Regulations Amending the Metal Mining Effluent Regulations: SOR/2018-99

Canada Gazette, Part II, Volume 152, Number 11

Registration

May 16, 2018

FISHERIES ACT

P.C. 2018-539 May 14, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsections 34(2), 36(5) and 38(9) footnotea and paragraphs 43(1)(g.1) footnoteb, (g.2)b and (h) of the Fisheries Actfootnotec, makes the annexed Regulations Amending the Metal Mining Effluent Regulations.

Regulations Amending the Metal Mining Effluent Regulations

Amendments

1 The title of the Metal Mining Effluent Regulations footnote1 is replaced by the following:

Metal and Diamond Mining Effluent Regulations

2 (1) The definitions acutely lethal effluent, acute lethality test, authorization officer, Daphnia magna monitoring test, deleterious substance, grab sample, mine, mine under development, new mine, operations area, recognized closed mine, reopened mine, surface drainage, total suspended solids and transitional authorization in subsection 1(1) of the Regulations are repealed.

(2) The definitions effluent, milling and operator in subsection 1(1) of the Regulations are replaced by the following:

effluent means any of the following:

milling means any of the following activities for the purpose of producing a diamond, metal or metal concentrate:

operator means any person who operates, has control or custody of or is in charge of a mine. (exploitant)

(3) Subsection 1(1) of the Regulations is amended by adding the following in alphabetical order:

acutely lethal, in respect of an effluent, means that the effluent at 100% concentration kills

diamond mine means any work or undertaking that is designed or is used, or has been used, in connection with a mining or milling activity to produce a diamond or an ore from which a diamond may be produced. It includes any cleared or disturbed area that is adjacent to such a work or undertaking. (mine de diamants)

metal mine means any work or undertaking that is designed or is used, or has been used, in connection with a mining, milling or hydrometallurgical activity to produce a metal or a metal concentrate or an ore from which a metal or a metal concentrate may be produced, as well as any cleared or disturbed area that is adjacent to such a work or undertaking. It includes any work or undertaking, such as a smelter, pelletizing plant, sintering plant, refinery or acid plant, if its effluent is combined with the effluent from a mining, milling or hydrometallurgical activity whose purpose is to produce a metal or a metal concentrate or an ore from which a metal or a metal concentrate may be produced. (mine de métaux)

Reference Method EPS 1/RM/10 means Biological Test Method: Reference Method for Determining Acute Lethality Using Threespine Stickleback, published in December 2017 by the Department of the Environment, as amended from time to time. (méthode de référence SPE 1/RM/10)

suspended solids means any solid matter contained in an effluent that is retained on a 1.5 micron pore filter paper when the effluent is tested in compliance with the analytical requirements set out in Table 1 of Schedule 3. (matières en suspension)

treatment facility effluent means water from a polishing pond, treatment pond, settling pond or water treatment plant or from any mine effluent treatment facility. (effluent d’installations de traitement)

(4) The definition acutely lethal in subsection 1(1) of the Regulations is amended by striking out “or” at the end of paragraph (a), by adding “or” at the end of paragraph (b) and by adding the following after paragraph (b):

(5) Subsection 1(2) of the Regulations is repealed.

(6) Section 1 of the Regulations is amended by adding the following after subsection (1):

(2) Every reference in these Regulations to column 1, 2, 3 or 4 of Schedule 4 shall be read as

3 (1) Sections 2 to 4 of the Regulations are replaced by the following:

2 (1) These Regulations apply in respect of the following mines:

(2) However, these Regulations do not apply in respect of

(3) Despite subsection (1), sections 4 to 31 do not apply in respect of a mine that is a recognized closed mine under subsection 32(2) unless it returns to commercial operation, in which case it ceases to be a recognized closed mine.

Prescribed Deleterious Substances

3 For the purpose of the definition deleterious substance in subsection 34(1) of the Act, the following substances or classes of substances are prescribed as deleterious substances:

Authority to Deposit in Water or Place Referred to in Subsection 36(3) of Act

4 (1) For the purposes of paragraph 36(4)(b) of the Act, the owner or operator of a mine is authorized to deposit, or to permit the deposit of, an effluent containing any deleterious substance that is prescribed in section 3 in any water or place referred to in subsection 36(3) of the Act if

(2) The authority in subsection (1) is conditional on the owner or operator complying with sections 6 to 27.

(2) Section 3 of the Regulations is amended by striking out “and” at the end of paragraph (g), by adding “and” at the end of paragraph (h) and by adding the following after paragraph (h):

(3) Paragraph 4(1)(a) of the Regulations is replaced by the following:

4 The Regulations are amended by adding the following after section 4:

4.1 Paragraph 4(1)(c) does not apply in the case where the effluent is determined to be acutely lethal in accordance with the procedures set out in section 5 or 6 of Reference Method EPS 1/RM/14 when the owner or operator of a mine is testing at the frequency prescribed in subsection 14(1), unless the effluent is determined to be acutely lethal in accordance with any other acute lethality test.

5 (1) The portion of subsection 5(1) of the Regulations before paragraph (a) is replaced by the following:

5 (1) Despite section 4, the owner or operator of a mine may deposit or permit the deposit of waste rock, acutely lethal effluent or effluent of any pH and containing any concentration of a deleterious substance that is prescribed in section 3 into a tailings impoundment area that is either

(2) Subsection 5(2) of the French version of the Regulations is replaced by the following:

(2) Le propriétaire ou l’exploitant d’une mine ne peut se prévaloir de l’autorisation que lui confère le paragraphe (1) que s’il respecte les conditions prévues aux articles 7 à 28.

(3) Section 5 of the Regulations is amended by adding the following after subsection (2):

(3) For the purposes of this section, any acutely lethal effluent is prescribed as a deleterious substance.

6 Section 7 of the Regulations is replaced by the following:

7 (1) The owner or operator of a mine shall conduct environmental effects monitoring studies in accordance with the requirements and within the periods set out in Schedule 5.

(2) The studies shall be conducted using documented and validated methods, and their results interpreted and reported on in accordance with generally accepted standards of good scientific practice at the time that the studies are conducted.

(3) The owner or operator shall record the results of the studies and submit to the Minister of the Environment, in accordance with the requirements set out in Schedule 5, the reports and information required by that Schedule.

7 (1) The portion of subsection 8(1) of the Regulations before paragraph (a) is replaced by the following:

8 (1) The owner or operator of a mine shall submit in writing to the Minister of the Environment the information referred to in subsection (2) not later than 60 days after the day on which any of the following occur:

(2) Subsection 8(1) of the Regulations is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):

(3) Subsection 8(2) of the English version of the Regulations is replaced by the following:

(2) The information that shall be submitted is

(4) Subsection 8(2) of the Regulations is amended by adding the following after paragraph (b):

8 Paragraph 9(a) of the Regulations is replaced by the following:

9 (1) Sections 12 and 13 of the Regulations are replaced by the following:

12 (1) The owner or operator of a mine shall, not less than once per week and at least 24 hours apart, collect from each final discharge point a grab sample or composite sample of effluent and record the pH of the sample at the time of its collection and record, without delay after collecting the sample, the concentrations of the deleterious substances prescribed in section 3.

(2) Testing conducted under subsection (1) shall comply with the analytical requirements set out in Table 1 of Schedule 3 and shall be done in accordance with generally accepted standards of good scientific practice at the time of the sampling using documented and validated methods.

(3) Despite subsection (1), the owner or operator of a mine is not required to collect samples for the purpose of recording the concentrations of cyanide if cyanide has never been used as a process reagent at the mine.

13 (1) The owner or operator of a mine may reduce the frequency of conducting tests relating to the concentrations of arsenic, copper, cyanide, lead, nickel or zinc at a final discharge point to not less than once in each calendar quarter, each test being conducted at least one month apart, if that substance’s monthly mean concentration at that final discharge point is less than 10% of the value set out in column 2 of Schedule 4 for 12 consecutive months.

(2) The owner or operator of a mine, other than an uranium mine, may reduce the frequency of conducting tests relating to the concentration of radium 226 at a final discharge point to not less than once in each calendar quarter, each test being conducted at least one month apart, if the concentration of radium 226 at that final discharge point is less than 0.037 Bq/L for 10 consecutive weeks.

(3) The owner or operator of a mine shall increase the frequency of conducting tests relating to the concentration of a deleterious substance at a final discharge point to the frequency prescribed in section 12

(4) The owner or operator of a mine shall increase the frequency of conducting tests relating to the concentration of a deleterious substance at all final discharge points to the frequency prescribed in section 12 for all the substances mentioned in subsections (1) and (2) if the owner or operator

(5) If the owner or operator of a mine changes the location of a final discharge point, the owner or operator shall increase the frequency of conducting tests relating to the concentration of a deleterious substance at that final discharge point to the frequency prescribed in section 12 for all the deleterious substances mentioned in subsections (1) and (2).

(6) The owner or operator of a mine who reduces the frequency of conducting tests under subsection (1) or (2) shall

(2) Subsection 12(1) of the Regulations is replaced by the following:

12 (1) The owner or operator of a mine shall, not less than once per week and at least 24 hours apart, collect from each final discharge point

(3) Section 12 of the Regulations is amended by adding the following after subsection (3):

(4) The owner or operator of a mine shall determine and record the concentration of un-ionized ammonia, using the temperature, pH and concentration of total ammonia recorded under paragraph (1)(b), in accordance with the following formula:

A (1/(1 + 10pKa-pH))

where

0.09018 + 2729.92/T

where

(4) Subsection 13(1) of the Regulations is replaced by the following:

13 (1) The owner or operator of a mine may reduce the frequency of conducting tests relating to the concentrations of arsenic, copper, cyanide, lead, nickel, zinc or un-ionized ammonia at a final discharge point to not less than once in each calendar quarter, each test being conducted at least one month apart, if that substance’s monthly mean concentration at that final discharge point is less than 10% of the value set out in column 2 of Schedule 4 for 12 consecutive months.

10 (1) Section 14 of the Regulations is replaced by the following:

General

14 (1) Subject to section 15, the owner or operator of a mine shall collect, once a month, a grab sample of effluent from each final discharge point and determine whether the effluent is acutely lethal by conducting acute lethality tests on aliquots of each effluent sample in accordance with sections 14.1 and 14.2.

(2) For the purposes of subsection (1), the owner or operator of a mine

(3) When collecting a grab sample of effluent for the purposes of subsection (1), the owner or operator of a mine shall collect a sufficient volume of effluent to enable the owner or operator to comply with paragraph 15(1)(a).

Acute Lethality Test — Rainbow Trout

14.1 Unless the salinity value of the effluent is equal to or greater than ten parts per thousand and the effluent is deposited into marine waters, the owner or operator of a mine shall determine whether the effluent is acutely lethal by conducting an acute lethality test in accordance with the procedures set out in section 5 or 6 of Reference Method EPS 1/RM/13.

Acute Lethality Test — Threespine Stickleback

14.2 If the salinity value of the effluent is equal to or greater than ten parts per thousand and the effluent is deposited into marine waters, the owner or operator of a mine shall determine whether the effluent is acutely lethal by conducting an acute lethality test in accordance with the procedures set out in section 5 or 6 of Reference Method EPS 1/RM/10.

(2) Subsection 14(1) of the Regulations is replaced by the following:

14 (1) Subject to section 15, the owner or operator of a mine shall collect, once a month, a grab sample of effluent from each final discharge point and determine whether the effluent is acutely lethal by conducting acute lethality tests on aliquots of each effluent sample in accordance with sections 14.1 to 14.3.

(3) Subsection 14(3) of the Regulations is replaced by the following:

(3) When collecting a grab sample of effluent for the purposes of subsection (1), the owner or operator of a mine shall

11 The Regulations are amended by adding the following after section 14.2:

Acute Lethality Test — Daphnia Magna

14.3 Unless the salinity value of the effluent is equal to or greater than four parts per thousand and the effluent is deposited into marine waters, the owner or operator of a mine shall, in addition to conducting the acute lethality test set out in section 14.1, determine whether the effluent is acutely lethal by conducting an acute lethality test in accordance with the procedures set out in section 5 or 6 of Reference Method EPS 1/RM/14.

12 (1) The portion of subsection 15(1) of the Regulations before paragraph (c) is replaced by the following:

15 (1) If an effluent sample is determined to be acutely lethal by an acute lethality test, the owner or operator of a mine shall

(2) Paragraphs 15(1)(a) and (b) of the Regulations are replaced by the following:

13 The Regulations are amended by adding the following after section 15:

15.1 Despite paragraph 15(1)(c), if an effluent sample is determined to be acutely lethal when tested using the acute lethality test set out in section 14.3, the owner or operator of a mine shall, without delay, collect the first grab sample required by paragraph 15(1)(b) and comply with the requirements of that paragraph.

14 (1) Subsections 16(1) to (3) of the Regulations are replaced by the following:

16 (1) The owner or operator of a mine may reduce the frequency of conducting an acute lethality test at a final discharge point to once in each calendar quarter if the effluent from that final discharge point is determined not to be acutely lethal by that acute lethality test for 12 consecutive months.

(2) For the purpose of determining whether that effluent is acutely lethal for the 12-month period referred to in subsection (1), the owner or operator of a mine shall use the results of the acute lethality tests conducted under subsection 14(1).

(3) The owner or operator of a mine shall notify the Minister of the Environment in writing at least 30 days before the reduction of the frequency of acute lethality testing.

(2) Subsection 16(5) of the Regulations is replaced by the following:

(5) If a grab sample is determined to be acutely lethal by an acute lethality test when the owner or operator of a mine is testing at the frequency prescribed in subsection (1), the owner or operator shall increase the frequency of conducting that test to the frequency prescribed in section 15 and conduct that test in accordance with that section.

(6) If the location of a final discharge point is changed, the owner or operator of a mine shall, at that final discharge point, increase the frequency of conducting all the acute lethality tests to the frequency prescribed in subsection 14(1) and conduct those tests in accordance with that subsection.

15 (1) Subsection 17(1) of the Regulations is replaced by the following:

17 (1) Unless the salinity value of the effluent is equal to or greater than four parts per thousand and the effluent is deposited into marine waters, the owner or operator of a mine shall conduct Daphnia magna monitoring tests in accordance with the procedure set out in section 5 or 6 of Reference Method EPS 1/RM/14 at the same time that the acute lethality tests are conducted under section 14, 15 or 16 of these Regulations.

