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The intricacies of how big corporations lobby government bodies can be hard to untangle. But at a recent environmental review board meeting in Montana, those efforts were in plain sight.
For years, Canadian mining giant Teck Resources has been fighting against U.S. water standards, which target pollution flowing from its Elk Valley coal mines in southeast B.C. downstream to the Kootenai watershed in Montana and Idaho. Those standards were approved by the Montana’s Board of Environmental Review in 2020. It was a process the U.S. Environmental Protection Agency commended “for collaborating with multiple stakeholders for over five years.” The state’s adopted standards were based on “sound science” specific to Lake Koocanusa, the Environmental Protection Agency wrote in its approval.
But by fall 2022, the same board that adopted those standards made a complete about-face. They voted to ask the Environmental Protection Agency to remove the standard.
The board is a quasi-judicial, government-appointed body tasked with making impartial decisions related to protecting Montana’s air and water quality. The make-up of the seven person board has almost completely changed since it voted to adopt the standard.
At a December Montana Board of Environmental Review meeting, chair Steven Ruffatto moved that Teck Resources and Lincoln County should take a first stab at drafting a letter to the Environmental Protection Agency on the board’s behalf. The motion passed five to two.
The letter, which Ruffatto edited for length, argues that Montana’s Board of Environmental Review made a “legal error” in 2020 when it decided to set a site-specific water column limit of 0.8 parts per billion for selenium in Lake Koocanusa. The lake is a reservoir that straddles B.C. and Montana. It was created by the Libby Dam on the Kootenai River and flows into Montana, Idaho and B.C.
U.S. federal standards can be as high as 1.5 parts per billion for still freshwater. However, federal standards also require states to adopt specific limits that protect bodies of water so that their intended uses are safe. For Lake Koocanusa that includes drinking and cooking with the water after conventional treatment, bathing, swimming and having aquatic life grow and reproduce.
Despite this federal requirement, the letter sent by the review board points out, a Montana law “prohibits standards from being set more stringent” than comparable federal regulations. As such, it argues, the standards should be removed.
The board’s recent decision to pursue reversing these protections is shocking and perplexing to Derf Johnson, Deputy Director of Montana Environmental Information Center.
“I think that this is really problematic behaviour from a foreign corporation, doing business in Canada, but coming to Montana and basically co-opting an institution of our government to weaken a water quality standard,” Johnson said. The Montana Environmental Information Center is a non-profit environmental organization that has been working on coal mining issues for more than a decade.
Leftover rock from Teck’s coal mines in southeast B.C.’s Elk Valley have been leaching selenium into the waterways flowing into Lake Koocanusa for decades. Selenium is a naturally occurring element that has been known to cause deformities and reproductive problems in fish and can be toxic to birds. B.C.’s current selenium guidelines are two parts per billion.
In 2021, Teck Coal Limited, a subsidiary of Teck Resources, was fined $60 million by the Provincial Court of British Columbia for selenium pollution in the Elk Valley. It was the largest fine ever given under the Fisheries Act.
Teck’s money would have been better spent “cleaning up their acts,” rather than continuing to fight the selenium standard, board member David Lehnherr said at an October meeting. He is one of two board members who has been against removing the standard set in 2020.
When the state of Montana set a site-specific selenium standard for Lake Koocanusa, it was based on the best interest of the lake and its waterways, using the best science available, Lehnherr told The Narwhal. There was no question in his mind that it was a good decision.
Before the board voted to pursue removing the standard, Lehnherr wanted to document his dissent. “The board, I believe, is on the wrong side of history and I think that will be shown with time,” Lehnherr said at an October board meeting. Support for the site-specific standard “has been shown by hundreds of scientific documents and public comments.”
Montana’s Department of Environmental Quality also supports having site-specific selenium standards for Lake Koocanusa. Earlier in 2022, it provided findings to support adopting a site-specific standard and to respond to previous concerns from Teck that the proper rule-making process wasn’t followed.
“There is substantial scientific justification in the rule-making record supporting adoption of the Lake Koocanusa selenium standard, including peer reviewed scientific studies and the expertise of the most highly regarded selenium scientists in the world,” the department wrote in response to public comments about the changes.
But now, the board is “flat out ignoring the science and public on this,” Lehnherr said.
For Johnson the situation is “entirely political” and very concerning. “The science didn’t change. The law didn’t change. The only thing that changed was a different makeup of the board,” Johnson said.
