Amicus Curiae Brief — Alaska v. Southeast Alaska Alaska Conservation Council (No. 07-990)

Nos. 07-984, 07-990

IN THE

Supreme Court of the Anited States

COEUR ALASKA, INC.,

Petitioner,

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL..

Respondents.

STATE OF ALASKA

Petitioner.

SOUTHEAST ALASKA CONSERVATION CouNecit, ETAL,

Respondents.

ON Writs OF CERTIORARI TO THE

UNITED STATES COURT OF APPEAT S

PORK THE NINTH CIRCUIT

BRiEF OF AMICI CURTAE

IN SUPPORT OF RESPONDENTS

JEFFREY C PAKSONS*

‘Counsel of Recard

ROGER FLYNN

WESTERN MENTING ACTION PROJECT

14G Main, Ste 102, P.O. Box 449

[Lvons, CO 80540

(303) 823-5748

Les La RINtTe ws th \ uevion tls @ cle, Ta @ ' Ti watil ceo

RPCCT AVAL ARIC CODV

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TABLE OF CONTENTS

Page

py OP Te @ iy yy | - re ii

EE WY MII sicccccvcscsccsncosscscessostcseseesonenees l

SUMMARY OF ARGUMENT ...................cccceceeeeeee 3

at ed dilaein cniannsinanibiesdi 4

I. EEE aan E OS ROTM AE mE 4

A. Fresh Water, a Precious

I iiss ceindelldnannneansnnnpennes 6

B. Mining and Freshwater Ecosystems.......... 8

C. Potential Impacts of Tailings

6 AMES COR VOIOIER oocsescescesccccccesccscesseces 8

Il. Tailings: Metals, Process Chemicals

eit cttsccsrctbdbintandniadiitdadionnens ll

A. Cadmium and Aquatic Organisms.......... 12

B. Copper and Aquatic Organisms .............. 13

C. Cyanide and Aquatic Organisms............. 15

D. Lead and Aquatic Organisms............... 15

E. Zinc and Aquatic Organisms..........66..00.5. 16

H

Ill. Impacts of Milling Waste Disposal in

Lakes, and the Failure of Current

Mitigation Technology to Alleviate Water

Quality Concerns at Mines....................... 16

IV. Why Use Waters of the US for Ore

Beneficiation Mill Waste Disposal?........ 18

V. Canadian Lake Disposal -

Fe FRE FOP IB II occccceccseccccccesccccccsescescses 25

A. Background on Canadian

Federal Discharge Limits for Mining ..... 25

B. Stated Intent of Canadian Lake Disposal

Regulation Versus its Application ............ 28

Cl. VERO-BIRCD TEATS occu ecccccccccccccccesccsoneseos 29

IIIT idndistindnicdsodiaaviesiniionptinciineipevedstapiadanis 30

ill

TABLE OF AUTHORITIES

Page

Federal Agency Materials

Office of Technology Assessment,

Managing Industrial Solid Wastes from

Manufacturing, Mining, Oil and Gas

Production, and Utility Coal Combustion,

a cient teiasnonses 20

U.S. Environmental Protection Agency,

Acid Mine Drainage Prediction (1994) ...............0..006 y

U.S. Environmental Protection Agency,

Fish kills caused by pollution: fifteen year summary,

1961-1975, EPA-440/4-78-006 (1979) .........cccccccceeeeeees 8

U.S. Environmental Protection Agency,

Liquid Assets 2000, America’s water resources

ee By GE saiscncncscvcecessncevesevvenccceocesecs 5, 8

U.S. Environmental Protection Agency,

Toxics Release Inventory (EPA-TRI),

REE ee aE Se a eR s

U.S. Environmental Protection Agency,

Wildlife Exposure Factors Handbook. vol. 1.

EPA/600/R-93/187a (1993) ...........cccccceceececceceeeceeeeeees 14

Scholarly Articles

Bernard Vigneault & Yamini Gopalapillai,

Literature Review Report: Possible Means of

Evaluating the Biological Effects of

iV

Sub-Aqueous Disposal of Mine Tailings (2007) ...... 23

Bernd G. Lottermoser, Mine Wastes,

characterization, treatment, environmental impacts

I 8,9, 10, 11

Bruce Mattson & Ali Sahami, Assessing the

Subaqueous Stability of Oxidized Waste Rock,

MEND Project 2.36.3 (1999) ......c0.cccsccccccsccccccescrveseee 24

Canada Centre for Mineral and Energy Technology

(CANMET), Mine Environment Neutral Drainage

(MEND), Design Guide for the Subaqueous Disposal

of Reactive Tailings in Constructed Impoundments,

PE See? BP UUNOCS FS. 11D CIGD wccccececcsccsceccscosovcespoeccsose 24

Car]-Gustaf Elinder, Zinc in Handbook on the

Toxicology of Metals (Lars Friberg, et al., eds., 2d ed.

oe se asinegion 16

Carlos Da Rosa & James Lyons,

Golden Streams, Poisoned Dreams (1997) ...........45. 20

Daniel A. Medesani, Interference of cadmium and

copper with the endocrine control of ovarian growth,

in the estuarine crab Chasmagnathus granulata,

Aquatic Toxicology (2004S) .....cccccccsccccssccccsscccesvcesecece 14

David H. Baldwin, Sublethal effects of copper on

salmon, Environmental Toxicology and Chemistry

Ni aettl tala oitl ait neces a eat adaiabinnsnipnenagiesedeyapeneserinn 13

Karle A. Ripley, et al.,

Environmental effects of mining (1996). ................. 12

Vv

Ernest K. Yanful & Paul H. Simms,

Review of Water Cover Sites and Research Projects,

TED © WUOGE FBO CIE sv erciccsccisccecsescsececscecocnse 21

Elsa M. B. Sorenson,

Metal Poisoning in Fish (1991).............ccccceeeeeeee 12, 14

Emmanual Sindayigaya, et al., Copper, zine,

manganese, iron, lead, cadmium, mercury, and

arsenic in fish from Lake Tanganyika, Burundi,

The Science of the Total Environment (1994)......... 13

Georgius Agricola, De Re Metallica (1556)........ 18, 19

Gerard Leduc, et al., The effects of cyanides on

aquatic organisms with emphasis upon freshwater

fishes, National Research Council of Canada, NRCC

EO IDI ;:inscisincntseniicontnnicnsadinemaadadidebcudaeabianiamedmasin 15

Glenn Philips & Joshua Lipton, Jnjury to aquatic

resources caused by metals in Montana’s Clark Fork

River basin: historic perspective and overview,

Canadian Journal of Fisheries and Aquatic Sciences

SEIT s.chisiisclesbehondeesistidididadannaiiitanieaadenaaiiamdsnama arnt 5

Howard L. Jelks, et al., Conservation Status of

Imperiled North American Freshwater and

Diadromous Fishes, American Fisheries Society,

Fisheries 33(8): 372-405 (2008) ..............ccceececeececeeeees 7

James A. Hansen, et al., Chinook Salmon

(Oncorhynchus tshawytscha) and rainbow trout

(Oncorhynchus mykiss) exposed to copper:

