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.

Mount Polley mine disaster: news and information

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. 

B.C. taxpayers on the hook for $1.2 billion in mine cleanup costs: chief inspector report

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.

Six years after Mount Polley disaster, expert recommendations not fully implemented: report

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.

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In October, B.C. Premier John Horgan made a visit to the Rio Tinto Alcan smelter on the banks of the Douglas Channel in Kitimat.

He praised the facility for being “a great example of how companies can improve conditions for workers and reduce pollution all while improving their bottom line.”

What he didn’t mention was the ongoing battle at Rio Tinto Alcan over a provincial permit that allowed the company to increase sulphur dioxide pollution by more than 50 per cent, or the union representing 800 workers at the smelter that appealed that permit, saying the increase in pollution was a direct threat to their health.

Exposure to sulphur dioxide aggravates the respiratory systems of asthmatics and is known to negatively affect the respiratory systems of children and the elderly.

At the heart of the controversy is a decision by the B.C. Ministry of Environment in 2013, which allowed the smelter to increase its sulphur dioxide emissions into the Kitimat airshed during a $5 billion expansion project. The ministry approved the increase in emissions under an environmental monitoring plan that would measure, but not prevent, the impacts of the pollution on human health until 2019, when the plan would be revisited.

B.C. did not require the company to install scrubbers, commonly used in smelters to remove airborne pollutants from emissions, a decision that still bothers Sean O’Driscoll, president of the smelter’s union, Unifor local 2301.

“Having a monitoring program ongoing, with suitable human health mitigation plans required to be implemented at a later day, has folks feeling like they, their children and neighbours are being treated like guinea pigs,” O’Driscoll told DeSmog Canada.

ICYMI: Rio Tinto Alcan Polluting Kitimat Airshed to Save Money, Tribunal Hears

ICYMI: Rio Tinto Alcan Externalizing Air Pollution onto Kitimat Households, Says Expert Witness

The B.C. Environmental Appeal Board previously told the union it had no right to challenge the environmental effects monitoring plan. But the court of appeals has now overruled that finding, kicking the original appeal — first launched in 2014 — back into action.

“This [appeal] opens a path for Unifor to challenge the mitigation plan on the basis that it is insufficient to protect workers and their families from growing levels of sulphur dioxide,” Jason Gratl, lawyer for local 2301, told DeSmog Canada.

O’Driscoll said the company was essentially given permission to subject workers and the community to a health risk to minimize costs.

“Our full expectations of the new Horgan NDP government is that they take another look at this issue and put the health of communities first,” O’Driscoll told DeSmog Canada. “Industry and stringent environmental standards need not be mutually exclusive.”

Gratl said the appeal will address whether or not it was appropriate for the government to approve the pollution increase without a clear plan to protect human health.

Governments increasingly approve projects with the explicit plan to work out details after the fact, Gratl said, adding pipeline approvals that come with more than 100 conditions are a prime example.

“What happened with Rio Tinto Alcan is the government said ‘let’s start making aluminum and we’ll figure out the environmental and social issues later.’ And they keep trying to push these issues further down the road.”

BC Using #Kitimat Smelter Workers as ‘Guinea Pigs’ for Air Pollution Monitoring, Union Says https://t.co/CcjzYKZcOE #bcpoli

— DeSmog Canada (@DeSmogCanada) November 6, 2017

Experts-for-Hire at Heart of Rio Tinto Alcan Concerns

Chris Tollefson, lawyer with the Pacific Centre for Environmental Law and Litigation, brought a previous challenge against the Rio Tinto Alcan on behalf of two Kitimat teachers: Lis Stannus and Emily Towes.

In 2015 Tollefson and his co-counsels provided an Environmental Appeal Board tribunal with evidence of alleged regulatory capture.

Regulators and statutory decision-makers within the Ministry of Environment were inappropriately close with Rio Tinto Alcan and relied heavily on science and analysis provided by the company’s hired scientists, Tollefson argued.

