Vol. 151, No. 19 — May 13, 2017

Regulations Amending the Metal Mining Effluent Regulations

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: Since 2002, the Metal Mining Effluent Regulations (the MMER) have delivered significant improvements in metal mine effluent management across Canada. Assessments of effluent data indicate, however, that there are continued risks to fish and fish habitat in the vicinity of some mines. Concerns have also been raised regarding the value of certain monitoring activities undertaken by mines and a lack of regulatory clarity for diamond mines (which currently do not fall within the scope of the MMER).

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

Cost-benefit statement: The proposed Amendments would reduce risks to fish and fish habitat, improve government oversight of metal and diamond mine effluent in Canada, and incorporate diamond mines into the MMER. The proposed Amendments would generate incremental costs of $35 million to industry and the Government and cost savings of $9.5 million to the metal mining sector, for a net incremental cost of $25.5 million for industry and the Government over the 2018 to 2027 time frame of analysis.

“One-for-One” Rule and small business lens: The proposed Amendments are considered an “IN” under the Government of Canada’s “One-for-One” Rule. For both metal and diamond mines, the net increase in annualized administrative costs would be approximately $5,800, or $40 per mine. (see footnote 1), (see footnote 2) The small business lens would not apply to the proposed Amendments.

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

Background

Mining operations produce waste (e.g. effluent, tailings, 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 Metal Mining Effluent Regulations (the MMER).

The MMER authorize the release of certain deleterious substances from metal mines into fish-frequented waters, provided that the concentration of these substances does not exceed the limits prescribed in Schedule 4 and the effluent is not acutely lethal to fish. (see footnote 3) The MMER also include provisions for the authorization of mine waste disposal in fish-frequented waters for the purposes of a mine waste disposal area. (see footnote 4) This authorization requires that these water bodies be added, by the Governor in Council, to Schedule 2 of the MMER. Also prescribed are performance measurement and evaluation requirements for environmental effects monitoring (EEM), which include effluent and receiving water quality monitoring and biological monitoring studies (e.g. fish population studies, benthic invertebrate community studies). There are currently approximately 130 metal mines in Canada subject to the MMER, and 24 bodies of water were listed on Schedule 2 as of April 1, 2017. (see footnote 5)

In addition to these federal protections, provinces and territories have instruments that regulate mining activities, and these provincial measures may include provisions relating to mining effluent.

The MMER were introduced in 2002 to reduce the concentrations of deleterious substances being released into Canadian waters and to ensure that metal mining effluent is not acutely lethal to fish. Since 2002, reported results have shown that the vast majority (over 95%) of effluent from the metal mining sector is not acutely lethal to fish and that the sector has maintained over 95% compliance with Schedule 4 limits. While metal mining effluent is not acutely lethal, national assessments of EEM data from metal mines have shown that sublethal effects are being seen around some mines. The Third National Assessment (see footnote 6) reported that approximately 48% of metal mines have confirmed (see footnote 7) the presence of sublethal effects (see footnote 8) on fish and fish habitat between 2002 and 2013. This assessment also indicates that effluent has affected the survival, growth, reproduction, liver size and body conditions (see footnote 9) of fish. These effects are generally attributed to the collective impact of substances in effluent discharge.

The Canadian diamond mining sector has grown from one mine in 2002, when the MMER came into effect, to six mines today. Diamond mining generates effluent that can contain deleterious substances, and this effluent must either be stored or treated and released, given that diamond mines are subject to the general prohibition under the Fisheries Act. However, diamond mines face uncertainty because of a lack of clarity related to compliance with the general prohibition, even though they are in compliance with requirements established by the provinces and territories.

Issues

Since 2002, the Metal Mining Effluent Regulations (the MMER) have delivered significant improvements in metal mine effluent management across Canada. Assessments of effluent data indicate, however, that there are continued risks to fish and fish habitat in the vicinity of some mines. Concerns have also been raised regarding the value of certain monitoring activities by mines and a lack of regulatory clarity for diamond mines (which currently do not fall within the scope of the MMER).

Objectives

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

The majority of the proposed Amendments would come into force on the day on which they are registered, which is expected to take place in 2018. The proposed concentration limits for deleterious substances and the requirement that effluent not be acutely lethal to Daphnia magna would come into force three years after the date of registration, in 2021.

Proposed authorized limits of deleterious substances

Beginning in 2021, for mines that would become subject to the MMER three years after the proposed Amendments are published in the Canada Gazette, Part II, or for recognized closed mines that reopen after this date, the proposed Amendments would impose more stringent limits for arsenic, copper, cyanide, lead, nickel, and zinc, as well as introduce limits for un-ionized ammonia. For all other mines, the proposed Amendments would impose more stringent limits for arsenic, cyanide, and lead, as well as add limits for un-ionized ammonia.

Non-acute lethality requirements

Beginning in 2021, the proposed Amendments would 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 that is sensitive to different substances than rainbow trout, which is already used to determine acute lethality in the MMER. An effluent would be 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 proposed 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 proposed Amendments would 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 saline environments. Mines that meet this scenario would not be required to test for Daphnia magna. The proposed Amendments would specify a test method pertaining to the threespine stickleback.

Environmental effects monitoring requirements

Beginning in 2018, several amendments are proposed to improve the efficiency of the environmental effects monitoring (EEM) performance measurement and evaluation requirements, without compromising environmental protection.

