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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In October, B.C. Premier John Horgan made a visit to the Rio Tinto Alcan smelter on the banks of the Douglas Channel in Kitimat.

He praised the facility for being “a great example of how companies can improve conditions for workers and reduce pollution all while improving their bottom line.”

What he didn’t mention was the ongoing battle at Rio Tinto Alcan over a provincial permit that allowed the company to increase sulphur dioxide pollution by more than 50 per cent, or the union representing 800 workers at the smelter that appealed that permit, saying the increase in pollution was a direct threat to their health.

Exposure to sulphur dioxide aggravates the respiratory systems of asthmatics and is known to negatively affect the respiratory systems of children and the elderly.

At the heart of the controversy is a decision by the B.C. Ministry of Environment in 2013, which allowed the smelter to increase its sulphur dioxide emissions into the Kitimat airshed during a $5 billion expansion project. The ministry approved the increase in emissions under an environmental monitoring plan that would measure, but not prevent, the impacts of the pollution on human health until 2019, when the plan would be revisited.

B.C. did not require the company to install scrubbers, commonly used in smelters to remove airborne pollutants from emissions, a decision that still bothers Sean O’Driscoll, president of the smelter’s union, Unifor local 2301.

“Having a monitoring program ongoing, with suitable human health mitigation plans required to be implemented at a later day, has folks feeling like they, their children and neighbours are being treated like guinea pigs,” O’Driscoll told DeSmog Canada.

ICYMI: Rio Tinto Alcan Polluting Kitimat Airshed to Save Money, Tribunal Hears

ICYMI: Rio Tinto Alcan Externalizing Air Pollution onto Kitimat Households, Says Expert Witness

The B.C. Environmental Appeal Board previously told the union it had no right to challenge the environmental effects monitoring plan. But the court of appeals has now overruled that finding, kicking the original appeal — first launched in 2014 — back into action.

“This [appeal] opens a path for Unifor to challenge the mitigation plan on the basis that it is insufficient to protect workers and their families from growing levels of sulphur dioxide,” Jason Gratl, lawyer for local 2301, told DeSmog Canada.

O’Driscoll said the company was essentially given permission to subject workers and the community to a health risk to minimize costs.

“Our full expectations of the new Horgan NDP government is that they take another look at this issue and put the health of communities first,” O’Driscoll told DeSmog Canada. “Industry and stringent environmental standards need not be mutually exclusive.”

Gratl said the appeal will address whether or not it was appropriate for the government to approve the pollution increase without a clear plan to protect human health.

Governments increasingly approve projects with the explicit plan to work out details after the fact, Gratl said, adding pipeline approvals that come with more than 100 conditions are a prime example.

“What happened with Rio Tinto Alcan is the government said ‘let’s start making aluminum and we’ll figure out the environmental and social issues later.’ And they keep trying to push these issues further down the road.”

BC Using #Kitimat Smelter Workers as ‘Guinea Pigs’ for Air Pollution Monitoring, Union Says https://t.co/CcjzYKZcOE #bcpoli

— DeSmog Canada (@DeSmogCanada) November 6, 2017

Experts-for-Hire at Heart of Rio Tinto Alcan Concerns

Chris Tollefson, lawyer with the Pacific Centre for Environmental Law and Litigation, brought a previous challenge against the Rio Tinto Alcan on behalf of two Kitimat teachers: Lis Stannus and Emily Towes.

In 2015 Tollefson and his co-counsels provided an Environmental Appeal Board tribunal with evidence of alleged regulatory capture.

Regulators and statutory decision-makers within the Ministry of Environment were inappropriately close with Rio Tinto Alcan and relied heavily on science and analysis provided by the company’s hired scientists, Tollefson argued.

Tollefson said this case gives rise to the problems of “professional reliance” — the practice of using proponent-hired experts rather than independent analysts during environmental assessments.

ICYMI: ‘This is B.C.’s Version of the Duffy Scandal’: Government Officials Refer to Rio Tinto Alcan as ‘Client’ in Work Journal

ICYMI: Tribunal Hears Regulatory Capture Behind B.C.’s Decision to Increase Rio Tinto Alcan Pollution in Kitimat Airshed

In August, the B.C. government ordered a review of the professional reliance system, which rose in popularity in B.C. under the tenure of the BC Liberals as cuts to the civil service were made.

