.
/ OFFICE OF INSPECTOR GENERAL
Catalyst for Improving the Environment
Ombudsman Report
Ombudsman Review of
Bunker Hill and Coeur d'Alene
Basin Superfund Actions
Report No. 2004-P-00009
March 24, 2004
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Report Contributors:
Eileen Collins
Kimberly Crilly
James Huber
Fran Tafer
Abbreviations
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act
EPA Environmental Protection Agency
MO A Memorandum of Agreement
NCP National Contingency Plan
NPL National Priorities List
OIG Office of Inspector General
OU Operable Unit
ROD Record of Decision
Cover photo:
Aerial photo of former Bunker Hill smelter facility in northern Idaho
(Photo from EPA Region 10's Bunker Hill web page).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
March 24, 2004
MEMORANDUM
SUBJECT: Ombudsman Review of Bunker Hill and Coeur d'Alene Basin
Superfund Actions
Report Number 2004-P-00009
FROM: Paul D. McKechnie / s /
Acting Ombudsman
Office of Congressional and Public Liaison
TO: L. John lani
Regional Administrator, Region 10
Attached is our final report on our review of complaints regarding the Bunker Hill and Coeur
d'Alene Basin conducted by the Office of Inspector General (OIG). We undertook this work as a
result of issues brought to the attention of the former Environmental Protection Agency (EPA)
Ombudsman and, subsequently, the OIG Acting Ombudsman, by citizens in Idaho and
Washington State. There is local and Congressional interest in the citizens' issues.
This report contains findings and recommendations that describe needed improvements the OIG
has identified and the corrective actions the OIG recommends. This report represents the opinion
of the OIG and the findings contained in this report do not necessarily represent the final EPA
position. Final determinations on matters in this report will be made by EPA managers in
accordance with established audit resolution procedures.
On February 18, 2004, the OIG issued a draft report to EPA's Region 10 for review and
comment. On March 3, 2004, we met with the Agency to answer questions and discuss the draft
and the Agency's expected comments. We received the Agency's response to the draft report on
March 15, 2004. The Agency's comments in their response to the draft focused on the accuracy
of the report and provided suggestions for clarifications. In general, the Agency agreed with our
report and its findings and recommendations. We provide a summary and general evaluation of
Agency comments and our response at the end of each section of this report. We include the full
text of EPA's comments in Appendix A.
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The findings in this report are only applicable for OIG Ombudsman purposes. Additionally,
these findings are not binding in any enforcement proceeding brought by EPA or the Department
of Justice under the Comprehensive Environmental Response, Compensation, and Liability Act
to recover costs incurred not inconsistent with the National Contingency Plan.
We have no objection to the further release of this report to the public.
Action Required
In accordance with EPA Manual 2750, you are required to provide this office with a written
response within 90 days of the final report date. The response should address all
recommendations. For corrective actions planned but not completed by the response date, please
describe the actions that are ongoing and provide a timetable for completion. Reference to
specific milestones for these actions will assist in deciding whether to close this report in our
assignment tracking system.
If you or your staff have any questions regarding this report, please contact me at
(617) 918-1471 or Fran Tafer, the Assignment Manager, at (202) 566-2888.
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Executive Summary
The Environmental Protection Agency (EPA) Office of Inspector General (OIG)
conducted a review of issues that citizens brought to our attention regarding the
Bunker Hill Superfund site and the surrounding Coeur dAlene Basin area, located
primarily in northern Idaho. Many of the issues raised involved scientific
concerns that are being considered by a National Academy of Sciences study
approved and funded by Congress and contracted for by EPA, and we presented
the citizens' scientific concerns to the Academy. We then grouped the remaining
citizens' concerns into four main issues for our review. Following are those
issues and what we found regarding each.
1. Site Listing: Did EPA follow laws and regulations in listing the site? Also, why were the
areas outside the "Box" (those areas included in Operable Unit 3, also known as the Basin) not
included in the original cleanup work?
We found that EPA followed laws and regulations in listing the site. We
concluded that EPA made a logical decision to first do cleanup work in the
Bunker Hill Box and then later to study areas outside the Box and pursue further
cleanup work on specific targeted areas in the Coeur dAlene Basin. EPA is
permitted, and chose, to address the most critical areas first, and we consider that
a logical decision. In the interest of being open to the public, we recommend that
EPA post this report and any relevant, related information on its web site.
2. Basin Commission: Did the Comprehensive Environmental Response, Compensation, and
Liability Act authorize the Coeur dAlene Basin Commission to plan, prioritize, and perform
response/remedial actions, as specified in the September 2002 Record of Decision?
The Act does not address the creation of an independent body, like the Basin
Commission, to plan, prioritize, and perform response/remedial actions.
However, the National Contingency Plan - the Federal Government's blueprint
for responding to hazardous substance releases - encourages the involvement of
organizations to coordinate responsible party actions; foster site response; and
provide technical advice to the public, Federal and State governments, and
industry. We concluded that the Basin Commission, as a coordinating body, is
allowed under the National Contingency Plan definition. We recommend that
EPA Region 10 both clarify its relationship, under CERCLA, to the Basin
Commission and encourage the Commission to clarify its exact status to its
members and other stakeholders.
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3. Lake Management Plan: Did the Coeur d'Alene Lake Management Plan adequately address
cleanup under the Clean Water Act? Will the actions listed in the Plan support an EPA decision
to conduct a partial deletion of the Lake from the National Priorities List? How will the Plan be
implemented without mandatory dedicated funding (also referred to as the "unfunded mandate"
issue)?
