Forum focuses on Lake Roosevelt disputes

While U.S. officials and Colville tribal members fight to hold a Canadian company responsible for cleaning up a century’s worth of pollution in Lake Roosevelt, a Canadian agency representing three British Columbia tribes is seeking monetary damages for massive salmon losses from the construction of Grand Coulee Dam.

These transboundary disputes and other contentious environmental issues are being discussed in Spokane this week at the Lake Roosevelt Forum, an annual conference on issues affecting the future of the upper Columbia River.

Michael Bogert, the U.S. Environmental Protection Agency’s regional administrator, provided no new details about a series of ongoing confidential meetings between the federal government, Washington state and the Colville Confederated Tribes over who is responsible for cleaning up Lake Roosevelt.

The talks, initiated by the U.S. State Department, are an effort to resolve the July 2004 lawsuit filed by two Colville tribal leaders seeking to compel Teck Cominco Ltd. to clean up the 15 million tons of smelter slag and other pollutants it has discharged into the river over decades from its Trail, B.C., smelter. The company stopped routinely discharging slag in 1995.

“The parties are attempting a negotiated settlement. We are hopeful we can announce something shortly,” Bogert said.

In 2003, Teck Cominco offered to pay $13 million for studies of Lake Roosevelt pollution, but the discussions with EPA foundered because the Vancouver, B.C.-based company refused to submit to Superfund’s jurisdiction, the 1980 U.S. law that governs pollution cleanups.

That impasse led to the Colvilles’ lawsuit, the first “citizen’s suit” in the history of Superfund to be brought against a foreign corporation. Washington state joined the Colvilles’ lawsuit shortly after it was filed in an effort to force Teck Cominco to comply with EPA’s December 2003 order to clean up the lake.

Lawyers for Teck Cominco argued that the company’s location in Canada puts it beyond the reach of Superfund. But U.S. District Judge Alan McDonald ruled in Yakima in November 2004 that the Canadian company is “rightly subject” to liability under Superfund and immediately certified the case for an appeal.

The 9th U.S. Court of Appeals heard oral arguments in Seattle last December. A decision from the appellate court is expected at any time, said Michael Robinson-Dorn, a University of Washington Law School professor who discussed the case at the Spokane forum on Tuesday.

The 1909 Boundary Waters Treaty between the United States and Canada, which states that neither country should pollute the waters of its neighbor, “doesn’t work the way we’d hoped,” Robinson-Dorn said.

On the other side of the border, three Canadian tribes are seeking damages from the United States for the construction of Grand Coulee Dam, which extinguished once-robust salmon runs on the Columbia.

The Okanagan, Secwepemc and Ktunaxa Nation tribes petitioned the International Joint Commission in 2003 to resolve the issue, said Bill Green, director of the Canadian Columbia River Inter-Tribal Fisheries Commission in Cranbrook, B.C. The IJC was established by the 1909 Boundary Waters Treaty to resolve transboundary environmental disputes.

Before the building of Grand Coulee Dam, a 1939 study showed that 85 percent to 90 percent of migrating salmon in the upper Columbia were destined for Canada, Green said. Salmon disappeared from 1,100 miles of lakes and streams, he added. Damage to the salmon resource came both from the dam’s construction and from rising water levels in the Columbia at the border.

The tribes have asked the IJC to “investigate options for mitigation and compensation,” Green said. The commission has asked for the views of the Canadian and U.S. governments on the tribes’ petition.

Meanwhile, EPA and its contractors are proceeding with sampling of sediments and fish for the EPA’s Lake Roosevelt cleanup. They provided an update of their scientific work at this week’s forum.

EPA has already concluded there are elevated levels of heavy metals, pesticides, dioxins and PCBs in portions of the upper river, said Sally Thomas, the EPA’s remedial project manager.

A risk assessment and a screening of 15 beaches will answer the question the public’s interested in: whether it’s OK to eat the fish and play on the beaches. Those answers have been slowed by EPA’s budget shortfalls in the wake of Hurricane Katrina, but more information should be available this summer, Thomas said.

Jim Stefanoff of CH2M Hill Inc.’s Spokane office, EPA’s contractor for the Lake Roosevelt work, described an extensive sediment sampling program undertaken in 2005. It was the first large-scale study of the entire 150 miles of the river behind Grand Coulee Dam. Scientists sampled sediments every mile for 25 miles below the border and every three miles farther south, he said.

Because of the rapid velocity of the river near the border, smelter slag is being flushed downstream into the middle of the river. But when the river reaches Marcus Flats, the velocity slows and the slag “isn’t going anywhere,” Stefanoff said. He also noted that some heavy metals, including mercury, behave differently in the river because they bind to finer clay or other sediments in the river’s midchannel. Core samples taken from the river bottom also contain mercury, he added.

It’s not clear whether the river has gotten cleaner since the U.S. Geological Survey’s “landmark” sampling effort in 1992, Stefanoff said. “To me, the (data) doesn’t jump out and say yes” and more analysis is necessary, he added.