Empowering emerging environmental leaders to promote sustainable mining

Empowering emerging environmental leaders to promote sustainable mining, forestry and climate change practices and policies in Ghana Center for Public Interest Law (“CEPIL”) www. cepil. org. gh Environmental Law Alliance Worldwide (“ELAW”) www. elaw. org Accra, Ghana - August 3, 2010

Environmental Impact Assessment (“EIA”) Process in Ghana

Overview of Environmental Impact Assessment Process in Ghana Goals of Environmental Impact Assessment Identify and disclose environmental impacts of project prior to project being started. Inform permitting process of the project to minimize environmental impacts. Ensure modern, precautionary controls are incorporated into design of new mining projects and ensure self-assessment by companies. To develop sustainable environmental practices in industrial projects.

Overview of Environmental Impact Assessment Process in Ghana (continued) Legal Framework Constitution of Ghana Environmental Protection Agency (“EPA”) Act, 1994 (Act 490) Ghana Environmental Assessment Regulations 1999, LI 1652 Environmental Impact Assessment Procedures, June 1995 Mining and Environmental Guidelines, 1994 Applicability Projects likely to have “significant impacts on the environment” required to: ü Register with the Ghana EPA ü Obtain environmental permits prior to beginning construction and operations Environmental Assessment Regulations 1999 require EIA for: “mining and processing of minerals in areas where the mining lease covers a total area in excess of 10 hectares”

Steps in Ghanaian EIA Process 1. Registration of potential mining project with EPA 2. Screening of registration by EPA within 25 days 2. Scoping and Terms of Reference 3. Development of Environmental Impact Statement (“EIS”) 4. Provisional Environmental Permit

Terms of Reference Description of project. Analysis of need for project. Alternatives to project. Description of site of project, why site selected, any alternative sites considered. Identification of existing environmental conditions, including social, economic and other environmental concerns. Potential positive and negative impacts of project on environmental, social, economic, and cultural aspects. Potential impact on health of people. Mitigation measures and potential negative socio-economic, cultural and public health impacts on the environment. Plan for monitoring predictable environmental impact and proposed mitigation measures. Contingency plans to address unpredicted negative environmental impacts and proposed mitigation measures for these impacts. Consultation with public affected by project. Maps, plans, tables, graphs, etc. to assist in understanding project. Provisional environmental management plan. Proposals for payment of compensation for possible damage to land or property arising from project. Indication if any area outside Ghana likely to be affected by project activities.

Environmental Impact Statements (“EIS”) Clear assessment of proposed project on environment based on TRO’s (terms of reference). Possible direct and indirect impact of project on environment at pre-construction, operation, decommissioning, and post-decommissioning phases including: � � � � � Concentrations of pollutants in environment, including air, water and land from mobile or fixed sources Direct ecological changes from pollutant concentrations on communities, habitats, flora and fauna Alteration in ecology from project Ecological consequences of direct destruction of habitats Noise and vibration levels Odour Impacts from vehicle traffic Changes in social, cultural and economic patterns Possible health effects of project on people within and around project Reclamation plans

Process for Development of EIS Preparation of draft EIS by project proponent/mining company. Engage public information programme for impacted area. Provision of copies of draft EIS to EPA by mining company. Concerns of public recorded and addressed. Notice of draft EIS provided to public. Public hearing required if strong public concern and extensive impacts from project. Acceptability of draft EIS determined by EPA. Revisions made to draft EIS by mining company as required by EPA. Approval of EIS by EPA.

Limitations of Environmental Impact Assessment

COMPARISON OF ENVIRONMENTAL REVIEW PROCESS BETWEEN GHANA AND THE UNITED STATES Mary Marrow Attorney Minnesota Center for Environmental Advocacy mmarrow@mncenter. org

Comparison of Environmental Review Process between Ghana and the United States 1. Similarities and differences 2. Successes and Challenges 3. Best Practices of Environmental Review 4. Opportunities for Civil Society Intervention

Comparison of Environmental Review Process between Ghana and the United States Similarities: Multiple government agencies involved in regulating mining projects. Conflicts between agencies from different focus of agencies. Civil Society experience that public hearings and EIA process biased in favor of mining project. Civil Society not an equal partner in negotiations between government agencies and mining companies. Environmental Impact Assessment often does not accurately predict environmental impacts from project.

