Legislative innovations in the field of mining industry waste management: what do subsoil users really need?

Waste management is always on the agenda, regardless of the situation in Ukraine. And constant neglect and temporary shifting of this problem can lead to global changes and natural disasters.

At the same time, in order to become a full-fledged member of the EU, Ukraine has committed itself to implementing full-fledged recycling of extractive industry waste right now.

It is possible that in the near future, Ukraine will have new project documents that will need to be created, approved, and implemented by the subsoil user.

How does the situation with waste look like today?

In accordance with Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 and Directive 2004/35/EC 21 April 2004, Ukraine has made commitments to the European Union to address waste issues.

But in addition to international obligations, we must remember that the future of our generations will depend on how we behave today, including waste management. Therefore, the Cabinet of Ministers of Ukraine approved the National Waste Management Plan until 2030 by its Resolution №117 dated February 20, 2019. 

On July 9 this year, the Law of Ukraine “On Waste Management” came into force. It is also worth noting that it has been repeatedly returned for revision, but it has been implemented and is now the framework in the waste sector.

In particular, this Law introduces modern European approaches to waste management, legislative and financial incentives to increase the volume of waste recycling and reuse. At the same time, it establishes extended producer liability for certain types of waste, which will allow for full financing of their collection and processing by producers, strengthens control over hazardous waste management, and lays the groundwork for the creation of a waste management information system.

It should be noted that this Law is the basis for a number of other draft laws to be adopted in the near future, as the problem exists not only in the area of household waste. The following draft laws are worthy of attention: “On Packaging and Packaging Waste”, “On Batteries and Accumulators”, “On Waste Electrical and Electronic Equipment”, and “On Waste from the Mining Industry”.

The draft Law “On Mining Waste” proposes to introduce a new technical project document that will need to be created, approved, and implemented by the subsoil user – the Waste Management Plan.

Waste management plan: environmental component.

As of today, there are active discussions on whether subsoil users  – mining companies – will be obliged to develop a Waste Management Plan, and a number of questions arise related to this document: how it will correlate with the field development project, environmental impact assessment and mining allotment, which authorities should be involved in the approval of the Waste Management Plan, which regulatory authorities should monitor compliance with the requirements and standards set out in the Waste Management Plan. 

While there is no final decision, it is only awaiting subsoil users, and therefore it is imperative that subsoil users are involved in the process of discussing new legislative requirements. Otherwise, there is a risk of receiving legislative provisions that will be impossible to implement in practice.

At the same time, the implementation of the new document has both positive and negative aspects.

Among the advantages is the following: Ukraine will have a full-fledged and standardized waste management at the facility, which will help improve the environment, rational use of subsoil, and reclamation of the license area after the completion of mining activities. It’s no secret that until now, only conscientious subsoil users have been reclaiming sites, and unfortunately, there are not many of them. Why? It’s simple: only the current subsoil user can be held liable for failure to carry out reclamation, and due to the fact that reclamation is the final type of work on the license area, no one has been held liable so far. What did we get in return? Ukraine still has a huge number of abandoned subsoil use facilities with dumps, waste, sludge and tailings that need to be liquidated and disposed of.

Among the negative aspects, it is worth noting that the implementation of the new document in the course of extractive activities will incur additional time and financial costs for subsoil users. Is this a negative point only for the subsoil user? After all, additional bureaucratization of the extraction process can only scare away potential investors and subsoil users. In this case, the state will lose.

Therefore, the approach to drafting such a document should be balanced and take into account the interests of all stakeholders.

At the same time, regulation of waste (dumps, tailings, sludge) from the mining industry is impossible without determining their status and legal use at the legislative level.

Some of these objects (wastes) have the status of technogenic deposits, but not all of them. And, accordingly, there is no single standardized approach on the part of the state to such processed products resulting from subsoil use. 

Therefore, it is very important that the new Law “On Waste from the Extractive Industry” regulates this issue. Because, in addition to meeting the requirements of the EU Directives mentioned above, we also have the issue of determining the status of waste that harms the environment every day. Only when it is clear that the processing products generated in the course of mining activities do not require additional licensing, i.e. they will not be separate objects of subsoil use, and the subsoil user can dispose of them in the manner determined by the state, will the problem be resolved.

In general, waste from the extractive industry can be divided into the following categories:

• Waste that was generated earlier and does not currently belong to a specific subsoil user. Or another subsoil user that uses the main facility has no influence or responsibility for these products. They remain the problem of the local communities where they are located. At the same time, communities also do not know what to do with them, as there is no certification of such facilities and no legislative regulation.
• Waste that the extractive industry in Ukraine inherited from the Soviet Union and that is causing quite a lot of environmental problems today.
• Waste generated in the course of activities of existing subsoil users.

The business is waiting for the determination of what waste we have and what status it will have. It is clear that some of them will receive the status of technogenic deposits, and for this purpose, legislative conditions must be created to attract investors to develop such complex and difficult technogenic deposits.

It is very important to create favorable investment conditions in Ukraine that will enable businesses to invest in the processing of extractive industry waste and utilize it at the same time. It is extremely important that the new law already provides for this.

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