Pollution study ordered

The Bush administration has settled a major legal fight over a Canadian smelter’s century-long pollution of the Columbia River – a pact which funds a short-term pollution study but leaves unanswered who ultimately will be responsible for cleaning up 150 miles of the river between the Canadian border and Grand Coulee Dam.

The settlement with Vancouver, B.C.- based Teck Cominco Ltd. was announced late Friday in Washington, D.C., after months of closed-door talks involving U.S. and Canadian diplomats, the U.S. Environmental Protection Agency, Washington state and two Native American tribes – the Colville Confederated Tribes and the Spokanes. The negotiations were top-down and involved months of “total radio silence,” said one EPA official in Seattle who learned of the settlement two days ago.

Michael Bogert, EPA’s regional administrator in Seattle, praised the settlement talks overseen since last fall by Ann Klee, EPA’s general counsel. “We’ve moved from opposite sides of the negotiating table to sit down as environmental problem-solvers,” Bogert said in a conference call with reporters.

Bogert called the Colvilles and Spokanes “fully empowered partners” in the agreement. But D.R. Michel, a Colville Confederated Tribes’ Business Council leader who filed a Superfund “citizen’s lawsuit” in 2004 to compel cleanup, disputed that, saying the tribe was not a formal signatory to the agreement.

“We were in no way a fully vested partner in this. We have major concerns. This agreement has no links to any future cleanup,” Michel said.

The Washington Department of Ecology also was not a party to the agreement and fears it may let Teck Cominco off the hook for cleaning up Lake Roosevelt, said spokeswoman Jani Gilbert.

“We feel Teck Cominco is the polluter and should pay for the entire operation. This may not lead to a cleanup that’s adequate,” Gilbert said.

The agreement calls for Teck Cominco to put $20 million into an escrow fund to pay for a human health and environmental study of Lake Roosevelt and pay an additional $1.1 million a year over the course of the study to the tribes and regulators for oversight. EPA retains its oversight powers, Bogert said.

However, Washington State Ecology Director Jay Manning called the agreement “unique and untested” and said it limits full participation by the state and tribes.

“This agreement is a private contract between the federal government and an international mining company,” not a legally enforceable cleanup agreement under Superfund, the nation’s major toxic waste cleanup law, Manning said.

Environmental groups also were skeptical. “Teck Cominco’s environmental record is abysmal,” said John Osborn of the Sierra Club’s Upper Columbia Chapter. “Handing over the environmental analysis to this corporate polluter is fraught with peril, even with EPA oversight,” Osborn added.

Teck Cominco, which operates one of the world’s largest lead and zinc smelters at Trail, B.C., had earlier offered $13 million for Lake Roosevelt cleanup studies, but talks with EPA collapsed in 2004 after the company refused to be subject to U.S. Superfund laws.

Records show the smelter has dumped millions of tons of slag and thousands of tons of heavy metals into the river since 1896. The smelter finally stopped routinely dumping slag in 1995 after scientific studies showed it killed fish; British Columbia regulators ordered a halt to the dumping. Following a major mercury spill from the smelter in March 1980, one B.C. regulator said in internal documents obtained by The Spokesman-Review that the price tag for cleaning up the smelter pollution would be “astronomical.”

Teck Cominco has recently reached record profits because of soaring metal prices, including all-time highs for the zinc smelted at Trail. In the past 15 months it has reported profits of $1.75 billion, giving the company a cash balance over $3.2 billion – more than double its outstanding debts.

All along, Teck Cominco has wanted a cooperative arrangement with U.S. authorities, said Doug Horswill, the company’s senior vice president for environment and corporate affairs. “This agreement is a great step forward in allowing us to fulfill our commitment,” Horswill said in a statement.

U.S. Rep. Cathy McMorris, R-Spokane, also hailed the pact, saying the study is “the first step towards the ultimate goal of ensuring Lake Roosevelt is clean and protecting Eastern Washington’s resources and recreation lifestyle.” Teck Cominco’s U.S. political action committee contributed $2,000 to McMorris’ congressional campaign in 2003, federal election records show.

As part of the deal, Bogert announced that EPA has withdrawn its 2003 cleanup order to Teck Cominco. The company resisted EPA’s directive with the help of the Canadian government. U.S. mining interests also sided with Teck Cominco in letters to the Bush administration and in friend-of-the-court briefs.

After EPA failed to enforce its own cleanup order, Michel and Colville leader Joe Pakootas sued in July 2004. That lawsuit, filed in U.S. District Court in Spokane, was a legal first – a high-stakes effort under the “citizen’s suit” provisions of Superfund to compel a foreign company to clean up its pollution in the United States.

Washington state will fight any attempt by Teck Cominco to dismiss the Colvilles’ lawsuit, which could result in the company being held responsible for cleanup, said Alex Smith, assistant attorney general for Ecology. The case is on appeal before the 9th U.S. Circuit Court of Appeals in San Francisco after U.S. District Judge Alan McDonald ruled in November 2004 that Teck Cominco is subject to Superfund for fouling U.S. waters.

“The 9th Circuit could rule they are a potentially responsible party. We are hoping that happens,” Smith said.

Lake Roosevelt cleanup may be as expensive as EPA’s 1,500-square-mile Silver Valley cleanup of mine wastes in Idaho because of the geographic scope of the pollution, she noted. “It could be in the billions of dollars,” Smith said.

The Colvilles anticipated in their lawsuit that EPA might withdraw its cleanup order to Teck Cominco and inserted additional claims for natural resources damages and cleanup costs, said Richard DuBey, a Seattle attorney for the Colvilles.

“The 9th Circuit opinion is overdue. We were hoping they’d have ruled by now,” DuBey said.

Reporter John Stucke contributed to this story.