Sharon From: Patty Ewaschuk [pewaschuk@wlwb.ca] Sent: Wednesday, - - PDF document

1

Sharon

From: Patty Ewaschuk [pewaschuk@wlwb.ca] Sent: Wednesday, May 23, 2007 5:54 PM To: 'Anne Wilson'; 'Bruce Hanna'; 'Cec Heron'; 'Charlotte Henry'; 'Chris Heron '; 'Colin Lake'; 'Don MacDonald'; 'Dora Enzoe'; 'Doug Crossley'; 'Eric Denholm'; 'Erika Nyyssonen'; 'Florence Catholique'; 'Geoff Clarke'; GNWT; 'Gord MacDonald'; 'Gregory Empson'; John Donihee; 'John McCullum'; 'Kathleen Racher'; 'Kevin Tweedle-KIA'; 'Loretta Ransom'; 'Lorraine Seale'; 'Louie Azzolini-YKDFN'; 'Marty Sanderson'; 'Monica Krieger'; 'Nathen Richea '; 'Neil Hutchinson'; 'Rachel Crapeau'; 'Rae Edzo Metis Nation'; 'Registry'; 'Rosy Bjornson'; 'Savanna Levenson'; 'Sheryl Grieve'; 'Stanley Anablak'; 'Stephen Ellis'; 'Tli Cho Lands Protection Department'; 'Tony Pearse'; 'Zabey Nevitt' Subject: FW: INAC intervention Attachments: YELLOWKN-#137140-v1-INAC_INTERVENTION_PRESENTATION_JUNE_4-5_2007.PPT; INAC Intervention.pdf

YELLOWKN-# 13714 0-v1-INAC_INTER... INAC ervention.pdf (189 KB

• ----Original Message-----

From: Kathleen Racher [mailto:racherk@inac-ainc.gc.ca] Sent: May 23, 2007 4:55 PM To: Patty Ewaschuk Cc: Bryan Grey; David Kennedy; Doug Paget; Charlotte Henry; David Livingstone; Catherine Mallet; Nathen Richea; Scott.Duke@justice.gc.ca Subject: INAC intervention Hi Patty, Please find attached our written intervention and powerpoint presentation. The follwoing people will be attending on behalf of INAC: Kathy Racher (INAC - presenter) David Livingstone (INAC) Charlotte Henry (INAC) Scott Duke (Dept. of Justice) I have invited Susan Roe of the National Guidelines and Standards Office (Environment Canada, Ottawa) to come as well in case there are lots of questions about the making and setting of guidelines in Canada. At this time, she is not certain she, or anyone else from that office, will be able to attend as they have other things going on at that time. If she does come, she will not be presenting on her own and so no new evidence would be entered. As for c.v.'s - at the hearing in November, DDMI's counsel asked our Dept.

• f Justice representative if I had submitted my curriculum vitae as an expert witness. As

an INAC employee, I had not thought of it. However, this time my c.v. is attached to the intervention if anyone is interested as I will be the main presenter at the upcoming hearing. I was not able to get Susan Roe's c.v. today but will submit it tomorrow just in case she is able to attend - I hope that is

• satisfactory. If not, let us know.

Thanks, Kathy Kathleen Racher, Ph. D. Manager, Water Resources

2

Indian and Northern Affairs Canada phone: 867-669-2749 fax : 867-669-2716

Intervention

for the

Diavik Diamond Mines Inc. Water Licence Renewal

June 4-5, 2007 Yellowknife, NT

Presentation Overview

• introductions
• November 2006 recommendations

(with respect to ammonia issues only)

– review their original bases – review work/new evidence since Nov. 2006 – summarize any changes

• concluding remarks

• Nov. 2006: Recommendation #1:

INAC recommends that a requirement be included in the renewed Water Licence for water samples from SNP1645-19 (i.e., close to the effluent-lake mixing zone) to be non-toxic to Hyalella azteca as determined by the “10-day Water-Only Toxicity Test for Hyalella azteca” developed under the Record of Agreement

• Why is it important to test Hyalella?

NH NH3

3

NH4

+ (pH, temp)

Rainbow trout are most sensitive to NH3(un-ionized ammonia) Hyalella is most sensitive to NH4

+

(ionized ammonia)

<1% 99%

(un-ionized) (ionized)

in Lac de Gras

Hyalella represents aquatic organisms that are sensitive to Ionized-Ammonia (NH4

+)

Why test Hyalella at SNP 1645-19?

Lac de Gras End-of-pipe

From the North Inlet Water Treatment Plant

SNP 1645-19 (60m from E-of-P) Effluent (SNP 1645-18) Mixing Zone

Hyalella sensitivity to ammonia increases with distance from end-of-pipe

Effluent

Sodium Potassium

sodium potassium

Lac de Gras Mixing Mixing Zone Zone

Hyalella sensitivity

Hyalella Sensitivity!

New Evidence: Trial test performed by DDMI on samples taken on one day

However: – the protocol was not followed exactly by the lab – analysis of sample chemistry was not done correctly Therefore, the results of this single set of tests are inconclusive. 5% effluent in lake water 100% lake water LC50 = 1 mg/L LC50 = 18 mg/L

• No.

Recommended test conditions:

• As per “10-day water-only toxicity test for Hyalella

azteca” developed under the Record of Agreement

• Use the most sensitive strain of Hyalella
• Simplify some conditions to minimize costs to DDMI:
• Reduce number of replicates
• Make it a pass/fail test for acute toxicity (not LC50

determination) as it is for rainbow trout etc.

