In a May 18 filing, multiple conservation groups are seeking a judicial review of a state board's 2022 decision to throw out a previously accepted regional selenium level.

The Montana Environmental Information Center, Clark Fork Coalition, Idaho Conservation League and Idaho Rivers United have filed suit against the Montana Board of Environmental Review, Teck Coal Limited and the Lincoln County Commissioners.

The Montana Board of Environmental Review (BER) decision is also being challenged by the Montana Department of Environmental Quality (DEQ) in district court.

The new suit filed by conservation groups makes the same argument as the DEQ but with some additions. A press release said the groups argue that the Board of Environmental Review exceeded its statutory authority.

In the Dec. 9, 2022, meeting, the BER found the state's selenium standard for Lake Koocanusa inconsistent with federal law.

Although the Environmental Protection Agency had ratified the state's standard and the BER had ratified the lower standard in 2020, the BER argued in December that the 2020 standard is more stringent standard than federal law allows.

Teck claims the BER decision was made correctly 

Selenium is an element necessary for life but toxic to aquatic life in high concentrations. It is a byproduct of wastewater from metallurgical coal mining in southern British Columbia. The runoff from these open mines flows into the Elk River and Lake Koocanusa.

Although Teck petitioned the BER to change their initial decision, Teck strongly favors having legal, scientifically based standards in place to protect water quality and aquatic life in the Koocanusa Reservoir, the company said in a recent email.

"Montana's proposed water column criteria does not match real-world data seen in the fish themselves and is actually below natural background levels found in some upstream waterways," Teck wrote.

The company has increased its water treatment capacity fourfold since 2020. However, U.S. policymakers like Senator Jon Tester and President Joe Biden have recently expressed concern over selenium levels in this transboundary watershed.

Teck argues that the current concentrations of selenium are not impacting fish populations in the Koocanusa Reservoir and points to DEQ data that says selenium concentrations in the Koocanusa Reservoir have been stable since at least 2012.

"To date, we have invested over $1.2 billion in four treatment facilities which are effectively removing 95% of selenium from treated water," the company said. "We are also investing a further $750 million to expand treatment capacity with new facilities coming online virtually every year for the next five years."

Teck Coal has worked to treat water affected by mining but has faced steep fines for continuing to violate its permit requirements. In early 2023, Teck was fined $216,000 by the Canadian government for nine separate occasions during which selenium concentrations in tributaries to the Koocanusa reservoir were over standard. The selenium concentrations were between 4% and 35% over the Canadian government's selenium standards, and the dates for the infractions were between March 2020 and February 2021.

By December 2022, the Board of Environmental Review had changed its membership composition since the 2020 standard's adoption, as it is composed of gubernatorial appointments. The new BER board reasoned that in 2020, the board had misinformed the public.

In a 5-2 decision, the board notified the EPA that Lake Koocanusa's water column standard, set by the DEQ, was adopted in error.

Some on the board disapproved of the decision. In a previous meeting, board member David Lehnherr said, "It seems the Board is determined to do whatever it takes to put the interests of the Canadian coal company Teck before the interests of Montana's water quality."

The board decided to review the water column standard based partly on the insistence of Teck, as it filed a petition for review. Lincoln County, as the commissioners filed a separate petition with the BER to reconsider the DEQ's selenium standard.

"Teck provided the Board with a thorough and well-researched analysis of this issue," a letter from Lincoln County to the BER stated.

The letter addresses concerns that the DEQ's rule will "likely have significant down-range consequences for development in Lincoln County."

The Lincoln County Commissioners have declined to comment about the suit.

Conservation groups seek outside intervention 

The board's recent decision is demonstrative as to why this process is so problematic, as multiple parties with differing standards have stalled without real cooperation, Derf Johnson, the Montana Environmental Information Center (MEIC) deputy director, said in an interview. The MEIC is one of the organizations that has filed suit.

"BER's flawed decision to invalidate a legal and protective water-quality standard at the behest of a foreign coal mining company leaves Montana and downstream Idaho waters exposed to increasing selenium pollution, to the detriment of the local communities and native fish species that rely on a healthy Kootenai River," said Stephen Pfeiffer, a conservation associate with Idaho Rivers United, another organization that filed suit, said in a press release.

"How do we fix this watershed? How do we address this transboundary pollution," Johnson said. "The recent actions of the BER are representative of why we need the International Joint Commission because Montana did adopt a strong specific standard guided by science."

The commission Johnson refers to is something that the Confederated Salish and Kootenai Tribes (CSKT), alongside six Ktunaxa Nation governments, have called for the leaders of Canada and the U.S. to convene for over a decade, according to a December press release.

An international body of people from both sides of the border is needed, as the tribes noted, because the current situation is not working, Johnson said.

"What they took action on last (December) was pretty shocking. They ratified a letter written by Teck and sent it on to the EPA," Johnson said.

After a meeting between U.S. and Canadian leaders in March, the White House signaled that it would work to address selenium pollution but did not give specifics.

"Over the coming months, the United States and Canadian governments and Tribes and First Nations on both sides of the border will identify specific steps to protect transboundary waters to reduce and mitigate the water pollution in the Kootenai watershed," the White House wrote in March.