ref: 113500 file: 19000-20/frop

Ministry of Energy, Mines and Low Carbon Innovation

Mines Health, Safety and Enforcement Division

Mailing Address: PO Box 9395 Stn Prov Govt Victoria, BC V8W 9M9

Location: 3rd Floor 1810 Blanshard Street Victoria BC V8T 4J1

Ref: 113500 File: 19000-20/FROP

8 April 2021

Email

Fasken Martineau DuMoulin LLP

Attention:

Re: Determination of Administrative Penalty

Further to the Notice of Opportunity to be Heard issued to you on 2020-11-20 and your written

submission received 2021-03-01, respecting the alleged contraventions, I have now made a

determination in this matter.

After reviewing the information available to me, I have concluded that Teck Coal Ltd. has

contravened or failed to comply with provisions of the Health, Safety and Reclamation Code for

Mines in BC in respect of which administrative penalties are being imposed on Teck Coal Ltd.

pursuant to section 36.2 of the Mines Act and the Administrative Penalties (Mines) Regulation.

The specific contraventions and failures to comply, the amount of the penalties, reasons for my

decision, payment and appeal information are provided in the attached decision document.

If you have any questions with regard to this determination, please contact me at

[email protected]

Sincerely,

_________________________________________

Justyn Bell

Director, Operational Support

Office of the Chief Inspector of Mines


Ministry of Energy, Mines and Low Carbon Innovation

Attachment: Determination of Administrative Penalty

mailto:[email protected]


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DETERMINATION OF ADMINISTRATIVE PENALTY

File: 19000-20/FROP

NAME OF PARTY:

Teck Coal Ltd. (“Teck”)

CONTRAVENTION OR FAILURE:

1. In the Report to Statutory Decision Maker, Investigators with the Mines Investigation Unit

(MIU) within the Ministry of Energy, Mines and Low Carbon Innovation (EMLI) alleged

non-compliance with three (3) provisions of the Health, Safety and Reclamation Code for Mines in

British Columbia (the Code):

a. On or about April 9, 2018, at Fording River Operations (FRO) near Elkford,

British Columbia, Teck Coal Ltd. contravened section (s.) 1.11.1(1) of the Code

by failing to ensure that workers are adequately trained to do their job or are

working under the guidance of someone who has competency both in the job and

in giving instruction. (“Contravention 1”)

b. On or about April 9, 2018, at FRO near Elkford, British Columbia, Teck Coal

Ltd. contravened s. 1.11.1(2) of the Code by failing to ensure that workers receive

a thorough orientation and basic instruction in safe work practices.

(“Contravention 2”)

c. On or about April 9, 2018, at FRO near Elkford, British Columbia, Teck Coal

Ltd. may have contravened Part 3.7.1 (1) of the Code by failing to have an up to

date Mine Emergency Response Plan and following it in the event of an

emergency. (“Contravention 3”)

SUMMARY

2. The following summary is my understanding of the facts that gave rise to the alleged contraventions:

a. FRO is a major coal mine operation located in the Elk Valley of

British Columbia, operated by Teck. FRO has two tailings ponds, which are used to store slurry from the processing of coal.

(“Contractor”) was a contractor to Teck; the Affected Person ("AP"), owner/

operator of (“Subcontractor”) was employed at the mine as a subcontractor to the contractor. As part of the annual dredging program in the South Tailings Pond (the “STP”), an amphibious excavator (the “AE”) operated by

AMOUNT OF

ADMINISTRATIVE PENALTY:

$ 220,000.00


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AP was originally hired to break up the ice. AP's employment was extended at

the mine site by Teck’s request to assist in setting up the dredge and the dredge

cables.

b. In the days prior the incident the AE contacted the dredge’s fuel barge outboard

motor, damaging the motor. The AP made an informal agreement with the

operators of the dredge fuel barge, to tow

the fuel barge out to the dredge when refuelling was required as the fuel barge’s

outboard motor was inoperable. It was not a normal procedure to tow the fuel

barge with the AE. This arrangement occurred without the knowledge or

involvement of Teck. It was contrary to and outside the contemplation of Teck’s

safe work plans. Furthermore, the activity was unforeseen, and was unauthorized

by Teck.

