Regulations Amending the Metal and Diamond Mining Effluent Regulations: SOR/2021-125
Canada Gazette, Part II, Volume 155, Number 13
SOR/2021-125 June 10, 2021
P.C. 2021-520 June 10, 2021
His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of the Environment, pursuant to subsections 34(2), 36(5) and 38(9)footnote a and paragraphs 43(1)(g.1)footnote b, (g.2)footnote b and (h) of the Fisheries Actfootnote c, makes the annexed Regulations Amending the Metal and Diamond Mining Effluent Regulations.
Regulations Amending the Metal and Diamond Mining Effluent Regulations
1 (1) The definition acutely lethal in subsection 1(1) of the Metal and Diamond Mining Effluent Regulationsfootnote 1 is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c):
- (d) more than 50% of the Acartia tonsa subjected to it for a period of 48 hours, when tested in accordance with the acute lethality test set out in section 14.4. (létalité aiguë)
(2) Subsection 1(1) of the Regulations is amended by adding the following in alphabetical order:
- Reference Method STB 1/RM/60
- means Biological Test Method: Reference Method for Determining Acute Lethality Using Acartia tonsa, published in June 2019 by the Department of the Environment, as amended from time to time. (méthode de référence DGST 1/RM/60)
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 14.4.
3 Sections 14.1 to 14.3 of the Regulations are replaced by the following:
Acute Lethality Test — Rainbow Trout
14.1 Unless the salinity value of the effluent is greater than ten parts per thousand and the effluent is deposited into marine waters, 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 the effluent is greater than ten parts per thousand and the effluent is deposited into marine waters, 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/10.
Acute Lethality Test — Daphnia magna
14.3 Unless the salinity value of the effluent is greater than four parts per thousand and the effluent is deposited into marine waters, 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.
4 The Regulations are amended by adding the following after section 14.3:
Acute Lethality Test — Acartia tonsa
14.4 If the salinity value of the effluent is greater than four parts per thousand and the effluent is deposited into marine waters, the owner or operator of a mine shall, in addition to conducting the acute lethality test set out in either section 14.1 or 14.2, 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 STB 1/RM/60.
5 Section 18 of the Regulations is replaced by the following:
18 The owner or operator of a mine shall record without delay the data referred to in section 9.1 of Reference Method EPS 1/RM/10, section 8.1 of Reference Method EPS 1/RM/13, section 8.1 of Reference Method EPS 1/RM/14 and section 9.1 of Reference Method STB 1/RM/60 for each acute lethality test.
6 Subsection 21(2) of the Regulations is amended by adding the following after paragraph (a):
- (a.1) for each acute lethality test that is conducted under section 14.4,
- (i) the date and time when the effluent sample was collected,
- (ii) the location of the final discharge point from which the sample was collected, and
- (iii) the percentage mortality in 100% effluent test concentration;
7 (1) The portion of section 22 of the Regulations before paragraph (c) 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 that shall include
- (a) the identifying information set out in Part 1 of Schedule 6;
- (b) the effluent monitoring results for the previous calendar year for each final discharge point, including
- (i) for test results respecting the prescribed deleterious substances and the pH, the information set out in Part 2 of Schedule 6, and
- (ii) for each acute lethality test,
- (A) the date when the sample was collected,
- (B) the location of the final discharge point from which the sample was collected, and
- (C) the percentage mortality in 100% effluent test concentration; and
(2) Subparagraph 22(c)(ii) of the French version of the Regulations is replaced by the following:
- (ii) si les résultats des essais de détermination de la létalité aiguë montrent qu'un échantillon d'effluent présente une létalité aiguë, les mesures correctives projetées ou mises en œuvre.
8 Paragraph 27(c) of the Regulations is replaced by the following:
- (c) records relating to the data referred to in section 9.1 of Reference Method EPS 1/RM/10, section 8.1 of Reference Method EPS 1/RM/13, section 8.1 of Reference Method EPS 1/RM/14 and section 9.1 of Reference Method STB 1/RM/60;
9 Paragraph 30(2)(f) of the French version of the Regulations is replaced by the following:
- f) les procédures d'alerte et de notification, notamment les mesures prévues pour avertir les membres du public auxquels le rejet mentionné en application de l'alinéa a) pourrait causer un préjudice.
