Teck is fighting Montana pollution rules it doesn’t have to follow. Why? Look to B.C.

Teck Resources, one of Canada’s largest mining companies, is facing pushback over its efforts to weaken new water pollution limits in the state of Montana as B.C. weighs its own implementation of selenium standards for Lake Koocanusa, a reservoir that spans the Canada-U.S. border.

For decades, selenium — an element that can cause deformities and reproductive failure in fish — has leached from enormous waste rock piles at Teck’s coal mines in southeast B.C.’s Elk Valley, polluting waterways that feed the Elk River, which flows directly south into Lake Koocanusa.

Ninety-five per cent of the selenium entering Lake Koocanusa stems from the Elk River, according to Montana’s Department of Environmental Quality, the body which introduced selenium pollution limits for the reservoir in late 2020.

Since 2015 the state of Montana has worked with officials from B.C., First Nations and Tribal governments and scientists to develop a new selenium standard for Lake Koocanusa that would protect aquatic life from the damaging effects of too much selenium by 2020.

While Montana adopted new limits in December of that year, the B.C. government has yet to follow suit. 

In November 2021, B.C. officials said at a meeting of the Lake Koocanusa Monitoring and Research Working Group that the province and Ktunaxa Nation Council had agreed on a proposed selenium water quality objective for the B.C. side of the reservoir of 0.85 parts per billion. That figure won’t become official until the public has a chance to comment, and even then will not be a legally enforceable standard.

In an interview in November, B.C. Environment and Climate Change Minister George Heyman said once the new objective is confirmed, it would be incorporated into changes to the Elk Valley Water Quality Plan and eventually inform amendments to Teck’s permits.  

Teck — as a Canadian company operating coal mines in Canada — is not subject to Montana’s rules, which apply only to the U.S. side of the reservoir. But in a recent petition, submitted to Montana’s Board of Environmental Review, the company argues the state’s selenium limit, a Lake Koocanusa site-specific selenium standard of 0.8 parts per billion, is illegal and targets their coal mining operations.

B.C.’s existing water quality guidelines, which are not legally binding, recommend selenium levels be kept to two parts per billion to protect aquatic life. In waters tested throughout the Elk Valley, however, selenium levels have been found to exceed 150 parts per billion near mining activities.

Average selenium levels in Lake Koocanusa, which straddles the border about 100 kilometres south of the Elk Valley mines, were measured at around one part per billion, according to Montana’s Department of Environmental Quality.

In its petition to Montana’s Board of Environmental Review, the company’s lawyers argue that the new standard “was designed to, has been used to, and does target Teck.” The company points to comments from Montana’s Department of Environmental Quality in December 2020, which are included as an exhibit in their petition for review, that adopting the new standards would “continue to put pressure” on the B.C. government to establish its own stronger standards that could then be enforced against Teck.

Groups  urge state to dismiss Teck’s request to scrap selenium pollution rule

Last summer, Teck asked Montana’s Board of Environmental Review to undertake what’s called a “stringency review” of the state’s new selenium standard. 

In January, several environmental groups, as well as Montana’s Department of Environmental Quality, made written submissions to the board in support of the new standard and urged it to dismiss Teck’s request. A public meeting on the matter was held Jan. 31, 2022.

Teck “obviously doesn’t have the best interests of clean water for Montana,” Derf Johnson, the clean water program director and staff attorney with the Montana Environmental Information Center, told The Narwhal. 

The non-profit is among several environmental groups in the U.S. that are urging Montana’s Board of Environmental Review to disregard Teck’s attempts to fight new water pollution standards. 

Johnson wants the board to “stop listening to a foreign corporation about water pollution in Montana’s rivers and start listening to its citizens.”

While the U.S. Environmental Protection Agency (EPA) recommends a selenium water quality limit of 1.5 parts per billion for still water, such as lakes, Montana adopted the site-specific selenium standard of 0.8 parts per billion for Lake Koocanusa in order to better protect fish.

In cases where the state adopts a standard that is “more stringent than comparable federal regulations or guidelines that address the same circumstances,” Montana is required by its own laws to make written findings explaining why a stronger limit was adopted. Teck contends that because no such written reasons were provided in this case, that the new standard is illegal, and a new rulemaking process should be undertaken.