The proposed Amendments would 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 proposed Amendments would also focus sublethal toxicity testing on the most sensitive test species, while increasing testing frequency for improved data. In addition, the proposed Amendments would focus biological monitoring studies on aquatic communities facing situations of higher risk for environmental effects. The mercury in fish tissue threshold would also be amended to reduce the number of studies required in situations with low risk of effect on fish tissue.

The proposed Amendments would 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. The proposed Amendments would also remove the current requirement for mines to conduct magnitude and geographic extent studies, which would allow mines to progress more quickly to determine the cause of their confirmed effects on fish and fish habitat.

Expansion of the scope of the MMER to diamond mines

Beginning in 2018, the proposed Amendments would expand the MMER to cover the diamond mining industry. All of the provisions applicable to metal mines would also apply to diamond mines, including provisions that allow for the use of fish-frequented waters for mine waste disposal areas (i.e. Schedule 2).

Regulatory and non-regulatory options considered

Environment and Climate Change Canada (the Department or ECCC) currently regulates effluent discharges from metal mines under the MMER, and considered maintaining this regulatory status quo or updating the regulatory requirements as in the proposed Amendments.

Status quo approach

The status quo approach would maintain the current MMER. The Department would miss an opportunity to tighten effluent concentration limits, and improve the monitoring and management of metal and diamond mining effluent that is 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

A non-regulatory approach would not be feasible, as the Fisheries Act does not allow for non-regulatory instruments to authorize the deposit of deleterious substances. The proposed Amendments would build on the existing regulatory approach, which sets national minimum standards for effluent quality for metal mines 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 deleterious substances is expected to result in reduced concentrations of deleterious substances discharged to surface waters in Canada. The proposed Amendments would also provide diamond mines with regulatory clarity and provisions for mine waste disposal areas in fish-frequented waters. As a result, a regulatory approach under the Fisheries Act was taken by the Department.

Benefits and costs

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

There would be new costs for diamond mines, which would be subject to the proposed Amendments, and additional costs to the metal mining sector attributed to the proposed Amendments. However, it is expected that the proposed EEM requirements would generate cost savings (benefits) for the metal mining sector and would focus monitoring efforts on situations of higher risk of environmental threats to fish and fish habitat.

The costs and benefits of the proposed Amendments have been assessed in accordance with the Canadian Cost-Benefit Analysis Guide published by the Treasury Board of Canada Secretariat (TBS). (see footnote 10) The expected impacts of the proposed Amendments are presented in the logic model (Figure 1) below:

Figure 1: Logic model for the analysis of the proposed Amendments

Compliance with
the proposed
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 benefits and costs was conducted using base case and regulatory scenarios. For metal mines, the base case scenario assumes a status quo in which mines are compliant with the current MMER, while the regulatory scenario assumes that mines are compliant with the proposed Amendments. For diamond mines, the base case scenario assumes a status quo in which 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 proposed Amendments.

The proposed Amendments would be phased in, with some changes expected to come into force in 2018 and the remainder in 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 proposed Amendments.

It is expected that 25 metal mines would be required to make changes to their treatment methods to comply with the more stringent concentration limits on deleterious substances (i.e. arsenic, cyanide, and un-ionized ammonia) and Daphnia magna requirements. Consequently, environmental benefits are expected to be generated from these mines. For the remaining mines, historic data indicate that they would be able to meet the proposed provisions for all deleterious substances and Daphnia magna without making changes to their current treatments. While there are no expected environmental benefits resulting from these remaining mines, the proposed provisions establish a more stringent national baseline for continued improvement across the mining sector.

The environmental benefits of the proposed 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 have been assessed qualitatively.

Costs and cost savings are quantified and monetized in 2016 Canadian dollars. The analysis includes growth rates for metal and diamond mines in Canada, based on historical trends. Metal mines are forecast to grow at an annual rate of 3%, while diamond mines are forecast to grow at an annual rate of 5%. It is estimated that in 2018 there would be 141 metal and 6 diamond mines, and by 2027 there would be 184 metal and 9 diamond mines.

Industry compliance costs

The metal and diamond mining sectors are expected to assume incremental compliance and administrative costs in order to comply with the proposed Amendments. Increased costs to Government are also expected.

Cost of incorporating diamond mines into the MMER

Beginning in 2018, the proposed Amendments would expand the MMER to include the diamond mining sector. It is expected that only one of the six diamond mines would assume incremental capital costs in order to construct a dam or a weir to become compliant with the proposed Amendments. The incremental cost associated with this requirement was estimated using the AMDTreat software. (see footnote 11) The incremental capital cost of incorporating this diamond mine into the MMER is estimated to be $2.1 million.

Costs to comply with more stringent limits for deleterious substances

Incremental compliance costs to metal mines from the proposed modifications to arsenic, cyanide, and un-ionized ammonia effluent limits would begin in 2018. There are no expected incremental costs to diamond mines from this requirement because these mines are already able to meet the proposed limits in Schedule 4. It was also assumed that future mines would adopt the best technology available to treat effluent under the base case 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 proposed Amendments after 2021. (see footnote 12), (see footnote 13)

The Department used historical data between 2012 and 2014 to identify mines that would likely need to modify their effluent treatment in order to comply with the proposed limits for deleterious substances. (see footnote 14) Based on these data, it is estimated that eight metal mines would be affected by the proposed effluent limits for arsenic, cyanide, and un-ionized ammonia. It is not expected that any metal mines would 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. (see footnote 15) 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 mines is estimated to require annual capital costs of $6,671,636 (between 2018 and 2021) and annual operating costs of about $1,452,903 (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 and maintenance costs of $8.2 million.

