Historic and Archaeological
Resource Protection
for
USEPA Personnel
An Instruction Manual on
Implementing Section 106 of the
National Historic Preservation Act
and the Revised Regulations of the
Advisory Council on Historic Preservation
on Protection of Historic Properties
October, 2008
Ok United Slates
>yV| 1 Mml Environmental Protection
VLI i \ Agency
-------
Historic and Archaeological
Resource Protection
for
USEPA Personnel
An Instruction Manual on
Implementing Section 106 of the
National Historic Preservation Act
and the Revised Regulations of the
Advisory Council on Historic Preservation
on Protection of Historic Properties
October, 2008
United Slates
MnHXI Environmental Protection
\#L.I Agency
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HISTORIC PRESERVATION AND 106 COORDINATION
FOR USEPA OFFICIALS
TABLE OF CONTENTS
UNIT TOPIC PAGE
1. Why Should You Care about Historical and Archaeological Resources?
a. It's the law 1
b. The regulations require it 2
c. It's policy 2
d. It's a good idea 2
2. What Are "Cultural Resources"? 5
a. Districts 6
b. Sites 6
c. Buildings 6
d. Structures 6
e. Objects 6
3. How to lCnow if Resources are Affected by Your Project 7
a. Who decides? 8
b. What criteria are used? 8
4. Making the 106 Process Work for You: Four Steps to Success 12
a. Initiate the Process 13
b. Identify Historic Properties (Stage la, lb, II) 14
c. Determine Effect 17
d. Resolve Adverse Effects 19
5. Agreement Documents 21
a.. What are Agreement Documents? 22
b. How is the Decision to Prepare a Document Made? 21
c. Who Prepares the Agreement Document? 23
d. Who signs the Agreement Document 24
e. Why do we need Agreement Documents? 25
f. Can Agreement Documents be Revised? 25
g. What if the terms aren't carried out? 25
6. Working with Consulting Parties 27
a. the Advisory Council on Historic Preservation 28
b. the Historic Preservation Officer (SHPO/THPO) 28
c. the Tribes 29
d. the Public 30
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HISTORIC PRESERVATION AND 106 COORDINATION
FOR USEPA OFFICIALS
TABLE OF CONTENTS
(continued)
7. Guidelines on Data Recovery
a. Advisory Council Guidance 31
b. Twelve Keys to Successful Data Recovery 32
c. Conservation and the Fate of Recovered Resources 32
ATTACHMENTS
1 Listing of SHPOs by State
2 Listing of THPOs by State
3 Regulations 36 CFR Part 800
4 Professional Qualification Standards
5 Suggestions for MOA Writing
6 Example Memoranda of Agreement
A. Atlantic Steel MOA
B. Murray Smelter MOA
C. Roebling Steel MOA
D. Amber Milling MOA
E. Eastern Surplus MOA
F. Eastland Woolen MOA
7 Example Programmatic Agreements
A. Revolving Fund
B. Upper Clark Fork
C. Nansemond Ordnance Depot
D. Emergency Response
II
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UNIT ONE
WHY SHOULD YOU CARE?
IT'S THE LAW
RULES & REGS REQUIRE IT
IT'S POLICY
IT'S A GOOD IDEA
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UNIT #1: WHY SHOULD YOU CARE ABOUT HISTORICAL AND
ARCHAEOLOGICAL RESOURCES?
Reason 1 It's the law
Page 3 of this manual lists many of the Federal Laws which require protection of historical and
archaeological resources. As you can see, there are at least 30 different laws which contain provisions
requiring protection of cultural resources. You should especially be familiar with the following:
The American Antiquities Act of 1906 (16 USC 43 1 -433) first codified the federal authority to
protect cultural resources as well as natural resources. This Act found strong support in the east where
there was intense interest in protection of properties linked to the colonial era and the revolutionary
war. It was further bolstered by support from the west, where concern for protection of natural and
scenic resources had led naturally to a desire to protect above ground archaeological sites and ruins. It
prohibited disturbance of archaeological resources and objects of antiquity on federal lands without a
permit. It also gave the President authority to designate national monuments.
The Historic Sites, Buildings, Objects, and Antiquities Act of 1935 (16 USC 461-467). This Act
declared that "it is a national policy to preserve for public use historic sites, buildings, and objects of
national significance for the inspiration and benefit of the people of the United States". It laid the
groundwork for today's legislative protections for historic resources. This Act, commonly known as
the Historic Sites Act, first established the role of the Secretary of the Interior and the National Park
Service in historic preservation.
The National Historic Preservation Act (NHPA) of 1966 as amended (16 USC 470-470t, 110)
Section 101 (a): Established the National Register of Historic Places.
Section 201-212: Established the Advisory Council on Historic Preservation (ACHP) and
authorized them to develop implementing regulations.
Section 106: Established a required review process to protect resources which is now
commonly known as 106 Review.
Section 110: Required all Federal Agencies to develop a Preservation Program and to
designate a qualified official to be known as the agency's "preservation
officer" with responsibility for coordinating agency activities under this
Act.
The Native American Graves Protection and Repatriation Act of 1990 (25 USC 3001-3013)
specified ownership and control of Native American cultural items which are excavated or discovered
on Federal or tribal lands. NHPA and NAGPRA are distinctly different laws and each imposes a
different requirement on the agency. These two should not be confused. (See unit 6).
Reason 2 The regs require it.
If you look at page 4 of your manual, you will see at the top of the page a list of regulations which
protect cultural resources. In particular, you should note the regulations of two parties:
A. The Advisory Council on Historic Preservation (ACHP) or ("the Council") whose
regulations, at 36 CFR Part 800 are titled "Protection of Historic Properties." These
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specify the procedures for conducting a Section 106 review. They are the central focus of
this course. 36 CFR Part 800 is attached to your course manual. You should read these
regulations. There are 23 members on the Advisory Council; the EPA Administrator is
an observer to the Council.
B. The Secretary of the Interior who keeps the National Register of Historic Places and
sets the standards for:
Architectural and Engineering documentation (HABS/HAER)
Professional Qualifications
Rehabilitation
Treatment of Historic Properties
Reason 3 It's policy.
EO 11593 "Protection and Enhancement of the Cultural Environment" (1971)
Requires federal agencies to consult with the Advisory Council on Historic Preservation
in development of procedures to preserve and enhance sites, structures, and objects of
historical or archaeological importance.
EO 13007 "Indian Sacred Sites" (1996)
Requires federal agencies to (1) accommodate access to and ceremonial use of Indian
sacred sites by Indian religious practitioners and (2) avoid adversely affecting the
physical integrity of such sacred sites.
EO 13287 "Preserve America" 2003
Signed by President Bush March 3, 2003, Executive Order 13287: "Preserve America"
complements the Preserve America initiative. The order establishes federal policy to
provide leadership in preserving America's heritage by actively advancing the protection,
enhancement, and contemporary use of the historic properties owned by the federal
government. It also encourages agencies to seek partnerships with state, tribal, and local
governments and the private sector to make more efficient and informed use of these
resources for economic development and other recognized public benefits.
Reason 4 It's a good idea.
Why is it a good idea to protect historical and archaeological resources? Write down one or more
reasons why you think it might be important.
Are there any reasons why you think it might not be a good idea to protect historical and
archaeological resources?
2
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Laws, Regulations, Standards, Guidelines, and Executive Orders
Related to Cultural Resources
This listing was prepared by the National Park Service. For more information on any of the items listed, visit the
Park Service at http://www.nps.gov/history/.
Laws
Abandoned Shipwreck Act of 1987 (PL 100-298; 43 U.S.C. 2101-2106)
American Antiquities Act of 1906 (16 USC 431 -433)
American Indian Religious Freedom Act of 1978 (42 USC 1996 and 1996a)
Archcological and Historic Preservation Act of 1974 (16 USC 469-469c)
Archaeological Resources Protection Act of 1979, as amended (16 USC470aa-mm)
Bald Eagle Protection Act of 1940 (16 USC 668-668d)
The Copyright Act of 1976 (17 USC 101 ct seq. [ 1988 & Supp. V 1993])
Disposal of Records (44 USC 3301 ct scq.)
Endangered Species Act of 1973, as amended (16 USC 153 1-1543)
Federal Property and Administrative Services Act of 1949, as amended (40 USC 483 [b])
Federal Records Act of 1950, as amended (Records Management by Agencies, 44 USC 3101 ct scq.)
Freedom of Information Act of 1982 (5 USC 552)
Historic Sites, Buildings, Objects, and Antiquities Act of 1935 (16 USC 461-467)
Internal Revenue Code of 1986 (Qualified Conservation Contributions) (26 U.S.C. 170[h])
Internal Revenue Code of 1990 (Rehabilitation Credit) (26 USC 47)
Laccy Act of 1900 (18 USC 43-44)
Marine Mammal Protection Act of 1972 (16 USC 1361-1407)
Migratory Bird Treaty Act of 1918 (16 USC 703-711)
Mining in the National Parks Act of 1976 (Section 9) (16 USC 1908)
Museum Properties Management Act of 1955( 16 USC 18)
National Environmental Policy Act of 1969 (42 USC 4321)
National Historic Preservation Act of 1966, as amended (16 USC 470-470t, 110)
National Park Service Organic Act of August 25, 1916 (16 USC I -4, 22, 43)
Native American Graves Protection and Repatriation Act of 1990 (25 USC 3001 -3013)
Outer Continental Shelf Lands Act (43 USC 1332 )
Preservation, Arrangement, Duplication, Exhibition of Records (44 USC 2109)
Privacy Act of 1974 (5 USC 552a)
Public Buildings Cooperative Use Act of 1976 (40 USC 601a)
Reservoir Salvage Act of 1960, as amended (16 USC 469-469c)
Theft of Government Property (18 USC 641)
1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and
Transfer of Ownership of Cultural Property (19 USC 2601)
3
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Laws, Regulations, Standards, Guidelines, and Executive Orders
Related to Cultural Resources (continued)
Regulations
Certifications Pursuant to the Tax Reform Act of 1976 (36 CFR 67.2)
Curation of Fcdcrally-Owncd and Administered Archcological Collections (36 CFR 79)
Disposition of Federal Records (36 CFR 1228)
Federal Records, General (36 CFR 1220)
Freedom of Information Act Regulations (36 CFR 810)
Historic Preservation Requirements of the Urban Development Action Grant Program (36 CFR 801)
National Historic Landmarks Program (36 CFR 65)
National Register of Historic Places (36 CFR 60) and Determinations of Eligibility for Inclusion in the
National Register (36 CFR 63)
Native American Graves Protection and Repatriation Act: Final Rule (43 CFR 10)
Preservation of American Antiquities (43 CFR 3)
Procedures for State, Tribal, and Local Government Historic Preservation Programs (36 CFR 61)
Protection of Archcological Resources (43 CFR 7)
Protection of Historic Properties (36 CFR 800)
Research Specimens (36 CFR 2.5)
Standards and Guidelines
Abandoned Shipwreck Act Guidelines
Guidelines for Federal Agency Responsibilities, Under Section 110 of the NHPA
Preparation of Environmental Impact Statements: Guidelines (40 CFR 1500)
The Secretary of the Interior's Standards for Architectural and Engineering Documentation
The Secretary of the Interior's Professional Qualification Standards (48 FR 22716, Sept. 1983)
The Secretary of the Interior's Proposed Historic Preservation Professional Qualification Standards
The Secretary of the Interior's Standards for Rehabilitation (36 CFR 67)
The Secretary of the Interior's Standards for the Treatment of Historic Properties (36 CFR 68)
Executive Orders
Executive Order 1 1593 Protection and Enhancement of the Cultural Environment (1971)
Executive Order 13006 Locating Federal Facilities On Historic Properties In Our Nation's Central Cities
(1996)
Executive Order 13007 Indian Sacred Sites (1996)
Executive Order 13287 Preserve America (2003)
4
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UNIT TWO
WHAT ARE CULTURAL RESOURCES?
DISTRICTS
SITES
BUILDINGS
STRUCTURES
AND OBJECTS
ELIGIBLE FOR LISTING IN THE NATIONAL
REGISTER OF HISTORIC PLACES.
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UNIT #2
WHAT ARE "CULTURAL RESOURCES"?
Historic and Archaeological Resources include districts, sites, buildings, structures, and objects
listed in or eligible for listing in the National Register of Historic Places. These may also be
listed in the Historic American Buildings Survey (HABS) or Historic American Engineering
Record (HAER) and/or may be National Historic Landmarks.
Sites - are the locations at which events of historical significance have occurred. Examples
include a battlefield site (Gettysburg), building ruins, campsite, the place where a treaty was
signed (Appomatox Courthouse), first landing point (Plymouth Rock), first point of settlement
(Jamestown), and prehistoric and historic archaeological sites.
Districts - are areas which include numerous historic structures, sites, buildings and objects as
well as "contributing elements," e.g. Capitol District with buildings, monuments, memorials,
museums (and their contents) parks, streets, roads, fences railings, lighting, lawns, etc; Mill
District with mill(s), dam and reservoir, raceways, canals, rail spurs, mill housing, church,
school, etc. "Contributing Elements" may be as simple as a piece of lawn or a fence, or as
complex as the overall setting or context of a resource including noise or air quality.
Buildings - are structures built principally to accomodate human use such as barns, forts, hotels,
houses, or industrial facilities that are important either because they are:
1) architecturally valuable as prime examples of building types, (like a Shaker barn
or a Greek Revival public building, or a Federal Period house, etc.)
2) or associated with important historical figures or events (as Monticello is associated with
Thomas Jefferson and Mount Vernon with George Washington. Appomattox Court
House is associated with the end of the Civil War. Sutter's Mill is associated with the
49'ers Gold Rush, etc.)
Structures - are constructed for utilitarian purposes, such as barns, sheds, outhouses, salt works, mines,
quarries, or kilns.
Objects - Examples include stones covered with Petroglyphs, the sword of Lafayette, an Atlatl, an
artillery piece, a stone drill, or a plaque.
Traditional cultural properties (such as dance grounds, vistas, waterways etc.) are also cultural
properties which may be subject to protection.
6
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UNIT THREE
ARE YOU AFFECTING RESOURCES?
WHO DECIDES WHAT IS AND ISN'T A "RESOURCE"
You
Your Branch Chief or Division Head
The State Historic Preservation Officer
The Tribal Historic Preservation Officer
The Secretary of the Department of the Interior
WHAT ARE THE CRITERIA OF ELIGIBILITY?
-Associated with Significant Events
-Associated with Lives of Significant Persons
-Embodying Distinctive Characteristics
-Containing Important Prehistoric or Historic
Information
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UNIT #3
ARE YOU AFFECTING CULTURAL RESOURCES
Who decides what is and isn't a resource? The Key Players
• EPA Responsible Official (Usually the Division Head or Branch Chief) as advised by EPA cultural
resource personnel, the project manager or program manager, the program or project staff and their
consultant archaeologists and historians.
• State Historic Preservation Officer (SHPO) - Center of coordination efforts and the first point of
contact for EPA. The SHPO is responsible for developing a "Comprehensive Statewide Historic
Preservation Plan" and implementing it.
• Tribal Historic Preservation Officer (THPO) - For federally recognized tribes with a delegated
program, otherwise the tribe may provide a representative under the consultation process.
• Secretary of the Department of the Interior - The Secretary is the keeper of the National
Register and also develops criteria of eligibility for the register
The Criteria Used to Determine Register Eligibility (36 CFR 60.4)
"The quality of significance in American history, architecture, archeology, engineering, and culture is
present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting,
materials, workmanship, feeling, and association and:
(a) that are associated with events that have made a significant contribution to the broad patterns
of our history; or
(b) that are associated with the lives of persons significant in our past; or
(c) that embody the distinctive characteristics of a type, period, or method of construction, or that
represent the work of a master, or that possess high artistic values, or that represent a
significant and distinguishable entity whose components may lack individual distinction; or
(d) that have yielded, or may be likely to yield, information important in prehistory or history."
Note that this definition is very broad and that it allows for listing of a wide range of different resource types
anywhere in the nation. What may appear to you to be empty field, hillside or desert may actually be a major
prehistoric site of significant archaeological importance. What might look to the casual observer like
decaying junk might actually be an important remnant of a bygone industrial age.
There are also a number of qualifiers on these criteria. The Council calls them "Criteria considerations."
Ordinarily cemeteries, birthplaces, or graves of historical figures, properties owned by religious institutions
or used for religious purposes, structures that have been moved from their original locations, reconstructed
historic buildings, properties primarily commemorative in nature, and properties that have achieved
significance within the past 50 years shall not be considered eligible for the National Register.
8
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However, such properties will qualify if they are integral parts of districts that do meet the criteria or if they
fall within the following categories:
(a) A religious property deriving primary significance from architectural or artistic distinction or
historical importance; or
(b) A building or structure removed from its original location but which is significant primarily
for architectural value, or which is the surviving structure most importantly associated with a
historic person or event; or
(c) A birthplace or grave of a historical figure of outstanding importance if there is no appropriate
site or building directly associated with his productive life.
(d) A cemetery which derives its primary significance from graves of persons of transcendent
importance, from age, from distinctive design features, or from association with historic
events; or
(e) A reconstructed building when accurately executed in a suitable environment and presented
in a dignified manner as part of a restoration master plan, and when no other building or
structure with the same association has survived; or
(f) A property primarily commemorative in intent if design, age, tradition, or symbolic value has
invested it with its own exceptional significance; or
(g) A property achieving significance within the past 50 years if it is of exceptional importance."
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The Section 106 Process Flow Chart
(adapted from the ACHP)
Initiate Section 106 Process
Establish undertaking
Identify appropriate SHPO/THPO
Develop a plan to involve the public
Identify other consulting parties
No undertaking/No
potential to cause
effects
Identify Historic Properties
Determine scope of efforts
Identify historic properties
Evaluate historic significance
No Historic Properties
Affected
1
r
Assess Adverse Effects
Apply criteria of adverse effect
W
\
r
No Historic Properties
Adversely Affected
Resolve Adverse Effects
f "V
Memorandum of
Continue consultation
w
Agreement
FAILURE TO
r N
COUNCIL
AGREE
w
COMMENT
\ J
10
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UNIT FOUR
MAKING THE 106 PROCESS WORK FOR YOU
FOUR STEPS TO SUCCESS:
INITIATE THE PROCESS
II IDENTIFY HISTORIC PROPERTIES
III ASSESS ADVERSE EFFECTS
IV RESOLVE ADVERSE EFFECTS
n
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UNIT #4 MAKING THE 106 PROCESS WORK FOR YOU: FOUR STEPS TO SUCCESS
Handout: The Section 106 Process: Flow Chart, ACHP February 2001 (attached)
STEP I: INITIATE THE PROCESS
Question: Do you have an "undertaking" which might affect historic properties?
First, you must determine if you have an "undertaking" as defined by the National Historic
Preservation Act. EPA has developed a Screening Document to evaluate appropriate level of
106 review. The 106 process should be coordinated with other reviews (e.g. NEPA)
The National Historic Preservation Act defines "undertaking" - as:
"...a project, activity, or program funded in whole or in part under the direct or indirect
jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal
agency; those carried out with Federal financial assistance; those requiring a Federal
permit, license or approval; and those subject to state or local regulation administered
pursuant to a delegation or approval by a Federal agency."
Then, identify consulting parties. Consulting parties include:
The appropriate SHPO and/or THPO (listing available at www.achp.gov)
Other consulting parties identified by the SHPO/THPO
Members of the general public - outreach should reflect the:
nature and complexity of the undertaking
nature and complexity of the impacts
extent of Federal involvement in the undertaking
• likely public interest and
confidentiality concerns
Then consult with the identified parties to:
- include the parties in the Agency planning process
- establish the nature of the undertaking
- establish the nature of the undertaking's effects.
Two possible answers:
NO! This is not an undertaking and/or this has no potential to cause effects.
YES! This is an undertaking which might affect Historic Properties - GO TO STEP II
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STEP II IDENTIFY HISTORIC PROPERTIES
The Question: Are there historic properties in the project area which might be affected by
the undertaking?
In this step, you will work with the SHPO/THPO to determine the Area of Potential Effect
(APE), identify historical properties, identify properties of religious and cultural significance to
recognized tribes and make a determination on properties and the potential effects.
In general, the steps you will follow in the process of identifying historic properties are:
1. Establish areas(s) of potential effect
2. Determine whether the area has been surveyed or otherwise inspected to identify historic
properties
3. Determine whether the area is "large" or "small"
4. Determine whether the available information provides a reliable basis for decision
making
5. Determine whether the area should be subjected to intensive survey, and whether such a
6. survey can be carried out within a reasonable period of time and at reasonable cost
7. Determine whether an alternative to intensive survey is appropriate
8. Decide how to proceed with Section 106 review
Survey of historic properties
Few Agency employees have the necessary expertise to complete the research needed to evaluate
the presence of, or significance of cultural resources. Therefore it is frequently necessary to
work with consultant archaeologists and historians. Archaeologists and historians may be
contracted directly by the Agency, but more commonly are consultants to the applicant or project
proponent.
Much of the work that needs to be done is research. The resource identification process is
divided into two progressive levels of survey:
Stage IA - Documentation Review and Strategy Development, and
Stage IB - Site Recognition Survey.
In certain instances, the limited scope of the project or its limited potential for effect on cultural
resources may permit the combination of the two levels of survey.
Stage IA - Documentation Review and Strategy development
The applicant, through the assistance of a qualified professional, carries out the Stage IA survey
to identify documented cultural resources and areas of cultural sensitivity in the project area.
The information from the survey is used to screen and develop project alternatives in order to
minimize direct and indirect impacts on historic and cultural resources. At a minimum, the
survey should include the following:
A broad-based literature search,
Analysis of documentation obtained from the SHPO, state archaeologist, historical and
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archaeological societies, libraries, museums and universities (at the local, state, and
regional levels),
Analysis of published accounts, models of settlement systems and geomorphology to
predict the relative potential of the project area for the existence of documented
resources, and
• An initial field reconnaissance for familiarization with the planning area.
The qualified professional will prepare a report of the survey, including recommendations for
whether or not additional investigation is necessary. The EPA, in consultation with the state
reviewing agency, then evaluates the report and its recommendations for adequacy.
If additional work is recommended, the report should contain an explicit research strategy for the
field survey (Stage IB-Site Recognition Survey). The scope of the Stage IB will include the
sampling of areas of varying cultural sensitivity identified in the Stage 1A survey.
Stage IB - Site Recognition Survey
The survey area for the Stage IB survey will be the area of direct impact of the proposed
alternative(s) and will be based on the research design. This survey will determine the presence
or absence of important cultural resources that could be affected by the proposed project and will
target those resources which would require further investigation. Subsurface testing to identify
undocumented archaeological sites will generally be necessary. Survey methodology and field
activities will be documented in a report prepared by the qualified professional detailing specific
recommendations for further action in relation to the proposed alternatives.
EPA, in consultation with the state reviewing agency, will evaluate all findings and
recommendations for adequacy and assess, in conjunction with facility planning documents, the
potential of project impacts. If potential impacts on an identified resource cannot be avoided or
insufficient data on the resource is available, the state/EPA will advise of the need to conduct a
Stage II - Site Definition and Evaluation Survey. The state/EPA will evaluate the design and
scope of the proposed Stage II survey for its adequacy,
Stage II - Site Definition and Evaluation Survey
This survey is carried out by the applicant on identified cultural resources that may be subject to
impact. The survey is undertaken when direct effects on a resource cannot be avoided by
reasonable modification of the undertaking or when information (extent, depth, significance)
about a resource is insufficient to assess avoidance/preservation alternatives. At a minimum,
this survey will provide data to allow for an assessment of the resource's National Register
eligibility (boundaries, integrity and significance) according to the "Criteria for Evaluation" in 36
CFR 60.6. EPA and the state, in consultation with the SHPO, will use this data to:
• Avoid impacts to the cultural resource,
Assess the need to request a determination of eligibility from the Keeper of the National
Register (36 CFR 63),
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• Assess the proposed impact on the resource, and
Develop a proposal for appropriate mitigation should the cultural resource be determined
eligible for listing in the National Register and avoidance is not practical.
Stage III - Data recovery.
Data recovery is sometimes appropriate to resolve adverse effects where disturbances are
unavoidable (i.e. certain archaeological sites). Data recovery can take the form of archaeological
excavation, recordation of architectural elements, or documentation of configurations of
contributing elements. See unit seven for guidance on the use of Data Recovery as a means to
resolve adverse effects.
National Register Eligibility Process
When a resource appears to meet the criteria for listing on the National Register, the EPA, in
consultation with the SHPO, will apply the "Criteria for Evaluation" to the resource. EPA, with
assistance from the state agency, will prepare appropriate documentation according to DOI
guidelines for eligibility. As part of the documentation, EPA will also solicit a written opinion
from the SHPO concerning the resource eligibility. If both the EPA and SHPO agree on the
eligibility, then the resource is considered eligible by "Consensus Determination".
If a question exists, or if EPA and the SHPO cannot agree on eligibility, the documentation can
be transmitted to the Keeper of the National Register for an official determination of eligibility
pursuant to 36 CFR 63.3.
The answers:
NO! "No historic properties affected" either because there are no historic properties in the
APE or because there are historic properties, but the undertaking won't affect them.
If so, provide documentation to the SHPO/THPO, notify consulting parties, and make
documentation available to the public. SHPO/THPO and Advisory Council have 30 days
to file an objection. If none filed within 30 days
106 COORDINATION COMPLETED
YES! Historic properties affected PROCEED TO STEP III
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STEP III
DETERMINE EFFECT
In this step, you work with the SHPO/THPO and the public to apply the criteria of adverse effect
and determine if the effect of your undertaking on historic properties will be adverse.
The question: Will the affect on Historic Properties be adverse?
Criteria are Defined by §800.5:
"(1) Criteria of adverse effect. An adverse effect is found when an undertaking may
alter, directly or indirectly, any of the characteristics of a historic property that qualify the
property for inclusion in the National Register in a manner that would diminish the
integrity of the property's location, design, setting, materials, workmanship, feeling, or
association. Consideration shall be given to all qualifying characteristics of a historic
property, including those that may have been identified subsequent to the original
evaluation of the property's eligibility for the National Register. Adverse effects may
include reasonably foreseeable effects caused by the undertaking that may occur later in
time, be farther removed in distance or be cumulative."
Who decides if an effect is adverse? The same parties who made the decision regarding what is
and isn't a resource in Unit Three. These parties must be consulted regarding the effect.
Usually, the guidance of the SHPO/THPO is instrumental in the Agency decision regarding
effects although the Council may step in, especially to resolve disputes regarding resources and
effects.
Review the list of examples of adverse effects below (taken from §800.5). Can you offer
specific examples of effects which result from your projects or programs?
"(2) Examples of adverse effects.
Adverse effects on historic properties include, but arc not limited to:
(I) Physical destruction of or damage to all or part of the property;
(ii) Alteration of a property, including restoration, rehabilitation, repair, maintenance,
stabilization, hazardous material remediation and provision of handicapped access, that is
not consistent with the Secretary's Standards for the Treatment of Historic Properties (36
CFR part 68) and applicable guidelines;
(iii) Removal of the property from its historic location;
(iv) Change of the character of the property's use or of physical features within the property's
setting that contribute to its historic significance;
(v) Introduction of visual, atmospheric or audible elements that diminish the integrity of the
property's significant historic features;
(vi) Neglect of a property which causes its deterioration, except where such neglect and
deterioration arc recognized qualities of a property of religious and cultural significance
to an Indian tribe or Native Hawaiian organization; and
(vii) Transfer, lease, or sale of property out of Federal ownership or control without adequate
and legally enforceable restrictions or conditions to ensure long-term preservation of the
property's historic significance. "
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The criteria of adverse effect are applied in consultation with consulting parties.
You must:
consult with the SHPO/THPO
consult with any tribe regarding religious and cultural significance
consider views provided by consulting parties and the public.
Phased application is allowed for
corridors,
large areas, and
cases where access to properties is restricted.
Two possible answers:
NO! No Historic Properties Adversely Affected
You must provide documentation and findings to all consulting parties and to the public.
The SHPO/THPO has 30 days to file an objection. If the SHPO/THPO does not respond
in 30 days, then that is the same as agreement.
The Council will review only if there is a disagreement or by specific Council request.
The Council has 15 days to review. If there is no Council response within 15 days that is
the same as agreement
106 COORDINATION COMPLETED
YES! Historic Properties Adversely Affected
PROCEED TO STEP IV
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STEP IV
RESOLVE ADVERSE EFFECTS
Question: Can we come to an agreement which will allow us to proceed in a manner
which will minimize and/or mitigate adverse effects?
A. Send notification to the Council - ACHP must be notified for all adverse effect findings.
ACHP can be notified by sending them the same documentation package as was sent to
consulting parties. The notification must include a description of:
¦ the undertaking and the APE
¦ identification steps and affected historic properties
¦ effects and applicability of the criteria of adverse effect
¦ views of consulting parties and the public.
It is important that the Council be notified of every finding of adverse effect as soon as
the finding is complete. The MOA should NOT be the first notice that the Council
receives of an undertaking with adverse effects.
B. Invite the Council to participate if:
a National Historic Landmark is adversely affected,
a Programmatic Agreement is proposed, or
The agency wants Council involvement.
C. Consider alternatives to avoid effects and alternatives to mitigate or minimize effects to
historic properties.
Alternatives to avoid potential effects
to historic properties might include:
no action alternative
shift in alignment
relocation to different area
design or process modification
non-structural solutions
other
Alternatives to mitigate or minimize
potential effects might include:
shift in alignment
design or process modification
non-structural solutions
data recovery
HABS/HAER* documentation
other
* Historic American Building Survey/Historic American
Engineering Record
Answers:
YES! Negotiate stipulations, prepare MOA, get signatures and approvals
SECTION 106 IS COMPLETE. SEE UNIT 5 - "AGREEMENT DOCUMENTS"
NO! Council must be invited to participate. Council may either consult, or comment
SEE UNIT 6A - "WORKING WITH THE ADVISORY COUNCIL"
18
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UNIT FIVE
AGREEMENT DOCUMENTS
F.
G.
A. WHAT ARE AGREEMENT DOCUMENTS?
NAE s/ MOAs / PAs
B. HOW IS THE DECISION TO PREPARE A
DOCUMENT REACHED?
C. WHO PREPARES THE DOCUMENT?
MiE&iEA^
® IB IE iR 2 IT © iR iE
D. WHO SIGNS THE DOCUMENT?
E. WHY DO WE NEED AGREEMENT
DOCUMENTS?
CAN TIIEY BE REVISED?
WHAT IF THE TERMS AREN'T
CARRIED OUT?
19
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UNIT 5
AGREEMENT DOCUMENTS
A. What are agreement documents?
Agreement documents are the formal written evidence that the Agency has complied with the
106 process. Decision documents record the findings of the 106 process, formalize the
agreement between consulting parties, and provide a written record of the measures to be
undertaken to resolve adverse effects.
The term "agreement document" includes three types of documents that conclude the process of
review under Section 106. Each type represents an agreement between an agency and a SHPO,
or an agreement among an agency, the SHPO, the Council, and sometimes other parties.
"No Adverse Effect" (NAE) determinations are made by agencies in consultation with
SHPOs under 36 CFR §800.5(d). Often in making such a determination, an agency, an
SHPO, and sometimes other parties agree on project changes or conditions to prevent
adverse effects to historic properties. Agencies provide NAE determinations, with
supporting documentation, to the Council for review.
Memoranda of Agreement (MOA) are executed under 36 CFR §800.5(e)(4). In an
MOA an agency, a SHPO, the Council, and sometimes other parties agree on measures to
avoid, reduce, or mitigate adverse effects on historic properties, or to accept each effect
in the public interest.
Programmatic Agreements (PA) arc executed under 36 CFR §800.13. In a PA an
agency, the Council, and other parties agree on a process for considering historic
properties with respect to an entire agency program.
B. How is the decision to prepare an agreement document reached?
The process leading to an agreement document depends on the nature of the undertaking and its
effects.
NAE determinations. Under the regulations, the responsible Federal agency official
applies the Council's Criteria of Effect and Adverse Effect [36 CFR §800.9] to historic
properties within an undertaking's area of potential effects, in consultation with the
SHPO. If the agency determines that the undertaking will have no adverse effect, the
agency so advises the Council, usually in a letter to the Council with supporting
documentation. The extent of the documentation required depends on whether the SHPO
has formally concurred in the determination and on the nature of the undertaking's
effects.
If the fact that the undertaking will have no adverse effect is obvious, reaching the
determination should be easy and involve only simple, routine consultation between the
agency and SHPO. If there arc questions to be resolved about the nature of the
20
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undertaking's effects, however, substantial consultation may go into reaching the
determination, involving onsite reviews, study of documents, weighing of alternatives,
perhaps making alterations in project plans, and the development of conditions which,
once agreed upon, will ensure, within reason, that adverse effects will be avoided.
MOAs. If the agency's application of the Criteria of Adverse Effect indicates that the
undertaking will have adverse effects, achieving agreement normally requires more
formal consultation, often involving a wider range of parties than is typical of an NAE
determination. Still, however, the nature of the consultation process is determined by the
extent of the undertaking and its effects. It may be obvious that there is no reasonable
alternative to the action causing adverse effects, and the measures that can be adopted to
reduce or mitigate such adverse effects may be equally obvious. In such a case an MOA
can usually be developed promptly. Where an undertaking presents more complex issues,
consultation involves careful discussion of the undertaking's various effects, examination
of alternatives to avoid or mitigate those effects, and a careful weighing of the public
interest, often in the context of public meetings, onsite inspections, the conduct of
appropriate studies, and the participation of diverse groups of people. The result is
usually an MOA representing the best compromise solution agreeable to all the
consulting parties.
PAs. A PA is usually developed because an agency finds that its actions under a given program,
within a large and complex project, or with respect to a given class of undertakings will
require many individual requests for Council comment under 36 CFR §§800.4 through
800.6, and that making such requests will be inefficient or otherwise inconsistent with
effective program management. Under such circumstances the agency suggests to the
Council, or to an SHPO, that a PA be developed prescribing a review process tailored to
its particular program, to stand in place of the normal Section 106 review process.
Alternatively, the Council, an SHPO, or some other party may suggest to an agency that a
PA is appropriate, and the agency may agree. The parties then notify the potentially
concerned public and consult to reach agreement. The responsible agency and the
Council are always consulting parties on a PA, together with one or more SHPOs or the
National Conference of SHPOs (NCSHPO). Other parties participate in consultation and
sign the PA depending on the nature of the program and its effects. The process of
consultation toward a PA under 36 CFR §800.13 is extremely flexible—to accommodate
the diversity of Federal programs, the regulations avoid prescribing a particular
procedure. Once agreement is reached, the consulting parties execute the PA, which then
goes into effect, superseding the terms of 36 CFR §§800.4 through 800.6 with respect to
actions under the program the PA covers.
21
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C. Who prepares the agreement document?
NAE determinations. Under 36 CFR §800.5(d), the Federal agency official is
responsible for making an NAE determination, and therefore is responsible for
documenting it. A document memorializing an agreement on which an NAE
determination is based may, however, be developed by another party. For example, if an
SHPO writes to an agency saying that in his or her opinion an undertaking will have no
adverse effect if specified conditions are carried out, the agency can then write to the
Council committing itself to carry out the conditions, appending the SHPO's letter with
whatever supporting documentation is necessary for the Council's review, and making its
NAE determination. In some cases the Council, too, may draft conditions upon which an
NAE determination can be based.
MOAs. The regulations at 36 CFR §800.5(e) permit agencies and SHPOs to develop
MOAs without Council participation, provided the responsible agency notifies the
Council when it initiates consultation with the SHPO. This notification affords the
Council the opportunity to participate if it chooses. MOAs developed without Council
participation are submitted by the agency to the Council for review; acceptance of such
an MOA by the Council concludes the Section 106 review process. Such MOAs are
commonly called two-party MOAs because a minimum of two parties (the agency
official and the SHPO) sign them before they are sent to the Council. Other parties may
sign as concurring parties.
The regulations also permit the Council to participate formally in the consultation
process. In such an event, the Council is a formal signatory to the MOA along with the
agency official, the SHPO, and any other parties. Such an MOA is commonly referred to
as a three-party MOA because it has a minimum of three signatories (agency official,
SHPO, and Council). Three-party MOAs are often prepared by the Council, but can be
prepared by any of the other consulting parties, once the parties have reached agreement
on its content.
The Council can also participate informally in the consultation process, so an agency
official or SHPO can ask the Council to provide a draft two-party MOA that the
consulting parties can then finalize and send to the Council for review and acceptance.
The Council will help develop such drafts to the extent that time and personnel
limitations permit.
PAs. PAs are usually prepared in final form by the Council, though they are often
prepared in draft by an agency official or an SHPO or group of SHPOs, or by others. The
Council must be consulted in the development of a PA. [36 CFR §800.13] Certain kinds
of frequently used PAs, covering the programs of local governments using Community
Development Block Grants (CDBG) and related program funds, are commonly prepared
by SHPOs or local governments with minimum Council participation, however.
D. Who signs the agreement document?
22
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Three-party MOAs are created as the result of consultation under 36 CFR §800.5(e), in which
the Council elects to participate in consultation, or is invited to consult by the agency or SHPO.
The Council need not be invited to participate in consultation where the undertaking under
review is relatively simple, noncontroversial, and routine. In such cases two-party MOAs are
most appropriate. The Council must be notified when an adverse effect on historic properties is
found and consultation begins toward a two-party agreement. Upon receiving such notification,
or upon otherwise learning about the undertaking, the Council may elect to participate formally
in the consultation.
NAE determinations. NAE determinations are usually memorialized in letters signed by
the relevant agency official, sometimes with attached conditions or exhibits, and are sent
to the Council with appropriate supporting documentation. SHPOs may concur in NAE
determinations in the same letter that is signed by the agency official, or in a separate
letter. Other parties may concur in NAE determinations. Unless an agency has legal
authority to delegate its Section 106 responsibilities to another party, the agency official's
signature on the NAE document is mandatory.
MOAs. At minimum, two parties sign every MOA. Normally the two parties are the
Federal agency official responsible for the undertaking and the SHPO. If the SHPO
declines to sign the MOA, or fails to respond within 30 days after receiving an agency
request for his or her signature, the agency official can ask the Council to sign the MOA
in lieu of the SHPO. [36 CFR §800. l(c)(l)(ii)]
When a two-party MOA is accepted by the Council, the Council's authorized
representative signs it on an acceptance line. The Council's representative signs
three-party MOAs in the same manner as the agency officials and SHPOs. A Federal
agency official may only delegate MOA signature authority to a representative of a State
or local government if the agency has legal authority to delegate its Section 106
responsibilities. Where multiple Federal agencies are involved in an undertaking, all may
sign the MOA, or signature authority may be formally delegated to a lead agency.
Where the undertaking will affect the lands of an Indian tribe, the tribe must be invited to
concur in any agreement document. With respect to two-party and three-party MOAs,
other parties who have participated in consultation may be invited to concur. For example
a local preservation organization may be invited to concur in an MOA if the agency and
SHPO (and the Council, if it is a participant) agree to do so.
PAs. PAs are signed by the representative of the responsible agency or local government
and by the Council. They are also usually signed by an SHPO, several SHPOs, or the
president of NCSHPO, depending on the nature of the program they cover. Other parties
may concur in a PA.
E. Why do we need agreement documents?
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Execution and implementation of an agreement document, whether it be an NAE determination,
an MOA, or a PA, evidences a Federal agency's fulfillment of its responsibilities under Section
106. In other words, agreement documents indicate both that the agency has taken the effects of
the undertaking into account, and that the agency has afforded the Council a reasonable
opportunity to comment. An agreement document obligates the parties to carry out its terms. If
the terms cannot be carried out the document must be amended, or further comments of the
Council must be sought in accordance with the regulations.
F. Can agreement documents be revised?
Agreement documents are normally revised if the nature of the undertaking changes. For
example, the locations where effects will occur or the nature of those effects may be altered, or
unanticipated effects may be identified after the agreement document is concluded. Revisions
also are made if the measures originally agreed upon become insufficient to address the
preservation problems involved, or if they are unduly expensive or otherwise infeasible.
Revisions are sometimes made to accommodate a change in approach occasioned by professional
concerns, such as a change in the research questions addressed in an archeological data recovery
program. Finally, revisions may be necessary if a considerable amount of time passes between
execution of the agreement document and implementation of its terms, during which time
concepts of historic significance and how to deal with various kinds of historic properties may
change.
If after executing an MOA an agency determines that it will be unable to carry out the MOA's
terms, the agency should request an amendment in accordance with 36 CFR §800.5(e)(5). Any
other party to an agreement document may request an amendment—for example, a party may
request an amendment if that party believes a change has occurred in the undertaking, which
creates new preservation problems that must be addressed. Amendments are negotiated in the
same manner as original agreements. Although the regulations do not specify a process for
amending agreements associated with NAE determinations, or for amending PAs, these
documents too should be revised, where necessary, through consultation among the original
participants.
G. What if an agreement document's terms arc not carried out?
Since implementation of an agreement document evidences fulfillment of an agency's Section
106 responsibilities, it follows that failure to implement its terms evidences that the agency's
Section 106 responsibilities have not been fulfilled.
NAE determinations. Agencies are required by the regulations to carry out the measures
they agree to in reaching NAE determinations. [36 CFR §800.5(d)(2)] If an agency fails
to do so it has not complied with Section 106 and must resubmit the undertaking for
review.
MOAs. Failure to carry out an MOA's terms requires that the agency resubmit the
undertaking to which the MOA pertains for Council comment, by preparing a new MOA
or amending the existing MOA. If consultation to prepare a new MOA or amendments
24
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proves unproductive, the agency is required to seek Council comment in accordance with
36 CFR § 800.6(b). [36 CFR §800.6(c)( 1)]
PAs F ailure to carry out a PA's terms requires that the responsible agency comply with
the regulations on a case-by-case basis with respect to individual undertakings that would
otherwise be covered by the PA. [36 CFR §800.13(g)]
* This section is excerpted from guidance material prepared by the Advisory Council on Historic
Preservation. ACHP's guidance documents are available on-line at the following address.
http://www achp gov.
25
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UNIT SIX WORKING WITH CONSULTING PARTIES
A. THE ADVISORY COUNCIL
B. THE SHPO/THPO
C. NATIVE AMERICAN TRIBES AND
NATIVE HAWAIAN ORGANIZATIONS
D. THE PUBLIC
26
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UNIT 6 WORKING WITH CONSULTING PARTIES
A. Working with the Advisory Council on Historic Preservation
1. Criteria for Council Involvement
The Council is likely to get involved if the project involves:
Substantial impacts on important properties,
Important questions of policy or interpretation,
Procedural problems, or
Issues of concern to Native Americans.
The regulations do not specify the conditions under which the Council should be invited to
participate, except that 36 CFR § 800.10 requires that the Council participate in consultation
concerning direct and adverse effects on National Historic Landmarks. The Council should be
invited to participate when the undertaking under review is complicated or potentially
controversial, when there is substantial public interest in the historic preservation issues
involved, when the undertaking presents issues about which Council policy is not established, or
when the national perspective the Council can bring to bear on preservation issues is required or
may be useful. Appendix A to 36 CFR Part 800 includes the Council criteria for involvement
with individual Section 106 cases.
The Council can be consulted informally during a process which otherwise proceeds as a
two-party consultation. 30-day Council review is provided for two-party MOAs under 36 CFR §
800.6(a)(1) with respect to a generally routine undertaking with a few unusual elements, or if the
consulting parties are unfamiliar with the mechanics of MOA preparation.
2. National Landmarks
If there are adverse impacts on National Landmarks the Council must be invited to consult and
so must the Secretary of the Interior. 36 CFR § 800.10 requires that the Council participate in
consultation concerning direct and adverse effects on National Historic Landmarks.