(2) Section 17 of the Regulations and the heading before it are repealed.

16 (1) Section 18 of the Regulations is replaced by the following:

18 The owner or operator of a mine shall record without delay the data referred to in section 9.1 of Reference Method EPS 1/RM/10, section 8.1 of Reference Method EPS 1/RM/13 and section 8.1 of Reference Method EPS 1/RM/14 for all acute lethality tests and Daphnia magna monitoring tests that are conducted to monitor deposits from final discharge points.

(2) Section 18 of the Regulations is replaced by the following:

18 The owner or operator of a mine shall record without delay the data referred to in section 9.1 of Reference Method EPS 1/RM/10, section 8.1 of Reference Method EPS 1/RM/13 and section 8.1 of Reference Method EPS 1/RM/14 for all acute lethality tests that are conducted to monitor deposits from final discharge points.

17 Paragraph 19(3)(b) of the Regulations is replaced by the following:

18 (1) Subsection 19.1(1) of the Regulations is replaced by the following:

19.1 (1) With respect to the deleterious substances that are contained in the effluent deposited from each final discharge point, the owner or operator of a mine shall, for each month during which there is a deposit and during which samples are collected, record the monthly mean concentration

(2) Paragraph 19.1(1)(a) of the Regulations is replaced by the following:

19 (1) Subsection 20(1) of the Regulations is replaced by the following:

20 (1) With respect to the deleterious substances that are contained in the effluent deposited from each final discharge point, the owner or operator of a mine shall, for each month and for each calendar quarter during which there was a deposit and during which a sample is collected, record the loading

(2) Paragraph 20(1)(a) of the Regulations is replaced by the following:

20 (1) Paragraphs 21(2)(a) and (b) of the Regulations are replaced by the following:

(2) Paragraph 21(2)(f) of the Regulations is replaced by the following:

21 Section 22 of the Regulations is replaced by the following:

22 The owner or operator of a mine shall submit to the Minister of the Environment, not later than March 31 in each year, a report in the form set out in Schedule 6, that shall include the following:

22 (1) The portion of section 23 of the Regulations before paragraph (a) is replaced by the following:

23 Any report or information referred to in sections 7, 21 and 22 shall be submitted electronically in the format provided by the Department of the Environment, but the report or information shall be submitted in writing if

(2) Paragraph 23(b) of the English version of the Regulations is replaced by the following:

23 (1) The portion of subsection 24(1) of the Regulations before paragraph (a) is replaced by the following:

24 (1) The owner or operator of a mine shall notify an inspector without delay if the results of the effluent monitoring tests conducted under section 12 or 13, subsection 14(1) or section 15 or 16 indicate that

(2) Subsection 24(3) of the Regulations is repealed.

24 Sections 27 and 27.1 of the Regulations are replaced by the following:

27 The owner or operator of a mine shall keep all records, books of account or other documents required by these Regulations at the mine for a period of not less than five years, beginning on the day on which they are made, including

DIVISION 4

Tailings Impoundment Areas

Compensation Plan

27.1 (1) The owner or operator of a mine shall, before depositing a deleterious substance into a tailings impoundment area that is set out in Schedule 2, submit to the Minister of the Environment a compensation plan that includes the information described in subsection (2) and obtain that Minister’s approval of the plan.

(2) The purpose of the compensation plan is to offset the loss of fish habitat resulting from the deposit of any deleterious substance into the tailings impoundment area. It shall contain the following information:

(3) The owner or operator of a mine shall submit with the compensation plan an irrevocable letter of credit to cover the plan’s implementation costs, which letter of credit shall be payable upon demand on the declining balance of the implementation costs.

(4) The Minister of the Environment shall approve the compensation plan if it meets the requirements of subsection (2) and the owner or operator of a mine has complied with subsection (3).

(5) The owner or operator of a mine shall ensure that the compensation plan approved by the Minister of the Environment is implemented and, if the compensation plan’s purpose is not being achieved, the owner or operator shall inform the Minister of the Environment.

(6) If the compensation plan’s purpose is not being achieved, the owner or operator of a mine shall, as soon as practicable in the circumstances, identify and implement all necessary remedial measures to ensure that the purpose is achieved.

25 Section 29 of the Regulations and the headings before it are replaced by the following:

PART 3

Unauthorized Deposits

26 (1) Subsection 30(1) of the Regulations is replaced by the following:

30 (1) The owner or operator of a mine shall prepare an emergency response plan that describes the measures to be taken in respect of a deleterious substance within the meaning of subsection 34(1) of the Act to prevent any unauthorized deposit of such a substance or to mitigate the effects of such a deposit.

(2) Paragraphs 30(2)(a) to (c) of the Regulations are replaced by the following:

(3) Section 30 of the Regulations is amended by adding the following after subsection (4):

(4.1) The owner or operator of a mine shall, each time the emergency response plan is tested, record the following information and keep the record for at least five years:

(4.2) The owner or operator of a mine shall ensure that a copy of the most recent version of the emergency response plan is kept at the mine in a location that is readily available to the individuals who are responsible for implementing the plan.

27 (1) Section 31 of the Regulations is replaced by the following:

31 A report required by subsection 38(7) of the Act in respect of the unauthorized deposit of a deleterious substance shall contain the following information:

Acute Lethality Testing

31.1 (1) If an unauthorized deposit of a deleterious substance occurs, the owner or operator of a mine shall, without delay, collect a grab sample of effluent at the place where the deposit occurred and determine whether the effluent is acutely lethal by conducting tests on aliquots of each effluent sample in accordance with sections 14.1 and 14.2.

(2) Despite subsection (1), the owner or operator of a mine is not required to conduct those tests if they notify an inspector, without delay, that the deposit is an acutely lethal effluent.

(2) Subsection 31.1(1) of the Regulations is replaced by the following:

31.1 (1) If an unauthorized deposit of a deleterious substance occurs, the owner or operator of a mine shall, without delay, collect a grab sample of effluent at the place where the deposit occurred and determine whether the effluent is acutely lethal by conducting tests on aliquots of each effluent sample in accordance with sections 14.1 to 14.3.

28 Paragraph 32(1)(b) of the Regulations is replaced by the following:

29 Parts 5 and 6 of the Regulations are repealed.

30 Schedule 1 to the Regulations is repealed.

31 Schedule 3 to the Regulations is replaced by the Schedule 3 set out in Schedule 1 to these Regulations.

32 (1) Schedule 4 to the Regulations is amended by replacing the references after the heading “Schedule 4” with the following:

(Paragraph 4(1)(a), subsection 13(1), paragraph 13(3)(a), subparagraph 22(c)(i) and paragraph 24(1)(a))

(2) Schedule 4 to the Regulations is replaced by the Schedule 4 set out in Schedule 2 to these Regulations.

33 (1) Schedule 5 to the Regulations is replaced by the Schedule 5 set out in Schedule 3 to these Regulations.

(2) Schedule 5 to the Regulations is amended by replacing the references after the heading “Schedule 5” with the following:

(Subsections 7(1) and (3), subparagraphs 15(1)(a)(i) and(b)(i) and paragraph 32(1)(c))

(3) Subsection 4(1) of Schedule 5 to the Regulations is amended by adding “and” at the end of paragraph (n), by striking out “and” at the end of paragraph (o) and by repealing paragraph (p).

34 (1) Part 2 of Schedule 6 to the Regulations is replaced by the following:

PART 2

Test Results Respecting Each Final Discharge Point

1 Complete the following table with the monthly mean concentration for the deleterious substances set out in the table for each final discharge point and identify the location of the final discharge point.

2 Any measurement not taken because there was no deposit from the final discharge point shall be identified by the letters “NDEP” (No Deposit).

3 Any measurement not taken because no measurement was required in accordance with the conditions set out in section 12 or 13 of these Regulations shall be identified by the letters “NMR” (No Measurement Required).

Location of final discharge point:

Month

As
(mg/L)

Cu
(mg/L)

CN
(mg/L)

Pb
(mg/L)

Ni
(mg/L)

Zn
(mg/L)

SS
(mg/L)

Ra 226
(Bq/L)

Un-ionized ammonia (mg/L, expressed as Nitrogen (N))

Lowest
pH

Highest
pH

Effluent Volume (m3)

Jan.

                        

Feb.

                        

Mar.

                        

Apr.

                        

May

                        

June

                        

July

                        

Aug.

                        

Sept.

                        

Oct.

                        

Nov.

                        

Dec.

                        

(2) Parts 3 and 4 of Schedule 6 to the Regulations are replaced by the following:

PART 3

Results of Acute Lethality Tests and Daphnia Magna Monitoring Tests

Location of final discharge point:

Date Sample Collected


Results for Rainbow Trout Acute Lethality Tests
(mean percentage mortality in 100% effluent test concentration)

Results for Daphnia magna Monitoring Tests
(mean percentage mortality in 100% effluent test concentration)

Results for Threespine Stickleback Acute Lethality Tests
(mean percentage mortality in 100% effluent test concentration)
       
       
       
       
       
       
       
       
       
       
       

(3) Part 3 of Schedule 6 to the Regulations is replaced by the following:

PART 3

Results of Acute Lethality Tests

Location of final discharge point:

Date Sample Collected



Results for Rainbow Trout Acute Lethality Tests
(mean percentage mortality in 100% effluent test concentration)

Results for Daphnia magna Acute Lethality Tests
(mean percentage mortality in 100% effluent test concentration)

Results for Threespine Stickleback Acute Lethality Tests
(mean percentage mortality in 100% effluent test concentration)
       
       
       
       
       
       
       
       
       
       
       

35 Schedules 6.1 to 8 to the Regulations are repealed.

36 The Regulations are amended by replacing “authorization officer” with “Minister of the Environment” in the following provisions:

Transitional Provisions

37 (1) Despite subsection 8(1) of the Metal and Diamond Mining Effluent Regulations, the owner or operator of a mine that is subject to those Regulations on the day on which this section comes into force shall submit in writing to the Minister of the Environment the information referred to in paragraph 8(2)(c) of those Regulations not later than 60 days after the day on which this section comes into force.

(2) During the 12-month period beginning on the day on which this section comes into force, despite subsection 16(2) of the Metal and Diamond Mining Effluent Regulations, the owner or operator of a diamond mine may, for the purposes of determining whether effluent is acutely lethal for the 12-month period referred to in subsection 16(1) of those Regulations, use acute lethality data that was collected during any period of 12 consecutive months before the day on which this section comes into force, if the owner or operator submits a report to the Minister of the Environment that indicates that

(3) During the 12-month period beginning on the day on which section 14.3 of the Metal and Diamond Mining Effluent Regulations comes into force, despite subsection 16(2) of those Regulations, the owner or operator of a metal mine or diamond mine may, for the purposes of determining whether effluent is acutely lethal for the 12-month period referred to in subsection 16(1) of those Regulations, use acute lethality data that was collected during any period of 12 consecutive months before the day on which that section 14.3 comes into force, if the owner or operator submits a report to the Minister of the Environment that indicates that

38 (1) Despite section 10 of Schedule 5 to the Metal and Diamond Mining Effluent Regulations, the first study design of a diamond mine that is subject to those Regulations on June 1, 2018 may be submitted not later than the earlier of June 1, 2021 and the day on which a document that is equivalent to a study design is required to be submitted under provincial or territorial laws.

(2) In the case of a diamond mine in respect of which the first study design is submitted under subsection (1), the period referred to in subsection 11(1) of Schedule 5 to the Metal and Diamond Mining Effluent Regulations does not apply.

(3) In the case of a diamond mine that is subject to the Metal and Diamond Mining Effluent Regulations on June 1, 2018, the results of any studies conducted before the day on which the first study design is submitted may be used for the purpose of determining which biological monitoring studies are required to be conducted under section 9 of Schedule 5 to those Regulations if those results can be used for the purpose of meeting the requirements of section 12 of that Schedule.

(4) However, only information gathered — for the purpose of meeting the requirements of provincial or territorial laws — during the three-year period before the day on which the first study design is submitted may be used to determine the concentration of effluent, mercury and selenium for the application of subsections 9(1) and (2) of Schedule 5 to the Metal and Diamond Mining Effluent Regulations. If that information is used, paragraph 9(3)(a) of that Schedule does not apply.

(5) If the results of studies referred to in subsection (3) and the information referred to in subsection (4) are used in accordance with those subsections, the first study design shall include, in addition to the information referred to in section 10 of Schedule 5 to the Metal and Diamond Mining Effluent Regulations, the information referred to in paragraph 13(2)(d) or (e), as the case may be, of that Schedule, copies of and a summary of the results of the studies and an explanation — that includes supporting information — as to how the results and information can be used for the purposes of meeting the requirements of sections 9 and 12 of that Schedule.

(6) In the case of a diamond mine that is subject to the Metal and Diamond Mining Effluent Regulations on June 1, 2018, the effluent and water quality monitoring studies set out in Part 1 of Schedule 5 to those Regulations shall be started on the day on which the first study design is submitted.

(7) In the case of a diamond mine that is subject to the Metal and Diamond Mining Effluent Regulations on June 1, 2018, the results of sublethal toxicity tests conducted — for the purpose of meeting the requirements of provincial or territorial laws — during the three-year period before the day on which the first study design is submitted may be used for the application of subsection 6(3) of Schedule 5 to those Regulations, as if three years had elapsed, if those tests meet the requirements of subsection 5(1) of that Schedule. If those results are used, subsections 6(1) and (2) of that Schedule do not apply.

(8) If the results of sublethal toxicity tests are used in accordance with subsection (7), the information referred to in paragraphs 8(a), (c), (e) and (g) of Schedule 5 to the Metal and Diamond Mining Effluent Regulations, in relation to those tests, shall be submitted to the Minister of the Environment not later than the day on which the first study design is submitted and shall be accompanied by a summary of the results of the tests and an explanation — that includes supporting information — as to how the results can be used for the purposes of meeting the requirements of subsection 5(1) of that Schedule.

