FEDERAL REG

SOR/2016-87: Regulations Amending the Metal Mining Effluent Regulations

REGISTRATION OF FEDERAL REGULATION - VIA OIC DATABASE, PRIOR TO PART II OF THE GAZETTE

Registered
May 6, 2016


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Executive summary Issues: The Red Chris Mine, an open pit copper-gold mine in northern British Columbia, is owned and operated by the Red Chris Development Company Ltd. (RCDC), a subsidiary of Imperial Metals Corporation. RCDC began operating the Red Chris Mine in February 2015 using a tailings storage facility ... (Click for more)


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Published on May 6, 2016

Bill Summary

SOR/2016-87: Regulations Amending the Metal Mining Effluent Regulations

REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Executive summary Issues: The Red Chris Mine, an open pit copper-gold mine in northern British Columbia, is owned and operated by the Red Chris Development Company Ltd. (RCDC), a subsidiary of Imperial Metals Corporation. RCDC began operating the Red Chris Mine in February 2015 using a tailings storage facility (TSF) that would not infill any fish-frequented water bodies. By fall 2016, the capacity of the TSF will be exceeded and RCDC is planning to expand it. This expansion will infill a portion of Trail Creek, which is frequented by fish. The TSF, including the expansion into Trail Creek, was subject to a federal environmental assessment (federal EA) that concluded “taking into account the implementation of the proposed mitigation measures, the project is not likely to cause significant adverse environmental effects.” However, a natural, fish-frequented water body can only be used for the disposal of mine waste if the Metal Mining Effluent Regulations (MMER) are amended to add that water body to Schedule 2 of the Regulations. Following a tailings dam failure at the Mount Polley Mine in British Columbia in August 2014, RCDC, the Tahltan Nation and the Government of British Columbia agreed to conduct an independent technical review of the proposed tailings dams at the Red Chris Mine. This review concluded that the design of the proposed dams is feasible and that they will be stable if constructed properly. The review also made several recommendations that are being implemented. The Mount Polley Mine is owned and operated by the Mount Polley Mining Corporation which, like RCDC, is a subsidiary of Imperial Metals Corporation. Description: The Regulations Amending the Metal Mining Effluent Regulations (the Amendments) add a portion of Trail Creek to Schedule 2 of the MMER, allowing the use of this portion of Trail Creek for the disposal of tailings from the Red Chris Mine. In the case where a fish-frequented water body has been added to Schedule 2, section 27.1 of the MMER requires the development and implementation of a fish habitat compensation plan (FHCP) to offset the losses of fish habitat that will occur as a result of the use of the portion of Trail Creek for mine waste disposal. RCDC has developed a proposed FHCP, which has been reviewed by the Department of Fisheries and Oceans and the Department of the Environment. Cost-benefit statement: The Amendments enable the disposal of mine tailings into the portion of Trail Creek. The Red Chris Mine as a whole is expected to bring positive economic benefits to society and local communities, including local First Nations, while minimizing environmental impacts. Net benefits in fish habitat are anticipated due to the development and implementation of the fish habitat compensation plan, which is expected to create 8 781 m 2 of fish habitat, while the Amendments will result in the loss of 1 905 m 2 of fish habitat. The total cost associated with the development of the fish habitat compensation plan attributed to the Amendments is $184,000 in one-time capital costs plus monitoring and maintenance costs totalling $15,400 over six years. (see footnote 2) RCDC also must submit a letter of credit ensuring that funds are in place to cover all costs associated with the implementation of all elements of the fish habitat compensation plan. Incremental costs to the Government, associated with the fish habitat compensation plan, would be low. “One-for-One” Rule and small business lens: The “One-for-One” Rule does not apply to the Amendments, as they will not place any incremental administrative burden on business. The small business lens does not apply, as the Amendments do not increase administrative or compliance costs for small business. Domestic and international coordination and cooperation: Federal departments, including the Department of the Environment and the Department of Fisheries and Oceans cooperated and collaborated in the development of the Amendments and will do so for their implementation. Background Metal Mining Effluent Regulations (MMER) The MMER came into force on December 6, 2002, under the Fisheries Act (the Act). The Act prohibits the deposit of deleterious substances in waters frequented by fish. The MMER impose limits on releases of arsenic, copper, cyanide, lead, nickel, zinc, radium-226 and total suspended solids, and prohibit the discharge of effluent that is acutely lethal to fish. (see footnote 3) The use of a water body frequented by fish for mine waste disposal can only be authorized through an amendment to the MMER, which adds that water body to Schedule 2 of the Regulations. Once a water body is added to Schedule 2, section 27.1 of the MMER requires the development and implementation of a fish habitat compensation plan. The objective of this requirement is to ensure that offsets are provided for losses of fish habitat that occur as a result of the use of natural, fish-frequented water bodies for mine waste disposal. The fish habitat compensation plan must be approved before any deposit of mine waste into the water body can begin. Mine owners or operators are required to submit an irrevocable letter of credit ensuring that funds are in place to cover all costs associated with the implementation of all elements of the fish habitat compensation plan. Any effluent discharged from a tailings impoundment area established in a water body listed on Schedule 2 (a tailings impoundment area as set out in the Regulations) must meet the effluent discharge limits specified in Schedule 4 of the MMER to help ensure the protection of downstream ecosystems. In addition, the MMER require that environmental effects monitoring must be conducted downstream from the effluent discharge point to determine if there are any effects on fish, fish habitat, or the use of fisheries resources. The Red Chris Mine The Red Chris Mine is located approximately 18 km southeast of the community of Iskut and 80 km south of Dease Lake in northern British Columbia (see Figure 1). The Red Chris Mine is located within the traditional territory of the Tahltan Nation. The Red Chris Mine is located within the watersheds of Quarry Creek and Trail Creek, which are tributaries of the Klappan and Iskut rivers, respectively. Both of these rivers are tributaries of the Stikine River, one of the largest rivers in northwestern British Columbia. Construction of the mine, which produces copper and gold, is complete, and it began operating in February 2015. It is designed to process 30 000 tonnes of ore per day and is expected to operate for at least 28 years. The mine produces a copper-gold concentrate which is shipped by truck to a port facility in Stewart, British Columbia, for transport to offshore smelting facilities. RCDC estimates that the deposit contains an ore reserve of about 2.1 billion pounds of copper and 1.3 million ounces of gold. A financial analysis of the mine, as reported and estimated by RCDC, forecasted a net present value (after tax) for the entire mine project of $423 million. (see footnote 4), (see footnote 5) This represents an internal rate of return of 15.7%. The Red Chris Mine is expected to benefit Canadians, including local communities and the region, in the form of employment, business, and training opportunities. RCDC states that the mine is expected to employ about 270 people through the operational life of the mine (28 years). The company estimates that over 20% of the current employees are Aboriginal. The Red Chris Mine includes (see Figure 1) an open pit mine (approximately 1 700 m long, 1 100 m wide and 425 m deep when fully developed); an ore milling facility to process ore, producing a copper-gold concentrate; a waste rock disposal area north of the open pit; and a tailings storage facility (TSF). The mine also includes site access roads, power transmission lines, an explosives factory and magazine, water management infrastructure, ancillary mine infrastructure, and associated activities. Figure 1: Red Chris Mine Tailings management for the Red Chris Mine The Red Chris Mine is expected to produce at least 300 million tonnes of tailings over the life of the mine. To manage these tailings on a long-term basis, RCDC will construct and operate a TSF located east of and almost 400 m downslope from the ore milling facility. The TSF is in a Y-shaped valley and straddles the watershed divide between Quarry Creek to the north and Trail Creek to the south. All water from the mine is being managed within this facility, and most of the water is recycled for use in the ore milling process. Excess water is treated as necessary to meet the MMER and provincial permit requirements and is released into Quarry Creek downstream from the TSF. Construction of the north tailings dam in the Quarry Creek valley is complete, and tailings disposal into this portion of the TSF has begun. The portion of Quarry Creek that will be impacted by the TSF is not frequented by fish. By fall 2016, the capacity of the TSF will be exceeded and RCDC will expand it. This expansion will infill a portion of Trail Creek, which is a natural water body frequented by fish. The TSF, including the expansion into Trail Creek, was subject to a federal environmental assessment (federal EA) which concluded that “taking into account the implementation of the proposed mitigation measures, the project is not likely to cause significant adverse environmental effects.” However, a natural, fish-frequented water body can only be used for the disposal of mine waste if the MMER are amended to add that water body to Schedule 2 of the Regulations. Gold is not being recovered on-site, and as a result no cyanide is being used in ore processing and no cyanide will be present in the TSF. Some of the tailings produced will have the potential to oxidize, releasing acid and metals, unless they are managed in a manner that prevents exposure to both oxygen and water. RCDC plans to manage these tailings by keeping