Zaferatos - PNNW Environmental Justice

“The PM Northwest Dumpsite Remediation on the Swinomish Indian Reservation: A Case of Environmental Justice in Indian Country” Nicholas C Zaferatos Huxley College of the Environment, Western Washington University Draft: April 2005 Key Words Environmental Justice, US Indian Environmental Policy, Federal Trust Responsibility, Native American Reservation Planning The U.S Environmental Protection Agency (EPA) defines environmental justice as the "fair treatment for people of all races, cultures, and incomes, regarding the development of environmental laws, regulations, and policies." Over the last decade, national attention has focused on the environmental pollution inequity that persists among the nations' poorest communities Despite these environmental justice efforts, poor communities continue to face adverse environmental conditions With respect to the more than 550 Native American communities, the struggle to attain environmental justice is not merely a matter of enforcing national laws, but, also, a matter of the federal duty to protect Indian trust lands and natural resources, honoring a promise that Native American homelands would be forever sustainable Furthermore, the federal policy promises to assist tribes in developing and carrying out their own reservation environmental policy The PM Northwest (PMNW) dumpsite site is located on nonIndian land within the boundaries of the Swinomish Indian Reservation in Washington State Between 1959 and approximately 1970, PMNW Inc contracted with the Texaco and Shell Oil Corporations to dispose of petroleum refinery wastes In compliance with section 104(e) of the Comprehensive Emergency Response and Comprehensive Liability Act (CERCLA), the refineries indicated, in 1984, that hazardous substances from their refinery operations were disposed of on the reservation site Even though knowledge about the presence of hazardous waste material existed since the early 1980s, almost two decades would pass before the Swinomish tribe was able to convince EPA that a cleanup action under CERCLA was warranted This paper reviews the struggle to achieve environmental justice on the Swinomish homeland Environmental Justice in Indian Country 10/19/2022 Page A ceremony occurred on the morning of December 4, 2002 on the Swinomish Indian Reservation in Washington State It was a blessing ceremony to heal the land that once contained a 7-acre petroleum waste dump Spiritual leaders from the tribe prayed over the site that had undergone a $4.5 million cleanup remediation Members of the tribe extended words of thanks and appreciation and shared the cedar bough with those that helped to heal their reservation homelands It was a humbling ceremony, humbling because the Swinomish people, despite years of frustration to attain environmental justice on this now blessed site, had only words of thanks and praise for all those that were present The rain that fell on the site during the ceremony now filtered through a layer of newly imported soil, soil that replaced the excavated hazardous material, soil that could once again replenish the Swinomish aquifer, an aquifer that was perilously close to becoming contaminated It was a reminder of the risks the tribe faced had it not been successful in its two decade effort to convince the federal government of the necessity for site remediation Had contamination reached the aquifer, some of the promises made to the Swinomish People in the 1855 Point Elliot Treaty might not have been attained the promise of a sustainable homeland for the future generations of Swinomish Prior to the enactment of laws regulating the disposal of petroleum byproducts, the Texaco and Shell Corporations had hired a local contractor to dispose of refinery waste products of an upland disposal pit on the reservation In the 1960s such practices were common Despite an early federal assessment conducted in the 1980s to assess the site’s eligibility under the Superfund national priority criteria, the site was not deemed to be eligible The tribe struggled over the next two decades attempting to convince the EPA that the site needed to be made a federal priority for cleanup as it threatened the very existence of the Swinomish people Under an eventual agreement that was later signed, the petroleum refineries agreed to finance the clean up costs and remove 58,760 tons of petroleum waste product and contaminated soil from four disposal ponds on the Swinomish site Environmental Justice in Indian Country 10/19/2022 Page Environmental Justice and the Nature of Indian Country Over the past decade, national concern had emerged to recognize that the nation’s minority populations and lowest-income communities faced a disproportionate amount of adverse health and environmental risk (Slade 2000; Stephens 2000) This concern led President Clinton to issue Executive Order 12898 in 1994 (Clinton 1998), focusing federal action on environmental justice concerns EPA responded by developing the Environmental Justice Strategy which sought to promote justice and equal protection under the law for all environmental statutes and regulations without discrimination based on race, ethnicity, or socioeconomic status (Hines 2001; Ringquist 1998; Tower 2000) Meaningful environmental justice means that potentially harmed communities would have