We concluded that the Coeur d'Alene Lake Management Plan could better
address cleanup under the Clean Water Act. The management actions
recommended in the Plan lack detail. Also, the actions proposed in the Plan do
not fully support an EPA decision to conduct a partial deletion of the Lake from
the NPL. Further, due to the lack of dedicated funding for Plan implementation,
EPA, the State of Idaho, and the Coeur d'Alene Tribe should come to some form
of consensus about the dedication of funds to pay for the implementation of the
Plan. In our recommendations, we encourage better implementation of the Plan,
that an attempt be made to resolve disagreement on who will pay for remedial
actions, and that some form of consensus be reached on the dedication of funds.
4. Community Involvement and Economic Aspect: Did EPA properly follow laws and
regulations in handling community involvement during the Superfund process at Bunker
Hill/Coeur dAlene? Did EPA take steps to alleviate the economic downturn in Shoshone
County?
We concluded that the quantity of past community involvement has met
standards. We found many instances where EPA took positive steps to involve
the community. We found EPA followed laws and EPA regulations and guidance
on community involvement, and we noted considerable input by the community
for the remedial design work for the overall Coeur d'Alene Basin. Also, we found
evidence that EPA took steps to help alleviate the economic downturn in
Shoshone County, which includes the Bunker Hill Box and much of the Coeur
d'Alene Basin.
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Table of Contents
Executive Summary i
Introduction
Purpose 1
Background 1
Scope and Methodology 3
Results of Review
1. Site Listing 5
2. Basin Commission 8
3. Lake Management Plan 11
4. Community Involvement and Economic Aspects 15
Appendices
A. EPA Response to Draft Report 19
B. Distribution 25
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Introduction
Purpose
The Environmental Protection Agency (EPA) Office of Inspector General (OIG)
conducted a review of issues that individual citizens and citizens' groups brought
to our attention regarding the Bunker Hill and Coeur dAlene Basin site in
northern Idaho. The goal of the OIG Ombudsman is to independently review and
report on public concerns regarding EPA activities, including Superfund issues.
Based on the issues raised, our objectives were to determine:
1. Did EPA follow laws and regulations in listing the site? Also, why were
the areas outside the "Box" (those areas included in Operable Unit 3, also
known as the Basin) not included in the original cleanup work?
2. Did the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) authorize the Coeur dAlene Basin Commission
to plan, prioritize, and perform response/remedial actions, as specified in
the September 2002 Record of Decision?
3. Did the Coeur dAlene Lake Management Plan adequately address
cleanup under the Clean Water Act? Will the actions listed in the Plan
support an EPA decision to conduct a partial deletion of the Lake from
the National Priorities List (NPL)? How will the Plan be implemented
without mandatory dedicated funding (also referred to as the "unfunded
mandate" issue)?
4. Did EPA properly follow laws and regulations in handling community
involvement during the Superfund process at Bunker Hill/Coeur d'Alene?
Did EPA take steps to alleviate the economic downturn in Shoshone
County?
Background
Mining within the Coeur dAlene Basin began more than 100 years ago. It
generated tailings (low grades of mining ore remaining after minerals are
extracted), waste rock, concentrates, and smelter emissions. These wastes contain
hazardous substances, including arsenic, cadmium, lead, and zinc. In addition, the
water that drains from many abandoned adits (almost horizontal entrances to
mines), as well as seeps, contain elevated levels of these metals.
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Until 1968, most tailings were discharged directly into the South Fork of the
Coeur d'Alene River or its tributaries. Since 1968, tailings have been impounded
or placed back in the mines, and current mining practices contribute relatively
little to the Coeur d'Alene River system compared to existing contamination
resulting from pre-1968 practices. An estimated 62 million tons of tailings had
been discharged to streams prior to 1968, containing an estimated 880,000 tons of
lead and more than 720,000 tons of zinc. Water concentrations of metals such as
arsenic, cadmium, lead, and zinc have increased.
These practices have contaminated substantial portions of the Basin with
concentrations of metals that are potentially hazardous to humans, animals, and
plants. To deal with these threats, EPA has taken several actions. In 1983, EPA
placed the Bunker Hill Mining and Metallurgical Complex on the Superfund NPL.
The site includes mining-contaminated areas in the Coeur dAlene River corridor,
adjacent flood plains, down stream water bodies, tributaries, and fill areas, as well
as the 21-square-mile Bunker Hill "Box" (the Box) located in the area surrounding
the historic smelting operations (see center of map). The Box and the primary
mining source areas are located in Shoshone County, Idaho. However, much of
the contaminated lower basin and lake areas are located in Kootenai County,
Idaho. Contamination also extends into Spokane County, Washington.
\ l
,
\ I1 m
Hsetv Moumdnt PlsysiosriuHie n*9«*i
Map: Bunker Hill Box and Coeur d'Alene River Basin
(Coeur d'Alene Basin Study Area Map from EPA Region 10 web site)
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The 21-square mile box encompasses EPA's initial area of concern regarding
cleanup, and includes the mines and smelter. The Coeur d'Alene "Basin"
includes the Box plus the surrounding area in northern Idaho and parts of
Washington State. Specific areas within the Basin in addition to the Box area
have been determined to be contaminated and targeted for cleanup. The Basin is
within EPA Region 10.
EPA conducted a number of removal actions to address immediate threats to
public health. EPA identified three operable units (OUs) for cleanup within the
Bunker Hill/Coeur d'Alene Basin site, and various Records of Decision (RODs)
have been signed to initiate cleanup actions within the OUs. Specifically:
OU1: EPA signed a ROD in 1991 to initiate cleanup in the populated areas
of the Bunker Hill Box.
OU2: EPA signed another ROD in 1992 to address the non-populated areas
of the Box.
