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Statutory authority: Fisheries Act
Sponsoring department: Department of Fisheries and Oceans
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The purpose of the proposed Regulations Amending the Metal Mining Effluent Regulations (hereinafter referred to as the proposed “amendments”) is to clarify the requirements of the Metal Mining Effluent Regulations (MMER) [hereinafter also referred to as the “Regulations”] by addressing matters related to the interpretation and clarity of the regulatory text, which have emerged through experience from implementing the Regulations.
Also proposed are amendments to provisions related to environmental emergencies. These amendments will ensure consistency with the Environmental Emergency Regulations under the Canadian Environmental Protection Act, 1999 (CEPA 1999) and the recent Regulations Amending the Pulp and Paper Effluent Regulations. New provisions are proposed to require the preparation of habitat compensation plans for any water bodies to be added to Schedule 2 for use as tailing impound areas (TIAs).
In addition, the proposed amendments include additions of two fish-bearing water bodies as TIAs to Schedule 2 of the MMER. These water bodies are related to one mining project in Newfoundland and Labrador.
No fundamental changes to the policy objectives, scope or requirements of the Regulations are being contemplated at this time.
The proposed amendments would come into effect on the day they are registered.
Legal and technical refinements proposed as part of the amendments to the MMER are based on the implementation experience of Environment Canada and other stakeholders since the MMER came into force in 2002. The proposed amendments do not change the intent or scope of the MMER. These amendments will help ensure a more consistent application and interpretation of the MMER across Canada, improve the quality and consistency of data submitted to Environment Canada, and improve the effectiveness of enforcement of the Regulations.
An amendment to the definition of milling is proposed. Three uranium mills in Saskatchewan, which are currently subject to the MMER, are planning to change their processes in the next few years. The amendments will ensure that these facilities will continue to be regulated under the MMER.
The amendments clarify data collection, assessment and reporting methods. For example, the current MMER require that mines collect samples not less than once per week and that samples be collected “not less than four days apart.” This can be problematic for mines in jurisdictions where more frequent sampling is required, such as those in Ontario. Therefore, a new requirement proposes that samples be collected “not less than 24 hours apart.” In addition, it is proposed to have mine operators notify Environment Canada when a mine is planning to reduce the frequency of testing of a deleterious substance. This will help avoid incorrect assumptions concerning eligibility for such reductions.
The MMER are not clear on the Government of Canada’s intent as to where a sample should be collected for acute lethality testing in the event of a deposit out of the normal course of events. To clarify this, it is proposed that the sample be collected at the place where the deposit occurs.
The MMER require mines to identify, 30 days in advance, the date when a sample will be collected for acute lethality testing. However, if there is no effluent discharge on that date, there is no requirement to collect the missed sample at a later date. It is now proposed that a sample be collected as soon as possible after the initially scheduled day.
The MMER require that, in the event that a sample is acutely lethal, the frequency of acute lethality testing must be increased at all final discharge points (FDPs) for sites with more than one FDP. However, experience has shown that effluent from different FDPs is unique. It is now proposed that the frequency of sampling for acute lethality testing be increased only at the FDP from which the acutely lethal sample was collected.
The MMER provisions for the measurement of flow create reporting challenges to mines that are using continuous online monitoring systems to measure effluent volume. To accommodate these mines, it is proposed that these provisions be amended to enable such mines to use these systems as a basis for reporting the volume of effluent discharged and to calculate deposit loadings.
At present, it is not clear in all cases how monthly mean concentrations and monthly loading are calculated in the event that one or more results are less than the method detection limit (MDL) used for the analysis. Therefore, it is now proposed that in all cases where the analytical result is less than the actual MDL, a value of one-half the actual MDL be used in the calculations of monthly mean concentrations and mass loading.
For consistency with recent amendments to the Pulp and Paper Effluent Regulations, changes are proposed to the definitions of “effect on the benthic invertebrate community” and “effect on the fish population.”
Schedule 6 of the MMER describes the format for annual reports, which summarize the effluent monitoring results for the previous year. A number of minor amendments are proposed to this schedule to improve the quality and consistency of data provided in these reports.
In addition, amendments to the provisions for the preparation of environmental emergency plans are proposed. These changes are intended to help ensure consistency with the Environmental Emergency Regulations. Changes to these provisions will provide greater clarity regarding the preparation of environmental emergency plans, including their content and timelines for their preparation and update. The changes also add a requirement that plans be tested to help ensure that they can adequately deal with potential emergencies.
