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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A32

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2009

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A32. Public record. Not legal advice.