Tollefson said the reopening of Unifor’s appeal will start a new discovery process that may provide crucial insight into what decisions and decision-makers played a role in the permits and adaptive management plan being approved.

“We’re concerned that the Ministry of Environment relied far too heavily on Rio Tinto Alcan’s experts, on Rio Tinto’s preferred approach and did not subject the environmental effects management plan to the kind of rigorous scrutiny that it deserved; and that it rushed its approval of that management plan in a way that compromised its scientific integrity,” Tollefson said.

‘We Feel Like An Experiment’

Tollefson also said the appeal provides new ground for his clients to relaunch their legal challenge.

Stannus said that is something she plans to pursue.

“Since this permit was approved, we have learned a lot more about the problems of professional reliance, a lot more about the health impacts of sulphur dioxide,” Stannus said.

Kitimat resident Lis Stannus poses for a photogaph with Premier John Horgan during his October visit to Kitimat. “I walked up to Horgan and I said, ‘I’m from Kitimat and I’m worried about sulphur dioxide pollution,’ ” Stannus recounted to DeSmog Canada. Photo: Province of B.C. via Flickr

“It’s a little shocking to me that this is allowed to proceed. We feel like an experiment and I don’t recall ever giving consent to this experiment.”

Stannus said her ears perk up whenever she hears the new government criticize the practice of professional reliance.

“But they never bring Rio Tinto Alcan up,” Stannus told DeSmog Canada. “They never mention the fact that the project’s studies were bought and paid for by Rio Tinto.”

Kitimat Residents Try to Raise Concerns with NDP Government

Stannus said she sought out the premier on his last visit to the area.

Stannus and a community organization she belongs to, the Kitimat-Terrace Clean Air Coalition, have sent three letters to B.C. Environment Minister George Heyman, expressing their fears that Rio Tinto Alcan’s permit to increase sulphur dioxide emissions is a threat to their health. The group has repeatedly asked for meetings with the minister, Stannus said.

“I asked [the Premier] why they won’t meet with us and he said it is because they have only been in power for 100 days,” she said.

ICYMI: Kitimat Residents ‘Muzzled’ From Speaking Out On Rio Tinto Alcan’s Plan to Increase Air Pollution

In a statement to DeSmog Canada, Minister Heyman said he can “empathize with those who have concerns about air quality in their community.”

“I want to assure everyone that we will restore public confidence in government’s ability to protect our water, land and air,” Heyman said.

He added the environmental effects monitoring plan is currently under appeal with the Environmental Appeal Board.

“As such it would be inappropriate for me to comment further.”

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The Environmental Appeal Board recently ruled B.C. was in its right to grant Rio Tinto Alcan a permit to increase sulphur dioxide emissions (SO2) from its 60-year old Alcan aluminum smelter in Kitimat.

The permit, granted in 2013, allowed Rio Tinto to increase sulphur dioxide emission as part of the company’s modernization of the aging Kitimat aluminum smelter. The modernization project, which nearly doubles the plant’s production, decreases the release of greenhouse gas emissions but raises sulphur dioxide emissions by 56 per cent.

The B.C. Ministry of Environment granted Rio Tinto permission to modernize the smelter but did not require the company to install scrubbers, commonly used in smelters to remove airborne pollutants from emissions.

Two Kitimat elementary teachers, Lis Stannus and Emily Toews, challenged the permit through the B.C. Environmental Appeal Board, saying the increased pollution would negatively and unnecessarily impact Kitimat residents.

Sulphur dioxide is a pungent pollutant released from the combustion of fossil fuels, such as the petroleum coke used to smelt aluminum. It is known to irritate skin, mucous membranes and lungs. Exposure to sulphur dioxide is also known to aggravate the respiratory systems of asthmatics, children and the elderly.

Stannus said she is disappointed in the December 23 ruling.

“Being a teacher of young children I see a lot of respiratory illness as it is,” Stannus told DeSmog Canada. “I will also now question whether any respiratory problems are a result of these increased emissions.”

According to a 2012 study published by Northern Health, Kitimat has a 60 per cent higher incidence of death from bronchitis, emphysema and asthma than the B.C. average.

Stannus said the Environmental Appeal Board made nine recommendations to Rio Tinto Alcan, seven of which “speak to health studies or the need to monitor emissions as to impacts on health.”

Appellant Lis Stannus in Kitimat, B.C. Photo: Carol Linnitt.

