Pollution case tests international law

Canadian mining firm cited over Lake Roosevelt

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SPOKANE — The glistening waters and sandy beaches of the Lake Roosevelt National Recreation Area have drawn millions of tourists over the years.

But the lake for decades also collected wastes dumped into the Columbia River from one of the world's largest lead and zinc smelters, just across the border in Trail, B.C. Now, in a landmark case, a federal judge in Yakima soon will decide if the Canadian smelter operator is subject to the U.S. Superfund law and must pay to clean up nearly a century of pollution.

Teck Metals Ltd., based in Vancouver, B.C., contends that as a Canadian company operating in Canada, it is not subject to U.S. laws. The state of Washington and an Indian tribe, which have sued the company, believe Teck intentionally polluted Lake Roosevelt for decades and now must pay to clean it.

For John Sirois, chairman of the Confederated Tribes of the Colville Reservation, the issue is simple.

"Where does the pollution end up?" he said. "That's where the jurisdiction would end up."

But Teck spokesman David Godlewski said placing the company, formerly known as Teck Cominco, under the Superfund law is not the right way to proceed. They would prefer a collaborative approach in which U.S. and Canadian officials work together on cleanup, which is estimated to cost up to $1 billion.

Much of the pollution is a fine black sand known as slag. It has washed downstream onto beaches where people camp and swim along the shores of the 150-mile-long lake formed by Grand Coulee Dam. Teck contends the pollution does no harm to humans or wildlife, but a major study of the wastes is ongoing.

Last month, Teck Metals admitted in court for the first time that some of the slag dumped into the Columbia River between 1896 and 1995 flowed into the United States, and some hazardous substances from the slag were released into the U.S. environment.

That admission eliminated the need for a costly trial on the source of the pollution, and allowed the parties to move directly to the issue of who must pay for cleanup.

100 years' discharge

Teck is one of Canada's largest mining companies, and its smelter 10 miles north of the U.S. border discharged mining waste directly into the river for a century. That waste was carried by swift currents into Washington.

A decade ago, the Colville tribes petitioned the U.S. Environmental Protection Agency to assess contamination in the reservoir. In 2003, the EPA decided Teck was subject to the U.S. Superfund law, and demanded the company pay for studies to determine the extent of the contamination, and then clean it up. Teck objected, and the tribes filed suit in 2004 to force Teck to comply. The state of Washington joined the case.

The next big ruling is expected in December, when U.S. District Judge Lonny Suko is to decide whether the federal court has jurisdiction over Teck, and whether the company's actions made it liable to pay for cleanup.

In its legal brief saying it should be exempt from Superfund, Teck noted it is a Canadian corporation registered in British Columbia that does not do business in Washington. Those are key facts that establish there is no jurisdiction to bring the lawsuit, the company says.

The company also did not "expressly aim" its conduct at the state, and did not know its actions were likely to cause harm, key elements in proving liability, Teck said.

The company contends that evidence it even knew significant amounts of slag settled into Lake Roosevelt is thin.