3. Council Comments:
must be made within 45 days (unless otherwise agreed)
are sent to the Agency Head (with copies to the Federal Preservation Officer
and consulting parties)
may be issued even when the Council is a signatory to the MOA
B. Working with the SHPO/THPO
The SHPO/THPO is the official designated to carry out the 106 process for most projects.
Regulations now put the SHPO/THPO in charge, with appeal to the Council. The SHPO is also
the individual designated by the governor of the state to develop and administer the Historic
Preservation Plan for the State as required by the National Historic Preservation Act. The SHPO
is therefore a central repository and archive for all aspects of documentation of historical and
archaeological resources within the state. This means that the SHPO is the central source for all
of the contextual data which will be needed to adequately evaluate the resources affected by your
27
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project.
• Contact the SHPO/THPO as soon as an undertaking is identified
• SHPO/THPO's office will assign a contact to track the undertaking
• Routine coordination with the SHPO/THPO or contact is key to making the process work
• Look to leadership by SHPO/THPO in eligibility determinations
• Notify SHPO/THPO of the Area of Project Effect (APE) early on
• If SHPO/THPO agrees on a finding of No Historic Properties Affected then 106 coordination
process is complete.
• If SHPO/THPO thinks there might be eligible resources in the APE, SHPO/THPO will provide
guidance on the need for further investigation/documentation.
• SHPO/THPO/THPO is usually the permitting/licensing authority for archaeological excavation
• SHPO/THPO reviews draft MOA and signs final MOA.
• SHPO/THPO can assist Agency to determine the appropriate level of documentary recording.
Agency then verifies that all documentary recording is completed and accepted by SHPO/THPO
prior to the initiation of undertaking.
• SHPO may designate appropriate state and local archive locations for copies of the
documentation.
The SHPO is mandated under law to provide assistance to the agency. However, like EPA, the
SHPO has to work with limited resources. It is therefore important to ensure that inquiries to the
SHPO are structured narrowly within the context of the 106 process. The SHPO usually can't,
for example, tell you if there are or are not resources in your project area. However, consultation
with the SHPO can help you to determine the need for an archaeological or historical survey of
your project area. The SHPO won't provide you with a scope of work for the survey, but will
typically review draft research proposals to ensure that the survey will be responsive to project
need.
C. Working with the Tribes
The 106 Consultation requirements apply to all Federally Recognized tribes. Tribes with a
THPO should always be consulted. Tribes without a THPO must still be consulted if project
would affect:
properties on tribal lands or
religious and cultural properties off tribal lands.
The THPO is distinct from the SHPO in that the THPO's authority is limited only to tribal lands
and to tribal religious and cultural properties off tribal lands. Therefore the THPO does not have
the broader archives or repository of statewide information held by the SHPO.
Even tribes without a THPO (i.e. who have not assumed the authority of the SHPO for the tribe)
may still have a tribal representative who should be consulted. This consultation is required to
help the Agency determine the potential for effects on cultural resources. Native American
participation is necessary to identify sacred properties and artifacts of major cultural
significance.
28
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The Native American Graves Protection and Repatriation Act of 1990 (25 USC 3001-3013) may
apply to resources in the project area.
Native American Human Remains and Objects including:
Associated funerary objects - objects originally placed with, and still associated
with Native American human remains;
Unassociated funerary objects - objects originally placed with, but no longer
accompanied by, Native American human remains;
Sacred objects - ceremonial objects needed for the practice of religion;
Objects of cultural patrimony - objects having ongoing historical, traditional or
cultural importance central to the Native American group or culture itself, rather than
property owned by an individual Native.
NAGPRA should not interfere with scientific study. If a lineal descendant, Indian tribe, or
Native Hawaiian organization requests culturally affiliated Native American cultural items the
Federal agency or museum shall expeditiously return such items "unless such items are
indispensable for completion of a specific scientific study, the outcome of which would be of
major benefit to the United States. Such items shall be returned by no later than 90 days after the
date on which the scientific study is completed." This provides ample opportunity for evaluation
and conservation of resources before return.
D. Working with the Public
The 106 Process must be open to interested parties at all stages. Participants may include local
members of the community, residents in and near the APE, local historical societies, members of
unrecognized tribes, etc. These must all have an opportunity to participate in the 106 process.
The 106 public participation requirements can normally be fulfilled in coordination with other
program or project based public participation activities. Plan to include the 106 process when
developing your public participation programs. When making contact through the
advertisements, newsletters and the media for public meetings, hearings and workshops
remember to explicitly mention the 106 process (e.g "...and in compliance with Section 106 of
the National Historic Preservation Act"). Collect and save all comments and correspondence
relative to historic preservation to document the public coordination process and its results.
29
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¦;nit seven
GUIDANCE FOR DATA RECOVERY
ADVISORY COUNCIL
GUIDANCE
TWELVE KEYS TO SUCCESSFUL DATA
RECOVERY PROGRAMS
CONSERVATION AND THE FATE OF RECOVERED
RESOURCES
30
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UNIT 7
DATA RECOVERY GUIDANCE
A. The viability of data recovery as a means for resolving adverse effects depends on the
nature of the resource. Data recovery programs must be closely tailored to the basis of
eligibility. The Advisory Council has issued guidance on data recovery at 64 FR 27085-
27087 (attached to the regulations in this manual). If this guidance is followed, the
Council is unlikely to intervene in recovery actions.
B. There are twelve keys to successful data recovery programs:
1. The site must be valuable chiefly for information which can be recovered
2. No human remains, funerary objects, sacred objects, or items of cultural patrimony
3. No long-term value for preservation in place
4. No special significance to an ethnic group or a community which would object
5. Site not valuable for permanent in-situ display or public interpretation
6. Data recovery plan with research design approved and implemented
7. Work performed by professionals meeting qualification standards (48 FR 44738-39)
8. Adequate resources allocated to complete plan with periodic reporting to all parties
9. Final Report which meets DOI's standards (42 FR 5377-79) sent to SHPO/THPO
10. Oversight and peer review provided for large, unusual or complex projects
11. No unresolved issues with Tribes attaching religious and cultural significance to site
12. Terms and conditions part of MOA or Programmatic Agreement
C. Conservation and the Fate of Recovered Resources
Under the 12 guidelines provided above, data recovery can be an effective means for resolving
adverse effects. To ensure that data is not lost, however, the research must be completed
thoroughly. NAGPRA requires that human remains, associated and unassociated funerary
objects, and objects of tribal patrimony must be promptly surrendered to tribal authorities.
However, it provides that any such objects which are the subject of on-going study may remain
in the possession of the federal government (or its representatives) while the study in underway.
This clause provides ample opportunity for proper completion of field studies, post field-work
research and conservation of recovered resources before the resources are surrendered. Objects
must then be surrendered within 90 days of the completion of the study.
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ATTACHMENT 1
LIST OF SHPOs BY STATE
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State Historic Preservation
Officers
Alabama
Mr. Frank White, Executive Director
& SHPO
Alabama Historical Commission
468 South Perry Street
Montgomery, AL 36130-0900
Phone. 334-242-3184
Fax: 334-240-3477
Deputy: Ms. Elizabeth Ann Brown
E-mail, ebrown@preserveala.org
Alaska
Ms. Judith Bittner, SHPO
Alaska DNR, Office of History &
Archaeology
550 West 7th Avenue
Suite 1310
Anchorage, AK. 99501-3565
Phone: 907-269-8721
Fax- 907-269-8908
E-mail: judy bittner@alaska.gov
Deputy: Ms. Joan Antonson
E-mail: jo.antonson@alaska.gov
American Samoa
Mr. John Enright, HPO
Executive Offices of the Governor
AS Government/Historic
Preservation Office
Pago Pago, American Samoa 96799
Phone. 684-699-2316
Fax: 684-699-2276
E-mail: enright@samoatelco.com
Deputy Mr. David J. Herdrich
E-mail:
David_J_Herdrich@samoatelco.com
Arizona
Mr. James W. Garrison, SHPO
Arizona State Parks
1300 West Washington
Phoenix, AZ 85007
Phone. 602-542-4174
Fax: 602-542-4180
E-mail: jwg2@azstateparks.gov
Deputy: Ms. Carol Griffith
E-mail- cag2@azstateparks.gov
Deputy: Dr. William Collins
E-mail wsc2@azstateparks.gov
Arkansas
Ms. Cathie Matthews, SHPO
Department of Arkansas Heritage
323 Center Street
Suite 1500
Little Rock, AR 72201
Phone: 501-324-9150
Fax: 501-324-9154
E-mail: cathie@arkansasheritage.org
Deputy: Ms. Frances McSwain
Phone: 501-324-9357
E-mail: frances@arkansasheritage.org
California
Mr. Milford Wayne Donaldson, SHPO
Office of Historic Preservation
Department of Parks & Recreation
P.O. Box 942896
Sacramento, CA 94296-0001
Phone: 916-653-6624
Fax. 916-653-9824
E-mail: mwdonaldson@parks.ca.gov
Deputy Mr. Stephen Mikesell
E-mail: smikesell@parks.ca.gov
Colorado
Mr. Edward C. Nichols, SHPO
Colorado Historical Society
1300 Broadway
Denver, CO 80203
Phone: 303-866-3355
Fax: 303-866-4464
E-mail: ed.nichols@chs.state.co.us
Deputy: Dr. Susan M. Collins
Phone: 303-866-2736
E-mail: susan.collins@chs.state.co.us
Connecticut
Ms. Karen J. Senich, SHPO
Connecticut Commission on Culture
& Tourism
One Constitution Plaza
Hartford, Connecticut 06103
Phone: 860-256-2753
Fax 860-256-2811
E-mail: karen.senich@ct.gov
Contact. Ms. Mary Donohue
Phone: 860-256-2755
E-mail: Mary.Donohue@ct.gov
Delaware
Mr. Timothy A. Slavin, SHPO
Division of Historical and Cultural
Affairs
21 The Green
Dover, DE 19901
Phone: 302-739-5313
Fax: 302-739-6711
E-mail: timothy.slavin@state.de.us
Deputy: Mr. Stephen Marz
Phone: 302-736-7419
E-mail: Stephen.marz@state.de.us
District of Columbia
Mr. David Maloney, SHPO
Historic Preservation Office
801 North Capitol Street NE
3rd Floor
Washington, DC 20002
Phone: 202-442-8800
Fax: 202-741-5246
E-mail: david.maloney@dc.gov
Deputy: Mr. Steve Callcott
Phone: 202-741-5247
E-mail: steve.callcott@dc.gov
Florida
Mr. Frederick Gaske, SHPO & Div.
Director
Division of Historical Resources,
Dept.of State
500 South Bronough Street
Room 305
Tallahassee, FL 32399-0250
Phone: 850-245-6300
E-mail: fgaske@dos.state.fl.us
Bureau of Historic Preservation
Toll Free Phone: 800-847-7278
Phone: 850-245-6333
Fax: 850-245-6437
Deputy: Ms. Barbara Mattick
E-mail: bmatlick@dos.state.fl.us
Deputy: Mr. David Ferro
E-mail: dferro@dos.state.fi.us
Deputy: Ms. Laura K.ammerer
E-mail: lkammerer@dos.slate.fl.us
Georgia
Mr. Noel A. Holcomb, SHPO
Historic Preservation Division/DNR
34 Peachlree Street NW
Suite 1600
Atlanta, GA 30303-2316
Phone: 404-656-2840
Fax. 404-651-8739
Deputy: Dr. W. Ray Luce, Director
E-mail: ray_luce@dnr.stale.ga.us
Deputy: Dr. Richard Cloues
E-mail:
richard_cloues@dnr.state.ga.us
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Guam
Mr Joseph W. Duenas, SHPO
Guam Historic Preservation Office
Department of Parks & Recreation
490 Chalan Palasyo
Agana Heights, Guam 96910
Phone: 671-475-6296/7
Fax-671-477-2822
E-mail. Iaguon@niail.gov.gu
Deputy: Mr. Patrick Lujan
Phone 671-475-6294/5
E-mail: patricklujan@yahoo.com
Hawaii
Ms. Laura H. Thielen , SHPO
Department of Land & Natural
Resources
601 Kamokila Boulevard
Suite 555
Kapolei, HI 96707
Phone' 808-587-0400
Fax: 808-587-0390
Administrator. Ms. Puaalaokalani
Aiu
Deputy: Ms. Nancy McMahon
State Historic Preservation Office
Phone' 808-692-8015
Fax: 808-692-8020
E-mail.
nancy.a.mcmahon@hawan.gov
Idaho
Ms. Janet Gallimore, Executive
Director
Idaho State Historical Society
2205 Old Penitentiary Road
Boise, ID 83712
Phone: 208-334-2682
Deputy. Ms. Suzi Pengilly
Phone: 208-334-3847
Fax 208-334-2775
E-mail-
suzi.pengilly@ishs.idaho.gov
Deputy: Mr. Ken Reid
Phone- 208-334-3861
Email. ken.reid@ishs.idaho gov
Illinois
Mr. William L. Wheeler, SHPO
Associate Director
Illinois Historic Preservation
Agency
I Old State Capitol Plaza
Springfield, IL 62701 -15 12
Phone- 217-782-4836
Fax: 217-524-7525
E-mail bill.wheeler@illinois.gov
Deputy. Ms. Anne Haaker
E-mail: anne.haaker@illinois gov
Indiana
Mr. Robert Carter, Jr., SHPO
Director, Department of Natural
Resources
402 West Washington Street
Indiana Government Center South
Room W256
Indianapolis, IN 46204
E-mail: dhpa@dnr in.gov
Deputy: Dr. Jim Glass
Division of Historic Preservation &
Archaeology
402 West Washington Street
Room W274
Indianapolis, IN 46204
Phone: 317-232-3492
Fax: 317-232-0693
E-mail: jglass@dnr.in.gov
Iowa
Ms. Cyndi Pederson, SHPO
State Historical Society of Iowa
Capitol Complex
East 6th and Locust Street
Des Moines, 1A 50319
Phone: 515-281-8741
Fax. 515-242-6498
E-mail: cyndi.pederson@iowa.gov
Deputy. Ms. Barbara Mitchell
Phone: 515-281-3306
Fax: 515-282-0502
E-mail: Barbara.Mitchell@iowa gov
Kansas
Ms Jennie Chinn, SHPO, Executive
Director
Kansas State Historical Society
6425 Southwest 6th Avenue
Topeka, KS 66615-1099
Phone. 785-272-8681 x210
Fax. 785-272-8682
E-mail: jchinn@kshs.org
Deputy. Mr. Patrick Zollner, Director
Phone: 785-272-8681 x257
Email: pzollner@kshs.org
Deputy: Mr. Bob Hoard
Phone: 785-272-8681 ,\269
Email, rhoard@kshs.org
Kentucky
Mr. Mark Dennen, Interim Executive
Director
Kentucky Heritage Council
300 Washington Street
Frankfort, KY 40601
Phone: 502-564-7005
Fax: 502-564-5820
Email: mark.dennen@ky.gov
Louisiana
Mr. Scott Hutcheson, SHPO-
Designate
Department of Culture, Recreation &
Tourism
P.O. Box 44247
Baton Rouge, LA 70804
Phone: 225-342-8200
Fax: 225-342-8173
Website:
http://www.crt.state.la.us/hp/?
Deputy: Mr. Robert Collins
Phone: 225-342-8200
E-mail: rcollins@crt.state.la.us
Deputy: Mr. Phil Boggan
Phone: 225-342-8160
Email: pboggan@crt.state.la.us
Maine
Mr. Earle G. Shettleworth, Jr.. SHPO
Maine Historic Preservation
Commission
55 Capitol Street
Station 65
Augusta, ME 04333
Phone- 207-287-2132
Fax. 207-287-2335
E-mail: earle.shettleworth@maine.gov
Deputy Mr. Kirk F. Mohney
E-mail: kirk.mohney@niaine.gov
Marshall Islands, Republic of the
Mr. Lenest Lanki, HPO
Secretary of Interior and Outer Islands
Affairs
P.O. Box #1454
Majuro Atoll, MH 96960
Phone 011-692-625-4642
Fax: 011-692-625-5353
Deputy Clary Makroro
E-mail: rmihpo@ntamar.net
Maryland
Mr. J. Rodney Little, SHPO
Maryland Historical Trust
100 Community Place
3rd Floor
Crownsville, MD 21032-2023
Phone. 410-514-7600
Fax: 410-514-7678
E-mail: RLittle@mdp.state.md.us
-------
Deputy: Ms. Elizabeth Hughes
Phone: 410-514-7604
E-mail: EHughes@mdp.state.md.us
Deputy: Mr. Michael Day
Phone: 410-514-7629
E-mail: MDay@mdp.state.md.us
Massachusetts
Ms. Brona Simon, SHPO &
Executive Director
Massachusetts Historical
Commission
220 Morrissey Boulevard
Boston, MA 02125
Phone: 617-727-8470
Fax: 617-727-5128
E-mail.Brona.Simon@state.ma.us
Michigan
Mr. Brian D. Conway, SHPO
Michigan Historical Center
702 West Kalamazoo Street
P.O. Box 30740
Lansing, Ml 48909-8240
Phone: 517-373-1630
Fax- 517-335-0348
E-mail: conwaybd@michigan.gov
Micronesia, Federated States of
Mr. Rufino Mauricio, FSM HPO
Office of Administrative Services
Division of Archives and Historic
Preservation
FSM National Government
P.O. Box PS 70
Palikir, Pohnpei, FM 96941
Phone: 01 1-691-320-2343
Fax: 011-691-320-5634
E-mail: hpo@mail.fm
FSM includes four States,whose
HPOs are listed below:
Mr. Alfonso Fanechigiy, HPO
Yap Historic Preservation Office
Office of the Governor
P.O. Box 714
Colonia, Yap, FM 96943
Phone: 011-691-350-2194/2255
Fax. 011-691-350-2381
E-mail: hpoyapfsm@mail.fm
Mr. David B. Welle, Chuuk HPO
Department of Commerce &
Industry
P.O. Box 280
Moen, Chuuk (Truk), FM 96942
Phone. 011-691-330-2761
Fax: 011-691-330-4906
Mr. Emensio Eperiam, HPO
Director, Department of Land
Pohnpei State Government
P.O. Box 1149
Kolonia, Pohnpei, FM 96941
Phone: 011-691-320-2611
Fax: 011-691-320-5599
E-mail: nahnsehleng@mail.fm
Mr. Berlin Sigrah, Kosrae HPO
Division of History and Cultural
Preservation
Department of Conservation and
Development
Tofol, Kosrae, FM 96944
Phone: 011-691-370-3078
Fax: 011-691-370-3767
E-mail: dalu@mail.fm
Minnesota
Dr. Nina Archabal, SHPO
Minnesota Historical Society
345 Kellogg Boulevard West
St. Paul, MN 55102-1906
Phone: 651-259-3100
Fax: 651-282-2374
Deputy: Mr. Michael Fox
Phone: 651-259-31 10
Deputy. Ms. Britta L. Bloomberg
Phone: 651-259-3466
E-mail, britta.bloomberg@mnhs.org
Mississippi
Mr. H.T. Holmes, SHPO
Mississippi Department of Archives &
History
P.O. Box 571
Jackson, MS 39205-0571
Phone: 601-576-6850
Deputy Mr Kenneth H P'Pool
Division of Historic Preservation
Phone: 601-576-6940
Fax: 601-576-6955
E-mail: kppool@mdah.slate.ms.us
Missouri
Mr. Doyle Childers, SHPO
State Department of Natural
Resources
Phone: 573-751-4732
Fax: 573-751-7627
Deputy: Mr. Mark A. Miles, Director
State Historic Preservation Office
P O. Box 176
Jefferson City, MO 65102
Phone: 573-751-7858
Fax: 573-526-2852
E-mail: mark.miles@dnr.mo.gov
Montana
Dr. Mark F. Baumler, SHPO
Slate Historic Preservation Office
1410 8th Avenue
P.O. Box 201202
Helena, MT 59620-1202
Phone: 406-444-7719
Fax: 406-444-6575
E-mail: mbaumler@mt.gov
Deputy: Dr. Stan Wilmoth, State
Archaeologist
E-mail: swilmoth@mt.gov
Deputy: Ms. Kathym Hampton,
National Register Coordinator
E-mail: kahampton@mt.gov
Deputy. Mr. Josef Warhank,
Compliance Officer
E-mail: jwarhank@mt.gov
Deputy: Peter Brown, Historic
Architecture Specialist
E-mail: pebrown@mt.gov
Deputy: Rolene Schliesman,
Architectural Historian
E-mail, rschliesman@mt.gov
Nebraska
Mr. Michael Smith, Director and
SHPO
Nebraska Stale Historical Society
P.O. Box 82554
1500 R Street
Lincoln, NE 68501
Phone: 402-471-4745
Fax. 402-471-3100
E-mail: msmith@nebraskahistory.org
Deputy: Mr L. Robert Puschendorf
Phone: 402-471-4769
Fax. 402-471-3316
E-mail:
bpuschendorf@nebraskahistory.org
Nevada
Mr. Ronald James, SHPO
Historic Preservation Office
100 North Stewart Street
Capitol Complex
Carson City, NV 89701-4285
Phone: 775-684-3440
Fax. 775-684-3442
E-mail: rjames@nevadaculture.org
Deputy: Ms. Alice Baldrica
Phone: 775-684-3444
-------
E-mail:
abaldrica@nevadaculture.org
New Hampshire
Ms. Elizabeth Muzzey, SHPO &
Director
New Hampshire Division of
Historical Resources
19 Pillsbury Street
2nd Floor
Concord, NH 03301-3570
Phone' 603-271-8850
Fax: 603-271-3433
TDD: 800-735-2964
E-mail.
elizabeth.muzzey@dcr.nh.gov
Deputy: Ms Linda Ray Wilson
Phone' 603-271 -6434 or 603-271 -
3558
E-mail: Linda.Wilson@dcr nh.gov
New Jersey
Ms. Lisa P. Jackson, SHPO
Department of Environmental
Protection
401 East State Street
P.O. Box 402
Trenton, NJ 08625
Phone: 609-292-2885
Fax: 609-292-7695
Deputy. Ms. Amy Cradic
Phone: 609-292-3541
Fax: 609-984-0836
New Mexico
Ms [Catherine (Kak) Slick, SHPO
Historic Preservation Division
Bataan Memorial Building
407 Galisteo Street
Suite 236
Santa Fe, NM 87501
Phone: 505-827-6320
Fax: 505-827-6338
E-mail: katherine.shck@stale.nm.us
Deputy: Ms. Jan Biella
E-mail: jan.biella@state.nm.us
New York
Ms. Carol Ash, SHPO
Parks, Recreation & Historic
Preservation
Agency Building #1
Empire State Plaza
Albany, NY 12238
Phone1 518-474-0443
Deputy: Ms. Ruth L Pierpont,
Director
Field Services Bureau
NY Slate Parks, Recreation & Historic
Preservation
Peebles Island P O. 189
Waterford, NY 12188-0189
Phone: 518-237-8643 (x3269)
Fax. 518-233-9049
E-mail:
rulh.pierpont@oprhp state.ny.us
North Carolina
Dr. Jeffrey J. Crow SHPO
Division of Archives & History
4610 Mail Service Center
Raleigh, NC 27699-4610
Phone: 919-807-7280
Fax. 919-733-8807
E-mail: jeff crow@ncmail.net
Deputy: Mr. Peter Sandbeck
Division of Archives & History
4617 Mail Service Center
Raleigh, NC 27699-4617
Phone- 919-733 4763
Fax. 919-733-8653
E-mail, peter.sandbeck@ncmail.net
North Dakota
Mr Merlan E. Paaverud, Jr., SHPO
State Historical Society of North
Dakota
612 East Boulevard Avenue
Bismarck, ND 58505
Phone 701-328-2666
Fax: 701-328-3710
E-mai 1 mpaaverud@nd.gov
Deputy: Ms. Fern E. Swenson
Phone. 701-328-2672
E-mail: fswenson@nd.gov
Northern Mariana Islands,
Commonwealth of the
Epiphanio E Cabrera, Jr., HPO
Department of Community & Cultural
Affairs
Division of Historic Preservation,
Airport Road
Saipan, MP 96950
Phone: 670-664-2120/2125
Fax: 670-664-2139
E-mail: epicabrera@cnmihpo.com
E-mail: cnmihpo@vzpacifica.net
Ohio
Dr. William Laidlaw, Jr. SHPO
Ohio Historic Preservation Office
Ohio Historical Society
567 East Hudson Street
Columbus, OH 4321 1-1030
Phone: 614-298-2000
Fax: 614-298-2037
E-mail, blaidlaw@ohiohistory.org
Deputy: Mr. Franco Ruffini
E-mail: fruffini@ohiohistory.org
Oklahoma
Dr. Bob L. Blackburn, SHPO
State Historic Preservation Office
Oklahoma Historical Society
Oklahoma History Center
2401 North Laird Avenue
Oklahoma City, OK 73105-7914
Phone: 405-521-6249
Fax: 405-522-0816
Deputy: Ms. Melvena Thurman
Heisch
E-mail: mheisch@okhistory.org
Oregon
Mr. Tim Wood, SHPO
Oregon Parks & Recreation
Department
725 Slimmer Street NE
Suite C
Salem, OR 97301
Deputy. Mr. Roger Roper
Phone: 503-986-0677
Fax: 503-986-0793
E-mail: roger.roper@state.or.us
Palau, Republic of
Ms. Victoria N. Kanai, HPO
Ministry of Community & Cultural
Affairs
P.O Box 100
Koror. PW 96940
Phone: 01 1-680-488-2489
Fax. 01 1-680-488-2657
Pennsylvania
Ms. Barbara Franco, SHPO
Pennsylvania Historical and Museum
Commission
300 North Street
Harrisburg, PA 17120
Phone- 717-787-2891
Deputy: Ms. Jean Cutler
Bureau for Historic Preservation
Commonwealth Keystone Building
2nd Floor
400 North Street
Harrisburg, PA 17120-0093
Phone- 717-705-4035
Fax: 717-772-0920
E-mail jecutler@state.pa.us
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Puerto Rico, Commonwealth of
Mr. Jose Luis Vega, Executive
Director
State Historic Preservation Office
P.O. Box 9066581
San Juan, PR 00906-6581
Phone: 787-721-3737
Fax: 787-721-3773
Rhode Island
Mr. Frederick C. Williamson, SHPO
Rhode Island Historic Preservation
& Heritage Commission
Old State House
150 Benefit Street
Providence, Rl 02903
Phone: 401-222-2678
Fax:401-222-2968
Deputy: Mr. Edward F. Sanderson
Phone: 401-222-4130
Fax:401-222-2968
E-mail'
esanderson@preservation.ri.gov
South Carolina
Dr. Rodger E. Stroup, SHPO
Department of Archives & History
8301 Parklane Road
Columbia, SC 29223-4905
Phone: 803-896-6100
Fax: 803-896-6167
Deputy: Ms. Elizabeth Johnson
Phone. 803-896-6168
E-mail:
emjohnson@scdah.state.sc.us
South Dakota
Mr. Jay D. Vogt, SHPO
Slate Historic Preservation Office
Cultural Heritage Center
900 Governors Drive
Pierre, SD 57501
Phone: 605-773-3458
Fax: 605-773-6041
E-mail: jay.vogt@state.sd.us
Historic Preservation Director: Mr.
Jason Haug
Phone: 605-773-6296
Fax: 605-773-6041
E-mail: jason.haug@state.sd.us
Tennessee
Mr. Patrick Mclntyre, Jr., Executive
Director, SHPO
Tennessee Historical Commission
2941 Lebanon Road
Nashville, TN 37243-0442
Phone: 615-532-1550
Fax: 615-532-1549
E-mail: patrick.mcintyre@state.tn.us
Deputy: Mr. Richard Tune
E-mail. richard.tune@state tn.us
Texas
Mr. F. Lawerence Oaks, SHPO
Texas Historical Commission
P.O. Box 12276
Austin, TX 78711-2276
Phone: 512-463-6100
Fax: 512-463-8222
E-mail' l.oaks@thc.state.tx.us
Chief Deputy Executive Direcor: Mr.
Mark S. Wolfe
Phone: 512-463-6383 ph
Fax: 512-463-8222 fax
E-mail. mark.wolfe@thc.state.tx.us
Deputy: Dr. Terry Colley
Phone: 512-463-6100
Fax: 512-463-8222
E-mail: terry.colley@thc.state.tx.us
Deputy. Mr. Stanley O. Graves,
Director, Architecture Division
Phone 512-463-6094
Fax- 512-463-6095
E-mail: stan.graves@thc.state.tx.us
Deputy: Dr. James E. Bruseth,
Director, Antiquities Protection
Phone. 512-463-6096
Fax- 512-463-8927
E-mail: jim.bruseth@thc.state, tx. us
Utah
Mr. Wilson Martin, SHPO
Utah State History
300 Rio Grande
Salt Lake City, UT 84101
Phone: 801-533-3500
Fax: 801-533-3503
E-mail1 wmartin@utah.gov
Deputy: Ms. Barbara Murphy,
Historic Preservation
Phone: 801-533-3563
E-mail: bmurphy@utah.gov
Vermont
Ms. Jane Lendway, SHPO
Vermont Division for Historic
Preservation
National Life Building, Drawer 20
Montpelier, VT 05620-0501
Phone: 802-828-3211
E-mail' jane.lendway@state.vt.us
Deputy. Mr. Eric Gilbertson
Phone: 802-828-3043
Fax: 802-828-3206
E-mail: ergilbertson@state.vt.us
Virgin Islands
Mr. Robert Mathes., SHPO
Department of Planning & Natural
Resources
Cyril E. King Airport
Terminal Building - 2nd Floor
St. Thomas, VI 00802
Deputy: Ms. Lorna Thomas, Director
Stale Historic Preservation Office
17 Kongens Gade
Charlotte Amalie
St. Thomas, VI 00802
Phone: 340-776-8605
Fax: 340-776-7236
E-mail: Loma_Thomas@vishpo.com
Virginia
Ms. Kathleen Kilpatrick, SHPO
Department of Historic Resources
2801 Kensington Avenue
Richmond, VA 23221
Phone: 804-367-2323
Fax. 804-367-2391
E-mail:
Kathleen.Kilpatrick@dhr.virginia.gov
Washington
Dr. Allyson Brooks, SHPO
Office of Archeology & Historic
Preservation
P.O. Box 48343
Olympia, WA 98504-8343
Phone: 360-586-3065
1063 South Capitol Way
Suite 106
Olympia, WA 98501
Phone: 360-586-3064
Fax: 360-586-3067
E-mail: allyson.brooks@dahp.wa.gov
Deputy. Mr. Greg Griffith
E-mail: greg.griffith@dahp.wa.gov
West Virginia
Mr. Randall Reid-Smith, SHPO
West Virginia Division of Culture &
History
Historic Preservation Office
1900 Kanawha Boulevard East
Charleston, WV 25305-0300
Phone: 304-558-0220
Fax: 304-558-2779
Deputy: Ms. Susan Pierce
E-mail: susan.pierce@wvculture.org
-------
Wisconsin
Dr. Michael E. Stevens, SHPO
Wisconsin Historical Society
816 State Street
Madison WI 53706
Phone 608-264-6464
Fax: 608-264-6504
E-mail.
michael stevens@wisconsinhistory.o
fg
Deputy: Mr Jim Draeger
Phone. 608-264-6511
Email.
jim.draeger@wisconsinhistory.org
Wyoming
Ms. Mary Hopkins, Interim SHPO
Wyoming Slate Historic
Preservation Office
2301 Central Avenue
3rd Floor
Cheyenne, WY 82002
Phone. 307-777-7697
Fax: 307-777-6421
E-mail:hopkins@uwyo.edu
Updated October 16, 2008
-------
ATTACHMENT 2
LIST OF THPOs BY STATE
-------
Tribal Historic Preservation
Officers
Alabama
Poarch Band of Creek Indians
Robert Thrower, THPO
5811 Jack Springs Road
Atmore, AL 36502-5025
Tel: 251.368.9136 x2281
Fax: 251.368.0835
Email: roberlthrower@hotmail.com
Alaska
There are currently no THPOs.
Arizona
Hualapai Tribe
Loretta Jackson-Kelly, THPO
Department of Cultural Resources
PO Box 310
Peach Springs, AZ 86434
Tel: 928.769.2223
Fax: 928.769.2235
Email: lorjac@frontiernet.net
The Navajo Nation
Dr. Alan S. Downer, THPO and
Department Manager, Historic
Preservation
PO Box 4950
Window Rock, AZ 86515
Tel: 928.871.7136
Fax: 928.871.7886
Email' alan.downer06@gmail.com
San Carlos Apache Tribe
Vernelda Grant, THPO
Historic Preservation and Arch
Department
PO Box 0
San Carlos, AZ 85550
Tel: 928.475.5797
Fax: 928.475.2423
Email: apachevern@yahoo.com
While Mountain Apache Tribe
Mark Altaha, THPO
Heritage Program Historic
Preservation Office
PO Box 507
Fort Apache, AZ 85926
Tel. 928.338.3033
Fax: 928.338.6055
Email : maltaha@wmat.nsn us
Website: www.wmat.nsn.us
Arkansas
There are currently no THPOs.
California
Agua Caliente Band of Cahuilla Indians
Patricia Tuck, Interim THPO
5401 Dinah Shore Drive
Palm Springs, CA 92264
Tel. 760.699.6800, x6907
Fax. 760.699.6924
Toll Free: 800-790-3398
Email: ptuck@aguacaliente-nsn.gov
Website: www.aguacaliente-nsn.gov
Bear River Band of the Rohnerville
Rancheria
Nick Angeloff, THPO
27 Bear River Road
Loleta, CA 95551
Tel: 707.733.1900
Fax: 707.764.5883
Email: thpo@bearrivertribe.com
Big Pine Paiute Tribe of the Owens
Valley
Bill Helmer, THPO
PO Box 700
Big Pine, CA 93513
Tel: 760.938.2003
Fax: 760.938.2942
Email: amargosa@aol.com
Bishop Paiute Tribe
Theresa A. Stone-Yanez, THPO
50 Tu Su Lane
Bishop, CA 93514
Tel- 760.873.3584
Fax: 760.873.4143
Email: theresa.yanez@bishoppaiute.com
Blue Lake Rancheria Tribe of Indians
Paul Angell, THPO
PO Box 428
Blue Lake, CA 95525-0428
Tel: 707.668.5101
Fax: 707.668.4272
Elk Valley Rancheria, California
Shannon Tushingham, THPO
2332 Howland Hill Road
Crescent City, CA 95531
Tel: 707 464.4680
Fax: 707.638.0380
Email: stushingham@clk-valley.com
Website: www.elk-valley.com
Pinoleville Pomo Nation
Angela James, THPO
500B Pinoleville Drive
Ukiah, CA 95482
Tel: 707.463.1454
Fax: 707.463.6601
Email: angelajames2276@sbcglobal.net
Smith River Rancheria
Ms. Suntayea Steinruck, THPO
140 Rowdy Creek Road
Smith River, CA 95567-9525
Tel: 707.487.9255 ext.3180
Fax: 707.487.0930
Email: sunsteinruck@tolowa-nsn.com
Website: www.tolowa-nsn.com
Stewart's Point Rancheria Kashia Band
of Pomo Indians
Mr. Reno Franklin, THPO
3535 Industrial Drive, Suite B-2
Santa Rosa, CA 95403
Tel: 707.591.0580 ext. 105
Fax: 707.591.0583
Email:
reno@stewartspointrancheria.com
Timbisha Shoshone Tribe
Barbara Durham, THPO
PO Box 358
Death Valley, CA 92328-0206
Tel: 760.786.2374
Fax. 760.786.2376
Email: dvdurbarbara@netscape.net
Wiyot Tribe
Helene Rouvier, THPO
1000 Wiyot Drive
Loleta, CA 95551
Tel: 707 733 5055
Fax: 707.733.5601
Email: cultural@wiyot.us
Website: www.wiyot.us
Yurok Tribe
Ralph Simon, THPO
Yurok Tribe Culture Department
PO Box 1027
Klamath, CA 95548
Tel. 707.482.1350 x305
Fax: 707.482.1722
Email: rsimon@yuroktribe.nsn.us
Colorado
There are currently no THPOs.
Connecticut
There are currently no THPOs.
Delaware
There are currently no THPOs.
Florida
Seminole Tribe of Florida
Willard S. Steele, THPO
Ah-Tah-Thi-Ki Museum
HC-61, Box 21-A
Clewiston, FL 33440
Tel: 863.983.6549
Fax: 863.902.1117
-------
Email, vvsleele@semtribe.com
Website' vvvvw.stofthpo.com
Georgia
There are currently no THPOs.
Hawaii
There are currently no THPOs.
Idaho
Coeur D'Alene Tribe
Jill Maria Wagner. Ph.D., THPO
PO Box 408
Plummer, ID 83851
Tel. 208.686.1572
Fax: 208.686.1901
Email: jwagner@cdatribe-nsn.gov
Nez Perce Tribe
Josiah Pinkham. Interim THPO
PO Box 365
Lapwai, ID 83540-0365
Tel: 208 843.7400
Fax. 208.843 7419
Illinois
There are currently no THPOs.
Indiana
There are currently no THPOs.
Iowa
There are currently no THPOs
Kansas
There are currently no THPOs
Kentucky
There are currently no THPOs.
Louisiana
Tunica-Biloxi Tribe of Louisiana
Earl J. Barbry, Jr., THPO
Tunica-Biloxi Tribal Historic
Preservation Office
PO Box 1589
Marksville. LA 71351
Tel: 318.253.8174 x 6451
Fax. 318.253.7711
Email earlii@tunica.org
Website: http://vvvvvv.tunica.org
Maine
Passamaquoddy Tribe
Donald Soctomah, THPO
PO Box 159
Princeton, ME 04668
Tel: 207.796.2301
Fax: 207.853.6039
Email, soctomah@ainop.com
Website: www vvabanaki.com
Penobscot Nation
Bonnie Nevvsom. THPO
Cultural and Historic Preservation
Program
12 Wabanaki Way
Indian Island, ME 04468
Tel: 207.817.7332
Fax: 207.817.7463
Email: bnewsom@penobscotnation.org
Website: www.wabanaki.com
Maryland
There are currently no THPOs.
Massachusetts
Wampanoag Tribe of Gay Head-
Aquinnah
Bettina Washington, THPO
20 Black Brook Road
Aquinnah, MA 02535-9701
Tel: 508.645.9265 x 112
Fax: 508.645.3790
Email: bettina@vvampanoagtribe.net
Website: vvvvw.wampanoagtribe.net
Michigan
Keweenaw Bay Indian Community
Summer Sky Cohen, THPO
16429 Bear Town Road
Baraga, Ml 49908
Tel: 906.353.6272
Fax: 906 353.7540
Websile. www ojibvva.com
Lac Vieu.x Desert Band of Lake Superior
Chippewa Indians
Ms. giivvegiizhieookway Martin. THPO
PO Box 249
Watersmect. Ml 49969
Tel 906.358.0137
Fax- 906 358 4850
Email, gmartin@lvdtribal.com
Website: http://vvvvvv.Ivdthpo.museum
Pokagon Band oj Potawatomi Indians
Mark Parrish, THPO
PO Box 180
Dowagiac, Ml 49047
Tel: 269.782.9602
Fax: 269.783.0452
Email: mark.parrish@pokagon.com
Minnesota
Bo is Forte Band of Cluppewa Indians
Rosemary Berens, THPO
1500 Bois Forte Road
Tower. MN 55790
Tel: 218.753.6017
Fax: 218.753.6026
Email, rozeberens@yahoo.com
Leech Lake Band ofOjibwe
Gina Lemon, THPO
Leech Lake Historic Preservation Office
115 6th Street, NW
Suite E
Cass Lake. MN 56633
Tel: 218.335.2940
Fax: 218.335.2974
Emails: glemon@live.com
Website: vvvvw.lldrm.org
Lower Sioux Indian Community
Pamela Halverson. THPO
PO Box 3078, Res. Hwy I
Mortin, MN 56270
Tel: 507.697.6185
Fax: 507 637 4380
Email: pamelahalverson@hotmail.com
Mille Lacs Band of Ojibwe Indians
Natalie Weyaus, THPO
43409 Oodena Drive
HCR67, Box 194
Onamia, MN 56359
Tel: 320.532.4181
Fax: 320.532.7514
Email: nataliew@millelacsojibwe.nsn.us
White Earth Band of Minnesota
Chippewa
Tom McCauley, THPO
PO Box 418
White Earth, MN 56591
Tel 218 983 3263
Fax: 218.983.3253
Email, tomm@whiteearth.com
Website: www vvhiteearth.com
Mississippi
There are currently no THPOs.
Missouri
There are currently no TFIPOs.
Montana
The Blackfeet Nation
John Murray, THPO
Quarter 108, E. Gov. Square
Box 2809
Browning, MT 59417
Tel: 406.338.7181
Fax: 406.338.7206
Email:
john.murray@blackfeetplanning.org
Chippewa Cree Tribe oj the Rocky Boy's
Reservation
Alvin Windy Boy, THPO
R R 1 #544
Box Elder. MT 59521
Tel: 406.395.4147
-------
Fax. 406.395.4195
Email: awindyboy@earthlink.net
Confederated Salish and Kootenai
Tr ibes of the Flathead Reservation
Marcia Pablo, THPO
Tribal Preservation Department
PO Box 278
Pablo, MT 59855
Tel- 406.675.2700 x 1075
Fax: 406.675.2629
Email: marciap@cskt.org
The Crow Tribe of Indians
Dale Old Horn, THPO
PO Box 159
Crow Agency, Montana 59022
Tel: 406.638.3126
Fax: 406.638.3169
Northern Cheyenne Tribe
Conrad Fisher, THPO
PO Box 128
Lame Deer, MT 59043
Tel: 406.477.6035
Fax: 406.477.6210
Email:
conrad.fisher@cheyennenation com
Website, www.cheyennenation.com
Nebraska
There are currently no THPOs.
Nevada
Washoe Tribe of Nevada & California
Darrel Cruz, CRO/THPO Director
919 US Hwy 395 South
Gardnerville, NV 89410
Tel: 775.265.8692
Fax: 775.265.6240
Email: darrel.cruz@washoetribe.us
Website: www.washoetribe.us
New Hampshire
There are currently no THPOs.
New Jersey
There are currently no THPOs.
New Mexico
Mescalero Apache Tribe
Holly Houghlen, THPO
PO Box 227
Mescalero, NM 88340
Tel: 575.464.4711
Fax: 575.464.4637
Email: holly@mescaleroapache.org
Pueblo of Pojoaque
Vernon Lujan, THPO
c/o Poeh Cultural Center, Inc.
78 Cities of Gold Road
Santa Fe, NM 87506
Tel: 505 455.1110
Fax: 505.455 3684
Email: vlujan@poehcenter.com
Website: www.poehcenter.com
Pueblo ofTesuque
Mark Mitchell, THPO
Route 42, Box 360-T
Santa Fe, NM 87506
Tel: 505.955.7745
Fax: 505 983.2331
Email: mmitchell@pueblooftesuque.org
Zum Pueblo
Kurt Dongoske, Acting Director
Zum Heritage & Historic Preservation
PO Box I 149
Zuni Pueblo, NM 87327
Tel: 505.782.4814
Fax: 505.782.2393
Email: kdongoske@cableone.net
New York
The Saint Regis Mohawk Tribe
Arnold L. Printup, THPO
412 State Route 37
Akwesasne, NY 13655
Tel: 518.358.2272 ext 164
Fax: 518.358.3203
Email: arnold.printup@srmt-nsn.gov
Seneca Nation of Indians
Kathleen Mitchell, THPO
Seneca Nation Tribal Historic
Preservation
467 Center Street
Salamanca, NY 14779
Tel: 716 945.9427
Fax: 716.945 0351
Email: snithpo@sni.org
North Carolina
Eastern Band of Cherokee Indians
Russell Townsend, THPO
Qualla Boundary Reservation
PO Box 455
Cherokee, NC 28719
Tel. 828.497.1594
Fax. 828.497.1590
Email, russtown@nc-cherokee.com
North Dakota
Mandan, Hidatsa and Arikara Nation
Perry Brady, THPO
404 Frontage Road
New Town ND 58763
Tel: 701.627.4781
Fax. 701.627.3805
Standing Rock Sioux Tribe
Tim Mentz, Sr., THPO
PO Box D
Fort Yates, ND 58538
Tel: 701.854.2120
Fax. 701.854.2138
Email: mentz_tim@yahoo.com
Turtle Mountain Band of Chippewa
Brady Grant, THPO
PO Box 900
Belcourt, ND 58316
Tel: 701.477.2604
Fax: 701.477.3593
Ohio
There are currently no THPOs.
