Friday, January 28, 2011

Proposed Mercury Rule generates far less committee discussion in the Senate than the House

A proposed DEQ rule requiring an analysis of proposed construction of new or modification of existing mercury emissions of greater than 25 lbs per year generated far less discussion in the Senate Resources and Conservation committee this week than it did in the House committee last week. Senator Lodge asked for a recap of the questions or problems that came up in the House committee. DEQ representatives noted that all questions and issues brought up had been incorporated into his most recent presentation. The committee voted to accept the rule.

Oversized Shipments

On Tuesday, January 25th, Idaho Association of Commerce & Industry (IACI) announced the result of a survey it commissioned on behalf of the Drive Our Economy Coalition. The survey revealed that support for plans to allow oversized truck shipments along U.S. Highway 12 in Clearwater, Idaho, Lewis and Nez Perce counties was at 67% while 30% of those questioned opposed the shipments. Statewide 52% supported the shipments with 38% opposing.

When those questioned were read a description of the shipments, the route and some of the requirements such as traveling only at night, police escorts, and only 15 minute traffic delays, the numbers grew to 71% statewide and remained at a constant 68% among the Highway 12 residents.

Anti-degradation rule considered by House Committee

Last week, the DEQ presented the draft rule for an anti-degradation implementation plan to the Senate Resources and Conservation Committee. This week, it was the House Committee on Energy, Environment and Technology’s turn to hear from the DEQ on developing an anti-degradation implementation plan. Idaho has water quality standards which were developed in the late 1980s but this policy did not lay out a specific implementation plan for its anti-degradation policy. This lack is the subject of a lawsuit which has been held pending legislative action. If the state does not implement an anti-degradation plan, the EPA most likely will.

Anti-degradation relates to the maintenance of water quality as outlined in the Clean Water Act (CWA). Under the proposed rule, if a new or increased discharge into a water body is planned, state regulators must do an anti-deg review. A projected “significant” increase in the discharge in the existing permit generates a Tier II analysis. Court cases have fleshed out interpretations of federal requirements of what activities necessitate a full Tier II analysis, so the DEQ’s proposed rule has taken into account these court determinations, such as “insignificant” versus “significant” discharge. What is “significant” is defined as how much in discharges the water in question can accept (its “assimilative capacity cap”) without reducing quality below standards.

At the same time, general permits cover a wide range of activities and need some flexibility. DEQ representatives told the committee the language in their proposed rule reflects this need.

Questions from the committee focused on specific instances where discharge could impact water quality.

Representative Raybould asked about canals discharging tailwaters into rivers. These discharges are not subject to CWA permitting, so wouldn’t have to undergo this determination. Only those projects subject to a Federal permit would be considered.

Representative Harwood’s concern was for farmers. What about field runoff? This rule doesn’t change the agricultural exemption that exists in the CWA. But what if it’s the logging industry that’s in question? In Oregon, Harwood noted, loggers are going to have to get permits if they’re using a road where the sediments are running off into streams. EPA is considering a multi sector general permit that would cover industries such as timber, and the DEQ has already certified a multi-sector general permit.

Representative Hartgen asked about projects along a bank – would they require a permit? In these instances, permits are issued by the U.S; Army Corps of Engineers, and no further review is necessary.

Representative Jaquet asked about sewage treatment plants along a river. As long as the permit in question stays the same, no review is required. Where a city is growing, and therefore its utility discharges are expanding, there would be one required.

In the case of an NPDES permit, Representative Jaquet asked about a case like Clearwater Paper (formerly Potlatch), on the confluence of the Snake and Clearwater rivers in Lewiston. In a case like this, DEQ is asked to certify the project, examining the existing water quality, the designated uses of that water body, and identifying that standards wouldn’t be violated by the proposed activity. The company was certified in 2006. This rule would not change the water quality criteria at all, nor impose a more stringent requirement than exists. It does, however, identify methods for the anti-degradation review and analysis.

