A week before trial was to begin in U.S. District Court in Yakima over Teck Metals, Inc.'s liability for contamination from smelter discharges in Canada, the company has conceded its waste is leaching heavy metals in the upper Columbia River in Washington.
The trial was to have focused on whether Teck's waste from the company's smelter in Trail, British Columbia has "released" hazardous substances in the United States. Teck now admits that it does, making a trial on these issues unnecessary.
The admission, in the form of a legal stipulation that was entered by the federal court, comes after eight years of litigation by the Colville Confederated Tribes and the state of Washington.
Teck admits it intentionally discharged nearly 10 million tons of slag-waste separated from ore during smelting-along with industrial sewage containing hundreds of thousands of tons of toxic metals such as mercury, copper, cadmium, arsenic, lead, and zinc to the river in Canada over the last century.
Teck now admits these substances are hazardous and that they came to rest in the sediments along the shores of the Upper Columbia River in Washington state. They also concede that heavy metals continue to leach from its waste into Washington state's environment, meaning they are potentially available to cause harm.
Establishing liability is a first step in the tribes’ and state’s efforts to hold the company accountable for assessing and addressing the risks posed to the public and the environment.
"The state is very pleased with this development," said Kristie Carevich Elliott, state assistant attorney general. "The state and Colville Tribes worked together to present a strong case, even ahead of the trial, to prove that the massive quantities of waste historically discharged by Teck's smelter over the last century have impacted, and continue to impact, the upper Columbia River and Lake Roosevelt in Washington state."
Teck still intends to re-argue it is not subject to United States law, given that the initial discharge of waste occurred less than 10 miles north of Washington in Canada. Arguments to this effect were already rejected in an early phase of the case, but Teck is entitled to renew them on appeal.
Judge Lonny Suko in the Eastern District of Washington will first decide liability under U.S. law, however. This decision will be based on evidence already submitted to the court and will be the subject of legal arguments to the court on Oct. 10.
According to the Department of Ecology, studies have shown that slag and industrial sewage from the Teck smelter have deposited toxic materials to the sediments and banks of the river in Washington.
Ecology is concerned that the pollution will harm an array of important aquatic life, such as the small bottom dwelling creatures that form a key foundation to the underwater food chain. Their health directly affects the fishery and river ecosystem.
"We are pleased that the fundamental science is now settled," said Mike Hibbler who manages Ecology's Toxic Cleanup Program in Spokane. "In addition to risks to the base of the river food chain, the health and reproduction of other species, such as native sturgeon and wild mussel populations, are directly placed at risk by toxicity remaining in the sediments. Plus, the aquatic habitat of the Columbia River and Lake Roosevelt and neighboring upland has been affected by past smelter air emissions."
The company, in a press release issued this week, said the subsequent hearing, with respect to claims for natural resource damages and costs, is expected to be deferred while the remedial investigation and feasibility study with respect to environmental conditions in the upper Columbia River are completed. That study, being undertaken by Teck American Incorporated pursuant to a 2006 agreement with the U.S. Environmental Protection Agency, is currently expected to be completed in 2015.
The company says TAI continues to work with the EPA, the state, the tribes and others on studies in the upper Columbia River, which to date have generally shown that the water in the river system meets applicable water quality standards in both Canada and the United States, that the beaches are safe for recreational activities, and that the fish in the river system are as safe or safer to eat than fish in other water bodies in Washington state.
TAI has commissioned a study by experts in natural resource damage assessment and on the basis of that study it estimates that the compensable value of any damage will not be material.
Teck continues to work cooperatively with regulators to complete its investigation of environmental conditions in the upper Columbia River. Today, metals in discharges from Trail Operations are much lower than naturally occurring metals loads in the Columbia River. While the slag historically deposited in the river has been shown to release small quantities of metals under certain conditions, it is generally inert, the company says.
There can be no assurance that TML will ultimately be successful in its defense of the litigation, or that Teck or its affiliates will not be faced with further liability in relation to this matter,” according to the Teck press release.
Until the studies described above and additional damage assessments are completed it is not possible to estimate the extent and cost, if any, of any remediation or restoration that may be required, or to fully assess TML’s potential liability for damages,” the press release say. “The studies may conclude, on the basis of risk, cost, technical feasibility or other grounds, that no remediation should be undertaken. If remediation is required and damage to resources found, the cost of remediation may be material.”