Following are official comments from MiningWatch Canada on the proposed Metal Mining Effluent Regulation that was sent to Gazette One on July 28, 2001.
MiningWatch Canada was established in 1999 by environmental, social justice, Aboriginal and labour organizations from across the country. It addresses the urgent need for a coordinated public interest response to the threats to public health, water and air quality, fish and wildlife habitat and community interests posed by irresponsible mineral policies and practices in Canada and by Canadian companies around the world.
Some of our member organizations and members of our current board of directors have been active environmental non-governmental organization (ENGO) participants in the multi-stakeholder Metal Mining Liquid Effluent Regulations (MMLER) review process over many years. Our comments reflect and respect the work they did in advising Environment Canada throughout this process. We commend Environment Canada for recognizing the valuable contribution that can be made by NGO participants by including ENGO delegates in the review process. These regulations are significant as they represent the first new pollution prevention legislation brought forward by Environment Canada in a decade. They are further significant as they regulate industrial pollution and recognize the polluter pays principle. Some mines will incur significant costs in complying with these regulations. We strongly believe that industrial operators have to be held responsible for the full environmental and social costs of their operations; costs that have too often been unloaded on the public and on the environment.
Positive Changes to the Metal Mining Liquid Effluent Regulations
- The addition of cyanide as a regulated substance
- Gold mines are now subject to the regulation
- A reduction in the allowable limits of Total Suspended Solids from a monthly average of 25 mg/l to a monthly average of 15 mg/l
- The addition of an upper limit for pH of 9.5, to an existing lower limit for pH of 6
- A requirement that mine effluent not be acutely lethal to rainbow trout (50% of test trout must survive 96 hours of exposure to non-diluted effluent
- A requirement for environmental monitoring and reporting though the Environmental Effects Monitoring (EEM) process in accordance with prescribed requirements
- The revocation of the Alice Arm Tailings Deposition Regulation (which constituted an effective site-specific exemption from the MMLERs), and the introduction of a new process mining companies will have to go through if they will want to use marine disposal of mine tailings in the future; a process that will require an amendment of the MMERs, approval by Governor in Council and Cabinet, review under the Canadian Environmental Assessment Act and provincial environmental assessments. This new process provides greater transparency and greater opportunity for public comment.
Why Regulations Fall Short in Protecting Fish and Fish Habitat
Allowable levels of metals in effluent too high: The proposed limits on metal levels in effluent are too high and do not guarantee protection of fish, fish habitat, water and human health. In spite of Environment Canada's goal to "modernize" the MMLERs, allowable limits for arsenic, copper, lead, nickel, and zinc have remained exactly the same as they were in the old regulation, which dates back to 1977. These metal levels are higher than allowable limits for these metals in countries such as Sweden, Vietnam, Finland, U.S.A., Italy, Papua New Guinea, Ghana, South Africa, Indonesia, Japan, Tasmania and the Philippines (Final Report, March 1999 by SENES Consultants Ltd & Lakefield Research Ltd, page S-3 and Table 4.2.1 on pages 54 — 56). According to independent consultants hired by Environment Canada, lower metal levels are both technically (based on existing technology) and economically feasible. Environment Canada chose to maintain metal levels that are already "obtainable by the majority of Canadian metal mines" and that "reflect similar provincial requirements in Ontario and Quebec, where the majority of mines are located." By maintaining the status quo on metal levels Environment Canada missed an opportunity to show leadership, to set standards that would promote innovation and force technology, and to aim for the highest possible protection of fish, fish habitat, water and human health from harmful metals in mine effluent.
Cadmium and Mercury not included: Cadmium and Mercury should have been included as metals to be regulated under the MMER. Cadmium and Mercury are metals that are frequently associated with mine effluent and known to threaten fish and fish habitat. Both are listed as toxics under the Canadian Environmental Protection Act (CEPA) regulations, both were identified as substances of concern during AQUAMIN, and both have control technologies available. Both Cadmium and Mercury are currently regulated in mine effluent by the US-EPA.
Proposed limits should be concentration and loading based: Concentration-based limits ignore the overall environmental impacts on the environment. That is, a mining operation can meet all the regulatory limits, but could be discharging tons of metals into the environment if it has a high discharge volume. Loading-based standards are a much better reflection and offer a much better control of toxic substances entering the environment.
Non-Acute Lethality testing should include testing of Water Flees (Daphnia Magna): Invertebrate Daphnia Magna and Rainbow trout provide different information about lethal effects of effluent, and the acute lethality of effluent cannot be assessed with any confidence if only Rainbow trout are used in the test. Environment Canada has implicitly acknowledged the importance of testing effluent toxicity on Daphnia Magna, by requiring that such testing be conducted each time effluent is tested for acute lethality to Rainbow trout. However, Environment Canada has stopped short of requiring that effluent be non-acutely toxic to Daphnia Magna.
Environmental Effects Monitoring lacks requirement to implement changes based on results: Required Environmental Effects Monitoring is an important new component of the proposed regulation as it provides the opportunity to test effluent toxicity in real, complex and site specific situations. The data from this process will certainly be valuable. However, the EEM program falls short as there are no required links between EEM results that may show toxicity and site-specific corrective actions or remedies. Similarly, there is no required link between new information about toxicity that may derive from the EEM process and possible revisions to the MMER to reflect this new information.
No requirement to provide public information on EEM data, no national toxic registry: There is no requirement to provide monitoring, inspection, and prosecution data, and EEM results to the public in a comprehensive way and no requirement to establish a national toxic registry.
There should be no Transitional Authorizations: All mines should be in compliance with the MMER once it is proclaimed. The MMER process has been a lengthy one and mines have had a lot of opportunity to prepare themselves to meet MMER requirements.
A Failure to Build on Existing and Recognized Principles
The CEN Mining Caucus and AQUAMIN Reference Group participants to the MMLER review process rooted their recommendations on how to modernize the MMLERs on principles that they outlined in comments to Environment Canada in 1999 (March 1999; June 1999). These principles have already been recognized as being key to protecting environmental and human health in precursor processes, such as AQUAMIN, and in the Whitehorse Mining Initiative. These principles also reflect current thought in the federal regime, and indicate what are now accepted as reasonable expectations in standards and rule-making.
These principles are:
- The precautionary principle
- The principle of pollution prevention
- Sustainable Development
- The principle of zero discharge (rooted in Canadian policy since the 1978 Great Lakes Water Quality Agreement)
- An eco-system based approach to environmental protection.
We believe that the current proposed regulations fall short in meeting the requirements of these principles and that a more serious attempt to reflect the core values of these principles would have provided a regulation that indeed "modernized" the regulations developed a quarter of a century ago and one with far greater potential to protect environmental and human health.
To conclude, we advise that the existing MMER can be substantially improved by taking the concrete recommendations provided by participants in the MMLER review process, and outlined above, into consideration.