10 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 14.4.
|9||Tail Lake, located at 68°7′25.8″ north latitude and 106°33′31.2″ west longitude, approximately 125 km southwest of the Hamlet of Cambridge Bay, Nunavut. More precisely, the area bounded by|
Water or Place
|53||All waters located within the area described in column 2, located approximately 400 km southwest of the Hamlet of Cambridge Bay, Nunavut||The waters located within an area located approximately 400 km southwest of the Hamlet of Cambridge Bay, Nunavut. More precisely, the area bounded by six straight lines connecting six points starting at the point located at 65°31′34.856″ north latitude and 106°22′58.657″ west longitude to the point located 307 m southeast at 65°31′26.609″ north latitude and 106°22′45.370″ west longitude to the point located 954 m southwest at 65°31′1.982″ north latitude and 106°23′29.979″ west longitude to the point located 586 m southwest at 65°30′44.708″ north latitude and 106°23′48.582″ west longitude to the point located 1675 m northwest at 65°31′32.307″ north latitude and 106°24′50.478″ west longitude and ending at the point located 631 m northeast at 65°31′36.267″ north latitude and 106°24′2.267″ west longitude.|
13 Part 3 of Schedule 6 to the Regulations is repealed.
14 The French version of the Regulations is amended by replacing “portion aliquote” and “portions aliquotes” with “aliquote” and “aliquotes”, respectively, in the following provisions:
- (a) subparagraphs 15(1)(a)(i) and (b)(i); and
- (b) subsections 4(3), 5(3) and 6(1) of Schedule 5.
Coming into Force
15 (1) These Regulations, except sections 3, 9, 11 and 12 , come into force on December 1, 2021.
(2) Sections 3, 9, 11 and 12 come into force on the day on which these Regulations are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The Metal and Diamond Mining Effluent Regulations (MDMER) prescribe the use of test methods to demonstrate that effluent deposited into receiving waters (marine or freshwater) are not acutely lethalfootnote 2 in order for mines to maintain their authority to deposit. When the Metal Mining Effluent Regulations (MMER) were amended and replaced by the MDMER in 2018 (hereafter referred to as the 2018 MDMER amendments), one of the acute lethality test methods for saline effluent being deposited to marine environments using an invertebrate species was not yet completed.
The Regulations Amending the Metal and Diamond Mining Effluent Regulations (the Amendments) will add a requirement for acute lethality testing for deposits of effluent having a salinity value of greater than four parts per thousand and deposited to marine environments, and incorporate the test method Biological Test Method: Reference Method for Determining Acute Lethality Using Acartia Tonsa (Reference Method STB 1/RM/60) to be used for such testing.
The Fisheries Act prohibits the deposit of deleterious substances into fish-frequented waters unless authorized by regulation. The MDMER prescribe the maximum authorized limits for prescribed deleterious substances in mine effluent (i.e. arsenic, copper, cyanide, lead, nickel, zinc, radium-226 and suspended solids) and specify the allowable acidity (pH range) of mine effluent.
The MDMER authorize the deposit of effluent subject to certain conditions, including demonstrating that the effluent is not acutely lethal.
The 2018 MDMER amendments added diamond mines to the scope of the Regulations, amended the authorized limits of deleterious substances set out in Schedule 4, strengthened acute lethality testing requirements for mine effluent, and improved the environmental effects monitoring (EEM) requirements. To demonstrate that effluent is not acutely lethal, mines must test their effluent using methods prescribed in the MDMER and which are determined by the receiving water body and the salinity of the mine's effluent. The MDMER requires the use of one test using a fish as the test species, and a second test using an aquatic invertebratefootnote 3 as the test species. Table 1 shows how the characteristics of the receiving environment and effluent salinity determine which acute lethality test methods must be used.
Acute lethality testing using a fish species requires the use of Biological Test Method: Reference Method for Determining Acute Lethality of Effluents to Rainbow Trout (EPS 1/RM/13), except when the effluent is deposited into a marine environment and that effluent has a salinity value greater than 10 parts per thousand, in which case an alternative test method, Biological Test Method: Reference Method for Determining Acute Lethality Using Threespine Stickleback (EPS 1/RM/10), should be used.
As of June 1, 2021, acute lethality testing using an invertebrate requires the use of Biological Test Method: Reference Method for Determining Acute Lethality of Effluents to Daphnia Magna (EPS 1/RM/14), except when the effluent is deposited into a marine environment and that effluent has a salinity value greater than four parts per thousand.