c. On the morning of April 9, 2018, the AP came to the site to tow the fuel barge out

to the dredge. At approximately 08:30 hrs, the AP towed the fuel barge out to the

dredge. As the AE neared the dredge, the AP ceased forward propulsion and

exited the cab onto the pontoon to pass the towing line to the operator. Forward

momentum continued and the AE came into close proximity with the dredge’s

cutter head and contacted the dredge cable. The AP re-entered the cab and swung

the boom 45º to the left. The AE then suddenly overturned to the port (left) side

floating a short distance until coming to rest with both pontoons’ upside down and

visible at the surface. The AP did not egress from the AE cab and drowned. TheAP's body was recovered from the AE on April 11, 2018.

d. Mines inspectors and investigators attended the scene and began an investigation.

Potential contraventions were identified in relation to the incident and a Report to

Statutory Decision Maker was submitted.

3. In response to the Notice of Opportunity to be Heard, Teck submitted a written response on

February 13, 2021, (the “Submission”) that outlines Teck’s position in relation to the

contraventions identified by the MIU in the Report to Statutory Decision Maker. Included within

Teck’s submission is acknowledgement of a number of facts not in dispute, as well as additional

factors not included in the Report to Statutory Decision Maker regarding each contravention.

Facts not in dispute

4. As laid out in Teck’s response the following facts are not in dispute:

a. The contractor was engaged as a contractor by Teck. The subcontractor was

engaged by the contractor as a subcontractor.

b. Shortly before the incident, the AP made an informal agreement with staff to tow the fuel barge to the dredge. It was not a normal procedure for the AE to tow the fuel barge.


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c. The arrangement occurred without the knowledge or involvement of Teck. It was outside of the contemplation of Teck’s safe work plans; the activity was unforeseen and unauthorized by Teck.

d. Teck prepared the Amphibious Excavator-STP Ice Break-up Safe Work Plan and Environmental Health and Safety Community Work Plan (the “EHSC”), which governed the subcontractor's anticipated scope of work. The contents included

details such as:

(1) Requirement for a spotter on shore, whose sole purpose is to monitor the excavator and be prepared to respond if there is an issue.

(2) Requirement for the operator to have a radio and personal floatation device

(“PFD”).

(3) The excavator be attached to a tow sling in the event of a rescue.

e. There were multiple levels of safety plans and safety meetings, including plans created by Teck, the contractor, the subcontractor as well as pertaining

to the work around water and drowning risks.

f. On the day of the incident the subcontractor engaged in work outside what was

authorized by Teck and failed to comply with the safety measures Teck had

required.

g. Teck Coal is a mining company. It “has limited experience with the operation and safety limitations of amphibious excavators”; it “relied on the AP's experience and

training to operate the amphibious excavator”, work which he had previously performed on multiple worksites. The AP had “many years of experience

operating heavy equipment”. Teck viewed the AP as the subject matter expert

(SME).

h. Teck submitted its Mine Emergency Response Plan (the “MERP”) to EMLI in 2016 for review and comment. No comments were made by EMLI Inspectors.

Reasons for Decision

5. Pursuant to s. 5 of the Mines Act (Act) I have been appointed as an Inspector of Mines.

6. Pursuant to s. 6 of the Act I have been delegated the authority of the Chief Inspector of Mines, as

a statutory decision maker for administrative penalties, as set out in s. 36.1, s. 36.2 and s. 36.3 of

the Act.

7. In making my finding that Teck contravened provisions of the Code, I have considered all of the

information submitted to me by the MIU and Teck. In determining the penalty amount, I have

considered the matters listed in s. 2 of the Administrative Penalties (Mines) Regulation, as

applicable.

8. Teck submitted that their overall opinion is that the incident is not a matter for which Teck

should be liable to pay penalties. It is their position that the undisputed facts, coupled with the


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additional information they furnished in their submission, do not support the imposition of a

penalty for any of the three contraventions.

9. I respectfully disagree for the reasons which I will set out in this determination.

10. EMLI’s Administrative Monetary Penalty program is not intended to find penal liability for the

incident, but rather to address compliance issues that were identified during the investigation into

the incident and, if warranted, apply a penalty to deter future non-compliance. I accept that the

task of towing the fuel barge to the dredge was out of scope of the anticipated work for the AE, it

was not authorized, and that Teck’s safe work planning documents indicate that any deviations

from the approved work shall not be completed until a new risk assessment has been completed.

