Lincoln Co. Lawmaker Seeks Review of Selenium Standard on Koocanusa

A Republican lawmaker from Northwest Montana has introduced a bill instructing the Montana Environmental Quality Council (EQC) to reanalyze the state’s newly adopted selenium standard, which was set to protect Lake Koocanusa and its fish species from Canadian mining contaminants.

The measure by Rep. Steve Gunderson, R-Libby, comes less than a month after the corporate owner of Canada’s largest metallurgic coal mine — and the sole contributor of the mining byproduct selenium to Montana’s transboundary watershed — was ordered to pay $60 million in fines for leaching toxic contaminants into downstream waterways, including Lake Koocanusa and the Kootenai River in Montana.

Those fines were meted out by Canadian federal prosecutors against Teck Coal Limited, a subsidiary of Teck Resources, which pleaded guilty March 26 to two counts of unlawfully depositing deleterious substances into water frequented by fish. The fine was the largest punishment in history under the Canadian Fisheries Act.

Specifically, Teck executives admitted their operations on the Fording River, a tributary of the Elk River near Elkford, British Columbia, as well as at nearby Greenhills, caused the mining contaminants selenium and calcite to leach from spoils of waste rock and into downstream tributaries, having an adverse effect on native westslope cutthroat trout, including causing fish deformities and mortalities.

For its part, Montana recently took steps to address the problem of pollutants leaching downstream from Teck’s B.C. mining operations by adopting its own site-specific water quality standard for selenium at the international boundary, a protective value crafted through years of scientific work to safeguard fish species in Lake Koocanusa and the Kootenai River.

Despite strong support from state environmental regulators for Montana’s new selenium standard, which last month received final approval by the U.S. Environmental Protection Agency, state Republican lawmakers first resisted adoption of the administrative rule, and then attempted to rescind it altogether, saying adopting a protective standard on Montana’s waterways was unfair to Teck, a foreign polluter.

The architects of the failed bill to repeal the selenium standard include Gunderson, who represents a legislative district encompassing portions of Lake Koocanusa and the Kootenai River, and who participated in portions of the six-year process to develop a new site-specific selenium standard at Lake Koocanusa.

In his new legislative proposal, Gunderson is asking for “a cooperative review of the new administrative rule, technical support, documents, background data, and assumptions used in the previous modeling process, and stakeholder desire to complete the model validation process.

“These affected stakeholders desire an opportunity to engage in additional, thoughtful, collaborative, and scientifically defensible analysis with state regulators to determine whether the 2020 site-specific standards for Lake Koocanusa are appropriate,” the resolution states.

“This is not, and I repeat not, a letter to Santa. This is a really badly needed request by officials of Lincoln County for an interim study for collaborative monitoring and data review to ensure that all relevant data was included in the process, which we believe was rushed,” Gunderson told members of the House Natural Resource Committee on April 14.

Chris Dorrington, director of the Montana Department of Environmental Quality (DEQ) and a defender of the state’s new selenium standard, said he supported Gunderson’s bill purely for the sake of transparency, even after rising in strong opposition to the measure to rescind the standard.

“I would like to be very clear,” Dorrington told committee members. “With my support I am not saying selenium is not important, I am not saying that Montana’s selenium standard is wrong. I am saying that we are open to a continuing dialogue. I rise in support of this bill only because I am in support of the agency’s transparency and the process by which we set standards. I believe that we should communicate the ‘what’ and the ‘why’ behind our process, even if it means doing so on a six-year process that was just confirmed and approved by the federal government. I trust that with this final review there will be clear answers for everyone to evaluate.”

The only other supporter of the measure was John Metropolis, a representative of Teck, the global coal mining giant and the only industry stakeholder potentially affected by Montana’s new selenium standard.

“We support this resolution, we think it’s good government and that it will help us all understand the basis for the standard,” Metropolis said.

But Martin Charlo, a council member for the Confederated Salish and Kootenai Tribes (CSKT), said the Tribes oppose Gunderson’s resolution, and have spent years working with the DEQ and numerous other agencies to adopt the standard.

“The CSKT greatly appreciates the state’s coordination and consultation on this matter,” Charlo said. “In fact, for many years, the CSKT has directly engaged in dialogue and processes for this site-specific criteria with the state of Montana, province of B.C., the Canadian federal government, the Kootenai Tribe of Idaho, and our transboundary Ktunaxa Nation Peoples. Those that claim the process has been rushed or has not included them have ignored it or not looked. It has been open, robust and public. And it has gone on for over six years.”

Willis Curdy, D-Missoula, a member of the House Natural Resources Committee, pressed Gunderson on why CSKT representatives were not included in the stakeholders that his new bill would assign to the EQC review.

“I don’t really see what adding their participation to the communication, to the back and forth, would accomplish,” Gunderson said, ignoring the Tribes’ request to be included in discussions about the future uses of their traditional aboriginal territory. “I don’t see the relevance.”

University of Montana research scientist Erin Sexton, who works at the Flathead Lake Biological Station, 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 the scientific justification for adopting the standard is overwhelming.

“I want to commend DEQ for leading this effort,” Sexton said.

Michael Jamison, of the National Parks Conservation Association, likewise said the selenium standard is the product of a years-long collaboration by multiple agencies, leading experts, organizations, and stakeholders, who all reached the same conclusion about the need for a more stringent selenium standard on Lake Koocanusa.

“The only outlier was a Canadian coal company that suggested, just like big tobacco, that the science was wrong,” Jamison said, referring to Teck, which in addition to its recent record-breaking fine for committing environmental crimes has a history of regulatory violations.

In 2012, for example, Teck reported pollution levels below its Fording River operation at 90 parts per billion, when British Columbia’s allowable level at the time was two parts per billion. A few years later, in 2019, Teck reported that 90 percent of the cutthroat trout in that reach of river had disappeared.

Last month, an inspection of the company’s permit compliance found violations in 12 of 21 categories, including pollution discharges, toxicity to trout, failure to meet water treatment deadlines, and failure to treat hazardous waste.

“Although the science is clear, lawmakers testifying today have said time and again they don’t understand it,” Jamison said. “I’m sorry for that, and I hope someone can explain it to them to their satisfaction.”