We are writing to request your assistance in rectifying serious inadequacies in the Environmental Protection Agency's ("EPA") Record of Decision ("ROD") for the Bunker Hill Superfund site as it relates to the Memorandum of Agreement ("MOA") for the Bunker Hill site, which is of questionable legality. The MOA is inconsistent with the Idaho Environmental Improvement Act ("Idaho Act"), the Comprehensive Environmental Response Compensation Liability Act ("Superfund"), and potentially the United States Constitution. Given these inadequacies, and the gravity of the public health and environmental threats associated with the Bunker Hill Superfund site, we respectfully ask that your offices urge EPA to amend the ROD to eliminate any reference to the MOA and work with the relevant committees of jurisdiction to investigate the legality and policy implications of the MOA.
I. EPA Does Not Have The Legal Authority To Enter Into The MOA
Superfund provides a plethora of avenues for state and local interests to affect the listing and clean up process. See Section VI below. However, the federal Superfund law does not provide EPA with legal authority to enter into the MOA. The Bush administration decided to ignore the effective and established methods of ensuring balance and protectiveness in developing cleanups, and EPA Region 10's long history of working with local and state officials. Instead, the administration has given local economic interests who are hostile to cleaning up contamination unprecedented and unwarranted power over clean up, restoration, and funding decisions at the Bunker Hill Superfund site.
II. State Law, The MOA, and Superfund Contradict Each Other
The Idaho Act provides the basis for the MOA, through authorizing the creation of a commission to direct clean up, natural resource restoration, and flood control activities, among other powers. The Idaho Act also creates a funding authority to distribute funds for such activities. IDAHO CODE §§ 39-8104, 39-8106, and 39-8107. The MOA establishes the "Basin Environmental Improvement Project Commission" ("Commission") to "implement, direct, and/or coordinate" remedial, natural resource restoration, and related activities. MOA, 1. The Commission "works through the direct exercise of certain authorities of" the Idaho Act. MOA, 1. The Commission's decision-making body has a board with six representatives, including one representative each from the state of Idaho and the county commissioners of Shoshone, Kootenai, and Benewah counties. The U.S. government, state of Washington, and Coeur d'Alene tribe also have one representative each on the board.
A. The Idaho Act And MOA Contradict Each Other And Are Inconsistent With Superfund
The Idaho Act and MOA contradict each other, and both documents conflict with the federal Superfund law by allowing local representatives to veto EPA decisions over appropriate clean up and funding activities. As such, EPA and the states of Washington and Idaho do not have the legal authority to enter into the MOA, and decisions made pursuant to the document lack the force of law. Therefore, at a minimum, EPA must withdraw from the MOA and direct clean up activities consistent with the federal Superfund law.
1) The Idaho Act Allows Local Interests To Override EPA's Clean Up Decisions
The Idaho Act is inconsistent with the federal Superfund law because it allows local, state, or tribal officials to veto valid EPA decisions to protect public health and environmental quality. The federal Superfund law gives the President sole authority to select remedial or removal actions. 42 U.S.C. §§ 9603 (authorizing the President to act, "consistent with the national contingency plan, to remove or provide for remedial action" at toxic waste sites) and 9621 (requiring the President to select remedial actions). However, the Idaho Act gives local county commissioners, the Coeur d'Alene Tribe or representatives from Idaho (but not the state of Washington) the power to veto potentially any EPA clean up decisions. IDAHO CODE § 39-8106(a)(4).
Beyond this clear legal inconsistency, the Idaho Act empowers local and state representatives to oppose vigorous action to protect public health and environmental quality. This turns the purpose of Superfund on its head by putting representatives from local, parochial economic interests in charge of protection for public health and environmental quality. For example, Governor Kempthorne's Letter of Concurrence mischaracterizes the threats at the Bunker Hill site as a "limited problem." Idaho Letter of Concurrence for the Record of Decision for Operable Unit 3, 2 (Sept. 9, 2002). Over one hundred million tons of toxic waste spread throughout a watershed--including homes, schools, recreational areas, and sensitive ecosystems--is not a "limited problem".
The Governor's letter also states, "Idaho looks forward to the day--and soon we hope--when USEPA will finally decide that Superfund-driven decision making in the Coeur d'Alene Basin is obsolete. For many of the actions described in the ROD, we already know that this is the case." Idaho Letter of Concurrence for the Record of Decision for Operable Unit 3, 2 (Sept. 9, 2002). Governor Kempthorne further states that "there is no health emergency of any kind in the Basin" and that Idaho "will only support voluntary actions" to reduce threats to human health. Idaho Letter of Concurrence for the Record of Decision for Operable Unit 3, 5 (Sept. 9, 2002) (emphasis in original). The Governor's statements demonstrate a serious lack of appreciation for the threats posed to human health--especially children--and environmental quality by the tons of toxic waste in the basin. His insistence on "only voluntary actions" demonstrates that he has pre-decided one action, regardless of its effectiveness in response to this threat.
