November 19, 2007

Ecojustice launches action against Environment Minister over NPRI reporting by mining sector

Ecojustice (formerly Sierra Legal Defence Fund) has initiated legal action against federal Environment Minister John Baird claiming that the Minister and Environment Canada officials told mining facilities they did not have to report releases and transfers of pollutants to tailings impoundments or waste rock disposal areas to the National Pollutant Release Inventory (NPRI), even though a reporting exemption for extraction and primary crushing operations was removed in 2006.

The organization filed an application for judicial review in Federal Court on behalf of MiningWatch Canada and Great Lakes United. In it, the groups allege that the Environment Minister has been communicating with mining facilities with regard to the reporting of releases or transfers of pollutants to tailings impoundment areas (TIAs) and waste rock disposal areas in a manner that conflicts with the Minister's exercise of discretion under sections 46 and 47 of CEPA.

The application further claims that the Minister has acted, and continues to act, without jurisdiction or beyond his jurisdiction; has erred in law; and is acting contrary to law within the meaning of section 18.1 of the Federal Courts Act.

The lawsuit is asking the court to declare that the Minister has abused his discretion by communicating to mining facilities in a manner that permits them to violate CEPA, and to order the Minister to publish the NPRI data for mining facilities for the 2006 reporting year.

In 2006, 80 metal mining facilities reported to the NPRI, including 33 in Ontario, 19 in Quebec, nine in BC, six each in Manitoba and Saskatchewan, three in Newfoundland, and two each in New Brunswick and Nunavut.

In filing the legal action, Ecojustice and its partners claimed that mining companies in Canada have been withholding information on the amount of chemicals released into the environment each year, an allegation to which the industry took exception. They said their analysis of NPRI data indicates that mining facilities have so far failed to report releases and transfers of substances of concern to tailings areas and waste rock areas for 2006.

In a response to press reports, the Mining Association of Canada (MAC) noted that the industry has been reporting its releases to the NPRI since its creation in 1992, and supported Environment Canada's proposal to remove the reporting exemption. The association further pointed out that provincial and territorial governments, in their regulation of mining operations, require the reporting of detailed information about mine sites--including tailings.

Under the NPRI, the mining sector currently reports releases from extraction, crushing and processing operations, as well as releases from TIAs and waste rock piles (generally metals and volatile organic compounds (VOCs) in dust and effluent), together with transfers off-site for disposal, treatment and recycling.

MAC has been in discussions with Environment Canada for the past few years regarding improved data accessibility and reporting, particularly with regard to quantities of material sent to TIAs and waste rock piles (information not currently required for NPRI reporting).

A multi-stakeholder Mining Sector Sustainability Table (MSST) workshop organized earlier this year by Environment Canada examined this issue closely. Its participants concluded that there should be some type of mandatory regular reporting that would respond to a "core set" of information needs relating to tailings and waste rock.

While the workshop arrived at two possible options for reporting this "core set" information. One would involve using the NPRI (either "as is" or modified), while the second option would see the creation of a separate, national mine waste inventory (pursuant to section 48 of the Canadian Environmental Protection Act).

The participants also agreed that further work on an inventory should include a cost-benefit analysis of these options, and acknowledged that a combined inventory-portal mechanism would be worth exploring. Such a portal, they noted, would provide access to a broader range of information, which in turn would complement the quantified, mandatory reporting through an inventory system.

The MAC is continuing to work with the government in this area, through the MSST, and provides full annual reporting on its environmental and social performance through its Towards Sustainable Mining (TSM) initiative, which is mandatory for association member companies. More information, including a copy of the most recent (2006) TSM report, is available on the MAC Web site, www.mining.ca/www/Towards_Sustaining_Mining/index.php.

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