“We have been saying all along that there needs to be more study as to the health impacts on Kitimat residents before the permit amendment is granted to increase emissions,” she said. “It would have been prudent to conduct these studies before the permit was granted rather than after.”

She added the decision acknowledges the fact that sulphur dioxide can be harmful to human health.

“Any increase in respiratory illness should not be considered trivial when it has to do with an individual's health,” she said.

Kitimat Mayor Phil Germuth also expressed disappointment with the decision.

“We’re a bit disappointed in the decision,” he said. ”I believe the scrubbers should have been installed right from the beginning.”

Germuth noted he is not criticising Rio Tinto Alcan for the decision. “It’s the government’s responsibility to protect human health and the environment, not Rio Tinto’s.” He added government subsidies could play a role in the development of expensive technologies like scrubbers, to ensure a balance is struck between development and protecting human health and the environment.

Germuth said Kitimat is “thankful” to Rio Tinto for investing $5 billion in the smelter and “securing the future of the aluminum industry in B.C.”

But, he added, this recent decision has created uncertainty for Kitimat residents and future industries eyeing the region for further development.

“Besides the human health and environmental effects of SO2 in the atmosphere, my other concern is that having this much SO2 in the atmosphere could also potentially restrict any other industry from coming here that might have SO2 emissions as the airshed might already have too much in it.”

Emissions can be seen rising from the Rio Tinto Alcan Kitimat smelter on June 4, 2015. Photo: Carol Linnitt.

A 2014 report commissioned by the B.C. government found the Kitimat community and environment can handle increased industrial expansion, including more oil, gas and smelting operations.

Environment Minister Mary Polak said the Kitimat airshed can “safely accommodate” high industrial growth.

During hearings conducted by the Environmental Appeal Board, Brian Scarfe, economist and cost-benefit analyst from the University of Victoria, testified B.C. and Rio Tinto Alcan were externalizing the costs of sulphur dioxide emissions onto the health of Kitimat residents.

Scarfe told the board the overall cost placed on human health and the environment will outstrip the cost of installing scrubbers on the smelter.

“I don’t like to think of this as a zero sum game, but that is what we have,” Scarfe told the board. “Costs are going to fall one way or another, benefits are going to fall one way or another.”

“We can think about households on one side and RTA on the other: clearly if nothing is done to limit SO2 there will be costs to the environment and costs to households in the area,” he said.

A December 24 statement released by Rio Tinto B.C. General Manager Gaby Poirier states “there is more work to do to address community concerns regarding air quality in the Kitimat Valley.”

“In providing their confirmation, the EAB included a series of recommendations,” Poirier wrote. “Over the coming months, we will be working to fully assess them and we will continue to involve the local community including residents, stakeholders and our employees as we do so, noting that some of the recommendations have already started to be implemented.”

A Rio Tinto Alcan poster explains why SO2 scrubbers are not necessary at a public information centre in Kitimat, B.C on June 4, 2015. Photo: Carol Linnitt.

The fight against Rio Tinto Alcan’s emissions permit was one of the largest cases ever heard by the B.C. Environmental Appeal Board, the same body that ruled in favour of the contentious contaminated soil landfill site near Shawnigan Lake. During the lengthy trial the tribunal heard of a cozy relationship between Rio Tinto Alcan and the B.C. government and allegations of regulatory capture. 

Lawyers for Stannus and Towes were unable to provide comment on the ruling or whether they will pursue an additional appeal process.

Kitimat Unifor local 2301 is also appealing the Rio Tinto Alcan permit through the Environmental Appeal Board after winning the right to do so through the B.C. Supreme Court.

“Expanding the smelter without a scrubber is a terrible health risk to my community,” Sean O’Driscoll, Unifor Local 2301 President, said in a statement.

“We’re very pleased that Rio Tinto’s proposal will have to go through an environmental assessment. It’s a shame that it takes a Supreme Court Judge to force the B.C. Liberal government to do the right thing.”

Image: RTA

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Lis Stannus remembers how serious the problem of acid rain was in Ontario when she lived on a farm near Lake Huron as a child. So when Rio Tinto Alcan informed Kitimat residents of its plans to increase sulphur dioxide pollution — a key contributor to acid rain —she couldn’t understand why no one fought back.

“Nobody was speaking out,” Stannus said, “and I found it amazing that those people who should have been speaking out weren’t.”