The Idaho Act and MOA negate the federal safety net embodied in the Superfund law, while giving unprecedented power to state and local interests who are hostile to cleaning up dangerous contamination. They also establish a dangerous precedent that the Bush administration may attempt to repeat at toxic wastes across the country.
2) The MOA Is Inconsistent With Underlying State Law Or The Federal Superfund Law
The MOA unsuccessfully attempts to resolve the Idaho Act's inconsistency with the federal Superfund law by recognizing that EPA has the "responsibility to make various decisions under" Superfund. MOA, 5. The MOA does not specify the scope of EPA's decision-making authority, which is paramount under Superfund. At a minimum, the MOA's ambiguousness could cause confusion and disagreement among the Commission members over their respective authorities.
Moreover, if the MOA is read to fully respect EPA's principal decision-making authority under Superfund, then the MOA contradicts Section 39-8106 of the Idaho Act that allows local, tribal, or Idaho state representatives to veto EPA decisions. This means that the MOA would conflict with Section 39-8105(3) of the Idaho Act, which states that "[a]ny agreement providing for participation in the basin commission shall be consistent with the terms of this chapter." This inconsistency calls into question the Commission's validity, which rests upon "the direct exercise of certain authorities of the state of Idaho (as described in Section 39-8105 of the enabling legislation)." MOA, 1. Alternatively, if the MOA fails to fully respect EPA's decision-making authority, then the MOA contradicts the federal Superfund law. In either case, the MOA is incapable of providing a valid legal foundation for removal or remedial activities.
3) The Idaho Act Could Allow Local Interests To Override EPA Funding Decisions
The Idaho Act establishes a financing authority to administer funds needed to clean up the Bunker Hill site. IDAHO CODE § 39-8107. This authority can decide to spend or not spend funds without EPA's approval. This conflicts with EPA's federal statutory authority to decide how cleanup funds are used.
The financing authority is responsible for managing funds from any "settlement of any claims or lawsuits regarding heavy metals contamination in the basin," state or tribal funds, and "any other source of public or private money." IDAHO CODE § 39-8107(3). The authority consists of one representative from the state of Idaho, Coeur d'Alene Tribe, state of Washington, and the federal government. IDAHO CODE § 39-8107(2). Any two of these representatives may act by majority vote. IDAHO CODE § 39-8107(2). Therefore, the authority could decide to fund or not fund activities, absent EPA approval.
The Idaho Act also prejudices the use of funds to benefit Idaho, rather than to maximize clean up resources. Section 39-8107(3) requires that, "[t]o the extent allowed by law, the funds available to the financing authority shall not be considered federal funds and shall be available for use as state matching funds for federal grants." (emphasis added) This provision appears to put protection of Idaho's financial interests above the purpose of Superfund, which is to protect public health and environmental quality. If EPA decides that specific remedial or removal actions are required to protect public health, then EPA should first fund those actions. The federal government should not agree to direct precious clean-up dollars to first benefit Idaho's bottom line, rather than protections for public health.
B. The Idaho Act Could Frustrate EPA's Selection of Institutional Controls
The Idaho Act also authorizes the Commission to select institutional control measures for federal remedial activities at the Bunker Hill site. IDAHO CODE § 39-8106. However, the National Contingency Plan, which is Superfund's implementing regulations, authorizes the lead agency to develop institutional controls. 40 C.F.R. § 300.430. EPA is the lead agency for the remedial activities at the Bunker Hill site. EPA has ultimate legal authority to determine whether institutional controls are consistent with the federal Superfund law.
Institutional controls are one part of an intricate set of remedial activities that help protect public health and environmental quality from toxic waste. While EPA can allow local authorities to enforce institutional controls, this is fundamentally different than selecting such measures. EPA must determine when it is legal to use institutional controls, weigh the protectiveness of institutional controls against a myriad of other planned activities, and then select such institutional controls when appropriate. Therefore, the Idaho Act contradicts federal requirements respecting institutional controls.
C. The Idaho Act Appears To Use A Different Legal Standard Than Superfund
The Idaho Act uses a different standard for agreements or compacts regarding remedial activities than exists under the federal Superfund law. Under Superfund, "the President is authorized to act, consistent with the national contingency plan," when undertaking removal or remedial activities in response to a release of hazardous substances. 42 U.S.C. § 9604. However, the Idaho Act authorizes remedial activities "in the Coeur d'Alene basin in a manner consistent with local, state, federal, and tribal authorities." IDAHO CODE § 39-8104. (emphasis added) Years of litigation have refined the meaning of Superfund's phrase, "consistent with the national contingency plan." The modification of this standard could create confusion over the extent of consistency with required protections for public health and environmental quality. This confusion could provide an opportunity to weaken such protections during negotiations between members of the Commission or financing authority.