However, in reviewing all the information it is my view that there were non-compliances

surrounding the general training requirements on the use of the AE and requirements in the

MERP. My finding is that those non-compliances warrant a penalty appropriate to the

circumstances.

11. Teck indicates they have taken substantial steps to ensure the incident will not be repeated.

Pursuant to s. 2 of the Administrative Penalties (Mines)Regulation, those steps will be

considered as mitigating factors in the penalty assessment.

Contraventions

12. S. 1.11.1 of the Code sets out training requirements for all workers and employees, at a mine

site:

The manager shall ensure that

(1) workers are adequately trained to do their job or are working under the

guidance of someone who has the competency both in the job and in

giving instruction, and

(2) ensure that all employees receive thorough orientation and basic

instruction in safe work practices

13. S. 1 of the Act sets out that “manager” is defined as:

a. Means the person appointed under s. 21 to be responsible for the

management and operation at a mine

14. The Code puts the onus on the Mine Manager to ensure compliance with s. 1.11.1. EMLI’s

records indicate that at the time of the incident was appointed by Teck as the

Mine Manager for FRO.

15. In the Report to Statutory Decision Maker the MIU sets out numerous reasons why they believe

the AP was not adequately trained in the use of the AE, including issues surrounding the safe operation of the AE, the safety equipment required on the AE, the limitations of the AE in open water, training on egressing a cab during a roll over and water rescue training for the spotter.


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Subject Matter Expert

16. The MIU alleges there were no training records and no evidence that Teck did any background checks to satisfy themselves that the AP was adequately trained in the safe operation of AE’s. Teck acknowledges it had limited experience with the operation of AE’s, therefore it relied on the “experience and training” of the AP to operate the AE. Furthermore, they submit that Teck considered the AP to be the SME regarding the use of AE’s. The concept that the AP was considered an SME factors into my entire rationale for all of the allegations related to training set forth below.

17. Teck submits that the subcontractor held itself out to be SME’s in AE’s, which was known to Teck by advertisements, discussions, and their firsthand knowledge by contracting the AP to perform work at other Teck sites on several different occasions. Teck also relied on the AP to collaborate with the Teck Project Engineer on the development of the safe work plans pertaining to the AE. The safe work plan utilized at FRO for ice breaking was based on a previous plan utilized at the Elkview Operations that the AP had contributed to based on his knowledge and expertise. When the FRO plan was developed, the AP was again consulted on the specific changes

that were needed to reflect the type of work anticipated at FRO. After being consulted on the plan,

the AP reviewed and signed off on the plan.

18. In reviewing the Mine Manager’s Investigation Summary Report (the “Investigation Report”) into

the incident, I am struck by the numerous comments that identify several issues, that in my view,

extend beyond the incident itself and call into question Teck’s reliance of the AP as a SME, including: “evidence suggests that the operator did not understand the safe operating limits of the excavator and was overconfident in its capabilities.” I have reviewed the numerous safety related documents submitted in evidence including the safe work plan, EHSC, and the subcontractor’s job

inspection hazard assessment. It is apparent that none of the documents that the AP consulted on

consider worst case scenarios or recognize general industry standards regarding equipment modifications and safety equipment. All of these were factors that contributed to the incident itself.

19. I am persuaded by the MIU’s position that Teck did not ensure the AP was adequately trained in the safe operation of the AE. As Teck admits, they relied on the AP’s years of experience and firsthand knowledge in the use of AE’s, but I agree with the MIU that years of experience alone does not guarantee he was adequately trained in specialised machinery such as the AE. I am further persuaded by the findings in the Investigation Report that call into question the AP's knowledge about the equipment, including analysis conducted by a third party contractor on the stability of the AE that concluded “ the machine appears to have had little to margin for stability”

and “was not considered safe for any operation in deep water”. Teck argues that the Mine

Manager should be able to make assessments on training based on experience. I agree there are

numerous jobs that occur on a mine site where this type of assessment could occur and be adequate in the circumstances. In the case of the AE, a specialized piece of equipment, with specialized expertise required to identify risks and hazards associated to the type of work, I am of the view that proof adequate training for this area of knowledge must be sought to ensure safety and meet the requirements of the Code.


