Source: http://enr.construction.com, August 7, 2006
By: Thomas F. Armistead
A smelter in Canada is liable under U.S. Superfund law for the cleanup of pollution flushed across the international border, a federal appeals court has ruled. The July 2 decision by the San Francisco-based 9th U.S. Circuit Court of Appeals adds the force of law to an agreement by the polluter to fund the cleanup of the site in Washington state. But state officials have not signed on to the agreement and vow to continue pursuing the company if it appeals the decision as it has promised.
Teck Cominco Ltd., Vancouver, British Columbia, must pay to clean up almost a century’s worth of heavy metals discharged into the Columbia River from its zinc smelter in Trail, B. C. The metals, entrapped in a vitrified glass-like compound of calcium, iron, and silica, drifted downstream about 30 miles across the border. Much of it settled in Franklin D. Roosevelt Lake in northeast Washington after the Grand Coulee Dam was constructed in 1942. The company stopped discharging into the river in 1995 and now sells the byproduct to the cement industry.
“The decision is important to us because it means that the Superfund law does apply to the pollution that came to rest in the United States,” says a spokeswoman for the Washington State Dept. of Ecology. The state has refused to sign on to the negotiated deal, and stands ready to push the suit through the courts if Cominco appeals, as it has said it will do.
Cominco says it is already developing a cleanup strategy with the Environmental Protection Agency, mooting the court’s decision. “We will do what needs to be done to clean up any pollution,” says David Godlewski, a spokesman for Teck Cominco America Inc., Spokane.
The tiff between the two countries began in 1999 when members of the Confederated Tribes of the Colville Reservation petitioned EPA to assess pollution in Lake Roosevelt and the Upper Columbia River basin.
EPA found elevated levels of heavy metals in some areas and traced them upstream to Cominco. But the agency did not assess whether the metals posed any risk to human health or the environment. In discussions with EPA at the time, Cominco committed $13 million for human health and ecological studies under direct EPA supervision. But EPA wanted the company to sign an agreement under the Comprehensive Environmental Response, Compensation and Liability Act, the Superfund law.
“Cominco wanted to avoid the Superfund designation,” says Godlewski. “The company didn’t think it fell under the purview of CERCLA.”
EPA eventually cut off negotiations with Cominco and ordered its subsidiary Teck Cominco Metals Ltd. to sign an agreement under CERCLA or face fines of $27,500 per day, and damages three times what EPA would have spent on the cleanup. That’s when the Government of Canada sent a diplomatic note to the U.S. State Dept. asking to get negotiations back on track.
On June 2, Cominco and EPA reached an agreement. The Canadian company put $20 million in escrow to pay for remedial investigation and a feasibility study of the lake and the upper Columbia basin, with EPA, Washington State, and local Indian tribes overseeing the operation.
“We’re totally committed to completing the study within five years,” Godlewski says.
Cominco has hired four firms to conduct the studies: Parametrix, Sumner, Wash.; Integral Consulting, Seattle; Hydroequal, Mahwah, N.J.; and HDR Fishpro, Omaha.
The agreement provides $1 million annually to be split between the U.S. Dept. of Interior, the Spokane and Confederated Colville tribes, and the state of Washington to cover their costs in overseeing the operation.
But state officials, who have refused to sign onto the agreement, vow to continue the legal battle to force Cominco to submit to CERCLA. “The state wasn’t a signatory to the (negotiated) agreement because we felt it offered too many opportunities for Cominco to walk away,” Gilbert says. “The court decision strengthens our case to push forward beyond the study and get things cleaned up.”
The court decision could make companies think twice before developing future projects along the international border. As an example, Godlewski cites the proposed development of massive coal fields in Canada just north of Montana’s Glacier National Park. Local U.S. officials fear runoff from the open pit mines could pollute the pristine Kootenai River.
On the other hand, the court’s decision could eventually be turned against U.S. companies, Godlewski says. “We cautioned the court that a decision against us could conversely open up a case against a U.S. company in a foreign land.” An ongoing U.S. project that has caught the attention of Canadian officials involves North Dakota’s attempts to draw down the water level of the flooded Devil’s Lake. Canadian and some U.S. environmentalists say the discharged water could pollute the Red River, which runs north into Canada’s Lake Winnipeg.