OU3: In September 2002, EPA signed an interim ROD that specified selected
interim remedial actions over the next 30 years for mining-related
contamination in the broader Coeur dAlene Basin. This interim ROD
identified anticipated costs totaling $360 million.
Scope and Methodology
Due to citizen complaints and concerns, the former National Ombudsman (then
residing in EPA's Office of Solid Waste and Emergency Response) opened a case
on the Coeur d'Alene Basin and Bunker Hill Box based on two letters from Idaho
Congressional representatives in 1999 and 2000. When the OIG acquired the
Ombudsman function in April 2002, we continued this case.
At the invitation of the Idaho Congressional delegation, the Acting Ombudsman
and OIG staff made a July 2002 trip to Spokane, WA; Coeur d'Alene, ID; and the
Silver Valley area of Idaho, including Smelterville, Wallace, and Kellogg. During
this trip, the Ombudsman and staff met with 18 citizen groups, tribes, State and
local governments, and citizens in a 3-day period to listen and try to understand
the concerns in the community.
Upon our return, we categorized the concerns and complaints into various areas
for overall review. Four of those areas were designated as our primary objectives
and are the focus of this report. Due to the breadth and volume of concerns and
questions raised, our objectives and this report sought to provide answers and
information on the categorical areas we deemed most relevant. We did not
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attempt to individually address each specific citizen or citizen's group question,
concern, or complaint. Citizen concerns regarding whether EPA or Idaho would
lead the cleanup were dropped from our review because the September 2002 ROD
designated EPA as the lead organization. We also dropped an issue regarding the
site boundary because the site boundary decision was vacated by the courts. Also,
a large number of the concerns involved scientific areas that are being considered
by a National Academy of Sciences study approved and funded by Congress and
under a contract with EPA; therefore, we did not conduct a separate review of
those concerns.
We conducted our review from July 2002 through August 2003. We researched
the files we obtained from the former Ombudsman. As mentioned above, we
traveled to the site for an overview, and we discussed issues and concerns with
citizens and citizens' groups. We interviewed key officials in Region 10 who
worked on one of the three Operable Units of the Superfund site.
We performed our Ombudsman review and analysis in accordance with
Government Auditing Standards, issued by the Comptroller General of the
United States. However, we did not review compliance with laws and
regulations, except for those laws and regulations affecting a specific issue.
Also, we did not review internal management controls concerning the CERCLA
program. Our review was limited to responding to citizen, citizen group, and
other concerns and issues, as described in our objectives. We did not seek to
reproduce or re-analyze any testing, sampling, or analysis that EPA had conducted
in reference to this site.
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Results of Review
1. Site Listing
Question: Did EPA follow laws and regulations in listing the site? Also, why
were the areas outside the "Box" (those areas included in Operable Unit 3, also
known as the Basin) not included in the original cleanup work?
We concluded that EPA made a logical decision to first do cleanup work in the
Bunker Hill Box and then later study areas outside the Box and pursue further
cleanup work on specific targeted areas in the Coeur dAlene Basin. While the
first ROD to address concerns within the Box was issued in 1991, and the ROD to
address Basin concerns outside the Box was not issued until 2002, EPA is
permitted, and chose, to address the most critical areas first. We considered
EPA's decision to perform work on the more critical areas within the Box first to
be logical.
Laws and Regulations Followed
It is common for EPA to address large and complicated sites by breaking the work
into smaller units called operable units. Usually, EPA prioritizes the most
critically needed cleanup work in such units to prioritize the cleanup. EPA signed
RODs in 1991 and 1992 for cleanup actions in Operable Units (OUs) 1 and 2,
respectively. Both units covered areas within the 21-square-mile Bunker Hill
Box, which included the Bunker Hill Mine and smelter. In 2002, EPA signed a
ROD to perform additional cleanup in the Coeur d'Alene Basin (OU 3), which
includes specific areas targeted for cleanup within a larger area surrounding the
Box.
Operable Units 1 and 2. To determine whether EPA followed laws and
regulations in listing the site, we reviewed the hazardous ranking system
scoring documents and other pertinent EPA documents. We also reviewed
EPA's decisions on determining what were the site boundaries for the
Bunker Hill cleanup. The Bunker Hill site was listed on the NPL on
September 8, 1983. The original August 13, 1982, hazardous ranking
system package for the Bunker Hill facility said that, "Site boundaries
extend from Smelterville down the Coeur dAlene River to Coeur dAlene
Lake" - within and outside the Box and within the Basin.
During our review, EPA Region 10 personnel told us the most significant
human health concerns were within the Box, so they decided to start their
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work there. EPA Region 10 added in a 1985 letter that their preliminary
study area, the Box, corresponded to the area of a 1983 health study.
However, EPA further said that as it continued its investigations, the area
of concern might expand or contract, depending on what was found.
Operable Unit 3. Later, EPA decided to further address contamination
outside the Box and within the Basin. A December 26, 1984, EPA letter
discussed that EPA may expand the study area if EPA finds extensive
groundwater contamination coming from beyond the study boundaries.
Approximately a year after EPA's NPL site listing, EPA stated in a 1984
letter that releases exist outside the Box. In 1998, EPA initiated a
remedial investigation and feasibility study for areas outside the Box but
within the Coeur dAlene Basin. On September 12, 2002, EPA signed an
interim ROD that specified selected interim remedial actions over the next
30 years for the broader Coeur dAlene Basin. This interim ROD presents
an incremental cleanup strategy for protecting human health and the
environment in the Upper and Lower Basins of the Coeur dAlene River
and the Spokane River Basin west of the Idaho border.
