The Management of Extractive Waste (Scotland) Regulations Draft Guidance on Category A Waste Facilities Update 03 June 2010

Transcription

1 The Management of Extractive Waste (Scotland) Regulations 2010 Draft Guidance on Category A Waste Facilities Update 03 June 2010 Executive Summary 1. The European Commission (EC) Mining Waste Directive aims to prevent or reduce danger to human health or environment from mineral (extractive) waste at mines and quarries. The Directive created the Category A classification for waste operations with the highest risk - few sites in Scotland are anticipated to contain facilities which qualify. New Scottish Planning Regulations transpose the Directive into national law and the EC have subsequently issued further criteria which must be referred to this includes a decision refining how the three grounds (risk of major accident, hazardous waste or dangerous substances) for Category A facilities are assessed. 2. Future Planning applications involving extractive waste will require a Waste Management Plan (WMP) but Category A facilities will require additional details relating to accident prevention, remedial measures and emergency planning. Some of the other MWD requirements are not met by Planning permission but are covered in the UK (a) by CAR licensing and (b) the Quarries Regulations 1999 or Mines and Quarries (Tips) Act Category A facilities will need formal confirmation (or permitting) of these other aspects prior to commencement. A financial guarantee is also required from the operator before commencement and an external emergency plan must be drawn up by the Emergency Planning Authority. 3. Various parts of the Regulations have only limited application to the extractive waste types commonly encountered in Scotland but Category A facilities invoke more or less every requirement. The Regulations do not however replace or affect the Planning Authority s discretion and decision making as regards the acceptability of land use or the consideration of environmental impacts in a planning decision. The regulation of surface and groundwater by SEPA or health and safety by HSE are similarly unaffected. 4. Guidance on compliance with the Regulations for non Category A facilities is contained in separate note.. Both guidance notes includes a questionnaire (Annex F here) aimed at sifting out facilities which are not Category A based initially on operator certification. Where a facility appears to be Category A or confirmation of certain aspects cannot be given, more detailed assessment will be required -particularly with regard to risk of major accident. This note provides guidance on categorisation and dealing with category facilities.. 1 and The Mines and Quarries (Tips) Regulations

2 CHAPTER 1 INTRODUCTION 1. The EC s work on mining waste stems from serious accidents at mine tailings ponds, including two in Romania and Spain that caused considerable environmental damage. Both involved hazardous elements (cyanide and arsenic respectively) being transported considerable distances via water and sludge. 1 In response, European Directive 2006/21/EC (The Mining Waste Directive or MWD) set provisions for Member States to implement to control and minimise the effects of Mining Waste on human health and the environment. The Scottish Government has transposed the Directive through The Management of Extractive Waste (Scotland) Regulations 2010 (SSI 2010 No. 60) 2 placing the permitting regime within the planning system. 2. There are already substantial controls on mining waste in Scotland but safety and environmental aspects will also now be confirmed within a Waste Management Plan (WMP).Objectives for WMPs are listed at Annex C of the Regulations. The detail required in final plan preparation will vary according to the nature and risk of the each situation; having regard to the nature of the materials and the possible risks from deposition. The Directive and in turn the Regulations effectively create different categories for deposition areas each with different requirements. While operators only need to prepare one WMP for each mine or quarry they must provide appropriate details on each waste area or waste facility within the site. Individual checklists have been prepared showing the requirements for each category of facility found on site. The list for Category A facilities is found at Annex D of this note. 3. The Regulations deal only with extractive waste and in doing so exclude it from all other waste regulation. The definition of extractive waste and the general application of the Regulations are set out in more detail in the principal guidance note. This includes particular comment on how certain extractive materials needed for other uses on site may or may not constitute waste. Initial definition of Category A facilities 4. Category A is the highest categorisation of facility under the MWD and includes only those with particular risks or attributes. Assessment and permitting is significantly more onerous (in Scotland permitting may be read as planning approval and where necessary including confirmation of compliance under other consent regimes particularly CAR). The criteria contained in Regulation 2 (definitions) states that Extractive waste deposition may be a Category A facility on any one of three grounds: risk of major accident, hazardous waste or dangerous substances. The categorisation does not apply to the whole site but to the individual area marked for deposition of extractive waste. 1 Scottish Government (2008) Mining Waste Directive Consultation Paper 2 2

