The Sierra Club (USA) and Sierra Club of Canada filed a friend-of-the-court brief Thursday in support of members of the Colville Tribe and of the State of Washington in the case of Pakootas v. Teck Cominco Metals, Ltd.
Over the course of nearly a century, Teck Cominco Metals dumped millions of tons of heavy metals into the Columbia River from its facility in Trail, British Columbia, located about ten miles north of the U.S.-Canada border. Between 1906 and 1995, Teck Cominco annually dumped more than 145,000 tons of slag, a byproduct of the smelting industry that contains carcinogens and other toxins such as arsenic and lead. Much of these contaminants have settled around the bed and banks of Lake Roosevelt (the reservoir formed by Grand Coulee Dam) in northern Washington. The pollution poses a threat to tribal members who use the reservoir to fish and for cultural and spiritual reasons, as well as the thousands of people who recreate in the area.
"Lake Roosevelt is an extremely popular recreation area," said John Osborn, a Spokane physician and conservation chair for the Northern Rockies Chapter of the Sierra Club. "Most of the people swimming, boating, and fishing there have no idea they are recreating in a lake that one selfish mining company used as a toxic waste dump."
The brief filed today is in support of the right of US citizens to enforce the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or "Superfund") against foreign entities that contaminate the U.S. environment.
Common Sense and Decency
"If Teck Cominco polluted waters in Canada, it would be required to clean them up," said Elizabeth May, executive director of Sierra Club of Canada. "This is not a question of applying U.S. law in another country. The pollution is in the United States and U.S. law obviously applies."
"Pollution does not recognize political boundaries," said Martin Wagner, an attorney for Earthjustice who helped write the brief. "The responsibility for causing this mess clearly lies with Teck Cominco, so common sense and decency say the company should be responsible for cleaning it up. Otherwise Teck Cominco's waste becomes a burden on U.S. taxpayers."
According to the U.S. Geological Survey, Lake Roosevelt contains elevated concentrations of arsenic, cadmium, copper, lead, mercury, and zinc. A USGS report indicates that liquid effluent from the Teck Cominco smelter is the primary contributor of the large concentrations of these toxins found in sediment samples from the middle and lower reaches of Lake Roosevelt.
In April 2003, EPA initiated informal settlement discussions with Teck Cominco, owner and operator of the smelter in Trail, British Columbia, Canada. EPA tried to enter into an Agreed Administrative Order on Consent with Teck Cominco whereby Teck Cominco American of Spokane, Washington, one of Teck Cominco's U.S. subsidiaries, would conduct an investigation of the nature and extent of the contamination in Lake Roosevelt and develop appropriate measures to clean up the site.
On October 10, 2003, the EPA sent a Special Notice letter to Teck Cominco, triggering an automatic 60-day period of formal negotiations with EPA. According to EPA, the negotiations broke down on November 26, 2003, due to Teck Cominco's "unwillingness to address U.S. environmental and health standards in its proposed study and to meet the same conditions as U.S. companies must meet." As a result, on December 11, 2003, EPA issued a Unilateral Administrative Enforcement Order directing Teck Cominco to conduct the studies required by CERCLA. On January 12, 2004, Teck Cominco informed EPA that it would not comply with the order because Teck Cominco did not believe the agency had jurisdiction over it.
"Teck Cominco hopes to brush this pollution under the carpet, but now state, tribal, and conservation groups from both sides of the border have joined forces to make sure this dangerous mess is finally cleaned up," said Rick Eichstaedt of the Spokane-based Center for Justice and co-counsel on the brief.
In July 21, 2004, two members of the Confederated Tribes of the Colville Reservation sued Teck Cominco over failure to comply with EPA's order. Joseph Pakootas and Donald Michel filed suit in federal court (Eastern District of Washington) in Spokane. This case was joined by the State of Washington (in support of the tribal plaintiffs). In August 2004, Teck Cominco filed a motion to dismiss, arguing that U.S. law would not apply to them. The court disagreed and Teck Cominco appealed to the Ninth Circuit.
The Spokane Tribe, as well as a coalition of Washington environmental groups will also be filing friend-of-the-court briefs in support of Pakootas. The government of Canada, National Mining Association, and U.S. Chamber of Commerce filed friend-of-the-court briefs on behalf of the Teck Cominco.