Regulations Amending the Metal Mining Effluent Regulations: SOR/2018-100
Canada Gazette, Part II, Volume 152, Number 11
May 16, 2018
P.C. 2018-540 May 14, 2018
Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsection 36(5) of the Fisheries Actfootnotea, makes the annexed Regulations Amending the Metal Mining Effluent Regulations.
Regulations Amending the Metal Mining Effluent Regulations
1 Schedule 2 to the Metal Mining Effluent Regulationsfootnote1 is amended by adding the following in numerical order:
A portion of an unnamed tributary to Petit lac du Portage, Quebec
A portion of an unnamed tributary to Petit lac du Portage located approximately 15 km northwest of the town of Sept-Îles, Quebec. More precisely, the 465 m portion of the tributary to Petit lac du Portage extending southwest and upstream from the point located at 50°16′00.90″ north latitude and 66°33′42.71 west longitude to the point located at 50°16′06.00″ north latitude and 66°33′31.55″ west longitude and covering an area of 0.233 ha.
An unnamed headwater pond of ruisseau Clet and its unnamed tributaries, Quebec
An unnamed headwater pond of ruisseau Clet located at 50°15′15.82″ north latitude and 66°33′13.6″ west longitude and covering an area of 2.486 ha, approximately 15 km northwest of the town of Sept-Îles, Quebec, and
A portion of ruisseau Clet and its unnamed tributaries, Quebec
A portion of ruisseau Clet, and its unnamed tributaries, located approximately 15 km northwest of the town of Sept-Îles, Quebec. More precisely, the 1897 m portion of ruisseau Clet extending southeast and downstream from the outlet of the unnamed headwater pond referred to in item 39 to the point on ruisseau Clet located at 50°15′11.26″ north latitude and 66°32′15.99″ west longitude and covering an area of 0.850 ha.
An unnamed watercourse that is a tributary to Rivière Hall, Quebec
An unnamed watercourse that is composed of interconnected streams and ponds and is a tributary to Rivière Hall and located approximately 15 km northwest of the town of Sept-Îles, Quebec. More precisely, the 910 m portion of the unnamed watercourse extending downstream from the point located at 50°14′52.33″ north latitude and 66°33′27.75″ west longitude to the point located at 50°14′39.67″ north latitude and 66°32′45.74″ west longitude and covering an area of 3.619 ha.
Portions of an unnamed creek, Quebec
Two portions of an unnamed creek located approximately 15 km northwest of the town of Sept-Îles, Quebec. More precisely,
Coming into Force
2 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Mine Arnaud Inc.footnote2 (the proponent) proposes to operate an apatite mine located in the Municipality of Sept-Îles, Quebec. Mine Arnaud Inc. will be subject to the Metal Mining Effluent Regulations (MMER) because titaniferous magnetite (iron and titanium oxides), a metal by-product, will be generated from the apatite concentration process. Mine Arnaud Inc. has chosen to store this magnetite by-product separately in order to eventually recover it for resale.
The proponent intends to use water bodies frequented by fish to dispose of the mine waste that will be generated by the mining operations. Subsection 36(3) of the Fisheries Act (FA) prohibits the deposit of deleterious substances into waters frequented by fish, unless authorized by Regulations under the FA or other federal legislation. The MMER, made pursuant to subsection 36(5) of the FA, includes provisions to allow for the use of waters frequented by fish for the disposal of mine waste. Mine waste disposal in these waters can only proceed if they are listed in Schedule 2 of the MMER.
Metal Mining Effluent Regulations (MMER)
The MMER, which came into force on December 6, 2002, prescribe the maximum authorized limits for deleterious substances in mine effluent in Schedule 4 (e.g. copper, cyanide, and total suspended solids), and require that mine effluent not be acutely lethal to fish.footnote3 The MMER further stipulate that companies must sample and monitor effluents to ensure compliance with the authorized limits and to determine any impact on fish, fish habitat and fishery resources. Each year, the Department of the Environment publishes annual performance summaries of metal mines with respect to selected standards prescribed by the MMER.
