YAKIMA, Wash. – A case involving cross border pollution of the Columbia River rests in the hands of a federal judge today. A Native American tribe and the state of Washington have sued to hold a Canadian mining giant responsible for smelter waste that washed downriver from British Columbia into Washington.
This story should really start in the small town of Trail, British Columbia. It's home to a big lead and zinc smelter. The industrial complex spreads across a bluff above the Columbia River less than 10 miles upstream from the U.S. border.
The Trail, BC smelter abuts the Columbia River near the U.S. border. Photo courtesy of Teck Resources Ltd.
The original smelter in Trail opened for business in 1896. And for most of the time since, the smelter used the fast moving Columbia as its waste disposal.
In court documents, owner Teck Metals acknowledges dumping nearly 10 million tons of slag plus an undetermined amount of slurry containing mercury and other toxics.
Some of that junk washed well downriver into D.R. Michel’s backyard. He lives in Inchelium on the Colville Indian Reservation.
"When you step on the beach, you go, 'I am standing in slag? What potential health effects does that have?' When my kids are playing in the water for four, five, six hours a day, what potential impacts does that have? That's what we're trying to answer."
Michel is one the named plaintiffs in a civil lawsuit filed by his tribe and the state of Washington against Teck Metals. Michel was among a crowd of Colville tribal members who traveled to U.S. District Court in Yakima to watch oral arguments. The lawsuit seeks to hold the Canadian company liable for discharging hazardous waste that it allegedly knew would come to rest in Washington state.
In court, lawyers for Teck denied their company intentionally polluted its southern neighbors. Further, the smelter owner argues the U.S. court does not have jurisdiction over a Canadian company operating legally on its home turf.
Teck American Inc. vice president Dave Godlewski says his company is willing to take responsibility, but in another forum.
Colville tribal business council chairman John Sirois (center) with plaintiffs D.R. Michel (left) and Joe Pakootas outside federal court in Yakima. Photo by Tom Banse
"Right from the get-go, our company said the real way to do this is to find a cooperative way. The company and the two governments can work together to address the issues."
Earlier in this long-running case, the government of Canada registered objections with the U.S. State Department. Ottawa complained that pursuing a foreign polluter in U.S. court infringes on its sovereignty.
Washington Department of Ecology toxics cleanup program manager James Pendowski agrees there are international implications in play.
"This is an issue that is important not only to the State of Washington in this particular matter, but it is really kind of a precedent setting case all across where we have transboundary effects," Pendowski says. "Whether they are from Canada, or U.S. to Canada, or U.S. to Mexico or Mexico to the United States. There is a lot of interest in this case. It is making law."
The case against the Canadian smelter is proceeding in two stages. The federal judge in Yakima says he'll try to rule on jurisdiction and establish liability by December. If the court rules against Teck, a second trial phase will hash out how much the Canadian company has to pay to make up for its history of pollution.
Teck is already paying for ongoing studies of the extent of contamination in the Upper Columbia River and the feasibility of clean up, if needed. It stopped dumping slag in the river in 1995.