Canadian zinc producer liable for hazardous discharges into the United States

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Date: March-April 2013
From: Hazardous Waste Consultant(Vol. 31, Issue 2)
Publisher: Aspen Publishers, Inc.
Document Type: Article
Length: 2,807 words
Lexile Measure: 1410L

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In a December 14, 2012 decision, the U.S. District Court for the Eastern District of Washington found a Canadian zinc producer to be liable under CERCLA for cleanup costs related to the company's illegal discharges of slag and effluent into the Columbia River in Washington (Pakootas v. Teck Cominco Metals, LTD., No. CV-04-256-LRS [E.D. Wash. Dec. 14, 2012]) (Pakootas II). The illegal discharges had been occurring for more than 60 years. The ruling means that EPA can demand that the company pay for cleanup under CERCLA. The company may also be held liable for natural resource damages under CERCLA, but that decision was not part of this case.

Background

Between 1896 and 1995, Teck Cominco Metals, Ltd., or its predecessors, operated metal and fertilizer production facilities in Trail, British Columbia, Canada. The so-called Trail Smelter is located 10 miles upstream from the United States-Canadian border on the Columbia River. Teck is a Canadian corporation registered as an extra provincial company under the laws of British Columbia.

Slag is a by-product of the high temperature recovery of metals. Teck's slag is primarily made up of silica, lime, and iron. The slag also includes zinc, lead, copper, arsenic, cadmium, barium, antimony, chromium, cobalt, manganese, nickel, selenium, and titanium. From 1930 to 1995, the company intentionally discharged at least 9.97 million tons of slag directly into the Columbia River through outfalls at the Trail smelter. Approximately 400 tons of slag were directly discarded into the Columbia River every day. The Columbia River has transported at least 8.7 million tons of the discharged slag downstream of the international border and into Washington.

Teck also created waste as effluent, meaning "all non-slag discharges of waste by Teck, excluding air emissions." The effluent was created by a number of different processes, including smelting and refining of metals (e.g., antimony, bismuth, copper, lead, silver, zinc), calcine leaching, fume leaching, electrolysis, melting and casting, and fertilizer production. The effluent, which was also intentionally discharged into the Columbia River, contained metals and other chemicals in dissolved, colloidal, and particulate forms.

The Columbia River has the power and capacity to transport the slag, either in suspension or as bed load. Sand-sized sediment, such as most slag, can be maintained in suspension in the river until it reaches a point of repose upstream of the Grand Coulee Dam in Washington. As the slag is transported within the river, the particles are abraded, creating smaller particles that are easier to transport, as well as exposing fresh surfaces. The river's capacity to transport the slag means it also has the capacity to transport the effluent.

Teck employees stated that they did not know where the slag went after being discarded, although the company's documents indicated otherwise. Teck knew in the 1930s that slag had been observed on Columbia River beaches near the United States-Canadian border. Teck also knew in the 1970s that granulated slag had settled out in Lake Roosevelt, a 130-mile-long lake upstream of the Grand Coulee Dam. In the 1980s, samples...

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Gale Document Number: GALE|A326852310