1937 Trail Smelter Case (TRAIL)

1937 Trail Smelter Case (TRAIL)

CASE NUMBER: 128

CASE MNEMONIC: TRAIL

CASE NAME: Trail Smelter Case/1937

I. IDENTIFICATION

1. The Issue

The Consolidated Mining and Smelting Company Limited of Canada operated a zinc and lead smelter along the Columbia river at Trail, British Columbia about 10 miles north of the international boundary with the State of Washington. In the period between 1925 and 1935, the U.S. Government objected to the Canadian Government that sulfur dioxide emissions from the operation were causing damage to the Columbia River valley in an 30 mile stretch from the international boundary to Kettle Falls, Washington. The two governments resorted twice to legal arbitration, once from 1928 to 1931 and again from 1935 to 1941, in an attempt to resolve the dispute. The outcome of each decision involved some payment by the Canadian Government for damages caused to the State of Washington. The latter decision also prescribed a set of operational guidelines under which the smelter at Trail should conclude its operations for at least a year-and-a-half. The main concern of the United States was that the smelter's sulfur dioxide emissions were harming the land and the trees of the Columbia River Valley which were used for logging, farming, and cattle grazing; the three industries crucial to the area. The main species affected were yellow pines, Douglas firs, larch, and cedar. Affected harvests included alfalfa, wheat, and oats.

2. Description

In 1896, a smelter located in Trail, British Columbia, began operating under American ownership. However, in 1906, the Consolidated Mining and Smelting Company of Canada, Ltd. Bought the smelter plant in Trail. This company expanded the plant in size and in turn in its capacity to smelt zinc and lead ores. However, in 1925 and in 1927, two large, 400-foot smoke stacks were built. There was a resulting increase in the amount of sulfur emitted into the air. Within that same time period the amount of sulphur released from the plant on a monthly basis almost doubled from what it had been in 1924. The amount of sulfur released in 1924 was about 4,700 tons per month. But in 1927, the amount had risen to 9,000 tons per month. These increases continued because this smelting operation of zinc and lead had become one of the largest in North America. Finally, the effect of these harmful amounts

of sulfur being released were noticed in the State of Washington.

The effects were noticeable because for every ton of sulfur released into the air there are two tons of sulfur dioxide created. It was this increase in sulfur dioxide that was detected through the rains.

In the period between 1928 and 1935, the Government of the United States filed complaints with the Government of Canada that sulfur dioxide emissions from the Trail smelter had damaged the Columbia River Valley. On August 7, 1928, the issue was referred to the International Joint Commission by the United States and Canada (IJC-UC) for settlement. The IJC-UC decided on February 28, 1931 that the Trail smelter should limit its sulfur dioxide emissions and that Canada should pay the United States US$350,000 as compensation for damages.

Despite the IJC-UC decision, the conditions at the Trail smelter did not improve. Consequently, by February 1933 the U.S. Government was refiled complaints to the Canadian Government about the situation at the smelter. These set of complaints led to an emissions convention which was signed by the two parties on April 15, 1935. The Convention called for the creation of a Tribunal to determine the answers to four questions:

1. Had damage been done to Washington State by the smelter since January 1, 1932?

2. If the smelter was found to have done damage, should it be made to refrain from doing so in the future?

3. Should the smelter operate under any restrictions?

4. Should any compensation be paid in light of the answers to questions 2 and 3?{2}

After both the Canadian and U.S. Governments presented their evidence to the Tribunal in January of 1938, the Tribunal informed the governments on April 16, 1938 that it had a final decision on Question 1, but required more time to answer the other 3 questions. It also asked that the smelting operation at Trail have restrictions placed on it to study the effects of its sulphur dioxide emissions. The two governments agreed to the trial restrictions (1938-1940). As for the Tribunal's decision on question 1, it was determined that the Government of Canada should pay the United States US$78,000 for damage that the Trail Smelter had done to the State of Washington from 1932 to October 1, 1937. This compensation was primarily for damage done to land along the Columbia River valley in the United States. The Tribunal decided that the United States had not displayed enough evidence for damage to livestock or businesses in Washington State from the operationof the Trail smelter.

Following the trial restrictions, the Tribunal gave its answer to the final 3 questions on March 11, 1941. It had decided that the Trail Smelter should refrain from causing any future damage to the State of Washington from its sulfur dioxide emissions. To ensure this, it mandated that the smelter maintain equipment to measure the wind velocity and direction, turbulence, atmospheric pressure, barometric pressure, and sulfur dioxide concentrations at Trail. Readings from these instruments were to be used by the smelter to keep its sulfur dioxide emissions at or below levels determined by the Tribunal. Moreover, copies of the readings were to be supplied to both governments monthly so that they could see the smelter's compliance. If the smelter could not keep to the prescribed sulfur dioxide levels, then compensation could be awarded to the United States as determined by the Tribunal and the Canadian Government.

Despite the U.S. Government's contention that the emissions from Trail damaged the land, livestock, and businesses in almost 140,000 acres along the Columbia River valley in northern Washington State, the Tribunal only found that real damage had been done to the uncleared forest land and cleared farm land along the Columbia River. In November of 1949, the U.S. Secretary of State wrote a note to the Canadian Ambassador to the United States to offer to refund to the Canadian Government US$8,828.19 of the money that the Canadian Government had paid to the United States as compensation for damages caused by operation of the Trail smelter. This money was what was left over from the US$428,179.51 that the Canadian Government had paid as damages after the U.S. Government had paid off all of the claims of individual property owners in Washington State against the Trail smelter. The Canadian Government accepted this refund in January of 1950.

The Trail smelter is still in operation today. It is owned by Cominco Limited of Vancouver, who uses the smelter to refine lead, zinc, silver, gold, bismuth, cadmium, and indium. Cominco employs 125 individuals at the site (see GEDDES case).