an opportunity to participate in decisions that affect their environment and that their concerns be fully considered in the decision making process (Ferris 1993; Harris 1997; Helfand 1999) Environmental justice is achieved when all people enjoy the same degree of protection from environmental and health hazards as well as equitable access to the decisionmaking process Indian tribes and their reservation communities, however, are distinct from other American minority communities In 1832 Chief Justice Marshall declared that Indian tribes are “distinct political communities having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States1 (U.S Supreme Court, 1832) The Supreme Court first recognized the existence of a trust relationship in its earliest decisions regarding the interpretation of Indian treaties (U.S Supreme Court, 1831) In almost all of the treaties entered into between 1787 and 1871, Indians ceded their land territories in exchange for promises, including the guarantee of a permanent reservation for the tribes and the federal protection of their safety and well-being The Supreme Court has held that such promises establish a special trust relationship The relationship, characterized as that of a ward to his guardian, brought with it the continued promise to create "a duty of protection" towards Indians (U.S Supreme Court, 1886) The necessity for a tribe to exercise control over its territory, therefore, was found to be a fundamental and necessary attribute to tribal self-government The unique relationship between the United States and Indian tribes has shaped the development of the doctrine of tribal Environmental Justice in Indian Country 10/19/2022 Page sovereignty and the federal Indian trust responsibility The trust relationship is the basis for the federal protection of Indian lands and resources It also provides federal aid in order to develop tribal self-governing capacities to manage reservation resources Native American Indian cultures have always had a close and unique relationship with the natural environment (Roberts 1975; Harmon 1998) The lands, waters and living things which comprise the environment on Indian lands are integral components of the social, cultural and spiritual life of Indian people Further, natural resources management has traditionally been a central responsibility of tribal governments (Deloria 1984; Lester 1986) Tribal governments have historically been among the most adamant spokespersons for preserving the integrity of their environment In order to maintain this traditional commitment to the protection of the environment, tribes have exercised their sovereign powers to manage the resources contained within their reservation boundaries (Deloria 1985; Cornell 1992) They this by setting standards for the environmental integrity of their territories, and through the regulation of activities which may affect that environment But in order for the tribes to achieve their environmental goals, they require assistance and support from the federal government in order to develop the technical and administrative capabilities to effectively operate environmental management programs In recognizing its trust responsibility to tribes and their resources, the United States, in 1983, finally acknowledged the governmental statutes of Indian tribes and established a “government to government” relationship policy between the federal government and Indian tribes (AILTP 1988; Ayer 1991)) In November, 1984, EPA published its agency policy for the development and implementation of tribal environmental protection programs (USEPA, 1983; 1984) The EPA Indian policy provides the guidance necessary for the administration of environmental programs on Indian lands: EPA will work with tribes on a government-to-government basis; EPA will recognize tribal governments as the primary authority to implement federal environmental programs on tribal lands; Environmental Justice in Indian Country 10/19/2022 Page EPA will take affirmative steps to assist the tribes in assuming regulatory responsibility for reservation lands; and EPA will encourage cooperation between the tribes and the state and local governments in the implementation of federal environmental programs As a trustee of tribal lands and resources, the United States has a duty to ensure that tribes are able to fulfill the original purposes for which their reservations were first established as tribal homelands and to take all reasonable steps necessary to protect trust resources Under its fiduciary duties as a trustee for Indian resources, the United States can be held liable for failing to protect a tribe’s resource (Cohen 1942; 1986) Thus, the federal trust obligation is broad; it requires the United States to aid tribes in their efforts to protect reservation resources from damage or degradation (Marx and others, 1993) EPA policy has also actively resisted the application of state regulatory jurisdiction on Indian lands The 9th Circuit Court of Appeals recognized that EPA properly denied Washington’s State’s assertion of hazardous waste regulatory jurisdiction over reservation environments (State of Washington 1985) Similar reasoning was applied in other cases where the Court of Appeals for the 10th circuit affirmed EPA’s authority to implement the underground Injection Control (UIC) program on