3 Extract from Regulation 2 (Interpretation) Category A waste facility means a waste facility that does not fall within the scope of Directive 96/82/EC 1 (a) where a failure or incorrect operation, e.g. the collapse of a heap or the bursting of a dam, could give rise to a major accident, on the basis of a risk assessment taking into account factors such as the present or future size, the location and the environmental impact of the waste facility; (b) which contains waste classified as hazardous under Directive 91/689/EEC above a certain threshold; or (c) which contains substances or preparations classified as dangerous under Directive 67/548/EEC (2) or Directive 1999/45/EC (3) above a certain threshold; 5. A waste facility which meets any one of the three criteria will be a Category A facility. This requires attention to the thresholds on hazardous waste and dangerous substances referred to in (b) and (c); these are expanded in a further EC decision of 2009 and described later in this document. The EC Decision also expanded qualification on major accidents. This is probably the most detailed aspect to consider and the one most likely to be encountered in Scottish mining and quarrying operations. The definition of major accident is based on the prospect of serious danger to human beings or the environment. 6. Qualification as Category A cannot be based solely on risks to workers at the extractive site; the MWD assumes they are covered by health and safety at work legislation. This is the case in the UK: tips and lagoons are required by law to be designed and operated to be secure and to avoid risk to human beings. Indeed the UK legislation offers the same protection both to workers and to people in the vicinity of a working site. The Quarries Regulations 1999 make the operator responsible for designing, operating and maintaining tips and lagoons so as not to endanger human beings within or without the site as far as practicable. The Mines and Quarries (Tips) Act 1969 covers underground mines and requires tips and lagoons at the surface (above certain criteria) to be kept secure. Both are backed but statutory systems involving inspection, identification of hazards, expert geotechnical assessment including consideration of consequences of failure and notification of the HSE. 7. This effect of the existing UK legislation is that few facilities should qualify as Category A- on grounds of risk of major accident with serious danger to human beings. It does not rule out structural failure or incorrect 1 i.e. those sites already classified as potential major accident risks under the 1996 directive(comah) 3

4 operation but in most cases operators will be able to confirm through previous work that human beings would not be affected. Where this is not the case or specific information to the contrary becomes apparent (e.g. people suspected of being located in a potential danger zone) some further work or risk assessment will be required. 8. Neither the Quarries Regulations 1999 nor the Mines and Quarries (Tips) Act 1969 are concerned with danger to the environment. So far as any danger from stability is concerned the precautions applied through these regulations will however afford significant risk reduction (at source) to environmental features. Some consideration of sensitivity and potential impact may also have been given through EIA. However the environmental consequences of an accident cannot be assumed to have been considered in the same way as human beings and categorisation on this count will need to be distinctly addressed. 9. The EC have set minimum criteria for serious danger to the environment. Given the limitations (due to risk reduction at source through design) on the type of failure which might occur and the typically inert nature of extractive waste it is expected that the accidents (which might be assumed) at facilities in Scotland would not usually exceed the minimum criteria. Operators are asked to state their opinion in this regard and provide initial reasoning. Where waste is inert and the at risk zone is not high sensitivity it may be reasonable to conclude at that stage that the criteria would not be exceeded with no further work merited. In other cases some risk assessment work will be necessary on a source pathway-receptor basis and where specific information to the contrary is apparent, further assessment will be required. 10. In addition to structural failure, major accident includes incorrect operation of the facility.this might include incorrect management of water born pollutants such as uncontrolled acid rock drainage from overburden storage or replacement This aspect will normally however be covered by compliance with the CAR regime. 11 The MWD aims that new tips and lagoons should be designed in a way which prevents or minimises the risk of major accident. This should mean that where a reasonably practicable alternative (location dimension, configuration etc) exists, new sites should be designed to rule out Category A qualification in the first place. There may however be circumstances where this is not possible; such as where certain minerals or treatment substances are involved, where practicable alternatives are constrained or where an especially sensitive environment means that an accident would amount to serious danger regardless of design. 12. It should be borne in mind that the processes and criteria described for categorisation are purely for that purpose. A risk assessment for categorisation, whether simple or detailed, does not entail anything akin to environmental assessment and is not intended to be a basis for judgement of likely effects or acceptability. It is merely using a relatively basic threshold for 4

5 deciding subsequent regulatory treatment under the Extractive Waste Regulations. 13. It is true to say that if a proposal qualifies as Category A on serious danger to the environment there must be some potential for an accident and one where the effects on the environment (a) could not be easily cleaned up and (b) would be long lasting. This could be taken as a marker for specific ecological or other assessment of the proposal and threatened environment. However because inter alia the Mining Waste categorisation process ignores the probability of a structural failure or incorrect operation occurring it offers only one element of the assessment which would be needed under EIA. Consideration of specific environmental effects, threats and mitigation of new proposals will therefore remain principally within EIA and the wider planning decision. Assessment can be undertaken using EIA methodology exactly as at present considering both the nature and scale of potential impacts, risks (including probability) and mitigation including preventative engineering design or procedure. Responsibility for Categorisation 1 of Category A facilities 14. In Scotland the Planning Authority has responsibility for final categorisation of a facility. This requirement is transposed from the MWD in Regulation 13 (4) which stipulates that the Planning Authority shall not grant planning permission unless inter alia it is satisfied that the waste management plan is appropriate to the category into which it considers the area or facility falls. Regulation 13 (4) (a) provides that where Planning Permission is to be given, the Authority s decision notice must state the categorisation. 15. There is however an initial onus on the operator insofar as categorisation clearly relies on the information submitted in the first instance. Regulation 11 (1) (d) requires that the WMP should identify which of the Categories cited the operator considers that the area or facility falls. The table at Annex F provides a categorisation process and for the most part relies on the operator s simple declaration. However where the operator cannot give the confirmation requested or the criteria appear to be exceeded a specific evaluation will be required in the context of a source pathway receptor chain, including identification of possible accident hazards. 16. An operator may wish to show that the facility is not Category A as it will of course result in less exacting requirements. However even where the operator considers that the criteria would be exceeded and that the facility is felt very obviously Category A it will be necessary to provide reasoning in the context of the criteria. This exercise should be proportionate and where the physical extent of the impact is clear and elements of the source-pathwayreceptor chain are obviously in place the assessment will be quite simple In other cases a fuller evaluation will be required to address the criteria. This 1 The legislation and EC decisions use the terms classification and categorisation interchangeably. In Scottish guidance classification is used to refer to the nature of the waste and categorisation to the area or facility in which it is placed. 5

