MAC: Mines and Communities

Teck Cominco to pay $20 million US for study of pollution of Columbia River

Published by MAC on 2006-06-02

Teck Cominco to pay $20 million US for study of pollution of Columbia River


2nd June 2006

VANCOUVER (CP) - Teck Cominco Ltd. (TSX:TEK.SV.B) and the U.S. Environmental Protection Agency have reached a deal that will see the company pay for a study of heavy-metal pollution of the Columbia River.

Teck Cominco agreed to put up an initial $20 million US to assess the impact of decades of upstream pollution in the river running from Canada into the U.S. The Environmental Protection Agency will oversee the study, which could eventually cost $30 million US but would be paid for by the mining company.

The agreement was reached after two years of negotiations between EPA and Teck Cominco and followed a lawsuit by the Colville Confederated Tribes of Eastern Washington and the state of Washington. Teck Cominco has agreed to spend another $1.1 million US to help involve the tribes and state.

"From Day 1 Teck Cominco has voluntarily sought a co-operative arrangement with U.S. authorities to address the public's concerns surrounding Lake Roosevelt. This agreement is a great step forward in allowing us to fulfil our commitment," said company spokesman Doug Horswill.

Teck Cominco had argued the lawsuit should be thrown out because the U.S. could not impose rules on Canadian companies operating on Canadian soil.

But in 2004, U.S. District Judge Alan McDonald disagreed, saying U.S. environmental laws are intended to clean up pollution inside the United States, regardless of its origin. That decision was appealed to the U.S. Ninth Circuit Court of Appeals which had yet to make a decision.

The U.S. agency called the study an initial step toward launching a cleanup. It will assess risks from contamination to both people and the environment, and cover more than 200 kilometres of the river from the Canadian border downstream to the Grand Coulee Dam.

"We have moved from opposite sides of the table to sit down together as environmental problem-solvers," Michael Bogert, the agency's regional administrator for the Northwest, said Friday.

"The Bush administration is avoiding years of inefficient litigation and beginning the restoration of the river basin."

The issue of who will pay for the eventual cleanup still has not been resolved, Bogert said.

Austen Parrish, an associate professor at Southwestern Law School in Los Angeles, said the settlement helps both governments avoid a crisis in U.S.-Canada relations.

"They managed to put off for another day the really difficult questions about whether U.S. environmental laws can apply extraterritorially to Canadian companies and vice versa," said Parrish, who has written about the dispute.

Parrish pointed to several other similar disputes that could have been affected including: North Dakota's draining of waters from Devils Lake that Manitoba fears will pollute the Red River and Lake Winnipeg; a disagreement between Alberta and Montana over use of the Milk and St. Mary rivers, and a dispute over the Tulsequah Chief mine in B.C. in a watershed that straddles B.C. and Alaska.

The lawsuit filed by the tribe and the state in 2004 was the first instance of Americans suing a Canadian company under the U.S. Superfund law. They accused the company of dumping millions of tonnes of heavy metals into the river for nearly 90 years, allowing it to flow into the United States.

They demanded the company comply with a December 2003 EPA order to pay for studies of pollution from a giant lead-zinc smelter in Trail, B.C., 16 kilometres north of the border. EPA officials said the 2003 order is being withdrawn as part of the settlement.

The order was "really the heart of the case," Bogert said, and with its withdrawal by EPA "it's uncertain what is really left of the pending litigation."

The Confederated Tribes of the Colville Reservation was uneasy about the settlement.

"We will need to pay very close attention to how the process is implemented," said D.R. Michel, a Colville Business Council member and chairman of the Tribes' natural resource committee.

"It gives Teck Cominco a tremendous amount of flexibility and we have grave concerns that it won't protect the health and welfare of tribal resources, tribal members and other U.S. citizens."

The Columbia runs through the tribe's reservation and provides fish for its members. About 25 kilometres south of the U.S.-Canada border, the river becomes Lake Roosevelt, the reservoir behind the Grand Coulee Dam.

EPA said it was the first time a settlement had been reached with a company over pollution that started in a foreign country and entered the United States.

But state regulators also expressed concern that the untested agreement may not be legally enforceable and limits the authority of the state and tribes in any potential cleanup.

"This agreement is a private contract between the federal government and an international mining company," said Jay Manning, director of the Washington state Department of Ecology.

"That departs from normal settlement and cleanup procedures under both federal and state cleanup laws."

The agreement lacks a typical consent order or consent decree that can be legally enforced and require a polluter to clean up contamination, Manning said, adding that his department hoped to "hold Cominco to its word about conducting a thorough and timely investigation."

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