them saturated with water within the TSF, thereby preventing exposure to oxygen and preventing the oxidation reaction, limiting the development of acid drainage from potentially acid generating tailings. Environmental assessment of the Red Chris Mine Project The Red Chris Mine Project was subject to environmental assessments (EAs) under both federal and provincial legislation. The provincial EA considered the full scope of the proposed mine, as proposed by RCDC, and was completed in 2005. The provincial and federal EAs were coordinated through a single cooperative EA process. The BC Environmental Assessment Office led this cooperative process, including all consultations. This included consultations with the Tahltan Nation. All federal government departments involved (the Canadian Environmental Assessment Agency, the Department of Natural Resources, the Department of Fisheries and Oceans, the Department of the Environment, and the Department of Health) were fully engaged in this cooperative process. The federal EA was conducted as a screening level EA under the Canadian Environmental Assessment Act. The Red Chris Mine Project, as defined in the federal EA, was narrower than the provincial EA, and focused primarily on the proposed TSF and associated activities, as well as the proposed explosives factory and magazine. The federal EA, completed in 2006, concluded that “taking into account the implementation of the proposed mitigation measures, the project is not likely to cause significant adverse environmental effects.” The federal EA was subsequently subject to a legal challenge on the grounds that it should have been conducted as a comprehensive study rather than a screening. This case ultimately went to the Supreme Court of Canada. In January 2010, the Supreme Court issued a decision that concluded the federal EA of the Red Chris Mine Project should have been conducted as a comprehensive study rather than a screening on the basis that the project, as described by the proponent included components listed on the Comprehensive Study List. Nonetheless, the judge who wrote the unanimous decision stated that “I can see no justification in requiring Red Chris to repeat the environmental assessment process when there was no challenge to the substantive decisions made by the [responsible authorities].” (see footnote 6) On the basis of this decision, the project moved into the regulatory and permitting phase, both federally and provincially. Provincial permits needed for the mine to become operational have been issued, including a British Columbia Mines Act permit for the project as a whole and a permit for effluent discharges from the north tailings dam under the British Columbia Environmental Management Act. An amendment to the British Columbia Mines Act permit necessary for the construction of the south tailings dam and the effluent discharge permit for the south tailings dam are still pending. As part of the Environmental Impact Statement prepared by RCDC, which was the basis for the federal and provincial EAs, alternatives for tailings disposal were considered. RCDC concluded that the use of a portion of Trail Creek for tailings disposal is the preferred option. Alternatives were taken into account in the federal EA in the context of potential means of mitigating the impacts of the project on fish and fish habitat. The Department of the Environment recognizes that RCDC was faced with a number of challenges in determining an appropriate location for a TSF; specifically, the amount of tailings to be produced over the life of the mine, the topography of the site and the occurrence of fish-frequented water bodies within both the Trail Creek and Quarry Creek. Given these challenges, the Department of the Environment concludes that it is unlikely that a viable alternative for tailings disposal could be identified and implemented that would not impact any fish-frequented water bodies. Therefore, the Department of the Environment accepts RCDC’s conclusion that the preferred option is to establish a TSF in the headwaters of Quarry Creek and Trail Creek. Issues RCDC plans to use a fish-frequented portion of Trail Creek for the disposal of tailings from the Red Chris Mine, beginning in the fall of 2016. However, a natural, fish-frequented water body can only be used for the disposal of mine tailings if the MMER are amended to add that water body to Schedule 2 of the Regulations. Objectives The objective of the Amendments is to allow RCDC to utilize a portion of Trail Creek for disposal of tailings from the Red Chris Mine. Description The Amendments Trail Creek is a natural water body frequented by fish. The Amendments add a portion of Trail Creek to Schedule 2 of the MMER. This allows disposal of tailings from the Red Chris Mine into this portion of Trail Creek. In accordance with section 27.1 of the MMER, RCDC is required to implement a fish habitat compensation plan to offset the loss of fish habitat in the portion of Trail Creek added to Schedule 2. RCDC may not deposit tailings into this portion of Trail Creek until such time as the Amendment is approved by the Governor in Council and the fish habitat compensation plan is formally approved. RCDC also must submit a letter of credit ensuring that funds are in place to cover all costs associated with the implementation of all elements of the fish habitat compensation plan. The infilling of this water body with tailings will begin in the fall of 2016. All effluent from the TSF is subject to the requirements of the MMER, including the effluent discharge limits specified in Schedule 4 of the Regulations. The Amendments come into force on the day on which they are registered. Fish habitat compensation plan RCDC developed a fish habitat compensation plan for the Red Chris Project in two components: one component addresses the requirements of the former subsection 35(2) of the Fisheries Act to request authorization for harmful alteration, disruption and destruction of Trail Creek fish habitat below the TSF. The other component addresses the requirement to prepare a fish habitat compensation plan as per section 27.1 of the MMER. The fish habitat compensation plan, required in accordance with section 27.1 of the MMER, will offset the loss of fish habitat that will occur as a result of the use of a portion of Trail Creek for tailings disposal, which is the purpose of the Amendment. It is also one of the mitigation measures identified in the screening report for the federal EA. The use of a portion of Trail Creek for tailings disposal will result in the direct loss of 1 905 m 2 of habitat, including 194 m 2 of spawning habitat. This portion of Trail Creek is habitat for rainbow trout. RCDC has prepared a fish habitat compensation plan that will create new fish habitat and increase the productive capacity of fish habitat in the Snapper Creek watershed. (see footnote 7) Snapper Creek is a small stream that empties into Kinaskan Lake, about 30 km southwest of the Red Chris Mine. Kinaskan Lake is used for recreational and subsistence fishing and there is a provincial park at the south end of the lake where Snapper Creek empties into the lake. About 2 km upstream of Kinaskan Lake, Snapper Creek is crossed by provincial Highway 37. This crossing currently consists of two steel culverts under the highway, and on the downstream side of the highway the culverts are perched, meaning that there is a drop from the culverts into the stream below the culverts. Due to the vertical drop and the hydraulic gradient, the crossing at this location is considered a barrier to upstream passage of fish species residing within the Snapper Creek watershed. No fish have been captured for at least 2 km upstream of the culverts within Snapper Creek. Further upstream (greater than 6 km) there are some isolated remnant populations of rainbow trout in Snapper Creek. The culverts also limit high water flow events downstream from the crossing, as water pools on the upstream side. As a result, the downstream movement of wood debris and sediment, which are important habitat components, has been reduced. These factors have led to lower habitat quality in the portion of Snapper Creek downstream of the highway to Kinaskan Lake. Thus, the current culverts for the crossing of Highway 37 over Snapper Creek are having impacts on fish and fish habitat both upstream and downstream of the crossing. To increase the productive capacity of fish habitat in the Snapper Creek watershed, RCDC will replace the current culverts with a clear span bridge over Snapper Creek. As discussed further in the “Consultation” section (below) this fish habitat compensation measure reflects input from the Tahltan Nation and is supported by the Tahltan Nation. RCDC has worked with the British Columbia Ministry of Transportation and Infrastructure in identifying the replacement of these culverts as a fish habitat compensation measure, and the two parties will work together in the design and construction of the bridge, which will be funded by RCDC. The installation of a clear span bridge will allow fish to move from Kinaskan Lake and the downstream portion of Snapper Creek to portions upstream of the crossing. RCDC states that this will result in a gain of 8 781 m 2 of fish habitat, including 1 213 m 2 of spawning habitat, in the 2 km portion of Snapper Creek upstream of the Highway 37 crossing. This will offset the direct loss of 1 905 m 2 of habitat that will occur as a result of adding a portion of Trail Creek to Schedule 2 of the MMER. As mentioned above, RCDC has also developed a component of a fish habitat compensation plan under the former subsection 35(2) of the Fisheries Act, to request authorization for harmful alteration, disruption and destruction of Trail Creek fish habitat below the TSF. This plan will compensate for the loss of 8 449 m 2 of fish habitat in Trail Creek downstream from the proposed TSF that will occur as a result of reductions in water flow in the creek. (see footnote 8) This plan, also associated with the culvert replacement in Snapper Creek, would result in the gain of 33,891 m 2 of fish habitat in Snapper Creek. This habitat gain would be upstream of the 2 km portion covered in the fish habitat compensation plan associated with the Amendments. RCDC has not quantified potential benefits of the culvert replacement on fish habitat downstream from the highway crossing, neither in the lower portion of Snapper Creek nor in Kinaskan Lake. Regulatory and non-regulatory options considered As part of the Environmental Impact Statement for the Red Chris Project prepared by RCDC, alternatives for the disposal of tailings were considered. (see footnote 9) The federal EA also considered alternatives for