Indian lands even before Congress specifically authorized EPA to so under the 1986 Amendments to the Safe Drinking Act In Nance (U.S Supreme Court 1981), the court supported EPA’s approval of the Northern Cheyenne tribe’s redesignation of the reservation air shed from Class II to Class I, even though no express authorization for such action was mentioned in the federal Clean Air Act Further, in Blue Legs v USEPA (U.S Supreme Court 1987), the court recognized that tribal adoption of an open dumping ordinance under federal solid waste legislation established tribal authority and responsibility for implementing the federal program Tribal governments, therefore, are recognized under federal environmental laws as one of three sovereigns which comprise this nation (Royster 1987; Suagee 1990) Tribal governments thus have the opportunity to exercise their sovereign power to protect the health and welfare of the reservation population and to preserve the quality of the reservation environment Environmental Justice in Indian Country 10/19/2022 Page Tribes have made significant progress over the past decade in ensuring that the protections of the nation’s environmental laws extend to Indian country The EPA’s 1984 Indian policy has led to the amendment of several of the nation’s environmental laws that authorize Indian tribes to assume the primary role for managing their environmental resources (Harris 1997; Lewis 1986) The authority for tribes to assume the primary role as managers of their environmental resources affords them the opportunity to implement environmental protection programs that are consistent with their traditional values It is difficult for any tribe acting alone to accomplish these goals, however, especially when faced with the remediation of environmental degradation caused by non-Indian persons on non-Indian reservation lands (Sanders 1982; Weiver 1990) As sovereign nations, while Indian tribes retain authority to manage and control their affairs on their reservations, their authority to extend tribal laws upon non-Indians is often unclear or contested (Winchell 1995) Tribal authority is based on the dual power of inherent authority as well as delegated authority by Congress under the environmental statutes Tribes possess all the powers of any sovereign state, subject to the overriding legislative power of the federal government A tribe, therefore, has the power of self government to “make its own laws and be ruled by them” (NIPC, 1993; Goeppele, 1990) But in addition to the tribe’s inherent right of self government, Congress has also, in several instances, delegated civil regulatory authority to Indian tribes Several of the federal environmental statutes allow tribes to apply to EPA for “treatment as a state” (TAS) similarly to the procedure afforded to the states (USEPA 1994; 1995) TAS statutes allow federal power to be exercised directly by a tribe, and provide grant assistance to help build the prerequisite tribal technical and administrative capacity necessary to exercise delegated federal authority under the environmental statutes TAS programs transfer primary administrative duties to tribes to act with equal authority as the states over their reservation territories Delegated federal power under TAS is especially important when addressing environmental violations involving non-Indians on non-Indian lands within the reservation, where the reach of tribal authority alone may not be sufficient to enforce compliance with tribal laws (Zaferatos 1998) Although the EPA retained responsibility of protecting the reservation's environmental quality, it rarely exercised its obligations Despite EPA’s adopted Indian policy establishing the tribe's authority to conduct reservation-wide environmental programs, the authority to delegate Environmental Justice in Indian Country 10/19/2022 Page programs to the tribes occurred about two decades after the initial enactment of the environmental laws As a result of the exclusion of tribes in the early period of environmental capacity development, tribal lands were often ignored, the tribal role in the implementation of federal programs was not clearly defined, and tribal capacity to operate regulatory programs remained largely underdeveloped The Swinomish Tribe’s Environmental Authority The Swinomish tribe is a federally recognized Indian tribe organized pursuant to the Indian Reorganization Act (IRA, 1934), and derives its authority from its Constitution and Bylaws The Swinomish Indian Reservation is the permanent tribal homeland The tribe has governing powers over its reservation lands and resources, and has the right to protect, conserve and restore the total environment of the lands, air, waters, flora and fauna, and other resources traditional to their culture The tribe is also a natural resource trustee under applicable federal law The tribe has been regulating land use and water quality within the reservation boundaries since the 1970s and has established an environmental commission through which it has negotiated an agreement with EPA under TAS to provide for cooperative management of tribal environmental resources Figure here As the tribes assume greater responsibilities under federal environmental programs, their need to develop technical capabilities has also increased States, having received program development funding