Working with Tribes during Superfund Responses Anne Dailey, OLEM/OSRTI Christine Poore, OLEM/OSRTI Mary Cooke, OLEM/FFRRO

Similar documents
Consulting and Coordinating with Tribes for Superfund Sites

CALIFORNIA GOVERNOR S OFFICE OF EMERGENCY SERVICES ADMINISTRATIVE MANUAL

MEMORANDUM OF AGREEMENT BETWEEN THE ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY AND REGION 6 OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Final Guidance on Administrative Records for Selecting CERCLA Response Actions

Tribal Waste and Response Assistance Program Steering Committee Priorities

American Indian & Alaska Native. Tribal Government Policy

DEPARTMENTAL REGULATION

Risk Assessments and Hazardous Waste Cleanup in Indian Country: The Role of the Federal-Indian Trust Relationship

EPA Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous Peoples. Tribal Lands and Environment Forum

STRENGTHENING TRIBAL SELF-DETERMINATION ENVIRONMENTAL PROTECTION PROGRAMS: THE CONTINUING RELEVANCE OF EPA S 1984 INDIAN POLICY AND 1992 GAP STATUTE

SECTION 611 (42 U.S.C. 3057b) PART A--INDIAN PROGRAMFINDINGS

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 8 AND THE STATE OF UTAH AND THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS

APPENDIX A Summaries of Law and Regulations

CAL/EPA POLICY MEMORANDUM NUMBER:

Programmatic Agreement on Protection of Historic Properties During Emergency Response Under the National Oil and Hazardous Substances Pollution

Tribal SW Code Development & TRP. - Solid Waste - Hazardous/Special Waste - Tribal Response Program

Administrative Record Index Onondaga Lake Site

Policy Issues at Formerly Used Defense Sites (FUDS) Frequently Asked State Questions August 2010

Getting Ready in Indian Country: Emergency Preparedness and Response for Native American Cultural Resources

AB 52: A CEQA Guidelines Update for Tribal Cultural Resources

Mediation Solutions. Superfund on Tribal Lands: Issues, Challenges, and Solutions ASSESSMENT REPORT. September, 2010

ADOPTED REGULATION OF THE STATE ENVIRONMENTAL COMMISSION. LCB File No. R186-18

FACT SHEET Assistant Secretary of the Army for Civil Works Announces Tribal Initiatives

Policy and Procedures on Curation and Repatriation of Human Remains and Cultural Items

DEPARTMENT OF ENVIRONMENTAL QUALITY ENVIRONMENTAL RESPONSE DIVISION ENVIRONMENTAL CONTAMINATION RESPONSE ACTIVITY

THE REPATRIATION OF ANCESTRAL HUMAN REMAINS AND FUNERARY OBJECTS

Chapter ARCHAEOLOGICAL RESOURCE PROTECTION

IV. RECOMMENDATIONS. A. General Themes

US Code (Unofficial compilation from the Legal Information Institute) TITLE 25 - INDIANS CHAPTER 42 AMERICAN INDIAN TRUST FUND MANAGEMENT REFORM

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C

[Docket No. FWS R7 SM ; FXFR FF07J00000; FBMS

TITLE 42, CHAPTER 103 COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA) EMERGENCY RESPONSE & NOTIFICATION PROVISIONS

SHPO Guidelines for Tribal Government Consultations in National Historic Preservation Act Decision Making Processes

ASSEMBLY BILL No. 52. December 21, 2012

July 30, 2010 MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, AND INDEPENDENT REGULATORY AGENCIES

Update on Tribal Supreme Court Project and Fee-To- Trust Regulations January 23, 2018

Notwithstanding a pair of recent

Utilities. (Amended as of 1/16/13) CHICKASAW NATION CODE TITLE 20 "20. UTILITIES" CHAPTER 1 TRIBAL UTILITY SERVICES

Region 10 Operations Guidance REGION 10 RTOC/RTOC CONSORTIUM OPERATIONS GUIDANCE. Updated 9/5/2016

[Docket No. FWS R7 SM ; FXFR FF07J00000; Subsistence Management Regulations for Public Lands in Alaska and

