Federal watchdog urged to investigate Canada’s ‘longstanding failure’ to stop B.C. Elk Valley coal mine pollution

Report from the University of Victoria’s Environmental Law Centre says new proposed mines could further poison waterways and wipe out species at risk

Canada’s parliamentary environment watchdog is being urged to investigate whether years of alleged negligence by federal officials have allowed pollution from coal mines to wipe out species of fish and poison drinking water in B.C.’s Elk Valley.

The calls for the new federal investigation follow repeated pleas from U.S. government officials based on two decades of scientific evidence about how selenium and other pollutants have flowed into cross-border waterways from Teck Resources coal mines.

A team from the University of Victoria Environmental Law Centre compiled the evidence in a report sent to the federal environment commissioner, Jerry De Marco, who works in the office of the federal auditor general, Karen Hogan.

“We submit that no issue of sustainable development could be more significant than the government’s longstanding failure to use the Fisheries Act and other federal powers to address catastrophic coal mine pollution in the Elk Valley,” the report says.

“This regulatory failure has directly contributed to one of the most serious and permanent environmental disasters in Canadian history.” 

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Law students Jesse Langelier, Russell Chiong and Ellen Campbell drafted the report under the supervision of the centre’s legal director Calvin Sandborn and sent it on behalf of conservation group, Wildsight.

It was not immediately clear how soon the commissioner would be able to review the report. Investigations in the commissioner’s office often take months of preparations before getting underway and years to complete.

There is a growing urgency to find out why the federal and provincial governments have not cracked down on pollution from the mines because several new coal mine proposals for the Elk Valley are in different stages of review by the Impact Assessment Agency of Canada and B.C.’s Environmental Assessment Office, Sandborn said.

The report also questioned whether Canada was violating its international obligations under the Boundary Waters Treaty, signed in 1909. 

“The governments of Montana, Idaho and the United States have long complained about Canada’s remarkable failure to control the pollution now poisoning American waters and fish downstream from the Elk Valley coal mines,” said the centre’s report. “Those governments are now desperately attempting more definitive action to prompt Canada to address its international obligations — and to stop polluting its neighbour.”

The B.C. Environmental Assessment Office told The Narwhal in an email that the process to assess three new coal mines will look at water quality, the effects on fish, “cumulative effects from existing and proposed projects” and mitigation of adverse effects.

But, if approved, the new mines could increase pollution from the mountains of waste rock that leach selenium, calcite and other pollutants, the report warned.

“Such ongoing expansion will likely lock in higher long-term pollution levels for generations to come,” says the University of Victoria report.

The centre’s report singled out officials from two federal departments, Environment and Climate Change Canada and Fisheries and Oceans Canada, alleging that their officials failed to wield their powers under existing environmental laws and instead deferred to the B.C. government. This despite a blistering 2016 report from then provincial auditor general Carol Bellringer who noted that, after 20 years of tracking dramatic annual increases of selenium in the watershed around the mines, the province took no substantive action.

Bellringer’s report said provincial compliance and enforcement of mining rules were deficient and “inadequate to protect the province from significant environmental risks.” But, five years later, Elk Valley provincial mine pollution discharge permits continue to set levels that far exceed B.C.’s Water Quality Guidelines for aquatic species, wildlife and drinking water.

The province, together with the Ktunaxa Nation Council and other agencies, has come up with the Elk Valley Water Quality Plan, which, the province says, “provides a long-term strategy to stabilize and reduce concentrations of mine constituents in the watershed.” Under the Environmental Management Act, Teck must meet B.C. selenium water quality guidelines in Lake Koocanusa, which straddles the border, according to a ministry statement.

But those measures are grossly inadequate, says the University of Victoria report, pointing to increasing selenium levels and Canada’s refusal to at least match selenium standards across the border in the United States.

Senators from the U.S. want the Elk Valley pollution problem referred to the International Joint Commission and say Canada appears to be violating the Boundary Waters Treaty. In a surprising twist, Canadian commissioners have also been accused by their U.S. counterparts of suppressing scientific information on the Elk Valley selenium discharges.

When asked about its environmental oversight of Teck, a spokesperson for the B.C. Environment Ministry said Teck has recently been subject to “strengthened investigations and compliance requirements” and, over several years, has been fined $720,000 for environmental violations.