Oklahoma
Absentee Shawnee Tribe of Oklahoma
Karen Kaniatobe, THPO
2025 S Gordon Cooper
Shawnee OK74801
Tel. 405.275.4030 x199
Fax: 405.878.4711
Email, kkaniatobe@astribe.com
Website: http://www.astribe.com
Caddo Nation
Robert Cast, THPO
PO Box 487
Binger, OK 73009
Tel: 405.656.2901
Fax 405.656.2892
Email: rcast@caddonation.gov
Website: www.caddonation-nsn.gov
Choctaw Nation of Oklahoma
Terry Cole, THPO
PO Box 1210
Durant, OK 74702-1210
Tel: 580.924.8280
Fax: 580.920.3181
Email, tcole@choctawnation.com
Website, www.choctawnation.com
Citizen Potawatomi Nation
Jeremy Finch, THPO
1601 S. Gordon Cooper Drive
Shawnee, OK 74801
Tel: 405.275 3121
Fax: 405.275 0198
Oregon
Confederated Tribes of the Umatilla
Indian Reservation
Carey Miller, THPO
Cultural Resources Protection Program
PO Box 638
Pendleton, OR 97801
Tel. 541.276.3629
-------
Fax. 541.276.1966
Email' careymiller@ctuir com
Website1 www.umatilla.nsn.us
Confederated Tribes of the Warm
Springs Reservation of Oregon
Robert Brunoe, THPO
Sally Bird. Cultural Resources
Manager
PO Box CWarm Springs, OR 97761
Tel. 541.553.2002
Fax: 541.553.3584
Email. rbrunoe@wstribes org,
sbird@wstribes org
Pennsylvania
There are currently no THPOs.
Rhode Island
Narragansett Indian Tribe
John Brown. THPO
PO Box 700
Wyoming, R1 02898
Tel. 401.491.9459
Fax: 401.491.9458
Cell. 401.742.5048
Email: brwnjbbl23@aol com
South Carolina
Catawba Indian Nation
Wenonah G. Haire, THPO and
Director. Catawba Cultural
Preservation Project
Sandra Reinhardt. THPO
Archaeologist
1536 Tom Steven Road
Rock Hill. SC 29730
Tel: 803.328.2427
Fax 803.328.5791
Email: wenonahh@ccppcrafts.com.
sandrar@ccppcrafts.com
Website1 httpV/www.ccppcrafts com
South Dakota
Cheyenne River Sioux Tribe
Albert M. LeBcau, III, THPO
CRST Preservation Office
PO Box 590
Eagle Butte, SD 57625
Tel: 605.964.7554
Fax: 605.964 7552
Rosebud Sioux Tribe of Indians
Russell Eagle Bear, THPO
PO Box 809
Rosebud, SD 57570
Tel: 605.747.4255
Fax 605.747.4211
Email1 rstthpo@yahoo com
Sisseton- Wahpeton Ovate
Dianne Desrosiers, THPO
PO Box 907
Agency Village, SD 57262
Tel: 605.698.4972
Fax: 605.698.7054
Email: dyandancer@yahoo com
Tennessee
There are currently no THPOs.
Texas
There are currently no THPOs
Utah
There are currently no THPOs
Vermont
There are currently no THPOs.
Virginia
There are currently no THPOs
Washington
Confederated Tribes and Bands of the
Yakama Nation
V. Kate Valdez
Tribal Historic Preservation Officer
PO Box 151
Toppenish WA 98948
Tel: 509.865.5121 ext 6230
Fax: 509.865.9032
Email: kate@yakama com
Confederated Tribes of the Colville
Reservation
Camille Pleasants. THPO.
History/Archaeology
PO Box 150
Nespelem, WA 99155
Tel: 509.634.2654
Fax: 509.634.2694
Email:
camille pleasants@colvilletribes.com
Website, http.//www.colvilletribes.com
Luninu Nation
Lena Tso, THPO
2616 Kwina Drive
Bellingham, WA 98226
Tel: 360.384.2298
Fax: 360.384.0803
Email: lenat@lummi-nsn.gov
Website, www.lumnn-nsn.gov
Makah Tribe
Janine Bovvechop, THPO and Director,
Makah Cultural and Research Center
PO Box 160
Neah Bay, WA 98357
Tel: 360.645.2711
Fax: 360.645.2656
Email: mcrcjanine@centurytel.net
Website: http://www.makah.coin
Skokomish Indian Tribe
Ms. Kris Miller, THPO
N. 80 Tribal Center Road
Shelton, WA 98584
Tel: 360.426.4232 x215
Fax: 360.877 5943
Email: shlanayl@skokomish.org
Website: www skokonnsh.org
Spokane Tr ibe of Indians
Randy Abrahamson, THPO
Cultural Program Division
PO Box 100
Wellpinit, WA 99040
Tel. 509.258 4315
Fax. 509.258 6965
Email: randya@spokanetribe.com
Squaxin Island Tribe
Rhonda Foster, THPO
SE 70 Squaxin Lane
Shelton. WA 98584
Tel: 360.426 9781 x 3504
Fax: 360.426.6577
Email: rfoster@hctc.com
Suquamish Tribe
Dennis E. Lewarch, THPO
PO Box 498
Suquamish. WA 98392
Tel 360.394.8529
Fax1 360.598.4666
Email dlcwarch@Suquamish.nsn.us
West Virginia
There are currently no THPOs.
Wisconsin
Bad River Band of Lake Superior
Chippewa Indians
Edith Leoso. THPO
PO Box 39
Odanah, Wl 54861
Tel: 715.682.7123 xl662
Fax: 715.682.7118
Email: thpo@badriver.com
The Ho-Chunk Nation
William Quackenbush, THPO
PO Box 677
Black River Falls, WI 54615
Tel: 715.284.7181
Fax: 715.284.7449
Email, bill quackenbush@ho-chunk.coi
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Lac Courte Oreilles Band of Lake
Superior Chippewa Indians of
Wisconsin
Jerry Smith, THPO
13394 W. Trepania Road
Hayward, WI 54843
Tel: 715.634.8934
Fax: 715.634.4797
Wyoming
Northern Arapaho Tribe
Jo Ann White, THPO
PO Box 1182
Fort Washakie, WY 82514
Tel: 307.332.6120
Fax: 307.332.7543
Email: whiteJol23@yahoo.com
Lac du Flambeau Band of Lake
Superior Chippewa Indians As of October 16, 2008
Kelly S. Jackson, THPO
Lac du Flambeau Historic Preservation
Office
PO Box 67
Lac du Flambeau, WI 54538
Tel: 715.588.2139
Fax. 715.588.2419
Email' ldfthpo@nnex.net
Menominee Indian Tribe of Wisconsin
David Grignon, THPO
W3426 Cty VV West
PO Box 910
Keshena, WI 54135-0910
Tel: 715.799 5258
Fax: 715.799.5295
Email, dgrignon@mitw.org
Oneida Nation of Wisconsin
Conna Burke, THPO
PO Box 365
Oneida, WI 54155
Tel: 920.496.5386
Fax: 920.494.4362
Email: cburke@oneidanation.org
Website, www.oneidanation.org
Red Cliff Band of Lake Superior
Chippewa
Larry Balber, THPO
88385 Pike Road, Highway 13
Bayfield, WI 54814
Tel: 715.779.3648
Fax: 715.779 3760
Email: lbalber@redcliff-nsn.gov
Stockbridge-Munsee Community Band
of Mohican Indians
Sherry White, THPO
W13447 Camp 14 Road
PO Box 70
Bowler, WI 54416
Tel: 715.793.3970
Fax: 715.793.4437
Email: sherry.white@mohican-
nsn.gov
-------
ATTACHMENT 3
36 CFR PART 800
-------
1
36 CFR PART 800 -- PROTECTION OF
HISTORIC PROPERTIES (incorporating
amendments effective August 5. 2004)
Subpart A - Purposes and Participants
Sec
800 1 Purposes
800.2 Participants in the Section 106
process
Subpart B — The Section 106 Process
800 3 Initiation of the section 106
process.
800.4 Identification of historic
properties
800.5 Assessment of adverse effects.
800 6 Resolution of adverse effects.
800.7 Failure to resolve adverse effects.
800 8 Coordination with the National
Environmental Policy act.
800.9 Council review of Section 106
compliance.
800.10 Special requirements for
protecting National Historic
Landmarks.
800 11 Documentation standards.
800 12 Emergency situations.
800.13 Post-review discoveries
Subpart C -- Program Alternatives
800 14 Federal agency program
alternatives.
800.15 Tribal, State and Local Program
Alternatives. (Reserved)
800.16 Definitions
Appendix A - Criteria for Council
involvement in reviewing individual
section 106 cases
Authority: 16 U.S C. 470s.
Subpart A-Purposes and Participants
§ 800.1 Purposes.
(a) Purposes of Ihc section 106
process Section 106 of the National
Historic Preservation Act requires
Federal agencies to lake into account the
effects of their undertakings on historic
properties and afford the Council a
reasonable opportunity to comment on
such undertakings The procedures in
this part define how Federal agencies
meet these statutory responsibilities.
The section 10G process seeks to
accommodate historic preservation
concerns with the needs of Federal
undertakings through consultation
among the agency official and other
parlies with an interest in the effects of
the undertaking on historic properties,
commencing at the early stages of
project planning The goal of
consultation is to identify historic
properties potentially affected by the
undertaking, assess its effects and seek
ways to avoid, minimize or mitigate any
adverse effects on historic properties.
(b) Relation to other provisions of the
act Section 106 is related to other
provisions of the act designed to further
the national policy of historic
preservation. References to those
provisions are included in this part to
identify circumstances where they may
affect actions taken to meet section 106
requirements Such provisions may
have their own implementing
regulations or guidelines and are not
intended to be implemented by the
procedures in this part except insofar as
they relate to the section 106 process.
Guidelines, policies and procedures
issued by other agencies, including the
Secretary, have been cited in this part
for ease of access and are not
incorporated by reference.
(c) Timing. The agency official must
complete the section 106 process "prior
to the approval of the expenditure of
any Federal funds on the undertaking or
prior to the issuance of any license."
This does not prohibit agency official
from conducting or authorizing
nondestructive project planning
activities before completing compliance
with section 106, provided that such
actions do not restrict the subsequent
consideration of alternatives to avoid,
minimize or mitigate the undertaking's
adverse effects on historic properties.
The agency official shall ensure thai the
section 106 process is initiated early in
the undertaking's planning, so that a
broad range of alternatives may be
considered during the planning process
for the undertaking
§ 800.2 Participants in the Section 106
process.
(a) Agency official. It is the statutory
obligation of the Federal agency to fulfill
the requirements of section 106 and to
ensure that an agency official with
jurisdiction over an undertaking takes
legal and financial responsibility for
section 106 compliance in accordance
with subpart B of this part. The agency
official has approval authority for the
undertaking and can commit the Federal
agency to take appropriate action for a
specific undertaking as a result of
section 106 compliance. For the
purposes of subpart C of this part, the
agency official has the authority to
commit the Federal agency to any
obligation it may assume in the
implementation of a program
alternative. The agency official may be
a State, local, or tribal government
official who has been delegated legal
responsibility for compliance with
section 106 in accordance with Federal
law
(1) Professional standards Section
112(a)(1)(A) of the act requires each
Federal agency responsible for the
protection of historic resources,
including archeological resources, to
ensure that all actions taken by
employees or contractors of the agency
shall meet professional standards under
regulations developed by the Secretary.
(2) Lead Federal agency If more
than one Federal agency is involved in
an undertaking, some or all the agencies
may designate a lead Federal agency,
which shall identify the appropriate
official to serve as the agency official
who shall act on their behalf, fulfilling
their collective responsibilities under
section 106. Those Federal agencies
that do not designate a lead Federal
agency remain individually responsible
for their compliance with this pari.
(3) Use of contractors. Consistent
with applicable conflict of interest laws,
the agency official may use the services
of applicants, consultants, or designees
to prepare information, analyses and
recommendations under this part. The
agency official remains legally
responsible for all required findings and
determinations. If a document or study
is prepared by a non-Federal party, the
agency official is responsible for
ensuring that its content meets
applicable standards and guidelines.
(4) Consultation. The agency official
shall involve the consulting parties
described in paragraph (c) of this
section in findings and determinations
made during the section 106 process.
The agency official should plan
consultations appropriate to the scale of
the undertaking and the scope of
Federal involvement and coordinated
with other requirements of other
statutes, as applicable, such as the
National Environmental Policy Act, the
Native American Graves Protection and
Repatriation Act, the American Indian
Religious Freedom Act, the
Archeological Resources Protection Act
and agency-specific legislation. The
Council encourages the agency official
to use to the extent possible existing
agency procedures and mechanisms to
fulfill the consultation requirements of
this part
(b) Council The Council issues
regulations to implement section 106,
-------
9
provides guidance and advice on the
application of the procedures in this
part, and generally oversees the
operation of the section 106 process
The Council also consults with and
comments to agency officials on
individual undertakings and programs
that affect historic properties
(1) Council cnlr\' into the section 106
process When the Council determines
that its involvement is necessary to
ensure that the purposes of section 106
and the act are met. the Council may
enter the section 106 process Criteria
guiding Council decisions to enter the
section 106 process are found in
appendix A to this part The Council
will document that the criteria have
been met and notify the parlies to the
section 106 process as required by this
part
(2) Council assistance Participants
in the section 106 process may seek
advice, guidance and assistance from
the Council on the application of this
part to specific undertakings, including
the resolution of disagreements,
whether or not the Council is formally
involved in the review of the
undertaking. If questions arise
regarding the conduct of the section 106
process, participants are encouraged to
obtain the Council's advice on
completing the process.
(c) Consulting parties. The following
parties have consultative roles in the
section 106 process
(1) State historic presnrvntion officer.
(1) The Slate historic preservation
officer (SHPO) reflects the interests of
the State and its citizens in the
preservation of their cultural heritage
In accordance with section 101(b)(3) of
the act. the SHPO advises and assists
Federal agencies in carrying out their
section 106 responsibilities and
cooperates with such agencies, local
governments and organizations and
individuals to ensure that historic
properties are taking into consideration
at all levels of planning and
development.
(ii) If an Indian tribe has assumed
the functions of the SHPO in the section
106 process for undertakings on tribal
lands, the SHPO shall participate as a
consulting party if the undertaking takes
place on tribal lands but affects historic
properties off tribal lands, if requested
in accordance with § 800.3(c)(1). or if
the Indian tribe agrees to include the
SHPO pursuant to § 800.3(f)(3).
(2) Indian tribes and Native
Hawaiian organizations^
(i) Consultation on tribal lands
(A) Tribal historic presen'ahon
officer For a tribe that has assumed the
responsibilities of the SHPO for section
106 on tribal lands under section
101(d)(2) of the act, the tribal historic
preservation officer (THPO) appointed
or designated in accordance with the act
is the official representative for the
purposes of section 106 The agency
official shall consult with the THPO in
lieu of the SHPO regarding undertakings
occurring on or affecting historic
properties on tribal lands
(B) Tribes that have not assumed
SHPO functions. When an Indian tribe
has not assumed the responsibilities of
the SHPO for section 106 on tribal lands
under section 101(d)(2) of the act. the
agency official shall consult with a
representative designated by such
Indian tribe in addition to the SHPO
regarding undertakings occurring on or
affecting historic properties on its tribal
lands Such Indian tribes have the same
rights of consultation and concurrence
that the THPOs are given throughout
subpart B of this part, except that such
consultations shall be in addition to and
on the same basis as consultation with
the SHPO.
(u) Consultation on historic
properties of significance to Indian tribes
and Native Hawaiian organizations
Section 101(d)(6)(B) of the act requires
the agency official to consult with any
Indian tribe or Native Hawaiian
organization that attaches religious and
cultural significance to historic
properties that may be affected by an
undertaking. This requirement applies
regardless of the location of the historic
property. Such Indian tribe or Native
Hawaiian organization shall be a
consulting party.
(A) The agency official shall ensure
that consultation in the section 106
process provides the Indian tribe or
Native Hawaiian organization a
reasonable opportunity to identify its
concerns about historic properties,
advise on the identification and
evaluation of historic properties,
including those of traditional religious
and cultural importance, articulate its
views on the undertaking's effects on
such properties, and participate in the
resolution of adverse effects. It is the
responsibility of the agency official to
make a reasonable and good faith effort
to identify Indian tribes and Native
Hawaiian organizations that shall be
consulted in the section 106 process.
Consultation should commence early in
the planning process, in order to
identify and discuss relevant
preservation issues and resolve
concerns about the confidentiality of
information on historic properties.
(B) The Federal Government has a
unique legal relationship with Indian
tribes set forth in the Constitution of the
United States, treaties, statutes, and
court decisions Consultation with
Indian tribes should be conducted in a
sensitive manner respectful of tribal
sovereignly. Nothing in this part alters,
amends, repeals, interprets or modifies
tribal sovereignly, any treaty rights, or
other rights of an Indian tribe, or
preempts, modifies or limits the exercise
of any such rights.
(C) Consultation with an Indian
tribe must recognize the government-to-
government relationship between the
Federal Government and Indian tribes
The agency official shall consult with
representatives designated or identified
by the tribal government or the
governing body of a Native Hawaiian
organization. Consultation with Indian
tribes and Native Hawaiian
organizations should be conducted in a
manner sensitive to the concerns and
needs of the Indian tribe or Native
Hawaiian organization.
(D) When Indian tribes and Native
Hawaiian organizations attach religious
and cultural significance to historic
properties off tribal lands, section
101(d)(6)(B) of the act requires Federal
agencies to consult with such Indian
tribes and Native Hawaiian
organizations in the section 106 process
Federal agencies should be aware that
frequently historic properties of
religious and cultural significance are
located on ancestral, aboriginal, or
ceded lands of Indian tribes and Native
Hawaiian organizations and should
consider that when complying with the
procedures in this part
(E) An Indian tribe or a Native
Hawaiian organization may enter into
an agreement with an agency official
that specifies how they will carry out
responsibilities under this part,
including concerns over the
confidentiality of information. An
agreement may cover all aspects of tribal
participation in the section 106 process,
provided that no modification may be
made in the roles of other parties to the
section 106 process without their
consent An agreement may grant the
Indian tribe or Native Hawaiian
organization additional rights to
participate or concur in agency
decisions in the section 106 process
beyond those specified in subpart B of
this part The agency official shall
-------
3
provide a copy of any such agreement to
the Council and the appropriate SHPOs.
(F) An Indian tribe that has not
assumed the responsibilities of the
SHPO for section 106 on tribal lands
under section 101(d)(2) of the act may
notify the agency official in writing that
it is waiving its rights under §
800 6(c)(1) to execute a memorandum of
agreement.
(3) Representatives of local
governments. A representative of a local
government with jurisdiction over the
area in which the effects of an
undertaking may occur is entitled lo
participate as a consulting party. Under
other provisions of Federal law, the
local government may be authorized to
act as the agency official for purposes of
section 106
(4) Applicants for Federal assistance,
permits. licenses and other approvals.
An applicant for Federal assistance or
for a Federal permit, license or other
approval is entitled to participate as a
consulting party as defined in this part.
The agency official may authorize an
applicant or group of applicants lo
initiate consultation with the
SHPO/THPO and others, but remains
legally responsible for all findings and
determinations charged to the agency
official. The agency official shall notify
the SHPO/THPO when an applicant or
group of applicants is so authorized. A
Federal agency may authorize all
applicants in a specific program
pursuant to this section by providing
notice to all SHPO/THPOs. Federal
agencies that provide authorizations to
applicants remain responsible for their
government to government relationships
with Indian tribes.
(5) Additional consulting parties.
Certain individuals and organizations
with a demonstrated interest in the
undertaking may participate as
consulting parties due to the nature of
their legal or economic relation to the
undertaking or affected properties, or
their concern with the undertaking's
effects on historic properties.
(d) The public.
(1) Nature of involvement. The views
of the public are essential to informed
Federal decisionmaking in the section
106 process. The agency official shall
seek and consider the views of the
public in a manner that reflects the
nature and complexity of the
undertaking and its effects on historic
properties, the likely interest of the
public in the effects on historic
properties, confidentiality concerns of
private individuals and businesses, and
the relationship of the Federal
involvement to the undertaking.
(2) Providing notice and information
The agency official must, except where
appropriate to protect confidentiality
concerns of affected parties, provide the
public with information about an
undertaking and its effects on historic
properties and seek public comment
and input. Members of the public may
also provide views on their own
initiative for the agency official to
consider in decisionmaking.
(3) Use of agency procedures The
agency official may use the agency's
procedures for public involvement
under the National Environmental
Policy Act or other program
requirements in lieu of public
involvement requirements in subpart B
of this part, if they provide adequate
opportunities for public involvement
consistent with this subpart.
Subpart B-Thc section 106 Process
§ 800.3 Initiation of the section 106
process.
(a) Establish undertaking The
agency official shall determine whether
the proposed Federal action is an
undertaking as defined in § 800.16(y)
and, if so, whether it is a type of activity
that has the potential to cause effects on
historic properties.
(1) No potential to cause effects. If
the undertaking is a type of activity that
does not have the potential to cause
effects on historic properties, assuming
such historic properties were present,
the agency official has no further
obligations under section 106 or this
part.
(2) Program alternatives. If the
review of the undertaking is governed
by a Federal agency program alternative
established under § 800.14 or a
programmatic agreement in existence
before January 11, 2001, the agency
official shall follow the program
alternative.
(b) Coordinate with other reviews.
The agency official should coordinate
the steps of the section 106 process, as
appropriate, with the overall planning
schedule for the undertaking and with
any reviews required under other
authorities such as the National
Environmental Policy Act, the Native
American Graves Protection and
Repatriation Act, the American Indian
Religious Freedom Act, the
Archeological Resources Protection Act
and agency-specific legislation, such as
section 4(f) of the Department of
Transportation Act. Where consistent
with the procedures in this subpart, the
agency official may use information
developed for other reviews under
Federal, State or tribal law to meet the
requirements of section 106.
(c) Identify' the appropriate SHPO
and/or THPO. As part of its initial
planning, the agency official shall
determine the appropriate SHPO or
SHPOs to be involved in the section 106
process. The agency official shall also
determine whether the undertaking may
occur on or affect historic properties on
any tribal lands and, if so, whether a
THPO has assumed the duties of the
SHPO. The agency official shall then
initiate consultation with the
appropriate officer or officers.
(1) Tribal assumption of SHPO
responsibilities. Where an Indian tribe
has assumed the section 106
responsibilities of the SHPO on tribal
lands pursuant to section 101(d)(2) of
the act, consultation for undertakings
occurring on tribal land or for effects on
tribal land is with the THPO for the
Indian tribe in lieu of the SHPO
Section 101(d)(2)(D)(ni) of the act
authorizes owners of properties on tribal
lands which are neither owned by a
member of the tribe nor held in trust by
the Secretary for the benefit of the tribe
to request the SHPO to participate in the
section 106 process in addition to the
THPO
(2) Undertakings involving more than
one State. If more than one State is
involved in an undertaking, the
involved SHPOs may agree to designate
a lead SHPO to act on their behalf in the
section 106 process, including taking
actions that would conclude the section
106 process under this subpart
(3) Conducting consultation. The
agency official should consult with the
SHPO/THPO in a manner appropriate to
the agency planning process for the
undertaking and to the nature of the
undertaking and its effects on historic
properties
(4) Failure of the SHPO/THPO to
respond. If the SHPO/THPO fails to
respond within 30 days of receipt of a
request for review of a finding or
determination, the agency official may
either proceed to the next step in the
process based on the finding or
determination or consult with the
Council in lieu of the SHPO/THPO If
the SHPO/THPO re-enters the section
106 process, the agency official shall
continue the consultation without being
required to reconsider previous findings
or determinations.
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(d) Consultation on tribal lands
Where the Indian tribe has not assumed
the responsibilities of the SHPO 011
tribal lands, consultation with the
Indian tribe regarding undertakings
occurring 011 such tribe's lands or effects
on such tribal lands shall be in addition
to and on the same basis as consultation
with the SHPO IftheSHPOhas
withdrawn from the process, the agency
official may complete the section 10G
process with the Indian tribe and the
Council, as appropriate. An Indian tribe
may enter into an agreement with a
SHPO or SHPOs specifying the SHPO's
participation in the section 106 process
for undertakings occurring 011 or
affecting historic properties 011 tribal
lands
(e) Plan to involve the public. In
consultation with the SHPO/THPO. the
agency official shall plan for involving
the public in the section 10G process.
The agency official shall identify the
appropriate points for seeking public
input and for notifying the public of
proposed actions, consistent with §
800 2(d).
(0 Identify other consulting parties.
In consultation with the SHPO/THPO.
the agency official shall identify any
other parlies entitled to be consulting
parties and invite them to participate as
such in the section 106 process. The
agency official may invite others to
participate as consulting parlies as the
section 106 process moves forward.
(1) Involving local governments and
applicants The agency official shall
invite any local governments or
applicants that are entitled to be
consulting parties under § 800.2(c).
(2) Involving Indian tribes and
Native Hawaiian organizations The
agency official shall make a reasonable
and good faith effort to identify any
Indian tribes or Native Hawaiian
organizations that might attach religious
and cultural significance to historic
properties 111 the area of potential effects
and invite them to be consulting parties.
Such Indian tribe or Native Hawaiian
organization that requests 111 writing to
be a consulting party shall be one
(3) Requests to be consulting parties.
The agency official shall consider all
written requests of individuals and
organizations to participate as
consulting parties and, 111 consultation
with the SHPO/THPO and any Indian
tribe upon whose tribal lands an
undertaking occurs or affects historic
properties, determine which should be
consulting parties
(g) Expediting consultation A
consultation by the agency official with
the SHPO/THPO and other consulting
parlies may address multiple steps 111 §§
800.3 through 800.6 where the agency
official and the SHPO/THPO agree il is
appropriate as long as the consulting
parties and the public have an adequate
opportunity to express their views as
provided 111 § 800 2(d)
§ 800.4 Identification of historic
properties.
(a) Determine scope of identification
efforts. In consultation with the
SHPO/THPO. the agency official shall.
(1) Determine and document the
area of potential effects, as defined in §
800.16(d),
(2) Review existing information on
historic properties within the area of
potential effects, including any data
concerning possible historic properties
not yet identified:
(3) Seek information, as appropriate,
from consulting parlies, and other
individuals and organizations likely to
have knowledge of. or concerns wilh,
historic properties 111 the area, and
identify issues relating to the
undertaking's potential effects on
historic properties; and
(4) Gather information from any
Indian tribe or Native Hawaiian
organization identified pursuant lo §
800 3(0 to assist in identifying
properties, including those located off
tribal lands, which may be of religious
and cultural significance to them and
may be eligible for the National Register,
recognizing that an Indian tribe or
Native Hawaiian organization may be
reluctant lo divulge specific information
regarding the location, nature, and
activities associated wilh such sites
The agency official should address
concerns raised about confidentiality
pursuant lo § 800 11 (c)
(b) Identify historic properties Based
011 the information gathered under
paragraph (a) of this section, and 111
consultation with the SHPO/THPO and
any Indian tribe or Native Hawaiian
organization that might attach religious
and cultural significance to properties
within the area of potential effects, the
agency official shall take the steps
necessary lo identify historic properties
within the area of potential effects,
(1) Level of effort The agency
official shall make a reasonable and
good faith effort to carry out appropriate
identification efforts, which may
include background research,
consultation, oral history interviews.
sample field investigation, and field
survey The agency official shall take
mlo account past planning, research
and studies, the magnitude and nature
of the undertaking and the degree of
Federal involvement, the nature and
extent of potential effects on historic
properties, and the likely nature and
location of historic properties within the
area of potential effects. The Secretary's
Standards and Guidelines for
Identification provide guidance 011 this
subject. The agency official should also
consider other applicable professional,
State, tribal and local laws, standards
and guidelines. The agency official
shall take into account any
confidentiality concerns raised by
Indian tribes or Native Hawaiian
organizations during the identification
process.
(2) Phased identification and
evaluation. Where alternatives under
consideration consist of corridors or
large land areas, or where access to
properties is restricted, the agency
official may use a phased process to
conduct identification and evaluation
efforts The agency official may also
defer final identification and evaluation
of historic properties if it is specifically
provided for in a memorandum of
agreement executed pursuant to § 800.6.
a programmatic agreement executed
pursuant to § 800.14 (b), or the
documents used by an agency official lo
comply with the National
Environmental Policy Act pursuant lo §
800.8. The process should establish the
likely presence of historic properties
within the area of potential effects for
each alternative or inaccessible area
through background research,
consultation and an appropriate level of
field investigation, taking into account
the number of alternatives under
consideration, the magnitude of the
undertaking and its likely effects, and
the views of the SHPO/THPO and any
other consulting parlies As specific
aspects or locations of an alternative are
refined or access is gained, the agency
official shall proceed with the
identification and evaluation of historic
properties in accordance with
paragraphs (b)(1) and (c) of this section.
(c) Evaluate historic significance.
(1) Apply National Register criteria.
In consultation with I he SHPO/THPO
and any Indian tribe or Native Hawaiian
organization thai attaches religious and
cultural significance to identified
properties and guided by the Secretary's
Standards and Guidelines for
Evaluation, the agency official shall
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5
apply the National Register criteria (36
CFR part 63) to properties identified
within the area of potential effects that
have not been previously evaluated for
National Register eligibility The
passage of time, changing perceptions of
significance, or incomplete prior
evaluations may require the agency
official to reevaluate properties
previously determined eligible or
ineligible. The agency official shall
acknowledge that Indian tribes and
Native Hawaiian organizations possess
special expertise in assessing the
eligibility of historic properties that may
possess religious and cultural
significance to them.
(2) Determine whether a property is
eligible. If the agency official
determines any of the National Register
criteria are met and the SHPO/THPO
agrees, the property shall be considered
eligible for the National Register for
section 106 purposes. If the agency
official determines the criteria are not
met and the SHPO/THPO agrees, the
property shall be considered not
eligible. If the agency official and the
SHPO/THPO do not agree, or if the
Council or the Secretary so request, the
agency official shall obtain a
determination of eligibility from the
Secretary pursuant to 36 CFR part 63. If
an Indian tribe or Native Hawaiian
organization that attaches religious and
cultural significance to a property off
tribal lands does not agree, it may ask
the Council to request the agency
official to obtain a determination of
eligibility.
(d) Results of identification and
evaluation
(1) No historic properties affected. If
the agency official finds that either there
are no historic properties present or
there are historic properties present but
the undertaking will have no effect
upon them as defined in § BOO. 16(0, the
agency official shall provide
documentation of this finding, as set
forth in § 800 11(d), to the SHPO/THPO.
The agency official shall notify all
consulting parties, including Indian
tribes and Native Hawaiian
organizations, and make the
documentation available for public
inspection prior to approving the
u ndertaking.
(i) If the SHPO/THPO, or the
Council if it has entered Ihe section 106
process, does not object within 30 days
of receipt of an adequately documented
finding, the agency official's
responsibilities under section 106 are
fulfilled.
(ii) If the SHPO/THPO objects
within 30 days of receipt of an
adequately documented finding, the
agency official shall either consult with
the objecting party to resolve the
disagreement, or forward Ihe finding
and supporting documentation to the
Council and request that the Council
review the finding pursuant to
paragraphs (d)(l)(iv)(A) through
(d)(l )(iv)(C) of this section. When an
agency official forwards such requests
for review to the Council, the agency
official shall concurrently notify all
consulting parties that such a request
has been made and make the request
documentation available to the public.
(iii) During the SHPO/THPO 30 day
review period, the Council may object to
the finding and provide its opinion
regarding the finding to the agency
official and, if the Council determines
the issue warrants it. the head of the
agency. A Council decision to provide
its opinion to the head of an agency
shall be guided by the criteria in
appendix A to this part. The agency
shall then proceed according to
paragraphs (d)(1 )(iv)(B) and (d)(l )(iv)(C)
of this section.
(iv)(A) Upon receipt of the request
under paragraph (d)(l)(ii) of this
section, the Council will have 30 days in
which to review the finding and provide
the agency official and, if the Council
determines the issue warrants it, the
head of the agency with the Council's
opinion regarding the finding. A
Council decision to provide its opinion
to the head of an agency shall be guided
by the criteria in appendix A to this
part. If Ihe Council does not respond
within 30 days of receipt of the request,
the agency official's responsibilities
under section 106 are fulfilled
(13) The person to whom the Council
addresses its opinion (the agency official
or the head of the agency) shall take into
account the Council's opinion before the
agency reaches a final decision on the
fi nding.
(C) The person to whom the Council
addresses its opinion (the agency official
or the head of the agency) shall then
prepare a summary of the decision that
contains the rationale for the decision
and evidence of consideration of the
Council's opinion, and provide it to the
Council, the SHPO/THPO, and Ihe
consulting parties The head of the
agency may delegate his or her duties
under this paragraph to the agency's
senior policy official. If the agency
official's initial finding will be revised,
the agency official shall proceed in
accordance with the revised finding If
the final decision of the agency is to
affirm the initial agency finding of no
historic properties affected, once the
summary of the decision has been sent
to the Council, the SHPO/THPO, and
the consulting parties, the agency
official's responsibilities under section
10G are fulfilled.
(D) The Council shall retain a record
of agency responses to Council opinions
on their findings of no historic
properties affected. The Council shall
make this information available to the
public.
(2) Historic properties affected. If the
agency official finds that there are
historic properties which may be
affected by the undertaking, the agency
official shall notify all consulting
parlies, including Indian tribes or
Native Hawaiian organizations, invite
their views on the effects and assess
adverse effects, if any, in accordance
with § 800.5.
§ 800.5 Assessment of adverse effects.
(a) Apply criteria of adverse effect In
consultation with the SHPO/THPO and
any Indian tribe or Native Hawaiian
organization that attaches religious and
cultural significance to identified
historic properties, the agency official
shall apply the criteria of adverse effect
to historic properties within the area of
potential effects. The agency official
shall consider any views concerning
such effects which have been provided
by consulting parties and the public.
(1) Criteria of adverse effect. An
adverse effect is found when an
undertaking may alter, directly or
indirectly, any of the characteristics of a
historic property that qualify the
property for inclusion in the National
Register in a manner that would
diminish the integrity of the property's
location, design, selling, materials,
workmanship, feeling, or association.
Consideration shall be given to all
qualifying characteristics of a historic
property, including those that may have
been identified subsequent to the
original evaluation of the property's
eligibility for the National Register.
Adverse effects may include reasonably
foreseeable effects caused by the
undertaking that may occur later in
time, be farther removed in distance or
be cumulative.
(2) Examples of adverse effects.
Adverse effects on historic properties
include, but are not limned to:
(i) Physical destruction of or damage
to all or part of the property;
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6
(ii) Alteration of a property,
including restoration, rehabilitation,
repair, maintenance, stabilization,
hazardous material remediation and
provision of handicapped access, that is
not consistent with the Secretary's
Standards for the Treatment of Historic
Properties (36 CFR part 68) and
applicable guidelines;
(ni) Removal of the property from its
historic location.
(iv) Change of the character of the
property's use or of physical features
within the property's setting that
contribute to its historic significance;
(v) Introduction of visual,
atmospheric or audible elements that
diminish the integrity of the property's
significant historic features.
(vi) Neglect of a property which
causes its deterioration, except where
such neglect and deterioration are
recognized qualities of a property of
religious and cultural significance to an
Indian tribe or Native Hawaiian
organization: and
(vii) Transfer, lease, or sale of
property out of Federal ownership or
control without adequate and legally
enforceable restrictions or conditions to
ensure long-term preservation of the
property's historic significance.
(3) Phased application of criteria
Where alternatives under consideration
consist of corridors or large land areas,
or where access to properties is
restricted, the agency official may use a
phased process in applying the criteria
of adverse effect consistent with phased
identification and evaluation efforts
conducted pursuant to § 800.4(b)(2)
(b) Finding of no adverse effect. The
agency official, in consultation with the
SHPO/THPO. may propose a finding of
no adverse effect when the
undertaking's effects do not meet the
criteria of paragraph (a)(1) of this
section or the undertaking is modified
or conditions are imposed, such as the
subsequent review of plans for
rehabilitation by the SHPO/THPO to
ensure consistency with the Secretary's
Standards for the Treatment of Historic
Properties (36 CFR part 68) and
applicable guidelines, to avoid adverse
effects.
(c) Consulting parly review. If the
agency official proposes a finding of no
adverse effect, the agency official shall
notify all consulting parties of the
finding and provide Ihem with the
documentation specified in § 800 1 1(e)
The SHPO/THPO shall have 30 days
from receipt lo review the finding
(1) Agreement with, or no objection
lo. finding. Unless the Council is
reviewing the finding pursuant to
paragraph (c)(3) of this section, the
agency official may proceed after the
close of the 30 day review period if the
SHPO/THPO has agreed with the
finding or has not provided a response,
and no consulting party has objected.
The agency official shall then carry out
the undertaking in accordance with
paragraph (d)(1) of this section
(2) Disagreement with finding
(l) If within I he 30 day review jjeriod
the SHPO/THPO or any consulting party
notifies the agency official in writing
that it disagrees with the finding and
specifies the reasons for the
disagreement in the notification, the
agency official shall either consult with
the party to resolve the disagreement, or
request the Council to review the
finding pursuant to paragraphs (c)(3)(i)
and (c)(3)(h) of llns section. The agency
official shall include with such request
the documentation specified in §
800.11(e). The agency official shall also
concurrently notify all consulting
parties that such a submission has been
made and make the submission
documentation available to the public
(n) If within the 30 day review
period the Council provides the agency
official and. if the Council determines
the issue warrants it, the head of the
agency, with a written opinion objecting
to the finding, the agency shall then
proceed according lo paragraph (c)(3)(h)
of this section A Council decision lo
|jrovide its opinion to I he head of an
agency shall be guided by the criteria in
appendix A to this part.
(iii) The agency official should seek
the concurrence of any Indian tribe or
Native Hawaiian organization that has
made known lo the agency official that
it attaches religious and cultural
significance lo a historic property
subject to the finding. If such Indian
Iribe or Native Hawaiian organization
disagrees with the finding, it may within
the 30 day review period specify the
reasons for disagreeing with llie finding
and request the Council to review and
object to the finding pursuant to
paragraph (c)(2)(ii) of Ibis section,
(3) Council review of findings
(i) When a finding is submitted to
the Council pursuant lo paragraph
(c) (2) ( i ) of I his section, the Council shall
review the finding and provide the
agency official and. if the Council
determines the issue warrants it. the
head of the agency with its opinion as to
whether the adverse effect criteria have
been correctly applied A Council
decision lo provide its opinion lo the
head of an agency shall be guided by the
criteria in appendix A to this part The
Council will provide its opinion within
15 days of receiving the documented
finding from the agency official. The
Council at its discretion may extend that
time period for 15 days, in which case it
shall notify the agency of such
extension prior lo the end of the initial
15 day period If the Council does not
respond within the applicable time
period, the agency official's
responsibilities under section 106 are
fulfilled.
(11)(A) The person to whom the
Council addresses its opinion (the
agency official or the head of the
agency) shall take into account the
Council's opinion in reaching a final
decision oil the finding
(B) The person lo whom the Council
addresses its opinion (the agency official
or the head of the agency) shall prepare
a summary of the decision that contains
the rationale for I he decision and
evidence of consideration of the
Council's opinion, and provide it to the
Council, the SHPO/THPO. and the
consulting parties. The head of llie
agency may delegate his or her duties
under this paragraph to the agency's
senior policy official If llie agency
official's initial finding will be revised,
the agency official shall proceed in
accordance with the revised finding. If
the final decision of the agency is lo
affirm the initial finding of no adverse
effect, once the summary of the decision
has been sent to the Council, the
SHPO/THPO, and the consulting parties,
the agency official's responsibilities
under section 106 are fulfilled.
(C) The Council shall retain a record
of agency responses to Council opinions
on their findings of no adverse effects
The Council shall make this information
available to the public.
(d) Results of assessment
(1) No adverse effect. The agency
official shall maintain a record of the
finding and provide information on the
finding to the public on request,
consistent with the confidentiality
provisions of § 800 11(c)
Implementation of the undertaking in
accordance with the finding as
documented fulfills the agency official's
responsibilities under section 106 and
this part. If the agency official will not
conduct the undertaking as jiroposed in
the finding, the agency official shall
reopen consultation under paragraph (a)
of this section.
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(2) Adverse effect. If an adverse
effect is found, the agency official shall
consult further to resolve the adverse
effect pursuant to § 800.6.
§ 800.6 Resolution of adverse effects.
(a) Continue consultation. The
agency official shall consult with the
SHPO/THPO and other consulting
parties, including Indian tribes and
Native Hawaiian organizations, to
develop and evaluate alternatives or
modifications to the undertaking that
could avoid, minimize or mitigate
adverse effects on historic properties.
(1) Notify the Council and determine
Council participation. The agency
official shall notify the Council of the
adverse effect finding by providing the
documentation specified in § 800.11(e).
(1) The notice shall invite the
Council to participate in the
consultation when:
(A) The agency official wants the
Council to participate;
(B) The undertaking has an adverse
effect upon a National Historic
Landmark; or
(C) A programmatic agreement
under § 800.14(b) will be prepared;
(ii) The SHPO/THPO, an Indian tribe
or Native Hawaiian organization, or any
other consulting parly may at any time
independently request the Council to
participate in the consultation.
(lii) The Council shall advise the
agency official and all consulting parties
whether it will participate within 15
days of receipt of notice or other
request. Prior to entering the process,
the Council shall provide written notice
to the agency official and the consulting
parties that its decision to participate
meets the criteria set forth in appendix
A to this part The Council shall also
advise the head of the agency of its
decision to enter the process.
Consultation with Council participation
is conducted in accordance with
paragraph (b)(2) of this section.
(iv) If the Council does not join the
consultation, the agency official shall
proceed with consultation in
accordance with paragraph (b)(1) of this
section.
(2) Involve consulting parties. In
addition to the consulting parties
identified under § 800.3(f), the agency
official, the SHPO/THPO and the
Council, if participating, may agree to
invite other individuals or organizations
to become consulting parties. The
agency official shall invite any
individual or organization that will
assume a specific role or responsibility
in a memorandum of agreement to
participate as a consulting party.
(3) Provide documentation. The
agency official shall provide to all
consulting parties the documentation
specified in § 800 11(e). subject to the
confidentiality provisions of § 800 11(c),
and such other documentation as may
be developed during the consultation to
resolve adverse effects.
(4) Involve the public. The agency
official shall make information available
to the public, including the
documentation specified in § 800.11(e),
subject to the confidentiality provisions
of § 800.11(c). The agency official shall
provide an opportunity for members of
the public to express their views on
resolving adverse effects of the
undertaking. The agency official should
use appropriate mechanisms, taking into
account the magnitude of the
undertaking and the nature of its effects
upon historic properties, the likely
effects on historic properties, and the
relationship of the Federal involvement
to the undertaking to ensure that the
public's views are considered in the
consultation. The agency official
should also consider the extent of notice
and information concerning historic
preservation issues afforded the public
at earlier steps in the section 106
process to determine the appropriate
level of public involvement when
resolving adverse effects so that the
standards of § 800.2(d) are met.
