The Montana Department of Environmental Quality and a Canadian mining company whose toxic runoff drains into Montana continue to dispute the limits of selenium found in the waters of Lake Koocanusa.
Teck Resources, a coal mining company whose mining wastewater in British Columbia ends up discharging into the Kootenai River upstream from Lake Koocanusa, says the DEQ standard is based on sloppy science and therefore is not legally binding. defensible. The company unsuccessfully lobbied the Montana legislature to overturn the standard by statute.
The DEQ and tribal governments argue that the agency’s science is sound and the standard is warranted. The United States Environmental Protection Agency reviewed and adopted the stricter site-specific standard for Lake Koocanusa after the DEQ implemented it. Then the Montana Legislature created a special committee to probe the DEQ standard.
At trace levels, selenium is essential for animal health, but at higher concentrations it inhibits fish reproduction. Selenium builds up in the ovaries of fish, which reduces hatching of eggs, hatching of fish with malformations, and young fish that die before they can reproduce. Selenium also makes fish more likely to die in cold weather. State, tribal and university studies have found that current levels of selenium from mine runoff into the Kootenai River and Lake Koocanusa are harming fish there.
Teck operates five surface coal mines northeast of Fernie, British Columbia, and plans to mine more. The company says its coal reserves there will not run out for 28 years. Teck produces metallurgical coal used in the smelting of metals, particularly Chinese steel, rather than thermal coal used for heat or power generation. The company produces approximately 9 million metric tons per year. The selenium in the mining waste heaps leaches into runoff that then flows into British Columbia’s Elk and Fording rivers and eventually into Lake Koocanusa.
In December 2020, the Montana Board of Environmental Review approved the new standard, proposed by DEQ, for selenium in the reservoir, which spans the Canada-US border along the Kootenai River. The standard stipulates a limit of 0.8 micrograms per liter, or 0.8 parts per billion (ppb), of selenium in water – significantly less than the default state and federal selenium standard of 1.5 micrograms per liter. , or 1.5 ppb. The more stringent site-specific standard for selenium was developed in response to selenium contamination from coal mines operated by Teck Resources.
In Montana, state law allows the DEQ to develop site-specific water quality standards that are stricter than federal standards as long as the agency can prove that the stricter standard “protects public health.” or the state environment”. State law requires that the agency’s justification for a higher standard “must refer to relevant, verifiable, peer-reviewed scientific studies contained in the record that form the basis of the department’s conclusion.”
In a report submitted to the special committee, Teck disputed the DEQ’s claim that it analyzed 56,000 fish tissue samples, and the company claimed the agency misused a model to determine the amount of selenium. in water that can end up in fish. Teck argued that the DEQ science behind the standard is insufficient and therefore the standard is not legally defensible.
In response to petitions from Teck and the Lincoln County Commission opposing the 0.8 ppb standard, the Board of Environmental Review ruled that it erred in endorsing the standard in 2020. It said that the DEQ should have made written findings justifying the standard, as required by law. The board ordered the DEQ to rescind the standard and redo its rulemaking process.
On Tuesday, the HJ 37 special committee, named after the joint resolution that created it, heard from a Teck lawyer and lobbyist, as well as DEQ director Chris Dorrington, about the standard and the decision of the board.
Dorrington told the special committee that state law allows his agency to redo regulations or make written findings to support the challenged standard. He said he was pursuing the latter option. He pointed out that because the EPA also adopted the 0.8 ppb standard for the lake, any lower Montana standard would conflict with the Clean Water Act. If the legislature or DEQ reimplemented a less stringent standard, the relaxed standard would have to be science-based and pass EPA review.
Dorrington said his agency had spent “eight years of really diligent work” developing the science behind the 0.8 ppb standard, and he reiterated he was unwilling to rescind the 0.8 ppb limit. .
“I’m a proponent of the process, I’m okay with scrutiny of the process because we have nothing to hide,” he told lawmakers. “We need to have beneficial use protection and protection for the species that live and reproduce in this lake.”
Dorrington made an offer to the special committee: The DEQ could commit to reviewing the 0.8 ppb standard at the end of 2023 during the agency’s regular three-year review process. He said including the 0.8 ppb standard in the triennial review is a big ask for the agency because “we are re-committing to reviewing something that has already been reviewed.” Until then, he said, “0.8 is the standard for the Lake K water body,” and any changes after the review should be based on science.
“I’m not committing to changing the number,” he said. “What I’m committing to is a very transparent process where we look at the standards that are in place right now.”
Dorrington said he made four requests to Teck. He wanted more scientists and fewer lobbyists involved in the process on Teck’s behalf, “which means sending scientists to meetings.”
“I think we’ve heard from a scientist. Most of them have been legal, most have been lobbying.”
He also wanted Teck to provide a more robust water treatment program; commit to not limiting the participation of other stakeholders; and to commit to collecting and reporting data transparently over the next six years.
Jon Metropoulos, a Helena-based attorney and lobbyist for Teck, said no one at the company “jumped for joy and said, ‘Yeah, we’re okay'” at Dorrington’s proposal, but they didn’t reject it, either. Metropoulos disputed what he said were implications in Dorrington’s claims to the company that Teck was not already providing scientific or transparent data, and that this was suffocating other stakeholders.
“We really think we’ve brought to this committee, and to this issue over the years, the best data, the best scientists,” he said. “It should not be implied that Teck is trying or would try to hold anyone back.”
Metropoulos conceded that “we need to get more information from DEQ about what we’re doing, what the timeline is,” and that, “maybe with that they’ll say, ‘Teck has an aggressive treatment schedule.’ .”
Vicki Marquis, a Billings attorney representing Teck, took a tougher stance against the DEQ. She said “Teck’s position remains, as it always has been, that it supports a scientifically sound and legally defensible water quality standard for Lake Koocanusa,” but that the 0.8 standard ppb of the DEQ “is not scientifically valid”.
Because the Board of Environmental Review found it erred in initially approving the standard, she told lawmakers, “it means the law cannot stand” and “the default remedy is to restore the old rule” of a limit of 1.5 ppb. Additionally, Teck is already sufficiently regulated by Canadian governments and the lake’s water quality is not an issue, she said.
“Teck is pretty tightly regulated by British Columbia and Canada,” she said. “And the situation is improving, it is improving a lot.”
Selenium numbers, she said, “have been stable for a number of years” with particularly low amounts recorded in 2017 and 2020, according to data from Teck. And, by examining whole-body fish tissue samples, not just reproductive organs, Teck found that selenium levels are within the norm “when tested and examined correctly.”
Marquis also pointed to Teck’s massive and ever-expanding water treatment facilities. The company has already spent $1.2 billion on water treatment facilities, it said, and another $750 million will be spent by 2024. Current facilities can treat 12.5 million gallons per day. Capacity will increase to 20 million gallons per day by the end of 2022 and 31.6 million gallons per day by 2031.
But it is unclear how much of this capacity constitutes the total runoff from the Teck mines. Pushed for context by State Senator Jill Cohenour, who said she “asked Teck Coal about their treatments several times,” Marquis said she couldn’t say what percentage of the total runoff the Teak facilities can or will process.
“I can’t give you a definitive answer to that,” she said. “The reason for that is that it’s a very large area… It’s mainly runoff water that they capture, capture and treat.”
Pressed further by Cohenour, Marquis said she would “definitely take those questions back to Teck.”
Cohenour and some other lawmakers on the special committee also echoed Dorrington’s criticism of Teck’s lobbying and legal efforts. They noted that Teck is only one part of the selenium standard, but takes a long time before the committee.