from the EPA for over two decades, can provide an important role of support in the development of tribal programs In return, the states benefit by assisting in the development of tribal environmental programs that achieve a greater environmental policy consistency that helps to overcome problems associated with transboundary issues The Swinomish tribe has also entered into a tri-lateral agreement between Washington's Department of Ecology and EPA for cooperation in administering permit activities under the federal National Pollution Discharge Elimination System (NPDES) program that essentially contracts with the state for technical assistance to support tribal and EPA decisions regarding on-reservation pollution discharge permits The EPA retains permit issuance responsibility under the NPDES program until such Environmental Justice in Indian Country 10/19/2022 Page time that the tribe enacts its own water quality standards and applies for program delegation In addition to protecting public health and safety, tribal economic survival is also dependent upon the maintenance of reservation environmental quality Assistance provided under the EPA Indian policy provides opportunities to strengthen tribal governance over its territory while also fostering cooperative relations with state and local governments History of the PM Northwest Dump Site The tribe had prioritized the investigation and assessment of potential hazardous environmental threats to its reservation in its earliest environmental management strategy stemming from awareness of the historic disposal practices on the reservation that had occurred since the late 1950s The following summarizes the chronology of events tracing the tribe’s attempt, from 1981 to 2000, to assess the environmental threat to groundwater resources and to obtain federal assistance to remove the threat to the reservation environment Section 103 of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA) required industries engaged in the transport and disposal of hazardous waste material to submit a disclosure report on disposal practices on or before June 9, 1981 Three industries reported the disposal of materials on the Swinomish Indian Reservation The Texaco and Shell Petroleum refineries are located immediately adjacent to the reservation on Fidalgo Island in Skagit County, Washington On June 11, 1981, the Texaco Corporation reported disposing 126,000 gallons of waste to the reservation landfill between 1959 and 1961 and indicated that there was “no likely suspected releases to the environment.” The Shell Oil Company reported on June 8, 1981 that its waste disposal between 1960 and 1968 included refinery wastes that were not tested prior to disposal at the reservation site On May 29, 1981, PM Northwest Inc (PMNW) reported its activities in handling waste materials collected from the Shell and Texaco refineries since 1958, listing a variety of wastes materials including spent catalyst, oil sludge, and spent caustic materials that were disposed in a landfill site it operated on the reservation It reported a disposal quantity of 13,000 cu ft of material within its 21.9 acre reservation facility PMNW operated its disposal site since 1959, Environmental Justice in Indian Country 10/19/2022 Page and reported closing the dumpsite thereafter because of financial failure The disposal pits were covered over with clean soil in 1967 after not being used for several years In the disclosure report, PMNW indicated that “at the present time there was approximately one acre where some oil has surfaced” It also reported that there were no homes or wells in the area for at least a mile in any direction During the initial investigation, EPA failed to notify or include the tribe in its activities In investigating the potential types of toxicants in the Shell and Texaco waste materials disposed of on the reservation, the Washington Department of Ecology (WDOE), working in conjunction with the EPA inquiry, identified the potential for several different types of pollutants, including aluminum oxide, hydrochloric acid, fluorides, and other hazardous materials EPA reviewed the industry disclosure reports and in a correspondence to WDOE, found that “there was not enough information to make judgment,” recommending that a site visit be scheduled for further review EPA records indicated that a site investigation was conducted in June 1981 It noted in its files that the PMNW site score under CERCLA criteria would likely be “ low, and it is likely that the quantities of heavy metals involved is small,” based, in part, on comments made in the Shell and Texaco reports Later, EPA findings revealed a copy of an invoice dated January 6, 1970 from PMNW to Shell listing 939 barrels of waste material and 295 drums that had not been previously reported on the federal CERCLA section 103 disclosure forms On October 23, 1985, EPA sent a letter to the landowners of the PMNW site announcing that additional information was required to accurately profile the nature and extent of past waste disposal activities at the site In November, 1985, a second on-site inspection occurred as a result of conversations among EPA, the U.S Bureau of Indian Affairs, DOE and PMNW The inspection report concluded that large quantities of uncharacterized petroleum refinery wastes were disposed at the site