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Primary restoration versus “replace or acquire the equivalent” of tribal reserved

lands under NRDA

Dr. F.E. Kirschner, LHYG, LG

ACES, December 10, 2010

Phoenix, Az

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A Little About Us . . .

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Current Superfund/NRDA Projects

• Midnite Uranium Mine Superfund RI/FS and NRDA, Spokane WA

• Bunker Hill Mine Superfund RI/FS and NRDA, Kellogg, ID

• Upper Columbia River Superfund RI/FS and NRDA, Spokane WA

• Leviathan Mine Superfund RI/FS and NRDA, Carson City, NV

• Anaconda-Yerington Superfund RI/FS and NRDA, Yerington, NV

• Sulphur Bank Mercury Mine Superfund RI/FS and NRDA, Clearlake, CA

• International Paper Superfund RI/FS and NRDA, Leech Lake, MN

• Hanford Nuclear Reservation, Hanford, WA

• Tar Creek Superfund RI/FS and NRDA, Miami, OK

• Onondaga Lake Superfund RI/FS and NRDA, NY

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Other Areas

• Tribal Surface Water Quality Standards

• Tribal Hazardous Substances Codes

• Tribal Integrated Resource Management Plans

• Tribal-Specific Human Health Risk

• Tribal-Specific Resource Advisories

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I. Goals of RI/FS: Cleanup that is protective of Human Health and the environment.

II. Goal of NRDA: Return Natural Resources

and use of those Natural Resources to their original states (Make Tribe Whole Again)

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EPA-RI/FS (aka the dark side)

NRDA

Tribal/Federal “CERCLA Universe”

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NRDA

EPA-RI/FS (aka the dark side)

TRIBAL LOSS

Federal “CERCLA Universe”

Tribal “Universe”

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NRDA

EPA-RI/FS

TRIBE

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Spokane Reservation

1. Reservation can be conceptualized as an Island with Finite Resources

2. Each Acre Lost to Contamination (or Stigma Associated with Contamination) or Development Results In:

• Reduction of the Carrying-Capacity of the Land (Number of Members Able to Practice Traditional Cultural Lifeways)

• Members Currently Practicing Traditional Lifeways Must Relinquish Some Uses to Other Members

Bottom Line: ALL Land is Highly Valuable to the Tribe and therefore must be Preserved for All Future Uses (PAFU)

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A little about the SpokaneLarge portion of current members are subsistence hunters, fishers, and gatherers

Culture is not classical anthropocentric (utilitarian). Ecology is considered just an extension of the temporary person.

“The environment is what makes a Spokane, Spokane. And the reservation is the only place where I can, and where my children and there children’s children will be Spokane.”

-- Rudy Peone

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EPA’s RELIANCE ON PERPETUAL OR LONG-TERM INSTITUTIONAL CONTROLS IN REMEDIES ON TRIBAL LANDS COULD BE CONSTRUED AS TANTAMOUNT TO EXPROPRIATION

expropriation…the action of the state in taking of modifying the property rights of an individual in the exercise of its sovereignty (Webster).

EPA’s REMEDIAL ACTION TOOL BOX:1. REMOVE

2. CONTAIN/CONTROL3. INSTITUTIONAL CONTROLS (HANG A SIGN ON IT)

Little environmental contact.Few exposure pathways.Some environmental recreationGroundwater release

Air release

Simplified Concept of a Suburban Exposure Scenario

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GAMEPROCESSING

AIR AND DUSTINHALATION

GAME MEAT

GARDEN PRODUCE

WETLANDSRESOURCES

MONTANERESOURCES

CULTURALACTIVITIES

GROUNDWATER

AQUATIC FOODS

GATHEREDFOODSSURFACE

WATER USE

IRRIGATION

DESERT RESOURCES

RIPARIANRESOURCES

SEDIMENTEXPOSURE

DIRECT SOILEXPOSURE

A Traditional Environmental Knowledge-based Scenario

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The Spokane Tribe’s Multipathway Subsistence Exposure