(5) Restrictions on disclosure of
information. Section 304 of the act and
other authorities may limit the
disclosure of information under
paragraphs (a)(3) and (a)(4) of this
section. If an Indian tribe or Native
Hawaiian organization objects to the
disclosure of information or if the
agency official believes that there are
other reasons to withhold information,
the agency official shall comply with §
800.11(c) regarding the disclosure of
such information
(b) Hesolve adverse effects
(1) Resolution without the Council
(i) The agency official shall consult
with the SHPO/THPO and other
consulting parties to seek ways to avoid,
minimize or mitigate the adverse effects.
(ii) The agency official may use
standard treatments established by the
Council under § 800.14(d) as a basis for
a memorandum of agreement
(m) If the Council decides to join the
consultation, the agency official shall
follow paragraph (b)(2) of this section.
(iv) If the agency official and the
SHPO/THPO agree on how the adverse
effects will be resolved, they shall
execute a memorandum of agreement
The agency official must submit a copy
of the executed memorandum of
agreement, along with the
documentation specified in § 800.11(f),
to the Council prior to approving the
undertaking in order to meet the
requirements of section 106 and this
subpart.
(v) If the agency official, and the
SHPO/THPO fail to agree on the terms
of a memorandum of agreement, the
agency official shall request the Council
to join the consultation and provide the
Council with the documentation set
forth in § 800.11(g). If the Council
decides to |oin the consultation, the
agency official shall proceed in
accordance with paragraph (b)(2) of this
section If the Council decides not to
join the consultation, the Council will
notify the agency and proceed to
comment in accordance with § 800.7(c).
(2) Resolution with Council
participation. If the Council decides to
participate in the consultation, the
agency official shall consult with the
SHPO/THPO, the Council, and other
consulting parties, including Indian
tribes and Native Hawaiian
organizations under § 800.2(c)(3), to
seek ways to avoid, minimize or
mitigate the adverse effects. If the
agency official, the SHPO/THPO, and
the Council agree on how the adverse
effects will be resolved, they shall
execute a memorandum of agreement.
(c) Memorandum of agreement. A
memorandum of agreement executed
and implemented pursuant to this
section evidences the agency official's
compliance with section 106 and this
part and shall govern the undertaking
and all of its parts. The agency official
shall ensure that the undertaking is
carried out in accordance with the
memorandum of agreement
(1) Signatories. The signatories have
sole authority to execute, amend or
terminate the agreement in accordance
with this subpart.
(i) The agency official and the
SHPO/THPO are the signatories to a
memorandum of agreement executed
pursuant to paragraph (b)(1) of this
section
(ii) The agency official, the
SHPO/THPO, and the Council are the
signatories to a memorandum of
agreement executed pursuant to
paragraph (b)(2) of this section
(iii) The agency official and the
Council are signatories to a
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8
memorandum of agreement executed
pursuant to § 800 7(a)(2).
(2) Invited signatories
(i) The agency official may invite
additional parties to be signatories to a
memorandum of agreement. Any such
parly that signs the memorandum of
agreement shall have the same rights
with regard lo seeking amendment or
termination of the memorandum of
agreement as other signatories
(ii) The agency official may invite an
Indian tribe or Native Hawaiian
organization that attaches religious and
cultural significance lo historic
properties located off tribal lands to be a
signatory to a memorandum of
agreement concerning such properties.
(in) The agency official should
invite any party that assumes a
responsibility under a memorandum of
agreement to be a signatory
(iv) The refusal of any party invited
to become a signatory to a memorandum
of agreement pursuant to paragraph
(c)(2) of this section does not invalidate
the memorandum of agreement.
(3) Concurrence by others The
agency official may invite all consulting
parties lo concur in the memorandum of
agreement The signatories may agree to
invile others to concur. The refusal of
any party invited lo concur in the
memorandum of agreement does not
invalidate Ihe memorandum of
agreement.
(4) Reports on implementation.
Where ihe signalories agree it is
appropriate, a memorandum of
agreement shall include a provision for
monitoring and reporting oil its
lm plementation
(5) Duration. A memorandum of
agreement shall include provisions for
termination and for reconsideration of
terms if the undertaking has not been
implemented within a specified tune
(6) Discoveries. Where the
signatories agree it is appropriate, a
memorandum of agreement shall
include provisions to deal with the
subsequent discovery or identification
of additional historic properties affected
by the undertaking
(7) Amendments. The signatories to
a memorandum of agreement may
amend it If ihe Council was nol a
signatory to the original agreement and
the signatories execute ail amended
agreement, the agency official shall file
it with Ihe Council.
(H) Termination If any signatory
determines thai the lerms of a
memorandum of agreement cannot be or
are not being carried out. Ihe signatories
shall consult to seek amendment of the
agreement. If Ihe agreement is not
amended, any signatory may terminate
it. The agency official shall either
execute a memorandum of agreement
with signatories under paragraph (c)(1)
of this section or request the comments
of the Council under § 800.7(a)
(9) Copies. The agency official shall
provide each consulting party with a
copy of any memorandum of agreement
executed pursuant to this subpart
§ 800.7 Failure lo resolve adverse
effects.
(a) Termination of consultation
Afler consulting to resolve adverse
effects pursuant to § 800.6(b)(2), Ihe
agency official, the SHPO/THPO, or Ihe
Council may determine thai further
consultation will not be productive and
terminate consultation Any parly that
lerminales consultation shall notify ihe
other consulting parlies and provide
lliem the reasons for terminating in
writing.
(1) If the agency official lerminales
consultation, the head of Ihe agency or
an Assistant Secretary or oilier officer
with major department-wide or agencv-
wide responsibilities shall request that
Ihe Council comment pursuant to
paragraph (c) of this section and shall
notify all consulting parlies of the
request
(2) If the SHPO lerminales
consultation, the agency official and the
Council may execute a memorandum of
agreement without Ihe SHPO's
involvement
(3) If a THPO terminates
consultation regarding an undertaking
occurring oil or affecting historic
properties on its tribal lands, the
Council shall comment pursuant lo
paragraph (c) of this section.
(4) If the Council terminates
consultation. Ihe Council shall notify
the agency official. Ihe agency's Federal
preservation officer and all consulting
parlies of the termination and comment
under paragraph (c) of this section The
Council may consult with the agency's
Federal preservation officer prior lo
terminating consultation to seek to
resolve issues concerning the
undertaking and its effects on historic
properties.
(b) Comments without termination
The Council may determine that il is
appropriate to provide additional
advisor}' comments upon an
undertaking for which a memorandum
of agreement will be executed. The
Council shall provide them to Ihe
agency official when it executes the
memorandum of agreement.
(c) Comments by the Council
(1) Preparation The Council shall
provide an opportunity for Ihe agency
official, all consulting parties, and llie
public to provide their views within Ihe
time frame for developing its comments.
Upon request of Ihe Council. Ihe agency
official shall provide additional existing
information concerning the undertaking
and assist the Council in arranging an
onsite inspection and an opportunity for
public participation
(2) Tuning. The Council shall
transmit its comments within 45 days of
receipt of a request under paragraph
(a)(1) or (a)(3) of this section or §
800 8(c)(3), or termination by the
Council under § 800 6(b)(1)(v) or
paragraph (a)(4) of this section, unless
otherwise agreed to by the agency
official.
(3) Transmittal. The Council shall
provide its comments to Ihe head of the
agency requesting comment with copies
to the agency official, the agency's
Federal preservation officer, all
consulting parlies, and others as
appropriate
(4) Response to Council comment
The head of the agency shall lake into
account the Council's comments in
reaching a final decision on Ihe
undertaking. Section 110(1) of the act
directs that the head of the agency shall
document this decision and may not
delegate his or her responsibilities
pursuant to section 106 Documenting
the agency head's decision shall
include.
(i) Preparing a summary of the
decision that contains the rationale for
the decision and evidence of
consideration of Ihe Council's comments
and providing it to the Council prior lo
approval of the undertaking.
(ii) Providing a copy of Ihe summary
to all consulting parlies: and
(in) Notifying the public and making
the record available for public
inspection
§ 800.8 Coordination With the
National Environmental Policy Act.
(a) General principles.
(1) Early coordination. Federal
agencies are encouraged lo coordinate
compliance with section 10C and the
procedures in (his part with any steps
taken to meet Ihe requirements of Ihe
National Environmental Policy Act
(NEPA) Agencies should consider their
section 106 responsibilities as early as
possible in the NEPA process, and plan
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9
their public participation, analysis, and
review in such a way that they can meet
the purposes and requirements of both
statutes in a timely and efficient
manner. The determination of whether
an undertaking is a "major Federal
action significantly affecting the quality
of the human environment," and
therefore requires preparation of an
environmental impact statement (EIS)
under NEPA, should include
consideration of the undertaking's likely
effects on historic properties. A finding
of adverse effect on a historic property
does not necessarily require an EIS
under NEPA
(2) Consulting party roles.
SHPO/THPOs, Indian tribes and Native
Hawaiian organizations, other
consulting parties, and organizations
and individuals who may be concerned
with the possible effects of an agency
action on historic properties should be
prepared to consult with agencies early
in the NEPA process, when the purpose
of and need for the proposed action as
well as the widest possible range of
alternatives are under consideration.
(3) Inclusion of historic proscription
issues. Agency officials should ensure
that preparation of an environmental
assessment (EA) and finding of no
significant impact (FONSI) or an EIS
and record of decision (ROD) includes
appropriate scoping, identification of
historic properties, assessment of effects
upon them, and consultation leading to
resolution of any adverse effects.
(b) Actions categorically excluded
under NEPA If a project, activity or
program is categorically excluded from
NEPA review under an agency's NEPA
procedures, the agency official shall
determine if it still qualifies as an
undertaking requiring review under
section 106 pursuant to § 800.3(a) If so,
the agency official shall proceed with
section 106 review in accordance with
the procedures in this subpart.
(c) Use of the NEPA process for
section 106 purposes An agency official
may use the process and documentation
required for the preparation of an
EA/FONSI or an EIS/ROD to comply
with section 106 in lieu of the
procedures set forth in §§ 800.3 through
800.6 if the agency official has notified
in advance the SHPO/THPO and the
Council that it intends to do so and the
following standards are met.
(1) Standards for developing
environmental documents to comply with
Section 106. During preparation of the
EA or draft EIS (DEIS) the agency
official shall:
(1) Identify consulting parties either
pursuant to § 800 3(f) or through the
NEPA scoping process with results
consistent with § 800 3(f),
(ii) Identify historic properties and
assess the effects of the undertaking on
such properties in a manner consistent
with the standards and criteria of §§
800.4 through 800 5, provided that the
scope and timing of these steps may be
phased to reflect the agency official's
consideration of project alternatives in
the NEPA process and the effort is
commensurate with the assessment of
other environmental factors,
(in) Consult regarding the effects of
the undertaking on historic properties
with the SHPO/THPO, Indian tribes and
Native Hawaiian organizations that
might attach religious and cultural
significance to affected historic
properties, other consulting parties, and
the Council, where appropriate, during
NEPA scoping, environmental analysis,
and the preparation of NEPA
documents;
(iv) Involve the public in
accordance with the agency's published
NEPA procedures; and
(v) Develop in consultation with
identified consulting parties alternatives
and proposed measures that might
avoid, minimize or mitigate any adverse
effects of the undertaking on historic
properties and describe them in the EA
or DEIS.
(2) Review of environmental
documents.
(l) The agency official shall submit
the EA. DEIS or EIS to the SHPO/THPO,
Indian tribes and Native Hawaiian
organizations that might attach religious
and cultural significance to affected
historic properties, and other consulting
parties prior to or when making the
document available for public comment.
If the document being prepared is a
DEIS or EIS, the agency official shall
also submit it to the Council.
(n) Prior to or within the time
allowed for public comment on the
document, a SHPO/THPO, an Indian
tribe or Native Hawaiian organization,
another consulting party or the Council
may object to the agency official that
preparation of the EA. DEIS or EIS has
not met the standards set forth in
paragraph (c)(1) of this section or that
the substantive resolution of the effects
on historic properties proposed in an
EA, DEIS or EIS is inadequate. If the
agency official receives such an
objection, the agency official shall refer
the matter to the Council.
(3) Resolution of objections. Within
30 days of the agency official's referral
of an objection under paragraph
(c)(2)(ii) of this section, the Council
shall review the objection and notify the
agency as to its opinion on the
objection.
(i) If the Council agrees with the
objection-
(A) The Council shall provide the
agency official and, if the Council
determines the issue warrants it, the
head of the agency with the Council's
opinion regarding the objection. A
Council decision to provide its opinion
to the head of an agency shall be guided
by the criteria in appendix A to this
part The person to whom the Council
addresses its opinion (the agency official
or the head of the agency) shall take into
account the Council's opinion in
reaching a final decision on the issue of
the objection
(U) The person to whom the Council
addresses its opinion (the agency official
or the head of the agency) shall prepare
a summary of the decision that contains
the rationale for the decision and
evidence of consideration of the
Council's opinion, and provide it to the
Council. The head of the agency may
delegate his or her duties under this
paragraph to the agency's senior Policy
Official. If the agency official's initial
decision regarding the matter that is the
subject of the objection will be revised,
the agency official shall proceed in
accordance with the revised decision. If
the final decision of the agency is to
affirm the initial agency decision, once
the summary of the final decision has
been sent to the Council, the agency
official shall continue its compliance
with this section.
(n) If the Council disagrees with the
objection, the Council shall so notify the
agency official, in which case the
agency official shall continue its
compliance with this section.
(ui) If the Council fails to respond to
the objection within the 30 day period,
the agency official shall continue its
compliance with this section.
(4) Approval of the undertaking. If
the agency official has found, during the
preparation of an EA or EIS that the
effects of an undertaking on historic
properties are adverse, the agency
official shall develop measures in the
EA, DEIS, or EIS to avoid, minimize, or
mitigate such effects in accordance with
paragraph (c)(1)(v) of this section. The
agency official's responsibilities under
section 106 and the procedures in this
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10
subpart shall then be satisfied when
either
(1) a binding commitment to such
proposed measures is incorporated in
(A) the ROD. if such measures were
proposed 111 a DEIS or EIS. or
(B) an MOA drafted in compliance
with § 800.6(c): or
(ii) the Council has commented
under § 800.7 and received the agency's
response to such comments.
(5) Modification of the undertaking.
If the undertaking is modified after
approval of the FONSI or the KOD in a
manner that changes the undertaking or
alters its effects on historic properties,
or if the agency official fails to ensure
that the measures to avoid, minimize or
mitigate adverse effects (as specified in
either the FONSI or the KOD. or in the
binding commitment adopted pursuant
to paragraph (c)(4) of this section) are
carried out. the agency official shall
notify the Council and all consulting
parties that supplemental
environmental documents will be
prepared in compliance with NEPA or
that the procedures in §§ 800 3 through
800.6 will be followed as necessary
§ 800.9 Council review of section lOli
compliance.
(a) Assessment of agency official
compliance for individual undertakings
The Council may provide to the agency
official its advisory opinion regarding
the substance of any finding,
determination or decision or regarding
the adequacy of the agency official's
compliance with the procedures under
this part The Council may provide
such advice at any time at the request of
any individual, agency or organization
or on its own initiative The agency
official shall consider the views of the
Council in reaching a decision on the
matter in question.
(b) Agency foreclosure of the
Council's opportunity to comment.
Where an agency official has failed to
complete the requirements of section
100 in accordance with the procedures
in this part prior to the approval of an
undertaking, the Council's opportunity
to comment may be foreclosed. The
Council may review a case to determine
whether a foreclosure has occurred
The Council shall notify the agency
official and the agency's Federal
preservation officer and allow 30 days
for the agency official to provide
information as to whether foreclosure
has occurred. If the Council determines
foreclosure has occurred, the Council
shall transmit the determination to the
agency official and the head of the
agency. The Council shall also make the
determination available to the public
and any parties known to he interested
in the undertaking and its effects upon
historic properties
(c) Intentional adverse effects bv
applicants.
(1) Agency responsibility. Section
110(k) of the act prohibits a Federal
agency from granting a loan, loan
guarantee, permit, license or other
assistance to an applicant who. with
intent to avoid the requirements of
section 10G, has intentionally
significantly adversely affected a
historic property to which the grant
would relate, or having legal power to
prevent it. has allowed such significant
adverse effect to occur, unless the
agency, after consultation with the
Council, determines that circumstances
justify granting such assistance despite
the adverse effect created or permitted
by the applicant. Guidance issued by
the Secretary pursuant to section 1 10 of
the act governs its implementation.
(2) Consultation ivith the Council.
When an agency official determines,
based on the actions of an applicant,
that section 110(k) is applicable and that
circumstances may justify granting the
assistance, the agency official shall
notify the Council and provide
documentation specifying the
circumstances under which the adverse
effects to the historic property occurred
and the degree of damage to the
integrity of the property. This
documentation shall include any views
obtained from the applicant,
SHPO/THPO, an Indian tribe if the
undertaking occurs on or affects historic
properties oil tribal lands, and other
parties known to be interested in the
u ndertaking.
(i) Within thirty days of receiving
the agency official's notification, unless
otherwise agreed to by the agency
official, the Council shall provide the
agency official with its opinion as to
whether circumstances justify granting
assistance to the applicant and any
possible mitigation of the adverse
effects.
(ii) The agency official shall
consider the Council's opinion in
making a decision on whether to grant
assistance to the applicant, and shall
notify the Council, the SHPO/THPO.
and other parties known to be interested
in the undertaking prior to granting the
assisla nee
(3) Compliance with Section 106 If
an agency official, after consulting with
the Council, determines to grant the
assistance, the agency official shall
comply with §§ 800.3 through 800 6 to
take into account the effects of the
undertaking on any historic properties
(d) Evaluation of Section 106
operations. The Council may evaluate
the operation of the section 10G process
by periodic reviews of how participants
have fulfilled their legal responsibilities
and how effectively the outcomes
reached advance the purposes of the act.
(1) Information from participants
Section 203 of the act authorizes the
Council to obtain information from
Federal agencies necessary to conduct
evaluation of the section 106 process.
The agency official shall make
documentation of agency policies,
operating procedures and actions taken
to comply with section 10G available to
the Council upon request. The Council
may request available information and
documentation from other participants
in the section 106 process
(2) Improving the operation of section
106 Based upon any evaluation of the
section 106 process, the Council may
make recommendations to participants,
the heads of Federal agencies, and the
Secretary of actions to improve the
efficiency and effectiveness of the
process Where the Council determines
that an agency official or a SHPO/THPO
has failed to properly carry out the
responsibilities assigned under the
process in this jxirt. the Council may
participate in individual case reviews
conducted under such process in
addition to the SHPO/THPO for such
period that it determines is necessary to
improve performance or correct
deficiencies If the Council finds a
pattern of failure by a Federal agency in
carrying out its responsibilities under
section 106. the Council may review the
policies and programs of the agency
related to historic preservation pursuant
to section 202(a)(G) of the act and
recommend methods to improve the
effectiveness, coordination, and
consistency of those policies and
programs with section 106.
§ 800.10 Special requirements for
protecting National Historic
Landmarks.
(a) Statutoiy requirement. Section
110(f) of the act requires that the agency
official, to the maximum extent
possible, undertake such planning and
actions as may be necessary to minimize
harm to any National Historic Landmark
that may be directly and adversely
affected by an undertaking. When
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commenting on such undertakings, the
Council shall use the process set forth in
§§ 800.6 through 800.7 and give special
consideration to protecting National
Historic Landmarks as specified in this
section.
(b) Resolution of adverse effects. The
agency official shall request the Council
to participate in any consultation to
resolve adverse effects on National
Historic Landmarks conducted under §
800 6.
(c) Involvement of the Secretary The
agency official shall notify the Secretary
of any consultation involving a National
Historic Landmark and invite the
Secretary to participate in the
consultation where there may be an
adverse effect. The Council may request
a report from the Secretary under
section 213 of the act to assist in the
consultation.
(d) Report of outcome. When the
Council participates in consultation
under this section, it shall report the
outcome of the section 106 process,
providing its written comments or any
memoranda of agreement to which it is
a signatory, to the Secretary and the
head of the agency responsible for the
undertaking.
§ 800.11 Documentation standards.
(a) Adequacy of documentation. The
agency official shall ensure that a
determination, finding, or agreement
under the procedures in this subpart is
supported by sufficient documentation
to enable any reviewing parties to
understand its basis. The agency
official shall provide such
documentation to the extent permitted
by law and within available funds.
When an agency official is conducting
phased identification or evaluation
under this subpart, the documentation
standards regarding description of
historic properties may be applied
flexibly. If the Council, or the
SHPO/THPO when the Council is not
involved, determines the applicable
documentation standards are not met,
the Council or the SHPO/THPO, as
appropriate, shall notify the agency
official and specify the information
needed to meet the standard. At the
request of the agency official or any of
the consulting parties, the Council shall
review any disputes over whether
documentation standards are met and
provide its views to the agency official
and the consulting parties.
(b) Format The agency official may
use documentation prepared to comply
with other laws to fulfill I he
requirements of the procedures in this
subpart, if that documentation meets the
standards of this section.
(c) Confidentiality.
(1) Authority to withhold information.
Section 304 of the act provides that the
head of a Federal agency or other public
official receiving grant assistance
pursuant to the act, after consultation
with the Secretary, shall withhold from
public disclosure information about the
location, character, or ownership of a
historic property when disclosure may
cause a significant invasion of privacy,
risk harm to the historic property, or
impede the use of a traditional religious
sile by practitioners. When the head of
a Federal agency or other public official
has determined that information should
be withheld from the public pursuant to
these criteria, the Secretary, in
consultation with such Federal agency
head or official, shall determine who
may have access to the information for
the purposes of carrying out the act.
(2) Consultation with the Council.
When the information in question has
been developed in the course of an
agency's compliance with this part, the
Secretary shall consult with the Council
in reaching determinations on the
withholding and release of information
The Federal agency shall provide the
Council with available information,
including views of the SHPO/THPO.
Indian tribes and Native Hawaiian
organizations, related to the
confidentiality concern. The Council
shall advise the Secretary and the
Federal agency within 30 days of receipt
of adequate documentation.
(3) Other authorities affecting
confidentiality Other Federal laws and
program requirements may limit public
access to information concerning an
undertaking and its effects on historic
properties. Where applicable, those
authorities shall govern public access to
information developed in the section
106 process and may authorize the
agency official to protect the privacy of
noil-govern mental applicants.
(d) Finding of no historic properties
affected. Documentation shall include-
(1) A description of the undertaking,
specifying the Federal involvement, and
its area of potential effects, including
photographs, maps, drawings, as
necessary;
(2) A description of the steps taken
to identify historic properties,
including, as appropriate, efforts to seek
information pursuant to § 800 4(b), and
(3) The basis for determining that no
historic properties are present or
affected.
(e) Finding of no adverse effect or
adverse effect. Documentation shall
include-
(1) A description of the undertaking,
specifying the Federal involvement, and
its area of potential effects, including
photographs, maps, and drawings, as
necessary;
(2) A description of the steps taken
to identify historic properties;
(3) A description of the affected
historic properties, including
information on the characteristics that
qualify them for the National Register;
(4) A description of the
undertaking's effects on historic
p roperties,
(5) An explanation of why the
criteria of adverse effect were found
applicable or inapplicable, including
any conditions or future actions to
avoid, minimize or mitigate adverse
effects; and
(6) Copies or summaries of any
views provided by consulting parlies
and the public.
(f) Memorandum of agreement.
When a memorandum of agreement is
filed with the Council, the
documentation shall include, any
substantive revisions or additions to the
documentation provided the Council
pursuant to § 800 6(a)(1), an evaluation
of any measures considered to avoid or
minimize the undertaking's adverse
effects and a summary of the views of
consulting parties and the public
(g) Requests for comment without a
memorandum of agreement
Documentation shall include.
(1) A description and evaluation of
any alternatives or mitigation measures
that the agency official proposes to
resolve the undertaking's adverse
effects,
(2) A description of any reasonable
alternatives or mitigation measures that
were considered but not chosen, and the
reasons for their rejection,
(3) Copies or summaries of any
views submitted to the agency official
concerning the adverse effects of the
undertaking on historic properties and
alternatives to reduce or avoid those
effects; and
(4) Any substantive revisions or
additions to the documentation
provided the Council pursuant to §
800.6(a)(1).
§ 800.12 Emergency situations.
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12
(;i) Agency procedures. The agency
official, in consultation wilh the
appropriate SHPOs/THPOs, affected
Indian tribes and Native Hawaiian
organizations, and the Council, is
encouraged to develop procedures for
taking historic properties into account
during operations which respond to a
disaster or emergency declared by the
President, a tribal government, or the
Governor of a Stale or which respond to
other immediate threats to life or
property. If approved by the Council,
the procedures shall govern the agency's
historic preservation responsibilities
during any disaster or emergency in lieu
of §§ 800 3 through 800.6.
(b) Alternatives to agency procedures
In the event an agency official proposes
an emergency undertaking as an
essential and immediate response to a
disaster or emergency declared by the
President, a tribal government, or the
Governor of a State or another
immediate threat to life or property, and
the agency has not developed
procedures pursuant to paragraph (a) of
this section, the agency official may
comply wilh section 10G by.
(1) Following a programmatic
agreement developed pursuant to §
800.14(b) that contains specific
provisions for dealing wilh historic
properties in emergency situations; or
(2) Notifying the Council, the
appropriate SHPO/THPO and any
Indian tribe or Native Hawaiian
organization that may altach religious
and cultural significance to historic
properties likely to bo affected prior to
the undertaking and affording Ihem an
opportunity to comment within seven
days of notification If the agency
official determines that circumstances
do not permit seven days for comment,
the agency official shall notify the
Council, the SHPO/THPO and I he
Indian tribe or Native Hawaiian
organization and invite any comments
within the time available.
(c) Local governments responsible for
section 106 compliance. When a local
government official serves as the agency
official for section 10C compliance,
paragraphs (a) and (h) of this section
also apply to an imminent threat to
public health or safety as a result of a
natural disaster or emergency declared
by a local government's chief executive
officer or legislative body, provided that
if the Council or SHPO/THPO objects to
the proposed action within seven days,
the agency official shall comply with §§
800 3 through 800 G
(d) Applicability. This section
applies only lo undertakings that will be
implemented within 30 days after the
disaster or emergency has been formally
declared by the appropriate authority
An agency may request an extension of
the period of applicability from the
Council prior to the expiration of the 30
days. Immediate rescue and salvage
operations conducted to preserve life or
property are exempt from the provisions
of section 10G and this part
§ 800.13 Post-review discoveries.
(a) Planning foi subsequent
discoveries
(1) Using a programmatic agreement
An agency official may develop a
programmatic agreement pursuant to §
800 1 -4(b) to govern the actions to be
taken when historic properties are
discovered during the implementation
of an undertaking
(2) Using agreement documents.
When the agency official's identification
efforts in accordance with § 800 4
indicate that historic properties are
likely to be discovered during
implementation of an undertaking and
no programmatic agreement has been
developed pursuant to paragraph (a)(1)
of this section, the agency official shall
include in any finding of no adverse
effect or memorandum of agreement a
process to resolve any adverse effects
upon such properties. Actions in
conformance with the process satisfy
the agency official's responsibilities
under section 106 and this part
(b) Discoveries without prior
planning. If historic properties are
discovered or unanticipated effects on
historic properties found after I he
agency official has completed the
section 106 process without establishing
a process under paragraph (a) of this
section, the agency official shall make
reasonable efforts to avoid, minimize or
mitigate adverse effects to such
properties and.
(1) If the agency official has not
approved the undertaking or if
construction on an approved
undertaking has not commenced,
consult to resolve adverse effects
pursuant lo § 800.6, or
(2) If the agency official, the
SHPO/THPO and any Indian tribe or
Native Hawaiian organization that might
altach religious and cultural
significance lo Ihe affected properly
agree thai such property is of value
solely for ils scientific, prehistoric,
historic or archeological data, the
agency official may comply with the
Archeological and Historic Preservation
Act instead of the procedures in this
part and provide the Council, the
SHPO/THPO. and the Indian tribe or
Native Hawaiian organization with a
report on the actions within a
reasonable time after they are
completed; or
(3) If the agency official has
approved the undertaking and
construction has commenced, determine
actions that the agency official can take
lo resolve adverse effects, and notify Ihe
SHPO/THPO. any Indian tribe or Native
Hawaiian organization that might altach
religious and cultural significance to the
affected property, and the Council
within 48 hours of the discovery. The
notification shall describe Ihe agency
official's assessment of National Register
eligibility of the properly and proposed
actions to resolve the adverse effects.
The SHPO/THPO, the Indian tribe or
Native Hawaiian organization and the
Council shall respond within 48 hours
of Ihe notification. The agency official
shall take into account I heir
recommendations regarding National
Register eligibility and proposed
actions, and then carry out appropriate
actions The agency official shall
provide the SHPO/THPO, the Indian
tribe or Native Hawaiian organization
and the Council a report of the actions
when they are completed,
(c) Eligibility of properties. The
agency official, in consultation with Ihe
SHPO/THPO. may assume a newly-
discovered property to be eligible for Ihe
National Register for purposes of section
10G The agency official shall specify
the National Register criteria used to
assume Ihe property's eligibility so that
information can be used in Ihe
resolution of adverse effects
(d) Discoveries on tribal lands. If
historic properties are discovered on
tribal lands, or there are unanticipated
effects on historic properties found on
tribal lands, after Ihe agency official has
completed the section 106 process
without establishing a process under
paragraph (a) of this section and
construction has commenced, the
agency official shall comply with
applicable tribal regulations and
procedures and obtain Ihe concurrence
of the Indian tribe on the proposed
action
Subpart C-Program Alternatives
§ 800.14 Federal agency program
alternatives.
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13
(a) Alternate procedures An agency
official may develop procedures to
implement section 106 and substitute
them for all or part of subpart B of this
part if they are consistent with the
Council's regulations pursuant to
seclion 110(a)(2)(E) of the act.
(1) Development of procedures. The
agency official shall consult with the
Council, the National Conference of
State Historic Preservation Officers or
individual SHPO/THPOs, as
appropriate, and Indian tribes and
Native Hawaiian organizations, as
specified in paragraph (f) of this section,
in the development of alternate
procedures, publish notice of the
availability of proposed alternate
procedures in the Federal Register and
lake other appropriate steps to seek
public input during the development of
alternate procedures.
(2) Council review. The agency
official shall submit the proposed
alternate procedures to the Council for a
60-day review period. If the Council
finds the procedures to be consistent
with this part, il shall notify the agency
official and the agency official may
adopt them as final alternate
procedures
(3) Notice The agency official shall
notify the parlies with which il has
consulted and publish notice of final
alternate procedures in the Federal
Register
(4) Legal effect Alternate
procedures adopted pursuant to this
subpart substitute for the Council's
regulations for the purposes of the
agency's compliance with seclion 106,
except that where an Indian Iribe has
entered into an agreement with the
Council lo substitute tribal historic
preservation regulations for the
Council's regulations under seclion
101(d)(5) of the act, the agency shall
follow those regulations in lieu of the
agency's procedures regarding
undertakings on tribal lands. Prior lo
the Council entering into such
agreements, the Council will provide
Federal agencies notice and opportunity
to comment on the proposed substitute
tribal regulations
(b) Programmatic agreements. The
Council and the agency official may
negotiate a programmatic agreement lo
govern the implementation of a
particular program or the resolution of
adverse effects from certain complex
project situations or multiple
undertakings.
(1) Use of programmatic agreements
A programmatic agreement may be
used1
(1) When effects on historic
properties are similar and repetitive or
are multi-State or regional in scope;
(11) When effects on historic
properties cannot be fully determined
prior to approval of an undertaking;
(iii) When nonfederal parties are
delegated major decisionmaking
responsibilities:
(iv) Where routine management
activities are undertaken at Federal
installations, facilities, or other land-
management units, or
(v) Where other circumstances
warrant a departure from the normal
section 106 process.
(2) Developing programmatic
agreements for agency programs.
(l) The consultation shall involve, as
appropriate, SHPO/THPOs, the National
Conference of Slate Historic
Preservation Officers (NCSHPO), Indian
tribes and Native Hawaiian
organizations, other Federal agencies,
and members of the public If the
programmatic agreement has the
potential to affect historic properties on
tribal lands or historic properties of
religious and cultural significance to an
Indian tribe or Native Hawaiian
organization, the agency official shall
also follow paragraph (f) of this section.
(n) Public Participation The agency
official shall arrange for public
participation appropriate lo the subject
matter and the scope of the program and
in accordance with subpart A of this
pari The agency official shall consider
the nature of the program and its likely
effects on historic properties and lake
steps lo involve the individuals,
organizations and entities likely to be
interested
(in) Effect. The programmatic
agreement shall take effect when
executed by the Council, the agency
official and the appropriate
SHPOs/THPOs when the programmatic
agreement concerns a specific region or
the president of NCSHPO when
NCSHPO has participated in the
consultation. A programmatic
agreement shall take effect on tribal
lands only when the THPO, Indian
tribe or a designated representative of
the tribe is a signatory to the agreement.
Compliance with the procedures
established by an approved
programmatic agreement satisfies the
agency's section 106 responsibilities for
all individual undertakings of the
program covered by the agreement until
it expires or is terminated by the agency,
the president of NCSHPO when a
signatory, or the Council. Termination
by an individual SHPO/THPO shall only
terminate the application of a regional
programmatic agreement within the
jurisdiction of the SHPO/THPO. If a
THPO assumes the responsibilities of a
SHPO pursuant to section 101(d)(2) of
the act and the SHPO is signatory to
programmatic agreement, the THPO
assumes the role of a signatory,
including the right to terminate a
regional programmatic agreement on
lands under the jurisdiction of the tribe.
(iv) Notice. The agency official shall
notify the parties with which it has
consulted that a programmatic
agreement has been executed under
paragraph (b) of this section, provide
appropriate public notice before it takes
effect, and make any internal agency
procedures implementing the agreement
readily available to the Council,
SHPO/THPOs, and the public.
(v) If the Council determines that
the terms of a programmatic agreement
are not being carried out, or if such an
agreement is terminated, the agency
official shall comply with subpart B of
this part with regard to individual
undertakings of the program covered by
the agreement.
(3) Developing programmatic
agreements for complex or multiple
undertakings. Consultation to develop a
programmatic agreement for dealing
with the potential adverse effects of
complex projects or multiple
undertakings shall follow § 800.6. If
consultation pertains to an activity
involving multiple undertakings and the
parties fail to reach agreement, then the
agency official shall comply with the
provisions of subpart B of this part for
each individual undertaking.
(4) Prototype programmatic
agreements. The Council may designate
an agreement document as a prototype
programmatic agreement that may be
used for the same type of program or
undertaking in more than one case or
area. When an agency official uses such
a prototype programmatic agreement,
the agency official may develop and
execute the agreement with the
appropriate SHPO/THPO and the
agreement shall become final without
need for Council participation in
consultation or Council signature
(c) Exempted categories.
(1) Criteria for establishing. The
Council or an agency official may
propose a program or category of
undertakings that may be exempted
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14
from review under the provisions of
subpart B of this part, if the program or
category meets the following criteria'
(1) The actions within the program
or category would otherwise qualify as
"undertakings" as defined in § 800.16;
(ii) The potential effects of the
undertakings within the program or
category upon historic properties are
foreseeable and likely to be minimal or
not adverse, and
(iii) Exemption of the program or
category is consistent with the purposes
of the act
(2) Public participation. The
proponent of the exemption shall
arrange for public participation
appropriate to the subject matter and
the scope of the exemption and in
accordance with the standards in
subpart A of this part. The proponent of
the exemption shall consider the nature
of the exemption and its likely effects on
historic properties and take steps to
involve individuals, organizations and
entities likely to be interested.
(3) Consultation with SHPOs/THPOs.
The proponent of the exemption shall
notify and consider the views of the
SHPOs/THPOs on the exemption.
(4) Consultation with Indian tribes
and Native Hawaiian organizations If
the exempted program or category of
undertakings has the potential to affect
historic properties on tribal lands or
historic properties of religious and
cultural significance to an Indian tribe
or Native Hawaiian organization, the
Council shall follow the requirements
for the agency official set forth in
paragraph (f) of this section.
(5) Council review of proposed
exemptions The Council shall review an
exemption proposal that is supported by
documentation describing the program
or category for which the exemption is
sought, demonstrating that the criteria
of paragraph (c)(1) of this section have
been met. describing the methods used
to seek the views of the public, and
summarizing any views submitted by
the SHPO/THPOs, the public, and any
others consulted. Unless it requests
further information, the Council shall
approve or reject the proposed
exemption within 30 days of receipt,
and thereafter notify the relevant agency
official and SHPO/THPOs of the
decision. The decision shall be based on
the consistency of the exemption with
the purposes of the act. taking into
consideration the magnitude of the
exempted undertaking or program and
the likelihood of impairment of historic
properties in accordance with section
214 of the act.
(0) Legal consequences. Any
undertaking that falls within an
approved exempted program or category
shall require no further review pursuant
to subpart B of this part, unless the
agency official or the Council
determines that there are circumstances
under which the normally excluded
undertaking should be reviewed under
subpart B of this part
(7) Termination. The Council may
terminate an exemption at the request of
the agency official or when the Council
determines that the exemption no longer
meets the criteria of paragraph (c)(1) of
this section. The Council shall notify
the agency official 30 days before
termination becomes effective.
(8) Notice The proponent of the
exemption shall publish notice of any
approved exemption in the Federal
Register
(d) Standard treatments
(1) Establishment. The Council, on
its own initiative or at the request of
another party, may establish standard
methods for the treatment of a category
of historic properties, a category of
undertakings, or a category of effects on
historic properties to assist Federal
agencies in satisfying the requirements
of subpart B of this part. The Council
shall publish notice of standard
treatments in the Federal Register.
(2) Public participation. The
Council shall arrange for public
participation appropriate to the subject
matter and the scope of the standard
treatment and consistent with subpart A
of this part. The Council shall consider
the nature of the standard treatment and
its likely effects on historic properties
and the individuals, organizations and
entities likely to be interested Where
an agency official has proposed a
standard treatment, the Council may
request the agency official to arrange for
public involvement.
(3) Consultation with SHPOs/THPOs
The Council shall notify and consider
the views of SHPOs/THPOs on the
proposed standard treatment
(4) Consultation with Indian tribes
and Native Hawaiian organizations. If
the proposed standard Lreatment has the
potential to affect historic properties on
tribal lands or historic properties of
religious and cultural significance to an
Indian tribe or Native Hawaiian
organization, the Council shall follow
the requirements for the agency official
set forth in paragraph (f) of this section.
(5) Termination The Council may
terminate a standard treatment by
publication of a notice in the Federal
Register 30 days before the termination
takes effect.
(e) Program comments. An agency
official may request the Council to
comment on a category of undertakings
in lieu of conducting individual reviews
under §§ 800 4 through 800.G The
Council may provide program
comments at its own initiative.
(1) Agency request. The agency
official shall identify the category of
undertakings, specify the likely effects
on historic properties, specify the steps
the agency official will take to ensure
that the effects are taken into account,
identify the lime period for which the
comment is requested and summarize
any views submitted by the public
(2) Public participation. The agency
official shall arrange for public
participation appropriate to the subject
matter and the scope of the category and
in accordance with the standards in
subpart A of this part. The agency
official shall consider the nature of the
undertakings and their likely effects on
historic properties and the individuals,
organizations and entities likely to be
interested.
(3) Consultation with SHPOs/THPOs.
The Council shall notify and consider
the views of SHPOs/THPOs on the
proposed program comment.
(4) Consultation with Indian tribes
and Native Hawaiian organizations. If
the program comment has the potential
to affect historic properties on tribal
lands or historic properties of religious
and cultural significance to an Indian
tribe or Native Hawaiian organization,
the Council shall follow the
requirements for the agency official set
forth in paragraph (f) of this section.
(5) Council action. Unless the
Council requests additional
documentation, notifies the agency
official that it will decline to comment,
or obtains the consent of the agency
official to extend the period for
providing comment, the Council shall
comment to the agency official within
45 days of the request.
(i) If the Council comments, the
agency official shall take into account
the comments of the Council in carrying
out the undertakings within the
category and publish notice in the
Federal Register of the Council's
comments and steps the agency will
take to ensure that effects to historic
properties are taken into account.
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15
(ii) If the Council declines lo
comment, the agency official shall
continue to comply with the
requirements of §§ 800.3 through 800.6
for the individual undertakings.
(6) Withdrawal of comment. If the
Council determines that the
consideration of historic properties is
not being carried out in a manner
consistent with the program comment,
the Council may withdraw the comment
and the agency official shall comply
with the requirements of §§ 800.3
through 800.6 for the individual
undertakings
(f) Consultation with Indian tribes
and Native Hawaiian organizations
when developing program alternatives.
Whenever an agency official proposes a
program alternative pursuant lo
paragraphs (a) through (e) of this
section, the agency official shall ensure
that development of the program
alternative includes appropriate
government-to-government consultation
with affected Indian tribes and
consultation with affected Native
Hawaiian organizations
(1) klentif\'ing affected Indian tribes
and Native Hawaiian organizations. If
any undertaking covered by a proposed
program alternative has the potential lo
affect historic properties on tribal lands,
the agency official shall identify and
consult with the Indian tribes having
jurisdiction over such lands. If a
proposed program alternative has the
potential lo affect historic properties of
religious and cultural significance to an
Indian tribe or a Native Hawaiian
organization which are located off tribal
lands, the agency official shall identify
those Indian tribes and Native Hawaiian
organizations that might attach religious
and cultural significance to such
properties and consult with them.
When a proposed program alternative
has nationwide applicability, Ihe agency
official shall identify an appropriate
government to government consultation
with Indian tribes and consult with
Native Hawaiian organizations in
accordance with existing Executive
orders, Presidential memoranda and
applicable provisions of law.
(2) Results of consultation The
agency official shall provide summaries
of the views, along with copies of any
written comments, provided by affected
Indian tribes and Native Hawaiian
organizations to the Council as part of
the documentation for the proposed
program alternative. The agency official
and the Council shall take those views
into account in reaching a final decision
on Ihe proposed program alternative.
§ 800.15 Tribal, Stale, and local
program alternatives. (Reserved)
§ 800.16 Definitions.
(a) Act means the National Historic
Preservation Act of 1966. as amended,
1G U S C. 470-470w-6.
(b) Agency means agency as defined
in 5 U.S.C. 551.
(c) Approval of the expenditure of
funds means any final agency decision
authorizing or permitting the
expenditure of Federal funds or
financial assistance on an undertaking,
including any agency decision that may
be subject lo an administrative appeal
(d) Area of potential effects means
the geographic area or areas within
which an undertaking may directly or
indirectly cause alterations in the
character or use of historic properties, if
any such properties exist. The area of
potential effects is influenced by the
scale and nature of an undertaking and
may be different for different kinds of
effects caused by the undertaking
(e) Comment means Ihe findings and
recommendations of the Council
formally provided in writing to the head
of a Federal agency under section 106.
(f) Consultation means the process of
seeking, discussing, and considering the
views of other participants, and, where
feasible, seeking agreement with them
regarding matters arising in the section
106 process. The Secretary's "Standards
and Guidelines for Federal Agency
Preservation Programs pursuant lo the
National Historic Preservation Act"
provide further guidance on
consultation
(g) Council means the Advisory
Council on Historic Preservation or a
Council member or employee
designated to act for the Council.
(h) Day or days means calendar
days.
(i) Effect means alteration to Ihe
characteristics of a historic property
qualifying it for inclusion in or
eligibility for the National Register
(j) Foreclosure means an action
taken by an agency oflicial that
effectively precludes the Council from
providing comments which the agency
official can meaningfully consider prior
to the approval of the undertaking.