Comparison of Environmental Review Process between Ghana and the United States (con. ) Differences: Land impacted by mining projects – (Vacant/Populated Lands). Human rights impacts from mining operations in Ghana much more problematic than those in the United States. Public Participation. Transparency and public access to information. US EPA required to do its own independent analysis of project. May not rely on analysis of project proponent alone.

Successes and Challenges of Environmental Review in Ghana Success EPA and mining companies aware of key environmental issues and best practices, including: ü Need for public participation in project and environmental review process. ü Need for transparency and providing information to public. Challenge Best practices not implemented by government agencies and mining agencies. Conflict between what EPA and mining companies say happens and experience of communities in impacted by mining project.

Successes and Challenges (con. ) Success Involvement of civil society is leading to greater agency accountability and responsiveness to community and environmental concerns. Challenges Civil society not equal partner in environmental review process. Many documents still confidential between mining company and EPA. Public access to information is limited. Government agencies need to do more to protect rights of Ghanaians. Government agencies not effectively applying and enforcing existing environmental laws.

Successes and Challenges (con. ) Challenge Process for determining amount of compensation for land resources destroyed from mining project. Negotiations regarding compensation left to local governments, communities and individuals who are disadvantaged in terms of power and information. Government agencies take active role in negotiating terms of project and permitting project but “take a back seat” in determining how communities/individuals will be compensated. Challenge Government agencies have conflict of interest in dual roles played: Responsible for both permitting projects and supporting growth and development of mineral resources and regulating them.

Successes and Challenges (con. ) Challenge Technical expertise of government agencies limited. Need adequate resources for government agency to properly monitor mining projects. Government agencies do not have adequate personnel or training to monitor scope of environmental impacts. Challenge No standard for public participation. Current process for public participation is not representative of those most impacted by mining projects. ü Those with most to gain from mining project relied on to voice the concerns of communities (ie. chiefs and traditional leaders). ü No requirement that those who are most impacted from mining project are involved in process or have representation. (ie. women, children, small farmers, etc. ).

Environmental Review Best Practices – selected examples (based on U. S. model)

Environmental Review Best Practices: Public Participation 1. Financial assurance/economic bond information included in Environmental Impact Statement. 2. Public disclosure of financial assurance/economic bond terms and what must be completed prior to the return of the economic bond to the company. 3. Public notice and involvement prior to return of economic bond to mining company to assist EPA in determining if requirements for closure adequately completed, including opportunity for public to raise legal challenge if company has not adequately met terms of closure.

Environmental Review Best Practices: Public Participation (con. ) 4. Environmental assessment required for mineral exploration with public participation in environmental review process for exploratory activities. ü Allows public to have advanced notice of potential project, provide more time for public to organize, anticipate impacts and become engaged in process ü Exploration has environmental impacts that must be assessed and mitigated. 5. Minimum of 30 -day comment period for public, with liberal approval of requests for extension of time for public comment and participation in environmental review process for large mining projects. 6. Copies of draft and final EIS and supporting documents given free of

Environmental Review Best Practices: Public Participation (con. ) 7. Environmental documents made available electronically and posted on agency website. 8. Public participation for both environmental review and permitting processes. ü Environmental review – identifies impacts from project on environment, communities, etc. Should be used to inform the permitting process. ü Permitting should be a separate process with its own public process – comment, public hearing, etc. Provides public with more specific details of project and additional opportunity for public involvement.

Environmental Review Best Practices: Public Participation (con. ) 9. Public disclosure of documents after initial EIS, including: ü ü 10. Periodic review of economic bond/financial assurance. Environmental monitoring reports submitted by mining company to government Opportunity for public involvement in earlier stages of process – pre EIS. ü Determining if EIS should be required. ü Identifying or revising the terms of reference in scoping process.

Environmental Review Best Practices: Environmental Analysis 1. Government agency develops independent EIS – often hiring an independent 3 rd party contractor to conduct work, which is also verified by individual technical experts working within the EPA/government agency. 2. Cumulative Impacts analysis included in EIS. ü Cumulative impacts analysis includes a broader review of the impacts in a larger area and over broader time period. Especially important when considering the regional wide mining activity in the Western Region. 3. Analysis of alternatives to proposed mining project. ü ü Alternatives analysis should analyze at least 3 alternatives, including the proposed project, a no action alternative, and another viable alternative. EIS should identify the “preferred alternative” so public understands which course of action is preferred by the agency. Note: Ghana EIA is required by law to include alternatives analysis, but review of Ghanaian EIAs shows that EIS/EIA’s approved by Ghana EPA are legally deficient and do not include this analysis.