The proposed amendments include the addition of section 27.1. This section will require the preparation and approval of a habitat compensation plan before a mine can deposit a deleterious substance, such as tailings, into a TIA set out in Schedule 2. It will also describe the purpose and contents of the plan and other relevant provisions. The text of this section was developed with officials of the Department of Fisheries and Oceans (DFO) and the Department of Justice.
The basis of these provisions is DFO’s “Policy for the Management of Fish Habitat” (1986). The objective of this policy is to “increase the natural productive capacity of habitats for the nation’s fisheries resources, to benefit present and future generations of Canadians.” Key to this policy is the principle of “no net loss.” Under this principle, DFO strives to “balance unavoidable habitat losses with habitat replacement on a project-by-project basis so that further reductions to Canada’s fisheries resources due to habitat loss or damage may be prevented.” This policy has been applied to mining projects since 1986, and habitat compensation agreements have been negotiated for a number of mining projects.
The requirement for preparation of habitat compensations plans in relation to mining activities is not new. However, the addition of this section to the MMER clarifies the requirements with respect to such plans and provides a clear basis for the enforcement of the terms of the habitat compensation plans.
The mining company Aur Resources Inc. has proposed to use two water bodies as TIAs at its Duck Pond Copper-Zinc Project, located in west-central Newfoundland. An environmental assessment (EA) of the project, under the Canadian Environmental Assessment Act (CEAA), was initiated in 2000, with DFO as the lead responsible authority for the federal government. Public hearings were held as part of the EA process.
In January 2002, the Environment Minister for the province of Newfoundland and Labrador permitted the project to proceed. The final report of the CEAA EA, released in June 2003, concluded that “the project is not likely to cause significant adverse environmental effects.” However, the EA also determined that “fish habitat will be harmfully altered, disrupted and/or destroyed and as a result will require an Authorization under subsection 35(2) of the Fisheries Act. Issuance of an Authorization will require a Compensation Plan and Agreement . . .”
Subsequently, in June 2005, DFO recommended that Environment Canada proceed with the proposed addition of the two water bodies to Schedule 2 of the MMER. In addition, a habitat compensation plan is being developed and, in accordance with the proposed section 27.1 of the MMER described above, the habitat compensation plan would need to be approved before the mining company could begin depositing tailings in the TIAs to be listed on Schedule 2 of the MMER.
The only alternative to the proposed MMER amendments is to maintain the status quo. But, if the status quo is maintained, then the lack of clarity with respect to some sections of the MMER would persist and would continue to be subject to ambiguous interpretation by the regulated community and enforcement officers. In addition, this would have significant implications for the implementation of the Aur Resources Inc. Duck Pond Project, in terms of employment and other economic benefits to the local and provincial economies. Therefore, the status quo has been rejected.
The majority of the legal and technical refinements to the MMER are not expected to have any associated incremental costs.
Amendments to the provisions for the preparation of environmental emergency plans may have some associated incremental costs for some sites. The current MMER require mines to prepare emergency plans. The proposed amendments would clarify what is expected in the preparation of plans and add a requirement that plans be tested.
During consultations for the development of the Environmental Emergency Regulations, it was confirmed that many large facilities, including mining facilities, already had emergency plans in place for safety, liability and insurance reasons. However, feedback at that time indicated that some facilities may need to make some amendments to their existing plans, particularly in the prevention and recovery areas.
As a result, some moderate costs associated with any necessary modifications to existing emergency response plans, as well as the testing of plans, are expected. For those sites that have prepared and tested emergency plans under the Environmental Emergency Regulations, no additional costs are expected. At present, about one third of mines subject to the MMER are also subjected to the Environmental Emergency Regulations.
There will be no incremental compliance costs associated with provisions regarding the preparation of habitat compensation plans since, as described above, this requirement is not new.
There will be some environmental costs associated with the proposed additions of water bodies to Schedule 2. However, the associated habitat loss will be compensated through the implementation of a habitat compensation plan, based on DFO’s “Policy for the Management of Fish Habitat,” with the aim being that there will be no net loss of fish or fish habitat as a result of the project. There is no commercial fishing in the project area. There may be a small degree of sport fishing, but the expected incremental cost to the sector is considered negligible in view of the implementation of the habitat compensation plan.
A compliance and enforcement regime is already in place for the MMER. Amendments to the MMER will not result in any incremental costs for the Government.
Legal and technical refinements will improve the clarity of the MMER and assist in more consistent application of the Regulations. Some of these amendments will also enhance the enforceability of the MMER. Changes to some provisions will help improve the quality of data provided to Environment Canada.
