January 01, 2020

When Historic Resources and Hazardous Substances Collide

Christopher C. Stoneback and Pamela C. Garman

Historic and cultural resource preservation and environmental remediation each possess important and intrinsic value. When these values clash at a site possessing both historic resources and hazardous substances, thorny questions arise: What happens when environmentally hazardous substances requiring cleanup are located in an area possessing significant historic and cultural resources requiring preservation? What happens when the very act of environmental remediation, or even the environmental investigation itself, has the potential to destroy resources of historic or cultural significance? What is the legal construct under which these conflicting values are mediated, and who decides which value predominates?

Where historic and cultural resource preservation and environmental remediation intersect, parties must navigate numerous legal provisions often possessing indeterminate overlap and conflicting demands. Complicating matters is the involvement of numerous federal, state, and tribal agencies, each possessing their own interests and objectives, and where jurisdictional authority is not always clear. But it is possible to successfully navigate these legal requirements and agency demands and chart a course that endeavors to give due consideration to both values.

The intersection of historic and cultural resource preservation and environmental remediation implicates numerous statutes, their implementing regulations, and agency guidance. Principal among the statutes are the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and the National Historic Preservation Act (NHPA). Stalking in the background are the National Environmental Policy Act (NEPA) and land management statutes, such as the Federal Land Policy and Management Act (FLPMA). The relationships between these statutes provide the legal framework in which historic and cultural resources and environmental remediation of hazardous substances collide.

Comprehensive Environmental Response, Compensation, and Liability Act

CERCLA is an environmental remedial statute that provides broad federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health, welfare, or the environment. CERCLA authorizes two kinds of response actions: (1) removal actions and (2) remedial actions. Removal actions are generally short-term or temporary responses to a release or threatened release of hazardous substances. Remedial actions, in contrast, are considered long-term, permanent solutions. Ultimately, the degree of cleanup of hazardous substances must assure protection of human health and the environment.

When the Environmental Protection Agency (EPA), the agency typically tasked with implementing CERCLA, initiates an environmental cleanup or a pre-cleanup study, CERCLA frequently clashes with contradictory protections in other federal or state statutes, including NHPA. Where historic resources are present in and around cleanup areas, their preservation may be incompatible with the type of remediation required for the site, or it may be impracticable to comply with historic preservation requirements in the context of an urgent threat to human health or the environment. The clash creates conflicting demands that EPA must resolve in the cleanup process.

It is particularly important to address these conflicting demands in the administrative context of the cleanup process, because CERCLA imposes a jurisdictional bar on pre-enforcement review. This pre-enforcement review bar prevents a party from directly challenging EPA’s cleanup activities prior to the cleanup’s completion. 42 U.S.C. § 9613(h). If historic or cultural resource issues are not successfully addressed during the cleanup process, these resources may be lost before there is any opportunity to assess whether the right balance was struck between historic preservation and environmental remediation.

CERCLA attempts to reconcile the conflicting demands presented by various federal and state statutes through the identification and attainment of applicable or relevant and appropriate requirements (ARARs) as part of the cleanup process. 42 U.S.C. § 9621. ARARs are substantive standards derived from federal or state environmental law that establish minimum thresholds for completing a cleanup that adequately complies with the substance of those laws. For instance, substantive provisions of NHPA, the Clean Water Act, or the Endangered Species Act may be identified as ARARs. The identification and attainment of ARARs functions to guarantee that any response action complies with CERCLA’s mandate to attain a degree of cleanup that “assures protection of human health and the environment.” 42 U.S.C. § 9621(d).

At the start of a response action, the lead agency in charge of the site identifies those requirements under federal or state law that specifically address the circumstances found at the site. These requirements generally fall into three categories: (1) chemical-specific, (2) location-specific, or (3) action-specific. Only the substantive elements of any requirement identified in this process apply as an ARAR, although an agency is not prohibited from following the procedural components.

The extent to which a cleanup must follow the substantive provisions of an identified ARAR depends on whether the requirement is considered either “applicable” or “relevant and appropriate.” Applicable requirements include state and federal requirements that specifically address or respond to hazardous substances or particular circumstances at a site. 40 C.F.R. § 300.5. Essentially, if the requirement would apply based on the site characteristics, regardless of CERCLA, it could be considered applicable. Categorizing a requirement as applicable is a legal and jurisdictional determination, because once a requirement is considered applicable, the cleanup must comply with all substantive portions of the requirement. For instance, a CWA water quality standard would be applied to the cleanup of an impacted stream reach.

