Mining Industry, GOP Lawmakers Seek to Delay Lake Koocanusa Pollution Standard

Proposed criteria would strengthen Montana’s ability to enforce environmental safeguards at U.S.-Canada border

By Tristan Scott
Piping runs across the surface of Teck’s saturated rock fill at Teck’s Elkview open pit coal mine near Sparwood, British Columbia on Sept. 25, 2019. The saturated rock fill is designed to remove selenium and nitrate from water before it flows away from the mine into the Elk River. Hunter D’Antuono | Flathead Beacon

As state environmental regulators consider adopting a new enforceable water quality standard at the U.S.-Canada border to protect Lake Koocanusa and the Kootenai River from upstream mining contaminants, the ranks of detractors has grown to include elected officials from Northwest Montana and leaders of the state’s mining industry, whose arguments for delaying the new rule run counter to what scientists say their research proves — one of the state’s most prized watersheds is becoming a settling pond for Canada’s rapidly expanding coal mines.

Without an enforceable rule in place to protect aquatic life from the pollutant selenium, a mining byproduct that for years has been leaching downstream from mines in British Columbia (B.C.) and crossing the border into U.S. waters, transboundary states like Montana have little say in the permitting process for new mines, regardless of their impacts downstream.

Meanwhile, Canadian mining companies are laying plans to expand existing open-pit coal mines and build new ones, which means pollutants like selenium will continue leaching from the growing piles of waste rock for decades.

The new standard would sharpen Montana’s regulatory teeth at the border and provide some enforcement framework should the transboundary pollution continue to increase. It also gives Montana a voice when it comes to permitting new mines north of the border.

“If this standard is adopted, our federal government is going to have the responsibility to consider the degradation of Montana’s waters during the environmental approval process,” said Lars Sanders-Green of the B.C.-based environmental group Wildsight. “We won’t be able to approve future mines without safeguards in place.”

In Montana, the Confederated Salish and Kootenai Tribes (CSKT) have been mounting pressure on state and federal governments to do more to protect the water quality and fish species of Aboriginal territories from the perils of Canadian mining toxins.

“We shouldn’t have to beg or sue B.C. and Canada to protect U.S. waters,” Stu Levit, a mine reclamation specialist for CSKT, said. “The notion that this rulemaking process has been anything other than open, transparent, timely, and scientifically supported is ludicrous. And yet increasingly we’re hearing these arguments for delaying the process that have absolutely no factual basis, and are clearly in favor of industry and at the expense of everyone else.”

The Montana Department of Environmental Quality’s (DEQ) Board of Environmental Review (BER) initiated rulemaking in September to establish site-specific water quality standards for Lake Koocanusa and the Kootenai River. The proposed standards are a culmination of more than six years of collaboration with leading selenium experts and the Lake Koocanusa Monitoring and Research Working Group that included public meetings, data collection and a peer-reviewed modeling report.

The rising levels of selenium entering Lake Koocanusa have been traced to mining operations in B.C.’s Elk Valley, where the Canadian mining behemoth Teck Resources owns and operates five metallurgical coal mines and is seeking additional permits for new projects to expand its footprint and build additional mines.

Even as that expansion clears regulatory hurdles in B.C., however, a growing chorus of GOP lawmakers and industry officials — many of whom say they have supported the process until now — has attempted to stall the process in Montana, at least until the state’s new administration is in place.

In a BER hearing on Nov. 5, which was held virtually by Zoom and conference call just days after the 2020 general election, the officials who spoke out against adopting the new rule included state lawmakers Sen. Mike Cuffe, R-Eureka; Rep. Steve Gunderson, R-Libby; Rep. Neil Durham, R-Eureka; and Lincoln County Commissioner Josh Letcher, who described a “rushed” process and an “unattainable” new regulatory standard.

“I’m not going to argue the science. What I’m saying is people don’t understand it, including myself, including all of the elected leaders of Lincoln County,” Cuffe said. “Nobody is saying there’s an immediate crisis. And nobody’s stopping to explain the science.”

The current selenium standard for water bodies was established in 1987 at 5 micrograms per liter. In 2016, the U.S. Environmental Protection Agency (EPA) developed updated recommended national criteria at a value of 1.5 micrograms per liter for lakes and reservoirs and 3.1 micrograms per liter for rivers, while also suggesting to use site-specific standards, whenever possible.

In Montana, the DEQ opted to pursue a site-specific standard for Lake Koocanusa and the Kootenai River, with the Board of Environmental Review proposing a standard of 0.8 micrograms per liter.

“The record does show a hasty process,” Cuffe added, “and we were blindsided by the extreme reduction this standard calls for.”

During the BER hearing, a number of industry groups also testified as opponents of the new standard, including the American Exploration and Mining Association, Montana Mining Association, Treasure State Resources Association, and Teck Resources.

University of Montana research scientist Erin Sexton has been studying selenium in B.C.’s Elk Valley for two decades, and was among the first to document pollution crossing the B.C.-Montana border and its bioaccumulation in the Kootenai watershed and its native fish species. Based on her involvement in the years-long collaborative process with a multitude of agencies and stakeholders, which set a goal of adopting a new standard by the end of 2020, Sexton said she doesn’t see how anyone can be “blindsided” by the recommendations.

“I have been participating in this process since our first meetings in Eureka in 2014,” Sexton said. “This is the most collaborative process I have ever been involved in. We have had full participation from tribes both in B.C. and south of the border in Montana and Idaho. We have worked with the state of Montana, federal entities, the province of B.C., and Teck Coal. From someone who has been involved with this from the beginning, it is disappointing to hear that some people feel this process has been rushed. I have never seen a more scientifically comprehensive or collaborative process to date.”

Meanwhile, a coalition of tribes, as well as separate U.S.-based organizations and agencies, have raised concerns about Teck’s plans to expand its mining footprint, particularly through its Castle Mountain Project, which is currently working its way through the regulatory process. The expansion project would be part of Teck’s existing Fording River Mine complex, and is one of four new proposed mountaintop removal coal mines in the Elk Valley, where existing mines regularly exceed water quality thresholds, with some pollutants registering at 100 times the provincial guideline.

Tribal leaders from CSKT, the Kootenai Tribe of Idaho (KTOI), and the Ktunaxa Nation of B.C. are urging the Minister of Environment and Climate Change and the Impact Assessment Agency of Canada (IAAC) to consider Montana’s proposed “conservative and protective” selenium criteria at the international boundary in its review of Teck’s expansion project.

“The last five years of data collected in Koocanusa Reservoir by multiple governmental agencies and industry entities, including Teck itself, clearly demonstrate that selenium impacts are already occurring to water quality, fish, and other aquatic life in the Reservoir and in the Kootenai River downstream,” according to a letter from the joint tribal councils of CSKT and KTOI, which was sent earlier this month to the IAAC to Canada’s Minister of Environment, Jonathan Wilkinson.

The letter also notes that Teck’s Initial Project Description (IDP) for the Castle Mountain Project excludes any impacts to Indigenous Nations like CSKT and KTOI “despite data collected by federal, state and Indigenous governments and industry entities demonstrating and documenting selenium degradation of waters south of the international boundary.”

Further, the joint tribal council notes that Idaho is in the middle of negotiations with the U.S. Environmental Protection Agency (EPA) to list its segment of the Kootenai River as impaired due to selenium impacts under the Clean Water Act.

“Teck has made claims unsupported by credible data that the selenium trends are decreasing downstream of the mines,” the letter states.

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