Lincoln County Commissioners Lobby Montana to Loosen Cap on Mining Waste at U.S.-Canada Border

The board of commissioners in Lincoln County has petitioned the Montana Department of Environmental Quality for a more permissive water quality standard at the U.S.-Canada border, where the mining byproduct selenium is leaching out of coal mines in British Columbia and contaminating the international watershed at Lake Koocanusa.

Lincoln County Commissioner Noel Duram said the local elected leaders submitted the petition to state regulators based on concerns that the selenium standard, adopted in 2020 after years of collaborative review and scientific research, could impede future mining and timber operations in local communities, 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 north of the border. For instance, Montanore Mine has conducted widespread soil sampling at its underground copper and silver operation near Libby, but has never detected traces of selenium, according to state regulators.

“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,” Chris Dorrington, the former DEQ director, said in February 2021 when lawmakers from Lincoln County introduced legislation that would have rescinded the new rule on similar grounds.

Even so, Duram said the latest effort to roll back the restrictions was born “out of personal concerns” that have been growing for years. In April, Duram said he met with DEQ alongside representatives from Elk Valley Resources, the company that operates five metallurgical coal mines in British Columbia’s Elk River Valley, which are the only known source of selenium contamination in the watershed that feeds into Lake Koocanusa in Montana, as well as the Kootenai River. The discharge of selenium and other mining contaminants come from piles of waste rock at the coal mines, which were owned by Teck Coal Limited until a year ago, when the Swiss mining company Glencore purchased them. Glencore is the parent company of Elk Valley Resources as well as the former Columbia Falls Aluminum Company plant, which is now a Superfund site.

Duram said the Elk Valley Resources representatives gave a presentation to DEQ officials challenging the science that informed the state’s site-specific selenium standard on Lake Koocanusa. Although he acknowledged the participation of Elk Valley Resources at the meeting, Duram said the commissioners did not submit the petition “in concert with Elk Valley Resources.”

“We just would like to have a standard that doesn’t restrict Lincoln County from further growth,” Duram said Tuesday. “If we have the opportunity to build something or grow our economic development, I don’t want the selenium levels in the lake to restrict what we can do.”

Defenders of the rule, however, say those fears are unfounded, while local business leaders describe the county’s petition as a misuse of taxpayer dollars.

“Are we getting sold out to give a foreign mining company some unknown advantage?” wondered Tina Oliphant, the former director of the Lincoln County Port Authority who has recently helped steer economic development at the Kootenai Business Park in Libby. “That’s a question that I’d like answered, because it’s very confusing. Who benefits here? I don’t follow the logic of messing with the Kootenai River and this watershed, because it affects all of Lincoln County. It affects our quality of life, it affects our quality of recreation, which is continuing to generate more and more and more interest not just among the locals, but certainly among our visitor traffic. It’s feeding more business and more business. It’s a critical economic artery in Lincoln County.”

But Duram views the selenium standard as another in a long line of restrictive rulemaking measures by the federal government that has stifled economic development in the once-bustling hub of timber and mining. Although the U.S. Environmental Protection Agency has the ultimate authority to approve site-specific water quality standards, the process to adopt a site-specific standard at Lake Koocanusa was led by the state of Montana, as well as a wide range of local stakeholders.

“Federal policy and policy that’s come from outside Lincoln County has damaged our development potential and I don’t want a repeat of that if I can stand it,” Duram said. “I just want reasonable standards. The commission voted to go forward on this, to ask for the rulemaking to be reviewed, and honestly, the DEQ might say they are not going to change anything. It may be completely shot down. I don’t like paying for attorneys’ fees but if I don’t try I think I’d be wrong.”

The Lincoln County commissioners are being represented by Aimee Hawkaluk, an attorney at Jackson, Murdo and Grant law firm in Helena.

The petition lays out “new data that confirms fish tissue selenium concentrations including egg and ovary data are below the national recommended fish tissue criteria elements, while ambient water column selenium concentrations also continue to be below” the national criteria.

“As a result … there is no need to develop a site-specific water column criterion element more stringent than the recommended national criterion,” the petition states.

Despite years of research and collaboration by stakeholders and scientists to ensure the standard’s adoption is scientifically justified, elected leaders from Lincoln County have mounted several challenges attempting to overturn the environmental rulemaking surrounding selenium releases from Canadian coal mines. Those efforts have confounded supporters of the rule, who say that without a protective value in place at the border Montana is entirely at the mercy of a Canadian coal-mining corporation, and without recourse in the event of a costly environmental remediation.

“This is clearly Glencore’s petition, and Lincoln County appears to be doing the dirty work on behalf of a Canadian coal mining operation,” Derf Johnson, deputy director of the Montana Environmental Information Center (MEIC), said Monday. “In terms of the science that they are going to have to muster to justify a petition like this, for starters, I just don’t even think it exists. The science and technical expertise that informed this years-long rulemaking process is unassailable. It’s clear that selenium is a problem in the transboundary river basin and the standard is designed to protect the beneficial uses of a cherished resources. They’re going to have a heck of a time mustering an argument against that.”