Rio Tinto Alcan received a permit from the B.C. government in 2013 that allowed the company to increase production of aluminum at its smelter in Kitimat, leading to a 56 per cent increase in sulphur dioxide emissions. Currently, both the government and Rio Tinto Alcan are defending that permit in front of a tribunal acting for the B.C. Environmental Appeals Board in Kitimat.

Rio Tinto Alcan says its ‘modernization’ of the smelter is now 94 per cent complete although the tribunal has the power to rescind the province’s permit, putting the immediate future of the plant in question.

The Muzzle Effect: Small Town, Big Company

Stannus said when she first heard about the emissions increase she contacted the city, the Kitimat health authority and local environmental groups to push back against the company’s plans, to no avail.

But it didn’t take long for Stannus to realize “there was a lot of muzzling” going on, she said. “We are all muzzled here.”

Part of the problem, Stannus said, is that the aluminum plant is a major job provider for Kitimat.

“Without Alcan, Kitimat would be nothing,” she said. “Kitimat literally wouldn’t be here.”

Alcan, now owned by multi-national mining magnate Rio Tinto, used to be fondly referred to as “Uncle Al” by Kitimat residents.

The company created Kitimat as an artificial township in the 1950s to support a growing workforce. Although the planned city was originally created with 150,000 residents in mind, its current population is between 8,000 and 9,000 — about 1,400 of which rely on the smelter for employment.

“It’s like nobody would speak out if they worked for Rio Tinto Alcan,” she said. “You just wouldn’t speak up.”

Stannus said she recently spoke to an employee of Rio Tinto Alcan who said he was reprimanded by company officials for posting about sulphur dioxide emissions on his Facebook page.

Morris Amos from the Haisla First Nation said his band council and Rio Tinto Alcan entered into a $22 million “Legacy Agreement” that acts as a gag order on Haisla officials.

“Part of the language of the agreement, which is really more of a contract, includes a clause that talks about the Haisla Nation never coming forward to question anything that Alcan does as long as the agreement is in effect,” he said.

The Legacy Agreement, signed in 2010, guarantees employment, business opportunities and a trust fund for the Haisla Nation as an outcome of Rio Tinto Alcan’s modernization project.

Amos, brother of former elected Haisla chief Gerald Amos, said the agreement means his nation can’t officially question the increase of Rio Tinto Alcan’s sulphur dioxide emissions.

“I take that as a muzzling clause,” he said. “It remains to be seen if that has any force or effect legally — it hasn’t been challenged yet.”

Amos says the Legacy Agreement explains why the Haisla Nation hasn’t played a role in fighting for pollution reductions.

The Legacy Agreement, “is part of the reason why there’s no band council presence in this Environmental Appeals Board hearing,” he said.

Amos said he can speak out about the Legacy Agreement and Rio Tinto Alcan’s sulphur dioxide emissions because he’s not a part of the band council.

“I work for a heredity chief, so that’s another thing altogether.”

Rio Tinto Alcan’s Permit to Pollute

B.C. approved a permit in April 2013 that granted Rio Tinto Alcan the right to increase its sulphur dioxide emissions by 56 per cent.

Stannus, along with fellow Kitimat resident Emily Toews, is appealing that permit approval in the Environmental Appeals Board hearing, arguing the increase in sulphur dioxide emissions unnecessarily threatens human health.

“I was really mad,” Stannus said. “Because it seemed like an infringement of our rights and it went against everything the government told us we were working towards: reducing emissions, keeping the air clean.”

Stannus realized she needed to speak out. “ I thought, ‘I can do it. I don’t have anything to lose.’”

Pollution Reduction Measures Not Required by Province

Rio Tinto Alcan’s ability to reduce its sulphur dioxide emissions is central to the appeal hearings.

Giving testimony before the appeal panel, Ian Sharpe, director of environmental protection with the B.C. Ministry of Environment, said before granting the permit he required evidence Rio Tinto Alcan “could and would” install pollution reduction technology called scrubbers “should there be a need to have emissions lower than what they applied for.”

But rather than require the company to install scrubbers, which would prevent the increase of sulphur dioxide emissions, the province granted Rio Tinto Alcan a permit to increase its emissions for an indefinite amount of time.

Sharpe told the panel he decided not to impose sulphur dioxide limits on Rio Tinto Alcan because both B.C. and the federal government are considering updating their own standards in coming years.

