Smelter waste at a public beach in Northport, Washington. (Photo: Patti Bailey)
Observers say an environmental border dispute 20 years in the making is likely to set precedent. A Canadian metal smelter dumped 15 million tons of waste into the Columbia River, which many suspect to be poisonous to fish and wildlife. Now Indian tribes who live downstream in the U.S. want the American Superfund law be applied to the Canadian company. Living on Earth's Ingrid Lobet reports.
CURWOOD: It’s Living on Earth. I’m Steve Curwood. More than a century ago, much of north central Washington State and adjoining British Columbia was wilderness with a significant Native American population and a growing number of settlers. But after copper, lead, zinc and other key raw materials for industry were discovered in the region, mining and smelting began on an industrial scale. Big smelters can produce big amounts of toxic wastes. And a century of dumping into the Columbia River has left a toxic legacy with a legal twist.
The polluters were in Canada, but many of the folks who were exposed to the toxins were in the United States. Now, members of the Colville Indian Tribe and local residents who live just downstream from a key smelter have taken the Canadian company involved to court in what has become a high stakes test of the American Superfund law. Living on Earth’s Ingrid Lobet has our story.
LOBET: Our story begins in the late 1800s, in the creases of low mountains where Washington, Idaho and British Columbia meet. The hills crawled with miners digging tons of ore that needed refining.
LOBET: By the turn of the century, there were 19 smelting operations in British Columbia. Most went under. But the smelters in the town of Trail grew. Stand above the 80-acre Trail works today and you'll view the largest combined lead and zinc producer in the world.
EDWARDS: This is a lookout of the whole of Trail operations, with the exception of the fertilizer operation, which is behind us. Quite a large site.
LOBET: Mark Edwards manages Environmental Health and Safety at Trail. These buildings produced nearly 300,000 tons of zinc in 2004. Zinc is used for galvanized steel framing, for cars, coins and baby ointment. And 84,000 tons of lead, mostly for car batteries.
EDWARDS: One of the unique aspects of Trail operations is we try to squeeze every valuable bit of metal out of every feed that comes in here. Even if an element is present in small concentrations, it quickly adds up to a significant amount of material. So we have a variety things from lead to cadmium, and them some more exotic and esoteric things like indium, germanium, which are rarer metals.
LOBET: The elements indium and germanium have become significant sources of profit. They are used in laptop screens and optical fiber. One of the things Edwards is proud of is the way the company repeatedly takes waste out of one process and feeds it back into another to recapture more lead and zinc, even from fumes.
EDWARDS: This integration is kind of unique to Trail operations. Not many operations in the world have that synergy. They'll have piles of residue sitting in perpetuity. In terms of waste, we have very little, if any, true waste.
[SOUND OF SLAG GRAINS IN A JAR SHAKING]
LOBET: That's the sound of the black glassy furnace waste known as slag. Teck Cominco now sells this waste to the cement industry. Until 1995, the company discharged hundreds of tons per day of this slag, along with tons of liquid waste, directly into the Columbia River. The river marks the eastern border of the 1.4 million acres the Colville Confederated Tribes call home.
LOBET: There are many high places, shaded with pine on the reservation. From those places you can look down on the Columbia River, slowing into its own lake, held back miles downstream by the Grand Coulee Dam.
BAILEY: It’s beautiful here, I mean this is just a real treasure. I think we were just very naive and unknowing what was going on here.
LOBET: Patti Bailey is an environmental planner for the tribes, and D.R. Michel chairs the Resource Committee. Warming hands over a fire, they reminisce about the exposed lakebed that was their playground when the reservoir was "drawn down" every year.
MICHEL: Those big draw downs--there was just miles and miles of mud and sand and water to play in. We basically grew up down on the river. We rode our peddle bikes down there, then we got horses, then we got motorbikes, then we got cars. We just spent a lot of time down there, all summer.
BAILEY: Our parents certainly wouldn't have let us continue to be down here every day. And they just didn't know. And someone should have let us know.
LOBET: Bailey and Michel came of age about the same time the environmental movement was gaining steam. Local residents were asking questions.
BAILEY: We starting working with local watershed groups, the Lake Roosevelt Water Quality Council and the citizens here to try to educate ourselves about what this really is.
In one early experiment, Canadian fisheries biologist Jennifer Nener exposed fingerling trout to slag in tanks. The fish died in less than one day; she saw that their gills were abraded. Local residents pressed the United States Geological Survey to test the beaches and lake bottom. Hydrologist Stephen Cox worked on one study.
