Pollution dispute may be mediated

The U.S. Environmental Protection Agency’s strong unilateral order to Canadian company Teck Cominco Ltd. to start cleaning up the damage to Lake Roosevelt is being tempered by the U.S. State Department.

In a new letter, the State Department says the federal government may be willing to settle for a bilateral, mediated solution to the transboundary pollution dispute.

The United States “welcomes the efforts of the Government of Canada to resolve this situation diplomatically,” says the letter from Terry Breese, director of the State Department’s Office of Canadian Affairs.

The Sept. 14 letter, obtained by The Spokesman-Review, has not been made public.

“We were hoping to keep it as private correspondence. We haven’t yet discussed the substance in Washington, D.C., or Canada,” said State Department spokeswoman Nancy Nelson.

The State Department will brief Washington state on its position, said Sheryl Hutchison, Washington Department of Ecology spokeswoman. “Is Superfund being pushed aside? We don’t know. We have a lot of questions,” Hutchison said.

Until now, the state has been excluded from the closed-door negotiations. The administration of Gov. Gary Locke recently joined a federal lawsuit by the Colville Confederated Tribes in support of a Superfund cleanup for Lake Roosevelt, which by law sets out a detailed process to study the lake and then clean it up to protect public health and aquatic life.

The Colvilles are opposed to a bilateral diplomatic remedy for Teck Cominco’s pollution legacy because it is likely to fall short of Superfund cleanup standards, said Gary Passmore, the tribe’s environmental coordinator.

“We don’t want this mediated solution to interfere with our citizen suit or with EPA’s efforts,” Passmore said.

For decades, Teck Cominco’s big lead and zinc smelter at Trail, B.C., has used the Columbia River to dump millions of tons of industrial slag and heavy metals, including hundreds of tons of mercury, a potent neurotoxin. The pollution has traveled across the border into Lake Roosevelt, the impoundment of the Columbia behind Grand Coulee Dam.

In its January response to the December 2003 cleanup order from EPA’s Seattle regional office, Teck Cominco said it’s not subject to U.S. law despite its pollution of American waters, but is willing to spend up to $13 million on Lake Roosevelt studies.

The new State Department letter was the result of high-level discussions at EPA headquarters, the Justice Department and the Department of Interior, another federal agency with jurisdiction over Lake Roosevelt, said State Department spokeswoman Nancy Nelson.

Asked whether the letter hinders EPA’s ability to enforce Superfund cleanup standards on Lake Roosevelt, Nelson said it represents an administration consensus.

“The text of this letter was negotiated between all the agencies. It took us eight months to do this. It’s not like anyone is pushing anything down anybody’s throat,” Nelson said.

An EPA official in Seattle disagreed, saying the regional office was bypassed and ordered not to discuss the State Department response.

“They softened up our letter, and we’ve been kept in the dark. This pollution occurred in the United States, and we think Teck Cominco should have to clean it up according to U.S. standards,” said the official, who asked not to be identified for fear of retaliation.

Ann Klee, EPA’s chief counsel and a former lawyer to Interior Secretary Gale Norton, was involved in the recent discussions over how to respond to Canada. President Bush nominated her this year for the EPA’s chief counsel post, where she advises EPA Administrator Mike Leavitt.

Several major U.S. industry groups, including the National Mining Association and the Edison Electric Institute, have already urged the White House not to let EPA proceed against Teck Cominco under Superfund because of the precedent it would set for U.S. companies operating abroad.

The EPA will continue to use funds from the Superfund account to study heavy metals pollution in Lake Roosevelt, Breese’s letter says.

However, the State Department proposal also would allow the Canadian government an “enhanced consultative role” in the design of the Lake Roosevelt study – including an invitation to Canadian officials to accompany EPA scientists as they conduct field studies.

Under the proposal, Canada would provide the United States “reciprocal involvement” in its work on the Columbia above the border. That would be a first, since the EPA hasn’t been involved in any Canadian studies of pollution from the Trail smelter to the U.S. border, a distance of about 10 miles.

When EPA asked for permission to collect “background” sediment samples from Lower Arrow Lakes above the smelter in 2003, the Canadians refused. EPA obtained other samples from the Washington Department of Ecology, which had obtained them for a less controversial study in 2001. The samples showed low levels of heavy metals upstream of the smelter and elevated levels downstream in Canada.

Meanwhile, the Colvilles sued Teck Cominco in July over the pollution, and Washington state joined the high-stakes lawsuit. It’s believed to be the first time a foreign company has been sued under the citizen’s suit provision of Superfund, which allows a party affected by ongoing pollution to seek damages.

Teck Cominco has filed for dismissal of the Colvilles’ suit, saying it’s not subject to U.S. law. A hearing on the motion to dismiss has been scheduled Nov. 4 in U.S. District Court in Yakima.