tailings disposal in the context of alternatives considered to mitigate potential impacts of the project on fish habitat. The Department of the Environment notes that the first version of its Guidelines for the Assessment of Alternatives for Mine Waste Disposal was released in 2008, two years after the federal EA of the Red Chris Project was completed. Thus, the assessment of alternatives conducted by RCDC met the standards that existed at the time that the federal EA was completed, but was not as comprehensive as would be required under the Department of the Environment’s current guidelines. Based on the information in the environmental impact assessment and the screening report for the federal EA, it was concluded that the establishment of a TSF in a portion of Trail Creek is the preferred option. Alternative technologies for tailings management and disposal The Department of the Environment notes that the alternatives assessment conducted by RCDC focused on different locations for the establishment of a TSF. This is consistent with the approach taken in all assessments of alternatives considered by the Department of the Environment. In addition to different locations for the establishment of a TSF, some proponents also consider alternative technologies for tailings management and disposal. In Canada, tailings are most commonly managed as slurry, meaning that tailings solids are mixed with water from the ore milling process. The proposed tailings slurry for Red Chris would be about 35% tailings solids. A TSF for tailings slurry allows for the management of water from all sources on the mine site, and facilitates the recycling of water for use in the ore milling process without the need for an additional facility to store large volumes of water. There are three main alternatives to tailings slurry: thickened tailings, paste tailings and dry stack tailings. In each case, water is removed from the tailings prior to disposal in the TSF so that the proportion of tailings solids increases from about 45–70% tailings solids for thickened tailings to more than 80% solids for dry stack tailings. The assessment of alternatives conducted by RCDC did not consider any potential alternative technologies for tailings management and disposal. However, regardless of the technology used, RCDC would still need to identify an appropriate location for a TSF large enough to be able to accommodate the estimated 300 million tonnes of tailings that would be produced over the mine life. Generally, TSFs for thickened and paste tailings are comparable in size to TSFs using tailings slurry for mines of comparable size, while TSFs for dry stack tailings may take up less space. Given the volume of tailings to be produced, the topography of the Red Chris Mine site, and the presence of fish-frequented water bodies, the Department of the Environment is of the view that it is unlikely that a viable TSF could be developed as a non-regulatory option, regardless of the technology used for tailings management and disposal. Regulatory options for tailings disposal Regulatory options involve the disposal of tailings in a manner that would result in direct impacts (see footnote 10) on one or more natural, fish-frequented water bodies, and would therefore require the water bodies to be added to Schedule 2 of the MMER for the option to be implemented as proposed. Options for the disposal of tailings from the Red Chris Mine are illustrated in Figure 2. Option 1 (chosen option) Option 1 is to establish a Y-shaped TSF located within the headwaters portions of the Quarry Creek and Trail Creek watersheds (see Figures 1 and 2). It will require the construction of three dams. One at the north end in the Quarry Creek valley, approximately 2 km north of the drainage divide between the Quarry Creek and Trail Creek watersheds; One at the south end in the Trail Creek valley, approximately 2 km south of the drainage divide between the watersheds; and A much smaller dam at the end of the northeast arm of the TSF, on the drainage divide between a tributary of Trail Creek and a creek referred to by RCDC as Nea Creek, which is a tributary of the Klappan River. Figure 2: Options for tailings disposal for the Red Chris Mine The TSF under Option 1 is closer to the ore milling facility than would be the case under Option 2, resulting in shorter pumping distances for tailings and for water pumped from the TSF back to the mill for re-use in the ore milling process, referred to as “reclaim water.” RCDC intends to direct surface drainage and seepage from the waste rock disposal area and ore milling facility to the TSF to facilitate the treatment, as necessary, of these effluents before they are released to the environment. During mine operations, water pumped from the open pit is also directed to the TSF. The closer proximity of Option 1 to the ore processing facility, open pit and waste rock disposal area, as well as the topography of the site, makes it much easier to direct surface drainage and seepage into the TSF for Option 1 than it would have been for Option 2, since all of this water can be directed to the TSF by gravity, with no need for pumping. Water from the TSF, referred to as “reclaim water,” is pumped back to the ore milling facility for re-use in the ore milling process. Such re-use of water from the TSF in the ore milling process significantly reduces the amount of fresh water which must be taken from nearby sources for use in the ore milling process, and is a practice which the Department of the Environment recommends. (see footnote 11) Surplus water from the TSF is treated as necessary and deposited into Quarry Creek downstream from the TSF. RCDC will not deposit effluent directly into Trail Creek. It is important to note that, following the completion of the federal and provincial EAs and the 2010 decision of the Supreme Court of Canada, concerns were raised by the Tahltan Nation and the Government of British Columbia about the potential for seepage of groundwater from the TSF (Option 1) to impact water quality downstream from the TSF, particularly in Trail Creek and Kluea Lake. In response to these concerns, RCDC has undertaken additional work to better understand the potential for seepage and develop mitigation measures to prevent or minimize any impacts on downstream water quality. In particular, RCDC, in consultation with the Tahltan Nation and the Government of British Columbia, hired an independent consultant to review existing information on the hydrogeological conditions in the project area. The report of this consultant, provided to RCDC, the Tahltan Nation, the Government of British Columbia and the Department of the Environment in November 2012, made recommendations for work that should be undertaken to address information gaps identified by the consultant. The consultant also reviewed and commented on mitigation measures that had been proposed by RCDC to manage seepage. RCDC accepted the recommendations of the consultant and in 2013 initiated work to respond to the consultant’s recommendations. In June 2015, the Government of British Columbia issued a permit amendment to allow the project for full operation. (see footnote 12) RCDC is continuing to work with the Tahltan Nation, the Government of British Columbia and the Department of the Environment to implement the recommendations and develop mitigation measures. Option 1 (the TSF) results in direct impacts on a portion of Trail Creek that is fish-frequented and also results in direct impacts on headwater portions of Quarry Creek, upstream of the fish-frequented portion of Quarry Creek. Option 2 would not have resulted in any direct impact on Trail Creek since tailings containment would have been entirely within the Quarry Creek watershed. RCDC identified Option 1 as the preferred option because it is the only option that provides adequate tailings disposal capacity within a reasonable proximity to the open pit; and it offers a better opportunity for long-term management of drainage from the open pit, waste rock disposal area, and the ore milling facility. During the federal EA, consideration was given to whether the south dam of Option 1 could be relocated about 1800 m upstream (north) in the Trail Creek watershed in order to avoid direct impacts on fish-frequented portions of Trail Creek. The screening report for the federal EA notes that further north in the Trail Creek valley, upstream of the fish-frequented portion of the creek, the valley is wider. As a result, if the TSF was only to extend downstream to this point, a longer tailings dam would be required, increasing costs and risks associated with a potential failure of the dam. (see footnote 13) To have the same tailings storage capacity, RCDC would need to either make the tailings dams higher, which would further increase the risk associated with the dams, or extend the TSF further downstream in the Quarry Creek valley. Since the Quarry Creek valley is wider further downstream, this would result in a longer dam in the Quarry Creek valley, thus increasing the risk associated with that dam. In addition, moving the tailings dam downstream in Quarry Creek would likely result in direct impacts on the fish-frequented portion of Quarry Creek. It should be noted that the location of the south dam is about 800 m upstream (north) of the dam originally considered for Option 1. The location of the north dam has also been shifted to the north (see Figure 2). This change has reduced the direct impact of the TSF on fish-frequented portions of Trail Creek, but has not led to any direct impact of the TSF on fish-frequented portions of Quarry Creek. This new location for the south dam does not pose the same risks as if it had been moved far enough north to avoid any direct impacts on the fish-frequented portion of Trail Creek. This is because the location of the dam is in a narrow point in the valley, so the dam is shorter than if it was constructed at the more northerly location. The screening report for the federal EA also noted that moving the location of the south dam within the Trail Creek watershed would not mitigate the impacts of the TSF on water flows in Trail Creek downstream of the TSF. The screening report concluded that “moving the south dam to avoid effects to ‘waters frequented by fish’ does not achieve a net benefit in terms of reducing effects to fish and fish habitat.” Option 2 Option 2 is to establish a TSF located within the Quarry Creek valley. It would have required the construction of two dams: One at the north end, approximately 4 km downstream from the north dam that would be constructed for Option 1; and One at the south end, located in the area of the drainage divide between the Quarry Creek and Trail Creek