neurophysiological and histological effects on the

olfactory system, Environmental Toxicology and

Chemistry (1999)....... Set ee See ee 13, 14

vl

James A. Hansen, et al., Differences in

neurobehavioral responses of Chinook salmon

(Onchorhynchus mykiss) exposed to copper and

cobalt: behavioral avoidance, Environmental

toxicology and chemistry (1998) .............:ccccccceeeeceeee 14

James Kuipers, et al., Comparison of Predicted and

Actual Water Quality at Hardrock Mines: The

reliability of predictions in Environmental Impact

SE I 17, 22

James Kuipers & Ann Maest, Predicting Water

Quality at Hardrock Mines: Methods and Models,

Uncertainties, and State-of-the-Art (2006) ........ 17, 18

John Neter, et al., Applied linear regression models,

RISEN SEES Sh 11

John P. Smol,

Pollution of Lakes and Rivers (2008).................0..00. 17

Joseph S. Meyer, et al., Toxicity of dietborn metals to

aquatic organisms, Society of Environmental

Toxicology and Chemistry (SETAC Press) (2005) .. 11

Michael T. Horne & William A. Dunson, Effects of

low pH, metals, and water hardness on larval

amphibians. Archives of Environmental

Contamination and Toxicology (19995)..................... 14

Muhammad Sadiy, Toxic metal chemistry in marine

RE a 13

Rawson Academy of Aquatic Science, A Critical

Review of MEND Studies Conducted to 199] on

vil

Subaqueous Disposal of Tailings, MEND

I as ceiomioe 23

Robert M. Hughes, Use of watershed characteristics

to select control streams for estimating effects of

metal mining wastes on extensively disturbed

streams, Environmental Management (1985)........... 5

Ronald Eisler, Cadmium hazards to fish, wildlife,

and invertebrates: a synoptic review, US Fish Wildl.

Ser. Biol. Rep. 85(1.2) (1965) ...........cccccsccccccsscosesceres 12

Ronald Eisler, Handbook of Chemical Risk

ED scitresditietiininnmasnash 6, 12, 13, 15, 16

Ronald Eisler, Zinc hazards to plants andanimals

with emphasis on fishery and wildlife resources in

Ecological issues and environmental impact

assessment, Advances in environmentalcontrol

technology series (Paul N. Cheremisinoff ed., 1986) 16

Susan B. Betzer & Paul P. Yevich,

Copper toxicity in Busycon canaliculatum L.,

BOE ICR) BeaTetins (1O7B) .....ccccccccccccccsccsccscccsccscsscces 13

Thomas F. Waters, Sediment in streams, American

Fisheries Society, Monograph 7 (1995) ................... 10

Toshiaki J. Hara, et al., Effects of copper and

mercury on the olfactory response in rainbow trout,

Salmo gairdneri, Journal of the Fishery Research

Ny ON III ici iccicsacennsidenstiiansaneacnidecheliianees 14

W. Scott Hall, et al., Monitoring dissolved copper

concentrations in Chesapeake Bay, USA, Environ.

Monitoring and Assessment (1988) .....000000..00000.0..... 13

Vill

Walter K. Dodds, Freshwater Ecology Concepts and

Environmental Applications (2002)................06668 6, 10

Whitmel M. Joyner (ed.), Compilation of air

pollutant emission factors (4™ ed. 1985) ................. 16

MISCELLANEOUS

Brett Schulte, “A World of Thirst,” U.S. News and

I Ae I csi cciatisieiierericcssadiisenmncntensnipens 6

Janet Raloff, Aquatic Non-Scents: repercussions of

water pollutants that mute smell, Science News

RR A ENR SERS Ry Bo late ROR CA aA 14

Canada Department of Fisheries and Oceans, Metal

Mining Effluent Regulations, Regulatory Impact

Analysis Statement, Canada Gazette, Vol. 135, No.

a cibaceeiiendiiadiaamaie 25, 26

INTEREST OF AMICI

Amici are three expert mining and water quality

scientists, with diverse backgrounds in the private,

public, and public interest sectors.! Collectively, the

amici have worked extensively within the mining

industry, within the governmental entities charged

with regulating mining and milling impacts, in

academia studying the technical and scientific

aspects of these impacts, and in providing expert

advice to mining and _ with milling-affected

communities around the globe. Amici are deeply

interested in this case, as its outcome could affect

lakes, rivers, and other waterways throughout the

United States, and potentially set international

precedent for the disposal of processed mill wastes

around the world.

David M. Chambers, Ph.D., is president of the

Center for Science in Public Participation, a non-

profit corporation formed to provide technical

assistance on mining and water quality to public

interest groups and tribal governments. David

Chambers has 32 years experience in mineral

exploration and development — 15 years of technical

and management experience in the mineral

exploration industry, and for the past 17 years he

has served as an advisor on the environmental

effects of mining projects both nationally and

' Pursuant to Rule 37, letters of consent from the partics have

been filed with the Clerk of the Court. In accordance with Rule

37.6, amict state that no counsel! for either party has authored

this brief in whole or in part, and no person or entity, other

than amict and their attorneys, has made a monetary

contribution to the preparation or submission of this brief.

2

internationally. He is a registered professional

geophysicist (California # GP 972) with a Masters

Degree in Geophysics from the University of

California at Berkeley, and Professional Engineering

Degree in Physics from the Colorado School of

Mines. Dr. Chambers received his Ph.D. in

Environmental Planning from Berkeley.

Catherine Coumans, Ph.D., is Research

Coordinator and responsible for the Asia-Pacific

Program at MiningWatch Canada, a non-profit

organization that provides policy advice to the

Canadian government and research and technical

support to mining-affected communities. Dr.

Coumans’ academic work on mining dates back to

her Ph.D. research in the Philippines in 1988-1990.

She has provided expert testimony on mining in two

congressional inquiries in the Philippines (1999,

2001), as well as before the Constitutional Court in

Indonesian (2005) and before the Sub-Committee on

Human Rights and Democratic Development in

Canada (2005). Dr. Coumans participates in multi-

stakcholder processes led by the Canadian

government, providing expertise on water issues

through Mine Environment Neutral Drainage (2003-

present) and reviews of the Metal Mining Effluent

Regulations (1999 - present). She holds an M.Sc.

(London School of Economics) and a Ph.D in

anthropology (McMaster University, Hamilton,

Ontario).

Carol Ann Woody, Ph.D., has over 25 years of

professional experience including: 13 years as a

scientist with the USGS; 4 years as a researcher

with the Fisheries Research Institute at the

University of Washington, and 2% years at the

3

National Fishery Research Laboratory in Wisconsin.

She is a past- President of the Alaska Chapter of the

American Fisheries Society and Adjunct faculty at

the University of Alaska. Her research on salmon

behavior, genetics, and evolution is published in

more than 25 peer-reviewed journals and a recent

book focused on sockeye salmon. Her current

research focuses on identifying risks to fisheries

relative to industrial mining.

