Judge: Board’s decision reversing selenium rule was illegal
Laura Lundquist
A judge’s ruling has ended a Canadian coal company’s four-year effort to water down the selenium pollution standards for Lake Koocanusa.
On Wednesday, Lewis and Clark County district judge Kathy Seeley ruled in favor of the Montana Department of Environmental Quality and four conservation groups, saying the Montana Board of Environmental Review didn’t have the authority to invalidate a site-specific water quality standard for Lake Koocanusa. So the water-column concentration limit of 0.8 micrograms per liter of selenium will remain.
“We’re happy to see that the Court made the right decision by protecting Montana’s waters from upstream Canadian coal-mine pollution,” said Derf Johnson, Montana Environmental Information Center deputy director. “Montana’s water quality standards for selenium are based in science. Not only do they protect our water quality, but they also protect wildlife and the outdoor recreation economy that depends on clean water.”
The conservation groups include the Montana Environmental Information Center, Clark Fork Coalition, Idaho Conservation League and Idaho Rivers United.
In her ruling, the judge said it wasn’t her role to evaluate the selenium standard. She only needed to evaluate the law as it related to how the standard was approved. And it was a recent change in the law that was pivotal because it removed the authority of the Board of Environmental Review.
The Board of Environmental Review is a governor-appointed group of seven citizens that oversees DEQ, much like the Fish and Wildlife Commission oversees the department of Fish, Wildlife & Parks. In December 2020, the Board under Governor Steve Bullock adopted a selenium rule for Lake Koocanusa that DEQ and tribal partners had spent years researching.
In 2014, the international Lake Koocanusa Monitoring and Research Working Group started studying selenium contamination after FWP found increasing selenium levels in seven species of fish between 2008 and 2013 in Lake Koocanusa and the Kootanai River. Above a certain level, selenium can damage aquatic species’ reproductive systems, threatening fish populations 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, which flows south and dumps into the north end of Lake Koocanusa. The coal mines of Elk Valley Resources, formerly Teck Resources, sit along the Elk River and have been leaching selenium and nitrogen into the water for decades.
When adopting selenium water quality standards, the Environmental Protection Agency authorizes states to use either the national water-column standard of 1.5 micrograms per liter or a site-specific standard that’s based upon local conditions. With environmental damage already occurring, DEQ chose the latter option. Later, 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. At the same time, the Legislature passed a law that rescinded the Board’s rule-making authority, shifting it over to DEQ.
Teck Resources petitioned the new board to review the standards under the state stringency rule. In February 2022, the Board reversed its December 2020 decision, saying the standards were invalid because they were more stringent than the national standard, and told DEQ to redo its rule-making.
In doing that, the Board overstepped its authority, according to Seeley. The Board might not have made a rule, but the law says that a rule can include the “repeal of a prior rule.”
“The Legislature’s statutory change in rulemaking authority effective July 1, 2021, negated any rulemaking action by the BER after that date. The April 2022 Order is a rulemaking action. The BER did not have the authority to engage in rulemaking. Petitioners are entitled to judgment as a matter of law,” Seeley wrote in her decision.
Two of the three respondents, Elk Valley Resources, and the Board of Lincoln County Commissioners, had asked the judge to apply legal rules that would have allowed her to reverse the DEQ’s selenium rule. But the conservation groups and DEQ argued that those rules don’t apply so the judge should rule only on whether the Board’s decision was arbitrary or capricious.
Seeley agreed with the latter, finding that the Board’s decision was arbitrary and capricious due to the law change. She added that while the Board retains the power to review DEQ rules and decide if the selenium standard is more stringent, the law leaves it up to DEQ as to whether it should revise the rule or provide written findings to justify the existing rule. DEQ provided written findings to support the 0.8 microgram per liter standard two months after the Board’s April 2022 decision.
“Contrary to both BER's and Teck Coal/EVR's counterclaims, the findings are fully supported by credible evidence in the record and are compliant with (the law),” Seeley wrote.
The plaintiffs were pleased that the selenium standard would remain, especially since the concentrations in Lake Koocanusa already exceed the 0.8 micrograms per liter standard. For that reason, the U.S. and Canada signed a March 2024 reference for the International Joint Commission to look into the selenium pollution that flows across the border, which is likely illegal under the Boundary Waters Treaty of 1909.
“This Court decision affirms that Montana’s selenium water quality standard is both legally sound and supported by the best available science,” said Andrew Gorder, Clark Fork Coalition policy director. “Any effort to reverse or weaken that standard is simply not in the best interests of our water resources or the people of Montana.”
Elk Valley Resources is owned by Glencore, a Swiss commodity trader, and Nippon Steel, a Japanese steelmaker. In 2020, Elk Valley Resources was ordered to pay a $60 million fine under Canada’s Fisheries Act for not taking proper steps to limit selenium and calcite water pollution, which had been found to damage westslope cutthroat trout populations. Even so, Glencore has proposed a major, 5,000-acre expansion to the Fording River Mine in the Elk Valley, which would exacerbate the selenium pollution problem.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.