• Use water samples already taken as part routine

testing at SNP 1645-19

Does the trial toxicity testing on Hyalella by DDMI change our recommendation?

• Nov. 2006 Recommendation #2:

The proposed limits were lower than:

• the limits adopted in the 2004 amendment to

DDMI’s water license

• the generic national water quality guidelines for

ammonia

INAC recommends that the effluent discharge limits for ammonia be set at 10 mg/L for the Maximum Average Concentration and 20 mg/L for the Maximum Daily (Grab) Concentration in the renewed Water Licence

Canadian Water Quality Guidelines

“Guidelines are numerical limits or narrative

statements based on the most current, scientifically defensible toxicological data available for the parameter of interest.

Guideline values are meant to protect all forms of aquatic life and all aspects of the aquatic life cycle….”

…are developed through the Canadian Council for Ministers of the Environment (CCME)

Example of setting a national Water Quality Guideline

160

1

Brown Trout Rainbow Trout Chinook Salmon Coho Salmon Fathead Minnow Smallmouth Bass Snail Clam Mayfly Acute Toxicity Value (mg/L ammonia it takes to be acutely toxic to species)

• the final guideline value should protect “the

most sensitive life stage of the most sensitive species over the long term”

Why wouldn’t we adopt the national guideline for ammonia?

Because none of the “most current, scientifically defensible toxicological data available” used in setting the last ammonia guideline was collected:

• under conditions similar to those in Lac de Gras (with

respect to temperature, pH, conductivity)

• on any northern species of fish
• on organisms that are most sensitive to ionized ammonia,

NH4

+, - the predominant form of ammonia in Lac de Gras

Finally, the CCME itself states:

“While adoption of generic Water Quality Guidelines represents the primary procedure for establishing numerical Water Quality Objectives, the presence of unique water quality characteristics or species assemblages at certain sites may necessitate the derivation of site-adapted water quality objectives.” INAC’s recommended discharge limit for ammonia was based on the unique conditions at Lac de Gras and was, therefore, put forward as more protective of the environment at this site.

New Evidence: Determination of the “Lowest Effluent Criteria Practical at Site”

Two considerations for deciding whether this new evidence would change INAC’s Recommendation #2: 1. The credibility and utility of the Ammonia Review Panel of Experts’ review and subsequent recommendations; and 2. The appropriateness of setting an effluent discharge limit based on what is operationally achievable on site.

INAC’s opinion of Expert Panel process and conclusions

Stakeholder comments were adequately addressed Transparent Endorsed options require minimal changes to water treatment or associated mine activities Reasonable Demonstrated excellent knowledge of site and workable

• ptions

Thorough Independent, unbiased and knowledgeable experts Fair

Is it appropriate to set limits more stringent than Canadian Water Quality Guidelines?

The Canadian Council of Ministers of the Environment says: “For waters of superior quality or that support valuable biological resources, the CCME nondegradation policy states that the degradation of the existing water quality should always be avoided.” “For ecosystems of superior quality, impairment to guideline concentrations is not advocated.”

Is it appropriate to set limits more stringent than Canadian Water Quality Guidelines?

The Canadian Council of Ministers of the Environment says: …, insufficient information on the physical, chemical and biological characteristics of the receiving water system may be available to modify the generic water quality guidelines to consider site conditions. The development

• f manufacturing processes that reduce the production of

waste products and improve the performance of wastewater treatment systems are normal research and development activities that are actively pursued by all responsible corporations and government

• rganizations.”

Is it uncommon for effluent discharge limits to be set based on lowest achievable?

Use Protection Limits

(humans, fish, wildlife etc.)

Technology-Based Limits

(best practical/achievable, best professional judgement)

Determine limits based on: Choose the most stringent in order to minimize loadings to environment

and

• No, it is practiced in many jurisdictions (e.g., Canada-

Metal Mining Effluent Regulations; US – National Pollutant Discharge Elimination System) US-NPDES:

And, finally,

INAC believes that, by considering effluent discharge criteria that are as protective of the environment as possible with minimal changes to current water treatment practices, the Wek’èezhìi Land and Water Board is dutifully fulfilling their legislated mandate of providing for the: “…conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit generally for all Canadians and in particular for residents of its management area.”

• Yes.

INAC supports the WLWB in setting effluent discharge limits for ammonia that are more stringent than those previously recommended by INAC as long as those limits are both practical and achievable on the Diavik mine site. Finally, INAC endorses the recommendations and conclusions of the Expert Panel with respect to the determination of the lowest practical effluent criteria for ammonia at Diavik.

Do the conclusions of the Ammonia Expert Panel change our recommendation?

Nov 2006 Recommendation #3:

• No new evidence with respect to this

recommendation; therefore, it stands as a current recommendation

INAC recommends that the renewed Water Licence require DDMI to perform the toxicity testing with round whitefish as outlined in the Record of Agreement

Concluding Remarks

• INAC, through the Water Resources

Division, has initiated a collaboration with the National Guidelines and Standards Office to research suitable limits for ammonia in northern waters.

• INAC will continue to update the WLWB as

any new information comes available.

