Private and confidential – remove if not needed

Diavik Diamond Mines (2012) Inc.
P.O. Box 2498
300, 5201– 50th Avenue
Yellowknife, NT X1A 2P8
Canada
T (867) 669 6500
F (867) 669 9058
Ryan Fequet,
Executive Director
Wek’eezhii Land and Water Board
#1, 4905 – 48th Street
Yellowknife, NT X1A 3S3
14 May 2015
Dear Mr. Fequet:
Subject:
DDMI Intervention – Water License Renewal W2015L2-0001
Diavik Diamond Mines (2012) Inc. (DDMI) is pleased to provide the attached written submission for
the Wek’eezhii Land and Water Board’s consideration with regard to Water License Renewal
W2015L2-0001.
DDMI will present a summary of its Renewal Application and the attached Intervention at the Public
Hearing in Behchokǫ May 28 and 29, 2015. As requested, an electronic copy of DDMI’s Public
Hearing presentation is attached.
Please contact the undersigned if you have any questions regarding this submission.
Yours sincerely
Gord Macdonald
Cc:
Attached:
Sarah Elsasser/Patty Ewaschuk, WLWB
DDMI Intervention - Water License Renewal Application W2015L2-0001
DDMI Presentation – W2015L2-0001 Diavik Water License Renewal Public Hearing (electronic)
Document #: ENVI-458-0515 R0
Template #: DCON-036-1010
Registered in Canada
Page 1 of 1
DIAVIK DIAMOND MINES (2012) INC.
INTERVENTION
FOR
WATER LICENSE RENEWAL APPLICATION
W2015L2-0001
Submitted to:
Wek’eezhii Land and Water Board
4922-48th Street
Yellowknife, NT X1A 2P8
May 14, 2015
1
Term of License
Diavik Diamond Mines (2012) Inc. (DDMI) has requested a term of 15 years to enable the completion of
commercial production and facilitate a coordinated execution of the mine closure and reclamation
activities including post-closure monitoring.
•
Government of the Northwest Territories (GNWT) interventions both support a 15 year term.
•
North Slave Metis Alliance (NSMA) intervention recommends a term of 5 years.
•
Lutsel K’e Dene First Nation (LKDFN) intervention requests a term similar to previous licenses.
(DDMI notes these terms were 7 years (N7L2-1645) and 8 years (W2007L2-0003).
•
Environmental Monitoring Advisory Board (EMAB) intervention is equivocal.
•
Environment Canada recognizes that a term of 15 years may be issued.
NSMA, LKDFN and EMAB provide as rationale for a term shorter than 15 years their reduced ability to
voice concerns, review performance, review and make changes to water license conditions, and alter
EQCs, AEMP methodology and conditions for closure.
NSMA, LKDFN and EMAB do not appear to take into account the numerous review mechanisms that are
available throughout the term of a license. In particular the NSMA, LKDFN and EMAB have not provided
evidence that these other review mechanisms in any way limit their ability to voice concerns, review
performance, review and make changes to water license conditions, and alter EQCs, AEMP methodology
and conditions for closure.
DDMI submits that there are a number of review mechanisms available to NSMA, LKDFN and EMAB in
additional to than a renewal:
1. WLWB has advised that any party can make a request to the WLWB at any time to amend
the conditions of a water license. The WLWB would make a decision to proceed based on
the evidence presented; the same as for recommendations at the time of a renewal.
Amendments and renewals both require WLWB and GNWT Minister approval.
2. In addition to a direct request to amend the conditions of a license there are specific water
license review points, for example:
•
Annual updates to management plans;
•
Annual progress reporting on ICRP;
•
Annual AEMP reporting and evaluation of EQC (Response Plan);
•
AEMP Summary Report every 3 years;
•
Revised AEMP every 3 years; and
•
Revised ICRP every 3-5 years.
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Each of the above is distributed, by the WLWB, to the NSMA, LKDFN and EMAB for review and
comment. The WLWB considers all comments, makes decisions and provides reasons for those
decisions.