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20. In Teck’s submission they provided me with extensive detail about they systems they have in place to manage contractors and ensure compliance with the Code. Teck undertakes a contractor vetting process, which largely puts the onus of training requirements onto the contractor, who is also responsible to manage sub-contractors. There is no dispute that the subcontractor was contracted by the contractor. Further to the contractor vetting process, Teck has systems in place

to conduct contractor vetting and compliance spot checks. Beyond explaining the process that is in place, there was no evidence presented to demonstrate the AP was adequately trained in the safe use of the AE. I acknowledge that Teck does have on file training records that are related to general site orientations.

21. To satisfy the conditions of s.1.11.1 of the Code the mine manager must “ensure” that adequate training, thorough orientations, and basic instruction in safe work practices occurs. This could happen by either i) providing the training, or ii) ensuring that the training has happened. In this case Teck utilizes a system to rely on the latter. In my opinion, when a mine manager relies on the

training to be done by others, the need or obligation for assessing compliance with the Code is even more critical – for example: actually, receiving proof of training rather than relying on contractors to vet their subcontractors for records.

22. The evidence does not suggest that training records for the subcontractor or the AP were sought by Teck. In its statement to the MIU, the contractor admitted they did not conduct checks into training records or proof of competency. Rather, the contractor inquired into rates, WorksafeBC standing and insurability. Based on this information, the systems on which Teck relied appear to have failed.

23. As I understand it there were ultimately two expectations for the AP in the course of his duties, first was as the AE operator and second was as the SME and contributor to the safe work plans. Reliance on the AP as an SME suggests that a more rigorous assessment process beyond what might be required solely of an equipment operator was necessary. In this case there is no evidence

to support that proof of adequate training was sought by Teck relative to the complexity and

uniqueness of the functions the AP provided. Therefore, I do not find the mine manager ensured

that the AP was adequately trained to do his job pertaining to the duties of SME bestowed upon

him related to the safe operation of the AE.

Adequate Training

24. The MIU alleges that despite the AP's many years of experience operating AE’s, there is no proof

that he was adequately trained in the requirements for safety equipment onboard the machine. The

evidence provided suggests that industry best practice recommends that a reserve breathing

system be available, as well as the proper type of PFD that would not interfere with an operator’s

ability to egress from a capsized cab. Furthermore, there is no evidence to suggest the AP was

trained in the safe egress of a submerged cab. The safe work planning documents collectively

appear to only consider a worst-case scenario of a man overboard situation where the operator

would be able to successfully egress the cab prior to capsizing. AE roll overs are not an extraordinary occurrence and, as the Investigation Report identified, the true worst-case scenarios

were not considered. In my view, steps were not taken by the mine manager to satisfy himself that

the AP was adequately trained in safety equipment and procedures.


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25. The MIU alleges that the AP was not trained in the limitations of the AE in open water. This refers to the maximum operating limits of the AE before additional stabilization is required to go into deeper water. In reviewing the evidence, I have not seen any reference to the risk associated to operating the AE in open water, nor have I seen any proof that the AP was adequately trained in the limitations of the AE.

26. The Amphibious Excavator -STP Ice Break-up Safe Work Plan requires that a dedicated spotter with access to a boat be present at all times when the AE is in operation in the event a rescue is required. Evidence supports that when the AP was breaking ice, the spotter was present, however, there is no evidence to suggest that the spotter was adequately trained in the task of performing a water rescue.

Instruction in Safe Work Practices

27. I agree with the MIU that the complexity of safe work plans are based on the complexity of the work performed, I further agree that safe work plans can consist of a collection of documents that

provide inputs into hazards and risks that govern a work area or function. I accept Teck’s response that they relied on several documents which, in their totality, made up the cumulation of

the safe work plans that governed the work of the AE. It is also my view that the threshold to determine what is adequate training, thorough orientations and basic instruction in safe work practices is relative to the complexity of the topic or work area.

28. Similar to the arguments presented on adequate training, the MIU sets out numerous reasons why they believe the AP did not receive basic instruction in safe work practices. The principle of their position is anchored in the overall lack of detailed content within the safe work plans, namely: safety equipment, proper stabilization, and supervision. Although not expressly stated by the MIU, when analysing the threshold for basic instruction in safe work practices, the same measurement is equally applied to the element of thorough orientation.