(9) In the case of a diamond mine that is subject to the Metal and Diamond Mining Effluent Regulations on June 1, 2018, the first interpretative report shall, despite subsection 12(1) of Schedule 5 to those Regulations, be submitted not later than 24 months after the day on which the first study design is submitted and shall contain, in addition to the information referred to in section 12 of that Schedule, the information referred to in paragraph 15(c) of that Schedule.

39 In the case of a metal mine that is subject to the Metal and Diamond Mining Effluent Regulations on June 1, 2018,

Coming into Force

40 (1) Subject to subsection (2), these Regulations come into force on June 1, 2018, but if they are registered after that day, they come into force on the day on which they are registered.

(2) Subsections 2(4) and (6) and 3(2) and (3), section 4, subsections 9(2) to (4) and 10(2) and (3), section 11, subsection 12(2), section 13 and subsections 15(2), 16(2), 18(2), 19(2), 27(2), 32(2), 33(2) and (3) and 34(1) and (3) come into force on June 1, 2021.

SCHEDULE 1

(Section 31)

SCHEDULE 3

(Subsections 1(1) and 12(2) and subsection 4(2) of Schedule 5)

Analytical Requirements for Metal or Diamond Mining Effluent

Table 1

Item

Column 1


Deleterious Substance/pH/temperature

Column 2


Precisionnote1

Column 3


Accuracynote2

Column 4


Method Detection Limit (MDL)

1

Arsenic

10%

100 ± 10%

0.0025 mg/L

2

Copper

10%

100 ± 10%

0.001 mg/L

3

Cyanide

10%

100 ± 10%

0.005 mg/L

4

Lead

10%

100 ± 10%

0.0005 mg/L

5

Nickel

10%

100 ± 10%

0.0125 mg/L

6

Zinc

10%

100 ± 10%

0.010 mg/L

7

Suspended Solids

15%

100 ± 15%

2.000 mg/L

8

Radium 226

10%

100 ± 10%

0.01 Bq/L

9

Total ammonia

10%

100 ± 10%

0.05 mg/L expressed as nitrogen (N)

10

pH

0.1 pH
unit

0.1 pH
unit

Not Applicable

11

Temperature

10%

± 0.5 °C

Not Applicable

Table 2

Item

Column 1


Substances/hardness/alkalinity/electrical conductivity

Column 2


Precisionnote3

Column 3


Accuracynote4

Column 4


Method Detection Limit (MDL)

1

Aluminum

10%

100 ± 10%

0.005 mg/L

2

Cadmium

10%

100 ± 10%

0.000045 mg/L

3

Chloride

10%

100 ± 10%

60 mg/L

4

Chromium

10%

100 ± 10%

0.00445 mg/L

5

Cobalt

10%

100 ± 10%

0.00125 mg/L

6

Iron

10%

100 ± 10%

0.15 mg/L

7

Manganese

10%

100 ± 10%

0.005 mg/L

8

Mercury

10%

100 ± 10%

0.00001 mg/L

9

Molybdenum

10%

100 ± 10%

0.0365 mg/L

10

Nitrate

10%

100 ± 10%

1.46835 mg/L, expressed as nitrogen (N)

11

Phosphorus

10%

100 ± 10%

0.05 mg/L

12

Selenium

10%

100 ± 10%

0.0005 mg/L

13

Sulphate

10%

100 ± 10%

0.6 mg/L

14

Thallium

10%

100 ± 10%

0.0004 mg/L

15

Uranium

10%

100 ± 10%

0.0075 mg/L

16

Total ammonia

10%

100 ± 10%

0.05 mg/L expressed as nitrogen (N)

17

Hardness

10%

100 ± 10%

1 mg/L

18

Alkalinity

10%

100 ± 10%

2 mg/L

19

Electrical Conductivity

10%

100 ± 10%

1 μS/cm

SCHEDULE 2

(Subsection 32(2))

SCHEDULE 4

(Subsection 1(2), subparagraphs 4(1)(a)(i) and (ii), subsection 13(1), paragraph 13(3)(a), subparagraph 22(c)(i) and paragraph 24(1)(a))

Maximum Authorized Concentrations of Prescribed Deleterious Substances

Table 1

Item

Column 1



Deleterious Substance

Column 2

Maximum Authorized
Monthly Mean
Concentration

Column 3


Maximum Authorized Concentration in a
Composite Sample

Column 4


Maximum Authorized Concentration in a
Grab Sample

1

Arsenic

0.10 mg/L

0.15 mg/L

0.20 mg/L

2

Copper

0.10 mg/L

0.15 mg/L

0.20 mg/L

3

Cyanide

0.50 mg/L

0.75 mg/L

1.00 mg/L

4

Lead

0.08 mg/L

0.12 mg/L

0.16 mg/L

5

Nickel

0.25 mg/L

0.38 mg/L

0.50 mg/L

6

Zinc

0.40 mg/L

0.60 mg/L

0.80 mg/L

7

Suspended Solids

15.00 mg/L

22.50 mg/L

30.00 mg/L

8

Radium 226

0.37 Bq/L

0.74 Bq/L

1.11 Bq/L

9

Un-ionized ammonia

0.50 mg/L expressed as nitrogen (N)

Not applicable

1.00 mg/L expressed as nitrogen (N)

NOTE: The concentrations for items 1 to 8 are total values.

Table 2

Item

Column 1



Deleterious Substance

Column 2

Maximum Authorized
Monthly Mean
Concentration

Column 3


Maximum Authorized Concentration in a
Composite Sample

Column 4


Maximum Authorized Concentration in a
Grab Sample

1

Arsenic

0.30 mg/L

0.45 mg/L

0.60 mg/L

2

Copper

0.30 mg/L

0.45 mg/L

0.60 mg/L

3

Cyanide

0.50 mg/L

0.75 mg/L

1.00 mg/L

4

Lead

0.10 mg/L

0.15 mg/L

0.20 mg/L

5

Nickel

0.50 mg/L

0.75 mg/L

1.00 mg/L

6

Zinc

0.50 mg/L

0.75 mg/L

1.00 mg/L

7

Suspended Solids

15.00 mg/L

22.50 mg/L

30.00 mg/L

8

Radium 226

0.37 Bq/L

0.74 Bq/L

1.11 Bq/L

9

Un-ionized ammonia

0.50 mg/L expressed as nitrogen (N)

Not applicable

1.00 mg/L expressed as nitrogen (N)

NOTE: The concentrations for items 1 to 8 are total values.

SCHEDULE 3

(Subsection 33(1))

SCHEDULE 5

(Subsections 7(1) and (3) and paragraphs 15(1)(a) and (b) and 32(1)(c))

Environmental Effects Monitoring Studies

Interpretation

1 (1) The following definitions apply in this Schedule.

biological monitoring study means a study referred to in section 9. (étude de suivi biologique)

effect on fish tissue from mercury means a concentration of total mercury that exceeds 0.5 μg/g wet weight in fish tissue that is taken in an exposure area and that is statistically different from and higher than the concentration of total mercury in fish tissue that is taken in a reference area. (effet du mercure sur les tissus de poissons)

effect on the benthic invertebrate community means a statistical difference between data referred to in subparagraph 12(1)(e)(ii) and paragraph 12(1)(f) from a study respecting the benthic invertebrate community conducted in

effect on the fish population means a statistical difference between data relating to the indicators referred to in subparagraph 12(1)(e)(i) from a study respecting fish population conducted in

exposure area means all fish habitat and waters frequented by fish that are exposed to effluent. (zone exposée)

fish has the same meaning as in section 2 of the Act but does not include parts of fish, parts of shellfish, parts of crustaceans or parts of marine animals. (poisson)

reference area means water frequented by fish that is not exposed to effluent and that has fish habitat that, as far as practicable, is most similar to that of the exposure area. (zone de référence)

sampling area means the area within an exposure or reference area where representative samples are collected. (zone d’échantillonnage)

(2) For the purpose of this schedule, critical effect size, in relation to an effect indicator set out in column 1 of the following table, means the critical effect size set out in column 2:

Item

Column 1

Effect Indicator

Column 2

Critical Effect Size
 

For Fish Population

(% of reference mean)

1

Total body weight at age

± 25%

2

Gonad weight at total body weight

± 25%

3

Liver weight at total body weight

± 25%

4

Total body weight at length (condition)

± 10%

5

Age

± 25%
 

For Benthic Invertebrate Community

(Standard Deviation Units)

6

Density

± 2 SD

7

Simpson’s Evenness Index

± 2 SD

8

Taxa Richness

± 2 SD

2 Environmental effects monitoring studies consist of the effluent and water quality monitoring studies set out in Part 1 and the biological monitoring studies set out in Part 2.

PART 1

Effluent and Water Quality Monitoring Studies

Required Studies

3 Effluent and water quality monitoring studies consist of effluent characterization, sublethal toxicity testing and water quality monitoring.

Effluent Characterization

4 (1) Effluent characterization is conducted by analyzing a sample of effluent and recording the hardness, alkalinity, electrical conductivity and temperature of the sample and the concentrations, in total values, of the following substances:

(2) The analysis shall comply with the analytical requirements set out in Table 2 of Schedule 3.

(3) The effluent characterization shall be conducted once per calendar quarter on an aliquot of effluent sample collected under sections 12 and 13 of these Regulations from each final discharge point at least one month after the sample on which the previous characterization was conducted.

(4) The recording of the concentration of mercury in effluent referred to in paragraph (1)(d) may be discontinued if that concentration is less than 0.10 µg/L in 12 consecutive samples collected under subsection (3).

(5) Quality assurance and quality control measures shall be implemented that will ensure the accuracy of the effluent characterization data.

Sublethal Toxicity Testing

5 (1) Sublethal toxicity testing shall, in the case of effluent deposited into fresh waters, be conducted using the following test methodologies, as amended from time to time:

(2) Sublethal toxicity testing shall, in the case of effluent deposited into marine or estuarine waters, be conducted for fish species, invertebrate species and algal species using the following test methodologies, as amended from time to time, as applicable to each species:

(3) The sublethal toxicity tests shall be conducted on aliquots of the same effluent sample collected for effluent characterization collected from the mine’s final discharge point that has potentially the most adverse environmental impact on the environment, taking into account

6 (1) The sublethal toxicity tests shall be conducted on the species referred to in subsections 5(1) and (2) two times each calendar year for three years and each test shall be conducted on an aliquot of effluent sample collected at least one month after the collection of the sample used in the previous tests.

(2) However, if effluent is discharged for 31 consecutive days or less in a calendar year, the tests may be conducted only once in that year.

(3) After three years, the tests shall be conducted once per calendar quarter on the species referred to in subsection 5(1) or (2), as the case may be, whose results for all the tests conducted in accordance with subsections (1) and (2) — including such tests conducted in addition to the number required by those subsections — produce the lowest geometric mean, taking into account the inhibition concentration that produces a 25% effect or an effective concentration of 25%.

Water Quality Monitoring

7 (1) Water quality monitoring is conducted by

(2) The water quality monitoring shall be conducted

Information Related to Effluent and Water Quality Monitoring Studies

8 The following information in relation to the effluent and water quality monitoring studies conducted during a calendar year under sections 4 to 7 shall be submitted to the Minister of the Environment not later than March 31 of the following year:

PART 2

Biological Monitoring Studies

Required Studies

9 (1) Biological monitoring studies shall include

(2) If the results of the previous two biological monitoring studies are used to lift the requirement to conduct a study under any of paragraphs (1)(a), (b), (c) or (e), the earlier of those two studies shall not be used to lift a requirement to conduct a subsequent study.

(3) For the purposes of subsection (1), the concentration of effluent shall be determined or the effluent characterization shall be carried out, as the case may be,

DIVISION 1

First Biological Monitoring Studies

First Study Design

10 A first study design shall be submitted to the Minister of the Environment not later than 12 months after the day on which a mine becomes subject to section 7 of these Regulations. It shall contain

First Biological Monitoring Studies

11 (1) Subject to subsection (2), the first biological monitoring studies shall start not earlier than six months after the day on which the first study design is submitted under section 10, and shall be conducted in accordance with that study design.

(2) If the owner or operator is unable to follow the study design due to circumstances beyond their control, the owner or operator shall inform the Minister of the Environment without delay of those circumstances and of the changes that are made to the study.

First Interpretative Report

12 (1) A first interpretative report shall be submitted to the Minister of the Environment not later than 36 months after the day on which the mine becomes subject to section 7 of these Regulations. It shall contain

(2) For the purpose of the study respecting fish population, the magnitude of the effect for an effect indicator is to be calculated using the following formula:

(A − B)/B × 100

where

A is

B is

(3) For the purposes of the study respecting the benthic invertebrate community, the magnitude of the effect for an effect indicator is to be calculated using the following formula:

(A − B)/C

where

A is the mean value for the indicator in the exposure area;

B is the mean value for the indicator in the reference area; and

C is the standard deviation for the indicator in the reference area.

DIVISION 2

Subsequent Biological Monitoring Studies

Subsequent Study Designs

13 (1) Each subsequent study design shall be submitted to the Minister of the Environment

(2) Each subsequent study design shall include

Conduct of Subsequent Biological Monitoring Studies

14 (1) Subject to subsection (2), the subsequent biological monitoring studies shall be conducted in accordance with the study design submitted under section 13.

(2) If the owner or operator is unable to follow the study design due to circumstances beyond their control, the owner or operator shall inform the Minister of the Environment without delay of those circumstances and the changes that are made to the study.

Content of Subsequent Interpretative Reports

15 Subject to subsection 16(3), each subsequent study design shall be followed by a subsequent interpretative report that includes

Submission of Subsequent Interpretative Reports

16 (1) Subject to subsection (2), each subsequent interpretative report shall be submitted to the Minister of the Environment not later than 36 months after the day on which the previous interpretative report was required to be submitted or would have been required to be submitted but for the application of subsection 16(3).

(2) The interpretative report following a resumption of effluent discharge referred to in subsection 17(2) shall be submitted not later than 36 months after the day on which effluent discharge resumes.

(3) An interpretative report is not required in respect of a 36-month period if no biological monitoring studies are required in respect of that period.

Cessation of Discharge

17 (1) The owner or operator of a mine that has ceased discharging effluent for a period of at least 36 months is not required to conduct environmental effects monitoring studies so long as the period of cessation continues.

