The mining newspaper for Alaska and Canada's North
The mining newspaper for Alaska and Canada's North
Lawyers hammer out agreement on water-quality complaint voiced by half-dozen Kivalina residents against zinc-lead mine operator
A federal judge has canceled a trial scheduled for May 19 concerning a lawsuit filed in 2004 by six Kivalina residents asking for more than $20 million in damages from Teck Cominco Alaska Inc. for alleged violations of the U.S. Clean Water Act at the Red Dog Mine in Northwest Alaska.
Plaintiffs claimed that Teck Cominco, the mine's operator, discharged illegal amounts of total dissolved solids into the Wulik River - the same river Kivalina residents use for drinking water and subsistence fishing. The mine discharges treated wastewater from the mine into Red Dog Creek, which then flows into the Wulik.
The solids at issue are produced by lime, which the mine uses to remove metals from its wastewater. The Alaska Department of Environmental Conservation studied the effects of the treated water discharged from Red Dog and concluded that it is not harmful.
DEC said the area contains natural ore bodies with naturally high concentrations of cadmium, lead, zinc, aluminum, and other metals. Pre-mining surveys done in this area in the 1980s found zero fish and other aquatic life present because of toxic concentrations of these minerals as well as naturally low pH.
"Ten years of aquatic surveys have demonstrated that aquatic productivity in the main stem (of Red Dog Creek) has increased from pre-mining conditions due to effective water management practices and treatment," DEC researchers said
Proper limits not the issue
In response to the lawsuit, Teck Cominco argued that its pollution permit contained effluent limits that were "improperly derived and not based on any requirement of the Clean Water Act."
U.S. District Court Judge John Sedwick, who was to preside over the May 19 trial before it was removed from the court docket, said whether the limits were proper is not the issue. The issue, he said, was whether the company violated them.
Sedwick had previously ruled that Teck Cominco was liable for only a portion of the claims the plaintiffs raised. In July 2007 Sedwick found that Red Dog exceeded limits set by the federal law in 618 of the more than 1,900 claims in the lawsuit.
John Knapp, Red Dog general manager, said Sedwick's ruling showed the lawsuit lacked merit. The judge denied two-thirds of the plaintiffs' claims, he observed.
EPA compliance order did not prevent lawsuit
The U.S. Environmental Protection Agency issued Teck Cominco an interim standard for total dissolved solids that meets Alaska's drinking water standards in 1999 and the mine has operated since in compliance with this less stringent standard. However, the regulator agreement does not protect the company from civil lawsuits.
According to Knapp, Teck Cominco was operating the mine under a "compliance order by consent" authorized by the EPA because the permit it issued in 1998 set discharge limits "at absurdly low levels."
"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 Corp., 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.
Next target: Big oiL
The plaintiff's attorney Luke Cole of the San Francisco-based Center on Race, Poverty and the Environment, said he could not comment on terms of the agreement because of a confidentiality provision. He said he would travel to Kivalina May 16 to talk about the proposed settlement with his clients.
Cole also represents residents of Kivalina in a lawsuit against 24 major energy companies. The idea of suing the oil giants began when Cole visited Kivalina to speak with his clients about the lawsuit against operators of the Red Dog Mine, he said.
The Associated Press contributed to this report
Over his more than 16 years of covering mining and mineral exploration, Shane has become renowned for his ability to report on the sector in a way that is technically sound enough to inform industry insiders while being easy to understand by a wider audience.
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