Every year, after the Idaho Legislative Session ends, state agencies kickoff the rule-making process to update the Idaho Administrative Code to reflect any statutory changes made during the session.
First…What are Administrative Rules?
Administrative rules are agency regulations that have the full force and effect of law. These rules elaborate upon, or provide implementation guidance for a law or policy. Idaho is one of a few states that requires the legislature to consider and approve agency rules. Currently, the Idaho Administrative Code includes 8,278 pages, that governs every from plumbing codes to nail salons to dairy farms to potato diseases to crow hunting. The Idaho State Dept. of Agriculture has 79 rules alone.
Usually, they only have to deal with updates because the Legislature extends all existing permanent rules from one year to the next. This year, the process looks different because, for the first time, the Legislature (and specifically the Idaho House of Representatives) did not pass the standard Rules Extension Bill. So, Governor Little responded and now must implement all rules as temporary rules prior to July 1, and to promulgate permanent rules for consideration by the Legislature in 2020.
The cumbersome process has led to confusion as every agency board and commission (i.e. Idaho Water Resource Board, Board of Environmental Quality, Land Board, Fish and Game Commission, Board of Education, etc.) must approve temporary rules this spring and permanent rules this fall. To boot, all rules must be noticed in the local newspaper of record in each state, leading to significant publication costs.
But Wait, There’s More
In addition to the existing rules, agencies are also revising existing rules in response to legislative changes, or in response to petitions from industry, businesses or others. In particular, there are a couple of rule-making efforts underway that deal with mining regulations that we are watching closely.
Rules for Mining Cleanup
During the 2019 Legislative Session, House Bill 141 amended reclamation requirements that govern how mines are required to cleanup their mining operations. In particular, it established procedures for how mining companies can bond for reclamation costs. These bonds provide a form of insurance in the event that a mining company makes off with valuable ore, then declares bankruptcy and skips town. Unfortunately, this is an all-too-familiar story in the mining industry. In Idaho, one need look no further than the ASARCO bankruptcy that left taxpayers paying the tab for cleanup at the Triumph Mine near Ketchum.
Unfortunately, the legislation allowed for the use of “Corporate Guarantees” which allow mining companies to use the value of their own companies as collateral in case they aren’t able to pay the costs of cleanup. The fact is, when mining companies go bankrupt their collateral value is worthless, leaving taxpayers to cover the costs. That’s why the EPA Inspector General noted in 2017, in the instance of self-insurance or Corporate Guarantees “a company may default on its obligation to pay…EPA – and ultimately, the taxpayers- could be left with billions of dollars in clean up costs.” That’s why federal agencies don’t accept corporate guarantees anymore.
ICL is participating in the Idaho Department of Lands negotiated rule-making process that requires consideration for public input. Among other things, ICL will be asking that more secure forms of surety bonds be required for mining cleanup. And if Corporate Guarantees are allowed, they must be properly conditioned to minimize risks to taxpayers, and the environment.
All comments, background documents and info on meetings are available on the IDL Mining Reclamation Rule-making website.
Rules for Cyanide Mines
In addition to the rules for reclamation of mined areas, the Idaho Mining Association petitioned the Idaho Department of Environmental Quality for changes to the rules governing mines that utilize cyanide. Cyanide is a toxic chemical used to process large amounts of ore to remove small quantities of gold.
Because of the toxicity of cyanide, and due to the fact that virtually all cyanide leach mines have experienced toxic spills, ruptures or releases, special rules were put in place in 2005. Those rules require leach pads, processing ponds and tailings impoundments to have a double liner with a leak detection system and specifications to protect surface and ground water. Since 2005, no applications have been submitted to construct a mine that uses cyanidation processes.
In response to the petition from the Idaho Mining Association, the DEQ is considering performance-based rules, instead of more detailed specifications.
ICL is also participating in the DEQ negotiated rule-making process. We will be asking DEQ to maintain strong protections that minimize the risks to the environment.
What Else is Coming?
Other rules will be open for public comment in June that cover water quality, air quality, mining, fish & game and education. Among them are the K-12 science standards that were approved in 2018 after a 3-year battle. We’ll be watching each of these closely and encouraging members and supporters to weigh in with their views.