(CN) – A Canadian mining company on Monday claimed it shouldn’t have to pay the $8 million it cost the Confederated Tribes of Colville to help the EPA prove that the company is liable for toxic wastewater it dumped into the Canadian headwaters of the Columbia River.
The Confederated Tribes of the Colville Reservation successfully petitioned the Environmental Protection Agency in 1999 to investigate alleged heavy metal contamination around Teck Cominco Metals’ smelter in Trail, British Columbia – 10 miles north of the U.S.-Canada border.
The tribes claimed Teck dumped toxic effluent into the upper Columbia River, where mercury, arsenic and lead flowed nine miles south into the U.S., pooling in Lake Roosevelt before continuing on to the Grand Coulee Dam. The EPA investigated and Teck’s U.S. subsidiary agreed to a settlement with the EPA where it would pay for a remedial investigation and feasibility study.
But the tribes sued, claiming Teck refused to comply with the agency order identifying Teck as a responsible party and requiring it to clean up. The state of Washington joined the suit, and the tribes spent millions investigating and evaluating site conditions and developing evidence it used in the lawsuit and gave to the EPA. The tribe’s findings contradicted Teck’s adamant denial that it was the source of the pollution.
After two trials, Senior U.S. District Judge Lonny R. Suko ruled that, under the Comprehensive Environmental Response and Liability Act, Teck is required to participate in any cleanup of the site. Judge Suko found that the $8.2 million the tribes spent amassing scientific evidence of Teck’s liability was “necessary” to the litigation and that the information had also benefitted the EPA’s own investigation. Judge Suko ordered Teck to cover the tribes’ costs and attorney fees, before the parties move on to address whether the contamination harmed the environment.
Teck appealed that decision to the Ninth Circuit Court of Appeals, and a three-judge panel heard arguments in the case on Monday.
Paul Dayton, lawyer for the Confederated Tribes of Colville told Judges Ronald M. Gould, Richard A. Paez and Michael J. McShane that Teck was merely trying to sidestep its responsibility by prolonging litigation that had already run for close to two decades.
“For more than 100 years, Teck Metals and its predecessors dumped slag and effluent into the Columbia River,” Dayton told the panel. “9.7 million tons of it flowed downstream into Lake Roosevelt, where much of it is found today. In the words of the district court, Teck has been treating Lake Roosevelt as its own free, convenient waste facility.”
Dayton said the tribe’s work to prove its claims had been central to its ability to bring the case and was therefore clearly coverable under CERCLA.
“Extensive investigation was done by the tribes, including fingerprinting Teck’s slag and proving the releases to the environment in the face of Teck’s steadfast insistence that there had been no release at all,” Dayton said. “That work was necessary to assess the site conditions and that’s the definition in CERCLA for coverable response costs.”
But attorney Kevin Fong argued on Teck’s behalf that, despite their sovereign status, the tribes lacked authority under CERCLA to recover enforcement costs.
“The tribes don’t have the authority to enforce CERCLA at the upper Columbia River site,” Fong told the panel. “CERCLA gives authority of enforcement to the President, who in turn has delegated his authority to the EPA. And the EPA can also delegate its authority to a state or tribes. If – if – there is such a delegation, then a tribe or state may enforce CERCLA and recover its attorney fees as enforcement costs. Without such delegation, an Indian tribe doesn’t have enforcement authority under CERCLA.”
After the issue of costs is finalized, the case will head back to the federal court and proceed to trial on the question of whether the heavy metals Teck dumped into the Columbia River damaged or destroyed any natural resources.