Stannus said she doesn’t understand why the province will allow emissions to go up if the company has already prepared for the installation of scrubbers.

“I learned there was a place put at the plant for wet scrubbers. That was a backup plan,” she said. “I thought, ‘if scrubbers aren’t feasible, why would they do that?’”

Stannus thinks it comes down to penny pinching. Rio Tinto Alcan initially announced its modernization project would cost just over $2 billion but that number has recently skyrocketed to nearly $5 billion.

The Environmental Appeal Board hearings are currently taking place in Kitimat and are now in their third week. The panel could rescind Rio Tinto Alcan’s permit or order the company to install scrubbers.

Image Credit: Lis Stannus courtesy of Doug Keech.

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Move over Duffy diaries. There’s a new black book in town.

That’s the detailed work journal of B.C. Ministry of Environment senior official Frazer McKenzie, which recounts conversations between ministry officials and Rio Tinto Alcan while the company was applying for a permit to increase aluminum production at its Kitimat smelter.

“Frazer McKenzie was a diligent and thorough employee. He documented ongoings with Rio Tinto Alcan within government that we’d otherwise never know about,” lawyer Chris Tollefson told DeSmog Canada.

During the application process, Rio Tinto Alcan financed McKenzie’s position at the Ministry of Environment through a secondment agreement and government officials repeatedly refer to the company as a “client.”

DeSmog Canada has learned this parlance has become commonplace between ministry officials and industry. Indeed, much of what occurred in the Rio Tinto Alcan case appears to be standard operating procedure. 

McKenzie's journal — made public due to an appeal — offers a rare glimpse into the inner workings of B.C.'s Ministry of Environment. 

The ministry has argued that it agreed to allow the company to fund McKenzie’s position because of concerns there would be “inadequate staffing to deal with the application” otherwise. Such arrangements with industry are not entirely unusual due to chronic underfunding.* 

Rio Tinto Alcan’s application, which was approved by B.C. in 2013, granted the company the right to increase sulphur dioxide emissions in the Kitimat airshed by 56 per cent.

Sulphur dioxide is released from the combustion of sulphur-laden fossil fuels — such as the petroleum coke used to smelt aluminum — and irritates eyes, noses, throats and lungs. People with asthma, children and the elderly are at increased risk from sulphur dioxide exposure.

Two Kitimat elementary school teachers — Emily Toews, who suffers from asthma, and Lis Stannus — are now challenging that permit approval through the B.C. Environmental Appeals Board, arguing the project threatens human and environmental health. The appeal, being heard by a tribunal in Kitimat, is in its third week.

“This case really does represent a situation where you have a regulator that has gotten too close to a powerful and well-resourced private interest that it is supposed to be independently regulating,” Tollefson told the tribunal.

Central to the tribunal are the extensive notes McKenzie took while the Ministry of Environment, including manager of environmental protection Ian Sharpe, and Rio Tinto Alcan discussed the company’s permit application.

On Monday, Sharpe told the appeals panel Rio Tinto Alcan was “after comfort in the authorization process” and that he discussed the possibility of creating “some kind of comfort letter or document…that would give Rio Tinto Alcan’s board the comfort they needed to get on with funding.”

“This is B.C.’s version of the Duffy senate scandal: it shows how deeply comfortable government and industry are with one other,” said Richard Overstall, counsel for Emily Toews.

Notebook Shows B.C. Left Sulphur Dioxide Limits Unanswered

McKenzie’s notes show the provincial government was aware of scrubbing technology — used to eliminate sulphur dioxide emissions from smelters around the world — but chose not to require Rio Tinto Alcan to put that technology in place.

Under cross-examination, McKenzie read aloud his notes, which referenced Rio Tinto Alcan’s request to eliminate the mention of scrubbers from an internal memo. He also noted a phone call from a deputy minister who “did not want to let a little SO2 get in the way” of Rio Tinto Alcan’s project.

McKenzie’s journals also show the company was anxious about the projected increase of sulphur dioxide emissions from the modernization project and wanted regulatory certainty to calm investors.

Rio Tinto Alcan requested specific sulphur dioxide discharge limits during the creation of a joint memorandum of understanding (MOU) with the province. Under the MOU, the province committed to regulate Rio Tinto Alcan under sulphur dioxide standards from the 1970s — and guaranteed those weak rules would stay in effect for the project until at least the end of 2018, even though the province introduced much stronger interim standards in 2014.

