• Mount Polley Mining Corporation v. Director, Environmental Management Act

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    Decision Date: September 3, 2021

    Panel: Teresa Salamone

    Keywords: Environmental Management Act – s. 115; Administrative Penalties (Environmental Management Act) Regulation – ss. 7, 12(5); contravention; permit; administrative penalty

    Mount Polley Mining Corporation (“MPMC”) appealed a determination of contravention and penalty issued by the Director, Environmental Management Act (the “Director”), Ministry of Environment and Climate Change Strategy (the “Ministry”).

    MPMC operates the Mount Polley Mine (the “Mine”), an open pit copper/gold mine. MPMC holds a permit under the Environmental Management Act which authorizes the discharge of effluent from the Mine. Section 2.10 of the Permit required MPMC to design, test, and submit plans and “as built” drawings for systems to treat “mine influenced water”, such as seepage from a mine pit, by specified deadlines in 2017.

    In 2018, Ministry inspections found that many of the requirements in section 2.10 of the Permit had not been completed. The Ministry issued two warning letters in 2018, notifying MPMC that it was out of compliance with section 2.10 of the Permit.

    In January 2019, MPMC notified the Ministry that one of the systems required by section 2.10 was completed in October 2018, operations would begin in Spring 2019, and “as built” drawings would be submitted when available.

    In May 2019, MPMC applied for an amendment of sections 2.8, 2.9, and 2.10 of the Permit. The Permit was amended, but not until in February 2020.

    Meanwhile, in July 2019, the Ministry notified MPMC that it was considering levying an administrative penalty.

    In November 2019, MPMC submitted documents in response to the requirements of section 2.10 of the Permit.

    In February 2020, the Ministry notified MPMC that a penalty of $9,000 was being considered due to MPMC’s noncompliance with section 2.10. MPMC was given an opportunity to make submissions before a penalty was issued.

    In December 2020, the Director issued the determination and imposed a $9,000 penalty for MPMC’s non-compliance with section 2.10 of the Permit.

    MPMC appealed the determination. MPMC submitted that it should not be found in contravention of the Permit, because the actions required by section 2.10 could not be met. MPMC asked the Board to rescind or reduce the penalty.

    After considering the parties’ submissions and evidence, the Board found that it was possible for MPMC to comply with section 2.10 of the Permit, but MPMC failed to do so. If MPMC objected to the timelines in section 2.10, it could have appealed when those requirements were added to the Permit, but it did not do so. Also, MPMC could have applied to amend the Permit in a timely manner, but it did not apply until long after the deadlines in section 2.10 had expired.

    Next, the Board considered the Director’s rationale for the penalty, the factors in section 7 of the Administrative Penalties (Environmental Management Act) Regulation, and the maximum penalty for contravening a permit. The Board generally agreed with the Director’s findings regarding the amount of penalty that was appropriate in the circumstances. The Board found that the penalty should not be reduced.

    In conclusion, the Board confirmed the penalty, and dismissed the appeal.