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Will Biden and Trudeau find a framework to rein in coal-mining pollution?

by By AMANDA EGGERT Montana Free Press
| September 12, 2023 7:00 AM

With the timer running out on a self-imposed deadline for Canada and the United States to “reduce and mitigate” mining-related pollution in the Kootenai River watershed, environmentalists and tribal governments are wondering if threatened fisheries in British Columbia, Montana and Idaho are any closer to stronger protections.

At issue is Teck Coal’s mountaintop removal coal-mining operation in Canada, which has introduced selenium pollution into Lake Koocanusa and its tributaries. A 92-mile-long reservoir that straddles the U.S.-Canada border, Lake Koocanusa is protected under the Boundary Waters Treaty of 1909, which holds that “waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other.”

Selenium, a chemical element that can hamper reproductive success in fish and lead to spinal, facial and gill deformities, has exceeded federal limits in burbot and mountain whitefish as far downstream as Bonners Ferry, Idaho, and is thought to have contributed to a 50% decline of mountain whitefish observed in Libby.

In a joint statement issued this March, President Joe Biden and Prime Minister Justin Trudeau pledged to “reach an agreement in principle by this summer” to address transboundary pollution concerns — and to work “in partnership with Tribal National and Indigenous Peoples” in that effort.

But the Confederated Salish and Kootenai Tribes, along with other Native American and First Nations governments of the Ktunaxa Nation, say their attempt to participate in those conversations has been met with silence from the Canadian government.

In a statement Aug. 11, CSKT Chairman Tom McDonald called for a “transparent, inclusive and accountable” process to address the tribe’s concerns. More specifically, he and others are calling, again, for U.S. and Canadian leaders to refer the dispute to the International Joint Commission, the 114-year-old body established to adjudicate transboundary water issues that’s composed of an equal number of U.S. and Canadian commissioners. Additionally, McDonald has pushed for a plan “to begin restoring these waters that are so central to the Ktunaxa people.”

“Now all we need is for Canada and the U.S. to sign onto the Ktunaxa proposal so we can get to work,” he said in the statement.

The question of whether to involve the international commission has proven to be politically fraught given the many layers and branches of government involved and the size of Teck’s coal-mining operation, which is one of the largest industries in British Columbia, sustaining some 30,000 jobs. If the IJC takes up the issue through a process called a referral, it could investigate, monitor and recommend potential solutions.

In a letter on May 13, Montana Gov. Greg Gianforte urged U.S. Secretary of State Anthony Blinken not to push for IJC’s involvement, asserting that such an approach is “premature” and would hamper efforts to “collaboratively develop and implement selenium standards for Lake Koocanusa and the Kootenai watershed.”

“In addition, the British Columbia Ministry of Environment and Climate Change Strategy has pressed Global Affairs Canada not to proceed with an IJC referral,” Gianforte’s letter continued. “The government of British Columbia believes that a referral would interfere and delay current efforts to implement selenium control standards.”

The same day Gianforte issued his letter, all six members of the IJC urged Biden and Trudeau to enlist the commission’s assistance, citing stakeholders’ “assessments that the problem is growing more critical.”

“The selenium contamination, first identified more than three decades ago, has continued to worsen, with no significant binational cooperation to protect the water of aquatic and human life,” the letter read, citing selenium levels six times higher than the standard approved by federal regulators for Lake Koocanusa, and similarly high readings recorded in British Columbia’s Elk River.

The commissioners prefer, the letter continued, that both heads of state sign on for the referral process, but they “understand the United States government is discussing the merits of a unilateral reference to the IJC on this matter” — an unprecedented move belying the seriousness of the issue.

In a conversation with Montana Free Press on Aug. 28, Montana Department of Environmental Quality Director Chris Dorrington expanded upon the state’s opposition to IJC’s involvement and described the status of the state’s Koocanusa standard.

“Our efforts so far are both precedent-setting and robust,” Dorrington said, referencing the 0.8 micrograms per liter site-specific water quality standard DEQ adopted for Lake Koocanusa in 2020.

He went on to say that involving the IJC doesn’t guarantee stronger water quality standards.

“Simply adding people doesn’t add protection, necessarily, [but] it does add effort and it does add requirements that we would have to meet more often,” Dorrington said.

Dorrington’s department has been tied up with selenium in multiple venues, including the courtroom. Earlier this year, DEQ sued the Board of Environmental Review, a quasi-judicial, governor-appointed board that adjudicates issues between DEQ and the companies it regulates, over its attempt to throw out the standard DEQ adopted three years ago with the approval of federal regulators. Dorrington said he hopes the lawsuit will be resolved soon since the department’s resources could be put to work resolving other contested cases.

BER’s attempt to nullify the Koocanusa standard was largely driven by Teck Coal, a multi-billion dollar Canadian mining company, with support in Montana from Lincoln County commissioners, who argued in a letter to the Daily Inter Lake that the standard adoption was rushed, inadequately studied and has potential to result in an impairment designation, “which will have serious, negative ramifications for both development and tourism.”