SUMMARY OF ARGUMENT

With the passage of the Clean Water Act cleaning

up and maintaining clean water became a policy of

the U.S. Government. This legislation reflected the

growing problems with pollution of rivers and lakes

in this country. The mining industry contributed

significantly to this pollution with its pre-1970 waste

disposal practices. Allowing mining operations to

dispose of process wastewater in lakes (and

potentially rivers and streams) would be a return the

pre-Clean Water Act policy of process waste disposal.

It is not necessary to use natural water bodies for

the disposal of mill process tailings and wastewater.

If lakes (and potentially rivers) are allowed to be

utilized for the discharge of mill process wastewater

and tailings, there will be impacts. While the ability

to predict the chemical reactions that drive water

contamination is much better now than it was even

ten years ago, it is still not good enough to predict

impacts on aquatic organisms duc to the long term

migration of low levels of metals. The present state

of the sciences geochemistry and aquatic biology

does not allow us to predict with certainty

4

magnitude and term of the impacts on lakes used for

these discharges.

The only advantage in using lakes for mill

process wastewater discharges is the cost savings to

mining companies. Man-made structures can and

have been successfully employed for this type of

waste disposal, both financially and technically, for

over 35 years.

The mill waste disposal in lakes situation in

Canada, which was similar to that in the U.S. in

terms of its prior prohibition of the use of lakes for

process waste dis»osal, is demonstrating that mining

companies will preferentially use lakes over man-

made impoundments because of cost savings, and

that it will be the mill process waste with the most

potential to contaminate water which will be placed

in these lakes.

ARGUMENT

1. Background

Robert Redford’s 1992 movie, “A River Runs

through It’? made the Blackfoot River in Montana

famous, depicting a pristine river that daily yielded

healthy trout to two fly fishing brothers. The

Blackfoot meets with and becomes the Clark Fork

River at the Milltown Reservoir near Missoula,

Montana. Both rivers have been impacted by

mining. Over 200 km (124 miles) of the Clark Fork

River are contaminated from about 99.8 billion

- Movie based on a novel by Norman F. Maclean

5

kilograms (220 billion pounds) of mine tailings.®

United States Environmental Protection Agency

(EPA) scientists found that metals from these

tailings contaminated local wells and _ caused

multiple fish kills.4 The region is one of the Nation’s

largest Superfund sites and is the focus of an

ongoing massive cleanup campaign costing hundreds

of millions of dollars.®

The EPA reports that “States have identified

almost 300,000 miles of rivers and streams and more

than 5 million acres of lakes that do not meet state

water quality goals. Many of these waters are not

considered safe for swimming and are unable to

support healthy fish or other aquatic life." The

2004 National Listing of Fish Advisories is an EPA

database of all available information describing

federal, state and tribal issued fish consumption

advisories in the U.S. and Canada; it lists 3,221

advisories.’ Waters under advisory represent:

* Glenn Philips & Joshua Lipton, Jnjury to aquatic resources

caused by metals in Montana’s Clark Fork River basin: historic

perspective and overview, Canadian Journal of Fisheries and

Aquatic Sciences 52: 1990-1993 (1995).

* Robert M. Hughes, Use of watershed characteristics to select

control streams for estimating effects of metal mining wastes on

extensively disturbed streams, Environmental Management

9:253-262 (1985). See also, http://cfrtac.org/clarkforksite.php

‘http.//www.epa.gov/regionU8/superfund/mt/milltown/

factsheets. htm|

* U.S. Environmental Protection Agency, Liquid Assets 2000,

America’s water resources at a turning point, (2000),

http://www epa.gov/ow/liquidassets/.

' The National Listing of Fish Advisories (NLFA) available at

http: //map | .epa gov/

6

e 35% of the Nation's total lake acres (excluding

the Great Lakes), or approximately 14,285,062

lake acres

e 24% of the Nation's total river miles, or

approximately 839,441 river miles

e 65% of the Nation's contiguous coastal waters

(excluding Alaska) including 92% of the

Atlantic coast and 100% of the Gulf coast

e 100% of the Great Lakes and their connecting

waters.

Mining waste has contributed significantly to the

impairment of our Nation’s freshwater ecosystems.®

A. Fresh Water, a Precious Limited Resource

Over half of the human body is comprised of

water, without which it could not survive. Although

75% of the planet Earth is covered with water, just

% is fresh, and less than 1% of that is usable.’ The

health of human beings is inextricably linked to the

health of aquatic ecosystems and these systems’

continued ability to provide “ecosystem services”,

such as clean fresh water to drink and

uncontaminated fish to catch and eat. Freshwater

ecosystems provide many services, for example they:

* Walter K. Dodds, Freshwater Ecology Concepts and

Environmental Applications 271 Figure 14.2 (2002);, Ronald

Eisler, Handbook of Chemical Risk Assessment, Volume 1,

Metals 656-668 Table 9.6, 927-931 (2000).

* Brett Schulte, “A World of Thirst,” US. News and World

Report, June 4 2007, at 1.

e transport water vital to the survival of life

within a region.

e act as a "storage" area for excess nutrients,

sediment, and other pollutants that could

degrade our waterways.

e recharge groundwater aquifers.

e regulate water flow, runoff and erosion.

e cycle nutrients through a host of unique plant

and animal species.

e link land and sea acting as a transportation

corridor for nutrients, fish, sediments, etc.

e provide beauty and recreation.

e support a diverse aquatic community of fish,

insects and plants.

The majority of literature on water pollution

focuses, understandably, on its impacts to human

health. The current status of the Nation’s fishery

resources serves as a barometer of how well humans

are conserving freshwater ecosystems. The American

Fisheries Society Endangered Species Committee

recently revised their list of imperiled North

American fishes. About 39% of all described North

American fishes are now impcriled'’; 700 species of

fishes that rely on freshwater are considered at risk

‘° Howard L. Jelks, et al., Conservation Status of Imperiled

North American Freshwater and Diadromous Fishes, American

Fisheries Society, Fisheries 33(8)) 372-405 (2008).

8

and habitat degradation is considered a primary

factor in their decline.

B. Mining and Freshwater Ecosystems

Hardrock metals mining was the number one

source of toxic pollution in our Nation during 1998 to

2006, with 1998 being the first year, and 2006 being

the most recent year available, that the industry

reported to the Environmental Protection Agency’s

Toxic Release Inventory.‘! The EPA estimates

500,000 abandoned hardrock mines exist in the U.S.

and that 40% of western headwater streams are

polluted from mining; clean up costs are estimated

at $32 - 72 billion,'* with no federal funds available

for cleanup. Between 1961 and 1975 a conservative

estimate of fish killed by mining-related incidents

was 10 million;!® no recent estimates are available.

C. Potential Impacts of Tailings to Aquatic

Ecosystems

Tailings, one waste generated from mining, can

comprise over 99% of the total processed ore;' for

example, processing 10 million tons of ore can

‘. U.S. Environmental Protection Agency (EPA TRI), Toxics

Release Inventory, TRI Explorer (2007). Accessed online 4 Oct.