watersheds. This would have created a TSF in upper Quarry Creek approximately 4 km in length and approximately 6 km from the ore milling facility. Option 2 would have required higher dams than Option 1. Based on the current mine plan, the maximum dam height would be 200 m. Although not specifically addressed by RCDC in the environmental impact statement, a comparison of the figure prepared by RCDC to illustrate Options 1 and 2, and information provided in the 2012 fish habitat compensation plan indicates that Option 2 would have directly impacted a fish-frequented portion of Quarry Creek. As a result, Option 2 is also considered a regulatory option, since it could only be implemented if the MMER were amended to add the fish-frequented portion of Quarry Creek to Schedule 2 of the Regulations. Option 2 would have been further from the ore milling facility than Option 1, resulting in greater pumping distances for tailings and reclaimed process water. In addition, due to the topography of the site, Option 2 would have required pumping on an on-going basis to direct surface drainage and seepage from the open pit, waste rock disposal area and ore milling facility into the TSF, including during the closure and post-closure period when other pumping operations would cease. This would have been technically challenging compared to Option 1, since, as described above, no pumping is required for Option 1 due to the site topography. Consequently, it is likely that during the closure and post-closure period surface drainage and seepage from the waste rock disposal area and the ore milling facility would have been directed towards Trail Creek rather than the TSF, using gravity rather than long-term pumping. This would have resulted in potentially greater water quality impacts on Trail Creek for Option 2 compared to Option 1. Option 2 would have resulted in direct impacts on more of Quarry Creek than Option 1. Compared to Option 1, Option 2 would have had less impact on Trail Creek as a result of reductions in flow, but would have resulted in downstream reductions in flow in Quarry Creek. Non-regulatory options for tailings disposal Non-regulatory options would involve the disposal of tailings in a manner that would not directly impact a natural, fish-frequented water body. RCDC identified one potential tailing disposal options which would have represented a non-regulatory option. Option 3 Option 3 would have involved the establishment of a TSF in the valley of a headwater tributary to Quarry Creek located approximately 6 km to the northeast of the proposed open pit and ore milling facility (see Figure 2). This option would have been smaller in area than Options 1 and 2 and would not have provided sufficient capacity for all of the tailings that would be generated during the mine life. On this basis, RCDC concluded that Option 3 would not be feasible. This option would have required the construction of two dams: One at the northwest end of the TSF at the upstream end of this valley and straddling the drainage divide with Ealue Lake; and One at the southeast end of the TSF at the downstream end of the valley, just upstream of the confluence of the tributary with Quarry Creek. Option 3 would not have had any direct impacts on Quarry Creek or Trail Creek, but it would have had potential impacts on water quality in both creeks. This option would potentially have impacted water quantity and quality in Quarry Creek since it would have eliminated flows into Quarry Creek from this headwaters area and effluent from the TSF would have been discharged into Quarry Creek. As with Option 2, the topography of the site is such that, for Option 3, pumping would have been required on an on-going basis to direct surface drainage and seepage from the waste rock disposal area and ore milling facility into the TSF, including during the closure and post-closure period. To avoid the need for such pumping during the closure and post-closure period is it likely that, as with Option 2, surface drainage and seepage from the waste rock disposal area and the ore milling facility would have been directed towards Trail Creek using gravity, resulting in potentially greater water quality impacts on Trail Creek than for Option 1. RCDC states that Option 3 would also have required more long-term care and maintenance in the post-closure period, compared to Options 1 and 2, which is something discouraged by the provincial regulators responsible for mine closure legislation. The Department of the Environment notes that, in considering the potential impacts of Options 1, 2 and 3 on water quality, RCDC did not take into account potential impacts on water quality due to seepage from the TSF. If RCDC had taken seepage into account, it is possible that impacts on water quality due to seepage would have been identified as a potential concern in Trail Creek and Quarry Creek for Option 2, since the main dam would have been in the Quarry Creek watershed and the second dam would have been on the drainage divide between Quarry Creek and Trail Creek. It is also possible that such potential impacts would have been identified for Ealue Lake and Quarry Creek for Option 3, since the main dam would have been in the Quarry Creek watershed and the second dam would have been on the drainage divide between Quarry Creek and Ealue Lake. Table 1: Summary of regulatory and non-regulatory options considered for tailings disposal This table presents the summary of regulatory and non-regulatory options considered for tailings disposal. Regulatory options Regulatory options Non-regulatory option Option 1 Option 2 Option 3 Water body that will be added to Schedule 2: a portion of Trail Creek — 3 dams to be constructed (maximum height of 120 m). — Direct impacts on Trail Creek, including impacts on a fish-frequented portion of Trail Creek. — Also direct impacts on portion of Quarry Creek that is not fish-frequented. — Shorter pumping distance for tailings and reclaim water compared to Options 2 and 3. — Topography allows effluent from the ore processing facility, open pit and waste rock disposal area to be directed to the TSF using gravity. — Potential impacts on water quality in Quarry Creek due to discharge of effluent from the TSF. — Potential impacts on water quality in Trail Creek and Kluea Lake due to seepage from the TSF. Water body that would be added to Schedule 2: a portion of Quarry Creek — 2 dams to be constructed (maximum height of 200 m). — Direct impacts on Quarry Creek, including impacts on a fish-frequented portion of Quarry Creek. — Greater pumping distances for tailings and reclaim water, compared to Option 1. — Potential impacts on water quality in Quarry Creek due to discharge of effluent from the TSF. — Potentially greater impacts on water quality in Trail Creek (compared to Option 1) since effluent from the ore processing facility, open pit and waste rock disposal area would likely be directed to Trail Creek in the closure and post-closure period to avoid the need for long-term pumping to the TSF. No water body would be added to Schedule 2 — 2 dams to be constructed. — No direct impacts on Quarry Creek or Trail Creek. — Greater pumping distances for tailings and reclaim water compared to Option 1. — Potential impacts on water quality in Quarry Creek due to discharge of effluent from the TSF. — Potentially greater impacts on water quality in Trail Creek (compared to Option 1) since effluent from the ore processing facility, open pit and waste rock disposal area would likely be directed to Trail Creek in the closure and post-closure period to avoid the need for long-term pumping to the TSF. — Insufficient storage capacity for the tailings that would be produced over the mine life. — RCDC determined that this option was not feasible due to the insufficient storage capacity. Cost estimate: $249 million (see footnote 14) for the construction/operation and closure of the TSF. Cost estimate: $267 million (see footnote 15) for the construction/operation and closure of the TSF. Cost estimate not available. Benefits and costs Analytical framework The Red Chris Mine, including the TSF, was evaluated via the federal and provincial EA processes, and RCDC advanced the project to the regulatory and permitting phase based on the outcomes of these processes. The Amendments address only the addition of a portion of a fish-frequented water body, Trail Creek, to Schedule 2 of the MMER, allowing that portion of the creek to be used for the disposal of tailings from the Red Chris Mine. Given the absence of a non-regulatory option for tailings disposal that is technically feasible, a meaningful baseline scenario could not be constructed and, in turn, no cost-benefit analysis could be performed. Instead, the analysis below examines impacts of the proposed Amendments on the environment, business, government, and society and culture. Environmental impacts The environmental impacts of the Amendments will be limited to the loss of fish and fish habitat that will be offset by the gains associated with the fish habitat compensation plan. The only fish species that has been identified in the portion of Trail Creek being added to Schedule 2 of the MMER is rainbow trout. However, there is no evidence of commercial/recreational/subsistence harvesting in this portion of Trail Creek, and therefore no monetary value can be placed on this impact. Fishing activities in the immediate project area are limited, and any fishing that does occur is likely limited to Kluea Lake, located downstream of Trail Creek. The loss of fish habitat associated with the use of a portion of Trail Creek for tailings disposal will be compensated for through the development and implementation of a fish habitat compensation plan. The Amendments will result in a loss of 1 905 m 2 of fish habitat once RCDC begins disposing of tailings. As required under section 27.1 of the MMER, RCDC has proposed a fish habitat compensation plan to offset this loss of fish habitat. Habitat compensation measures will consist of the replacement of a highway culvert with a bridge. (see footnote 16) The culvert currently presents a barrier to the movement of fish (rainbow trout) in Snapper Creek upstream of the culvert, and also presents a barrier to the downstream movement of sediments, tree branches and other habitat elements. Replacement of the culvert with a bridge will remove this barrier, and is expected to improve fish habitat within Snapper Creek. In the 2 km of Snapper Creep upstream of the culvert, this work is expected to result in a gain of 8 781 m 2 of fish habitat, resulting in a net gain in area of approximately 6 876 m 2 . Cost to Government Enforcement activities include inspections to monitor the implementation