Attorneys argue review board’s ruling on DEQ selenium standard
Laura Lundquist
(Missoula Current) A Montana district court judge must decide whether the Department of Environmental Quality or conversely the citizen Board of Environmental Review correctly followed Montana law related to water quality standards in Lake Koocanusa.
Lewis and Clark County district judge Kathy Seeley this week heard more than two hours of arguments related to DEQ’s calculation of water quality standards for selenium in Lake Koocanusa. The case pits Montana DEQ and some intervening conservation groups against the citizen Board of Environmental Review, which oversees DEQ, and two intervening entities: Elk Valley Resources or Teck Resources, a Canadian coal-mining company, and the Lincoln County commission. The conservation groups include the Montana Environmental Information Center, Clark Fork Coalition, Idaho Conservation League and Idaho Rivers United.
“This entire case hinges on the interpretation of the stringency statute,” Mary Cochenour, Earthjustice attorney for the conservation groups, told the judge. “The question is whether the selenium rule is more stringent than the federal guideline, and that’s what the stringency rule is all about.”
In September 2020, DEQ proposed a site-specific water column standard of 8 micrograms per liter for selenium in Lake Koocanusa and 3.1 micrograms per liter in the Kootenai River below the Libby Dam to protect aquatic life. The standard can be greater in the river because the water is moving, which poses less of a pollution problem than the still water of the lake.
The international Lake Koocanusa Monitoring and Research Working Group started studying selenium contamination in 2014 after Montana Fish, Wildlife & Parks found selenium levels were increasing in seven species of fish in the lake between 2008 and 2013. Above a certain level, selenium can damage aquatic species’ reproductive systems, including those of the endangered Kootenai River white sturgeon and the Lower Kootenai River burbot.
Studies show about 95% of the selenium in Lake Koocanusa comes from the Elk River in British Columbia, Canada. The coal mines of Elk Valley Resources, formerly Teck Resources, sit along the Elk River that dumps into the top end of Lake Koocanusa and have been leaching selenium and nitrogen into the water for decades.
In late 2020, the Board of Environmental Review approved the new selenium standards and determined they were not more stringent than the federal standards. The Environmental Protection Agency authorizes states to use either the national water-column standard of 1.5 micrograms per liter or to calculate a site-specific standard based upon local conditions. DEQ chose the latter option and the EPA approved the standard of 0.8 micrograms per liter.
In 2021, Greg Gianforte moved into the governor’s office and made several new appointments to the Board of Environmental Review. Then Teck Resources petitioned the new board to review the standards under the state stringency rule. In February 2022, the board reversed the 2020 decision, saying the standards were more stringent and told DEQ to redo rulemaking. This is the point where the two parties make different claims.
DEQ attorney Kristen Bowers didn’t question the Board’s stringency finding but said the 2021 Legislature passed a bill that stripped the Board of all rulemaking authority so it couldn’t require new rulemaking. If the Board decides a standard is more stringent than federal standards, the stringency rule leaves the remedy up to DEQ. The rule says DEQ can either change the standard or provide written findings to justify the standard. DEQ did the latter, Bowers said.
“The court should reverse or modify the board’s stringency decision because it encroaches on DEQ’s rulemaking authority and disregards the clear statutory language,” Bowers said.
The conservation groups went further than DEQ and questioned the board’s process and decision that the standard is more stringent. Cochenauer said that after 2021, the board decided that the EPA’s national standard of 1.5 micrograms per liter was the only factor to consider and ignored the EPA’s guidelines for setting site-specific standards. So they ruled that 0.8 micrograms per liter was more stringent than 1.5. Cochenauer said that was a misinterpretation of the stringency statute and the 2020 board got it right.
“This case is not about whether DEQ made the right standard or used the science correctly - it’s about this statute and interpreting it,” Cochenour said. “These are citizen board members with varying degrees of experience. And while many of them have long careers advocating or working for industry, it would be a stretch to say they held some particular expertise in this area, enough to warrant discretion. If anything, the discretion should be owed the agency, which deals daily in the business of science and the regulation of pollution in Montana’s waters.
For the defense, Board of Environmental Review attorney Dana Hupp spoke little, deferring to Elk Valley Resources attorneys Ryen Godwin and Lindsay Thane. Godwin argued that DEQ should have used the national water-column standard of 1.5 micrograms per liter just as it used the EPA’s recommended standards for selenium in fish tissue. He cited the EPA’s letter approving DEQ’s standard of 0.8 micrograms per liter, which said DEQ’s standard is more stringent than the national recommended standard but, “EPA concludes that it is supported by sound scientific rationale.”
“Nearly every party in this litigation agrees that 0.8 is more stringent than 1.5 and 1.5 is the national guideline. The only party that doesn’t agree are the conservation groups,” Godwin said.
Thane argued that DEQ and the 2020 Board of Environmental Review violated the Montana Administrative Policy Act and the stringency rule when they didn’t notify the public that they were adopting a more stringent standard. She also said the 2022 board didn’t order new rulemaking, because the rule was “invalid from its inception.”
That was the one time that Seeley interjected, saying she didn’t find Thane’s argument’s that the public was misled persuasive.
Cochenour argued that the 2020 board ruled the standard wasn’t more stringent so the stringency rule wasn’t triggered and there was no violation of the Administrative Policy Act.
“What does the statute say? It says ‘comparable federal guidelines;’ it does not say ‘comparable national criteria.’ It just doesn’t. This is the theme all day here is inserting what’s been omitted and omitting what’s been inserted. There’s a lot of substitution of language,” Cochenour said. “It is the national criteria or it can be the site-specific standard. And while Mr. Godwin says it has to be a numeric standard, it is a numeric standard. The formula kicks out a numeric standard. It’s not more stringent than the guideline because it is the guideline. The board got it right the first time, sitting through months of rulemaking and concluding it was not more stringent.”
Seeley didn’t issue a ruling on Tuesday.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.