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Alberta Coal mine fined $1 million for Fisheries Act Violations

Sherritt International Corporation (Sherritt) recently pleaded guilty in the Provincial Court of Alberta to three counts of contravening the Canadian Fisheries Act.  Sherritt was sentenced to pay $1,050,000.  As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

The Coal Valley Mine, which was owned by Sherritt, from 2001 to 2014, is an open-pit coal mine located 90 km south of Edson, Alberta.  The Coal Valley Mine is a 20,660 Ha. surface mine. The mine operates both truck/shovel and dragline pits and utilizes a dragline for coal removal. The area has a long history of mining and the Coal Valley Mine was opened in 1978 to supply coal to Ontario Hydro and for overseas export.

Coal is uncovered at the mine using the two draglines  and two truck/shovel fleets. The exposed coal is hauled from the mine to the heavy media wash plant where the waste is removed and then loaded on trains to be shipped to the ports. Current annual production of the mine is 3.0 million tonnes and the plant has capacity to operate at 4.0 million tonnes per year.

On August 3rd, 2012, Environment and Climate Change Canada (ECCC) enforcement officers visited the mine in response to a spill report, and they determined that effluent being deposited from a waste-water pond was deleterious to fish. ECCC enforcement officers subsequently issued a direction under the Fisheries Act, which resulted in the deposit being stopped.  Further investigation by ECCC determined that there were two previous releases of deleterious effluent from waste-water ponds, on July 27th, 2011.

The releases went into tributaries of the Athabasca River, including the Erith River portions, which are identified by the Government of Alberta as “ecologically significant habitat” for Athabasca rainbow trout, a species at risk.

The waste-water ponds at the Coal Valley Mine collected surface water that was treated with a chemical flocculant to remove suspended sediment before being discharged.  Both suspended sediment and an excess of flocculant can be toxic to fish.

Of the $1,050,000 fine, $990,000 will be directed to the Environmental Damages Fund (EDF).  The EDF was created in 1995 by the Government of Canada. The fund follows the polluter pays principle, and it ensures that court-awarded penalties are used for projects with positive environmental impacts.

Teck Coal Ltd. fined $1.4 million for Toxic Release

Teck Coal Limited recently pleaded guilty to three counts of contravening the Canadian Fisheries Act in the Provincial Court of British Columbia.   The court ordered the company to pay a penalty of $1,425,000, which will be directed to the federal Environmental Damages Fund, and used for purposes related to the conservation and protection of fish or fish habitat or the restoration of fish habitat in the East Kootenay region of B.C.  Additionally, Teck Resources will post information regarding this conviction on its website.  As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

Teck Coal’s Line Creek Operations is located in southeastern British Columbia.  On October 17th, 2014, enforcement officers from Environment Canada and Climate Change (ECCC) launched an investigation following a report that fish had been found dead in ponds connected to Line Creek which runs adjacent to the coal mining operation.  During the investigation, ECCC enforcement officers found that the effluent from the water treatment facility going into Line Creek was deleterious to fish.  Numerous dead fish were found in the Line Creek watershed as a result of this discharge, including Bull trout.  Bull trout are identified as a species of special concern in this area of British Columbia.

The company has a permit to discharge treated effluent into the Line Creek, however in the fall of 2014, there was a malfunction of the treatment system.  As a result, toxic levels of nitrate, phosphorus, selenium and hydrogen sulfates entered the Line Creek, subsequently killing over 74 fish.

Line Creek is identified by the Government of British Columbia as part of a “Classified Water” system.  This provincial classification means that the water system is seen to have a high fisheries value and it requires special fishing licenses.

Teck’s West Line Creek Active Water Treatment Facility cost $120 million to construct.  The facility treats up to 7,500 m3 (2 million gallons) of water per day – enough to fill three Olympic-sized swimming pools.  Selenium concentrations are reduced by about 96% in treated water, to below 20 parts per billion.  Nitrate concentrations are reduced by over 99% in treated water, to below 3 parts per million.

