Canadian smelter not responsible for air pollution in U.S., court rules

A Canadian company can’t be held responsible for toxic air pollution that drifted across the border into Washington, members of the 9th U.S. Circuit Court of Appeals said in a recent ruling.

The ruling partially dismissed Superfund claims by the Confederated Tribes of the Colville Reservation and the state of Washington against Teck Resources, which owns a smelter in Trail, British Columbia. For decades, pollution from the smelter’s smokestacks funneled down the Columbia River valley and settled over Northport, Washington.

Testing by state and federal agencies found high levels of lead and arsenic in soil samples taken downwind of the smelter. Last year, the U.S. Environmental Protection Agency began cleaning up rural residential properties near Northport, saying the heavy metals posed a risk to children and pregnant women. More than 140 landowners along the Columbia River in northeast Washington have requested soil testing.

Teck can’t be held liable for cleanup costs or damages from air emissions that polluted the land or the river, according to the July 27 ruling by three members of the appeals court. The ruling didn’t address claims related to pollution that was dumped directly into the river.

In an email, Teck spokesman Chad Pederson said the company reached an agreement with the EPA to pay the cleanup costs for 14 residential properties last year, and for ongoing soil testing. Teck’s attorneys are reviewing the recent ruling, he said.

An earlier U.S. District Court ruling said Teck was responsible for pollution from the smelter’s air emissions, but the company appealed that decision.

The Colville Tribes and the state plan to challenge the recent 9th Circuit decision, which is part of ongoing litigation over more than a century of smelter discharges. In addition to the pollution from the smokestacks, the smelter dumped hundreds of tons of slag daily into the river until 1995, when the B.C. government halted the practice after determining the smelter byproduct was toxic to aquatic life. The slag forms the “black sand beaches” of the Upper Columbia.

“We believe that our case is strong and that there is no difference in how the pollution … is impacting the environment, whether it originated from air or water,” said Brook Beeler, a spokeswoman for the Washington Department of Ecology.

State attorneys will petition for a new hearing before the full 9th U.S. Circuit Court of Appeals, she said.

Teck should be held accountable for air emissions that polluted the Colville Tribes’ ancestral lands, said Michael Marchand, the tribe’s chairman. The reservation’s boundaries originally extended to the Canadian border, encompassing the area that’s now Northport.

“Most people don’t know the land history, or that tribal members retain the legal right to hunt and fish in that former territory,” Marchand said. “Lots of toxic material was released into that area.”

Many of the tribe’s members depend on wild game and fish for a subsistence diet, potentially exposing them to heavy metals and other pollution. For them, hunting and fishing “is not a sport, and it’s not a luxury food,” Marchand said.

In 2004, two members of the Colville Tribes sued Teck in U.S. District Court in Eastern Washington under provisions of the Superfund law. The state of Washington later joined the lawsuit.

Members of the tribe didn’t think a federal agreement negotiated with Teck during the Bush administration was adequate. Instead of paying for the cleanup of the waste, the company agreed to study the effects of heavy metals pollution in the upper Columbia watershed.

“It’s like David and Goliath,” Marchand said of the ongoing litigation. “They don’t want to go to trial. They don’t want to clean it up or compensate us.”

Teck has spent more than $75 million on studies looking at potential risks to people’s health and the environment from historic smelter operations, said Pederson, the company spokesman.

The research has been done with EPA oversight, and it shows that fish in the Upper Columbia are as safe to eat, or safer, than fish caught in any other Washington water body, he said. Company officials are committed to finishing the risk assessment and taking corrective action, if needed, Pederson said.