(2) The requirement to conduct environmental effects monitoring studies shall resume, as the case may be, on

(3) The owner or operator shall notify the Minister of the Environment in writing without delay

(4) Any biological monitoring study that began before the end of the 36-month period shall be completed and followed by an interpretative report in accordance with section 15.

DIVISION 3

Final Studies

General

18 (1) If an owner or operator of a mine has provided a notice referred to in paragraph 32(1)(a) of these Regulations to the Minister of the Environment, the owner or operator shall

(2) The final study design shall be submitted to the Minister of the Environment not later than six months after the day on which the notice referred to in paragraph 32(1)(a) of these Regulations is received. It shall include the information required under subsection 13(2).

Conduct of Final Biological Monitoring Studies

19 (1) Subject to subsection (2), the final biological monitoring studies shall be conducted in accordance with the study design submitted under subsection 18(2) not earlier than six months after the day on which the final study design has been submitted.

(2) If the owner or operator is unable to follow the study design due to circumstances beyond their control, the owner or operator shall inform the Minister of the Environment without delay of those circumstances and the changes that are made to the study.

Content of Final Interpretative Report

20 The final interpretative report shall be submitted to the Minister of the Environment not later than three years after the day on which the notice referred to in paragraph 32(1)(a) of these Regulations is received and shall include the information referred to in paragraphs 15(a) to (c).

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: Reported results and analysis from data collected under the Metal Mining Effluent Regulations (the MMER) indicate a reduction of effluent that is acutely lethal to fish since the regulations were established in 2002 and a high level of industry compliance with regulatory limits. Despite this reduction, this data also indicates the presence of effects on fish and fish habitat from metal mining effluent (e.g. statistical differences in fish liver size or rates of reproduction). In addition, the diamond mining sector, which generates effluent containing deleterious substances, was not covered by the MMER.

Description: The Regulations Amending the Metal Mining Effluent Regulations (the Amendments) strengthen effluent quality standards, improve the efficiency of environmental effects monitoring (EEM) without compromising environmental protection, and make diamond mines subject to the MMER.footnote 2 The Amendments also change the long title of the MMER to the Metal and Diamond Mining Effluent Regulations, hereafter referred to as the MDMER, and include changes to clarify the existing text.

Cost-benefit statement: The Amendments will reduce the amount of harmful substances entering receiving water from affected mines (e.g. arsenic, cyanide, and lead) which is expected to have a positive impact on fish and fish habitat. Improved EEM data collection will strengthen government oversight of affected mines effluent quality. In 2016 present value, the Amendments are expected to generate incremental costs of $58.1 million to the metal and diamond mining sectors (industry) and the Government of Canada (the Government), and cost savings of $9.5 million to the metal mining sector. A net incremental cost of $48.6 million is expected for industry and the Government over the 2018 to 2027 time-frame of analysis.

“One-for-One” Rule and small business lens: The Amendments are considered an “IN” under the Government’s “One-for-One” Rule. For both metal and diamond mines, the net increase in annualized administrative costs is approximately $3,937, or $27 per mine (2012 Canadian dollars).footnote 3 The small business lens does not apply to the Amendments as none of the existing metal or diamond mines are considered small businesses.

Domestic and international coordination and cooperation: The MMER established minimum national baseline mining effluent standards in 2002. The Amendments aim to improve these standards and align them with provincial and territorial standards, where possible. The Amendments establish a clear regulatory framework for diamond mines by making them subject to the regulation. The Amendments do not have an impact on any international agreement, obligation, or voluntary standard.

Background

Mining operations produce waste (e.g. effluent, tailings, and waste rock) that can contain harmful or “deleterious” substances. The Fisheries Act, under subsection 36(3), prohibits the deposit of deleterious substances in water frequented by fish (known as the “general prohibition”) unless authorized by a regulation, such as the MMER.

The MMER authorizes the release of certain deleterious substances from metal mines into fish-frequented waters, provided that the concentration of these substances does not exceed the prescribed limits and the effluent is not acutely lethal to fish.footnote 4 Since the MMER were introduced in 2002, reported results have shown that the metal mining sector has maintained over 95% compliance with prescribed limits and that over 95% of effluent from the sector is not acutely lethal to fish.

The MMER also include provisions for the authorization of mine waste disposal in fish-frequented waters for the purposes of a tailings impoundment area. This authorization requires that these water bodies be added, by the Governor in Council, to Schedule 2: Tailings Impoundment Areas (Schedule 2) of the MMER. Also prescribed are performance measurement and evaluation requirements for EEM, which include effluent and receiving water quality monitoring and biological monitoring studies (e.g. fish population studies and benthic invertebrate community studies). The MMER also require that effluent that contains deleterious substances be released through a final discharge point, which enables the owner of a mine to exercise control over and monitor the quality of the effluent to ensure that it meets the conditions of deposit. There are approximately 130 metal mines in Canada subject to the MMER, footnote 5 and 36 bodies of water listed on Schedule 2 as of October 25, 2017.

Since 2002, the Department of the Environment (the Department) has conducted national assessments of EEM data. These assessments have shown environmental effects around some mines. For example, the 2015 assessment found that 62 of the 130 regulated metal mines had confirmed effectsfootnote 6 on fish, fish habitat, and the use of fish by humans. One mine confirmed no effects while the other 67 metal mines had not yet confirmed effects. This assessment also indicates that effluent has affected the survival, growth, reproduction, liver size and condition of fish.footnote 7

The Canadian diamond mining sector has grown from one mine in 2002, when the MMER came into effect, to five mines by the end of 2017. Prior to the MDMER coming into force, this sector was subject to the general prohibition of the Fisheries Act, which prohibits the deposit of a deleterious substance into waters frequented by fish unless authorized by a regulation. While these mines are also subject to applicable provincial/territorial regulatory effluent standards, without a federal regulation authorizing these deposits, the diamond mining sector faces uncertainty regarding its compliance with the Fisheries Act general prohibition.

Issues

Reported results and analysis from data collected under the MMER indicate a reduction of effluent that is acutely lethal to fish since the regulations were established in 2002 and a high level of industry compliance with regulatory limits. Despite this reduction, this data also indicates the presence of effects on fish and fish habitat from metal mining effluent (e.g. statistical differences in fish liver size or rates of reproduction). In addition, the diamond mining sector, which generates effluent containing deleterious substances, was not covered by the MMER.

Objectives

The objectives of the Amendments are to reduce the risks of the negative effects of mines on fish and fish habitat, improve the efficiency of certain performance measurement and evaluation requirements, and provide regulatory clarity regarding releases of effluent to fish-frequented water bodies for diamond mines.

Description

The Amendments strengthen effluent quality standards with the goal of reducing risks to fish and fish habitat. The Amendments include adjustments to performance measurement and evaluation requirements to improve the efficiency of EEM, without compromising environmental protection. The Amendments also make diamond mines subject to the MMER and include changes that clarify the existing text. The title of the MMER is changed to the Metal and Diamond Mining Effluent Regulations (MDMER).

The majority of the Amendments come into force on June 1, 2018. Several provisions, such as the changes to the concentration limits for the prescribed deleterious substances, the addition of un-ionized ammonia to the list of prescribed deleterious substances, and the requirement that effluent not be acutely lethal to Daphnia magna come into force three years later, on June 1, 2021.

Authorized limits of prescribed deleterious substances

Beginning on June 1, 2021, the Amendments establish more stringent limits for existing metal mines on arsenic, cyanide, and lead as well as add new limits for un-ionized ammonia. For these mines, the Amendments do not change the limits for copper, nickel, zinc, total suspended solids, or Radium-226. For new mines that become subject to the MDMER on June 1, 2021, or recognized closed mines that reopen after this date, the Amendments impose more stringent limits for arsenic, copper, cyanide, lead, nickel, and zinc, as well as introduce limits for un-ionized ammonia.

Non-acute lethality requirements

On June 1, 2021, the Amendments require that mine effluent not be acutely lethal to Daphnia magna for mines to maintain their authority to deposit. Daphnia magna is a small aquatic crustacean that is a food source for many fish and is sensitive to different substances than rainbow trout, which is already used to determine acute lethality in the MMER. An effluent is considered acutely lethal to Daphnia magna if the effluent at 100% concentration kills more than 50% of the Daphnia magna subjected to the effluent over a 48-hour period. The Amendments provide flexibility, so that a first acute lethality failure for Daphnia magna would not result in a loss of the authority to deposit, while subsequent failures would.

The Amendments also allow for the use of a marine species, the threespine stickleback, to test for acute lethality as an alternative to rainbow trout when saline effluent is being released into marine environments. The Amendments incorporate by reference Biological Test Method: Reference Method for Determining Acute Lethality Using Threespine Stickleback. Mines that meet this scenario would not be required to test for Daphnia magna, as it is a fresh-water species. A test method is under development for a marine species alternative to Daphnia magna.

Environmental effects monitoring requirements

Several of the amendments will improve the efficiency of the EEM performance measurement and evaluation requirements, without compromising environmental protection.

The Amendments strengthen the MMER’s performance measurement and evaluation requirements by adding a fish tissue study for selenium, as well as new substances to be monitored (i.e. chloride, chromium, cobalt, sulphate, thallium, uranium, phosphorus, and manganese). The Amendments also focus sub lethal toxicity testing on the most sensitive test species, while increasing testing frequency for improved data. In addition, the Amendments focus biological monitoring studies on aquatic communities facing situations of higher risk for environmental effects. The mercury in fish tissue thresholdfootnote 8 is also amended to reduce the number of studies required in situations with low risk of effect on fish tissue.

The Amendments add conditions allowing mines with effluent presenting lower risks of having effects on fish and fish habitat to be exempt from some biological monitoring requirements.

Under the MMER, metal mines were required to conduct a magnitude and geographic extent (M&E) study when their previous two biological monitoring studies showed an effect on fish, fish habitat, or the use of fish by humans. The M&E study was required before conducting a study to determine the cause of each confirmed effect. The Amendments remove the requirement for mines to conduct M&E studies, allowing mines to progress more quickly into determining the cause of their confirmed effects.

Expansion of the scope of the MMER to diamond mines

Beginning on June 1, 2018, the Amendments expand the MMER to cover the diamond mining industry. All of the provisions applicable to metal mines also apply to diamond mines, including provisions that allow for the use of fish-frequented waters for tailings impoundment areas (i.e. Schedule 2). The Department is assessing waterbodies used for mine waste to determine if a Schedule 2 listing would be required to be in compliance with the MDMER.

Prior to the MDMER coming into force, this sector has been subject to the general prohibition of the Fisheries Act, while also being subject to applicable provincial/territorial regulatory effluent standards. Without a federal regulation authorizing these deposits, the diamond mining sector faces uncertainty regarding its compliance with the Fisheries Act general prohibition. Expanding the scope of the MMER to diamond mines provides regulatory clarity.

Regulatory and non-regulatory options considered

The Department regulates effluent discharges from metal mines under the MMER. It considered maintaining this regulatory business as usual scenario or updating the regulatory requirements as defined in the Amendments. A non-regulatory approach could not be considered, as the Fisheries Act does not allow for non-regulatory instruments to authorize the deposit of deleterious substances.

Business as usual scenario

The business as usual scenario (hereinafter referred to as “BAU”) approach assumes no changes to the MMER. This approach was rejected since governments, industry, and other stakeholders recognize that the MMER require updating and strengthening. Under this approach, the Department would miss an opportunity to tighten effluent concentration limits, and improve the monitoring and management of metal and diamond mining effluent discharged into fish-frequented waters. Diamond mines would face continued regulatory uncertainty vis-à-vis effluent discharged to fish-frequented waters while subject to a mix of provincial and territorial permits.

Regulatory approach under the Fisheries Act

The Amendments build on the existing regulatory approach, which sets national minimum standards for effluent quality for metal mining sectors, while providing a science-based method for assessing effects on fish and fish habitat through the collection of EEM data.

Adherence to more stringent limits for the prescribed deleterious substances is expected to result in reduced concentrations of these deleterious substances discharged to surface waters in Canada. The Amendments also provide diamond mines with regulatory clarity and provisions for tailings impoundment areas in fish-frequented waters. As a result, the Department took a regulatory approach under the Fisheries Act.

Benefits and costs

Compliance with the amended effluent limits is expected to reduce the amount of harmful substances entering receiving waters from mines. It is anticipated that this will have positive impacts for fish and fish habitat. Improved EEM data collection will strengthen government oversight of effluent quality.

There will be new costs for diamond mines subject to the Amendments, and additional costs to the metal mining sector. It is expected, however, that changes to EEM requirements will generate cost savings (benefits) for metal mines, including focussing monitoring efforts on situations of higher risk of threats to fish and fish habitat.

The costs and benefits of the Amendments were assessed in accordance with the Canadian Cost-Benefit Analysis Guide published by the Treasury Board of Canada Secretariat (TBS). The expected impacts of the Amendments are presented in the logic model (Figure 1) below.

Figure 1: Logic model for the analysis of the Amendments

Compliance with
the Amendments

→

Reduction in concentration of deleterious substances released

→

Improved
effluent quality

→

Reduced risk to fish
and fish habitat

→

Reduced acute lethality of effluent

→

→

Improved efficiency of EEM requirements

→

Improved data  collection

→

Improved knowledge

 

→

EEM compliance and administrative
cost savings
(for metal mines)

→

Industry savings
       

→

Compliance and administrative costs (for metal and diamond mines)

→

Industry and
Government costs

→

Government administrative costs

→

The analysis of the incremental costs and benefits was conducted comparing the BAU and regulatory scenarios. For metal mines, the BAU scenario assumes that mines are compliant with the MMER prior to the Amendments, while the regulatory scenario assumes that mines are compliant with the MDMER. For diamond mines, the BAU scenario assumes that mines are subject to the general prohibition of the Fisheries Act, and to provincial or territorial requirements, while the regulatory scenario assumes that mines are compliant with the MDMER.

The Amendments will be phased in, with some changes coming into force on June 1, 2018, and the rest on June 1, 2021. The analytical time frame begins in the first year of regulatory implementation, 2018, and runs through to 2027. The Department considers the 10-year time frame to be sufficient for analyzing the impacts of the Amendments.