In 1987, the tribe, having been informed of the inspection by the Bureau of Indian Affairs, sent a letter to EPA stating that had they not been contacted about the inspection done by the EPA site assessment contractor in June 1986 and that, unknown to EPA or to its contractor, the tribe’s public water supply was located within mile of site The tribe outlined several concerns: 1) the PMNW site’s close proximity to the tribe’s ground water source, 2) disposal quantities were still Environmental Justice in Indian Country 10/19/2022 Page unknown, 3) tribal members working for both companies between 1960-1970 testified that the companies disposed large quantifies of caustic liquids in 55 gallon drums into deep pits and later buried those pits, 4) the potential for groundwater seepage contaminating both the reservation aquifer as well as adjacent marine wetlands, and 5) the assurance that the tribe would be directly involved with all further studies The EPA site investigation report identified the existence of surface ponds with limited information regarding the ponds’ contents This prompted the tribe to request EPA to conduct soils and groundwater testing In response, in 1986, EPA conducted a limited soils and groundwater sampling investigation and concluded that measurable amounts of several petroleum products existed in the soils However the potential for groundwater contamination was still unknown EPA refused to further consider the site as a candidate for the Superfund program due to the petroleum exclusion provision in CERCLA In a letter to EPA, the tribe requested that additional hazardous site analysis be conducted to fully evaluate the potential threats to the reservation environment This request was in response to the recommendations contained in the EPA report that concluded that no further actions under CERCLA were needed to be taken and that no further Superfund actions should be considered In a later correspondence to the tribe on April 4, 1990, EPA suggested that the tribe should approach the Bureau of Indian Affairs for assistance in conducting groundwater studies and insisted the site was not eligible for NPL listing or superfund assistances In response to repeated tribal requests for investigative action, EPA notified the tribe in November 23, 1990 that it had sent a notification letter to PMNW requesting additional information pursuant to CERCLA and RCRA The letter requested PMNW to identify the chemical characterization of all hazardous substances disposed at the site, and for each hazardous substance, to identify how they were handled by providing a shipping manifesto along with any environmental investigations that may have been conducted relevant to the site On January 4, 1991, the tribe notified EPA that it had failed to properly inform and involve the tribe in the original 1986 site investigation, which resulted in the exclusion of tribal testimony The tribe emphasized in its letter that by excluding the tribe, EPA failed to recognize tribal jurisdiction and interests over reservation public health and welfare The tribe requested EPA to recognize its fiduciary responsibilities pursuant to its federal trust relationship, and demanded Environmental Justice in Indian Country 10/19/2022 Page 10 Regional Director finally agreed to support the tribe in its efforts to fully assess the site under CERCLA rules EPA also agreed to conduct its relationship with the tribe under the EPA government to government policy EPA also agreed to the tribe’s request to expand the sampling investigation in order to detect the presence of PCBs and Chlorinated organics to characterize the presence of compounds in the groundwater system Subsequent data collected at the site as a result of tribal request showed the presence of a variety of hazardous substances, which later led the USEPA Region 10 Office of Regional Counsel to conclude that a federal response to the site is not limited by the petroleum exclusion provision under CERCLA The agreed action, to proceed with further EPA investigation in cooperation with the tribe, was formalized in an agreement that was drafted by the tribe During 1998 and 1999, EPA conducted an Integrated Site Assessment (ISA) to determine the need for a site clean up response action The site assessment involved the collection of samples from the former disposal pond areas and from target areas potentially impacted through contaminant migration Samples collected from the former disposal ponds in June 1998 included aliquots from 11 excavated containers and several samples from sludge material surrounding the drums A total of 36 soil, sludge, or product samples and six infiltrated groundwater samples were collected During a subsequent sampling phase in late 1998 and early 1999, samples were collected from monitoring wells, the tribal municipal well, the perimeter of the dump site, and the wetland area east of the dump site A total of 22 ground water, five surface water, 22 sediment and 24 samples were collected Figure The ISA recovered several buried drums and documented the release of hazardous substances at the site Future response activities for the site included the removal of hazardous substances for off-site disposal at a RCRA approved hazardous waste management facility, additional characterization of groundwater contamination, implementation of