Primary restoration versus replace or acquire the equivalent of tribal reserved lands under NRDA

Transcription

1 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

2 A Little About Us...

3 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

4 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

5 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)

6 Tribal/Federal CERCLA Universe EPA-RI/FS (aka the dark side) NRDA

7 Federal CERCLA Universe EPA-RI/FS (aka the dark side) NRDA TRIBAL LOSS Tribal Universe

8 EPA-RI/FS NRDA TRIBE

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

10 A little about the Spokane Large 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

11 EPA s REMEDIAL ACTION TOOL BOX: 1. REMOVE 2. CONTAIN/CONTROL 3. INSTITUTIONAL CONTROLS (HANG A SIGN ON IT) 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).

12 Simplified Concept of a Suburban Exposure Scenario Air release Groundwater release Little environmental contact. Few exposure pathways. Some environmental recreation AESE, Inc

13 A Traditional Environmental Knowledge-based Scenario MONTANE RESOURCES AIR AND DUST INHALATION RIPARIAN RESOURCES GAME PROCESSING DIRECT SOIL EXPOSURE CULTURAL ACTIVITIES GARDEN PRODUCE WETLANDS RESOURCES GAME MEAT IRRIGATION GROUNDWATER AQUATIC FOODS DESERT RESOURCES SURFACE WATER USE SEDIMENT EXPOSURE GATHERED FOODS AESE, Inc

14 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

15 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 Pine Nuts Berries, Other Greens Roots XX Tribe s Food Pyramid 2500 kcal/day (Quantities of each food group by %) (Not an exhaustive species list)

16 Exposure Factor Suburban Subsistence Drinking Water 2 liters per day 4+ liters per day Fish Ingestion 17.5 grams/day grams/day Duration of exposure 30 years 70 years (+ generations) Frequency of exposure 180 days/year 365 days/year Sweat Lodge, other NO YES RESULT: Subsistence lifestyles result in 10 to 100 times more exposure than suburban lifestyles.

17 EPA (Omernick) Ecoregions Swinomish (in progress) Spokane (complete) Ojibwe (in progress) Maine Tribes (in progress) Umatilla (complete) Elem (Pomo) (in progress) Washoe (complete) Quapaw (in progress) Scenarios EPA Star Grant (OSU; Harper) and/or mixed funding Scenarios other funding sources

18 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.

19 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)

20 Restoration, Rehabilitation, Replacement, and/or acquire the equivalent of "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. "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

21 Ecosystems Simplified HUMANS Replacement of Indigenous Abiotic Media within a Similar Physical Setting will Restore all Service Flows The Headwaters of all Resource Service Flows for a Given Physical Setting Originate with Indigenous Abiotic Media as Long as Legal Rights and Proximity to Users is not an Issue

22 Four Ends of the Spatial Spectra

23 Tribal Government Owns Nearly All Lands within their Reservation and the N&E is Fully Contained within the Reservation Boundary Tribal Owned No Off- Reservation Tribal Reserved Rights Other Owned Extent of Contamination

24 Tribal Government Owns Some Lands within their Reservation and the N&E is Fully Contained within the Reservation Boundary Off-Reservation Tribal Reserved Rights Tribal Owned Other Owned Extent of Contamination

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

26 N&E Wholly Encompasses the Reservation, AND Impacts ALL Resources in which Rights are Reserved for the Tribe Extent of Contamination Reserved Rights Tribal Owned

27 These examples are further complicated, when attempting replace specific habitat, which is even more scarce Baseline Quality Habitat Reserved Rights for Self Governance Reserved NR Rights

28 A More Typical Situation Baseline Quality Habitat Reserved Rights for Self Governance Reserved NR Rights requiring expansion of Reserved Rights for Self Governance and Reserved Rights for Unlimited Use of Natural Resources

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