But, legislators asked, are we putting the cart before the horse, approving a rule when we need to make changes in the existing statute?

After DEQ representatives presented to the committee and stood for questions, Norm Semanko, Idaho Water Users Association, pointed out that while DEQ proposed a waterbody-by-waterbody review in the draft rule, DEQ staff was conducting a pollutant-by-pollutant anti-degradation review for its 401 certification for EPA’s proposed Pesticide General Permit. He also said that EPA’s general permit is still a draft and that DEQ has stated that probable changes to the final document are significant. Semanko also questioned why DEQ’s comment deadline on the Section 401 certification of January 31 when EPA’s final Pesticide General Permit probably won’t be published until February 14. Semanko also raised another issue with DEQ's anti-degradation review. It states that the requirements of EPA's draft Pesticide General Permit are "above and beyond" what is required under FIFRA, and that continued label use will ensure protection of high quality waters. DEQ's draft certification however, includes eight (8) additional conditions "above and beyond" even what EPA is proposing in the draft general permit.

Raybould noted that we have a date of February 4 to to review and act upon these rules. He was concerned about the legislation that needs to accompany this rule to co-ordinate the definitions in statue and rule. Can we accommodate this request? According to the Attorney General’s office, it’s not unusual to have both a change in a definition in the statute and a rule. Any legislation that we have to adjust these statutes would come up later in the session.

Let’s let the leadership know that we’re facing this, Raybould said..


Representative Nielsen moved that we hold this proposed rule until the call of the chair. The motion passed.

Saturday, January 22, 2011

Senate Resources and Environment Committee bones up on anti-degradation

DEQ representatives presented three rules regarding anti-degradation this week to the Senate Resources and Environment committee.

The first of the proposed rules was generated as a result of a lawsuit over the inadequacy of Idaho lack of a water degradation plan, a suit which has since been held, pending legislative action.

Anti-degradation implementation plans and policies are a requirement of the clean water act. DEQ officials said Idaho has the policy but no implementation plan.

For the purposes of the presentation, DEQ representatives outlined some definitions:
- “Total Maximum Daily Load” (TMDL) refers to a restoration standards when water quality is below standards.
- Anti-degradation,” on the other hand, refers to maintaining water quality that is better than standards.
- “Ambient water quality” is what exists now.
- “Assimilative capacity” is what a water can assimilate and not impact it status.
- “Insignificant discharges” are defined as:
- Based on measure of ambient water quality and assimilative capacity.
- Must have a 10 percent assimilative capacity cap
- 10 percent ambient concentration spreads insignificant discharges out to more than one permit
- Insignificant discharge does not have to conduct additional analysis
- Allows agency to focus resources.

For the purposes of this rule, bodies of water have been categorized into three tiers:
- Tier I: Water quality at or below standard. No further impairment of aquatic life or recreational uses are allowed. A TMDL has been developed for Lake Lowell, for example as a Tier I body.
- Tier II: High water quality. Degradation of water quality is allowed with justification (socioeconomic)
- Tier III: Highest quality waters. No degradation allowed. The dividing line between this and Tier II waters is unclear. Some groups have unsuccessfully tried to change a body of water from II to III. In Idaho, we don’t have any Tier III waters, so our focus is on Tier I and II waters.

All waters get a Tier I review – which examines protecting and maintaining the existing water quality and existing uses. Tier II analysis is for activities that may cause degradation: looking at what other source controls are there to ensure that they’re adequate, as well as what is the best option for the money to maintain and protect the existing water quality. A Tier II analysis may allow significant degradation to accommodate important economic or socioeconomic development.

Under this categorization, there are some ACOE Nationwide permits, and maybe industrial Storm water permit under the EPA that might need further Tier II review, but most existing general permits would not need further review.

The pending rule describes how Idaho will implement anti-degradation. There are four main issues:

- Classification of water bodies - which waters get what protection?
- Insignificant discharges - What activities do not need full tier II analysis?
- Tier II analysis – how do we determine if anti-degradation is necessary and important?
- General permits – how do we address anti-degradation?

