Written by MMDA Admin on 29 March, 2011 – 5:12 pm
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2.4.2 Environmental Assessment and Environmental Management Plan
[NOTE: The objective of the Environmental Management Plan is to prevent any unnecessary and undue degradation of the environment by the Project; to protect public health and safety, particularly for communities in the Mining Area; to preserve water quantity and quality; to ensure that impacts within the Mining Area are contained in that area; to stabilize the site physically and chemically at the end of mining operations to prevent offsite impacts; and to ensure that the Mining Area may be safely and beneficially used by future generations.]
(a) The Company shall have an Environmental Assessment prepared based on sound engineering and economic principles, and having regard to Good Industry Practice including IFC Performance Standard 1, establishing a baseline of environmental conditions existing at the Effective Date, and assessing the Project-related environmental effects and impacts.
(b) The Company shall have an Environmental Management Plan prepared (which if prepared by the Company is verified by an independent environmental consulting firm recognized as having expertise in the international mining industry), based on the Environmental Assessment and sound engineering and economic principles, and having regard to Good Industry Practice including IFC Performance Standard 1. The Environmental Management Plan shall upon request by the State, be made publicly available in a language and in a form that is accessible to affected communities in the Project Area, and shall be placed in the document files identified in Section 30.1 of this Agreement. The Environmental Management Plan shall be and updated prior to any major change to the mine plan. The Environmental Management Plan shall include [elements as the Parties may agree, such as the following]:
(i) Measures that the Company intends to use to mitigate adverse consequences of further of the Project as described in the Feasibility Study;
(ii) Plans for the management, remediation, rehabilitation and control of all environmental aspects of the Project, excluding all historic environmental matters that are not assumed by the Company, including
(A) A plan to avoid, minimise, mitigate, rehabilitate and offset, where appropriate, impacts on biological diversity within the Mining Area;
(B) A plan for preventing, minimising or mitigating adverse environmental impacts to rivers and other potable water and ensuring that such pollution does not cause unnecessary harm or destruction to human or animal life or fresh water fish or vegetation;
(C) Opportunities for the improved management and conservation of natural resources in the Project Area;
(D) A plan to avoid or minimize greenhouse gas air emissions (as defined by the IPCC) from the Project taking into account economically and commercially feasible technology;
(E) A plan to effectively manage soil resources to allow future use of the surface land consistent with the proposed post mining land use;
(iii) A description of the actions to be taken during any periods of temporary closure or cessation of operations and for the closure activities to be performed should closure be required prior to the completion of the planned mine life;
(iv) A plan for concurrent reclamation to the extent practicable;
(v) A plan to restore all mined areas to a final landform that is safe, stable, and suitable for the proposed post mining land use.
(vi) A plan regarding the intended post mining land use in the Project Area;
(c) The Company shall comply with the environmental laws of the State in force at any time during the period of this Agreement [including any provincial and local laws], including laws relating to protection of water quality, air quality, quality of land, the preservation of living natural resources, the protection of biodiversity, and the disposal of hazardous and non-hazardous wastes. Subject to Section 33.2.2, a material failure to comply with environmental laws, the terms of environmental licenses or permits, or of the terms of all mitigation measures and restrictions contained in the Environmental Management Plan, as the same may be amended from time to time, constitutes a breach of this Agreement.
Example 1
The Environmental Impact Assessment Study Report and the Environmental Management Plan.
a. The Concessionaire shall prepare an EIA and an EMP in accordance with the Bid Materials and in compliance with applicable requirements imposed by the EPA. The Concessionaire shall additionally prepare a supplemental EIA and a supplemental EMP in compliance with applicable requirements imposed by the EPA regarding any Proposed Production Area covered by an approved Work Plan.
b. Each EMP must include a closure management plan and a closure management budget designed to ensure that upon closure (i) the Mining Plant and Infrastructure shall not present any health or safety issues (including provision for the control of acid drainage and other long term environmental hazards) and (ii) the Production Area and the surroundings of any Mining Plant or Infrastructure not located in a Production Area shall be restored to productive use or reforested or where restoration is impractical, suitably remediated. The closure management plan must include a list and assessment of risk and any uncertainties associated with the preferred closure option, address the social aspects of closure and rehabilitation, and provide a process for participation by the community and management and monitoring. The closure management budget shall provide a realistic initial estimate of the expected closure cost, broken down by principal activities.