The total cost (capital plus operating) across the eight affected mines resulting from the proposed limits for deleterious substances would be approximately $27.2 million between 2018 and 2027. (see footnote 16)

Cost of testing effluent for concentrations of deleterious substances

There would be incremental costs to both sectors from effluent testing for the concentration of 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. (see footnote 17)

For metal mines, incremental costs would arise from the addition of the requirement to test for un-ionized ammonia. All forecasted metal mines would be required to test for un-ionized ammonia; however, there would be no 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 forecasted diamond mines would need to begin testing for some deleterious substances for which they do not currently have testing requirements, which would 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 the proposed Schedule 4 substances

Type of substance

Cost per Sample

Un-ionized ammonia

$15

Metals

$54

Radium 266

$152

Suspended solids

$12

Incremental costs for effluent testing for affected metal mines would be $500,824, and $87,288 for affected diamond mines over the time frame of analysis. The total incremental cost from testing deleterious substances is estimated at $588,112 between 2018 and 2027. (see footnote 18)

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

In 2021, the proposed Amendments would require that mines ensure that effluent is not acutely lethal to Daphnia magna.

Based on data collected by the Department between 2011 and 2014, approximately 19 mines are expected to carry incremental costs to comply with the proposed Daphnia magna non-acute lethality requirement (most mines are already expected to conform with this requirement). It is assumed that future metal mines would, under base case and regulatory scenarios, implement effluent treatment systems that would enable them to achieve compliance with the proposed non-acute lethality requirement. (see footnote 19)

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

Estimated costs for the metal and diamond mining sectors are based on the following costs per test, shown in Table 2 below. (see footnote 20) Mines that fail acute lethality testing would be required to conduct additional testing.

Table 2: Cost per test used for the proposed non-acute lethality requirement

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

Based on information provided by stakeholders during consultations, it is assumed for metal mines that the number of Daphnia magna acute lethality test failures would be reduced by 30% each year after the coming-into-force of the proposed requirement. The costs associated with shipping and testing are estimated at $98,930 over the time frame of analysis for the metal mining sector. The costs to the diamond mining sector are expected to be approximately $100,225. The total cost for the proposed Daphnia magna non-acute lethality requirement for metal and diamond mines is estimated at $199,155.

Environmental effects monitoring costs

The costs of the proposed 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 sublethal toxicity testing requirements, and additional water quality monitoring.

Cost for enhanced selenium in fish tissue monitoring

In 2018, the proposed Amendments would enhance selenium monitoring by adding SeFT studies for mines where the effluent selenium concentrations exceed the proposed threshold. Incremental costs would 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, affected metal mines have been identified as likely to exceed the proposed SeFT threshold. Based on this data, it is expected that approximately 10% of forecasted metal mines would 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 if affected mines currently conduct fish population studies, they would not assume costs to prepare an SeFT study design, as these mines would already have an existing study design and would be able to conduct the fish population and SeFT studies in conjunction. Therefore, approximately 1% of forecasted metal mines would assume 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 already anticipated to be less than the proposed threshold for the fish tissue study. (see footnote 21)

The annual cost per SeFT test is estimated at $2,320 and the annual cost per SeFT design is estimated at $10,991. Over the analytical time frame, the incremental cost to the metal mining sector from the proposed SeFT study requirement would be approximately $578,394.

Cost from amending sublethal toxicity testing requirements

In 2018, the proposed Amendments would streamline the requirements for sublethal 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. The proposed Amendments would also remove the requirement to report one of the SLT test results.

All metal and diamond mines would be affected by the proposed tiered approach. Metal mines would have different incremental costs depending on the test species determined to be most sensitive, 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 currently conduct SLT testing under provincial and territorial permits, but not for all of the species required under the MMER. All diamond mines would be required to add at least one SLT test species (either fathead minnow, or Lemna minor, or both) in order to determine their most sensitive test species.

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

SLT test

Annual Cost per Test (see footnote 22), (see footnote 23)

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 proposed changes to SLT testing are estimated to be $149,849 and $126,245 for metal and diamond mines, respectively. The total incremental cost for both sectors would be $276,095 over the time frame of analysis.

Cost of increased water quality monitoring for diamond mines

The proposed inclusion of diamond mines would result in incremental costs to these mines from water quality monitoring for specified deleterious substances, as current territorial permits require water quality testing at a lower frequency than that required by the MMER. These costs would 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 would be $2,320 over the time frame of analysis (not shown in Table 4 below). (see footnote 24)

Summary of EEM costs

The proposed modifications to EEM would result in incremental costs of $0.7 million to the metal mining sector and $0.1 million to the diamond mining sector over the 2018 to 2027 period. Total incremental costs due to the proposed EEM requirements would be $0.9 million over the time frame of analysis (Table 4).

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

Proposed amendment

2018 to 2020

2021 to 2027

Total

Addition of SeFT studies

0.2

0.4

0.6

Amendment to SLT requirement

0.1

0.2

0.3

Total

0.2

0.6

0.9

Note: Monetary values are discounted 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 $30.9 million between 2018 and 2027. Industry compliance costs to the metal and diamond mining sectors are shown in Table 5 below by proposed standard.