6 information will allow the planning authority to reasonably consider whether it agrees with the categorisation and discharge its obligation under Regulation 13 (with a record of its decision making process. Assessment and expertise required for categorisation. 17. Hazardous waste and dangerous substances have definitive lines of identification uniformly established by the EC and familiar to SEPA. Very few extractive waste facilities in Scotland are expected to involve hazardous waste or dangerous substances and in most cases this can be simply and straightforwardly confirmed by the operator. SEPA can confirm the operator s material classification as part of the formal consultation process or through preliminary consultation. Where any hazardous waste does exist but is contended to lie below the threshold the operator will supply a specialist report which would also be subject to consultation with SEPA. 18. The review of risk of major accident will involve wider aspects, particularly geotechnical reports and where appropriate backfill risks assessments. For those new sites where this is likely to be an issue, work on stability assessment might be correlated with relevant EIA work such as ecology during design stage to expressly address the Category A categorisation criteria. This can subsequently be referred to in discussions with the Authority on categorisation, the questionnaire and the final WMP. SEPA, HSE, and SNH will be able to raise issues or to advise the Planning Authority on the operator s conclusions and any queries or challenges concerning serious danger to human beings or the environment. 19. For existing sites the onus will be on the operator to certify the position via the questionnaire with specific evaluation where merited. In respect of the risk to human beings,the operator s legal obligation on safety is substantial and can be taken at face value by planning authorities unless human beings clearly appear to be present in an at risk zone for prolonged periods. At existing sites where there are no facilities ultimately categorised with noninert waste or Category A facilities the HSE are not a statutory consultee on WMP approvals. They may still be consulted on any specific concerns. SEPA are statutory consultees on all WMP approvals for existing sites. Where further information gives rise to doubt on the operator s conclusion (at Question 7 Annex F) regarding serious danger to the environment, planning authorities should seek advice of SEPA, SNH or request more detailed assessment from the operator. 6

7 CHAPTER 2 RISK OF MAJOR ACCIDENT 1. Risk of major accident is the first option for qualification as Category A. It is defined in Regulation 2. Extract from Regulation 2 major accident means an occurrence on-site in the course of an operation involving the management of extractive waste in any establishment covered by these Regulations, leading to a serious danger to either human health or the environment or both, whether immediately or over time, on-site or off-site. 2. Decision 2009/337/EC 1 was drafted to set common assessment of Category A waste facilities. It requires assessment of the consequences from two defined types of failure: loss of structural integrity and incorrect operation. Decision 2009/337/EC Article 1 A waste facility shall be classified under Category A in accordance with the first indent of Annex III of Directive 2006/21/EC if the predicted consequences in the short or the long term of a failure due to loss of structural integrity, or due to incorrect operation of a waste facility could lead to: (a) non-negligible potential for loss of life; (b) serious danger to human health; (c) serious danger to the environment. 3. Structural integrity is defined in Article 2. Decision 2009/337/EC Article 2 1. For the purpose of this Decision, structural integrity of a waste facility shall mean its ability to contain the waste within the boundaries of the facility in the manner for which it was designed. 2. The loss of structural integrity shall cover all possible failure mechanisms relevant to the structures of the waste facility concerned. 3. An evaluation of the consequences of the loss of structural integrity shall comprise the immediate impact of any material transported from the facility as a consequence of the failure and the resulting short and long term effects. 4. Incorrect operation is described in Article 3; it includes the possibility of malfunction of environmental protection measures or flawed design. 1 COMMISSION DECISION 2009/337/EC of 20 April 2009 on the definition of the criteria for the classification of waste facilities in accordance with Annex III of Directive 2006/21/EC of the European Parliament and of the Council concerning the management of waste from extractive industries. 7

