What's the penalty for dumping 9 million tons of toxic slag into a Washington lake? For Teck Cominco, that day of reckoning will probably be delayed years longer. The Canadian mining and smelting company, which has polluted Washington's Lake Roosevelt beyond recognition, filed an appeal January 14th of the U.S. District Court decision that found it liable for environmental damage caused by its Trail, B.C. smelter. The 9th Circuit wants briefs filed this spring, but it hasn't set a court date for the case.
After it eventually rules, the next stop will presumably be the U.S. Supreme Court. Assuming that the state and the Confederated Tribes of the Colville Reservation, which won last month's District Court decision, eventually prevail, they'll still have to prove ongoing damage to natural resources and the cost of yet-to-be-determined remedial steps.
While there are still plenty of unknowns in this case though, they do not include the basics. Teck admits that its Trail operation has dumped toxics-bearing slag into the upper Columbia River, which has carried it across the border into Lake Roosevelt. In October, the company admitted to a host of factual details, avoiding an anticipated month-long trial and providing material for U.S. District Judge Lonny R. Suko's findings of fact and conclusions of law.
Suko found that "[b]etween 1930 and 1995, Teck discharged at least 9.97 million tons of slag directly into the Columbia River. . . . According to Teck's General Manager of Lead Operations, [the company] discarded approximately 400 tons of slag directly into the Columbia River every day. Teck concedes the 9.97 million tons of slag discarded into the river contained 7,300 tons of lead and 255,000 tons of zinc. . . . At least 8.7 million . . . [tons] have] been transported by the Columbia River . . . into Washington." And that's not all.
The Trail operation also dumped effluent dissolved or suspended in water. "Teck concedes the effluent discarded into the Columbia River from 1923-2005 contained approximately 132,000 tons of hazardous substances, including 108,000 tons of zinc, 22,000 tons of lead, 200 tons of mercury, 1,700 tons of cadmium and 270 tons of arsenic."
The company also knew perfectly well that its wastes ended up downstream: "Teck's Trail leadership assumed that both slag and effluent went downstream, across the border and into Lake Roosevelt," Suko wrote. "Teck employees generally claimed that they did not know where the slag went after it was discarded into the Columbia River, [but] Teck's documents indicate otherwise. They confirm that for decades its leadership knew its slag and effluent flowed from Trail downstream and are now found in Lake Roosevelt and, nonetheless, Teck continued discharging wastes into the Columbia River."
Basically, the company used Lake Roosevelt as a dump site: "It 'was not only the inevitable consequence, but the very purpose' of Teck's disposal practices that the substances would come to be located at the [upper Columbia River] Site."
The company also realized that the wastes weren't exactly benign. "By the 1980s, Teck recognized its discharges were having impacts in the Upper Columbia River. Teck's Manager of Environmental Control . . . noted that samples taken downstream of the Trail facility showed that metals were leaching from Teck's slag. He also noted an absence of aquatic life." Not a decline or even a sharp drop. An absence.
The only real question before Suko was whether or not the U.S. Superfund law, CERCLA, could reach across the border to nail Teck Cominco for damages. "We had a very minimal burden," explains Assistant Attorney General Kristie Elliott, who has handled the case for the state. The plaintiffs "just [had] to show there is contamination at the site and there is a connection to a party." They did.
This isn't the first time Washingtonians have complained about waste products spilling across the border from Trail. Back in 1931, the International Joint Commission (established by treaty in 1909) decided that airborne sulfur dioxide from Trail had damaged coniferous trees and hay and grain crops in Washington, for which Canada should pay the U.S. $350,000. Seven years later, an arbitration tribunal decided that the smelter had continued to cause harm south of the border and awarded the United States $78,000 more.
The Trail Smelter Case, as it is known, didn't establish a legal precedent for the current litigation, Elliott says. But it did established an historical precedent. And it meant that for the past three-quarters of a century, the smelter's operators knew where their pollution went.
There have certainly been ironies. The United States had no sooner collected money for damages done to crops and forests in the upper Columbia River valley than it flooded the valley with Lake Roosevelt, caused by the Grand Coulee Dam. The state and the Colville tribe have sued Teck over its toxic metal pollution, but have also agreed that the federal Bureau of Reclamation can draw down the lake in order to provide water to irrigated farms and dry-country industrial and municipal users. The process will most certainly re-expose toxic sediments that had been covered by the upper levels of the lake.
As the Center for Environmental Law and Policy, Columbia Riverkeeper, and the Sierra Club told the Bureau, exposing another 400 acres of contaminated lake bed to the sun and wind probably has implications for human health.
Conceivably, the best thing one can do with a lot of the contaminated sediment is to leave it in place. Even that would probably cost a bundle and no one connected with the case seems willing to guess out loud just how large that bundle might be. Three years ago, then-Attorney General Rob McKenna speculated that the Teck Cominco settlement could dwarf the former U.S. record-holder. In that case Washington was awarded $188 million from ASARCO to clean up the legacy of pollution from the old Tacoma smelter, a smaller smelter in Everett and other operations in the state. (The ASARCO settlement, with 19 states, was the largest Superfund bankruptcy deal in U.S. history.)
Is that in the ballpark? Maybe after the appeals process finally ends, we'll find out.
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