Teck Coal Limited ordered to pay $60 million under the Fisheries Act and must comply with a Direction requiring pollution reduction measures

Between 2012 and 2019, Environment and Climate Change Canada Enforcement conducted a comprehensive investigation into the leaching of selenium and calcite from Teck Coal Limited’s Fording River Operations and Greenhills Operations coal mines into the Fording River and its effect on fish. On March 24, 2021, this investigation culminated in the laying of two charges under the pollution prevention provisions of the Fisheries Act. On March 26, 2021, the company pleaded guilty to the charges and was ordered to pay a total of $60 million in fines and monetary orders.

The Situation

As water passes through waste rock deposits, selenium and calcite are carried in surface or groundwater, and are ultimately deposited into the upper Fording River watershed.

The Westslope Cutthroat Trout (or Oncorhynchus clarkii lewisi) is the only fish species known to inhabit the upper Fording River and its tributaries. It is a provincially blue-listed species (i.e., a species of concern) and a federal species of concern under the Species at Risk Act.

Fish take in selenium via the food chain, specifically by consuming benthic invertebrates. Selenium bioaccumulates within the tissue and eggs of fish and can reach levels where it causes deformed fry and/or fry mortalities. In addition, calcite deposits can cause a hardening of the riverbeds, which can affect the quality of fish habitat.

The Investigation

In 2012, under the authority of a general warrant, Environment and Climate Change Canada officers conducted a multi-week sampling effort in the upper Fording River watershed. Officers sampled spawning Westslope Cutthroat Trout, collecting muscle and egg samples from fish within the mine-impacted waters of the upper Fording River and its tributaries, as well as from an unaffected reference lake.

In addition, during the execution of the warrant, officers observed calcite deposits in the upper Fording River and in tributaries supporting the habitat of the upper Fording River Westslope Cutthroat Trout population. These deposits had caused a hardening of the riverbeds, which can adversely affect the quality of the fish habitat.

Laboratory analysis of certain Westslope Cutthroat Trout samples showed selenium concentrations in egg and fish tissue within the range associated with adverse effects.

The investigation also found that selenium concentrations in the upper Fording River and Clode Settling Pond were increasing in the seven years leading to the end of 2012.

In 2012, in the upper Fording River, upstream of the Fording River Operations and the Greenhills Operations coal mines, the concentration of selenium was less than 1 μg/L (part per billion). This level is less than the British Columbia Water Quality Guidelines, which state that the selenium guideline limit for the Protection of Aquatic Life is 2 µg/L of selenium, as well as the Canadian Council of Ministers of Environment Guideline for Protection of Aquatic Life, which is 1 µg/L of selenium.

However, in 2012, downstream from the coal mine operations, the concentration of selenium in the upper Fording River ranged between 9 µg/L and 90 µg/L, and ranged between 28 µg/L and 177 µg/L in the discharge from the Clode Settling Pond.

In the years that followed, Environment and Climate Change Canada continued to review additional new data and other information. This included additional sampling from the upper Fording River, expert reports commissioned by Environment and Climate Change Canada, and a thorough assessment of due diligence.

After a comprehensive investigation into Teck Coal Limited’s Fording River Operations and Greenhills Operations coal mines, Environment and Climate Change Canada enforcement officers concluded that deposits of waste rock from the company’s operations had leached deleterious substances, selenium and calcite, into the upper Fording River and its tributaries.

By 2020, Environment and Climate Change Canada had determined that all reasonable measures consistent with public safety and with the conservation and protection of fish and fish habitat had not been taken as required under s. 38(6) of the Fisheries Act. Consequently, on October 29, 2020, an Environment and Climate Change Canada enforcement officer issued a Direction to Teck Coal Limited in accordance with s. 38(7.1) of the Fisheries Act.

The Direction requires the company to take several specific pollution-reduction measures that aim to improve the water quality and prevent calcite deposition in the upper Fording River Valley waters affected by the Fording River Operations and Greenhills Operations mines, and help protect the Westslope Cutthroat Trout population. The Direction requires water treatment facilities to remove selenium before it reaches the upper Fording River. It also sets out requirements with respect to water management such as diversions, mine planning, fish monitoring, and calcite prevention measures, among other measures.