Advisories & Insights

New EPA superfund ranking documents factors in "Native American traditional lifeways" impacts

April, 2007

EPA headquarters recently directed regional Superfund site assessment personnel to consider health and environmental concerns unique to tribal populations and tribal resource uses – both on and off the reservation – when scoring sites under the Hazard Ranking System ("HRS").[i] The directive is contained in amendments published by EPA's Office of Solid Waste and Emergency Response ("OSWER").[ii] With more than 560 Federally-recognized tribes throughout the United States, and hundreds of CERCLA sites on or impacting tribal lands,[iii] the changes could have a substantial impact on scoring and increase the likelihood that contaminated sites near Indian reservations will be listed on the Superfund list.

Five years ago, EPA reported that there were 602 hazardous waste sites on or impacting Indian country, and 55 NPL or NPL-equivalent sites (sites with an HRS score of > 28.5) affecting 50 tribes.[iv] It seems likely that at some sites the inclusion of factors unique to tribal resources and populations may be the difference between a score that results in an NPL-eligible site and one that does not. Given the implications of listing a site on the NPL, it seems equally likely that the Amendments will result in a greater focus on the HRS scoring process by interested parties, and more challenges to HRS scoring. Whether such challenges will occur at sites that have already been scored under the old HRS Guidance Manual is an open question

EPA's Hazard Ranking System

The HRS[v] is EPA's primary tool for assessing the relative threat associated with actual or potential releases of hazardous substances to the environment, and for determining whether to include a site on the NPL: EPA's list of sites that are priorities for further action under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA").[vi] An HRS score for a site is determined by evaluating four pathways: (1) ground water migration; (2) surface water migration; (3) soil exposure; and (4) air migration. The surface water migration pathway score is calculated based on the threats to drinking water, the human food chain, and the environment; the soil exposure pathway score is calculated based on threats to resident populations and nearby populations.[vii] Any site with an HRS score of 28.50 or higher is eligible for listing on the NPL.[viii]

Incorporating Tribal Traditional Lifeways in HRS

In November 1992, EPA published a guidance manual to assist regional site assessors in using the HRS. Tribes that were involved in assessing Superfund sites on or near reservations complained that the Hazard Ranking System Guidance Manual ("HRS Guidance Manual")[ix] did not include provisions for considering exposure scenarios or resource uses that are unique to tribal populations, and that, as a result, the HRS likely underestimated the risk to tribal populations.[x] In 1998, after a series of meetings with tribes,[xi] the Assistant Administrator of OSWER agreed to examine technical scoring guidance for the HRS, to identify ways in which the HRS Guidance could take into account tribal cultural practices, or "traditional lifeways."[xii]

Six years later, in a 2004 evaluation of the Superfund Tribal Program, EPA's Inspector General concluded that "[d]ue to subsistence lifestyles, spiritual practices, and other cultural behaviors, tribes have multiple exposures from resource use that could disproportionately impact" them.[xiii] The Inspector General recommended that the HRS and risk assessment guidance consider tribal cultural practices in assessing Superfund sites for NPL listing decisions.[xiv] The recent amendments reflect EPA's efforts to implement the Inspector General's recommendations.

HRS Guidance Amendments

The Amendments make changes throughout the HRS Guidance:[xv]

increasing tribal involvement in the assessment process as both a source of information, and as an official qualified to make determinations regarding impacts to tribal resources, both off and on-reservation;[xvi]

taking account of tribal resource use that previously had not been considered in HRS scoring, including tribal barter as a "commercial resource use," and identifying tribal recreational resource use areas as pathways (such as canoeing areas as a surface water pathway, sweat lodges as a ground water pathway, and powwow grounds as an air pathway);[xvii]

adding tribal recreation areas, such as traditional hunting or community gathering areas (for example, camping or powwow grounds) as "designated recreation areas" for assigning a value for the attractiveness/accessibility factor of the soil pathway;[xviii] and

identifying tribal workers and seasonal tribal populations (such as residents of a seasonal tribal camp or work area) as populations regularly using resources who should be included in evaluating the population factor of all four pathways.[xix]

The Amendments include the following examples of how tribal knowledge and expertise can be incorporated in the assessment process:

Salmon are a significant part of some tribes' traditional lifeways. If a tribe is the Natural Resource Trustee for a salmon spawning area, a designated tribal fish and wildlife official could make the determination of whether the area meets the definition of a "spawning area critical for maintenance of fish/shellfish species within rivers, lakes, or coastal tidal waters."[xx]

and

A tribal fish and wildlife official might identify an area of traditional medicinal plant growth as a "unique, rare, or otherwise ecologically valuable biotic area."[xxi]

For more information about the Amendments to the HRS Guidance, or other tribal environmental law issues, contact Connie Sue Martin.