INDIAN AND NORTHERN AFFAIRS CANADA INTERVENTION FOR THE DIAVIK DIAMOND MINES INC. WATER LICENCE RENEWAL

Submitted to: Wek’èezhìi Land and Water Board PO Box 32 Wekwèeti, NT X0E 1W0 May 23, 2007

Indian and Northern Affaires indiennes Affairs Canada et du Nord Canada

Indian and Northern Affairs Canada’s May 2007 Intervention to the Diavik Water Licence Renewal

ii TABLE OF CONTENTS

1.0 INTRODUCTION………………………………………………………………………...1 2.0 OCTOBER 2006 INAC RECOMMENDATION #1……………………………………..2 2.1 Review of Original Recommendation……………………………………………2 2.2 Relevant Post-Hearing Work or New Evidence………………………………….2 2.3 Summary of Changes to Original Recommendation……………………………..3 3.0 OCTOBER 2006 INAC RECOMMENDATION #2……………………………………..4 3.1 Review of Original Recommendation……………………………………………4 3.2 Relevant Post-Hearing Work or New Evidence………………………………….4 3.3 Summary of Changes to Original Recommendation……………………………..5 4.0 OCTOBER 2006 INAC RECOMMENDATION #3……………………………………..6 4.1 Review of Original Recommendation……………………………………………6 4.2 Relevant Post-Hearing Work or New Evidence………………………………….6 4.3 Summary of Changes to Original Recommendation……………………………..6 REFERENCES…………………………………………………………………………………….7 APPENDIX A …………………………………………………………………………….8 APPENDIX B……………………………………………………………………………11

Indian and Northern Affairs Canada’s May 2007 Intervention to the Diavik Water Licence Renewal

1 1.0 INTRODUCTION

In November 2006, the Wek’èezhìi Land and Water Board (WLWB) held a public hearing on the renewal of the Type “A” water licence (MV2005L2-0009) for Diavik Diamond Mines Inc. (DDMI). On December 4, 2006, the WLWB released its Reasons for Decision stating that the hearing was adjourned until further work on the Aquatic Effects Monitoring Plan and the Ammonia Management Plan (AMP) was completed. In the intervening months, much work has been completed on both issues with the full participation of all parties. Nonetheless, the WLWB has pointed out, in their letter of May 3, 2007, that “with respect to the AMP…it appears that differences still exist among the parties on several technical and legal issues” and that the public hearing should be reconvened to hear arguments related only to the Ammonia Effluent Quality Criteria (EQC) and the AMP. Indian and Northern Affairs Canada (INAC) respectfully submits this intervention, restricted to ammonia issues only, for the June 2007 public hearing. In October 2006, INAC’s intervention contained three recommendations (#1-3) that related directly to ammonia management at the DDMI site. In this document, INAC will review each of these recommendations briefly, discuss any relevant post-hearing work or new evidence obtained, and summarize any changes, if any, to each recommendation. Detailed explanations or justifications of INAC’s original recommendations can be found in the October 23, 2006 submission to the WLWB, entitled Indian and Northern Affairs Canada Intervention for the Diavik Diamond Mines Inc. Water Licence Renewal.

Indian and Northern Affairs Canada’s May 2007 Intervention to the Diavik Water Licence Renewal

2 2.0 OCTOBER 2006 INAC RECOMMENDATION #1

2.1 Review of Original Recommendation INAC’s Recommendation #1 from the October 2006 intervention: “INAC recommends that a requirement be included in the renewed Water Licence for water samples from SNP1645-19 (i.e., close to the effluent-lake mixing zone) to be non-toxic to Hyalella azteca as determined by the “10-day Water-Only Toxicity Test for Hyalella azteca” developed under the Record of Agreement.” Hyalella azteca is a benthic invertebrate organism that is extremely sensitive to ammonia in soft (low-ionic) waters such as Lac de Gras (Borgmann et al. 1997). Unlike the majority of species for which there is toxicological data, Hyalella is most sensitive to the ionized form of ammonia (NH4

+) instead of the unionized form (NH3). This makes Hyalella the ideal organism to test for

the toxic effects of ammonia from DDMI as NH4

+ is the predominant form of ammonia in the

cold, low pH waters of Lac de Gras. Furthermore, an appropriate toxicity test has already been developed under the Record of Agreement. The basis of the recommendation to perform the toxicity test on Hyalella with water samples from SNP 1645-19 is two-fold. Firstly, the mine water effluent has relatively high and fluctuating levels of the sodium and potassium ions in it. The presence of these two ions actually protects Hyalella from the effects of ammonia in the raw effluent. However, immediately upon discharge of the mine water, the protective potassium and sodium ions become rapidly diluted leaving the Hyalella invertebrates extremely vulnerable to the effects of the (also) diluted but still toxic ionized ammonia. Therefore, the Hyalella tests must be done with samples from the mixing zone in order to best represent its sensitivity to ammonia. Secondly, INAC recommended samples from SNP 1645-19 be used for the toxicity testing since DDMI must regularly take samples from that station anyway. 2.2 Relevant Post-Hearing Work or New Evidence Trial Hyalella Toxicity Testing of Effluent/Lake Water Mix by DDMI On January 5, 2007, DDMI submitted the results of its first attempt to determine the LC50 of Hyalella azteca for ammonia in both Lac de Gras water and in a simulation of a sample from the mixing zone (i.e., 5% effluent, SNP1645-18, in Lac de Gras water). INAC reviewed the submitted information in detail and provided comments in a letter to the WLWB on January 29, 2007 (Appendix A). To summarize, INAC noted several deficiencies and inconsistencies in the lab protocol and analyses such that the results were of questionable validity. Furthermore, INAC was concerned that DDMI was pre-maturely drawing conclusions on the basis of a single test. A quote from INAC’s January 29, 2007 letter explains: “In order to state conclusively that “Hyalella azteca is not especially sensitive to ammonia in either the whole effluent or the mixing zone in Lac de Gras” (DDMI, Jan 5, 2007), DDMI must consistently demonstrate that the relevant samples are not toxic to Hyalella under a wide range of effluent quality conditions – for example, by testing samples monthly for about 24 months using the developed