If a requirement is not applicable, it may still be relevant and appropriate. Relevant and appropriate requirements are those that may be missing an element or prerequisite to qualify as applicable, but which may still address a problem or apply to situations sufficiently similar that it makes sense to include it in the cleanup. 40 C.F.R. § 300.5. The lead agency identifies relevant and appropriate requirements based on its professional judgment and through consideration of the environmental and technical factors present at a site. Unlike applicable requirements, the lead agency chooses the extent to which relevant and appropriate requirements apply. This may include all substantive provisions, or only certain elements. The flexibility in applying relevant and appropriate requirements is meant to compensate for any missing elements or provisions that prevent it from being applicable, but still would aid in the cleanup process.

The identification and application process for ARARs varies based on the stage of the cleanup. CERCLA sets out the most detail regarding the ARAR process for remedial actions. 42 U.S.C. § 9621. For remedial actions, all ARARs must be met, unless one of six waivers apply. These waivers arise where compliance would be unnecessary, impracticable, or incompatible with EPA’s efforts to protect human health or the environment.

ARARs, however, should be identified and complied with as soon as possible, and the lead agency should start addressing ARARs at the very beginning of the remedial investigation (RI). 40 C.F.R. § 300.430. An RI is the investigative stage conducted at the start of a long remedial process, but by its nature it is generally categorized as a removal action rather than a remedial action. For removal actions, ARARs must be complied with only “to the extent practicable.” 40 C.F.R. § 300.415. This allows the agency to consider the exigencies of the situation in applying ARARs. While it makes sense in a typical situation to have this additional leniency in identification and application of ARARs during the RI, it poses problems if the clash between environmental cleanup and historic resource preservation begins at the RI stage.

National Historic Preservation Act

NHPA establishes a federal framework, including a national preservation program and system of procedural protection, for preserving significant historic and cultural resources. The statute requires federal agencies to individually assume responsibility for the impact that each agency’s actions might have on historic or cultural resources and endeavors to use federal, state, and tribal historic preservation efforts and knowledge to ensure that significant historic and cultural resources are adequately addressed. NHPA also requires agencies to account for any adverse effects on historic or culturally significant sites before implementing an action that might affect such sites, and consider alternative actions that will minimize any potential adverse effects.

The NHPA process is initiated prior to a federal agency implementing a project potentially affecting historic or cultural resources. 54 U.S.C. § 306108. Under section 106 of NHPA, an agency must (1) determine whether there is a federal undertaking, (2) identify and evaluate historic properties that may be affected by the undertaking, (3) assess the undertaking’s effects on historic properties, and (4) avoid or mitigate adverse effects.

For a federal undertaking, complying with NHPA’s substantive provisions begins with identifying any historic or cultural resources eligible for, or included on, the National Register of Historic Places located in the area of potential effects of the agency action. The area of potential effects varies in nature and scale based on the different effects caused by a particular action. It includes the geographic area where the action may alter the character or use of the resource, directly or indirectly. 36 C.F.R. § 800.16.

A cultural resource survey identifies historic or cultural resources and allows the agency to develop adequate information to make the substantive determinations necessary under NHPA. The criteria used in the cultural resource survey assist in identifying cultural resources and include an evaluation of the quality of significance in history, architecture, archeology, and culture. Objects that possess integrity based on location, or design, among other considerations, may be identified if they relate to significant events, historical contributions, or distinctive characteristics.

The identification stage also requires consultation with the State Historic Preservation Officer (SHPO) as well as the Tribal Historic Preservation Officer (THPO). The consultation must be an informed process taken in good faith. Consultation with the SHPO and THPO may also influence the area of potential effects.

Following the cultural resource survey and consultation, the agency must identify possible effects that the action may have on the identified historic or cultural resources and whether those effects may be adverse. An adverse effect occurs where an undertaking alters, directly or indirectly, any of the characteristics of the historic property in a manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association. 36 C.F.R. § 800.5(a)(1). If there is a potentially adverse effect, the agency must examine feasible alternatives and whether those alternatives could avoid the impact. If the impact on the historic resource cannot be avoided, the agency must take measures to minimize or mitigate those effects.

NHPA can apply as an ARAR at a cleanup where there may be historic or cultural resources. CERCLA guidance contemplates NHPA’s integration into the remedial process at the outset, both during the RI phase and through selection and implementation of a remedial action. The objective of the integration of NHPA into the CERCLA process is to have information available regarding historic resources at various decision points, including the incorporation of these historic and cultural resource determinations into RI and feasibility study work plans. If the cultural resource surveys are not initiated at the start of the process, it prevents the agencies from having the information necessary for identification and consideration of the historic and cultural resources.