2007 at http://www.ecpa.gov/triexplorer/.

% U.S. Environmental Protection Agency, Liquid Assets 2000,

Amerwa’s water resources at a turning point, (2000),

http://www.epa.gov/ow/liquidassets/

'SULS. Environmental Protection Agency, Fish kills caused by

pollution: fifteen year summary, 1961-1975, EPA-440/4-78-006

(1979).

‘4 Rernd G. Lottermoser, Mine Wastes, characterization,

treatment, environmental impacts 152-157 (2d ed. 2007).

9

produce up to 9.9 million tons of tailings. Mine

tailings contain solids and liquids, metals, and

processing chemicals. The solids are primarily clay,

silt and sand. Some mined minerals and associated

elements will occur in tailings, such as: aluminum,

antimony, arsenic, barium, cadmium, copper,

chromium, cobalt, iron, lead, manganese, mercury,

molybdenum, nickel, selenium, silver, thallium, zinc,

sulfides, and natural radioactive constituents.

Process wastewater will contain process chemicals

(e.g., Cyanide, Xanthates, etc.) and some petroleum

products (e.g., diesel, oil, gas, etc.).15 Tailings that

contain reactive sulfides - a common component in

hard rock deposits - can generate sulfuric acid if

exposed to both air and water.'® The mill process

wastewater and solid components of tailings can

harm aquatic organisms and impair natural

ecosystem function.

Ore beneficiation mill tailings and _ process

wastewater can affect aquatic life both directly and

indirectly, and effects can be lethal, nonlethal, or

chronic. Disposal of fine sand, silt and clay into

lakes can increase turbidity of water and bury living

benthic organisms. Turbidity acts like an umbrella,

limiting solar energy transmission to aquatic plants

for photosynthesis thereby reducing overall lake

productivity. Suspended solids can cause sublethal

effects on fish and_ invertebrates including

reproductive interference, reduced feeding and

growth, respiratory impairment, reduced tolerance

iS Id.

'* U.S. Environmental Protection Ageney, Acid Mine Drainage

Prediction (1994); http://www.epa.gov/nps/acid_mine.htm|

10

to disease and toxicants, and physiological stress.'7

Tailings solids deposited on the benthos (bottom

dwelling organisms) can_ suffocate sedentary

invertebrates and fill interstitial spaces of gravel

where they live. Changing bottom sediment size

from larger to smaller (e.g., gravel to silt) changes

invertebrate abundance, diversity and_ species

richness.

For example, fish such as salmonids and char

generally prefer mayflies (Ephemeroptera),

stoneflies (Plecoptera) and caddisflies (Trichoptera).

These live in interstitial spaces of gravel. If fine

sediment loads increase significantly (feet or more),

less preferred, less accessible, mud burrowers such

as worms’ (Oligochaetes) and_ caddisflies

(Chronomids) increase.'® Tailings solids deposited on

gravels can suffocate developing fish embryos and

alevins!® and can reduce available spawning,

incubation, and cover habitat for fish.2° Fine

sediment from mill discharges can have significant

direct and indirect impacts on aquatic communities.

However, it is important to remember that mill

discharges contain not just clay, silt and sand; but

the mill process wastewater also contains metals,

process chemicals and organics.?!

'7 Thomas F. Waters, Sediment in streams, American Fisheries

Society, Monugraph 7 82 (1995); Walter K. Dodds, Freshwater

Ecology 291 (2002).

'* Thomas F. Waters, Sediment in streams, American Fisheries

Society, Monograph 7, (1995).

'' Alevins = newly hatched fish

“” Thomas F. Waters, Sediment in streams, American Fisheries

Society, Monograph 7 79-118 (1994)

‘| Bernd G. Lottermoser, Mine Wastes, characterization,

treatment, environmental impacts 153-157 (2d ed. 2007).

11

Il. Tailings: Metals, Process Chemicals and

Organics

“The processing of ore promotes the dissolution

and mobilization of elements present in the

ore...Consequently, tailings undergo chemical

reactions after their deposition in the repository and

their composition changes over time.”22 ‘Tailings

composition varies greatly among ore beneficiation

mills as do physical, chemical and biotic components

among lakes, as do environmental conditions

through time (e.g., wind, rain, earthquakes). When

so many dynamic parameters are integrated into

predictive mathematical models of future conditions,

prediction accuracy declines,2°> making restoration

success difficult to predict. To date, fisheries

scientists are still teasing apart effects of a single

metal on an aquatic organism under different

environmental conditions and exposure methods

(e.g., ingestion?* or water exposure) without regard

to cumulative effects of added stressors, suc! as fine

sediments, other metals, organics, petroleum

products, and global warming.

Toxicity of metals and organic chemicals to

aquatic creatures varies depending on many factors

of water quality, including: pH, temperature,

hardness, salinity, suspended solids, organic content

in water; presence of other elements, organism

species, age, size, sex, prior exposure, and whether

“2 Id. at 154

“+ John Neter, et al., Applied linear regresston models, (2d ed.

1989).

“4 Joseph S. Meyer, et al., Toxicity of dietborn metals to aquatic

organisms, Society of Environmental Toxicology and Chemistry

(SETAC Press) (2005).

12

organisms encounter the element in the water or

ingest it.25 Mill wastewater discharges are a

complex cocktail of metals, metalloids and organics;

many of which alone can be toxic to aquatic species

at very low concentrations. To illustrate this concept,

toxic effects of single elements commonly occurring

in wastewater discharges are highlighted below.

A. Cadmium and Aquatic Organisms

Cadmium is a relatively rare metal, and is highly

toxic to all life.2° It is always found in association

with zinc and is a byproduct of copper, zinc and lead

production; it is associated with sulfide ores which

can be acid generating.2’?’ Cadmium is cancer-

causing with severe sublethal and lethal effects at

low environmental concentrations.?8& Several species

of freshwater invertebrates and fish show high

mortality at concentrations of 0.8 to 9.9 parts per

billion (ppb: equivalent to one drop in 2,200

gallons).29 Water concentrations exceeding 10.0 ppb

of cadmium are associated with high fish mortality,

reduced growth, inhibited reproduction, and

impaired breathing, muscle contractions, and

*° Elsa M. B. Sorenson, Metal Poisoning in Fish (1991); Ronald

Eisler, Handbook of Chemical Risk Assessment Voiume 1

Metals Volume II Organics (2000).

*6 Ronald Eisler, Handbook of Chemical Risk Assessment,

Volume 1 Metals 1 (2000).

*? Earle A. Ripley, et al., Environmental effects of mining 157

(1996).

23 Ronald Eisler, Cadmium hazards to fish, wildlife, and

invertebrates: a synoptic review, US Fish Wildl. Ser. Biol. Rep

85(1.2) (1985).

28 Parts per billion (ppb) corresponds to one penny in

$10,000,000, or 1 second in one second of time in approximately

31.7 years.