29. I accept that Teck’s project manager was responsible for compiling the safe work plans, and they received input from the AP, as an SME, with respect to identifying hazards and mitigations. The scope of the work within the safe work plan indicated that the AE could be used for exploratory work around the water to determine water depths. This suggests that the AE could be working in potentially deeper water than the safe operating limitations of the AE. It is Teck’s position that the stability issues raised in the report only applied to tasks outside of the ice-breaking activity and that the safe work plan addressed those foreseeable risks.

30. I do not see anywhere in any of the collective safe work plan documents submitted as evidence, any contemplation for safe operating limits or the risks associated with surpassing them. Additionally, I do not see any mention of water depths in the tailings pond at all. I do not believe safe operating limits were contemplated during the development of the safe work plans.

31. Regarding the inclusion of safety equipment in the safe work plans, for the same reasons I referenced earlier, I do not find that the safe work plans contemplated the recommended basic safety equipment that would be appropriate for the AE.


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32. The arguments surrounding the modifications to the AE and the affects on the equipment’s stability is regulated in other parts of the Code. I will not address those issues.

33. Lastly is the issue surrounding supervision and the AP's failure to sign the Field Level Risk Assessment (the “FLHA”) on the day of the incident which prevented Teck from ensuring the AP received basic instructions in safe work practices on items identified in that document. Generally, the issue of the AP’s supervision is murky as there appeared to be no clear understanding between Teck and the contractor about who was responsible for his supervision over the course of the work engagement. Evidence demonstrates that the AP indicated to staff that he was working for Teck, Teck felt the contractor was responsible for supervision, or at

least it was a shared responsibility. The evidence supports the suggestion that supervision was

in-fact shared between the two companies, ad-hoc, on a day-to-day basis. I accept that the subcontractor was a sub-contractor to the contractor.

34. The evidence indicates that on multiple occasions the AP skipped daily FLHA meetings prior to starting his shift. The FLHA filled out by the contractor the day of the incident indicates that ice breaking was a task expected to be completed during the shift. Teck submits that their belief is that the AP was not intending on performing ice breaking tasks that day, but rather to perform the unauthorized task of towing the fuel barge, hence the reason he did not attend the FLHA meeting. It is troubling that there was no clear structure set out with respect to the AP's direct supervision, and that there appeared to be communication breakdowns between Teck and the contractor. By allowing the AP to miss FLHA meetings, Teck failed to ensure the AP obtained instruction on basic safe work practices prior to the start of each shift.

35. For the reasons set out above, I find on a balance of probabilities that the mine manager contravened s. 1.11.1 (1) and (2) of the Code.

36. Pursuant to s. 36.1(3) of the Act, Teck also contravenes s. 1.11.1(1) and (2) of the Code due to their employee’s contravention and is liable to receive an administrative penalty in relation to those contraventions.

Mine Emergency Response Plan

37. The MIU alleges that FRO’s MERP failed to comply with s. 3.7.1 of the Code, which states:

(1) The manager shall develop, and file with the chief inspector, a Mine

Emergency Response Plan (MERP), which shall be kept up to date and

followed in the event of an emergency.”

38. I find that Teck’s MERP for FRO was submitted to the Chief Inspector of Mines in 2016, so the

question before me is whether it was “kept up to date and followed in the case of an emergency”.

39. The MIU’s position is that there are numerous water bodies on the FRO site and that Teck ought

to have recognized that water hazards, including drowning are a risk on the mine site, at any

point in time, and that there were no response procedures in place for water rescue. The evidence

submitted confirms that Teck did not identify water hazards as a risk, nor did they plan for any


9

mitigation, training, or equipment to be onsite to facilitate a safe water rescue or rescue on a

tailings pond which can be more complex than other water due to lack of visibility.

40. When FRO’s mine rescue was called to the incident they were not prepared to enter the water to

perform rescue operations; they were not equipped with PFD’s, having to borrow some from the

dredge operators at

41. Teck’s submission largely focusses on the issue of hazard analysis as it relates to specific pieces

of work at a mine site. My understanding of their position is that MERP’s are broad and

generally static, they are not intended to be hazard assessments for specific areas of work, nor

would they be appropriate documents to implement task and field condition work plans. Teck

relies on other documents that are the subject of site, activity, and condition specific

considerations to implement task and field condition work plans. These plans require input from

all involved parties, including contractors and condition specific vigilance for consideration.

