Judge denies most charges against Red Dog

A federal court judge has ruled that Teck Cominco Ltd., owner and operator of the Red Dog Mine in Northwest Alaska, violated the federal Clean Water Act by discharging treated wastewater into a nearby stream.

U.S. District Court Judge John Sedwick in Anchorage found that Red Dog exceeded limits set by the federal law in 618 claims in a lawsuit filed by a half-dozen residents of the nearby Arctic village of Kivalina.

However, Sedwick denied the lawsuit's 1,300-plus other pollution claims in his July 28 ruling.

The six plaintiffs argued that Teck Cominco, which owns and operates Red Dog under a development agreement with NANA Development Corp., discharged illegal amounts of pollution into the Wulik River, a stream they use for drinking water and subsistence fishing.

Red Dog is situated near Kotzebue on land owned by NANA Regional Corp., the Alaska Native regional corporation for the Northwest Arctic. Kivalina lies 66 miles downstream from Red Dog.

Judge cites 618 violations

Sedwick ruled that the company violated its discharge permit 618 times by pumping more than the permissible amount of effluent, or treated wastewater, into Red Dog Creek, which flows into the Wulik River.

Sedwick also found that Teck Cominco made three illegal discharges at the mine's ore-loading port on the Chukchi Sea, about 52 miles from Red Dog.

Both sides claimed victory after the ruling.

"It's a huge relief to have this win," said Enoch Adams Jr., one of the plaintiffs.

The plaintiffs' attorney, Luke Cole, agreed.

"We're very happy. It's been a slog to get here," Cole said. "And we'll prove another 1,500 or so violations at trial."

Teck Cominco: Actions were legal

John Knapp, general manager of the mine, said Sedwick's ruling shows that the lawsuit lacks merit. The judge denied two-thirds of the plaintiffs' claims, he observed.

Teck Cominco was operating the mine under a "compliance order by consent" authorized by the U.S. Environmental Protection Agency because the permit it issued in 1998 set discharge limits "at absurdly low levels," Knapp said.

"The EPA granted permit levels we could attain in the order, and the terms of the order were met," he said. But a compliance order is a legal agreement and does not protect companies from citizen lawsuits, he explained.

Helvi Sandvik, president of NANA subsidiary NANA Development, said Red Dog's earlier EPA permit required impossible levels of compliance.

"The permit limits were very, very, very stringent. Beyond drinking-water standards," Sandvik said.

New EPA permit due in September

The EPA, meanwhile, has nearly completed renewal of Red Dog's wastewater discharge permit and "is using the same discharge levels in the new permit that the agency set out in the compliance order," Knapp said.

Why? Because those levels are "still highly protective of the environment and human health," he said.

The EPA conducted an environmental assessment of the mine's wastewater discharge plan earlier this year and concluded that it will have no significant impact on the environment. The new permit is due to be issued in September, according to Knapp.

Teck Cominco argued in its response to the lawsuit that its pollution permit contained effluent limits that were "improperly derived and not based on any requirement of the Clean Water Act."

Sedwick, however, said whether the limits were proper is not the issue. The issue, he said, was whether the company violated them.

The plaintiffs seek more than $20 million in damages.