Laura Lundquist

(Missoula Current) Four months after the state of Montana took a review board to court regarding selenium pollution in Lake Koocanusa, four conservation groups are suing not only the review board but also a Canadian coal mining company and the Lincoln County commission.

Two Montana and two Idaho conservation groups last week asked a Lewis and Clark County district judge to rule against the Montana Board of Environmental Review, the Lincoln County commissioners and Canada-based Teck Coal Limited, a subsidiary of Teck Resources, saying the recent reversal of Montana’s site-specific water quality standard for selenium in Lake Koocanusa was erroneous and went beyond the authority of the Board of Environmental Review.

Mary Cochenour, Earthjustice senior attorney, filed the complaint for the Clark Fork Coalition, Montana Environmental Information Center, Idaho Conservation League and Idaho Rivers United.

“(The Board of Environmental Review's) proposal to sacrifice Lake Koocanusa for the benefit of a foreign coal company is an affront, especially to the groups that have spent years working to protect it. The courts should ensure our clean water is protected from extractive foreign interests.”said Derf Johnson, Montana Environmental Information Centerdeputy director, in a release.

The 23-page complaint details the evolution of Lake Koocanusa’s selenium standard over the past dozen or so years, as scientists from tribes and two countries worked to measure the selenium entering the lake from Canada and then determine its detrimental effects on aquatic species in the lake above the Libby Dam and the Kootenai River below.

Those measurements showed that 95% of the selenium entering the lake comes from the Elk River in British Columbia, where Teck Coal operates four steelmaking coal mines. For decades, Teck’s waste rock piles leached selenium into the surface and groundwater in the Elk River Valley. Sampling has shown that the Elk River’s selenium levels have quadrupled since 1986.

That’s increasingly damaging for aquatic organisms, which suffer selenium damage to their reproductive systems - decreased egg production and viability - reduced or deformed growth, altered liver function and reduced ability to survive winter conditions.

Lake Koocanusa hosts several species of trout, including the threatened bull trout, while the Kootenai River below the lake holds the endangered Kootenai River White Sturgeon, along with trout, burbot and others.

In 2012, Lake Koocanusa was declared impaired under the federal Clean Water Act for selenium.

Debating Selenium Limits

To protect the waters of Montana and Idaho, U.S. and Canadian scientists formed a technical committee in 2015 and eventually determined that the U.S. Environmental Protection Agency standard of 1.5 micrograms per liter of selenium in lake water wasn’t low enough to protect the fish of Lake Koocanusa.

In 2016, the EPA acknowledged that certain conditions may require the selenium limit to be lower, such as the presence of threatened or endangered species. To find the appropriate site-specific limit, the EPA specified using either a modeling or bioaccumulation factor approach.

The technical committee used the bioaccumulation factor based on six years of sampling. Bioaccumulation occurs when larger predatory fish have greater levels of contaminants than what they would normally absorb due to eating a lot of smaller fish that carry contaminants. For example, a large white sturgeon would suffer more from contamination than a mountain whitefish.

In 2020, the technical committee agreed that the selenium concentration limit in Lake Koocanusa needed to be 0.8 microliters/gram to keep fish healthy. Unfortunately, samples of lake water near the Canadian border already exceeded that, measuring 1.1 micrograms per liter in 2020. Idaho listed the Kootenai River as impaired a year later after whitefish caught in 2018 and 2019 contained levels of selenium that exceeded EPA standards.

The Confederated Salish and Kootenai Tribes and the Kootenai Tribes of Idaho depend on the Kootenai River for sustenance and cultural reasons, so they supported the more rigorous standard.

The Montana Department of Environmental Quality accepted the technical committee’s recommendation and presented it to the Board of Environmental Review. After reviewing the rule, the Board of Environmental Review codified it on Dec. 24, 2020.

But, a few weeks later, the Gianforte administration took over and put new people into positions of authority, including the Board of Environmental Review.

Pollution from Canada

The EPA approved Montana’s site-specific selenium standard in February 2021, validating almost 10 years of research. According to the complaint, that’s where things should have stopped.

But four months later, Teck Coal petitioned Montana's Board of Environmental Review to review the rule, because Teck claimed it was more stringent than federal limits, which the Montana Stringency Statute doesn’t allow. The Lincoln County Commissioners, afraid the limit would somehow impinge on their local industries, also petitioned for a review. Lake Koocanusa lies entirely within Lincoln County as does the Montana stretch of the Kootenai River.

During a January 2022 public hearing, the DEQ tried to explain to a board unfamiliar with water quality standards that although Montana’s standard is more stringent than the EPA’s general selenium standard, it’s not more stringent than the site-specific modifications that the EPA allows and encourages. A representative for the EPA also testified to the legitimacy of Montana site-specific standard and said it would stand until the EPA was convinced to approve something different.

But in April, the Board of Environmental Review ignored agency testimony and not only decided Montana’s standard was more stringent than the EPA’s, but it also declared the standard of 0.8 micrograms per liter to be invalid and ordered DEQ to start its rule-making process over.

Both actions were wrong, according to the four conservation groups.

“It is unconscionable that Montana’s Board of Environmental Review would ignore recommendations from both the Environmental Protection Agency and Montana Department of Environmental Quality on the selenium standard, allowing a Canadian coal company to pollute our state’s waters,” Cochenour said in a release.

Under Montana’s Stringency Statute, if it decides a state rule is more stringent than a federal standard, the Board of Environmental Review only has the authority to send the rule back to DEQ. The department can then either revise the rule or provide justification showing how the rule protects the state environment or public health.

This January, after unsuccessfully asking the Board to strike the part of its ruling telling the DEQ to start over, DEQ sued the Board, also in Lewis and Clark County District Court, saying it overstepped its authority.

Last week, the conservation groups seconded this in their lawsuit, but they also said the Board erred in its judgment that Montana’s site-specific standard is more stringent. Almost by definition, a water quality standard that is site-specific is going to be lower than the general EPA standard. Lake Koocanusa’s selenium limit of 0.8 micrograms per liter stands unless DEQ decides to make a new rule and the EPA approves it.

“The protection of Montana’s water resources should not be subject to shifting political winds,” said Andrew Gorder, Clark Fork Coalition legal director. “The Board of Environmental Review’s decision-making must be guided by sound science and the law, not the interests of a foreign mining company.”

Teck has a long list of mining and pollution violations. In 2021, the Provincial Court of British Columbia fined Teck Coal $60 million for selenium pollution in the Elk Valley. It was the largest fine ever given under the Canadian Fisheries Act.

In this year alone, Teck was fined $1.6 million in January for a February 2019 acid spill into Columbia River at its Trail smelter operations after the company pleaded guilty to two charges under the Fisheries Act and one under the provincial Environmental Management Act, according to Mining.com. In February, British Columbia fined Teck $11.3 million for exceeding pollution thresholds and failing to build an active water treatment facility on time at its Fording River Operations in southeastern British Columbia.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.

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