8 Decision 2009/337/EC Article 3 1. For the purpose of this Decision, incorrect operation of the waste facility shall mean any operation which may give rise to a major accident, including the malfunction of environmental protection measures and faulty or insufficient design. 2. An assessment of the release of contaminants resulting from incorrect operation shall comprise the effects of short- term pulses as well as of the long-term release of contaminants. That assessment shall cover the operational period of the facility and as well as the long-term period following closure. It shall include an evaluation of the potential hazards constituted by facilities containing reactive waste, regardless of the classification of the waste as hazardous or non-hazardous under Council Directive 91/689/EEC (1). 5. Having assessed the types of failure the operator needs to consider the receptors, how they may be reached and whether the consequences would lead to loss of life or amount to serious danger to human health or environment. The risk assessment on the transport of materials or contaminants needs to be carried out on a source-pathway receptor basis with all three elements being present. Human beings to be considered should not include mine workers who are covered by heath and safety legislation. Passers by or anyone else not present in the danger zone on a long term basis are also excluded in this decision although, as described above, existing UK legislation already goes further than this in including anyone in the vicinity of the site. 6. In respect of the environment three criteria are given where consequences would not amount to serious danger. It is understood that before a danger can be deemed not to be serious all three must apply i.e., the contaminant would decrease quickly in intensity, it could be easily cleaned up and there would no long lasting damage. This approach could however mean that first criteria could be problematic if taken too literally, e.g. an otherwise low significance event such as a minor spillage of inert material which could be cleaned up easily would not lead to permanent damage, but it might not decrease in intensity of contamination over time. Reasonableness needs to be applied and criterion (a) not relied on where it leads to a perverse conclusion. Decision 2009/337/EC Article 4 1. Member States shall assess the consequences of a failure due to loss of structural integrity or incorrect operation of a waste facility in accordance with paragraphs 2, 3 and The potential for loss of life or danger to human health shall be considered to be negligible or not serious if people other than workers operating the facility that might be affected are not expected to be present permanently or for prolonged periods in the potentially affected area. Injuries leading to 8

9 disability or prolonged states of ill-health shall count as serious dangers to human health. 3. The potential danger for the environment shall be considered to be not serious if: (a) the intensity of the potential contaminant source strength is decreasing significantly within a short time; (b) the failure does not lead to any permanent or long-lasting environmental damage; (c) the affected environment can be restored through minor clean-up and restoration efforts. 4. In establishing the potential for loss of life or danger to human health or to the environment, the specific evaluations of the extent of the potential impacts shall be considered in the context of the source-pathway-receptor chain. Where there is no pathway between the source and the receptor, the facility concerned shall not be classified as Category A on the basis of failure due to loss of structural integrity or incorrect operation. 7. The issue of acid rock drainage (ARD) such as that from opencast coal overburden storage or replacement would be considered against Articles 3 and 4. In Scotland where a backfill risk assessment has been undertaken it is presumed that where SEPA is satisfied with the precautions to be taken and conclusions reached there is no risk of serious danger to the environment in this respect. i.e. it is presumed that with cognisance of the source risk, if an accident did occur as a result insufficient design, incorrect operation or failure of some of the environmental precautions the outcome would (a)decrease significantly over time, (b) could be cleaned up easily and (c) would not cause long lasting damage to the environment. 8. Article 5 refers to the loss of structural integrity within tailings dams. It deems that human lives will certainly be threatened where water or slurry which escapes exceeds a height of 0.7 metres or a velocity of (0.5m/s) when it reaches receptors. Impacts not meeting these criteria will require to be assessed with consideration of source, potential paths, behaviour and reach as detailed in 2(a) to 2(h). Decision 2009/337/EC Article 5 1. In the case of loss of structural integrity for tailings dams, human lives shall be deemed to be threatened where water or slurry levels are at least 0.7 m above ground or where water or slurry velocities exceed 0.5 m/s. 2. The assessment of the potential for loss of life and danger to human health shall comprise at least the following factors: (a) the size and properties of the facility including its design; 9

10 (b) the quantity and quality including physical and chemical properties of the waste in the facility; (c) the topography of the facility site, including damping features; (d) the travel time of a potential flood-wave to areas where people are present; (e) the propagation velocity of the flood-wave; (f) the predicted water or slurry level; (g) the rising rate of water or slurry levels; (h) any relevant, site-specific factors that may influence the potential for lossof- life or for danger to human health. 9. Article 6 sets out criteria for assessment of serious danger from heap slides. There is no height or speed comparable to the figures for slurry from tailings ponds; if anyone is staying within range of the moving mass there is a deemed threat to human lives. Decision 2009/337/EC Article 6 1. In the case of waste heap slides any waste-mass in movement shall be deemed likely to threaten human lives if people are staying within range of the moving waste mass. 2. The assessment of the potential for loss of life and danger to human health shall comprise at least the following factors: (a) the size and properties of the facility including its design; (b) the quantity and quality including physical and chemical properties of the waste in the facility; (c) slope angle of heap; (d) potential to build up internal groundwater within the heap; (e) underground stability; (f) topography; (g) proximity to water courses, constructions, buildings; (h) mine workings; (i) any other site-specific factors that may significantly contribute to the risk posed by the structure. 10