c. Each EMP must also set forth the means by which the Concessionaire proposes to ensure the availability of funds to finance its environmental restoration and remediation obligations Mining Law Sections [x] so that the cost of closure will be borne by the Concessionaire and not the public or the Government. If the Concessionaire does not agree in writing with the Government to a “pay-as-you-go” funding scheme, then a funding guarantee reasonably satisfactory to the Minister of Finance from a third party financial institution with a long-term credit rating of at least A (or its equivalent) from at least two internationally recognized credit-rating agencies with provision reasonably acceptable to the Minister of Finance and the Minister for redetermination of estimated closure costs at least triennially and adjustments in the amount of the funding guarantee will normally be acceptable. In the case of third party credit support, if the party supplying the funding guarantee no longer has a long-term credit rating of at least A (or its equivalent) from at least two internationally recognized credit-rating agencies, the funding guarantee must provide that if the Concessionaire does not within 90 days thereafter secure a substitute funding guarantee from another third party financial institution satisfying the requirements of this Section, the funding guarantee may be called upon for the maximum amount then available thereunder, subject to the requirement that such amount be deposited in a trust account from which it may be withdrawn only for the purposes of financing the Concessionaire’s environmental restoration and remediation obligations.
Example 2
Clause 11
Environmental Liabilities and Responsibilities
11.1 Environmental Baseline.
(a) The Government Parties have treated the characterization of the site conditions and the environmental liabilities included in the Company Report as a preliminary baseline environmental assessment of the Mine (the “Environmental Assessment”). The analysis in the Company Report did not consider economic redevelopment of the [Mine] mining and processing facilities such as is contemplated by this Agreement. [Consulting Company] has been engaged to conduct a further characterization of site conditions that shall also form part of the Environmental Assessment, provided a report of this characterization is completed and delivered to [Mine] at least three (3) Months prior to the Project Notice Date.
(b) [Mine] shall, in the course of performing its Evaluative Activities and preparing the Environmental Impact Assessment and Environmental Management Plan and prior to the finalization of its Feasibility Study, give the [Government] Notice of any conditions that it believes could result in a material change to the Environmental Assessment. Within sixty (60) Days after receipt of each such Notice, the [Government] shall advise [Mine] whether it agrees that conditions identified in the Notice warrant an amendment of the Environmental Assessment, and if so, the nature and extent of the amendment. If the [Government] does not agree that conditions identified in the Notice warrant an amendment of the Environmental Assessment, or [Mine] does not agree with the amendment proposed by the [Government], the matter shall be submitted as a Dispute to the Environmental Management Panel as contemplated by Section 11.10 and Section 16.3. If the Environmental Management Panel is unable to resolve the Dispute, it shall be submitted to arbitration pursuant to Section 16.5.
[…]
11.4 Environmental Management Plan of the [Government]. No later than one hundred eighty (180) Days after the Approval Date, the [Government] shall prepare and submit to [Mine] a draft Environmental Management Plan. [Mine] shall have the right, but not the obligation, during the thirty (30)-Day period following receipt of the draft Environmental Management Plan to notify the [Government] of any comments on the draft plan. The [Government] shall consider any comments made by [Mine] on the draft plan and shall, within sixty (60) Days after delivery of the draft Environmental Management Plan, adopt and deliver to [Mine] a final Environmental Management Plan of the [Government]. The [Mine] shall implement the Environmental Management Plan of the [Government], beginning during the Initial Period, at its expense but with recourse to the Governmental Remediation Fund.
11.5 The Environmental Management Plan. The Environmental Management Plan shall be prepared by Company during the Initial Period and shall include plans for environmental management, remediation, control and closure of all areas and aspects of the Project that are included in the Feasibility Study consistent with this Article 11. 6 Company will use commercially reasonable efforts to coordinate the Environmental Management Plan with the Environmental Management Plan of [Government] as then in effect. Company shall include in the Environmental Management Plan, a Closure Plan for Mine closure that will describe all activities that will occur during the Closure Period and the Post-Closure Period to meet the objectives of the Environmental Laws and the Environmental and Social Policies and Guidelines during all potential closure events. The Closure Plan shall also include a description of the actions to be taken during any periods of temporary closure or cessation of operations and for the closure activities to be performed should closure be required prior to the completion of the planned mine life. The Closure Plan will include a schedule and an estimate of the funds required to conduct closure and remediation of all site facilities and site disturbances during the Closure Period and the Post-Closure Period. Closure cost estimates shall include an allowance for Third Party closure and management of the Mine.
