A Canadian mining company in British Columbia’s Elk River Valley must pay $60 million in fines for leaching toxic contaminants into downstream waterways, including Lake Koocanusa and the Kootenai River in Montana, causing harmful impacts to native fish species on both sides of the international border.
In what amounts to the largest sentence ever brought under the Canadian Fisheries Act for pollution violations, federal prosecutors with Environment and Climate Change Canada (ECCC) laid the fines against Teck Coal Limited, a subsidiary of Teck Resources, which pleaded guilty Friday to two counts of unlawfully depositing deleterious substances into water frequented by fish.
Specifically, Teck executives admitted their operations on the Fording River, a tributary of the Elk River near Elkford, B.C., as well as at nearby Greenhills, caused the mining contaminants selenium and calcite to leach from spoils of waste rock and into downstream tributaries, having an adverse effect on native westslope cutthroat trout, including causing fish deformities and mortalities.
By 2020, Teck’s own research showed westslope cutthroat trout populations in the Fording River had almost collapsed, with 93% of the adult population disappearing, even as the company has invested heavily in treating selenium and wastewater at its mines.
During a provincial court hearing Friday in Fernie, British Columbia, Crown Prosecutor Alexander Clarkson said the Canadian government, following a comprehensive investigation, initially approved charges under a 10-count indictment alleging violations occurred on a daily basis spanning a period beginning Jan. 1, 2009 and running through Nov. 30, 2019. However, upon reaching a resolution with Teck, Clarkson said “the Crown has agreed it will not proceed on the balance of the charges,” and assessed its fines based on contaminations that occurred between Jan. 1, 2012 and Dec. 31, 2012, adding that the fines break down to $80,000 per daily offense.
“It’s the largest-ever penalty assessed under the Fisheries Act,” Clarkson said of the fine, noting that it represents only a fraction of the $4.647 billion Teck reported generating in revenue in 2012.
“A $60 million penalty is still a significant deterrent even in the context of a company with revenues in the billions,” he added.
Prior to Friday, the largest penalty ever imposed for environmental infractions in Canada was $7.5 million, resulting from the breaching of a tailings pond in Montreal, Quebec, making the judgment against Teck the most severe on record by a magnitude of eight.
Clarkson also conceded the punishment amounts to a mere fraction of what the government could have levied under a statutory sentencing range allowing it to impose fines of up to $1 million per day, with each day that contamination occurred representing a separate offense. Still, he said Teck’s acceptance of responsibility and its remorse were critical mitigating factors in making the determination, and allowed the government to bypass what would have been the largest environmental crimes trial in Canadian history, which Clarkson said could have dragged on for years while straining public resources.
“Teck has also spent substantial sums on water quality treatment, and has committed to spending even more on future treatment,” Clarkson said. “Certainly the facts indicate a company that is taking these deposits of selenium and calcite quite serious.”
Richard Peck, an attorney representing Teck at Friday’s proceedings, spoke at length about his client’s corporate integrity and “strong public interest in the protection of the environment,” including its extensive water quality treatment plan in the Elk River.
“Its actions in 2012 fell below the requisite standard and it fell below its own standard,” Peck said. “It has to do better and it will do better.”
Still, even as Teck invests hundreds of millions of dollars in new water-treatment technology, scientists say there isn’t any proven evidence to show the process is reversing or even stabilizing contamination trends at the U.S.-Canada border. Instead, the extent of the contamination in Montana and Idaho appears to be even more widespread, with new data revealing concentrations of selenium in fish tissue that is higher than previously thought.
And Friday’s fines weren’t the first time Teck was found to have violated the Fisheries Act. In 2017, the company, which operates five metallurgical coal mines in the Elk River Valley, was fined $1.4 million after a problem with its West Line Creek water treatment facility north of Sparwood, B.C., resulted in the death of dozens of westslope cutthroat trout and bull trout in 2014.
Meanwhile, Teck is moving forward on an expansion of its mining complex on the Fording River, which is the subject of this week’s charges.
“They would be roughly doubling the size of the Fording River Mine,” said Lars Sanders-Green, of the B.C. conservation organization Wildsight, which has been tracking the issue of transboundary pollution for years. “So we’re staring down at a half-century more of coal mining in this same area. And while both Teck and the Canadian government talk about water treatment in a very positive way, it’s really just putting a Band-Aid on a longer-term problem that is going to come back and bite us for generations into the future.”