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

Proposed amendment

2018 to 2020

2021 to 2027

Total

Incorporating diamond mines

2.1

0.0

2.1

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

EEM

Addition of SeFT studies

0.2

0.4

0.6

Amendment to SLT testing requirement

0.1

0.2

0.3

Total EEM

0.2

0.6

0.9

Total

21.2

9.7

30.9

Note: Monetary values are discounted 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 that would be carried by metal mines for the proposed Schedule 4 effluent limits and to the incorporation of diamond mines into the MMER. The remaining costs are due to ongoing operating expenses that would be carried by both sectors due to the proposed Amendments.

Industry and government administrative costs and cost savings

The proposed Amendments are expected to result in a net increase in administrative costs to industry of $77,094 between 2018 and 2027. The metal mining sector is expected to have net cost savings of $61,767 (e.g. reduced reporting for EEM requirements yet increased reporting for selenium in fish tissue). An incremental increase in costs of $138,861 is expected for the diamond mining sector to comply with the reporting requirements of the Metal and Diamond Mining Effluent Regulations (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.

Government administrative costs attributed to compliance promotion and enforcement activities are estimated to increase by $50,338 and $1.8 million, respectively. In addition, incremental program administrative costs are expected to be $2.0 million. Overall, incremental government administrative costs are expected to be $3.8 million for the 2018 to 2027 period.

Industry compliance cost savings from the proposed EEM requirements

The metal mining sector is expected to benefit from cost savings from some of the proposed Amendments due to improved EEM requirements. Incremental cost savings attributable to EEM would begin in 2018 and are discussed in the following subsections. Given that diamond mines are not currently subject to the MMER, they would not benefit from incremental savings created by more efficient processes. Furthermore, these mines would face some incremental new compliance costs as a result of being subject to the proposed MMER.

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 proposed EEM requirements. (see footnote 25) Cost estimates were sourced primarily from an EEM cost estimate report or from surveys, both produced by the Department in 1999 (the amounts were adjusted to 2016 dollars).

Cost savings from incorporating critical effect sizes and decoupling studies

The proposed Amendments would 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 are conducted separately. This proposed change is expected to enable approximately 9% of forecasted 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 $11,759, it is estimated that the proposed change would 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 are currently required to conduct BIC studies, regardless of the concentration of their effluent in the receiving environment. The proposed Amendments would add an effluent concentration threshold for the receiving environment that would exempt some mines from conducting BIC studies. Similar to the existing threshold for fish population studies, this proposal would focus efforts on situations of higher risk for impacts on the receiving environment.

It is estimated that approximately 5% of forecasted metal mines would be affected by this proposed 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 $11,759, the cost savings associated with the proposed BIC study exemption would be about $747,050 between 2018 and 2027 for the metal mining sector.

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

All metal mines are currently required to conduct biological monitoring studies under the EEM requirements. The proposed Amendments would remove the requirement to conduct biological monitoring studies for mines that do not discharge effluent for at least 36 months. This proposal would reflect 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 forecasted metal mines would be affected per year. The cost of a joint fish population and BIC study is approximately $32,614 per year while water quality monitoring is approximately $7,081 per year. The cost savings attributed to the proposed exemption from biological monitoring for non-discharging mines would be approximately $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 proposed Amendments would remove the requirement for mines to conduct magnitude and geographic extent (M&E) of the effect studies for BIC and fish population components, which is an additional three-year study. The M&E study slows down the EEM process and delays the identification of the cause(s) of confirmed effects. This proposal would enable 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 would 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 forecasted metal mines would 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 at $31,281 and the cost per year for a BIC M&E study is estimated at $17,638. The cost savings attributed to the proposed removal of M&E studies would be approximately $5.2 million between 2018 and 2027 for the metal mining sector.

Cost savings from amending the mercury in fish tissue threshold

Metal mines are currently required to conduct a mercury in fish tissue study if any single concentration of mercury in their effluent is found to be greater than the prescribed threshold. The proposed Amendments would adjust 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 that meet the current threshold are finding no effects from their mercury in fish tissue studies, indicating that the threshold is too sensitive.

Some metal mines that currently conduct fish tissue studies would not be required to conduct fish tissue studies due to the proposed adjustment to the mercury in fish tissue. (see footnote 26), (see footnote 27) Therefore, about 5% of forecasted metal mines would be affected. The cost of a fish tissue study is approximately $3,664 per year. Based on the cost of the fish tissue study, it is expected that the proposed adjustment to the mercury in fish tissue threshold would result in cost savings of approximately $237,734 to the metal mining industry between 2018 and 2027.

Summary of industry cost savings

Some of the proposed Amendments to the EEM requirements would result in cost savings of about $9.3 million for the metal mining sector. The diamond mining sector would not have any cost savings. Cost savings attributed to the proposed EEM requirements are shown in Table 6 below.

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

Proposed 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 to present value using a 3% discount rate. Numbers may not sum to total due to rounding.

Environmental and societal benefits

The proposed effluent quality standards are expected to yield incremental environmental benefits, while the proposed EEM requirements are expected to contribute to data collected by the Department, which would strengthen government oversight of effluent quality.