Regulators can deem water bodies impaired if pollutants exceed established thresholds. Once a river or lake is impaired, additional sources of that contaminant cannot be added.

Kalispell resident and former Montana Fish, Wildlife and Parks Region 1 fisheries chief Jim Vashro told MTFP that he’s puzzled by the Lincoln County Commission’s position on this issue, especially since Teck doesn’t have a mining operation in Montana and there’s an instructive model of regulation gone wrong in the W.R. Grace asbestos mine debacle that continues to threaten public health in Libby, the county seat.

“They need to look at the bigger picture and see if there are going to be long-term consequences. Unfortunately, they have an example in the W.R. Grace operation,” Vashro said, referring to the now-shuttered asbestos mine. “That operation produced good jobs and wages for several decades but left behind a legacy of contaminated sites and dead and dying Lincoln County residents.”

Also at play is the potential sale of Teck’s coal business, which garnered interest from Swiss commodities company Glencore earlier this year. Teck has also shown interest in expanding its B.C. mining operation in recent years, but told MTFP in an email on Aug. 30 that it has no such plans currently and is only seeking a permit extension for an existing mine “to maintain the existing jobs and economic contributions that the operation provides.”

Emails provided through a Freedom of Information Act request and forwarded to MTFP in July indicate that Dorrington, with DEQ, has been frustrated with Teck’s influence in Montana’s standard-setting process.

In an email on Oct. 3, 2022, to Lt. Gov. Kristen Juras and Gianforte administration policy advisor Michael Freeman, Dorrington wrote that a report produced by a special legislative committee on the selenium standard “had been, by all intents and purposes, commandeered by Teck Coal” and was not adopted by the Water Policy Interim Committee. Earlier that year, Dorrington told the special committee formed to produce that report that he wanted Teck to bring more scientists and fewer attorneys and lobbyists into that process.

“I think we’ve heard from one scientist,” he said during a meeting on July 5, 2022, as reported by The Missoulian. “Most of it has been legal, most of it has been lobbying.”

Other material that was produced in the FOIA request includes photos by federal regulators of deformed fish. On Aug. 17, 2022, EPA Water Policy Adviser Jason Gildea sent an email to British Columbia regulators describing communications with Elk River anglers “who report that they now regularly (i.e., daily) catch trout with deformed or missing gill plates.”

Gildea attached three images of such fish in that email. One was taken in Montana, on the Kootenai River below Libby Dam. Gildea asked his British Columbia counterparts if they were receiving similar reports and aware of any research to determine the cause.

About two weeks later, a Ministry of Environment employee of the British Columbia government responded.

“This issue has been on our radar for a while and we’re actively working with [the Ministry of Forests] and Teck to ensure appropriate data is being collected and reviewed.”

“We understand the importance of documenting and understanding fish deformities and have required Teck to document deformities, fin erosion, lesions and tumors during their regional fish surveys since 2018,” the letter said, adding that government officials were analyzing the results of a 2021 study of Westslope cutthroat trout in the Elk River that included documentation of deformities, with a report forthcoming.

The population crash of Westslope cutthroat trout played a role in Teck’s payment of a $60 million fine, the largest such fine levied upon a company in Canadian history. MTFP asked a spokesperson for the British Columbia Ministry of Environment for a copy of the study referenced in the email from August 2022 and was told it’s expected in 2024.

The Ktunaxa Nation Council earlier this year described British Columbia as the chief obstacle to an International Joint Commission reference, but the email on Aug. 31 from the province’s Ministry of Environment indicates that British Columbia may now be willing to come to the table.

British Columbia officials have submitted a proposal for an IJC reference to higher-ups in the Canadian government, who are considering it, the spokesperson said. The email also described sideboards it would like drawn around that process, namely that it be “contingent on a recognition of our regulatory role,” and that it contribute to existing work being conducted on both sides of the border without duplicating existing effort.

The U.S. Department of State was more tight-lipped about its position on a referral, saying in an email only that it doesn’t share details of diplomatic discussions “but remains open to approaches to this problem that address the urgency and seriousness of the issue and significantly reduce the impacts of past, current, and future pollution on local and Indigenous resources on both sides of the border.”

Asked the same question, Teck spokesperson Chris Stannell didn’t answer directly. He said only that Teck “supports increased transboundary cooperation on water quality management.” Stannell also highlighted the $1.4 billion Teck has spent on water treatment plants, the expansion of treatment capacity and the progress it’s made in implementing a province-administered water quality plan.

“Teck’s focus is on identifying a path that ensures continued responsible operations in the Elk Valley and supports a sustainable future for the benefit of employees, local communities and Indigenous Peoples,” Stannell wrote.

For Brad Smith, who’s worked on the selenium issue on behalf of the Idaho Conservation League, it’s critical that U.S. regulators get this right given the transboundary, multi-jurisdictional aspect of watersheds.

“Whether you’re talking county government, state government or the U.S. federal government, it’s in our best interest south of the border to protect our own waterways and our own fish,” he said. “I don’t understand why some of the elected officials in Montana want to weaken standards that are protective of U.S. interests.”