The suggestion that the W2015L2-0001 term should be less than 15 years to enable more frequent
review and seek amendments to license conditions has not been supported with evidence. A term
of 15 years is warranted.
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2
Consistency in Water License Terms and Conditions
The issue of consistency was raised by WLWB (April 24, 2015) at the pre-hearing conference. WLWB
reference consistency of Water License terms and conditions with relevant policies and guidelines and
consistency with other recent Type A Water Licenses.
DDMI supports revisions to Water License W2015L2-0001 that provide consistency with relevant policies
and guidelines. The Land and Water Boards (LWB’s) of the Mackenzie Valley have developed useful
guidelines and policies over the last 5-10 years that have helped reduce uncertainty for all parties. The
policies and guidelines are developed in an inclusive and transparent manner. These guidelines and
policies continue to be reviewed and updated over time and DDMI expects revisions will follow the same
inclusive and transparent processes. The practice of referencing these policies and guidelines within a
Water License ensures that updates are implemented consistently. DDMI encourages the LWB’s to
increase efforts to expand policy and guideline development, with active participation from all interested
parties, and formally embed requirements to implement these policies and guidelines within Water
Licenses.
Further, DDMI suggests the LWB’s should discourage the using individual Water License applications,
renewals or amendments as a means to influence change in terms and conditions that are not unique to
the specific application under review. Changes to terms and conditions that have broad applicability
should be addressed through the development of clear and transparent policies and guidelines not
through use of precedence and individual Water License applications.
We provide this view as a specific topic within our intervention as it forms an important overarching
rationale for positions contained in this intervention.
DDMI did not requested new terms or conditions for W2015L2-0001 in its application, however:
•
we are generally supportive of including new terms and conditions that reference or
enable current policies and/or guidelines.
•
we recommend that proposed terms and conditions that are not unique to Diavik be
addressed first through policy and guideline development and then through amendment
to existing License.
•
we oppose the use of individual license to advance specific terms and conditions that are
more broadly applicable.
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3
Recommendations for Operations Phase Terms and Conditions
3.1
Waste Management
WLWB Staff have indicated that for reasons of consistency Water License W2015L2-0001 should include
a reference to Guidelines for Developing a Waste Management Plan. If the Board determines this is
necessary then DDMI would suggest the following be added to Part F: Conditions Applying to Waste
Management Plans (language from W2012L2-0001 with change of date)
Prior to January 31st, 2016, the Licensee shall submit a Waste Management Plan in
accordance with the Mackenzie Valley Land and Water Board’s Guidelines for the
Development of a Waste Management Plan, March 2011, or subsequent editions, to the
Board for approval. The plan shall describe how all Waste streams associated with the
Project are managed, including references to other plans as necessary.
LKDFN, EMAB and NSMA interventions comment on incinerator monitoring of dioxins and furans.
However none of the interventions provides evidence that their concerns are specific to Diavik or even
based on practices unique to Diavik. EMAB references issues related to an old incinerator at Ekati,
others cite general incineration environmental emissions that would appear to apply to all NWT
incinerators. If the WLWB determines that specific incinerator monitoring is required and is within the
regulatory authority of the Board, DDMI request that any new monitoring requirements be addressed in a
revision of the Guidelines for Developing a Waste Management Plan. DDMI would expect the proposed
revision would be provided for all interested parties to review and comment (as in current Board practice)
prior to a revision being implemented. In this way any requirement would be applied consistently across
all licenses and permits, including W2015L2-0001.
EMAB (1.1a,1.6b) recommend that Hydrocarbon Management Plan be implemented towards identifying
inputs of hydrocarbon contaminants minimizing if not entirely eliminating these inputs.
EMAB(1.6a) recommends that “PAHs, PHCs and Oil & Grease” be included as sampling parameters in
SNP 1645-12 for license W2007L2-0001.