(k) Head of the agency means Ihe
chief official of the Federal agency
responsible for all aspects of the
agency's actions. If a Stale, local or
tribal government has assumed or has
been delegated responsibility for section
106 compliance, the head of that unit of
government shall be considered the
head of the agency.
(1)(1) Historic property means any
prehistoric or historic district, site,
building, structure, or object included
in, or eligible for inclusion in, the
National Register of Historic Places
maintained by the Secretary of the
Interior. This term includes artifacts,
records, and remains that are related to
and located within such properties. The
term includes properties of traditional
religious and cultural importance to an
Indian tribe or Native Hawaiian
organization and that meet the National
Register criteria.
(2) The term eligible for inclusion in
the National Register includes both
properties formally determined as such
in accordance with regulations of the
Secretary of the Interior and all other
properties that meet the National
Register criteria
(m) Indian tribe means an Indian
tribe, band, nation, or other organized
group or community, including a native
village, regional corporation or village
corporation, as those terms are defined
in section 3 of the Alaska Native Claims
Settlement Act (43 U S.C 1602), which
is recognized as eligible for the special
programs and services provided by the
United Slates to Indians because of their
status as Indians.
(n) Local government means a city,
county, parish, township, municipality,
borough, or other general purpose
political subdivision of a Stale
(o) Memorandum of agreement
means the document that records the
terms and conditions agreed upon lo
resolve the adverse effects of an
undertaking upon historic properties.
(p) National Historic Landmark
means a historic property that the
Secretary of the Interior has designated
a National Historic Landmark.
(q) National Hcgisler means the
National Register of Historic Places
maintained by the Secretary of Ihe
Interior.
(r) National Register criteria means
the criteria established by the Secretary
of the Interior for use in evaluating the
eligibility of properties for the National
Register (36 CFK part 60).
(s)(1)/Vaf/i'c Hawaiian organization
means any organization which serves
and represents Ihe interests of Native
Hawanans; has as a primary and staled
purpose the provision of services lo
Native Hawanans; and has
demonstrated expertise in aspects of
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16
historic preservation that are significant
to Native Hawaiians.
(2) Native Hawaiian means any
individual who is a descendant of the
aboriginal people who, prior to 1778,
occupied and exercised sovereignly in
the area that now constitutes the State
of Hawaii.
(t) Programmatic agreement means a
document that records the terms and
conditions agreed upon to resolve the
potential adverse effects of a Federal
agency program, complex undertaking
or other situations in accordance with §
800 14(b)
(u) Secretary' means the Secretary of
the Interior acting through the Director
of the National Park Service except
where otherwise specified
(v) State Historic Preservation Officer
(SHPOj means the official appointed or
designated pursuant to section 101(b)(1)
of the act to administer the State
historic preservation program or a
representative designated to act for the
Slate historic preservation officer.
(w) Tribal Historic Prcsen'ahon
Officer (THPO)means the tribal official
appointed by the tribe's chief governing
authority or designated by a tribal
ordinance or preservation program who
has assumed the responsibilities of the
SHPO for purposes of section 106
compliance on tribal lands in
accordance with section 101(d)(2) of the
act.
(x) Tribal lands means all lands
within the exterior boundaries of any
Indian reservation and all dependent
Indian communities
(y) Undertaking means a project,
activity, or program funded in whole or
in part under the direct or indirect
jurisdiction of a Federal agency,
including those carried out by or on
behalf of a Federal agency, those carried
out with Federal financial assistance:
and those requiring a Federal permit,
license or approval.
(z) Senior policy official means the
senior policy level official designated by
the head of the agency pursuant to
section 3(e) of Executive Order 13287.
Appendix A to Pari 800 -- Criteria for
Council Involvement in Reviewing
Individual section 106 Cases
(a) Introduction. This appendix sets
forth the criteria that will be used by the
Council to determine whether to enter
an individual section 10G review that it
normally would not be involved in.
(b) General policy. The Council may
choose to exercise its authorities under
the section 106 regulations to
participate in an individual project
pursuant to the following criteria.
However, the Council will not always
elect to participate even though one or
more of the criteria may be met
(c) Specific criteria The Council is
likely to enter the section 106 process at
the steps specified in the regulations in
this part when an undertaking:
(1) Has substantial impacts on
important historic properties. This may
include adverse effects on properties
that possess a national level of
significance or on properties that are of
unusual or noteworthy importance or
are a rare property type: or adverse
effects to large numbers of historic
properties, such as impacts to multiple
properties within a historic district.
(2) Presents important questions of
policy or interpretation. This may
include questions about how the
Council's regulations are being applied
or interpreted, including possible
foreclosure or anticipatory demolition
situations, situations where the outcome
will set a precedent affecting Council
policies or program goals: or the
development of programmatic
agreements that alter the way the
section 106 process is applied to a group
or type of undertakings
(3) Has the potential for presenting
procedural problems This may include
cases with substantial public
controversy that is related to historic
preservation issues: with disputes
among or about consulting parties
which the Council's involvement could
help resolve, that are involved or likely
to be involved in litigation on the basis
of section 106: or carried out by a
Federal agency, in a State or locality, or
on tribal lands where the Council has
previously identified problems with
section 106 compliance pursuant to §
800 9(d)(2)
(4) Presents issues of concern to
Indian tribes or Native Hawaiian
organizations. This may include cases
where there have been concerns raised
about the identification of, evaluation of
or assessment of effects on historic
properties to which an Indian tribe or
Native Hawaiian organization attaches
religious and cultural significance,
where an Indian tribe or Native
Hawaiian organization has requested
Council involvement to assist in the
resolution of adverse effects: or where
there are questions relating to policy,
interpretation or precedent under
section 106 or its relation to other
authorities, such as the Native American
Graves Protection and Repatriation Act
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ATTACHMENT 4
PROFESSIONAL
QUALIFICATION
STANDARDS
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NATIONAL PARK SERVICE PROFESSIONAL QUALIFICATION STANDARDS
The National Park Service published these Professional Qualification Standards as part of the
larger Secretary of the Interior's Standards and Guidelines for Archeology and Historic
Preservation. These requirements are those used by the National Park Service, as published in the
Code of Federal Regulations, 36 CFR Part 61.
The qualifications define minimum education and experience required to perform identification,
evaluation, registration, and treatment activities. In some cases, additional areas or levels of
expertise may be needed, depending on the complexity of the task and the nature of the historic
properties involved. In the following definitions, a year of full-time professional experience need
not consist of a continuous year of full-time work but may be made up of discontinuous periods
of full-time or part-time work adding up to the equivalent of a year of full-time experience.
History
The minimum professional qualifications in history are a graduate degree in history or closely
related field; or a bachelor's degree in history or closely related field plus one of the following:
1. At least two years of full-time experience in research, writing, teaching,
interpretation, or other demonstrable professional activity with an academic
institution, historical organization or agency, museum, or other professional
institution; or
2. Substantial contribution through research and publication to the body of scholarly
knowledge in the field of history.
Archeology
The minimum professional qualifications in archeology are a graduate degree in archeology,
anthropology, or closely related field plus:
1. At least one year of full-time professional experience or equivalent specialized
training in archeological research, administration or management;
2. At least four months of supervised field and analytic experience in general North
American archeology; and
3. Demonstrated ability to carry research to completion.
In addition to these minimum qualifications, a professional in prehistoric archeology shall have
at least one year of full-time professional experience at a supervisory level in the study of
archeological resources of the prehistoric period.
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A professional in historic archeology shall have at least one year of full-time professional
experience at a supervisory level in the study of archeological resources of the historic period.
Architectural History
The minimum professional qualifications in architectural history are a graduate degree in
architectural history, art history, historic preservation, or closely related field, with coursework in
American architectural history; or a bachelor's degree in architectural history, art history, historic
preservation or closely related field plus one of the following:
1. At least two years of full-time experience in research, writing, or teaching in
American architectural history or restoration architecture with an academic
institution, historical organization or agency, museum, or other professional
institution; or
2. Substantial contribution through research and publication to the body of scholarly
knowledge in the field of American architectural history.
Architecture
The minimum professional qualifications in architecture are a professional degree in architecture
plus at least two years of full-time experience in architecture; or a State license to practice
architecture.
Historic Architecture
The minimum professional qualifications in historic architecture are a professional degree in
architecture or a State license to practice architecture, plus one of the following:
1. At least one year of graduate study in architectural preservation, American
architectural history, preservation planning, or closely related field; or
2. At least one year of full-time professional experience on historic preservation
projects.
Such graduate study or experience shall include detailed investigations of historic structures,
preparation of historic structures research reports, and preparation of plans and specifications for
preservation projects.
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ATTACHMENT 5
SUGGESTIONS FOR
MOA WRITING
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SUGGESTIONS FOR MOA WRITING*
Since an MOA document binds its parties to do or refrain from specified actions, it is vital that the document be
clear, consistent, understandable, and subject to as little misinterpretation as possible. The following suggestions
are offered to help preparers of such documents avoid ambiguities that may cause problems in implementation.
Be sure to identify the undertaking clearly
The undertaking that is the subject of the agreement document should be clearly identified in the document, in a
manner consistent with the way the undertaking is identified in the supporting documentation submitted to the
Council. In an MOA, the undertaking is usually identified in the first "Whereas" clause, as shown in Figures 3 and
4 in Part V of this publication, "Standard Memorandum of Agreement Formats."
In a letter making an NAE determination, the undertaking is usually identified in the text of the letter with reference
to accompanying documentation. The identification is usually similar to the following text:
We have determined that our installation rehabilitation program, described in the enclosed Installation
Rehabilitation Program Plan dated March 29, 1992, will have no adverse effect....
Identify the responsible agency
Since the Federal agency responsible for the undertaking is also responsible for ensuring that the terms of the
agreement document are carried out, it is vital for that agency to be identified clearly in the document. Where an
agency's regional office or field office is the responsible party, and therefore signs the agreement document, this
should be clearly indicated. For example:
WHEREAS, the Rhode Island State Office of the Bureau of Land Management has determined ....
Assign duties only to signatory or concurring parties
An agreement document cannot impose obligations on parties that do not sign it. Therefore, if an agreement
document says that "Party X will carry out action Y," Party X must sign the document as a consulting or concurring
party. Where Party X is the applicant for or recipient of Federal assistance, permit, or license, and is not a
signatory, the agreement document must bind the Federal agency responsible for the assistance, permit, or license
to ensure that Party X carries out the duties assigned it. For example:
The Corps of Engineers will require the applicant to carry out the following:
Or
The Corps of Engineers will ensure that the following measures are carried out:
Beware the use of passive voice
An example of the use of passive voice is the statement: "Building X will be rehabilitated in accordance with the
Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings." The
statement gives no indication as to who will rehabilitate the building. It indicates only that somehow, mysteriously,
the building will be rehabilitated. No one is assigned responsibility, and the party who actually has responsibility
could, if so inclined, deny that such responsibility had legally been assigned to him or her.
There are two ways to remedy this problem. The first, naturally, is to use the active voice and say:
"Agency A will rehabilitate Building X in accordance with suchandso standards."
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The alternative is to specify that:
"Agency A will ensure that the following [conditions or stipulations] are carried out," and then say "Building X
will be rehabilitated . . .
The former approach is desirable when it is certain who will actually carry out the specified activity. The latter is
preferable when the party ultimately responsible for the activity is known, but the party who will actually do it—for
example, one of several applicants for Federal assistance or a contractor not yet selected-is not known.
Include all agreed-upon provisions
An agreement document should be comprehensive, including all the items agreed to by the parties involved in its
preparation, either in the text of the document or by reference. The fact that an agency has stated that it will do
something in a context other than the agreement document may be found later to have little force if the commitment
is not referenced in the document itself. For example, if an agency says in an Environmental Impact Statement that
it will take (or will not take) particular actions with respect to a historic property, this statement should be reiterated
or referenced in the relevant Section 106 agreement document.
Remember the "cold" reader
An agreement document should be clear to the "cold" (outside) reader. It should always be remembered that an
agreement document may be scrutinized by a court of law, and must be able to withstand such scrutiny. Each
sentence should be straightforward and to the point, and written in language that can be easily understood. If
specialized terms are used they should be defined. Terms that are meaningful only to the parties preparing the
agreement should be avoided or rephrased to be meaningful to others.
Identify shorthand references
The full name of each entity involved in an agreement document should be spelled out the first time the entity is
referred to, with the acronym or other shorthand referent (Council, SHPO, Bureau, etc.) placed in parentheses or
brackets immediately following the name. Thereafter the acronym or other shorthand can be used throughout the
document. For example:
The Bureau of Land Management (BLM) has consulted with the Rhode Island State Historic
Preservation Officer (SHPO)....
Structure the document logically
An agreement document should be organized in a clear, structured form. For example, if several historic properties
are being dealt with in different ways, the conditions or stipulations addressing each should be grouped together,
rather than scattered throughout the document. Similarly, if activities that have been agreed upon will occur in
sequence, that sequence should be reflected in the document. For example, if a building will be documented, then
moved, and then rehabilitated, a condition or stipulation providing for documentation should come before one for
moving, which should precede one for rehabilitation.
Identify properties clearly and completely
In the case of a PA, it is likely that the historic properties actually subject to effect will not be known, so they
cannot be identified in the document itself. In an NAE determination or MOA, however, the properties to which the
document refers should be clearly identified.
If the document does not cover all historic properties subject to effect by the undertaking, it should specify which
such properties are not covered. In the latter instance, documentation accompanying the agreement document
should specify why all historic properties are not covered, and how Section 106 has been or will be complied with
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in respect to those properties not covered by the document.
The properties to which an MOA applies are usually specified in the "Whereas" clauses. For example:
WHEREAS, Agency A has determined that its Installation Y rehabilitation project will
have an effect upon Building X ....
Properties are usually similarly specified in letters making determinations of NAE:
Agency A has determined that, subject to the following conditions, its Installation Y rehabilitation project
will have no adverse effect on Building X.
Where multiple properties are involved, the agreement document should make clear which conditions or stipulations
refer to which properties. For example:
Agency A will rehabilitate Building X in accordance with suchandso standards.
Or
Agency A will ensure that archeological site 53BB782 is excavated and reported in accordance with the
attached "Research Design for the Excavation of Archeological Site 53BB782" ....
In some cases an MOA may address both known historic properties and some that have not yet been identified. For
example, an MOA might address rehabilitation of a historic building, but also provide for monitoring ground
disturbance in the event a suspected but unverified archeological site existed under the building. Similarly, an
MOA covering a highway construction project might cover both identified historic properties subject to effect by
the construction itself, and not-yet fully identified properties in larger areas where the presence of the highway
would be likely to stimulate growth.
In such a case stipulations establishing a process for identifying and treating properties not yet fully identified
should be included. (For further discussion and examples of such stipulations see page IV-131, "Monitoring
disturbance of archeological sites"; "Archeological survey"; and "Archeological plan implementation." The fact
that unidentified historic properties might be affected should be acknowledged in the "Whereas" clauses, for
example:
WHEREAS, Agency A has determined that its Installation Y rehabilitation project will have an effect upon
Building X and possibly on other historic properties ....
Cover the whole undertaking
Each agreement document should cover all the effects of the subject undertaking on all historic properties, so that
compliance with Section 106 is unambiguously attained for the entire undertaking. Consulting parties should try to
avoid using multiple agreement documents for different aspects of the same undertaking, or for different types or
groups of properties affected by the same undertaking.
Provide complete citations
Plans, standards, and guidelines to be used in carrying out activities under an agreement should be clearly and
accurately identified in the agreement document, with full legal citations. For example:
Agency A will rehabilitate Building X in accordance with the "Plan for the Rehabilitation of Building X"
by Roger A. Rehab, dated March 29, 1993, and attached hereto as Appendix D.
Or
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Agency A will rehabilitate Building X in accordance with the recommended treatments in the Secretary of
the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings, U S.
Department of the Interior, National Park Service, 1983.
If an agency anticipates that a guideline to be cited may be revised before the agreement document is implemented,
and the agency wants the revised guideline to be followed, this can be stated in the following form:
Agency A will rehabilitate Building X in accordance with the recommended treatments in the Secretary of
the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings U.S.
Department of the Interior, National Park Service, 1983 (Standards and Guidelines), subject to any
pertinent revisions that the Secretary of the Interior may make in the Standards and Guidelines prior to
finalizalion of rehabilitation plans.
A similar form may be used if an agency refers to draft guidelines, but the agency anticipates that the guidelines
will become final before the agreement is implemented and desires that the final, rather than the draft, guidelines be
followed. For example:
Agency A will rehabilitate Building X in accordance with the Standards for Rehabilitating Historic X-Type
Buildings in the State of Rhode Island, Rhode Island SHPO, draft dated March 29, 1992 Standards for
Rehabilitation, subject to any pertinent revisions that the Rhode Island SHPO may make in the Standards
for Rehabilitation prior to finalization of rehabilitation plans.
Use consistent terminology
Decide at the outset what terms to use for things, and use them consistently throughout. For example, don't refer to
something as an "undertaking" in one paragraph and a "project" in another, or to the Bureau of Land Management
as the "Bureau" in one place and "BLM" in another, or to something as a "historic property" in one place and a
"historic site" in another.
Use terms that are consistent with statutory definitions where applicable
Where statutory definitions exist, their use is preferred. For example, "historic property" is defined at Section
301(5) of NHPA, and unless there is some very good reason to do otherwise, that definition should be used in
preference to such alternatives as "historic site" or "cultural resource."
Define terms
Unusual or specialized terms should be defined, as should terms that have a particular meaning with reference to
the undertaking covered by the agreement document. For example, if the document provides for something to be
done throughout an undertaking's area of potential effects [see 36 CFR (185) 800.2(c)], that area should be clearly
defined, with an appropriate map attached or referenced in the document. An optional "Whereas" clause may be
provided, which refers to appended definitions. Of course, if no terms are used that need to be defined, no such
appendix or clause need be included.
Think ahead
An agreement document is prospective: it describes actions that an agency agrees to perform in the future. No one
can anticipate everything that may happen in the course of an undertaking's future implementation, but the drafter
should think about possibilities and try to provide for them in the document. Especially if the undertaking will take
a long time to begin or complete, the agreement document should provide for periodic review and possible revision
in the event conditions changcbcfore the agreement is fully implemented. In the context of such an undertaking
changes are also likely in personnel, so it is particularly important that the agreement document be clear, complete,
and comprehensible to an unfamiliar reader who may have to implement or interpret it years after it was executed.
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Include all statutory authorities
One purpose of an agreement document is to show unambiguously that the Federal agency involved has met its
pertinent historic preservation responsibilities, in the event of litigation or other challenge. Accordingly, it is
important not to leave any relevant statutory authorities out of the agreement document. For example, if the
property involved is aNational Historic Landmark (NHL), the agreement document should make it plain that by
carrying out the agreement's terms, the agency is complying with Section 110(f) ofNHPA, as well as with Section
106. Similarly, if the agency proposes leasing or exchanging a historic property, or entering into a contract for its
management, the agreement document should refer to Section 111 ofNHPA as well as to Section 106.
* This document is excerpted from guidance material prepared by the Advisory Council on Historic
Preservation. The full text of ACHP's guidance document is available on-line at the following address:
http:// www. ac hp. go v/a greeme n t. html
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ATTACHMENT 6
EXAMPLE MEMORANDA
OF AGREEMENT
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EXAMPLE 6-A
ATLANTIC STEEL
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^ \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
i REGION 4
^^77 ? ATLANTA FEDERAL CENTER
^ 61 FORSYTH STREET
pbo^& ATLANTA, GEORGIA 30303-8960
PROGRAMMATIC AGREEMENT
AMONG
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
AND THE GEORGIA STATE HISTORIC PRESERVATION OFFICER
REGARDING IMPLEMENTATION OF THE
ATLANTIC STEEL REDEVELOPMENT PROJECT IN ATLANTA, GEORGIA
WHEREAS, the U.S. Environmental Protection Agency (EPA) is involved in the undertaking
known as the Atlantic Steel Redevelopment Project (hereafter Project), consisting of proposed
remediation and redevelopment of an approximately 138-acre former steel mill site currently
owned by Atlantic Steel Industries, Inc. in Atlanta, Georgia; the proposed redevelopment includes
high and mid-rise residential areas, retail areas, hotels, office space, and parking; project plans
include a new 17th Street Bridge that would cross Interstate 75/85 and other related road
improvements as shown in the conceptual development plan provided in Appendix A; and
WHEREAS, the EPA is preparing an Environmental Assessment (EA) for the Atlantic Steel
Redevelopment Project, in accordance with the National Environmental Policy Act of 1969
(NEPA); EPA is involved with this project through its Project XL Program, which stands for
"excellence and Leadership" and encourages companies and communities to come forward with
new approaches that have the potential to advance environmental goals more effectively and
efficiently than have been achieved using traditional regulatory tools (see Appendix A); and
WHEREAS, Atlantis 16th, L.L.C., a developer in Atlanta, is participating with EPA in its Project
XL and is the primary developer responsible for implementation of the redevelopment plan; and
WHEREAS, the EPA has the responsibility to ensure that the conditions of this Agreement will
be implemented; and
WHEREAS, the EPA has identified the former steel mill (hereafter Atlantic Steel) currently
occupied by Atlantic Steel Industries, Inc., as a property eligible for listing in the National
Register; and
WHEREAS, Atlantic Steel Industries, Inc., Atlantis 16th, L.L.C., the Georgia Department of
Natural Resources, Environmental Protection Division, and EPA have determined, after
consideration of avoidance and other minimization alternatives, that demolition of the former steel
mill is a necessary component of environmental remediation and redevelopment of the site; and
WHEREAS, the EPA has determined that demolition of buildings associated with the remediation
of Atlantic Steel constitutes an adverse effect on this historic property; however, until final project
plans are developed, primarily those related to off-site aspects of the redevelopment project, it is
Internet Address (URL) • http://www.epa.gov
Recycled/Recyclable • Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)
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not possible at this time to fully assess the affects to historic properties not contained within the
Atlantic Steel site, but within the area of potential effects; and
WHEREAS, the EPA has consulted with the Georgia State Historic Preservation Officer (SHPO)
and the Advisory Council on Historic Preservation (Council) pursuant to 36 CFR Part 800.14(b)
of the regulations implementing Section 106 of the NHPA; and
WHEREAS, the EPA has identified the Atlanta History Center (AHC) and the Atlanta Urban
Design Commission (AUDC) as potential consulting parties in accordance with 36 CFR
800.2(a)(4) which have been invited to concur in this Agreement; and
WHEREAS, the EPA has conducted public notification and public involvement about the Project,
including planned efforts to identify historic properties, through its Project XL and NEPA scoping
and environmental analysis process for the Project, as encouraged by 36 CFR 800.2(a)(4); and
WHEREAS, consultation revealed that Atlantic Steel Industries, Inc., has, over a period of
several years, taken several measures to preserve its heritage at various off-site locations (see
Appendix B), including: preservation of selected structures, machinery, and buildings by transfer
or sale to various museums, including the Atlanta History Center, The Railroad Museum in
Savannah, the Southeastern Railway Museum in Duluth, Georgia, and the Carter Machine
Company in Toccoa, Georgia; preservation of company documentary records, photographs,
engineering drawings, and other related documents through transfer to the Atlanta History Center
for storage and display; support of other interpretive efforts including two books documenting the
company's history and a professional photographic exhibit at Georgia Institute of Technology in
1999; plans for creation of a permanent exhibition space celebrating the company's history in the
redevelopment plan; and plans for the integration of selected tools and pieces of machinery in the
redevelopment plan (see Appendix B); and
WHEREAS, the agencies and organizations listed in Appendix C have been identified as
potentially interested parties and either have been contacted by the EPA as part of its scoping
process under NEPA or will be contacted shortly in accordance with 36 CFR 800.3(f) in order to
identify potential consulting parties and invite their participation in the Section 106 process;
specific coordination with Indian tribes and additional public involvement are discussed in the
Stipulations below; and
WHEREAS, for the purposes of this Agreement, the definitions found at 36 CFR 800.16 are
applicable; and
NOW, THEREFORE, the EPA, the SHPO, and the Council agree that the Project will be
implemented in accordance with the following stipulations:
Programmatic Agreement —Atlantic Steel Redevelopment Project — Page 2
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STIPULATIONS
The EPA will ensure that the following measures are carried out:
I. ADMINISTRATIVE STIPULATIONS
A. Professional Qualifications: All studies conducted under the terms of this
Agreement will be carried out or directly supervised by appropriately trained
persons who meet the Secretary of the Interior's Professional Qualification
Standards (48 Fed. Reg. 44738) for the particular field of study in which they are
working. Should the EPA hire new personnel for the purposes of implementing
the terms of this Agreement, the EPA shall forward copies of the professional
qualifications of such persons to the SHPO for its review. The SHPO shall
provide written comments within ten days.
B. The signing and concurring parties to this Agreement agree to perform their
respective obligations, including the execution and delivery of any documents or
approvals as may be necessary or appropriate, in a timely fashion consistent with
the terms and provisions of this Agreement.
Where a specific number of days is specified for review and comment and/or
approval, comments shall be provided in written form within the specified number
of days following receipt of the documents. Failure to respond within this time
frame will constitute concurrence on the part of the reviewing party.
II. TREATMENT OF HISTORIC PROPERTIES
A. Treatment of Atlantic Steel Site (On-Site Properties)
1. Photographic Recordation Plan
The EPA, in consultation with the SHPO, AHC, and AUDC staff, will
develop and implement a photographic recordation plan for Atlantic Steel
prior to demolition and site remediation activities. The plan shall include
large-format photographic recordation that will be performed by a
professional photographer experienced in performing Historic American
Building Survey (HABS)/Historic American Engineering Record (HAER)
photographic documentation to National Park Service standards. The
photographic recordation plan will be developed by the EPA and submitted
to the SHPO for review and approval, and to the AHC and AUDC staff for
review and comment. All reviewing parties shall provide written comments
or acceptance of the photographic recordation plan within ten days after
receipt. Demolition of any part of Atlantic Steel will not begin until the
Programmatic Agreement - Atlantic Steel Redevelopment Project — Page 3
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recordation plan has been approved by the SHPO. It is anticipated that the
recordation plan will include a phased approach of photographic
documentation to allow Atlantic Steel Industries, Inc. and Atlantis 16m,
L.L.C. to demolish certain buildings, while others are still being recorded
and documented. All photographic products for a specific building or
group of buildings will be presented to the SHPO for review and approval
prior to the demolition of such building or group of buildings. SHPO shall
provide comments or acceptance of the photographs within five days after
receipt.
2. Outreach and Public Education
The EPA and Atlantis 16th, L.L.C. shall ensure that information gathered in
accordance with stipulations contained in this Agreement and related to the
history of the Atlantic Steel site is used to produce public information
materials. EPA and Atlantis 16th, L.L.C., in consultation with the SHPO,
AHC, and AUDC staff, will develop and implement an outreach and public
education plan for the Atlantic Steel Redevelopment project. The plan will
focus on public education approaches that benefit preservation in a larger
context and the community as a whole. At a minimum, the following will
be considered:
- Development of oral history of Atlantic Steel site
- Development of a visitor's center/interpretive center as part of the
redevelopment plan
- Educational video and other publications documenting various aspects of
Atlantic Steel and/or its changes through history
- Reuse and/or relocation of either historic buildings, machinery, or steel
making products to be part of either on-site or off-site exhibits
- Publication of appropriate research material
B. Treatment of Other Historic Properties (Off-Site Properties) Identified During the
Section 106 Process
Any other historic properties, not located on the Atlantic Steel site, determined to
experience an adverse effect from the Project will be addressed in accordance with
36 CFR 800 and as stated below in Item III (Continuation of the Section 106
Process for the Project).
CONTINUATION OF THE SECTION 106 PROCESS FOR THE PROJECT
The EPA will comply with the requirements of 36 CFR 800 regarding public involvement,
identification of historic properties, effects assessment, and treatment of properties that
Programmatic Agreement — Atlantic Steel Redevelopment Project — Page 4
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may experience an adverse effect from the Project.
A. Historic Architectural Resources
"Historic architectural resources" include buildings, structures, objects, districts
and landscapes listed in, or eligible for listing in, the National Register of Historic
Places. The EPA will assess the potential for historic architectural resources
within the Project's area of potential effects in accordance with 36 CFR 800. This
will include on-site examination by a professional architectural historian meeting
the qualification standards contained in 36 CFR 61, Appendix A, review of existing
historic maps, previous historic investigations in the Project vicinity, and other
pertinent documentary data. The EPA shall submit to the SHPO and AUDC staff,
for review, and comment, an Identification/Effects Assessment Report for the
Project. The report will include discussions of: Description of the Undertaking;
Area of Potential Effect (APE); Efforts to Identify Historic Properties; Affected
Historic Properties; and Adverse Effects. All reviewing parties shall provide
written comments within ten days after receipt. The EPA shall consult with the
SHPO, the concurring parties, and any other consulting parties to develop
treatment strategies for historic architectural resources that will be adversely
affected by the Project. Resolution of any adverse effects will follow 36 CFR
800.6. EPA anticipates development of specific Memorandum of Understanding
(MOU) to document how the adverse effects will be resolved. The MOU will be
developed within the context of this Agreement and will serve as the instrument by
which all parties will agree to final resolution of any adverse effects.
B. Archeological Resources
"Archeological resources" include prehistoric or historic archeological resources
listed in, or eligible for listing in, the National Register of Historic Places. The
EPA will assess the potential for archeological resources within the Project's area
of physical disturbance in accordance with 36 CFR 800. This will include on-site
examination by a professional archeologist meeting the qualification standards
contained in 36 CFR 61, Appendix A and review of existing geophysical data,
historic maps, previous archeological investigations in the Project vicinity, and
other pertinent documentary data. Results will be submitted to the SHPO and
pertinent consulting parties for review and comment. The SHPO shall provide
written comments within ten days after receipt. Any potential subsurface testing
and evaluation of significance will be determined through subsequent consultation
in accordance with 36 CFR 800. The EPA shall consult with the SHPO and any
identified consulting parties to develop treatment strategies for any archeological
resources that will be adversely affected by the Project. Resolution of any adverse
effects will follow 36 CFR 800.6. EPA anticipates development of specific
Memorandum of Understanding (MOU) to document how the adverse effects will
Programmatic Agreement—Atlantic Steel Redevelopment Project — Page 5
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be resolved. The MOU will be developed within the context of this Agreement
and will serve as the instrument by which all parties will agree to final resolution of
any adverse effects.
IV. TRIBAL COORDINATION
EPA has identified the Indian tribes listed in Appendix C as groups that might attach
religious and cultural significance to historic properties in the area of potential effects. In
accordance with 36 CFR 800.4(a)(4), EPA will solicit any information from these tribes to
assist the agency in identifying properties which may be of religious and cultural
significance to them and may be eligible for the National Register. Based on the results of
this coordination, EPA will complete an effects assessment and identify treatment of these
properties to determine if they may experience an adverse effect from the Project. Further
coordination with the Indian tribes will follow 36 CFR 800.4 through 36 CFR 800.6.
Should any issues of concern be raised by Indian tribes about the identification of,
evaluation of or assessment of effects on these historic properties, EPA will notify the
Council of these concerns and invite their participation in the 106 process.
V. PUBLIC PARTICIPATION
A. Continuation of Public Outreach
EPA and Atlantis 16th, L.L.C. have participated in a number of public stakeholder
meetings to discuss the project. EPA and Atlantis 16th, L.L.C. have also
participated in meetings with an Environmental Justice Focus Group and several
meetings regarding the proposed bridge at the invitation of the City of Atlanta
and/or the Georgia Department of Transportation and the Atlanta Regional
Commission. EPA received valuable feedback on the project from national and
local environmental and transportation groups and other interested organizations
and individuals, as part of its Project XL and NEPA scoping processes.
The EPA will integrate consideration of Project effects on historic properties into
its NEPA environmental analysis process. The EPA will hold public meetings for
purposes of fulfilling requirements of NEPA and NHPA and will include updates
on the status of the identification and evaluation process for historic properties.
Future public notices shall inform the public of their opportunity to comment
pursuant to Section 106 of the NHPA.
B. Review of Public Objections
At any time during implementation of the measures stipulated in this Agreement
should a member of the public raise an objection to any such measure or its manner
of implementation, the EPA shall take the objection into account and consult as
Programmatic Agreement — Atlantic Steel Redevelopment Project — Page 6
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needed with the objecting party, pertinent consulting parties, and the SHPO to
resolve the objection.
VI. AMENDMENTS
Any party to this Agreement may request that it be amended, whereupon the parties will
consult in accordance with 36 CFR Part 800.13 to consider such amendment.
vn. DISPUTE RESOLUTION
Should the SHPO object within 20 days to any plans/specifications provided for review or
any actions proposed pursuant to this Agreement, the EPA shall consult with the SHPO to
resolve the objection. If the EPA determines that the objection cannot be resolved, the
EPA shall forward all documentation relevant to the dispute to the Council. Within 30
days after receipt of all pertinent documentation, the Council will provide the EPA with
recommendations which the EPA will take into account, in accordance with 36 CFR
800.6(c)(2), in reaching a final decision regarding the dispute. The EPA shall report its
final decision to the Council within 15 days.
Any recommendation or comment provided by the Council will be understood to pertain
only to the subject of the dispute; the EPA's responsibility to carry out all actions under
this agreement that are not the subject of the dispute will remain unchanged.
Vm. FAILURE TO CARRY OUT THE TERMS OF THIS AGREEMENT
In the event that the EPA does not carry out the terms of this agreement, the EPA will
comply with 36 CFR 800.4 through 36 CFR 800.6 with regard to the Project.
Programmatic Agreement - Atlantic Steel Redevelopment Project — Page 7
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L\. SIGNATORIES
Execution and implementation of this Programmatic Agreement evidences that the EPA has
afforded the Council a reasonable opportunity to comment on the Atlantic Steel Redevelopment
Project and that the EPA has taken into account the Project's effects to historic properties.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION IV
By: QitMjzL !\rmlM Date:.
Name: Heinz Mueller ^ J
Title: Chief, Office of Environmental Assessment
[/0 - Date: / 2- /
Ta7 Tn/^o / ' '
GEORGIA STATE^DSTORIC PRESERVATION OFFICER
By:_
Name: w. Pay Luce
Title: Division Director and Deputy State Historic Preservation Officer
CONCUR:
— ¦ y
jAGeyr&EVEte^n^jt,inc. flTcw
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9^i~~
SECTION 1
NEED AND PURPOSE FOR ACTION
1.1 PROJECT OVERVIEW
Jacoby Atlantic Redevelopment, L.L.C. (hereafter referred to as JAR), a developer in Atlanta,
Georgia, has proposed remediation and redevelopment of approximately 135 acres near Atlanta's
central business district (Figure 1-1). The property to be redeveloped is the site of the former steel
mill owned by Atlantic Steel Industries, Inc. (Atlantic Steel). In 1998, the property was rezoned by
the City of Atlanta from Heavy Industrial to Central Area Commercial/Residential-Conditional
(mixed use, with conditions). JAR purchased the property from Atlantic Steel in December 1999.
The proposed development includes a mix of residential and business uses. The planned
redevelopment is expected to include two million square feet of general office, one and a half million
square feet of retail and entertainment uses, two million square feet of high tech offices, 2,400
residential units, and 1,000 hotel rooms.
In addition to the site redevelopment, project plans include construction of a multi-modal (cars,
pedestrians, bicycles, transit) bridge and interchange at 17th Street that would cross Interstate 75/85
(1-75/85) and provide access to the site as well as a connection to Midtown Atlanta and the nearby
Arts Center Metropolitan Atlanta Rapid Transit Authority (MARTA) Station. Roadway
improvements would include extension of the existing 17th Street from West Peachtree Street (U.S.
19/S.R. 9) in Midtown Atlanta, heading west on new alignment over 1-75/85, through the
development, and connecting with Northside Drive (U.S. 41/S.R. 3) at Bishop Street Additional
improvements include modifications to the existing 1-75 and 1-85 southbound ramps to 14th Street
to provide access to the new bridge and the site; construction of a new northbound off-ramp from
1-75/85 to 17th Street; reconstruction of the 14th Street Bridge to accommodate the new northbound
off-ramp; and intersection improvements along 16th Street, 14th Street, and Northside Drive. The
entire project study area is approximately bounded by Peachtree Street on the east, 14th Street to the
south, Bishop Street to the north, and Northside Drive to the west
The project also would include operation of a transit shuttle system that would circulate between
the MARTA Arts Center Station and the Atlantic Steel site via exclusive bus lanes that would cross
the proposed 17th Street Bridge and continue along 17th Street through the Atlantic Steel
development. Transit stops would be located throughout the Atlantic Steel site, providing service
within a quarter mile of the highest employment, retail, and residential concentrations. It is
anticipated that a dedicated shuttle bus pull-off would be provided on West Peachtree Street, to allow
passengers direct access to the MARTA Arts Center Station.
I.\ATLSTEEL\Draft2\Seetioo 1 .wpd
1-1
June 2000
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1.2 AGENCY INVOLVEMENT
The U.S. Environmental Protection Agency (EPA) became involved with this project through
its Project XL Program. Project XL, which stands for "excellence and Leadership," encourages
companies and communities to come forward with new approaches that have the potential to
advance environmental goals more effectively and efficiently than have been achieved using
traditional regulatory tools. JAR is participating in Project XL for the Atlantic Steel redevelopment
because neither the 17th Street Extension nor the associated 1-75/85 access ramps would be able to
proceed without the regulatory flexibility being allowed by EPA under its XL Program. The specific
regulatory flexibility includes the consideration of the entire redevelopment project, including the
17th Street Extension, as a Transportation Control Measure (TCM) - (see Section 1.3 for more detail).
EPA, in cooperation with the Federal Highway Administration (FHWA), the Federal Transit
Administration (FTA), Georgia Department of Transportation (GDOT), MART A, and the City of
Atlanta has prepared this Environmental Assessment (EA) as part of EPA's regulatory decision on
approval of this redevelopment project as a TCM. The EA is also intended to fulfill applicable
National Environmental Policy Act of 1969 (NEPA) requirements associated with other federal
actions on the Project, specifically in order that the transportation components of the project may
become eligible for federal funding. The EA has been prepared in accordance with NEPA, as
amended; EPA's "Policy and Procedures for Voluntary Preparation of National Environmental
Policy Act Documents" (63 FR 58045), generally following the procedures set out at 40 CFR Part
6, Subparts A through D; and the U.S. Department of Transportation's "Environmental Impact and
Related Procedures" (23 CFR 771). In addition, the EA has been prepared in accordance with
provisions of the Council on Environmental Quality regulations, other NEPA requirements and
policies, and any applicable state and local laws, regulations, and ordinances.
The EA is a summary and culmination of planning efforts associated with the development of
concept alternatives, design traffic study, preliminary engineering analysis, and environmental
impacts assessment, all of which have been completed with opportunities for public comment and
agency coordination, as part of the NEPA process as well as EPA's Project XL.
13 REGULATORY FRAMEWORK
The City of Atlanta is currently out of compliance with federal air quality conformity
requirements because it has failed to demonstrate that its transportation activities will not exacerbate
existing air quality problems or create new air quality problems in the region. The Clean Air Act
(CAA) generally prohibits construction of new transportation projects that use federal funds or
require federal approval in areas where compliance with conformity requirements has lapsed.
However, the CAA includes provisions for the creation of transportation control measures in non-
attainment areas, such as Atlanta. TCMs are defined as "...measures with the purpose of reducing
emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or
I.\ATLSTEEL\Drafl2\Sectiool .wpd
1-3
June 2000
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17™ STREET EXTENSION & ATLANTIC STEEL REDEVELOPMENT PROJECT
FULTON COUNTY, GDOT PROJECT NH-7141-00(900)
NEED AND PURPOSE STATEMENT
The proposed redevelopment of the Atlantic Steel site would reduce overall emissions associated with
new development in the Atlanta region by promoting smart growth principles, including brownfield
redevelopment, certain on-site design elements, and the development of transportation infrastructure
that encourages the use of transit and non-motorized modes of traveL The 17* Street Extension and
Bridge are a part of the transportation infrastructure that is necessary to support the redevelopment of
the Atlantic Steel site and maintain acceptable overall mobility in Midtown Atlanta.
The project as proposed would accomplish the following:
Transform a brownfield site into a mixed use community of retail, residential, and commercial
uses that would be more compatible with surrounding land uses
• Incorporate certain site design elements (e.g., residential and employment density, mixed use,
on-site transit proximity, and street connectivity) and transportation infrastructure (e.g.,
sidewalks, bike paths, transit stops) that encourage the use of transit and non-motorized modes
of travel that serve to reduce overall emissions
• Provide a new multi-modal bridge to reconnect the Atlantic Steel site with the urban fabric of
Midtown and serve as a new "Gateway" into the heart of Downtown Atlanta
Reduce congestion and improve traffic flow along 10th and 14th Streets by providing a new east-
west connection across the Downtown Connector
• Provide new mass transit linkage to MART A Arts Center Station to allow for a high transit
ridership and internal trip capture on-site that would be unattainable in single land use
developments of the size of Atlantic Steel
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EXAMPLE 6-B
MURRAY SMELTER
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Advisory
Council On
Historic
Preservation
The Old Post Office Building
1100 Pennsylvania Avenue, NW, #809
Washington, DC 20004
May 4, 2000
_FT"rT*" "-T>
kr'.l i 1
Mr. Bill Yellowtail
Regional Director
Region 8
U.S. Environmental Protection Agency
999 18th Street
Denver, CO 80202-2466
Dear Mr. Yellowtail:
Enclosed is the fully-executed Memorandum of Agreement for the Muiray Smelter Site,
including Murray smoke stacks, a historic property eligible for the National Register of Historic
Places. This letter constitutes the Council's additional advisory comments in accordance with 36
CFR Section 800.7(b) of the Council's regulations regarding the manner in which EPA consulted
with the Council and other parties to comply with Section 106 of the National Historic
Preservation Act for this project.
The Council first became acquainted with the Murray smelter site because of complaints by the
Utah State Historic Preservation Officer's (SHPO) staff about EPA's inconsistent and confusing
determinations under the Council's regulations and difficulties gaining basic information about
the project. The SHPO was concerned also because EPA was proceeding with clean-up activities
that were adversely affecting historic properties eligible for the National Register of Historic
Places. Not long after the complaints about EPA, in June 1999, EPA staff initiated formal
consultation with the Council on Superfund activities affecting Murray smoke stacks, which are a
portion of the larger Murray Superfund site and all part of the same Superfund consent decree.
The Council elected to participate in this consultation because of the significant role of the
smoke stacks in Murray's identity as a distinctive community with an important industrial
history and because of the considerable controversy surrounding the proposed demolition.
Preference for stabilizing and cleaning up the historic stacks rather than demolishing them was
voiced by the local community, including the Murray Historic Preservation Board and Utah
Heritage Foundation. Also, we were concerned about EPA's problems in complying with
Section 106 on the overall Superfund site, including whether EPA had segmented the smoke
stacks from the larger project for the purposes of Section 106 compliance.