Based on an analysis of historical data, it is expected that 25 metal mines that are subject to the MMER at the coming into force of the Amendments will be required to make changes to their treatment methods to comply with the Amendments. These include 8 mines affected by the more stringent concentration limits for the prescribed deleterious substances (i.e. arsenic, cyanide, and un-ionized ammonia) and 19 mines impacted by the new Daphnia magna requirements. Some mines may be impacted by both the more stringent concentration limits and the new Daphnia magna requirements. Consequently, the Amendments are expected to generate environmental benefits from these mines by improving their effluent quality. For the remaining mines, historical data indicate that they should be able to meet the provisions for all of the prescribed deleterious substances and Daphnia magna without making changes to their current treatment operations. It was also assumed that new mines would adopt the best technology available to treat effluent under the BAU scenario, and would therefore meet the provisions.

The environmental benefits of the Amendments could not be easily quantified due to the site-by-site level of information required to model the impacts, and the Departmental capacity needed to conduct such assessments. However, these environmental benefits exist and were assessed qualitatively, which is in accordance with Treasury Board Secretariat guidance for a proposal of this magnitude where data is not readily available. footnote 9

Unless stated differently, costs and cost savings are monetized in 2016 Canadian dollars and discounted at a 3% rate. footnote 10 The analysis includes growth rates for metal and diamond mines in Canada, based on historical trends. Metal mines subject to the MDMER are forecast to grow at an annual rate of 3%, while diamond mines subject to the MDMER are forecast to grow at an annual rate of 5%. It is estimated that in 2018, there will be 141 metal and 5 diamond mines, and by 2027, there will be 184 metal and 8 diamond mines. Mines subject to the MDMER also include mines that are closed, under care and maintenance, or under development.

Environmental and societal benefits

The amended effluent quality standards and the incorporation of diamond mines are expected to yield incremental environmental benefits. The changes to the EEM requirements will improve data collected by the Department, which will strengthen government oversight of effluent quality and reduce the risks to fish and fish habitat.

Effluent that contains deleterious substances and is being released into fish-frequented waterbodies may only be released through a final discharge point, so that it can be monitored to ensure compliance with the regulation and therefore safeguard fish and fish habitat. One diamond mine is expected to require the installation of infrastructure (such as a weir or dam) to release effluent through a final discharge point. A second mine may require similar infrastructure in order to comply with the MDMER.

Analytical framework for environmental benefits analysis

There are expected to be incremental environmental benefits resulting from more stringent concentration limits for arsenic, cyanide, and un-ionized ammonia; non-acute lethality requirements for Daphnia magna; and a reduced number of fish and benthic organisms required to be killed for EEM purposes.

Reduced concentrations of deleterious substances (e.g. arsenic, cyanide, and un-ionized ammonia) in mining effluent are expected to increase the quality and/or quantity of natural assets. These include land, water, air, biosphere and ecosystem, as well as organic and inorganic minerals. There are many benefits to Canadian society associated with the protection of a natural asset. These benefits are called ecological goods and services (EG&S), and are often assessed in a regulatory analysis using a total economic value (TEV) framework, which represents the range of all potential economic values to society derived from a natural asset. The TEV framework includes direct and indirect use values (e.g. fish, flood control), option value (i.e. the value of retaining the option of possible future uses associated with the asset), and non-use values (i.e. the value of knowing the asset exists). The TEV framework, as well as standard approaches to economic valuation of EG&S, have been recognized and accepted by the Supreme Court (British Columbia v. Canadian Forest Products Ltd., 2004).

Figure 2 illustrates the effect pathway to assess the incremental benefits of the regulatory scenario as compared to the base case scenario from a societal perspective. Due to the absence of comprehensive site-specific biophysical data on the extent to which the Amendments will improve natural assets a quantitative analysis was not possible, therefore, natural assets and EG&S were described qualitatively.

The benefits analysis is organized according to the effect pathway. First, affected receiving waters were identified to determine the area of analysis. Next, natural assets in the area of analysis were identified, and biophysical changes to these assets that would be expected from the Amendments were qualitatively described. Finally, the primary EG&S flowing from these natural assets were identified and described. Economic values from literature were provided as an example to illustrate the potential economic value society would derive from improvements to these EG&S.

Figure 2: Effect pathway for the Amendmentsfootnote 11

Amendments

→

Identification of affected receiving waters

→

Identification of changes to natural assets

→

Identification of changes to EG&S

→

Identification of economic values of changes to EG&S
Identification of affected receiving waters

For the purposes of this analysis, waters that receive metal mining effluent that travel downstream are referred to throughout this analysis as “receiving waters.” Based on historical performance, there are 25 affected mines expected to make incremental investments or changes in order to comply with two of the Amendments: more stringent limits for prescribed deleterious substances and non-acute lethality to Daphnia magna. Compliance of these 25 affected mines with the Amendments is expected to result in improvements to corresponding receiving waters, and to associated natural assets and ecological goods and services (EG&S).

Based on departmental analysis, some incremental benefits are expected if the installation of infrastructure by two diamond mines is required so that effluent can be released through a final discharge point. If infrastructure is required, benefits may include centralizing the release of effluent, improving data collection and reducing the concentration of deleterious substances in effluent.

There are no expected incremental benefits for the other three diamond mines, as their effluent is released through existing final discharge points and is expected to be at or below the Schedule 4 effluent limits and to be non-acutely lethal to Daphnia magna and rainbow trout.footnote 12 All diamond mines will also gain regulatory clarity concerning the authority to deposit under the Fisheries Act.

The benefits analysis uses a subset of 11 of the affected mines as an example of the expected natural assets and EG&S. There could be similar incremental improvements at the remaining affected mines, but this would depend on their site-specific natural assets and EG&S.

Identification of expected affected natural assets

Deleterious substances in mining effluent that are discharged to surface waters can impact natural assets, as these substances cascade through aquatic and wetland ecosystems. Accumulation of deleterious substances (e.g. arsenic) in water and/or sediment can travel along the food chain through primary producers (algae, phytoplankton, or submerged and emergent plants), which are then consumed by primary consumers (benthic, water-column invertebrates, or other herbivores), which are then consumed by secondary consumers (fish, birds, mammals), and then finally tertiary consumers (humans, other carnivores). Alternatively, deleterious substances can be ingested directly from water or sediment by animals and humans.

Natural assets within, and connected to the receiving waters at the subset of 11 affected mines have been identified to the extent possible given the data and capacity available for analysis. These natural assets are expected to deliver incremental benefits due to mines complying with the Amendments.

It is expected that the Amendments will reduce the concentration of deleterious substances in receiving waters at affected mines. Particularly, receiving waters at four affected mines would be improved from reduced concentrations of arsenic, which is an accumulating substance in organisms.

While the MMER and the Amendments do not regulate the quantity of effluent released by metal mines, a reduction in the concentration of deleterious substances is expected to lead to a corresponding reduction in overall loading of deleterious substances in mines’ receiving waters. Given the interconnectedness of surface and groundwater, receiving waters with reduced concentrations of deleterious substances are expected to transfer to and reduce deleterious substances in groundwater.

Three national assessments of EEM data report that the deposit of effluent from metal mines into Canadian waters can have negative effects on fish and fish habitat in the receiving environment due to the presence of deleterious substances. The expected reduction in concentrations of arsenic, cyanide, and un-ionized ammonia in receiving waters is expected to reduce negative effects of effluent on fish and fish habitat. Additionally, it is expected that some of the EEM requirements to streamline testing would reduce the number of fish required to be killed for monitoring purposes (e.g. exempting non-discharging mines from conducting biological monitoring).

Effluent is deposited in both fresh and marine receiving waters. Some aquatic species present in freshwater receiving waters of the affected mines are northern pike and brook trout, while marine species may include groundfish and shellfish. Marine receiving waters at another affected mine had reported sightings of seal and whale species. Aquatic species listed on Schedule 1 of the Species at Risk Act (SARA) have been documented in the receiving waters.

Receiving waters at affected mines may flow through or be adjacent to wetlands. Reductions in deleterious substances and effluent acutely lethal to Daphnia magna are expected to improve the function of these wetlands. Effluent is discharged to wetlands downstream of at least three affected mines that have habitats for waterfowl and some migratory birds. A wetland downstream of one affected mine is a regionally significant site with abundant, predictable food resources that bird species such as the Canada goose depend on.

Other natural assets include waterfowl and other birds, as well as terrestrial wildlife species (such as beavers, white-tailed deer, and moose). There is evidence that high-quality summer and winter habitat of the woodland caribou is adjacent to one affected mine site. The woodland caribou is a threatened species on Schedule 1 of SARA.

Most affected mines are surrounded by forested land, aquatic plants, and mosses. There is evidence that the boreal felt lichen, which is listed on Schedule 1 of SARA, is within the area of one affected mine.

EG&S and potential economic values

As described above, EG&S flow from natural assets, and changes in natural assets would affect these EG&S, therefore increasing benefits to society. The following are some EG&S that were identified in the surrounding areas of the 11 affected mines.

There are at least four affected mines with recreational fishing (i.e. angling) in receiving waters as well as waters near the mine site. Commercial fishing of Arctic char and Icelandic scallops occurs in the marine receiving waters of at least one affected mine.

There are four consumption advisories for fish consumption in receiving waters at four affected mines in Ontario. These include fish consumption advisories for arsenic, mercury, selenium, and polychlorinated biphenyls (PCBs), or a combination of these substances.

Fish consumption advisory literature estimates the benefit to recreational anglers (both catch-and-release and consumption anglers) for cleaning up contaminated waters, and consequently lifting fish consumption advisories, based on perceived risk and site selection modelling.footnote 13 Jakus and Shaw (2003) estimate an average benefit at $20.10 per angler per trip, where the benefit for consumption anglers is higher, at $36.19, and the benefit for catch-and-release anglers is $7.69 per angler per trip.footnote 14 These estimates illustrate that there is a benefit to anglers of reducing pollution in recreational fishing waters.

Preliminary analysis indicates that there may be Indigenous subsistence and cultural use in receiving waters and surrounding areas of some affected mines.

At least five affected mines have other uses of waterways. Of these, at least one affected mine has a cottage with a small dock on the same water body in which the mine discharges effluent. Other recreation in receiving waters of affected mines includes canoeing, kayaking, and other boating.

There are at least two affected mines in Ontario that have fish sanctuaries in receiving or surrounding waters, which restrict the fishing activities within the boundaries of the sanctuary. Fish sanctuaries in Ontario are used to increase fish populations, to protect fish while they are spawning or protecting their young, or to protect rare or endangered species. Concentrations of arsenic and un-ionized ammonia may be reduced in these two fish sanctuaries, which may benefit fish stocks in these sanctuaries. Benefits to fish may in turn contribute to waters with recreational or commercial fisheries, which could potentially increase corresponding use values, as discussed in the “Fishing” section. However, the result would also increase non-use benefits to society related to biodiversity and species conservation. Studies show that individuals value the existence of protected areas, rare species and biodiversity (Richardson and Loomis, 2009; Rudd et al. 2016; Haefele et al. 2016).footnote 15

Wetlands adjacent to receiving waters at the affected mines would purify and treat receiving waters. Reduced concentrations of deleterious substances are expected to increase these wetlands’ capacity to filter deleterious substances in the event of an unexpected effluent discharge with concentrations above maximum limits on Schedule 4 or that is acutely lethal to Daphnia magna. Jenkins et al. (2010)footnote 16 estimate the value of filtering services provided by wetlands (particularly for nitrogen mitigation) to be approximately $1,250 per hectare per year. Exact values of affected wetlands that may be expected to experience improvements in filtering services have not been estimated.

Benefits arising from incorporating diamond mines

The incorporation of diamond mines improves effluent management and data collection from this sector. The Amendments will require diamond mines to release effluent from final discharge points which will enable mines to exercise control over the quality of this effluent. In addition, under the MDMER, diamond mines will be required to submit performance and monitoring data to the government. This data will strengthen government oversight of Canadian mine effluent quality.

Societal benefits arising from the EEM requirements

Environmental monitoring generates critical information that is essential for the Government to provide sound stewardship of the environment. Societal benefits, particularly those arising from improved data collection and increased efficiency of EEM requirements, is supported by the findings of the Report of the Commissioner of the Environment and Sustainable Development, Chapter 5, A Study of Environmental Monitoring. footnote 17

The EEM changes are expected to improve data collection by the Department, by bringing diamond mines under the MDMER, adding new substances to Schedule 5, and improving fish monitoring. This enhanced data collection on the effects of effluent on fish and fish habitat will strengthen government oversight of effluent quality.

Industry compliance costs

The metal and diamond mining sectorsfootnote 18 are expected to incur incremental compliance and administrative costs in order to comply with the Amendments.

Cost of incorporating diamond mines into the MMER

On June 1, 2018, the Amendments expand the MMER to include diamond mines. Effluent that contains deleterious substances and is being released into fish-frequented waterbodies must be released and monitored at final discharge points.

One diamond mine that will become subject to the MDMER is expected to incur incremental capital costs in order to become compliant with the Amendments by constructing infrastructure (such as a dam or weir) to limit release of effluent to a final discharge point. Using the AMDTreat software, footnote 19 the incremental cost for one mine to build a dam or a weir was estimated to be $2.1 million.

Following publication in the Canada Gazette, Part I, the Department learned that a second mine may incur incremental capital costs associated with this requirement to discharge effluent that:

While additional verifiable information was not available by the time of publication, the Department took a conservative approach and included these potential costs in the central analysis. To this end, the Department assumed similar parameters would be used for the second mine to collect effluent and the estimated cost for the first mine were used to calculate the costs per kilometer of infrastructure built. Using this value and the second mine’s estimated maximum length of required infrastructure, the incremental capital cost for the second mine was estimated to be $21.1 million. The total incremental capital cost for the incorporation of diamond mines is estimated to be $23.2 million.

