Colvilles sue over pollution

In a legal first, two leaders of the Colville Confederated Tribes have filed suit in an effort to force a powerful Canadian mining and smelting company to clean up millions of tons of pollutants it has dumped into Lake Roosevelt over decades.

It’s the first citizens suit brought against a foreign corporation under the 1980 Superfund law. The Colvilles say they’ve lost patience with negotiations that have moved into closed-door diplomatic talks in Ottawa and Washington, D.C. – bypassing the tribe and Washington state’s elected officials.

Since Congress passed Superfund to address industrial contamination, “there hasn’t been a case quite like this before – to determine whether or not a Canadian company is a responsible party” for pollution carried into the United States, said Richard Du Bey of Seattle, attorney for the Colvilles.

The complaint was filed Wednesday in U.S. District Court in Spokane, on behalf of Joseph A. Pakootas and Donald R. Michel, tribal members and leaders of the Colville Business Council that governs the sprawling reservation on the banks of Lake Roosevelt.

The lawsuit is not an effort to apply U.S. law to the daily operations of Teck Cominco Metals Ltd., a Vancouver, B.C.-based company that operates the world’s largest combined lead-zinc smelter on the banks of the Columbia River at Trail, B.C., Du Bey said.

“This is a suit to address the environmental legacy of 145,000 tons a year (of slag) for 90 years that Teck Cominco has released directly into the river,” Du Bey said. Slag, a black, granular byproduct of smelting, is contaminated with heavy metals. Teck Cominco stopped dumping slag into the river in 1994.

In a recent story based on Canadian historical documents, The Spokesman-Review reported the smelter has also dumped hundreds of tons of toxic mercury into the river – an estimated 20 pounds per day for decades, according to a 1981 B.C. Ministry of the Environment estimate.

Teck Cominco is disappointed with the Colvilles’ lawsuit and will vigorously defend itself in court, said Doug Horswill, senior vice president for environment and corporate affairs. The Colvilles’ lawsuit is “an attempt to enforce U.S. domestic environmental law across an international border,” he added.

The lawsuit seeks attorneys’ fees and Superfund-sanctioned fines of up to $27,500 a day against Teck Cominco for refusing to comply with a U.S. Environmental Protection Agency unilateral order last December that directs the Canadian company to begin studies of the environmental and health risks of the Lake Roosevelt pollution. Any fines recovered would go to the EPA for Lake Roosevelt cleanup.

As of this week, the maximum potential fines total $5.7 million, and they will continue to accumulate if the Colvilles prevail in the lawsuit “until the violations have been cured,” Du Bey said.

Under Superfund, individuals can file citizens suits if they feel an agency – in this case, the EPA – isn’t vigorously pursuing cleanup. The Colvilles’ complaint says the EPA “has neither commenced nor is diligently prosecuting a court order” to enforce its December 2003 order to Teck Cominco.

“We felt at this stage of the game, the tribe and its members had a substantial stake in seeing the (EPA) order properly enforced,” Du Bey said.

Teck Cominco last year offered to provide $13 million to pay for studies of the Lake Roosevelt pollution and its potential ecological and human health risks, but the discussions with EPA foundered because Teck Cominco refused to recognize U.S. Superfund cleanup standards and legal processes. Diplomatic talks over the standoff are under way in Ottawa and Washington, D.C.

Teck Cominco has spent more than $1 billion since the mid-1990s to improve its environmental performance, and the $13 million offer to fund Lake Roosevelt studies still stands, Horswill said.

“We’re being vilified unfairly, but that’s the way the game is being played. We’d much rather have a bilateral process in place,” Horswill said. The Colvilles, however, fear that a new bilateral panel would undercut Superfund.

EPA “agrees with the Colvilles that Teck Cominco and not the American taxpayer should fund and perform the investigation required by our order,” said spokesman Bill Dunbar at EPA’s regional office in Seattle. EPA’s national headquarters approved the issuance of the December 2003 unilateral order, he said. It’s the first such order to a Canadian company.

Since Teck Cominco’s refusal to comply with the EPA order, “the U.S. government has continued to consider a range of options, from forging a diplomatic solution with the Canadian government to rigorous enforcement of the EPA order,” Dunbar said. Meanwhile, EPA has launched its own Lake Roosevelt study, using U.S. taxpayer money. Superfund law allows EPA to recover three times its costs for cleanup studies from recalcitrant polluters.

Lawyers for the Colvilles are using an international legal process established by the Hague Convention to serve Teck Cominco with the Colvilles’ complaint in Canada, Du Bey said. After the company is served, it will have 90 days to answer in federal court in Spokane.

“We anticipate that Teck Cominco will bring legal action to try to show this court doesn’t have jurisdiction,” Du Bey said.

In a Wednesday conference call, Canadian reporters who haven’t seen Lake Roosevelt asked Colville tribal leaders to describe the pollution and its impact on their tribe.

In the upper reaches of the Columbia where the free-flowing river crosses the border, strong currents have carried millions of tons of slag downstream, Pakootas said. “Many of the beaches have black sand – it’s slag, and you can see it all the way down to Inchelium,” he said.

Although the Colvilles are still heavy users of Lake Roosevelt’s 150 miles of shoreline, the environment has deteriorated, Michel said. “Our elders talk about being able to walk across the river on the backs of the salmon. Now, they are afraid to eat the fish or swim or walk on the beaches … we filed this suit to improve the lake for future generations,” Michel said.