The rule as proposed is one that DEQ representatives say will withstand court challenges and as such is one that EPA will approve.

Proposed Mercury Rule generates lengthy discussion in House committee

Chairman Raybould engaged the full House Environment, Energy and Technology Committee in negotiated rulemaking this week, noting it would be more efficient than breaking into subcommittees. The first of eight proposed DEQ rules alone generated enough interest for a 90-minute question and answer session.

This rule would require an analysis of proposed construction of new or modification of existing mercury emissions of greater than 25 lbs per year. Additionally, a Tier 2 operating permit would be required of any existing source that has an emission of greater than 62 lbs per year. Sources already subject to federal standards would be exempt.

The rule was initiated as a result of a petition to the DEQ Board filed by the Idaho Conservation League and Monsanto in Soda Springs. It would address such mercury emitters directly by requiring an analysis and the application of best available control technology to minimize mercury emissions above the threshold.

But, legislators asked, would such an analysis be prohibitively expensive? Industry experts and DEQ representatives said such an analysis would list all possible controls and analyze them according to applicability based upon affordability, and other factors.

A sticking point with many on the committee was the rationale behind regulating activities not already regulated by the federal government.

In addition, they asked, what about other sources of mercury? What is happening to keep every home and business from introducing mercury into landfills by throwing out light bulbs?

“I’m a little bit concerned that we may be going overboard … if you pass this rule, this doesn’t stop mercury,” Chairman Raybould said.

Monsanto’s director of public and government affairs, Trent Clark, addressed the committee in support of the rule – for what he says is a rare moment when Monsanto and the Idaho Conservation League on the same side of one issue.

Clark said the proposed rule came out of an original disagreement with ICL, after which Monsanto brought in internationally recognized Mercury consultant Dr. Steven Lindberg. Lindberg spoke on Mercury deposition for an ICIE panel with representatives from ICL and others. In the course of this dialogue, Dr. Lindberg noted one issue he says we can agree on: very large sources of mercury ought to have best available control technology.

Clark, a past president of ICIE, says Monsanto not only recognizes its role in employing best available control technology, but feels that doing so gives the industry a national advantage in negotiations with competing interests in China to employ such technology themselves.

Clark says this rule also makes sense for the state of Idaho. He notes that the attraction of an uncontrolled industry to Idaho will attract notice of the EPA, promulgating what could be a much more stringent standard. Having a state standard, Clark says, helps Monsanto in its dialogue with the EPA.

Finally, Clark noted, the rule would help put potential businesses investors at ease.
“When we’re talking about volatile compounds,” he said, “for many businesses, having something in place like this is actually helpful in getting financing. With no rule in place, potential financiers assume the worst could happen.”

A motion to accept the rule passed with dissenting votes from Nielsen and Van Der Woude.

Announcing ICIE's 2011 "Gold Room" Workshop: Bull Trout - 20 years later

A presentation to a joint meeting of the Idaho House of Representatives Committee on Resources and Conservation and the Idaho Senate Committee on Resources and the Environment

Wednesday, February 9, 2011, 1:30 pm
Senate and House Auditorium (WW02), Idaho Statehouse, Boise

In 1992, The Friends of the Wild Swan, the Alliance for the Wild Rockies and the Swan View Coalition petitioned the US Fish and Wildlife Service to list the bull trout as an endangered species throughout its range. While historically bull trout ranged throughout the Northwest, British Columbia and possibly in Alaska, the main population remains in Montana, Idaho, Oregon and Washington, with a small population in northern Nevada.

In 1994, the USFWS reviewed the status of the fish and determined that, while threatened, bull trout was plentiful enough to insure it was not at immediate risk of extinction.

In 1995, Governor Phil Batt appointed a steering committee and a biology commitee to make recommendations for a bull trout restoration plan. On July 1, 1996, the Governor released his plan to protect and restore Idaho's bull trout.

