Published: July 12, 2022 |

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Montana’s Department of Environmental Quality and a Canadian coal mining company whose toxic runoff flows into Montana continue to battle over limits on selenium found in the waters of Lake Koocanusa.

Teck Resources, a coal mining company whose mine wastewater in British Columbia eventually flows into the Kootenai River upstream of Lake Koocanusa, claims that the DEQ’s standard is based on sloppy science and therefore is not legally defensible. The company has unsuccessfully lobbied the Montana Legislature to overturn the standard through legislation.

DEQ and tribal governments argue that the agency’s science is sound and the standard is justified. The U.S. Environmental Protection Agency reviewed and adopted the more stringent site-specific standard for Lake Koocanusa after DEQ implemented it. Then the Montana Legislature created a special committee to probe the DEQ standard.

In trace amounts, selenium is essential to animal health, but in greater concentrations it inhibits fish reproduction. Selenium accumulates in fish ovaries, which leads to fewer eggs hatching, fish hatching with deformities, and young fish that die before they can reproduce. Selenium also makes fish more susceptible to dying in cold temperatures. State, tribal and university studies have found that current levels of selenium flowing from mine runoff into the Kootenai River and Lake Koocanusa are harming fish there.

Teck operates four open-pit coal mines northeast of Fernie, British Columbia, and has plans for more. The company says its coal reserves there won’t be exhausted for another 28 years. Teck produces metallurgical coal used in metal smelting, particularly Chinese steel, rather than thermal coal used for heat or power production. The company produces about 27 million metric tons annually. Selenium in mine waste piles leaches into runoff water that then flows into British Columbia’s Elk and Fording rivers, and, eventually, Lake Koocanusa.

In December 2020, the Montana Board of Environmental Review approved the new standard, put forth by DEQ, for selenium in the reservoir, which spans the U.S.-Canada 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 the 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 more stringent than federal standards as long as the agency can prove that the more stringent standard “protects public health or the environment of the state.” State law requires that the agency’s justification for a more stringent standard “must reference pertinent, ascertainable, and peer-reviewed scientific studies contained in the record that forms the basis for 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 that the agency misused a model for determining how much selenium in water could end up in fish. Teck contended that the DEQ’s science behind the standard is insufficient, and thus the standard is not legally defensible.

In response to petitions from Teck and the Lincoln County Commission that objected to the 0.8 ppb standard, the Board of Environmental Review ruled that it erred in approving the standard in 2020. It said the DEQ should have made written findings that justified the standard, as required by law. The board ordered the DEQ to void the standard and redo its rulemaking process.

On Tuesday, the HJ 37 Special Committee, named for the joint resolution that created it, heard from a Teck lawyer and a lobbyist, as well as DEQ Director Chris Dorrington, about the standard and the board decision.

Dorrington told the special committee that state law allows his agency to either redo rulemaking or make written findings to support the disputed standard. He said he is pursuing the latter option. He pointed out that because the EPA also adopted the 0.8 ppb standard for the lake, any lesser standard from Montana would be in conflict with the Clean Water Act. If the Legislature or the DEQ re-implemented a less stringent standard, the relaxed standard would have to be science-based and pass EPA review.

Dorrington said that his agency spent “eight years of really diligent work” developing the science behind the 0.8 ppb standard, and he reiterated that he was not willing to undo the 0.8 ppb limit.

“I’m a defender of the process, I’m fine with scrutiny of the process because we have nothing to hide. We have to have a protection of beneficial uses and protection of species that live and breed in this lake,” Dorrington told lawmakers.

Dorrington made an offer to the special committee: The DEQ could commit to reviewing the 0.8 ppb standard in late 2023 during the agency’s regularly scheduled triennial review process. He said that lumping the 0.8 ppb standard into the triennial review is a big ask for the agency, because “we’re committing now again to review something that’s already been reviewed.” Until then, he reminded, “0.8 is the standard for the Lake K water body,” and any possible changes after the review would need to be science-based.

“I’m not committing to changing the number. What I am committing to is a very transparent process in which we review the standards in place currently,” Dorrington said.

Dorrington said he had made four requests of Teck. He wanted more scientists and fewer lobbyists involved in the process on Teck’s behalf, “which means sending scientists to the meetings.”

“I think we’ve heard from one scientist. Most of it has been legal, most of it has been lobbying,” Dorrington said.

He also wanted Teck to provide a firmer schedule of water treatment; to commit to not limiting other stakeholders’ involvement; and to commit to transparent data collection and reporting for the next six years.

Jon Metropoulos, a Helena-based attorney and lobbyist for Teck, said that no one at the company “jumped up and down and said, ‘Yes, we’re in,’” to Dorrington’s proposal, but they didn’t reject it, either. Metropoulos took issue with what he said were implications in Dorrington’s asks of the company that Teck wasn’t already providing science or transparent data, and that it was stifling other stakeholders.

“We really do think we’ve been bringing to this committee, and to this issue over the years, top data, top scientists. The implication shouldn’t be taken that Teck is, or would, try to hold anybody out,” Metropoulos said.

Metropoulos conceded that “we need to get DEQ more insight into what we do, what the schedule is,” and that, “perhaps with that they will say, ‘Teck has an aggressive treatment schedule.’”

Vicki Marquis, a Billings-based attorney representing Teck, took a stronger stance against the DEQ. She said that “Teck’s position remains, as it has always been, that they support a scientifically sound and legally defensible water quality standard for Lake Koocanusa,” but that the DEQ’s 0.8 ppb standard “is not scientifically sound.”

Because the Board of Environmental Review found it had erred in initially approving the standard, she told lawmakers, “this means that the law cannot stand,” and “the default remedy is to reinstate the former rule” of a 1.5 ppb limit. Plus, Teck is already regulated enough by Canadian governments and water quality in the lake is not an issue, Marquis said.

“Teck is regulated pretty stringently by British Columbia and Canada,” she said. “And the situation is improving, it is getting much better,” Marquis said.

Selenium numbers, she said, “have been steady for a number of years” with especially low amounts recorded in 2017 and 2020, according to Teck’s data. And, when looking at whole-body fish tissue samples, not just reproductive organs, Teck found that selenium levels are within standard “when it’s analyzed and looked at properly.”

Marquis also highlighted Teck’s massive and still expanding water treatment facilities. The company has already spent $1.2 billion on water treatment facilities, she said, with $750 million more to be spent by 2024. Current facilities can treat 12.5 million gallons per day. Capacity will increase to 20 million gallons daily by the end of 2022, and to 31.6 million gallons daily by 2031.

But it’s unclear how much that capacity constitutes of the total runoff from Teck’s mines. Pushed for context by state Sen. Jill Cohenour, who said she “asked Teck coal about their treatments on many occasions,” Marquis said she couldn’t say what percentage of total runoff Teck’s facilities can or will treat.

“I can’t give you a definitive answer to that. The reason for that is because it is a very large area ... It is primarily runoff water that they catch, and they capture and they treat,” Marquis said.

Pressed further by Cohenour, Marquis said she would “certainly take those questions back to Teck.”

Cohenour and some other legislators on the special committee also echoed Dorrington’s critiques of Teck’s lobbying and legal efforts. They noted that Teck is just one stakeholder in the selenium standard but is taking up outsized amounts of time before the committee.

Source: Missoulian

About Teck
As one of Canada’s leading mining companies, Teck is committed to responsible mining and mineral development with major business units focused on copper, zinc, and steelmaking coal, as well as investments in energy assets. Copper, zinc and high-quality steelmaking coal are required for the transition to a low-carbon world.

To stop by Teck’s website, CLICK HERE

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