De-Listing Lake Coeur d'Alene -- Don't Hold Your Breath


Like it or not, Lake Coeur d'Alene is part of the EPA's expanded Coeur d'Alene Basin Superfund site.

Yet, when EPA's Record of Decision (ROD) for the Basin was published, in September, 2002, it appeared that the Lake would get fast-track treatment from EPA and be "de-listed" (EPA's term for removing a site from that agency's National Priorities List or Superfund designation) from the rest of the Basin Superfund site in short order. De-listing, EPA said, would follow the emplacement of a credible Lake Management Plan.

Now, little more than a half-year later, the unfolding story of the Lake's Superfund status appears considerably less straightforward. The devil is in the details, and recent communications suggest Lake Coeur d'Alene may be a part of the Basin Superfund site for a long time to come.

The Governor, The Lake, and The ROD

There can be little doubt that the protection of Lake Coeur d'Alene's status was uppermost in Governor Dirk Kempthorne's attentions when, last September, his administration wrote the State of Idaho's "Letter of Concurrence" regarding the EPA's ROD for the expanded Coeur d'Alene Basin Superfund site. Kempthorne's letter -- a copy of which is bound into the final printing of EPA's ROD -- wasted little time before speaking directly to EPA Administrator Christine Todd Whitman regarding the Lake:

"We wholeheartedly support your public comments affirming what we already know and what science has told us, namely that Lake Coeur d'Alene is 'drinkable, fishable, and swimmable' and that the Lake does not warrant treatment under the federal Superfund law. Indeed, we toasted the occasion of your formally joining the Basin Environmental Improvement Project Commission...by drinking water taken straight from Lake Coeur d'Alene." (Kempthorne letter, page 1) The body of Kempthorne's letter was divided into two parts: part one listed "points of agreement" with EPA's Superfund plan and part two listed "points of disagreement." The top item in each of these two parts referred to the Lake.

Under "points of agreement," Kempthorne stated flatly: "The Selected Remedy calls for no Superfund treatment of Lake Coeur d'Alene" (Kempthorne letter, page 3). "The ROD specifically provides," Kempthorne concluded, "that Lake Coeur d'Alene will be managed outside of Superfund under the locally prepared and implemented Lake Managment Plan. Idaho will focus its efforts on finalizing amendments to the Plan and move ahead with its implementation as soon as possible."

Under "points of disagreement," Kempthorne declared that although the Lake met the criterion for being included in the Bunker Hill Superfund expansion (i.e., because it was a place where contaminants have come to be located), nevertheless: "Idaho is opposed...to any identification of the lake as part of a 'Superfund site' and will pursue administrative actions to make clear that the Lake is not presently nor in the future ever identified as part of a 'CERCLA site'" (Kempthorne letter, page 4, emphasis in the original).

Note that the governor did not specifically say that the Lake "was not a CERCLA site" but instead that Idaho would resist any "identification" of the Lake as a CERCLA site. Public perception and not actual regulatory status was at stake here.

When EPA's ROD was published in September, 2002, the governor might well have drawn some satisfaction from that document's apparent handling of the Lake.

EPA's ROD had obliged the governor regarding public perception. The agency erased any indication of a perimeter around the proposed expanded Superfund site, substituting instead maps that merely highlighted Superfund work sites in the future plan. In terms of EPA's new cartography, at least, the ROD left the Lake's Superfund status unclear.

Incidentally, the new ROD's mapping also in effect retired the EPA's pre-ROD claim to a 1,500-square-mile expanded Superfund area -- a claim that may have served in part to emphasize its damage claims down at the NRD trial in Boise.

The ROD's text and tables also appeared to grant Kempthorne's wishes.

Section 12 of the ROD laid out the Superfund plan's "Selected Remedies" -- i.e., the remedial actions to be put into effect by this ROD for the Coeur d'Alene Basin. Section 12.3, therein, addressed Lake Coeur d'Alene specifically; it began: "Coeur d'Alene Lake is not included in the Selected Remedy. State, tribal, federal, and local governments are currently in the process of implementing a lake management plan outside of the Superfund process using separate regulatory authorities."

Table 12.0-1 in the ROD summarized the Selected Remedies for five major elements of the new Superfund site including estimates of associated capital costs, O&M costs, and total costs. For Lake Coeur d'Alene, the table merely repeated that it was "not included in the Selected Remedy" and no costs of any kind were listed. Without budgeted funds, one would assume, no Superfund actions were contemplated in the ROD.

Did Kempthorne get his wish? Did Lake Coeur d'Alene successfully dodge the Superfund bullet?

Not quite.

The Tribe, the U.S. Supreme Court, and the Addendum

One reason is a U.S. Supreme Court decision.