• protocol. In INAC’s view the testing results presented by DDMI do not change

Indian and Northern Affairs Canada’s May 2007 Intervention to the Diavik Water Licence Renewal

3

INAC’s recommendations made during the course of the DDMI Water Licence Renewal process to date.” Questions Raised at the November 2006 Hearing In its original intervention, INAC recommended that DDMI implement acute toxicity testing of Hyalella in samples from SNP 1645-19 (the mixing zone). In the course of the November 2006 public hearing in Behchoko, several parties (including WLWB staff) raised questions with respect to the toxicity testing of Hyalella azteca. Listed below are the questions raised as well as INAC’s response to them at this time.

• Should DDMI also be required to test the raw effluent at SNP 1645-18 for acute toxicity

to Hyalella? INAC is neither recommending this option nor opposing it. Rather, INAC points out that the sensitivity of Hyalella to ammonia is predicted to be some 100 times greater in the mixing zone than in the raw effluent (as discussed in INAC’s previous intervention). Therefore, INAC believes that acute toxicity testing of samples at 1645-19 will be much more helpful in determining the effects of ionized ammonia to sensitive organisms in the environment.

• Would it be more appropriate to require that samples from the mixing zone not be

chronically toxic to Hyalella? INAC believes that chronic toxicity testing of Hyalella with samples from the mixing zone would be the most useful and appropriate choice over acute toxicity testing. However, informal conversations with experts Borgmann and Ingersoll have revealed that much more research would be necessary to develop a reliable test that would work with the soft (low-ionic) waters that make up Lac de Gras. There is simply no reliable protocol that can be used at this time by DDMI or its contracted lab. Therefore, INAC prefers to remain with the recommendation of using the acute toxicity test on Hyalella developed under the Record of Agreement. 2.3 Summary of Changes to Original Recommendation Consideration of all information obtained after the November 2006 hearing has not changed INAC’s original Recommendation #1. As far as implementation of the 10-day toxicity test for Hyalella, INAC’s letter of January 29, 2007 (Appendix A) lists a number of areas in which the DDMI’s contracted lab had failed to meet the exact requirements of the established protocol, rendering the results questionable. INAC would encourage DDMI to work closely with the lab to ensure that future tests are done to

• specifications. Should the WLWB direct DDMI to perform the Hyalella toxicity tests routinely,

INAC offers to work with DDMI to simplify some test conditions in order to minimize the cost of testing while still fulfilling the regulatory requirements.

Indian and Northern Affairs Canada’s May 2007 Intervention to the Diavik Water Licence Renewal

4 3.0 OCTOBER 2006 INAC RECOMMENDATION #2

3.1 Review of Original Recommendation INAC’s Recommendation #2 from the October 2006 intervention was: “INAC recommends that the effluent discharge limits for ammonia be set at 10 mg/L for the Maximum Average Concentration and 20 mg/L for the Maximum Daily (Grab) Concentration in the renewed Water Licence.” Note that these discharge limits are more stringent than those found in the Canadian Water Quality Guidelines for the Protection of Aquatic Life; however, the publishers of the guidelines (i.e., the Canadian Council for Ministers of the Environment or CCME) advocate the derivation

• f site-specific limits in those cases where “unique water quality characteristics or species

assemblages” exist (CCME 1999). In the case of ammonia toxicity, it is clear that the water quality characteristics and species assemblages of many northern waters, including Lac de Gras, were not taken into consideration when the national, generic guidelines were last set for ammonia in 2000. The limits recommended by INAC are based on the hypothesis that, in soft (low-ionic strength) waters, such as Lac de Gras, Hyalella azteca represents the most sensitive species to

• ammonia. The rationale for adopting a site-specific discharge limit based on Hyalella sensitivity

as well as the calculation of the recommended discharge limits was discussed thoroughly in INAC’s October 23, 2006 submission and will not be repeated here. 3.2 Relevant Post-Hearing Work or New Evidence Review of Ammonia Management Practices by the WLWB’s Expert Panel In January 2007, the WLWB chose three experts with relevant experience in blasting practices, mine water management and/or wastewater treatment to review DDMI’s mine operations and to report back to the Board with their opinion of the most practical and effective options (or combinations of options) for ammonia management on site. INAC reviewed all of the material submitted by the Expert Panel and can make the following comments on the Panel and the Process: It was:

• Fair – the Experts were unbiased and extremely knowledgeable
• Thorough – the Panel went to great lengths to study current and past site operations and

so was able to recommend options that were not merely theoretical but also workable at the Diavik site in particular

• Reasonable – it is INAC’s view that the Panel’s recommended ammonia management
• ptions would result in minimal changes to current water treatment practices and

associated mining activities while minimizing the potential for toxic effects on Lac de Gras

• Transparent – INAC especially appreciated the Panel’s diligence in addressing any and

all comment or concerns raised by reviewers including the proponent Based on the above considerations, INAC believes that the EQC recommended by the Expert Panel are achievable at the DDMI site with relatively little effort. If, at some time in the future, the EQC finally set by the WLWB prove impossible to be practically met by DDMI at site, DDMI has the option to apply to the Board for an amendment as it did in 2004.

