of record. The corrective actions proposed by the operator must reasonably be expected to
effectively address the recommendations in the inspection report. The engineer of record
must verify the proposed corrective actions. The operator must submit the corrective action
plan verified by the engineer of record and the implementation schedule to the commissioner
within 120 days after the inspection date. The operator must implement the verified corrective
action plan according to the implementation schedule.

(d) The commissioner must conduct inspections, review records, and take other actions
necessary to determine whether the tailings storage facility is being operated consistent with
the approved design document and the operation, maintenance, and surveillance manual
for the tailings storage facility.

(e) Failure to implement the verified corrective action plan and the implementation
schedule or material deviations from the approved design document or the operation,
maintenance, and surveillance manual for the tailings storage facility are subject to section
93.51.

Subd. 10.

Rules.

The commissioner may adopt rules necessary to implement this section.

Subd. 11.

Application.

This section applies to applications for permits to mine and
applications to amend a permit to mine submitted on or after the day following final
enactment.