Court will hear appeal by Teck Cominco
The 9th U.S. Court of Appeals has agreed to hear a Canadian company’s appeal in a high-profile international dispute over smelter pollution in the Columbia River.
Teck Cominco Ltd., of Vancouver, B.C., is arguing it can’t be forced under U.S. Superfund law to clean up millions of tons of slag and toxic metals it released to the river for decades from its smelter at Trail, B.C. The company has proposed a mediated, diplomatic solution as an alternative and has offered $13 million for initial studies.
Last July, two members of the Colville Confederated Tribes filed a Superfund “citizens’ suit” against Teck Cominco in support of a December 2003 U.S. Environmental Protection Agency Superfund cleanup order to the Canadian company.
The Washington attorney general’s office joined in the Colvilles’ suit.
The Colvilles’ litigation is setting legal precedents. It’s the first citizens’ suit brought against a foreign corporation under the 1980 Superfund law. Colville tribal leaders Joseph Pakootas and D.R. Michel said it was filed because the tribe has lost patience with negotiations that have moved into closed-door talks in Ottawa and Washington, D.C. – bypassing Washington state and the tribe.
The Colville Reservation adjoins Lake Roosevelt, the impoundment of the Columbia River behind Grand Coulee Dam where much of the Canadian smelter pollution has spread.
Teck Cominco went to federal court to try to get the Colvilles’ suit dismissed. But U.S. District Court Judge Alan McDonald ruled Nov. 8 in Yakima that the company is “rightly subject” to liability under Superfund, Congress’ foremost environmental cleanup law.
“Canada’s own laws and regulations will not compel the Canadian facility to clean up the mess in the United States which it has created,” McDonald said in his ruling. He immediately certified the case for a 9th Circuit appeal.
On Nov. 26, Teck Cominco filed permission to appeal. Since then, several prominent business groups in the United States and Canada have sought to join the case through amicus briefs on behalf of Teck Cominco. They include the National Mining Association, the U.S. Chamber of Commerce, the Canadian Chamber of Commerce and the Mining Association of Canada.
In previous letters to the Bush administration, the American business groups said they fear a Superfund cleanup order against Teck Cominco will open the door for their members to be sued for U.S. pollution that travels across international borders.
The 9th Circuit’s order granting Teck Cominco’s appeal and requesting a transcript from McDonald’s court was entered Feb. 14. No date has been set for any arguments, said Kristie Carevich, an assistant attorney general representing the Washington Department of Ecology.