FACT PATTERN THE RESERVATION

Transcription

1 FACT PATTERN THE RESERVATION Great Lakes Tribal Reservation Surrounded by Big River National Forest Big River flows through Reservation and into Big Lake General Environmental Concerns Wild rice areas located on Big Lake less productive Fishery resources of Big Lake less productive August 18, 2015 Page 1

2 FACT PATTERN THE LEAD SMELTER The Smelter 5 miles up-river from Reservation Operated from 1950s 1973 by Lead Inc. ( Company ) Environmental Contamination Investigation at Smelter 1995 EPA Preliminary Assessment ( PA ) Studied Big River and surrounding uplands Found: Big River contaminated with metals mostly lead 2004: EPA entered an Agreed Order on Consent ( AOC ) with Company Dredged 3 hot-spots in Big River Capped 4 other areas with clean fill No work performed on Reservation. Only done within 2 miles of former Smelter August 18, 2015 Page 2

3 FACT PATTERN THE FEE LAND UST SITE The Property Fee land located within Reservation Surrounding land holdings Tribal trust land adjacent to the east and west of Property State-owned highway directly north of Property Privately-owned railroad line also directly north of Property Big River directly south of Property History Bulk fuel plant located on Property from ,000 gallon UST on Property held gasoline Warehouse 2 above-ground storage tanks ( ASTs ) 1985: USTs and ASTs removed from Property and operations cease August 18, 2015 Page 3

4 FACT PATTERN THE FEE LAND UST SITE Contamination found near vicinity of Underground Storage Tanks ( USTs ) USTs located upgradient from Big River Past investigation showed presence of: Petroleum hyrdocarbons Lead Benzene Contamination Near USTs Groundwater ( GW ): Petroleum hyrdrocarbons identified in GW at levels that exceed cleanup levels Soil: Petroleum hydrocarbons, lead, and benzene all identified in soils 8 to 12 feet below surface of GW at levels that exceed cleanup levels Contamination Near Shoreline of Big River GW: No GW sampling conducted near bank of Big River Soil: Two sediment samples analyzed show no contaminants above cleanup levels August 18, 2015 Page 4

5 FACT PATTERN FEDERAL LAW REMEDIES 2005: Tribe petitions EPA to perform a PA for Reservation portions of Big River and Big Lake Tribe initiated formation of NRD Trustee Council Performed an Injury Assessment Plan in 2009 Recently drafted a Preliminary Estimate of Damages ( PED ) Trustee Council PED showed following worst case scenarios: Fish Resources: fish populations declined 50% since year Company began discharging slag into Big River (1950) Big Lake Sediment: 50% loss of benthic organisms Wild Rice: Not injured by releases by Company Appears that petroleum releases from UST Property have impaired wild rice Tribe issued wild rice consumption advisory in 2001 August 18, 2015 Page 5

6 FACT PATTERN FEDERAL LAW REMEDIES Current status of NRD claim: Company interested in settling Tribal NRD claim Trustee Council meeting with Company next week to discuss settlement options for the Tribal claim Trustee Council s goal for meeting: Develop list of restoration projects to compensate Trustees for losses caused by hazardous substances Proposed settlement projects should consider: Compensate Tribe for losses caused by Company Obtain support of Tribal leadership Acceptable to Trustee Council Technically sound and adequately funded (contingency funding) to withstand known and unknown future impacts (i.e. climate change, upriver impacts, etc) Determine how to address NRD injury to wild rice not related to Company s releases August 18, 2015 Page 6

7 FACT PATTERN TRIBAL LAW REMEDIES EPA will not use CERCLA to address upland petroleum source. EPA has no LUST program funding. Tribe must address contamination using Tribal law Groundwater concerns Surface water concerns Issues How should Tribe proceed with investigation? What are possible claims against former operator of bulk fuel facility August 18, 2015 Page 7