Canadian coal company appeals tough U.S. selenium rule as provinces consider mines

A Canadian coal-mining giant is fighting new American environmental rules that tighten restrictions on the release of a contaminant toxic to fish. 

On Aug. 13, Teck Resources petitioned Montana to rescind a rule brought in last fall that dramatically cuts acceptable levels of selenium in Lake Koocanusa, a reservoir crossing the U.S.-Canada border that takes water flowing from the company’s mines in British Columbia. 

“No credible evidence of harm based on fish tissue samples has been presented,” says Teck’s petition to Montana’s Board of Environmental Quality. 

Montana’s new rules reduce allowable selenium concentrations to 0.8 micrograms per litre of water. B.C.’s current guideline is two micrograms per litre.

Montana officials have said those tougher restrictions on selenium are needed to protect waters shared by both countries.

Erin Sexton, a senior biologist at the University of Montana, said fish caught in U.S. waters show selenium concentrations high enough to damage their ability to lay eggs and reproduce. 

“Selenium is far more toxic than we originally thought,” she said. 

She said the new levels were set through a rigourous process that began in 2014 and involved governments and agencies on both sides of the border, as well as First Nations, scientists and Teck.

B.C. should be matching Montana’s move, Sexton said, pointing to a 2014 letter to state officials from the province’s then-deputy minister of the environment. 

“Should sound science and the results of the processes above identify a more appropriate target that is suitably protective of aquatic ecosystem health, then the province is committed to amending the long-term target of (two micrograms per litre),” the letter says. 

“I haven’t heard a good answer as to why (B.C.) hasn’t met its commitments,” said Sexton.

B.C.’s environment ministry is working on its own standard, with the Ktunaxa First Nation, which will protect aquatic and human health, said a statement provided by ministry spokesman David Karn.

“B.C. is working with (the Ktunaxa) on the process for public comment on the draft selenium water quality objective,” he wrote in an email.

Teck says the science behind Montana’s new rule is flawed.

“The new rule does not account for naturally occurring and background levels of selenium,” its petition says. 

Teck also argues Montana’s rule is invalid because state law requires the goal of any new regulation to be “achievable.”  

“(Montana regulators) recognized the inability of Montana to regulate work in Canada,” the petition says. 

The head of the state’s Department of Environmental Quality told a December 2020 hearing on the selenium rules that he believed Montana’s tougher requirement would influence B.C to follow along.

“What that does is put the pressure on British Columbia to indeed adopt their own standard which is aligned with us,” said Shaun McGrath.

In an email, Teck spokesman Dale Steeves said the Montana level is unreasonable.

“The level set by Montana is the lowest freshwater standard in North America, is only applicable in this transboundary waterway and is below natural background levels in some upstream Canadian waterways,” he wrote.

Teck has long struggled with selenium contamination from its mines in B.C.’s Elk Valley. 

In March, the company was fined $60 million for that pollution, the largest fine ever levied under the Fisheries Act. Teck says it has spent more than $1 billion since 2011 to address the problem and has budgeted another $755 million by 2024. 

Teck’s petition comes as both B.C. and Alberta weigh the effects of selenium, an element often found in coal deposits. The federal and provincial governments are considering plans from Teck for a major expansion to its B.C. coal mines. 

Selenium has also been a concern in Alberta, where several companies have taken large coal exploration leases along the summits and foothills of the Rocky Mountains, the source of most of the province’s drinking water. 

Alberta regulators have already denied one proposed mine at least partly over selenium concerns, although that decision is under appeal. A committee is also canvassing the province for public input on how, or if, coal development in Alberta should proceed. 

This report by The Canadian Press was first published Aug. 28, 2021.

Companies in this story: TSX:TECK.B  

— Follow Bob Weber on Twitter at @row1960

Bob Weber, The Canadian Press