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Dispute over selenium standards continues amid a disagreement over rulemaking authority

Libby Dam on Lake Koocanusa in northwest Montana.
Libby Dam on Lake Koocanusa in northwest Montana.

A governor-appointed board Friday ordered state environmental officials to throw out a 2020 pollution rule for Lake Koocanusa. It’s unclear if the state’s environmental agency intends to do that.

Last year, a Canadian coal mining company and Lincoln County commissioners petitioned the Board of Environmental Review to toss out a 2020 selenium standard that aims to protect fish in the transboundary Lake Koocanusa. Petitioners say the process to set the rule didn’t follow proper protocol.

The board agreed with petitioners and now says the Montana Department of Environmental Quality needs to restart the rulemaking process in order to provide the proper documentation supporting the selenium standard.

DEQ officials have argued the board doesn’t have authority to throw out the agency’s rule.

DEQ spokesperson Moira Davin in a statement said the agency will review the board’s order and “determine a path forward among the legal alternatives afforded [to] the department within state law.”

DEQ officials are taking public comment on a document providing supportive evidence for the current standard.

U.S. Environmental Protection Agency spokesperson Rich Mylott said in a statement that any changes to the Lake Koocanusa selenium standard would require the federal agency’s approval, and that the current standard remains in place.