September 14, 2018
(CN) – A Canadian mining company must pay the $8 million it cost the Confederated Tribes of Colville to dig up evidence showing the company dumped toxic wastewater into the Canadian headwaters of the Columbia River, the Ninth Circuit ruled Friday.
Teck Metals vehemently denied having dumped water contaminated with mercury, arsenic and lead into the upper Columbia River near its smelter in Trail, British Columbia. But the Confederated Tribes of Colville successfully petitioned the Environmental Protection Agency to investigate. Based on the EPA’s findings, Teck’s U.S. subsidiary agreed to pay for a remedial investigation and feasibility study.
Then the tribes said Teck refused to initiate the cleanup the EPA’s order required. The tribes sued, spending $8.2 million investigating the pollution and tying it to Teck.
Two trials ensued, and U.S. District Court Judge Lonny R. Suko entered partial judgment finding Teck responsible for the pollution, which showed up as far as 150 miles south. Suko ordered the company to pay for the tribes’ costs under the Comprehensive Environmental Response and Liability Act.
According to Suko, Teck’s leadership has known since the 1930s that it was dumping hundreds of tons of toxic wastewater slag into the Columbia River every day. Another trial phase still awaits the parties to determine whether Teck’s pollution damaged or destroyed natural resources in the Columbia River.
In the meantime, Teck appealed Suko’s order, arguing that the tribes lacked the authority to enforce CERCLA – more commonly known as Superfund – the trust set up by Congress to cover hazardous waste sites that need long-term cleanup.
On Friday, a three-judge panel for the Ninth Circuit called that argument “irrelevant,” affirming Judge Suko’s ruling. U.S. Circuit Judges Ronald M. Gould and Rickard A. Paez, joined by U.S. District Judge Michael J. McShane, found that Suko properly separated the question of the tribes’ costs from its claims for natural resource damage.
The tribes’ investigative work showed that Teck emitted the toxic slag, and not, as the company claimed, other smelters. The tribes’ experts tied the pollution to Teck’s isotopic and geochemical “fingerprint,” the circuit found.
In addition, the panel concluded the tribes’ investigations count as a cost of removal or remedial action under CERCLA – even though the tribes used the information they uncovered in both their lawsuit and in support of the EPA’s investigation.
“Many, if not most, CERCLA plaintiffs study the contamination at a site with an eye to potential litigation, and it would make little sense to provide these costs only to parties that are disinclined to file suit,” Judge Gould wrote in the panel’s 34-page opinion.