The Council believes that meaningful Section 106 consultation with EPA on the Murray smelter
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Murray Smelter Smoke Stack Demolition - MOA
Murray Smelter Superfund Site, Utah
MEMORANDUM OF AGREEMENT (MOA)
Among the Environmental Protection Agency,
the Utah State Historic Preservation Officer and
the Advisory Council on Historic Preservation
Regarding the Demolition of the Murray Smelter Smoke Stacks
Murray Smelter Superfund Site, Murray, Utah
WHEREAS, the United States Environmental Protection Agency Region VIII (EPA) has
determined that the demolition of the Murray Smelter smokestacks, which are part of
the Superfund or CERCLA (Comprehensive Environmental Response, Compensation
and Liability Act of 1980) Site, is an adverse impact on the historic structures; and
WHEREAS, the National Historic Preservation Act, 16 U.S.C. 5S470 et sea., has been
identified as an applicable relevant and appropriate requirement (ARAR) pursuant to
the NCP, 40 C.F.R. § 300.415; and
WHEREAS, EPA has consulted with the Utah State Historic Preservation Officer
(SHPO) and the Advisory Council on Historic Preservation (Council) pursuant to Section
106 of the National Historic Preservation Act (NHPA) (26 U.S.C. 470) and implementing
regulations 36 CFR 800; and
WHEREAS, Murray City (local government), Hi-Ute-Buehner (responsible party),
Chimney Ridge L.L.C. (developer and current landowner), Murray Historic Preservation
Board (Board), Asarco (CERCLA responsible party), and interested public have
participated in the consultation regarding the terms of this agreement;
NOW THEREFORE, the EPA, the SHPO, and the Council agree that the undertaking
shall be implemented in accordance with following stipulations in order to mitigate the
effect of the undertaking on historic properties.
Stipulations
EPA will ensure the following measures are carried out:
1) The diameter of the base and the height of the oven door (or smokestack
archway) of the taller (north) stack will be incorporated into the architecture of the
plaza area or other area of the development: "Other characteristics of either
smokestack may also be used in the development.
Page 1 of 5
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Murray Smelter Smoke Stack Demolition - MOA
Murray Smelter Superfund Site, Utah
2) At least three plaques will be placed in the development. The plaques will
interpret the smokestack details used in the plaza under stipulation 1 above or will
commemorate the history of the smelter. The plaques will be bronze (estimated at
$4,000 each), unless the Board representative identified in stipulation 3 below agrees
that another material, as proposed by the Chimney Ridge L.L.C., is appropriate.
3) A citizen representative of the Board will be involved in the development
of plaza details under stipulation 1 and the drafting and placement of the interpretive
signs under number stipulation 2 above. The representative will be a citizen member
of the Board to be selected by the Board with input from Chimney Ridge L.L.C. The
role of the representative will be advisory and will relate only to the work done for
stipulations 1 and 2.
4) The results of intensive level surveys completed under direction of
Chimney Ridge L.L.C. for several buildings that were located in the area of the planned
development will be provided to the Board. The surveys and any accompanying report
will be provided to the Board by May 1, 2000.
5) Asarco will provide the Board a copy of the report prepared by an
archeologist on activities completed during the remediation of the entire Superfund site.
The report will be provided to the Board by Asarco by May 1, 2000. The report will
likely include drawings and photographs that were completed by an archeologist during
the remediation of the Superfund site. Asarco has already provided the Board
materials in Asarco's possession that relate to the design, operation, and role for the
smelter for the Board's use in the preservation of the smelter history.
6) Hi-Ute-Buehner will provide a total of $89,500 to Murray City for use in
supporting the development of an educational video, models, development of museum
exhibit(s), and miscellaneous items related to the smokestacks and the Murray smelter
(smelter). Hi-Ute Buehner shall provide payment full amount to Murray City by May 1,
2000. The Board will determine the distribution of the funds among the various
activities and how the activities will be implemented. The funds will be used for the
activities described below:
(a) support the development of a short (20 to 30 minute) video about the
smelter which is currently in production under Murray City oversight;
(b) development of a permanent table top model depicting the smelter,
Page 2 of 5
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Murray Smelter Smoke Stack Demolition - MOA
Murray Smelter Superfund Site, Utah
(c) development of a portable hands-on model which illustrates the
changes in the smelter site from prior to 1870 to the present day;
(d) establishment of a smelter exhibit in a museum or location to be
determined by the Board or Murray City; and
(e) development of a brochure that illustrates the locations, physical
descriptions, and processes of smelter operations.
Each of the activities may be funded in whole or in part until the funds have been
expended. If all the activities have been funded and there is still money left, it
can be used to purchase, preserve, or renovate a historic building that will house
smelter related displays or artifacts.
Murray City will provide appropriate accounting for the expenditure of the funds
provided by Hi-Ute Buehner. Beginning on May 1, 2001, Murray will provide to
EPA an annual report describing the expenditure of the funds. A final report is
due six months after the last funds are expended and should include a full
accounting of all expenditures, as well as an audit by an independent auditing
firm. Murray City is responsible for ensuring that the funds are spent on the
specified activities. Hi-Ute Buehner has met its obligations under stipulation 6 by
providing the funding required to Murray City. Misuse of the funds does not
impact the fulfilment of said obligation. Murray City will also provide the Council
and the SHPO copies of the above reports.
If Chimney Ridge L.L.C. decides to sell the property before developing it,
Chimney Ridge L. L. C. will place a deed restriction on the property requiring
future development to include the requirements of Stipulations 1 and 2.
Chimney Ridge, L.L.C. agrees that if it builds an office complex on the Murray
Smelter Site, it will allow, at no cost to the other parties, exhibit of smelter history
materials in the lobby of the office complex. Chimney Ridge, L.L.C. shall
determine the quantity of artifacts, display design, and layout of the materials.
Dispute Resolution
If the SHPO or the Council object within 15 days to any actions proposed pursuant to
the MOA, the EPA shall consult with the objecting party to resolve the objection. If the
EPA determines the objection cannot be resolved, the EPA shall request the further
comments of the Council orSHPO and forward documentation relevant to the objection
to the other parties. Within 30 days after receipt of all pertinent documentation, the
Council or the SHPO will either: 1) provide the EPA with recommendations, which the
Page 3 of 5
8)
9)
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Murray Smelter Smoke Stack Demolition • MOA
Murray Smelter Superfund Site, Utah
EPA shall take into account in reaching a final decision regarding the objection; or 2)
notify the EPA that it will comment pursuant to 36 CFR 800.7 with reference only to the
subject of the objection.
If at any time during the implementation of the measures stipulated in this MOA, an
objection is raised by a member of the public, the EPA shall take the objection into
account and consult as needed with the objecting party, the Board, Murray City, the
SHPO, and the Council in an attempt to resolve the objection.
Any party to this MOA may propose to the other parties that it be amended, whereupon
the parties will consult in accordance with 36 CFR Part 800.6 (c)(7) to consider such an
amendment.
Any of the consulting parties to this MOA may terminate it by providing thirty (30) days
notice to the other parties, provided that the parties will consult during the period prior to
termination to seek agreement on amendments or other actions that will avoid
termination. In the event of termination, EPA, in consultation with the Council and the
SHPO, will determine how to implement EPA's responsibilities under Section 106 in a
manner consistent with applicable provisions of 36 CFR Part 800.
Execution of this MOA by the EPA, the SHPO, and the Council, and implementation
of its terms evidences that EPA has afforded the Council an opportunity to comment on
the proposed project and its effect on the historic nature of the smoke stacks, that EPA
has taken into account the effects of the undertaking on the historic properties, and is
appropriately implementing the requirements of Section 106 of NHPA.
Consulting Parties:
Environmental Protection Agency, Region VIII
Amendment
Termination
Max H. Dodson, Assistant Regional Administrator Date
Ecosystems Protection and Remediation
Page 4 of 5
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Murray Smelter Smoke Stack Demolition - MOA
Murray Smelter Superfund Site. Utah
Utah State Historic Preservation Officer
ouncil on Historic Preservatic
- diridL
±ihL
Date
Ry- / / U^\J H /ICQ
Wilson G. Martin, Deputy
State Historic Preservation Office
Advisory Council on Historic Preservation
By: - Ol/ UajU^ S/ f/(^)
John Fowier, Executive Director Date'
Advisory Council on Historic Preservation
Concurring Parties:
Chimney Ridge L.L.C.
Page 5 of 5
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EXAMPLE 6-C
ROEBLING STEEL
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MEMORANDUM OF AGREEMENT
BETWEEN
U. S. ENVIRONMENTAL PROTECTION AGENCY
AND NEW JERSEY STATE HISTORIC PRESERVATION OFFICER
FOR
THE ROEBLING STEEL COMPANY SITE,
ROEBLING, NEW JERSEY,
SUBMITTED TO THE ADVISORY COUNCIL ON HISTORIC PRESERVATION
PURSUANT TO 36 CFR 800.6(a)
WHEREAS, the U.S. Environmental Protection Agency (USEPA) will implement a remedial action
(the Project) for the Roebling Steel Company Site in Roebling, New Jersey; and
WHEREAS, the Roebling Steel Company Site was added to the USEPA's National Priorities List
of Superfiind sites in 1983 (a map of the property showing the location and designation of the
buildings at the Site is included as Attachment A to this Agreement), and USEPA's remedial action
for this Superfund site includes, but is not limited to, the following actions: decontamination,
demolition, and on-site management of selected demolition debns for contaminated buildings that
are structurally unsound (referred to as Type A Buildings); decontamination of contaminated
buildings that are structurally sound (referred to as Type B Buildings); asbestos decontamination of
structurally sound and otherwise uncontaminated buildings (referred to as type C Buildings);
removal and off-site disposal of both contaminated process dust and liquid and solid wastes from
the equipment, above-ground tanks, pits, sumps, and underground piping; removal and
decontamination of equipment, tanks, and scrap metal prior to recycling; removal of underground
storage tanks, along with all tank contents and any surrounding impacted soil; and
WHEREAS, the USEPA has conducted several cultural resources investigations of the Roebling
Steel Company Site, and consequently has detennined, in consultation with the NJSHPO, that the
Roebling Steel Company Site at Roebling (a.k.a. Kinkora) is eligible for inclusion in the National
Register of Historic Places (NRHP); and
WHEREAS, the USEPA and the NJSHPO have determined that the Project will have an adverse
effect on the eligible Roebling Steel Company Site; and
WHEREAS, the USEPA has consulted with the New Jersey State Historic Preservation Officer
(NJSHPO) and the Advisory Council on Historic Preservation (ACHP), pursuant to 36 CFR 800,
the regulations implementing Section 106 of the National Historic Preservation Act of 1966
(NHPA), as amended (16 U.S.C. 470f); and
WHEREAS, the Roebling Historical Society and the Township of Florence have participated in the
consultation and have been invited to concur in this Memorandum of Agreement;
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NOWy THEREFORE, the USEPA and the NJSHPO agree that the Project will be implemented m
accordance with the following stipulations to satisfy the USEPA's Section 106 responsibilities for
the Project.
STIPULATIONS
The USEPA will ensure that the following measures are carried out.
1. USEPA has recorded ihe Roebling Steel Company Site to the standards and guidelines of the
Historic American Engineering Record (HAER) of the National Park Service (NPS). Copies of
the recordation shall be sent to the New Jersey State Archives, the Township of Florence, and
the Roebling Historical Society, Copies of this documentation with original photographs shall
be given to the NJSHPO. The USEPA has ensured that all documentation specified by HAER
is completed and approved by HAER prior to the demolition of Type A Buildings.
2. USEPA has prepared documentation to provide assistance to the NJSHPO for the Roebling Steel
Company Site's nomination for listing on the New Jersey and National Registers of Historic
Places. A list of these reports is included as Attachment 3 to this Agreement.
3. Decontamination of Type B and Type C Buildings shall be undertaken with particular emphasis
on treatment methods that will achieve appropriate cleanup standards. During the remediation
of these buildings, Rehabilitation Standard 7 of the Secretary of the Interior's Standards for the
Treatment of Historic Properties (36 CFR68.3 (b)(i)) will be considered to the maximum extern
practicable.
4. Building designations (Types A, B, and C) that need to be changed due to further structural
deterioration, worker health and safety issues, further evaluation of reuse potential, and the
results of the treatability studies for finding an effective decontamination method, will be
submitted to NJSHPO for review and comment with respect to preservation concerns. If the
NJSHPO does not comment within 30 days of receipt of the building designation changes, the
USEPA will assume that the NJSHPO concurs with the changes.
5. The USEPA shall prepare a Historic Structure Report (HSR) for the Main Gate House following
the NJSHPO's "Historic Structure Reports & Preservation Plans, A Preparation Guide." The
USEPA will submit the HSR to the NJSHPO for a 30-day review period. If the NJSHPO does
not provide comments within 30 days of receipt of the report, the USEPA will assume NJSHPO
concurrence with the report.
6- The USEPA shall stabilize the Main Gate House, which can then be united as a local museum,
to facilitate public education and outreach. The USEPA, in consultation with the Roebling
Historical Society, will develop design plans for the stabilization of the building. The design
plans will be based on the HSR, and shall be consistent with the recommended approaches in the
Secretary of the Interior's Standards for the Treatment of Historic Properties (U.S. Department
of the Interior, National park Service, 1995). The USEPA will submit the design plans to the
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3
NJSHPO for review and comment with respect to historic considerations. If the NJSHPO does
not comment within 30 days of receipt of the design plans, the USEPA will assume NJSHPO
concurrence with the plans.
7. The USEPA shall identify significant historic equipment and artifacts associated with the site.
These pieces of equipment and artifacts shall be appropriately decontaminated and stored in a
secure building on-site. Decontamination will be undertaken with emphasis on treatment
methods that will achieve appropriate cleanup standards and meet Standard 7 to the maximum
extent practicable. The following equipment shall remain in place if it is feasible to do so
without damaging the equipment during remediation: the prestressing machinery, tools, and
equipment in Buildings 92 and 93, sample sections of the connecting rail track, the freight
elevator in Building 16, and an appropriate portion of the remaining Morgan wire-rod rolling
mill in Building 86. The aforementioned list of equipment and artifacts shall be submitted to the
NJSHPO for review. If the NJSHPO does not provide comments within 30 days of receipt of
the list, the USEPA will assume NJSHPO concurrence with the list.
8. The USEPA shall identify a qualified repository or repositories to house Historic Records
including architectural and engineering drawings, maps, historic papers, pamphlets, and
photographs that contain information about the construction of the buildings, the manufacturing
process and products, and the administration of the plant. The repository shall have as part of
its mission, the preservation and dissemination of information on industrial sites in the United
States. Furthermore, the repository shall have in place curation methods for the records (in
accordance with 36 CFR 79) and means for the public and scholars to access these records.
9. The USEPA has prepared Recommended Preservation Guidelines for those buildings that are
not demolished, and for selected equipment and artifacts that remain at the site. The guidelines
will be applicable to future use and new construction. They will become effective after the
completion of the remedial action, and will be implementable by the future owner(s) of the Site.
These guidelines are included as Attachment C to this Agreement.
10. The USEPA has initiated a program of community relations activities at the Site in association
with its Superfund action (a list of these activities is included as Attachment D to this
Agreement). As part of a continuing public outreach effort, the USEPA shall make available to
the NJSHPO, local historical societies, and other prospective users, the HAER documentation
and other cultural resources-related studies completed as part of the USEPA's Superfund action.
Continuing public education and outreach programs, will include assistance in the development
of an on-site museum (see Stipulation 6). As part of its public education effort, the USEPA will
continue to provide site access to individuals interested in preparing oral histories of their
experiences working at the Roebling steel facility, and in using these histories as part of public
outreach programs. Further, the USEPA will continue to provide site access and assistance to
individuals for purposes related to the development of appropriate projects on the industrial,
architectural, and cultural history of the site. The USEPA and the NJSHPO will assist local
historical organizations in the dissemination of the resulting materials and publications to the
local community and statewide.
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4
OBJECTIONS, AMENDMENTS, AND DISPUTE RESOLUTION
1. Should the NJSHPO or other signatory to this Agreement object within thirty (30) days to any
action proposed pursuant to this agreement, USEPA shall consult with the objecting party to
resolve the objection. If the USEPA determines that the objection cannot be resolved, the
USEPA shall request the further comments of the Council pursuant to 36 CFR 800.6(b). Any
Council comment provided in response will be taken into account by the USEPA in accordance
with 36 CFR 800.6(c)(2) with reference only to the subject of the dispute; the USEPA's
responsibility to carry out all actions under this agreement that are not the subjects of this dispute
will remain unchanged.
2. Any party to this Agreement may propose to the other parties that it be amended, whereupon the
parties will consult in accordance with 36 CFR 800.5(e) to consider such an amendment.
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Execution of this Memorandum of Agreement by the USEPA and NJSHPO, its subsequent
acceptance by the ACHP, and implementation of its terms is evidence that USEPA has afforded the
ACHP an opportunity to comment on the Project and its effects on historic properties, and that the
USEPA has taken into account the effect of the undertaking on historic properties.
ENVIRONMENTAL PROTECTION AGENCY
By: Date:
NEW JERSEY HISTORIC PRESERVATION OFFICE (SHPO)
By: Date:
Dorothy P. Guzzo. Depury State Historic Preservation Officer
ADVISORY COUNCIL ON HISTORIC PRESERVATION
By: Date:
ROEBLING HISTORICAL SOCIETY
By: Date:
FLORENCE TOWNSHIP, NEW JERSEY
By:
Date:
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RECOMMENDED
HISTORIC PRESERVATION GUIDELINES
XI. RATIONALE
The proposed remedial action will result in an adverse effect on the National Register-
eligible Roebling Steel Company Site; that is the demolition of the Type A buildings, the
removal and loss of potentially significant historic artifacts throughout the Site, and potential
damage to Type B and C buildings and significant site features as a result of the remediation
process. Various mitigation measures have been incorporated into a Memorandum of
Agreement between the U.S. Environmental Protection Agency and the New Jersey Historic
Preservation Officer for the Site. Among these measures is the development of the
Recommended Preservation Guidelines. These guidelines are applicable to future use of the
remaining buildings and new construction, and will become effective upon completion of the
remedial action. It is anticipated that implementation of these guidelines will be the
responsibility of the future owner(s) of the Site.
II. RECOMMENDED GUIDELINES
A. All future site development and reuse should comply with the Secretary of the
Interior's Standards for the Treatment ofHistoric Properties (1995). This document,
with its associated terminology, is considered to be an integral part of these
guidelines. Key and contributing buildings and historic site features should be
treated as follows: key buildings should be designated for preservation and
rehabilitation for compatible uses in any proposed redevelopment plans. Demolition
of key buildings should be avoided if feasible. Key buildings, contributing buildings,
and historic site features should have a high priority for preservation and
rehabilitation for compatible new uses in any proposed redevelopment plan.
Demolition of contributing buildings should be avoided, unless it is determined and
documented that they are structurally unsound or inappropriate for adaptive reuse.
Demolition of non-contributing buildings would be permissible.
B. The standards recognize a number of aspects of the treatment of historic properties,
including preservation, rehabilitation, and new construction.
1. Preservation - All interim work prior to the full rehabilitation of buildings,
structures, significant site features, and selected equipment and artifacts
should comply with the Secretary of the Interior's Standards for the
Treatment of Historic Properties (1995). Additionally, prior to undertaking
work on any buildings or site features, a Preservation Plan, following the
guidelines detailed in "Historic Structure Reports and Preservation Plans.
Planning Documents for Historic Properties" (New Jersey State Historic
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2
Preservation Office, 1997), should be developed and shall provide the basis
for the proposed work.
2. Rehabilitation - All rehabilitation and redevelopment activities should follow
the Secretary of the Interior's Standards for the Treatment of Historic
Properties (1995) to preserve those portions and features of the complex
which convey its historic, cultural, and architectural values. Any
rehabilitation proposed for B and C buildings should be for compatible new
uses that allow the buildings to retain their historic character. Additionally,
prior to undertaking work on any B and C buildings or significant site
features, a Rehabilitation Plan for Preservation should be developed that shall
provide the basis for the proposed work.
3. New Construction - The construction of additions, new buildings, and new
site features should comply with the Secretary ofthe Interior's Standards for
the Treatment of Historic Properties (1995), Rehabilitation Standard 9: "New
additions, exterior alterations or related new construction will not destroy
historic materials, features and spatial relationships that characterize the
properly. The new work will be differentiated from the old and will be
compatible with the historic materials, features, si2e, scale and proportion,
and massing to protect the integrity of the property and its environment;" and
with the Secretary of the Interior's Standards for the Treatment of Historic
Properties (1995), Standard 10: "New additions and adjacent or related new
construction will be undertaken in such a manner that, if removed in the
future, the essential form and integrity of the historic property and its
environment would be unimpaired."
C. The design of preservation, rehabilitation, and new construction work should
maintain the district's historic industrial character and ensure its uniformity despite
varied uses. New safety features and appropriate design treatments would be
permissible.
1. Buildings
Windows - Wherever possible, existing historic windows should be retained
and rehabilitated, including lintels and bluestone sills. Replacement windows
and alterations for energy efficiency should be compatible with the historic
windows in design and materials.
Doors - Wherever possible, existing historic doors should be retained and
rehabilitated. Replacement doors and alterations for safety and egress
requirements should be compatible with the historic character of the
buildings.
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Masonry - Surfaces should be cleaned with appropriate low-pressure washing
techniques to avoid damage; high pressure washing (over 500 psi) and
sandblasting should be prohibited. Replacement masonry should be
compatible with the original in size, color, and textUTe. Repointing should
match the original in color, porosity, strength, elasticity, texture, and tooling-
Masonry should not be painted or stuccoed unless originally so treated.
Exterior Details - Historic hardware, light fixtures, cast iron, sheet metals,
and slate roofing should be rehabilitated where possible. Replacement
components should be compatible with the original design and materials.
Interior Spaces and Details - Reuse of significant interior spaces should
preserve their original design, scale, and detailing, as, for example, in
Buildings 6,16, and 21. Significant industrial features such as timber and
steel framing, railings, lighting, cranes, and belt drive or other integral
machinery, should be preserved in-situ.
Paint - New paint colors and finishes on exterior wood or metal and
significant interior details should replicate the original or use historically
appropriate treatments.
Signage - Historic signage should be preserved. The design, scale and color
of new signage should harmonize with the site's historic industrial
architecture.
2. Structures. Millvards. and Site Components
Structures - Water towers, yard cranes, and flag pole should be preserved in-
situ.
Millyards - Key areas reflecting the historic character of the complex, such
as the entrance road east of the Main Gate House paved with Belgian block,
should be retained as open space and an extension of the Main Gate House.
Roads - Redevelopment of the complex should be compatible with the site's
hi storic transportation patterns and relationship to the Delaware River and the
adjacent Village. Major road ways should be preserved.
Paving - Belgian block paving should be retained and incorporated with new
site improvements. Asphalt should be removed from the Belgian block
paving wherever possible.
Lighting and Outdoor Furniture - Historic exterior lighting should be
preserved wherever possible. New streetlights, exterior lighting, and outdoor
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-2000 16:06
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1 212 637 3771 P.18/19
4
furniture should be compatible with the district's historic industrial character.
Parking - Parking areas and garages should be compatible in location, scale,
design, and materials with the historic character of the complex.
INSTITUTIONAL CONTROLS
The appropriate body within the local governmental framework should put into place
institutional controls to ensure the implementation of the following procedures:
A. Preservation Guidelines - All interim and redevelopment work should follow the
above Preservation Guidelines to promote the preservation and adaptive re-use of
the remaining buildings and the overall historic site context.
B. Review of Proposed Redevelopment - All plans for the preservation and
rehabilitation of the buildings and the redevelopment of the overall Site should be
reviewed by the New Jersey State Historic Preservation Officer.
C. Consultation with Relevant Parties - Any proposals for redevelopment of the
complex and conversion of the buildings to new uses should be developed in
consultation with Florence Township, the Roebling Historical Society, and the
residents of the Roebling Village Historic District.
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JUN-07-2000 16:06
USEPfl R2 DEPP SPMMPB
1 212 637 3771 P.19/19
attachment d
COMMUNITY RELATIONS ACTIVITIES
Fact sheets and Updates:
March 1989 Superfund Update - EPA to Conduct Investigation of Roebling Steel Site
December 1990 Facts - EPA to Conduct Removal and Remedial Actions at the Roebling
Steel Superfund Site.
January 1990 Superfund Update - EPA Invites Public comment on Interim Action.
January 1990 Superfund Update - Proposed Plan.
November 1991 Superfund Update.
August 1992 Superfund Update.
August 1994 Superfund Update.
September 1995 Superfund Update.
July 1996 Superfund Update.
October 1998 Superfund Update.
Public Meetings and Availability Sessions:
Public meeting on March 21, 1989, availability session on March 22,1989.
Public meeting on January 18,1990.
Public meeting on July 25, 1991.
Public availability session in August 1992.
Town council meeting in September 1995.
Public meeting in September 1995.
Press conference with Carol Browner & Senator Lautenberg in September 1995.
Public meeting in July 1996.
National Park Service (NPS) public meeting on historic preservation activities in August
1997.
Other Public Related Activities:
Provided access for an artist commissioned by the NJ State Council on the Arts in August
1993.
Sampled Mansfield Township residents' private wells in April 1995.
Site visit with NJDOH, ATSDR, and BCHD in November 1995.
Coordination with BCHD to perform community lead screening in January 1990,
April 1995, September 1995.
Site tours for township officials and prospective purchasers occur frequently, with the
first request in April 1997.
Site meeting with the local officials, Roebling Historical Society (RHS) and State
Historic Preservation Officer (SHPO) in October 1998.
Site visit with the RHS to select relevant equipment and artifacts for the future museum,
which took place in October 1998.
Site tour for all members of the RHS took place in December 1998.
Provided site-related documents and site visits for students from University of Virginia
School of Architecture in February 1997 and January 1999.
TOTAL P.19
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EXAMPLE 6-D
AMBER MILLING
-------
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
Harvest States Cooperatives/Amber Milling Company Division and
Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
WHEREAS, Harvest States Cooperatives/Amber Milling Company Division and the
Lackawanna County Railroad Authority (the Project Sponsors), have applied to the Pennsylvania
Department of Environmental Protection (PaDEP) for an NPDES Permit, which has been issued
as PA S10S042, pursuant to the Pennsylvania Clean Streams Law, 35 P.S. §§691.1 et seq. and
Section 402 of the Federal Clean Water Act, 33 U.S.C. § 1342, for stonnwater discharges
associated with the construction and operation of a proposed Flour Milling Facility in Ml
Pocono Borough and Pocono, Coolbaugh, and Tobyhanna Townships, Monroe County,
Pennsylvania (the Amber Milling Project or the Undertaking), the terms and conditions of which
NPDES Permit are incorporated herein by reference;
WHEREAS, PaDEP is responsible for the issuance of NPDES pennits under a delegation
from the U.S. Environmental Protection Agency, pursuant to Section 402(b) of the Federal Clean
Water Act, 33 U.S.C. § 1342(b);
WHEREAS, the United States Environmental Protection Agency (EPA), in consultation
with the Pennsylvania State Historic Preservation Officer (SHPO) has determined that the Amber
Milling Project will have an effect upon the Pocono Manor Historic District (Historic District), a
district included in the National Register of Historic Places (Register), and the Lackawanna,
Delaware & Western Railroad, a property eligible for inclusion in the Register, pursuant to 36
CJFJL Part 800, regulations implementing Section 106 of the National Historic Preservation Act
(16 U.S.C. §470f);
WHEREAS, the Project Sponsors have developed and submitted to EPA and the SHPO
two reports prepared by Carter van Dyke Associates, entitled Visual and Historic Impact of
Proposed Mill and Mitigation Plan for the Proposed Mill (collectively, the Mitigation Plan), and
in response to the Mitigation Plan, the SHPO raised concerns which were subsequently
addressed, and the SHPO has determined that the Mitigation Plan is adequate and addresses the
concerns of the SHPO with respect to potential impacts of the Amber Milling Project on the
Historic District;
WHEREAS, by letter dated April 14, 1997, and in accordance with 36 CJF.R §800.5(e),
EPA advised the SHPO that, after consulting with the SHPO and after considering the views of
interested persons, EPA has found that the Amber Milling Project will have an adverse effect on
the Historic District, and the EPA requested consultation with the SHPO regarding ways to avoid
or reduce the effects on the Historic District;
-------
Harvest States Cooperatives/Amber Milling Company Division
and Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
WHEREAS, pursuant to 36 C.F.R. §800.5(e), EPA notified and invited all identified and
appropriate interested parties, including the Permit applicants, the SHPO, and others entities, to
participate in the consultation process;
WHEREAS, the documentation required by 36 C.F.R. §800.8(b)(l)-{4) has been prepared
including a report entitled "Section 106 Analysis of Criteria of Effect and Adverse Effect, and
Proposed Mitigation Measures" and associated Exhibits; and
WHEREAS, PaDEP, the County of Monroe, Harvest States Cooperatives, the
Lackawanna County Railroad Authority, Mount Pocono Borough, and Ireland Hotels, Inc. (d/b/a
Pocono Manor Inn and Golf Resort) participated in the consultation process; and those parties
[including PaDEP, Harvest States Cooperatives, and the Lackawanna County Railroad
Authority) who are committed to implement actions pursuant to the "Stipulations" set forth
below have concurred in this Memorandum of Agreement;
NOW, THEREFORE, the Advisory Council, EPA and the Pennsylvania SHPO agree that
the Undertaking shall be implemented in accordance with the following stipulations in order to
take into account the effect of the undertaking on historic properties.
Stipulations
EPA and the SHPO will ensure that the following measures are carried out:
1. By signing this Memorandum of Agreement, intending to be legally bound, the Project
Sponsors agree to the following:
(a) Harvest States Cooperatives shall construct and maintain all building structures of
the Amber Milling Project which may be viewed above the treeline in a color to
be determined by the Harvest States Cooperatives' historic/landscape architect
consultant, in consultation with the SHPO. The SHPO .shall review and approve
this determination as well as the Undertaking's final design plans. The roofing
material and leg tower shall be painted to match the chosen final concrete color.
(b) In order to limit the generation and propagation of noise from the Amber Milling
Project, Harvest States Cooperatives shall implement the design elements and
operating practices described in the Visual and Historic Impact of Proposed Mill
2
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Harvest States Cooperatives/Amber Milling Company Division
and Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
prepared by Carter van Dyke Associates, including (1) the conduct of material
load and off-loading activities within enclosed structures; and (2) the installation
and use, to the maximum extent practicable, of an hydraulic progressioner for
movement of rail car units within the site. Harvest States Cooperatives shall
operate the Amber Milling Project in compliance with all applicable local noise
control ordinances.
(c) To the maximum extent feasible, the Project Sponsors shall install outdoor lights
below 40 feet above ground level, and shall (as necessary) direct such lighting and
provide shades, deflectors and buffers to minimize propagation at night of
illumination and glare in the direction of the Historic District The SHPO shall
have the authority to review and approve the Project Sponsors' determination in
this regard.
(d) The Project Sponsors shall cooperate with the County of Monroe, the Monroe
County Historical Society, and other interested parties in the development,
printing and distribution of an interpretative flyer/brochure with respect to the
historic development of Pocono Manor, including the historic character of the
railroad and other area enterprises, in the development of the Poconos and area
industries, as described in the Mitigation Plan; and Harvest States Cooperatives
(on behalf of the Project Sponsors) shall commit funding of up to $10,000 for the
initial development, printing and distribution of such interpretative flyer/brochure.
The text and layout of the brochure shall be reviewed and approved by the SHPO.
(e) Harvest States Cooperatives shall construct and maintain the building structures
and install and operate the milling facility equipment in accordance with the fire
safety designs approved by the Pennsylvania Department of Labor and Industry
and in accordance with the good operating and housekeeping practices required
for a food processing facility. Such designs and operating practices shall include
the following elements:
(i) Installation of a sophisticated dust collection and filtration system.
3
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Harvest States Cooperatives/Amber Milling Company Division
and Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
(ii) Maintenance of high standards of housekeeping required for a food
processing facility in order to minimize dust accumulation on horizontal
surfaces.
(iii) Ongoing inspection of the facility to assure avoidance of dust
accumulations.
(iv) Construction of all major building elements using reinforced concrete or
steel construction.
(v) Use on Conveyor systems of plastic buckets and other materials that are
not prone to generate sparks.
(vi) Installation on conveyor systems are of alignment sensors to assure proper
belt alignment, tied to a central computer processor capable of triggering
shutdown of the conveyor in the event of misalignment.
(vii) Installation on conveyor systems of heat sensors on all metal bearings,
which through the central computer processors will trigger a conveyor
shutdown if bearing heat increases beyond tolerance limits.
(viii) Equipping of the facility with a full sprinkler system.
(xi) Installation of on-site storage tank, holding 250,000 gallons of water, or
alternatively an adequate supply of water from a public utility, sufficient
to provide pressure and fire control water supply.
(x) Installation of high-level blowout panels at the top of buildings to safely
dissipate any explosive/compressive events.
2. The Project Sponsors shall, upon request by the SHPO, prepare a report on all activities
carried out pursuant to Stipulation 1 of this Memorandum of Agreement, and shall
provide a copy of such report to the Advisory Council, EPA, and, upon request, to other
interested parties.
4
-------
Harvest States Cooperatives/Amber Milling Company Division
and Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
3. If stipulations 1(a) through 1(e) above have not been implemented by July 1,1999, the
Advisory Council, EPA and the SHPO shall review implementation of the terms of this
Memorandum of Agreement and determine whether revisions are needed. If revisions are
needed, the parties to this Agreement shall consult in accordance with 36 C.F.R Part 800
to make such revisions.
4. Dispute Resolution. Should the SHPO object within seven (7) days to any plans
submitted for SHPO review pursuant to this agreement, EPA shall consult with the SHPO
to resolve the objection. If EPA determines that the objection cannot be resolved, EPA
shall request further comments of the Council pursuant to 36 C.F.R. § 800.6(b). Any
Council comment provided in response to such a request shall be taken into account by
EPA in accordance with 36 C.F.R. § 800.6(c)(2) with a reference only to the subject of
the dispute; EPA's responsibility to carry out all actions under this agreement that are not
the subjects of the dispute will remain unchanged.
Execution of this Memorandum of Agreement by the Advisory Council, EPA and the
Pennsylvania SHPO, and implementation of its terms, evidence that EPA has afforded the
Council an opportunity to comment on the Amber Milling Project and its effects on historic
properties, and that EPA has taken into account the effects of the Undertaking on historic
properties.
ADVISORY COUNCIL ON HISTORIC PRESERVATION
Title: & tlUE 7£y6-
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
5
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Harvest States Cooperatives/Amber .Milling Company Division
and Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICER
By: 1V Date: V, 1
Name: 5
Title: D.Sh(^
The undersigned parties concur in the Memorandum of Agreement:
HARVEST STATES COOPERATIVES/AMBER MILLING COMPANY DIVISION
By: . Date: Awc^r S. '9 5 7
Title: Attosjcv/ ,^j F*rcr~
PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
LACKAWANNA COUNTY RAILROAD AUTHORITY
Date: AocvJ^i*
-------
and Ladewamm Caenty Hailroaii Authority
Proposed 31ocr YTRUoy J^ciHry, IKoihtm Cotmry, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ONHESTORIC PffiESE&VAUGN,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
3. If stipulations 1(a) through- 1(e) above Save not been implemented by Inly 1,1999,. the
Aiiviscry Council, EPA and tfec SHPOahall review-impIemcntaliflaQfthc terns of this
TuTftiu'irtmitrm* nf Agw»om*nr anrf rTotPrfmftw ¦orfratftpr rpnn*
-------
Harrwt States Coaperaxves/Amber MQOlng Company Division
and Lackawanna Coanty Railroad Authority
Proposed FIoUT Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION.
THE "UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
4. Dispute Resolution. Should the SHPO object within seven (7) days to any pians
submitted for SHPO review pursuant to this agreement, EPA shall consult with the SHPO
to resolve the objection. If EPA determines that the objection cannot be resolved, EPA
shall request further comments of the Council pursuant to 3 6 C.F.R. § S00 6(b). Any
Council comment provided in response to such a request shall be taken into account by
EPA in accordance with 36 C.F.R. § 800.6(c)(2) with a reference only to the subject of
the dispute; EPA's responsibility to carry out ail actions under this agreement that are not
the subjects of the dispute ¦will remain unchanged.
Execution of thi** Memorandum of Agreement by the Advisory Council, EPA and the
Pennsylvania SHPO, and implementation of its terms, evidence thai EPA has afforded the Council
an opportunity to comment cn the Amber Milling Project 2nd its effects on historic properties,
and that EPA has token into account the effects of the Undertaking on historic properties.
ADVISORY COUNCIL ON HISTORIC PRESERVATION"
By: Dare:
Name:
Tile:
UNTIED STATES ENVIRONMENTAL PROTECTION AGENCY
By. Lj* 1 I
Name: Got E. .06NIM&C
Title: 1Z£<5\CN» JET »-U3tfC
Fe££&&vanO«M OS=?=iC£-E
Date: 8 - T •<9~7
PENNSYLVANTA STATE HISTORIC PRESERVATION OFFICER
By.
Name:
Title:
Date:
23 "d £SLZ S9S «Tc
i -
-------
Earr^StataC2*?*nfr&Aati&3ami£Cauv*ar2iri&a
sad LakwitM Caaaty 2a3raid AaAurilj
Prnjwacd Flow UQs| SadBlj, MMrtx Csoalv, PA
MEMORANDUM OF AGREEMENT
AMONG TSGE AUVCSORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIROWMEXrAJL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICER
ft mm
Dale:
Namei*- """
Thgntwter^gT*^ partial r-rmnr- in fort VfttiMimiifhim of Afli umiraf-
HARVEST STATES COOPERATIVES/AMBER MILLING COMPANY DIVISION
By: Date:.
Name:
THr
LACKAWANNA COUNTY RAILROAD AUTHORITY
By:
Name:
Tide:
Dale:
PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
By:
"Same:
Tjtfrr
Date:
6
TOTfiL P.32
-------
Power of Attorney
Know All Men By These Presents,
I, Garry A. Pistoria, as the Group Vice President of HARVEST STATES
COOPERATIVES, a Minnesota cooperative association ("Harvest States"), and as President of
Harvest States Cooperatives/Amber Milling Company Division, having the appropriate authority
to bind Harvest States, and to make such appointments, has made, constituted and appointed, and
by these presents does make, constitute and appoint R Timothy Weston, 240 North Third Street,
Hanisburg, PA 17101-1507, my true and lawful Attorney, for me and in my name, place and
stead, to execute, as fully as I could do if personally present in the name of Harvest States to
execute and deliver, as fully as I could do if personally present, that Memorandum of Agreement
Among the Advisory Council on Historic Preservation, the United States Environmental
Protection Agency and the Pennsylvania State Historic Preservation Office related to the Harvest
States Cooperatives/Amber Milling Company Division and Lackawanna County Railroad
Authority Proposed Flour Milling Facility, Monroe County, PA, and I do hereby ratify and
confirm whatsoever my said attorney shall lawfully do or cause to be done by virtue hereof.
This Special Power of Attorney shall continue in force and may be accepted and relied
upon by any person to whom it is presented, despite my purported revocation of it or my death,
until actual written notice of such revocation or death is received by such person.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 7ch
day of August, 1997.
ATTEST: HARVEST/STATES COOPERATIVES
-¦^UiSprrtfJjdja^ By:
ssistant Secretary Garry A Piste
Group Vice President, Harvest States Cooperatives
President, Harvest States Cooperatives/Amber
Milling Company Division
-------
ACKNOWLEDGEMENT
STATE OF MINNESOTA
COUNTY OF RAMSEY
On this the ^ day of August, 1997, before me, a Notary Public, the undersigned officer,
personally appeared Garry A. Pistoria, who acknowledged himself to be the Group Vice President
of Harvest States Cooperatives, a Minnesota cooperative association, and the President of
Harvest States Cooperatives/Amber Milling Company Division and that he as such Group Vice
President of Harvest States Cooperatives and as President of Harvest States Cooperatives/Amber
Milling Company Division, being authorized to do so, executed the foregoing Special Power of
Attorney, for the purposes therein contained by signing his name as Group Vice President of
Harvest States Cooperatives and President of Harvest States Cooperatives/Amber Milling
Company Division.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
X UUUW
NOTARY PUBLIC - MINNESOTA
^WASHINGTON COUNTY
My Comm. Expires Jan. 31.2000
ESTHER I. LONGSETH
HA-G927.01
-------
Power of Attorney
Know All Men By These Presents,
I, Lawrence C. MaJski, as the Executive Director of the Lackawanna County Railroad
Authority (the "Authority"), a Pennsylvania municipal authority, having the appropriate
authority to bind the Authority, and to make such appointments, has made, constituted and
appointed, and by these presents does make, constitute and appoint R. Timothy Weston, 240
North Third Street, Harrisburg, PA 17101-1507, my true and lawful Attorney, for me and in my
name, place and stead, to execute, as fully as I could do if personally present in the name of
the Authority to execute and deliver, as fully as I could do if personally present, that
Memorandum of Agreement Among the Advisory Council on Historic Preservation, the United
States Environmental Protection Agency and the Pennsylvania State Historic Preservation Office
related to the Harvest States Cooperatives/Amber Milling Company Division and Lackawanna
County Railroad Authority Proposed Flour Milling Facility, Monroe County, PA., and I do
hereby ratify and confirm whatsoever my said attorney shall lawfully do or cause to be done by
virtue hereof.
This Special Power of Attorney shall continue in force and may be accepted and relied
upon by any person tD whom it is presented, despite my purported revocation of it or my
death, until actual written notice of such revocation or death is received by such person.
IN WITNESS WHEREOF, I have hereunto set my band and seal this
day of August, 1997.