2.2. Describes procedures for coordination between ATSDR and DON.

RESTORATION ADVISORY BOARD CHARTER & BYLAWS ADOPTED NOVEMBER

ALI-ABA Course of Study Environmental Litigation

Francis A. Citera GREENBERG TRAURIG, LLP Suite W. Upper Wacker Drive Chicago, IL

TRIBAL TRANSPORTATION PROGRAM AGREEMENT BETWEEN THE KETCHIKAN INDIAN COMMUNITY AND THE UNITED STATES DEPARTMENT OF TRANSPORTATION

Washington State Compliance Assurance Agreement for Air Programs

Chapter VIII SUPERFUND LAWS. In the aftermath of Love Canal and other revelations of the improper disposal of

ENRD Deputy Assistant Attorneys General and Section Chiefs. Jeffrey H. Wood, Acting Assistant Attorney General

Final WHBE Tribal Consultation Policy

Limited Data Set Data Use Agreement

The Citizen Suit Provision of CERCLA: A Sheep in Wolf 's Clothing

and the Transboundary Application of CERCLA:

CONSENT DECREE. Case 2:17-cv MHB Document 5 Filed 01/17/17 Page 1 of 158 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

COLUMBIA RIVER GORGE COMMISSION. Chapter 350 Division 50. Plan Amendment Process. As Amended through May 1, 2011

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) )

Native American Graves Protection and. Repatriation Act

US Army Corps of Engineers Draft

IRR PROGRAM COORDINATING COMMITTEE

Fire Management Assistance Grants: Frequently Asked Questions

2 C.F.R and 2 C.F.R. Part 200, Appendix II, Required Contract Clauses

Public Law th Congress An Act

SESSION #4: Program Administration, Partnerships, Laws and Enforcement

HISTORIC PRESERVATION CODE

U.S. v. 718 W. Wilson Ave., Glendale, Cal., 91203

Office of Surface Mining Reclamation and Enforcement

Student Reading. American Indian Tribal Governments

Reopener Liability under Section 122 of CERCLA: From Here to Eternity

Handbook for Consultation With Federally-Recognized Indian Tribes

INTERIM GUIDANCE FOR INVESTIGATING TITLE VI ADMINISTRATIVE COMPLAINTS CHALLENGING PERMITS

4.0 RESPONSES TO COMMENTS FROM THE WIYOT TRIBE

Approved by Resolution #1317/16 ofthe Fond du Lac Reservation Business Committee on September 20,2016.

Davis-Bacon Prevailing Wages and State Revolving Loan Programs Under the Clean Water Act and the Safe Drinking Water Act

MARICOPA COUNTY SHERIFF S OFFICE POLICY AND PROCEDURES

Assessing Costs under CERCLA: Sixth Circuit Requires Specificity in Complaints Seeking Prejudgment Interest. United States v. Consolidation Coal Co.

Case 2:11-cv REB Document 1 Filed 09/22/11 Page 1 of 13

Native American Graves Protection and Repatriation Act

Expediting Productive Reuse of Superfund Sites: Some Legislative Solutions for Virginia and the Nation

Department of the Interior Consultation on Fee to Trust Process USET SPF Tribal Leader Talking Points

Judicial Review and CERCLA Response Actions: Interpretive Strategies in the Face of Plain Meaning

Environmental Protection Agency (EPA): Appropriations for FY2014 in P.L

DRAFT MEMORANDUM OF AGREEMENT THE RED-PURPLE BYPASS PROJECT, CITY OF CHICAGO, COOK COUNTY, ILLINOIS

MEMORANDUM NEW ECONOMIC EMPOWERMENT LEGISLATION FOR INDIAN COUNTRY SUMMARY

Local Governments and the Future of Waste Management and Disposal

b. On the basis of race, color or national origin, in Executive Order as implemented by Department of Labor regulations at 41 CFR Chapter 60.