COX: Some of the concentrations are very high, and you wouldn't want your kids playing in that kind of sandy environment, with elements that large. Zinc can be very, very large; mercury, cadmium, probably the ones that come to mind most. Copper concentration, while large, are not so alarming to humans, but they're alarming to fish.
LOBET: And Cox found, contrary to Cominco claims, the slag was not inert.
COX: We saw the surface of the slag grains were beginning to flake off. Basically, the surface cracking off and chipping away. They were showing signs of both mechanical breakdown and chemical breakdown, so they were not inert.
LOBET: And that could mean that what's in the slag could find its way into living things. Benthic ecologist Mark Munn is also with USGS. He went looking for the tiny midges and worms that live on and in the sediment layer that feed the lake's little fish, which feed bigger fish, birds and bears.
MUNN: You typically find 30 to 60 species in a river. And we found only something like three to 14 species.
LOBET: And when animals in the laboratory were exposed to the sediment ....
MUNN: Those tests in the upper river did show some toxicity. One can assume that if it’s toxic to the animals in the lab that there is a chance – a chance – not a proof, that the levels could also be toxic to the invertebrates in the river.
But the tribes and other residents still had basic questions: Was fishing or gathering plants causing them harm? Again D. R. Michel.
MICHEL: Is it safe to eat the fish? Is it safe to play on the beaches? Is it safe to swim in the water? That's the basic questions we want to get answered.
LOBET: And still, no one had researched what fish the Indians eat, what their exposure might be. What pregnant women were eating. The tribe petitioned EPA. EPA ordered Teck Cominco to investigate the lake and river in preparation for cleanup. There were negotiations – negotiations that involved Canada, the Departments of State, Justice and the Environmental Protection Agency.
Teck Cominco offered to spend $14 million on studies. EPA and the tribes dismissed the offer. They think the cleanup could cost half a billion dollars. Fed up, the tribes did something no one has done before. Using a little-known citizen's provision of the Superfund law, or CERCLA, they sued a company in a foreign country.
They didn't do it lightly. The tribe's own economic well-being was now tied to a thriving houseboat business on the lake. A million and a half people come to swim and fish each year, and might not be as attracted to a Superfund site. Again, D. R. Michel.
MICHEL: The tribes have a lot at stake here also, with that perceived stigma, but felt that CERCLA was our best chance to get people looking at the area.
LOBET: During all this time, neither Washington state nor EPA had asked Canadian authorities for the records showing what Teck Cominco had been putting in the river. So the tribes and the Spokane Spokesman Review newspaper did. When they got the records, they were stunned.
LEE: It is the equivalent of enough slag to build a road 12 feet wide, six feet deep, from Seattle, believe it or not, to the Ivory Coast of Africa.
LOBET: Valerie Lee is an engineer and former Justice Department environmental prosecutor now consulting for the Colville tribes. She read the Canadian documents.
LEE: We looked at '94, '95, '96 and '97. And we were pretty shocked at the results. Cominco discharged more arsenic, which is a known carcinogen, cadmium and lead than all U.S. sources reporting to EPA’s toxic release inventory to all waters of the United States in all years, except 1996. Basically, you had one source to one river, the Columbia River, out-discharging all sources in the United States. That is extraordinary.
LOBET: In a single two-day episode in 1980, documents show Cominco dumped 6,300 pounds of mercury into the Columbia River. When British Columbia regulators saw the records of the mercury spill from automatic sampling, they sent them to Don Skogstad who, at the time, was a provincial prosecutor.
SKOGSTAD: It was 6,000 pounds of mercury. They were outraged. These guys are scientists. They had tested the fish. I said, “What did you do?” They said, “We dissect them.” I said, “What was it like?" He said, “About the only thing those fish would be good for was for thermometers.” The mercury.
When I saw the case I thought, “Well, this case is will be about exceeding the permit, like all the other cases.” No, there could be no such charges against Cominco.
LOBET: No such charge, because Cominco's permit had no restrictions.
SKOGSTAD: Cominco did not have any limits on what they could put into the river. That wasn't what the charge was.
LOBET: In other words, it was a permit that provided legal protection for the company, but no protection to the public. As for the public, according to documents obtained by Living on Earth under the Freedom of Information Act, it took weeks for the Canadian government to notify U.S. EPA and Washington State ecology officials of the dumped mercury. When they did, those American authorities did not notify the tribes or other residents along the lake's numerous fishing spots. With these documents coming to light, and the tribe's lawsuit, bureaucratic wheels began to turn. The EPA began its most comprehensive fish study yet in Lake Roosevelt.
