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Judge voids water
quality regulations
Says state of Idaho
adopted TMDLs without consultation
By DAVID BOND
Special to the Press
CDA Press.com
COEUR d'ALENE
Sept. 11, 2001-- A 1st District judge has declared null and
void a key element of federal and state enforcement
standards for water quality in the Coeur d'Alene River
Basin.
A ruling issued Thursday by Judge John Luster sends back to
the drawing board a host of new regulations governing
farming, logging, municipal sewer plants and mining in the
basin that the U.S. Environmental Protection Agency and
Idaho Department of Environmental Quality had promulgated.
Luster ruled that Idaho, as the lead agency, failed to
follow proper rule-making procedure when it adopted
pollution limits called total maximum daily loads for the
Coeur d'Alene River.
The EPA and Idaho, under threat of lawsuit from
environmental groups, adopted TMDLs for the basin based on
background levels of a Midwestern river where no lead, zinc,
silver or gold exist.
Mining companies Hecla, Asarco and Coeur Silver Valley sued.
The TMDL rules were adopted hurriedly without proper
consultation with local entities as required by state law,
according to the court.
The result was a "back room deal to placate the
environmentalists," according to one attorney involved
in the case.
"It is undisputed that the defendants did not follow
the requirements found in the statutes and regulations for
promulgation of a rule when the TMDL for the Coeur d'Alene
River was established," wrote Judge Luster -- conceding
that he had applied the most liberal standards possible in
the DEQ's favor.
The TMDL standards, which affect every mining, logging,
farming and municipal sewer treatment plant in North Idaho,
are "void and of no force and effect," said the
court.
TMDLs attempt to establish for an entire river system the
amount of runoff from mines, sewer plants, logging
operations and farms the river can tolerate. Once the total
loading is established, the state and EPA tell the known
generators of such runoff what their discharge rates can be.
In the case of the Coeur d'Alene River, Hecla Mining Co.'s
Lucky Friday Mine in Mullan was told by EPA that it could
not continue to operate unless it reduced its river
discharges below the level that natural runoff generates.
The decision was hailed by local citizen groups, including
the Shoshone Natural Resources Coalition, which was formed
in large part in 1999 to force public input into EPA's and
Idaho's TMDL for the river system.
"This is a good hit for the people. This TMDL issue had
the potential to shut down our communities. It's what got
John Q. Public off the front porch and into action,"
SNRC spokeswoman Kathy Zanetti said late Thursday.
Her group put together some 300 letters and affidavits
opposing the TMDL process in 1999, but felt their input was
ignored. At an EPA hearing in Wallace last month on the
subject of Coeur d'Alene Basin cleanup, Zanetti read a
statement to the effect that insofar as EPA and DEQ ignored
citizen input, the coalition would refuse to be a component
of EPA's feedback data base.
Dismissal of the TMDLs puts in limbo negotiated discharge
permits for Silver Valley mines, North Idaho's sewage
treatment plants and farms and logging operations from the
Washington state line to the Montana state line.
That's good enough for Zanetti.
"It's better to go back to the drawing board and come
back with a drawing that is beneficial to us, to our
industry, and to our communities, than coming back with a
nail in our coffin," she said.
EPA and DEQ officials could not be reached after hours for
comment about the decision.
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