USA v. EI DuPont de Nemours

Compliance & Enforcement Manual

LEGISLATIVE AND REGULATORY UPDATE MARCH 2006 DECEMBER Bryan T. Newland Michigan State University College of Law Class of 2007

FY 2014 Omnibus Spending Bill Restores Some Funds to Tribal Programs Bill Rejects Contract Support Costs Caps Proposal

October 19, 2015 GENERAL MEMORANDUM Compromise Carcieri-Fix Bill: The Interior Improvement Act

National Historic Preservation Act of 1966

APPENDIX I CULTURAL RESOURCES PROGRAMMATIC AGREEMENT

USDA FOREST SERVICE TRIBAL RELATIONS DIRECTIVES OVERVIEW. Fred Clark, National Director Office of Tribal Relations

SENATE, No. 389 STATE OF NEW JERSEY. 218th LEGISLATURE PRE-FILED FOR INTRODUCTION IN THE 2018 SESSION

FederalR eg ister Environm entald o cu m en ts

February 4, 2011 GENERAL MEMORANDUM Department of the Interior Releases Draft Tribal Consultation Policy

NATIONAL CONGRESS OF AMERICAN INDIANS TRIBAL NATIONS LEGISLATIVE SUMMIT 114 TH CONGRESS EXECUTIVE COUNCIL February 22-25, 2016 Capital Hilton

Supreme Court Clarifies Rights of PRPs to Recover Cleanup Costs from Other PRPs, and the United States

MEMORANDUM OF AGREEMENT

Environmental Protection Agency (EPA): Appropriations for FY2013

Transcription:

Working with Tribes during Superfund Responses Anne Dailey, OLEM/OSRTI Christine Poore, OLEM/OSRTI Mary Cooke, OLEM/FFRRO August 18, 2016

Topics EPA Consultation Policy New Tribal Treaties Guidance Funding Opportunities at Superfund Sites Sources for More Information Questions/Discussion 2

Consultation Policy 1984 - EPA Indian Policy 2000 - Executive Order 13175 2011 - EPA Consultation Policy 2014 Admin. McCarthy memo regarding EPA s Indian Policy 2016 - Guidance for Discussing Tribal Treaty Rights **NEW** 3

EPA Consultation Policy (2011) Consult on a government-to-government basis with federally recognized tribes when EPA actions and decisions may affect tribal interests. Process of meaningful communication and coordination between EPA and tribal officials prior to EPA taking action.

Consultation vs. Coordination Consultation is a process of meaningful communication and coordination between EPA and tribal officials prior to EPA taking actions or implementing decisions that may affect tribes. Coordination is sharing information, education, and outreach. can be part of consultation. cannot substitute for consultation. Source: EPA Policy on Consultation and Coordination with Indian Tribes, 2011

Consultation and Coordination under Superfund Tribal roles are provided under the Superfund law (CERCLA*) Tribes may be lead or support agency Tribal law may be applicable or relevant and appropriate requirements for cleanup * CERCLA = Comprehensive Environmental Response, Compensation and Liability Act 6

Regulations or rules Consult about What? Policies, guidance documents, directives Budget and priority planning development Legislative comments potentially Permits Civil enforcement and compliance monitoring actions consistent with other agency guidance Response actions and emergency preparedness State or tribal authorizations and delegations EPA activities in implementation of U.S. obligations under an international treaty or agreement 7

Examples of Superfund Remedial actions or decision points**: Site listings Proposed Plans/Records of Decision (ROD)/ ROD Amendments Site deletions **The Superfund process may consist of multiple actions and each action may need a separate consultation.

Consultation has four parts under the EPA policy Identification Notification Input Follow-up 9

Identification of the Need to Consult Tribes request consultation EPA identifies activities and potentially affected tribal interests 10

Notification of the Tribe EPA notifies tribe early in the process Notification includes sufficient information and how to provide input Multiple tribes may be involved Tribal Consultation Opportunity Tracking System (TCOTS) database 11

Input from the Tribal Government Tribes provide input to EPA on consultation activities Listen to the tribal representatives Consider the tribe s views and concerns Weigh possible changes to the EPA action based on the tribal concerns 12

Follow-up with the Tribal Government EPA provides feedback to the tribes involved to explain how their input was considered in the final action Notify the tribe of the action taken by EPA These are formal, written communications Document consultation in the Site Administrative Record 13

Are Tribal Interests Affected? Does a tribal treaty cover the area where the site lies? Do tribal members use resources from the impacted zone? Is a tribe a Natural Resource Trustee of the affected resource? Are there lands held in trust for tribes? Is the affected area within a tribal historic area or traditional cultural property? Is the affected area linked ecologically, culturally, visually or hydrologically to tribal resources or uses? 14

Emergency Response and Removal Emergency responses Regional Contingency Plan procedures used primarily notification Time-critical removals consult as time allows Non-time critical removals consultation occurs Tribes may have Tribal Emergency Response Committees and can participate in Unified Command during a response in Indian Country 15

