SHOSHONE TERRAPIN, Feb. 26, 2003, pp. 6-7, 12.

Thinking outside the 'Box'


The myth of EPA's 'regulatory imperative'

Ron Roizen
SNRC Science Committee

EPA retains all the authority it needs on the new Basin Environmental Improvement Commission (BEIC) to fulfill its mandates under CERCLA, the law that created the Superfund program.  Such, at least, was the judgment of Robert Melts, a legal analyst at the Congressional Research Service, as articulated in a recent letter to Washington's U.S. Senators Patty Murray and Maria Cantwell (for a fuller account, see "Snatching defeat from the jaws of victory" at http://www.roizen.com/ron/stand2.html).

But just how encumbered are EPA's Superfund actions by the various dictates of the CERCLA statute and that agency's associated federal regulations?

EPA's rhetorical tendency is to suggest that a great deal of what they require or do is demanded by laws or regulations -- and so, in other words, their plans are often not negotiable or open to compromises.  For example, the EPA's Record of Decision for the Coeur d'Alene Basin includes a ten-page section that names and describes the many ARARs (Applicable or Relevant and Appropriate Requirements) that the agency is obliged to heed (see ROD Section 13.2).

The same rhetorical tendency in turn tends to strengthen EPA's bargaining position, whether vis-a-vis the Basin Environmental Improvement Commission or Basin citizen groups.

Yet a significant part of EPA's rhetoric of obligation, I will suggest, is mere smoke and bluff.

Consider for example the yard program at the top of EPA's current Basin remediation agenda.

EPA's Record of Decision says that yards with 1,000 or more parts per million (ppm) of lead must be replaced.  The ROD estimates that there are more than 900 such yards in the outside-the-Box Superfund area.

No public law or federal regulation imposes this yard plan.  EPA's authority for the manner in which the 1,000 ppm action level was established derives from two internal agency directives -- the first dated 1994 (OSWER Directive # 9355.4-12) and the second dated 1998 (OSWER Directive # 9200.4-27P).  The two directives prescribe (a) that EPA will favor the use of the IEUBK computer simulation model in making planning decisions and (b) that sites where the average child has a 5% or greater probability of having an elevated blood lead will merit community wide remedial action.  But neither the 1994 nor the 1998 directive has the imperative-creating force of a public law or federal regulation.

As it happens, there is a fully authoritative federal regulation (40CFR745) addressed to residential soil lead levels, which was published in final form in the Federal Register on January 5, 2001.  It holds that bare soil (note:  sodded or otherwise covered soil is not regulated) must not exceed 400 ppm in play areas and not exceed 1,200 ppm in nonplay areas.  The regulation applies only to yards of homes built before 1978, the year lead was banned in paint.

Many, many of the homes EPA plans to remediate in the Basin over the next five years would be declared safe by this federal standard because they are grassed-over and lack significant bare spots.  Moreover, where bare spots do exist, the federal regulation would be satisfied simply by sodding them over.

Yet the same regulation specifically states that it does not apply to Superfund sites.

The rationale for excluding Superfund sites from its purview is that such sites are subject to  intense scientific study and therefore are better served by the development of site-specific soil lead action levels.

The federal regulation defers to the same two internal EPA directives mentioned earlier as the guidance for the development of site-specific soil lead standards.

Yet these two EPA directives do not have the compulsive force of federal regulations.

Indeed, both EPA directives came equipped with notices fully spelling out their restricted regulatory authority.  The 1994 document cautions EPA personnel that its recommendations are intended merely as guidance and may be deviated from where site-specific situations warrant.  Moreover, the 1994 document clearly explicates that it lacks the force of law.  Finally, the notice asserts that the IEUBK computer simulation model authorized for use by the document is by no means a required methodology:  "For example," the document's text asserts, "while the IEUBK model is recommended here, its use is not a regulatory requirement and comments on the model or its use should be fully considered."

The 1998 document's notice is just as explicit.  Its text reads in full:  "This document provides guidance to EPA staff. The document does not, however, substitute for EPA’s statutes or regulations, nor is it a regulation itself. Thus it cannot impose legally-binding requirements on EPA, states, or the regulated community, and may not apply to a particular situation based upon the circumstances. EPA may change this guidance in the future, as appropriate."

EPA's ROD for the Coeur d'Alene Basin makes mention of the fact that the regulatory foundation for the yard program is not "binding" -- though, to be sure, this element of the regulatory situation was not highlighted.  In response to a comment by Ruth Spencer (see ROD CD, reply to comment #176), for example, EPA wrote in part:  "While EPA guidance documents are not binding and do not represent final agency action, national guidance is generally followed unless facts or circumstances related to a particular matter indicate compliance with the guidance is inappropriate."

Mining company lawyers Michael Thorp and Elizabeth Temkin (see ROD CD, comment #1653) hit hard on the EPA's reliance on mere guidance documents being used in lieu of legitimate federal regulations.  They wrote, in part:

...EPA’s use of the Integrated Exposure Uptake Biokinetic (“IEUBK”) Model to establish cleanup levels for lead in soil is, in effect, legislative rulemaking without adherence to the notice and comment procedures required by the Administrative Procedures Act (“APA”).  Throughout the RI/FS process, EPA has consistently applied the IEUBK Model to determine risk-based soil lead cleanup level levels and has treated those simulated soil lead levels as binding. This is so without the IEUBK, or EPA’ s reliance on it, ever being the subject of notice and comment rulemaking. Furthermore, Asarco and Hecla have submitted extensive comments raising significant concerns about EPA’s application of the IEUBK Model, including default parameters, in the Coeur d’Alene Basin, particularly given the huge amount of available site-specific information and the limited extent of the Basin’s blood lead problem. However, EPA not only refused to provide meaningful written responses to these comments, but also refused to exercise its discretion to back off its reliance on Model. EPA’s actions here confirm that the Agency gives the IEUBK Model the effect of a “binding norm” which is a flagrant violation of the APA....
Are there significant facts suggesting that EPA's reliance on the IEUBK model has been misplaced in the Coeur d'Alene Basin?  I am inclined to think so.

First, the 4% blood lead exceedance rate reported in the 2002 screening survey in the Basin suggests a prevalence that should have been achieved only after the entire five-year, 900-plus yard remediation enterprise had been completed.  To have found this exceedance rate before the yard remediation program has been fully launched should, one would think, give us pause.

Second, the scarcity of funds at the federal and state level may make a yard-based remediation program too slow for the addressing of those few children with elevated blood lead levels.  Hence a more deliberate effort to locate and offer advice or treatment to such children may be more suitable to whatever lead-related health problem we have in the Silver Valley.

It will fall chiefly to the county commissioner members of the BEIC to call the EPA's "the law makes us do it" bluff regarding the sanctity of the IEUBK-based approach to human health and come up with a more sensible, more direct, and more effective approach.