Tollefson said this case gives rise to the problems of “professional reliance” — the practice of using proponent-hired experts rather than independent analysts during environmental assessments.

ICYMI: ‘This is B.C.’s Version of the Duffy Scandal’: Government Officials Refer to Rio Tinto Alcan as ‘Client’ in Work Journal

ICYMI: Tribunal Hears Regulatory Capture Behind B.C.’s Decision to Increase Rio Tinto Alcan Pollution in Kitimat Airshed

In August, the B.C. government ordered a review of the professional reliance system, which rose in popularity in B.C. under the tenure of the BC Liberals as cuts to the civil service were made.

Tollefson said the reopening of Unifor’s appeal will start a new discovery process that may provide crucial insight into what decisions and decision-makers played a role in the permits and adaptive management plan being approved.

“We’re concerned that the Ministry of Environment relied far too heavily on Rio Tinto Alcan’s experts, on Rio Tinto’s preferred approach and did not subject the environmental effects management plan to the kind of rigorous scrutiny that it deserved; and that it rushed its approval of that management plan in a way that compromised its scientific integrity,” Tollefson said.

‘We Feel Like An Experiment’

Tollefson also said the appeal provides new ground for his clients to relaunch their legal challenge.

Stannus said that is something she plans to pursue.

“Since this permit was approved, we have learned a lot more about the problems of professional reliance, a lot more about the health impacts of sulphur dioxide,” Stannus said.

Kitimat resident Lis Stannus poses for a photogaph with Premier John Horgan during his October visit to Kitimat. “I walked up to Horgan and I said, ‘I’m from Kitimat and I’m worried about sulphur dioxide pollution,’ ” Stannus recounted to DeSmog Canada. Photo: Province of B.C. via Flickr

“It’s a little shocking to me that this is allowed to proceed. We feel like an experiment and I don’t recall ever giving consent to this experiment.”

Stannus said her ears perk up whenever she hears the new government criticize the practice of professional reliance.

“But they never bring Rio Tinto Alcan up,” Stannus told DeSmog Canada. “They never mention the fact that the project’s studies were bought and paid for by Rio Tinto.”

Kitimat Residents Try to Raise Concerns with NDP Government

Stannus said she sought out the premier on his last visit to the area.

Stannus and a community organization she belongs to, the Kitimat-Terrace Clean Air Coalition, have sent three letters to B.C. Environment Minister George Heyman, expressing their fears that Rio Tinto Alcan’s permit to increase sulphur dioxide emissions is a threat to their health. The group has repeatedly asked for meetings with the minister, Stannus said.

“I asked [the Premier] why they won’t meet with us and he said it is because they have only been in power for 100 days,” she said.

ICYMI: Kitimat Residents ‘Muzzled’ From Speaking Out On Rio Tinto Alcan’s Plan to Increase Air Pollution

In a statement to DeSmog Canada, Minister Heyman said he can “empathize with those who have concerns about air quality in their community.”

“I want to assure everyone that we will restore public confidence in government’s ability to protect our water, land and air,” Heyman said.

He added the environmental effects monitoring plan is currently under appeal with the Environmental Appeal Board.

“As such it would be inappropriate for me to comment further.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

As 2015 drew to a close and families across the country planned for New Year festivities, Sonia Furstenau was busy trying to figure out how many officials, journalists and photographers she could get up in a helicopter on January 6 if she divided the day into 30-minute departure times.

Furstenau, an elected representative for the Cowichan Valley Regional District, is a resident of Shawnigan Lake where a protracted battle to keep contaminated waste out of a local watershed is gaining new momentum.

Along with other members of the Shawnigan community and the Save Shawnigan Water campaign, Furstenau arranged to get elected representatives and media up in the air above Shawnigan Lake and, a mere five kilometres uphill, above a nearby contaminated waste site.

If it was going to take a day’s worth of helicopter rides to generate media attention for her community’s plight, then, well, “get to the choppa.”