Scenario and Screening Level RME

Barbara L. Harper, Brian Flett, Stuart Harris, Corn Abeyta, and Fred Kirschner

Risk Analysis, Vol. 22, No. 3, 2002

Fredk@aeseinc.com

509.924.0184

GreensPine Nuts Roots

XX Tribe’s Food Pyramid2500 kcal/day –

(Quantities of each food group by %)(Not an exhaustive species list)

Berries,Other

Unique Pathways:• Sweat Lodge• Other cultural

More resource use:• more species• more habitats• more native foods

and medicines

Greater Contact:• more water• more soil ingestion

RESULT: Subsistence lifestyles result in 10 to 100 times more exposure than suburban lifestyles.

Drinking Water 2 liters per day 4+ liters per day

Fish Ingestion 17.5 grams/day 500-1000+grams/day

Duration of exposure 30 years 70 years (+ generations)

Exposure Factor Suburban Subsistence

Frequency of exposure 180 days/year 365 days/year

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Sweat Lodge, other NO YES

EPA (Omernick) Ecoregions

Scenarios – EPA Star Grant (OSU; Harper) and/or mixed funding

Scenarios – other funding sources

Spokane(complete)

Umatilla(complete)

Swinomish(in progress)

Washoe(complete)

Ojibwe(in progress)

Maine Tribes(in progress)

Elem (Pomo)(in progress)

Quapaw (in progress)

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“4 out of 5 People in the World Use Plants as their Main Source of Medicine”

Dr. Mark Plotkin (Ethnobotanist)

Plotkin is the author of several books, and has been named an environmental "Hero for the Planet" by Time magazine.

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Summary 1

• If a Tribe is Not Consulted Early, Cleanup will be based on State ARARs or Federal Health Standards/Goals for the General Public.

• These Circumstances Result in a Very Large Future Residual for NRDA (Return to Baseline Services)

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"an eye for an eye", is a quotation from several passages of the Hebrew Bible (Leviticus 24:19–21, Exodus 21:22–25, and Deuteronomy 19:16-21) in which a person who has injured the eye of another is instructed to give the value of his or her own eye in compensation. It defined and restricted the extent of retribution in the laws of the Torah.

Restoration, Rehabilitation, Replacement, and/or acquire the equivalent of…

"an eye for an eye", or the “principle of exact reciprocity” is very clearly used concept in the Code of Hammurabi

HEA is merely an attempt to achieve equivalency

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HUMANS

Ecosystems SimplifiedThe “Headwaters” of all Resource Service Flows for a Given Physical Setting Originate with Indigenous Abiotic Media Replacement of Indigenous Abiotic

Media within a Similar Physical Setting will Restore all Service Flows

…as Long as Legal Rights and Proximity to Users is not an Issue

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Four “Ends of the Spatial Spectra”

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No Off-Reservation

Tribal Reserved Rights

Tribal Owned

Other Owned

Tribal Government Owns Nearly All Lands within their Reservation and the N&E is Fully Contained within the Reservation Boundary

Extent of Contamination

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Off-Reservation Tribal Reserved

Rights

Tribal Owned

Other Owned

Tribal Government Owns Some Lands within their Reservation and the N&E is Fully Contained within the Reservation Boundary

Extent of Contamination

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Reserved Rights

Tribal Owned

N&E Wholly Outside of the Reservation Boundary, but Impacting Resources in which Rights are Reserved for the Tribe

Extent of Contamination

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Reserved Rights

Tribal Owned

•N&E Wholly Encompasses the Reservation, AND Impacts ALLResources in which Rights are Reserved for the Tribe

Extent of Contamination

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These examples are further complicated, when attempting replace specific habitat, which is even more scarce

Baseline Quality Habitat

ReservedNR Rights

ReservedRights for Self Governance

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A More Typical Situation…

Baseline Quality Habitat Reserved

NR Rights

ReservedRights for Self Governance

…requiring expansion of Reserved Rights for Self Governance and Reserved Rights for Unlimited Use of Natural Resources

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