Legislators question Canadian company’s attorney, selenium expert

(Lake Kookanusa. (Bing images)

Representatives of a Canadian mining company might have taken some questionable action to sway a Legislative committee studying selenium pollution in Lake Koocanusa.

On Monday, Montana legislators heard testimony from several federal, state and tribal representatives about their participation in the multi-year effort that led to the development of Montana’s water standards for selenium in Lake Koocanusa, located north of Libby.

However, attorneys for Teck Resources, a Canadian coal mining company, brought in their selenium expert to question the scientific model the Department of Environmental Quality used to develop the state standards. The committee was also given a summary of Friday’s meeting of DEQ’s Board of Environmental Review that turned out to have been written by one of the Teck attorneys instead of a more impartial state attorney.

Similar to Montana Fish, Wildlife and Park and its commission, the Board of Environmental Review is a citizen commission that oversees the actions of the DEQ. The Board had a meeting Friday where it took up the issue of Lake Koocanusa’s selenium standards, at the request of Teck Coal Limited, a Teck subsidiary.

Katherine Orr of the Attorney General’s Office said she was sick and couldn’t attend Friday’s meeting as she normally does. The Board voted against the selenium rule 5-2, saying the rule was more stringent than federal guidelines. Orr said she wasn’t there to advise the board on whether they overstepped their bounds, and she also couldn’t attest to the summary of Friday’s meeting because she didn’t write it.

Sen. Jill Cohenaur, D-East Helena, pointed out that the summary had no attribution.

“I’m pretty concerned about this,” Cohenaur said. “We should have the official documentation be brought before this committee. It’s hard to look at this and know whether our committee has to ask further questions.”

Chairman Walt Sales, R-Manhattan, said Rep. Steve Gunderson, R-Libby, contacted him about the Board’s vote but no summary was available. So Teck attorney and lobbyist Jon Metropoulos provided Sales with the summary on Sunday.

“I watched the entire (meeting) on Friday and I work closely with Vicky Marquis, who represented Teck. Watching it, I realized Katherine Orr was ill and not there. And I also realized that this committee would want to know what the (Board) decided,” Metropoulos said.
Metropoulos is no stranger to contentious water issues in western Montana. He was a prominent opponent of the Confederated Salish and Kootenai water compact in the Legislature and filed several lawsuits pitting a Flathead irrigation commission against the CSKT before the commission voted to replace him in 2014.

Both the CSKT and the Kootenai Tribe of Idaho worked to pass the current selenium standards for Lake Koocanusa. The fish are culturally important, so the Kootenai are working to recover several fish species in the Kootenai River, including burbot and the endangered Kootenai River white sturgeon. There is no challenge of DEQ’s selenium standards for the river.

Sales said he wasn’t trying to be elusive by providing Metropoulos’ summary. He wanted the committee to have whatever information they could get, because they have to be done with their study by April. The study was mandated by House Joint Resolution 37, which Gunderson introduced in the last few weeks of the 2021 session.

Earlier in the meeting, Teck attorney Vicky Marquis called up University of California selenium modeler Samuel Louma, who consults for Teck, to provide evidence regarding the DEQ standard. Although John Kilpatrick of the U.S. Geological Society said the DEQ had used a computer model the USGS developed for San Francisco Bay selenium, Louma said he built the model.

He said DEQ scientists didn’t calibrate the model correctly, so one of the criteria – bio-availability – was higher than it should have been, and that produced a lower number for the selenium limit. Where the DEQ model indicated a water concentration limit of 0.8 micrograms per liter, Louma’s calibration produced a range of 1 to 3 micrograms per liter.

“The purpose of the model is to give the department a range of choices that fit the science that describes that site-specific environment. The range would have been higher had the model been carefully calibrated,” Louma said.

DEQ researcher Myla Kelly said Louma didn’t provide any recommendations to the technical committee or criticism during DEQ’s public comment periods.

“All of the majority of the selenium technical subcommittee experts did weigh in on that 60% bio-availability and did agree that that was the appropriate level of conservatism to use,” Kelly said. “We would be happy to follow up with a written response. This is the first we have heard about utilizing 30%.”

About eight years ago, biologists and state leaders became concerned about selenium-tainted water flowing into Lake Koocanusa after sampling showed that selenium levels were increasing in seven species of fish. The selenium was coming mostly from Canada’s Elk River, a stream that runs through the Bow Valley where Teck operates three coalmines and has plans to open another soon.

A year ago, after six years of transboundary research and public process, the state of Montana and the EPA approved selenium limits stringent enough to protect aquatic species in the lake and the Kootenai River downstream. Yet, over the past year, the standards have encountered the same resistance they faced before being adopted, primarily from mining interests and Republican legislators from northwest Montana even though no mines in Montana are affected.

Specifically, they oppose the DEQ concentration limit of 0.8 micrograms selenium per liter for the lake above Libby Dam. The lake’s current concentration of 1 microgram per liter already exceeds that, while samples of Elk River water have been measured at eight times that concentration. It may go even higher if Teck adds another mine.

In November, the Province of British Columbia finally proposed a selenium standard of 0.85 micrograms per liter for Canada’s portion of Lake Koocanusa.

The concentration in Lake Koocanusa may need to be low to protect what’s downstream. In the Kootenai River, the Idaho DEQ has listed the Kootenai River from the Montana border to Moyie Springs above Bonner’s Ferry as impaired for selenium, said IDEQ administrator Mary Anne Nelson.

While selenium concentrations in the lake might not change much, changes in flow out of Libby Dam can cause selenium to fluctuate noticeably in the Kootenai River, said Kootenai fisheries biologist Genny Hoyle, who sat on the technical subcommittee.

“The new selenium standard doesn’t violate Montana state law because it’s no more stringent than the federal standard. The new criteria adopted the federal standard for fish tissue then back-calculated the water column numbers to protect fish,” Hoyle said.

Still, Gunderson and fellow legislator Sen. Mike Cuffe of Eureka took turns Monday asking questions intended to damage the validity of the lake’s standard. Gunderson said he’d never seen evidence that fish were harmed by selenium.

Sean Young, Kootenai Tribe Fish and Wildlife Program director, said selenium affects fish reproductive organs and eggs the most. So if the selenium concentration is above the limit, no fish reaches the point where it’s old or big enough to see that there’s a problem. The only clue is the dwindling fish populations.

Sales said the committee would wait to see what decisions the Water Policy Interim Committee makes before deciding whether to meet again.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.