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 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. (see footnote 28) 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, has been recognized and accepted by the Supreme Court (British Columbia v. Canadian Forest Products Ltd., 2004). (see footnote 29)

Figure 2 illustrates the effect pathway to assess the incremental benefits of the regulatory scenario as compared to the base case scenario (see footnote 30) from a societal perspective. Due to the absence of comprehensive site-specific biophysical data on the extent to which the proposed Amendments would improve natural assets, 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 proposed 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 proposed Amendments (see footnote 31)

Proposed 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

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

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.

Based on departmental analysis, incremental benefits are not expected for receiving waters at diamond mines because these mines are expected to be discharging at or below the proposed Schedule 4 effluent limits and are expected to be non-acutely lethal to Daphnia magna and rainbow trout. (see footnote 32)

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 currently available for analysis. These natural assets are expected to deliver incremental benefits due to mines complying with the proposed Amendments.

Surface water and groundwater quality

It is expected that the proposed Amendments would 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 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.

Aquatic species

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. (see footnote 33) 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 proposed EEM requirements would reduce the number of fish required to be killed for monitoring purposes (e.g. fish tissue testing).

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 have been documented in the receiving waters.

Wetlands

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

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 the Species at Risk Act (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.

Fishing

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 PCBs, or a combination of these substances.

Fish consumption advisory literature has estimated 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. (see footnote 34) Jakus and Shaw (2003) estimate that average benefit at $20.10 per angler per trip, where the benefit for consumption anglers would be higher at $36.19, and the benefit for catch-and-release anglers would be at $7.69 per angler per trip. (see footnote 35) These estimates illustrate that there is a benefit to anglers of reducing pollution in recreational fishing waters.

Other use of waterways and surrounding lands

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.

Biodiversity conservation

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 a fish population, to protect fish while they are spawning or protecting their young, or to protect rare or endangered species. (see footnote 36) 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). (see footnote 37)

Wetland ecological functions

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) (see footnote 38) 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.

Societal benefits arising from the proposed 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. (see footnote 39)

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

Summary of benefits and costs

It is expected that the proposed Amendments would generate incremental costs of $35 million to industry and Government and cost savings of $9.5 million to the metal mining sector, for a net incremental cost of $25.5 million for industry and Government over a 2018 to 2027 time frame of analysis, as shown in Table 7 below. There are potential incremental environmental benefits and improved data collected by the Department due to compliance with the proposed Amendments.

Table 7: Summary of costs and benefits for metal and diamond mines

Monetized Impacts
(millions of dollars)

2018
to 2020

2021
to 2027

Total

Societal costs

Incorporating diamond mines

2.1

0.0

2.1

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

Government administrative costs

1.6

2.2

3.8

Total costs

22.9

12.1

35.0

Societal 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

Societal net costs

19.9

5.6

25.5

Qualitative societal benefits

  • Potential environmental benefits from identified 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).
  • Enhanced data collection on the effects of effluent on fish and fish habitat.

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

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 have been considered. In particular, the main analysis using a 3% discount rate was compared to three scenarios: a scenario using a 7% discount rate with the main analysis, a high cost scenario using highest costs estimates, and a lower cost scenario using lowest costs estimates (Table 8).

Table 8: Sensitivity analyses (millions of dollars)

Alternatives Net Costs

Main analysis (from Table 7)

25.5

Main analysis discounted at 7% per year

22.6

Highest net cost scenario

25.7

Lowest net cost scenario

4.7

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

For the main analysis, the Department estimates that the impacts of the proposed Amendments would result in a total incremental net cost of $25.5 million. The highest price estimates available were used for all of the proposed Amendments except for increased Schedule 4 effluent testing for metal and diamond mines and the SLT testing requirement for diamond mines, which used most-likely price estimates.

However, the Department estimated low and high cost prices for each assumed compliance action for the proposed Schedule 4 effluent limits, testing effluent, and all of the EEM requirements. For example, based on differences in quotes received from various consultants, the cost of a BIC study is estimated to range between $9,750 per year and $11,759 per year. In the case of the proposed 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 $CAD) per kilogram. Incorporating these ranges into the compliance cost estimates would result in operating cost variation. (see footnote 40)

For the highest cost scenario, the Department used the highest price estimates for all the proposed requirements and estimates a net cost of $25.7 million. In the lowest cost scenario, it is estimated that the proposed Amendments could result in a total net cost of $4.7 million. Thus, it is anticipated that the total net cost of the proposed Amendments could range between $4.7 and $25.7 million.

“One-for-One” Rule

The proposed Amendments are considered to be an “IN” under the Government of Canada’s “One-for-One” Rule. In 2018, it is expected that there would be 137 metal mines and 6 diamond mines. (see footnote 41) For metal and diamond mines, the net increase in annualized administrative costs would be approximately $5,800, or $40 per mine. (see footnote 42), (see footnote 43)

Increased administrative burden is attributable to the incorporation of diamond mines into the MMER. Diamond mines would assume a net increase of $10,400 per year or $1,730 per mine. (see footnote 44)

There would be 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 would experience a net decrease of $4,600 per year or $34 per mine. (see footnote 45)

Small business lens

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

Consultation

Between the end of 2012 and mid-2015, the Department undertook a consultation process with stakeholders and interested parties on the proposed Amendments. Participants included representatives from industry, provinces, territories, environmental non-governmental organizations (ENGOs), and associations representing Indigenous peoples. This consultation process began with the release of a discussion paper in December 2012, which outlined proposed additions and modifications to the MMER as a starting point for feedback from stakeholders and partners. A working group and several subgroups were then created to examine the main requirements of the proposed Amendments, including acute lethality, new and existing substances, selenium, and EEM. The Department presented a summary of discussions to stakeholders at a wrap-up meeting in April 2015 and subsequently developed the proposed Amendments based on the discussions and further analysis.

