Nearly four years ago, on September 9, 2021, Peace River Coal was handed a penalty of $809,700 after it had, according to the BC Ministry of Environment, failed to comply with its environmental permit to prevent the discharge of selenium into Babcock Creek, Gordon Creek and Murray River.
The fine was notable as it was the largest ever fine handed down by the Ministry of Environment.
It was also notable, as the mine had been in care and maintenance since 2014.
Peace River Coal was found to have breached selenium discharge limits by as much as 350 per cent between 2016 and 2019, with an average overage of 200 percent.
At one site where water was sampled, selenium discharge limits were over permitted amounts 85 percent of the time in 2017 and nearly 80 percent of the time in 2018.
At another site, limits were above acceptable levels throughout all of 2016, 2017 and 2018, and 42 of 52 weeks in 2019.
The base penalty for having a discharge over the permitted amount was assessed at $22,000 “The Director proposed including separate administrative penalties for 40 days on which samples were taken which exceeded permitted discharge levels,” says the decision. “Based on those 40 selected days of non-compliance, the adjusted total penalty of $22,000 resulted in a total preliminary penalty assessment of $880,000 ($22,000 x 40).”
The company was sent multiple warning letters between 2016 and 2019, but did not resolve the issue.
Anglo American, who owned the mine at the time, did not dispute the charge that they failed to comply with the permit. However, the company argued that it should be exempt from the penalties as the mine was no longer in active operation, so the selenium was not a result of its conduct. It also argued that a permit amendment issued a few years earlier, deferred the construction of a second water treatment plant.
Despite the company’s argument that the selenium was not a result of their activity, Environmental Protection Officer Colin Meldrum says that the environmental permit requirements had “no caveats, provisos, or other conditions associated with the requirement to meet the Site Performance Objectives (SPOs). The implication is that the SPOs must be met at all times and under all conditions. This includes operational periods and periods of care and maintenance.”
An SPO is the specific limit or targets set in the environmental permit to regulate the discharge of substances, such as selenium, into the environment.
Selenium is a naturally occurring element at the mine. “It is not a by-product of coal mining per se,” says the decision from the director. “However, where natural materials containing selenium are exposed through surface disturbance from coal mining, there is a potential for selenium levels in the area to increase due to contact with surface water. Although selenium is an essential element for organisms, the introduction of selenium into the environment can lead to increased concentrations than would naturally occur in surface water, groundwater, soils, and vegetation. Consequently, selenium can bioaccumulate and may become toxic to sensitive aquatic life, birds, and mammals, including humans.
“The Permit allows methods other than the operation of a water treatment facility to improve effluent quality and required that SPOs for selenium be always met and under all circumstances, including operational periods and periods of care and maintenance and regardless of location.
The fine also includes a penalty of $4,200 for failing to provide required quarterly and annual reports, which the mine did not dispute.
“I do not consider the resulting penalty to be too large in the context of the facts of this case,” wrote Baird in her August 27 ruling.
“While the penalty is large, it, in my view is required to satisfy the goals of encouraging compliance and deterring others.”
In considering whether the contravention was repeated or continuous, “the Director noted that it was continuous except for April or May to mid-July each year. Only the contraventions in 2019 were considered in the penalty assessment in the Determination.”
The penalty was upheld, as it was determined that the mine “avoided costs by failing to comply with … the Permit, and that the use of a multiplier was required to remove the economic benefit associated with such failure, including with respect to avoided and delayed costs of making capital investments for the design and installation of appropriate pollution control equipment, and costs savings related to the operation and maintenance of such equipment; and, a lesser administrative penalty would be insufficient to compel compliance.”
The issue happened while the mine was owned by Anglo American, but earlier this year Conuma purchased the mine, and the penalties have come down on their watch.
However, according to Brian Sullivan, CEO for Conuma, the issue occurred under Anglo’s management, and it is their responsibility. “The penalties for Selenium related compliance issues were addressed in the purchase and sale agreement with Anglo,” says Sullivan. The liability for that compliance matter that occurred during Anglo’s period of ownership remained with Anglo and they have been handling this matter.”
There are an additional $4.4 million in penalties that have been assessed against the mine that are still being reviewed by the province.
Above: Inside the selenium treatment plant at Peace River Coal, May 2014. Below, the treatment plant. The mine was scheduled to bring on a second treatment facility in 2017, but the mine was placed into Care and Maintenance later that year due to falling coal prices. Despite not actively operating over the last decade, the mine has been penalized for allowing selenium to leech into nearby waterways from 2016 to 2019.
Trent is the publisher of Tumbler RidgeLines.