The use of a water body frequented by fish for the disposal of mine waste can only be authorized through an amendment to the MMER, in which case the water body would need to be added to Schedule 2 of the Regulations. As of December 2017, there were 37 water bodies listed in Schedule 2 of the MMER.
The proponent must demonstrate that the disposal of mine waste (including effluents) in water bodies frequented by fish is the most appropriate option from an environmental, technical and socio-economic perspective.
Pursuant to section 27.1 of the MMER, when a fish-frequented water body has been added to Schedule 2, the Regulations require the development and implementation of a fish habitat compensation plan that will offset the loss of fish habitat that would occur as a result of the use of the fish-frequented water for mine waste disposal. The owner or the operator of a mine is also required to submit an irrevocable letter of credit to ensure that funds are in place to address all elements of the fish habitat compensation plan.
The Arnaud Mining Project
The Arnaud mining project is located to the north of Arnaud Township of the Municipality of Sept-Îles. The proposed mining project consists of an open-pit mine, an ore processing plant, and mine waste impoundment and storage areas, including a cell for the titaniferous magnetite, a by-product of the ore processing.
The project will also involve the relocation of approximately 8 km of railway line and the construction and use of storage, handling and loading facilities at the Port of Sept-Îles. The operating life of the mine is estimated at 31 years.
The project will have an annual extraction rate of approximately 11 million tonnes of ore and a production rate of apatite concentrate of approximately 1.2 million tonnes a year (Mt). Approximately 330 direct jobs will be created during the operation of the mine. Mine Arnaud Inc. intends to spend more than $30 million annually in salaries and benefits, and estimates that the total investment will be approximately $750 million for this mine.
Management of Mine Waste for the Arnaud Mining Project
The operation of the pit will generate 359.4 Mt of ore, 159.9 Mt of waste rock and 63.9 Mt of overburden over a period of 31 years. Some of the waste rock and overburden will be used for construction purposes (dams, roads, etc.) on the mining site and for its restoration, and some will be placed in stockpiles. These stockpiles will have, respectively, dimensions of approximately 145 metres (m) in length by 150 m of width (area of temporary ore disposal), and 1 550 m of length by 250 m of width (area of low-grade ore content disposal).
Five cells bearing a total capacity of 153 million cubic metres (Mm3) will be used to dispose of flotation tailings and a cell of 34.2 Mm3 shall be used for magnetic waste. Only two cells will be active at the same time. The cell that will receive the magnetic waste shall be in operation during the lifetime of the mine, whereas for the flotation tailings, the five cells shall receive the mining waste on a rotating basis. The total footprint on the soil of the tailings management facility will be 713.9 hectares.
The mine waste disposal areas that will be built will destroy five water bodies, that include small streams and ponds frequented by fish. In order to dispose of mine waste in these water bodies, they must be listed in Schedule 2 of the MMER.
The total area of the water bodies that are being added to Schedule 2 of the MMER is approximately 7.44 hectares. The species of fish that are found therein or are potentially present in these water bodies are brook trout and nine-spined stickleback.
Arnaud Mining Project Environmental Assessment
A comprehensive study level environmental assessment was carried out on this project under the Canadian Environmental Assessment Actfootnote4 (the former Act).
On February 23, 2016, the Minister of the Environment announced that the proposed Arnaud mining project is not likely to cause significant adverse environmental effects, taking into account mitigation measures proposed in the Comprehensive Study Report.
The project has also undergone an environmental review by the province under the Quebec Environment Quality Act, and an order respecting the issuance of a certificate of authorization to Mine Arnaud Inc. was published on March 18, 2015.
The proponent will implement mitigation measures in order to reduce the effects that the project could have on the environment. The proponent will implement an environmental management program that will include monitoring of several of the valued biophysical and human components assessed, as well as an emergency response plan in the event of accidents or spills.
