Environmental Protection Agency (EPA) Ignores the National Historic Preservation Act (NHPA) and Bulldozes at least 8,000 Years of Cultural History.

$40,000,000 in Archaeological Site Destruction
in Lake County, California

To learn more about this travesty, select sub-items from the drop-down menu under the “EPA Disaster” button above.

The “Related Docs” menu item takes you to the various documents dealing with the mess.

For specific information on the damage done (both before and after an archaeologist was called in), click on the “Damage” submenu items.

Then look at the “Final Insult” sub-menu item.

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Between June and October 2006, the EPA decided to proceed with a toxic waste cleanup project on the Elem Indian Colony reservation in Lake County without following the requirements of the National Historic
Preservation Act (NHPA), a law that applies to all federal agencies.

Because the EPA did not complete the required archaeological evaluation of the project area as required by Section 106 of the NHPA. The excavation and construction project was designed oblivious to the fact that National Register quality historic and prehistoric sites existed immediately beneath the toxic mine tailings. These sites contained a record of the Elem culture from 14,000 years ago to the recent historic period.

During the project, at least 7,000 cubic meters of cultural site soils were destroyed before the EPA agreed to the Tribe’s pleas to call in an archaeologist to evaluate the area. After the archaeologist arrived, the EPA ignored his recommendations, destroying another 900 cubic meters historic resources.

The EPA was not operating totally in the dark with respect to cultural resource knowledge on this project. Throughout the 6 year, pre-project planning process, Tribal members and three separate Tribal Chairmen expressed concern about the preservation of the Tribe’s cultural heritage and archaeological sites. The earliest letter in the EPA files was written in 2000. In it, Tribal Chairman Jim Brown III states,

• “The entire are (Elem Indian Colony and Sulphur Bank Mine) should be deemed an archaeological sensitive zone, and until a comprehensive and adequate cultural resources assessment has been completed, no earthmoving activities should take place within this zone.”

EPA’s enabling regulations require that they follow,

• “those cleanup standards, standards of control, and other substantive requirements, criteria, or limitations promulgated under federal environmental or state environmental or facility siting laws (40 CFR 300.5)”

This means that the EPA was required to “substantively” follow the requirements of the National Historic Preservation Act.

In addition, EPA regulations specify that the EPA,

• “shall consult with the effected trustees on the appropriate removal action to be taken. The trustees will provide timely advise concerning recommended actions with regard to trustee resources potentially effected (40 CFR 300-310)”

This means that the EPA should have also consulted with Bureau of Indian Affairs (BIA) archaeologists, the State Office of Historic Preservation, and the Advisory Council on Historic Preservation before initiating the Elem Cleanup Project. In a recent letter from the Advisory Council to the EPA (Click to see letter 12-11-07), it is made clear that the EPA failed to substantively comply with the National Historic Preservation Act.

In addition to non-compliance with the NHPA and their own regulations, the EPA also failed to conduct a “Resource Damage Assessment” and restoration plan for cultural resources damaged by their action as required by Title 43 Code of Federal Regulations Part 300.165.

Society for California Archaeology (SCA) Official Statement Concerning the EPA Disaster

After reviewing all the facts, the Society for California Archaeology Executive Board weighed in on the EPA’s failings. Their statement (published in the December 2007 Newsletter) states,

• In the first two months of the project, no attempt was made to comply with Section 106 regulations. There was no pre-construction archaeological survey, no sensitivity study, no attempt to identify resources that were eligible or potentially eligible for the National Register of Historic Places, and no effort to have in place some sort of formal treatment plan to address potentially significant resources that could be uncovered during construction.
  
• Judging by the photographic evidence submitted by both parties, and archaeological reports by both Dr. Parker and John Holson (Pacific Legacy), a substantial portion of what appears to be an intact deposit was mechanically excavated and removed prior to the hiring of a qualified archaeologist.
  
• The EPA did not begin consultation with the State Office of Historic Preservation (OHP) until the OHP received a complaint from Tribal Administrator Jim Brown III in July of 2006, a month after earth moving
  activities had started.

The SCA Board lists three main concerns:

1. The lack of an EPA Cultural Resources Manager anywhere within Region 9, which covers Arizona, California, Nevada, Hawaii, and the Pacific Islands, clearly has resulted in a lack of oversight on this and presumably other EPA projects;
   
2. The lack of an internal process for complying with Section 106, CERCLA, and other federal laws… has resulted directly in the destruction of at least a portion of what appears to be an important archaeological resource;
   
3. The growing trend in the cultural resources management field that tribal consultation is the only component of Section 106 that needs to be followed, that tribal monitoring is the equivalent of or can be conducted in lieu of archaeological study, and that values attributed to cultural resources by tribal groups are the only values those resources have, is clearly resulting in the loss of cultural resources.

In sum, the SCA Board indicates that,

“Had the EPA followed Section 106 regulations, damage to this site could have been avoided, resources important both to the tribe and for archaeological research could have been protected, and both the EPA and Elem could have avoided a lawsuit.” “The lack of oversight and a formal process for complying with the law that this project illustrates is glaring, completely avoidable, and needs to be addressed immediately by the EPA.”

The Society for American Archaeology Statement

“The consensus of the Board is that while the EPA cleanup was important and timely, EPA failed in its responsibilities to comply with Section 106 regulations regarding cultural resources.”

TWO THINGS NEED TO HAPPEN IN THIS CASE.

1. Congress needs to take a serious look at how the EPA does business. If the EPA has somehow found a hole in the National Historic Preservation Act, then that hole needs to be fixed, bringing the EPA back in line with all the Elem reservation cannot be allowed to ever happen again.
2. The Elem Community and the general public need to be reimbursed for the loss of this cultural history. The EPA has taken from all of us important information about California’s cultural past.