B.C.’s Environmental Appeal Board has upheld a more than $800,000 penalty against Peace River Coal Inc. after it repeatedly failed to comply with its environmental permit at a coal mine near Tumbler Ridge.
The penalty was the largest ever issued by the B.C. Ministry of the Environment under the Environmental Management Act when it was first handed down in 2021. It stems from the Trend-Roman mine’s failure to limit the discharge of selenium into three nearby creeks and rivers.
“I do not consider the resulting penalty to be too large in the context of the facts of this case,” wrote Environmental Appeal Board panel chair Maureen Baird in her Aug. 27 ruling.
“While the penalty is large, it, in my view is required to satisfy the goals of encouraging compliance and deterring others.”
Jamie Kneen, national program co-lead of MiningWatch Canada, said his group attempted to intervene in the appeals process to address the integrity of B.C.’s regulatory system — but was denied.
From the outset, MiningWatch was concerned that the province’s initiative to tackle impunity in the mining would be undermined.
“This one case was kind of key as an indicator which way enforcement is going to go in the future for the province,” said Kneen. “It reaffirms the idea that it takes a significant fine to change corporate behaviour. It takes a significant incentive.”
“Maybe we have one now.”
Contamination lasted years, reached 350% above limit
In the original decision to penalize the company, Peace River Coal’s mine was found to have breached selenium discharge limits by as much as 350 per cent between 2016 and 2019.
At one mine site, weekly selenium discharge limits were violated 85 per cent of the time in 2017 and nearly 80 per cent of the time in 2018. At another site, discharge of the toxic element breached limits throughout all of 2016, 2017 and 2018, and 42 of 52 weeks in 2019.
The company was sent multiple warning letters between 2016 and 2019, but failed to become compliant.
Leslie Payette, operation manager for director of the Environmental Management Act, previously found Peace River Coal benefited financially from avoided and delayed costs.
In calculating the large penalty, Payette used a “daily multiplier” on 40 separate days in 2019 — a measure reflecting the continuous nature of the contraventions and to ensure the penalty was substantial enough to compel future compliance.
Shut in 2014 due to low coal prices, then-owner Anglo American plc argued the breaches did not arise from its own conduct, as the Trend-Roman mine has been in a "care and maintenance" state since January 2015.
The company also claimed it should be exempt from the penalty at one of the sites because an earlier permit amendment had deferred the construction of a water treatment plant there.
But in her 50-page decision, Baird affirmed the environmental permit requirements applied "under all circumstances, including operational periods and periods of care and maintenance."
Baird ruled the director's penalty calculation was appropriate and reasonable, and confirmed the full penalty of $809,700, which includes penalties for both the selenium exceedances and a smaller, undisputed penalty of $4,200 for failing to provide required quarterly and annual reports.
An 'invisible' toxic problem
A trace element for life, too much selenium is toxic and can be especially damaging for egg-laying creatures, such as fish and birds. By filling the role of sulphur in proteins, selenium can trigger deformities, though biologists say its spectrum of effects is not clear.
Selenium poisoning in aquatic environments can persist for many years and be “invisible” in fish because healthy adult females survive while failing to reproduce.
As it moves up through the food chain, concentrations of selenium accumulate and may become toxic to sensitive aquatic life, birds and mammals, including humans, the appeal board said.
At the Trend-Roman mine, selenium was found to have flowed into Babcock Creek, Gordon Creek and Murray River — all within the Saulteau First Nations territory. As an intervenor, the First Nations encouraged the appeal board to uphold the penalties and raised concerns around contaminated animals, drinking water and human health.
A lawyer for the nation declined to comment.
Elsewhere in B.C., selenium poisoning has been an intractable problem downstream of several large coal mining operations. The highest and most persistent levels of contamination have been recorded in the Elk Valley, home to several large coal mines owned by Glencore and whose tributaries flow into the United States.
Teck Coal, who owned the mines at the time, was penalized $16 million in 2023 for exceeding pollution thresholds and failing to build an active water treatment facility on time at one of its operations in southeastern B.C.
In a study published later that year, the U.S. Geological Survey found multi-decade per cent changes of selenium in the Elk River were the largest ever recorded in a peer-reviewed study — anywhere.
In 2024, Canada and the United States requested an intervention from the International Joint Commission, a trans-boundary body tasked with regulating rivers and lakes that span both sides of the border. Their request: carry out a reference study and recommend solutions for mining pollution in the Elk and Kootenay rivers.
“It's an intractable problem in terms of trying to stop that process once you've opened up for the rock… and it's not just the actual mining operation, it’s all the waste rock as well,” said Kneen.
Province still deciding on $4.4 million in further penalties
The Environmental Appeal Board's recent decision to uphold the penalty against Peace River Coal could be the first in a series of massive penalties for the company.
On Feb. 21, 2023, B.C.'s Ministry of Environment notified Peace River Coal that it was issuing a separate preliminary penalty assessment of over $4.4 million to the company for other selenium discharges, according to documents reviewed by BIV. Those penalties are not yet final, and the company still has the opportunity to present its case and be heard before a final determination is made.
Who will pay for the latest and any future environmental penalties remains unclear. Earlier this year, Anglo American plc completed the sale of Peace River Coal's operations to Conuma Resources Ltd., a privately owned company that operates three other metallurgical coal mines in the region.
One unanswered question is whether the two companies' purchase and sales agreement transferred the responsibility for the environmental breaches (and resulting penalties) to Conuma. Conuma did not respond to BIV's questions by the time of publication.
Whoever ends up paying, Kneen said the latest penalty to Peace River Coal is precedent-setting and has no equivalent outside of B.C.
He said it also shows the province is open to using its regulatory powers to enforce environmental compliance at a time the federal and provincial governments have moved to rapidly expand the approval of mines in a bid to boost Canada’s economy.
Kneen, who described the fines as “significant,” said it's yet to be seen if they will change corporate behaviour.
“It’s a great relief that [B.C.] seems to be going the right direction, or at least, it's not going backwards,” he said.
