Federal appeals court had partially-dismissed a case against a Teck-owned smelter in Trail, B.C., which has been operating for more than a century
SPOKANE, Wash.—Washington state and the Confederated Tribes of the Colville Reservation say they intend to challenge a federal appeals court ruling that said Canadian miner Teck Resources Ltd. can’t be held liable for toxic air pollution that drifted into the state.
The July 27 decision from a panel of the 9th U.S. Circuit Court of Appeals partially dismissed Superfund claims against Teck, which owns a smelter in Trail, British Columbia. For more than a century, pollution from the smelter’s smokestacks funneled down the Columbia River valley and settled over Northport, Washington.
Testing has found high levels of lead and arsenic downwind of the smelter, and a federal judge in Spokane found the company liable.
But the appeals court said that emitting pollutants into the air did not meet the definition of actions for which the company could be held responsible. The state and tribes say they will seek a rehearing in the 9th Circuit, The Spokesman-Review reported.
“We believe that our case is strong and that there is no difference in how the pollution . is impacting the environment, whether it originated from air or water,” said Brook Beeler, a spokeswoman for the Washington Department of Ecology.
The ruling didn’t address claims related to pollution that was dumped directly into the river. The smelter dumped hundreds of tons of slag daily into the river until 1995, when the B.C. government halted the practice after determining the smelter byproduct was toxic to aquatic life. The slag forms the “black sand beaches” of the Upper Columbia.
In an email, Teck spokesman Chad Pederson said the company reached an agreement with the U.S. Environmental Protection Agency to pay the cleanup costs for 14 residential properties last year, and for ongoing soil testing. Teck’s attorneys are reviewing the recent ruling, he said.
The tribal reservation’s boundaries originally extended to the Canadian border, encompassing the area that’s now Northport, said Michael Marchand, the tribe’s chairman.
“Most people don’t know the land history, or that tribal members retain the legal right to hunt and fish in that former territory,” Marchand said. “Lots of toxic material was released into that area.”
Many of the tribe’s members depend on wild game and fish for a subsistence diet, potentially exposing them to heavy metals and other pollution. For them, hunting and fishing “is not a sport, and it’s not a luxury food,” Marchand said.
In 2004, two members of the Colville Tribes sued Teck in U.S. District Court under the Superfund law. The state of Washington later joined the lawsuit.