a response action to address ground water problems, and investigation and implementation of response actions for hazardous substances that have migrated away from the PMNW property EPA agreed to further evaluate the site for placement to the National Priorities List (NPL) pursuant to Section 105 of CERCLA Results from ISA activities included the following findings: Environmental Justice in Indian Country 10/19/2022 Page 13 Table Integrated Site Assessment Findings Sample Location Disposal pond surfaces and Federal or State Standards Region soil PRGs, EPA Sampling Results and Exceedance Levels Benzene (94,000 ug/kg), subsurface soils, sludge and MCLs, or MTCA Method A Benzo[a]-anthracene (100,0000 ug/kg), Carbon drum contents Soil Cleanup Levels Tetrachloride (2200 ug/kg), Mercury (7900 gu/kg), Naphthalene (1,300,000 ug/kg), 1,3,5-Trimethyl-benzene (540,000 ug/kg), Benzo[b]-fluoranthene (5,700 ug/kg), Benzo[a]-pyrene (200,000 ug/kg), Carbazole (200,000 ug/kg), Chrysene (300,000 ug/kg), 1,2,4-Trimethyl-benzene (950,000 ug/kg), 1,3,5Trimethyl-benzene (540,000 ug/kg), 1,2-Dibromo-3-chloropropane (25,000 ug/kg), 2,6-Dinitrotouluene (300,000 ug.kg), n-Nitrosodium-phenylamine (1,000,000 ug/kg), Tetrachloroethene (28,000 ug/kg), Arsenic (26,000 ug/kg), Cadmium (3,800 ug/kg), Chromium (2,700,000 ug/kg), Lead (330,000 ug/kg) Total Petroleum Hydrocarbon (TPH) standard was exceeded in 33 of 37 samples collected from the identified source areas Groundwater samples from Region PRGs (tap water), Benzene (650 ug/l), monitoring wells EPA MCLs or MTCA A Benzo[b]-flouranthene (5 ug/l), Protection of Groundwater bis(2-Ethylhexyl)-phthlate (20 ug/l), Cleanup Levels Naphthalene (45.4 ug/l), 1,3,5-Trimethyl-benzene (280 ug/l), Dibenzofuran (43 ug/l), Chrysene (23 ug/l), Ethylbenzene (140 ug/l), 1,2,4-Trimethyl-benzene (570 ug/l), Environmental Justice in Indian Country 10/19/2022 Page 14 Methylene Chloride (23 ug/l), Toluene (910 ug/l), Vinyl Chloride (2 ug/l), Antimony (20.6 ug/l), Barium (2,200 ug/l), Chromium (410 ug/l), Lead (7.51 ug/l) Surface water samples Ambient Water Quality Arsenic (13.7 ug/l), collected from locations in Criteria, or MTCA B Surface Aluminum (6790 ug/l), Copper (47.9 ug/l), and near the adjacent Water Cleanup Levels Iron (53,900 ug/l), wetland area Lead (130 ug/l), Mercury (0.14 ug/l), Nickel (31 ug/l) Sediment samples collected MTCA Sediment Quality from locations in and near Standards the adjacent wetlands area Other volatile organic, semi- Detected substances below VOCs and SCOVs are not naturally occurring volatile organic compounds screening or regulatory levels chemicals and should not be present Detected and metals detected in the Cadmium (8.85 ug/kg) metals exceeded background concentrations various media sampled at the Site On April 25, 2000, EPA urged the responsible parties to voluntarily enter into negotiations with for the performance and financing of a cleanup response action under CERCLA Figure The Cleanup Agreement EPA negotiated a Memorandum of Agreement (MOA) with the Tribe that set forth the working relationship, roles and responsibilities between EPA and the tribe (USEPA 2000a) EPA would act as the lead agency for site cleanup activities working in consultation with the tribe The tribe also would be a signatory to an Administrative Order on Consent (AOC) with respect to cleanup Environmental Justice in Indian Country 10/19/2022 Page 15 activities at the PMNW site (USEPA 2002b) The mutual commitments made by the tribe and EPA to work together to satisfy the goals of the agreement are summarized in Paragraph IV.2 of the MOA as follows: EPA will consult with the tribe with respect to (1) all major decision points, broad issues, and overall results regarding the Site and (2) other matters regarding the Superfund process concerning the Site which the parties may agree are of significance to the tribe as discussed during their periodic meetings or other communications As used herein, “consult” was defined as the process of seeking, discussing, and considering the views of the tribe at the earliest time in EPA Region 10’s decision making Consultation means more than simply providing information about what the agency is planning to and allowing comment Rather, consultation means ongoing two-way communication that works toward a consensus reflecting the concerns of the tribe The AOC provides that the tribe shall be treated as a state under section 126 of CERCLA with respect to implementation of response actions The tribe’s role as a state, together with EPA’s obligations to deal with the tribe on a government to government basis, are controlling under the agreement The tribe was directly involved in all aspects of the site clean up work, including overseeing field work and commenting on work products and deliverables The tribe had retained a consultant to assist in reviewing work products and deliverables under the AOC Since EPA did not allocate resources for contractor support at the site, EPA relied on the expertise of the tribal staff and its consultants as the work proceeded The cleanup agreement between EPA, the tribe, and the responsible parties provided for the complete cleanup of the site The response was to be conducted in two phases Phase involved contaminant source removal as a “time-critical removal action” (TCR) Phase 2, a “non-time critical