Four years ago, Furstenau agreed to fill a one-year teaching position at Dwight School Canada, a prestigious international boarding school located on a sprawling 23-acre campus on Shawnigan Lake. The alpine lake setting and small, friendly community won her family over immediately.

“We moved here by accident,” Furstenau said with a laugh, adding her family agreed to give the school one year before returning to Victoria. During that first year in Shawnigan, however, her blended family of seven began to put down permanent roots.

“We fell in love with the lake, with the community and the Cowichan Valley.”

But as Furstenau was eyeing Shawnigan as the perfect place to settle down and raise her children, the B.C. government and waste disposal company South Island Aggregates (SIA) had identified the area for something entirely different.

Shawnigan Lake. Photo: Jayce Hawkins/DeSmog Canada.

In 2012, SIA, owned by parent company Cobble Hill Holdings Ltd., applied for a permit to dump 100,000 tonnes of contaminated waste soil into a local quarry located in the headwaters of Shawnigan Lake, a local source of drinking water for the 7,500 permanent residents of Shawnigan Lake. During the summer months, that number balloons to 12,000.

The B.C. Ministry of Environment granted SIA a 50-year permit, allowing the company to dump a total of 5 million tonnes of industrial waste containing furans, dioxins, chlorinated hydrocarbons, glycols, polycyclic aromatic hydrocarbons, benzene, toluene, xylene and other materials know to cause cancer, brain damage, and birth defects in humans.

The landfill site is flanked by streams that flow downhill into the Shawnigan Lake watershed.

SIA maintains the site is cradled in a 75-foot layer of nearly impermeable bedrock. The company estimates it would take approximately 103,000 years for contaminants to reach local groundwater and migrate into Shawnigan Lake.

South Island Aggregates' landfill site. Photo: Jayce Hawkins/DeSmog Canada.

SIA based these estimates on the geotechnical work of Active Earth Engineering. In the summer of 2015 a document was anonymously provided to the Shawnigan Residents Association that showed SIA and Active Earth Engineering signed a profit sharing contract for the 50-year lifespan of the landfill. SIA maintains the agreement was never acted on and eventually abandoned.

Yet the community is arguing the project review process was corrupted and that the B.C. Ministry of Environment, as well as the Environmental Appeal Board through which the community sought to have the permit pulled, relied too heavily on the expertise of Active Earth — a company they say had a clear conflict of interest.

A judicial review in the B.C. Supreme Court began on Monday, January 11 in Victoria. The review is expected to take two weeks to complete.

“It doesn’t take long to understand why this community is up in arms and so determined to fight what is going on here,” Furstenau said.

“Putting a contaminated landfill on a mountain at the headwaters of your drinking watershed above the lake that is the heart of your community is insanity. We do not accept this and we never will.”

Up on the mountain during the January 6 protest Furstenau’s sentiment seemed widespread.

On that cold morning nearly 500 residents gathered outside the gates of SIA’s private facility to prevent the latest shipment of contaminated soil from reaching the landfill site. Protesters held signs that read “pull the permit” and “Save Shawnigan Water” and children built snowmen in front of a line of blockaded work trucks.

“I think almost anyone can tell you this doesn’t on the surface seem to be logical,” Steve Housser, Shawnigan resident and former CBC journalist, said outside the landfill site.

Protesters at the landfill site, January 6, 2015. Photo: Jayce Hawkins/DeSmog Canada.

“The government says the science says it’s okay,” Housser said. “Unfortunately that science was bought and paid for by SIA.”

Housser who ran as a BC Liberal candidate in the Cowichan Valley riding during the last provincial election said revelations about the profit-sharing agreement between SIA and Active Earth engineers “completely undercuts their independence, their professional integrity and almost makes a mockery of the word science.”

He added the community does not feel it had a legitimate role to play in the decision-making process.

A "Save Our Shawnigan Water" sign sits on the site of the contaminated soil landfill, January 6. Photo: Jayce Hawkins/DeSmog Canada.