For its part, Montana recently took steps to address the problem of pollutants leaching downstream from Teck’s B.C. mining operations by adopting its own site-specific water quality standard for selenium at the international boundary, a protective value crafted through years of scientific work to safeguard fish species in Lake Koocanusa and the Kootenai River.
Despite strong support from state environmental regulators for Montana’s new selenium standard, which earlier this month received final approval by the U.S. Environmental Protection Agency, state Republican lawmakers resisted adoption of the administrative rule, and then attempted to rescind it altogether, saying adopting a protective standard on Montana’s waterways was unfair to Teck.
The architects of the failed bill to repeal the selenium standard, Sen. Mike Cuffe, R-Eureka, and Rep. Steve Gunderson, R-Libby, represent legislative districts encompassing portions of Lake Koocanusa and the Kootenai River, and both participated in the process to develop a new site-specific selenium standard at Lake Koocanusa. Still, Cuffe and Gunderson said the process to develop the standard was “rushed” and urged fellow lawmakers to reverse it, emphasizing Teck’s commitment to expanding water quality treatment technologies at the U.S.-Canada border as proof that the corporate mining giant was acting in good faith.
“Teck expects to have the capacity to treat 7.5 million liters per day later this year, and they’ve been treating water in the Elk River Valley since 2015,” Gunderson told members of the Senate Natural Resources Committee earlier this month, in making his case for repealing the selenium standard. “That’s a whole bunch of water, folks. A whole bunch of water. Mining has been going on in the Elk River of Canada for 140 years, and we have seen no impacts to the fisheries. Yet the data of this water treatment has been discounted.”
In fact, impacts to fisheries on both sides of the border are well documented, a point the newly appointed director of the Montana Department of Environmental Quality (DEQ) Chris Dorrington emphasized at the hearing.
“The data taken from water in Lake Koocanusa and from fish in Lake Koocanusa show that the selenium level in the water column is harming fish right now,” Dorrington said. “These aren’t imaginary fish in lakes all over the U.S. These are fish in this lake right now.”
Similarly, Sen. Jill Cohenour, D-Helena, the Montana Senate Minority Leader who also sits on the Senate Natural Resources Committee, wondered why Montana representatives “are asking us to press pause on something that protects Montana?”
Montana’s protective standard for selenium also received support from tribal leaders in both Montana and B.C. At Friday’s hearing in B.C., Vickie Thomas of the Ktunaxa Nation Council read a community impact statement articulating the losses already suffered by the tribe on its aboriginal land due to the ongoing release of contaminants into the Elk and Fording Rivers.
“The result is an alienation of our people from our cultural practices,” Thomas said.
In an effort to help reconcile that alienation and restore the local ecology, the majority of the fine levied against Teck is to be put into an environmental trust for the purposes of conservation and the protection of fish and fish habitat.
Of the penalty, $58 million will be directed to Canada’s Environmental Damages Fund and will be used to support projects that benefit Canada’s natural environment. The remaining $2 million are fines, which will be directed to the Receiver General.
Don Lindsay, president and CEO of Teck, said the company has invested nearly $1 billion so far to implement the plan and has constructed “cutting-edge water treatment facilities that are successfully removing selenium and calcite from local waterways.”
In an open letter addressing Friday’s charges, Lindsay addressed the Ktunaxa directly.
“Again, to the Ktunaxa First Nation, whose territory we operate on, and to our communities in the Elk Valley, we deeply regret these impacts and we apologize,” the letter states. “You have my commitment that we will not waver in our focus on addressing this challenge and working to ensure that the environment is protected for today and for future generations.”
A spokesperson for ECCC said the charges, laid on March 24, resulted after an investigation revealed Teck’s Fording River and Greenhills operations were depositing deleterious coal mine waste rock leachate into the upper Fording River.
During the investigation, under the authority of a warrant, enforcement officers captured westslope cutthroat trout in the upper Fording River and some of its tributaries. ECCC’s laboratory analysis determined that some of the fish captured contained selenium concentrations at levels that can be linked with adverse effects in fish. Officers also identified calcite deposits in the upper Fording River and some of its tributaries that had caused a hardening of the riverbeds that can affect the quality of the fish habitat.
“The Government of Canada is committed to protecting the health and safety of Canadians and our environment and takes the environmental impacts of mining seriously,” according to the spokesperson. “Environment and Climate Change Canada is committed to the effective enforcement of environmental law to mitigate these impacts.”
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