11 Preliminary study to EC Decision on Category A classification 10. The Decision on Category A classification followed a study 1 carried out for the EC.Several findings help explain the background to key aspects of the 2009 decision: (1) Alternative risk assessment methodologies were considered and a sourcepathway-receptor basis was recommended; all elements of that chain must be present. (2) For high-amplitude low-frequency events, such as dam failures, it is deemed appropriate, for classification systems, risk assessments should concentrate on the consequences. However the procedure is aiming only to establish the classification of the facility it is not the intention to explore the potential consequences in great detail or to perform any detailed EIA. (3) Failure due to loss of structural integrity should include construction weakness and failure due to incorrect operation includes insufficient design but risks on any account need to consider the type of impact that may occur. (4) ARD producing waste rock from excavation (e.g. overburden) would not be classified as hazardous waste but should be addressed under incorrect operation 2 (5) The MWD is interpreted as intending operators of new facilities for nonhazardous waste to design the facility so as to minimise risk and purposely avoid classification as Category A. (see box below) (6) Examples of classification under the system are given and may be consulted. (A summary of the decisions from these is given in Annex E to this document) Extract from Report on Classification of Mining Waste Facilities 2007 For non-hazardous inert waste and non-hazardous non-inert waste the Directive is formulated in such a way that it encourages mining companies to design, locate and operate the disposal facilities in such a way that it is not classified as a Category A facility, i.e., minimise risk over the life-cycle of the facilities. This important aspect of the Mining Waste Directive, creating an incentive for risk reduction by simplified administration and lower costs for low risk facilities, is a key forward-looking feature of the Directive. For this reason, any methodology developed for the classification of waste disposal facilities should be carefully formulated in order to encourage operators to minimise 1 DHI Water Environment Health in cooperation with SGI, Swedish Geotechnical Institute and AGH, University of Science and Technology, Krakow. 2 Ibid pp

12 risk related to the disposal facilities. The developed methodology should therefore, to the extent possible, provide possibilities for the operator to design, locate, operate and close facilities in such a way that when risk is minimised to certain levels (to be defined in the methodology) the facilities are not classified as Category A facilities. 1 Role of the existing UK legislation as regards Risk of Major Accident 11. The Mines and Quarries Tips Act 1969 and secondary legislation were established in response to the Aberfan disaster in Over the last 40 years mineral operators have had to undertake detailed design work to comply. The 1969 Act continues to apply to qualifying tips and ponds at underground mines but provision for those at quarries and surface excavations is now contained within The Quarries Regulations Mines 12. Tips and lagoons at underground mines are covered by: Mines and Quarries Tips Act Mines and Quarries (Tips) Regulations 1971 SI 1971/1377 Mines and Quarries (Tipping Plans) Rules 1971 SI 1971/ Section 1 of the 1969 Act requires that every tip to which it applies shall be made and kept secure. The other sections of the Act, Regulations and Rules provide for an extensive and systematic approach to the design, operation and inspection of all qualifying tips and lagoons (called classified tips) to ensure security (i.e. physical stability). 14. The 1971 regulations define the minimum criteria before tips are classified. For solid materials the area of the tip must be above 1 hectare in area, the height above 15 metres or the average land gradient of the land covered more than 1 in 12. For liquid materials the lagoons must be more than 4 metres above the level of any land within 50 metres or the contents must exceed 10,000m3. Many typical mining waste facilities would qualify as classified tips but there are very few underground mining operations in Scotland at present. Quarries and surface (opencast) coal mines 15. The introduction to the Approved Code of Practice (ACOP 3 ) published by the HSE for the Quarries Regulations states: 1 p

13 The Quarries Regulations 1999 The Quarries Regulations 1999 are intended to protect the health and safety of people working at a quarry and others who may be affected by quarrying activities. They apply to both employees and the self employed. They are also intended to safeguard people not working at the quarry (e.g. those living, passing or working nearby, or visiting, for example to buy materials The Quarries Regulations do not apply to borrow pits where they are an integral part of a construction project but do so where materials are used away from the site of extraction Quarries Regulation 6 places a duty on the operator to take the necessary measures to ensure, so far as is reasonably practicable, that the site is designed and operated without endangering their own or other s health and safety. ACOP Guidance note 35 requires attention to the geotechnical features of the site, the proximity of areas where the public are likely to be found (including footpaths), and the location and building of tips and lagoons. 18. No work is to be carried out unless a health and safety document has been prepared demonstrating that all risks to persons in the quarry and in the surrounding area have been assessed and kept up to date 3. The document should include excavations and tips rules prepared for that site 4 and the conclusions of appraisals and assessments of excavations and tips 5.Regular inspections including excavations and tips are required. 19. Regulation 30 is particularly relevant to fulfilment of a major part of the MWD. It covers all tips including lagoons regardless of size. All tips must be designed, constructed and maintained to ensure their safety 6.The design and operating procedures for tips and excavations must minimise the risk to people in the quarry and those who may be affected by its activities 7. Quarries Regulations 1999 Regulation 30 The operator shall ensure that excavations and tips are designed, constructed, operated and maintained so as to ensure that- (a) instability; or (b) movement, which is likely to give rise to a risk to the health and safety of any person is avoided 1 ACOP page 1 paragraph 1 2 (ACOP page 8 paragraphs 13&14) 3 Regulation 7 4 Regulation 31 5 Regulations 32 and 33 6 Quarries Regulations 1999 ACOP p50 paragraph Ibid paragraph