These recommendations are with reference to the measured hydrocarbon contamination in the North
Inlet. DDMI notes for the Board the Directive of February 19, 2014 that included direction to DDMI to:
1. Update the Operational Phase Contingency Plan (OPCP) by March 31, 2014 with:
a) Descriptions of the specific source control measures that will be/have been put in
place to minimize hydrocarbon contamination from the underground;
b) Detailed description of previous versus improved internal spill reporting procedures;
and,
c) Hydrocarbon management performance tracking including a monitoring program.
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If this differs from the monitoring program described below, DDMI should include sufficient
rationale as to why they are proposing changes and these changes would not occur until such
time as the OPCP has been approved by the Board;
2. Implement a bi-weekly hydrocarbon monitoring program for PHC F3 for SNP Station 1645-75
and the NIWTP sludge. DDMI must report on these data and trends and provide an ongoing
assessment as to whether the management practices put in place are effective in their monthly
SNP Reports and Annual Water Licence Report until further notice; and,
3. Repeat the North Inlet Sediment Investigation in 2015 to inform closure decisions and actions.
The Board will provide further direction on additional requirements at a later date.
DDMI also notes for the Board the SNP amendments dated July 14. 2014 to include sampling of
petroleum hydrocarbons F1-F4 at 1645-85a, 1645-85b, 1645-86a and 1645-86b every two weeks to
ensure sediment and water quality in the North Inlet is suitable for aquatic life.
The February 19, 2014 Board Directive has been implemented and fully addresses the EMAB (1.6)
recommendations above. No further change is justified or required in license W2015L2-0001 or the SNP
in relation to hydrocarbon contamination in the North Inlet.
3.2
Effluent Quality Criteria
The Effluent Quality Criteria (EQC) in W2007L2-0003 are consistent with the Water and Effluent
Management Policy. DDMI evaluates this annually and has embedded the intent of the policy within the
WLWB approved AEMP Response Plan.
No intervener has provided evidence or recommended that operations EQC in W2015L2-0001 be revised
for consistency with the Effluent Quality Management Policy. In particular no intervener has
recommended different operations EQC.
3.3
Response Framework
The Aquatic Effects Monitoring Program Adaptive Management Plan (Response Framework) approved
under Part K Item 6 W2007L2-0003 is consistent with the WLWB Draft Guidelines for Adaptive
Management – a Response Framework for Aquatic Effects Monitoring.
No intervener has provided evidence or recommended that Part K of W2015L2-0001 be revised for
consistency with the WLWB Draft Guidelines for Adaptive Management – a Response Framework for
Aquatic Effects Monitoring.
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EMAB commented on the Response Plan that has been approved under W2007L2-0003 and DDMI has
committed to considering these in the AEMP Design Update Version 4.0 currently due to be submitted for
review August 31, 2015 (see the following Section 5.2).
3.4
Engagement Plan
WLWB Staff have indicated that for reasons of consistency Water License W2015L2-0001 should include
a reference to Engagement Guidelines for Applicants and Holders of Water Licenses and Land Use
Permits. DDMI has an approved Engagement Plan that is consistent with this Guideline (WLWB Decision
January 25. 2015). If the Board determines that W2015L2-0001 include a condition related to this
guideline, then DDMI would suggest the following be added to Part B General Conditions (language
modified from W2012L2-0001).
The Licensee shall implement the Engagement Plan as approved under License W2007L20001, in accordance with the Mackenzie Valley Land and Water Board’s Engagement
Guidelines for Applicants and Holders of Land Use Permits and Water Licences, June
2013.
LKDFN identified concerns with how DDMI’s engagement has been applied with LKDFN. It is DDMI’s
view that these are matters between DDMI and LKDFN. However, if LKDFN would like to pursue these
further before the Board at the Public Hearing, then LKDFN should be required to provide to the Board
and DDMI their understanding of reasons why agreement was not reached for the planned meeting with
Chief and Council and a copy of the LKDFN engagement template.
.
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4
Closure and Reclamation Terms and Conditions
DDMI did not request changes to Part L in the renewal application.
