Advisories & Insights

The Implications of Disposal of Mining Waste in International Waters

September, 2008
King County Bar Association Bar Bulletin: The International Law Issue, Vol. 27(1) at 32 (September, 2008)

Mining generates large volumes of mining waste because of the high waste-to-product ratios associated with producing most ores.[1] The management of that waste is often externalized – passed from the mining operation to other parties, or the public – by disposing of it in locations that, if not properly controlled, can result in the smothering of surface waters or the release of hazardous substances. Under the laws of the United States, liability may arise for the disposal of mining wastes into surface waters, or disposal which results in a release of hazardous substances. When mining waste is disposed of into, or affecting, international waters, there is not a corollary international legal framework for requiring cleanup or imposing liability for environmental harm. Although international law has limited utility for addressing the disposal of mining waste in international waters, U.S. law may provide a mechanism, where the waste disposed of into international waters comes to be located in the territorial jurisdiction of the United States.

Mining and Mining Waste

When a mining company wants a specific mineral, it has to remove rock to get at it. Only a small amount of rock, the ore, will contain the mineral that the company wants. In open pit or open cast mining, the soil, vegetation, and rock above the ore body, called the overburden, must first be removed to get to the ore.

The term "ore" is an economic one.[2] Ore is the earthen material that contains enough of the target minerals to be extracted profitably. Because the market value of a mineral can change substantially, the distinction between ore and other mined materials also changes depending on the mineral content of the ore to be mined, the mineral price at the time mining activities are occurring, and the extraction technology used.[3] "Ore deposit," or "orebody," is an economic term for the mass of rock from which a mineral can be profitably extracted, and "waste rock" is the rock that doesn't contain an adequate percentage of the target mineral to be economically valuable.[4]

Modern open-pit mining has a very high waste-to-product ratio, roughly 99 tons of waste to each ton of copper and an even higher ratio for gold mining, making waste the major product of mining.[5] By some estimates, mining activities in Canada have produced nearly 350 million tons of waste rock, 510 million tons of sulphide tailings and more than 55 million tons of other wastes.[6] Modern mining techniques achieve such economies of scale, allowing thousands of tons of rock to be mined per day at a low enough cost that an ore deposit can contain as little as .015 ounces of gold per ton and still be mined profitably -- that translates to excavating 50 tons of rock from an ore deposit to produce enough gold for a pair of wedding rings.[7]

Once ore is removed from the mine, it is crushed and ground to a fine sand and milled to extract the mineral. During milling, the mineral is concentrated or extracted through such processes as flotation or leaching. The by-products of milling include process water and tailings or slurry.

In flotation, a process commonly used for copper, gold, silver, lead, molybdenum, and zinc, chemicals and water are added to cause the mineral to adhere preferentially to air bubbles and float.[8] The process of leaching, used for copper, gold, silver, and uranium, can follow flotation or be used independently.[9] Solvents or reagents such as ammonia, chlorine, hydrochloric acid, sulphuric acid, cyanide, and sometimes mercury (depending on the metal that is being extracted) are added, the minerals are selectively dissolved from ore, and then separated out of the solution.[10]

Mine waste poses an environmental threat not only through its sheer volume, but also because of its toxicity. Mine tailings commonly contain sulfides as well as metals that occur naturally in the ore body, including cadmium, copper, iron, lead, manganese, mercury, silver, and zinc.[11] When sulfides in the tailings are exposed to air they oxidize. If oxidized tailings come into contact with water, sulfuric acid is produced, a process known as Acid Mine Drainage.[12] Once produced, the presence of sulfuric acid accelerates further leaching of metals in tailings. According to the United States Environmental Protection Agency, water contamination from mining poses one of the top three ecological security threats in the world.[13]

Management of Mining Waste

Mining waste is typically disposed of in piles, geographic depressions, constructed impoundments, or used for constructing mining roads or as mine backfill. Mining waste is also disposed of in water. In June, the Canadian Minister of Fisheries and Oceans told the Canadian House of Commons that the disposal of mining wastes in water is "much more responsible" than land disposal, or disposal into man-made structures such as tailings impoundments, where rugged terrain surrounding mining operations makes such structures unstable and at risk for structural failure, or simply impossible to construct.[14]

In some parts of the world, seismic instability and high landslide probability have led mining companies to abandon the construction of tailings impoundments in favor of dumping treated wastes directly into rivers, a practice known as riverine tailings disposal.[15] Few mines around the world currently utilize riverine tailings disposal for waste management, and all are located on the island of New Guinea.[16]

An alternative to riverine disposal, especially for mines located in coastal areas, is disposing mine tailings in the marine environment.[17] Impacts from marine disposal systems have consistently included increased water turbidity, seabed smothering, and trace metal accumulation.[18] Marine disposal of mining waste into shallow water are among the most destructive because tailings are dumped in areas of greatest marine biodiversity.[19] However, even tailings disposal at greater depths may produce significant impacts on aquatic biodiversity, because pipes used to transport waste to deep sea environments can break at shallower depths, causing a loss of fish and other aquatic organisms.[20]