According to EPA, scientific and sampling studies justified the need for
further remedial cleanup work outside the Box. Citizen concerns and
doubts about the decision to clean up the Basin prompted a request by the
Idaho Congressional delegation for a re-examination of these studies. The
National Academy of Sciences is currently conducting a study of EPA's
Basin assessment and cleanup decisions.
Recommendation
1-1 In the interest of being open to the public and getting wide dissemination
of useful information, we recommend that EPA Region 10 post a copy of
this report and the finalized National Academy of Sciences study on the
EPA Superfund Coeur d'Alene Basin web site to ensure availability to
citizens.
Agency Comments and OIG Response
The Agency's comments on section 1 of the report (and the Executive Summary,
Background, and Scope and Methodology) focused on the accuracy of the report
and provided suggestions for clarifications. In response to Agency suggestions,
we made revisions to the report where appropriate. For example, we replaced a
site map in the draft report with a Region 10-suggested map that is more inclusive
in relation to the States involved and the area covered. We should note here that
specific page numbers and references in the Agency's response (located at
Appendix A) to the OIG draft report may or may not relate to page numbers and
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references in the final report. EPA indicated that it will respond to the specific
recommendation after the final report is published.
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2. Basin Commission
Question: Did CERCLA authorize the Coeur d'Alene Basin Commission to
plan, prioritize, and perform response/remedial actions, as specified in the
September 2002 ROD?
CERCLA does not address the creation of an independent body, like the Basin
Commission, to plan, prioritize, and perform response/remedial actions.
However, the National Contingency Plan (NCP) - the Federal Government's
blueprint for responding to hazardous substance releases - encourages the
involvement of organizations to coordinate responsible party actions; foster site
response; and provide technical advice to the public, Federal and State
governments, and industry. We believe the Basin Commission, as a coordinating
body, is allowed under the NCP definition in order to foster site response.
Basin Commission as a Coordinating Body
In 2001, the State of Idaho passed the Basin Environmental Improvement Act,
codified at Title 39, Health and Safety, Chapter 81. The Act sets forth the
responsibilities, authorities, and limitations of the Basin Environmental
Improvement Project Commission (Basin
Commission). The purpose of the Commission
was to fulfill the Basin work plan, which Board of Commissioners
consisted of EPA's RODs and other measures
related to heavy metal contamination. The \ ^nijed f™f Government
J 2. State of Idaho
board of commissioners is made up of seven 3 state of Washington
representatives from various Federal, State, 4. Shoshone County
tribal, and local governments, as shown in the 5- Kootenai County
accompanying box. Powers have been given to ,' ~eneWj,AI °UIV.,
F J ° ° 7. Coeur dAlene Tribe
the Commission by State statute to carry out the
work plan, including hiring personnel and
contracting for work.
The seven governmental agencies represented on the Commission, along with the
Spokane Tribe of Indians, U.S. Department of Interior, and U. S. Forest Service,
signed a Memorandum of Agreement (MO A) on August 13, 2002. Based on the
MO A, the Commission will coordinate work with other entities that have
jurisdiction and interest in the Basin. EPA believes that the MOA outlines the
terms of Federal participation. Further, EPA Region 10 believes that the MOA's
terms are supported by the NCP and, thus, EPA reserves the rights and
responsibilities pursuant to Federal law.
The agreement recognizes the importance of public participation in the
Commission, and the parties to the agreement agree to use the Commission as a
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vehicle to coordinate public comment and involvement. Each agency reserves its
individual rights and responsibilities that exist by law. In addition, the agreement
recognizes that it is the responsibility of the United States to "exercise
governmental authority" under CERCLA.
The Commission is unique to the ROD implementation process, providing
recommendations for the work plan to EPA even though EPA normally develops
the work plans. The Commission, through the annual and 5-year work plans,
identifies the projects, priorities, and funding needs. EPA, at its discretion, can
enter into cooperative agreements with the implementing agencies recommended
by the Commission for those projects that are funded. The NCP encourages
organizations to assist in the coordination of "responsible party actions, foster site
response, and provide technical advice to the public, federal and state
governments, and industry," although EPA has the final authority to ensure
remedial actions under its RODs are carried out.
CERCLA/NCP Authorizations
Though CERCLA does not, the NCP does define a lead and support agency as an
agency that provides an On Scene Coordinator or the Remedial Project Manager,
and notes that EPA or "a state (or political subdivision of a state)" can be a lead or
support agency. The 2002 ROD identifies the lead agency as EPA. The support
agencies identified are the Idaho Department of Environmental Quality, State of
Washington Department of Ecology, and the Coeur dAlene Tribe.
The Basin Commission was created by the Idaho legislature through a State
statute. While the Commission was given powers and responsibilities, the
Commission itself "cannot represent the State of Idaho" in negotiations "with
representatives of the State of Washington, Coeur d'Alene Tribe, and the United
States of America." However, those negotiations can be done by the Director of
the Idaho Department of Environmental Quality, the Attorney General of Idaho,
the Governor, or their representatives regarding agreements, compacts, and
participation in the commission.
Recommendation
We recommend that Region 10:
2-1 Encourage the Basin Commission to clarify its exact status, especially
including a consensus among all Basin Commission members, so that its
future actions and decisions, and especially its interactions with EPA
under CERCLA, will be based on a settled definition of the Basin
Commission's powers and abilities.
2-2 Clarify to the Basin Commission, inclusive of its board of directors and
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those who signed the MO A, the region's relationship with the Commission
under CERCLA and other applicable laws and regulations.
Agency Comments and OIG Response
EPA's comments regarding section 2 of the report focused on the accuracy and
completeness of the report and provided suggestions for clarifications. In
response to EPA suggestions, we made revisions in the report where appropriate.
For example, we included the full list of MO A signatories whereas we had not in
the draft report. EPA indicated that it will respond to the specific
recommendations after the final report is published.
