U.S. law applies

Canadian smelter Teck Cominco Ltd. is subject to U.S. Superfund law even though the pollution it dumped into the Columbia River originated in Canada, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Monday.

In a June 2 settlement with the Bush administration that sidestepped Superfund, the Vancouver, B.C.-based company agreed to pay about $20 million for a short-term study of the environmental damage caused by its huge lead and zinc smelter in Trail, B.C.

But Monday’s ruling may put Teck Cominco back on the hook to pay for much of the actual cleanup as well – a cost estimated in the billions. The company, which has reported profits of more than $1.75 billion in the past 15 months, has argued in court it isn’t subject to U.S. toxic waste cleanup laws.

The court’s decision “is great news for all Washingtonians,” Washington Gov. Chris Gregoire said on Monday. “Teck Cominco and its predecessors used our state as a dumping ground for 90 years and they should pay for the cleanup,” Gregoire added.

Washington state officials want Teck Cominco to investigate and then clean up the 150-mile stretch of the Columbia behind Grand Coulee Dam to protect human health and the environment, said Washington Department of Ecology Director Jay Manning.

Manning said the court’s ruling will give the state more leverage after the U.S. Environmental Protection Agency’s June 2 settlement with Teck Cominco – an unusual private agreement with the mining and smelting giant in which EPA agreed to rescind its December 2003 Superfund cleanup order to the Canadian company.

“We are very excited,” said Alex Smith, assistant attorney general for Ecology. “For both the investigation and the cleanup, the court has said Teck Cominco is responsible under Superfund. We are still looking into whether the (EPA order) wasn’t effectively withdrawn,” she said.

Teck Cominco is disappointed with the ruling but will follow through on its commitment to address the problems in Lake Roosevelt for which it is responsible, said Dave Godlewsi of Teck Cominco American Inc., the company’s Spokane-based U.S. subsidiary, on Monday.

“We are not looking to get out from anything here. We will do the right thing,” Godlewski said. He said the company was studying Monday’s ruling and hadn’t decided what legal steps it will take next. Teck Cominco could seek a review of the decision by the full 9th Circuit.

Monday’s legal ruling is the result of an unprecedented lawsuit brought in 2004 by two members of the Colville Confederated Tribes. It allows the Colvilles’ case to proceed.

Tribal leaders Joseph Pakootas and D.R. Michel filed suit in U.S. District Court in Eastern Washington to try to compel EPA to launch a cleanup of Lake Roosevelt, the stretch of the river behind Grand Coulee Dam where millions of tons of slag from the Trail smelter containing mercury and other heavy metals have settled over a century.

The case set a legal precedent; it was the first time a lawsuit brought under the “citizen’s suit” provision of Superfund had been filed against a foreign company. Washington state intervened on the side of the Colvilles in September 2004.

The Colvilles’ case has been bolstered by Monday’s ruling, said Richard DuBey, a Seattle attorney for the tribes.

“Even though the EPA’s cleanup order has been withdrawn, our additional (Superfund) claims have been strengthened,” including the tribes’ claims for fines and penalties and the tribes’ assertions that their natural resources along the Columbia have been damaged, DuBey said.

“It’s been a long, hard fight,” Michel said Monday. “But this brings us one step closer to our ultimate goal – to hold these guys responsible for the damage that’s been done to our river.”

In August 1999, the Colville tribes petitioned EPA to conduct a Superfund assessment of hazardous contamination in the upper Columbia. The EPA found millions of tons of slag, a byproduct of smelting, and heavy metals, including arsenic, cadmium, lead, mercury and zinc. Teck Cominco’s smelter is on the Columbia approximately 10 miles north of the U.S.-Canada border.

In March 2003, the EPA concluded the pollution was serious enough to qualify the upper Columbia River for a Superfund cleanup.

Nine months later, after negotiations with Teck Cominco over a cleanup study collapsed, the EPA issued a unilateral order to the Canadian company. Teck Cominco resisted, saying it wasn’t subject to Superfund.

In arguments in U.S. District Court in Yakima, lawyers for Teck Cominco argued it was illegal to apply U.S. Superfund law to its operations in Canada. They also said they were operating under a valid Canadian discharge permit and didn’t arrange to have their smelter waste dumped into the United States; instead, they argued, they dumped it into the river themselves and it was only the “action of nature” – the Columbia’s southward current – that caused the pollution to end up in Washington state.

U.S. District Judge Alan McDonald refused to dismiss the Colvilles’ case, certifying it for an immediate appeal to the 9th Circuit. Oral arguments were held in Seattle last December.

In its ruling this week, the 9th Circuit judges noted that Washington has a “long-arm” statute applying to “the commission of a tortious act” within the state. That gives the federal courts “specific personal jurisdiction” over Teck Cominco, the judges said.