Deep-sea tailings disposal requires deposition of mine waste below the level at which there is sufficient light for photosynthesis (the euphotic zone).[21] Theoretically, the impacts of such disposal should be minimal, because the deep sea is generally more stable than coastal environments, and the lack of available light means that populations of highly diverse aquatic organisms are absent.[22] Although this has been found to be true for some mines practicing this method, there is some evidence to suggest that aquatic organisms that depend on the seabed floor may have difficulty adapting to the disposal of mine tailings.[23] In addition, predicting the behavior of tailings deposited in the deep-sea environment is hampered by a general lack of knowledge regarding the physics of sediment transport in the marine environment.[24]

Despite the scientific uncertainties regarding the deep-sea environment and the recorded incidents of pipe breaks at shallower depths, submarine tailings disposal is increasingly proposed for new mines, especially in the Asia-Pacific region.[25] Four mines in Indonesia and Papua New Guinea use submarine tailings disposal systems and six of eight mines proposing submarine tailings disposal are in the Asia-Pacific region.[26]

Submarine tailings disposal has been effectively banned in the United States and Canada by regulations protecting water and fish. It is not used in Australia because it's seen as geologically unsuitable.[27] However, a 2002 report by the environmental agency Mining Watch said that submarine tailings disposal is being used in mines in Chile, Turkey, Britain, Indonesia, Papua New Guinea, and the Philippines.[28]

Limitations of International Law

International law, including the Stockholm Declaration[29] and the Rio Declaration,[30] recognizes that nations have a right to exploit their own natural resources following their own particular environmental policies.[31] However, both the Stockholm and Rio Declarations provide that nations have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.[32] This responsibility is embodied in the "prevention principle" that no nation may undertake activities within its borders that will cause significant injury to another nation.[33]

The 1909 International Boundary Waters Treaty ("Boundary Waters Treaty") was negotiated to address conflicts arising between the United States and Canada over the use of transboundary waters. The Boundary Waters Treaty created the International Joint Commission ("IJC") and created guidelines and principles for managing boundary and transboundary waters. Article IV of the Boundary Waters Treaty prohibits pollution of the waters on one side of the border to an extent that causes harm to health or property on the other.[34] To the south, the United States and Mexico manage their boundary waters under the Water Treaty of 1944, a water allocation treaty which established the International Boundary Waters Commission ("IBWC"). Article 3 of the 1944 Water Treaty grants the IBWC the authority to give "preferential attention to the solution of all border sanitation problems."[35]

The United Nations Convention on the Law of the Sea (UNCLOS) prohibits marine pollution affecting international waters.[36] The 1997 Convention on the Law of the Non-navigational Uses of International Watercourses provides that "[w]atercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States."[37]

The enforcement of international laws, conventions and treaties in the context of environmental harm, while frequently opined on and discussed in lengthy law review articles and treatises, has proven to be problematic in its application. There are a number of obstacles to reconciling the conflict between the right of a nation to exploit its resources and the responsibility to ensure that its exploitation does not cause environmental harm to other nations. These obstacles include the adoption and enforcement of environmental standards for such exploitation, and the assessment by a developing nation of what constitutes "significant injury to another nation" or "appropriate measures to prevent the causing of significant harm" to other nations. As one commentator has noted, "[g]eneral principles of international law cannot cope with the reality that each watercourse system has its own physical peculiarities and it is governed by nations with their own peculiar sensitivities regarding development."[38]

By far the biggest obstacle has proven to be the availability of a forum which can both hear the dispute, and provide concrete relief. While many of the conventions and treaties, including the Boundary Waters Treaty and the 1944 Water Treaty, create joint commissions empowered to hear disputes over boundary water use, such commissions generally provide recommendations, rather than binding mandates, to the parties. And, in most cases, relief can be sought from a joint commission only when the nation-state itself, rather than a private party that believes itself to be aggrieved by the acts of another nation or its citizens, submits the dispute for consideration.

United States Law

United States law provides well-developed environmental standards, a regulatory framework for the exploitation of natural resources, and recourse to U.S. courts by governmental bodies and citizens alike for environmental harms. Litigants have sought to make use of U.S. law and U.S. courts to seek redress against mining companies for contamination arising from international mining operations, under the Alien Tort Claims Act ("ATCA").[39] The ATCA provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."[40] Most of the suits brought under the ATCA to address environmental harms have asserted, directly or indirectly, that developing nations are unable to protect their citizens from the environmental harms of multinational companies because the national government is either too weak to regulate the companies or is acting in concert with them.[41]

None of these purely environmental ATCA has yet been successful. Courts considering these cases have emphasized that it is inappropriate to use the ATCA as a means of imposing American environmental law or standards on foreign nations. "[F]ederal courts should exercise extreme caution when adjudicating environmental claims under international law to insure that environmental policies of the United States do not displace environmental policies of other governments. . . especially when the alleged environmental torts and abuses occur within the sovereign's borders and do not affect neighboring countries."[42] The ATCA decisions suggest that a claimant could be successful if he or she asserted a claim for transboundary pollution, although none has yet been brought successfully.

