August 12, 2012 in City, Idaho

Teck, Colville Tribe go to trial over slag

By The Spokesman-Review
 
File photo

For nearly a century, the Teck smelter pumped slag, a byproduct of metals refining, into the Columbia River.
(Full-size photo)

In the early 1990s, anglers in the Upper Columbia River reported seeing beads of liquid mercury floating in the water.

The sightings were followed by advisories from the Washington Department of Health warning people to limit the fish they ate from the river.

The actions galvanized the Confederated Tribes of the Colville Reservation, whose 1.4 million-acre reservation borders the Columbia River.

“Our people have been fishers for ages. It’s our livelihood – our political connections flow up and down the river,” said John Sirois, the tribe’s chairman. “Everything starts from the water – our cultural ways, our beliefs – so you must protect the river.”

After years of convoluted legal wrangling, the Colville Tribe will face one of the river’s major polluters in federal court in September. The tribe and the state of Washington want to hold Teck Resources Ltd. accountable for dumping millions of tons of pollution into the Upper Columbia from its massive lead-and-zinc smelter in Trail, B.C.

For nearly a century, the Canadian smelter pumped slag, a byproduct of metals refining, directly into the river. More than 10 million tons of the granular slag created the “black sand” beaches of the Upper Columbia, a 150-mile reach of the river between the Canadian border and Grand Coulee Dam.

The slag contains 25 different compounds that include lead, arsenic, cadmium and mercury. Liquid mercury and other metals also flowed from the smelter’s sewer systems into the river. More pollutants came out of the plant’s smokestacks.

At the Sept. 10 trial, attorneys for the tribe and the state will seek to prove that the waste discharged from the smelter was hazardous. The case will be heard in U.S. District Court in Yakima, with Judge Lonny R. Suko presiding.

“It’ll be a lot different than your average criminal trial that you read about in the newspaper,” said Paul Dayton, lead litigator for the Colville Tribe.

Scientists will offer dueling testimony on whether the slag released heavy metals into the water and the environment. (For decades, Teck officials characterized the slag as inert and benign; the company stopped discharging slag into the river in the mid-1990s.) Other testimony will focus on whether heavy metals from the smelter’s wastewater settled in the reservoir behind Grand Coulee Dam. Teck contends that most of the metals washed downstream past the dam.

“Effectively, we’re in this case because Teck Metals won’t accept liability for the problem,” said John Roland, the Washington Department of Ecology’s coordinator for the Upper Columbia River project.

In a pretrial motion in April, the judge ruled that Teck Resources can be held liable for cleanup costs. If the tribe and state prevail, a second trial would be held to determine cleanup costs and how much damage was done to the environment.

Teck officials have declined to discuss issues related to the lawsuit. The company doesn’t comment on ongoing litigation, said David Godlewski, a vice president for Teck American in Spokane, the company’s U.S. subsidiary.

For the Colville Tribe, the trial’s outcome is of utmost importance, said Sirois, the tribe’s 43-year-old chairman.

Sirois’ grandmother was born at a fish camp on a Columbia River tributary in the early 1900s. Harvesting fish and other native foods remains a way of life for many of the 9,000-plus enrolled members of the Colville Tribe, according to a recently released study that surveyed tribal members’ use of the river.

And the pollution affects more than tribal members, Sirois noted. Lake Roosevelt, the reservoir behind Grand Coulee Dam, is a national recreation area that attracts 1.5 million visitors per year.

The Colville Tribe deserves the credit for pushing the lawsuit through, said Rachael Paschal Osborn, a Spokane water rights attorney who has followed the case.

“It was the tribe’s leadership that led to this lawsuit for Teck to take responsibility for the pollution,” she said. “We start with the fact that the Teck plant put a huge amount of pollution into the river. It did what pollution does: It moved downstream” and crossed the international border.

In 1999, the tribe petitioned the U.S. Environmental Protection Agency to take action to address the smelter’s slag and other discharges into the Upper Columbia. EPA officials issued an order requiring Teck to investigate the extent of the pollution and develop a cleanup plan. But company officials declined to act.

“Teck said, ‘We don’t think we’re subject to U.S. laws,’ ” said Dayton, the tribe’s attorney. “Since the smelter is in Canada, and everything they did was in Canada, they argued that U.S. law didn’t apply to them.”

When EPA officials didn’t enforce their order against Teck, two members of the Colville Tribe brought a citizens’ suit under Superfund law. The state of Washington later joined the lawsuit.

“What was unusual about this was that U.S. law was being applied to a Canadian company that didn’t act in the United States,” Dayton said. “There was no case law on the question.”

A District Court judge allowed the lawsuit to go forward. Teck appealed to the 9th Circuit Court of Appeals, which upheld the District Court ruling. Teck then tried to take the matter before the U.S. Supreme Court, which declined to hear the case.

The 9th Circuit Court ruling said the Superfund law applies “to this Canadian mining company because their waste is here in the U.S.,” Dayton said.

Since that decision, Teck Resources has entered into a voluntary agreement with the EPA to pay for studies investigating whether pollution in the Upper Columbia threatens people and wildlife. But those studies, while extensive, don’t commit Teck Resources to pay for cleanup or damages to wildlife habitat and other resources.

That’s why the upcoming trial is so important, said Ecology’s Roland.

The Upper Columbia “is a huge area,” he said. “It’s a major recreation area. It’s home to many people.”

“At the Department of Ecology, it’s our obligation to ensure … that the appropriate party is required to step forward and address their legacy pollution,” Roland said. “Otherwise, the citizens, the taxpayers, would have to pay for the (cleanup).”

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