WASHINGTON — Though the dumping stopped more than a dozen years ago, no one is sure who will clean up the 26 billion pounds of hazardous waste from a Canadian smelter that has turned the reservoir behind Grand Coulee Dam into an environmental nightmare.
The dispute has plowed new legal ground and threatened cross-border retaliation. It also prompted a heated clash between federal regulators in Seattle and Environmental Protection Agency and Justice Department lawyers in Washington, D.C., amid allegations of interference by political appointees with ties to the mining industry.
The wrangling could stretch on for years. By some estimates, the environmental mess, one of the worst in the nation, could cost $1 billion to clean up.
For nearly a century, slag from the Canadian smelter in Trail, British Columbia, 10 miles north of the border, was disposed of in the Columbia River.
Gradually, heavy metals — including arsenic, cadmium, mercury, copper, lead and zinc — leached out of the slag and accumulated in Lake Roosevelt, the 150-mile-long reservoir behind Grand Coulee Dam on the U.S. side of the border in remote northeastern Washington state.
Officials in the EPA's Seattle regional office sought to hold the owner of the smelter, Teck Cominco Metals Ltd., responsible. So far, U.S. courts have agreed. A federal appeals court ruling, which the Supreme Court recently let stand, for the first time held a foreign company liable under the U.S. Superfund law for cross-border pollution.
The decision has implications for mining operations, coal-fired power plants and manufacturing factories in the United States, Canada and Mexico whose emissions cross the border. U.S. and Canadian mining, energy and other business interests have warned that the ruling could swamp courts on both sides of the border with retaliatory lawsuits.
Some have suggested that the decision could even snare Chinese utilities operating dirty coal plants, whose mercury emissions cross the Pacific and have been detected on the West Coast.
"It's the first statement by an appellate court that a polluter can't use the border as a shield," said Michael Robinson-Dorn, an assistant professor of law at the University of Washington who has tracked the case closely.
Concerned about legal precedents and diplomatic fallout, the Bush administration argued that such cases are best resolved though international negotiations.
Administration officials also said that their motivation in negotiating a controversial agreement with Teck was to resolve a complicated environmental situation and not to pre-empt an adverse legal decision.
Critics contend that Teck flexed its political muscle in D.C. and administration officials listened.
"Teck Cominco has thrown everything at us," said Richard DuBey, a Seattle lawyer representing the Colville Indian Tribe, whose reservation adjoins Lake Roosevelt. "They have unlimited resources both legal and political."
The EPA's Seattle office first began studying Lake Roosevelt as a possible Superfund site in 1999, eventually concluding it should be listed because the heavy metals in the lake and on its shores presented an "imminent and substantial threat" to human health and the environment.
Hoping to head off a Superfund designation, Teck offered to do a human health study. But after months of negotiating, the EPA's Seattle office concluded that the study would be too limited.
In December 2003, the Seattle office issued a unilateral order directing Teck to do a thorough study and evaluate cleanup alternatives. It was the first time a foreign firm whose pollution had crossed the border had been issued such an order.
John Iani, who headed the EPA's Seattle office at the time, said officials in Washington, D.C., were well aware of the order.
"No one questioned it," Iani said.
But within days the order was under attack. Teck refused to comply, arguing that U.S. Superfund laws don't apply to foreign companies. The U.S. Justice Department refused to enforce the order, despite requests from the EPA's Seattle office.
Eventually, the Colville tribe, later joined by Washington state, filed suit to enforce the order.
As the lawsuit gained momentum, administration officials led by then-EPA General Counsel Ann Klee stepped in.
Klee represented mining and timber trade associations before joining the administration, first as counsel to then-Interior Secretary Gale Norton, then as EPA general counsel. Her husband, John MacCleod, also had represented the mining industry and was a past recipient of the National Mining Association's "Distinguished Mining Lawyer" award.
"It was the fox guarding the henhouse, and we were the guard dog barking on the outside," said Bill Dunbar, a former EPA spokesman in Seattle who was involved in the internal deliberations over Teck. "We feel vindicated by the courts, even though we had the rug pulled out from under us by the politicos in Washington, D.C."
Alexandra Smith, a former Washington state assistant attorney general who helped handle the Teck case, said there was no question that politics trumped policy.
"My own perception is the federal government sold us down the river," she said.
EPA and Justice Department lawyers in Washington, D.C., decided to rescind the Seattle office's order. Led by Klee, the EPA instead negotiated an agreement with Teck.
Critics believe the agreement is virtually unenforceable. They say it's riddled with loopholes, could delay cleanup for years and ultimately could allow the company to dodge its cleanup liabilities.
"The company did not agree to be bound by the Superfund, and EPA did not pursue the issue," said DuBey.
Under the agreement, Teck will set aside $20 million to pay for a voluntary study of the Lake Roosevelt contamination. In an e-mailed statement, the EPA said the agreement was "fully enforceable" and consistent with Superfund "models and policies." It also noted that the agency retained full oversight authority.
Dunbar, the former Seattle EPA spokesman, said the agreement was little more than a smokescreen.
"Twenty million dollars is pocket change to Teck," he said. "There is a lot of concern that neither the environment nor the people who live up there will be protected. U.S. taxpayers may ultimately bear the burden."