Teck’s West Line Creek Active Water Treatment Facility

Teck’s Line Creek operation produces steelmaking coal – also called metallurgical coal or coking coal — which is used to make steel.  The processed coal is transported by sea to the Asia-Pacific region and elsewhere.  The current annual production capacities of the mine and preparation plant are approximately 3.5 and 3.5 million tonnes of clean coal, respectively. Proven and probable reserves at Line Creek are projected to support mining at planned production rates for a further 23 years.

Canada: Environmental Review Tribunal gives Ministry Broad Preventative Powers over Migrating Contamination

Article by Stanley D. Berger, Fogler, Rubinoff LLP

On September 1, 2017, the Ontario Environmental Review Tribunal in the matter of Hamilton Beach Brands Canada Inc. et al. v. the Director, Ministry of the Environment and Climate Change made a preliminary ruling that the Director had jurisdiction to make an order under s.18 of the Ontario Environmental Protection Act (Ontario EPA) requiring a person who owns or owned, or has or had management or control of a contaminated undertaking or property to delineate contamination that had already migrated to off-site properties.  The property in question, formerly a small-appliance manufacturing business, was contaminated and the various contaminants were of concern to the Ontario Ministry of the Environment and Climate Change, having migrated to other Picton residential, commercial and institutional properties where they might be entering nearby buildings by vapour intrusion.  Section 18 of the Ontario EPA provides that the Director may make orders preventing, decreasing or eliminating an adverse effect that may result from the discharge of a contaminant from the undertaking or the presence or discharge of a contaminant in, on or under the property.  The Director’s Order was challenged on three grounds:

  1. The adverse effect the Director could address was limited to a future event or circumstance (given that s.18 is prospective and preventative);
  2. The adverse effect had to relate to the potential off-site migration of a contaminant that was on an orderee’s property at the time the order was made;
  3. The order could require work only on site but not off-site, to address the risk of an adverse effect.

The Tribunal rejected all three arguments, reasoning that adverse effects resulting from contamination were frequently ongoing rather than static, with no clear line between existing and future effects.  The Tribunal looked to the purpose of the Ontario EPA which was to protect and conserve the natural environment and found the orderees’ arguments were inconsistent with this purpose.  Contamination and adverse effects were not constrained by property boundaries and therefore it was immaterial whether the contaminant was on the orderee’s property at the time the order was made. Finally, the list of requirements that could be ordered under s.18(1) EPA included off-site work.

 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

About the Author

Stanley Berger is certified by the Law Society of Upper Canada as a specialist in environmental law.  He was called to the Ontario Bar in 1981. He joined the law firm of Fogler Rubinoff on July 4 2013.  Stanley was the founder of the Canadian Nuclear Law Organization and served as its President between 2008-2015, and remains a board member.  He is also is a former President of the International Nuclear Law Association.  He has taught nuclear law for the Nuclear Energy Agency in France and is an adjunct professor for York University’s Professional Master’s Degree in Energy.  Stanley is the author of a quarterly publication entitled “The Prosecution and Defence of Environmental Offences” and edits an annual review of environmental law.

Stanley represents suppliers and operators in the nuclear industry on nuclear liability, regulatory and supply chain issues. He provides legal advice to the Nuclear Waste Management Organization. Other clients include the CANDU Owners Group and a large Ontario municipality. His environmental practice includes litigation before courts, boards and tribunals, as well as solicitor’s work on behalf of renewable energy companies, landowners and waste management entities. He represented a First Nation on regulatory matters relating to a renewable energy project. His practice also includes the protection of proprietary information on applications before Ontario’s Freedom of Information and Privacy Commission.

This article was originally published on the Fogler, Rubinoff LLP website.

Canada: Oil Spill Liability – Kawartha Lakes Continues

By Donna Shier, Partner and Certified Environmental Law Specialist, Joanna Vince, Senior Associate and Raeya Jackiw, Student-at-Law, Willms & Shier

Background

In the most recent decision in the ongoing Kawartha Lakes saga, the Superior Court of Justice found homeowner Mr. Wayne Gendron partly responsible for an oil spill that destroyed his lakeside property.  The Court also found Mr. Gendron’s fuel distributor liable for a portion of the costs.  This decision serves to warn homeowners that a distributor’s delivery of fuel does not mean that their tanks are safe. It also cautions fuel distributors that they may be liable for spills brought about by a homeowner’s negligence.