Those weak standards were eventually dropped altogether by Sharpe, who said he began to consider them “obsolete,” but told the panel he could not recall when. No new standards for Rio Tinto Alcan’s smelter have been put into place and, according to Sharpe, won’t be in place until B.C. or the federal government mandate them after conducting a full public consultation.

McKenzie’s notes make numerous mentions to Rio Tinto Alcan’s desire for “certainty” regarding potential SO2 standards.

“SO2 is troubling to Alcan,” McKenzie wrote in one entry entered into evidence. “Insisting they have limit ahead of time — something in writing.”

McKenzie noted in one internal correspondence, “Alcan is anxious to get green light…to provide good news on project to stakeholders.”

The province approved the company’s permit in 2013 but did not release an environmental monitoring plan until 18 months later. Although the modernization project is very close to complete, it remains without sulphur dioxide emission limits.

Appellants Point to Regulatory Capture

Between the period of 2007 and 2013, McKenzie was seconded to Rio Tinto Alcan, which funded his position. He worked closely with the company during the permit application process.

Tollefson argues Sharpe's close ties with Rio Tinto Alcan influenced and ultimately fettered his decision-making.

The evidence shows that government of B.C. and Rio Tinto Alcan “deliberated carefully over the language” contained in their agreement “knowing that it might be challenged in court on the ground that it fettered the discretion of the decision-maker charged with granting the permit,” he told the panel.

“We need to reinvigorate the idea of a regulator as a fearless public defender,” he said.

That was not the case with Ministry of Environment officials, who, according to Tollefson, throughout years of documents refer to Rio Tinto Alcan as a “client” and tend to view the world through “industry-coloured glasses.”

Overstall said there was a “slow creep” of industry’s interests into government activities.

“That’s what we see with the Duffy scandal: these guys get so involved they lose their compass,” he said.

“No one wakes up one morning and decides, ‘I’m going to get cozy with industry.’ It’s more of a slow creep,” Overstall said. “They make small decisions one after another behind closed doors thinking what they’re doing is okay until suddenly the public spotlight is shone on them.”

* This story was updated after publication to add more context about the frequency of secondments and the use of the term "client" to refer to companies applying for permits with the Ministry of Environment.

Image Credit: Rio Tinto Alcan

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Increased sulphur dioxide (SO2) pollution from the expanded Rio Tinto Alcan (RTA) aluminum smelter in Kitimat, B.C. will result in increased health costs for local households, an expert witness told an Environmental Appeals Board panel in Victoria, Monday.

Dr. Brian Scarfe, an economist and cost-benefit analyst from the University of Victoria, testified before the tribunal that the externalized health costs placed on residents living near the Kitimat smelter will outstrip the cost of introducing scrubbers — which remove SO2 pollution from effluent — to the RTA plant.

In 2013 the B.C. government approved RTA’s permit to increase production of the smelter. The ‘modernization’ project will limit the release of other aluminum-associated emissions including greenhouse gases, but will result in a 56 per cent increase of sulphur dioxide being pumped into the airshed.

B.C. ruled RTA was not required to install scrubbers to prevent the SO2 increase from 27 to 42 tonnes per day.

Two Kitimat elementary teachers, Emily Toews and Lis Stannus are appealing the $3.3 billion project upgrade, saying it poses an unnecessary threat to human and environmental health. Appellant Emily Toews suffers from asthma, which heightens her sensitivity to even low SO2 levels. Children and the elderly are both at higher risk to SO2 exposure.

Before the appeal panel Scarfe argued the issue comes down cost distribution.

“I don’t like to think of this as a zero sum game, but that is what we have: costs are going to fall one way or another, benefits are going to fall one way or another,” he said.

"If you have a process that is generating some form of pollution you need to consider that an impact on the environment and perhaps on human life — that’s an externality."

“We can think about households on one side and RTA on the other: clearly if nothing is done to limit SO2 there will be costs to the environment and costs to households in the area and that’s one kind of distribution," he said.

"The costs fall on one side while the other avoids costs.”

High Sulphur Content of North American Petroleum Coke a Factor

According to Scarfe, the petroleum coke or petcoke, a byproduct of refined hydrocarbons, being used in RTA’s smelting operations is very high in sulphur content.

