Guest opinion...

Vanishing voluntary participation

by Ron Roizen
March 2, 2007

Four-and-a-half years have passed since the EPA issued the September, 2002 Record of Decision (or “ROD”) that expanded the original 21-square-mile Box Superfund site around Kellogg into the much larger area of the Coeur d’Alene River Basin.

In my opinion, then-governor Dirk Kempthorne did a feeble job of protecting the CDA Basin community’s interests in the days and weeks leading up to the EPA’s issuance of the ROD.  In November 2001, the governor got a standing ovation from a Wallace audience when he said that he was getting so frustrated with EPA that he was on the verge of asking them to leave Idaho.  Yet, the governor thereafter proceeded to sign-off on the ROD with little more than a whimper of protest.

There was, however, one significant element of victory for the Silver Valley community in the governor’s “letter of concurrence” regarding the ROD.  The governor asserted that since there was no health emergency in the Basin therefore the human health aspect of the ROD – that is, the yard remediation program – should be voluntary.  He wrote:  “We will only support voluntary actions in this program” (italics in the original; ROD, letter of concurrence section, page 5).

The EPA, for its part, included the governor’s letter of concurrence, including the governor’s request for a voluntary yard program, in the ROD document.  The text of ROD that EPA was responsible for writing, however,  made no mention of the voluntary principle one way or another.  

Yet, and happily, other EPA and Idaho Department of Environmental Quality (DEQ) documents did express a commitment to voluntary participation.

An EPA FACT SHEET for the CDA Basin site published in September, 2002 and announcing the issuance of the new ROD provided a summary of the ROD’s human health remediation plan.  The text noted that this plan would begin with “…voluntary testing of residential soils in the communities east of Kingston, Idaho” (page 4).  

An DEQ FACT SHEET distributed to home owners immediately before the publication of the EPA ROD used a Q&A format, which included the following:  “Q:  Why would I want to participate in the sampling program?  [A:] The choice is yours, since participation in the sampling program is voluntary.”  

The consent form used by yard samplers (“Basin Yard Sampling Consent for Access to Property”) emphatically affirmed the voluntary character of yard testing and remediation.  It said, on behalf of the homeowner, in part:  “I further understand that my participation is entirely voluntary and that I may withdraw my consent at any time.  If I chose not to participate, there will be no penalty.”
Not surprisingly, the governor’s voluntary understanding and condition readily passed into the system of citizen expectations surrounding the Basin Superfund enterprise.  

Lately, however, the voluntary principle has been quietly undergoing significant erosion.

Three recent indications of this trend are notable.

First, a basin-wide Institutional Controls Program (ICP) has been approved by the Idaho state legislature.  The objection that a basin-wide ICP violated the principle of voluntary participation in the Basin Superfund cut no ice with either Shoshone County’s commissioners or the Idaho state legislature, although Senator Joyce Broadsword had the good sense and courage to steadfastly oppose the ICP’s passage.  

The second and third indications come from EPA’s responses to several inquiries regarding the Basin Superfund recently posed by Terry Harwood, the Executive Director of the Basin Environmental Improvement Commission.

One of Harwood’s queries asked in part whether landowners in the Basin and the Box are protected from CERCLA (or Superfund) liability by abiding by the ICP rules.  EPA’s response suggested that following the ICP’s rules was an important obligation of landowners.  

The EPA’s response elaborated as follows:

In general, EPA has the authority to exercise its enforcement discretion by choosing not to initiate an enforcement action against an owner of non-mining related property (residential or commercial) within the Box or Basin, if such an owner meets the following:
complies with the ICP program;
cooperates with EPA’s and the State of Idaho’s cleanup efforts;
provides EPA and the State with access for the purpose of determining whether to perform response actions, performing response actions on his or her property, and monitoring the effectiveness of response actions undertaken on the property; and
does not exacerbate or contribute to the mine waste contamination within the Box or Basin.

This bulleted list of actions that EPA says will protect homeowners from CERCLA liability makes no mention of the voluntary principle.  Indeed, the list suggests that a homeowner who does not allow sampling in his or her yard – that is, participate in the yard program -- will be more vulnerable to liability.

It gets worse.

Harwood questioned EPA about the circumstances under which individual communities in the Basin might start the process of being de-listed (that is, removed from Superfund status) by EPA.  

He also, and more specifically, asked the following:  “Can an incorporated community be deleted if there are residential and/or commercial properties within the community that have refused to be tested or remediated?”

EPA replied as follows:

“If a community includes residential or commercial properties that have not been sampled due to a property owner’s refusal, it will be difficult for EPA to determine that all appropriate response actions have been taken and that no further response actions are appropriate.  Without this determination, which is required by the NCP, deletion of a portion of the site from the NPL cannot happen.”

Once again, the EPA’s previous commitment to voluntary participation makes no appearance in their reply.  Homeowners who chose not to participate may at some time in the future be cast in the role of barriers to de-listing.

Was perhaps the voluntary language and practices that EPA employed at the beginning of the Basin Superfund’s reign merely a convenient way to cool out early resistance or uncertainty in the community?

More broadly, when an agency like EPA -- with the power to compel citizens and even to pauperize or imprison -- goes back on its assurances that the yard program in the Basin is voluntary, what is the appropriate response of those of us who trusted EPA that we were free not to participate?

The voluntary principle in the yards program, it appears, may before very long become a thing of the past.