Opportunities for Civil Society Intervention and Advocacy

Opportunities for Civil Society Advocacy and Intervention Legal Intervention Identify strategic cases to ensure current laws and regulations enforced adequately by government agencies. Development of “Public Trust Doctrine” to ensure that actions of government agencies protect the public trust and human rights of Ghanaian citizens. Focus cases on improving status of civil society as equal partner with government agencies and mining companies. Challenge to confidentiality of documents and exclusion of public from process.

Opportunities for Civil Society Intervention (con. ) Advocacy with Government Agencies New EPA project to develop standard rates for financial compensation for individuals losing land crops as result of mining activity. ü ü ü EPA to hire contractor to establish standardized rates of compensation. Community involvement supposed to be part of this process. Advocacy by civil society groups essential to ensure rates accurately reflect true value of land, crops, and other resources impacted by mining projects. Environmental performance and public disclosure document rating environmental performance of mining companies. ü ü ü Scheduled to be released in August 2010, with annual updates beginning March 2011. Advocacy by civil society essential to ensure information is accurate and public’s experience reflected. May provide access to information which has not previously been publicly available (environmental monitoring reports of companies).

TECHNICALITIES OF TAILINGS, CYANIDE CONTAINMENT, AND EIA’S Patrick Freeze, Technical and Policy Analyst Intern Great Basin Resource Watch University of Nevada, Reno Environmental Science

A technical look at mining….

Mining and the Environment

Why we use cyanide (CN)

So, what are tailings made of? Small rock particles after the mineral ore has been extracted Cyanide (which volatizes fairly quickly in sunlight) Salts Water Suspended and dissolved solids (soil and salts) Whatever mineral ore was not picked up by carbon (CIL)

Advantages of Tailings Impoundment Economical methods of disposal (compared to backfilling) Manages storm and waste water flow, p. H (metals), TDS, and TSS Removes suspended particulate matter and solids Treatment of effluent from tailings Heavy metals will precipitate out as hydroxides Holding area for oxidizable material not separated as PAG (potential acid generating) rock Storage and stabilization of process recycle water Technical Report, Design and Evaluation of Tailings Dams, US EPA, August 1994

…and MOST IMPORTANTLY Permanent containment of contaminants, potentially acid generating waste, as well as unsettled and settled particulates (TDS/TSS)

Some disadvantages… Large area of surface disturbance Some difficulty in re-vegetation and reclamation, particularly with acid-generating tailings (as well as heap leach sites) Potential for surface and ground water contamination Inefficient chemical treatment due to environmental factors (precipitation, volatilization capacity, etc) Costly and difficult collection and treatment of seepage through impoundment structures Dispersion of dust and other fine particulate matter unless surface reclaimed

Some Methods of Tailings Disposal Subaqueous (under-water) disposal Backfill in underground mines Backfill in pitmine Backfilling is the most desirable method as it frees up land space but it is very costly (which is why it is rarely utilized).

Types of Tailing Disposal In-Pit Disposing tailing material in previously mined pit or current pit post-production Tailings placed above water table Usually in PAG (potentially acid generating) cell to avoid acid generation, lined with counteracting basic material

Valley design (most popular) Utilizes natural valley depression Single and Multiple Cross-Valley Impoundments Single and Multiple Side-Hill Valley Impoundments

Other designs include Ring-Dike and Specially Dug Pit

Water Retention Dams

Water Retention Embankments/Dams Retention dam embankments built in four successive lifts based on: The life of the mine Production Environmental factors (precipitation) Embankments can use natural soil, tailings, and waste rock in any combination. Local materials are most economical

Types of Embankments Upstream Construction Method (most common and

Downstream Construction Method

Centerline Construction Method

Best Management Practices Facility Monitoring § § § Water Control § § § Visual Peizometers (to monitor effluent flow through ground) Liner and drainage analysis Flow Precipitation Monitoring Regular and Major (unforeseen) Storm Events Ground/surface water contamination monitoring § § Infiltration Evaporation rates …and Accurate Modeling and Predictions (difficult)

…and very important Good soil compaction and design of tailings embankments and facility! Sufficient compaction of the soil during the construction of the embankment is key in minimizing infiltration of tailings effluent to surface and groundwater supplies.