13

enzyme activity.2° Cadmium bioaccumulates at all

trophic levels and accumulates in the livers and

kidneys of fish.%!

B. Copper and Aquatic Organisms

Copper is a heavy metal and an essential

element. However, it is one of the most toxic metals

to aquatic life and can accumulate and cause harm

at concentrations just above that needed for growth

and reproduction.*2 Slight increases in dissolved

copper above normal background levels can reduce

productivity of key Jinks in aquatic food chains

including algae, zooplankton, insects and fish.33 In

salmon, increases of just 2-10 ppb above natural

levels, has been shown to affect their sense of smell,

which is crucial to homing, feeding, and predator

avoidance.*4 Copper can interfere with normal

°° Ronald Eisler, Handbook of Chemical Risk Assessment,

Volume 1 Metals 19 (2000).

°t Emmanual Sindayigaya, et al., Copper, zinc, manganese,

iron, lead, cadmium, mercury, and arsenic in fish from Lake

Tanganyika, Burundi, The Science of the Total Environment

144:103-115 (1994); Muhammad Sadiq, Toxic metal chemistry

in marine environments (1992).

*2 Susan B. Betzer & Paul P. Yevich, Copper toxicity in Busycon

canaliculatum L., The Biological Bulletin 148:16-25 (1975); W.

Scott Hall, et al., Monitoring dissolved copper concentrations in

Chesapeake Bay, USA, Environ. Monitoring and Assessment

11:33-42 (1988).

‘3 Ronald Eisler, Handbook of Chemical Risk Assessment,

Volume 1 Metals 656-668 Table 9.6, 927-931 (2000).

“* David H. Baldwin, Sublethal effects of copper on salmon,

Environmental Toxicology and Chemistry 22(10): 2266-2274

(2003); James A. Hansen, et al., Chinook Salmon

(Oncorhynchus tshawytscha) and rainbow trout (Oncorhynchus

mykiss) exposed to copper: neurophysiological and histological

effects on the olfactory system, Environmental Toxicology and

14

migration, impair immune systems, interfere with

brain function and breathing, disrupt

osmoregulation, delay or accelerate natural hatch

rates, and change enzyme activity, blood chemistry

and metabolism.*® Recent evidence suggests that

copper is an endocrine disruptor.*® Copper often co-

occurs with zinc at hard rock mines. When combined

in hard water at a ratio of 6 parts zinc to 1 part

copper, additive toxicity results (individual toxicities

are summed), but when combined in soft water,

copper has a synergistic toxicity (more than additive

toxicity).37 Such interactions among elements and

the resulting effects on aquatic species are neither

well studied nor understood.

Chemistry 18(9):1979-1991 (1999); Toshiaki J. Hara, et al.,

Effects of copper and mercury on the olfactory response in

rainbow trout, Salmo gairdneri, Journal of the Fishery

Research Board of Canada 33:1568-1573 (1976); Janet Raloff,

Aquatic Non-Scents: repercussions of water pollutants that mute

smell, Science News 4:49-66 (2007).

36 U.S. Environmental Protection Agency, Wildlife Exposure

Factors Handbook. vo). 1. EPA/GOO/R-93/187a (1993); Michael T.

Horne & William A. Dunson, Effects of low pH, metals, and

water hardness on larval amphibians, Archives. of

Environmental Contamination and Toxicology 29:500-505

(1995); James A. Hansen, et al., Differences in neurobehavioral

responses of Chinook salmon (Onchorhynchus mykiss) exposed

to copper and cobalt: behavioral avoidance, Environmental

toxicology and chemistry (1993).

* Daniel A. Medesani, Interference of cadmium and copper with

the endocrine control of ovarian growth, tn the estuarine crab

Chasmagnathus granulata, Aquatic Toxicology 69(2):165-174

(2004).

Elsa M.B. Sorensen, Copper in Metal Poisoning in Fish 235

284 (Elsa M.B. Sorensen ed. 1991).

15

C. Cyanide and Aquatic Organisms

Sodium cyanide is an _ organic chemical,

commonly used as a process chemical to extract gold

from mined ore. It is highly toxic to fish at low

concentrations.%8 Fish are sensitive to cyanide and

exhibit chronic effects at 5 to 7 parts per million

(ppm) and lethal effects at 20 to 76 ppm.%9 Sublethal

effects in fish include reduced reproductive capacity

(decreased egg number and viability, and reduced

embryo and larval survival), impaired swimming

ability, altered growth, and hepatic necrosis (liver

disease).4° Invertebrates show adverse nonlethal

effects between 18 and 43 ppb and Iethal effects

between 30 and 100 ppb.?!

D. Lead and Aquatic Organisms

Lead is neither essential nor beneficial to life and

causes adverse effects on human - survival,

metabolism, growth, development, behavior,

learning, and reproduction.’2 Adverse effects on

aquatic life are shown at waterborne concentrations

of 1.0 to 5.1 ppb, and bioconcentrates in aquatic

species. Lead commonly occurs in association with

38 Gerard Leduc, et al., The effects of cyanides on aquatic

organisms with emphasis upon freshwater fishes, National

Research Council of Canada, NRCC 19246 (1982).

iu

http.//www.epa.gov/region5superfund/ecology/html/toxprofiles.h

tm#al; Ronald Kisler, Handbook of Chemical Risk Assessment.

Volume 2 Organics 904-905 (2000).

" Ronald Eisler, Handbook of Chemical Risk Assessment.

Volume 2 Organics 904-905 (2000).

41 Jd. at 927-931.

* Jd. at 269.

16

zinc, copper, iron, and silver in sulfide ores.

Waterborne criteria for the protection of aquatic life

range from 1.3 to 7.7 ppb, although within this range

adverse effects are documented. ‘3

E. Zinc and Aquatic Organisms

Zinc is an essential element and occurs with

sulfides in ore.‘4 Significant adverse effects on

growth, survival, and reproduction occur in plants,

fish amphibians, and invertebrates at zinc

concentrations between 10—25 ppb.*® Zinc is usually

found in sulfide ores with copper, lead and trace

amounts of cadmium, thallium and other metals. *®

Ill. Impacts of Milling Waste Disposal in

Lakes, and the Failure of Current

Mitigation Technology to Alleviate Water

Quality Concerns at Mines

Scientists are beginning to study primary causal

factors in the decline of aquatic species affected by

multiple stressors due to mining. One tool in such

studies is called paleolimnology, where cores of lake

sediments are removed and annual sediment layers

dated and analyzed to determine when species

#3 Jd. at 280.

4 Curl-Gustaf Elinder, Zinc in Handbuook on the Toxicology of

Metals v.2 664-679 (Lars Friberg, et al., eds., 2d ed. 1986).

* Ronald Eisler, Zinc hazards to plants and animals with

emphasis on fishery and wildlife resources in Ecological issues

and environmental impact assessment, Advances in

environmental control technology series 443-537 (Paul N.

Cheremisinoff ed., 1986).