As a result of these Amendments, commencing on December 1, 2021, if effluent is deposited into a marine environment and has salinity value of greater than four parts per thousand, the use of an alternative test method, Biological Test Method: Reference Method for Determining Acute Lethality Using Acartia Tonsa (STB 1/RM/60), will be required to demonstrate that effluent is not acutely lethal to an invertebrate species. In developing the acute lethality test method using Acartia tonsa, the Department of the Environment (the Department) worked with Canadian laboratories to ensure that they would have the capacity to perform the test. The requirement to undertake acute lethality testing using Acartia tonsa will come into force on December 1, 2021, in order to allow laboratories time to address operational challenges (e.g. reduced staff on-site) related to the COVID-19 pandemic in offering this testing.
|Effluent salinity less than 4 parts per thousand (less saline)||Effluent salinity between 4 and 10 parts per thousand (moderately saline)||Effluent salinity above 10 parts per thousand (more saline)|
|Freshwater receiving environment||
|Marine receiving environment (i.e. ocean)||
The objective of the Amendments is to add a requirement for mine owners and operators to demonstrate that effluent with a salinity value greater than four parts per thousand deposited into marine waters is not acutely lethal to invertebrate organisms.
The Amendments will add a requirement for acute lethality testing using an invertebrate species for deposits of saline effluent to marine environments, and incorporate by reference the Biological Test Method: Reference Method for Determining Acute Lethality Using Acartia tonsa (Reference Method STB 1/RM/60). Mine owners and operators discharging effluent with a salinity value of greater than four parts per thousand to a marine environment will be required to use the Acartia tonsa test method to demonstrate that their effluent is not acutely lethal in order to maintain their authority to deposit. The Amendments will also add and update reporting and record-keeping requirements in relation to acute lethality testing using the Acartia tonsa test method.
These amendments will come into force on December 1, 2021.
In addition, the Amendments will align the thresholds in the MDMER related to acute lethality testing requirements for existing test methods (rainbow trout, threespine stickleback and daphnia magna) with the thresholds found in the related reference methods, align French and English text in various provisions and improve the accuracy of items 9 and 52 of Schedule 2. The reference in item 9 to the “town of Cambridge Bay” and the reference to “Cambridge Bay” in item 52 will both be changed to the “Hamlet of Cambridge Bay.”
These amendments will come into force upon registration of the Amendments.
The Regulatory Impact Analysis Statement (RIAS) for the 2018 MDMER amendments, published on May 30, 2018, stated that an alternative test method using a marine species to determine acute lethality of saline effluent using Acartia tonsa was under development and would be added in a future amendment.footnote 4
In 2016 and 2017, consultation conducted with stakeholders and interested parties on the 2018 MDMER amendments included the addition of the Acartia tonsa test method. To support the regulatory consultations, the Department developed a consultation document that was shared electronically in late 2016 with other federal departments, provincial and territorial governments, industry, environmental non-governmental organizations (ENGO) and Indigenous groups. The document referenced the new test method as per the following text:
“For Daphnia magna acute lethality tests, the marine alternative species would be Acartia tonsa and would be used when the salinity of the effluent and the receiving environment are both greater than 4 parts per thousand; a test method is currently under development.”
On January 19, 2017, the Department held a webinar to discuss the amendments being proposed to the MMER and included the addition of the new requirement related to acute lethality testing. At that time, only two mines were known to be considering depositing saline effluent into a marine environment and, therefore, would be required to test effluent using the Acartia tonsa reference test method. The owners of both mines and the Mining Association of Canada (MAC) participated in the webinar. Both companies submitted comments on the 2018 MDMER amendments during the 30-day consultation period that followed their prepublication in the Canada Gazette, Part I, on May 13, 2017. In their submissions, neither party raised any concerns with the addition of the Acartia tonsa test method in a future amendment.
In June 2020, the Department followed up with stakeholders and sent a targeted notification to stakeholders, restating its intention to proceed with an amendment to the MDMER to include a requirement for acute lethality testing for saline effluent being deposited to marine environments using the Acartia tonsa test method. Stakeholders were given 45 days to provide comments. No comments were received. The Department also reached out to MAC specifically to follow up on the notification, given it was sent during the COVID-19 pandemic, at a time when companies may have had reduced capacity to respond to consultation requests. MAC responded that they were aware of the Amendments and indicated they did not have any concerns.
In light of the level of consultation already undertaken (over a three-year period from 2017 to 2020) on this specific issue and that no parties have raised any concerns, the Amendments were not subject to a public comment period through the prepublication process in the Canada Gazette, Part I.
Modern treaty obligations and Indigenous engagement and consultation
There are no known modern treaty implications or obligations resulting from the Amendments. Indigenous groups across Canada were engaged and consulted in 2016 and 2017 as part of the amendments to the MMER, which included the new testing requirements for deposits of saline effluent to marine environments. No groups provided any comments specific to these requirements.
