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US: U.S. high court declines to review Can. company pollution ruling

by JOHN K. WILEYAssociated Press
January 7th, 2008

An Indian tribe says it will continue its efforts to force a Canadian company to pay to clean up pollution of a stretch of the Columbia River that flows past the tribe's reservation.

The U.S. Supreme Court declined Monday to intervene in the unusual case in which the Canadian company was held subject to the U.S. Superfund law.

A federal appeals court last year ruled that Teck Cominco Ltd., based in Vancouver, British Columbia, could have to pay a share of an estimated $1 billion to clean up Lake Roosevelt, a 150-mile stretch of the upper Columbia River behind Grand Coulee Dam.

The river flows into Washington state from Canada and forms the eastern and southern boundaries of the 1.4-million-acre Confederated Tribes of the Colville Reservation about 50 miles northwest of Spokane.

In July 2004, tribal leaders Joseph Pakootas and D.R. Michel filed suit against Teck Cominco over the company's refusal to pay for and participate in a study of the extent of contamination.

Virgil Seymour, a member of the Colville Tribal Business Council, said in a statement Monday the tribe is pleased with the Supreme Court's action, which will result in the case being sent back to U.S. District Court in Spokane.

"The tribe looks forward to continuing this case and will do everything we can to force Teck Cominco to accept its responsibilities under U.S. law," Seymour said. "As the case now stands, the courts have ruled that the U.S. has jurisdiction over Teck Cominco under the United States' Superfund law for the pollution it created in the U.S."

The Columbia has been polluted for a century with heavy metals and black slag leaching downstream from Teck Cominco's lead and zinc smelter complex in Trail, British Columbia, 10 miles north of the U.S. border and about 135 miles north of Spokane.

The company asked the justices to overturn the appeals court ruling, arguing that the Superfund law does not apply to a Canadian company discharging hazardous waste unless it "arranged" for the contamination to end up in the United States. The pollution resulted from an "action of nature" - the southward flow of the river from Canada into the United States - the company said in court papers.

David Godlewski, a vice president and spokesman for Teck Cominco, was traveling Monday and had no immediate comment on the high court's ruling.

Solicitor General Paul Clement advised the court not to take the case for technical legal reasons. But Clement noted that the company discharged millions of tons of hazardous substances into the river just north of the border for 90 years. Likening the discharges to firing a gun across the border, Clement said that "it was inevitable that the river would carry the pollution directly into the United States."

U.S. and Canadian business interests as well as the British Columbia government urged the court to take the case. Left untouched, the appeals court ruling would complicate international relations and affect trade, they said in several briefs in support of Teck Cominco.

Under orders from provincial government regulators, Teck Cominco stopped discharging slag into the river in 1994 after Canadian studies showed the waste was toxic to fish and aquatic life.

In 1999, after studying the extent of the Lake Roosevelt pollution in response to a petition by the Colvilles, the U.S. Environmental Protection Agency's Seattle office issued a Superfund cleanup order to Teck Cominco.

After diplomatic contacts between the U.S. and Canadian governments and a series of letters to the White House from U.S. mining interests in favor of Teck Cominco, the Bush administration withdrew the 1999 cleanup order.

In June 2006, the EPA announced it had reached a voluntary agreement with Teck Cominco to study the river pollution. That agreement puts $20 million in escrow for studies but leaves unanswered who will pay for cleanup.

Tribal leaders said they are disappointed in the progress of the private settlement between EPA and Teck Cominco.

"The Tribe is not a party to this agreement and we don't have confidence in it because it is outside the framework of U.S. environmental law," Seymour said. "The reality is that after two years of work, there's been little progress made. We still don't understand the extent of contamination or its impacts on the environment, tribal members or other people here."

EPA Project Manager Kevin Rochlin was out of the office Monday and did not immediately return a message for comment. EPA Seattle spokesman Mark MacIntyre did not immediately return a call for comment Monday.



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