© Whitmel M_ Joyner (ed.). Compilation of air pollutant

emission factors (1% ed. 1985)

17

declined and what elements might have caused their

decline during that period.

One study examined the cause of invertebrate

declines in Lake Superior due to discharge of over

half a billion metric tones of tailings from copper and

silver mining.‘7 The study found biological life

indicators decreased during the period of discharge

and hypothesized that discharge of copper was a

likely factor in biotic decline. The study tested its

hypothesis by creating sediment suspensions in

aquaria with pre-mining and active mining sediment

layers from lake cores. The sediment suspension

made with the layer representing active mining

caused high mortality of aquatic invertebrates, with

high copper concentrations found to be causal. The

study also determined that resting eggs from the

invertebrates could not be hatched from sediments

older than 70 years in age, the period of intense

mining. 48

Despite the historical evidence, there is a

perception that “modern mining” does not cause

significant harm to water quality, largely due to

innovative technological advances. However, a

recent comparison of predicted versus actual impacts

to water quality at 25 modern hard rock mines

showed 76% violated U.S. EPA _ water-quality

standards, despite predictions made from 1979 to

2003 that they would not.19 Levels of potentially

* John P. Smol, Pollution of Lakes and Rivers 142-143 (2008).

48 Id.

4° James Kuipers & Ann Maest, et al., Comparison of Predicted

and Actual Water Quality at Hardrock Mines: The reliability of

predictions in Environmental Impact Statements (2006); James

Kuipers & Ann Maest, et al, Predicting Water Quality at

18

toxic metals at surveyed mines, such as _ lead,

mercury, and cadmium, exceeded EPA standards for

ground and surface water at 63% of sites, and levels

of arsenic and cyanide exceeded standards at over

50% of sites.°9 Mining technology has improved

vastly over historic practices. However, pollution

problems persist today, especially when sulfide ores

are mined in regions with nearby ground and surface

waters. 5!

IV. Why Use Waters of the US for Ore

Beneficiation Mill Waste Disposal?

Mining has been an important part of the

American economy for over 150 years. It arguably

led the way to settling the West. During the late

1800s and early 1900s mining drove settlement of

the largest cities in the west, from Denver to San

Francisco, and enriched miners and mining

investors. In its heyday mines provided jobs for tens

of thousands of miners, and for workers in support

industries that supplied food, equipment, and

entertainment for these miners. There was little

thought or concern for mine waste disposal in that

era, although it was understood even then that

mining could have significant environmental

impacts. Georgius Agricola published his seminal

and oft-quoted work on mining and metallurgy in

1556,52, and noted the impacts from acid mine

Hardrock Mines: Methods and Modeis, Uncertainties, and

State-of-the-Art (2006).

Id.

“Id.

“Georgius Agricola, De Re Metallica (1556). Georg Bauer,

better known by the Latin version of his name Georgius

Agricola, is considered the founder of geology as a discipline.

19

drainage.®? In 1893 congress passed the Caminctti

Act to limit impacts to California cities from

hydraulic placer mining tailings dumped into the

Sacramento and San Joaquin river systems.

During that era, which extended into the 1960s,

the primary consideration was finding the minerals,

and getting them out of the ground at the lowest

cost. Mine waste was routinely dumped near or

directly into streams, and mine closure consisted of

locking the door on the office. Today mining is

conducted on a completely different scale. It is no

longer the pick and shovel operation that producing

a few hundred tons of ore per day. Production from

today’s mines is often tens of thousands of tons of ore

per day, utilizing mass production techniques that

not only have resulted in increases in worker

productivity that drastically reduced the need for

human labor at a mine, but also allows the mining of

low grade ores leading to the generation of massive

amounts of mine waste. Mining produces

significantly more waste on an annual basis than the

—

De Re Metallica literally translated, means “On the Nature of

Metals.” In 1912, the Mining Magazine (London) published an

English translation. The translation was made by Herbert

Hoover, a mining engineer and future President of the United

States, and his wife Lou Henry Hoover.

°} Acid mine (rock) drainage is a common effluent of metal

mining and one of the major environmental impacts resulting

from mining activities. It is caused by the natural weathering

of pyrite and other metal sulfides in the mineral deposit, or

through the accelerated weathering of waste products

venerated by the mining process. ‘The sulfide minerals react

with oxygen in air or pore water and produce sulfuric acid.

20

total municipal solid waste.°* Waste disposal from

early mining (into the 1960s) has caused the

degradation of thousands of miles of streams in the

US.5> Discharges from modern mines are regulated

by the Clean Water Act, the Clean Air Act, and state

solid waste disposal regulations. Reclamation is

required (to differing degrees) by state and federal

regulations, and financial sureties are usually

required for these reclamation activities. Financial

sureties do not cover unplanned or catastrophic

events, only those events that are reasonably

foreseeable.

With the passage of the Clean Water Act in 1972

mine waste could no longer be dumped in streams or

lakes. This has not prevented mining from

prospering in the US, even with its environmental

laws, because these same institutions that regulate

the mining industry provide a great deal of political

predictability and stability. To the extent mining

has moved to developing countries, this was driven

more by the attractiveness of better ore bodies (the

best ore bodies in the US have been developed) than

by a lack of environmental and social regulation in

those countries. Most mining companies will readily

say they apply the same high environmental

standards in each country they work in — regardless

of a lack of regulation in those countries.

4 Office of Technology Assessment, Managing Industrial Solid

Wastes from Manufacturing, Mining, Oul and Gas Production,

and Utulity Coal Combustion 10, 29, OTA-BP-O-82 (1992).

* Carlos Da Rosa & James Lyons, Golden Streams, Potsoned

Dreams 24 (1997)

21

Even in a state like Alaska, which contains many

lakes and streams and most of the nation’s wetlands,

regulations under the Clean Water Act have not

prevented mining from prospering. At worst it could

be argued that it is more expensive to operate a mine

under regulations of the Clean Water Act, largely

because waste disposal costs must now be

internalized to the mining operation.

This raises the question of why mining companies

and government regulators would argue they need to

return to a policy of allowing the disposal of mine

waste in Waters of the US when the industry has

been operating without this option for more than 35

years. The primary reason is that tailings disposal in

natural water bodies is the cheapest way by far of

disposing of mill waste. It is significantly less

expensive to use a natural water body than to

construct a tailings impoundment. It is generally

assumed that it is approximately 10 times less

expensive to use a natural water body for waste

disposal than to build a tailings impoundment.

Using a lake for waste disposal would save the

typical mine tens to hundreds of millions of dollars

in capital construction costs.°®

It is generally true that putting tailings

underwater is the best way to prevent the onset of

acid mine drainage.®’ However, it is not necessary

to use natural water bodies for tailings disposal —

* For example, see the Vale-Inco example discussed herein.

7 “It is apparent from laboratory and field studies, that

flooding tailings is the most successful method presently known

for preventing and controlling ARD (Acid Rock Drainage).”

