Pollution Dispute in Northwest Straddles the Border

Saturday, March 20, 2004
By Matthew Preusch

New York Times Writer

"This whole area is slag," said Robert Jackman of Citizens for a Clean Columbia.

Slag, a thick, grainy discharge, is a byproduct of smelting that contains lead, zinc, copper and other metals. From 1896 to 1995, operating within Canadian and provincial law, the smelter discharged nearly 20 million tons of it into the Columbia. Much of that made its way into the United States.

A smelter in British Columbia, 10 miles from the United States border, is at the center of a dispute over industrial waste in the Columbia River.

Image Credit: Fred Abrahams -- for NYT

TRAIL, British Columbia -- NYT
Eighty years ago, the smelter that anchors this company town was at the center of a dispute over whether a Canadian company could be held liable for environmental damage it caused in the United States.

The United States was awarded damages in that case, which endures as a landmark in international environmental law. But now the same smelter is the focus of a new dispute between the two countries.

The current impasse concerns nearly 20 million tons of industrial waste that the Trail smelter dumped into the Columbia River over the course of 100 years. The river carried much of it 10 miles across the border and into Washington State.

In December, the Environmental Protection Agency ordered the smelter's Canadian parent company, Teck Cominco, to study the health risks of contamination in the upper Columbia and assess cleanup options.

The company responded by telling the agency that it had no obligation to honor United States law. The Canadian government also entered the fray with a formal diplomatic letter to the State Department asking that the environmental agency, in effect, back off.

Canada, the letter said, is concerned that the agency's stance "may set an unfortunate precedent by causing transboundary environmental liability cases to be initiated in both Canada and the United States."

Daniel Bodansky, a professor at the University of Georgia and an expert on international environmental law, said the earlier Trail smelter case might be the best framework for understanding the current one. Otherwise, he said, "there's very little precedent for successful litigation of transboundary pollution cases."

In the earlier case, farmers in the United States concerned about their crops began complaining in the early 1920's about fumes drifting south from the Cominco smelter. The American government took up their cause, and the dispute was referred to the International Joint Commission, a rarely used arbitration panel, and then to a separate tribunal convened by the two countries. The United States was eventually awarded $428,000 in damages.

More important, though, was the tribunal's finding that under international law no nation could allow activity in its territory that caused serious damage to another country.

The current smelter conflict began when the Environmental Protection Agency's regional office in Seattle conducted a routine study of possible contamination of the Columbia.

Last year, after a request by local Indian tribes, the office completed a partial survey of the upper Columbia, which for 135 miles upstream of the Grand Coulee Dam is a vast recreational area known as Lake Roosevelt, popular with boaters, anglers and campers. The survey found elevated levels of arsenic, lead, mercury and other contaminants in the lake, enough for it to qualify as a Superfund site.

The study also determined that the Trail smelter was the "primary source of contamination to the upper Columbia River," making the company potentially liable for cleanup and exposing it to lawsuits.

One of Teck Cominco's United States subsidiaries, Teck Cominco American of Spokane, Wash., offered to pay for a $13 million study of the possible health risks posed by contamination in Lake Roosevelt if the agency would defer pursuing a cleanup under Superfund law.

For a while it seemed that this offer might lead to a solution, but negotiations between the company and the agency's regional office broke down. The regional office, on the advice of government lawyers, then ordered Teck Cominco to begin planning for further studies and a possible cleanup.

John Iani, the environmental agency's regional administrator, said the company's proposal did not meet the agency's standards for site testing and cleanup. Teck Cominco says the $13 million offer is still on the table.

Doug Horswill, the company's senior vice president for environment and public affairs, said the agency had broken off discussions without explanation. "We're not shirking our responsibilities whatsoever in this matter," he said.

(More: NYTimes.com / National)

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Dan