Consultation at Federal Facility Superfund Sites At Federal Facility sites (i.e., Departments of Energy, Defense, Interior, etc.), the other federal agency (OFA) is the lead agency for consultation These federal agencies have their own consultation procedures EPA may play a facilitation or coordination role if necessary More information about EPA s Federal Facilities Restoration and Reuse Office s Tribal Activities and OFA information can be found at http://www2.epa.gov/fedfac/tribes-andfederal-facilities 16

Tracking Consultations Tribal Consultation Opportunities Tracking System (TCOTS) For each consultation: Consultation opening and closing dates Information on the manner location of consultation events EPA contact information Additional information to assist tribes in consultation review Superfund process often consists of multiple actions and have separate consultations 17

Recent Policy Developments Administrator s December 2014 Memo While treaties do not expand the EPA s authority, the EPA must ensure its actions do not conflict with tribal treaty rights. In addition, EPA programs should be implemented to enhance protection of tribal treaty rights and treaty-covered resources when we have discretion to do so. Guidance for Discussing Tribal Treaty Rights (Feb. 29, 2016) Signed following consultation with tribes A path to implementing commitments in Administrator s 2014 memo Provides assistance for tribal consultations on EPA actions occurring within specific geographic areas where treaty rights may exist in, or treaty-protected resources may rely upon, those areas 18

**NEW** Guidance for Discussing Tribal Treaty Rights (Feb. 29, 2016) Enhancement of consultations under EPA s Consultation Policy. Outlines affirmative steps for EPA tribal consultations in situations where treaty rights [or treaty-protected resources] may be affected by an EPA action. Actions focused on specific geographic areas when tribal treaty rights relating to natural resources may exist in, or treaty-protected resources may rely upon, those areas and EPA s action may affect the tribal treaty rights. Guidance does not create any new legal obligations for EPA, expand the authorities granted by EPA s underlying statutes, nor does it alter or diminish any existing EPA treaty responsibilities. 19

What are treaties and how do they affect EPA s work? Under the U.S. Constitution, treaties have the same legal force as federal statutes Treaties are legal obligations Just as EPA complies with environmental statutes and regulations, EPA also needs to ensure that its actions under those statutes and regulations do not conflict with treaty rights Treaties do not expand the EPA' s authority but can limit or inform action if the action would infringe on a treaty right Treaty rights can inform how EPA s exercises discretionary authority Treaty rights can apply within and outside of reservation boundaries 20

Treaty-related Questions to Raise during Consultation (2016 policy cont.) 1. Do treaties exist within a specific geographic area? 2. What treaty rights exist in, or what treaty-protected resources rely upon the specific geographic area? 3. How are treaty rights potentially affected by the proposed action? 21

Guidance for Discussing Tribal Treaty Rights (2016 policy cont.) EPA s next steps typically involve: Conducting legal and policy analyses Considering all relevant information to help ensure: o EPA s actions do not conflict with treaty rights, and o EPA is fully informed when it seeks to implement its programs to further protect treaty rights and resources, when it has discretion to do so 22

Tribal Subpart O Funding Opportunities at Superfund Responses 23

CERCLA Subpart O Cooperative Agreements (CA) opportunities are identified in CERCLA* Subpart O (40 CFR Part 35, Subpart O) Purpose codifies CAs awarded pursuant to section 104(d)(1) of CERCLA *Comprehensive Environmental Response, Compensation and Liability Act 24

Tribal Eligibility To be eligible, tribes must: Be a federally recognized tribe Meet criteria set forth in 40 CFR 300.515(b) of the NCP Intertribal Consortium 25

Tribal Eligibility (con t) 300.515(b) Requirements Federally recognized Tribal governing body actively promoting health, safety, welfare of the affected population or protect the environment within a defined geographic area Have jurisdiction over a site at which a fund-financed response is contemplated Exception for Core Program CAs 26

Types of Superfund Cooperative Agreements Available Pre-Remedial Response CA Remedial Response CA Enforcement CA Removal Response CA Core Program CA Support Agency CA 27