Ernest K. Yanful & Paul H. Simms, Review of Water Cover

Sites and Research Projects, MEND Project 2.18.1 (1997).

22

man-made tailings dams are equally as effective,

and potential environmental impacts are more

manageable.

Disposal of non-acid generating tailings under

water, like the tailings from the Kensington Mine, is

not required for geochemical reasons. Disposal of

non-acid generating tailings in natural water bodies

would be the least expensive method of disposal.

Failures in regulatory agencies’ ability to predict

and mitigate acid mine drainage and water

contamination through the Environmental Impact

Statement process are documented in recent

research which showed that EISs on mines from

1975 to 2005 failed to predict water quality

degradation off the minesite in 76% of the cases

studied.°® This is an abysmal performance record.

There is also a body of research on the effects of

tailings disposal in lakes. This research comes from

Canada, which has climate and topography similar

to that in parts of Alaska, and where there is also

recent significant pressure from the mining industry

and government regulators to use lakes for mine

waste disposal. The research was conducted by an

agency of the Canadian federal government, Natural

Resources Canada, as a part of its MEND (Mine

Environment Neutral Drainage) program.

The research program on subaqueous disposal of

tailings in freshwater lakes was prompted by a

review in 1992 by the Rawson Academy of Aquatic

** James Kuipers, et al., Comparison of Predicted and Actual

Water Quality at Hardrock Mines Table ES-7b (2006)

23

Science, Ottawa, which recommended a thorough

study of the viability and impacts of tailings disposal

in freshwater lakes.59 Researchers looked at several

lakes that had been used as tailings disposal sites

and were now closed for periods ranging from over

20 years to during and just prior to data collection.

The research focused on the geochemistry of the

tailings after deposition in the lake, the mobility of

contaminants from the process wastewater into lake

water, and the short and long term impacts on

aquatic organisms in the lake.

There were mining-related impacts in all of the

lakes used for process wastewater disposal, some

major, and some minor. However, the relevant

scientific findings from these studies are that: (1)

there are still significant gaps in the ability to

predict the geochemistry that drives the movement

of metals to and from tailings once they have been

deposited underwater; and that, (2) it is not yet

possible to quantify the long term effects from

tailings disposal in lakes on aquatic organisms in

these lakes. As one MEND reviewer recently noted:

“It is still a challenge to predict metal bioavailability

and toxicity in sediments. "6

The science used to predict the chemistry of the

water over the tailings, and in predicting potential

impacts to any aquatic life living on or in the water

*? Rawson Academy of Aquatic Science, A Critical Review of

MEND Studies Conducted to 1991 on Subaqueous Disposal of

Tailings, MEND Project2.11.1d (1992).

™ Bernard Vigneault & Yamini Gopalapillai, Literature Review

Report: Possible Means of Evaluating the Biological Effects of

Sub-Aqueous Disposal of Mine Tailings 3% (2007).

24

above the tailings, either in the short or long term, is

not precise.®!

Man-made impoundments are better alternatives

to using lakes as a disposal sites for mine waste.

This technique has been successfully employed — but

constructing an impoundment costs more than using

a lake. Supporters of lake-disposal argue that using

a lake eliminates long term maintenance and

uncertainty with impoundment failure in man-made

structures. While there is indeed some uncertainty

in man-made structures, mainly related to seismic

risk, there is as much or more uncertainty in using

natural lakes. Material deposited in lakes is subject

to movement due to large storms,®? earthquakes,

avalanches, ice entrainment,® seiching,®* seasonal

turnover, currents, and other natural events.®

Groundwater contamination is also potentially a

greater problem with lake disposal, since lakes are

hydrologically connected to groundwater, while

fl “.. the secondary mineral assemblages that accumulate

during subaerial exposure could have a profound influence on

the geochemical behaviour of the waste when submerged, such

that deleterious effects on water quality may result.” Bruce

Mattson & Ali Sahami, Assessing the Subaqueous Stability of

Oxidized Waste Rock 1, MEND Project 2.36.3 (1999).

6° Wave Action — Sufficiently large waves can gencrate

velocities along the bed that can mobilize the bed material.

'§ The ice layer can ground on the bed and bond bed material

by freezing.

54 A seiche (pronounced approximately saysh) is a standing

wave in an enclosed or partially enclosed body of water. Seiches

and seiche-related phenomena have been observed on lakes,

reservoirs, bays and seas.

‘* See Canada Centre for Mineral and Energy Technology

(CANMET), Mine Environment Neutral Drainage (MEND),

Design Guide for the Subaqueous Disposal of Reactive Tailings

in Constructed Impoundments, MEND Project 2.11.9 (1998).

25

impoundments can be engineered to be isolated from

groundwater.

In addition, the mining industry has already

created thousands of man-made tailings

impoundments which require long term

maintenance and are subject to uncertainty of

impoundment failure. Impoundments built to

submerge tailings under a water cover are virtually

identical to the thousands of tailings impoundments

already in existence, so using man-made

impoundments is neither creating nor exacerbating a

problem.

V. Canadian Lake Disposal - A _ Policy

Perspective

It is also instructive to describe the present

situation with the use of lakes as mine waste

disposal in Canada. For many years the Canadians

had a similar prohibition on dumping process

wastewater from ore beneficiation mills into lakes,

but have recently implemented a regulatory change

to allow the disposal of mine waste in lakes. The

Canadian situation is instructive because it

undoubtedly foretells the direction that the mining

industry and regulatory agencies will go if process

wastewater from ore beneficiation mills is allowed to

be dumped into lakes in the US.

A. Background on Canadian Federal Discharge

Limits for Mining

In 1977 Governor in Council passed the Metal

Mining Liquid Effluent Regulations. The Metal

Mining Liquid Effluent Regulations (MMLER) were

26

promulgated under Section 36 of the Fisheries Act as

it stood at that time.** The MMLER defined limits

with regard to certain metals and chemicals, and

with respect to pH that could not be exceeded if

metal mine effluent were to be deposited into the

natural environment.®?

One of the key limits set in the 1977 MMLER

was a limit on Total Suspended Solids (TSS). The

hmit on TSS was set at 25 mg/L®* for monthly mean

66 Canada Department of Fisheries and Oceans, Metal Mining

Effluent Regulations, Regulatory Impact Analysis Statement,

Canada Gazette 135(30) (July 28, 2001). The MMLER applied

to new, expanded and reopened metal mines. It did not apply

to mines that commenced operations prior to 1977, to mines

that had stopped operating, were orphaned or abandoned, to

placer mining operations, or to mines that used cyanide in the

milling process (yold mines). As such, the MMLER applied to

approximately 1/3 of Canada’s metal mines. While the

Department of Fisheries and Oceans (DFO) is legally

responsible to parli: ment for all sections of the Fisheries Act,

Environment Canada (EC) administers those aspects of the Act

in Sections 36 and 42 dealing with pollutants affecting fish as

set out in a Memorandum of Understanding between DFO and

EC.