National Environmental Policy Act

A fundamental principle of environmental law is that any environmental impacts are considered before a federal agency takes an action affecting the environment. NEPA puts this principle into action and requires agencies to follow particular procedures to ensure that the agency has taken a hard look at the environmental consequences of an action. 42 U.S.C. § 4331 et seq. The NEPA process allows agencies to make legally required, reasoned, and conscientious decisions and assess environmental impacts before those impacts occur. The requirement to conduct a NEPA review is triggered by either a federal action or a federally funded, licensed, or permitted action, and applies whether the action is on federal, tribal, state, or private land.

NEPA typically provides a framework in which historic and cultural resources are evaluated. Both NEPA and NHPA require agencies to consider historic and cultural resources and potential impacts to them. Environmental review under NEPA includes an analysis of the affected human environment and the environmental consequences of the proposed action on the human environment. 42 U.S.C. § 4332. The human environment includes aesthetic, historic, and cultural resources. Agencies often integrate NEPA review with other planning and environmental reviews, including NHPA, to coordinate the compliance obligations.

NEPA’s relationship with CERCLA, however, is complicated. The Council on Environmental Quality has stressed that federal agencies should integrate NEPA values into the CERCLA process where feasible and appropriate. U.S. Dept. of Justice, Memorandum Re: Agreed Report of March 31, 1994 Meeting Regarding the Application of NEPA to CERCLA Cleanups (Jan. 23, 1995). Courts, however, have concluded that “EPA does not need to comply with the formal requirements of NEPA in performing its environmental protection functions under ‘organic legislation [that] mandates specific procedures for considering the environment that are functional equivalents of the impact statement process.”’ Western Nebraska Resources Council v. U.S. E.P.A., 943 F.2d 867 (8th Cir. 1991). This concept of functional equivalence under CERCLA can allow EPA to sidestep formal NEPA compliance if consideration of the proposed action otherwise conforms to NEPA’s underlying policies.

For a cleanup, functional equivalence should provide for a balancing of environmental costs and benefits, meaningful public participation at key points in the decision-making process, consideration of substantive comments, and an agency decision with an explained rationale and that is based on facts in the record. But the ability of CERCLA to achieve this functional equivalence with NEPA (or NHPA) in a cleanup is hindered by the inherent contradiction in the purpose of the statutes. NEPA, and even NHPA, are “stop, look, and listen” statutes intended to create a longer, more comprehensive decision-making process for actions impacting the environment or historic resources. CERCLA, by contrast, aims to achieve expeditious cleanup of hazardous substances, which is the purpose of CERCLA’s bar on pre-enforcement review. See, e.g., 42 U.S.C. § 9613(h). If the cleanup is too expeditious and achieves functional equivalence too late in the remedial process, CERCLA itself may risk causing environmental, historic, and cultural resource impacts before stopping, looking, or listening occurs.

Competing Agencies, Competing Interests, and Jurisdictional Conundrums

As if applying the competing demands of intersecting statutes were not sufficiently vexing, determining who applies that law adds an additional layer of complexity. Consider, for example, a Superfund site. Generally, EPA is the lead agency for sites on the National Priorities List and its primary mission is the removal or remediation of releases or threatened releases of hazardous substances. But Superfund sites are often large, over inclusive, and possess amorphous boundaries. The definition of a site itself demonstrates its amorphous nature, as it includes any areas “where a hazardous substance has been deposited, stored, disposed, or placed, or has otherwise come to be located.” 40 C.F.R. Pt. 300, App. A, § 1.1. Before the investigation commences, it is difficult to predict exactly where hazardous substances are located, and there may be unaffected areas between sources of hazardous substances. Within that amorphous boundary may be private lands, state lands, and federal lands, including those administered by federal land management agencies whose objectives, interests, and legal obligations may be incongruent with EPA’s goals for the site.

A Superfund site may, for example, include areas under the authority of the Bureau of Land Management (BLM), which administers public lands. Through delegation of authority, memoranda of understanding, or otherwise, BLM may also have jurisdiction for CERCLA response actions involving a parcel, project, or operable unit located on BLM-administered lands. When a site has a number of different federal agencies, not all will agree with EPA’s functional equivalency determination or application of ARARs—or lack thereof—in proceeding with a cleanup.