He said the higher the sulphur content of the petcoke, “the larger the SO2 emissions will be in relation to the production capacity of the plant.”

Scarfe added the low-sulphur petcoke market has dried up in recent years and that the higher levels of sulphur present in petcoke feeds may be the outcome of increased unconventional hydrocarbon production like fracking. Petcoke is also a waste product of bitumen upgrading in the Alberta oilsands, where the sulphur content is extremely high.

“The sulphur content of petroleum being extracted in North America has gone up in number over time,” Scarfe said. The weighted average sulphur content in U.S. refineries has risen from 0.9 per cent in 1985 to 1.4 per cent in 2014.

RTA’s modernization proposal says the smelter expects to use petcoke with an average of 2.9 per cent sulphur but could be as high as 3.8 per cent.

These levels of sulphur would exceed the acceptable limits for smelters without scrubbers in foreign countries such as Iceland, Scarfe said.

“If you were looking for solutions for large amounts of sulphur dioxide one of the options would be to buy petcoke, even if more expensive, with lower sulphur content.”

He added that given a consistent supply of low-sulphur petcoke can’t be guaranteed, a safer long term solution for the Kitimat airshed would be for RTA to install scrubbers.

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The Kitimat airshed can “accommodate” increased industrial growth and pollution according to a new Kitimat Airshed Study released Friday.

The study, commissioned by British Columbia last year to assess the impact of industrial pollutants on the Kitimat airshed, was released one month after lawyers representing Kitimat locals asked the Environmental Appeal Board to force the province to make the report public.

The province previously claimed cabinet privilege and refused to release the report to two women, Emily Toews and Elisabeth Stannus, who are fighting to overturn a 2013 ruling to allow increased sulphur dioxide emissions from Rio Tinto Alcan’s smelter ‘modernization project’ in Kitimat.

The government-funded report concludes the Kitimat airshed, if properly managed, can safely accommodate industrial expansion, including the expanded aluminum smelter expected to increase levels of sulphur and nitrogen oxide in the area.

The study took into account Rio Tinto Alcan’s existing smelter, the smelter’s modernization project, four proposed liquid natural gas (LNG) facilities, one proposed oil refinery, a potential BC Hydro gas powered turbine facility and increased emissions from tanker traffic.

Environment Minister Mary Polak, attending a press conference in Vancouver today, said “the study tells us that with proper management there is significant capacity in the Kitimat airshed to safely accommodate industrial growth, while still protecting human health and the environment.”

“This report is helping shape management strategies to protect air quality, human health and our overall environment,” she said.

Minister Polak wouldn’t speak directly to questions about the withholding of the report, saying “we had always intended to release it…. I can’t comment directly on why they would have made that decision.”

She also said she wouldn’t comment on how the delay related to an appeal against the Rio Tinto Alcan smelter modernizations, but said “I know it related to the request they made specifically.”

Merran Smith, director of Clean Energy Canada, responded to the study, saying “the provincial government says the impacts of the proposed LNG plants will be manageable, but the reality is that burning natural gas to make LNG elevates levels of air pollutants that create acid rain and worsen asthma and other respiratory illnesses.”

Smith said Kitimat already suffers from a smog problem and both B.C. and industry need to take clean energy solutions more seriously if they are to live up to their own standards.

“If the industry moves forward with proposals to build gas-fired LNG plants in Kitimat, more people are at greater risk of getting sick more often. Proponents can largely eliminate this threat – reducing air emission by 70 per cent – by powering their plants with electric drives running on locally generated renewable energy.”

“Industry needs to step up to the plate,” she added.

The report was authored by ESSA Technologies, the same company hired by Rio Tinto Alcan to write a report, “Sulphur Dioxide Technical Assessment Report,” in support of the smelter’s expansion.

Rio Tinto Alcan claims “studies show [sulphur dioxide] from Kitimat Modernization project will not cause respiratory diseases in healthy people, but there may be a less than one per cent increase in restricted airway events for those with existing conditions such as asthma or COPD,” in a company brochure.

The company decided not to install air scrubbers, capable of reducing sulphur dioxide from industrial emissions, due to what they determined would be ‘limited’ impacts.

Minister Polak said the study focused solely on nitrogen and sulphur dioxide emissions and did not look at greenhouse gas or other particulate emissions.

Image Credit: Diagram of sulphur deposition, pg. 33 in the study.

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