In late 2016 and early 2017, the Department reengaged stakeholders and interested parties. This was aimed at promoting awareness and understanding of the proposed Amendments and facilitating comments during the formal 60-day comment period following Canada Gazette, Part I, publication. In December 2016, the Department shared a document providing the details of the proposed Amendments and held several teleconferences and webinars in January 2017 to discuss the proposed Amendments directly with stakeholders and interested parties. The Department reached out to national Indigenous organizations to inform them of the upcoming publication of the proposed Amendments.

In summary, both support and concern was expressed for the proposed Amendments. Industry was supportive of some of the more stringent limits of deleterious substances, incorporating diamond mines, and increasing the efficiency of EEM. Industry expressed concerns with the addition of non-acute lethality to Daphnia magna and the cost of complying with more stringent concentration limits. ENGOs expressed support for the addition of Daphnia magna and new monitored substances to EEM, although they expressed that the remaining proposed Amendments were insufficiently environmentally protective. Indigenous organizations advocated for opportunities to review monitoring results, and noted the importance of EEM and its relevance to understanding the ecological implications of mining. The Department will continue engagement and consultation activities with all interested parties during the 60-day comment period.

Industry

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

The Department invited mining and coal industry organization representatives and mining company representatives to participate in the consultation process. Throughout the consultation process, these industry representatives provided input on mining operations, current technologies, and data interpretation. Participants also provided formal written proposals stating their views and input on the proposed Amendments.

Industry — more stringent concentration limits for deleterious substances

Some metal mining representatives expressed concern about the cost of compliance with some of the proposed limits for deleterious substances. Some industry representatives opposed the addition of a unionized ammonia limit, proposing instead that the Department implement a less stringent limit.

In response to these concerns, the Department worked with industry representatives to ensure economic achievability, and is therefore proposing a three-year transition period for the proposed limits being added to Schedule 4. This would provide mining companies with lead time to increase capacity for effluent treatment. For the addition of the unionized ammonia limit, the Department maintains that a lower, more stringent limit is appropriate, given that metal mines have the ability to control releases of ammonia at the source, through practices to manage explosives and by optimizing reagents. (see footnote 46) The proposed limit is based on current technology and aligns with the Saskatchewan limit, the only provincial jurisdiction that sets a limit for unionized ammonia.

Industry — non-acute lethality to Daphnia magna

Some industry representatives expressed opposition to the addition of Daphnia magna as a compliance parameter and requested compliance flexibility be built into the proposed non-acute lethality requirement to account for test result errors that may arise. In response to this concern, the Department built in 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.

Industry — alternative test species for saline-to-saline discharges

Mining projects are currently under development and are expected to draw on saline groundwater that would lead to the deposit of saline effluent into marine environments. These projects would require 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 is incorporating an alternative test method for threespine stickleback as an alternative to rainbow trout for use in scenarios where mines are depositing saline effluent into saline receiving waters. This test method would be specified in the proposed Amendments. Mines with saline effluent and saline receiving waters would not be required to test for Daphnia magna.

Provincial and territorial governments

Representatives from all provinces and territories participated in the consultation process. (see footnote 47) Representatives from these provinces and territories shared technical and regulatory expertise. One formal position was received from a province with mining operations, which stated that it was generally aligned with the positions and concerns of the metal mining industry (e.g. request for compliance flexibility for non-acute lethality requirements to Daphnia magna).

Environmental non-governmental organizations (ENGOs)

Several ENGOs with a mining focus participated in the consultation process. ENGOs provided formal written proposals stating their views and input on the proposed Amendments. Members of the ENGO community were in support of the addition of Daphnia magna as a compliance parameter, and the addition of new monitored substances for EEM. However, they were generally in opposition to the remaining proposed Amendments, viewing them as insufficiently environmentally protective.

In particular, ENGOs consider the proposed limits for deleterious substances not protective of receiving environments and too lenient to industry. ENGOs proposed multiple new substances for the inclusion as deleterious substances with new concentration limits (e.g. manganese, ammonia, phosphorus, xanthates, vanadium, uranium).

In response to ENGOs, the Department stated that it shares concerns for the quality of effluent discharged to water frequented by fish. The Department indicated that further monitoring on the prevalence of substances in mine effluent and a formal technical review would be required. Therefore, the proposed Amendments would not add all these substances as deleterious substances. Alternatively, several of these substances would be added to Schedule 5 (i.e. chloride, chromium, cobalt, sulphate, thallium, uranium, phosphorus, and manganese) to be monitored under EEM.

Indigenous peoples

The Department invited representatives from six national organizations representing Indigenous peoples to participate in the MMER review. Four Indigenous organizations participated in the consultation process. Some technical input was provided during this process. Indigenous peoples’ participation in the consultation process aided to clarify provisions of the proposed Amendments.

Regulatory cooperation

Domestic cooperation

Federal, provincial, and territorial governments in Canada share powers for 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 proposed Amendments would introduce more stringent standards that go beyond those of some jurisdictions. However, testing and monitoring requirements are aligned where possible with existing provincial and territorial requirements, to reduce unnecessary regulatory burden. For example, Ontario, Quebec, the Northwest Territories and Nunavut already have requirements for non-acute lethality to Daphnia magna that the proposed Amendments would expand to the remaining provinces and territories in Canada.