In June 2020, the Department re-engaged with Indigenous groups through the targeted notification. The main Inuit organizations representing the interests and rights of the Inuit in the project areas of the two mines were included in the targeted electronic mail out and were provided an opportunity to comment. The Department did not receive any comments from these Inuit organizations.
The Department regulates effluent deposited from metal and diamond mines under the MDMER. The two available options were to either maintain the regulatory regime as is; or update the regulatory regime to include a requirement to test for the acute lethality of saline effluent deposited to marine environments using invertebrates. A non-regulatory approach was not considered, as the Fisheries Act does not allow non-regulatory instruments as a means to authorize the deposit of deleterious substances.
The status quo approach was rejected because governments, industry, and other stakeholders recognize the MDMER require updating to include the Acartia tonsa test method to enable mine owners/operators to demonstrate that their effluent is not acutely lethal to invertebrates. The Amendments build on existing regulatory requirements for acute lethality testing, while providing a science-based method for assessing effects on fish and fish habitat.
Benefits and costs
The analysis below examines the incremental impacts of the Amendments on the environment, businesses (i.e. mine owners and operators), and the Government. Two mines, located in Nunavut, have advised the Department of their intention to deposit saline effluent into a marine environment. As of early 2021, these two mines are owned and operated by the same company.
The cost-benefit analysis reflects monetized costs and qualitatively described benefits associated with the owner and operator of the two mines that will be subject to the Amendments when they come into force on December 1, 2021. At this time, no other known mines are expected to be affected by the Amendments, but it is possible that new proposed mines could be affected in the future.
The Amendments will require acute lethality testing using the Acartia tonsa test method and require mine owners and operators to demonstrate that the concentrations of deleterious substances in effluent being deposited to marine environments are not acutely lethal to aquatic invertebrates. This reduction of risk is a benefit to Indigenous people and communities living in proximity to the two mines who depend on fishing as part of their food intake.
Overall, the Amendments will result in a present-value cost of $357,500 over the analytical period ranging from December 2021 to November 2031, including $190,600 to industry and $166,900 to the Government of Canada.
The two mines that will be subject to the Amendments are already undertaking sampling of effluent for other requirements under the MDMER. Therefore, sampling efforts (e.g. travel to final discharge points and sample collection) attributed to the Amendments are expected to be nil or minimal. The costs of compliance with the Amendments will only include costs associated with undertaking acute lethality testing at a laboratory and reporting results to the Department.
Mine owners and operators could be required to conduct a minimum of 12 tests per year, and more frequent testing in the event of failed tests. Laboratories and shipping fees for acute lethality testing using Acartia tonsa will be around $880 per test. The Department also assumes 14 tests will be required for each of the two years following the coming into force of the Amendments, and 12 tests per year subsequently.
The Department is expected to incur administrative costs for managing the regulatory data (i.e. monthly acute lethality testing) submitted by regulatees. These costs include an estimated one-time cost of $34,500 to develop and implement a reporting mechanism and standard operating procedures (e.g. quality assurance/quality control) for the new mechanism, training, and compliance promotion. Recurring administrative costs to process and manage regulatory data submitted by regulatees are estimated at $15,500 annually for the Department.
The federal government is not expected to incur any additional incremental costs associated with enforcement activities, which includes training, inspections, investigations, and measures to deal with any alleged violations over those identified in the analysis for the MDMER.
- Number of years: 10 (December 2021 to November 2031)
- Base year for costing: 2020
- Present value base year: 2021
- Discount rate: 3%
|Impacted stakeholder||Description of costs||Base year||Final year||Total (present value)||Annualized value|
|Government||Costs of data collection, and analysis, as well as training and compliance promotion table b2 note a||$34,500||$15,500||$166,900||$19,600|
|Industry||Compliance costs for the two mines (laboratory costs and shipping of samples)||$0||$20,300||$186,200||$21,800|
|All stakeholders||Total costs||$34,600||$36,400||$357,500||$42,100|
Table b2 note(s)
Small business lens
The Amendments will not result in cost impacts to small businesses, as the business which operates the two affected mines is not a small business.
The Amendments are considered to be an “IN” under the Government of Canada one-for-one rule given a new requirement for acute lethality testing for invertebrates is being added to the MDMER. The owner of the two mines that will be subject to the Amendments is already reporting to the Department under existing MDMER requirements and is expected to have in place the tools and capacity to analyze, report and archive data required under the MDMER. The annualized administrative costs for the owner and operator of the two mines are estimated at $247. Administrative costsfootnote 5 include the following:
- Familiarization with new administration requirements: The Department estimates that mine owners/operators may require half an hour to become familiar with the new administrative regulatory requirement.
