EPA chief joins talks on mine cleanup

Despite conflict-of-interest concerns, the U.S. Environmental Protection Agency pushed for Idaho Gov. Dirk Kempthorne’s former lawyer to sit on a commission overseeing the Silver Valley mine cleanup in part because the commission is faltering, according to an EPA memo obtained under the Freedom of Information Act.

L. Michael Bogert, appointed regional EPA administrator by the Bush administration last year, will attend his first meeting of the Basin Environmental Improvement Project Commission today in Wallace. He’s pledging to support the Superfund cleanup he once fought.

“I work for the EPA now, and I swore an oath of office to protect the agency’s mission,” Bogert said in an interview on Tuesday.

The commission was set up by the Idaho Legislature in 2002 to oversee the Superfund cleanup after the EPA issued a Record of Decision – a road map for the huge Coeur d’Alene Basin project. The eight-person commission is dominated by Idaho agencies and elected county commissioners; there is one slot for a Washington state representative.

After his appointment as EPA administrator last year, Bogert initially recused himself from any decision-making role for the $359 million, 30-year cleanup of mine wastes from Mullan, Idaho, to Spokane.

The reason: As Kempthorne’s staff general counsel from 1999 to 2004 and as the Idaho governor’s private lawyer in 2005, Bogert had helped Idaho fight the EPA’s plans for an expanded Superfund cleanup beyond the 20-square mile Superfund “box” at Kellogg.

Late last year, Edward R. Kowalski, EPA regional counsel in Seattle, asked the Bush administration for the ethics review, according to an EPA memo recently obtained under the Freedom of Information Act.

The memo, addressed to Kenneth Wernick, EPA senior ethics official in Washington, D.C., argues that Bogert should be allowed to serve because “EPA Region 10 wants the Basin Commission to succeed.”

Because of conflicts with Idaho officials serving on the commission, many government agencies and citizens supporting its work have become “frustrated, overwhelmed and ultimately negative about the Basin Commission,” Kowalski’s December 14 memo says.

Terry Harwood, the commission’s executive director since December 2004, said he didn’t view the commission’s performance that negatively.

“Everyone wants their own way, and if they don’t get 100 percent they are discouraged. But it’s a collaborative process. I’ve talked to Bogert, and he’s real positive about making it work,” Harwood said.

The commission is working on ongoing contamination draining out of the Bunker Hill Superfund site at Kellogg and now will turn its attention to controlling arsenic and other heavy metals in the larger basin by establishing an “institutional controls” program to contain contaminants, he added.

“I haven’t lost my patience with the process. In my estimation, the local communities are being listened to,” Harwood said.

A major frustration for the big project is that federal cleanup funds are shrinking, said Dave George of the Washington Department of Ecology, who provides staff support to the commission. “There is a huge competition nationwide for these funds,” George said.

The basin cleanup is still a top priority for EPA, right up there with the Hudson River PCB cleanup, said EPA spokesman Mark MacIntyre. The basin cleanup is budgeted at $15 million a year for the next several years, he said. “This project is in a good place,” MacIntyre added.

Disenchanted groups include the Coeur d’Alene Tribe, federal natural resource trustees and citizens groups, which have started to view the Basin Commission as “ineffective and burdensome, and as a result have started to disinvest from participation,” the EPA memo says.

Bogert agreed to meet Tuesday night in Spokane with several of the activist groups pushing for a thorough cleanup who view his participation with suspicion.

“He’s totally conflicted, and there has been no opportunity for citizens to comment on this,” said Kellogg activist Barbara Miller, who wants more thorough blood-lead level testing and more extensive soil cleanups in the Silver Valley.

“We want assurances he can be impartial,” said Rick Eichstaedt, a lawyer at the Center for Justice in Spokane who works on Spokane River cleanup issues for the Sierra Club.

“For years, the Basin Commission has been a tool of local governments in Idaho to express their desire to have EPA removed from the cleanup and to deny there’s a problem. We want assurances that if the group continues to ignore its responsibilities, Bogert will take appropriate action,” Eichstaedt said.

In addition, environmental groups want Bogert to carry out the recommendations of the National Academy of Sciences, said Mike Petersen of the Lands Council.

In a report released in December, the academy said the EPA needed to do more widespread testing of Silver Valley children for lead in their blood and pay more attention to the impacts of logging on floods that wash heavy metals downstream into Lake Coeur d’Alene and the Spokane River. The EPA is still reviewing those recommendations.