Patrick Finlay
Chief
Environment Canada
Mining, Minerals and Metals
351 St-Joseph Boulevard
Hull, Québec
K1A 0H3
Regarding: New Metal Mining Effluent Regulation (MMER)
Dear Mr. Finlay,
Is it good enough to protect the health of Canadians, or our fish, wildlife, and water?
Ten years ago, Environment Canada set out to strengthen and update the regulation for mine effluent. Pollution from mines can harm the environment generally, especially for the people and communities that depend on surface and ground water sources and on fish and wildlife for food. A review of the 1977 regulation was undertaken through a series of extensive consultations involving the mining industry, aboriginal and environmental organizations, and federal, provincial, and territorial government agencies. The new Metal Mining Effluent Regulation was released by Environment Canada on 28 July, 2001. ENGO participants in the process are satisfied with some aspects of the new regulation, but remain concerned that it doesn't go far enough to protect aquatic resources. These comments are a summary of comments expressed by some member groups (see list below) of the Mining Caucus of the Canadian Environmental Network.
What's in the new regulation?
- All gold mines now come under the regulation.
- Cyanide is now included as a regulated substance.
- The allowed limit of total suspended solids (TSS) is reduced from a monthly average of 25 mg/l to 15 mg/l.
- An upper limit for pH to 9.5 has been added.
- Mine effluent is now required to be non-acutely lethal to rainbow trout (50% of test trout must survive 96 hrs exposure to effluent).
- Expanded environmental monitoring is now required.
- Alice Arm Tailings Deposition Regulation revoked; no tailings dumping without Cabinet approval.
What was left out?
- The proposed limits of pollutants are too high and cannot guarantee protection of water. Allowable limits for arsenic, copper, lead, nickel, and zinc remain the same as in the old regulation. Key pollutants, such as cadmium and mercury, are still not on the list of regulated contaminants.
- No requirement to produce effluent that is non-acutely lethal to water fleas (Daphnia magna), but there is now a requirement to use these organisms to test lethality and report test results to Environment Canada.
- No direct linkage of Environmental Effects Monitoring (EEM) results to the regulation, and no requirement to remedy site-specific problems that are discovered through EEM reporting.
- 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 toxicity registry.
While the process resulted in improved legislation that will benefit Canadians and the mining industry, we are disappointed with the new regulation for the following reasons:
- We do not believe it will protect the aquatic environment or human health to the degree necessary-or technically and economically feasible.
- It does not reflect the principles agreed upon in other federal processes, such as the precautionary principle, ecosystem-based approach, and sustainable development.
- It is not based on Best Available Technology and does not promote innovation in developing new technologies, something Canadians have become world-famous for in the past.
- And, in spite of millions of taxpayer dollars spent on Environment Canada's Pollution Prevention Program, it is not based on pollution prevention, which is a cost-effective way to help achieve sustainability in the mining industry.
BACKGROUNDER ON THE NEW MINING EFFLUENT REGULATION
The Metal Mining Liquid Effluent Regulation (MMLER) under the Fisheries Act became law in 1977. In 1990, Environment Canada announced its intention to update and strengthen the MMLER. Environment Canada established the AQUAMIN process to review the aquatic effects of mining and develop recommendations for an improved regulation.
The AQUAMIN process (1993-1996) involved approximately 100 representatives from federal, provincial, and territorial governments; the mining industry, First Nations organizations, and environmental non-government organizations (ENGOs). During that time, over 700 reports related to more than 95 Canadian mine sites were reviewed, and detailed case studies were conducted for 18 sites. In 1996, results of the AQUAMIN process were released in a report titled, AQUAMIN: Assessment of the Aquatic Effects of Mining in Canada. This final report advanced more than 50 recommendations in three key areas: specific amendments to the MMLER, the design of a national EEM program, and information gaps and research needs.