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3. Lake Management Plan
Question: Did the Coeur d'Alene Lake Management Plan adequately address
cleanup under the Clean Water Act? Will the actions listed in the Plan support an
EPA decision to conduct a partial deletion of the Lake from the NPL? How will
the Plan be implemented without mandatory dedicated funding (also referred to as
the "unfunded mandate" issue)?
We concluded that the Coeur d'Alene Lake Management Plan could better
address cleanup under the Clean Water Act. The management actions
recommended in the Plan lack detail. Also, the actions proposed in the Plan do
not fully support an EPA decision to conduct a partial deletion of the Lake from
the NPL. Further, due to the lack of dedicated funding for Plan implementation,
EPA, the State of Idaho, and the Coeur d'Alene Tribe should come to some form
of consensus about the dedication of funds to pay for the implementation of the
Plan. In our recommendations, we encourage better implementation of the Plan,
that an attempt be made to resolve disagreement on who will pay for remedial
actions, and that some form of consensus be reached on the dedication of funds.
Clean Water Act
EPA noted in a March 25, 2003, letter to the Idaho Department of Environmental
Quality and the Coeur d'Alene Tribe that the Lake Management Plan should
include accountability checkpoints, a mechanism for coordination, and a timetable
for implementation. However, these actions have not been taken.
The Clean Water Act provides appropriate guidance for the development of an
adequate management plan. The Lake Management Plan could better address
cleanup if it contained some of the provisions that are listed in section 319,
Part (b), including:
• A schedule containing annual milestones for implementation of the plan.
• An adequate list and description of best management practices.
• A certification from the State Attorney General for Idaho that the laws of the
State provide adequate authority to implement the plan.
• Adequate practices and measures to reduce the level of pollution in the Lake
that result from nonpoint sources.
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Partial Deletion of the Lake from the National Priorities List
Actions proposed in the Plan and its subsequent Addendum do not fully support
an EPA decision to conduct a partial deletion of the Lake from the NPL.
EPA determined in the ROD for OU 3 that any actions to remove contamination
from the Lake's bed would have caused more dispersion of contamination within
the water column, thereby increasing the potential for harm to human and
ecological receptors. In addition, the costs of active remediation of the Lake were
prohibitive. The ROD deferred action on the Lake to the future implementation of
the Lake Management Plan to reduce the probability of additional metals
movement from the sediments at the lake bottom into the lake water. EPA agreed
to consider a "No Further Remedial Action Required" recommendation for the
Coeur dAlene Lake, and to consider a partial deletion of the Lake from the NPL,
provided that the Plan would adequately manage the contamination in the Lake.
The Plan was developed in 1995, and a draft Addendum to the Plan was released
for public comment in 2003. However, we do not consider the actions proposed
in the Plan and its draft Addendum to fully support an EPA decision to conduct a
partial deletion of the Lake from the NPL. The recommended actions made in
the Plan included the encouragement of best management practices among the
differing responsible parties, such as farmers, land developers, and forest
harvesters. It also recommended actions for monitoring lake water quality to track
the mass balance of nutrients and metals within the Lake; the health assessment of
fish, waterfowl, and other wildlife; the identification of additional nutrient loading
sources (such as from sewage and sink/shower water systems from boats and
private homes); and the beginning of stream bank stabilization projects.
However, the best management practices were not fully identified; the
identification and rectification of additional nutrient loading sources and unstable
stream banks were not mandatory; and the Plan relied primarily on education for
the accomplishment of its goals.
Further, although the Basin Commission's 2003 Work Plan implemented part of
the Management Plan by including an Education and Information Program and a
3-year Lake Monitoring Plan, the Program only provided for voluntary changes in
actions that affect the Lake's water quality, and its impact will not be known for
several years. In addition, the Lake Monitoring Plan will have no direct impact on
the Lake's water quality because it is a measure designed to record the results in
the Lake of remedial actions conducted in the streams and tributaries that feed the
Lake, and not a more proactive measure.
Unfunded Mandate
The Coeur d'Alene Tribe believes that an "unfunded mandate" was created when
EPA decided to address Coeur d'Alene Lake contamination through a Lake
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Management Plan without identifying any funding to implement it. Between
January and March 2003, the Tribe, Idaho, and EPA exchanged ideas in a group
of letters. During this exchange, the Tribe requested funds be identified for
implementation of specific projects, a long-term lake water monitoring plan, and
payment of staff to run the projects before the Plan is approved.
In addition, the EPA informed the State of Idaho that remediation activities need
to begin in the upper basin before EPA will agree to consider a partial deletion of
the Lake from the NPL, but the State is unclear whether EPA wants it to pay for
those remedial actions. Due to the current lack of dedicated funding for Plan
implementation, EPA, the State of Idaho, and the Coeur d'Alene Tribe should
come to some form of consensus about the dedication of funds to pay for
implementation of the Plan. However, the State of Idaho does not agree that
hiring of staff, or the identification of funds for specific projects, needs to be
accomplished before the Plan is approved.
Recommendations
We recommend that EPA Region 10:
3-1 Encourage the State of Idaho and the Coeur d'Alene Tribe to implement
within the Coeur d'Alene Lake Management Plan some of the
recommendations in its March 25, 2003, letter, including adding
accountability checkpoints, a coordination mechanism, and an
implementation timetable.
3-2 Clarify with the State of Idaho, and other stakeholders, who will pay for
upstream remedial actions and Lake management activities.
3-3 Work with the State of Idaho and the Coeur d'Alene Tribe to reach some
form of consensus about the dedication (or assignment) of funds or
funding sources to pay for the implementation of the Lake Management
Plan.