The objective of the Regulations Amending the Metal Mining Effluent Regulations is to authorize the disposal of mine waste in five fish-frequented water bodies that are part of the Arnaud Mining Project.
The Amendments add the following water bodies to Schedule 2 of the MMER (see Figure 1):
- A portion of an unnamed tributary to Petit Lac du Portage;
- An unnamed headwater pond of ruisseau Clet and its unnamed tributaries;
- A portion of ruisseau Clet and its unnamed tributaries;
- An unnamed watercourse that is a tributary to Rivière Hall; and
- Portions of an unnamed creek.
These water bodies are located within the Hall Lake and rivière des Rapides watersheds.
The construction of mine waste disposal areas at the selected sites will cause the destruction of water bodies covering an area of approximately 7.44 hectares.
Figure 1: Location of the water bodies listed under Schedule 2 of the MMER
Fish Habitat Compensation Plan
The fish habitat compensation plan was reviewed and the Department of Fisheries and Oceans indicated the plan is consistent with the guiding principles of the Fisheries Productivity Investment Policy. The measures which will be implemented by Mine Arnaud Inc. to offset the loss of fish habitat caused by the construction of the tailings management facility, impoundment area, and screening mound consists of introducing the brook trout into a fish-free lake, called Unnamed Lake-1, located in the Matimek Controlled Harvesting Zone (CHZ)footnote5 at approximately 150 km northwest of Sept-Îles, and to design spawning habitat in order to ensure that the introduced population of brook trout are self-sufficient. The offsetting of Unnamed Lake-1 shall permit the development of the northern part of the CHZ territory and to increase the fishing offerings for brook trout in this sector. In addition, the layouts shall permit the provision of quality spawning sites in an environment where there are few.
Mine Arnaud Inc. has begun implementing the compensation plan which includes a follow-up program to assess the effectiveness of the fish habitat compensation plan and to ensure that the stated objectives have been attained. This follow-up program will verify the physical integrity of the designs and the abundance of brook trout population in the designed environments.
The proponent indicated that they had established spawning grounds and had stocked fish in 2016. The proponent has done a first series of follow-up measures during the summer of 2017, and has verified the physical integrity of the spawning grounds, the physico-chemical quality of the water, and the presence of fry in the lake. The proponent’s plan anticipates that the next follow-up measure will take place in the summer of 2019.
“One-for-One” Rule does not apply to the Amendments, as they will not impose a new administrative burden on business.
Small business lens
The Amendments did not trigger the small business lens, as Mine Arnaud Inc., which owns and operates the Arnaud Mining Project, is not considered a small business.footnote6
The Department of the Environment held consultations on the proposed Amendments to the MMER associated with the Arnaud mining project. These consultations were held with the general public, environmental organisations, and other interested parties, as summarised below.
Consultation Prior to prepublication of the Proposed Amendments in Canada Gazette, Part I
As part of the regulatory process, the Department of the Environment held a public consultation period from February 24 to March 31, 2016, including telephone conferences on March 22 and 23, 2016. The purpose of these consultations was to consult with the First Nations communities and the public in relation to the alternative assessment report and the fish habitat compensation plan prepared by the proponent. The consultations were followed by a 30-day comment period.
Comment: A local organisation expressed its support for the Arnaud mining project. It believes that the project is beneficial for the region and that it takes the region’s environmental, economic, and social concerns into account.
Comment: Environmental non-governmental organizations have voiced their concerns about the mine project, and in certain cases, their opposition to the entire project.
Response: This opposition is not specific to the proposed Amendments but targets the potential impact of the mine on the Sept-Îles Bay. These concerns were addressed in the comprehensive study report prepared by the Canadian Environmental Assessment Agency.
Comment: Some stakeholders have indicated that there is a lack of coordination of the consultation processes carried out by the Agency, the Department of Fisheries and Oceans, and the Department of the Environment.