The Facts

Thompson Fuels (“Thompson”) supplied 700 liters of fuel oil to two tanks in Mr. Gendron’s basement.  Mr. Gendron had installed the fuel tanks himself without proper shut off valves, contrary to industry standards.

During a period of financial difficulty, Mr. Gendron filled these fuel tanks with less expensive stove oil.  The stove oil introduced water and microbes into the tanks, causing the tanks to corrode.  When Thomspon delivered the fuel oil one of the tanks leaked, spilling approximately 600 liters.

In the hours following the fuel delivery Mr. Gendron tried to manage the spill on his own by collecting what he believed to be all of the leaking oil in Tupperware containers.  Approximately 24 hours later, Mr. Gendron called Thompson to complain that it had not delivered his entire shipment of fuel oil – he was short about 600 liters.  Mr. Gendron never called to report the spill to the MOECC’s Spills Action Centre hotline.

The fuel oil migrated under Mr. Gendron’s house, through the City of Kawartha Lake’s drainage system, and into nearby Sturgeon Lake. The Ontario Ministry of the Environment and Climate Change (MOECC) ordered Mr. Gendron and his wife to “ameliorate the adverse effects caused by the discharge of the furnace oil” and “restore the natural environment… to the extent practicable.”  Mr. Gendron began remediation of the contamination of his property and the contamination of Sturgeon Lake.

Early remediation efforts were complicated by the frozen lake and soil. Mr. Gendron’s personal insurance was rapidly exhausted.  His insurer eventually refused to fund further off-site remediation of Sturgeon Lake.

The remediation efforts cost nearly $2 million  and required the demolition of Mr. Gendron’s home.

Sturgeon Lake, Kawatha Lakes Region, Ontario

The City’s MOECC Order

The MOECC ordered the City of Kawartha Lakes to clean up any fuel oil remaining in the City’s culverts and sewers that could re-contaminate Sturgeon Lake.  The City appealed the order first to the Environmental Review Tribunal, then to the Divisional Court, and ultimately to the Ontario Court of Appeal, losing each time. (See our previous article on the Court of Appeal’s decision here.)

Environmental Protection Act Claims

Using its powers under the Ontario Environmental Protection Act (“EPA”), s. 100.1 the City ordered compensation for its remediation costs from Mr. Gendron, Thompson and the Technical Standards and Safety Authority (“TSSA”).  Mr. Gendron, Thompson and the TSSA appealed the order to the Environmental Review Tribunal.  Thompson and the TSSA settled with the City and withdrew their appeals.  Mr. Gendron’s appeal was unsuccessful and he was required to pay more than $300,000 of the City’s costs.  Mr. Gendron then brought a claim for contribution and indemnity against Thompson under EPA, s. 100.1(6).  In this most recent case, the Court found that Mr. Gendron could not make out his EPA claim because ownership and control of the fuel oil had transferred to him when the fuel oil was delivered to him by Thompson.  Mr. Gendron’s claim for contribution under the EPA was dismissed.

About the Authors

Donna Shier, Partner & Certified Environmental Law Specialist.  With almost 40 distinguished years of experience practicing environmental law, Donna Shier is one of Canada’s leading environmental counsel to major industrial corporations. Donna is also frequently called upon by corporate, commercial and real estate lawyers to assist their clients with environmental legal issues, and provides environmental law expertise to external litigation counsel. Donna is a qualified mediator and is an accredited member of the ADR Institute of Canada. Donna is called to the bar of Ontario.

Joanna Vince, Senior Associate.  Joanna Vince has significant expertise representing a wide range of clients with environmental issues, civil claims and prosecutions, orders and appeals. Joanna was admitted to the bar of Ontario in 2011.  Joanna has a B.Sc. (Hons., High Distinction) in biology and environmental science, and a Certificate in Environmental Studies. Joanna’s knowledge of and commitment to environmental issues was recognized by the University of Toronto, which awarded her the Arthur and Sonia Labatt Fellowship and the Douglas Pimlott Scholarship. Also at the University of Toronto, Joanna assisted with preparing academic papers and books as a research assistant on wind power, carbon taxes and climate change.