removal action” (NTCR), assessed the potential risk to off-site properties and evaluated further EPA response actions The Phase investigation would be conducted following completion of the Phase TCR action Figure Environmental Justice in Indian Country 10/19/2022 Page 16 Conclusion and Lessons Learned The MOA that was executed with the tribe provided a framework for good faith government to government coordination for the CERCLA response activities conducted at the reservation PM NW site, and ensured that EPA fulfill its trust responsibilities to consult with the tribe prior to taking action that affected tribal reservation resources The MOA also established procedures for consulting with the tribe under the provisions of the AOC The MOA identified each government’s role and responsibility relating to the remedial actions that occurred at the site The MOA further created a consultative relationship between EPA and the tribe consistent with the EPA Indian policy In accordance with that policy, EPA recognized the tribe as the primary party for setting standards, making environmental decisions, and managing programs affecting the reservation, and the health and welfare of the reservation population Although the tribe has an inherent right to take unilateral enforcement action under its own authority, it agreed that EPA, as the federal trustee over the reservation environment, should assume the lead agency role for undertaking Superfund response activities at the site The MOA did not modify, diminish, or alter the rights and entitlements of the either the tribe or the EPA The tribe’s participation in the Agreement and in the Superfund process did not constitute a waiver of sovereign immunity by the tribe The MOA was intended to facilitate intergovernmental coordination between the parties As an Environmental Justice Initiative, from 1986-2003 the tribe was successful in its efforts to:  Prove the existence and risk to human health and to the environment, of an uncontrolled, abandoned hazardous waste disposal site located on the reservation,  Assist the EPA, through persistence, to advance tribal sovereignty as well as the agencies’ federal trust responsibilities,  Join with EPA, Shell Oil Company, Texaco, Inc., and PM Northwest, Inc as signatory to AOC ordering the remediation of the site, Environmental Justice in Indian Country 10/19/2022 Page 17  Become an active cleanup participant, as a consulted government, under the terms of the Agreement with EPA, and  Expand tribal self-governance capacity by acquiring staff and consultants to negotiate cleanup standards, oversee remediation activities, and support investigations of off-site contaminant migration Because the cleanup project began a decade prior to Executive Order 12898 which requires EPA to develop its environmental justice strategy, the assertion of sovereignty and trust responsibility in the cleanup effort was fraught with delays, frustrations and difficulties However, in addition to the successful implementation of site cleanup activities, the process helped EPA to better come to terms with the meaning of its own Indian policies, and helped the tribe to develop greater environmental program management capacity Through persistence, relationship building, and the establishment of mutual expectations in formalized agreements, human health and the environment on the Swinomish Indian reservation were protected Because the reservation is essentially an island surrounded by saltwater, the reservations’ sole-source groundwater aquifer and adjoining wetlands and tidal areas could potentially have been significantly degraded by migration of contaminants from the disposal site had the cleanup action not occurred As an environmental justice initiative, the primary challenge facing the tribe was to assert its own sovereignty and its interests in order to persuade EPA to acknowledge its legal responsibilities as a federal trust agency From 1981 to 1986, site investigation activities conducted by EPA and its consultants occurred in the absence of any involvement by the tribe Indeed, even the Washington State Department of Ecology was included in the process, without tribal knowledge In 1986, after EPA announced that no cleanup actions were required, the tribe was finally notified When the tribe protested EPA’s findings and decisions, the potential of risk to tribal resources was repeatedly minimized The tribe, however, was diligent in its efforts In order to prove that environmental risk was present, other federal agency support was solicited Tribal leaders lobbied continually on a government-to-government basis, from 1987 until 2000, when the agreement providing for site cleanup was finally reached The experience resulted in several important outcomes: Environmental Justice in Indian Country 10/19/2022 Page 18  Protection of human health and the environment through the excavation and off-site disposal of 58,790 tons of hazardous materials,  Protection of human health and the environment through the negotiation of residual soil cleanup standards that exceeded state requirements by 30%,  Confirmation that potential off-site contaminant migration does not present a risk to human health and the environment,  Expanded tribe’s environmental management capacity to collaborate on a technically equal basis with EPA during the cleanup