Thought you all might want to read this

http://www.omakchronicle.com


Tribal members' suit will go ahead
Posted: Tuesday, Nov. 9, 2004 - 2:00 p.m. PST

A federal judge Nov. 8 denied a motion by Teck Cominco Metals Ltd. to dismiss a suit brought by two Colville tribal members over pollution to Lake Roosevelt.
Judge Alan A. McDonald of the U.S. District Court for the eastern district of Washington, Yakima, ruled the suit, filed by Joseph A. Pakootas and Donald R. Michel, can go forward.
McDonald heard arguments Nov. 4 from lawyers representing the tribal members, the State of Washington and Teck Cominco.
"We're extremely pleased with this result," Pakootas said. "We were confident when we filed our suit that the court would tell us that (the Superfund law) applied to Teck Cominco, and that is exactly what happened.
"We'd also like to thank the state of Washington for joining us in the suit and helping to ensure a clean Lake Roosevelt."
Pakootas and Michel filed under the citizens suit provisions of CERCLA, the Superfund law, seeking to enforce a unilateral administrative order issued to Teck Comincolast December by the U.S. Environmental Protection Agency.
In the order, the agency demanded that Teck Cominco perform studies to help better understand the effects of the smelter's contamination on the upper Columbia River and Lake Roosevelt.
Teck Cominco owns and operates the world's largest lead-zinc smelting and refining complex, located in Trail, B.C, about 10 river miles north of the U.S.-Canada border.
From the late 1800s to mid-1995, Teck Cominco released millions of tons of slag and other toxic wastes into the Columbia River, according to the tribe.
By-products of the smelting process include contaminants like arsenic, cadmium, copper, mercury, lead and zinc. The company does not dispute that its slag was carried downstream into the United States.
Teck Cominco maintains that it is subject to Canadian law and not U.S. law.
The court found that "because the fundamental purpose of CERCLA is to ensure the integrity of the domestic environment, we expect that Congress intended to proscribe conduct associated with the degradation of the environment, regardless of the location of the agents responsible for said conduct."
The court also certified the issue for immediate appeal to the 9th U.S. Circuit Court of Appeals.
The lawsuit arose from Teck Cominco's refusal to perform studies intended to determine the nature and extent of hazardous substances released by the company in and about Lake Roosevelt and upper Columbia River, according to an earlier tribal announcement.
The company, based in Vancouver, B.C., said its motion was an effort to fight EPA and the tribe's "unprecedented attempt to force a Canadian company to submit to . . . the U.S. Superfund law."
"From day one Teck Cominco has sought a cooperative arrangement with the U.S. authorities to address the public's concerns surrounding Lake Roosevelt," Doug Horswill, senior vice president for environment and corporate affairs, said in a company statement.
"Cross border environmental disputes should be handled bilaterally through the appropriate diplomatic channels, not through unilateral action by one side which inevitably leads to the courts," he said. "Unfortunately, we are now faced with protracted litigation which will only obstruct an expeditious resolution to the Lake Roosevelt issue."
Teck Cominco originally offered to fund independent research into metals in Lake Roosevelt at a cost of $13 million, and pay for the appropriate cleanup attributable to the company's operations, according to the company's statement.
EPA broke off negotiations with Teck Cominco because the company wanted an alternative to the Superfund process, the company maintains.
The Canadian government has expressed its objection to the U.S. government over EPA's attempt to impose its authority upon a Canadian company operating in Canada under Canadian environmental laws and regulations.

I know one thing, I wouldn't eat ANY fish caught in Lake Roosevelt. I will try and provide some examples as to why.

I have a close personal friend that is an Atty that is VERY involved in this case. What I have heard about the Mercury levels in the lake is alarming to say the least.

This is rather unusual as we are applying US law, CERCLA, to Canadians. It seems that the pollution occurred in Canada and just drifted downstream. Does NAFTA require that our neighbors abide by our environmental laws? Does Canada have anything equivalent to CERCLA? I know that Canada does have some environmental requirements.

This is a problem that's been ongoing for over a dozen years-- not the pollution, but the U.S. trying to get Canada to stop it. Unfortunately, mercury is not the only contaminant. There are a lot of heavy metals, and as I recall, some other nasties in the mix as well.

As for environmental laws, Canada does have some-- for instance, they require that Victoria monitors its outfall to see if there is a water-quality problem. This is where they dump raw sewage (it might be screened) into the Strait. If there is a problem, they have something like three years to find a solution.

Go Canada!

Keith

The court is applying US law to clean up a US site that happens to have a Canadian source of pollution. It does not seek to reach over the border and force Teck Cominco to address contamination of Canadian water, soil or sediment. Canada does have a statute that is similar to CERCLA. In fact, for the past several years the Canadian government, under the Canadian version of CERCLA, has been conducting, north of the border, the rough equivalent of the investigation EPA ordered Teck Cominco to perform south of the border. Unfortunately, Canadian law is not intended to address, and does not apply to, contamination located wholly within the US, even though the source is a facility in Canada. That is exactly what CERCLA is intended to do. CERCLA was drafted to address the problem of the legacy of illegal or abandoned hazardous waste disposal sites, and to force those responsible for those sites to pay for their cleanup. Teck Cominco does not dispute that over the course of nearly 90 years, with the blessing of the Canadian government, it discharged more than 15 million tons of slag (which contains hazardous metals including lead, mercury, zinc, cadmium, copper and arsenic) directly into the Columbia River. The Columbia River carried the mess largely out of Canada -- which satisfied the Canadian regulators because all they are concerned with under their environmental statutes is the 10 miles between Trail and the Canadian border, and saved Teck Cominco millions of dollars in waste disposal costs -- and into the US, where it remains. How is it any different from Teck Cominco having loaded that slag onto a truck, driven it over the border, and dumped it into Lake Roosevelt? It simply used the river instead, and now it will be held to the same standard to which any other polluter of US resources is held.

Mrs. Capt. Dan, Esq. ("close personal friend")

Nice one Connie Sue - I didn't think you would let Dan get away with calling you a close personal friend.

Steve