4.1
GNWT Intervention
GNWT argues that terms and conditions for closure and reclamation can only be developed after a Final
Closure Plan is approved. GNWT cites MV2009L8-0008 for Tundra Mine as an example of a recent
license issued that appropriately regulates closure activities. GNWT has not recommended additional
closure or reclamation specific terms or conditions to be included in W2015L2-0001. GNWT has not
recommended any closure criteria.
4.2
Consistency
WLWB have indicated that license conditions may be reviewed for consistency with language used in
recent Type A Water Licenses (WLWB April 24, 2015). The GNWT intervention asked questions about
how closure activities might be included in W2015L2-0001. DDMI has considered both WLWB and GNWT
comments and recommends for Board consideration the following for Part L W2015L2-0001:
1. The Licensee shall operate in accordance with the Closure and Reclamation Plan
approved by the Board and shall endeavor to carry out progressive Reclamation of areas
as soon as is reasonably practicable.
2. The Licensee shall revise the Closure and Reclamation Plan as directed by the Board and
submit the revised plan to the Board for approval.
3. The Licensee may at any time propose revisions to the plan referred to in Park L, Item 1 for
approval by the Board.
4. Prior to December 31 of each year, the Licensee shall submit an annual Closure and
Reclamation Plan Progress Report which shall be in accordance with direction from the
Board.
5. A minimum of 24 months prior to the end of commercial operations, the Licensee shall
submit a Final Closure and Reclamation Plan to the Board for approval.
6. The Licensee shall implement the Final Closure and Reclamation Plan as approved under
Part L Item 5.
For the Board’s reference, Item 1-5 above are from W2012L2-0001. Item 6 is proposed to address
concerns included in the GNWT intervention.
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DDMI acknowledges that license amendments will likely be required over the 15 year term to remove
terms and conditions that were only applicable to operations. GNWT has identified many of these in their
submission. DDMI expects these amendments can be made in a coordinated and timely manner when
appropriate.
4.3
EMAB Intervention
While not specific, EMAB’s intervention does indicate items/issues that they recommend be considered
related to closure and reclamation. These include:
•
EMAB(1.4) has requested that “Agriculture/Parkland Standard” be a closure criteria for
bioremediated material.
•
EMAB(9.1) recommends closure EQC for hydrocarbons in the NI if it is being reconnected with
LDG
•
EMAB(4.1) recommends closure EQC for sulphate be developed if there is a real risk of thaw in
waste rock pile.
•
EMAB(4.2b) recommends closure EQC that is protective of waterfowl using the PKC.
•
EMAB (4.4) would like to see work begun on mine components as soon as possible. If done early
enough, the lessons learned in conducting and monitoring the reclamation of mine components
such as waste rock piles, tailings ponds, roads and pits can be incorporated into reclaiming the
larger site when its time has come.
EMAB has not provided sufficient specificity or evidence that would, in our view, enable the WLWB to
reasonably draft terms and conditions to address these EMAB items. It is however DDMI’s position that
most of the EMAB recommendations can be appropriately addressed in the continuing development of
the closure plan. One requirement of the closure plan is the development of closure criteria and DDMI
has identified this as a research task that has been approved by the WLWB. DDMI commits to
including in the ICRP water closure criteria for a) hydrocarbons in the NI, b) sulphate in waste
rock pile seepage and c) waterfowl in PKC. DDMI commits to including these in ICRP V4.0
assuming a December 2016 submission date.
DDMI has not included EMAB’s request that an “agriculture/parkland standard” be a closure criteria for
bioremediated material as a commitment for ICRP V4.0. DDMI suggests that this recommendation is not
specifically applicable to the Diavik site and would be more appropriately considered as a proposed
closure standard requirement for all water licenses. DDMI notes that different standards are included in
MV2009L8-0008 for Tundra Mine that should also be considered. As indicated in Section 2.0, where
recommendations are not specific to the Diavik site, it is more appropriate to consider the
recommendations as part of updated guidelines or policies that may be applicable for all licenses and
permits.
