Appeals Court Allows Superfund Suit Against Canadian Company To Proceed

The U.S. Court of Appeals for the Ninth Circuit decided that a lawsuit over pollution that flowed from Canada into U.S. waters can proceed (Pakootas vs. Teck Cominco Metals Ltd., No. 05-35153, July 3, 2006).

The suit against zinc producer Teck Cominco was filed by members of the Colville Confederated Tribes under the citizen-suit provision of the Superfund law (the Comprehensive Environmental Response, Compensation, and Liability Act), to force the company to investigate and characterize the extent of the contamination in Lake Roosevelt.

For more than 90 years, Cominco and its predecessors discharged mining waste directly into the Columbia River, which then flowed into Washington from smelter operations in Trail, British Columbia, causing significant heavy-metal contamination in Lake Roosevelt, the large reservoir behind Grand Coulee Dam.

The state of Washington intervened in the case, arguing that the U.S. Superfund law applies to Teck Cominco, regardless of the fact that the pollution that flowed into Lake Roosevelt originated in Canada. In 2004, the U.S. District Court for the Eastern District of Washington ruled against Teck Cominco's request to dismiss the lawsuit.

Teck Cominco argued that the Superfund law does not apply to a Canadian company with no presence in the United States, and therefore appealed the district court decision to the Ninth Circuit.

This decision has implications for any state that borders a foreign country. If a foreign company contaminates land within the United States, the state can rely on U.S. law to govern cleanup and liability, instead of having to rely on less certain diplomatic processes, Washington state officials said.

"This decision is great news for all Washingtonians. The Columbia River is a lifeline of the Pacific Northwest and the taxpayers should not have to foot the cleanup bill for contamination by a private company," said Washington Gov. Chris Gregoire. "Teck Cominco and its predecessors used our state as a dumping ground for 90 years and they should pay for the cleanup."

Teck Cominco officials said they would study the ruling to determine if they will appeal.

In early June, EPA and Teck Cominco entered into an agreement that calls for the company to complete an investigation of contamination and conduct an evaluation of cleanup options under EPA oversight. The agreement limited state and tribal ability to participate fully in the cleanup process, according to Washington state officials (see article "Zinc Firm to Pay Millions In International Pollution Agreement" in the archives of www.eponline.com).

"We believe this decision will strengthen EPA's agreement with Cominco, which was executed as a private contract between the federal government and an international mining company," said Washington state Department of Ecology Director Jay Manning.

The decision can be accessed at the Ninth Circuit's Web site at http://www.ce9.uscourts.gov.

This article originally appeared in the 07/01/2006 issue of Environmental Protection.

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