Section 36 (3) of the Fisheries Act states that:

no person shall deposit or permit the deposit of a deleterious

substance of any type in water frequented by fish or in any

place under any conditions where the deleterious substance or

any other deleterious substance that results from the deposit of

the deleterious substance may enter any such water.

However, Governor in Council may pass regulations that

authorize the deposition of a deleterious substance into waters

frequented by fish under section 36(4).

6? Authorized cffluent concentration limits were set for arsenic,

copper, lead, nickel, radium-226, total suspended solids (TSS)

and zinc, and minimum levels were set for pH. One of the key

limits set in the 1977 MMLER was a limit on Total Suspended

Solids (TSS).

me/L = milligrams per liter (equivalent of parts per millon)

27

concentrations. The concentration of TSS in process

wastewater (typically 200,000-600,000 mg/L) greatly

exceeds this limit. This MMLER limit on total

suspended solids is significant as it effectively ruled

out the deposition of mine tailings into natural water

bodies frequented by fish without a ministerial

authorization to overrule the regulation.

In 2002 the MMLER were amended and became

the Metal Mining Effluent Regulations (MMER).®

At this time the limit on TSS was further reduced to

15mg/L for monthly mean concentrations. However,

at the same time, a new schedule was added to the

MMER. Schedule 2 of the MMER lists “tailings

impoundment areas. ”" In the MMER a a

impoundment area” is defined as:

(a) a water or place set out in Schedule 2; or

(b) a disposal area that is confined by

anthropogenic or natural structures or by both,

but does not include a disposal area that is, or

is part of, a natural water body that is

frequented by fish. 7°

Schedule 2 in essence redefines a natural water body

(be it a lake, wetland or river “frequented by fish” as

6? In 2002, the MMER applied to 93 mines. Gold mines were

included in the amended Metal Mining Effluent Regulations

(MMER) of 2002, as were mines predating 1977, but not placer

mines, or mines that had stopped operating, or orphaned and

abandoned mines.

72 In the 2006 MMER this definition is very slightly reworded

to read: “(a) a water or place set out in Schedule 2; or

( b) a disposal area that is confined by anthropogenic or natural

structures or by both, other than a disposal area that is, or is

part of, a natural water body that is frequented by fish.”

28

per section 36 of the Fisheries Act) as a tailings

impoundment area and effectively removes it from

the protections it would otherwise be afforded under

the Fisheries Act and under the limits (for example

on TSS) set by the Metal Mining Effluent

Regulations.

B. Stated Intent of Canadian Lake Disposal

Regulation Versus its Application

When Schedule 2 was added to the MMER, in

2002, 4 lakes and a valley of streams were listed on

Schedule 2. These water bodies were all associated

with existing or past mine projects. The rationale

provided by Environment Canada civil servants for

the addition of Schedule 2 to the MMER was legal

advice they had received that operating mines using

natural water bodies for tailings impoundments

would be out of compliance once the new Regulations

came of force unless these were covered by Schedule

2. In response to questions, Environment Canada

civil servants gave assurances that it would be

highly unlikely that mining companies would try to

use Schedule 2 as a way to access new, as yet

uncontaminated, water bodics’ as __ tailings

impoundments as they would be unwilling to subject

a project to the necessity of a regulatory review and

amendment process and the need to get approval

from Governor in Council (to amend Schedule 2 by

adding another water body to it), just to secure a

natural water body for a tailings impoundment.”

71

http://www miningwatch ca/updir/Auditor_General_petition_No

v_13_07 pdf

29

Counter to the Environment Canada rationale, in

2006, two healthy fish bearing lakes were added to

Schedule 2. In January of 2008, Environment

Canada provided a list of an additional eight mine

projects seeking to add natural water bodies to

Schedule 2 and announced the department would

seek to push these projects through. Environment

Canada also announced that more projects would

follow in 2009 as there is now a “line up” of mine

projects wanting to use natural water bodies as

waste disposal sites.72

C. Vale-Inco Example

Vale-Inco is currently requesting approval to use

Sandy Pond (a 38 ha ffish-bearing lake) in

Newfoundland for the disposal of its waste from a

hydro-metallurgical processing facility. This facility

will process ore from Vale-Inco’s Voisey’s Bay nickel

mine, located in Labrador. Vale-Inco has an

agreement with the government of Newfoundland

and Labrador that it will process its ore in

Newfoundland. However, the location of the

processing plant was left up to Vale-Inco to

determine. Vale-Inco chose a site in Long Harbour

and subsequently argued that the waste from the

plant would have to be deposited in Sandy Pond as

other locations, including land-based, in the vicinity

of the proposed plant would not be suitable. Clearly,

neither Vale-Inco nor the regulatory authorities

7% For a list of 11 mine projects seeking Schedule 2

amendments in the near term, provided by Environment

Canada, see

http://www.miningwatch.ca/index.php?/mmer/mmer_coalition_f

orming

30

prioritized choosing a site for the processing plant

that would avoid the destruction of a natural water

body for the plant’s waste disposal.

The example of Vale-Inco’s proposed use, and

destruction, of Sandy Pond as a disposal site for its

process waste is illustrative of the key determinant

that is driving the preference of proposed mines in

Canada, which are located near natural water

bodies, to use these water bodies for their process

waste disposal. In all cases brought forward to date,

the cost of using a natural water body for mine waste

disposal has been less expensive than providing a

land-based tailings impoundment option. The price

differential is significant in all cases. For Vale-Inco’s

Long Harbour Processing Plant the cost of building a

man-made, land-based, impoundment was estimated

by the company to be CAD 490 million. The costs

associated with using Sandy Pond were estimated at

CAD 62 million.

Environment Canada officials have repeated

assurances that permission to use natural fish.

bearing water bodies would be the exception, not the

rule. Nonetheless, it is clear that the use of natural

water bodies is now proving to be the tailings

impoundment option of choice for new mines coming

on line in Canada.

CONCLUSION

Allowing mill waste disposal into natural lakes

would mark a stark change in U.S. Clean Water Act

policy. Such disposal represents a significant threat

to natural lake and river ecosystems and predictions

regarding mitigation for these biological and

31

ecological impacts are far from precise. Thus, the

lone benefit of such a change in policy is in terms of

mine project economics.

It is not necessary to use natural water bodies for

the disposal of mill process tailings and wastewater.

Man-made __ structures can and _ have _ been

successfully employed for this type of waste disposal,

both financially and technically, for over 35 years.

The mine waste disposal in lakes situation in

Canada demonstrates that mining companies will

preferentially use lakes over man-made

impoundments because of cost savings, and that it

will be the mill process waste with the most

potential to contaminate water which will be placed

in these lakes.

The result of legalizing a rule to allow mill waste

disposal in natural lakes, as put forth by Petitioners

in this case, would have a regressive result in terms

of the health and well-being of the nation’s

freshwater resources.

JEFFREY C. PARSONS*

Counsel of Record

ROGER FLYNN

WESTERN MINING ACTION PROJECT

440 Main, Ste 102, P.O. Box 349

Lyons, CO 80540

(303) 823-5738