Teck not liable for historic air pollution, rules U.S. court

The U.S. Court of Appeals ruled Teck Resources cannot be held liable for air pollution that drifted across the border into Washington.

The U.S. Court of Appeals recently ruled that Teck Resources cannot be held liable for air pollution that historically drifted across the border into Washington.

Chris Stannell, Teck’s senior communications specialist says the company is pleased with the decision and a review of its implications are currently underway with counsel.

He says Teck and its affiliates have invested over $75 million to date, under EPA (Environmental Protection Agency) oversight, towards a study to identify potential risks to human health or the environment in the Upper Columbia River associated with historic operations at the Trail facility.

“Results to date are encouraging,” Stannell said. “Showing beaches and reservoirs are safe for recreation, water quality is better than standards in both the U.S. and Canada, and fish are as safe as or safer to eat than those from any other water body in the State of Washington.”

Additionally, Teck conducted 14 cleanups at residential properties in the Northport area last year, under a voluntary settlement agreement with the EPA, he added.

“And are doing additional residential soil sampling in accordance with our agreement with the U.S. EPA.”

Teck has invested more than $1.5 billion at Trail Operations to modernize the facility to improve its operational and environmental performance, Stannell noted.

“As a result of these investments, there has been a 95 per cent decrease in emission of metals to air and water since the mid 1990s.”

In the case brought forward by the Confederated Tribes of Colville Reservation and the State of Washington versus Teck Cominco Metals Ltd., the three-judge panel held that the owner-operator could not be said to have arranged for the “disposal” of hazardous substances that were emitted by the smelter into the air, and contaminated land and water downwind. The owner-operator therefore could not be held liable for clean up costs and natural resources damages under CERCLA (Comprehensive Environmental Response, Compensation and Liability Act).

An earlier U.S. District Court ruling said Teck was responsible for pollution from the smelter’s air emissions, but the company appealed that decision.

The history of legal disputes over damage caused in the State of Washington by emissions of toxic chemicals from Defendant Teck Cominco Metals, Ltd.’s (“Teck’s”) smelter, located ten miles north of the U.S.-Canada border in Trail,British Columbia, stretches back almost 100 years,” Judge Michael Hawkins wrote. “The emissions-based claim in this lawsuit is only the latest chapter in the saga.”

He summarized the appeal which questioned, “When a smelter emits lead, arsenic, cadmium, and mercury compounds through a smokestack and those compounds contaminate land or water downwind, can the owner-operator of the smelter be held liable for cleanup costs and natural resource damages under CERCLA.”

Hawkins noted that all parties agree, “the answer turns on whether the smelter owner-operator can be said to have arranged for the “disposal” of those hazardous substances within the meaning of CERCLA.”

He concluded, “bound by a previous en banc case’s interpretation of “deposit”—the only theory of “disposal” urged by Plaintiffs in this interlocutory appeal—as not including the gradual spread of contaminants without human intervention, we must answer no.”

The lawsuit initially focused on another form of waste disposal, the company’s dumping of slag into the Columbia River, a practice that ended in 1995. That matter was not addressed in this latest court ruling.

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