An Unfortunate precedent

A series of events is unfolding in Washington state that promises to draw increased attention to, and potential action against, Teck Cominco.

In 1999, the Washington state native group Confederated Tribes of the Colville Reservation (Colville Tribes) started pressing the U.S. Environmental Protection Agency (EPA) to determine whether the Lake Roosevelt area, a reservoir on the Columbia River created by the Grand Coulee Dam, should be given Superfund status. The concern has to do with alleged metals contamination in lake sediments from refining and smelting activities conducted at the Trail lead-zinc facility, just across the border in British Columbia.

The Trail lead-zinc smelter has operated on the banks of the Columbia River since the early 1900s. As part of the past operations, slag was dumped into the river. A waste product of the smelting process, slag is a sand-like material with minor residual metals content. The Trail facility ceased all discharge of slag into the river in 1994 and has seen invested more than $1 billion in environmental safeguards. These safeguards supersede government regulations.

Declaring the dammed-up section of the Columbia River a Superfund site would initiate a process that could see the EPA targeting Teck Cominco, as a potentially responsible party, for clean-up costs of perceived pollution and contamination in the area. It would be a huge financial burden for the metals miner, which has recently declared a string of profitable quarters and record earnings. Other mining operations and possible pollution sources on the American portion of the river have been shut down for years.

The situation worsened in late 2003, following the EPA’s rejection of Teck Cominco’s voluntary offer to fund up to US$13 million in environmental studies under direct EPA supervision and pay for remediation of any metals contamination attributable to past operations of the Trail complex. The EPA then followed with an order demanding that the company submit to U.S. Superfund law — despite the fact that all the operations were conducted in Canada, outside of any perceivable jurisdiction of the agency. Also implied in the EPA order are threats of fines and possible punitive damages for failing to comply.

The cross-border issue has captured the attention of the Canadian government, which is rightfully concerned about any attempt to apply U.S. laws north of the border. In early 2004, government involvement was initiated through diplomatic channels. Officials, concerned that the action would set an unfortunate precedent, requested a rescission of the EPA order. A proposal for a more bilateral process of joint studies, at Teck Cominco’s cost, into Lake Roosevelt has yet to receive any response from the Americans.

The situation, already bad, got worse following the Colville Tribes’ recent filing of a suit seeking enforcement of the EPA’s earlier order to comply, forcing Teck Cominco to submit to the Superfund law.

As a result of the native groups’ attempt to enforce the EPA order, the company’s hand has been forced. And it has followed suit by filing a motion seeking dismissal of the Colville Tribes’ lawsuit, citing again that U.S domestic environmental policy is not enforceable in Canada.

Predictably, the state of Washington, through a release by Governor Gary Locke, has now also waded into the process, joining the Colville Tribes lawsuit seeking enforcement and application of the EPA order against Teck Cominco.

Curiously, over the past few years, Governor Locke has been a proponent of the controversial Sumas 2 natural gas power-generating plant. The planned U.S. facility, which would be built just across the border from the Fraser Valley in southwestern British Columbia, has met with huge opposition from residents on both sides, owing to concerns about air pollution. The governor has stated: “I am willing to speed up the permitting process, and be flexible with environmental rules, as long as this key principle stands: there can be no additional harm to the environment.”

The current controversy will inevitably get “lawyered-up” and may very well escalate into a long, protracted legal fight on the application of present standards on past operations and across international jurisdictions. An amicable resolution is looking less and less likely. The final outcome will no doubt have significant ramifications for the environmental policies of both countries.