Responding to Citizen Questions about the Bunker Hill Superfund Site
This month, I am including Institutional Controls Program details by Jerry Cobb of the Panhandle Health District, the program’s administrator. Jerry has specific information about the purpose of the ICP, how it started, what it means for commerce, and public responsibility for permits.
Overview of the Institutional Controls Program
The Institutional Controls Program (ICP) is a locally enforced set of rules and regulations designed to ensure the integrity of clean soil and other protective barriers placed over contaminants left throughout the Bunker Hill Superfund Site. The ICP regulates projects that involve excavation, grading and renovation projects associated with building interiors that require ceiling and attic work, insulation removal, and work in dirt basements and crawlspaces.
The fundamental purpose of the ICP is to protect public health and assist with local land transactions.
The property cleanup program addresses surface contamination only. To determine cleanup needs, the top 18-inches of each property in the Bunker Hill Superfund Site is sampled. If contaminated, up to the top one foot of material on residential, public and commercial property is removed and replaced with clean soil or gravel. This work has been done by the Upstream Mining Group (UMG) or the government, at no cost to the property owner. Partial removal requires management of barriers and caps in perpetuity. While barriers are originally installed by the UMG or the government, management of barriers falls to the property owner.
Partial removal was selected as the preferred cleanup alternative because a total removal wasn’t possible. Contaminated material under buildings, roads and other structures isn’t accessible. In addition, there wasn’t enough readily available soil to replace contaminated materials removed, nor adequate disposal space to store it all.
One of the main advantages to conducting partial removal in the Box was the avoided cost of a complete removal. This approach saved the mining companies $152 million for the Populated-Areas cleanup and the governments $68 million for the Non-Populated Areas cleanup. These estimates are likely only one-half to a third of the actual savings realized. Partial removal was the selected remedy in the Basin as well as the Box.
The ICP was first developed as part of the cleanup in the Box . The Bunker Hill Superfund Task Force guided the development of the ICP. The Task Force was and is made up of local volunteers serving as the forum to represent local government and citizens in the Box during the cleanup. Prior to developing the ICP, the Task Force was asked to provide input regarding program structure and operation. They were asked to provide conditions upon which the program would be based. They provided three conditions:
1. Institutional Controls must minimize inconvenience, cost and loss of land use options to local residents,
2. Institutional Controls must utilize, to the maximum extent practicable, existing control mechanisms and local agencies, and
3. Institutional Controls must be self-sustaining and impose no additional cost on local government, residents, or property owners.
The ICP was developed over a seven-year period, working with the Task Force, local government, utility companies, citizens, and contractors. The ICP was adopted as part of Panhandle Health District’s Environmental Health Code in the Box in 1995, and expanded into the Basin in 2007. Before implementing the program in the Basin, the project was presented to the mayors of Basin cities, Shoshone & Kootenai County Commissioners, the Coeur d’Alene Basin Commission, and others. The Box conditions were noted and contractors gave input.
As noted, the program was developed to protect public health and assist with local land transactions, and economic development. Simply put, it allows commerce to be conducted in spite of the fact that contamination remains site-wide. By law, all projects that involve excavation or grading, and certain interior projects, must obtain an ICP permit. Failure to do so can result in a $300.00 per day fine for each day of non-compliance and/or six months in jail.
Since 1995 in the Box and 2007 in the Basin, the ICP has not had to go to court to gain compliance. Project personnel work hard to educate permittees and provide direction on how to complete projects so that enforcement doesn’t have to come into play. Local residents recognize the value of maintaining their barriers to protect their families and support land sales.
At present, over one thousand ICP permitted projects are being completed in the Box and Basin each year. Nearly 250 contractors per year are licensed and trained by Kellogg Panhandle Health District to work within the Superfund site. All permits and contractor licenses are free of charge. Homeowners who do projects on their own property do not need to be licensed. Disposal of contaminated material generated as part of ICP permitted projects may be taken to local soil repositories. This service is also free of charge.
All project permits and any other information generated as part of the ICP is placed on file and into a database that is maintained on every parcel of residential and commercial property within the site.
That information is used to support local land transactions, economic development and public works projects that require grants, loans, or bonding. Information packets provided to lenders include: sample data, the original plot plan created as part of property remediation, and all ICP permits. If the original plot plan does not match the condition of the property at the time of sale, the effectiveness of the barrier can be called into question. At that point, the property owner may be required to resample their property and if contaminated, clean it up again at their expense.
Exclusive of Superfund, there are two state laws that require both homeowners and realtors to disclose environmental hazards associated with property prior to its sale. Nationwide, EPA and the Department of Housing & Urban Development (HUD) also require sellers and their agents to disclose lead contaminated soil associated with certain residential land sales. In addition, banks, mortgage companies, and other lenders and underwriters also conduct due diligence as part of their involvement in land sales, purchases, and development projects.
Compliance with the ICP is required for most if not all of these activities. Compliance with the ICP is also necessary to meet Superfund law associated with “All Appropriate Inquiry” requirements for property acquired at the Bunker Hill Site after January 11, 2002.
At present, the ICP prepares 400 to 700 disclosure assistance packages each year to support land sales and development in the Box and in the Basin. Information is provided to buyers, sellers, banks, mortgage companies, federal underwriters, and bond counsel for local governmental entities issuing bonds for schools or other public works projects. In addition, countless hours are spent each year dealing with lenders who express concerns about being involved with projects in a Superfund site.
At some point, everyone who owns property will sell out and move or pass their property onto their heirs. Property located in the Superfund site can be passed on as a liability or an asset. The ICP remains available and committed to ensuring that local real estate is a valuable asset and not a liability.
ICP issues to consider:
• Projects completed in compliance with the ICP are considered to be in compliance with the cleanup requirements noted in the Records of Decision issued at the Bunker Hill Site. Program compliance satisfies both EPA and lenders.
• Projects initiated after obtaining an ICP permit can be completed simply and without compromising site barriers. Projects begun without ICP assistance can result in extensive barrier damage and the need to complete expensive repairs that could have been easily avoided. All repairs must be made and paid for by property owners.
• ICP requirements involve simple, off the shelf soil management practices and common sense to implement. These same requirements and techniques are also required to meet state and federal agency requirements, as well as those necessary for area cities and counties.
• Each year the ICP surveys contractors and a number of homeowners who have obtained an ICP permit. Since its inception, the program is rated by over 90% of those who respond as good to excellent for availability, service, quality of assistance and education offered.
• If ICP requirements are not met, it is a violation of local law and may violate Superfund law. If we are not successful in obtaining compliance locally with the ICP, the EPA can issue a Unilateral Administrative Order (UAO). At that point, one is not dealing with local staff and local systems and $300.00 fines, one must then deal with EPA in Seattle and risk fines of $32,500 per day. As noted, since 1995 the ICP has not had to resort to a court action to gain compliance. Most people understand the need to maintain their protective barrier to protect their families and to qualify for bank financing.
If you have questions about this article, please call Jerry Cobb at 783-0707.
I welcome your SST questions for December! Write to Denna Grangaard: denna.grangaard@deq.idaho.gov, click on “Ask Us” at our website: www.deq.idaho.gov/bunkerhillsuperfundsite, or stop by the DEQ Office, 1005 W. McKinley Avenue (208) 783-5781.