Raeya Jackiw, Student-at-Law.  Prior to articling at Willms & Shier, Raeya was a summer student at the firm and conducted legal research on issues in environmental, aboriginal, energy, constitutional, administrative, contract, tort, and civil procedure law. She has a Juris Doctor, Certificate in Environmental Law from the University of Toronto, a Masters Degree in Environmental Science from the University of Guelph, and a Bachelor’s Degree in Environmental Science from Queen’s University.

This article was originally published on the Wilms & Shier website.

Auto paint and Supply company fined for environmental violations

Fine Auto Paints and Supplies Ltd. of Toronto, Ontario, was fined recently $25,000, after pleading guilty in the Ontario Court of Justice last month to one count of contravening the Volatile Organic Compound Concentration Limits for Automotive Refinishing Products Regulations, under the Canadian Environmental Protection Act, 1999.

An investigation by Environment Canada and Climate Change (ECCC) enforcement officers revealed that the company had sold automotive refinishing products that contained Volatile Organic Compounds (VOCs) in excess of the allowable limit.

VOCs are primary precursors to the formation of ground level ozone and particulate matter which are the main ingredients of smog. Smog is known to have adverse effects on human health and the environment.

As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.  The Environmental Offenders Registry contains information on convictions of corporations registered for offences committed under certain federal environmental laws.

The fine will be directed to the Environmental Damages Fund (EDF).Created in 1995, the Environmental Damages Fund is a Government of Canada program administered by Environment and Climate Change Canada. The Fund follows the “polluter pays” principle and ensures that court-awarded penalties are used for projects with positive environmental impacts.

Tribunal gives Ontario Environment Ministry Broad Preventative Powers over Migrating Contamination

by Stanley D. Berger

On September 1, 2017, the Ontario Environmental Review Tribunal in the matter of Hamilton Beach Brands Canada Inc. et al. v. the Director, Ministry of the Environment and Climate Change made a preliminary ruling that the Director had jurisdiction to make an order under s.18 of the Environmental Protection Act (EPA) requiring a person who owns or owned, or has or had management or control of a contaminated undertaking or property to delineate contamination that had already migrated to off-site properties. The property in question, formerly a small-appliance manufacturing business, was contaminated and the various contaminants were of concern to the Ministry, having migrated to other Picton residential, commercial and institutional properties where they might be entering nearby buildings by vapour intrusion. Section 18 of the EPA provides that the Director may make orders preventing, decreasing or eliminating an adverse effect that may result from the discharge of a contaminant from the undertaking or the presence or discharge of a contaminant in, on or under the property. The Director’s Order was challenged on three grounds:

  1. The adverse effect the Director could address was limited to a future event or circumstance (given that s.18 is prospective and preventative);
  2. The adverse effect had to relate to the potential off-site migration of a contaminant that was on an orderee’s property at the time the order was made;
  3. The order could require work only on site but not off-site, to address the risk of an adverse effect.

The Tribunal rejected all three arguments, reasoning that adverse effects resulting from contamination were frequently ongoing rather than static, with no clear line between existing and future effects. The Tribunal looked to the purpose of the EPA which was to protect and conserve the natural environment and found the orderees’ arguments were inconsistent with this purpose. Contamination and adverse effects were not constrained by property boundaries and therefore it was immaterial whether the contaminant was on the orderee’s property at the time the order was made. Finally, the list of requirements that could be ordered under s.18(1) EPA included off-site work. _________________

About the Author

Mr. Berger has practiced regulatory law for 36 years. He is a partner at Fogler Rubinoff LLP. He is certified by the Law Society of Upper Canada as a specialist in Environmental Law. He represents nuclear operators and suppliers in regulatory and environmental matters and in the negotiation of risk clauses in supply contracts and government indemnity agreements.He has prosecuted and defended environmental , occupational health and safety and criminal charges . He represents clients on access to information appeals before Ontario’s Freedom of Information Commission. He has also represented First Nations seeking equity partnerships in renewable energy projects. He started as an Assistant Crown Attorney in Toronto (1981), became the Deputy Director for Legal Services /Prosecutions at the Ministry of the Environment (1991) and Assistant General Counsel at Ontario Power Generation Inc.(1998-2012) During his 14 years at OPG, Mr. Berger won the President’s Award for his legal contribution to the Joint Review Panel environmental assessment and licensing hearing into the Nuclear New Build Project for Clarington . He won a Power Within Award for his legal support of the Hosting Agreement with local municipalities for the project to create a long term deep geologic repository for low and intermediate nuclear waste in Tiverton, Ontario.