of the fish habitat compensation plan associated with the Amendments. These enforcement activities may cause incremental costs. Specifically, there may be incremental site visit(s), monitoring and review costs incurred by the Department of Fisheries and Oceans including habitat quality and migration of fish at the Snapper Creek crossing location. These incremental costs would be low given the Department of Fisheries and Oceans is planning to conduct site visit(s) and monitoring in the context of other authorizations under the Fisheries Act. (see footnote 17) Furthermore, these incremental monitoring activities, and associated costs, would only occur during the period of the fish habitat compensation plan implementation and would not continue throughout the life of the TSF. Incremental compliance promotion costs may also be incurred, but they would be low, given that the compliance promotion activities occurred throughout the federal EA process. Therefore, the total incremental costs to the Government associated with the fish habitat compensation plan would be low. Cost to business The incremental cost to business for the fish habitat compensation plan, to offset the loss of fish habitat, due to the addition of the water body to Schedule 2 of the MMER, based on RCDC’s estimates, is $184,000 in one-time capital costs as well as monitoring and maintenance costs totalling $15,400 over six years. (see footnote 18) Health impacts Potential effects of the mine on human health relate to the consumption of fish, wildlife, plants and berries (including medicinal plants) or water containing potentially elevated concentrations of contaminants from the mine. The Department of Health, as an expert federal authority in the federal EA of the Project, is satisfied that all major potential health issues related to the Project were addressed in the EA process. The federal EA screening report concluded that “with the water and air quality standards being met, the monitoring programs implemented, along with the successful implementation of proposed mitigation measures the Project is not likely to cause significant adverse environmental effects on health conditions.” It should be noted that these concerns are related to the Project as a whole and are not specifically related to the Amendments. Society and culture impacts During the EA, potential impacts on traditional land uses, including resource harvesting (hunting, fishing, trapping and plant use) were identified. The federal EA considered relevant analysis undertaken by the Government of British Columbia in the provincial EA and concluded that “the Project is not likely to cause significant adverse environmental effects on physical and cultural heritage.” The federal EA also concluded that “the Project is not likely to cause significant adverse environmental effects on current use of lands and resources for traditional purposes by aboriginal persons.” Table 2: Impacts statement (qualitative) This table presents the Impacts Statement. Qualitative and non-monetized impacts Qualitative and non-monetized impacts A. Industry The Amendments will enable the destruction of fish and fish habitat in Trail Creek to allow the construction and operation of the TSF. The Red Chris Mine is expected to bring positive economic benefits to society and local communities. The total incremental cost related to the Amendments for business is associated with the development and implementation of the fish habitat compensation plan is: $184,000 in one-time capital costs plus monitoring and maintenance costs totalling $15,400 over six years. (see footnote 19) B. Government Incremental costs to the Government, associated with the fish habitat compensation plan, would be low. C. Environment Net benefits in fish habitat are anticipated due to the development and implementation of the fish habitat compensation plan. D. Society and culture The Red Chris Mine is not likely to cause significant adverse environmental effects on current use of lands and resources for traditional purposes by aboriginal persons. “One-for-One” Rule The “One-for-One” Rule does not apply to the Amendments, as they do not impose new administrative requirements on the regulated community. Small business lens The Amendments do not trigger the small business lens, as the RCDC is not considered a small business. (see footnote 20) Consultation Consultation prior to publication of the proposed Amendments in the Canada Gazette, Part I The Red Chris Mine was subject to provincial and federal EAs which were completed in 2005 and 2006, respectively. During those EAs, the British Columbia Environmental Assessment Office led consultations with the proponent, local governments, First Nations, federal and provincial agencies, and other communities of interest. The federal government did not conduct separate consultations, but was fully engaged through a cooperative EA process, and participated in an Interagency Committee Working Group, a Fisheries Compensation Plan Technical Working Group and First Nation meetings. The Red Chris Mine is located in the traditional territory of the Tahltan Nation and the Tahltan Nation is the only First Nation that was engaged in consultations on the EA and in subsequent consultations. The Tahltan Nation is governed by the Tahltan Central Council. The Tahltan Heritage Resources Environmental Assessment Team (THREAT), made up of Tahltan Nation members and consultants, works on behalf of the Tahltan Nation to review proposed development projects and provide advice to the Tahltan leadership regarding impacts to Tahltan interests in Tahltan territory. Following the 2010 Supreme Court of Canada decision on the federal EA of the Red Chris Mine, the process of issuing provincial government permits related to the mine was initiated. The Northwest Mine Development Review Committee, consisting of representatives of RCDC, the provincial government, the federal government and the Tahltan Nation, facilitated discussions related to permitting for the mine and provided a mechanism for federal government and Tahltan Nation engagement on matters related to the mine. In addition, the Red Chris Monitoring Committee was formed in 2012 to “provide a regular forum for interaction and advice among the Tahltan, RCDC, and provincial regulatory agencies on matters pertaining to the environmental management of the Red Chris mine.” (see footnote 21) Since 2010, the Department of Fisheries and Oceans also engaged the Tahltan Nation in discussions on the fish habitat compensation plan proposed by RCDC. These discussions led to significant changes to the plan, supported by the Tahltan Nation. In mid-2012, the Department of the Environment initiated preparations for consultations on the proposed Amendments. These consultations, planned for fall 2012, would have consisted of one session in Smithers, British Columbia, and one in Ottawa, Ontario. However, these consultations were postponed in response to concerns raised by the Tahltan Central Council regarding the potential for seepage from the tailings disposal facility to impact downstream water quality; the status of the fish habitat compensation plan; and the adequacy of Crown consultations with the Tahltan. Progress was subsequently made in addressing Tahltan Nation concerns regarding seepage and the fish habitat compensation plan and in April 2013, the Tahltan Central Council communicated that they were “ready to meet with the Department of the Environment to develop a plan for consultation regarding the MMER amendment.” In July 2013, the Department of the Environment, the Department of Fisheries and Oceans, and THREAT agreed that, in addition to holding a public consultation session in Smithers, British Columbia, consultation sessions would be held in three communities closer to the Red Chris Mine, specifically Telegraph Creek, Dease Lake and Iskut. As per this plan, the Department of the Environment and the Department of Fisheries and Oceans held five consultation sessions on the proposed Amendments. Participants at all sessions included representatives of the Department of the Environment, the Department of Fisheries and Oceans, RCDC, and THREAT. Other participants are indicated in brackets. September 30, 2013: session with the Tahltan in Telegraph Creek (members of the Tahltan Nation and a representative of the Tahltan Central Council); October 1, 2013: public session in Dease Lake (members of the Tahltan Nation and the general public); October 2, 2013: session with the Tahltan in Iskut (members of the Tahltan Nation and a representative of the Tahltan Central Council); October 3, 2013: public session in Smithers (members of the Tahltan Nation, the general public, representatives of environmental non-governmental organizations (ENGOs) and a representative of the Métis Nation of B.C.); and October 10, 2013: session in Ottawa (representatives of the mining industry, ENGOs and the Congress of Aboriginal Peoples). The consultation sessions provided participants with an opportunity to comment on the proposed Amendments and the associated fish habitat compensation plan. Participants were also invited to submit comments in writing following the consultation sessions. At these consultation sessions and in the written comments, a range of opinions and concerns were expressed regarding the proposed Amendments and the associated fish habitat compensation plan, and regarding the Red Chris Mine as a whole. The proposed Amendments were supported by industry. They were also supported by the leadership of the Tahltan Central Council, with one of the Chiefs stating that the mine is going ahead and that they want to ensure that it goes ahead in the most environmentally responsible manner possible. (see footnote 22) A small number of members of the Tahltan Nation that participated in the consultation sessions expressed opposition to the mine as a whole. In addition, some ENGO representatives and members of the general public expressed opposition to the mine as a whole and to the proposed Amendments. Comments raised at the consultation sessions and submitted in writing are summarized below. Comments on the proposed Amendments and the assessment of alternatives for tailings disposal Some participants were opposed to the proposed Amendments and are of the view that natural, fish-frequented water bodies should not be destroyed by using them for the disposal of mine waste. The Department of the Environment responded that it understands and respects these concerns, and will ensure that these concerns are reflected in this Regulatory Impact Analysis Statement. A Tahltan Nation member asked why the tailings could not be impounded elsewhere, and what contingency plans there were in case of dam