The 'Teck take'
EPA vs. Teck Cominco--The Canadian perspective
What follows is Teck Cominco's perspective on recent discussions with EPA Region 10
regarding the Upper Columbia River.
The Canadian company's Trail, .B.C. smelter has been accused of dumping upwards of 15
million tons of slag into the Columbia River and Lake Roosevelt for several decades. The
practice stopped in 1994.
Earlier this month, EPA Region 10 issued Teck Cominco a "unilateral order" to compel the
Canadian company to comply to EPA directives and perform studies on contamination of the
upper Lake Roosevelt region. The EPA has given Teck Cominco 30 days to comply with the
order.
Teck Cominco has volunteered and proposed to perform remediation to address their
contribution to any problems identified in the river. The company has committed to perform
studies that could cost as much as $13 million.
The EPA says that overture is insufficient and would leave Teck Cominco with "too much
control of the studies," according to EPA's Tom Eaton, Director of Washington Operations for
EPA Region 10.
Here is "Teck's Take", an update on Teck Cominco's discussion with U.S. Region 10 of the EPA
about the upper Columbia River region. The analysis was provided by Doug Horswill, Senior
Vice President, Teck Cominco Metals Ltd.
The EPA Region 10 has circulated a briefing note entitled: "Status of U.S. EPA Region 10
Discussions with Teck Cominco Metals Ltd. On Upper Columbia River Contamination", dated
December 3, 2003. The EPA Region 10’s presentation misconstrues Teck Cominco’s proposal
and is inaccurate in every material aspect as outlined in Appendix A. The major difference
between Teck Cominco’s approach and that of the EPA Region 10 relates to process, more than
substance. Teck Cominco’s offer to the EPA Region 10 is based on a voluntary commitment
rather than one mandated by a legislative authority.
Acceptance of our offer would defer all legal disputes about the jurisdiction and authority of the
EPA Region 10 beyond the borders of the U.S. until after scientific investigations and studies,
and possibly remedial efforts, are funded by Teck Cominco under the EPA Region 10’s
oversight. In contrast, the position of the EPA Region 10 unless modified will result in the legal
and jurisdictional issues being dealt with first, through the Courts or otherwise, before any
participation by Teck Cominco in assessing and resolving environmental issues which impact the
river and the local communities.
Background
Teck Cominco Metals Ltd. owns the Trail facility located in Canada and operates this facility
under Canadian laws. The Company is not subject to the EPA Region 10’s jurisdiction under
CERCLA. In spite of this, Teck Cominco offered to undertake studies at an estimated cost of $13
million to identify any human health and ecological issues caused by its operations.
Despite what the EPA Region 10 suggests, there are credible U.S. interests supporting the
position of Teck Cominco including the Eastern Washington Council of Governments and
Representatives Nethercutt, Harris and Dunn. Teck Cominco has spent tens of millions of dollars
in recent years to reclaim past mining sites whether required to do so or not. It is this
commitment to be a good corporate citizen that motivated Teck Cominco to voluntarily work
with the EPA Region 10 to identify ways of assessing whether metals produced by our facility
pose a risk of harm to the public or the environment.
The EPA Region 10 broke off talks with Teck Cominco 15 minutes into the third and final
negotiating session because the company refused to sign a document requiring Teck Cominco to
submit to the jurisdiction of the EPA Region 10 and acknowledge the applicability of the EPA
Region 10’s alternative RI/FS process (i.e. the alternative to Superfund listing under CERCLA).
The afternoon before the EPA Region 10 called off the talks, Teck Cominco had submitted both
a full written offer and a detailed description of its proposed studies. These two documents
reflected the discussions of earlier meetings between outside scientists and technical
representatives of the EPA Region 10, yet talks were suspended before the EPA Region 10 had
evaluated the substance of either document. Both documents are available for public review on
Teck Cominco’s website (www.teckcominco.com).
Considerations Teck Cominco believes that the question of whether metals found in the river
pose any actual risk should be quickly answered, communicated to those who live there, and
acted upon.
Teck Cominco has put no upper limit on the amount that it will contribute to the effort. It has
affirmatively committed to perform studies that could cost as much as $13 million. This includes
funds to support participation by the State of Washington, regional tribes, and local communities
in the process and to pay for the EPA Region 10’s reasonable past and future study and oversight
costs.
Teck Cominco has volunteered to perform remediation to address Teck Cominco’s contribution
to any problems identified in an investigation based on sound science.
Teck Cominco has accepted this responsibility despite the fact that the Trail facility’s discharges
were regulated under Canadian law and despite the fact that Superfund law was not intended to
apply to facilities located in Canada.