Response: The Department of the Environment has taken into consideration this comment and has acknowledged that, in certain cases, a more concerted consultative approach would be preferable as it relates to the initiatives carried out by the Government of Canada. It is important to note that these consultations carried out by the Agency as part of the federal environmental assessment (EA) process and the consultations carried out by the Department of the Environment concerning the proposed Amendments to the MMER for the disposal of mine waste constitute separate processes. In addition, the application for tailings impounded areas following the EA decision can only proceed to the regulatory stage if the decision taken pursuant to the environmental assessment is that the project can be carried out, in whole or in part, past the EA stage. If the government decision is that the project should not proceed, no further action is taken with respect to the possible MMER Amendment.
Consultations with Innu First Nations
The Uashat mak Mani-Utenam Innu (ITUM) First Nation claims Aboriginal title, Aboriginal rights and treaty rights to a territory that includes the entire area affected by the Mine Arnaud project. This comprehensive land claim was accepted for negotiation by the Government of Canada in 1979, but negotiations have been inactive since 2008. The project is located very close to the community (10 km), and the ITUM states that it strongly values the territory that could be adversely affected by the project. Although the Innu First Nation of Matimekush-Lac John (NIMLJ) is located approximately 500 km north of the project, it shares the land claim of the ITUM. The two communities have common ancestors and still have family ties today.
Since the launch of the consultations on the proposed Amendments to the MMER in February 2016, the Department of the Environment attempted to engage with the ITUM and NIMLJ on multiple occasions to invite the members of these First Nations to take part in the consultative process. The First Nations did not respond to these invitations nor provide comments concerning the proposed Amendments.
In February 2017, following another attempt by the Department of the Environment to communicate with the ITUM and the NIMLJ concerning the proposed Amendments to the MMER, NIMLJ shared, in writing, its concerns with regards to the fish habitat compensation plan proposed by Mine Arnaud Inc. More specifically, NIMLJ denounces the use of water bodies frequented by fish for the disposal of mine waste and opposes the concept of compensation. In addition, this First Nation indicated that it was not consulted on the selection of a compensation plan proposed by Mine Arnaud Inc., that the priority of the plan is based on sport fishery, and that the Aboriginal fishing rights of the Innu have been ignored.
In its response, the Department of the Environment highlighted that consultations took place in 2016, to which the First Nations had been invited but in which they chose not to participate. The Department of the Environment further offered to hold a teleconference with NIMLJ to discuss the compensation plan and the proposed Amendments to the MMER. NIMLJ did not respond to this additional invitation.
In response to comments specifically concerning the compensation plan, the Department of the Environment indicated that the development and implementation of the compensation plan to offset the loss of fish habitat associated with the disposal of mine waste constitute a requirement pursuant to the MMER. In this regard, the proponent presented the Department of Fisheries and Oceans numerous project proposals that were not retained as they were found to be irrelevant. The compensation plan in the Unnamed Lake-1 of the Matimek Controlled Harvesting Zone was the only plan that met the four guiding principles of DFO’s Fisheries Productivity Investment Policy. The fish habitat compensation plan is essentially designed to ensure fisheries productivity. Given that the destruction of the fish habitat caused by Mine Arnaud’s activities will primarily affect the Matimek Controlled Harvesting Zone, offsetting efforts within this zone were prioritised.
NIMLJ also indicated that access conflicts exist between the Innu and the Matimek Controlled Harvesting Zone. These concerns are outside of the scope of the proposed Amendments.
Consultations on the Proposed Amendments Following Pre-publication in the Canada Gazette, Part I
On December 2, 2017, the proposed Amendments were pre-published in the Canada Gazette, Part I, for a 30-day public comment period.
In its efforts to continue engaging First Nations, the Department sent a letter through email and mail to both Innu Chiefs of ITUM and NIMLJ to inform them of the pre-publication of the proposed Amendments in the Canada Gazette, Part I. No comments were received from them.
Comment: Representative of a local organisation indicated they believed that Mine Arnaud Inc. is entirely publicly owned by Investissement Quebec and that the Regulatory Impact Analysis Statement should be amended accordingly.
