Slag from a giant lead and zinc smelter in Trail B.C. has polluted Washington State waterways for so long that part of the shoreline has turned black and, after years of legal wrangles, the Confederated Tribes of the Colville Reservation are now celebrating a U.S. federal appeals court ruling that Teck Cominco Metals is responsible and owes the tribes millions of dollars.

The Ninth Circuit Court of Appeals has upheld an $8.25 million judgement made by a lower court that found Teck Metals, a subsidiary of Vancouver-based Teck Resources, was responsible for decades of toxic smelter waste that flowed down the Columbia River into Lake Roosevelt, a reservoir formed by the Grand Coulee Dam.

The court determined that the company owes the Colville Tribes for its legal costs and the cost of investigating the pollution.

The ruling says that, between 1930 and 1995, Teck discharged about 400 tons of slag daily — an estimated 9.97 million tons in total — directly into the Columbia River.

“These solid and liquid wastes contained roughly 400,000 tons of the heavy metals arsenic, cadmium, copper, lead, mercury and zinc, in addition to lesser amounts of other hazardous substances,” it says.

The Teck smelter is believed to be the world’s largest lead and zinc smelter and the Tribes estimate that about 240 kilometres of the river have been affected by slag or heavy metals.

Teck Resources was found guilty of dumping 9.97 million tons of contaminated waste into the Columbia River, a transboundary river that runs from British Columbia to Washington State. Illustration: Carol Linnitt / The Narwhal

Over the course of legal actions brought against Teck — which extend back to 1999 — the company has argued that the courts lacked jurisdiction over the company, that many other industrial operations contributed to the pollution and that the company was not “purposefully” dumping waste into the river knowing it would cross the border into the U.S. — all arguments rejected by the court.

“It is inconceivable that Teck did not know that its waste was aimed at the state of Washington when Teck deposited it into the powerful Columbia River, just miles upstream of the border,” Judge Ronald M. Gould wrote in the 55-page ruling.

A study commissioned by the tribes found that the waste matched the Trail smelter’s “isotopic and geochemical fingerprint.”

Teck Resources’ Trail smelter in the early 1900s. Photo: Ecology Washington

Trail smelter, circa 1929. Photo: B.C. Government Archives

The Colville Tribes were joined by the State of Washington as co-plaintiffs in 2004, with both the Tribes and State arguing that Teck should be found liable under the Comprehensive Environmental Response, Cleanup and Liability Act.

“This is a unique case, not only because a Canadian mining company has been found liable under U.S. law, but because an Indian Tribe and a state have joined forces to protect a shared, treasured resource — the Columbia River,” said Colville Business Council Chairman Rodney Cawston.

The ruling means that the polluter, not U.S. taxpayers, will pay the cost of remedial action, he said.

However, Cawston is cautious about the prospects of the long legal battle coming to an end and believes, that based on previous behaviour, Teck is likely to appeal.

The company has 90 days to petition the U.S. Supreme Court for a hearing.

“If they want to do the right thing, they will acknowledge all the damage and their responsibility to clean that up and work with the Tribe in honouring that settlement,” Cawston said.

“Facing the enormity of the decision I wouldn’t be surprised if they file an appeal…as a corporation they are going to look for the most economically feasible way out of this and, if that means fighting us in court, well, up until this point, that’s what they have chosen to do,” he said.

Teck spokesman Chris Stannell said in an e-mailed statement to The Narwhal that the company is disappointed by the decision and is reviewing it with counsel.

However, the decision will not affect Teck’s ongoing work to identify potential risks in the Upper Columbia River associated with historical operations at the Trail facility, he said.

So far, Teck has invested more than $85-million U.S. towards a study — under the oversight of the U.S Environmental Protection Agency — and if unacceptable risks are identified, they will be addressed, Stannell wrote.

“Results to date are encouraging and the Upper Columbia River remains an important recreational destination, with excellent water quality and restrictions on fish consumption that compare favourably to other water bodies in Washington State,” he said.

“Since the late 1970s Teck has invested approximately $1.5 billion to improve the operation’s environmental performance. As a result, emissions to air and water have been reduced by over 95 per cent,” Stannell wrote.

Teck stopped discharging slag in the Columbia River in 1995, but that does not mean the problem has gone away and more pollution constantly flows down the river from residual slag, Cawston said.

