U.S. Pollution Law Targets Canadian Smelter

An Indian tribe in Washington state has successfully sued a company whose smelter in Canada is fouling the Columbia River in the United States. The court says the U.S. Superfund law applies to foreign polluters, if the pollution affects U.S. territory. The ruling is being appealed.

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It's a fact that drifting smog and polluted waters do not respect national borders. A recent U.S. federal court ruling suggests environmental laws may also start spilling over international lines.

The court has held a Canadian company responsible for a mess on the U.S. side of the border. And as NPR's Martin Kaste reports from Seattle, industries in both countries are not happy with the implications of that ruling.

MARTIN KASTE reporting:

To the untutored eye of the average city slicker, the upper Columbia River looks like unspoiled wilderness. Bob Jackman(ph) knows better.

Mr. BOB JACKMAN (Seattle Resident): I moved here in 1970 with my family.

KASTE: Jackman has brought us down to a bend in the river called Black Sand Beach. Climbing out of his ancient pickup truck, Jackman heads down to the water and points out the dark blotches.

Mr. JACKMAN: See? That's slag. And it's floating.

KASTE: Floating in the water. My gosh.

Mr. JACKMAN: Yeah. I came down here with a magnet and picked it up with a magnet.

KASTE: Slag is a kind of waste produced by industrial metal smelters. Here it looks like black sand, hence the name of the beach. There are millions of tons of slag in the Columbia, generated throughout most of the 20th century by smelter operations just a few miles upstream from here, in Canada.

Mr. JACKMAN: We get the brunt of their pollution, and they are physically or geographically situated so Canada suffers the least.

KASTE: Jackman calls this a violation of American sovereignty. Paradoxically, it's been an Indian tribe that's done the most to defend that sovereignty from the migrating Canadian pollution.

(Soundbite of ferry docking)

A few miles downstream, a ferry docks at Inchelium, Washington, part of the confederated tribes of the Colville Reservation. The original town of Inchelium is nearby, underwater. It was drowned in the 1940s, when the Grand Cooley Dam turned this part of the river into Lake Roosevelt.

Patti Bailey(ph), the tribe's environmental planner, says she and her neighbors like to fish for trout near their grandparents' submerged homes. Tribal members eat a lot of fish, and they wonder about the effects of the slag as well as the heavy metals and arsenic that also flowed out of the Canadian smelter.

Ms. PATTI BAILEY (Environmental Planner, Colville Tribe): I need to be able to tell our own community members here, you know, the fish are - if we can eat them. I mean, and I should be able to answer that, and I can't right now.

KASTE: So Bailey and the tribe lobbied the Environmental Protection Agency to order Teck Cominco, the Canadian company that owns the smelter, to pay for a study of the effects of its pollution on American waters. The tribe was not optimistic. After all, the EPA does not make a habit of extending its reach across international borders. But in late 2003, that's exactly what the agency did.

Ms. BAILEY: We were surprised. We were very pleased and proud.

KASTE: Teck Cominco was surprised too. It argued that America's Superfund law, which requires polluters to clean up after themselves, simply didn't apply to pollution first dumped in Canada.

The company said it was willing to negotiate, but it would not comply with EPA orders. How did that go over at the EPA? We took that to the agency's legal counsel, Ed Kowalski.

Did the federal government make any move to enforce the order?

Mr. ED KOWALSKI (Legal Counsel, Environmental Protection Agency): From our perspective, negotiating to get the work done under the order is a way of enforcing the order.

KASTE: But the EPA stopped short of penalizing the disobedient company, which meant Teck Cominco could get away with doing nothing. Patti Bailey thinks the EPA simply lost its nerve.

Ms. BAILEY: They're worried about the political and international ramifications, whatever they are. They're afraid.

KASTE: So the tribe decided to take matters into its own hands. It sued Teck Cominco to get it to obey the EPA. And with the EPA looking on from the sidelines, the tribe shocked everyone by winning its case in federal district court.

This summer a federal appeals court reaffirmed that decision, saying Teck Cominco is subject to the American Superfund law. The ruling has made waves. The Canadian government has complained, as have industry groups in both countries. Even in Mexico they're worried. Robert May is an American attorney who does environmental law for companies operating along the Mexican border.

Mr. ROBERT MAY (Attorney): Where does it end? You know, smoke stack factories in China and Japan emit contaminants that end up in the U.S. Pacific Coast. U.S. factories in the northeast leave particulates in Canada. What if some country passed a law saying that any company anywhere in the world that produces greenhouse emissions would be liable under that country's laws for all damages and would have to defend itself in that country?

KASTE: Teck Cominco still refuses to comply formally with the EPA's order. The company has asked the full Ninth Circuit Court of Appeals to review the ruling. But at the same time, it has signed what it calls a voluntary agreement with the EPA. The company will pay for studies of the effects of its pollution without actually recognizing the EPA's authority.

Teck Cominco VP David Godlewski says legal precedence aside, the company does want to do the right thing in the Columbia River.

Mr. DAVID GODLEWSKI (Teck Cominco): Let me be absolutely clear on this. We have made the commitment - and this commitment was made publicly by our CEO and we still stand behind it - that if these studies determine that there are unacceptable levels of risk that are the result of our activities, that we would clean them up.

KASTE: That's not good enough for the tribe. As long as the EPA's authority is in doubt, there's no guarantee that the company will follow through with a cleanup. The tribe wants the company placed firmly under the authority of American law.

Both sides in this case do agree on one point. If this ruling stands, it could encourage American citizens to take other multinational corporations to court for pollution generated overseas. Where they differ is on whether or not that's a good thing.

Martin Kaste, NPR News, Seattle.

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