Response: Investissement Québec 2016–2017 annual reportfootnote7 confirms that Investissement Quebec’s participation in Mine Arnaud Inc. is 61% and that Yara International (Norway) is a partner in the project.
No comments on the alternative assessment report nor the fish habitat compensation plan were received following Canada Gazette, Part I publication.
Non-Regulatory Options for Mine Waste Disposal
Non-regulatory options include the disposal of mine waste in a manner that would result in no direct impacts on fish-frequented water bodies. The geographic location of the disposal areas in a sector where many small bodies and streams are found represented a challenge for the proponent in order to completely avoid all of these waters while maintaining the priorities of the stakeholders and those of the proponent.
An alternatives assessment for the disposal of mine waste was carried out by the proponent during the federal environmental assessment process of the mining project. This analysis is necessary given that the disposal of mine waste would affect fish-frequented water bodies. This analysis was carried out as per the Guidelines for the Assessment of Alternatives for Mine Waste Disposal of Environment Canada.
The resulting report, entitled
“Analyse des solutions de rechange pour l’entreposage des déchets miniers,”footnote8 was made public as part of the public consultations that took place in February and March 2016 on the proposed Amendments to the MMER.
The basic selection criteria used by the proponent to determine viable options for the mine waste disposal were as follows:
- Exclusion based on the mine waste disposal method;
- Exclusion based on the rheological properties of mine waste;
- Exclusion based on the corporate commitments and key social issues; and
- Exclusion based on distance or major geographical boundaries.
Mine Arnaud Inc. has chosen to construct a tailings management facility consisting of cells for which the operational period will vary between 1 and 16 years except for the cell containing magnetic waste. The purpose of the cell-type design is to allow for the progressive restoration of the cells once they have reached capacity, as well as to enable the gradual return of local wildlife and vegetation without waiting until the end of the mine’s life.
Based on the above-mentioned criteria, Mine Arnaud Inc. has identified six possible alternatives (See Table 1).
Table 1. Proposed alternatives identified by the Proponent
Tailings management facility north-west of the concentrator
Tailings management facility north of Hall Lake and at the border of the basin flowing from Rapids Lake
Tailings management facility north of Hall Lake, to the west of Alternative D
Tailings management facility north of Hall Lake between Alternatives B and C
Tailings management facility situated between the concentrator and Hall River
Tailings management facility situated in the humid environment west of Hall River
A preliminary screening of alternatives was made based on the following criteria: 1) obstruction due to the additional increased costs; and 2) obstruction due to land tenure. Following this analysis, only tailings management facilities A and E did not pose major obstructions to the mine project. These two sites were then characterised based on environmental, technical, economic, and socio-economic components. In addition, the options north of Hall Lake did not have any environmental or socio-economic benefits.
Alternatives A and E were then characterised based on environmental, technical, economic, and socio-economic components. Through this characterization process, it was determined that the option to maintain a limited footprint around the pit and mine facilities appeared to be most advantageous overall. As soon as a disposal site is moved further from the pit and concentrator, a number of environmental, technical, economic, and social drawbacks became negative elements that affected the acceptability of the project. The tailings management facility at Site A was the most advantageous, even though certain water bodies frequented by fish had to be destroyed.
Moreover, Mine Arnaud Inc. proposed a mitigation measure to reduce noise and landscape impacts, namely the construction of a screening mound, such as is found in many operations located in inhabited areas. There were no alternatives in terms of location of the screening mound, but localized options were studied.
Of the two options studied, the result remained the same, i.e. the destruction of a fish-frequented water body. This loss of fish habitat has been accounted for and considered in the offsetting plan proposed by the proponent.
The Amendments list fish-frequented water bodies to Schedule 2 of the MMER, so that they can be used for the disposal of mine waste from the Arnaud mining project.
Given the absence of a feasible non-regulatory option for mine waste disposal, a meaningful baseline scenario cannot be constructed for the analytical framework and, in turn, no cost-benefit analysis could be performed. The analysis below examines the impacts of the Amendments on the environment, Government, and Canadian businesses.