42. S. 3.7.1(2)(b) of the Code sets the requirement to ensure a MERP contains all of the elements

included in the Mine Emergency Response Plan Guidelines for the Mining Industry (the

“Guidelines”). I have reviewed this document and compared it to the MERP documents

submitted in evidence. The following are the salient points I believe are relevant to this

argument, the emphasis added is my own:

a. The opening sentence in the Introduction of the Guidelines states “A MERP

outlines the response procedures and preventative measures that are essential for

effective and timely management of an emergency situation.”

b. In the section titled Preparing a Mine Emergency Response Plan, the overview

states: “A MERP is a mine operation’s guide to all procedures and courses of

action that should be followed in the event of a mine emergency and addresses

advance preparation and preventive measures for potential emergencies.”

c. In section C of the Elements of a MERP chapter it states: “Developing a MERP

involves examining each area of the mine for potential eventualities as well as

possible means of prevention and protection. These potential events may include

incidents where harm to people, equipment and/or the environment occur within a

mine and/or the surrounding area. This pre-planning exercise shall be repeated

periodically, as conditions may change over time.

First, all areas and processes of the mine shall be inspected to determine what

hazards are associated with the work environment. These hazards shall include

all potential activities or conditions that can do harm such as mine fires,

explosions, rock bursts, falls of ground, runs of muck, liquefied backfill, inrushes

of water, bulkhead fractures, etc. Other areas on mine property such as tailings

storage facilities, impoundments, buildings, process facilities and all geotechnical

structures (such as dumps and high walls) must be considered including any

areas where spills or disturbances of any sort could affect nearby waterways.


10

They should also include uncommon and unlikely events such as earthquakes,

bomb threats, sabotage, etc.

Once all hazards are identified, they shall be evaluated to determine the level of

risk they present, and control measures shall be considered and implemented to

prevent emergency situations.”

43. In my view the Guidelines are clear in communicating that mines are expected to conduct overall

hazard analysis across the entire mine site to predict potential eventualities and address

preventative measures for potential emergencies. This is not to be confused with the site-specific

hazards identified in safe work plans, but rather overarching hazards that could result in an

emergency that the mine should be prepared to respond to.

44. Given the number of waterbodies at FRO and the types of work or situations that could lead to a

potential drowning incident, it is reasonable to expect Teck’s MERP to identify water hazards as

a general risk. Teck is expected to conduct risk hazards analysis to determine what preventative

measures need to be in place, and plan for responses to emergencies, such as drownings.

45. I further agree with the MIU, as supported by the Guidelines, that up to date procedures, readily

available rescue equipment suitable to the conditions and training in water rescue will provide

rescuers with a quicker response in the event of a drowning.

46. I find that the MERP did not meet the requirements, as laid out in the Guidelines, as it did not

identify the potential for drowning hazards and water rescue on any of the waterbodies at FRO.

When works were being undertaken on the STP Teck ought to have considered the risks for

emergencies and updated the MERP accordingly.

47. For these reasons I find on a balance of probabilities that the Mine Manager contravened

s. 3.7.1(1) of the Code.

48. Pursuant to s. 36.1(3) of the Act, Teck also contravenes s. 3.7.1 of the Code due to their

employee’s contravention and is liable to receive an administrative penalty in relation to that

contravention.

PENALTY CALCULATION:

49. The administrative monetary penalty (AMP) is assessed in consideration of the matters set out in

s. 2 of the Administrative Penalties (Mines) Regulation (Regulation). The assessment establishes

a base penalty to reflect the seriousness of the contravention or failure based on the gravity and

magnitude of the contravention or failure and the actual or potential adverse effect. Using the

base penalty as a starting point, additional mitigating or aggravating factors are then considered

and adjustments may be made in the form of decreases or increases to the base amount.