A subsequent advisory process was established with the goal of completing revisions to the MMLER by 2000. This phase of the review involved a multi-stakeholder advisory group and several technical working groups to prepare recommendations for developing the new MMER. The groups met on a regular basis between 1997 and 1999. Members of the Mining Caucus, convened through the facilitation of the Canadian Environmental Network, were involved in the process from the beginning, and a number of delegates sat on the main advisory groups and each of the working groups.
More specifically, Mining Caucus participants have the following comments on the new MMER:
1. We welcome the requirement that effluent be non-acutely lethal to rainbow trout. Acute toxicity testing is an effective method for detecting biological effects of contaminants that could harm local watersheds or aquatic ecosystems. We are disappointed that the requirement is only for rainbow trout and not for Daphnia (water fleas). The effluent should be non-acutely lethal for both because the two indicators provide subtly different information about the lethal effects of effluent; using both confers greater confidence in assessing acute lethality of effluent. The new regulation requires monitoring with Daphnia and reporting test results, but doesn't require the effluent to be non-acutely lethal to Daphnia.
2. The addition of other metals (especially cadmium and mercury) to the list of deleterious substances has been a matter of discussion. If the general provisions of the Fisheries Act were enforced, they could provide greater protection of aquatic environments than the Regulation, but there is potential that leaving substances off the list could result in a more protected environment. However, given the failure to enforce even the minimally protective MMLERs over the past 21 years, there may be little hope that the more protective general provisions of the Fisheries Act could actually be relied upon. On balance, it is our view that mercury and cadmium should be added to the list of deleterious substances. 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.
3. The proposed limits for the various parameters are too high and should be based on loadings (to the receiving environment), rather than be concentration based, which is affected by the volume of water in the effluent (seasonally variable) and in the receiving environment, and by background (pre-existing) conditions. 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.
4. The recommendations of AQUAMIN stressed the need for an effective EEM program to allow for continuous improvement in treating mining effluent and provide a scientifically defensible basis for establishing, where necessary, site-specific remedies or more stringent site-specific measures to protect fish, fish habitat, and fisheries. This trigger or linkage providing a regulatory requirement to adapt the MMER or implement site-specific remedies based on data derived from the EEM process is still missing from the regulation.
5. The regulation does not require a comprehensive way to provide information collected under the regulation to the Canadian public. Monitoring, inspection, prosecution, and EEM data should be easily available to the public. A web page may be the most efficient way to present the data, however, it may not be necessary to describe the specifics of the delivery mechanism in the actual regulation. What is clearly necessary is a requirement in the regulation to provide this information to the public.
6. We are pleased to see the Alice Arm Tailings Deposition Regulation revoked. While marine dumping of mine tailings was prohibited under the MMLER, the existence of that site-specific regulation was frequently used by international mining companies to justify the practice. A permit for marine dumping will now require an amendment of the MMER and will have to be approved by Cabinet; requesting an amendment will now also trigger the Canadian Environmental Assessment Act and provincial environmental assessment processes.
The fundamental objective of the new MMER — to improve the management of metal mine effluents — has been achieved, but just barely. We don't see how the new regulation protects the environment to the extent that is economically and technically achievable or how it promotes the concept of sustainable development.
Should you need more information, please contact:
- Brennain Lloyd, Northwatch (North Bay, Ontario): 705-497-0373
- Burkhard Mausberg, Canadian Environmental Defense Fund (Toronto): 416-323-9521
- Catherine Coumans, MiningWatch Canada (Ottawa): 613-569-3439
- Lisa Sumi, Environmental Mining Council of BC (Victoria): 250-384-2686.
Sincerely,
Northwatch
Environmental Mining Council of BC
Canadian Environmental Defense Fund
MiningWatch Canada
Citizens' Network on Waste Management
Great Lakes United
Canadian Environmental Law Association
The Green Group
STORM Coalition
CLEANf/Ld
Environmental Law Centre
Le Club d'ornithologie du Madawaska
Earth Action
Clean North
West Coast Environmental Law
Société pour Vaincre la Pollution
Tusket River Environmental Protection Association