failure. The Department of the Environment responded that RCDC considered alternative locations for tailings disposal, including a location that would not impact any fish-frequented water bodies. However, due to the volume of tailings expected to be produced and the local topography and drainage patterns, no suitable location could be identified with sufficient capacity to contain all of the tailings that would not impact a fish-frequented water body. With respect to contingency plans, the Department of the Environment responded that, as an outcome of the Provincial EA, RCDC is committed to develop and maintain a Spill Contingency and Emergency Response Plan and implement that plan as necessary. In addition, all mines subject to the MMER are required to prepare an emergency response plan. An ENGO representative commented that there are alternative tailings storage concepts available such as dry stacking that were not considered. The Department of the Environment acknowledges that in documentation provided by RCDC there is no discussion of alternatives technologies for the management and disposal of tailings. These technologies, specifically tailings management and disposal using thickened, paste or dry stack tailings, each have advantages and disadvantages. However, regardless of the tailings management and disposal technology used, RCDC will still need to find an appropriate location for a TSF for the disposal of at least 300 million tonnes of tailings. As discussed above, a TSF for thickened or paste tailings would not be expected to be significantly different in surface area than a TSF for slurry tailings, while a TSF for dry stack tailings would likely be somewhat smaller. In addition, dry stack tailings technology is unproven at this scale in Canada and the largest mine operating with dry stack tailings in Canada is operating at about 20% of the rate that the Red Chris Mine is operating at. Given these space requirements, the topography of the Red Chris Mine site and the presence of fish-frequented water bodies, the Department of the Environment is of a view that it is unlikely that a viable TSF could be developed in a location that would not directly impact any fish-frequented water bodies, regardless of the technology used for tailings management and disposal. Some participants questioned the Department of the Environment’s decision not to require RCDC to assess alternatives for tailings disposal in accordance with current Department of the Environment guidance. The Department of the Environment responded that the EA for this project was completed in 2006. The first version of The Department of the Environment’s Guidelines for the Assessment of Alternatives for Mine Waste Disposal was not released until 2008. Thus, RCDC assessed alternatives in accordance with the standards that existed at the time that the federal EA was completed. A participant asked what the consequences would be for the Red Chris Mine without the proposed Amendments. The Department of the Environment responded that without the proposed Amendments the fish-frequented portion of Trail Creek could not be used for tailings disposal. Based on the alternatives assessed by RCDC, feasible options that would not impact fish-frequented water bodies are not available. Comments on the proposed fish habitat compensation plan Some participants expressed support for the proposed fish habitat compensation plan. The Tahltan Nation have been involved in the development of the plan and are supportive of it, while noting that there remain some outstanding matters related to monitoring to be resolved. The Department of the Environment and the Department of Fisheries and Oceans noted that they will continue to engage the Tahltan Nation as the fish habitat compensation plan is finalized, particularly with respect to the need for monitoring of the implementation of the plan to ensure that the objectives of the plan are being met. Some participants were of the view that the impacts on fish habitat in the Trail Creek watershed had been underestimated, and that fish occur further upstream than stated by RCDC. In particular, some participants disagreed with the conclusion that Black Lake, a small lake upstream of the portion of Trail that would be added to Schedule 2, is not fish-frequented. The Department of Fisheries and Oceans responded that, following several seasons of sampling conducted by RCDC in accordance with BC Resource Inventory Committee Standards, no fish were found in Black Lake. Therefore, the Department of Fisheries and Oceans agrees with the conclusion that Black Lake is not frequented by fish. It was noted that, as documented in the EA, historically, fish were found in Black Lake, probably prior to the establishment of the beaver dams now present. If any new evidence is presented suggesting that fish are present in Black Lake, that information could be considered by the Department of the Environment and the Department of Fisheries and Oceans. A Tahltan Nation member asked if the implementation of the fish habitat compensation plan would be monitored and by whom. An ENGO representative commented that monitoring results should be made public. The Department of the Environment responded that, in accordance with the requirements of the MMER, RCDC would be required to conduct monitoring to verify that the purpose of the plan has been achieved. Reporting of the monitoring results is only required if the purpose of the plan is not being achieved, but proponents are encouraged to provide all monitoring results. The proposed fish habitat compensation plan prepared by RCDC states: “A monitoring summary report will be provided annually as part of the proposed MMER compensation monitoring for the duration of the monitoring program.” Monitoring results submitted would be available to the public upon request. The Department of Fisheries and Oceans added that staff would also conduct some monitoring of the fish habitat compensation plan, in accordance with subsection 35(2) of the Fisheries Act Authorization for the Project, including but not limited to habitat quality and migration of fish at the Snapper Creek crossing location. Some participants expressed concern about potential impacts on fish habitat in lower Trail Creek and in Kluea Lake due to drops in water levels as a result of constructing the TSF in upper Trail Creek. The Department of Fisheries and Oceans responded that screening report for the federal EA of the Red Chris Mine Project stated that the construction and operation of the TSF in upper Trail Creek “is predicted to have minor effects on Kluea Lake, reducing mean annual flows from the lake by 14% and 16% during operations and at closure, respectively.” The Department of the Environment further notes that RCDC stated during the consultation session that improvements to the proposed water management plan since the EA was completed, including increased diversions of clean water from the project area into Trail Creek below the TSF, are expected to result in smaller reductions in flow in Kluea Lake than were predicted during the EA. RCDC’s plans with respect to the construction and operation of clean water diversions are further described in the “2012 Technical Report on the Red Chris Copper-Gold Deposit” prepared by Imperial Metals, the parent company of RCDC. (see footnote 23) Comments on the Red Chris Mine as a whole A number of participants, both Tahltan and non-Tahltan, expressed opposition to the Red Chris Mine as a whole, notwithstanding the fact that the mine is already under construction and that approval of the mine as a whole is beyond the scope of the proposed Amendments. Some expressed concern that the mine could negatively impact fish and wildlife as well as local residents. A Tahltan Nation member challenged the conclusion that the mine will not cause harm to the environment and said that the mine will have serious negative effects. It will destroy the land and when the mine life is over RCDC will leave, leaving behind a forever changed and polluted landscape on Tahltan land. Some Tahltan Nation members expressed mistrust of both RCDC and the government, and fear un-mitigated pollution of their land, as has happened in the past at other mines not owned or operated by RCDC. The Department of the Environment responded that it understands and respects these concerns, and will ensure that these concerns are reflected in the Regulatory Impact Analysis Statement. The Department of the Environment noted, however, that the proposed Amendments are specific to the proposed use of a portion of Trail Creek for tailings disposal, and not to the construction and operation of the mine as a whole. The Department of the Environment notes that the Red Chris Mine is subject to both federal and provincial jurisdiction. Mine closure legislation to address the reclamation, monitoring and maintenance of the site after a mine ceases operations, is a provincial responsibility. RCDC has developed a mine closure plan in accordance with provincial requirements. This plan will be updated through the mine life and implemented at mine closure. In addition, the province will require financial security from RCDC to cover mine closure costs. Comment on potential impacts on water quality A Tahltan Nation member asked whether drinking the water in the tailings pond could be harmful to wildlife and if this potential effect was taken into account. The Department of the Environment responded that potential effects of the Red Chris Mine on wildlife were considered in the provincial and federal EAs, but wildlife management is under provincial jurisdiction. The provincial EA report makes no indication that potential impacts on wildlife due to drinking water from the tailings pond were either raised as a concern or specifically considered. The provincial EA focused on “potential impacts on wildlife due to habitat loss, alienation and fragmentation, displacement, road kills, disturbance, dust and mortality due to problem wildlife incidents.” (see footnote 24) The federal EA report, which took into account the provincial EA report and expert advice from the Canadian Wildlife Service, determined that “the Project is not likely to cause significant adverse environmental effects on terrestrial wildlife and vegetation.” Several Tahltan Nation members raised concerns about potential seepage from the TSF, as well as concerns about whether sufficient monitoring would happen and contingency plans put in place in case of accidents or failure. ENGO representatives commented that modelling should be done using data from the hydrogeological work underway to consider if the TSF dam will perform as expected, and that a groundwater monitoring and recovery