B.C. smelter to appeal cleanup to high court

In an immediate appeal of an Oct. 30 federal court ruling, a Canadian mining and smelting giant is asking for a 90-day stay so it can ask the U.S. Supreme Court to decide whether it should be held responsible under U.S. law for an expensive cleanup of the Columbia River.

Last week, the 9th U.S. Circuit Court of Appeals rebuffed Teck Cominco Ltd.’s motion to reconsider a July 3 ruling by a three-judge panel that the company is subject to Superfund, the U.S. law governing toxic waste cleanups, in a 150-mile stretch of the river above Grand Coulee Dam.

Lawyers for Teck Cominco had argued that Superfund does not apply to a Canadian company discharging hazardous waste if it had not “arranged” for the waste to end up in the United States – an arcane provision of U.S. Superfund law.

They said it was only the “action of nature” – the southward flow of the Columbia – that sent their toxic wastes across the U.S.-Canada border near Northport.

Teck Cominco’s large lead and zinc smelter is 10 miles north of the border in Trail, B.C. It has contaminated the Columbia for a century with heavy metals and millions of tons of smelter slag, which covers some river beaches near Northport.

Teck Cominco stopped discharging slag to the river in 1994 after a series of Canadian studies found it was toxic to fish and aquatic life and British Columbia regulators finally ordered a halt to the dumping.

The U.S. Environmental Protection Agency considers Teck Cominco a major polluter of the Columbia but has vacillated on proposed cleanup remedies.

In 2003, the EPA’s Seattle regional office issued a unilateral order to the company to clean up the river under Superfund, a law that holds companies strictly liable for their pollution.

After EPA failed to enforce its own cleanup order, two leaders of the Colville Confederated Tribes sued in July 2004. The Superfund “citizen’s suit” brought by Joe Pakootas and D.R. Michel was a legal first – a high-stakes effort to compel a foreign company to clean up its pollution in the United States.

Washington state joined in the Colvilles’ lawsuit.

Washington Gov. Chris Gregoire hailed the 9th Circuit’s July 3 ruling that Teck Cominco is subject to Superfund, calling it “great news for all Washingtonians.”

Meanwhile, as the case wound its way through the courts, political and lobbying pressure mounted.

After high-level diplomatic contacts between the Canadian and American governments, and a series of letters to the White House from U.S. mining interests in support of Teck Cominco, the Bush administration withdrew its cleanup order and announced a June 2006 voluntary agreement with the company. The pact calls for Teck Cominco to spend $20 million to study the extent of its pollution.

The agreement left unanswered who will pay for the ultimate cleanup, which the Washington Department of Ecology says will take years and cost more than $1 billion.

Now, in its new motion filed Monday, Teck Cominco is asking the Supreme Court for a stay of the 9th Circuit order as it files a writ of certiorari that asks the nation’s highest court to have the final say in the international controversy. The Supreme Court can accept or reject the request.