It is estimated that the construction of the tailings management facilities, the accumulation basis and the screening mound will result in the loss of 2.05 hectares of watercourses as well as 5.39 hectares of fish-frequented water bodies, for a total loss of 7.44 hectares of fish habitat.
Most of the water bodies located within the footprint of the tailings management facility, impoundment area, and screening mound generally support either brook trout or ninespine stickleback, or both species together.
The brook trout is a species used in sports fishing, especially within the Matimek Controlled Harvesting Zone. According to representatives from the Matimek Controlled Harvesting Zone and a user of the territory, this sector of the mining project is not frequented by fishing activities, as the lakes and water bodies are of little value for this purpose and the sector is difficult to access.
The loss of fish habitat will be offset by the implementation of the fish habitat compensation plan that will create 31.2 hectares of fish habitat.
Costs to Government
Government of Canada enforcement activities include inspections to monitor the implementation of the fish habitat compensation plan, which may have associated incremental costs. Specifically, there may be incremental site visits, monitoring and review costs incurred by the Department of Fisheries and Oceans, including monitoring of Mine Arnaud’s participation in the compensation plan for the lake trout population of Unnamed Lake-1. These incremental costs will be low given the Department of Fisheries and Oceans is planning to conduct site visits and monitoring in the context of other authorizations under the Fisheries Act. Furthermore, these incremental monitoring activities, and associated costs, will only occur during fish habitat compensation plan implementation, and will not continue throughout the life of the mine waste disposal areas.
Incremental compliance promotion costs may also be incurred, but would be low, given that compliance promotion activities occurred throughout the federal EA process.
Therefore, the total incremental costs to the Government associated with the monitoring and implementation of the fish habitat compensation plan will be low.
Costs to Business
The Amendments will result in additional costs for Mine Arnaud Inc. associated with the implementation of the fish habitat compensation plan.
The cost of the habitat development work provided for in the compensation plan is estimated at $38,000.footnote9 This amount would cover the activities for the introduction and stocking of fish and the follow-up reports and activities. This estimate does not include the costs of compensation plan activities that have already been implemented (i.e. the development of spawning habitat and the initial fish introduction and stocking), which are estimated at $28,500.
Strategic Environmental Assessment
A strategic environmental assessment was conducted and concluded that authorizing the deposit of mine waste in tailings impoundment areas will result in adverse environmental effects, i.e. a loss of fish habitat. However, the adverse environmental effects will be offset by the implementation of a fish habitat compensation plan, and it is expected there will be no net loss of fish habitat. Proponents must also submit an irrevocable letter of credit alongside the plan to cover the plan’s implementation costs, including all necessary remedial measures, if the plan’s purpose is not being achieved.
Implementation, enforcement and service standards
The Amendments will enable Mine Arnaud Inc. to use fish-frequented water bodies for the disposal of mine waste.
Given that the MMER are regulations made pursuant to the Fisheries Act, enforcement personnel will, 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). Verification of compliance with the Regulations and the Fisheries Act will include, among other inspection activities, site visits, sample analysis, review of fish habitat compensation plans and related reports associated with the proposed Amendments.
If there is evidence of an alleged offence of the fisheries protection and pollution prevention provisions of the Fisheries Act and/or related regulations, enforcement personnel will determine an appropriate enforcement action, in accordance with the following criteria, as set out in the Policy:
- Nature of the alleged violation;
- Effectiveness in achieving the desired result with the alleged violator; and
- Consistency in enforcement.
Given the circumstances and subject to the exercise of enforcement and prosecutorial discretion, the following instruments are available to respond to alleged violations:
- orders by the Minister;
- injunctions; and
For more information on the Policy, please consult the Compliance and Enforcement Policy for Habitat and Pollution Provisions of Fisheries Act.
Mining and Processing Division
Industrial Sectors, Chemicals, and Waste Directorate
Department of the Environment
351 Saint-Joseph Boulevard