Mount Polley loses appeal of $9,000 penalty for violating new wastewater permit

The company responsible for Canada’s largest tailings spill failed to meet new provincial conditions for a wastewater permit in the wake of a 2014 mining disaster, B.C.’s Environmental Appeal Board has ruled.

The ruling shoots down an appeal by Mount Polley Mining Corp., a subsidiary of Imperial Metals. The B.C. Environment Ministry previously issued the $9,000 administrative penalty last December after concluding the company had failed to investigate and test long-term water treatment systems — a condition of the permit, which was amended as a result of a major tailings dam collapse.

The 2014 Mount Polley disaster sent 24-million cubic metres of water and tailings effluent into surrounding lakes and streams, including Quesnel Lake.

After the disaster, the company was given permission, on a temporary basis, to discharge wastewater into Quesnel Lake. The permit, which expires on Dec. 31, 2022, was amended in 2017 to include requirements for designing and testing “mine influenced water,” but Mount Polley missed several deadlines and was sent numerous letters warning it was out of compliance, according to the new ruling by the appeal board.

The company had attempted to appeal the penalty by claiming that there had been no contravention because it was impossible to meet some of the new requirements and deadlines. It also had argued that if there was non-compliance, it was not major, so the fine was out of proportion.

But in the new ruling, Teresa B. Salamone, chair of the Environmental Appeal Board, rejected the company’s arguments and concluded that the penalty should stand since the company failed to do its due diligence and “take sufficient steps” to avoid violating the terms of its permit.

“I find that [Mount Polley Mining Corp.]’s failure to comply with a term of its permit for more than two years undermined the integrity of the legislative scheme and interfered with the ministry’s ability to protect the environment from the potential impacts of waste discharge,” she wrote in the Sept. 3 decision.

However, the company did begin design and construction of the water treatment systems and “the contravention was not deliberate,” which is why there was not an additional penalty, she wrote.

Imperial Metals CEO Brian Kynock did not return calls from The Narwhal before publication. But in its appeal, the company had argued for a lower fine of $900, alleging that the problem was “administrative” in nature and did not prevent the ministry from protecting the environment.

Salamone disagreed, describing the infraction as a “major” violation since the company failed to meet the terms of its permit for more than two years. Although B.C. regulations allow for a maximum fine of $40,000 for this type of offence, Salamone said a fine at the lower end of the scale was appropriate since the actual or potential impact of the violation was low.

An independent investigation found that the Mount Polley tailings dam was built on a glacial lake that weakened its foundations, but, seven years after the dam collapsed, the company has not been disciplined or fined for the 2014 disaster. 

Years later, Doug Watt of Concerned Citizens of Quesnel Lake is baffled that the company fought such a small fine related to the terms of its new permit.

“We feel that Mount Polley is doing all they can to minimize how much work they have to do to protect the environment and, the least work they can do, is to continue to discharge their effluent, basically untreated, into Quesnel Lake,” he said.

Calvin Sandborn, legal director of the University of Victoria Environmental Law Centre, said companies will sometimes fight small fines because they don’t want their record besmirched or if there is concern that it could set a legal precedent. For example, if a violation continues, fines could escalate on a daily basis, he said.

Although $9,000 sounds like a miniscule fine for a mining company, it is larger than most fines issued in B.C. and underlines the need for mining law reform, said Sandborn. He has recommended that the province should act faster to tighten up its mining legislation.

“The whole point of having significant fines is to encourage people to spend the money and do things better,” he said.

“We have got this pathetic record of enforcement of either not enforcing or enforcing with very small fines in an industry that can do long-term grievous damage to the environment,” he said. 

Concerned Citizens of Quesnel Lake wants the mine’s wastewater pipe removed from the bottom of Quesnel Lake and is asking the province to demand full treatment of contaminants before effluent is discharged into the environment.

“I fear that this miniscule penalty will not prompt the company to do the right thing. It’s time that the B.C. government increase its sanctions to ensure compliance, especially before renewing the mine’s permit in December 2022,” Watts said.

Watts explained his group believes the company hasn’t been able to develop an acceptable plan to deal with waste effluent for two years.

“So now this leaves us in a situation where, in just over a year, they either have to have alternative technology to replace the pipe or authorization to continue to use the pipe,” he said.

An application to permanently discharge water into Quesnel Lake, will require a major permit amendment, with consultation and public meetings, said Watts, who suspects the company will be granted a temporary permit because they have nowhere else to put the water. 

The company previously announced it would partially re-open the mine this fall, but it is not known whether those plans are still on track. Meanwhile, effluent continues to be discharged into the lake because of the build up of water on site, Watts said.

“They have a water treatment plant, but it can only handle about two-thirds of the amount they are allowed to discharge through their permit,” he said.

After the dam disaster the company pumped water for a couple of years but then stopped because of technical difficulties, and the water has now built up.

An emailed government statement said the ministry is pleased that the monetary penalty has been upheld and it will “continue to monitor and assess compliance at the site.”

It is difficult to assess long-term effects on the lake as the plume is extremely diluted, but residents notice problems such as slime on the rocks, discoloration in the water, plugged filters and, this year, there was a blue-green algae bloom Watts said.

Ugo Lapointe of the watchdog group MiningWatch Canada said even though the $9,000 fine is a “pitiful sanction” at least there’s a ruling on the record that has confirmed the company failed to meet its permit requirements.

“We’re obviously glad it was upheld, but this paltry fine is a good indication of the degree of corporate capture of the regulatory system in B.C,” he said.

“Now it is important that the government really push for this company to do the right thing and doing the right thing means figuring out a water treatment system. They need to cough up the money and they have not done so,” he said.

The Mount Polley water processing units take off some of the suspended matter, but do not remove chemicals such as selenium and copper, Lapointe said.

“The onus is on government to say ‘no more fooling around or you are not going to get your December 2022 permit,’ ” he said.