III. The Idaho Act and MOA Fail To Include All Trustees On The Commission
Superfund gives trustees the power to decide issues involving public resources damaged by hazardous substances. 42 U.S.C. § 9607(f). Pursuant to Executive Order 12580, the Secretary of the Interior and the Secretary of Commerce, among others, are designated trustees of public resources damaged by hazardous substances. Exec. Order No. 12,580. However, the Idaho Act and MOA both seek to authorize the Commission to decide natural resource restoration activities. IDAHO CODE §§ 39-8104, 39-8106 and MOA, 1. While the Department of Interior and Commerce both have trustee responsibilities associated with the Bunker Hill site, the Idaho Act and MOA fail to give either trustee a vote on the Commission or funding authority. This oversight could cause delay and confusion in restoration activities, and increase the potential for litigation.
IV. The Idaho Act And MOA May Violate The Constitution
The Idaho Act and MOA may violate the U.S. Constitution's Appointments Clause and Interstate Compact Clause. This raises troubling questions regarding EPA's ability to enter into the MOA. EPA should address these issues (as well as other issues described in this letter) before deciding whether to pursue any activities through the Commission or allow resources to flow through the funding authority created by the Idaho Act.
1) The Idaho Act And MOA May Violate The Appointments Clause
Under Article II, Section 2, Clause II of the U.S. Constitution, only Congress can vest the authority to appoint inferior officers in the President, courts of law, or heads of departments. The Idaho Act and MOA are inconsistent with this constitutional provision because they appoint inferior officers to participate in the Commission and funding authority without Congressional approval. Therefore, EPA does not have the legal authority to act pursuant to either document.
The Idaho Act recognizes that the breadth of powers conferred on the Commission and funding authority allows them to "perform essential government functions." IDAHO CODE § 39-8113. These bodies can undertake a host of activities under a variety of programs affecting multiple resources and jurisidictions. For exmaple, the Commission is responsible for planning and directing remedial and natural resource restoration activities under federal, state, and tribal clean up and restoration programs, numerous activities authorized under state flood control laws, and a broad range of actions authorized under state law respecting drainage commissions. IDAHO CODE § 39-8106. The funding authority has similarly broad powers. IDAHO CODE §§ 39-8107 through 39-8113.
The MOA attempts to mitigate this transfer of power with language reserving federal decision-making authority to EPA. MOA, 5. This mere assertion is insufficient to resolve the serious constitutional questions raised by this intergovernmental body when judged against its broad powers. Therefore, the MOA and Idaho Act violate the federal constitution and EPA should not operate pursuant to either document.
2) The Idaho Act And MOA May Violate The Interstate Compact Clause
Article I, Section X, Clause III of the U.S. Constitution forbids any state from making an agreement or compact with any other state or foreign power without the consent of Congress. The Idaho Act and MOA both contemplate the state of Idaho entering into an agreement with the state of Washington and the Coeur d'Alene Tribe. However, Congress has not consented to this arrangement. Absent such Congressional action, the entire agreement may violate the U.S. Constitution.
V. The Idaho Act And MOA Are Unnecessary
Current Superfund law provides ample opportunities for state, local, and tribal representatives to work together in cleaning up the Coeur d'Alene river basin. The years of cooperation between EPA Region 10, the states of Idaho and Washington, Idaho Health Districts, and other local institutions are evidence of this fact. Not satisfied with mere cooperation, the Idaho Act and creation of the MOA demonstrate that Idaho and local interests want more power to control decisions than they currently exercise under Superfund. These interests, who have consistently fought against clean up activities at the Bunker Hill Superfund site, gain unprecedented power through the MOA and Idaho Act--albeit of questionable legality--to potentially affect the remedial, restoration, and funding processes at the Bunker Hill site.
VI. Congress Should Protect Public Health, Preserve Environmental Quality, and Enforce The Rule Of Law
The Bush administration has ignored Superfund's existing flexibility, and decided to cater to interests hostile to Superfund. By embracing the Idaho Act and MOA, the Bush administration has once again raised serious questions regarding its commitment to cleaning up the nation's worst toxic waste sites. We respectfully request that your offices ensure that EPA only enters into agreements that respects the rule of law and exercises their full legal authority to protect the more than 500,000 people and hundreds of miles of affected environment within the basin and impacted river system.
As such, we ask that your offices urge EPA to amend the ROD to eliminate any reference to the MOA and work with the relevant committees of jurisdiction to investigate the legality and policy implications of the MOA.