In June, 2001, the Coeur d'Alene Tribe was awarded ownership of the southern one-third of the Lake by the Supreme Court.

Not surprisingly, the Tribe's new ownership of a portion of the Lake shifted more political leverage into their hands.

By January, 2002, the Tribe had signed a Memorandum of Agreement with Idaho DEQ to review and amend the pre-existing Lake Management Plan, a document first created in 1995.

As it happens, the Tribe had not been an advocate of EPA's plan to hive off responsibility for the Lake to a locally administered Lake Management Plan, which idea had been earlier presented in the EPA's Proposed Plan (the draft and for-comment precursor to the ROD) for the Cd'A Basin published in October, 2001.

The Tribe's comment on the Proposed Plan stressed both (1) that the EPA's Lake plan represented an unfunded federal mandate (one transferring the financial burden of Lake monitoring and management to the Tribe, the State, and lakeshore communities and residents) and (2) that the EPA's departure from the Lake would rob the LMP of the regulatory muscle necessary to insure compliance with the plan's requirements. On both grounds, the Tribe preferred Superfund authority and funding for the Lake's management over a non-Superfund, locally administered arrangement.

(Incidentally, not the least ironic aspect of the new situation was that the Tribe's new sovereignty over a portion of the Lake was immediately exerted on behalf of the imposition of enduring federal authority -- in the form of the EPA and its CERLA powers -- over the Lake's environmental management.)

The Tribe -- no great fan of the non-Superfund, LMP approach -- became co-responsible with the Idaho DEQ for the development of a revised LMP only a month or so after the publication of EPA's Proposed Plan.

It was like making Abe Lincoln co-chair of the Southern secession.

EPA was not unaware of the key role the Tribe was now going to play in the new Lake Management Plan endeavor, and the agency doubtless took comfort from the fact that the Tribe advocated EPA's continuing authority.

Though the new arrangement was not emphasized therein, the ROD's "responses to comments" section acknowledged the existence of a Memorandum of Agreement between DEQ and the Tribe regarding the Lake Management Plan. The ROD described (see EPA's reply to comment #357):

"Recently the State of Idaho and the Coeur d'Alene Tribe signed a Memorandum of Agreement to form a committee to evaluate the Coeur d'Alene Lake Management Plan. The new committee will evaluate the plan and its implementation, taking into account any new or additional information, legal or regulatory decisions and remedial activities that have occurred since the plan was adopted. The evaluation process will consider the current long-term appropriateness, implementability, and effectiveness of the plan. EPA anticipates all relevant, potentially-affected parties will be involved in evaluating the Lake Management Plan to help ensure its success, whether as a designated party in the committee or not." This new exercise resulted in a draft Addendum to the Lake Management Plan, dated (in its online draft version) December 23, 2002.

Not surprisingly, the Addendum took a more aggressive attitude toward the Lake's environmental management than the previously existing Lake Management Plan.

Moreover, the Addendum stressed the EPA's continuing oversight responsibilities vis-a-vis the Lake -- even regarding a future, de-listed Lake. Instead of embracing the Lake Management Plan as an escape hatch from Superfund designation and control -- along the lines of the governor's expectations -- the Addendum took pains to fully articulate the regulatory basis of EPA's continuing Superfund salience. For example, a passage in the Addendum (see page 37) spelled out EPA's monitoring authority:

"The remedy selected by the Coeur d’Alene Basin ROD recognizes that contamination will remain on-site into perpetuity. As such, there are legal requirements for environmental monitoring when, upon completion of a remedial action, hazardous substances, pollutants, or contaminants will remain on-site. Under Section 121(c) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 and under the Superfund implementation regulations, if contamination remains on-site then post-response reviews are required every five years in perpetuity to ensure protection of human health and the environment. CERCLA states that the focus of the five-year review should be an assessment of monitoring data to evaluate whether the remedy continues to provide for adequate, risk-based protection of human health and the environment (40CFR 300.430 (f) (4) (ii), (2002)). Additional authority regarding monitoring gives the U.S. EPA authority to undertake monitoring to identify threats (42 U.S.C. 9604(b)) and defines remedial actions as inclusive of any monitoring reasonably required to ensure that such actions protect the public health, welfare, and the environment." Lincoln didn't favor secession.

Beyond the Addendum's welcoming disposition toward a continuing Superfund role and authority, the draft document proposed an annual monitoring budget of between $400,000 and $450,000 per year, a significant fraction of which funds would likely go to the Tribe for monitoring services. And though the EPA made clear in the ROD that CERCLA funding will not cover Lake Management Plan expenditures, subsequent EPA communication revealed that EPA supplied CERCLA funds to the State of Idaho and the Coeur d'Alene Tribe to support the development of the Addendum.

