Landmark lawsuit hits Teck Cominco

A United States court recently permitted American citizens to sue Vancouver-based Teck Cominco for damages caused by pollution its smelter discharges…

A United States court recently permitted American citizens to sue Vancouver-based Teck Cominco for damages caused by pollution its smelter discharges into an international river.

The ruling grants two Americans the right to continue a longstanding lawsuit against Cominco.

The conflict resulted from slag discharges the company’s lead and zinc smelter in Trail, British Columbia, dumps into the Columbia River.

That river flows into Washington.

The decision could open the door for further cross-border legal actions initiated by US citizens against Canadian companies.

Teck Cominco has mining properties and interests in the Yukon, but the company is not worried about them in light of the decision, said Doug Horswill, Cominco’s senior vice-president of environmental and corporate affairs.

“In the case of our properties in the Yukon, there would be no discharge of any sort to any river,” said Horswill. “If we were to develop, it would be in approved, contained tailings facilities.”

Teck Cominco has three properties in the Yukon: the Kudz Ze Kaya property near Ross River, the Sa Dena Hes property near Faro and the Robert Campbell Highway, and a joint lease for a parcel of land with Kaska Minerals Corporation, known only as R15.

None of the properties are operating mines, but one is under care and maintenance, said Horswill.

Company officials are hopeful mining can begin anew in the Yukon, he added.

Between 1906 and 1995, Joseph Pakootas and Donald Michel, both of the Colville Confederated Tribes in Washington, allege Cominco’s lead and zinc smelter in Trail has discharged approximately 145,000 tonnes of waste each year into the Columbia River.

The two also charge that the waste released into the river flows downstream from Canada into Washington, past the Confederated Tribes’ territory.

The San Francisco-based 9th US circuit court of appeals, which heard the case, argued that Pakootas and Michel should be allowed to sue Cominco, because the pollutants allegedly harming them are located in the US.

“The suit concerns actual or threatened releases of heavy metal and other hazardous substances into the Upper Columbia River site within the United States,” said the decision.

Teck Cominco argued the

lawsuits should be dismissed because US environmental laws don’t apply to Canadian


But, “the passive movement and migration of hazardous substances by mother nature is still a ‘release’” under US environmental law, said the court.

The ruling has opened a “fundamental policy concern” for Cominco, said Horswill.

Because of the precedent-setting nature of the ruling, and the international ramifications it brings, Ottawa watched the case closely, he added.

The government’s worry is that diplomatic channels and international treaties usually employed to settle such complaints may have been infringed upon by the court’s “unilateral” decision, he said.

Teck Cominco has been working with the US Environmental Protection Agency to clean the Columbia River.

Cominco recently reached a US$20 million deal to proceed with a risk assessment of the site, said Horswill.

“The legal situation developed after our attempts to negotiate with the EPA, and continued throughout while we were negotiating,” he said.

 “From our point of view, the suit is obviously something we have to pay attention to and will defend ourselves in respect to, but it’s not really impacting on our attempt to get the work done” cleaning up the Columbia River, said Horswill.

“We would do it anyway whether the suit was there or not.”