Common failure mechanisms Overtopping (flood waters) Erosion (also from heavy rains) Sliding (sloughing of areas of tailings material) Liquefaction (movement of liquefied solid mass - most common) Mass density, soil composition, water table, seismic activity, and internal stress of tailings facility Saturation of embankment

Tailings Seepage Detected through visual analysis as well as such instruments as Peizometers Chemical analysis required Contaminants such as salts, metals, and cyanide could interact with groundwater as well as flowthrough areas, contaminating entire groundwater supplies

Seepage Control Methods Sufficient Liners (either synthetic or composed of impermeable clays) Slimes (moderately impermeable layers evenly distributed amongst tailings material. Used to slow down infiltration of tailings) Embankment Monitoring Pumpback Systems

Guidelines for Proper Tailings Impoundment Construction in Nevada Typically highly-dense synthetic liner Leak detection system System of drains beneath the reservoir Preferably downstream construction Enough free room to accommodate the "100 year" 24 -hour storm (including the added pressure on embankment) Liquefaction and slope stability analysis Independent permitting of tailings facility *State of Nevada, Division of Water Resources

Technical look at some EIA’s A general analysis (with comments much like those seen in US EIS’s and EA’s) of two Ghanaian EIA’s. A fuller analysis could be conducted….

Kibi Goldfields Limited, Osino-Pusupusu Alluvial Gold Project EIA Re-establishment of alluvial gold mine at Osino in Fanteakwa District of East Region A few of the general areas of improvement upon review…. Gold reserves should be in project description. Slightly difficult trying to locate. No clear outline of chemical process used to extract gold. A clearer contour map should be included. No alternatives proposed other than the proposed action. For the sake of impact mitigation, all alternatives and options should be included and considered. Fairly adequate field analysis Only “comments” included are two letters of consent from the Chief of Osino and the Chief of Saaman. Comments from any and all parties should be included for public disclosure. Socio-economic impacts outlined i. e. added financial strain on communities, schools, utilities, employment, etc. , but with no definite mitigation plan. “…will also contact and assist, where possible the District Assembly to provide more social amenities, such as places of convenience, schools, to which is the direct responsibility of the District Assembly. ” (page 48)

Tailings Analysis The predicted life of this mine is 9+ years and is located in one of the wetter areas of the region. There is no mention of any embankment management plan, even with a prediction of increased production. “Thus the design has in-built provisions to ensure non-stop and efficient tailings handling, and to prevent plant or dam failures” (page 46, 5. 7. 1) Although there is ‘mention’ of a figure or diagram of the tailings facility and dam, one could not be located. There is also no mention of cyanide in the tailings composition. What chemicals will actually be present or predicted? This disclosure statement and mitigation plan is unacceptable.

Newmont Ghana Gold Limited Ahafo Project (South) EIA A 15 year old gold project located in the Brong Ahafo Region What this particular EIA has and is missing: The alternatives listed lacks sufficient consideration of alternatives necessary to fulfill both purpose of an EIA as well as avoiding significant impacts Adequate maps of area and predicted gold reserves Sufficient analysis of environmental chemistry of mining area Lose and easily misconstrued language with no definite reason or explanation. Needs to be more concise and direct (too many “should’s”): “Monitoring of tailings moisture contents and densities, and survey of the tailings beach and supernatant pond locations should be conducted four times a year. ” (section 2. 18. 1) “The local environment should be protected from seepage that may escape the TSF (tailings storage facility) over time. ” (section 2. 18. 2) “Groundwater resources in the area are not suitable to supply adequate quantities of water for a major industrial project, however, there should be no major problems to find the requirements for drinkable water. ” (section 3. 2. 6. 1)

Tailings analysis Adequate layout of tailings handling management plan: “The TSF designed by Knight Piésold will comply with national (Ghana Minerals and Mining Law, 1986, Ghana's Mining Environmental Guidelines, Final Draft 1994) and State of Nevada (U. S. ) Administrative Code Chapter 445 A – Water Controls and Mining Facilities (Appendix II. 7)” (section 2. 17. 3) Flood control related to precipitation included with spillway design: “An emergency spillway will be constructed at the south embankment for each annual raise to control the discharge of any extreme storm events exceeding the design event. ” (2. 17. 2) Included adjustments to embankment correlating to production and life of mine as well seepage control, leachate collection systems, and liner monitoring. Impacts and analysis fully disclosed and is acceptable.

Some points to think about… Tailings impoundment construction is and should be a critical part of a DYNAMIC process. One tailings facility will not work for every mining site. Good intentions alone do not make an adequate mitigation plan. ‘Loose’ language tends to remove accountability. EIA’s are action-forcing disclosure documents to assess impacts.

DISCUSSION AND QUESTIONS