When disputes arise over EPA’s sidestepping of statutory obligations through functional equivalency arguments or selection of ARARs between EPA and cooperating agencies, it is not always easy to discern whether the cooperating agency is insulated from potential liability under other laws and what impact that may have on the cleanup. This clash can be seen in instances where overlapping jurisdiction occurs, like when BLM has authority to administer a parcel of property, but EPA undertakes a response action pursuant to its delegated CERCLA authority. Whether it is BLM or EPA that must ensure the substance of statutes like NHPA, requiring a decision to “take into account the effect of the undertaking on any historic property” is not entirely clear. 54 U.S.C. § 306108.

In the NEPA context, the Council on Environmental Quality has stressed that federal agencies should integrate NEPA values into the CERCLA process where feasible and appropriate, and EPA has recognized that it would not oppose another federal agency’s attempts to integrate a voluntary NEPA process with the CERCLA process on a case-by-case basis, provided the integration does not impede the timely cleanup of a site. U.S. Dept. of Justice, Memorandum Re: Agreed Report of March 31, 1994 Meeting Regarding the Application of NEPA to CERCLA Cleanups (Jan. 23, 1995). Moreover, the Federal Land Policy and Management Act (FLPMA), BLM’s governing statute, requires BLM to take any action necessary to prevent “unnecessary or undue degradation” of public lands. FLPMA can apply as an ARAR at a cleanup where there may unnecessary or undue degradation. To comply with FLPMA’s substantive mandates, some type of NEPA equivalent analysis is required. Where the agencies cannot agree, however, the disputes inevitably end up creating a delay in the cleanup process. Id.

These same interagency jurisdictional issues also arise in the context of access to conduct response actions on public lands. BLM’s public lands jurisdiction obligates BLM to comply with certain requirements prior to authorizing private parties’ access to conduct any activity, including an environmental response action. BLM could attempt to require ARAR compliance or impose other obligations as a condition of access. CERCLA, however, largely limits the traditional obligations required under FLPMA or permitting statutes, providing that “[n]o Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite . . .” 42 U.S.C. § 9621(e)(1). EPA construes this to extend to permit equivalency procedures or processes, such as the type of BLM right of access discussed in the example, and is adamant that the permitting authority’s approval is not required for a response action to proceed.

This may assist EPA in effectuating an expeditious cleanup but potentially puts BLM at risk for failure to uphold its obligations under NHPA, NEPA, or FLPMA. In the end, EPA has significant access authority under CERCLA, and CERCLA’s pre-enforcement review bar means that such battles are rarely fought before a court. See 42 U.S.C. 9604(e) (regarding access authority). These issues, however, raise significant concerns for agencies assisting with cleanup activities, and for private parties tasked with carrying out cleanup activities.

The Collision Illustrated

The collision of these competing values and diverse interests is illustrated in a Superfund site that requires invasive sampling work in and around historic properties during the RI phase of an environmental cleanup action. During the RI phase, drilling work associated with installation of groundwater monitoring wells could necessitate the creation or expansion of roads and the disturbance of considerable ground to access the area and place drill pads. This characterization work could result in considerable environmental impact. The area of potential impact could encompass historic properties whose integrity could be placed at risk, or whose setting, feeling, or sense of place could be impacted by the installation of the wells. The environmental cleanup of hazardous substances, moreover, could be addressing an urgent threat to human health or the environment, or only a more tenuous, or less time sensitive, potential threat.

If that drilling, under the oversight of EPA as the lead agency, occurs on a parcel of property administered by BLM, the situation’s complexity only increases. Each agency has its own obligations and interests. EPA is concerned primarily with responding to the release or threatened release of a hazardous substance. BLM is concerned primarily with avoiding unnecessary or undue degradation, or on effecting multiple use concepts.

In this setting, historic and cultural resource preservation as well as environmental impacts must be addressed. NHPA requires that the identification of historic and cultural resources begins at the start of the agency undertaking, which would generally be in the investigative stage. NEPA, too, requires consideration of impacts to the human environment prior to those impacts occurring. At a minimum, functional equivalence must be achieved.

But in the removal action context, including conducting RIs, CERCLA only requires compliance with ARARs to the extent practicable, based on the scope of the action and the urgency of the situation. 40 C.F.R. § 300.415. In making this practicability determination, the agency looks at technical issues as well as duration limitations in determining the scope of the action.

Removal actions are typically short in duration and limited or temporary in scope. The agency may sense urgency in completing the RI so as to advance expeditiously to a remedial action. Practicability may seem lacking in these transitory stages. Therefore, the agency may not require ARAR compliance at the removal stage. But it is at this stage where historic or cultural resources may be lost.

