From: Nicholas K. Geranios, Associated Press
Published July 4, 2006 12:00 AM

Appeals Court Allows Suit against Canadian Smelter to Go Forward

SPOKANE, Wash. — A federal appeals court on Monday decided that a lawsuit can proceed against a Canadian smelter operator who dumped pollution that reached the United States.

The lawsuit against Teck Cominco Ltd. was filed by two members of the Colville Confederated Tribes, who contended that pollution from the company's lead and zinc smelter in Trail, British Columbia, had flowed down the Columbia River into the United States.

Teck Cominco, the world's largest zinc producer, had sought to dismiss the lawsuit on the grounds that it is a Canadian company operating in Canada and not subject to U.S. environmental laws.

The San Francisco-based 9th U.S. Circuit Court of Appeals rejected that argument.

"The suit concerns actual or threatened releases of heavy metals and other hazardous substances into the Upper Columbia River Site within the United States," the court said.

The appeals court affirmed a 2004 decision by U.S. District Judge Alan McDonald of Yakima against dismissing the lawsuit filed by Joseph Pakootas and Donald Michel of the Colville tribe, whose reservation is bounded by the river.

In early June, an agreement was reached between Teck Cominco and the U.S. Environmental Protection Agency in which Teck would pay $20 million to assess the impact of decades of upstream pollution in the river running from Canada into the U.S.

The lawsuit, filed in 2004, was the first instance of Americans suing a Canadian company under the U.S. Superfund law. They accused the company of dumping millions of tons of heavy metals into the river for nearly 90 years, and allowing the pollution to flow into the United States.

David Godlewski, a spokesman for Teck Cominco, downplayed the impact of the decision, in light of a recent settlement with the EPA in which the company agreed to pay for $20 million in studies.

"The important messages are that we will carry through on our agreement with the EPA on the risks," Godlewski said. "The motivator behind this has been settled with EPA. We are in agreement with them to study the risks on the reservoir."

The Vancouver, British Columbia company will also study the ruling to determine if it will appeal, he said.

State officials said the decision could have implications for any state that borders a foreign country. If a foreign company contaminates land within the U.S., the state can rely on United States law to govern cleanup and liability, instead of less certain diplomatic processes.

Source: Associated Press

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