The new Metal Mining Effluent Regulations (MMERs) finally became law on June 19, 2002 with their publication in Part II of the Canada Gazette.
On July 28, 2001 the new (MMERs) were published in the Canada Gazette, Part I and a public consultation period was open until September 26, 2001. During this time Environment Canada received 23 submissions.
Thirteen submissions came from mining companies (including the iron ore companies Wabush Mines, the Iron Ore Company of Canada and La Compagnie Minière Québec Cartier) and mining associations including the Mining Association of Canada, the Ontario Mining Association, and the Association Minière du Québec.
The only provincial government to provide comments was that of Newfoundland and Labrador. The government of Newfoundland and Labrador argued that the Wabush and Iron Ore Company of Canada mines should remain excluded from the new MMERs, as they had also been excluded, through "grandfathering," from the Metal Mining Liquid Effluent Regulations (MMLERs) promulgated in 1977.
Alternatively, the government of Newfoundland and Labrador requested that provisions be made to facilitate the inclusion of the tailings facilities of the two iron ore mines in Schedule Two of the new MMERs, which authorises the use of lakes and rivers as tailings impoundments. The tailings facilities of these two mines do not currently qualify for inclusion in Schedule Two. It is certain that the Iron Ore Company of Canada will not be able to meet the requirements for inclusion in Schedule Two within the two year Transitional Authorization period allowed under the MMERs. One submission came from an academic who argued that the costs of compliance with the proposed MMERs would be onerous for the three iron ore mines. Two submissions came from private citizens and one from a consultant.
Five submissions came from non-governmental organizations (NGOs), including MiningWatch Canada and Northwatch. The Mining Caucus of the Canadian Environmental Network also provided comments, signed by seventeen ENGOs.
Between Gazette I and Gazette II, Environment Canada held bilateral meetings with a number of commentators and some changes were made to the regulatory text as it appeared in Canada Gazette, Part I.
A significant change from Gazette I to Gazette II was the addition of another Transitional Authorization period of 2 years, following consecutively on the first two year Transitional Authorization period, specifically for mines that cannot meet the requirements for Total Suspended Solids. Mining companies wanting to avail of this option will need to provide documented engineering evidence to the effect that there is no feasible alternative to requesting another Transitional Authorization period. This second Transitional Authorization period is needed for the Iron Ore Company of Canada to be able to come into compliance with the new MMERs. However, as officials from Environment Canada acknowledge during a briefing session on July 5, 2002, other mines will likely avail of this new provision as well.
Other changes made between Gazette I and II include:
- adjustment of the definition of "effluent" to specifically exclude effluent from sewage treatment facilities;
- allowing for the deposit of waste rock into a tailings impoundment area;
- requiring monitoring for cyanide only by those mines that use cyanide as a process reagent;
- allowing for quarterly sampling for radium-226 at non-uranium mines following 10 consecutive tests results that are less than 10% of the authorized monthly mean concentration;
- harmonizing the method detection limits and the calculation of loading with the approach of Ontario's MISA Program;
- allowing for relief in monitoring frequency when unforeseen circumstances (e.g., winter storms) cause safety concerns or access problems and render the collection of samples of effluent impracticable;
- allowing for the relocation of records from the mine site to another location in Canada once a mine becomes a recognized closed mine; and
- allowing for a limited number of mines to apply for a second transitional authorization, for total suspended solids only, two years after the regulations come into effect; this transitional authorization may only be applied for if it can be demonstrated that there is no feasible alternative available to the mine operator based on documented evidence of engineering necessity.
Foreseeable Amendments to the MMERs
The MMERs are promulgated under the Fisheries Act. The Fisheries Act prohibits the dumping of deleterious substances in waters frequented by fish (section 36) and the destruction of fish habitat (section 35). It would seem that these prohibitions would prohibit the use of natural water bodies containing fish habitat as tailings impoundments (tailings do not meet the effluent standards set out in the MMERs). However, in the MMERs there is a Schedule 2 that defines a number of existing tailings impoundments in lakes and rivers as authorized tailings impoundment areas.
Furthermore, Environment Canada expects imminent requests for amendments to the new MMERs (requiring approval of Governor in Council and the Cabinet) so that more mining companies that dump tailings into natural water bodies, or plan to in the future, may be included on Schedule 2. These requests for amendments to the new MMERs are expected to come from the iron ore mines (Wabush Mines and the Iron Ore Company of Canada) and from a couple of unspecified gold mines, according to Environment Canada officials.
The regulations can be viewed on the Internet at http://www.ec.gc.ca/nopp/metals/mmer/english/index.htm. (For more information and history see the media release and Backgrounder on our web site.)