Selenium is a naturally occurring element in sedimentary rocks and coal and can be toxic to fish at elevated levels, which are exacerbated by mining operations and the accumulation of waste rock, according to the U.S. Environmental Protection Agency (EPA).

In 2016, the EPA updated its recommended national criteria for selenium, capping it 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 wherever 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 increasing load of toxic chemicals bearing down on the waterway from piles of waste rock in Canada.

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 the Koocanusa reservoir as well as the Kootenai River in Montana and Idaho, where selenium continues to be detected at elevated levels in fish tissue and egg ovary samples. The state Board of Environmental Review (BER) approved a site-specific standard in December 2020, setting the new criteria at 0.8 micrograms of selenium per liter on the lake. Following BER approval, the 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, and now Glencore, have disputed the standard on the grounds that it “is more stringent than the comparable federal guideline for selenium,” according to the company’s requests to invalidate it, a line that also appears in the recent petition. Indeed, the corporate owners of the coal mines have a demonstrated track record of courting state and local government leaders, including in December 2022, when Teck drafted a letter challenging the EPA’s new water quality standard, which was then sent with BER approval

DEQ then filed suit against the BER, which is the same governor-appointed board that adopted the standard in the first place. The MEIC then joined the DEQ’s lawsuit as an intervenor to defend the water quality standard, while also suing the Montana Department of Justice in a separate lawsuit for refusing to turn over communications with Teck.

The DEQ said it received on July 2 the petition from the Lincoln County commissioners seeking to “modify the selenium water column standard for Lake Koocanusa,” which triggers an administrative rulemaking process under the Montana Administrative Procedure Act. DEQ set a public hearing in Helena for Aug. 13 at 1 p.m. A DEQ spokesperson said the agency would accept public comments “up to and on the day” of the hearing. The petition and appendices and references that were attached to and submitted with the petition by Lincoln County are available on DEQ’s website here.

“DEQ will follow all processes as laid out in Montana Administrative Procedure Act and will continue to keep the public apprised,” according to the DEQ spokesperson. “Those interested should sign up to have their email included on the interested parties list on DEQ’s website.”

According to MEIC’s Johnson, his organization will submit public comment opposing the petition even though he has “a hard time thinking this is going anywhere.”

“DEQ has for the past two and a half years defended this selenium standard throughout the review process and then sued its own Board of Environmental Review saying this standard is the appropriate standard, and that it’s lawful and protective,” Johnson said. “So I have a hard time thinking they’re going to reverse this decision after spending a lot of money and resources defending it. The governor believes it’s the appropriate standard. Everyone believes it’s the appropriate standard except Glencore and whoever they can get to go along with them while they play fast and loose with the science.”

A spokesman from Elk Valley Resources said the company is “aware” of the petition but did not respond to questions about whether Lincoln County submitted it on behalf of the mining company. The spokesman, Chris Stannell, suggested “directing any inquiries regarding the submission to them.”

For his part, Duram said he cares about maintaining the health of Montana’s watersheds, and believes Elk Valley Resources does, too, pointing to their investments in water quality treatment and their adoption of a water quality treatment plan.

“I think that now that they’re doing some treatment to the water up there, they are trying to prevent the selenium issue from continuing and I am really hopeful that they will continue that because it’s vital to keep clean waters in Montana,” Duram said. “I care about water quality, but I don’t think that selenium should be restricted this much.”

Still, even as the succession of mining companies invest hundreds of millions of dollars in new water-treatment technology, scientists say there isn’t any proven 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 and Idaho appears to be even more widespread, with new data revealing concentrations of selenium in fish tissue that is higher than previously thought.

Last year, a week after Glencore purchased the coal mines, the Canadian government laid charges against Teck alleging the mining company had violated the Fisheries Act by leaching toxic contaminants into a tributary of the Elk River, which feeds Lake Koocanusa and the Kootenai River in Montana. Prosecutors with Environment and Climate Change Canada (ECCC) submitted the charges against Teck by indictment, a charging decision that means the offense is “deemed more serious,” according to ECCC.

Richard Janssen, director of the natural resources department for the Confederated Salish and Kootenai Tribes (CSKT), said he interpreted the petition as regressive — a “step backward” in the progress that stakeholders, including Indigenous leaders, have made in the past year. That progress includes intervention by the International Joint Commission (IJC) to investigate ways to mitigate the pollution and reach long-term solutions. The Elk-Kootenai reference is historic because it’s the first time in the IJC’s history that a trilateral reference has been called involving an Indigenous nation; in this case, the transboundary Ktunaxa Nation, which encompasses the CSKT, the Kootenai Tribe of Idaho and the six Ktunaxa bands of government in British Columbia.

“Our tribes have used that area for millennia, and we want to see it protected for future generations. But we also want to see it protected now, for all of us who use it and don’t want to see this important watershed poisoned,” Janssen said Tuesday. “We shouldn’t continue to let a foreign corporation with a poor track record of environmental stewardship pollute our resources. It makes no sense. This is a step backward, not forward.”

“Rest assured, we’ll be at the hearing,” Janssen added, referring to the public hearing on the DEQ petition.

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