14 20. The ACOP includes procedures to be followed in design of new tips. All existing tips require to be appraised (see Regulation 32) at regular intervals by a competent person to determine if they are a significant hazard. Where it is concluded that there is a significant hazard, a geotechnical assessment (described in Regulation 33) must be carried out as soon as is reasonably practicable. It is recommended therefore that where a proposed tip is likely to constitute a significant hazard the operator involve a geotechnical specialist at design stage. Quarries Regulations ACOP paragraph 295 The hazard would be considered significant if such a failure would directly or indirectly be (a) liable to endanger premises, roadways or other places where people are likely to be found off site or (b) likely to kill or seriously injure anyone 21. ACOP Paragraphs require that determining a significant hazard includes how any excavation or tip might fail and the likely consequences of any such failure. The probability of a failure actually happening is not considered relevant in this context. Paragraph 300 provides grounds where a tip will automatically be considered as a significant hazard and requires a geotechnical assessment. These grounds mirror the 1971 criteria for classified tips (see paragraph 13 above) with the additional sweep up of other factors which mean it is a significant hazard.where, in the opinion of the geotechnical specialist, the tip remains a significant hazard by way of instability or movement Regulation 34 requires that it is it must be reassessed at least every 2 years as a notifiable tip. 22. The operator is also required under regulation 31 to produce suitable rules to cover both the construction and operation of any excavation or tip ( the excavation and tips rules). Regulation 37 requires notification of the HSE prior to commencement of any new notifiable tip. (It also provided for notification of any such tips which existed and would continue when the regulations came into force on 1 January 2000). Given the primary requirement under Regulation 30 to design, operate and maintain tips so as to avoid risk to health and safety it is evident that regardless of inspections and reassessment no facility should commence or continue where it poses a serious risk to health and safety. 23. It may be useful to note that many quarries will contain a number of excavations and tips which will qualify as significant hazards and undergo regular monitoring and re assessment in the normal course of business. The precautionary categorisation of features in this way does not therefore infer risk of major accident under the MWD and the 2010 Regulations. Conversely identification and compliance under Quarries Regulations or Tips Act ensures explicit attention and, where possible, design out of serious risks. This provides substantive evidence for the first stage of risk assessment; namely the minimisation or prevention of risk of major accident at source. It can be 14

15 assumed therefore that existing UK legislation already provides the safeguards on intrinsic stability required by the Directive. It is not intended to replicate any controls already in place but in order to explicitly address the Category A qualification in accordance with the Regulations and decision 337/2009/EC it will be necessary for the operator to confirm these aspects as catered for in the questionnaire at Annex F. 24. The legislation referred to above is concerned wholly with risk to human beings but not to the environment. Measures ensuring the security or stability of tips and ponds would in most instances indirectly protect environmental features in the same location from stability related impacts to the same degree as human beings. There could however be situations (particularly with old tips) where an increased risk of failure has been accepted, because no human beings are present in the risk zone. An environmental sensitivity in the same zone may now be recognised. Where existing assessments are referred to it may be necessary to revisit and confirm the findings (under ACOP paragraphs ) with cognisance of any sensitive environmental receptors and the thresholds for serious danger. This information will commonly be available through EIA. Overview of Category A definition on risk of major accident 25. Qualification as Category A is based on the definition of Regulation 2 as amplified by Decision 337/2009/EC. Risk assessment should consider the consequences of failure of a facility due to loss of structural integrity or incorrect operation regardless of the probability of occurrence. However, the specific failure types should be identified together with the nature and maximum extent of materials and contaminant transport. Human beings and sensitive environmental receptors in the risk area should be identified. The extent of impact on those receptors should be considered with regard to the qualifying thresholds in Decision 2009/337/EC. Dangers will not be considered serious where people are not present on a permanent or long term basis. This would exclude risks to footpath users 1 or open access visitors in the vicinity of the facility. 26. In the light of risks identified and potential qualification as Category A the design should be reconsidered with regard to location, dimension, construction and operational process. Where the waste does not contain hazardous waste or a dangerous substance it is intended that re-design ultimately excludes classification as Category A but there may be site specific circumstances where, after consideration of feasible alternatives, this is not possible. The EC have published advice 2 on Best Available Techniques (BAT) entitled Management of Tailings and Waste-Rock in Mining Activities but this is focussed on metalliferous mining and is therefore of very limited application in Scotland at present. 1 Footpaths are however considered by the quarries regulations