Between 1992 and 2010, there have been reviews by USFWS, court cases, draft rules and final rules, challenges on all sides, documents reviewed and commented upon, oral arguments before courts, critical habitat designated, more court arguments and negotiations on critical habitat.

This year's "Gold Room" workshop will examine the latest developments in this 18-year old issue. Presenters include:
- Brian Kelly, Idaho State Supervisor
- Ted Koch, Bull Trout Coordinator of the US Fish and Wildlife Service
- Nate Fisher, Administrator of the Idaho Office of Species Conservation and
- Norm Semanko, Executive Director and General Counsel of the Idaho Water Users Association.

Tuesday, January 11, 2011

Governor emphasizes personal responsibility, projects conservative growth rate in State of the State

Governor C.L. “Butch” Otter delivered his 5th State of the State address yesterday, citing the coming legislative session as one that is likely to be thankless, within which “there will be no moral victories.” In some cases, he said, policy decisions will be made based upon on the “least bad decision.”

At the same time, the Governor expressed confidence that Idaho will emerge from the recession “leaner and stronger.” His proposed budget projects 3% growth rate in state revenue. Still, he said, most state agencies can expect to see their budgets cut by more than 2%.

The governor repeatedly called upon Idahoans to practice personal responsibility and look for opportunities to be their “brother’s keeper,” rather than rely upon the government for support.
Otter cited what he said is a failure of federal stimulus funding to create new jobs, and touted the success of private industry in doing so in Twin Falls, Pocatello, Chubbuck, Coeur d’ Alene and Boise.

He noted that Idaho has a more efficient government now than two years ago, and that our state is in better shape than others facing a budget crisis, such as Arizona, Nevada and Oregon. The Governor highlighted what he says are examples of why this is true:

- $32 million has been saved by Corrections through efforts to hold inmate population to more than 1500 below projections
- ITD Director Brian Ness’ realignment plan he says will save $1.5 million over the next two years
- The Division of Building Safety saving $415,000 a year through such steps as sharing office space, using videoconferencing and issuing more permits online

In addition, Otter said his tax compliance initiative, which added tax auditors, is bringing in more than $1 million a month to the general fund that had previously gone uncollected.

The Governor outlined some budget strategies to address what is expected to be a $340 million shortfall, including a promise to introduce legislation that would provide tax incentives to small and developing businesses, especially those focusing on new technology and innovation. He mentioned Project 60 as an example of a private/public partnership that is helping with this effort. Project 60 is an initiative designed to grow Idaho GDP by recruiting employers to Idaho.

But while our economy is growing again, employment figures aren’t. Until unemployment figures fall, he said, “the perception that we’re in a rut will continue.” Otter noted that if every one of Idaho’s 55,000 companies “paid it forward” by hiring just one additional employee each, the impact would be tremendous. What Otter called “misguided policies like healthcare mandates employers don’t know how they’re going to pay for,” have stifled employment growth.

Otter said budget cuts implemented this year for Idaho’s public schools will stay in place, with additional funding for targeted incentives. The Governor is working with Superintendent of Public Instruction Tom Luna to implement teacher performance-based incentives, and additional math and science classes, and require college entrance exams for all juniors.

Funding for higher education, however, will not fare as well. With a shout out to the JA and Kathryn Albertson Foundation and their Go On Initiative and praise for CWI as an affordable resource for students, his said his proposed budget includes more cuts for Idaho’s colleges and universities.

With regard to federal healthcare legislation, Otter said a recent ruling on a Virginia lawsuit that finds forcing people to pay for insurance unconstitutional bodes well for Idaho. He said his administration is working with our congressional delegation to fix or repeal that legislation.

Otter closed his address noting that what he called a culture of “responsible austerity” in government must expand. Repeatedly encouraging citizens to come forth with their ideas for balancing the budget, the Governor called upon Idahoans to think of this legislative session as a family council meeting, with legislators facilitating the discussion.