“Any say we had was ignored,” Housser said, adding the community has sent in a 15,500 signature petition, demonstrated at the legislature and held multiple rallies. “I don’t know what the hesitation is to stop this thing.”

“If it can be done to us, if somebody thinks they can dump toxic, contaminated waste into a watershed in Shawnigan, who’s next?” he said.

Dwight Canada School student Dimitri Monti-Browning also attended the protest along with a handful of classmates.

“I feel that a lot of the Shawnigan Lake community and a lot of people in B.C. and on Vancouver Island really care about Shawnigan Lake and don’t want to ruin this beautiful place,” Monti-Browning said.

He added the night before the event he was with his grandmother, who owns a home on Shawnigan Lake Road. “I went over to her house last night and she was crying because we don’t want to lose our water and as I said before this beautiful place.”

“We want to save our water,” he said.

Dwight School Canada student Dimitri Monti-Browning, centre right, at the protest with classmates. Photo: Jayce Hawkins/DeSmog Canada.

Calvin Cook, president of the Shawnigan Resident’s Association, said the community has a lot of legitimate concerns about the risk of seismic events, like the December 29 4.7 magnitude earthquake that shook houses in Victoria, or what happens over time when the plastic liners used in the pits begin to break down.

“The quarry itself is 15 per cent dug. Still 85 per cent remains to be blasted,” Cook said. “We’ll have containment cells next to and adjacent to an active blasting site. That is unprecedented. That has never occurred before.”

“Shawnigan Lake and its citizens are being used as a test laboratory for this facility.”

On January 6 South Island Resource Management, the company managing the disposal site since June 2015, release a statement, saying, "We are fully compliant with the Ministry of Environment Waste Discharge Permit and with the Ministry of Mines Permit.There is no quantifiable risk from the site to human health in the Shawnigan Lake watershed and we continue to hope that reasonable debate will prevail.”

In November a breach of surface runoff from the site prompted the Vancouver Island Health Authority to issue a no-used water advisory to Shawnigan lake residents. 

Cook said despite what he sees as “unacceptable risks,” years of community opposition has fallen on deaf ears.

“Our minister [Mary Polak] and our Premier have steadfastly refused to act,” he said. “All we are asking them to do is put a stay in place to prevent further contaminants being brought to this site until a complete judicial review has been heard.”

During the ongoing judicial review, B.C. Supreme Court Justice Robert Sewell will hear evidence the permit holder lacks credibility and relied on faulty engineering advice. 

Cook said while that review was waiting to hit the courts in November, new contaminated industrial waste was being trucked in from Port Moody.

“When we win, the site will have to be remediated,” Cook said. “Those costs will be borne by every citizen in B.C. Why further increase those costs? Let the judicial review take place. Let all the facts be heard by a judge.”

From an ad hoc helicopter landing pad one the shore of Shawnigan Lake, Port Moody city council member, Zoe Royer said she is “very concerned” about industry from her riding shipping contaminated waste to this community.

“I’m not here representing the city of Port Moody,” Royer said. “I’m here because I’m deeply concerned about the situation in Shawnigan Lake, about the contamination that is happening in this community.”

“My heart goes out to the people in this community. This was a pristine watershed and many, many people depend on it for their drinking water and their livelihood.”

“We have to stand together and help to stop this,” Royer said before boarding the helicopter for an aerial view alongside two other Port Moody city councilors.

Georgia Collins. Photo: Jayce Hawkins/DeSmog Canada.

Shawnigan resident Georgia Collins, who lives on the lake beside the makeshift helicopter pad, said when the company first came to the community they said the landfill site would benefit everyone.

“They said it was something that would be very helpful to the community, that it would be cleaning up contaminated sites that are in the watershed already,” Collins said. “But it turns out that it’s a permit to dump 5 million tonnes of contaminated soil over 50 years and that soil can come from anywhere.”

Collins’ young son played around her legs as we spoke. “We do have elected representatives and we expect them to protect our water,” she said. “We expect them to protect our livelihoods. What we’ve seen is them constantly ignoring our community.”