There are numerous other U.S. companies located in Washington State, including mining
companies, pulp and paper producers and manufacturing concerns that discharged materials into
this waterway. The advice we have obtained is that acceptance of our proposal by the EPA
Region 10 would not prejudice the EPA Region 10 or set a precedent when the EPA Region 10
approaches these other facilities. On the other hand, if the EPA Region 10 could extend its reach
extraterritorially, this would set a precedent that could result in large numbers of U.S. facilities
across the country being subject to Canadian environmental jurisdiction.
Teck Cominco’s Offer
Teck Cominco has offered to enter into a fully enforceable agreement to undertake and pay for
human health and ecological risk assessment studies of metal contamination in the Upper
Columbia River and to deal with any problems identified by these assessments. The agreement
would require Teck Cominco to pay stipulated penalties if it fails to perform its agreed
responsibilities. This agreement would be entered into by Teck Cominco American Inc. (TCAI)
and conducted under the oversight of EPA Region 10 with the involvement of the tribes, the
State of Washington and the Eastern Washington Council of Governments. The detailed
Statement of Work that was attached to Teck Cominco’s offer was developed out of meetings
with the technical staff of the EPA Region 10 by Dr. Richard Cardwell and Dr. Bill Williams,
premier experts in health and environmental study design. Between them they have more than 50
years of experience in their field.
Assessment of Teck Cominco’s Offer: Process vs. Substance Based on the earlier discussions
between Teck Cominco and the EPA Region 10, there appeared to be no significant substantive
differences between the requirements outlined by the EPA Region 10’s technical staff and the
studies Teck Cominco agreed to fund—it is now clear that the primary difference is the EPA
Region 10’s demand that Teck Cominco, a Canadian company, use the EPA Region 10’s process
as, "…U.S. companies in this situation must do."
Aside from the sovereignty issue, the "Catch-22" situation that Teck Cominco finds itself in is
unduly bureaucratic. The EPA Region 10 now demands that Teck Cominco submit to their
jurisdiction and authority as any other U.S. company must. Yet in the past, because Teck
Cominco’s facility was located in Canada, it could not obtain U.S. permits and hence could not,
as a U.S. company could, obtain the protection afforded by such permits. And, not withstanding
any similarities in the two systems, the fact that Teck Cominco abided by Canadian laws and the
Canadian permitting regime, is of no consequence under the EPA Region 10’s approach.
Notwithstanding this, the company has stepped forward to voluntarily be part of the solution.
Teck Cominco believes that its offer is more than reasonable and meets most, if not all,
substantive requirements of the EPA Region 10.
The EPA Region 10 argues that Teck Cominco refuses to study the Upper Columbia or that
studies funded by Teck Cominco would somehow not be credible. Teck Cominco’s initial study
proposal was developed by independent experts who were instructed to follow the EPA Region
10 guidance as closely as possible. This offer was tabled as a basis for negotiations toward an
agreement with the EPA Region 10. The company has stated that it will pay for studies agreed to
by the EPA Region 10 in a process that is open and transparent and involves all of the
stakeholders. It is unclear how this would lack objectivity or credibility.
That Teck Cominco wants a set of cleanup standards other than those that the EPA Region 10
might apply to U.S. companies. Teck Cominco said it seeks risk-based cleanup standards that are
based on good science, not on politics or self interest. In fact, it is premature for either the EPA
Region 10 or Teck Cominco to propose specific cleanup levels before even determining if there
is a problem requiring remedial steps, let alone what those steps might be.
As a voluntary participant, Teck Cominco has both told and demonstrated to the EPA Region 10
that it is flexible in how to structure an agreement to perform the studies and remediation. The
EPA Region 10 insists that its command and control process must be followed.
Conclusions
This dispute is about process to the detriment of substance. The EPA Region 10 insists on
attempting to apply CERCLA, a U.S. domestic statute, to the Trail facility which is located in
Canada and governed by Canadian law. Teck Cominco will not submit to EPA Region 10
jurisdiction under this statute. However, Teck Cominco’s offer to the EPA Region 10 follows the
EPA Region 10 guidance for this type of work and provides a sound basis for negotiating an
agreement.
Teck Cominco believes its offer proposes a practical solution to get the work underway and
funded in priority to resolving the legal issues. While its offer may defer any resolution of
procedural issues relating to the reach of the EPA Region 10’s authority beyond U.S. borders, it
does not foreclose the EPA Region 10 from dealing with these issues in the Courts or otherwise
at a later date.
The Upper Columbia and Lake Roosevelt require a different process than CERCLA, but one that
meets U.S. and world standards. EPA Region 10 failed to acknowledge the international
dimension of this issue and terminated negotiations without attempting to find an alternative. The
EPA Region 10 is inflexibly committed to its process and refuses to seek the authority necessary
to implement an innovative solution that would respect the trans-boundary complexities of this
case.
In Teck Cominco’s view the EPA Region 10 should defer action under CERCLA, and defer any
jurisdictional or precedent-setting objectives that it may have. Teck Cominco continues to urge
the EPA Region 10 to consider its offer and work with the company on a cooperative basis.
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