process, that later enabled the tribe to manage the closure of a large reservation solid waste landfill, clean up other abandoned reservation waste sites, and participate in regional waste management initiatives  Assertion of tribal sovereignty that led to federal agency performance consistent with the federal trust responsibility,  Negotiation of the MOA and AOC defining the government-to-government relationship governing the clean up program, and  Reimbursement of 13 years of costs related to tribal efforts to implement cleanup of the PMNW site The project demonstrated that tribal technical capacity can be developed at a high level of qualification, and that the involvement of tribal government in the environmental cleanup process can contribute to the success of the project Following an almost twenty year effort to engage the resources of EPA as a trustee of the reservation environment, the cleanup investigations and cooperative management activities became a model of technical and political collaboration And consistent with tribal cultural traditions, a proper closure to the project occurred during the ‘Blessing of the Land’ ceremony It was a cultural sharing, healing and recognition process that included over 70 individuals representing the tribe, EPA, the refineries and the property owner, contractors, and the local and regional media Hosted by the tribal chairman and supported by Swinomish spiritual groups, under a tent in the woods during a Pacific Northwest rain, the Environmental Justice in Indian Country 10/19/2022 Page 19 process concluded with a show of appreciation, recognition, and remembrance of the reasons why everyone was brought together As one oil company representative expressed: " …in combined effort with the tribe, EPA, the oil companies and the landowner, environmental mistakes of the past were corrected, cleaned up and healed I wish to thank all of those who took an active part and particularly the tribe for their graciousness and for teaching us something about the sacredness of the land.” The environmental justice experience on the Swinomish Indian Reservation demonstrates how tribal self-determination and tribal capacity building is necessary in order to bring about environmental justice in the most marginalized segment of the American landscape – Indian Country The experience not only removed the environmental conditions that threatened the long term survival of the tribal community, but it also helped foster a meaningful partnership between the tribe and the federal trustee to cooperatively manage the reservation environment Environmental Justice in Indian Country 10/19/2022 Page 20 Acknowledgements The author wishes to acknowledge several of the many people who were responsible for pursuing the tribal environmental justice effort and carrying out the eventual cleanup action on the Swinomish Indian Reservation: WaWalton, former tribal chairman, Brian Cladoosby, tribal chairman, Lorraine Loomis, tribal natural resources director, Jim Wilbur and Larry Campbell, Swinomish Environmental Commission, Lauren Rich, tribal environmental planner, Charlie O’Hara, tribal planning director, Allan Olson, tribal general manager, Sharon Haensley, tribal attorney, Steve Roy, Bureau of Indian Affairs, Chuck Clarke, USEPA Region 10 Regional Director, and Rich McAlister, USEPA attorney, Environmental Justice in Indian Country 10/19/2022 Page 21 Literature Cited BOLD MEANS NEED REFERENCE IN TEXT American Indian Law Review (AILR) 1982 “Zoning: controlling land use on the checkerboard: the zoning powers of Indian tribes after Montana v United States.” American Indian Law Review 10 American Indian Lawyer Training Program, Inc (AILTP) 1988 Indian Tribes as sovereign governments Oakland, CA Ayer, M Francis 1991 Meaningful implementation of the government-to-government relationship between each Indian tribe and the United States: A concept paper National Indian Policy Center, Washington, D.C Bryant, B (ed) (1995) Environmental Justice: Issues, Policies, and Solutions Washington, DC: Island Press Bryant, B., and P Mohai (eds) (1992) Race and the Incidence of Environmental Hazards: A Time for Discourse Boulder: Westview Press Bullard, R.D (ed) (1993) Confronting Environmental Racism: Voices from the Grassroots Boston: South End Press Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (Superfund), 42 U.S.C 9610 et Seq Clinton, William, President 1998 Executive order on consultation with Indian Tribal governments Federal Register: May 19, 1998, 63:96 Presidential Documents, 2765527657 Cohen, Fay G 1986 Treaties on trial: The continuing controversy over Northwest Indian rights University of Washington Press, Seattle, WA Cohen, 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(1996) Environmental Justice: A Reference Handbook Denver: ABC-CLIO Pulido, L (1996) “A critical review of the methodology of environmental racism research.” Antipode 28:14 2-1 59 Environmental Justice. .. ug/kg), 1,3,5Trimethyl-benzene (540,000 ug/kg), 1,2-Dibromo-3-chloropropane (25,000 ug/kg), 2,6-Dinitrotouluene (300,000 ug.kg), n-Nitrosodium-phenylamine (1,000,000 ug/kg), Tetrachloroethene... federal action on environmental justice concerns EPA responded by developing the Environmental Justice Strategy which sought to promote justice and equal protection under the law for all environmental