Indian and Northern Affairs Canada’s May 2007 Intervention to the Diavik Water Licence Renewal

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Use of the Lowest Effluent Criteria Practical at Site Regardless of the confidence level employed by the Panel, the recommended lowest practical EQC are more stringent than the EQC recommended by INAC in October 2006. In response to this, DDMI has raised the following objection (DDMI 2007a): “We have serious concerns with the apparent approach of the WLWB – which is to set aside consideration of levels protective of the environment, and to focus

• nly on what might be technically feasible or practical.”

INAC fundamentally disagrees with DDMI’s interpretation of the WLWB’s proposed actions. INAC does not believe that the WLWB is setting “aside consideration of levels protective of the environment” since limiting the total amount of ammonia discharged is clearly in the best interests of protecting the environment at Lac de Gras. The WLWB’s proposed actions are supported by several policies and statements made by the CCME who are responsible for setting the national water quality guidelines. One of the most relevant to this case is the CCME’s “nondegradation policy” which states (CCME 1999): “For waters of superior quality or that support valuable biological resources, the CCME nondegradation policy states that the degradation of the existing water quality should always be avoided.” Lac de Gras would certainly qualify as water of “superior quality” in Canada and, therefore, avoiding degradation of the existing water quality at the Diavik site is reasonable and sensible. The CCME never intended that their guidelines be used as “pollute up-to” values. Finally, the practice of setting EQC based on consideration of what is technically feasible or practical at a site is hardly uncommon. An example comes from existing Canadian legislation in the form of the Metal Mining Effluent Regulations (MMER). The MMER specifies maximum discharge limits for several metals from all metal mines in Canada. In most instances these discharge limits have been derived from an average of what is already being achieved by mining industries using modern technology – essentially, based on what is technologically achievable at mine sites without regard to the particular environment that will be affected. In the United States, the companies are required to adopt discharge limits that are the lesser of those derived from the best available technology or known environmental requirements (US-EPA 2003) 3.3 Summary of Changes to Original Recommendation INAC supports the WLWB in setting effluent discharge limits for ammonia that are more stringent than those previously recommended by INAC. As well, INAC endorses the recommendations and conclusions of the Expert Panel with respect to the determination of the lowest practical effluent criteria for ammonia at the Diavik site.

Indian and Northern Affairs Canada’s May 2007 Intervention to the Diavik Water Licence Renewal

6 4.0 OCTOBER 2006 INAC RECOMMENDATION #3

4.1 Review of Original Recommendation INAC’s Recommendation #3 from the October 2006 intervention was: “INAC recommends that the renewed Water Licence require DDMI to perform the toxicity testing with round whitefish as outlined in the Record of Agreement.” INAC based this recommendation on 1) that there is little or no data on the toxicity of ammonia to northern species of fish; and 2) that DDMI had already committed to doing this testing in their amended water licence under the Record of Agreement. 4.2 Relevant Post-Hearing Work or New Evidence No new evidence with respect to this recommendation has been made available to INAC since the November 2006 public hearing. 4.3 Summary of Changes to Original Recommendation INAC has no changes from the original recommendation.

Indian and Northern Affairs Canada’s May 2007 Intervention to the Diavik Water Licence Renewal

7 REFERENCES

BORGMANN, U. and BORGMANN, A., 1997. Control of Ammonia Toxicity to Hyalella Azteca by Sodium, Potassium and pH. Environmental Pollution, 95(3), 325-331. Canadian Council of Ministers of the Environment (CCME). 1999, Updated 2005. Canadian Environmental Quality Guidelines. DDMI 2007. Letter from Diavik Diamond Mines Inc. to the Wek’èezhìi Land and Water Board. January 5, 2007. DDMI 2007a. Letter from Diavik Diamond Mines Inc. to the Wek’èezhìi Land and Water Board. February 23, 2007. INAC 2006. Indian and Northern Affairs Canada Intervention for the Diavik Diamond Mines Inc. Water Licence Renewal.October 23, 2006. INAC 2007. Letter from Indian and Northern Affairs Canada to the Wek’èezhìi Land and Water

• Board. January 29, 2007.

WLWB 2007. Letter from the Wek’èezhìi Land and Water Board to the Interested Parties. May 3, 2007. United States Environmental Protection Agency (US-EPA), 2003. EPA and Hardrock Mining: A Source Book for Industry in the Northwest and Alaska.

Indian and Northern Affairs Canada’s May 2007 Intervention to the Diavik Water Licence Renewal

