On a beach in northeast Washington state near the Canadian border, Patti Bailey grabs a handful of what looks like sand and rolls the dark grains through her hands.
It's slag, the grainy waste from the Teck Resources (TSX:TCK.B) lead and zinc smelter in Trail, B.C., about 10 kilometres north of the nearby Canadian border.
"They're little time bombs and they're releasing zinc, copper, arsenic and other metals into the environment," said Bailey, an environmental planner for the Confederated Tribes of the Colville Reservation.
A Washington state judge has ruled that Teck is liable for the costs of cleaning up contamination in the Columbia River south of the border from decades of dumping slag and effluent from the company's Trail operations.
In a decision announced late last week, Judge Lonny Suko ruled that, "for decades Teck's leadership knew its slag and effluent flowed from Trail downstream and are now found in Lake Roosevelt, but nonetheless Teck continued discharging wastes into the Columbia River."
Suko noted that the company admitted treating the international waterway as a free waste disposal service. Specifically, the judge in Yakima, Wash., found that from 1930 to 1995, Teck intentionally discharged at least 9.97 million tons of slag that included heavy metals such as lead, mercury, zinc and arsenic.
The judge also found that Teck knew the hazardous waste disposed of in the Columbia River was likely to cause harm.
The decision gives the U.S. Environmental Protection Agency the ability to force Teck to pay for the cleanup, and potentially for any ongoing damages and losses that result from the ongoing contamination. That issue has yet to be determined by the court.
Some believe the landmark case could have implications for mining and other industrial interests on both sides of the border. The Canadian government, the province of British Columbia and the U.S. National Mining Association have all intervened in the case to argue that the issue should be resolved bilaterally.
As they awaited the judge's decision, Washington state officials were optimistic.
"We're hopeful after... how many years has it been?" joked Kristie Elliott, lawyer for the Washington state Attorney General. "After this much significant litigation we're now finally to the substance of the case."
Eight years after the case was launched and on the eve of a trial this fall, Teck admitted to discharging slag and liquid effluent into the river from 1896 to 1995. But it argued the U.S. law that forces companies to clean up contamination sites, known as the Superfund law, was never intended to reach across the international border.
But Elliot said complaints about the contamination from the Trail smelter surfaced as early as the 1940s, when farmers from Washington state sued Cominco, Teck's predecessor, over air pollution from the smelter. That case was eventually resolved in arbitration by the two federal governments, and set a precedent for cross-boundary pollution law.
"Still, they continued to discharge, and they knew it was accumulating in Lake Roosevelt and that studies being done by various government agencies were finding mercury contamination down there," Elliott said. The 209-kilometre long lake was created in 1941 after the Grand Coulee Dam was built on the Columbia River.
The company took out insurance to cover liability, but didn't stop discharging effluent for decades, she said.
Within the fences of the largest smelting operation in North America, about a billion and a half dollars has been spent modernizing Teck's Trail Operations over the past 25 years. A new furnace installed in 1996 cut emissions dramatically.
Last month, Teck completed a $5.8-million project to reduce the risk of a spill into the river.
The company is now installing a $1.2-million automated leak detection system, and a $125-million acid plant that will reduce sulphur dioxide emissions a further 15 to 20 per cent. They have also spent tens of millions of dollars on environmental rehabilitation, from digging up contaminated gardens and bringing in replacement soil, to replanting dead trees.
Vancouver-based Teck Resources Ltd. ended fiscal 2011 with a $4.4 billion profit.