Upper Columbia cleanup is Canadian company's responsibility

COLUMBIA BASIN — A federal appeals court ruled Monday that the United States' Superfund law — governing cleanup at contaminated sites — applies to a Canadian smelter operator that dumped millions of tons of heavy metal pollution into the Columbia River, allowing the waste to flow downstream and eventually settle in Lake Roosevelt.

The San Francisco-based 9th U.S. Circuit Court of Appeals' ruling becomes a significant victory for the state of Washington and the Confederated Tribes of the Colville Reservation against the smelter operator, Vancouver, British Columbia-based Teck Cominco Ltd., which may now have to clean up the contamination. Monday's ruling also confirms a 2004 U.S. District Court decision in favor of the Colville Tribe.

Two members of the Colville Tribe originally filed a lawsuit against the company, which is the world's largest zinc producer, under a citizen-suit provision of the U.S. Superfund law.

Joseph Pakootas and Donald Michel, of the Colville Tribe, wanted Teck Cominco to pay for an investigation into the pollution dumped by the giant smelter into the Columbia River, which bounds the Colville Indian Reservation and provides fish for its members.

The Upper Columbia River basin is also a National Recreation Area visited by more than 1.5 million people annually.

Pakootas and Michel wanted to know the extent of the contamination in Lake Roosevelt, the reservoir created by Grand Coulee Dam.

Teck Cominco appealed the district court's decision in favor of the Colville Tribe, claiming the U.S. Superfund law doesn't apply to a Canadian company. The pollution, they argued, was dumped into the river about 10 miles north of the border in Trail, British Columbia, where the giant smelter operates.

The state of Washington intervened because Gov. Chris Gregoire and state environmental leaders decided Teck Cominco should pay for the cleanup.

The appeals court has now rejected Teck Cominco's argument.

"This decision is great news for all Washingtonians," Gregoire said. "Taxpayers should not have to foot the cleanup bill for contamination by a private company. Teck Cominco and its predecessors used our state as a dumping ground for 90 years and they should pay for the cleanup."

The slag is visible along the river shore, where it looks like black, glassy sand.

"This is an important decision for the state of Washington because it holds polluters accountable even if the pollution comes from Canada," said state Attorney General Rob McKenna.

The decision has implications for all states bordering foreign countries. If a foreign company contaminates land within the U.S., the state can rely on federal law to govern cleanup and liability, instead of relying on uncertain diplomatic processes.

State environmental officials expect the decision will result in Teck Cominco moving forward on a contamination investigation and cleanup process of the Columbia River and its sediments. Officials expect the cleanup to meet state and federal standards.

"We need Lake Roosevelt beaches, shoreline areas and bottom sediments of Lake Roosevelt to be cleaned up to the standards necessary to protect both human health and the environment from the effects of heavy-metals pollution," said state Department of Ecology Director Jay Manning.

"Cominco's historic unwillingness to step up to the plate has forced the Colville Tribes and the state to pursue this suit to protect the citizens of Washington state," Manning said.

Early last month, the U.S. Environmental Protection Agency and Teck Cominco reached an agreement for the company to conduct comprehensive human health and environmental assessments of the upper Columbia River basin.

David Godlewski, a spokesman for Teck Cominco, downplayed the impact of Monday's decision, in light of last month's agreement with the EPA in which the company agreed to pay for $20 million in studies.

"The important messages are that we will carry through on our agreement with the EPA on the risks," Godlewski said. "The motivator behind this has been settled with EPA. We are in agreement with them to study the risks on the reservoir."

The company, he said, will study Monday's ruling to determine if it will appeal.

Under the EPA agreement, Teck Cominco fully funds a multi-year investigation and feasibility study consistent with the U.S. Superfund law. The EPA retains full oversight authority for the duration of the study, while the company pays the federal oversight costs up front. The studies are to produce a report on the ecological and human health conditions of the Columbia River from Grand Coulee Dam to the Canadian border, a length of about 150 miles.

"We believe (the appeals court) decision will strengthen EPA's agreement with Cominco," Manning said, "which was executed as a private contract between the federal government and an international mining company."

In mid-June, the EPA said a preliminary study found that 15 beaches along the Columbia River and Lake Roosevelt were safe for recreational use, meaning for people staying two weeks or less per year. The beaches were tested for arsenic, lead, copper, pesticides and other pollutants.

— The Associated Press contributed to this report