8 APPENDIX A: January 29, 2007 Letter from INAC to the WLWB

3rd Floor Bellanca Building PO Box 1500 Yellowknife, NT X1A 2R3 File: N7L2-1645 Diavik Diamond Mines Inc. January 29, 2007 To: Patty Ewaschuk Regulatory Officer Wek’èezhìi Valley Land and Water Board Re: Renewal Hearing Follow-Up by DDMI – Hyalella azteca Testing Results Background INAC’s intervention to the Public Hearing on DDMI’s Water Licence Renewal (OCTOBER 2006), recommended that DDMI be required to prove that samples from its effluent-lake mixing zone (i.e., SNP1645-19) are non-toxic to Hyalella azteca using the “10-day Water- Only Toxicity Test for Hyalella azteca” developed under the Record of Agreement. As detailed in INAC’s intervention document of October 23, 2006 and presentation of November 8, 2006, this recommendation was intended to address the predicted sensitivity of Hyalella to the ionized ammonia being discharged by DDMI into the low-ionic waters of Lac de Gras. On January 5, 2007, Diavik Diamond Mines Inc (DDMI) submitted the results of its first attempt to determine the LC50 of Hyalella azteca for ammonia in both Lac de Gras water and in a simulation of a sample from the mixing zone (i.e., 5% effluent, SNP1645-18, in Lac de Gras water). Detailed Comments Although encouraged by DDMI’s enthusiasm to initiate toxicity testing of mixing zone samples with Hyalella, INAC is concerned that DDMI is pre-maturely drawing conclusions

• n the basis of a single test result. INAC’s major concerns about DDMI’s conclusions are

detailed below: 1) DDMI collected one sample of effluent and one sample of Lac de Gras water on one day (December 4, 2006) and sent them to one lab to perform one series of toxicity tests for one effluent/lake mixed sample and one lake water-only sample. While this may be a good start, it is important to note that since the chemical composition of Diavik’s effluent changes over time (as evident in comparisons of effluent SNP data collected over the last several years at

Indian and Northern Affaires indiennes Affairs Canada et du Nord Canada

Indian and Northern Affairs Canada’s May 2007 Intervention to the Diavik Water Licence Renewal

9

station SNP1645-18), the measured LC50 value of 17 mg/L NH3-N represents only the conditions in the mixing zone on one day – December 4, 2006. The conditions of the effluent

• n one day cannot “confirm” that, with an ammonia EQC of 20 mg/L, “expected [ammonia]

concentrations in the mixing zone would remain well below levels expected to impact aquatic life in Lac de Gras”. The above conclusion, as made by DDMI in its Jan 5, 2007 letter, is simply not scientifically defensible. 2) Although DDMI’s preliminary test results support INAC’s prediction (based on the Borgmann model) that Hyalella is extremely sensitive to ammonia in low-ionic strength Lac de Gras water (i.e., an LC50 of about 1 mg/L NH3-N), DDMI goes on to say that this result is “not relevant to evaluating discharge limits” because “any ammonia in the discharge would be accompanied by major ions”. The major ions sodium and potassium do help protect Hyalella from the effects of ammonia, but the level of protection depends on the amount of those ions relative to the amount of ammonia in the effluent and, hence, in the mixing zone. Since the sources of ammonia, sodium and potassium in the effluent are independent, it is imprudent to rely on the effluent always having adequate amounts of major ions to protect

• rganisms such as Hyalella.

3) INAC thoroughly reviewed HydroQual’s report of test conditions, raw data, and final analyses, as provided by DDMI. Several irregularities were noted with respect to both sample chemistry and proper use of the Borgmann and Ingersoll protocol. INAC offers these detailed comments to assist DDMI in subsequent rounds of testing. a) The amounts of potassium and sodium reported for the mixed effluent/lake sample and the lake-only sample were anywhere from 2 to 10 times higher than expected. Although the Hyalella food used in the test would add some amount of these ions to the samples, it should have done so in a predictable way. As shown in Appendix 1 (attached), it did not. Although the differences may seem small they are not trivial as slight changes in the concentrations of these ions are known to have a large effect on the measured LC50 value. b) The 10-day water-only protocol requires the test solutions to be renewed if the ammonia concentration changes by more than 20% of their initial values. However, HydroQual did not renew any of test solutions although it was necessary in 10 of the 14

• jars. In some cases the amount of ammonia increased, over the course of 10 days, by
• ver 10X greatly compromising the results. As well, the dissolved oxygen of the test

solutions dropped by at least 2X during the 10 days – an effect that was not noted by any

• f the labs which tested the protocol last year and is probably due to the lack of solution
• renewal. Finally, the Expert Co-Chairs recommended last year that the most sensitive

strain of Hyalella be used for subsequent toxicity testing; however, HydroQual did not acquire that strain for this set of tests. Summary In order to state conclusively that “Hyalella azteca is not especially sensitive to ammonia in either the whole effluent or the mixing zone in Lac de Gras” (DDMI, Jan 5, 2007), DDMI must consistently demonstrate that the relevant samples are not toxic to Hyalella under a wide range of effluent quality conditions – for example, by testing samples monthly for about 24 months using the developed protocol. In INAC’s view the testing results presented by DDMI do not change INAC’s recommendations made during the course of the DDMI Water Licence Renewal process to date. Finally, INAC does not believe that these preliminary, and flawed, test results have any bearing on setting either the final effluent quality criteria for DDMI or the terms and conditions for the renewed Water Licence.