Costs to comply with more stringent limits for prescribed deleterious substances

Incremental compliance costs to metal mines from the modifications to arsenic, cyanide, and un-ionized ammonia effluent limits are expected to begin in 2018. There are no expected incremental costs to diamond mines from this requirement because these mines are already able to meet the amended effluent limits in Schedule 4 of the MDMER. It was also assumed that future mines would adopt the best technology available to treat effluent under the BAU scenario, and would therefore not assume any incremental costs from the more stringent limits for the remaining substances that would apply to mines that become subject to the Amendments after 2021.footnote 20, footnote 21

The Department used effluent data submitted through the Regulatory Information Submission System (RISS) between 2012 and 2014 to identify mines that will likely need to modify their effluent treatment in order to comply with the amended limits for the prescribed deleterious substances. Based on these data, it is estimated that eight metal mines will be affected by the amended effluent limits for arsenic, cyanide, and un-ionized ammonia. Metal mines are not expected to be affected by the more stringent limit for lead.

Treatment technologies for effluent vary depending on the substance being targeted for removal. Some affected mines would be able to achieve compliance by optimizing existing effluent treatment systems (such as adding acid to reduce the pH of effluent), while some affected mines would be able to achieve compliance by optimizing existing treatments or by installing add-on treatments (such as enhancing instrumentation/process controls). The measures required for mines to achieve compliance have been estimated based on existing effluent treatment systems and other site-specific factors.footnote 22 The installation or optimization of treatment systems would need to be completed within a three-year transition period between 2018 and 2021. Operating and maintenance costs would be ongoing, beginning in 2021.

Compliance by affected metal mines is estimated to require an average annual capital cost of $6.3 million (between 2018 and 2021) and an average annual operating cost of $1.2 million (between 2021 and 2027) from optimizing existing treatments or installing add-on treatments. Over the time frame of analysis, affected metal mines would assume capital costs of $18.9 million and operating costs of $8.3 million.

The total cost (capital plus operating) across the eight affected mines resulting from the limits for the prescribed deleterious substances would be approximately $27.2 million between 2018 and 2027.footnote 23

Cost of testing effluent for concentrations of prescribed deleterious substances

There would be incremental costs to both the metal and diamond mining sectors from effluent testing for the concentration of the prescribed deleterious substances. These costs would begin in 2021 and are attributable to increased laboratory testing and analysis costs, including the shipping of samples to laboratories.footnote 24

For metal mines, incremental costs are expected to result from the addition of the requirement to test for un-ionized ammonia. All metal mines subject to the MDMER will be required to test for un-ionized ammonia; however, there are no expected incremental costs for mines in Saskatchewan since they are already required to test for un-ionized ammonia under existing provincial requirements.

Due to varying testing requirements in site-specific provincial and territorial permits, all diamond mines subject to the MDMER will need to begin testing for some of the prescribed deleterious substances for which they do not currently have testing requirements, which will result in incremental costs. Costs were estimated based on the incremental number of additional tests for each substance. The estimated costs per sample for each substance are shown in Table 1 below.

Table 1: Cost per sample for Schedule 4 and Schedule 5 Environmental Effects Monitoring substances

Type of substance

Cost per sample

Un-ionized ammonia

$15

Metals

$54

Radium-226

$152

Suspended solids

$12

Incremental costs for effluent testing for affected metal mines are estimated to be $501 thousand and $85 thousand for affected diamond mines over the time frame of analysis. The total incremental cost from testing for the prescribed deleterious substances is estimated at $699 thousand between 2018 and 2027.footnote 25

Costs to comply with changes to the non-acute lethality requirement

Based on data collected by the Department between 2011 and 2014, out of the total metal mines expected to be subject to the MDMER by June 1, 2021, 19 mines are expected to fail an acute lethality test for Daphnia magna. As a result, these mines will have to increase the frequency of sampling and testing until three consecutive tests are passed. It is assumed that future metal mines will, under the BAU and regulatory scenarios, implement effluent treatment systems that will enable them to achieve compliance with the non-acute lethality requirements.footnote 26

All diamond mines are required under their current provincial/territorial permits to monitor for effluent acute lethality for both rainbow trout and Daphnia magna, but at different frequencies than required under the Amendments. Therefore, all diamond mines are expected to carry incremental costs due to testing for acute lethality at the frequency required in the Amendments.

Estimated incremental costs for the metal and diamond mining sectors are based on the following costs per test, shown in Table 2 below.footnote 27Mines that fail acute lethality testing will be required to conduct additional testing.

Table 2: Cost per test for non-acute lethality requirements

Test type

Cost per test

Daphnia magna acute lethality

$156

Effluent characterization test

$102

Deleterious substances sampling and recording

$21

Rainbow trout acute lethality

$198

Under the MMER, metal mines are already conducting the frequency of sampling and testing associated with these requirements in the MDMER. However, based on information provided by stakeholders during consultations, it is assumed that 19 metal mines may fail a Daphnia magna acute lethality test following the coming-into-force of the compliance requirement in 2021. Any time one of these mines fails a test, they will have to increase the frequency of sampling and testing until the effluent passes three consecutive tests. The number of test failures is expected to decrease by 30% each year after the coming-into-force of the requirement. The estimated incremental cost associated with this requirement is $99 thousand over the time frame of analysis for the metal mining sector.

Under provincial/territorial legislation, diamond mines conduct Daphnia magna monitoring tests at a lower frequency than the requirements in the MDMER. As a result, diamond mines will have a permanent increase in the frequency of sampling and testing at the coming-into-force of the compliance requirement in 2021. These mines are not expected to fail the Daphnia magna acute lethality test. The estimated incremental cost is $100 thousand for the diamond mining sector over the time frame of the analysis.

The total estimated incremental cost for the Daphnia magna non-acute lethality requirement for both sectors is $199 thousand.

Environmental effects monitoring costs

The costs of the changes to the EEM requirements are outlined in the following subsections. Incremental costs include the addition of a fish tissue study for selenium (SeFT), the amendment of sub lethal toxicity testing requirements, and additional water quality monitoring.

Beginning on June 1, 2018, the Amendments will enhance selenium monitoring by adding SeFT studies for mines where the effluent selenium concentrations exceed the threshold.footnote 28 The SeFT study provides information to the Department on whether mines are having effects downstream, and whether the conditions of the Regulations are sufficiently protective.

Expected incremental costs will be attributed to conducting an SeFT study, which includes both a design cost and a testing cost. Based on departmental monitoring data showing selenium concentrations from 2012 to 2014, it is expected that approximately 10% of metal mines will have effluent selenium concentrations exceeding the threshold. These mines will assume costs associated with conducting SeFT tests (which includes a cost for laboratory testing and analysis as well as the shipping of samples to laboratories).

It is assumed that affected mines currently conducting fish population studies will not incur costs to prepare an SeFT study design, as these mines likely already have an existing study design and will be able to conduct the fish population and SeFT studies in conjunction. As a result, approximately 1% of metal mines are expected to incur SeFT design costs (this includes costs for production of study designs and field work).

Diamond mines are not expected to carry incremental costs, as selenium concentrations in effluent are anticipated to be less than the threshold for the SeFT study.footnote 29

Between 2018 and 2027, the annual average cost per SeFT test is estimated at $2 thousand and the annual average cost per SeFT design is estimated at $9 thousand. Over the analytical time frame of the analysis, the total incremental cost to the metal mining sector from the SeFT study requirement, which also includes shipping costs, is estimated at $578 thousand.

Beginning on June 1, 2018, the Amendments streamline the requirements for sub lethal toxicity (SLT) testing by incorporating a tiered approach to identify the most sensitive test species per mine and, once identified, to do the test more frequently than is currently required.footnote 30 The Amendments also remove the requirement to report one of the SLT test results.

All metal and some diamond mines will be affected by the SLT tier approach.

Metal mines will have different incremental costs depending on the test species determined to be most sensitive to the effluent, since each test has different associated costs. The most sensitive test species were estimated for each metal mine based on previous SLT results submitted to the Department and are indicated in Table 3 below. Incremental costs were calculated using these percentages. Diamond mines conduct SLT testing under provincial and territorial permits, but not for all of the species required under the MMER. Diamond mines that become subject to the MDMER at the coming into force of the Amendments can use existing SLT test results conducted under provincial/territorial requirements to identify their most sensitive test species. New diamond mines will need to conduct SLT testing for all species under the MDMER to identify the most sensitive species.

Table 3: Proportion of affected metal mines and cost per SLT test

SLT test

Annual Cost per Testfootnote 31, footnote 32

Percentage of Affected Metal Mines

Pseudokirchneriella subcapitata

$707

7%

Ceriodaphnia dubia reproduction and survival test

$1,347

44%

Fathead Minnow growth and survival test

$1,449

1%

Growth inhibition test using Lemna minor

$1,081

48%

Note: The annual cost per test was used to estimate costs for both metal and diamond mines.

The incremental costs from the changes to SLT testing are estimated to be $150 thousand and $501 thousand for metal and diamond mines, respectively. The estimate for diamond mines changed due to new information the Government received, such as additional details of provincial and territorial requirements, site-specific data and the closure of a diamond mine in 2017. The total incremental costs for both sectors are expected to be $651 thousand over the time frame of analysis.

Metal mines do not incur incremental costs for water quality monitoring because they are already subject to the MMER.

Some current provincial and territorial permits for diamond mines require water quality testing at a lower frequency than that required by the MDMER. Therefore, the inclusion of diamond mines to the MDMER will result in incremental costs, specifically from an increased frequency of water quality monitoring for specified deleterious substances. These costs begin in 2018 and are attributable to increased laboratory testing and analysis costs, including the shipping of samples to laboratories.

The estimated costs per sample were based on the figures shown in Table 1 above. Incremental costs of water quality monitoring to the diamond mining sector are estimated at $52 thousand over the time frame of analysis (not shown in Table 4 below).footnote 33

The modifications to EEM are expected to result in incremental costs of $0.7 million to the metal mining sector and $0.6 million to the diamond mining sector over the 2018 to 2027 period. Total incremental costs due to the changes to the EEM requirements would be $1.3 million over the time frame of analysis (Table 4). The numbers may not sum due to rounding.

Table 4: EEM costs by amendment (millions of dollars)

Amendment

2018
to 2020

2021
to 2027

Total

Addition of SeFT studies

0.2

0.4

0.6

Amendment to SLT requirement

0.2

0.5

0.7

Total

0.4

0.9

1.3

Note: Monetary values are discounted using 2016 Canadian dollars to present value using a 3% discount rate. Numbers may not sum to total due to rounding.

Summary of industry compliance costs

Incremental costs to industry, with respect to compliance, are expected to be $33.7 million between 2018 and 2027. Industry compliance costs to the metal and diamond mining sectors are shown in Table 5 below by amendment.

Table 5: Industry compliance costs by amendment (millions of dollars)

Amendment

2018
to 2020

2021
to 2027

Total

Incorporating diamond mines

23.2

0.0

23.2

More stringent effluent limits

18.9

8.3

27.2

Increased effluent testing

0.0

0.6

0.6

Non-acute lethality requirements

0.0

0.2

0.2

Addition of SeFT studies

0.2

0.4

0.6

Amendment to SLT testing requirement

0.2

0.5

0.7

Total

42.5

10.1

52.6

Note: Monetary values are discounted using 2016 Canadian dollars to present value using a 3% discount rate. Numbers may not sum to total due to rounding.

Incremental costs over the 2018 to 2020 period are higher due to one-time capital expenses expected to be incurred by metal mines for the Schedule 4 effluent limits and to the incorporation of diamond mines into the MDMER. The remaining costs are due to ongoing operating expenses that are expected to be carried by both sectors due to the Amendments.

Industry and government administrative costs and cost savings

The Amendments are expected to result in a net increase in administrative costs to industry of $77 thousand between 2018 and 2027. The metal mining sector is expected to have net cost savings of $62 thousand (e.g. reduced reporting for EEM requirements yet increased reporting for selenium in fish tissue). An incremental increase in costs of $139 thousand is expected for the diamond mining sector to comply with the reporting requirements of the MDMER (e.g. familiarization with the new regulations, submission of monitoring and final discharge point data). This sector is currently not subject to the reporting requirements under the MMER.

The federal government would incur incremental costs associated with enforcement activities, which includes training, inspections, investigations, and measures to deal with any alleged violations. The total incremental costs of enforcement over the 10-year period are estimated to be $3.1 million. This includes a one-time amount of $0.3 million for the training of enforcement officers and to meet information management requirements as well as the costs of inspections (which include operation and maintenance costs, transportation and sampling costs), investigations, measures to deal with alleged violations (including warnings, environmental protection compliance orders and injunctions) and prosecutions.

Government administrative costs attributed to compliance promotion are estimated to increase by $0.05 million. In addition, incremental program administrative costs are expected to be $2.1 million. Overall, incremental government administrative costs are expected to be $5.2 million for the 2018 to 2027 period.

Industry compliance cost savings from the EEM requirements

The metal mining sector is expected to benefit from cost savings from some of the amendments to EEM requirements. Incremental cost savings attributable to EEM are expected to begin in 2018. Given that diamond mines were not subject to the MMER, they are not affected by the change to more efficient EEM processes. Furthermore, these mines are expected to face some incremental new compliance costs as a result of being subject to the MDMER.

Unless otherwise indicated, information and results from the Third Metal Mining National Assessment were used to estimate the percentage of metal mines that would be affected by the EEM requirements. Cost estimates were sourced primarily from an EEM cost estimate report and surveys produced by the Department in 1999 (adjusted to 2016 Canadian dollars).

Cost savings from incorporating critical effect sizes and decoupling studies

The Amendments optimize biological monitoring studies by changing the threshold at which mines are required to investigate the cause of effects and by decoupling benthic invertebrate community (BIC) and fish population studies so that they can be conducted separately. This change is expected to enable approximately 9% of metal mines, those that have demonstrated no confirmed effects on BICs, to reduce the amount of BIC studies they perform. Based on the annual cost of a BIC study of $12 thousand, it is estimated that the change will generate cost savings of approximately $1.4 million between 2018 and 2027 for the metal mining sector.

Cost savings from benthic invertebrate community study exemption

All metal mines were required to conduct BIC studies under the MMER, regardless of the concentration of their effluent in the receiving environment. The Amendments add an effluent concentration threshold for the receiving environment that exempts some mines from conducting BIC studies.footnote34 Similar to the existing threshold for fish population studies, this focuses efforts on situations of higher risk for impacts on the receiving environment.