 

Former B.C. Environment Minister Sued for Shutting Contaminated Soil Landfill

As reported in the Vancouver Sun, The owner of a Shawnigan Lake quarry that was used as a landfill for contaminated soil is suing the provincial government and the former minister who ordered it shut down.

Cobble Hill Holdings Ltd. recently filed suit in B.C. Supreme Court against the Province of British Columbia and Mary Polak, who was the B.C. Liberal environment minister and is still the MLA for Langley.

(Image: Shawnigan Lake, Canada. 6 Dec 2015. The containment system currently employed at the
SIA/SIRM Contaminated-Soil dumpsite, designed to prevent contaminants from travelling
into the Shawnigan Lake watershed. c Laura Colpitts)

The company said it is seeking general damages, special damages, aggravated damages, punitive damages, special costs and any other relief as the court “may deem fit to grant.” No amounts were specified other than “to be assessed.”

No statement of defence has been filed, either by Polak or the province.

In February 2017, while still environment minister, Polak cancelled the permit that allowed Cobble Hill Holdings to receive and store contaminated soil at its former rock quarry upstream of Shawnigan Lake.

Polak said the company had failed to meet a government deadline for an irrevocable letter of credit that would serve as a financial security.

In its suit, Cobble Hill Holdings says the government had not specified any form or amount for that credit, and had not approved the plans that would have been the basis of the financial guarantee.

The company’s operating permit, issued in 2013, had been suspended in January when the Environment Ministry asked for the financial security as well as a closure plan, including a cost estimate, and water management review reports.

Cobble Hill Holdings said it submitted updated plans to the ministry for approval on Feb. 20. Three days later, its permit was cancelled.

As a result, the suit says, the land is contaminated and Cobble Hill Holdings has suffered financial damages.

Cobble Hill Holdings had decided to lease the lands to South Island Resource Management and notified the ministry that that company would be the primary operator of the permit, the suit says.

Cancellation of the permit resulted in the termination of the lease, which had required South Island Resource Management to pay Cobble Hill Holdings $50,000 a month.

The permit issued in 2013 allowed Cobble Hill Holdings to receive and store up to 100,000 tonnes of contaminated soil a year at its quarry.

It was upheld by the Environmental Appeal Board in 2015, but faced multiple court challenges before it was cancelled in February.

Much of the contaminated soil was from construction sites in Greater Victoria.

Shawnigan Lake residents expressed concern about contaminants leaching into their water supply, and packed open houses to voice opposition.

Demonstrators at the landfill were arrested for blocking trucks delivering the soil. They also went to the legislature to complain to the government.

Polak said repeatedly that the issue was a matter between the company, Environment Ministry technicians and the courts.

When the permit was cancelled in February, the government stressed the decision had nothing to do with any pollution detected or any legal issue being contended.

“To be clear, the permit was not cancelled due to pollution occurring, nor was it directly related to anything before the courts,” the Environment Ministry said in a statement.

“The decision was made on the principle of escalating enforcement and repeated failure by the company to meet deadlines and comply with permit requirements.”

Fine for Illegal Storage of PCBs

Recently in a Quebec court, Mr. Isaac Gelber pleaded guilty to three charges related to the illegal use/storage of PCBs and he was fined $25,500 under the Canadian Environmental Protection Act, 1999.

The investigation, led by Environment and Climate Change Canada, showed that Mr. Isaac Gelber had committed several violations to the Act, namely:

  • Using transformers containing polychlorinated biphenyls (PCBs) thereby violating the PCB Regulations;
  • Failing to comply with the environmental protection compliance order, issued by an officer in January 2013, to dispose of three (3) transformers containing more than 500 mg/kg of PCBs
  • Knowingly making false or misleading statements

Polychlorinated biphenyls (PCBs) used to be very popular in a wide range of industrial and electrical applications. They were excellent fire resistant coolants and insulating fluids in transformers, capacitors, cables, light ballasts, bridge bearings, and magnets, among many other things.  Unfortunately, they turned out to be persistent and toxic to humans and the environment. PCBs can:

  • Travel long distances and deposit far away from their sources of release
  • Accumulate in the fatty tissues of living organisms
  • Cause complications like cancer and birth defects
  • Potentially disrupt immune and reproductive systems and even diminish intelligence.

