Environmental regulations for mining activities in United Kingdom

Environment

What are the principal environmental laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?

The mining industry is regulated by independent government regulators, in particular the Environment Agency. Key legislation includes:

• the Environmental Permitting (England and Wales) Regulations 2010, which implements Directive 2006/21/EC1 of the European Parliament and the Council on the management of waste from extractive industries (the ‘Mining Waste Directive’);
• the Environmental Protection Act 1990;
• the Wildlife and Countryside Act 1981; and
• the Natural Environment and Rural Communities Act 2006 (in England and Wales).

Regulation can also be devolved further, to local authorities or Natural England. Additionally, specific localised policies may also apply to a particular area, including from the Conservation of Habitats and Species Regulations 2010, the Wildlife and Countryside Act 1981 and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003. A number of these implement European Union or national policies, applying in certain environments or contexts.

It is important to also consider common law obligations, including general principles of nuisance, which may impact, for example, how much noise, vibration or pollution mining operations (and ancillary) activities can make.

The above will be subject to Brexit as much of the United Kingdom’s environmental laws and policies are based on EU laws. As a general overview, the United Kingdom will remain a full member until the date that it formally exits the European Union (currently set for 31 October 2019), meaning it will remain bound by all EU Directives and Regulations until the exit date. Following Brexit, many EU Regulations and national-law implementing directives will remain in effect. However, EU Directives will no longer have to apply to the United Kingdom and while any UK implementing legislation would remain in effect, the United Kingdom would have greater scope to amend this legislation because it would no longer be bound by the Directive. The United Kingdom will also no longer be bound by the decisions of the Court of Justice of the European Union.

EU Regulations will (broadly speaking) continue to be in force as a result of section 3 of the European Union (Withdrawal) Act 2018, in the form in force immediately prior to departure. The government has powers to amend any retained EU legislation to deal with deficiencies arising out of Brexit (eg, change references of the European Union to references of the United Kingdom). In some cases, the United Kingdom may immediately replace EU Regulations with new domestic laws.

Currently, environmental decisions in the United Kingdom are overseen by the European Commission. However, in December 2018, the UK government set out a draft Environmental Bill (with a view to introduce a full Environmental Bill in 2019), which would introduce a statutory body, the office for Environmental Protection, to oversee environmental policy and implementation in the United Kingdom. The government has stated that the final bill will contain specific measures on environmental issues including:

• clean air;
• nature restoration and enhancement;
• resource efficiency; and
• waste management.

What is the environmental review and permitting process for a mining project? How long does it normally take to obtain the necessary permits?

Planning policy in England is set by the Ministry of Housing, Communities and Local Government; this is then implemented and applied by local authorities responsible for making planning decisions. The main policies that these local authorities will follow is the National Planning Policy Framework. Specifically, the local authority responsible will be the Mineral Planning Authority.

As part of the general planning process, environmental requirements will likely be imposed under the terms of any planning permission granted by the Mineral Planning Authority. A Minerals and Waste Development Framework is required, and this will incorporate various environmental considerations. In particular, it is likely an environmental impact assessment - as required by EU policy - will be conducted as part of this. A strategic environmental assessment may also be required.

Given that the environmental planning process is integrated with the rest of the planning requirements, likely timings are interdependent on timings for the overall process. Generally, depending on the scale and scope of the project, this can be a long and complex process, requiring extensive public consultation and consultation with various entities. As such, the likely timetable can vary.

What is the closure and remediation process for a mining project? What performance bonds, guarantees and other financial assurances are required?

There is no comprehensive and generally applicable framework. Rather, this is addressed through a combination of planning consents, and the relevant lease or licence terms. The Environment Agency monitors abandoned mines, and records those which are likely to cause environmental damage.

For mines closed after 1990, obligations to clean up contaminated land are imposed in certain circumstances through the Water Framework and the Environmental Protection Act 1990.

What are the restrictions for building tailings or waste dams?

Previous requirements imposed by the Mines and Quarries (Tips) Act 1969, the Mines and Quarries Act 1954, the Mines and Quarries (Tips) Regulations 1971 and the Quarries Regulations 1999 have largely been consolidated by the Mines Regulations 2014. Under this, there is an obligation to build tips (which is broadly defined) in such a way as to avoid instability or movement that could risk the health and safety of any person. This requires the mine operator to ensure that a competent person carries out an appraisal at appropriate intervals. If, following this, there is deemed to be a risk, a geotechnical specialist is required to carry out an assessment.

EU Regulations will (broadly speaking) continue to be in force as a result of section 3 of the European Union (Withdrawal) Act 2018, in the form in force immediately prior to the date of exit. The government has powers to amend retained EU legislation to deal with deficiencies arising out of Brexit (eg, change references of the European Union to references of the United Kingdom). In some cases, the United Kingdom may immediately replace EU Regulations with new domestic laws.