Fisheries Act Regulations Under Review

Jamie Kneen

National Program Co-Lead

On November 3-4, MiningWatch Canada took part in a two day workshop on the Metal Mining Effluent Regulations (MMER) sponsored by Environment Canada.

The meeting had two purposes: to update stakeholders on recent activities related to the MMER over the last two years, and to share perspectives on prospective amendments.

The proposed amendments are the result of Environment Canada trying to enforce the MMER for two years now. It is clear that there are a number of loopholes and small errors in that need to be fixed. Many of the proposed amendments address these problems. There are also some more serious and contentious areas, where Environment Canada expects a strong "push-back" from the industry. The devil, as they say, is always in the details. The meeting approved an Environment Canada request to set up a multi-stakeholder advisory group to work with them on the amendments, which they hope will go to Gazette I (preliminary publication for public review) by November 2005.

Seventy-three mining and milling facilities were subject to the MMER in 2003, with a total of 117 final discharge points (the point where the effluent leaves company property). It is notable that one facility had 8 final discharge points. Most had one. A facility is a stand-alone mine, mill or both and there can be several mines and mills with one final discharge point - for example, sharing a tailings pond. Twenty-eight of the facilities use cyanide in processing.

Transitional authorizations were granted in 2002 to give companies time to come into compliance. These authorizations expired on December 6, 2004. Companies can apply for an extension for a further 30 months, if they meet the criteria in the regulation - essentially to show they have been trying, and that only Total Suspended Solids (TSS) is not in compliance. They cannot get an extension for any other reason. Only three have applied for an extension: Iron Ore Canada and Wabush (both in Labrador) and the Konuto Mine in Saskatchewan (Hudson Bay Mining and Smelting).

We were presented with a performance summary that showed there had been 96 exceedances of the limits in 2003. The data may be questionable, as a number of companies did not report, and a majority reported incorrectly. There were 1009 tests for acute lethality in rainbow trout and 63 facilities had greater than 50% mortality. Ninety-one had greater than 50% mortality on daphnia magna (water fleas).

The Environmental Effects Monitoring (EEM) process is still getting underway and will not produce results until June 2005.

There have been 134 on-site inspections since the current regulations came into effect on December 6, 2002. They resulted in nine investigations and nine directives issued (informing the company of the problem and giving them time to correct it). None of them have gone to court, although in nine cases there are charges pending.

There are a number of areas of potential concern as the MMER gets debated further:

1. The extension of the Transitional Authorizations

2. The potential to add any other "Tailings Impoundment Areas"- permission to dump tailings and waste rock in waters with fish - to Schedule 2. They expect Kemess North and the Doris Mine in Nunavut to ask to be added this year.

3. Communicate information to the public relating to availability and where to find reports and data, thus avoiding costly Access to Information requests put forward by the public

4. Enforcement - adequate resources, laying of charges etc.

5. Industry desire for reduced sampling and reporting with "good behaviour". This is dangerous as there is no reason to believe that mines behave better as they approach closure and decommissioning, and more reason to believe that their behaviour is tied to volatile commodity prices and ownership.

6. A redefinition of a "commercial operation" proposed by Environment Canada, which would consider a mine subject to the MMER at greater than 10% of the original designed production capacity, as opposed to the 25% that is currently in the Regulation. Mines that are not subject to the MMER fall under the much stricter "thou shalt not pollute" general provisions of the Fisheries Act (Section 36).

7. A directive from the Department of Justice to bring the MMER into line with the Pulp and Paper Effluent Regulations under the same section of the Fisheries Act.

8. Industry desire to "harmonize" with provincial and territorial regulations. This should only occur when other legislation provides a more stringent regulation or where it addresses a site-specific consideration.