Amended PCB Regulations under the Canadian Environmental Protection Act, 1999 (CEPA), came into force on September 5, 2008. The new regulations set phase out dates for in –use PCB equipment, as well as rigorous labelling and reporting requirements.  They also require prompt and proper disposal of PCB equipment, once it is no longer in active use.

The Department of Environment and Climate Change enforcement officers conduct inspections and investigations under the Canadian Environmental Protection Act, 1999.  They ensure that regulated organizations and individuals are in compliance with environmental legislation.

 

U.S. Federal Appeals Court finds Exxon not quality for Oil Spill in Arkansas

As reported in Inside Climate News, a federal appeals court has let ExxonMobil largely off the hook for a 2013 pipeline spill that deluged a neighborhood in Mayflower, Arkansas, with more than 200,000 gallons of heavy tar sands crude oil, sickening residents and forcing them from their homes.

The Fifth Circuit Court of Appeals on Monday overturned federal findings of violations and the better part of a $2.6 million fine imposed on Exxon’s pipeline unit in 2015 by the U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA). The regulator had accused the company of failing to maintain the decades-old Pegasus Pipeline and to prioritize testing of a segment of older, high-risk pipe where a 22-foot gash eventually opened along a metal seam.

Oil Spill – Mayflower , Arkansas

Exxon challenged the violation and fine, arguing there was no proof its actions contributed to the spill and saying it had conducted adequate testing of the pipeline as required by law. The appeals court agreed, saying the company met its legal obligation when it “conducted a lengthy, repeated and in-depth analysis” of the pipeline and its risks.

“The unfortunate fact of the matter is that, despite adherence to safety guidelines and regulations, oil spills still do occur,” the court concluded. It called PHMSA’s determination that the company failed to consider risks “arbitrary and capricious.”

In October 2015, PHMSA sent the company a 46-page order, citing nine violations. Ultimately, Exxon challenged six of those violations. The court sided with Exxon on five of them, saying the company took sufficient steps to analyze risks along the pipeline. On one violation—accusing Exxon of saying it had run a certain test on the pipeline when it had not—the court agreed with PHMSA, but it noted the company’s misrepresentation was not a “causal factor in the Mayflower Accident,” as the agency asserted. The court said it would ask the agency to re-evaluate an appropriate penalty for that violation. Exxon has also reached separate settlements with homeowners and governments related to the pipeline spill.

The pipeline consists of three separate sections—built in 1947, 1954 and 1973—that were joined as one system in 2005 and 2006 to carry oil along an 859-mile stretch, southward from from Pakota, Illinois, to Nederland, Texas. The segment that burst is in the oldest section of the pipeline and is made of “low-frequency electric-resistance welded” (LF-ERW) steel pipe, made before 1970 and known to have a higher risk of rupturing along its lengthwise seams because of a manufacturing defect.

The Pipeline Safety Act requires pipeline operators to create “Integrity Management Programs,” which include a written plan to assess pipelines and prioritize certain sections for testing based on risks. The regulations spell out the methods pipeline operators can use to perform these “integrity assessments.” If the pipe is LF-ERW pipe that’s susceptible to “longitudinal seam failure,” the assessment methods have to be capable of detecting corrosion and assessing the strength of the seams. But the law isn’t clear how operators should determine if pipelines are likely to suffer “longitudinal seam failure” in the first place.

The court said that the “pipeline integrity regulations themselves did not provide ExxonMobil notice that the pipeline’s leak history compelled it to label the LF-ERW pipe susceptible to longitudinal seam failure.”

