Montana DEQ Denies Petition to Loosen Lake Koocanusa Selenium Standard

The Montana Department of Environmental Quality (DEQ) has denied a petition by the board of commissioners in Lincoln County seeking to loosen the state’s site-specific regulatory cap on the mining byproduct selenium, which is leaching out of coal mines in British Columbia and contaminating the international watershed at Lake Koocanusa, as well as further downstream in the Kootenai River of Montana and Idaho.

DEQ issued its written findings on Sept. 2 along with its response to Lincoln County and copies of the 305 comments the agency received. They included comments supporting the state’s current selenium standard submitted by tribal representatives, local area businesses, the U.S. Environmental Protection Agency (EPA), and state agencies, as well as some opposing it, such as from Canadian mining executives and the petitioner.

In July, the Lincoln County commissioners challenged the state’s standard citing “new data” that confirms fish tissue selenium concentrations are below the national criteria. The commissioners also sought to amend the state’s definition of “steady state,” which describes a condition when selenium loading has stabilized in the water and concentrations have leveled off in fish tissue. The commissioners were being represented by Aimee Hawkaluk, an attorney at Jackson, Murdo and Grant law firm in Helena.

Montana adopted its site-specific selenium standard in 2020 as a protective defense against the Canadian mining toxins flowing from B.C.’s Elk River Valley and across the border into Montana. Although selenium is a naturally occurring element in sedimentary rocks and coal, it can be toxic to fish at elevated levels, which are exacerbated by mining operations and the accumulation of waste rock, according to the EPA.

Repeated studies have shown the water quality in the area to be in peril. In November 2023, the U.S. Geological Survey (USGS) published a report revealing that since 1984 selenium and nitrates in the Elk River have increased by 581% and 784%, respectively, signaling unprecedented increases of the pollutants in the watershed.

The Lake Koocanusa selenium standard is based on years of collaborative, peer-reviewed scientific studies and, according to DEQ, “the expertise of the most highly regarded selenium scientists in the world.”

The site-specific standard is not only justified, DEQ officials wrote in their decision Tuesday, but it is also “necessary to protect aquatic life from the toxic effects of selenium, and protect downstream water quality.”

“A site-specific standard remains appropriate and necessary to protect the designated beneficial uses of Lake Koocanusa and of downstream waters from the toxic effects of selenium,” according to DEQ Director Sonya Nowakowski in her written response denying Lincoln County’s petition. Nowakowski further explained that the decision is supported by publicly available data showing fish egg and ovary tissue concentrations in Lake Koocanusa already exceed the federal standard.

“It is further supported by the impaired status of the Kootenai River in Idaho for selenium,” Nowakowski wrote, “as listed by Idaho Department of Environmental Quality based on egg/ovary fish tissue data.”

Lincoln County Commissioner Noel Duram said the local elected leaders submitted the petition to state regulators based on concerns that the selenium standard could impede future mining and timber operations in local communities.

According to DEQ, the commissioners’ concerns are unfounded because there is no evidence of naturally occurring selenium in the region, nor in any other nearby geologic features other than beneath the Canadian coal mines north of the border. There are also no public or private entities discharging into Lake Koocanusa with effluent limits that would be subject to a site-specific standard.

“There are no permitted sources of selenium in the Kootenai Watershed. This watershed does not have the same selenium rich geologic strata that are found in areas such as the Elk Valley, B.C.,” according to DEQ. “Even if selenium was found in the watershed, this standard is site-specific and only applicable to permits discharging directly to Lake Koocanusa. There are no pending discharge permit applications nor has the department heard of any future permits for Lake Koocanusa.”

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 of 0.8 micrograms of selenium per liter on Lake Koocanusa 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. The standard on the Kootenai River remains at 3.1 micrograms per liter.

In Duram’s written comments to DEQ supporting Lincoln County’s petition, he trained his concerns on the fact that Montana’s selenium standard is more stringent than EPA’s minimum.

“Nothing in the 2016 EPA criteria would recommend cutting the standard to nearly half of the EPA guidelines,” according to Duram, who in his wide-ranging comments also took aim at environmental groups for using “any possible tactic to attain their goal of shutting down human activities.”