ATTEST:
LACKAWANNA COUNTY RAILROAD
AUTHORITY
By:
Lawrence C. Malski, Executive Director
-------
acknowledgement
STATE OF FLORIDA
COUNTY OF
Oa this the <7* day of August, 1997, before me, a Notary Public, the undersigned
officer, personally appeared Lawrence C. Malski, who acknowledged himself to be the
Executive Director of the Lackawanna County Railroad Authority, a Pennsylvania municipal
authority, and that he as such Executive Director, being authorized to do so, executed the
foregoing Special Power of Attorney, for the purposes therein contained by signing his name
as Executive Director of the Lackawanna County Railroad Authority.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
J* Nadho Smncon
'¦ft MyCcmrussanC€S32489
'f Eipm Motfi 31. 2001
KA-G927.0:
-------
Memorandum of Agreement (Draft 6/2/00)
for Recovery of Significant Information and Mitigation of Adverse Effects
In Compliance With the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
As Amended, 42 U.S.C. § 9601 etseo. ("CERCLA")
and Section 106 of the National Historic Preservation Act of 1966,
As Amended, 16 U.S.C. § 470f ("NHPA")
For
Undertaking
State
AGENCY
Eastern Surplus Company Superfund Site, Meddybemps, Maine
Federal Environmental Cleanup of Hazardous Waste Site
Maine
United States Environmental Protection Agency
1. Whereas, the United States Environmental Protection Agency ("EPA") has determined
that its environmental cleanup activities at the Eastern Surplus Company Superfund Site (the
"Site") have, and will continue to have, adverse effects upon the archaeological resources located
within Archaeological Site 96.02 (as named by the Maine Historic Preservation Commission in
its prehistoric site survey files), portions of which have been determined to be eligible for listing
on the National Register of Historic Places; and
2. Whereas, in accordance with 36 C.F.R. Part 800, EPA acknowledges and accepts the
advice and conditions outlined in the Advisory Council on Historic Preservation's
'"Recommended Approach for Consultation on the Recovery of Significant Information from
Archaeological Sites,1' published in the Federal Register on May 18, 1999, with an effective date
of June 17, 1999 (the "Published Guidance"); and
3. Whereas, EPA has consulted with the Maine Historic Preservation Commission,
which is the designated State Historic Preservation Officer ("SHPO") in accordance with NHPA,
in order to comply with NHPA and its regulations, 36 C.F.R. Part 800 (the "Section 106
Process"); and
4. Whereas, EPA has identified as other consulting parties in the Section 106 process the
following: the Passamaquoddy Tribe (Indian Township and Pleasant Point); the Site property
owners (Terrell L. & Lisa J. Lord and Harry J. Smith, Jr.); the State of Maine (the Department of
Environmental Protection and the Maine State Museum); and the Town of Meddybemps, Maine,
and has invited the Passamaquoddy Tribe to sign this Memorandum of Agreement
("Agreement") as an invited signatory; and
5.. Whereas. EPA_has_consulted with the_Passamaquoddy Tribe, which attaches religious,
and cultural significance to Archaeological Site 96.02 (by virtue of its location and setting, and
the archaeological materials found there), and which requests active participation in any future
archaeological work at Archaeological Site 96.02 and in the future management of the Site; and
-------
EXAMPLE 6-E
EASTERN SURPLUS
-------
Memorandum of Agreement
for Recovery of Significant Information and Mitigation of Adverse Effects
In Compliance With the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
As Amended, 42 U.S.C. § 9601 etseo. f"CERCLA")
and Section 106 of the National Historic Preservation Act of 1966,
As Amended, 16 U.S.C. § 470f ("NHPA")
For: Eastern Surplus Company Superfund Site, Meddybemps, Maine
Undertaking: Federal Environmental Cleanup of Hazardous Substance Site
State: Maine
Agency: United States Environmental Protection Agency
1. Whereas, the United States Environmental Protection Agency ("EPA") has determined
that its environmental cleanup activities at the Eastern Surplus Company Superfund Site (the
"Site") have, and will continue to have, adverse effects upon the archaeological resources located
within Archaeological Site 96.02 (as named by the Maine Historic Preservation Commission in
its prehistoric site survey files), portions of which have been determined to be eligible for listing
on the National Register of Historic Places; and
2. Whereas, in accordance with 36 C.F.R. Part 800, EPA acknowledges and accepts the
advice and conditions outlined in the Advisory Council on Historic Preservation's
"Recommended Approach for Consultation on the Recovery of Significant Information from
Archaeological Sites," published in the Federal Register on May 18, 1999, with an effective date
of June 17,1999 (the "Published Guidance"); and
3. Whereas, EPA has consulted with the Maine Historic Preservation Commission,
which is the designated State Historic Preservation Officer ("SHPO") in accordance with NHPA,
in order to comply with NHPA and its regulations, 36 C.F.R. Part 800 (the "Section 106
Process"); and
4. Whereas, EPA has identified as other consulting parties in the Section 106 Process the
following: the Passamaquoddy Tribe (Indian Township and Pleasant Point); the Site property
owners (Terrell L. & Lisa J. Lord and Harry J. Smith, Jr.); the State of Maine (the Department of
Environmental Protection and the Maine State Museum); and the Town of Meddybemps, Maine,
and has invited the Passamaquoddy Tribe to sign this Memorandum of Agreement
("Agreement") as an invited signatory; and
5. Whereas, EPA has consulted with the Passamaquoddy Tribe, which attaches religious,
and cultural significance to Archaeological Site 96.02 (by virtue of its location and setting, and
the archaeological materials found there), and which requests active participation in any future
archaeological work at Archaeological Site 96.02 and in the future management of the Site; and
-------
Eastern Surplus Company Superfund Site
iMOA for Recovery of Significant Information and Mitigation of Adverse Effects
Page 2
6. Whereas, EPA reached an agreement with the SHPO concerning the extent of the
Archaeological Site 96.02, the effects of the environmental cleanup activities on Archaeological
Site 96.02, and the areas designated for archaeological investigations1; and
7. Whereas, EPA has completed field work and preliminary analysis associated with
Phase I and Phase II investigations of Archaeological Site 96.02; and
8. Whereas, EPA and the SHPO have determined that portions of Archaeological Site
96.02 are eligible for National Register listing because these areas meet the National Register
Criteria, 36 C.F.R. § 60.4, in particular, the Ceramic Period and Laurentian Archaic Contexts
guiding National Register eligibility determinations for prehistoric archaeological sites in
Maine2; and
9. Whereas, EPA has met in consultation with representatives of the Passamaquoddy
Tribe (Indian Township and Pleasant Point), including with the Tribal Governors on June 25,
1999 and with the Tribal Governors and the Passamaquoddy Joint Council on July 14, 1999,
concerning the findings and determinations made during the Section 106 Process; and
10. Whereas, EPA through its CERCLA public outreach process has provided the public
with information about the environmental cleanup activities and their effects on historic
properties at the Site and has given the public the opportunity to provide comment and input; and
11. Whereas, in accordance with 36 C.F.R. § 800.6(a)(1), EPA notified the Advisory
Council on Historic Preservation (the "Advisory Council") of the adverse effects to
Archaeological Site 96.02, and the Advisory Council accepted EPA's invitation to participate in
consultation; and
12. Whereas, EPA, the Advisory Council, the SHPO, and the Passamaquoddy Tribe
agree that it is in the public interest for EPA to implement environmental cleanup activities to
address the contamination of hazardous substances at the Site and that there are no practicable
alternatives to the cleanup approach selected by EPA in the July 1998 and May 1999 Action
'Details of this agreement are documented in a letter dated June 25, 1999 from the SHPO
to EPA and in letters dated June 24,1999 from EPA to Governor Richard Stevens of the
Passamaquoddy Tribe's Indian Township Tribal Government and Governor Richard Doyle of the
Passamaquoddy Tribe's Pleasant Point Tribal Government.
2The areas that have been determined to be eligible for listing are identified in the
attached Site map (see Attachment 1).
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Eastern Surplus Company Superfund Site
MOA for Recovery of Significant Information and Mitigation of Adverse Effects
Page 3
Memorandums that would have fewer adverse effects on the archaeological resources located
within Archaeological Site 96.02; and
13. Whereas, EPA, the Advisory Council, the SHPO, and the Passamaquoddy Tribe
agree that it is unavoidable that aspects of the Archaeological Site have been, and will continue
to be, adversely affected as a result of EPA's environmental cleanup activities; and
14. Whereas, EPA, the Advisory Council, the SHPO, and the Passamaquoddy Tribe
agree that EPA has made best efforts to minimize adverse effects on the archaeological resources
located within Archaeological Site 96.02; and
15. Whereas, EPA, the Advisory Council, the SHPO, and the Passamaquoddy Tribe
agree that the recovery of significant archaeological information from the Site will be done in
accordance with the Published Guidance; and
16. Whereas, to the best knowledge and belief of EPA, the Advisory Council, the SHPO,
and the Passamaquoddy Tribe, no human remains, associated or funerary objects or sacred
objects, or cultural patrimony, as defined in the Native American Graves Protection and
Repatriation Act (25 U.S.C. § 3001), are expected to be encountered in the archaeological work;
and
17. Whereas, the ownership and disposition of the archaeological artifacts recovered
from Archaeological Site 96.02 are anticipated to be resolved by Passamaquoddy Tribe, the State
of Maine and the Robert Abbe Museum of Stone Age Antiquities in an agreement or agreements
outside of this Agreement;
Now, therefore, EPA shall ensure that the following terms and conditions will be
implemented in a timely manner and with adequate resources in compliance with CERCLA and
NHPA.
Terms and Conditions
1. EPA shall develop a mitigation plan based upon CERCLA remedial design parameters
for the Site and the research design for the recovery of archaeological data. The mitigation plan
shall be developed in consultation with the SHPO and the Passamaquoddy Tribe.
2. EPA shall ensure that all archaeological research will be carried out pursuant to this
Agreement under the direct supervision of a person or persons meeting at a minimum the
Secretary of Interior's Professional Qualifications Standards for Historians and Archaeologists
(48 Federal Register 44738-44739, September 29, 1983) and listed on the Maine level 2
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Eastern Surplus Company Superfund Site
MOA for Recovery of Significant Information and Mitigation of Adverse Effects
Page 4
approved list for prehistoric archaeologists, and that there is an opportunity for at least one
member of the Passamaquoddy Tribe to be employed during the entire period of field
investigations.
3. The mitigation plan shall include, at a minimum: additional archaeological field
investigations, extending over approximately 200 square meters; reports addressing the scientific
and cultural value of the recovered materials; and generation of popular reporting materials to
transmit the findings to the public. The evaluation of the cultural value of the recovered
materials will be performed by consulting with appropriate experts, including members of the
Passamaquoddy Tribe. The mitigation plan shall require EPA to provide an on-Site public
educational exhibit and to install appropriate signs to notify the public of any land use restrictions
and the significance of Archaeological Site 96.02. The mitigation plan shall also require EPA to
place a soil cover over existing soils in the National Register eligible areas to protect remaining
portions of the Archaeological Site and establish appropriate grades for erosion control.
4. EPA shall ensure that, if any human remains or funerary objects are discovered at the
Site in the course of the archaeological work, the human remains and funerary objects will
remain undisturbed unless threatened by construction or erosion, and the archaeological activity
will relocate out of the immediate vicinity.
5. EPA shall ensure that original records associated with the Phase 1 through Phase III
archaeological excavations at the Site will be curated at a repository meeting the standards set
forth in 36 C.F.R. Part 79. EPA shall ensure that copies of completed professional and popular
reports will be provided to the SHPO and the Passamaquoddy Tribe.
6. EPA shall include in the Site's remedial action Record of Decision a requirement to
implement land use restrictions which will prevent development and any other ground
disturbance that would adversely affect the cultural or historical resources at the Site, except any
ground disturbance resulting from environmental cleanup or mitigation activities.
7. Modification, amendment, or termination of this Agreement as necessary shall be
accomplished by the signatories in the same manner as this Agreement.
8. Should any party to this Agreement object at any time to the manner in which the
terms of the Agreement are implemented, EPA shall consult with the objecting party to resolve
the objection. If EPA determines that the objection cannot be resolved, EPA shall forward all
documentation relevant to the dispute to the Advisory Council in accordance with 36 C.F.R. §
800.2(b)(2). Upon receipt of adequate documentation, the Advisory Council will either:
a. provide EPA with recommendations, which EPA will take into account in
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Eastern Surplus Company Superfund Site
MOA for Recovery of Significant Information and Mitigation of Adverse Effects
Page 5
reaching a final decision regarding the dispute; or
b. notify EPA that it will comment pursuant 36 C.F.R. § 800.7(c), and proceed to
comment. Any Advisory Council comment provided in response to such a request will be taken
into account by EPA in accordance with 36 C.F.R. § 800.7(c)(4) with reference to the subject of
the dispute.
Any recommendation or comment provided by the Advisory Council will be understood to
pertain only to the subject of the dispute; EPA's responsibility to carry out all actions under this
Agreement that are not the subjects of the dispute will remain unchanged.
9. This Agreement will be null and void if its terms are not carried out within five (5)
years from the date of its execution, unless the signatories agree in writing to an extension for
carrying out its terms.
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w
ur/ue/uu n\ib CP :0d/u5 noi^bb
Eastern Surplus Company Suhi;ri:und Site
MOa for Recovery of Significant Information and Mitigation ok Adverse Effects
Page 6
The Undersigned Party enters into this Memorandum of Agreement for Recovery of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Superfund Site.
For the U.S. Environmental Protection agencv
Date:
Patricia L. Meancy
Director
Office of Site Remediation & Restoration
EPA New England
U.S. Environmental Protection Agency
1 Congress Street, Suite 1100
Boston, Massachusetts 02114-2023
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Eastern Surplus Company Superfund Site
MOA for Recovery of Significant Information and Mitigation of Adverse Effects
Page 7
The UNDERSIGNED Party enters into this Memorandum of Agreement for Recovery of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Superfund Site.
Date:
For the Advisory Council on Historic Preservation
John M. Fowler
Executive Director
Advisory Council on Historic Preservation
The Old Post Office Building
1100 Pennsylvania Avenue, N.W. #809
Washington, DC 20004
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Uf/U6/UU 11:24 H : 0,5/05 NO:388
Eastern Surplus Company Superfund Site
MOA for Recovery of Significant Information and Mitigation of adverse Effects
Page 8
The UndersionED Party enters into this Memorandum of Agreement for Recovery of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Superfund Site.
For the Maine Historic Preservation Commission
Date:. * J•
Earle G. Shettlewc
Director
Maine Historic Preservation Commission
55 Capitol Street
65 State House Station
Augusta, Maine 04333
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Eastern Surplus Company Superfund Site
MOA for Recovery of Significant Information and Mitigation of adverse Effects
Page 9
The Undersigned Party enters into this Memorandum of Agreement for Recovery of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Super fund Site.
For the Pass/vmaquoddy Tribe
Date; 07/13/00
Date: 07/13/00
RiAard Doyle
Tribal Governor
Pleasant Point Rsservauon
P.O. Box 343
Perry, Maine 04667
Richard Stevens
TribaJ Governor
Indian Township Reservation
P.O. Dox. 301
Princeton>-Maine 04668
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ATTACHMENT 1
lake
SITE 96.02 BOUNDARY
GRAPHIC SCALE
200
[A
Archaeological Research Consultants, Idc
Rj 71 Oak Street. Ellsworth, Maine 0460*;
muacr-
Eastern Surplus Company Superfund Site
j-lCl PhoDe f207) 667-4055; Fax (207) 667-0485
CXifiKT
Tetra Tech NUS
Estimated limits of site 96.02.
DATS.
01/28/2000
DtAVH rr.
JAC
FOX
D:\Projects\Meddybemps\site limits.dwg
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AGREEMENT
1. Whereas, the Consent Decree entered as a final judgment on March 29, 1999, in the
consolidated actions of United States of America v Harry J. Smith. Jr.. et al. CA-99-21-B, and
State of Maine v Harry J. Smith, Jr.. et al. CA-99-22-B, both actions filed in the United States
District Court, District of Maine (Bangor), provided for the cleanup of the Eastern Surplus
Superfund Site as well as the conveyance of real property to the State of Maine as set forth in
Section V. of the said Consent Decree and as depicted in Appendix B to the said Consent Decree
as referenced therein;
2. Whereas, during the cleanup of the Eastern Surplus Superfund Site performed under
contract with the United States Environmental Protection Agency (hereinafter, "EPA") certain
archaeological materials have been recovered and removed from the Site and it is anticipated that
additional archaeological materials will be recovered and removed from the Site during
additional archaeological field investigation at the Site conducted pursuant to a separate
Memorandum of Agreement which has been or will be entered among the Passamaquoddy Tribe,
EPA, the State of Maine, and the Advisory Council on Historic Preservation;
3. Whereas, the Passamaquoddy Tribe, a Federally recognized Indian tribe, claims rights,
title, and interests in the said archaeological materials which have been or will be recovered or
removed from the location described in Section V. of the said Consent Decree as well as
archaeological materials remaining at said location, including items remaining within the earth
at said location;
4. Whereas, the State of Maine, including the Maine Department of Environmental
Protection, and the Maine State Museum (hereinafter, collectively, the "State of Maine" or
"State"), claims rights, title, and interests in the said archaeological materials which have been
or will be recovered or removed from the location described in Section V. of the said Consent
Decree as well as archaeological materials remaining at said location, including items remaining
within the earth at said location;
5. Whereas, the Passamaquoddy Tribe and the State of Maine ar-e-eemmitted to having
the said archaeological materials curated in accordance with responsible museum practices,
consistent with the standards established by the United States Department of the Interior for
1
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Federal repositories;
6. Whereas, the Passamaquoddy Tribe and the State of Maine each recognizes and
accepts the Robert Abbe Museum of Stone Age Antiquities (hereinafter, "Abbe Museum") as an
institution proper for the curation of the said archaeological materials:
7. Whereas, Terrell L. Lord, Lisa J. Lord, and Harry J. Smith, Jr., have agreed pursuant to
the said Consent Decree, to transfer all rights, title, and interests which they may hold to all real
property located at the said Site;
8. Whereas, by operation of the said Consent Decree, after August 31,1998, Harry J.
Smith, Jr., has been deemed to have abandoned and to have no claim for compensation for any
personal property remaining at the said Site;
9. Whereas, Harry J. Smith, Jr., conveyed all rights, title, and interests in archaeological
materials removed from and embedded in the soil of his real property located at the said Site to
the Passamaquoddy Tribe, through the instrument of a Preservation Agreement, recorded in Book
2385. Page 49, at the Washington County Registry of Deeds;
NOW THEREFORE, in consideration of the promises mutually exchanged herein,
IT IS AGREED TO BETWEEN THE PARTIES as follows:
1. The Passamaquoddy Tribe, the State of Maine, Terrell L. Lord, and Lisa J. Lord will
each release all of their respective rights, title, and interests to the said archaeological materials
(hereinafter, "the collection") to the Abbe Museum, in accordance with a Quitclaim Deed of
Conveyance as set forth in Exhibit A, attached hereto to be executed and delivered herewith;
2. The collection thereby conveyed shall be delivered to the Abbe Museum as a museum-
suitable collection by EPA's archaeologist, after a reasonable period of examination for the
purpose of inventorying and studying the said archaeological materials, but not later than two
years from the date of this Agreement.
3. While the Passamaquoddy Tribe and the State of Maine recognize that they each make
claim to rights, title, and interests in the collection thereby conveyed, each hereby agrees that this
Agreement shall not be construed or claimed by either of them to be an admission of the claim
made to said items by the other.
4. The Abbe Museum, by its acceptance of the terms of this Agreement, agrees that while
2
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it has title to said collection (see "Exhibit A") it will hold and handle the archaeological materials
thereby conveyed in accordance with the standards established by the United States Department
of the Interior for Federal repositories (hereinafter, the "agreed-upon standards") and responsible
museum practices.
5. The Abbe Museum, by its acceptance of the terms of this Agreement, agrees that it
will provide at least forty-five days notice to the Passamaquoddy Tribe and the State of Maine by
sending notification to each party at the addresses provided in this Agreement, prior to
transferring all or any portion of the collection to a third party.
6. Archaeological materials which have not been recovered in earlier Site work or to be
recovered pursuant to the Memorandum of Agreement regarding the Meddybemps site, shall be
protected from excavation, to the extent the parties can reasonably do so, including specifically
by means of restrictive deed covenants to run with the land, in any and all deeds transferring the
real property or any interest therein as to which deeds any of the parties to this Agreement shall
be Grantor, except that any archaeological materials that may be found at the Site after the date
of this Agreement, notwithstanding the foregoing restriction, shall be owned, held, and
maintained by the Abbe Museum in the same manner as those hereby presently conveyed to the
Abbe Museum.
7. Notwithstanding paragraph 5 of this Agreement, any portion or all of the collection
may be transferred to the Passamaquoddy Tribe at any time after the Passamaquoddy Tribe has a
museum facility that complies with the agreed-upon standards set forth in paragraph 4 of the
Agreement and responsible museum practices.
8. If any portion or all of the collection is transferred to a museum other than the museum
facility of the Passamaquoddy Tribe, that museum must be:
(a) a museum which will hold the collection in compliance with the agreed-upon
standards as set forth in paragraph 4 and responsible museum practices;
(b) at a location within the State of Maine determined by the committee of 8(c); and
(c) the specific facility to which the collection is transferred under this section will be
selected by consensus, if possible, but if not possible, by a majority vote of a committee
3
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composed of a representative determined for that purpose by the Passamaquoddy Tribe, selected
by Tribal Historic Preservation Officer, or, if none, by the Joint Tribal Council, a representative
determined for that purpose by the State of Maine selected by the State. Historic Preservation
Officer, and a representative of the Abbe Museum determined for that purpose by the Abbe
Museum Board of Trustees.
9. The State of Maine, the Passamaquoddy Tribe, Terrell L. Lord, and Lisa J. Lord, and
the Abbe Museum hereby agree to the full extent permitted by law to sign and execute any and
all other documents, instruments or other writings necessary to effectuate the provisions of this
Agreement. The undersigned parties hereby agree to accept and abide by the terms of this
Agreement.
Personally appeared before me the above-named Richard Doyle, in his capacity as Tribal
Governor of the Passamaquoddy Tribe, and who stated that he acknowledged his signature before
me as his fiee act and deed.
Richard Doyle, Tribal \jovemqr.
On behalf of
the Passamaquoddy Tribe,
Its duly authorized representative
On behalf of
the Passamaquoddy Tribe,
Its duly authorized representative
4
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Personally appeared before me the above-named Richard Stevens, in his capacity as Tribal
Governor of the Passamaquoddy Tribe, and who stated that he acknowledged his signature before
me as his free act and deed.
Dated at , Maine
, 2000
Notary Public/Attorney at Law
Printed Name of Official:
Dated at , Maine
, 2000
HtrtUn
Martha G. Kirkpatrick, Commissioner
State of Maine
Department of Environmental Protection
for the State of Maine,
Its duly authorized representative
Personally appeared before me the above-named Martha G. Kirkpatrick, in her capacity as
Commissioner, Maine Department of Environmental Protection, and who stated that she
acknowledged her signature before me as her free act and deed.
Dated at , Maine
, 2000
Notary Public/Attorney at Law
Printed Name of Official:
J C>$epL
Dated at /l<^ ~ , Maine
ty, 2000
loseph R. Phillips, Museum Director
Maine State Museum
Its duly authorized representative
Personally appeared before me the above-named Joseph R. Phillips, in his capacity as Museum
Director, Maine State Museum, and who stated that he acknowledged his signature before me as
5
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his free act and deed. j ^
:/ "~V
Dated at _ gpSi?? , Maine ' - /j
r
Noe^fei&ZAttorney at Law -•
Printed Name of Official:
ki k i\&1 m is L
>W& , Maine L J /l/ ^ ^
> 2000 /p\Ai^yyZ^> j &V2
Dated at $/.'a^ajQ^2<.. Maine
•j (dU\. t
dermis J. Harnish,
Assistant Attorney General
Department of the Attorney General
for the State of Maine,
Its duly authorized representative
Personally appeared before me the above-named Dennis J. Hamish, Esquire, in his capacity as
Assistant Attorney General, authorized to so act on behalf of the Attorney General for the State
of Maine, who stated that he acknowledged his signature before me as his free
behalf of the State of Maine. Notary Pubiic • State of :Vte
My Commission Exoirss: 3/';.
Dated at , Maine • O /I'
¦ "pa ixj ^iA, 2000 L. hcufr/d-//)
' Notary Public/Attorney at Law
Printed Name of Official:
Dated at TfU-yiizni , Maine p
22^,2000 Ua*€l*- I.
tj"
Oscar E. Remick, President
Board of Trustees
for the Abbe Museum,
Its duly authorized representative
Personally appeared before me the above-named Oscar E. Remick, in his capacity as President,
Board of Trustees, Robert Abbe Museum of Stone-age Antiquities, and who stated that he
6
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acknowledged his signature before me as his free act and deed.
Dated at Maine
Suix 2£_, 2000
o
Notary Pub lie/Attorney at Law
Printed Name of Official:
s-j I Q,
Dated at L.alcti < , Maine o , n
£= 2000 IoaaOJ/'P-.^M
Terrell L. Lord
Personally appeared before me the above-named Terrell L. Lord, who stated that he
acknowledged his signature before me as his free act and deed.
Dated at /a/art .Maine J f/
/?*j, 2000 //MM, A
(j Notary Publi^JAttorney at Law
Printed Name of Official:
Dated at CjxJcu^ , Maine
. 2000
Personally appeared before me the above-named Lisa J. Lord, who stated that she acknowledged
her signature before me as her free act and deed.
Dated at £a~laiS Maine
/AxJt
0 Notary Public/Attorney at Law
J5. , 2000 /SUtZfo yi
Not
Printed Name of Official:
7
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Quitclaim Deed of Conveyance
KNOW ALL MEN BY THESE PRESENTS, That, the STATE OF MAINE, in care of
its Commissioner of the Maine Department of Environmental Protection, Hospital Street AMHI
Ray Building, 17 State House Station, Augusta, Maine 04333-0017, and the Museum Director of
the Maine State Museum, Cultural Building, 83 State House Station, Augusta, Maine 04333-
0083, in consideration of an Agreement signed by the State of Maine on July 13 ;
2000,
and the PASSAMAQUODDY TRIBE, a Federally recognized Indian Tribe, whose
mailing address is P.O. Box 343, Perry, Maine 04667, and P.O. Box 301, Princeton, Maine
04668, in consideration of an Agreement signed by the Passamaquoddy Tribe on July 20
2000,
and Terrell L. Lord and Lisa J. Lord, of Meddybemps, County of Washington, State of
Maine,
do hereby RELEASE unto the said Robert Abbe Museum of Stone Age Antiquities,
P.O. Box 286, Mount Desert Street, Bar Harbor, Maine 04609, its successors and assigns, in
accordance with the terms of said agreement, the terms of which were accepted by the Robert
Abbe Museum of Stone Age Antiquities, by date of July 28 ,2000,
all of their respective rights, title, and interests in all archaeological materials removed,
and to be removed, or subsequently discovered from site 96.02, the Eastern Surplus Company
Superfund Site, which is located in Meddybemps, Maine. The archaeological materials include
without limitation various types of stone artifacts, aboriginal ceramic fragments, burned food
bone remains, samples of carbonized plants remains, and soil samples.
TO HAVE AND TO HOLD all and singular the said goods to the said Robert Abbe
Museum of Stone Age Antiquities, its successors and and assigns, in accordance with the terms
of said Agreement to which reference is hereby made.
WITNESS our hands and seals,
1
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Dated at SO-C$Ui a) , Maine
*5u(l
-------
Dated at
, Maine
2000
Notary Public/Attorney at Law
Printed Name of Official:
Dated at
, Maine
2000
rl _ f j
¦UDJOl XlJ,' ^
Martha G. Kirkpatrick, Commissioner
State of Maine
Department of Environmental Protection
for the State of Maine,
Its duly authorized representative
Personally appeared before me the above-named Martha G. Kirkpatrick, in her capacity as
Commissioner, Maine Department of Environmental Protection, and who stated that she
acknowledged her signature before me as her free act and deed.
Dated at A c Maine
•JUfy JJ_, 2000
\seph R. Phillips, Museum Director
3
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Maine State Museum
Its duly authorized representative
Personally appeared before me the above-named Joseph R. Phillips, in his capacity as Museum
Director, Maine State Museum, and who stated that he acknowledged his signature before me as
his free act and deed.
Dated at i.j^\ , Maine ^ ^
{ idiu i / 3 , 2000
{1 f 7 L
Notor Eubhc/Attorney at Law
Printed Name of Official:
sL
Dated at Maine
_/3 2000
tennis 'J. Harnish,
Assistant Attorney General
Department of the Attorney General
for the State of Maine,
Its duly authorized representative
Personally appeared before me the above-named Dennis J. Harnish, Esquire, in his capacity as
Assistant Attorney General, authorized to so act on behalf of the Attorney General for the State
of Maine, who stated that he acknowledged his signature before me as his free act and deed on
behalf of the State of Maine.
Dated xfkgi/m Maine
4
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'Tajh J 13,2000
Notary Public/Attorney at Law
y SUSAN L PARADIS
Notary Public * State of Mains
• i My Commission Exoiras\3/t2'G£
Printed Name of Official.
Dated at Tfttxiru— , Maine
Vk , 2000
% \ <->
Oscar E. Remick, President
Board of Trustees
for the Abbe Museum,
Its duly authorized representative
Personally appeared before me the above-named Oscar E. Remick, in his capacity as President,
Board of Trustees, Robert Abbe Museum of Stone-age Antiquities, and who stated that he
acknowledged his signature before me as his free act and deed.
Dated at Tjudbxi. Maine
liM 2% , 2000
Notary Public/Attorney at Law
Printed Name of Official:
Dated at Maine
Zr, 2000
ivjt uutex kS.
Terrell L. Lord
Personally appeared before me the above-named Terrell L. Lord, who stated that he
5
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acknowledged his signature before me as his free act and deed.
/) ,
Datesd at /.? ; Maine
/y /// . , y? //
2000 ^//s ..
S n
U Notary Public/Attorney at Law
Printed Name of Official:
. Lbwl^j/ / , ^/^717-V r
Dated at Calais Maine
Auj . , 2000
Lisa J. Lord
Personally appeared before me the above-named Lisa J. Lord, who stated that she acknowledged
her signature before me as her free act and deed.
A' } y J
Dated at C. Maine ^ ^ ,
¦> JS2000 /Au&v ^.
(I Notaiy Public/attorney at Law
Printed Name of Official:
!\, S/) -nn c <
/
6
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EXAMPLE 6-F
EASTLAND WOOLEN
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Memorandum of agreement
for Mitigation of adverse Effects
Jn Comi'i.ianci With thi.
C( Xvli'RI-HlINSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND Ll ABIU I'Y ACT O! 1980,
As Amended, 42 u S C § 9601 et seo. ("CERCLA")
and Section ] 06 of the National Historic Preservation Aci or 1966,
As Amended, 16 u.S C § 470f ("NHPA")
For: Eastland Woolen Mill Superfund Site, Corinna, Maine
Undertaking: Federal Environmental Cleanup of Hazardous Substance Site
State: Maine
Agency- United States Environmental Protection Agency
1. Whereas, the United States Environmental Protection Agency ("EPA") has determined
that its environmental cleanup activities at the Eastland Woolen Mill Superfund Site (the "Site")
will have an adverse effect upon a historic property which has been determined to be eligible for
listing on the National Register of Historic Places; and
2. Whereas, EPA has consulted with the Director of the Maine Historic Preservation
Commission, who is the designated State Historic Preservation Officer ("SHPO") in accordance
with NHPA, in order to comply with NHPA and its regulations, 36 C.F.R. Part 800 (the "Section
106 Process"); and
3. Whereas, EPA has identified as other consulting parties in the Section 106 Process the
following: the Town of Corinna, the Town of Corinna Historical Sotiety, and the Independent
Order of Odd Fellows ("Odd Fellows"); and
4. Whereas, EPA and the SHPO have determined that the Odd Fellows structure is
eligible for National Register listing in accordance with the National Register Criteria, 36 C.F.R. §
60.4, in particular, the structure has important cultural associations in the town, the state, and the
New England region as one of the more widespread fraternal societies; and
5. Whereas, EPA through its CERCLA public outreach process has provided the public
with information about the environmental cleanup activities and their effects on historic properties
at the Site and has given the public the opportunity to provide comment and input, and
6. Whereas, in accordance with 36 C.F.R. § 800.6(a)(1), EPA notified the Advisory
Council on Historic Preservation (the "Advisory Council") of the adverse effects to a historic
property, and
7. Whereas, EPA and the SHPO agree that it is in the public interest for EPA to
implement environmental cleanup activities to address the contamination of hazardous substances
at the Site and that there are no practicable alternatives to the cleanup approach selected by EPA
-------
Ea.stl.and woolen Mill Supertund Sitl
MOA FOR MITIGATION OF ADVI-RSF EFIT-CI'S
PAGL 2
in the July 1999 Action Memorandum that would have fewer adverse effects on the historic
property located within the Site, and
8. Whereas, EPA and the SHPO agree that it is unavoidable that aspects of the historic
property will be adversely affected as a result of EPA's environmental cleanup activities, and
9. Whereas, EPA and the SHPO agree that EPA has made best efforts to minimize
adverse effects on the historic property, and
10. Whereas, to the best knowledge and belief of EPA and the SHPO, no human remains,
associated or funeraiy objects or sacred objects, or cultural patrimony, as defined in the Native
American Graves Protection and Repatriation Act (25 U.S.C. § 3001), are expected to be
encountered in the archaeological work; and
Now, therefore, EPA shall ensure that the following terms and conditions will be
implemented in a timely manner and with adequate resources in compliance with CERCLA and
NHPA.
Terms and Conditions
1.. EPA shall ensure that the property is moved in accordance with the approaches
recommended in Moving Historic Buildings (John Obed Curtis, 1979, American Association for
State and Local History) and the Eastland Woolen Mill Superfund Site "Oddfellows Building
Relocation, Building Relocation Plan," (August 11, 2000) in consultation with the SHPO, by a
professional mover who has the capability to move historic structures properly
2. Before the Odd Fellows structure is moved, EPA shall ensure that it is documented in
its existing setting and context in accordance with the documentation plan entitled Schedule of
Documentation for the Recording of Odd Fellows Hall, Corinna, Maine provided to EPA by the
Maine Historic Preservation Commission by letter dated July 10, 2000 and attached.
3. The owners of the Odd Fellows structure shall implement a Conservation Easement
and Declaration of Restrictive Covenants which prevent the alteration of the structure in a
manner that would cause a loss of the historic integrity. Such instrument will include a provision
that requires the approval of the Maine Historic Preservation Commission prior to any alteration
of the structure.
4. Should any party to this Agreement object at any time to the manner in which the terms
of the Agreement are implemented.
a. EPA shall consult with the objecting party to resolve the objection, and
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Easti.and wc K)!.r:N Mn.i. Siji'erhjhd Sen-.
MOA K>R Mil K i A'l ION ()|- AlJVhR.SE EiThCIS
Pa(ii: 3
b If EPA determines that the objection cannot be resolved, EPA shall forward all
documentation relevant to the dispute to the Advisory Council in accordance with 36 C.F R. §
800.2(b)(2). Upon receipt of adequate documentation, the Advisory Council will either.
1. provide EPA with recommendations, which EPA will take into account
in reaching a final decision regarding the dispute; or
2. notify EPA that it will comment pursuant 36 C.F.R. § 800.7(c), and
proceed to comment. Any Advisory Council comment provided in response to such a request will
be taken into account by EPA in accordance with 36 C.F.R. § 800.7(c)(4) with reference to the
subject of the dispute.
Any recommendation or comment provided by the Advisory Council will be understood to pertain
only to the subject of the dispute; EPA's responsibility to carry out all actions under this
Agreement that are not the subjects of the dispute will remain unchanged.
5. This Agreement will be null and void if its terms are not carried out within five (5)
years from the date of its execution, unless the signatories agree in writing to an extension for
carrying out its terms.
The UNDERSIGNED Party enters into this Memorandum of Agreement for Recovery of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Superfund Site.
Director
Office of Site Remediation & Restoration
EPA New England
U.S. Environmental Protection Agency
1 Congress Street, Suite 1100
Boston, Massachusetts 02114-2023
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Eastland 'f'I i n Mil.i Si.Tm-n-'UNi) Sin
MO.A I Ok Ml I1( .A I U )N I >1- ADVI..KSI-. El I I.L I s
P'\(ih 4
The UNDERSIGNED Party enters into this Memorandum of Agreement for Recover)' of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Superfund Site
For the Malne Historic Preservation Commission
Date:
J.
Earle G. Shettleworth; Jr.
Director and SHPO i
Maine Historic Preservation Commission
55 Capitol Street
65 State House Station
Augusta, Maine 04333
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Eastland woolen Mill Superfund Site
MO A for Mitigation of adverse Effects
Page 5
The UNDERSIGNED Party enters into this Memorandum of Agreement for Recovery of Significant
Information and Mitigation of Adverse Effects, relating to the Eastland Woolen Mill Superfund
Site.
For the Stone-Ezel Lodge No. 139, Independent Order
of Odd Fellows . (
»~/0'3-*»D J- 63^r^>
Si8na,u/Vya /?/?' S. Gd/fooK S
Name (printed)
Title (printed)
aja* Pa*J 97^ ^
.W,
I acknowledged MarkS. Brooks and Paul H. Reynolds signature
on October 3, 2000.
Pamela D. Buck, Notary
Commission expites 05/03/2004
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Eastland wcxii.en Mill Sijperfund Sim-
MOA for Mitigation of Adversf. Effhc i s
Pagf. 6
The UNDERSIGNED PajITY enters into this Memorandum of Agreement for Recover}' of Significant
Information and Mitigation of Adverse Effects, relating to the Eastland Woolen Mill Superfund
Site.
Grand Lodge, Independent Order of Odd Fellows of
Maine
Date- 0?^ -j.cJQOO n
/ Signature JLMri
ylrr? /j Id [a / //
Name (printed)
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CONSERVATION EASEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
1 This Conservation Easement and Declaration of Restrictive Covenants is made this 4th
day of rirt-nw > 200 q_, by and between the Grand Lodge, Independent Order of Odd
Fellows of Maine, and Stone-Ezel Lodge No. 139, Independent Order of Odd Fellows,
("Grantors"), having an address of Grand Lodge of Maine, 300 Fairview Avenue, Auburn,
Maine 04210 (Attn: John Gregory, Grand Secretary), and, the State of Maine Historic
Preservation Commission ("Grantee"), having an address of 55 Capitol Street 65 State House
Station, Augusta, Maine, 04333-0065.
WITNESSETH.
2. WHEREAS, Grantors are the owners of a parcel of land located in Corinna, Penobscot
County, State of Maine, more particularly described on Exhibit A attached hereto and made a
part hereof (the "Property"); and
3. WHEREAS, the Property is near the Eastland Woolen Mill Superfund Site ("Site"), which
the U.S., Environmental Protection Agency ("EPA "), pursuant to Section 105 of the
Comprehensive Environmental Response, Compensation and Liability-Act ("CERQLA"), 42
U.S.C. § 9605, placed on the National Priorities List, set forth at 40 C.F.R. Part 300,
Appendix B, by publication in the Federal Register on July 22, 1999; and
4. WHEREAS, in an Action Memorandum dated July 22, 1999, the Director of the Office of
Site Remediation and Restoration for EPA New England selected a "removal action" to address
contamination at the Site, which provides, in part, for the following actions:
A. Excavation of contaminated soils in the area of the former Eastland Woolen Mill
and other areas of downtown Corinna;
B. On-Site treatment of excavated soils;
C. Building demolition in downtown Corinna in order to excavate contaminated soils
located below buildings;
D. Surface water management including diversion of the East Branch of the
Sebasticook River; and
Page 1 of 9
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E Traffic management including diversion of Main Street and the building ol'a new
bridge to traverse Main Street
5 WHEREAS, the Independent Order of Odd Fellows Hall, currently located on iot 123 in
Corinna. Maine ("Odd Fellows Hall"), is eligible for the National Register of Historic Places.
EPA has determined that it is appropriate to move the building rather than demolish it, and
called for by the Action Memorandum; and
6. WHEREAS EPA plans to move the Odd Fellows Hall from lot 123 (sold to the State of
Maine by the Grantors) to lot 118-A (acquired by the Grantors subject to a reversionary
interest owned by the Town of Corinna) in Corinna, Maine; and
7 WHEREAS, the Grantee has requested that EPA help insure that the Odd Fellows Hall is
appropriately maintained and preserved in accordance with the Secretary of the Interior's Standards for
the Treatment of Historic Properties; and
8. WHEREAS, the removal action has been partially implemented at the Site; and
9. WHEREAS, the parties hereto have agreed 1) to grant a permanent right of access over the
Property to the Grantee for purposes of inspecting the Property at reasonable times in order to
ascertain whether the conditions of this Conservation Easement and Declaration of Restrictive
Covenants are being met.; and 2) to impose on the Property use restrictions as covenants that
will nin with the land for the purpose of protecting human health and the environment; and .
10. WHEREAS, Grantors wish to cooperate fully with the EPA in the implementation of all
response actions at the Site;
NOW, THEREFORE:
11. Grant. Grantors, on behalf of themselves, their successors and assigns, without payment
of consideration, does hereby covenant and declare that the Property shall be subject to the
restrictions on use set forth below, and does give, grant and convey to the Grantee, and its
assigns, with general warranties of title, 1) the perpetual right to enforce said use restrictions,
and 2) a conservation easement of the nature and character, and for the purposes hereinafter
set forth, with respect to the Property.
12. Purpose: It is the purpose of this instrument to convey to the Grantee real property rights,
which will run with the land, to maintain and preserve the historic character of the Odd
Fellows Hall.
13. Restrictions. The following covenants, conditions, and restrictions apply to the Property,
run with the land and are binding on the Grantors:
Page 2 of 9
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Mo construction, alteration, or any other activity shall be undertaken which will alter or
adversely affect the appearance or structural integrity of the interior or exterior of the
Odd Fellows Hall without prior written permission and design approval from the
Grantee.
14. Modification of restrictions: The above restrictions may be modified, or terminated in
whole or in part, in writing, by the Grantee. If requested by the Grantors, such writing will be
executed by Grantee in recordable form.
15. Conservation Easement' Grantors hereby grant to the Grantee an irrevocable, permanent
and continuing right of access at all reasonable times to the Property for purposes of inspecting
the Property at reasonable times in order to ascertain whether the conditions of this
Conservation Easement and Declaration of Restrictive Covenants are being met.
16. Reserved rights of Grantors: Grantors hereby reserve unto themselves, their successors,
and assigns, all rights and privileges in and to the use of the Property which are not
incompatible with the restrictions, rights and easements granted herein.
17. Notice requirement: Grantors agree to include in any instrument conveying any interest in
any portion of the Property, including but not limited to deeds, leases and mortgages, a notice
which is in substantially the following form:
NOTICE: THE INTEREST CONVEYED HEREBY IS
SUBJECT TO A CONSERVATION EASEMENT AND
DECLARATION OFRESTRICITVE COVENANTS, DATED
, 200 , RECORDED IN THE PUBLIC LAND
RECORDS ON , 200 , IN BOOK ,
PAGE , IN FAVOR OF, AND ENFORCEABLE BY,
THE STATE OF MAINE.
Within thirty (30) days of the date any such instrument of conveyance is executed, Grantors
must provide Grantee with a certified true copy of said instrument and, if it has been recorded
in the public land records, its recording reference.
18. Enforcement: The Grantee shall be entitled to enforce the terms of this instrument by
resort to specific performance or legal process. All remedies available hereunder shall be in
addition to any and all other remedies at law or in equity. Enforcement of the terms of this
instrument shall be at the discretion of the Grantee, and any forbearance, delay or omission to
exercise its rights under this instrument in the event of a breach of any term of this instrument
shall not be deemed to be a waiver by the Grantee of such term or of any subsequent breach of
the same or any other term, or of any of the rights of the Grantee under this instrument.
Page 3 of 9
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!9 Damages Grantee shall be entitled to recover damages for violations of the terms of thi^
insrnjmeni. or for any injury to the remedial action, to the public or to the environment
protected by this instrument
20 Waiver of certain defenses' Grantors hereby waive any defense of laches, estoppel, or
prescription
21 Covenants: Grantors hereby covenant to and with the State of Maine and its assigns, that
the Grantors are lawfully seized in fee simple of the Property, that the Grantors have a good
and lawful right and power to sell and convey it or any interest therein, that the Property is
free and clear of encumbrances, and that the Grantors will forever warrant and defend the title
thereto and the quiet possession thereof.
22 Notices: Any notice, demand, request, consent, approval, or communication that either
party desires or is required to give to the other shall be in writing and shall either be served
personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantors:
Stone-Ezel Lodge No. 139
Independent Order of Odd Fellows
c/o Mr. Paul C. Foumier, Esq.
Law Offices of Paul C. Fournier, P.A.
65 East Avenue
P.O. Box 1703
Lewiston, Maine 04241 -1703
The Grand Lodge,
Independent Order of Odd Fellows of Maine
300 Fairview Avenue
Auburn, Maine 04210
(Attn: John Gregory, Grand Secretary)
To Grantee:
Maine Historic Preservation Commission
55 Capitol Street
65 State House Station
Augusta, Maine, 04333-0065
Page 4 of 9
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3. General provisions
A. Controlling law The interpretation and performance of this instrument shall be
governed by the laws of the United States or. if there are no applicable federal laws, by
the law of the state where the Property is located.
B Liberal construction- Any general rule of construction to the contrary
notwithstanding, this instrument shall be liberally construed in favor of the grant to
effect the purpose of this instrument and the policy and purpose of the National Historic
Preservation Act. If any provision of this instrument is found to be ambiguous, an
interpretation consistent with the purpose of this instrument that would render the
provision valid shall be favored over any interpretation that would render it invalid.
C. Severability: If any provision of this instrument, or the application of it to any
person or circumstance, is found to be invalid, the remainder of the provisions of this
instrument, or the application of such provisions to persons or circumstances other than
those to which it is found to be invalid, as the case may be, shall not be affected
thereby.
D. Entire Agreement: This instrument sets forth the entire agreement of the parties
with respect to rights and restrictions created hereby, and supersedes all prior
discussions, negotiations, understandings, or agreements relating thereto, all of which
are merged herein.
E.No Forfeiture: Nothing contained herein will result in a forfeiture or reversion of
Grantors' title in any respect.
F. Joint Obligation: If there are two or more parties identified as Grantors herein, the
obligations imposed by this instrument upon them shall be joint and several.