program for mitigating seepage from the TSF needs to be established. The mitigation measures should be described in sufficient and specific detail to demonstrate their likely effectiveness, be made public, and be considered in the context of the proposed Amendments. The Department of the Environment responded by clarifying that seepage is considered an effluent under the MMER and as such any seepage from the TSF would be subject to the requirements of the Regulations including the effluent discharge limits. In addition, the construction and operation of the TSF would be subject to provincial requirements and permits, and releases of effluent from the TSF would also be subject to provincial permits. Provincial permits associated with construction and operation of the portion of the TSF planned for the Trail Creek watershed had not yet been issued at the time of the consultation. The Department of the Environment noted that hydrogeological analysis is still underway and RCDC has not yet proposed mitigation measures to control and collect seepage within the Trail Creek watershed. (see footnote 25) Consultations on such mitigation measures will be held within the framework of the Red Chris Monitoring Committee, since such measures will be addressed primarily through the provincial permitting process. Although the Department of the Environment is not a member of the Red Chris Monitoring Committee, the Department of the Environment will engage with RCDC, THREAT and the provincial government once mitigation measures have been proposed, since any seepage from the TSF would be subject to the MMER. Developments following the 2014 failure of the Mount Polley Mine TSF On August 4, 2014, the tailings dam at the Mount Polley Mine in British Columbia failed, releasing 17 million cubic metres of mine waste water and 8 million cubic metres of tailings into Polley Lake, Hazeltine Creek and Quesnel Lake in the Fraser River system. The Mount Polley Mine is operated by the Mount Polley Mining Corporation, which like RCDC is a wholly owned subsidiary of Imperial Metals Corporation. Following this incident, the Government of British Columbia established an independent review panel to investigate the cause of the failure, including geotechnical standards, design of the dam, maintenance, regulations, inspection regimes, as well as other matters the panel deemed appropriate. On January 30, 2015, the panel delivered its final report into the cause of the Mount Polley tailings dam failure. The panel concluded that the failure was caused by the inadequate design of the dam, which did not take into account the weakness of the soil on which it was constructed. (see footnote 26) The panel also made recommendations on actions to protect against similar failures at other mines in British Columbia and identified best practices and technologies that could be considered for implementation in British Columbia. The Government of British Columbia has accepted all conclusions and recommendations in this report and is moving forward to implement the latter. Following the Mount Polley incident, RCDC, the Tahltan Central Council and the Government of British Columbia agreed to conduct an independent technical review of the proposed tailings dams at the Red Chris Mine. This review concluded that the design of the proposed dams is feasible and that they will be stable if constructed properly and noted that effluent from the TSF is predicted to meet provincial water quality objectives without any treatment. The review also made 22 recommendations focused on operation and management of the TSF and water quality, including the following: RCDC to prepare an emergency preparation plan and an emergency response plan (in preparation at the time the report was prepared), as well as an operation, maintenance and surveillance manual for the TSF; RCDC to prepare an inundation study to evaluate the consequences of a tailings dam failure; and RCDC to develop trigger levels for water management/mitigation actions and document measures to be followed in the event that water quality fails to meet compliance. RCDC is now working with the Tahltan Nation to implement the recommendations. (see footnote 27) Consultations on the proposed Amendments following publication in the Canada Gazette, Part I The proposed Amendments were prepublished in the Canada Gazette, Part I, on May 2, 2015, for a 30-day public consultation period, during which four submissions were received. An overview of the comments in those submissions, and the response to those comments, is presented below. Comments related to the fish habitat compensation plan It was suggested in two submissions that the fish habitat compensation plan (FHCP) is not consistent with Principle 3 of the Fisheries Productivity Investment Policy (November 2013). This principle states that “offsetting measures must provide additional benefits to the fishery,” and that “proposed offsets should not address environmental damage for which another person or organization is clearly responsible”. It was stated that “the British Columbia Ministry of Transportation is fully responsible for the non-compliance of the culverts” and it was noted that the FHCP does not provide an estimate of the productivity gains expected from the compensation plan. The final FHCP was submitted in March 2012. This submission was prior to the Fisheries Productivity Investment Policy effective November 2013. As such, the Policy is not applicable to this submission. Nevertheless, the Department of Fisheries and Oceans conducted a new review of the previously identified impacts of the project, based on the requirements of the Policy, and confirmed that the initial assessment of serious harm from the construction of the TSF dam and subsequent flow reductions to Trail Creek was appropriate. The Department of Fisheries and Oceans also determined that the habitat area values initially estimated were deemed sufficient to determine the compensation and offsetting measures required, and that no change would be required to the FHCP or the associated offset plan. The benefits to fisheries were quantified in the offset plan and the FHCP, and there will be a net gain in both cases. That the finalized offset plan and FHCP strongly considered the interests of the Tahltan First Nation was an added factor in the Department of Fisheries and Oceans coming to the conclusion that the selection of Snapper Creek offsetting, and the associated FHCP, remains appropriate. Three submissions included comments that the FHCP does not offset the losses in rainbow trout population that will likely occur in Kluea Lake, downstream of the TSF, due to the reduction in water flow in Trail Creek affecting reproduction and recruitment rates. This impact was recognized and was taken into account in the development of the FHCP. The expected loss has been quantified and will be addressed through the improved access to upstream fish habitats that will support all life stages of the rainbow trout. Taking into account that ground water influx and diversion channel inputs will modify the water flow reduction to some extent, RCDC is committed to monitoring flows in the reach of Trail Creek and its downstream into Kluea Lake as an environmental assessment commitment. One submission stated that the compensation plan does not adequately compensate for the risk that the TSF poses to the downstream fisheries in case of leakage or failure. While the impacts to downstream fisheries resources from a catastrophic failure of the TSF would be significant, the environmental assessment conducted for the project concluded that the likelihood of failure of the proposed TSF is very low. Due to this low probability, potential impacts to downstream fish and fish habitat from a TSF failure were not considered in the FHCP. As well, an independent report on the TSF design issued in October 2014 concluded that the technical design of the dams is feasible and that they will be stable if constructed properly. This report also identifies outstanding issues that RCDC has committed to address to ensure the long term safety of the dams. Comments related to the additions to Schedule 2 of the MMER Two submissions expressed concern regarding the perceived expansion of the TSF beyond what was examined in the environmental assessment, to include waters frequented by fish. The comments noted that it appeared that Imperial Metals was circumventing the assessment process and creating a precedent by which a complete assessment, including the full TSF and its impact on fish-frequented waters, could be avoided by asking for incremental additions to Schedule 2 of the MMER beyond what was included in the original mine plan. The Red Chris Mine has now begun operations using only the northern part of the TSF that does not impact fish-frequented waters. However, the complete footprint of the TSF, including the part covering the fish-frequented portion of Trail Creek, was proposed and evaluated as part of the federal EA completed in 2006. This is referred to in the “Background” and the “Regulatory and non-regulatory options considered” sections above. One submission commented that insufficient consideration was given to non-regulatory options for tailings management, and to the use of alternative technologies such as paste tailings or dry stacking. This submission refers to the recommendation found in the Mount Polley Independent Expert Investigation and Review Report. In the original environmental assessment submission (2004), three options for tailings disposal were considered. Two of the three options presented technical difficulties which made them less desirable, including requiring greater dam heights, which would increase the risks related to the dams, and poorer drainage management, which would increase the risk to surrounding waters. The one option which did not directly impact fish-frequented waters was too small to meet the storage capacity needs for the life of the mine. A further three options were considered and discarded due to the technical difficulties the greater distances presented and to the significance of the potentially impacted waters. One of the factors considered in the assessment of options was the necessity of keeping the tailings submerged, or saturated, to limit oxidation and the development of acid rock drainage from potentially acid generating tailings. This necessity precluded any fully land-based alternatives. Comments related to the amendment process One submission commented that the timing of the Canada Gazette, Part I, publication of the Amendments and the pursuant consultation was premature, as it happened prior to the granting of permits for tailings and effluent discharge. The commenter felt