She added that since 2012 the company and the provincial government tried to manage the community to limit public backlash.

“But we’re not going away.”

“It’s hard to see this going on, that this is possible in any community,” she said. “There is the beautiful silver lining that this has galvanized the people and I love the people here. They’re my community and I want to protect them.”

Collins said Environment Minister Mary Polak has the authority to place a hold on the permit at any time.

“We’re a community in unrest and we deserve to have this put on hold. We deserve to have trucks stopped while we wait for judges to make the right decision.“

Images by Jayce Hawkins for DeSmog Canada.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The Environmental Appeal Board recently ruled B.C. was in its right to grant Rio Tinto Alcan a permit to increase sulphur dioxide emissions (SO2) from its 60-year old Alcan aluminum smelter in Kitimat.

The permit, granted in 2013, allowed Rio Tinto to increase sulphur dioxide emission as part of the company’s modernization of the aging Kitimat aluminum smelter. The modernization project, which nearly doubles the plant’s production, decreases the release of greenhouse gas emissions but raises sulphur dioxide emissions by 56 per cent.

The B.C. Ministry of Environment granted Rio Tinto permission to modernize the smelter but did not require the company to install scrubbers, commonly used in smelters to remove airborne pollutants from emissions.

Two Kitimat elementary teachers, Lis Stannus and Emily Toews, challenged the permit through the B.C. Environmental Appeal Board, saying the increased pollution would negatively and unnecessarily impact Kitimat residents.

Sulphur dioxide is a pungent pollutant released from the combustion of fossil fuels, such as the petroleum coke used to smelt aluminum. It is known to irritate skin, mucous membranes and lungs. Exposure to sulphur dioxide is also known to aggravate the respiratory systems of asthmatics, children and the elderly.

Stannus said she is disappointed in the December 23 ruling.

“Being a teacher of young children I see a lot of respiratory illness as it is,” Stannus told DeSmog Canada. “I will also now question whether any respiratory problems are a result of these increased emissions.”

According to a 2012 study published by Northern Health, Kitimat has a 60 per cent higher incidence of death from bronchitis, emphysema and asthma than the B.C. average.

Stannus said the Environmental Appeal Board made nine recommendations to Rio Tinto Alcan, seven of which “speak to health studies or the need to monitor emissions as to impacts on health.”

Appellant Lis Stannus in Kitimat, B.C. Photo: Carol Linnitt.

“We have been saying all along that there needs to be more study as to the health impacts on Kitimat residents before the permit amendment is granted to increase emissions,” she said. “It would have been prudent to conduct these studies before the permit was granted rather than after.”

She added the decision acknowledges the fact that sulphur dioxide can be harmful to human health.

“Any increase in respiratory illness should not be considered trivial when it has to do with an individual's health,” she said.

Kitimat Mayor Phil Germuth also expressed disappointment with the decision.

“We’re a bit disappointed in the decision,” he said. ”I believe the scrubbers should have been installed right from the beginning.”

Germuth noted he is not criticising Rio Tinto Alcan for the decision. “It’s the government’s responsibility to protect human health and the environment, not Rio Tinto’s.” He added government subsidies could play a role in the development of expensive technologies like scrubbers, to ensure a balance is struck between development and protecting human health and the environment.

Germuth said Kitimat is “thankful” to Rio Tinto for investing $5 billion in the smelter and “securing the future of the aluminum industry in B.C.”

But, he added, this recent decision has created uncertainty for Kitimat residents and future industries eyeing the region for further development.

“Besides the human health and environmental effects of SO2 in the atmosphere, my other concern is that having this much SO2 in the atmosphere could also potentially restrict any other industry from coming here that might have SO2 emissions as the airshed might already have too much in it.”

Emissions can be seen rising from the Rio Tinto Alcan Kitimat smelter on June 4, 2015. Photo: Carol Linnitt.