CA Common Element Application for Federal Assistance (SF-424) Budget Sheets Project Narrative Statement Site Description Statement of Work Identify Lead Site Project Manager Site-Specific Community Relations Plan Site-Specific Health and Safety Plan Quality Assurance Schedule of Deliverables Other applicable forms and information 28

Eligibility Pre-Remedial Response CA States, political subdivisions, Indian Tribes Eligible Activities Preliminary Assessment Site Inspection Hazard Ranking System 29

Eligibility Remedial Response CA State, political subdivisions, Indian Tribes Eligible Activities Remedial investigations Feasibility studies Remedial design Remedial actions Oversee PRP cleanups 30

Eligibility Enforcement CA State or Tribe must demonstrate that it has the authority, jurisdiction, and the necessary administrative capabilities to take an enforcement action(s) to compel PRP cleanup of the site or recovery of cleanup costs Submit Letter from Indian Tribal Official certifying authority, jurisdiction and administrative capabilities Copy of applicable Indian Tribal Statute(s) and description of how it is implemented Any other documentation required by EPA 31

Eligible Activities Enforcement CA (con t) Identify Potentially Responsible Parties (PRPs) Conduct settlement negotiations Take enforcement actions against PRPs 32

Eligibility Removal Response CA States, political subdivisions, Indian Tribes Planning period of more than six months Eligible Activities When based on the site evaluation, EPA determines that a planning period of more than six months before removal activities must begin Non-Time Critical Removal Actions 33

Core Program CA Definition: A CA that provides funds to a State or Indian Tribe to conduct CERCLA implementation activities that are not assignable to specific sites but are intended to develop and maintain a State s or Indian Tribe s ability to participate in the CERCLA response program. 34

Eligibility Core Program CA (con t) Meet the definition above Only the State or Indian Tribal government agency designated as the single point of contact with EPA for CERCLA implementation is eligible to receive a Core Program CA 35

Core Program CA (con t) Eligible Activities Procedures for emergency response actions and longerterm remediation of environmental and health risks at hazardous waste sites Provisions for satisfying all requirements and assurances Development of legal authorities and enforcement support Hire and train staff Maintain sustained EPA/recipient interaction in CERCLA implementation 36

Support Agency CA Support Agency Definition: The agency that furnishes necessary data to the lead agency, reviews response data and documents, and provides other assistance to the lead agency. 37

Eligibility Support Agency CA (con t) States, political subdivisions, Indian Tribes To ensure meaningful and substantial involvement in response activities, as specified in sections 104 and 121(f)(1) of CERCLA and the NCP (40 CFR part 300) 38

Support Agency CA (con t) Allowable Activities CERCLA 121(f)(1) NCP Subpart F Participation in five-year reviews 39

CERCLA 121(f)(1) PA/SI Support Agency CA (con t) Allocation of responsibility for HRS scoring Site deletion Participation in long-term planning process Review and comment on : RI/FS, planned RA, engineering design, technical data and reports, ARAR waivers PRP negotiations Comments on Proposed Plan 40

Support Agency CA (con t) NCP Subpart F PA/SI NPL list process Site deletion ARAR identification RI/FS review Proposed plan review ROD review RD/RA PRP negotiations Removal actions 41

Other things to be aware of: Human health risk assessment Ecological risk assessment National Historic Preservation Act Native American Graves Protection and Repatriation Act Archaeological Resources Protection Act 42

Resources for more information EPA Tribal Program: www. epa.gov/tribalportal Tribal Superfund Working Group Superfund Regional Tribal Coordinators EPA Headquarters Tribal Contacts 43

Superfund Regional Tribal Contacts R1 Karen Lumino R2 Pam Tames R3 Lisa Denmark R4 Ofia Hodoh R5 Rosita Clark R6 LaDonna Turner R7 Todd Davis R8 Amelia Piggott R9 Elena Neibaur R10 Joanne Moore 44

EPA Headquarters Tribal Contacts OLEM Tribal Coordinator: Jessica Snyder (snyder.jessica@epa.gov; 202-564-1478) Superfund: Anne Dailey (dailey.anne@epa.gov; 703-347-0373) Christine Poore (poore.christine@epa.gov; 703-603-9022) Federal Facilities: Mary Cooke (cooke.maryt@epa.gov; 703-603-8712) Emergency Management: Nick Nichols (nichols.william@epa.gov; 202-564-1970) 45

QUESTIONS/ DISCUSSION?