50. In their submission, Teck proposed an AMP amount they felt was suitable, should they be found

liable. They referenced a previous AMP determination, the Davis Mining AMP (“Davis”), issued


11

as the basis for their comparison and proposed a penalty amount that was, in their opinion,

reflective of the circumstances

51. In keeping with the principle of administrative law, each decision must be made on its own

merits. While previous administrative penalty determinations may be informative, the factors in

this file are unique and different than in Davis. In particular – i) Davis is a small, less complex,

less sophisticated mining exploration site that employed three (3) employees; ii), the

circumstances of that case were substantially different in my view, and there was no need for

considering the complexity of a unique task; iii) the injured party recovered from their injuries

and made a submission on behalf of the company asking for leniency to be considered.

52. In contemplating the penalty, I have also taken into consideration the deterrent aspect intended

for AMPs in relation to the scale of Teck. Imposing a similar penalty amount to what was issued

in Davis would be a substantial deviation from any reasonable expectation of a penalty that

encourages Teck to remain in compliance with mining legislation. In other words, the penalty

amount should be appropriate to the size, scale, and sophistication of the operation with the

intent of being an effective deterrent for future contraventions.

Gravity and Magnitude Contraventions 1 and 2: The consequences associated with contravening the training

requirements, set out in the Code, in relation to the complexity of the work increases an

individual’s risk to injury related to the work they are performing. It should be noted that the

Lieutenant Governor in Council also contemplated this contravention as potentially significant

by providing for the maximum penalty range to reflect the most serious of contraventions

(maximum $500K).

In this case, adequate training, thorough orientation, and basic instruction of safe work

practices were not in place to ensure the safe operation of the AE. The Investigation Report

identified several areas where an SME ought to have identified modern risks associated to the

safe operation of the AE, consequently resulting in satisfactory training requirements relative

to the uniqueness of the task.

For these reasons I consider the gravity and magnitude to be major.

Contravention 3: The MERP is a Code required document. Its premise is to ensure that

overarching hazards and risks have been identified and preventative measures have been

considered. Further, response procedures including equipment considerations and training for

rescue personnel need to be addressed. Similarly, this contravention was also considered

potentially significant by the Lieutenant Governor in Council providing for a maximum

penalty up to $500K.

Teck does have a MERP for FRO that considers multiple aspects of potential mining

emergencies, however water hazards are not included. There are numerous water bodies on the

FRO property that could result in a water rescue situation for any number of reasons in

addition to any work that is directly occurring on a water body. The failure to consider water


12

hazards and rescue potentially has a direct impact on the health and safety of workers or the

public.

For these reasons I consider the gravity and magnitude to be major.

Real or Potential Adverse Effect Contraventions 1 and 2: The actual adverse affects of failing to comply with the training

requirements in the Code can result in serious injury or death. The recommendation for an

AMP derived from a tragic incident resulting in a workplace fatality.

In my view the real or potential adverse effect is very high.

Contravention 3: Failure to have an up to date MERP that considers the overarching risk of

water hazards prevents an adequate response resulting in the potential to cause serious injury

or a death.

In my view the real or potential adverse effect is very high.

Previous Contraventions or Failures

All Contraventions: After considering the matter in relation to all counts, no evidence

suggests previous contraventions exist in relation to the contraventions. No penalty

adjustments (increases or decreases) will be made.

Whether the Contravention or Failure was Repeated or Continuous Contraventions 1 and 2: Although it could be argued that the contravention was continuous

for the period of the work engagement up until the incident, I do not believe that would be

appropriate in these circumstances. No penalty increase will be applied.

Contravention 3: For similar reasons, no penalty increase will be applied.

Whether the Contravention or Failure was Deliberate All Contraventions: There is no evidence to suggest the contraventions were deliberate. No

increase will be applied.

Any Economic Benefit Derived by the Person from the Contravention or

Failure All Contraventions: There is no evidence to suggest that an economic benefit was derived by

Teck. No increases will be applied

The Person's Efforts to Prevent the Contravention or Failure Contraventions 1 and 2: Evidence supports that Teck puts considerable effort into preventing

worksite hazards. In this case there were several safe work planning documents that were in

place surrounding the intended scope of work of the AE for the duration of the work

engagement. The documents consider a range and variety of risks and hazards that require

mitigation and instruction in safe work practices. The failure was caused by the fact that


13

during the planning phase inadequate consideration was given for a unique task, whereby,

reliance was vested in the AP as the SME.

