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Spokane, Washington  Est. May 19, 1883

Wallace contamination lawsuit settled

Tina and Harve Paddock say that the previous owners of this Wallace home didn't tell them about high lead levels in the yard and house dust before they bought it. 
 (File/ / The Spokesman-Review)

When Tina and Harve Paddock purchased a house in Wallace in 1997, they were captivated by the rugged scenery, the quirky charms of the residents, and thought it cute that a local business was selling chunks of lead-silver ore in baskets.

“That first Christmas we bought the kids lead. We didn’t know it was poisonous,” Tina Paddock said Tuesday in the aftermath of a seven-year fight that sought to address health concerns raised by industrial pollution.

Soon after buying the house, the Paddocks said they became aware of heavy metals contamination throughout the Silver Valley from a century of mining and milling. Neither the sellers nor the real estate agents disclosed that the soils on the property were contaminated, Paddock said.

They lived in the house only six months before moving to Oregon with their children, but have spent the last seven years advocating for health and environmental issues – and trying to sell their house.

The Paddocks joined a handful of Silver Valley homeowners to try and launch a class-action lawsuit against several mining companies and a railroad.

“Our hopes … included actual health intervention and funding for a clinic for the community,” Paddock, one of 12 plaintiffs named in court documents, said about the lawsuit’s goals.

The suit died a quiet death two weeks ago when the homeowners, on the hook for a quarter-million dollars in court costs, documents show, agreed to a settlement with the industries. The homeowners dropped an appeal they had filed with the Idaho Supreme Court after losing in a lower court in August. In return, the companies withdrew the court-awarded costs of $252,875.82.

“I call it a resolution,” said Mike Branstetter, a Silver Valley attorney who represented Asarco, one of the mining companies named as defendants in the suit. “We were approached by the plaintiffs with an offer to dismiss the appeal if the defendants withdrew the motion for award of any costs.

“We agreed to do that. The appeal to the Supreme Court is dismissed. The summary judgment stands and so the case is over.”

Branstetter declined to discuss the larger issues of pollution controls and long-term health concerns.

The mining companies – Hecla, Asarco, and Coeur d’Alene Mines – and the Union Pacific Railroad had argued that the statute of limitations had long since expired on the claims made by the homeowners. The companies, who have all historically done hard-rock mining for lead-silver deposits or the milling or hauling of ore, won a summary judgment in Kootenai County 1st District Court in August when Judge John Luster agreed the statute of limitations had run out decades ago.

The four-year clock on the statute of limitations begins in Idaho, Luster said in his judgment, “on the date when some damage, caused by defendants, has occurred.”

The court documents show the mining companies stopped discharging mine waste directly into streams during the 1960s. Mine waste has since been kept behind impoundment structures or stored in mine shafts.

The issue of heavy metals contamination from mine waste is huge. The pollution from a century of mining has traveled downstream to Lake Coeur d’Alene and beyond the state border via the Spokane River. The federal Environmental Protection Agency oversees the nation’s largest Superfund cleanup, which was expanded in 2002 from 21 square miles of the Silver Valley to include the entire Coeur d’Alene River Basin.

Many of the issues raised in the suit have already been litigated in federal courts, Luster said in an interview this week. His summary judgment shows that he asked twice for the plaintiffs to refine the scope of the suit. Footnotes in the document indicate Steve Berman, a Seattle attorney who specializes in class-action suits, provided exhibits on behalf of the homeowners that were either already in the court record or were not admissible as evidence.

Boxes of newspaper clippings, Luster wrote, “… although interesting, do not contain information that is relevant to the issues presented here.” Berman was out of his office this week, but was said to be checking messages. Two voicemail messages from The Spokesman-Review went unanswered.

The homeowners had gone to the Idaho Supreme court to appeal Luster’s summary judgment tossing the case.

But during Thanksgiving week the homeowners received a letter from Berman, indicating an agreement was preferable to continuing the appeal. Unless the plaintiffs said otherwise, he would sign an agreement that Friday, Paddock recalled the letter saying.

At least one of the homeowners took this as a signal the law firm didn’t intend to cover the $252,875.82 in court-awarded summary judgment costs as it promised it would in a contract signed by all the homeowners.

“It was very clear he didn’t want to proceed,” Paddock said. Without the law firm to cover their backs, so to speak, the homeowners felt they had no choice but to drop the appeal, she said.

Health concerns remain, but Jerry Cobb, who administers the Panhandle Health District’s annual monitoring of blood-lead levels in Silver Valley children, said the 15-year program – though often criticized for its scientific validity – has shown steady improvement. In recent years the program has met its goal of having 95 percent of the tested children show blood-lead levels at less than 10 micrograms of lead per deciliter of blood – the current national health standard.

“The average now is 3 (micrograms per deciliter),” he said. “It had been 40 when we started.”

Cobb admits the contaminants are not gone; they are merely covered by clean dirt and barriers. Yet he said he does not hear much of a call for a specialized health clinic outside of community activists who often have been ostracized by civic and industry leaders in the Valley.

The Paddocks, for example, have often been derided as outsiders.

The best way to deal with health threats from toxic heavy metals is to remove sources of exposure, Cobb said, adding this is what the Superfund cleanup addresses.

Paddock disagrees, citing recent federal health assessments that conclude Silver Valley and Coeur d’Alene Basin residents face real health risks from heavy metal contamination.

“We met a lot of kids” in the short time her family lived in the Silver Valley, Paddock said. “We are concerned about their safety. We are concerned about the continued denial of pollution by industry.”

Over the years prospective buyers have approached the Paddocks about the house in Wallace. After showing them a folder of information on heavy metal contamination, “We never see them again,” Tina Paddock said.

But this Christmas, now that the suit has gone away and liens have been removed against their property, the house in Wallace has quickly sold, she said, to people who feel lead is not a threat.

Paddock had mixed feelings.

“There is an epidemic, but it is not recognized,” she said.