A 2014 report commissioned by the B.C. government found the Kitimat community and environment can handle increased industrial expansion, including more oil, gas and smelting operations.

Environment Minister Mary Polak said the Kitimat airshed can “safely accommodate” high industrial growth.

During hearings conducted by the Environmental Appeal Board, Brian Scarfe, economist and cost-benefit analyst from the University of Victoria, testified B.C. and Rio Tinto Alcan were externalizing the costs of sulphur dioxide emissions onto the health of Kitimat residents.

Scarfe told the board the overall cost placed on human health and the environment will outstrip the cost of installing scrubbers on the smelter.

“I don’t like to think of this as a zero sum game, but that is what we have,” Scarfe told the board. “Costs are going to fall one way or another, benefits are going to fall one way or another.”

“We can think about households on one side and RTA on the other: clearly if nothing is done to limit SO2 there will be costs to the environment and costs to households in the area,” he said.

A December 24 statement released by Rio Tinto B.C. General Manager Gaby Poirier states “there is more work to do to address community concerns regarding air quality in the Kitimat Valley.”

“In providing their confirmation, the EAB included a series of recommendations,” Poirier wrote. “Over the coming months, we will be working to fully assess them and we will continue to involve the local community including residents, stakeholders and our employees as we do so, noting that some of the recommendations have already started to be implemented.”

A Rio Tinto Alcan poster explains why SO2 scrubbers are not necessary at a public information centre in Kitimat, B.C on June 4, 2015. Photo: Carol Linnitt.

The fight against Rio Tinto Alcan’s emissions permit was one of the largest cases ever heard by the B.C. Environmental Appeal Board, the same body that ruled in favour of the contentious contaminated soil landfill site near Shawnigan Lake. During the lengthy trial the tribunal heard of a cozy relationship between Rio Tinto Alcan and the B.C. government and allegations of regulatory capture. 

Lawyers for Stannus and Towes were unable to provide comment on the ruling or whether they will pursue an additional appeal process.

Kitimat Unifor local 2301 is also appealing the Rio Tinto Alcan permit through the Environmental Appeal Board after winning the right to do so through the B.C. Supreme Court.

“Expanding the smelter without a scrubber is a terrible health risk to my community,” Sean O’Driscoll, Unifor Local 2301 President, said in a statement.

“We’re very pleased that Rio Tinto’s proposal will have to go through an environmental assessment. It’s a shame that it takes a Supreme Court Judge to force the B.C. Liberal government to do the right thing.”

Image: RTA

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Lis Stannus remembers how serious the problem of acid rain was in Ontario when she lived on a farm near Lake Huron as a child. So when Rio Tinto Alcan informed Kitimat residents of its plans to increase sulphur dioxide pollution — a key contributor to acid rain —she couldn’t understand why no one fought back.

“Nobody was speaking out,” Stannus said, “and I found it amazing that those people who should have been speaking out weren’t.”

Rio Tinto Alcan received a permit from the B.C. government in 2013 that allowed the company to increase production of aluminum at its smelter in Kitimat, leading to a 56 per cent increase in sulphur dioxide emissions. Currently, both the government and Rio Tinto Alcan are defending that permit in front of a tribunal acting for the B.C. Environmental Appeals Board in Kitimat.

Rio Tinto Alcan says its ‘modernization’ of the smelter is now 94 per cent complete although the tribunal has the power to rescind the province’s permit, putting the immediate future of the plant in question.

The Muzzle Effect: Small Town, Big Company

Stannus said when she first heard about the emissions increase she contacted the city, the Kitimat health authority and local environmental groups to push back against the company’s plans, to no avail.

But it didn’t take long for Stannus to realize “there was a lot of muzzling” going on, she said. “We are all muzzled here.”

Part of the problem, Stannus said, is that the aluminum plant is a major job provider for Kitimat.

“Without Alcan, Kitimat would be nothing,” she said. “Kitimat literally wouldn’t be here.”

Alcan, now owned by multi-national mining magnate Rio Tinto, used to be fondly referred to as “Uncle Al” by Kitimat residents.