Agency Comments and OIG Response
We made minor corrections and wording changes the Agency suggested to clarify
Lake Management Plan issues, CERCLA and Clean Water Act laws and
guidance, EPA's actions and plans, and our recommendations. The Agency
believed it would be helpful to include EPA's view on two issues: details on Lake
Management Plan funding and EPA's belief that there is no "mandate" for a Lake
Management Plan under CERCLA. We have not added EPA's discussion on
these two issues into section 3, mainly due to their length; however, the reader
may view Region 10's comments in Appendix A.
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Additionally, though Region 10 asked us to provide more information about why
the Lake Management Plan and its draft addendum do not fully support an EPA
decision to conduct a partial deletion of the Lake from the NPL, we have not
added more information. We also do not provide specific recommendations about
what actions would be supportive of such a decision. On both these issues, we
believe it is up to the Agency to develop a method to determine which of its
recommended actions presented in the Plan must be fulfilled and how and when
implementation of these actions will enable the partial deletion approach.
Finally, the Agency made extensive comments to our "Unfunded Mandate"
subsection, regarding EPA's view on funding for upstream cleanup actions and
the Lake Management Plan, and EPA's interactions with Idaho. Region 10 asked
that we explain whether our recommendation 3-2 refers to upstream remedial
actions or lake management activities; it refers to both. We did not make any
other changes to that subsection because we believe (a) clarifying the
recommendation addresses the issues raised; and (b) EPA's response to our draft
report further demonstrates the stakeholders' differences and confusion about
funding for cleanup actions, both upstream and for the Lake Management Plan
(see Appendix A).
EPA indicated that it will respond to the specific recommendations after the final
report is published.
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4. Community Involvement and Economic Aspects
Question: Did EPA properly follow laws and regulations in handling community
involvement during the Superfund process at Bunker Hill/Coeur d'Alene? Did
EPA take steps to alleviate the economic downturn in Shoshone County?
We concluded that the quantity of past community involvement met standards.
Although citizen groups with whom we spoke expressed concern that EPA did not
seriously consider their comments about proposed actions in the ROD, we found
many instances where EPA took positive steps to involve the community. We
noted considerable input by the community for the remedial design work for OU
3. Also, we found evidence that EPA took steps to help alleviate the economic
downturn in Shoshone County.
Community Involvement
One of the goals of the Superfund program is to promote public involvement that
is informed, reasonable, thoughtful, solution-oriented, and collaborative. We
reviewed community involvement at the Bunker Hill/Coeur d'Alene Superfund
site and determined that:
• EPA developed Community Involvement Plans, as required.
• EPA conducted over 200 public meetings.
• EPA issued fact sheets and advertised significant events in the remedial
investigation and feasibility study and ROD processes.
• EPA maintained six information repositories, including an Administrative
Record at North Idaho College in Coeur dAlene.
• EPA site files contain numerous volumes of public participation and public
comments.
• The Citizens Coordinating Council is currently in place to allow citizen input
to the Basin Commission for remedial design/remedial action phase work.
Also, there is currently considerable community involvement through the
Technical Leadership Group and its Project Focus Teams. Local governments
have representatives on the Technical Leadership Group. Interested citizens
are invited to participate in the Project Focus Teams.
• The Lake Management Plan states that Technical Advisory Groups are a
vehicle for public participation.
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We found that EPA received more than 3,300 comments on the proposed Basin
Cleanup Plan from approximately 1,300 different individuals. EPA extended the
comment period twice, for a total of 120 extra days, in response to public
requests. Part 3 of the ROD contains many of the public's comments and EPA's
response to those comments.
In addition to comments noted to EPA in the ROD, two of the citizen groups we
talked to expressed concern that EPA did not seriously consider their comments
about the proposed actions in the ROD. However, as previously outlined, we
found many instances where EPA took positive steps to involve the community.
We found that EPA followed laws and its own regulations and guidance on
community involvement. Based on our review of Region 10 documentation, we
concluded that community involvement has met requirements and, furthermore,
gone beyond requirements. The inclusion of the community in efforts such as the
Citizens Coordinating Council is evidence of this involvement. Community
involvement, however, does not mean unanimous agreement.
Economic Aspects
Various steps taken by EPA should help alleviate the economic downturn in
Shoshone County. EPA has encouraged local hiring for cleanup work, issued
grants in the area, and been flexible and creative in helping the County.
According to EPA documents, up to $42 million was spent locally on labor,
materials, rentals, taxes, and utilities. EPA authorized and funded hazardous
materials training to over 100 local workers. During peak construction years on
the Box cleanup, more than 200 local people were employed. EPA also
committed $200,000 in grants to help the viability of the local economy.
EPA also provided documentation on flexible and creative ways it has tried to
help the local community. The first Superfund Prospective Purchaser Agreement
and Covenant-Not-to-Sue in the United States was used to facilitate the building
of the Silver Mountain Gondola at the Bunker Hill Box. EPA has released
Superfund Liens on both commercial and residential properties formerly owned
by Bunker Limited Partnership (and related entities such as Bunker Hill Mining
Co. and MCI) to remove potential "clouds" and allow property transfers. EPA has
also given special attention to improving the appearances of the remediated areas
by use of fertilization, seeding, and nature trails. Other projects included allowing
more useable land for future development, helping local businesses, and
supporting flood control and street projects.
In addition, EPA reduced its recovery in the Gulf Resources, Inc., bankruptcy to
ensure that a group of Gulf retirees would receive affordable medical coverage.
This benefitted the Gulf retirees whose medical coverage had been adversely
impacted by Gulfs mishandling of assets and then the bankruptcy. Gulf had
owned the Bunker Hill mine.
