Teck ordered to pay US natives $1 million for Trail smelter pollution

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 native 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 Teck’s zinc smelter in Trail, British Columbia, discharged slag into the Columbia River. The dumping stopped in 1994 but the Confederated Tribes of the Colville Reservation, whose land is on the Columbia River across the border in the United States, decided in 1998 to try and force the Canadian mining major to assess and then fix the damage its smelter 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 Teck 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 clean-up 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 initiated any studies and the Colville Tribe had lost patience. Two members of the Tribe, 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 could have to pay its share of the clean up 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 as well as paying Pakootas’ 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 the ecological and human health conditions within the lake. 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 the ecological risk assessment researchers determined silver and zinc concentrations in the waters exceeded chronic effects benchmarks, though they did not find evidence that metal concentrations had impacted 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 studies had not been impacted by smelter pollution, including mallards, river otters, and great blue herons. However the study said risks could not be ruled out for another six animals, including robins impacted by cadmium and lead, wrens impacted by cadmium, and domestic horses impacted by lead.