“It will take years to do the cleanup, even if they start today. We are going to be living with this situation for a while,” he said, describing it as a never-ending battle.

The pollution has affected fish habitat and water quality and heavy metals have been found in sturgeon which the Tribes are working to restore, Cawston said.

“We want the aquatic land to be cleaned up. There’s even an area called black sand beach that’s basically an area where all the slag that is coming down the Columbia is being deposited. It’s really black,” he said.

The Tribes have been in the area for thousands of years and it is difficult to persuade people that they cannot fish and swim in the traditional areas, he said.

“It’s a huge issue to us. It’s really hard to keep people away from those areas. Culturally and traditionally our people have used those waters since time immemorial.”

The Colville Tribes are made up of 12 bands whose territories cover much of northern Washington and extend into the Arrow Lakes region of B.C.

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Major industrial power users in British Columbia fear that if the proposed Site C dam becomes a reality, rate hikes could put mills and mines out of business while saddling taxpayers with a costly white elephant and ballooning BC Hydro debt.

A decision on the $7.9 billion plan to build a third hydroelectric dam on the Peace River will be made by the federal and provincial governments this fall.

Economic questions about the mega-project were raised by last month’s joint review panel report, which noted the dam would likely be “the largest provincial public expenditure of the next 20 years.”

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The panel, which did not come out for or against the project, found that, based on cost comparisons provided by BC Hydro, Site C would be the most economical way to provide new power — but said it could not measure the true cost or need and recommended the B.C. Utilities Commission should look at it, an idea immediately dismissed by Energy Minister Bill Bennett. (The commission turned down the Site C project in the early ’80s.)

Strong opposition to Site C is now coming from the unlikely direction of the Association of Major Power Customers of B.C., an organization representing about 20 of the largest employers and industrial customers in the province.

“We have absolutely no confidence that this is the least cost plan,” association executive director Richard Stout told DeSmog Canada.

“It’s not the right project right now”

Major industrial power users in B.C. have seen a 50 per cent increase in rates over the last five years and are looking at another 50 per cent over the next five years, he said.

“It is unusual for us to criticize a government of this stripe, but BC Hydro has been out of control for a good 10 years,” Stout said, pointing to almost $5-billion in deferred accounts.

“Any other business would have been declared bankrupt by now,” he said.

Site C will take a decade to build and, with changing markets and a burgeoning natural gas industry causing a surplus of generating capacity in North America, it is almost impossible to accurately predict demand and prices, Stout said.

“All we know is the original load forecasts are going to be wrong,” he said. “It’s not the right project right now.”

Craig Thomson, energy and environment supervisor at Canfor Taylor pulp mill told DeSmog Canada that industry in B.C. was built with a foundation of low power rates, but in the last five years that has changed and Site C would be the final straw.

“I think the cost of hydro-electric dam construction is so astronomical that no one will ever do it again and we’re going to have this huge white elephant,” he said.

“Potentially it’s going to drive our industry out of business.”

B.C.’s natural gas hypocrisy

Doubts are growing about cost comparisons made by BC Hydro, which didn’t include the use of gas power because the 2010 Clean Energy Act demands that 93 per cent of the province’s energy needs be met by clean, renewable power.

The act effectively eliminated the use of gas turbines and sent the gas-fired Burrard Thermal generating station into early retirement.

But the province has now handed a Clean Energy Act exemption to the liquefied natural gas (LNG) industry, a move that allows gas plants to meet their massive power needs with natural gas. Meantime, BC Hydro is prevented from using natural gas even as a backup to renewables.

“It’s really hypocritical to allow them [LNG facilities] to burn gas,” Merran Smith at Clean Energy Canada told DeSmog Canada. “The carbon emissions, as well as the air pollution, are inconsistent with the province’s goals.”

“Gas is a fossil fuel. It may be cleaner than coal or oil, but it still has a heavy carbon footprint.”

Should gas turbines be allowed for backup power?

Like many others, Stout believes alternatives to Site C should be considered, including the use of gas turbines as an intermittent source of power — something that would first need the government to change the Clean Energy Act.

Thomson is looking at new technologies coming on stream and, in the meantime, Burrard Thermal, with a similar capacity to Site C, could provide sufficient intermittent power, he suggested.