It is estimated that approximately 5% of metal mines will be affected by the BIC exemption, based on existing data for the number of mines affected by the fish population study threshold. Based on an annual cost of a BIC study of $12 thousand, the cost savings associated with the BIC study exemption is about $747 thousand between 2018 and 2027 for the metal mining sector.

Cost savings from exempting non-discharging mines from conducting biological monitoring

Under the MMER, all metal mines were required to conduct biological monitoring studies under the EEM requirements. The Amendments remove the requirement to conduct biological monitoring studies for mines that do not discharge effluent for at least 36 months. This reflects decreased risks of effects on receiving environments from mines that are not discharging over the long term.

Based on the current share of non-discharging metal mines, it is expected that about 3% of metal mines will be affected per year. The cost of a joint fish population and BIC study is approximately $33 thousand per year while water quality monitoring is approximately $7 thousand per year. The cost savings attributed to the exemption from biological monitoring for non-discharging mines is estimated at $1.7 million from 2018 to 2027 for the metal mining sector.

Cost savings from removing the requirement to conduct magnitude and geographic extent studies

The Amendments remove the requirement for mines to conduct M&E of the effect studies for BIC and fish population components, which is a three-year study. The M&E study slows down the EEM process and delays the identification of the cause(s) of confirmed effects. Removing this requirement enables mines to move more quickly to the determination of the cause of confirmed effects, without compromising the information collected.

It is assumed that the number of affected metal mines will be the same as the proportion of mines that previously conducted fish population or BIC M&E studies based on historical trends. Given this assumption, it is estimated that 67% and 70% of metal mines will be affected by the removal of the requirement to conduct a fish population M&E study and a BIC M&E study, respectively.

The cost per year for a fish population M&E study is estimated to be $31 thousand and the cost per year for a BIC M&E study is estimated at $18 thousand. The cost savings attributed to the removal of M&E studies is expected to be $5.2 million between 2018 and 2027 for the metal mining sector.

Cost savings from amending the mercury in fish tissue threshold

Under the MMER, metal mines were required to conduct a mercury in fish tissue study if any single concentration of mercury in their effluent was found to be greater than the prescribed threshold. The Amendments change the mercury in fish tissue threshold to an annual average of effluent mercury concentrations, to focus efforts on situations of higher risk for impacts on the receiving environment. Many mines, 95% (20 out of 21 metal mines),footnote35 that met the previous threshold were finding no effects from their mercury in fish tissue studies, indicating that the threshold was too sensitive.

Some metal mines that were conducting fish tissue studies will not be required to conduct fish tissue studies going forward due to the adjustment to the mercury in fish tissue threshold. The Government estimated that about 5% of metal mines subject to the MDMER will be affected. The cost of a fish tissue study is approximately $4 thousand per year. Based on the cost of the fish tissue study, it is expected that the adjustment to the mercury in fish tissue threshold will result in cost savings of approximately $238 thousand to the metal mining industry between 2018 and 2027.

Summary of industry cost savings

Some of the amendments to the EEM requirements are expected to result in cost savings of about $9.3 million for the metal mining sector subject to the MMER. The diamond mining sector is not expected to have any cost savings. Cost savings attributed to the changes to the EEM requirements are shown in Table 6 below.

Table 6: EEM cost savings by amendment (millions of dollars)

Amendment

2018
to 2020

2021
to 2027

Total

Inclusion of critical effect sizes and decoupling

0.4

1.0

1.4

BIC 1% dilution exemption

0.2

0.5

0.7

Removal of biological monitoring for non-discharging mines

0.5

1.2

1.7

Removal of M&E study requirement

1.7

3.5

5.2

Adjustment to mercury in fish tissue threshold

0.1

0.2

0.2

Total cost savings

3.0

6.4

9.3

Note: Monetary values are discounted using 2016 Canadian dollars to present value using a 3% discount rate. Numbers may not sum to total due to rounding.

Summary of benefits and costs

It is expected that the Amendments would generate incremental costs of $58.1 million to industry and Government and cost savings of $9.5 million to the metal mining sector, resulting in a net incremental cost of $48.6 million for industry and Government over a 2018 to 2027 time-frame of analysis, as shown in Table 7 below. Excluding Government costs, the net incremental cost on industry is estimated to be $33.9 million ($19.3 million for the metal mining sector and $24.1 million for the diamond mining sector). The ratio of these costs relative to the industry estimated revenue in 2016 is 0.09% for the metal mining sector and 1.07% for the diamond mining sector.footnote36

There are incremental environmental benefits, such as reducing the negative effects of effluent on fish and fish habitat and improving the functions of wetlands, as well as improved data collected by the Department due to compliance with the Amendments.

Table 7: Summary of costs and benefits from the Amendments

Monetized impacts
(millions of dollars)

2018 to 2020

2021 to 2027

Total

Costs

Incorporating diamond mines

23.2

0.0

23.2

More stringent effluent limits

18.9

8.3

27.2

Increased effluent testing

0.0

0.6

0.6

Non-acute lethality

0.0

0.2

0.2

EEM

0.2

0.6

0.9

Industry administrative costs

0.1

0.1

0.2

Total industry costs

42.5

10.1

52.6

Government administrative costs

2.0

3.2

5.2

Total costs

44.5

13.4

58.1

Cost savings

EEM cost savings

3.0

6.4

9.3

Industry administrative savings

0.0

0.1

0.1

Total cost savings

3.0

6.5

9.5

Net industry costs

39.5

3.6

43.4

Net costs

41.5

6.9

48.6

Qualitative benefits:

  • The Amendments protect natural assets (i.e. surface water and groundwater, aquatic species, wetlands) and EG&S (i.e. fishing, other use of waterways and surrounding land, biodiversity conservation, and wetland ecological functioning) from which there are environmental benefits.
  • Enhanced data collected on the effects of effluent on fish and fish habitat.

Note: Monetary values are discounted using 2016 Canadian dollars to present value using a 3% discount rate. Numbers may not sum to total due to rounding.

Of the incremental net costs on industry ($43.4 million), about 44% ($19.3 million) are estimated for metal mines and 56% ($24.1 million) for diamond mines. Of the total incremental net costs estimated for metal mines, about 66% ($12.7 million) is due to capital costs associated with 12 mines (189 mines were estimated to be subject to the MDMER by end of 2028). Of the total incremental net costs estimated for diamonds mine, about 96% ($23.2 million) is due to capital costs associated with two mines (eight mines were estimated to be subject to the MDMER by end of 2028).

Sensitivity analysis

The results of the costs and cost savings analysis are based on key parameter cost estimates, which could be higher or lower than indicated by available evidence. Given this uncertainty, alternative estimates were considered (Table 8). In particular, the central analysis using a 3% discount rate was compared to two scenarios.

Table 8: Sensitivity analyses (millions of dollars)

Alternatives

Net costs

Central analysis (from Table 7) discounted at 3%

48.6

Scenarios

1. Central analysis discounted at 7%

44.8

2. Low net cost scenario discounted at 3%

26.3

Note: Monetary values are discounted using 2016 Canadian dollars to present value using a 3% discount rate, unless stated otherwise. Numbers may not sum to total due to rounding.

For the central analysis, the Department used a conservative approach (or high net cost scenario) to estimate the impact of the Amendments. This includes highest price estimates for all of the Amendments and capital costs estimates for two diamond mines that could require additional infrastructure to collect effluent. The estimated total incremental net cost is $48.6 million.

Two scenarios were developed in the sensitivity analysis. The first scenario applied a 7% discount rate to the central analysis and, since almost half of the costs of the regulation are upfront capital costs to the two diamond mines, the value is similar to the central analysis discounted at 3%. The second scenario is a low net cost scenario that assumes lowest price estimates for all the Amendments, while assuming the same capital costs for the two diamond mines as the central analysis. The low net cost scenario was estimated at $26.3 million. Thus, the total net incremental cost of the Amendments could range between $26.3 and $48.6 million.

With respect to price estimates, these are based on differences in quotes received from various consultants, the cost of a BIC study is estimated to range between $10 thousand per year and $12 thousand per year. In the case of the Schedule 4 effluent limits, costs for optimizing treatments/installing add-on treatments could vary depending on assumptions and mine specific factors. For instance, the 2014 Mine Environment Neutral Drainage (MEND) report gave range estimates for the cost of adding acid to reduce pH for mines operating in Canada. These ranges included, for example, a reagent cost of acid ranging from $0.35 to $1.80 (2013 Canadian dollars) per kilogram. Incorporating these ranges into the compliance cost estimates would result in operating cost variation.footnote37

“One-for-One” Rule

The Amendments are expected to increase administrative burden to the metal and diamond mining industries. Therefore, the Amendments are considered to be an “IN” under the Government’s “One-for-One” Rule. Following the Treasury Board’s standard costing model for this section, the cost estimates are discounted at 7% and presented in 2012 Canadian dollars. In 2018, it is expected that there will be 141 metal mines and 5 diamond mines.footnote38

For both metal and diamond mines, it is assumed that the hourly wage rate for a lawyer is $50, $42 for an employee with training in natural or applied science, and $35 for administrative support staff.

Metal mines

There are expected increases in administrative burden from the addition of new requirements and reductions in administrative burden from increased efficiency of EEM requirements for metal mines. Metal mines are expected to experience a net decrease of $4,773 per year or $34 per mine.

New costs for metal mines
Reductions in administrative burden for metal mines

Diamond mines

Increased administrative burden is attributable to the incorporation of diamond mines into the MDMER. Diamond mines are expected to assume a net increase of $8,711 per year or $1,742 per mine. These costs are accounted for by the following breakdown:

Ongoing costs for diamond mines

For metal and diamond mines, the net increase in annualized administrative costs would be approximately $3,937, or $27 per mine.footnote39

Small business lens

The small business lens does not apply to the Amendments. Metal and diamond mines that will be required to comply with the Amendments generate gross revenues exceeding $5 million, and are not considered small businesses for the purposes of the small business lens.

Consultation

Consultations on the proposed Amendments before prepublication in the Canada Gazette, Part I

Between the end of 2012 and mid-2015, the Department undertook a consultation process with stakeholders and interested parties on the Amendments. Participants included representatives from industry, provinces, territories, environmental non-governmental organizations (ENGOs), and associations representing Indigenous peoples. In late 2016 and early 2017, the Department reengaged these stakeholders and interested parties with a consultation document providing the details of the Amendments and by hosting several teleconferences and webinars to discuss the Amendments. More details on the consultation processes and their outcomes are available in the consultation section of the Regulatory Impact Analysis Statement (RIAS) for the proposed Amendments published in the Canada Gazette, Part I on May 13, 2017.

Consultations on the proposed Amendments following prepublication in the Canada Gazette, Part I

The proposed Amendments were prepublished in the Canada Gazette, Part I, on May 13, 2017, for a 60-day public comment period. Approximately thirty submissions were received and taken into consideration in finalizing the Amendments. Parties who submitted comments include provincial and territorial governments, an Indigenous organization, industry, consultants, ENGOs, and members of the general public.

During the 60-day public comment period, the Department held meetings in Yellowknife, Northwest Territories, with the diamond mining industry, Indigenous groups, and ENGOs. The Department also held teleconference calls with the industry, Indigenous groups, and ENGOs to increase awareness and understanding of the proposed Amendments.

Industry

The metal and diamond mining industries articulated support for many of the proposed Amendments, particularly the updated arsenic, copper and cyanide limits for mines that are or become subject to the MDMER within three years of the coming into force of the Amendments. They also supported the inclusion of diamond mines in the MDMER and the increased efficiency of the EEM requirements.

Definition of effluent and the list of prescribed deleterious substances

Some metal mining representatives raised concerns that elements of the Department’s proposed changes to the definitions of “effluent” and “mine” could expand the scope of application of the Regulations, requiring mines to collect, test, and treat water that they would otherwise be diverting from the operations area. Industry also raised concerns that the Department’s proposal to remove “acutely lethal effluent” from the list of prescribed deleterious substances could change the scope of authority for mines to deposit into tailings impoundment areas.

Since these proposed Amendments were not intended to change the scope of the Regulations, but rather to provide greater clarity, the Department reverted elements of the definition of “effluent” to the original wording and revised wording to clarify that there is no change to the scope of authority for depositing acutely lethal effluent into tailings impoundment areas.

Addition of a limit for un-ionized ammonia

Some industry representatives restated opposition to the addition of the un-ionized ammonia limit, proposing instead that the Department implement a less stringent limit.

A lower, more stringent limit for un-ionized ammonia is appropriate since the limit is based on current technology and given that metal mines have the ability to control releases of ammonia at the source, through practices to manage explosives and by optimizing reagents.footnote40 The limit also aligns with the Saskatchewan limit, the only provincial jurisdiction that sets a limit for un-ionized ammonia.

Alternative test species for saline-to-marine discharges

Mining projects are currently under development that are expected to draw on saline groundwater that would lead to the deposit of saline effluent into marine environments. These projects requested alternative test options for marine species, as they would be unable to pass the existing lethality tests for rainbow trout and Daphnia magna, both of which are freshwater species.

The Department has developed a test method for threespine stickleback as an alternative to rainbow trout for use in scenarios where mines are depositing saline effluent into marine receiving waters. This test method is specified in the Amendments. Mines with saline effluent and marine receiving waters would not be required to test for Daphnia magna. The Department plans to add a marine test method for Acartia tonsa in a future amendment, following test method development.

Tailings impoundment areas for diamond mines

The MMER also include provisions for the authorization of mine waste disposal in fish-frequented waters for the purposes of a tailings impoundment area, through the addition of these water bodies by the Governor in Council to Schedule 2 of the MMER. Some diamond mining companies indicated that they may require Schedule 2 listing for tailings impoundment areas. The Department is assessing these waterbodies individually to determine if Schedule 2 listing would be required. If the waterbodies are fish-frequented, Schedule 2 authorization may be required.

Application of EEM provisions to existing diamond mines

The diamond mining industry and other industry representatives, as well as some ENGOs and a territorial government, expressed concern prior to and during the Canada Gazette, Part I, comment period that EEM requirements under the MDMER are duplicative of existing provincial/territorial environmental monitoring projects conducted at existing diamond mines. Departmental review of provincial and territorial monitoring requirements indicates that, while generally aligned, the federal and provincial and territorial requirements differ — depending on the mine — in the timing and frequency of certain tests or studies, some species used for SLT, and the types of analysis required in biological monitoring studies.