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INAC hopes that the above comments are useful both to the WLWB and to DDMI. Any questions may be directed to Dr. Kathleen Racher at racherk@inac.gc.ca. Sincerely, <ORGINAL SIGNED BY> Kathleen Racher, Ph. D. Manager, INAC Water Resources APPENDIX 1: Concentrations of Major Ions are Higher Than Expected in Tested Samples Parameter Expected Value1 (mg/L) Measured Value2 Difference (Measured–Expected in mg/L) Mixed Effluent/Lake Sample (5% effluent in lake water) Sodium 2.5 5.1 2.6 Potassium 0.6 3.9 3.3 pH 7.2 Lac de Gras Only Sample Sodium <1 3.3 >2.3 Potassium 0.6 5.1 4.5 pH 6.6 Not done

1 Expected Values are derived from the concentrations of the raw effluent (collected Dec. 4, 2006, Sodium = 49.5 mg/L, Potassium = 11.5 mg/L, pH = 7.5) and raw Lac de Gras water (collected Nov. 23, 2006, values as reported in table above) – reported by DDMI to INAC in an email dated Jan. 22, 2006. The Expected Values reported above for the mixed sample were calculated by multiplying the raw effluent data by 5% and adding the contributions of 95% of lake water. 2 Measured Values are taken directly from the HydroQual Report

Indian and Northern Affairs Canada’s May 2007 Intervention to the Diavik Water Licence Renewal

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KATHLEEN IRIS RACHER Curriculum Vitae CITIZENSHIP: CANADIAN Correspondence address: 19 Gitzel Street Yellowknife, NT X1A 2C1 Telephone: 867-920-0810 Fax: 867-920-0810 Email : racherk@inac.gc.ca EDUCATION

• Sept. 1989 --

Doctor of Philosophy (Biochemistry) May 1996 Simon Fraser University, Burnaby, British Columbia, Canada (Dr. D. Sen, Dr. T. Borgford, supervisors) Thesis Title : Introduction of Novel Amino Acids into Proteins – A Study

• f Specificity and Editing in the Yeast Isoleucyl-tRNA Synthetase

My doctoral studies initially involved the development of a protocol for high-level expression of the yeast isoleucyl-tRNA synthetase (yIRS) in E. coli and subsequent purification of the recombinant protein. The interactions of the yIRS enzyme with inhibitor and tRNA substrates both in vitro and in vivo were characterized. The last part of my project was the selection of mutants of yIRS with altered substrate specificities.

• Sept. 1985 --

Bachelor of Science (First Class Honours)

• Aug. 1989

Simon Fraser University, Burnaby, BC, Canada Major : Biochemistry AWARDS

• Sept. 1996 --

Chateaubriand Postdoctoral Scholarship, administered by the French

• Oct. 1997

Embassy in Canada (for postdoctoral studies in France)

• Sept. 1989 --

Medical Research Council of Canada Studentship

• Aug. 1994

Summer 1988 Natural Research and Engineering Research Council of Canada Undergraduate Summer Student Award

• Sept. 1985 --

Simon Fraser University President's Entrance Scholarship May 1986

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SCIENTIFIC WORK EXPERIENCE

• Sept. 2004 --

Manager, Water Resources Division present Renewable Resources and Environment Directorate, Indian and Northern Affairs Canada, Yellowknife, Northwest Territories The Water Resources Division has the responsibility of evaluating and advising on all water quality and water quantity issues arising from resource developments (mining, oil and gas) in the Northwest Territories. These responsibilities include the collection of baseline data as well as full participation in all environmental assessments. Currently, I am the Manager

• f 25 staff including administrative assistants, research scientists, regulatory
• fficers, field sampling technicians and environmental engineers.
• Jan. 2001 --

Manager, Taiga Environmental Laboratory

• Sept. 2004

Renewable Resources and Environment Directorate, Indian and Northern Affairs Canada, Yellowknife, Northwest Territories The Taiga Environmental Laboratory is a full-service analytical laboratory, performing a wide range of inorganic chemical analyses on samples of water (freshwater, ground water, drinking water, industrial effluents, sewage), soil, and biological tissue (plants, fish, mammals). The clients of the lab include industry and all levels of government. I was Manager to13 full-time staff and up to 7 seasonal workers, all of whom specialize in environmental and analytical chemistry.

• Oct. 1997 --

Postdoctoral Position

• Oct. 2000
• Dept. of Microbiology, University of Guelph, Guelph, ON, Canada
• Dr. J. M. Wood

Development/characterization

• f

a reconsituted system for the

• smosensory and osmoregulatory transporter ProP of E. coli. Attempts to

correlate the activation of proteoliposomal ProP with events occurring during osmotic upshifts using techniques including: enzymatic assay, fluorescence spectroscopy, and light scattering.

• Sept. 1996 --

Postdoctoral Position

• Oct. 1997

Institut de Génétique et Microbiologie, Université Paris XI, Paris, France

• Dr. I. B. Holland

Studies of Haemolysin A secretion via the E. coli Type I pathway involving the HlyB,D translocator. Identification of translocation intermediates as well as the characterisation of mutants in HlyA and translocator proteins that cause the misfolding of haemolysin during secretion.

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SCIENTIFIC WORK EXPERIENCE Continued: July 1995 -- Company Officer May 1996 De Novo Enzyme Corporation, Burnaby, BC, Canada

• Dr. T. J Borgford and I co-founded this company on the campus of Simon

Fraser University. De Novo was incorporated in July 1995 to pursue the development of an enzyme-based ulcer diagnostic and an anti-retroviral therapy in conjunction with Searle Pharmaceuticals and Cangene Corporation, respectively.

• Feb. 1992 --

Research Assistant/Consultant July 1995 Simon Fraser University/Rh Pharmaceuticals (Winnipeg, Canada) During my Ph.D. studies I worked part-time on a research contract between Simon Fraser University and a Canadian pharmaceutical company. As part of a team of three people, my duties included preparing research proposals and budgets, as well as consulting on expression and purification

• f recombinant proteins.