Changes to the provisions for environmental emergencies will provide greater clarity and will ensure consistency with the provisions of the Environmental Emergency Regulations, which also apply to some mining operations. In addition, clearer requirements in this regard will help improve planning for environmental emergencies, promoting the prevention of, preparedness for, response to and recovery from environmental emergencies.
The proposed addition of the requirement to prepare habitat compensation plans will help clarify expectations regarding such plans and will help to ensure their enforceability.
The addition to Schedule 2 of water bodies associated with the Aur Resources Inc. Duck Pond Project will ensure that this project can proceed as planned by the proponent. The associated employment and other economic benefits to the local and provincial economies are significant.
The implementation of a habitat compensation plan will ensure that there is no net loss of fish habitat as a result of the use of these water bodies as TIAs. Under the proposed compensation plan, the proponent will remove an existing dam on the mainstream of Harpoon Brook, a tributary of the Exploits River. The removal will re-establish riverine conditions for a distance of approximately eight kilometres. This will improve access throughout this area for Atlantic salmon and will facilitate the creation of salmon spawning and rearing habitat within this river reach. The proponent will also compensate for the loss of lake habitat by increasing the salmonid productive capacity of a neighbouring pond, by increasing the quality and quantity of spawning habitat, and by improving access to the pond for juvenile and adult fish. DFO will ensure appropriate mitigation, habitat compensation and compliance, through a monitoring and follow-up program for fish and fish habitat, to verify that all measures are functional and that the gain in fish productivity is documented for both riverine and lake conditions. Therefore, habitat compensation will result in a net benefit from the project.
With better enforceability and technical refinements, along with positive net benefit from the addition of water bodies to Schedule 2, the net impact of the proposed amendments is expected to be positive.
In the fall of 2004, Environment Canada hosted a multi-stakeholder pre-consultation “Workshop on Possible Amendments to the MMER.” Workshop participants included representatives from federal, provincial and territorial governments, the mining industry and environmental non-governmental organizations (ENGOs). Based on the discussions that took place during the Workshop, the participants recognized that the MMER were strong regulations, but that minor changes would help improve their clarity. It was recommended that Environment Canada encourage the participation of provincial and territorial representatives in the process. Finally, it was agreed that effective communication remains key to the success of the Regulations and of the amendment process.
Following the Workshop, Environment Canada established an MMER Multi-stakeholder Advisory Group (MAG), to provide advice to Environment Canada during the development of possible amendments to the Regulations. Members of the MMER MAG are the following:
In addition, the Canadian Nuclear Safety Commission and the provinces of Newfoundland and Labrador, Nova Scotia, Quebec and Alberta are observers of the MAG process and receive related correspondence.
Teleconferences of the MMER MAG were held in April, May and September 2005, and a face-to-face meeting was held in June 2005.
Overall, and particularly with respect to legal and technical refinements, there was broad agreement among MMER MAG members on the intent of the proposed amendments. However, concerns that have been raised by stakeholders include the following:
The same compliance and enforcement provisions for the MMER will apply for the proposed amendments.
Mr. Patrick Finlay, Director, Minerals and Metals, Pollution Prevention Directorate, Environment Canada, 351 Saint-Joseph Boulevard, Gatineau, Quebec K1A 0H3, (819) 953-1103 (telephone), (819) 953-5053 (fax), patrick.finlay@ec.gc.ca (email), or
Ms. Céline Labossière, Policy Manager, Impact Analysis and Instrument Choice Division, Environment Canada, 10 Wellington Street, 24th Floor, Gatineau, Quebec K1A 0H3, (819) 997-2377 (telephone), (819) 997-2769 (fax), celine.labossiere@ec.gc.ca (email).
Notice is hereby given that the Governor in Council, pursuant to subsections 36(5) and 38(9) of the Fisheries Act, proposes to make the annexed Regulations Amending the Metal Mining Effluent Regulations.
Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Mr. Patrick Finlay, Director, Minerals and Metals Branch, Pollution Prevention Directorate, Environment Canada, 351 Saint-Joseph Boulevard, Gatineau, Quebec K1A 0H3.
Persons making representations should identify any of those representations the disclosure of which should be refused under the Access to Information Act, in particular, under sections 19 and 20 of that Act, and should indicate the reasons why and the period during which the representations should not be disclosed. They should also identify any representations for which there is consent to disclosure for the purposes of that Act.
Ottawa, March 30, 2006
DIANE LABELLE
Acting Assistant Clerk of the Privy Council