Mr. Gearheard's Letter

On March 25th, 2003, EPA's Region 10 office in Seattle sent Stephen Allred and Ernest
Stensgar a letter stating that agency's disposition toward the draft Addendum authored by DEQ and the Tribe. Mr. Allred is Director of the Idaho Department of Environmental Quality and Mr. Stensgar is Chairman of the Coeur d'Alene Tribe. Region 10's letter was signed by Michael F. Gearheard, Director, Environmental Cleanup Office.

EPA's letter in effect described the hoops the Lake must jump through in order for EPA to proceed with de-listing.

A number of previously less apparent aspects of EPA's perspective on the Lake took clearer form in Gearheard's letter.

For one, Gearheard explained that September, 2002 ROD had not actually selected the Lake Management Plan as its remedy for the Lake but instead deferred that decision pending the development and ratification of a satisfactory LMP by all parties involved.

Deferring the decision (instead of making it outright) retained EPA's powers to (1) judge the quality of the LMP and (2) judge the quality of the plan's ratification by the parties involved. Such an approach also reserved to EPA the option to pull back from the LMP entirely and proceed under the agency's own steam in addressing whatever problems it perceived in the Lake.

By implication, the ROD's apparent decision to entrust the Lake to a Lake Management Plan was not a guarantee to the governor but merely a contingent plan.

Gearheard also asserted that "...the implementation of remedial actions in the Coeur d'Alene Basin needs to have begun before EPA will propose 'no further action' for the Lake." He elaborated:

"Because the Coeur d'Alene River is the primary source of metals contamination in the Lake, implementation of the source control remedial actions in the upper basin is essential to any decision regarding the Lake. The 2002 OU3 [i.e., "Basin"] ROD identified interim, long-term response actions for the river basin. Likewise, a 2001 OU2 ROD amendment [i.e., "Bunker Hill Mine Water"] identified upgrades to the Central Treatment Plant which treats highly contaminated mine drainage from the Bunker Hill Mine and prevents this discharge from entering the South Fork Coeur d'Alene River." In effect, Gearheard positions the Lake Management Plan as a monitoring device for the effectiveness of upper Basin Superfund activities aimed at reducing "metals contamination" in the Coeur d'Alene River.

Gearheard's framing of this role for the LMP harbors at least three notable implications:

First, EPA has maintained for some time that the top priority in the first five years of the Basin Superfund plan is yard remediation (an activity only indirectly related to surface water quality). It may follow that the beginning of the de-listing process will have to await the time when the bulk of Superfund expenditures address the Coeur d'Alene River -- that is, something like a half-dozen years down the road.

Second, as river-related remediations commence, the efforts to improve river water quality may increase the apparent contamination levels measured in the new Lake monitoring process.

Third and finally, EPA itself retains control over the Central Treatment Plant (CTP), which contributes the lion's share of "metals contamination" to the South Fork. Hence EPA's own priorities and actions may figure large in whether the measurements gathered by the LMP will prove to be favorable or unfavorable.

All three factors -- delayed start, distorted measurement, and EPA's control over CTP activities -- suggest the full transfer of oversight to the LMP and the de-listing of Lake Coeur d'Alene may be a long time coming.

Gearheard's letter also shed new light on the process by which the Lake would ultimately be de-listed. He wrote, inter alia, "EPA must have concurrence to proceed with a partial deletion from both the State of Idaho and the Coeur d'Alene Tribe, as the governments having jurisdiction over the Lake." I emphasize: "must have" is the verb phrase in his assertion.

In short, a player that has to date shown no particular affection for the prospect of de-listing the Lake -- the Tribe -- will, according to Gearheard's assertion, will be placed in a position to veto the de-listing actually taking place.

A final irony: Partial de-listing -- i.e., de-listing a segment but not all of a Superfund site -- is a relatively new option in EPA's Superfund processing, introduced in 1995. As it happens, the partial de-listing process brings with it strict mapping requirements according to EPA's guidelines. Both the exact boundaries of the full Superfund site and the exact boundaries of the segment to be de-listed must be fully mapped.

The very concession Kempthorne won regarding obscuring of the Lake's Superfund status (by excising maps showing a Superfund perimeter) will need to be withdrawn -- at least temporarily -- if Lake Coeur d'Alene is ever to be de-listed.

Bottom Line

Despite Kempthorne's stalwart efforts and the ROD's seeming acquiescence to his wishes, the Tribe's new leverage, the draft Addendum, and Michael Gearheard's letter suggest that Lake Coeur d'Alene may not be de-listed for a long time.