Mount Polley Subject To Private Prosecution Due To Province’s Failure To Act

Article by Paula Lombardi from Siskinds LLP

In the fall of 2016 MiningWatch Canada initiated a private prosecution under the Fisheries Act against the British Columbia government and Mount Polley mine as a result of the collapse of the Mount Polley tailings dam in 2014. The failure of the dam resulted in 25 million cubic metres of washwater and mine waste being released downstream into Hazelton Creek, Polley Lake and Qeusnel Lake. The contents of the washwater and mining waste including mercury, lead and other toxic waste.

In the charges, MiningWatch Canada alleged that the dam released mine waste in 2014 directly into British Columbia’s Cariboo region creating a new valley and permanently destroying or altering fish habitat. It is believed that the release of the mine waste has impacted 20 different species of fish.

Mount Polley Mine

In March 2017, MiningWatch’s private prosecution against both the province and Mount Polley Mining was stayed. A lawyer for British Columbia stated that the private prosecution was not in the public interest because the British Columbia Conservation Officer Service, Environment and Climate Change Canada, and Fisheries and Oceans Canada were already investigating the incident.

The newly elected British Columbia government announced the first week of August 2017 that it would not be pursuing charges against the mine before the expiration of three year limitation deadline on the basis that “an investigation was still ongoing.” This decision leaves it solely to the Federal government to determine whether or not to pursue charges against the mine under the Fisheries Act.

On August 4, 2017, three years after the spill of the mine waste, and at the end of the three year limitation period within which the province can initiate charges, Bev Sellars, indigenous activist and former Chief of the Xat’sull First Nation, filed charges against the Mount Polley Mining Corporation. 15 charges in total, 10 under the B.C. Environmental Management Act and 5 under the B.C. Mines Act, were brought by Bev Sellars as part of a private prosecution against Mount Polley. These charges relate to the dumping of contaminated mining waste into the environment and surrounding waterways, and poor and unsafe operational practices contrary to the permits issued to the corporation and the statutory regime. These charges can potentially be taken over by the provincial government. The private prosecution is supported by numerous organizations including MiningWatch Canada, West Coast Environmental Law’s Environmental Dispute Resolution Fund, the Wilderness Committee and the First Nation Women Advocating for Responsible Mining.

B.C’s chief inspector of mines along with an independent panel of engineering experts concluded that the collapse resulted from a poorly designed dam that failed to take into account drainage and erosion failures.

The British Columbia auditor general in its May 2016 report concluded that compliance and enforcement in British Columbia’s Ministry of Mines, Energy and Petroleum Resources and Ministry of Environment and Climate Change were inadequate and “not set up to protect the province from environmental risks.”

The news release relating to the May 2016 report from the Office of the Auditor General of British Columbia stated the following as it relates to the departments audit of compliance and enforcement of the mining sector:

“Almost all of our expectations for a robust compliance and enforcement program were not met,” [says Bellringer]. “The compliance and enforcement activities of both the Ministry of Energy and Mines, and the Ministry of Environment are not set up to protect the province from environmental risks.”

The findings indicate major gaps in resources, planning and tools in both ministries. For example, both ministries have insufficient staff to address a growing number of permits, and staff work with cumbersome and incomplete data systems.

As a result, monitoring and inspections of mines were inadequate to ensure mine operators complied with requirements. Additionally, some mining companies have not provided government with enough financial security deposits to cover potential reclamation costs if a mining company defaults on its obligations. It’s underfunded by over $1 billion – a liability that could potentially fall to taxpayers.
In light of the May 2016 Auditor General’s report, we expect that the goal with the filing of these recent charges would be to encourage the province to take over the charges and enforce its own laws. Under the B. C. Environmental Management Act, the Court can order alternative remedies including but not limited to remediation, compensation and restoration of fish habitat.

 The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

________________

About the Author

Paula Lombardi is a partner of Siskinds LLP,  and practices in the areas of environmental, municipal, regulatory and administrative law.  Prior to joining Siskinds, Paula worked as an associate at a Bay Street law firm where her practice focused on occupational health and safety, environmental and regulatory matters.

Paula has a great deal of experience in: providing due diligence advice; dealing with contamination issues; handling of organic chemicals and hazardous wastes; obtaining environmental approvals; obtaining planning and development approvals; providing advice to municipalities; defending environmental prosecutions; and assisting companies with environmental and regulatory compliance. Paula has appeared before numerous administrative tribunals.