But when Montana’s Board of Environmental Review adopted the new selenium limit in December 2020, it determined that the state’s new selenium standard was ultimately no more stringent than the EPA recommendations because the federal agency also provides a process for developing site specific standards where the 1.5 parts per billion limit may not adequately protect fish.

Shiloh Hernandez, a senior attorney with the non-profit environmental law firm Earthjustice, called Teck’s arguments “meritless.”

“I think Teck sees this as an opportunity for them to take some of the pressure off politically more than anything,” Hernandez told The Narwhal, explaining that the company may see Montana’s new administration as more “polluter-friendly.”

The board’s previous decision, that the new standard was no more stringent than the federal rules, was made just before Republican Governor Greg Gianforte took office in January 2021, replacing the previous Democratic administration. Soon after assuming office, Gianforte appointed four new commissioners to the Board of Environmental Review.

Teck is “asking the board to change its mind in light of the change of administration and that would really undermine the credibility of the board as an impartial arbiter and as a scientific body for it to just reverse its position based on zero new evidence,” Hernandez said.

In a statement to The Narwhal, Chris Stannell, a spokesperson for Teck, said the company is working with the B.C. government and Ktunaxa Nation on a water quality objective for Lake Koocanusa that would apply in Canada.

“We are working hard to protect water quality in the region and will have up to 77.5 million litres per day of treatment capacity installed by the end of 2022 — more than quadruple our treatment capacity in 2020,” Stannell said.

Despite an increase in water treatment over the past near-decade, Teck has been unable to consistently and successfully lower selenium levels across waterways in the Elk Valley. Teck’s Elk Valley operations are monitored under a valley-wide permit that has short-, medium- and long-terms selenium targets established under the Elk Valley Water Quality Plan. The water quality plan, established in 2014, focuses only on stabilizing selenium levels in the Elk valley watershed until 2023. Under the plan, Teck is not expected to begin the work of lowering selenium levels in the watershed until the 2030s.

Following Teck’s petition for review of the selenium rule, the Board of County Commissioners of Lincoln County, the Montana county that surrounds Lake Koocanusa, also petitioned the Board of Environmental Review to reconsider the new selenium standard based on concerns that it’s more stringent than the federal rule. 

Lincoln County also raised concerns that the potential economic impacts on the county weren’t adequately considered, and that the new selenium standard was enacted “to indirectly regulate a foreign company, potentially at the expense of future industry and development locally.” 

Montana’s water quality limit aims to keep selenium levels below EPA standards for fish

Under the Montana Water Quality Act, the state can only adopt a water quality standard that’s more stringent than a comparable federal standard when written findings show the state’s standard protects public health or the environment and is achievable under current technology.

In the case of Montana’s new selenium standard, the Department of Environmental Quality explained in submissions to the review board that the state standard is consistent with the EPA’s recommended selenium limit because it was developed using EPA guidelines and corresponds with the EPA’s standards for fish tissue — meaning no written findings were required.

Myla Kelly, the manager of the water quality and modeling section at the Department of Environmental Quality, explained at the public meeting on Jan. 31, 2022, that the selenium standards consist of multiple parts — standards for egg or ovary fish tissue, muscle tissue and water.

The egg and ovary standard is the “foundation,” she explained, adding that Montana adopted this standard directly from the EPA and created a corresponding selenium limit for water that is ultimately preventative, meaning it’s designed to prevent selenium levels from getting too high.

While the EPA’s general water quality guideline for selenium in lakes is 1.5 parts per billion, the agency also found that a range of selenium levels from 0.27 to 52.02 parts per billion could be protective depending on the unique circumstances of different sites. Montana’s new 0.8 parts per billion standard falls within that range.

The EPA found that in 80 per cent of cases, 1.5 parts per billion is protective, but some lakes may be left under-protected, the department’s submission explains.

For these situations, the EPA developed guidelines to translate its egg and ovary standard into a site-specific water quality standard. It was based on those guidelines that Montana’s 0.8 parts per billion standard was developed.