16 27. In most Scottish mines and quarries the prospects for failure or incorrect operation of waste deposits and the extent of impact will be easily identifiable. Hazard identification, appraisal and geotechnical assessment work under Quarries Regulations 1999 or the Mines and Quarries Tips Act 1969 will inform the identification of hazards and the nature/extent of failure. For the purposes of initial categorisation it should be possible to systematically rule out the risk of serious danger to human beings by confirmation by the operator of compliance with the 1969/1999 legislation. 28. Serious danger to the environment from structural failure may also be simply addressed in the initial stages but some further consideration will be necessary for other facilities. The categorisation process table at Annex F is drafted on this basis. Where such work is merited operators will have to consider the maximum failure zone and the qualifying criteria. Operators should also consider risk of serious danger from incorrect operation including contaminant release such as acid rock drainage or other leachate. 29. It is reiterated that the categorisation process should be distinguished both from the approval of the subsequent WMP and the Planning/EIA aspects of the development application. Category A qualification on environmental grounds does not infer any conclusion on environmental impact. It may point to areas for consideration and if a specific evaluation has been undertaken it may offer useful further information. However qualification as Category A on grounds of major accident should not be taken as any final assessment of danger or risk in place of full systematic work within the usual EIA methodology and planning decision. 16

17 CHAPTER 3 IDENTIFICATION OF HAZARDOUS WASTE 1. The Hazardous Waste Directive (HWD) defines hazardous waste as wastes featuring on a list drawn up by the European Commission, because they possess one or more hazardous properties (set out in the HWD ).This list is called the European Waste Catalogue (now the consolidated EWC 2002) 1. Extractive wastes are contained in Chapter 1 and are reproduced in a table at Annex B. Some of the six-digit codes have an asterisk next to them, denoting hazardous wastes. Those without an asterisk are not hazardous wastes. Of the hazardous wastes, some are coloured red ( Absolute hazardous entries) and some are coloured blue ( Mirror hazardous entries). The absolute hazardous entries are automatically considered hazardous and their description does not have a reference to dangerous substances. Therefore, operators do not need to find out what chemicals are in the waste in order to find out if it is hazardous or not. There is only one absolute hazardous entry within Chapter 1: this relates to acid-generating tailings from processing of sulphide ore. The mirror hazardous entries are those which can be either hazardous or not, depending on whether they contain dangerous substances at or above certain levels 2 and their hazardous properties. 2. SEPA provides further detail on the identification of hazardous waste. The SEPA web page and the joint technical guidance document WM2 (produced by the Environment Agency, the Scottish Environment Protection Agency and the Northern Ireland Environment and Heritage Service are particularly helpful. However it may be noted firstly that wastes from mineral excavation of all types (i.e. natural overburden and interburden) is not listed as hazardous (Codes and ) This includes aggregates and opencast coal overburden (Code ). The next headings cover processing wastes and although there is one known prospective metalliferous mining operation all other extraction operations in Scotland at present are non-metalliferous. (Codes to & ) As described above, aggregates, silica sand and building stone wastes on the de facto list are inert and processing wastes will fall under one of the non-hazardous codes. Waste from coal processing can vary in content and will require further justification but are not expected to normally qualify as hazardous (i.e. on account of dangerous substances/hazardous properties).the scope for hazardous mining waste in Scotland therefore appears to be very limited. 1 Decision 2000/532/EC

18 Extractive waste which is classed hazardous (absolute entry) Metalliferous mining: Acid-generating tailings from processing of sulphide ore *. Extractive waste which may be hazardous (mirror entries) Metalliferous mining: Other tailings containing dangerous substances * (from processing of metalliferous minerals) and Other wastes containing dangerous substances from physical and chemical processing of metalliferous minerals * Non metalliferous mining: Wastes containing dangerous substances from physical and chemical processing of non-metalliferous minerals * Thresholds for classification of hazardous waste 3. Extractive waste may therefore be regarded as non hazardous (a) where the listing in the EWC is a black entry without an asterisk or (b) where it is hazardous under a blue (M) (non absolute)entry and it has been shown not to contain dangerous substances and/or hazardous properties. Otherwise the waste is hazardous and needs to be considered against the thresholds referred to in the Regulations and now detailed in EC decision 2009/337/EC The thresholds are based on three zones each reflecting the degree to which the hazard is expected to diminish over the life of the facility. If the ratio of hazardous material expected at the end of the facility life compared with the start is more than 0.5 (i.e. it remains at least half as hazardous as at the outset) it qualifies as a Category A facility. If it is less than 0.05 (i.e. it has dramatically reduced in hazardous content) it is not Category A (on this count at least). If the ratio is between 0.5 and 0.05, (i.e. it has reduced in hazardousness by more than 50% but not as much as 95%) it remains Category A but the operator is afforded the opportunity to supply a specific risk assessment to justify it being regarded otherwise in this respect