that holding the consultation prior to the granting of the permit gave the impression that a decision favourable to the company was made before the process was complete. The permits in question were issued by the British Columbia Ministry of the Environment under a separate provincial process. Regardless of the Province’s decision on these permits, all requirements of the MMER, including those related to the management of mine waste, apply to this facility. These two independent regulatory processes are discussed in the Environmental assessment of the Red Chris Project in the “Background” section above. Comments related to the TSF dams design Approval of the dam design is entirely within the jurisdiction of the Province of British Columbia. Nevertheless, one submission expressed concern regarding the dam design and its similarities to the dam that failed at Mount Polley. Based on the current mine plan, the maximum dam height would be 120 m. Following the Mount Polley incident and at the request of the Tahltan Central Council, Imperial Metals engaged an independent firm, Klohn Crippen Berger Ltd., to review the TSF design. The report delivered in October 2014 concludes that the dam design is feasible and will be stable if constructed properly. It also identifies the permeability of the foundation soil as an issue, among others, and recommends that during the early stages of development the water balance be monitored to improve the design concept. The recommendations in the report have been accepted by the Tahltan Nation and Imperial Metals, the latter of whom has begun implementing the recommendations. (see footnote 28) Finally, one submission expressed concern that Imperial Metals has announced plans for possible future expansions of the Red Chris Mine and that the TSF was not designed for the potential volume of tailings this would generate. The concern was that, as with Mount Polley, the TSF’s dams would be raised to levels for which their design is not sufficient, leading to the potential for another collapse. The options for tailings disposal investigated by RCDC looked at storage capacity for up to one billion tons of tailings. The current mine plan estimates that the Red Chris Mine will produce up to 300 million tons of tailings, which leaves a sizable margin for expansion. Any further regulatory requirements or permits would be addressed by the applicable authorities, federal and provincial, should such a need arise at a future date. Regulatory cooperation Federal departments, including the Department of the Environment and the Department of Fisheries and Oceans cooperated and collaborated in the preparation of the Amendments. The Government of British Columbia supports the Amendments which are consistent with their policies and programs. Rationale The Amendments add a portion of Trail Creek, which is fish-frequented, to Schedule 2 of the MMER, allowing RCDC to dispose of tailings from the Red Chris Mine in this portion of the creek. RCDC is required to develop and implement a fish habitat compensation plan to offset the loss of fish habitat that will occur as a result of the deposit of mine tailings into the water body listed on Schedule 2, and an overall net benefit in fish habitat is anticipated through habitat gains resulting from the implementation of this plan. The Amendments will also enable the full operation of the mine as planned, which is expected to bring positive economic benefits for society and local communities, including First Nations. The Amendments are supported by industry and are generally supported by the Tahltan Nation. The Tahltan Nation voted 87% in favour of the Impact, Benefit & Co-Management Agreement with Imperial Metals, regarding the Red Chris Mine. (see footnote 29) This agreement was signed in May 2015. It provides training, employment and business opportunities to local Tahltan people, and sets up a transparent environmental management protocol. (see footnote 30) In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, the proposal is exempt as it was previously assessed in relation to a project assessed under the former Canadian Environmental Assessment Act. (see footnote 31) Implementation, enforcement and service standards The Amendments will enable RCDC to utilize a natural, fish-frequented waterbody for construction of the TSF and disposal of tailings from the Red Chris Mine. As the Regulations are made pursuant to the Fisheries Act (FA), 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 (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 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 decide on 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 enforcement officer’s discretion, the following instruments are available to respond to alleged violations: Warnings; Directions; Orders by the Minister; Injunctions; and Prosecutions. For more information on the Policy, please consult the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act at the following hyperlink: http://www.ec.gc.ca/alef-ewe/default.asp?lang=En&n=D6B74D58-1. Contacts Mr. Chris Doiron Manager Mining Section 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: [email protected] Mr. Yves Bourassa Director Regulatory Analysis and Valuation Division Economic Analysis Directorate Department of the Environment 200 Sacré-Cœur Boulevard, 10th Floor Gatineau, Quebec K1A 0H3 Fax: 819-938-3407 Email: [email protected] Footnote a R.S., c. F-14 Footnote 1 SOR/2002-222 Footnote 2 In 2013 Canadian dollars and discounted at 3% over the period 2015–2020. Footnote 3 An “acutely lethal effluent” is defined as an effluent at 100% concentration that kills more than 50% of the rainbow trout subjected to it over a 96-hour period when tested in accordance with the acute lethality test [Fisheries Act (1985); Metal Mining Effluent Regulations, SOR/2002-222, s. 1]. Footnote 4 In 2010 Canadian dollars, using a 5% discount rate and subject to the metal prices for copper, gold and silver as well as the exchange rate on the Canadian dollar. Footnote 5 Imperial Metals Corporation (2012). 2012 Technical Report on the Red Chris Copper-Gold Project. Available at http://www.imperialmetals.com/s/RedChris.asp?ReportID=569480. Footnote 6 Supreme Court of Canada (2010), Mining Watch Canada v. Canada (Fisheries and Oceans). Available at http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/7841/index.do. Footnote 7 Golder Associates Ltd. (2012). Fisheries Habitat Compensation Plan (MMER): Red Chris Project, B.C. Footnote 8 Golder Associates Ltd., (2012). Fisheries Habitat Compensation Plan (Fisheries Act): Red Chris Project, B.C. Footnote 9 Red Chris Development Co. Ltd., (2004). Application for and Environmental Assessment Certificate: Red Chris Porphyry Copper-Gold Mine Project. Section 6.16.6. Footnote 10 “Direct impacts” refer to the infilling of a water body or a portion of a water body with mine tailings waste. In contrast, indirect impacts may occur downstream as a result of changes in water quality, reductions in flow or other causes. Footnote 11 Department of the Environment (2009). Environmental Code of Practice for Metal Mines. Available at http://www.ec.gc.ca/lcpe-cepa/default.asp?lang=En&n=CBE3CD59-1. Footnote 12 British Columbia Ministry of Energy and Mines. 2015. Red Chris Sixth Mine to Open in B.C. Since June 2011. https://news.gov.bc.ca/stories/red-chris-sixth-mine-to-open-in-bc-since-june-2011 (Accessed December 18, 2015). Footnote 13 The risk of dam failure takes into account both the probability of a failure and the potential outcomes in the event of a failure. Dam construction standards are addressed in the provincial permitting process. In a general sense, all other factors being equal, the risk of dam failure increases with the size of the dam (both height and length of the dam). Footnote 14 “Golder Associates — Technical Memorandum” value expressed in 2013 dollars, undiscounted over the lifespan of the mine (2012-2048). Footnote 15 Ibid. Footnote 16 The span of the culvert is 17.4 m (north) and 18.3 m (south) compared to the span of the bridge, which is 20 m. Footnote 17 Government of Canada. 2015. Justice Laws Web site — Fisheries Act. http://laws-lois.justice.gc.ca/eng/acts/f-14/ (Accessed December 17, 2015). Footnote 18 Present value of the costs, in 2013 Canadian dollars, and discounted at 3% over the period 2015–2020. Footnote 19 The present value in 2013 Canadian dollars and discounted at 3% over the period 2015–2020. Footnote 20 Treasury Board of Canada Secretariat guidance for the small business lens defines a small business as “any business with fewer than 100 employees or between $30,000 and $5 million in annual gross revenues.” http://www.tbs-sct.gc.ca/hgw-cgf/priorities-priorites/rtrap-parfa/guides/faq-eng.asp (Accessed December 18, 2015). Footnote 21 Red Chris Monitoring Committee: Terms of Reference. November 26, 2012. Footnote 22 This statement was not further qualified at the time of the consultation sessions. THREAT subsequently stated that this comment was “based on establishing proven contingencies and mitigations prior to amendment approval.” Footnote 23 Imperial Metals Corporation (2012). 2012 Technical Report on the Red Chris Copper-Gold Project. Available at http://www.imperialmetals.com/s/RedChris.asp?ReportID=569480. Footnote 24 BC Environmental Assessment Office (2005). Red Chris Porphyry Copper-Gold Project - Assessment Report. p.35. Footnote 25 The Department of the Environment has confirmed that this is still the case, as of February 28, 2014. Footnote 26 Tahltan Central Government. 2014. Projects – Third Party Review of Red Chris. http://tahltan.org/third-party-review/ (Accessed December 18, 2015). Footnote 27 Tahltan Central Government. 2014. Projects – Third Party Review of Red Chris. http://tahltan.org/third-party-review/ (Accessed December 18, 2015). Footnote 28 Tahltan Central Government. 2014. Projects – Third Party Review of Red Chris. http://tahltan.org/third-party-review/ (Accessed December 18, 2015). Footnote 29 Canadian Institute of Mining, Metallurgy and Petroleum. 2015. Teaming up – Imperial Metals and Tahltan to Co-Manage Red Chris. https://magazine.cim.org/en/2015/June-July/news/Teaming-up.aspx (Accessed December 18, 2015). Footnote 30 Canadian Institute of Mining, Metallurgy and Petroleum. 2015. Teaming up – Imperial Metals and Tahltan to Co-Manage Red Chris. https://magazine.cim.org/en/2015/June-July/news/Teaming-up.aspx (Accessed December 18, 2015). Footnote 31 Government of Canada. 2012. Canadian Environmental Assessment Agency – Archived – Red Chris Porphyry Copper-Gold Mine Project. http://www.ceaa.gc.ca/052/details-eng.cfm?pid=3181 (accessed November 18, 2015).

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