- Reporting to the Department: Mine owners/operators will be required to submit the following information associated with their monthly acute lethality tests on a quarterly basis: date and time of sampling, brief description of sampling site, and whether the sample was acutely lethal. The Department estimates that mine owners/operators may require an hour to produce each quarterly report.
Regulatory cooperation and alignment
Federal, provincial, and territorial governments in Canada share jurisdiction over water pollution. The federal MDMER establish a baseline of effluent concentration limits and EEM for Canadian metal and diamond mines, amidst a mix of provincial requirements, including permits and regulations. No other jurisdictions within Canada require acute lethality testing using the Acartia tonsa test method.
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 implemented through different types of regulatory instruments. Both Canada and the U.S. establish similar minimum national baseline effluent standards and emphasize a technology-based approach. In the U.S., the Ore Mining and Dressing Effluent Guidelines and Standards (40 CFR Part 440) cover effluent discharges from mines. The regulatory requirements are incorporated into National Pollutant Discharge Elimination System permits, which, when established, can also include more stringent, site-specific effluent standards. The U.S. site-specific standards are generally comparable to provincial and territorial effluent standards in Canada.
The Amendments are not expected to impact competitiveness within Canada, or between Canadian mines and those located in the U.S. 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.
Several national and international method standardization agencies have designed standardized test methods using Acartia tonsa, including the International Organization for Standardization (ISO) and the Italian Ministry of Environment. The Acartia tonsa test method was modelled after the one developed in Italy that is still in use and used to support regulatory decisions. International interest has been expressed in the use of the Acartia tonsa test method, which may result in increased international business related to the performance of this test for Canadian laboratories, as well as boosting Canada's reputation for scientific excellence and concern for the environment.
Strategic environmental assessment
A strategic environmental assessment (SEA) was not conducted specifically for these Amendments. The SEA undertaken for the 2018 MDMER amendments concluded that the addition of acute lethality requirements would improve overall effluent quality.
The Amendments are expected to mitigate the environmental risks related to diamond and metal mine effluent deposited into marine environments by providing the tools for owners and operators of mines to demonstrate that effluent is not acutely lethal to aquatic invertebrate species.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for these Amendments, as no groups, including Indigenous groups, are expected to be disproportionately affected by the Amendments.
Implementation, compliance and enforcement, and service standards
The compliance promotion approach for the Amendments includes posting information, such as frequently asked questions on the Government of Canada's website, as well as responding to all inquiries or clarification requests sent by stakeholders and interested parties.
The regulated community is required to submit reports to the Department. The Department will use this information to measure compliance by mine proponents with the Amendments (e.g. percentage of mines passing acute lethality tests for Acartia tonsa). The achievement of indicators designed to measure the performance of the MDMER will be tracked through reporting requirements and enforcement activities.
Given that the MDMER are made pursuant to the Fisheries Act, enforcement officers will, when verifying compliance with the MDMER, act in accordance with the Compliance and enforcement policy for habitat and pollution provisions of Fisheries Act (the Policy). The Policy sets out principles of fair, predictable, and consistent enforcement that govern the application of the Fisheries Act and its regulations.
Verification of compliance with the MDMER and the Fisheries Act will include, among other inspection activities, site visits, sample analysis and related reports associated with the Amendments. An enforcement officer may conduct an investigation when there are reasonable grounds to believe that an offence is being or has been committed.
As set out in the Policy, if there were evidence of an alleged offence, enforcement officers would determine an appropriate enforcement action, in accordance with the following criteria:
- The nature of the alleged violation — factors to be considered include the seriousness of the damage or potential damage to fish habitat, the fishery resource, or the risks associated with the human use of fish, the intent of the alleged violator, whether it is a repeated occurrence, and whether there were attempts to conceal information or otherwise circumvent the objectives and requirements of the Act and its regulations;
- Effectiveness in achieving the desired result with the alleged violator — the desired result is compliance with the Act in the shortest possible time and with no further occurrence of violations, and factors to be considered include the history of compliance with the Fisheries Act, willingness to cooperate with enforcement personnel, evidence and extent of corrective action already taken, and the existence of enforcement actions by other federal or provincial/territorial authorities; and
- Consistency in enforcement — enforcement officers will consider how similar situations are being or have been handled in determining the measure to take.
The Policy sets out the range of possible responses to alleged violations, including issuance of warnings, directions, authorizations, and ministerial orders, without resorting to court action, and/or court actions, such as injunctions, prosecution, court orders upon conviction, and civil suits for recovery of costs.
Mining and Processing Division
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