Montana Board Urges EPA to Repeal Water Quality Standard on Lake Koocanusa

Acting at the behest of a Canadian coal company whose British Columbia mines have for years leached pollutants across the international border into Lake Koocanusa and the Kootenai River basin, the Montana Board of Environmental Review (BER) has asked federal regulators to invalidate a water quality standard implemented specifically to gird against the inrush of hazardous upstream mining contaminants.

The multi-national company lobbying for a more permissive water quality standard, Teck Resources Limited, is responsible for the release of mining contaminants into tributaries of B.C.’s Elk River, which enters Montana at the U.S.-Canada border before joining Lake Koocanusa and the Kootenai River. In December 2020, after more than five years of analysis, a multitude of state, federal and tribal agencies on both sides of the border arrived at a protective water quality standard to safeguard fish species in Koocanusa reservoir as well as the Kootenai River in Montana and Idaho, where a chemical byproduct called selenium continues to be detected at elevated levels in fish tissue and egg ovary samples. Following BER approval two years ago, the Montana Department of Environmental Quality (DEQ) forwarded the new water quality rule to the U.S. Environmental Protection Agency (EPA) for review. The federal agency approved it on Feb. 25, 2021.

Since the rule’s adoption, Teck has mounted an escalating campaign to overturn Montana’s standard on the grounds that it “is more stringent than the comparable federal guideline for selenium,” according to the company’s petition, a point the BER recently adopted as its central basis for asking the federal agency to invalidate it, according to a Dec. 9, 2022, letter proposed and drafted by Teck and sent with BER approval following a 5-2 vote.

“The Board of Environmental Review writes to inform the EPA of a legal error in the Board’s previous rulemaking that purported to establish a site-specific water column standard for Lake Koocanusa. The legal error renders the standard invalid by operations of law for both state and federal purposes,” according to BER’s letter to the EPA.

In an odd twist, the governor-appointed, quasi-judicial board asking the EPA to invalidate Montana’s water quality standard for selenium is the same one that originally approved it. However, because the selenium rule was adopted under Democrat Gov. Steve Bullock’s administration, several members have changed under Republican Gov. Greg Gianforte, with Teck ramping up pressure. 

David Lehnherr, a Billings physician and BER member appointed by Bullock whose term ends Jan. 1, 2023, said the BER “is on the wrong side of history” and that Teck, the company responsible for the very pollution DEQ is attempting to mitigate, is commanding an outsized degree of influence over the state’s rulemaking process.

“It’s interesting to see how Teck’s legalistic contortions continue,” Lehnherr, who this month voted against sending the letter to EPA, told BER colleagues during oral arguments over the selenium standard in October. “Teck is apparently unhappy it would have to comply with the older, more appropriate selenium standard until the selenium standard is reworked. So now they’re trying to do an end-run, and have us submit the outcome of our work to the EPA, when the EPA has definite guidelines for when they will consider a state standard, and we haven’t met their criteria for resubmitting this new situation to them. So I think it is just an unnecessary step.”

Lehnherr continued: “Even though this selenium standard process in my mind has been strangely convoluted and fraught with significant errors ever since the new Board took it up, and I won’t go into all of the various convolutions again, it seems the Board is determined to do whatever it takes to put the interests of the Canadian coal company Teck before the interests of Montana’s water quality.”

“The Board I believe is on the wrong side of history,” Lehnherr added, “and I think that will be shown with time, and it has been shown by hundreds of scientific documents and public comments. I wouldn’t be surprised if this ends up before the Supreme Court.”

Indeed, the BER’s direction to EPA has no enforcement mechanism, particularly after new legislation adopted in 2021 removed its rulemaking authority and vested DEQ with the sole jurisdiction over adopting rules for the administration of the Montana Water Quality Act.

Meanwhile, the intensive multi-agency effort to establish a protective water quality standard at Lake Koocanusa goes back more than a decade, and included input from Teck, which participated for years in meetings among members of a binational working group and research committee.

In 2016, the EPA developed updated recommended national criteria for selenium at a value of 1.5 micrograms per liter for lakes and reservoirs and 3.1 micrograms per liter for rivers, while also suggesting that states use site-specific standards whenever appropriate and applicable.

In Montana, the DEQ opted to pursue a site-specific standard for Lake Koocanusa and the Kootenai River due to the sensitivity of its fish species and the increased loads of toxic chemicals bearing down on the waterway from Teck’s piles of waste rock in Canada. The state BER approved a site-specific standard, setting the new criteria at 0.8 micrograms of selenium per liter on the lake and maintained 3.1 micrograms per liter on the river.

As a result of selenium entering Lake Koocanusa from Teck’s B.C. mines, DEQ joined a bi-national working group that spent years developing the standard based on technical input from leading selenium experts in the U.S. and Canada. Officials with the state agency opposed Teck’s petition as an intervenor and say the department complied with a statute allowing it to “adopt rules that are more stringent than comparable federal regulations.” DEQ completed the written findings necessary to support a more stringent than federal standard and held a public hearing and comment period for the written stringency findings.

“Overall, DEQ is proud of the scientific collaboration that is the basis of the site-specific selenium standard,” according to Moira Davin, a DEQ spokesperson. “DEQ did extensive stakeholder outreach leading up to the rulemaking, including numerous public meetings in Libby, Eureka, Troy, and Kalispell.”

After the new rule’s adoption, Judy Bloom, manager of EPA’s Clean Water Branch, wrote that the federal agency “commends Montana for collaborating with multiple stakeholders for over five years to develop a site-specific selenium water column element for Lake Koocanusa consistent with the approaches recommended by EPA for developing site-specific selenium criteria.”

“We thank Montana for your work to protect and improve these waters and look forward to continued partnership in this watershed,” Bloom wrote.

Asked about the letter, an EPA official said the agency was still reviewing its procedural implications. However, the BER development comes amid ongoing support by the Biden administration for a joint reference to the International Joint Commission (IJC) under the Boundary Waters Treaty of 1909 to address the transboundary impacts of mining in the Kootenai Basin. The growing support from Biden runs counter to the position of Canadian officials, however, rankling tribal leaders whose Indigenous territory includes the Elk and Kootenai rivers and Lake Koocanusa.

On Dec. 12, Canadian Prime Minister Justin Trudeau hosted the United Nations Biodiversity Conference in Montreal, where a coalition of tribes from Montana, Idaho and B.C. pointed to his country’s failure to honor tribal sovereignty and protect ecosystems and species from industrial pollution.

“How is it that … Canada can commit to halting biodiversity loss through real collaboration with Indigenous Peoples, and yet completely disregard our plea to act in solidarity for a decade? Is this what honoring Indigenous governments looks like in Canada?” Chairman Tom McDonald of the Confederated Salish and Kootenai Tribes (CSKT) said after the conference.

Erin Sexton, a senior research scientist with the University of Montana’s Flathead Lake Biological Station, said the water quality standard on Lake Koocanusa was the product of such a “robust and rigorous scientific process” that she “solidly stands behind it.”

“Anything higher [than 0.8 micrograms per liter] wouldn’t be protective of fish in the reservoir,” she said. “It wouldn’t be scientifically justifiable. And even though I tend to focus on the data, I do not understand the fact that a foreign mining company is writing letters for our Montana Board of Environmental Review to send to our federal government protesting a standard that was put in place to protect fish in Montana and Idaho. I just don’t understand it.”