Committee Kills Bill to Repeal Lake Koocanusa Standard for Canadian Mining Waste

One day after the EPA accepted a rule that strengthens Montana’s environmental safeguards for fish species at the U.S.-Canada border, the Legislature rejected a measure by Lincoln Co. lawmakers to rescind it

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

The Montana Senate’s Natural Resources Committee on Feb. 26 rejected a bill by Republican lawmakers from Northwest Montana that would have repealed a newly adopted water quality standard to protect fish species in Lake Koocanusa and the Kootenai River, the international waterway at the center of a sprawling effort to curb toxic chemicals leaching into the state from Canadian coal mines upstream.

The committee arrived at its decision to table Senate Bill 324 in a 7-5 vote, with two Republicans, Sens. Duane Ankney, R-Colstrip, and Jeff Welborn, R-Dillon, crossing party lines. The vote occurred just one day after the U.S. Environmental Protection Agency (EPA) adopted Montana’s newly revised standard for a mining byproduct called selenium, which has spiked to levels deemed harmful to fish species in the transboundary watershed. In the event the bill had advanced, it would have immediately put the state in conflict with the federal Clean Water Act, exposing it to liabilities from neighboring states and tribal nations while casting uncertainty over an environmental standard that is the product of years of scientific work by a multitude of agencies.

“If Senate Bill 324 were to succeed, the State of Montana would be required to use the EPA approved standards for anything under the authority of the Clean Water Act that includes permit effluent limits, impairment determinations and Total Maximum Daily Load allocations,” according to a Feb. 26 statement from a Montana Department of Environmental Quality (DEQ) spokesperson, prior to the committee’s vote to table the bill.

“The standards are designed to protect water quality and the health of aquatic life,” the statement continued. “Without the standard, selenium levels could cause impacts to fish and a decline in fish population. The process for setting the standard was extensive and collaborative with state, local, tribal, federal and British Columbia partners representing regulators and industry. The process took more than six years and included numerous public meetings and a public comment period.” 

The engineers of SB 324, Sen. Mike Cuffe, R-Eureka, and Rep. Steve Gunderson, R-Libby, maintained the final procedural steps to finalize the rule were rushed despite their direct involvement in the lengthy regulatory process, the extent of which Cuffe repeatedly emphasized to members of the Senate Natural Resources Committee on Feb. 22, when the bill surfaced for the first time at a last-minute hearing.

“I’ve been part of [the process] since the beginning. I was at the very first meeting, I was at every meeting,” Cuffe said. “Lake Koocanusa is my country. And if anyone believes that I’m not going to do the best thing for my country then you don’t know what you’re thinking.”

Still, leading committee testimony just days before the EPA deadline to approve the state’s new administrative rule — a concurrence that has now furnished Montana with an enforceable water quality standard at the border for the first time while also providing a tool to avoid costly litigation — Cuffe and Gunderson pressed the Legislature to rescind it.

Testifying in opposition to SB 324 was the new director of the DEQ, Chris Dorrington, who was tapped to lead the agency in December by the current Republican administration.

“This process has been ongoing for six years,” Dorrington said. “The data taken from water in Lake Koocanusa and from fish in Lake Koocanusa show that the selenium level in the water column is harming fish right now. I have shared with Senator Cuffe in four different meetings the data that substantiates this model and that has resulted in a protective standard for fish in this lake. These aren’t imaginary fish in lakes all over the U.S. These are fish in this lake right now.”

Cuffe and Gunderson said their concerns are shared by other elected officials in Lincoln County, who worry the new regulation on selenium will be manipulated by environmentalists to impede future mining and timber operations in their districts, even though there is no evidence of naturally occurring selenium in the region, or in any other nearby geologic features other than beneath the Canadian coal mines.

As an example, Montanore Mine has conducted widespread soil sampling at its underground copper and silver operation near Libby, but has yet to turn up any traces of selenium, Dorrington told committee members.

“There is no source of selenium, and there would be no scientific basis for a limit placed on a logging or a mining operation due to selenium because the selenium doesn’t exist,” Dorrington said.

The rising levels of selenium entering Lake Koocanusa have long been traced to mining operations in British Columbia’s Elk River Valley, where the global mining giant 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.

Teck officials say the company is conducting water quality monitoring at 100 stations in the Elk Valley, and remains “committed to taking the steps necessary to achieve the objectives of the Elk Valley Water Quality Plan (EVWQP) and stabilizing and reducing selenium levels in the Elk River watershed and Koocanusa reservoir.”

Despite the ongoing treatment and mitigation efforts, scientists say there isn’t any evidence to show the process is reversing or even stabilizing contamination trends at the U.S.-Canada border; instead, the extent of the contamination in Montana appears to be even more widespread than previously thought.

One recent EPA study concluded for the first time that selenium concentrations — in addition to entering Lake Koocanusa, where they have been increasing for decades — is also found at high levels in the Kootenai River downstream from the reservoir.

Gunderson and Cuffe pointed to Teck’s treatment efforts as evidence that the Canadian mining company was working to correct the problem, even as detractors of their bill say Montana has nothing to gain and everything to lose by standing on the sidelines.

“The only source of selenium that is affecting our water is in Canada, and in Canada the thing that is impacting our waters is Teck Coal,” Dorrington said. “Yes, they have been treating to some standard in some small portion of the total volume of water and to a very small volume of the water entering Montana.”

Sen. Jill Cohenour, D-Helena, the Montana Senate Minority Leader who also sits on the Senate Natural Resources Committee and voted to table SB 324, said she was troubled by the consequences repealing the rule would have on the state. Meanwhile, implementing the new standard has no negative consequences, she said.

“Why are Montana representatives asking us to press pause on something that protects Montana?” Cohenour said. “This has been a very long process and very collaborative, and there has been a very clear timeline in place.”

“It is necessary and important to the process for Montana to issue a site-specific designation to put pressure on Canada to make sure they are reducing the amount of selenium coming into Montana,” she said. “Otherwise there isn’t a mechanism. We hope and wish that Teck is good with water treatment, but without a standard there is no leverage. This is a data-based, scientific standard that followed a lengthy process.”

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