The incongruence of ARAR applicability at the removal stage is particularly evident where an area of potential effect is large, or where there are a significant number of historic or cultural resources within the removal area. It is precisely in these situations where ARAR compliance is most critical but ARAR compliance is seemingly most impracticable. While the cultural resource survey typically would be required to evaluate these resources, the scope and timing of the removal action may not allow for it to be conducted.

Even in the context of a remedial action, CERCLA does not emphasize compliance with ARARs until later in the cleanup process. It does not offer an independent mechanism to assess historic or cultural or environmental impacts at the investigative stage. Although CERCLA requires an assessment of alternative action during the feasibility study component, it does not provide for an assessment of alternative actions or mitigative measures at the outset of the RI phase, including where it is the investigative actions themselves—the drilling of the monitoring well—that might cause the impacts: the destruction of the historic structure.

Absent appropriate review at the investigative decision-making phase, important agency actions or undertakings may completely fail to undergo environmental or historic and cultural resource review. Failure to identify and consider potential effects to historic or cultural resources in the removal stage may result in their destruction, preventing later protection in the remedial action context, and preventing consideration of historic preservation values. If the agency fails to either include NHPA as an ARAR or waives its application in the RI stage, there can be no functional equivalence and no necessary balancing of historic and cultural resource preservation and environmental remediation.

The Collision Navigated

This collision can, however, be successfully navigated, and the threat to historic properties can be reduced. This requires identifying objectives and leveraging those legal and jurisdictional conundrums inherent in the collision of historic resources and hazardous substances to push the process toward one’s objectives.

If you are a potentially responsible party performing cleanup work, including investigative work, focus on achieving certainty and avoid inter-agency conflict. Aim to have ARARs identified, or waived, early in the cleanup process. Bring all applicable agencies to the table so that satisfaction of one agency’s requirements does not get you crosswise with another agency’s requirements later in the process. If EPA maintains that no permit or permit equivalent is required to drill a well on BLM-administered lands, make sure BLM is cognizant of EPA’s position and your intention to act in conformance with it. Regardless of which values the agencies may prefer to effectuate, ensure that appropriate consideration is given to all values, and that the work ultimately assures protection of human health and the environment. If certain ARARs are impracticable to implement and corresponding values impracticable to consider, ensure that the emergent or urgent nature of the hazardous substance cleanup warrants that decision. Document all these efforts in the administrative record.

If the objective is historic or cultural resource preservation, emphasize NHPA. Impress upon the agency the necessity to comply with NHPA’s substantive requirements. Get SHPOs and THPOs engaged. Emphasize public participation and engage the community and stakeholders and their sense of history, culture, and place. “Giving the public an opportunity to communicate their concerns, problems, and alternatives can improve the Agency’s decisions and environmental outcomes.” EPA, Superfund Community Involvement Handbook (Jan. 2016). The public, moreover, must be afforded “appropriate opportunities for involvement in a wide variety of site-related decisions, including site analysis and characterization, alternatives analysis, and selection of remedy.” 40 C.F.R. § 300.430(c)(2)(ii)(A).

If the objective is remediating the release or threatened release of hazardous substances, focus on CERCLA. If the objective is to do so quickly, focus on the emergent nature of any release or threatened release of hazardous substances, and emphasize the impracticability of implementing ARARs.

Regardless of who you are or the ends to be achieved, the means are similar. Emphasize the ARARs conducive to achieving your objective. ARARs are substantive standards establishing minimum thresholds for compliance with the law. They cannot be ignored. Ignoring them renders an ultimate removal or remedial action on precarious footing as failing to assure protection of human health or the environment.

Leverage, moreover, the jurisdictional uncertainties. Authority for ARAR implementation is not always clear. Agencies may be reluctant to relinquish control, which could result in irreversible destruction of environmental, historic, or cultural resources.

Balancing Historic and Cultural Preservation and Environmental Remediation

Striking a balance between competing values at a site early in the cleanup process is key. At a site with both historic preservation and environmental remediation values in play, determining priorities and the application of ARARs is essential to helping a party navigate these competing values in the context of overlapping and conflicting legal obligations and under the cloud of jurisdictional uncertainty. Attainment of ARARs forces agencies to consider all impacts arising from their response actions and to be fully informed in balancing historic and cultural resource preservation and environmental remediation. In such a situation, it should not be culture or the environment, it should be culture and the environment.

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Christopher C. Stoneback and Pamela C. Garman

Mr. Stoneback is a partner with Crowley Fleck, PLLP, in Billings, Montana, and Ms. Garman is an associate with Crowley Fleck, PLLP, in Billings, Montana. They may be reached at cstoneback@crowelyfleck.com and pgarman@crowleyfleck.com, respectively.