More notably, in March, after the federal government finally took action over the persistent pollution, Teck was fined $60 million for violations that occurred in 2012. However, as part of the plea bargain, the Crown dropped approved charges for pollution that occurred from 2009-2011 and from 2013-2019.

“A question arises: were charges long withheld as part of some agreement with the company and the province to clean up the selenium problems?” the report asks.

“If so, just where is that effective cleanup?”

Teck told The Narwhal in a statement that  the company has made significant progress in implementing the Elk Valley Water Quality Plan and water treatment facilities now in operation are removing almost all selenium, with more plants planned.

“We expect to have capacity to treat up to 54 million litres of water per day later this year — nearly three times our 2020 treatment capacity,” said spokesperson Dale Steeves.

“We have spent more than $1 billion so far to implement the Elk Valley Water Quality plan. Between now and 2024 we plan to invest up to a further $655 million in work to protect the watershed,” he said.

However, the Environmental Law Centre report says the water treatment plants have not lived up to company promises, some of the proposed plants are based on unproven technology and there is no plan to treat the water in perpetuity.

“Worse, there continues to be an enormous shortfall — over $500 million in company security/bonding to protect taxpayers from liability,” it says.

Westslope cutthroat trout
Westslope cutthroat trout is listed as a species of concern under the Species at Risk Act. In fish, selenium poisoning can cause deformities and reproductive failure. Photo: Jayce Hawkins / The Narwhal

The history of concerns about pollution from the coal mines stretches back to 1995 when studies first indicated that selenium leaching from waste surrounding the coal mines was harming fish in waterways such as the Upper Fording River.

Westslope cutthroat trout, a species of special concern under Canada’s Species At Risk Act, are now on the verge of extirpation. As the trout are a sentinel species, it is an indication that the entire Elk Valley watershed is in deep trouble, says the Environmental Law Centre report.

“The population is likely doomed, yet this outcome was long predicted,” it says 

Adult population counts of the fish fell from 1,573 in 2017 to 104 in 2019, according to a recent report released by Teck.

However, despite studies showing selenium causes deformities and reproductive problems in fish, Teck spokesman Steeves said preliminary findings of a team of independent experts, put together by the company, indicate selenium was not a primary contributor to the decline.

“Teck is working collaboratively with government and Ktunaxa Nation Council to develop a westslope cutthroat trout recovery plan,” he said.

The Ktunaxa Nation, in a community impact statement made during the recent Fisheries Act Teck prosecution, said the pollution is alienating Ktunaxa people from their culture.

“Knowing that the fish habitat is impacted by these polluted waters leads to concern for the safety of the fish as well as for Ktunaxa consuming them. The result is an alienation of our people from our lands, waters and cultural practices,” it says.

The pollution also affects drinking water and seven wells have been found to have selenium levels that exceed guidelines. Teck is providing bottled water to those who rely on the wells and the company paid for a new well for the District of Sparwood after selenium levels exceeded drinking water guidelines.

But many British Columbians remain unaware of the crisis in the rivers and lakes around the Elk Valley because, unlike an oil spill or melting glaciers, selenium is an invisible crisis, said Randal Macnair, Wildsight’s Elk Valley conservation coordinator.

“The water in the Elk Valley flows through and looks great, but the selenium levels keep marching up. Sparwood had to replace a well, people are on bottled water, but it’s out-of-sight out-of-mind and that’s why reports like this are so important,” Macnair said.

Sandborn agrees that most people are unaware that a Canadian company is poisoning fish and polluting rivers that run into the United States and are usually shocked to discover that the government is taking so little action.

One of the big questions is why the law is not being enforced, Sandborn said.

“There are powerful forces at play. There’s a lot of money and jobs at play and there is a lack of taking into account the values that are being destroyed. It’s very short-term thinking,” he said.

Decisions on whether to conduct audits or inquiries into whether government programs are effective are made by the Office of the Auditor General and one consideration is the significance of the issue, the office told The Narwhal in an email.

Reports from the Commissioner of the Environment and Sustainable Development go to a parliamentary committee and “it is through the committee hearings process that Parliament holds government to account,” it said.

Environment and Climate Change Canada did not respond to questions before deadline.

Updated at 10 p.m. PT on July 16, 2021, to remove an incorrect reference that the Environmental Law Centre report referred to pollution resulting in the elimination of insect populations and to clarify that the report was recommending that Canada should at least match U.S. selenium standards.

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