The Board of Environmental Review considered these factors when it determined in December 2020 that the standard for Lake Koocanusa was not more stringent than the federal rules, the Department of Environmental Quality’s submission says.

Teck reported fish population declines downstream of Elk Valley coal mines

In a statement to The Narwhal, Stannell said Teck “is strongly in favor of having legal, scientifically based standards in place to protect water quality and aquatic life in Lake Koocanusa.”

But the company is concerned that the water quality standard is below the background levels of selenium in some upstream waterways, he said.

Montana’s Department of Environmental Quality, however, says natural background levels of selenium were considered before the new standard was adopted in 2020 and that “water quality data suggests selenium contribution from tributaries to the Lake Koocanusa and the Kootenai River are very low and would not contribute to standards exceedances.”

Teck further argues in its submissions that there is no evidence of harm to fish in Koocanusa, though the company’s own sampling has found fish that exceed Montana’s egg and ovary standards for selenium in the reservoir. 

Teck data available on a joint B.C.-Montana website shows that in 2020, 19 per cent of 81 fish sampled exceeded Montana’s egg and ovary standard, including peamouth chub, cutthroat trout and a Northern Pikeminnow. ​​In 2020 Teck reported major population declines of westslope cutthroat trout in three waterways downstream of the company’s Elk Valley coal mines. 

In its own submissions, Montana’s Department of Environmental Quality responds that “water quality standards are not set once harm occurs, but rather in advance of that, to protect beneficial uses before irreversible impacts occur.”

It adds that elevated selenium levels have already been detected in some fish species, “which suggests impacts could already be occurring.”

Confederated Salish and Kootenai Tribes, Kootenai Tribes of Idaho support new standard

In a joint letter to the Board of Environmental Review this month, Tom McDonald, council chair of the Confederated Salish and Kootenai Tribes, and Jennifer Porter, council chair of the Kootenai Tribes of Idaho, urged the board to dismiss Teck’s petition.

McDonald and Porter echo the Department of Environmental Quality’s comments that the new water quality standard is not more stringent than the EPA standard.

They note that fish have exceeded the egg and ovary standards for selenium in both Lake Koocanusa and downstream in the Kootenai River.

“Notwithstanding objections and rhetoric from Teck, the Tribes assert that the State of Montana and the U.S. EPA both employed a robust and inclusive process that is consistent with scientific and legal standards,” they write.

Letters of support for the new selenium standards have also been submitted by environmental organizations in Idaho and Montana Trout Unlimited, an organization focused on conserving and restoring Montana’s coldwater fisheries.

In a letter, David Brooks, Montana Trout Unlimited executive director, and Clayton Elliott, the group’s director of conservation and government relations, described Teck’s petition for a stringency review as “misguided” and called on the Board of Environmental Review to “reject it out of hand.”

“As Teck and a few other individuals are making unsupported challenges to this scientifically-sound and legal standard, new fish tissue data from Koocanusa and the Kootenai River show increasing levels of selenium that, perhaps, warrant an even more stringent standard than (the Department of Environmental Quality) has set,” they write.

EPA says selenium rule based on ‘sound’ science

According to the Department of Environmental Quality’s submissions to the Board of Environmental Review, if the board goes against its previous decision and decides that Montana’s new selenium water quality standard is more stringent than the EPA’s standard, the board doesn’t have the authority to change the standard.

As of July 1, 2021, it’s the department rather than the board that has the power set rules under Montana’s Water Quality Act, it says.

In the event the board decides the selenium standard is more stringent, the department has said it will make the written statements required when a stronger rule is established.

But even if the state moved to adopt the weaker 1.5 parts per billion water quality standard for selenium in Lake Koocanusa, the EPA said in a letter to the Board of Environmental Review that EPA approval — as is required under the U.S. Clean Water Act — would not be guaranteed.

When the EPA approved the state’s new 0.8 parts per billion standard in February 2021, it determined that the science behind it was “sound.”

If the state now tried to implement the weaker standard, the EPA says it would have to “provide a site-specific demonstration” that the 1.5 parts per billion limit would be protective of fish in Lake Koocanusa and downstream.

Observers have until Feb. 11 to submit proposed decision documents to the board for consideration.