For diamond mines, there is a lack of regulatory clarity because they are covered by the general prohibition of the Fisheries Act, even though they are in compliance with requirements established by provinces and territories. The proposed Amendments would provide federal regulatory clarity to diamond mines.

International cooperation

The proposed Amendments would 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. (see footnote 48) 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 proposed 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 majority of effluent from the metal mining sector in Canada is not acutely lethal to fish, and the sector maintains over 95% compliance with Schedule 4 limits. Nonetheless, national assessments have provided performance and evaluation data on the kinds of sublethal effects from metal mining effluent on fish and fish habitat under the existing federal MMER and under provincial and territorial regulatory regimes. (see footnote 49) The proposed 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 proposed Amendments would 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 would 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 six mines today. These mines generate effluent that contains deleterious substances and they are currently subject to the general prohibition of the Fisheries Act, even though they are in compliance with provincial or territorial requirements. The proposed Amendments would add diamond mines to the application of the MMER, which would increase federal regulatory clarity for these mines.

The proposed Amendments would result in $35 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 $25.5 million for industry and the Government over 10 years.

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

Strategic environmental assessment

A strategic environmental assessment (SEA) was conducted for the proposed Amendments. The SEA concluded that the proposed 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 proposed Amendments would include 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 would also update the Regulatory Information Submission System and maintain the Environmental Effects Monitoring Electronic Reporting System to accommodate the proposed Amendments to reporting requirements (e.g. track and review selenium in fish tissue studies or updating the technical guidance document).

Given that the Regulations are made pursuant to the Fisheries Act, enforcement officers would, when verifying compliance with the MMER, act in accordance with the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act (hereinafter, “the Policy”). (see footnote 50) Verification of compliance with the MMER and the Fisheries Act would include, 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 proposed Amendments is the potential reduction of risks to fish and fish habitat. The performance of the proposed Amendments in achieving these outcomes would be evaluated within the new performance measurement framework for the proposed Amendments.

Clear and quantified performance indicators (e.g. percentage of mines passing non-acute lethality tests within the concentration limits for deleterious substances, and reporting effects below the critical effect sizes) would be defined to measure progress towards this outcome. Achievement of the performance indicators would be tracked through reporting requirements and enforcement activities. The regulated community would 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

Joe Devlin
Senior Economist
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

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsections 34(2), 36(5) and 38(9) (see footnote a) and paragraphs 43(1)(g.1) (see footnote b), (g.2) (see footnote c) and (h) of the Fisheries Act (see footnote d), proposes to make the annexed Regulations Amending the Metal Mining Effluent Regulations.

Interested persons may make representations with respect to the proposed Regulations within 60 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 James Arnott, Mining and Processing Division, Department of the Environment, Gatineau, Quebec K1A 0H3 (fax: 819-420-7381; email: james.arnott@ canada.ca).

Ottawa, May 4, 2017

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Amending the Metal Mining Effluent Regulations

Amendments

1 The title of the Metal Mining Effluent Regulations (see footnote 51) 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 includes

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 diamant)

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: Acute Lethality Test Using Threespine Stickleback (Gasterosteusaculeatus), July 1990, published by the Department of the Environment, as amended in March 2000, and as further 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 The condition set out in paragraph 4(1)(c) does not apply if an effluent sample 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 is testing at the frequency prescribed in subsection 14(1).

5 The heading before section 5 of the Regulations is replaced by the following:

Authority to Deposit in Mine Waste Disposal Areas

6 (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 or an effluent that contains any concentration of a deleterious substance that is prescribed in section 3 and that is of any pH into a mine waste disposal area that is either

(2) Paragraph 5(1)(b) of the French version of the Regulations is replaced by the following:

(3) 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.

7 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 performed 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 performed.

(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.

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

(2) The information that shall be submitted is

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

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

10 (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, zinc or un-ionized ammonia at a final discharge point to not less than once in each calendar quarter and 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 and 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 that 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 that 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 that 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 un-ionized ammonia fraction, using the temperature, pH and concentration of total ammonia recorded under paragraph (1)(b), in accordance with the following formula:

where

A is the concentration of total ammonia — which is the sum of un-ionized ammonia (NH3) and ionized ammonia (NH4+) — expressed in mg/L as nitrogen (N);

pH is the pH of the effluent sample; and

pKa is a dissociation constant calculated in accordance with the following formula:

where

T is the temperature of the effluent sample in kelvin.

11 (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

Acute Lethality Test — Rainbow Trout

14.1 If the salinity value of either the effluent or the receiving body of water is less than ten parts per thousand, 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 both the effluent and the receiving body of water are equal to or greater than ten parts per thousand, 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 sections 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.

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

Acute Lethality Test — Daphnia Magna

14.3 If the salinity value of either the effluent or the receiving body of water is less than four parts per thousand, 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.

13 (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:

14 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.

15 (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.

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

17 (1) If the salinity value of either the effluent or the receiving body of water is less than four parts per thousand, 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.

17 (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 specified by section 8 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 specified by section 8 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.