There are six new board members who were appointed by Republican Governor Gianforte in 2021. The only remaining board member who was part of the site-specific standard decision is Democrat-appointee Lehnherr. Johnson said the mostly newly appointed board is “very pro-resource friendly,” pointing to connections the current board has to Teck Resources and other industry groups.
Chairman Steven Ruffatto was an attorney at the firm Crowley Fleck PLLP, which has been the firm representing Teck Resources in its selenium arguments to the board while Ruffatto was chair.
Having the board direct Teck to draft a letter to the Environmental Protection Agency on its behalf “reeks,” Johnson said. “I would argue, in my 10 years, that this is, by far, the most politicized board I’ve ever experienced.”
Ruffatto abruptly resigned at the end of the last board meeting in December. He declined to comment on the board’s decision and his personal connection to Teck Resources.
At the October board meeting, Ruffatto defended the board’s actions saying: “We are not backing Teck Coal, we are backing the rule of law, and what’s important to our process is to follow the law.”
Counsel for the board, Michael Russell told The Narwhal in an email that the board requires an attorney to be one of the seven members. “To preclude an attorney from serving on the Board simply based on that attorney’s prior firm affiliation would be impractical, and alleging a conflict of interest on that basis fails to account for the nuances of the proper analysis to determine whether a conflict actually exists.”
Asking a company like Teck to draft the letter is “common practice” for an adjudicatory body, Russell said. A board can ask the party that prevailed on a motion to write the first draft for consideration; “here, the board required Teck to prepare a proposed letter, which the board revised before approving as consistent with its underlying decision in this matter.”
Nothing about this process has been typical, Kirsten Bowers, an attorney for the Montana Department of Environmental Quality, told The Narwhal.
The state does have a stringency statute that says Montana’s rules can’t be more stringent than similar federal regulations, Bowers said. But more stringent standards are allowed if the department and the board adopts findings that support it — which is what the Department of Environmental Quality did, Bowers said. “I think the board is misinterpreting the statute.”
“We’re proud of the sound science that was involved in developing that  standard,” Bowers added. It’s possible the Environmental Protection Agency will not take any action but “I guess it’s kind of under a cloud of uncertainty right now,” Bowers said.
In a statement to The Narwhal, Chris Stannell of Teck Resources reiterated, as he has previously, that Teck is “strongly in favor of having legal, scientifically based standards in place to protect water quality and aquatic life in Lake Koocanusa.”
Stannell said that “real-world data” does not support Montana’s water column criteria and that selenium levels in the Koocanusa Reservoir “are lower than in many other water bodies in the state of Montana” and are not impacting fish. Stannell said data collected by the state’s Department of Environmental Quality shows, “selenium water concentrations in Koocanusa Reservoir have been stable since at least 2012.” That data shows a range of selenium levels ranging from below 0.5 parts per billion to over two parts per billion between 2013 to 2018.
Selenium levels downstream in the Koocanusa and Kootenai River have been increasing for years, Erin Sexton, a research scientist at the University of Montana’s Flathead Lake Biological Station previously told The Narwhal. “B.C.’s regulatory process has failed to do anything about those increasing contaminant trends, Teck Coal is years behind in terms of implementing mitigation for those contaminants,” she said.
Teck Resources expects that a fourth water treatment facility for its Elk Valley operations will be in operation by the end of the year and will have the capacity to treat 77.5 million litres of water per day.
So far, Teck has invested $1.2 billion in water quality and aims to invest a further $750 million over the next two years.
Calls for an international inquiry to investigate pollution in the Elk Valley have been made by groups on both sides of the U.S.-Canada border. Recently released documents revealed that Teck was quietly lobbying the British Columbia government to resist a referral to the International Joint Commission — an organization established to prevent and resolve disputes relating to shared waterways between the two countries.
In a letter to Prime Minister Justin Trudeau and President Joe Biden, Ktunaxa Nation renewed its ongoing calls to address the cross-border pollution.
“In the decade that has passed since our initial request, contamination flowing from the Elk Valley coal mines in southeast British Columbia has increased to record levels throughout the Ktunaxa territory, including Ktunaxa waters in the Elk Valley, in tribal and U.S. territory in Koocanusa Reservoir and the Kootenai River in Idaho,” the letter stated.
Johnson said a referral to the International Joint Commission is “exactly what needs to happen here.”
“That’s why, in part, the [commission] was created. To resolve and work through these types of issues.”
“We have waited 10 years already and cannot wait 10, or even one year more before this issue is meaningfully addressed,” said the Ktunaxa Nation. ‘The time to act is now.”
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