LOBET: On a chilly night, a Colville boat with tribal and federal biologists aboard motors to one corner of the 150 mile lake.
MAN ON RADIO: How are you guys doing? Got any fish?
MAN: We probably got about a dozen rainbows and about 50 walleye.
MAN ON RADIO: You guys have any suckers?
MAN: Zero, nada. Back on this side.
LOBET: After a couple of hours, the boat stops so the biologists can club the fish over the head, size, sex and tag them for their final journey to the lab.
[TAGGING SOUND, CLUBBING SOUND]
LOBET: Meanwhile, the Colville tribes' lawsuit made its way to court in eastern Washington. There, something happened that made more people pay attention. Teck Cominco argued that as a Canadian company whose discharges had been in Canada, it could not be held to account under U.S. Superfund law. But the federal judge In Yakima, Washington, said the United States has an interest in the care if its domestic environment, regardless of the location of those who damage it. So the case moved swiftly to the Ninth Circuit Court of Appeals in Seattle.
[LIVE IN COURTROOM]
CLERK: Please be seated. [GAVEL]
LOBET: The clerk said it was the fullest she'd seen the courtroom in five years.
MAN: Would everyone take their seats and, if they do not have seats, they’re going to have to stand still.
LOBET: Attorney Kevin Fong for Teck Cominco argued the company recognized its responsibility for its legacy and has been negotiating in good faith, but it can’t subject itself to unlimited liability under American law.
FONG: Here, Teck Cominco has made an offer to voluntarily assume the costs of the investigation and to address any risks identified in that investigation. So it's not a question of whether this will get cleaned up or not, it's just of whether it is under CERCLA liability.
LOBET: And Fong argued Congress never intended the Superfund law be applied outside U.S. borders.
FONG: If Congress wants to apply CERCLA to situations like this, it should say so…
LOBET: But the judges did not seem inclined to accept the notion that a company located just ten miles upstream of the U.S. border didn't realize its waste would flow downstream. Judge William Schwarzer:
SCHWARZER: It sounds like Werner Von Braun, who said, “I only send the missiles up, I don’t care where they land.” That’s sort of your position. We just dump it in the river; we don’t care where it lands.
LOBET: The Ninth Circuit has not yet ruled. People on both sides of the case believe it is significant, and the powerful players lined up on the side of the company include mining associations on both sides of the border, the Canadian government, and the U.S. State Department. Allied with the tribes are environmental groups and five western states; California, Arizona, Oregon, Idaho, and Washington.
Quentin Riegel is an attorney with the National Association of Manufacturers which, like many observers, believes the case cuts two ways. If Americans can apply the Superfund law to a company in Canada, what about all the acid rain that has traveled north over the years?
RIEGEL: There is nothing to prevent Canadians or other governments from adopting the same litigation position against American companies. With our companies already besieged by regulatory requirements, environmental requirements, taxes, energy costs, litigation costs in general, health care costs, additional litigation from foreign plaintiffs for activities that occurred in this country, in compliance with American law, would be an additional burden that could continue to make manufacturing in America extremely expensive.
LOBET: But when state attorneys look at Teck Cominco, they see deep pockets.
VIDEO FROM TECK: When people think Teck Cominco, they think zinc and with good reason...
LOBET: They point out the company doubled its profit last year over the year before, as demand in China drove up the prices for zinc, copper, coal and indium. Kristie Carevich, a Washington State assistant attorney general in the ecology division, says ‘remember, if Tech Cominco doesn’t clean up Lake Roosevelt, someone else will have to.’
CAREVICH: I think one of the most important things about this case is that if we are not allowed to apply CERCLA and hold Teck liable for cleaning up this site in Washington, then most of this is going to fall on state taxpayers and, potentially, federal taxpayers, to pay for.
LOBET: A few years ago, U.S. officials could have used the federal Superfund to cover research and cleanup, then attempt to recover the costs from Teck Cominco, with a triple penalty. But Superfund is nearly empty, down from more than a billion dollars to less than $15 million. Congress hasn't renewed the corporate taxes that feed the fund.
How this international environmental dispute reaches its end will ripple through legal circles, board rooms, and the calculations of fishing people in a fishing place. For Living on Earth, I'm Ingrid Lobet.
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