The Teck Cominco Decision

A recent decision involving discharges from a lead-zinc smelter into transboundary waters may provide a framework for addressing the disposal of mining wastes into international waters – so long as the mining wastes impact, or come to be located in, the United States. The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") imposes liability for the cleanup of sites where there is a release or threatened release of hazardous substances into the environment.[43] CERCLA liability attaches when three conditions are satisfied: (1) the site at which there is an actual or threatened release of hazardous substances is a "facility,"[44] (2) a "release" or "threatened release" of a hazardous substance from the facility has occurred;[45] and (3) the party is within one of the four classes of responsible persons subject to liability.[46] The passive migration of hazardous substances into the environment from where hazardous substances have come to be located is a release under CERCLA.[47]

Teck Cominco Metals, Ltd. ("Cominco") owns and operates the world's largest lead-zinc smelter, on the Columbia River in Trail, British Columbia (the "Trail Smelter"), approximately ten river miles north of the border between Canada and Washington. Between 1906 and 1995, Cominco generated and disposed of hazardous substances, in both liquid and solid form, into the Columbia River in Canada. These hazardous materials included untreated effluent and "slag," a by-product of the smelting process which contains heavy metals including arsenic, cadmium, copper, mercury, lead, and zinc. Up until mid-1995, the Trail Smelter discharged hundreds of tons of slag each day - up to 145,000 tons of slag per year - into the Columbia River. The Columbia River carried the Trail Smelter's slag south, across the border, into the United States, where it was deposited on the bed and banks of the Upper Columbia River and Franklin D. Roosevelt Lake ("Lake Roosevelt").[48] Cominco's operations were, in general, permitted under and consistent with Canadian law.

In August, 1999, the Colville Confederated Tribes petitioned the Environmental Protection Agency to conduct a preliminary assessment of hazardous substance contamination in and along the Columbia River, for the 150 miles from the Canadian border south to the Grand Coulee Dam. EPA performed its site assessment between October, 1999 and March, 2003, and found slag on beaches and other depositional areas in the Upper Columbia River, as well as heavy metals contamination including arsenic, cadmium, copper, lead, mercury and zinc. EPA concluded that the Upper Columbia River Site was eligible for listing on the National Priorities List ("NPL"), as a Superfund Site.

EPA also concluded that the source of the slag and heavy metals in the Upper Columbia River was the Trail Smelter, and that Cominco had arranged for the disposal of its hazardous substances from the Trail Smelter into the Upper Columbia River by directly discharging up to 145,000 tons of slag annually prior to mid-1995, even though the discharge into the river occurred in Canada.

On December 11, 2003, EPA issued a Unilateral Administrative Order ("UAO") directing Cominco to conduct a CERCLA Remedial Investigation/Feasibility Study ("RI/FS") of the Upper Columbia River. The UAO, which asserted jurisdiction under CERCLA over a foreign company operating in a foreign country for environmental harms in the United States, was the first of its kind issued by EPA in the 27-year history of CERCLA.

In a subsequent CERCLA citizen suit to enforce the UAO, the Ninth Circuit concluded that the UAO was enforceable against Cominco because the releases of hazardous substances had occurred wholly within the United States, and therefore involved a domestic application of CERCLA, rather than an extraterritorial application. After the Ninth Circuit denied Cominco's request for rehearing, Cominco petitioned the United States Supreme Court for certiorari. Cominco's petition was supported by the Canadian government and the British Columbia provincial government, as well as by several trade associations including the United States and the Canadian Chambers of Commerce, the Mining Association of Canada, the National Mining Association, the National Association of Manufacturers, and the Consumer Electronics Association, which all submitted amicus briefs.

Cominco asserted that the Ninth Circuit's decision disregarded core principles of international comity, upset a "century-old tradition of bilateral [diplomatic] solutions to transboundary pollution problems" and threatened "to disrupt the foreign policy of the United States."[49] Cominco urged the Court to accept review on the grounds that, because the U.S. is "a net exporter of certain types of pollution," "U.S. interests would suffer gravely under the Ninth Circuit regime."[50] On January 7, 2008, the U.S. Supreme Court denied certiorari[51] and let the Ninth Circuit's ruling stand.

Implications

The Pakootas decision is the first to find that a U.S. court has jurisdiction over a foreign entity for operations that are permitted in its own country but which violate U.S. law. The decision provides a framework – a CERCLA citizen suit – for seeking relief in U.S. courts, and under U.S. law, for disposal of hazardous wastes that causes a release in the United States, even when the disposal itself occurred outside the United States.[52] Although international law has limited utility for addressing the disposal of mining waste in international waters, Pakootas may provide a framework for releases arising from the disposal of mining waste in international waters, where that disposal eventually results in environmental harm within the United States.

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