8
With regard to EMAB (4.4), DDMI suggests that this comment would be adequately addressed with the
DDMI proposed language for W2015L2-0001 Part L item 1 (Section 4.2 above).
4.4
Environment Canada Intervention
Environment Canada (EC) state that they may recommend clauses specifically for closure if the draft
W2015L2-0001 license spans the period from operations to closure and reclamation. DDMI’s application
is for a term of 15 years explicitly so that it will span the period from operations to closure and
reclamation. EC has been aware of DDMI’s application of a 15 year term and has been provided
sufficient time and notification by the WLWB to enable them to provide any recommended amendments
to closure clauses in their May 7, 2015 Intervention. DDMI submits that the Board should not consider
new recommendations for clauses provided by EC on the draft W2015L2-0001. Considering those
additional recommendations later would be contrary to the WLWB’s own Rules of Procedure and, by
depriving them of a proper right to consider and respond within the agreed framework, be procedurally
unfair to DDMI, WLWB Staff and all Interveners who have participated in the renewal process.
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5
Recommendations Specific to AEMP
5.1
EMAB (1.1(b)) comments that there are no effects benchmarks for oil and grease or PAHs in the
AEMP.
DDMI notes that this comment relates to the content of a W2007L2-0003 plan rather than a term or
condition for W2015L2-0001. DDMI commits to consider the need for oil and grease and PAH
effects benchmarks in the AEMP Design Update Version 4.0 currently due to be submitted for
review August 31, 2015.
5.2
EMAB (2.0, 3.0 and 7.2) comments or makes recommendation related to the AEMP design
and/or AEMP Response Plan.
DDMI notes that comment relates to the content of a W2007L2-0003 plan rather than a term or condition
for W2015L2-0001. DDMI commits to consider EMAB Intervention Sections 2.0, 3.0 and 7.2 in the
AEMP Design Update Version 4.0 currently due to be submitted for review August 31, 2015.
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6
Recommendations Specific to ICRP
6.1
EMAB comments on the need for a risk assessment related to closure options for the North Inlet.
DDMI (1.3) notes that comment relates to the content of a W2007L2-0003 plan rather than a term or
condition for W2015L2-0001. Risk Assessment is already included in the approved Reclamation
Research Plan (specifically Task 5.2). Application of a the risk assessment to the North Inlet closure
options is currently waiting on the completion of the 2015 Sediment Characterization Update (Task 5.6).
DDMI references for the Board the 2014 ICRP Annual Update V1-1 currently under review.
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7
Closure Security Estimates
The Government of the Northwest Territories (GNWT) and the Department of Fisheries and Oceans
(DFO) hold irrevocable letters of credit totaling $150,720,000.00 (as of May 14, 2015). As of April 4, 2015
the required security under the Water License is $118,460,000.00.
In December 2014 the Land and Water Boards initiated a welcomed engagement regarding the
development of Guidelines for Closure and Reclamation Cost Estimates for Mines. There were many
comments on the first draft; so many in fact that DDMI was advised that addressing them has caused a
delay in the guideline development. DDMI suggest this is a clear indication of the need for these
Guidelines.
7.1
EMAB (4.5) comment regarding how the operation of EMAB is included in security estimates
and an expression of interest to be consulted regarding financial security estimate.
DDMI included in the RECLAIM model for the Water License an estimated cost of $200,000 per year for
10 years ($2,000,000) to review post closure effects monitoring (see 2013 ICRP Update Appendix VIII-1).
The WLWB removed these costs from the estimate and noted in their Reasons for Decision (August 18,
2014) that “The Board does not view the cost of running EMAB as closure costs and did not include this
cost in the new estimate”.
While not included in the Water License security, the GNWT currently holds $6,000,000 for 10 years of
ongoing EMAB costs through the Environmental Agreement Additional Security Deposit (ASD) and the
Environmental Agreement Security Deposit (EASD) as detailed in the GNWT Review of Security – Diavik
Environmental Agreement Reasons for Decision (December 4, 2014).