For these reasons I acknowledge that Teck is not derelict in safe work planning as it relates to

training requirements, and a penalty reduction will be applied.

Contravention 3: There is no evidence to suggest that Teck made any efforts to recognize

water hazards as a risk in their overall MERP planning. On the contrary, it is their position that

it would be inappropriate and unreasonable to address water hazards in the MERP, but rather

through safe work planning documents. No reduction will be applied.

The Person's Efforts to Correct the Contravention or Failure Contravention 1 and 2: I do acknowledge that Teck fully cooperated with MIU investigators

and complied with the requirement to conduct an investigation into the incident. The evidence

suggests the investigation was thorough and robust. I acknowledge that Teck utilized the

services of independent SME in their investigation.

A decrease will be applied.

Contravention 3: There was no evidence to suggest that any efforts were made to correct the

contravention, no decrease will be applied.

The Person's Efforts to Prevent Reoccurrence of the Contravention or

Failure Contraventions 1 and 2: Teck submitted that they have taken action to prevent the

reoccurrence of the contraventions. Teck has adopted numerous training and safety

recommendations such as: - Implemented a requirement for contractor managers and supervisors to formally verify

implementation of the Contractor Management SP&P for all scopes of work;

- Fording River Operations has appointed a Contractor Assurance Team, designated to

periodically verify the Scope of Works and the SP&P Requirements are being adhered to;

- Teck Coal’s EHSC Work Plan has been updated with a specific risk assessment section

for HPR related activities with consideration for the credible worst-case risks;

- Teck Coal has implemented specific competency requirements for Contract

Manager/Supervisors; and

- Teck Coal has formally implemented the assurance program utilizing 3M Connected

Safety to verify and confirm implementation of the Contractor

Management SP&P CM-001.

- Additionally, FRO has established a Permit to Work process which includes the

requirement for a new permit if the Supervisor or scope of work changes, so as to

ensure effective management of changes in contract work.

I find that the recommendations adopted by Teck are appropriate efforts, therefore a penalty

decrease will be applied.


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Contravention 3: There was no evidence to suggest Teck made any efforts to prevent the

reoccurrence of the contravention. No decrease will be applied.

Other Relevant Factors All Contraventions: No other factors were considered.

Base Penalty Adjusted Penalty $ 300,000.00 $ 220,000.00

DUE DATE AND PAYMENT:

53. If you do not appeal this determination, payment of this administrative penalty is due within

40 days of the date you were given this determination. Payment via cheque or money order,

made payable to the Minister of Finance, can be mailed to Attn: Jane Mayall, Division

Coordinator, Ministry of Energy, Mines and Low Carbon Innovation,

PO Box 9395 Stn Prov Govt, Victoria, BC, V8W 9M9. Please do not mail cash. A $30 service

fee will be charged for dishonoured payments.

54. If payment has not been received within 40 days and no appeal was filed during that time,

interest will be charged on overdue payments at a rate of 3% + the prime lending rate of the

principal banker to the Province per month and the amount payable is recoverable as a debt due

to the government. In the event the penalty is not paid as required, the Chief Inspector of Mines

may refuse to consider applications made by you for a permit, or for the amendment of a permit,

until the penalty is paid in full.

RIGHT TO APPEAL:

55. If you disagree with this determination, s. 36.7 of the Act provides for appeal of my decision to

the Environmental Appeal Board (EAB). In accordance with s. 36.7 of the Act, if you wish to

appeal this determination, you must commence your appeal within 30 days of being given this

determination.

56. For information on how to commence an appeal, please consult the EAB:

Address: 4th Floor, 747 Fort Street, Victoria, BC, V8W 3E9

Telephone: (250) 387-3464

Website: http://www.eab.gov.bc.ca

57. If the EAB upholds an administrative penalty, payment is due within 40 days after the notice of

the EAB’s decision is given to you.

PUBLICATION:

58. Upon the conclusion of an appeal period, or appeal process, this determination will be published

on the BC Mine Information Website at: https://mines.nrs.gov.bc.ca/enforcement-actions

Dated this 8th day of April 2021.

http://www.eab.gov.bc.ca/

https://mines.nrs.gov.bc.ca/enforcement-actions

ref: 113500 file: 19000-20/frop

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