19 2009/337/EC Article 7 1. The threshold referred to in the second indent of Annex III of Directive 2006/21/EC shall be determined, as the ratio of the weight on a dry matter basis of: (a) all waste classified as hazardous in accordance with Directive 91/689/EEC and expected to be present in the facility at the end of the planned period of operation, and (b) waste expected to be present in the facility at the end of the planned period of operation. 2. Where the ratio referred to in paragraph 1 exceeds 50 %, the facility shall be classified as Category A. 3. Where the ratio referred to paragraph 1 is between 5 % and 50 %, the facility shall be classified as Category A. However, that facility may not be classified as Category A where it is justified on the basis of a site specific risk assessment, with specific focus on the effects of the hazardous waste, carried out as part of the classification based on the consequences of failure due to loss of integrity or incorrect operation, and demonstrating that the facility should not be classified as Category A on the basis of the contents of hazardous waste. 4. Where the ratio referred in paragraph 1 is less than 5 %, and then the facility shall not be classified as Category A on the basis of the contents of hazardous waste. 19

20 CHAPTER 4 IDENTIFICATION OF DANGEROUS SUBSTANCES 1. The third option for Category A qualification is the presence of dangerous substances (defined in Decision 2000/532/EC) above a certain threshold. Extract from Decision 2000/532/EC (Annex paragraphs 5 and 6) 5. For the purpose of this Decision, dangerous substance means any substance that has been or will be classified as dangerous in Directive 67/548/EEC and its subsequent amendments; heavy metal means any compound of antimony, arsenic, cadmium, chromium (VI), copper, lead, mercury, nickel, selenium, tellurium, thallium and tin, as well as these materials in metallic form, as far as these are classified as dangerous substances. 6. If a waste is identified as hazardous by a specific or general reference to dangerous substances, the waste is hazardous only if the concentrations of those substances are such (i.e. percentage by weight) that the waste presents one or more of the properties listed in Annex III to Council Directive 91/ 689/EEC. As regards H3 to H8, H10 and H11, Article 2 of this Decision shall apply. For the characteristics H1, H2, H9 and H12 to H14 Article 2 of the present Decision does not provide specifications at present. Thresholds for classification of wastes with dangerous substances 2. The threshold for dangerous substances in extractive waste is defined in Decision 2009/337/EC. It gives a method for assessing the concentration of dangerous substances within the estimated volume of water in the tailings taking into account additions and predicted changes in water volumes over the operational phase. The threshold is simply whether the substance is a dangerous preparation in its aqueous state. Decision 2009/337/EC Article 8 1. Member States shall assess whether the criterion set out in the third indent of Annex III of Directive 2006/21/EC is met in accordance with the considerations set out in paragraphs 2, 3, and For planned tailing ponds, the following methodology shall be used: (a) an inventory shall be carried out of the substances and preparations which are used in the processing and which are subsequently discharged with the tailings slurry to the tailings pond; (b) for each substance and preparation, the yearly quantities used in the process shall be estimated out for each year of the planned duration of operation; 20

21 (c) for each substance and preparation, it shall be determined whether it is a dangerous substance or preparation within the meaning of Council Directive 67/548/EEC (1) and of Directive 1999/45/EC of the European Parliament and of the Council (2); (d) for each year of planned operation, the yearly increase in stored water (.Qi) within the tailings pond shall be calculated under steady state conditions according to the formula set out in Annex I; (e) for each dangerous substance or preparation identified in accordance with point (c), the maximum yearly concentration (C max) in the aqueous phase shall be estimated according to the formula set out in Annex II. EN Official Journal of the European Union L 102/9 If, on the basis of the estimation of the maximum yearly concentrations (C max), the aqueous phase is considered to be dangerous within the meaning of Directives 1999/45/EC or 67/548/EEC, the facility shall be classified as a Category A facility. 3. For operating tailings ponds, the classification of the facility shall be based on the methodology set out in paragraph 2, or on direct chemical analysis of the water and solids contained in the facility. If the aqueous phase and its contents have to be considered as dangerous preparation within the meaning of Directive 1999/45/EC or 67/548/EEC, the facility shall be classified as a Category A facility. 4. For heap leaching facilities, where metals are extracted from ore heaps by percolating leach solutions, Member States shall undertake a screening for dangerous substances at closure based on an inventory of used leach chemicals and the residual concentrations of these leach chemicals in the drainage after washing has been finalised. If these leachates have to be considered as dangerous preparation within the meaning of Directives 1999/45/EC or 67/548/EEC, the facility shall be classified as a Category A facility. 21