In response to comments and discussions, the Department incorporated a transitional exemption from EEM requirements of up to three years that will provide time for existing diamond mines to design their biological studies in a way that will meet their provincial/territorial requirements and the federal regulation. Only one study would be required to meet the federal regulation and provincial/territorial requirements. For examples of regulatory flexibilities built in for diamond mines to meet EEM requirements, see the Regulatory cooperation section.

The analysis was updated to include the incremental costs associated with the differences in testing frequency and additional analysis.

Transition period for EEM provisions

During the comment period, several industry submissions advocated for a transition period for the changes to the EEM provisions for existing metal mines so that the Amendments would not come into effect mid-year, disrupting current monitoring and reporting cycles. In response, the Department has implemented a transition period so that changes to some of the EEM provisions will apply to metal mines on January 1, 2019.

Costs analysis and estimates

During the public comment period, some diamond mining submissions asserted that some of the estimated costs presented in the RIAS published in the Canada Gazette, Part I, were significantly underestimated. In particular, comments suggested that the RIAS did not fully capture potential incremental costs associated with the construction of infrastructure for diamond mines to comply with the requirement that effluent be deposited through final discharge points or the incremental costs associated with the addition of EEM requirements. Government officials noted that incremental costs are estimated using available data that can be validated at the time of the analysis and sought clarification on these costs estimates with the stakeholders. Although additional data that could be validated on additional infrastructure for final discharge points was not received prior to publication deadlines, the Department used parameters from the estimation of capital costs for the one mine for which it had data and information to update incremental capital costs estimates associated with this requirement. Furthermore, the analysis in the RIAS has been updated to reflect new data received on the costs associated with the EEM requirements for one mine in particular.

Provincial and territorial governments

Definition of effluent

Following prepublication in the Canada Gazette, Part I, comments were received from one provincial/territorial government raising concerns with the proposed changes to the definition of effluent, in alignment with the concerns of the metal mining industry. Since there was no intent to change the scope of the Regulations, but rather to provide greater clarity, the Department has reverted elements of the definition of “effluent” to the original wording.

Application of EEM provisions to existing diamond mines

Another provincial/territorial government provided a submission sharing concerns that EEM requirements would be duplicative with environmental monitoring conducted at existing diamond mines in the territory. In response to comments and discussions, the Department has incorporated a transitional exemption from EEM requirements of up to three years for existing diamond mines to enable alignment of the federal and provincial/territorial requirements. (for more information on regulatory flexibilities see the Regulatory cooperation section)

Environmental non-governmental organizations (ENGOs)

Members of the ENGO community were in support of the addition of Daphnia magna as a compliance parameter, and the addition of new substances for EEM.

Limits for prescribed deleterious substances

ENGOs restated their concern that the proposed limits for the prescribed deleterious substances are not protective of receiving environments and too lenient to industry. The Government established the limits by drawing information from

The new limits are expected to result in some incremental costs to industry for compliance and are expected to provide greater protection to the receiving environment.

During the comment period, several ENGOs also indicated that the amended limits for the prescribed deleterious substances do not take into account cumulative effects and cumulative stressors that may result from exposure to multiple substances, or water quality factors in the receiver such as hardness, pH, water flow, temperature, etc.

The MDMER establish a national baseline for effluent limits, including requirements that effluent not be acutely lethal and monitoring requirements to determine whether effects are being observed in the receiving environment. Provincial and territorial governments may also establish site-specific limits through permits or regulations. Through its review of environmental assessments, the Government is considering a deliberate approach to the assessment and management of cumulative effects, working collaboratively with provinces, territories and Indigenous peoples to develop and implement it. This may include regional assessments to guide planning and management of cumulative effects.

ENGOs also reiterated their proposal to include multiple new deleterious substances with concentration limits (e.g. manganese, ammonia, phosphorus, xanthates, vanadium, and uranium).

The Department has indicated that further monitoring on the prevalence of additional substances in mine effluent and a formal technical review would be required. Therefore, the Amendments add several of these substances to Schedule 5 (i.e. chloride, chromium, cobalt, sulphate, thallium, uranium, phosphorus, and manganese) to be monitored under EEM.

Investigation and implementation of solutions

Both prior to and during the official comment period, ENGOs advocated for the inclusion of investigation and implementation of solutions in the EEM requirements, as currently exists in the Pulp and Paper Effluent Regulations. An investigation and implementation of solutions would follow a biological monitoring study investigating the cause of confirmed effects to determine potential solutions for the identified confirmed effects.

The Department is examining potential options for incorporating investigation and implementation of solutions in a future amendment.

Use of fish-frequented waterbodies as tailings impoundment areas

Several ENGOs and a member of the public raised concerns with the use of fish-frequented waterbodies as tailings impoundment areas. It is important to note that listing of tailings impoundment areas requires rigorous technical analysis and extensive consultation to ensure that the proposal is the safest, most environmentally sound option, and that it considers socio-economic elements.

Indigenous peoples

Indigenous peoples’ participation in the consultation process helped to clarify provisions of the Amendments.

Ongoing engagement

One Indigenous government provided a submission during the formal comment period. This submission advocated for increased engagement with Indigenous peoples throughout the regulatory process. In response, the Department is assessing options for incorporating traditional knowledge into the EEM provisions and will consult broadly before considering it in a future amendment.

Public availability of EEM data

The submission from the Indigenous organization, as well as submissions from some industry stakeholders, also reiterated support for the public availability of EEM data and information. While there is no change to the regulatory text in this regard, the Department will make EEM information and data publicly available going forward.

Regulatory cooperation

Domestic cooperation

Federal, provincial, and territorial governments in Canada share jurisdiction over water pollution. The federal MMER establish a baseline of effluent concentration limits and EEM for Canadian metal mines, amidst a mix of provincial requirements, including permits and regulations. The MMER established minimum national baseline mining effluent standards in 2002. The Amendments aim to improve these standards and align them with provincial and territorial standards, where possible. For example, the new effluent limit for un-ionized ammonia aligns with the limit in place in Saskatchewan, the only provincial jurisdiction that sets a limit for this substance. For some substances, the Amendments introduce more stringent standards that go beyond those of some jurisdictions, reflecting current mine performance, projected performance of mines undergoing environmental assessments, and existing technology. However, testing and monitoring requirements are aligned where possible with existing provincial and territorial requirements. For example, Ontario, Quebec, the Northwest Territories and Nunavut already have requirements for non-acute lethality to Daphnia magna that the Amendments expand to the remaining provinces and territories in Canada.

For diamond mines, there was a lack of regulatory clarity because under the general prohibition of the Fisheries Act diamond mines did not have the authority to release effluent even though they were subject to requirements established by provinces and territories that contain conditions for the release of such effluent. The Amendments provide federal regulatory clarity to diamond mines, while reducing duplication with provincial and territorial regimes where possible. For example, the Department incorporated a transitional exemption from EEM requirements of up to three years for existing diamond mines to enable them to align the timing of required federal and provincial/territorial tests, studies, and analysis so that they only need to be conducted once for both jurisdictions, to the extent possible. As is the case for metal mines, monitoring data collected can be submitted to both the federal and provincial/territorial jurisdictions. Additionally, flexibility has been built in for diamond mines to use select data collected under the territorial/provincial monitoring programs to meet some EEM requirements, such as determining the most sensitive species for SLT, and to streamline the biological monitoring requirements. For example, a mine that has confirmed effects on fish and fish habitat based on monitoring results submitted under a provincial or territorial requirement could proceed directly to conducting an investigation of cause study, rather than repeating a study to determine effects.

International cooperation

The Amendments will not have an impact on any international agreement, obligation, or voluntary standard. Canada and the United States (U.S.) employ similar risk management approaches for establishing effluent quality standards and monitoring requirements to manage effluents from mines, although the approaches are carried out through different types of regulatory instruments. Both Canada and the United States establish similar minimum national baseline effluent standards and emphasize a technology-based approach. In the United States, the Ore Mining and Dressing Effluent Guidelines and Standards (40 CFR Part 440) cover effluent discharges from mines. The regulatory requirements are incorporated into National Pollutant Discharge Elimination System permits, which, when established, can also include more stringent, site-specific effluent standards.

In Canada, the MMER establish the minimum national baseline effluent quality standards. Provinces and territories can establish effluent quality standards in their own instruments. In Canada and the United States, there are comparable approaches that establish site-specific effluent standards. The U.S. site-specific standards are generally comparable to provincial and territorial effluent standards in Canada.

The Amendments are not expected to impact competitiveness within Canada, or between Canadian mines and those located in the United States. There has been recent interest regarding mining projects near international borders that could have an impact on boundary waters. In addition, jurisdictions such as British Columbia and Alaska are establishing governance mechanisms to cooperate and to share information related to managing their respective regulatory regimes for mines.

Rationale

The Canadian metal mining sector maintains over 95% compliance with Schedule 4 limits. An assessment of effluent data from the metal mining sector determined that the majority of its effluent is not acutely lethal to fish. Nonetheless, national assessments have provided performance and evaluation data on the kinds of effects from metal mining effluent on fish and fish habitat under the federal MMER and under provincial and territorial regulatory regimes. The Amendments are expected to reduce risks to fish and fish habitat by reducing the level of deleterious substances in mine effluent, via more stringent effluent limits and improved non-acute lethality requirements.

A decade of EEM experience illustrates that there are opportunities to improve the efficiency of certain EEM performance measurement and evaluation activities without reducing environmental protections. The Amendments improve efficiency by adding new requirements and focusing current monitoring requirements, as well as adding exemptions for mines with effluent presenting lower risks of having effects on fish and fish habitat. In addition, increased data collected by EEM will strengthen government oversight of effluent quality.

The diamond mining industry in Canada has developed since the introduction of the MMER in 2002. Since that time, the industry has grown from one mine initially, to five mines by the end of 2017. These mines generate effluent that contains deleterious substances and they were subject to the general prohibition of the Fisheries Act, even though they are subject to provincial or territorial requirements. The Amendments add diamond mines to the application of the MMER, which increases federal regulatory clarity for these mines.

The Amendments are expected to result in $58.1 million in costs to industry and the Government and cost savings of $9.5 million to the metal mining sector, for a net incremental cost of $48.6 million for industry and the Government over 10 years.

Due to the lack of site-by-site-specific information which would be required to model the environmental impacts, and the limited capacity of the Department to conduct such assessments, environmental benefits could not be quantified. However, the amended effluent quality standards are expected to yield incremental environmental benefits associated with providing greater protection to the receiving environment (i.e. surface water and groundwater, aquatic species, wetlands) and EG&S (i.e. fishing, other use of waterways and surrounding land, biodiversity conservation, and wetland ecological functioning). Furthermore, the changes to the EEM requirements will enhance data collection on the effects of effluent on fish and fish habitat. This information will assist the Department in determining whether further risk management actions may be necessary.

The Department engaged with representatives from industry, provinces, territories, ENGOs, and Indigenous organizations regarding the Amendments. Overall, these groups have expressed both support for and concerns with some features of the Amendments.

Strategic environmental assessment

A strategic environmental assessment (SEA) was conducted for the Amendments. The SEA concluded that the Amendments are expected to support the following 2016 to 2019 Federal Sustainable Development Strategy (FSDS) goals: Healthy Coasts and Oceans, and Pristine Lakes and Rivers.

Implementation, enforcement and service standards

The compliance promotion approach for the Amendments includes posting information such as frequently asked questions (FAQs) on the Government of Canada website, as well as responding to all inquiries or clarification requests sent by stakeholders and interested parties. The Department will also update the Regulatory Information Submission System and maintain the Environmental Effects Monitoring Electronic Reporting System to accommodate the reporting requirements of the Amendments (e.g. track and review selenium in fish tissue studies or updating the technical guidance document).

Given that the Amendments are made pursuant to the Fisheries Act, enforcement officers will, when verifying compliance with the MDMER, act in accordance with the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act (hereinafter, “the Policy”). Verification of compliance with the MDMER and the Fisheries Act includes, among other inspection activities, site visits, sample analysis, and the review of reports. An enforcement officer would conduct an investigation when there is suspicion that a violation has occurred, or when there are reasonable grounds to believe that an offence is being or has been committed.

The Policy sets out the range of possible responses to alleged violations, including the issuance of warnings, directions, authorizations, and ministerial orders, as well as court actions, which include injunctions, prosecution, court orders upon conviction, and civil suits for the recovery of costs.

Performance measurement and evaluation

The expected outcome of the Amendments is the potential reduction of risks to fish and fish habitat. The performance of the Amendments in achieving these outcomes will be evaluated within the new performance measurement framework for the Amendments. The Department publishes an annual report of mine performance data (“Summary Review of Performance of Metal Mines Subject to the Metal Mining Effluent Regulations”), which evaluates sectorial compliance with the requirements. The Department also publishes National Assessments of Environmental Effects Monitoring Information every three years providing an analysis of the environmental effect monitoring data received from mines, which indicates whether there are effects on fish and fish habitat downstream from mines subject to the regulations.

Clear and quantified performance indicators (e.g. percentage of mines passing non-acute lethality tests within the concentration limits for the prescribed deleterious substances, and reporting effects below the critical effect sizes) will be defined to measure progress towards this outcome. Achievement of the performance indicators will be tracked through reporting requirements and enforcement activities. The regulated community will continue to be required to submit reports to the Department through the Regulatory Information Submission System and the Environmental Effects Monitoring Electronic Reporting System.

Contacts

James Arnott
Manager
Regulatory Development and Analysis
Mining and Processing Division
Industrial Sectors, Chemicals and Waste Directorate
Department of the Environment
351 Saint-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Fax: 819-420-7381
Email: james.arnott@canada.ca

Matthew Watkinson
Director
Regulatory Analysis and Valuation Division
Economic Analysis Directorate
Strategic Policy Branch
Department of the Environment
200 Sacré-Cœur Boulevard
Gatineau, Quebec
K1A 0H3
Email: ec.darv-ravd.ec@canada.ca