May 1989 -- Undergraduate Honours Research

• Aug. 1989
• Dept. of Chemistry, Simon Fraser University, Dr. T. J. Borgford

(supervisor) Site-directed mutants of calcium binding protein troponin-C were constructed, purified and characterized by fluorescence spectroscopy. PEER-REVIEWED PUBLICATIONS Culham, D.E., Hillar, A., Henderson, J., Ly, A., Vernikovska, Y.I., Racher, K. I., Wood, J.

• M. (2003) Creation of a Fully Functional Cysteine-less Variant of Osmosensory

Proton-Osmoprotectant Symporter ProP from Escherichia coli: An Application to Assess the Transporter’s Membrane Orientation. Biochemistry 42: 11815-23. Racher, K. I., Wood, J. M. (2001) Requirements for Osmosensing and Osmotic Activation

• f Transporter ProP from Escherichia coli. Biochemistry 40: 7324-33.

White, G. F., Racher, K. I., Lipski, A., Hallett, F. R., Wood, J.M. (2000) Physical Properties

• f Liposomes and Proteoliposomes Prepared from Escherichia coli Polar Lipids.

Biochimica et Biophysica Acta 1468:175-86. Culham, D. E., Tripet, B., Racher, K. I., Voegele, R. T., Hodges, R. S., Wood, J. M. (2000) The Role of the Carboxyl Terminal -Helical Coiled-Coil Domain in Osmosensing by Transporter ProP of Escherichia coli. Journal of Molecular Recognition 13:309-22.

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Borgford, T. J., Racher, K. I., Braun, C. A. J., (1999) Sucrose Detection by Enzyme-Linked Immunosorbant Assay. U. S. Patent Number 5,972,631. Racher, K. I., Voegele, R. T., Marshall, E. V., Culham, D. E., Wood, J. M., Jung, H., Bacon, M., Cairns, M. T., Ferguson, S. M., Liang, W. -J., Henderson, P. J. F., White, G., and Hallett, F. R. (1999) Purification and Reconsitution of an Osmosensor : Transporter ProP of Escherichia coli Senses and Responds to Osmotic Shifts. Biochemistry 38 : 1676-1684. Li, M. X., Chandra, M., Pearlstone, J. R., Racher, K. I., Trigo-Gonzalez, G., Borgford, T., Kay, C.M., and Smillie, L.B. (1994) Properties of Isolated N and C Domains of Chicken Troponin-C. Biochemistry 33: 917-925. Trigo-Gonzalez, G., Awang, G., Racher, K.I., Neden, K., and Borgford, T. (1993) Helix Variants of Troponin-C with Tailored Calcium Affinities. Biochemistry 32: 9826-9831. Trigo-Gonzalez, G., Racher, K.I., Burtnick, L. and Borgford, T. (1992) A Comparative Spectroscopic study of Tryptophan Probes Engineered into High and Low Affinity Domains of Recombinant Chciken Troponin-C. Biochemistry 31: 7009-7015. Racher, K.I., Kalmar, G., Borgford, T. (1991) Expression and Characterization of a Recombinant Yeast Isoleucyl-tRNA synthetase. J. Biol. Chem. 266 (26): 17158-64. INVITED SPEAKER Osmotic Activation of ProP : Roles of Proteoliposome Shrinkage, Membrane Potential and Hydration Changes. Presented at the Osmosensing Workshop, Guelph, ON, Canada, May 2000. Osmosensory/Osmoregulatory Transporter ProP of Escherichia coli: Characterization of the Reconstituted System. Presented as a seminar at the Université Paris XI (Paris, France), University of Cologne (Cologne, Germany), and University of Osnabrueck (Osnabrueck, Germany), October 1999. Osmosensing by Compatible Solute Transporter ProP of E. coli . Presented at the New Approaches to Membrane Protein Structure and Function meeting, Madison, WI, USA, August 1998.

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CONFERENCE POSTER PRESENTATIONS Culham, D., Tripet, B., Racher, K.I., Voegele, R.T., Hodges, R.S., and Wood, J.M. Role of the C-terminal -Helical Coiled-Coil Domain in the Osmotic Activation of Escherichia coli Transporter ProP. Presented at American Society of Microbiology General Meeting, Chicago, IL, USA, May 1999. Racher, K.I., Jung, H., and Wood, J.M., Transporter ProP of E. coli is an Osmosensor. Presented at the Canadian Society for Microbiology Meeting, Guelph, ON, Canada, June 1998. Racher, K.I., Young, J., Blight, M.A. and Holland I.B., Identification of Translocation Intermediates in the E. coli Haemolysin Secretion Pathway. Presented at the !st FEBS Advanced Lecture Course on ATP-Binding Cassette (ABC) Proteins, Gosau, Austria, February, 1997. Racher, K.I., and Borgford, T.J., A System for the Study of Specificity and Editing in the Yeast Isoleucyl-tRNA Synthetase. Presented at the 8th Symposium of the Protein Society, San Diego, CA, USA, July 1994. Racher, K.I., Kalmar, G., and Borgford, T.J., The Role of the Anticodon in the identity of Yeast Isoleucyl-tRNA. Presented at the 15th International tRNA Workshop, Cap d'Agde, France, June 1993. Racher, K.I., Varma, V., Borgford, T.J., and Pinto, B.M. A 1H-NMR Study of the Preferred Conformation of Isoleucine Bound to Yeast Isoleucyl-tRNA Synthetase. Presented at the Canadian Federation of Biological Science Conference, Victoria, BC, Canada, June 1992.