VANCOUVER– After exhausting its appeal options, Teck (TCK. B-T, TCK-N) has been ordered to pay more than US$1 million to an American Indian tribe to reimburse legal expenses it incurred trying to force the major to remediate downstream pollution from its Trail zinc smelter.
For over 100 years, this smelter in Trail, B. C., discharged slag into the Columbia River, which flows south into northeastern Washington state. The situation has been the genesis of a large body of legal doctrine relating to transboundary environmental harm, with precedent-setting air-pollution rulings being made at Trail as far back as the 1930s.
The slag dumping stopped in 1994, but the Confederated Tribes of the Colville Reservation, whose land is on the Columbia River in the U. S., decided in 1998 to try to force the Teck predecessor company Cominco to assess and then fix the damage its smelting had caused.
In 1999, the tribe petitioned the U. S. Environmental Protection Agency (EPA) to assess Lake Roosevelt, the 270-km stretch of the Columbia River from the Canadian border south to the Grand Coulee Dam. In 2003, the EPA determined that the newly merged Teck Cominco should be subject to the U. S. Superfund law, which gives the U. S. federal government authority to clean up heavily contaminated industrial sites and charge the responsible party for 70% of the cost.
As a first step, the EPA demanded Teck pay for studies to determine the extent of contamination in Lake Roosevelt from the Trail smelter. Teck argued that, since it is a Canadian company and its Trail operation is in Canada, it did not have to comply with Superfund requirements. The company said it wanted to seek a “diplomatic resolution” because it was an international issue.
A year later, Teck had not begun any studies and the Colville tribe had lost patience. Two of its members, Joseph Pakootas and Donald Michael, launched a lawsuit seeking a court order forcing Teck to comply.
Teck fought hard to derail the Colville members’ efforts and avoid its Superfund obligations. But in 2007, a federal appeals court ruled that Teck would have to pay its share of the cleanup cost. Teck asked the Supreme Court to overturn the ruling, arguing that the Superfund law doesn’t apply to a Canadian mining company discharging hazardous waste unless it “arranged” for the contamination to end up in the United States. Teck said that, as opposed to any such intent, pollution stemming from its smelter that ended up south of the border got there by way of an “action of nature.”
But in January 2008, the U. S. Supreme Court decided it would not intervene in the appeals court ruling. That sent the case back to the District Court of Eastern Washington, where a judge in mid-March ordered Teck to reimburse the Colville tribes for the more than US$1 million it has spent on the case over the past five years and to pay Pakootas’s and Michael’s legal expenses. That amount has not yet been determined.
Under U. S. law, Teck has 30 days to appeal the ruling to the 9th U. S. Circuit Court of Appeals.
The case itself is now essentially moot because in mid-2006, Teck forged an agreement with the EPA. Teck agreed to fund studies of Lake Roosevelt, under the oversight of the EPA, to produce a report on ecological and human health conditions there. The company placed US$20 million in escrow as assurance that it will cover its obligations.
Teck recently started those studies and does not expect to be done until 2011. Data from sampling will inform a baseline human health and environmental risk assessment, which will in turn, form the basis of a remedial investigation and feasibility study. The EPA will use that final study to determine whether and what remedial actions are needed.
“Until the studies (of Lake Roosevelt) are completed, it is not possible to estimate the extent and cost, if any, of remediation or restoration that may be required,” Teck wrote in its 2007 annual report. “The studies may conclude. . . that no remediation should be undertaken. If remediation is required, the cost of remediation may be material.”
The Trail smelter started discharging slag into the river in 1906. Slag is a glass-like compound made primarily of silica, calcium, and iron used in metal smelting for waste removal, temperature control, and oxidation control. Pure slag is sufficiently inert that it is not considered a hazardous chemical — byproduct slag is now rarely thrown away but rather used in railroad track ballast, as fertilizer and a road base material, and as part of concrete. However, after slag is used in smelting, it also contains small amounts of base metals, including zinc, lead, copper, and cadmium.
Teck has already completed a study on the effects the discharged slag has had on the river north of the border. In a report from June 2006, researchers determined silver and zinc concentrations in the waters exceeded chronic-effects benchmarks, though they did not find evidence that metal concentrations had affected fish community compositions or abundance.
In a follow-up report dated August 2007 that assessed risks to wildlife from metal uptake, researchers determined that eight of the animals they studied, including mallards, river otters, and great blue herons, had not been impacted by smelter pollution. However, the study said risks could not be ruled out for another six animals, including those of cadmium and lead on robins, wrens, and domestic horses.