SHOSHONE NEWS-PRESS, Nov. 28, 2002, pp. C1, C7.
ROD consolidates EPA grip on Cd'A Basin
By RON ROIZEN
SNRC Science Committee
The publication of the Environmental Protection Agency Record of Decision -- or ROD -- for the Coeur d'Alene Basin in September 2002 closed a chapter in local history. The ROD consolidated EPA's 30-year regulatory grip on the Basin.
The ROD also offered a picture of EPA's final and official assessments of basin human health and eco problems, and EPA's selected remediation plans. The ROD therefore in addition illuminated how much or how little EPA elected to incorporate local input into its final statement.
The ROD also provided detailed final responses to hundreds of comments submitted by basin residents and institutions -- and these also shed new light on EPA's dispositions and conceptual commitments.
This is the first in a series of articles in which I'd like to offer brief overviews of where the ROD and recent post-ROD experience have left us vis-a-vis EPA at this historical moment.
In the present article, I take up the key issue of voluntarism in human health and yard remediation. Future articles will deal with other topics raised in the ROD.
Are basin residents and homeowners obliged to have their yards tested and (if tested above EPA's criterion for lead contamination) obliged to allow their yards to be remediated?
In his letter of concurrence with the ROD, Gov. Dirk Kempthorne made a point of stressing that there was no public health emergency in the basin and therefore that EPA's human-health enterprise should be conducted on a voluntary basis only. It bears noting that these remarks were placed in a section of his letter titled "Points of Disagreement with the Selected Remedy."
Kempthorne's human-health views and his letter as a whole were reprinted in the ROD, along with other letters of concurrence from other interested parties.
Does this mean that voluntariness is assured?
Nowhere in the text of EPA's ROD document does EPA clearly and plainly acknowledge that it is bound by Kempthorne's commitment to voluntarism re human health remediation plans. For their part, Region 10's EPA brass shied away from addressing the voluntarism issue by declining even to say where exactly the basin's Superfund perimeter lies -- thus making it difficult, if not impossible, for a basin resident to know whether his/her dwelling is specifically inside or outside the Superfund site.
Regarding boundary definition, EPA officials have confined themselves to repeating what has become a mantra: namely, that the basin Superfund site extends to and includes places "where contaminants have come to lie."
Obviously, the only way EPA or anybody else can know whether the lead concentrations exceed EPA's action standards is via testing. But what about citizens who are disinclined to yard testing -- whether because they distrust EPA's science, because they have seen no elevated blood lead or lead-related health problem in their children, or for whatever reasons? Will the properties of those who decline testing be regarded as inside or outside the basin Superfund site? There lies the crux of the voluntarism issue.
EPA has offered no clear answer to this obvious and crucial question. On at least one public occasion, Region 10 Director, John Iani, commented that he wasn't going to touch it -- meaning, at least as I read him -- that the question was a political hot potato with no bureaucratically safe answer.
Idaho's Department of Environmental Quality, however, has been less shy.
The DEQ distributed a flyer in the Silver Valley early this past summer recruiting residents to test their yards. Incidentally, its flyer and yard testing project were questionable enterprises from the start given that the new Basin Environmental Improvement Commission (BEIC) was ostensibly already in charge of orchestrating basin environmental cleanup -- according to the announcement of the commission's mission by the governor, Mr. Iani, and other BEIC members on April 12, 2002 at a Coeur d'Alene ceremony. The fledgling BEIC did not authorized Mr. Allred's yard testing/remediation program. Indeed, when the BEIC decided not to include yard testing/remediation in its first proposal to EPA for funding, Mr. Allred simply did an end run around the BEIC's preference with his own project fueled by DEQ's own funds.
Whatever DEQ's authority for the project, the flyer DEQ distributed to Silver Valley residents made unmistakably clear that the reluctant citizen vis-a-vis yard testing was placing them [sic, i.e., him- or herself] in a perilous position. Although the text specifically said testing was voluntary, the flyer made it plain (a) that real estate transactions might be unfavorably affected by declining to be tested and (b) that a defined boundary around the EPA's Superfund site actually existed and the flyer-recipient's property lay inside that boundary.
One of the bullet items offered in the flyer asserted: "The fact that your property is located within the proposed cleanup area may affect property sales." In other words, even if EPA could not draw an explicit boundary around the newly extended Superfund site, DEQ assumed a boundary existed and that the boundary included the entire CDA basin.
The following bullet item elaborated:
Information concerning your property's location within the proposed cleanup area boundary must be disclosed to a potential buyer, regardless of whether or not sample information exists. Having sample data may actually exclude you from cleanup actions if the lead and arsenic levels are below the action limits.
The State -- in the form of Mr. Allred's DEQ -- in substance asserted that the fact of residence in the Coeur d'Alene Basin upriver of the Lake implied inclusion in EPA's Superfund boundary. Moreover, the implied default assumption for untested property was that it fell inside the Superfund boundary. The program was voluntary all right, but nonparticipation faced the homeowner with the same real estate disadvantage as the homeowner whose yard had tested positive.
Where then does all this leave us, the citizens and homeowners of the basin? I'm afraid it leaves us with a unhappy irony.
The governor demanded a voluntary approach to human health and yard remediation in the basin, but his demand somehow did not manage to alter DEQ plans. EPA, on the other hand, neither embraced nor disavowed Kempthorne's demand for voluntarism condition, and perhaps happily assumed that Mr. Allred would continue his autocratic practices no matter what the governor thinks or says. Finally, the BEIC -- ostensibly created to bring local concerns to the basin cleanup -- neither bothered (a) to object to the DEQ's coercive and self-serving shaping of the voluntarism issue nor (b) to point out the discrepancy between the governor's demand for voluntarism and DEQ's lip-service-only treatment of that demand.
By reifying a Superfund boundary that EPA itself declined to inscribe, Mr. Allred managed to outdo EPA in terms of coerciveness toward basin residents and, in so doing, turned a deaf ear toward the governor's demand for voluntarism.
Email Ron Roizen at firstname.lastname@example.org -- for more, see Roizen's web site at