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

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

19.1 (1) With respect to the deleterious substances prescribed in section 3 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:

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

20 (1) With respect to the deleterious substances prescribed in section 3 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:

21 (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:

22 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:

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

Mine Waste Disposal Areas

Compensation Plan

27.1 (1) The owner or operator of a mine shall, before depositing a deleterious substance into a mine waste disposal 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 for the loss of fish habitat resulting from the deposit of any deleterious substances into the mine waste disposal area. It shall contain the following information:

(3) The owner or operator 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 The heading before section 28 of the Regulations is replaced by the following:

Deposits from Mine Waste Disposal Areas

26 (1) Subsection 28(1) of the Regulations is replaced by the following:

28 (1) The owner or operator of a mine shall deposit the effluent from a mine waste disposal area only through a final discharge point that is monitored and reported on in accordance with the requirements of these Regulations.

(2) Subsection 28(2) of the English version of the Regulations is replaced by the following:

(2) The owner or operator of a mine shall comply with section 6 and the conditions prescribed in paragraphs 4(1)(a) to (c) for all effluent that exits a mine waste disposal area.

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

PART 3

Unauthorized Deposits

28 (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 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 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.

29 (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 is not required to conduct that test 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.

30 Parts 5 and 6 of the Regulations are repealed.

31 Schedule 1 to the Regulations is repealed.

32 The heading of the table to Schedule 2 to the Regulations is replaced by the following:

Mine Waste Disposal Areas

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

34 (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), subparagraphs 22(c)(i) and (ii) 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.

35 (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 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 striking out paragraph (p).

36 (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)

       
       
       
       
       
       
       
       
       
       
       

37 Schedules 6.1 to 8 to the Regulations are repealed.

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

Transitional Provisions

39 (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

(4) The owner or operator of a diamond mine may use the results of studies conducted not more than 10 years before the day on which this section comes into force for the purpose of determining which biological monitoring studies are required to be conducted under section 9 of Schedule 5 to the Metal and Diamond Mining Effluent Regulations if those results can be used for the purpose of meeting the requirements of section 12 of that Schedule.

(5) If the results referred to in subsection (4) are used for the purpose referred to in that subsection,

(6) The owner or operator of a mine who, on the day on which this section comes into force, has commenced biological monitoring studies shall complete those studies and submit the corresponding interpretative report in accordance with the Metal Mining Effluent Regulations, as they read immediately before the day on which this section comes into force.

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 10(2) and (3) and 11(2), section 12, subsection 13(2), section 14, subsections 16(2), 17(2), 19(2), 20(2) and 29(2), 34(2) and 35(2) and (3) and 36(1) and (3) come into force on June 1, 2021.

SCHEDULE 1

(Section 33)

SCHEDULE 3

(Subsections 1(1) and 12(2))

Analytical Requirements for Metal or Diamond Mining Effluent

Table 1

 

Column 1

Column 2

Column 3

Column 4

Item

Deleterious Substance/pH/temperature

Precision (see footnote 52)

Accuracy (see footnote 53)

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

 

Column 1

Column 2

Column 3

Column 4

Item

Substances/hardness/alkalinity/electrical conductivity

Precision (see footnote 54)

Accuracy (see footnote 55)

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

(Section 34)

SCHEDULE 4

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

Maximum Authorized Concentrations of Prescribed Deleterious Substances

Table 1

 

Column 1

Column 2

Column 3

Column 4

Item

Deleterious Substance

Maximum Authorized
Monthly Mean
Concentration

Maximum Authorized Concentration in a
Composite Sample

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

0.5 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

 

Column 1

Column 2

Column 3

Column 4

Item

Deleterious Substance

Maximum Authorized
Monthly Mean
Concentration

Maximum Authorized Concentration in a
Composite Sample

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

0.5 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 35(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 Fisheries 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 a reference or exposure 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

Weight at age

± 25%

2

Relative gonad size

± 25%

3

Relative liver size

± 25%

4

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, of this Schedule.

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 analysing 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:

(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 upon 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 using the following test methodologies, as amended from time to time:

(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) 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 the six tests conducted under subsection (1) 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

Effluent and Water Quality Monitoring Report

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 two previous 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 Not later than 12 months after the day on which a mine becomes subject to section 7 of these Regulations a study design shall be submitted to the Minister of the Environment. 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 a 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) Not later than 30 months after the day on which the mine becomes subject to section 7 of these Regulations, a first interpretative report shall be submitted to the Minister of the Environment. 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

(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

DIVISION 2

Subsequent Biological Monitoring Studies
Subsequent Study Designs

13 A study design for a second and any subsequent biological monitoring study shall be submitted to the Minister of the Environment at least six months before the second or subsequent biological monitoring studies are conducted or — if no such studies are required to be conducted — not later than 12 months after the day on which the interpretative report of the previous biological monitoring study was required to be submitted or would have been required to be submitted had any such a study been required to be conducted, and shall include

Conduct of Subsequent Biological Monitoring Studies

14 (1) Subject to subsection (2), the second and any 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 The second and subsequent biological monitoring studies shall be followed by an interpretative report that includes

Submission of Subsequent Interpretative Reports

16 (1) Subject to subsection (2), the interpretative report of the second and any subsequent biological monitoring studies shall be submitted to the Minister of the Environment not later than 36 months after the day on which the interpretative report of the previous biological monitoring study was required to be submitted or would have been required to be submitted had there been any biological monitoring studies required to be conducted.

(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 biological monitoring studies are not required to be conducted with respect to 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 at least 30 days before

(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 of a mine 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 section 13.

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 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).

[19-1-o]