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We do not consider any recommendations regarding EPA's community
involvement and its role regarding the economy in the Coeur d'Alene Basin area
to be necessary.
Agency Comments and OIG Response
The Agency suggested some clarifying changes, which we made to the final
report. We dropped an introductory paragraph under the Economic Aspects
subsection and added information on the Technical Leadership Group.
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Appendix A
EPA Response to Draft Report
•SVCDST^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Ł 4% ^ REGION 10
5 -*—^- Z 1200 Sixth Avenue
^ Seattle, WA 98101
Reply To
AttnOf: RA-140
Mr. Paul D. McKechnie
Acting Ombudsman
Office of Congressional and Public Liaison
EPA Office of Inspector General
One Congress Street, Suite 1100
Boston, MA 02114-2023
RE: Draft Ombudsman Report Ombudsman Review of Bunker Hill and Coeur d'Alene Basin
Dear Mr. McKechnie:
Enclosed please find the EPA Region 10 comments on the Draft Ombudsman Report
issued by your office on February 18, 2004. These comments focus on the factual accuracy of
the report and provide suggestions for corrections and clarifications. We understand that the
final report will provide an assessment of our comments.
Thank you for the opportunity to comment on the draft report and also for your work in
responding to the concerns raised by the public regarding the Bunker Hill/Coeur d'Alene Basin
Cleanup. Once you issue a final report, EPA Region 10 will respond to your final
recommendations.
If you have any questions about our comments, please contact Sheila Eckman, the Bunker
Hill/Coeur d'Alene Basin Team Leader, at (206)553-0455.
Sincerely,
/s/L. John lani 3/15/04
L. John lani
Regional Administrator
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Printed on Recycled Paper
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Enclosure
cc: Frances Tafer, OIG
Jamie Huber, OIG
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EPA Region 10
Comments on Draft Ombudsman Review of Bunker Hill and Coeur d'Alene Basin
Superfund Actions
3/15/04
The following comments are provided on the Draft "Ombudsman Review of Bunker Hill
and Coeur d'Alene Basin Superfund Actions" The comments address factual accuracy and
provide suggestions for clarification of background information and recommendations.
Executive Summary
Please see comments in the "Results of Review" section.
INTRODUCTION
Background
Page 2, paragraph 3: "The Box and much of the Basin is located in Shoshone County, Idaho".
The Box and the primary mining source areas are located in Shoshone County. However, much
of the contaminated lower basin and lake areas are located in Kootenai County, Idaho.
Contamination also extends into Spokane County, Washington.
The map provided does not represent the entire area subject to Operable Unit 3. We suggest you
use Figure 1.0-1 from the ROD (Basin Study Area) and will forward this map to you in electronic
format.
Scope and Methodology
Page 4, paragraph 1: "Concerns regarding EPA versus Idaho cleanup were dropped..." The
concern here is unclear - was the issue whether EPA versus the State of Idaho would lead and/or
fund the cleanup?
Please consider the following change: "The findings contained in this report are only applicable
for OIG Ombudsman purposes. Additionally, the findings contained in this report are not binding
in any enforcement proceeding brought by EPA or the Department of Justice under Section 107
of the Comprehensive Environmental Response, Compensation, and Liability Act to recover
costs incurred not inconsistent with the National Contingency Plan" This would also cover
actions under Section 106 or another statutory provision.
RESULTS OF REVIEW
1. Site Listing
Objectives: The draft report reads "Also, why were the areas outside the "Box" (those areas
included in the Basin listing) not included in the original cleanup work?" The statement in
parentheses is not clear - areas outside the Box were included in the Bunker Hill site listing. We
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suggest this be clarified to read "(those areas included in Operable Unit 3, also known as the
Basin)".
Page 5, paragraph 1: "Based on our analysis, we concluded that EPA followed laws and
regulations in the original site listing on OUs 1 and 2." The site listing did not identify Operable
Units and was not limited to OUsl and 2 (the Box).
Page 5, paragraph 2: "Both units covered areas within the 21-square-mile Bunker Hill Box,
which included the mines and smelter". The largest area mine, the Bunker Hill, is located in the
Box. However, there are many other mine and mill sites which represent sources of
contamination, which are outside of the Box. Suggested clarification: "...which included the
Bunker Hill Mine and smelter."
2. Basin Commission
Page 7, paragraph 2: "Powers have been given to the Commission to carry out the work plan,
including hiring personnel and contracting for work". It should be clarified that these powers are
granted by State, not Federal, legislation. The Memorandum of Agreement outlines the terms of
Federal participation. EPA Region 10 believes that the terms of this MOA are supported by the
NCP and reserve our rights and responsibilities pursuant to federal law.
Page 7, paragraph 3: It might be helpful to indicate that the MOA was also signed by
representatives of the US Department of Interior, the US Forest Service, and the Spokane Tribe
of Indians as "coordinating entities".
Page 8, paragraph 2: Delete the last 2 sentences. Change of lead agency is not a change to the
selected remedy in the ROD and thus does not require a formal BSD or ROD amendment. In
practice, however, EPA would involve stakeholders in this decision.
Page 8, paragraph 3: It would be helpful to include the basis for the statements regarding who
can represent the State of Idaho in negotiations.
Recommendation: Please clarify whether the intent is for Region 10 to encourage the Basin
Commission board to provide clarification of its status, or for Region 10 to clarify EPA's role
with regard to the Basin Commission, or both.
3. Lake Management Plan
Page 9, paragraph 2: The EPA letter to IDEQ and the Coeur d'Alene Tribe is dated March 25,
2003, not May 2003.
Page 9, paragraph 2: Please clarify whether and how section 319 of CWA provides guidance on
how plan should work.
