Legal Actions

In 2006, the Ninth Circuit Court of Appeals upheld a district court ruling that Superfund (CERCLA) law applies if it can be proven that hazardous releases from Teck’s Trail smelter in Trail, Canada ended up in the United States (the Upper Columbia and Lake Roosevelt). The case began in 2004 with a suit filed by the Colville Confederated Tribes that the State of Washington later joined.

Related issues continue to work their way through the federal court system. Effectively, there are three types of issues (“complaints”). The first relates to penalties and fees, with the state and tribe contending that Teck should pay penalties and fees for not complying with the original enforcement order filed (and later withdrawn) by EPA. The Eastern Washington District Court in Yakima found against the Tribes and the state on the penalties, but awarded fees and costs. In June 2011, the Ninth Circuit upheld the District Court ruling on penalties. Specifically, the court held that non-EPA parties (e.g., the state and tribes) cannot bring a citizen suit to enforce the penalty provisions of an EPA unilateral cleanup order.

The second issue is who is liable for releases of hazardous substances released into Lake Roosevelt and the Upper Columbia River. The state and Tribes contend Teck is liable, while Teck contends others are responsible. In fall, 2010 lawyers from both sides filed “expert reports,” a voluminous amount of documents that contain the opinions of various expert witnesses hired by each side to support their respective viewpoints. A trial date is currently scheduled for January, 2012.
The third issue is natural resource damages, which will not go before the court until the liability question is settled.

Natural Resource Trustees

Natural resource trustees (Trustees) are tribal, state, and federal agencies that manage natural resources on behalf of the public. Natural resources include, but are not limited to, land, vegetation, water, migratory birds, fish, species of concern and tribal resources. Trustees are responsible for the restoration of these resources when they are injured by the release or discharge of hazardous substances such as metals, dioxins, and/or oil. Injury to natural resources is defined as a measurable adverse change in the quality or viability of a resource as a result of a release of a hazardous substance. Examples of natural resource injury include death, disease, behavioral abnormalities, physiological malfunction, deformities, and fish consumption advisories.
The Upper Columbia Natural Resource Trustees Council was formed in May, 2007. The Trustee Council includes the Confederated Tribes of the Colville Reservation, the Spokane Tribe of Indians, the State of Washington, and the U.S. Department of the Interior. The Trustees follow a process known as Natural Resource Damage Assessment (NRDA), which is commonly conducted at Superfund sites by the Trustees and does not include EPA. Although conducted separately, coordination of RI/FS and NRDA activities is encouraged at Superfund sites. The Trustees believe integration of RI/FS and NRDA activities can expedite cleanup and restoration needs, thus benefiting the public in the long term.

Trustees can conduct an assessment of natural resource injury, quantify that injury, and determine what restoration of the injured natural resources is necessary. In the Coeur d’Alene watershed, for example, Trustees are restoring wetlands for migrating tundra swans that are injured (death) when foraging in contaminated floodplain habitats. These activities are being conducted in conjunction with EPA clean-up activities of floodplain habitats.

At Lake Roosevelt, the Trustees completed the first step of NRDA, the Preassessment Screen (PAS), in November, 2009. The PAS found that the prerequisites for proceeding with a more comprehensive evaluation of natural resource injury had been met. The Trustees now can develop an Assessment Plan to document and quantify injuries and identify possible restoration projects. The Assessment Plan process will include a public comment period prior to initiating any investigations of future restoration efforts.