“Electricity is 32 per cent of our operating cost and, if it goes up and up, someone is going to say the business is not viable and the doors will close,” he warned.

Energy economics expert Marvin Shaffer, adjunct professor at Simon Fraser University, believes Burrard Thermal should never have been eliminated as a source of backup energy.

“I’m not suggesting that an old, relatively inefficient plant like Burrard should be used as a base load facility. What Burrard can do is provide a very cost-effective backup to the hydro system as well as back-up peak capacity exactly where it might be required,” Shaffer said.

Burrard Thermal generating station was sent into early retirement with the introduction of the 2010 Clean Energy Act. Credit: Niall Williams via Flickr.

With Burrard in place, B.C. would have no shortfall of energy until 2033 and, even without Burrard, strategically placed gas thermal plants could supply low cost energy as needed, he said.

Faced with Site C as the alternative to intermittently using gas turbines, even Joe Foy of the Wilderness Committee comes down on the side of occasional gas use.

“It seems a better solution than drowning 100 kilometres of farmland when you don’t even need that power for 300 days of the year,” he said.

Oxford study: Dams routinely come in 90% over budget

Many also have concerns that, when costs such as transmission lines are factored in, Site C’s cost will soar above $7.9 billion.

Fears that costs will run amuck are backed by an Oxford University study of power dams that found construction costs of large dams are, on average, more than 90 per cent higher than their budgets.

Mark Winfield, associate professor in the environmental studies faculty at York University, sees parallels between Site C and costly nuclear power plant plans in Ontario.

“Large hydro projects like Site C and nuclear power plant construction or refurbishment reflect a focus on large, centralized, high-cost, high-risk, high-environmental impact, long-lived generating infrastructure,” he said.

That limits opportunities for the system to adapt to market changes and sets the focus on only one path, Winfield said.

“In both cases there are significant uncertainties about future demand and, therefore, substantial risk of making major investments in projects which may turn out not to be needed or which are overtaken by newer, better technologies,” he said.

Site C’s legacy: cheap power or wealth destruction?

Dan Potts, former executive director of the Association of Major Power Customers of B.C., believes the lasting legacy of Site C would be wealth destruction.

“The huge cost will rob the province of valuable resources that could be used to deliver other needed government services as well as burden the B.C. economy with debt and high electric power rates that will sap our competitiveness,” he said.

Times have changed from when previous dams were built on the Peace and Columbia Rivers, said Potts, who has calculated that gas prices would have to almost quadruple before power from Site C would be economically viable for export.

“B.C. Hydro has filed information that the cost of electric power from Site C will be in the range of $100 per megawatt hour. Current market prices are in the range of $30 per megawatt hour. If Site C were now operational, the market value of the power produced would be $350 million per year less than the cost,” Potts said.

Site C will lose $800 million in first four years: report

The possibility of exporting excess power to help fund the dam was discounted by the joint review panel, which predicted that, unless prices changed radically, B.C. Hydro operations would lose $800-million in the first four years of operations:

These losses would come home to B.C. ratepayers in one way or another. B.C. Hydro’s expectation is that it might sell Site C surpluses for only about one-third of costs, leaving B.C. ratepayers to pay for the rest.

But the panel also says that Site C, after an initial burst of expenditure, would lock in low rates for decades and produce fewer greenhouse gas emissions than other sources.

Ignoring the Clean Energy Act is not an option for BC Hydro and there is no doubt Site C compares favourably to other clean energy costs, said Hydro spokesman Dave Conway. In comparison to Site C power at $100 per megawatt hour, new generation from wind or micro-hydro comes in at $128 per megawatt hour, he said.

However, the panel noted that geothermal energy would cost about the same as Site C power — and as a firm source of power could present a viable alternative to the dam. Geothermal could be built incrementally to meet demand, eliminating the early-year losses of Site C, the panel noted.

Even without Site C, customers are looking at a 28 per cent increase in rates over the next five years, but British Columbians should bear in mind that they are paying one of the four lowest energy rates in North America, Conway said.

However, Foy would like all British Columbians to consider what else could be done with almost $8-billion.

“Maybe better education for kids or health care?” he asked.

“If we spend $8-billion on Site C, what community doesn’t get a health care facility?”

Image Credit: An area of the Peace River Valley threatened by Site C. Photo by tuchodi via Flickr.

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