Example 3
Clause 16.3
Resolution of Environmental Disputes
(a) Any Environmental Dispute which is not resolved by negotiation pursuant to Section 16.1 within forty-five (45) Days after Notice of the Dispute is given pursuant to Section 16.1, shall be subject to mediation by the Environmental Management Panel as provided in Section 11.10.
(b) If an Environmental Dispute is not resolved by mediation by the Environmental Management Panel within ninety (90) Days after the Environmental Dispute is submitted to the Environmental Management Panel, any Party may submit the Environmental Dispute to arbitration pursuant to Section 16.5 and upon such submission the provisions of Section 11.10 shall no longer apply to such Dispute.
(c) If a Party to a Dispute does not agree for any good faith reason that the Dispute proposed by any other Party for mediation pursuant to Section 11.10 is an Environmental Dispute, the disagreeing Party may submit the Dispute to arbitration pursuant to Section 16.5 and upon such submission the provisions of Section 11.10 shall no longer apply to such Dispute.
Example 4
11. Protection and Management of the Environment
(1) Within a reasonable time after giving a Project Notice in respect of the Initial Project or any Subsequent Project and at three yearly intervals thereafter the participating Joint Venturers shall submit to the Minister a three year programme for the protection, management and rehabilitation (if appropriate) of the environment in respect of that Project including arrangements with respect to monitoring and the study of sample areas to ascertain the effectiveness of such programme.
(2) On receipt of any programme submitted to him pursuant to sub-clause (I) of this Clause the Minister shall:
(a) Approve the said programme without qualification or reservation; or
(b) Approve the said programme subject to such conditions in respect thereof or such variations thereto as he thinks reasonable; or
(c) Refuse to approve the said programme.
(3) The Minister shall within two months of receipt of a programme submitted to him pursuant to sub-clause (1) of this Clause give notice to the relevant Joint Venturers of his decision in respect thereof. If the decision of the Minister is as mentioned in paragraph (b) or (c) of sub-clause (2) of this Clause the Minister shall disclose to such Joint Venturers his reasons for his decision.
(4) The provisions of sub-clauses (4) and (6) of Clause 7 shall mutatis mutandis apply to any decision of the Minister in the terms of paragraphs (b) or (c) of sub-clause (2) of this Clause.
(5) The relevant Joint Venturers shall implement the programme when approved or determined by arbitration in accordance with the terms (including any conditions) thereof.
(6) The relevant Joint Venturers shall:
(a) Provide all relevant raw data to the Minister;
(b) At yearly intervals, commencing from the date when the programme is approved, submit an interim report to the Minister concerning such programme; and
(c) At the expiration of three years from the date the programme is approved submit a detailed report to the Minister concerning such programme during the previous three years.
(7) In the event of a sudden and unexpected material detriment to the environment occurring as a result of the Joint Venturers’ operations, the relevant Joint Venturers as soon as reasonably practicable shall submit to the Minister a programme for the mitigation of such detriment and the provisions of sub-clauses (2) to (6) inclusive of this Clause shall apply to any such programme.
(8) For the purposes of the [noise control act], the area of the Initial Project or any Subsequent Project shall be described as predominantly industrial.
(9) Notwithstanding the provisions of this Clause, the State acknowledges that the Joint Venturers, in assessing the economic feasibility of the Initial Project or any Subsequent Project, will have regard to the laws, regulations or standards (other than those referred to in Clause 10) relative to the environment existing at the time at which the relevant Project Notice is given. Should there occur during the currency of this Indenture any changes to any such laws, regulations or standards of or applied by the State the result of which is to impose substantial additional costs upon the Joint Venturers or any of them the State shall, upon request of the relevant Joint Venturers give due consideration to ameliorating the adverse effects of such costs.
Example 5
IFC Safeguard Policy on Natural Habitat; November 1998.
The Parties agree to comply with the substantive environmental and social principles prescribed by this Policy.
Example 6
Environmental Protection. Consistent with the basic policy of the State to assure the availability, sustainability and equitable distribution of the country’s natural resources, the Contractor shall manage its mining operations in a technically, financially, socially, culturally and environmentally responsible manner to promote the general welfare of the country and the sustainable development objectives and responsibilities as provided for in the [environmental law]. The Contractor shall conduct all Mining Operations in accordance with the provisions of the Act, [environmental law] and applicable laws concerning environmental protection, mine safety and health, using appropriate anti-pollution technology and facilities to protect the Environment and to rehabilitate areas mined out or affected by Mine Wastes and Mill Tailings or other Pollution or surface disturbance of the Contract Area by the Contractor.
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