Although environmental groups have supported the selenium standard on Lake Koocanusa, it was adopted after more than five years of analysis by a multitude of state, federal and tribal agencies on both sides of the border. Still, Duram described a pressure campaign by “alarmist environmental groups” to enact the standard.

On Aug. 13, DEQ held a public hearing on Lincoln County’s petition. More than a dozen individuals and organizations spoke in support of the selenium standard, while only Duram testified in support of the petition to roll back the standard.

Among the supporters of the standard were Richard Janssen, director of the natural resources department for the Confederated Salish and Kootenai Tribes (CSKT).

“The current standards was developed through a rigorous and in-depth scientific study amongst all the jurisdictions in the watershed and is supported by multiple state, tribal and federal entities, including our tribes and our sister Ktunaxa tribal governments in Canada,” Janssen said during the hearing. “Selenium pollution from these mines is a legacy contamination issue that will require remediation, restoration and mitigation for centuries to come. To date the mines have deposited nearly 9 million cubic meters of waste rock in the Elk Valley, and they are currently permitted to deposit another 3 billion cubic meters over the next two decades. New mines and mine expansions are proposed in Canada. These new mines and mine expansions can significantly increase the amount of waste rock and therefore the amount of pollution that pollutes Montana waters. In addition to rejecting this petition, we urge DEQ to immediately undertake an assessment of impairment due to selenium for Koocanusa Reservoir.”

Janssen said Lincoln County’s petition signaled “a step backward” in the progress that stakeholders, including Indigenous leaders, have made in the past year. Of key importance in that progress has been intervention by the International Joint Commission (IJC) to investigate solutions to mitigate the pollution and reach long-term solutions on the Elk-Kootenai watershed.

The DEQ decision rejecting Lincoln County’s petition cites the ongoing IJC reference as further justification for denial.

“There are bilateral efforts underway to better understand and address water pollution in the Elk-Kootenai Watershed including an International Joint Commission Study and British Columbia Ministry of Environment and Parks’ Area Based Management Plan that both separately address selenium,” according to the DEQ decision. “It would be premature to make any changes at this time before that work is complete.”

The plans to expand the mines that Janssen described are being laid by Elk Valley Resources, the company that operates five metallurgical coal mines in British Columbia’s Elk River Valley, which 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.

Derf Johnson, deputy director of the Montana Environmental Information Center, gave DEQ plaudits for continuing to defend the state’s selenium standard against challenges by international corporations, particularly given that healthy fisheries drive Montana’s recreation economy.

“What we’re talking about is possibly the worst case of selenium contamination in the world,” Johnson said.

“The DEQ’s decision to deny the Lincoln County petition to weaken water quality standards for selenium was a no-brainer,” he continued. “The standard was based on solid, rigorous science and was the best standard for protecting water quality and aquatic life in Lake Koocanusa and the Kootenai River. The Lincoln County Commissioners should now focus their energy on protecting the robust outfitting and fishing industry in their county, which relies on clean water, instead of a coal mining operation in British Columbia.” 

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 from Lincoln County. 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 new water quality standard, which was then sent with approval by the Montana Board of Environmental Review (BER).

DEQ then filed suit against the BER, which is the same governor-appointed board that adopted the standard in the first place. The MEIC 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 publicly release its communications with Teck.

Elected leaders from Lincoln County have mounted several challenges attempting to overturn the site-specific standard at Lake Koocanusa. 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.

Even so, Duram said the latest effort to roll back the restrictions was born “out of personal concerns” that have been growing for years.

“I am a curious person and I have been going through many things in the reports you sent on the Selenium,” Duram wrote in his comments to DEQ. “I am also fielding so many comments regarding the Kootenai and believe that the information getting to the public is not accurate and I want to find out what is the accurate information and what is the real concern and goal of the DEQ for the Selenium levels.” 

In concluding its decision on Tuesday, DEQ wrote that it “continues to coordinate with British Columbia and other represented governments” through participation in the IJC governance body and study board, “with the goal of reducing and mitigating the impacts of water pollution to protect the people and species in the Kootenai watershed.”

“DEQ staff would like to thank everyone who participated in the process by providing data, views, or position statements concerning the petition,” according to the agency, which also noted that every three years it opens all water quality standards for public comment and hosts a hearing in a process called triennial review.

The next triennial review will take place in 2026.

[email protected]