The company created Kitimat as an artificial township in the 1950s to support a growing workforce. Although the planned city was originally created with 150,000 residents in mind, its current population is between 8,000 and 9,000 — about 1,400 of which rely on the smelter for employment.

“It’s like nobody would speak out if they worked for Rio Tinto Alcan,” she said. “You just wouldn’t speak up.”

Stannus said she recently spoke to an employee of Rio Tinto Alcan who said he was reprimanded by company officials for posting about sulphur dioxide emissions on his Facebook page.

Morris Amos from the Haisla First Nation said his band council and Rio Tinto Alcan entered into a $22 million “Legacy Agreement” that acts as a gag order on Haisla officials.

“Part of the language of the agreement, which is really more of a contract, includes a clause that talks about the Haisla Nation never coming forward to question anything that Alcan does as long as the agreement is in effect,” he said.

The Legacy Agreement, signed in 2010, guarantees employment, business opportunities and a trust fund for the Haisla Nation as an outcome of Rio Tinto Alcan’s modernization project.

Amos, brother of former elected Haisla chief Gerald Amos, said the agreement means his nation can’t officially question the increase of Rio Tinto Alcan’s sulphur dioxide emissions.

“I take that as a muzzling clause,” he said. “It remains to be seen if that has any force or effect legally — it hasn’t been challenged yet.”

Amos says the Legacy Agreement explains why the Haisla Nation hasn’t played a role in fighting for pollution reductions.

The Legacy Agreement, “is part of the reason why there’s no band council presence in this Environmental Appeals Board hearing,” he said.

Amos said he can speak out about the Legacy Agreement and Rio Tinto Alcan’s sulphur dioxide emissions because he’s not a part of the band council.

“I work for a heredity chief, so that’s another thing altogether.”

Rio Tinto Alcan’s Permit to Pollute

B.C. approved a permit in April 2013 that granted Rio Tinto Alcan the right to increase its sulphur dioxide emissions by 56 per cent.

Stannus, along with fellow Kitimat resident Emily Toews, is appealing that permit approval in the Environmental Appeals Board hearing, arguing the increase in sulphur dioxide emissions unnecessarily threatens human health.

“I was really mad,” Stannus said. “Because it seemed like an infringement of our rights and it went against everything the government told us we were working towards: reducing emissions, keeping the air clean.”

Stannus realized she needed to speak out. “ I thought, ‘I can do it. I don’t have anything to lose.’”

Pollution Reduction Measures Not Required by Province

Rio Tinto Alcan’s ability to reduce its sulphur dioxide emissions is central to the appeal hearings.

Giving testimony before the appeal panel, Ian Sharpe, director of environmental protection with the B.C. Ministry of Environment, said before granting the permit he required evidence Rio Tinto Alcan “could and would” install pollution reduction technology called scrubbers “should there be a need to have emissions lower than what they applied for.”

But rather than require the company to install scrubbers, which would prevent the increase of sulphur dioxide emissions, the province granted Rio Tinto Alcan a permit to increase its emissions for an indefinite amount of time.

Sharpe told the panel he decided not to impose sulphur dioxide limits on Rio Tinto Alcan because both B.C. and the federal government are considering updating their own standards in coming years.

Stannus said she doesn’t understand why the province will allow emissions to go up if the company has already prepared for the installation of scrubbers.

“I learned there was a place put at the plant for wet scrubbers. That was a backup plan,” she said. “I thought, ‘if scrubbers aren’t feasible, why would they do that?’”

Stannus thinks it comes down to penny pinching. Rio Tinto Alcan initially announced its modernization project would cost just over $2 billion but that number has recently skyrocketed to nearly $5 billion.

The Environmental Appeal Board hearings are currently taking place in Kitimat and are now in their third week. The panel could rescind Rio Tinto Alcan’s permit or order the company to install scrubbers.

Image Credit: Lis Stannus courtesy of Doug Keech.

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