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8
Other Recommendations
8.1
Issues with water sample QA/QC – EMAB (6.1) and NSMA Interventions both included
comments regarding past issues with SNP QA/QC
DDMI references for the Board the response provided to a similar WLWB comments on the Water
License Renewal (WLWB-22 DDMI Submission March 12, 2015)
Since 2011, DDMI has reported on more than 70,000 analytical results as requirements of the
Water License. Systems and procedures are in place to manage all of the steps in this process
with the objective of providing timely and reliable information. When issues arise, and they will
given the size and complexity of this program, DDMI reviews the circumstances in an attempt to
understand the root cause and where it can be identified make changes to systems and
procedures to reduce the likelihood of a repeat occurrence. In the last few years we have been
faced with some very unusual circumstances that impacted on results. Of note were issues with
contaminated preservative provided by the analytical laboratory and an instance where a different
laboratory discharged samples before they had been analyzed (see WLWB Registry). In the
case of the contaminated preservative DDMI undertook an extensive investigation to identify the
source of the problem and worked with the analytical laboratory to improve their quality control
and expanded DDMI’s processes for quality assurance of the preservatives. In the case of the
laboratory that discarded samples, the corrective action was to change to a different laboratory.
With these types of incidents we advise the Inspector and WLWB Staff, kept them apprised as
the investigation proceeds and finally provide a written summary of the final outcome for the
public registry.
The water sampling program at Diavik is further challenged by the ultra-low analytical detection
limits required for many parameters. Exceptional sample collection procedures are necessary to
eliminate sample contamination. Recently, DDMI Environment staff undertook an investigation to
determine possible sources of zinc sample contamination. The investigation concluded that the
brand of gloves, used to protect against sample contamination, were in fact a probable source of
sample contamination. The corrective action in this case was to source a different brand of glove
and complete verification testing.
DDMI has responded to WLWB and/or Inspector with actions related to each issue comment on by EMAB
(6.1) and NSMA. No recommendations for additional terms or conditions related to W2015L2-0001 are
proposed by EMAB or NSMA and it is the position of DDMI that none are warranted.
.
8.2
LKDFN Intervention notes that they have not been able to locate any substantial use of
traditional knowledge.
DDMI point the LKDFN to the 2014 ICRP Progress Report, specifically Appendix I-1 that include 19
pages of TK Panel recommendations and DDMI response.
8.3
GNWT recommends that the license scope be amended to include all activities that would occur
at the Diavik site during the term of the renewed water license.
DDMI supports the recommendation to include in Part A Item 1 of W2015L2-0001 all
activities that would occur at the Diavik site over the 15 year term of the license.
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9
Recommendations from the Mount Polley Report
WLWB Staff provided a copy of the Report on Mount Polley Tailings Storage Facility Breach and
specifically referenced Chapter 9 – Where Do We Go From Here? stating that:
“… the primary reason for placing this material on the record was to enable parties to
review this evidence and consider whether any of the Mt. Polley Panel’s
recommendations should be considered by the WLWB.”
No evidence has been presented by Interveners to indicate that any of the recommendations
from the Report uniquely apply to the Processed Kimberlite Containment (PKC) facility at Diavik.
No Interveners recommend terms of conditions for consideration in W2015L2-0001 that are
supported by the Mount Polley Report evidence.
DDMI suggests that all of the Mount Polley recommendations should be considered by the
WLWB and reviewed against the current regulatory practices for tailings dams in the Mackenzie
Valley (for example as described in Mackenzie Valley Land and Water Board Regulation of
Tailings Dams). Additionally, the Report noted the importance of the clear regulatory roles and
responsibilities that are formally in place in British Columbia between the various Ministries.
DDMI noted in its response to IR#5,9,10 and 11 that in the NWT there are overlapping
jurisdictions between the WLWB and the Workers’ Safety Compensation Commission (WSCC)
with regard to regulatory oversight of dams and dikes and suggests that the NWT may not have
the same clarity of regulatory roles and responsibilities as was noted in B.C.
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