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Page 10, paragraph 1: "...an Addendum to the Plan was completed in 2003". A draft Addendum
to the Plan was issued for public comment in 2003, but a final Addendum has not been issued.
IDEQ and the Coeur d'Alene Tribe are evaluating public comments and determining the next
steps.
You conclude that the Lake Management Plan (LMP) and its addendum do not fully support an
EPA decision to conduct a partial deletion of the Lake from the NPL. It would be helpful to
provide more information about this conclusion. Could you provide specific recommendations
about what actions would be supportive of such a decision? If the plan is revised with your
recommendations to include provisions meeting the requirements of the Clean Water Act, would
it be supportive of a decision to conduct a partial deletion of the Lake?
It may be helpful to include EPA's view of Lake Management Plan funding. EPA has provided
Superfund funding to the State of Idaho and the Coeur d'Alene Tribe for development of the plan
addendum. EPA has not selected a remedy for the Lake and has not designated the Lake
Management Plan as a CERCLA remedy. If EPA moves forward with a "No Further CERCLA
Action" ROD, it would not designate the Lake Management Plan as a CERCLA remedy,
therefore implementation of the plan would not be a CERCLA remedial action and would not be
eligible for CERCLA funding. EPA could provide assistance to the State and the Tribe to
identify other potential funding sources for portions of the plan, but would expect those entities
to be responsible for plan implementation and funding. Should the EPA select the Lake
Management Plan as a remedial action under CERCLA, it is very unlikely that EPA could
provide CERCLA funding for these tasks, given their focus on institutional controls and nutrient
management and because any Fund expenditures would have to be consistent with the state
match obligations of CERCLA Section 104(c). In addition, should the Lake Management Plan
become a CERCLA remedy, EPA would have to determine that it was protective of human
health and environment and it met ARARs (or ARARs were waived) prior to partial deletion
from the NPL. It is not likely this would happen in the short-term, even if lake management
activities were implemented.
It should be noted that an evaluation of Lake conditions will be part of the CERCLA-required
five year review process, regardless of any potential deletion from the NPL (see 2002 ROD,
Section 12.3).
Unfunded Mandate
Page 10, paragraph 4: It would be helpful to include EPA's view of this issue. There is no
"mandate" for a Lake Management Plan under CERCLA - EPA has not designated a Lake
Management Plan as the CERCLA remedy for the lake. The State of Idaho and local
communities
have expressed interest in managing the lake outside of the CERCLA process. Any costs incurred
in implementing the Lake Management Plan are made to mitigate the presence of hazardous
substances in the Lake, and are made as a result of responsible stewardship and not as result of a
requirement to pay for a Federally mandated program.
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Page 11, paragraph 2: "...EPA informed the State of Idaho that remediation activities need to
begin in the upper basin before EPA will agree to conduct a partial deletion of the Lake from the
NPL, but the State is unclear whether EPA wants it to pay for those remedial actions." It is hard
to believe that the State of Idaho is unclear about the requirements for funding remedial actions.
EPA and the State have been implementing work at Bunker Hill for almost 20 years, consistent
with CERCLA funding requirements. Under CERCLA, it is clear that, for a fund-lead remedy,
EPA is responsible for 90% of remedial action costs, and the State is responsible for 10% of
remedial action costs as well as 100% of Operations and Maintenance. This is documented on a
site-specific basis through Superfund State Contracts (SSC). IDEQ has entered into an SSC with
EPA for the OU3 remedy but has declined to enter into an SSC for the OU2 November 2001
ROD amendment (Central Treatment Plant). Therefore, EPA is unable to use available CERCLA
funding to begin remedial action at the Central Treatment Plant without this agreement in place.
EPA has begun remedial actions in OU3.
Recommendation 3-2: "Clarify with the State of Idaho who will pay for remedial actions before
EPA..." It is unclear whether this recommendation refers to remedial actions in the Lake or
upstream. If it refers to upstream, we suggest the following: "...who will pay for upstream
remedial actions..." If this statement refers to actions in the Lake, we suggest the following
revision: "Clarify with the State of Idaho who will pay for lake management activities before
EPA considers a partial deletion of the Lake from the Lake Management Plan." A clarification of
this issue is provided in a previous comment. EPA has not chosen a remedy for the lake.
Therefore, there are no "remedial actions" to be funded under CERCLA. Should EPA proceed
with the approach of a "No Further CERCLA Action ROD" as supported by the State of Idaho,
the lake management activities will not be eligible for CERCLA funding.
4. Community Involvement and Economic Aspects
Economic Aspects
Page 13, paragraph 1: Based on our discussions regarding recent economic data, we agreed that
this paragraph would be deleted.
Community Involvement
It should also be noted that there currently is considerable community involvement through the
Technical Leadership Group and its Project Focus Teams. Local governments have
representatives on the Technical Leadership Group. Interested citizens are invited to participate
in Project Focus Teams.
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Appendix B
Distribution
Regional Administrator, Region 10
Region 10 Audit Followup Coordinator
Region 10 Superfund Regional Public Liaison
Team Leader, Bunker Hill/Coeur dAlene Basin Cleanup, Office of Environmental Cleanup,
Region 10
Assistant Administrator for Solid Waste and Emergency Response (510IT)
Assistant Administrator for Enforcement and Compliance Assurance (2201 A)
Comptroller (2731 A)
Agency Followup Official (the CFO) (2710A)
Deputy Chief Financial Officer (2710A)
Agency Followup Coordinator (2724A)
Audit Liaison, Office of Solid Waste and Emergency Response (5103T)
Associate Administrator for Congressional and Intergovernmental Relations (1301 A)
Associate Administrator, Office of Public Affairs (1101A)
Inspector General (2410)
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