G. Successors: The covenants, terms, conditions, and restrictions of this instrument
shall be binding upon, and inure to the benefit of, the parties hereto and their respective
personal representatives, heirs, successors, and assigns and shall continue as a servitude
running in perpetuity with the Property. The term "Grantors", wherever used herein,
and any pronouns used in place thereof, shall include the persons and/or entities named
at the beginning of this document, identified as "Grantors" and their personal
representatives, heirs, successors, and assigns. The term "Grantee", wherever used
herein, and any pronouns used in place thereof, shall include the persons and/or entities
named at the beginning of this document, identified as "Grantee" and their personal
representatives, heirs, successors, and assigns. The rights of the Grantee and Grantors
under this instrument are freely assignable, subject to the notice provisions hereof.
Page 5 of 9
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H Termination of Rights and Obligations: A pam 's rights and obligations under this
instrument terminate upon transfer of the party's interest in the Easement or Property,
except that liability for acts or omissions occurring prior to transfer shall survive
transfer.
i. Captions: The captions in this instrument have been inserted solely tor convenience
of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
J. Counterparts: The parties may execute this instrument in two or more counterparts,
which shall, in the aggregate, be signed by both parties, each counterpart shall be
deemed an original instrument as against any party who has signed it In the event of
any disparity between the counterparts produced, the recorded counterpart shall be
controlling.
TO HAVE AND TO HOLD unto the State of Maine and its assigns forever.
Page 6 of 9
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IN WITNESS WHEREOF. Grantors have caused this Agreement to be signed
in us name
Executed this l^i day of 200O
Grand Lodge.
Independent Order of Odd Fellows of Maine
By:
Its:
STATE OF
>r_ ¦' rw e, )
5 7gr
) ss
COUNTY OF (JouUV )
On this «V day of Qjj/i, 200^, before me, the undersigned, a Notary Public in and
corporation that executed the foregoing instrument, and acknowledged She said Instrument to
be the free and voluntary act and deed of said coiporation, for the uses and purposes therein
mentioned, and on oath stated that they are authorized to execute said instrument.
Witness my hand and official seal hereto affixed me daKand year wri
Notary Public in and fQJ tfe
State o * ^
My Commission Expires
Page 7 of 9
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I;xecuicd this J
day ol
. 200 0'.
Sionc-Bzc! Lodge No. 139.
Independent Order of Odd Fellows
B> /7 /c^^/f /)
r/o>>nt^
CU'J " (fi *'
fcu, fh-K,. i r&J. (Qua,, j c^1
STATE OF
COUNTY OF Tvnhksroi)
^ (kt.
On this^_ day of//£f~, 2000^ before me, the undersigned, a Notary Public in and
^ .i. fpr the Si3te of ftfolnP. , duly commissioned and s.worn, personally appeared^
ffif-KSSfo P known ,o be the ftfe&Sr* ,he
corporation that executed the foregoing instrument/and acknowledged the said instrument to
be the free and voluntary act and deed of said corporation, for the uses and purposes therein
mentioned, and on oath stated that they are authorized to execute said instrument.
Witness my hand and official seal hereto affixed the day and year written above.
Notary Public in and for the
State of PQnSsiQj
My Commission Expires: D&/%£>)305 V
Page 8 of 9
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This casement is accepted this / day or . 200_^.
STATE OF MAINE
the persons and/or entities named at the beginning of this document, identified as "Grantors"
and their personal representatives, heirs, successors, and assigns.
MAINE HISTORIC PRESERVATION
COMMISSION
Attachments: Exhibit A - legal description of the Property (Lot 118-A)
Page 9 of 9
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Municipal Quitclaim Deed without Covenant
The Iohibitsnts of tht Town of Corinri*, a murucipa. -.'orp-orsi1" ~ '.oca'.ci in Pcnc^scoi
Counr\, Maine, for consideration paid, grant to Ston«-Ezel Lodge *139, Independent Order of
Odd Fellows, a Maine corporation with a location i/i Corinna. Miinc, fc so Jong as the property
is primarily used and oper«t«d is ft fraiemil lodge of the $!one-F/el Lodge £139. Independent
Order of Odd Fellows or the Grand Lodge, Independent Order ot Odd Feiiows of Mains, or «
period of twenty (20) years from the dale of.recording of this dcecL whichever is the first to
occur, a certain lot ox parcel of land, with any improvements thereon, in Coriuo«, Penobscot
County, Maine, bounded and described as follows:
Beginning at a stake in the westerly sideline of Spring Street, so-called, in said
Town of Corinna, said stake bciaf located two hundred and ninery»5evcn and
eighty-seven hundredths (297.87) feet southerly from & bolt locked at the
intersection of the southerly sideline of Main Street and the westerly sideline of
Spring Street, thence westerly on and by the northerly line of land used by the
Town of Corinna as a parking lot one hundred and twemy -cigbi. 128.00) feet to a
stake; thence southerly on and by the westerly line of said parkl-g lot one hundred
(100.00) feet to 8 stake, thence easterly by and along the northe:l> boundary line
c-{ property now or formerly owned or occupted by Jc$efw R. C-?ald ar.£ Susan L
Oould to the westerly sideline of Spring Street : thene; norjie.v- ry anc along sud
<-vesterly sideline of Spr.ng Street to the of begirjun j
By acceptance of this deed, the Grantee, oz bcbalf of itscif. its successors and
assigns, covenants and agr«« that within (".) one yea: after the iate the building
presently owned by the Grantee herein is relocated to the above parcel tuid a
certificate of occupancy for that building is issued, the Grantee s'naJl, a: its owr.
expense, expend a minimum of four thousand five hundred do„a.-s (S4.50U) to
impiovc ».»c V. :*h r.T" ; * '• *hal!
comply, to the extent required, with all federal, state, and local iaod use laws,
regulations, and ordinances. ~
The Grantee's address Is Cortooa, Maine
&. L.hlaihauJasj, EPA
R. L£<^fn4z?n_, EPA.
S.flCM&.ACOE
i
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In v-'Uncss ^hereof the Inhabitants of the To*n or Cor-r.s "if-? caused Lh:s J:cd :o be
signcvi by the undcrvgncd selectmen, duly authorized ih;s | j de;> c:' Sgy?-I
Witness.
Inhabitants of the Tov+n of Coriruia
& 2^a(£-
By
/
St«v«n R. Buolc, Chairman, Selectman
Gtlen fV WcJCiraney, Selectman
o
By {/ssz-rr u? . y
; P. Etnerson. Selectmen
By ttr4&r*£>f UlS
Roland G Dormar,. HI. Selectman
By /tf&SiZu
Margin 7 Lister Selectman
STATE Or MAINE
?;r.ot>soo: Ccun'.v
2000
Perscrsa]l> appeared the above-named Steven R. BucL Chairrr.in of :he Selectmen of "Jie
Town of Connna. and acknowledged before me the foregoing instr.rr.em to be fciS free act and
"I . fz:: .:" : - : d"J r ~ - * rporation
«JC Cw l*s iijO !>WI
-^-dm /h.
Votary Pub5-c
X-Q/ht>L il
'Jt-yrt/f/to. n-t^C Lrtutf* IP
Print or type name as signed
LlCL
&3 SIC
PENOBSCOT COWTY. M/UNE
"Maine Real Estate ^
Transfer Tax P*^
Rrp?re: v
-------
Certificate of Personalty
This Agreement is made ty sod tsewecn The Inhebjtams of the Town or Cor inn a, e
municipal corporation located in Penobscot County, Maine, (hereinafter the Town), aod Stooe-
Eiel Ledge #159, IndcptcdcjK Order of Odd Fellows, a Maine corporation with a location id
Corinnfi, (hereinafter the lodge)
A ceruk piece of re*3 estate ajroaied in Coiiftoa, Penobscot County, Mime, ii being
IrsnsferraS by the Town to tte Lodge by cf -of , 2000.
Stouc-Ewl Lodge #139, IndepeDdtnt
Ord«r of Odd FcSlo»*
Bv r&.J
its Duiy AJiiwniw y±~ ¦- __
Print or type acme as signed
Witness:
Tressa Gudroe
Notary PoWic
Commission Expires April 2, 2004
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Witness:
Tbe Inhabitants of the Town ofCortnne
d tWiLy sC„s/
iX1 (XzJL^s i>trven R. Buck, Chairman, Selectman
„ By
Galen P McKenney, Selectman s
-o-v-?^ (/ _
'Junes P. Emerson. Selectman
—I$crc/*ndrn32£- .
Roland G. Dormsn, HI, Selectman
By
Marvin F. Lister. Selectman
Sepl \\voao
STATE OF MAINE
Pcnobsco: Ccuni) IbW
Personally apr~*_-eo ".ne abevt-named Steven R BThairn-.an o* **e SelecUT.er of'he
Town ofCprmna, anc aciuicMcdged before me the foreg.*>JL£ insirxnent to .v.s free act ar.d deed
sr. his said cap&citv t~d tne free act and deed cf said irur.i:,pal corporation
¦ /
y~*r<>Tr- / U '¦/£¦+ ->/ ftrn-miC.-'Ji <¦
Noli" Pubhc / ATtDTTTe^-S^trav. -¦
Pril-.x v.* rvpe j^ajnc :.Kned
?is?esco: CCVNTV M.O
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ATTACHMENT 7
EXAMPLE PROGRAMMATIC
AGREEMENTS
-------
EXAMPLE 7-A
REVOLVING FUND
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(EPA) PW-95934563-0
PROGRAMMATIC AGREEMENT
AMONG
THE ENVIRONMENTAL PROTECTION AGENCY,
THE ADVISORY COUNCIL ON HISTORIC PRESERVATION, AND
THE NATIONAL CONFERENCE OF STATE HISTORIC
PRESERVATION OFFICERS
CONCERNING COMPLIANCE WITH
THE NATIONAL HISTORIC PRESERVATION ACT
UNDER
EPA's STATE WATER POLLUTION CONTROL REVOLVING FUND PROGRAM
WHEREAS, the U.S. Environmental Protection Agency (EPA)
awards capitalization grants to States to establish State
Revolving Fund (SRF) programs within State Agencies (each
hereinafter referred to as "SRF Agency") authorized under the
Clean Water Act (CWA) (33 U.S.C. 1251 et. seq., as amended); and
WHEREAS, the EPA has issued Initial Guidance for the SRF
program (January 1988), Appendix D of which (Attachment 1)
contains criteria for approval of State Environmental Review
Processes (SERPs); and
WHEREAS, Sections 106 and 110(b), (d) and (f) of the
National Historic Preservation Act (NHPA) (16 U.S.C. 470f and
470h-2(b), (d), and (f)) apply to all SRF assistance directly
made available to States by federal capitalization grants (EPA
federal assistance); and
WHEREAS, projects carried out with EPA federal assistance
may have effects on properties included in, or eligible for
inclusion in, the National Register of Historic Places (historic
properties); and
WHEREAS, the EPA has consulted with the Advisory Council on
Historic Preservation (Council) and the National Conference of
State Historic Preservation Officers (NCSHPO) pursuant to Section
8 00.13 of the regulations (36 CFR Part 800, et seq.) implementing
Sections 106 and 110(f) of the NHPA;
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2
NOW, THEREFORE, the EPA, the Council, and the NCSHPO agree
that the SRF program shall be administered in accordance with the
following stipulations, which will be deemed to satisfy EPA's
Section 106 and 110(f) responsibilities for all EPA SRF program
actions and SRF Agency program actions undertaken with EPA
federal assistance.
Stipulations
EPA will ensure that the following measures are carried out:
1. Purpose and Applicability.
(a) This Programmatic Agreement [PA] sets forth the
process by which EPA will meet its responsibilities under
Sections 106 and 110(d) and 110(f) of the NHPA with the
assistance of SRF agencies. As such, it sets forth the basis for
SRF Agency review of individual projects that may affect historic
properties, and establishes how EPA will be involved in such
review.
(b) This PA is applicable to the review of CWA Section 212
(wastewater treatment facilities), 319 (non-point source
pollution control) and 320 (estuary protection) projects that
receive EPA federal assistance under an SRF Agency's program.
2. Responsibilities of EPA and SRF Agencies.
In compliance with its responsibilities under the NHPA and
as a condition of its award of any capitalization grant to a
State, EPA shall require that the SRF Agency or another
designated State agency carry out the requirements of 36 CFR
800.4 through 800.6, with reference to 36 CFR 800.1, 800.2,
800.3, 800.8, 800.9, 800.10, 800.11, 800.12 and 800.14 (see 36
CFR Part 800, Attachment 2) and applicable Council standards and
guidelines for all SRF Agency actions that receive EPA federal
assistance. EPA will participate in the process to the extent
mutually agreed upon by the EPA Regional Administrator and the
SRF Agency, but at a minimum, EPA must be notified by the SRF
Agency if after routine consultation or coordination with the
State Historic Preservation Officer (SHPO) disputes remain
pursuant to stipulation #5.
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3
3_. Use of SRF Certification Reviews and Annual Reviews.
(a) Certification reviews. EPA will review, or re-review
as may be necessary, the certification each State is required to
provide as a part of its initial application for SRF
capitalization grant funding to ensure that:
(1) The State has the authority and capability to carry out
the responsibilities assigned to the SRF Agency as described in
this PA; and
(2) The SRF Agency will carry out such responsibilities.
(b) Programmatic coordination and consultation. Whenever
an EPA Regional Administrator prepares for an annual review of an
SRF Agency's program, the EPA Regional Administrator will afford
the appropriate SHPO and the Council the opportunity to comment
on their experiences with EPA's and the SRF Agency's execution of
their respective responsibilities assigned under this PA and the
SRF capitalization grant agreement, and shall consider such
comments in the conduct of its annual review. If problems are
reported with the execution of responsibilities under this PA,
the EPA will consult with the SHPO or the Council and other
interested persons if appropriate, and if mutually agreed that
participation is necessary, the EPA will invite the SHPO or the
Council to participate directly in the EPA's annual review on SRF
program matters involving their jurisdiction or expertise.
(c) Annual reviews. (1) During each annual review of an
SRF Agency's program, the EPA Regional Administrator will ensure
that the SRF Agency is using:
(i) adequate expertise to carry out its responsibilities
consistent with the professional qualifications standards found
in the "Secretary of the Interior's Standards and Guidelines for
Archeology and Historic Preservation" (48 FR 44738-9) (Attachment
3);
(ii) effective mechanisms for carrying out the
responsibilities assigned to it under the capitalization grant
agreement, in accordance with this PA, including those assigned
pursuant to stipulation 2 above;
(iii) effective mechanisms for identifying historic
properties subject to potential effect by SRF Agency actions
using EPA federal assistance, taking into account the Council's
publication: "Identification of Historic Properties: a
Decisionmaking Guide for Managers" (1988) (Attachment 4);
(iv) effective procedures for involving interested parties
and the public in the review process taking into account the
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4
Council publication: "Public Participation in Section 106
Review: A Guide for Agency Officials" (1989) (Attachment 5); and
(v) effective mechanisms for avoiding, minimizing, or
mitigating adverse effects on historic properties.
(2) The EPA will further ensure that deficiencies noted in
carrying out of responsibilities under this PA and
capitalization grant agreement (including any alternative review
process contained in an approved SERP), as a result of oversight
provided by the Council, SHPO and EPA's annual reviews, are
remedied or effectively rebutted with appropriate documentation.
Notification of deficiencies, suggested remedies affecting the
work of the SRF Agency, and proposed EPA action (if any), shall
be included in the report sent to the SRF Agency at the
conclusion of an annual review. If the report identifies
deficiencies, remedies or actions concerning NHPA compliance, a
copy of those portions of the report will be sent to the
appropriate SHPO and the Council.
4. State/SHPO Consultation/Coordination.
The Regional Administrator will ensure that a State's
capitalization grant agreement provides consultation and
coordination between the SRF Agency and the SHPO that is
consistent with 36 CFR 800.4, 800.5, and 800.14, and with the
guidance outlined in Attachment 6.
5. Dispute Resolution.
(a) Either the SRF Agency or the SHPO may, at its own
discretion, request that the EPA Regional Office and/or the
Council participate in the review of individual SRF projects or
assist in resolving disputes that may arise between the two
State agencies. The EPA and the Council will participate in
reviewing and assisting the State agencies if so requested, and
may participate at their own discretion, when significant issues
are raised from other sources, without such a request.
(b) In situations where disagreements among the SRF Agency
and SHPO cannot be resolved in consultation with either the EPA
Regional Office or the Council, the EPA will be responsible for
resolving the dispute in consultation with the Council in
accordance with 36 CFR 800.4 through 800.6 as applicable.
6. Applicable Guidance.
(a) Implementation of this PA will be guided by Attachments
1 through 6 and such program guidance or regulations as EPA may
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5
issue subsequently, and the applicable regulations, standards,
guidelines and explanatory bulletins of the Council and the
Department of the Interior.
(b) In consultation with SRF Agencies and the NCSHPO, the
EPA and Council may from time to time jointly develop and provide
SRF Agencies and SHPOs with additional guidance or training.
7. Distribution.
Following the Council's publication of the required notice
of an approved PA in the Federal Register, EPA will distribute
copies of this PA and its attachments to all EPA Regional SRF and
National Environmental Policy Act (NEPA) Coordinators, SRF
Agencies, SHPOs, and requesting parties.
8. Amendment.
Any party to this PA may request that it be amended,
whereupon the parties will consult pursuant to 36 CFR 800.13 to
consider such amendment.
9. Termination.
Any party to this PA may terminate it by providing ninety
(90) days notice to the other parties, provided that the parties
will consult during the period prior to termination to seek
agreement on amendments or other actions that would avoid
termination. In the event of termination, the EPA will ensure
compliance with 36 CFR 800.4 through 800.6 with regard to
individual undertakings covered by this PA.
Execution of this PA, and carrying out its terms, evidences
that the EPA has satisfied its Section 106 and 110(f)
responsibilities under the NHPA for Title VI of the CWA.
President
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ATTACHMENT 6:
SRF AGENCY/SHPO COORDINATION
[These do not substitute for 36 CFR 800.4 through 800.6]
(A) Initial project consultation.
(1) Early in a project's planning phase, when project
alternatives are identified which have the potential to affect
historic properties, if any are present, the SRF Agency should,
in conformance with 36 CFR Part 800.4(a)(1)(ii), consult with the
SHPO and request their views, comments and advice on: (a) what
further actions may be necessary by the SRF Agency to further
identify and evaluate historic properties; (b) the significance
of all identified historic properties; (c) possible effects on
historic properties; and (d) project alternatives and suggested
mitigation measures where effects are likely.
(2) If within a thirty day period (as provided under 36 CFR
Section 800.1(c)) the SHPO does not respond to the SRF Agency's
request(s), the SRF Agency Shall proceed in accordance with 36
CFR 800.4, et. seq..
(B) Routine consultation.
Following initial contact, SRF Agencies should respond to
the SHPO's views, comments and advice; shall take further actions
as necessary to identify and evaluate historic properties and
assess effects on them; and continue to consult and coordinate
with the SHPO throughout the historic preservation review
process. Where applicable, this review should be integrated with
the SERP process (as defined in Attachment l).
(C) Transmittal of decision documents.
(1) Prior to making a decision on a project, the SRF Agency
shall notify the SHPO of measures it intends to incorporate in
the project to avoid, minimize, or mitigate effects on historic
properties, which must be consistent with any determinations made
or agreements entered into by the SRF Agency pursuant to 36 CFR
800.4(d), 800.5(d), 800.5(e) (4), 800.5(e)(5), and/or 800.11(a)
as applicable.
(2) The SRF Agency shall provide the SHPO with a copy of
its final ER determination for all SRF projects that have
involved consultation and coordination pursuant to 36 CR Part 800
et. seq. and the Programmatic Agreement among EPA, the Advisory
Council on Historic Preservation, and the National Conference of
SHPOs.
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2
(3) In addition, the SRF Agency will routinely notify the
SHPO that appropriate documentation regarding SRF 212 projects
funded with EPA federal assistance that may affect historic
properties is available whenever:
(i) A Draft ER document is finalized; or
(ii) Significant new information relevant to the project's
environmental determination is identified, or significant changes
to the project plan is made, following the issuance of a Final
Determination (ER decision document), but prior to completion of
construction,; or
(iii) A mandatory five-year reassessment of a previously
issued environmental determination has been conducted on
projects and, as requested or otherwise agreed between the SRF
Agency and SHPO, provide the SHPO with copies of such
documentation.
(4) Appropriate documentation should also be provided the
SHPO at similar intervals for 319 and 320 projects funded with
EPA federal assistance that may affect historic properties.
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EXAMPLE 7-B
UPPER CLARK FORK
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SECOND PROGRAMMATIC AGREEMENT
AMONG
THE ENVIRONMENTAL PROTECTION AGENCY
REGION Vm MONTANA OFFICE,
THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE MONTANA STATE HISTORIC PRESERVATION OFFICE,
MONTANA DEPARTMENT OF HEALTH AND ENVIRONMENTAL SCIENCES,
LOCAL GOVERNMENTS OF
BUTTE/SILVER BOW AND ANACONDA/DEER LODGE, AND WALKERVILLE,
AND ARCO
REGARDING IMPLEMENTATION OF THE CERCLA RELATED ELEMENTS OF
THE UPPER CLARK FORK RIVER BASIN
REGIONAL HISTORIC PRESERVATION PLAN
Whereas, the U. S. Environmental Protection Agency (EPA), in cooperation with the State
of Montana administers the Superfund program, in the Clark Fork River basin under provisions
of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),
42 U.S.C. 9601 et seq.. as amended by the Superfund Amendments and Reauthorization Act
(SARA) of 1986 (P.L. 99-499); and
Whereas, EPA has promulgated a National Oil and Hazardous Substances Pollution
Contingency Plan (NCP) (40 CFR Part 300, et. seq.) implementing CERCLA which, among a
number of things, addresses EPA's responsibility to comply with Applicable or Relevant and
Appropriate Requirements (ARARs); and
Whereas, actions conducted under CERCLA qualify as undertakings pursuant to Section
301(7) of the National Historic Preservation Act (NHPA), and are subject to 36 CFR Part 800,
implementing Section 106 of the NHPA (16 U.S. C. 470f), and Section 110 (f) of the same Act
16 U.S.C. 470h-2(f); and
Whereas, the EPA, in cooperation with the Montana Department of Health and
Environmental Sciences, proposes to conduct removal and remedial actions at Superfund sites
in the Upper Clark Fork River Basin, the Area of Potential Effects (APE), under provisions of
CERCLA, and
Whereas, the Butte/Silver Bow and Anaconda/Deer Lodge areas of the Upper Clark Fork
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1^003
River Basin are the site of more than 100 years of living history of the early development of
natural resources and industrialization of America and, include a designated National Historic
Landmark, "arguably the nation's quintessential mining town, Butte" (Advisory Council on
Historic Preservation 1990); and
Whereas, the EPA has determined that actions carried out under CERCLA may have an
effect on the National Historic Landmark and other historic properties included in or eligible for
inclusion on the National Register of Historic Places, and has consulted with the Advisory
Council on Historic Preservation ("Council") and the Montana State Historic Preservation Office
("SHPO"), the Community Historic Preservation Officers (CHPOs) in Butte/Silver Bow and
Anaconda/Deer Lodge, pursuant to 36 CFR § 800.13 of the regulations (36 CFR Part 800)
implementing Section 106 of the NHPA; and
Whereas, the Butte/Silver Bow Historic preservation office (BSB/SHPO), representing
the City/County government of Butte/Silver Bow (BSB) and Walkerville, the Anaconda/Deer
Lodge Historic Preservation Office (A/DLHPO), representing the City/County government of
Anaconda/Deer Lodge (ADL), the local government of Walkerville, the Montana Department
of Health and Environmental Sciences, and ARCO, a Potentially Responsible Party, participated
in consultation and have been invited to concur in this Programmatic Agreement; and
Whereas, based on a common concern among the parties to this agreement, a Regional
Historic Preservation Plan (RHPP) _was^.developed, pursuant to the terms of the 1992
Programmatic Agreement; and
Whereas, the RHPP identified and defined important historic properties throughout the
Upper Clark Fork Basin, and recommended the development of the Butte-Anaconda Mining
Heritage Park as a major destination visitor attraction; and
Whereas, a comprehensive matrix (Attachment A) was derived from the RHPP for
potential Superfund remediation impacts to historic properties in the Upper Clark Fork Basin;
and
Whereas, ARCO as a Potentially Responsible Party (PRP) has entered into an agreement
with EPA to develop responses to Section -106 for-those construction sites where it is performing
or will perform response activities under CERCLA, and has been invited to concur in this
agreement; .and
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Whereas, the definitions provided at 36 CFR § 800.2 are applicable throughout this
Programmatic Agreement unless otherwise defined;
Whereas, ARCO provided $250,000 to develop the RHPP and to initiate efforts to meet
Sections 106 and 110(f) requirements of the NHPA; and
Now, therefore, the EPA shall be administer the program in accordance with the
following stipulations to satisfy the requirements of Sections 106 and 110(f) of the NHPA.
STIPULATIONS
The EPA shall ensure that the following measures are carried out.
1. QUALIFICATIONS
EPA will ensure that the on-site EPA and MDHES construction oversite representative
will be instructed by a cultural resource specialist meeting the Secretary of Interior's
Professional Qualification Standards (48 FR 44738-0) in order to effectively implement the
provisions of this agreement. EPA will also ensure that qualified consultants are available on
an on-call basis to respond to discoveries as described in Stipulation 5 and also assist EPA in
the implementation of this agreement.
2. MITIGATION
The evaluation of the historic properties for purposes of compliance with Sections 106
and 110(f) of the NHPA is contained in the RHPP. This evaluation (Attachment A) is the basis
for the mitigation actions included in this agreement. .
A. Based on the evaluation of the historic properties the following actions have been
agreed to:
1. At most construction sites, the historic property will be avoided by the
response action remedy. These historic properties are listed in Attachment
i to thisPA..
2. At some construction sites, on-site mitigation will be incorporated into the
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design of the remedial action. The on-site historic properties are listed in
Attachment C to this PA. The on-site mitigation will be based on the
guidelines in the RHPP, the performance role identified in Attachment A
for the specific site and the Process outlined in Stipulation 3, below.
Only those historic properties specified for such treatment or undiscovered
historic properties will be subject to the Process.
3. For those historic properties that cannot be avoided and where there has
been agreement by the signatories of this Second Programmatic
Agreement that impact may occur; off-site mitigation as described in the
following section will be conducted. These historic properties are listed
in Attachment D to this PA.
B. All proposed remedial actions (including investigations, design, and construction)
taken in areas containing historic properties will be subject to the normal Superfund
public involvement process. (See Attachment E )
3. PROCESS
Throughout the following process, the EPA will make every effort to reach consensus
at all decision points. However, if any party to this agreement objects to any proposed action,
the EPA will resolve the dispute in accordance with Stipulation 6, Dispute Resolution.
Attachment C contains a list of the construction sites for which on-site mitigation is considered
appropriate. The following process outlines when and how the objectives for on-site mitigation
for these sites will be incorporated into the Superfund remediation process. Additionally, if any
historic property listed on Attachment B can not be avoided as planned, this process shall also
apply.
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A. Consideration of Historic Properties during Superfund Studies
As studies progress through the Superfund process, consideration of historic
properties will be an integral part of the consideration and evaluation of remedial
alternatives. Consultation with the CHPOs will be initiated by EPA during the
response action process.
B. Remedial Design Work Plans
As a remedial design ("RD") work plan for a specific remedial action is
developed, consideration of historic properties will be included as an integral part
of the design. The EPA will invite the CHPOs to participate actively in the
development of work plans as they relate to potential effects, and on-site
mitigation of effects to historic properties. The development of remedial design
work plans shall accommodate CHPO concerns to the extent feasible. The EPA
will provide the CHPOs 15 working days to review and comment on each work
plan and the adequacy of mitigation efforts for those sites listed on Attachment
C.
C. Final Remedial Design
The EPA will invite the CHPO's to participate in the development of final
remedial design plans as they relate to potential impacts and on-site mitigation of
impacts to historic properties. It is expected that a consensus will be reached on
the final design. However, as noted under dispute resolution, if the CHPOs
object to the final design within thirty (30) days of receipt of the final design EPA
must consult with the CHPO and others to attempt to resolve the dispute in
accordance with Stipulation 6. The final decision is EPA's under the NHPA.
The remedial design will adhere to the RD work plan provisions. If deviations
from the work plan affecting the on-site mitigation are necessary due to technical
or engineering constraints, the EPA will attempt to reach a consensus decision
without undue delay in the design process.. Although design for remediation of
-a particular Superfund project may relate to only a portion of a historic property
in the area, the design will attempt to be consistent with the specific purpose or
larger context in which the historic property is situated pursuant to the RHPP.
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The Administrative Order on Consent, Unilateral Order, or Consent Decree gives
EPA or MDHES authority to ensure that the construction of a remedy follows the
remedial design plan. If reclamation work occurs in such a way that work plans
are not followed and historic property is harmed, EPA will consult with the
relevant CHPO and the PRP to determine what corrective actions may be
necessary. EPA shall ensure corrective actions are consistent with the RHPP and
are completed. EPA will also determine why the failure to follow specifications
occurred and change personnel or procedures. This will be documented by the
EPA in a letter to all other affected parties to provide a written record of
decisions.
D. Implementation
Weekly, or as appropriate based on level of activity, EPA will hold meetings to
review the upcoming week's construction activities. These meetings will also be
used to identify any pertinent activities related to the historic properties elements
as they relate to the agreed to final design plan for the construction site.
Representatives of the PRP, EPA, MDHES, CHPO, contractor, and other
representatives of appropriate agencies (public works, state or federal agencies)
will have a standing invitation to attend these meetings. The PRP will distribute
minutes from each meeting to all interested parties so construction progress can
be tracked at a given construction site at any given point in time.
In addition to weekly construction meetings, daily oversight may be provided by
any representative of any of the parties. Safety certification must be obtained by
any on-site observer, and safety plans must be followed.
4. OFF-SITE MITIGATION
Based on the RHPP and the jointly developed matrix of Attachment A, the unavoidable
effects of potential Superfund remedial actions shall be mitigated as described below:
ARCO and the affected communities and the signatories to this PA agree that the
following actions along with on-site mitigation fully mitigate for all unavoidable impacts
or losses of knownTiistdric properties m BSB and ADL counties.
A. Butte-Silver Bow
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(1.) At the Lower Area One ("LAO") construction site, ARCO, in
consultation with BSB, shall develop and incorporate into the final design
for the area and shall construct recreation and historic interpretive
facilities. The attached map, LAO Conceptual Reclamation Plan, July
1993, identifies the actions to be taken and the facilities to be built.
(2.) ARCO will transfer the title of the land adjacent to the LAO site
(west of the KOA campground along George Street, see map), subject to
specific land use restrictions, to Butte-Silver Bow for a proposed visitor
and information center.
(3.) ARCO will provide Butte-Silver Bow with $100,000 cash payment
toward the development of the proposed visitor center. This cash payment
shall be used for the express purposes of constructing the proposed visitor
center and developing the historic interpretation elements and heritage
park information (as per the constellation/gateway concept outlined in the
RHPP) at the proposed visitor center.
(4.) ARCO will connect the visitor center/gateway from its location on
George Street to the LAO area by constructing a bike/pedestrian path.
(5.) As EPA, BSB, MDHES, and ARCO develop Institutional Controls
necessary to supplement engineering remedies, additional elements of the
Butte-Anaconda Mining Heritage Park as outlined in the RHPP will be
given consideration for inclusion in the remedial design work plans at all
operable units in the BSB area to be remediated in the future.
B. Anaconda-Deer Lodge
1. ARCO will provide to Anaconda Deer Lodge the sum of $33,000 as
matching funds for completion of a Community Architectural and
Historical Survey of historic properties in Anaconda.
2. ARCO will provide matching funds in the amount of $5,000 to ADL for
the Historical Data Presentation grant.
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3. ARCO, in consultation with ADL, shall design and construct an
interpretive trail at the Old Works. The trail shall include
interpretive signage detailing the history of smelting in Anaconda;
including discussions of natural resources, smelting sites, facilities,
technologies and the remaining features/landscapes. There will be
an Upper "Works Trail and Lower Trail system which includes the
following:
• Upper Works Trail
• Trail construction (approximately 4,600 feet)
• Fencing of the trail site and historic properties as
necessary
° Interpretative stations (3 basic sign stations, 1 sign
rest area station, 1 sign shelter station, 1 kiosk)
• Interpretive signing of historic properties
• Amenities (20 car parking lot, access gate,
landscaping, (2) toilets, (2) picnic tables, (2) trash
cans)
• Lower Trail System
• Trail construction (crushed limerbck and slag) from
Cedar Street to Galen Road
• Interpretative stations (1 basic sign station, 1 sign
shelter station)
(3.) As EPA, ADL, MDHES, and ARCO develop Institutional Controls
-necessary to supplement engineering remedies, additional elements of the
Butte-Anaconda Mining Heritage Park as outlined in the RHPP will be
given consideration for inclusion in the remedial design work plans at all
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® 010
operable units in the ADL area to be remediated in the future.
5. UNDISCOVERED and UNDOCUMENTED HISTORIC PROPERTIES
During construction activities, undiscovered and undocumented historic properties may
be encountered. In such event, the EPA will ensure the following procedures are carried out:
A. For all unknown and undocumented historic properties discovered during response
actions, the on-site EPA or MDHES representative will stop construction
activities in the immediate area of the find to the extent such stoppage will not
create an undue risk of harm to human health or the environment and notify the
designated "on-call" qualified historian or archaeologist who has previously been
contracted with to provide this service. The archaeologist/historian will examine
the find, verify its significance, and conduct preliminary recordation, as
necessary.
Within a maximum of four hours of the identification of a historic property
judged to be significant, all available participating parties to this agreement will
be notified. The CHPO or a representative shall visit the discovery within at
least one business day to recommend how the historic property should be treated:
avoided, mitigated on-site, mitigation off-site, or receive additional recordation.
B. Within a business day, EPA will consider the findings of the
archeologist/historian and the recommendations of the CHPO and make a final
determination on actions to be taken. EPA will consult with the PRP and the
CHPO's before finalizing their decision. All decisions will be documented to the
parties to this agreement by EPA and become part of the record. As with dispute
resolution, all EPA decisions are final, pursuant to Superfund authority.
C. As construction proceeds, it may be necessary to make "field judgements". For
example, safety of workers will sometimes require action before the
archaeologist/historian can respond. Every effort will be made by all parties to
respond as quickly as possible utilizing back-up personnel if necessary. EPA will
make every , effort to avoid action before the affected parties or their
representatives can respond. These decisions will be included in the annual
reports.
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IgJOll
6. DISPUTE RESOLUTION
Unless otherwise specified under the terms of this agreement, should any party to this
agreement object within thirty (30) days after receipt to any plans, specifications, contracts, or
other documents provided for review pursuant to this agreement, or to the manner in which this
agreement is being implemented, EPA shall consult with the objecting party to resolve the
objection. If EPA determines that the objection cannot be resolved, EPA shall forward all
documentation relevant to the dispute to the Council. Within thirty (30) days after receipt of all
pertinent documentation, the Council will either:
A. Provide EPA with recommendations, which EPA will take into account in
reaching a final decision regarding the dispute; or
B. Notify EPA that it will comment pursuant to 36 CFR § 800.6(b) and proceed to
comment. Any Council comment provided in response to such a request will be
taken into account by EPA in accordance with 36 CFR § 800.6(c)(2) with
reference to the subject of the dispute.
C. At any time during implementation of the measures stipulated in this Agreement,
should an objection to any such measure or its manner of implementation be
raised by a member of the public, the CHPO, or local governments, the EPA will
take the objection into account and consult as needed with the objecting party, the
SHPO, the CHPO, or the Council to resolve the objection. EPA may request the
further comments of the Council pursuant to 36 CFR § 800.6(b). Any Council
comment provided in response to such a request will be taken into account by the
EPA in accordance with 36 CFR § 800.6(c)(2) with reference to the subject of
the dispute.
7. AVAILABILITY OF CHPO
In the event that a CHPO is unable to cany out its review responsibilities under the
terms of this agreement, or such position is eliminated by the local governing body, the
SHPO will assume the CHPO's responsibilities pending reinstatement of the CHPO and
resumption of the CHPO's review role. -The CHPO will be responsible to notify EPA
and SHPO that the position is unavailable or has been eliminated.
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8. MONITORING
The Council, SHPO, CHPOs, may monitor activities carried out pursuant to this
Programmatic Agreement, and the Council will review such activities if so requested. EPA,
ARCO and other PRP's will cooperate with the Council, the SHPO, and the CHPOs in carrying
out their monitoring and review responsibilities.
9. ANNUAL REPORT
A. On an annual basis, the EPA will submit to the parties to this agreement a report
of all actions carried out under the terms, and EPA's assessment of the
effectiveness of the agreement. Such reports will summarize all such actions
conducted during the previous fiscal year,based in part on monthly progress
reports submitted to EPA by ARCO, and shall be submitted to the parlies to this
agreement no later than January 1 of each year that the agreement remains in
effect.
B. Within 30 days of receipt of the annual report, the parties to this agreement shall
consult to determine whether a meeting of the parties is needed to review EPA's
actions and the effectiveness of the terms of the agreement.
10. ADMINISTRATIVE STIPULATIONS
A. Amendment
Any party to this agreement may request that it be amended, whereupon the parties will
consult in accordance with 36 CFR § 800.13 to consider such amendment.
B. Failure to Perform
In the event any party to this agreement believes that the EPA is not carrying out the
terms of the agreement, the party may request that the agreement be terminated by providing
90 days notice to the other parties. All parties will consult during the 90 day period to seek
agreement on amendments or other actions that would avoid termination.
C. Termination
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10013
In the event that during the 90 day consultation period described above, no agreement
can be reached on amendments or other actions, EPA and the Council will determine if this
agreement will be terminated. The EPA, in consultation with the Council, will then consider
all actions completed under this agreement, and make final decisions on how EPA will further
comply with 36 CFR §§ 800.4 through 800.6, if further compliance is required. Completed and
approved funding or implementation of actions described in this agreement will be fully
considered by EPA in making such determinations.
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QS 014
ADVISORY COUNCIL ON HISTORIC PRESERVATION
Date: p-Z'-Zf-f
ENVIRONMENTAL PROTECTION AGENCY REGION VIII MONTANA OFFICE
By:
Date: °/\ \&[ \&[ (__
MONTANA STATE HISTORIC PRESERVATION OFFICER
By; c^rY\o>-t>ASL
Date: V SIO - °l V
MONTANA DEPARTMENT OF HEALTH AND ENVIRONMENTAL SCIENCES
By: Z.
Date: r//f/fj/
BUTTE/SILVER BOW
Dale;
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ARCO
—ta. Date: 5,/^ */
Concur.—
By: Date:
OTHER PRP's
By: . Date:
By: ___ Date:
By: Date:
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I® UiD
ATTACHMENT A
Selected Historic Properties Located
Within the Upper Clark Fork Basin Superfund Construction Sites
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ATTACHMENT B
Historic Properties That Which No Impact Is Expected1
Matrix Number2
Silver Bow Creek
3,4
Rocker
6
Milwaukee Railroad
7
BA&P Railroad
8
Dublin Gulch
9
Missoula Gulch
10
Orphan Boy
11
Blue Bird Trail
12
Buffalo Gulch
13
Bluebird Mill
16
Yellow Ditch
17
Alice Mine/Mill
18
Washoe Reduction Works/Stack
25
Slag Piles
26
Anaconda Ponds
27
Mill Creek Community
28
Opportunity Ponds
30
Missoula Mine
33
Mt. Con
34
Syndicate Pit / Lexington Tunnel
35
Alice Pit / Knob
37
Railroad through Butte
39
Ophir Mine Yard
40
1 It should be noted that the normal Superfund public involvement process applies to all historic properties.
2From Attachment A
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ATTACHMENT C
Historic Properties That Will Receive
On-Site Mitigation and be subject to the Process as per Stipulation 3
Historic Properties Matrix Number3
Original Mine Yard 2
Teddy Bear Placer 14
First Gold Strike 19
Lower Area One (Colorado Tailings/Butte Reduction Works) 21
Belmont 22
Old Works 23
Red Sands Area 29
Anselmo Central Timber Yard 32
Steward Mine Yard 36
3
From Attachment A
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ATTACHMENT D4
Historic Properties That May Be Impacted
And If So, Will Be Included In The Off-Site Mitigation Package
Historic Properties Matrix Number5
Silver Bow Creek
3,4
Rocker
6
Milwaukee Railroad
7
BA&P Railroad
8
Dublin Gulch
9
Missoula Gulch
10
Oiphan Boy
11
Blue Bird Trail
12
Buffalo Gulch
13
Other Placers
15*
Bluebird Mill
16
Yellow Ditch
17
Alice Mine/Mill
18
Lower Area One (Colorado Tailings/Butte Reduction Works)
21
Old Works
23
Warm Springs Ponds
24
Washoe Reduction Works/Stack
25
Slag Piles
26
Anaconda Ponds
27
Mill Creek Community
28
Red Sands Area
29
Opportunity Ponds
30
Butte Smelters
31 *
Missoula Mine
33
Mt. Con
34
Syndicate Pit / Lexington Tunnel
35
* It should be noted that all historic properties will be subject to the normal Superfund public involvement process.
' From Attachment A
-18-
9/14/94
-------
05/17/00 13:31 •O-4UD/BZ0800 M,iaiooo4o
k£J I/4V
ATTACHMENT D5 (continued)
Historic Properties Matrix Number7
Steward Mine Yard 36
Alice Pit / Knob 37
Mining Landscape 38*
Railroad through Butte 39
Ophir Mine Yard 40
Smelter Hill
* Historic Properties that will be impacted and are included in the off-site mitigation
package.
6 It should be noted (hat all historic properties will be subject to the normal Superfund public involvement process.
7 From Attachment A
-19-
9/14/94
-------
Attachment F.
Public Involvement in Superfund
Study
Remedy Selection
[ Implementation !
Risk Assessment
RI/FS
Scoping
Scoping
Conduct
Draft RI
Alternative
Screening
RI/F
S
Proposed
Plan
ROD
Consent
Decree
Negotiation
RD
RA
+
B F
-
Fact Sheet -
Public
Briefing
-
mm
E
DEC
Varies
D E
DE
B D E F
-
Fact Sheet -
D G
G
***
E
****
**
Public
Briefing'
E
Initiate
RA
A General public review & comment without response to comments
B General public review & comment with response to comments
C Special public work group review and comment without response to comments
D Special public work group meetings (MTAC, CTEC, CWG, etc.)
E General public information meeting
F Formal public hearing with responsiveness summary
G Meeting upon request (Applies throughout, the process)
* Statutory public involvement requirement ***• May include rd briefing
** Current (MO public involvement practice)
*** Potential additional public involvement
-------
SrTES WHERE THERE WTLL BE SUPERFUND IMPACT
1.
8
SITE
CONSTELLATION
Ol'ERABLE UNIT
PERFORMANCE
ROLE
Refer to
attach-
ments B,
C or D
NOTES
}
i
i
ii
I'
Travona
Pre-History. Richest Hill.
Gold ic Silver
PS TCRA. PS ERA and
Rl/FS (siormwater)
Participatory
Complete
Resources were avoided during TCRA. no: much leit except the headframe, a
building was moved to this site from anotier mine yard. Need to protect access to
shaft for maintenance of pump. If luture ictions are required the resources will be
avoided.
2
Original
Pre-History, Reclamation,
Richest Hill
PS OU-PS Rl/FS
(stormwatcr)
Participatory
C
ARCO did early reclamation work which icvds to be re-evaluated. May need to do
further soil reclamation and stormwater. jo me resources may be lost due to
siormwater considerations. Note—Our La^ly of Rockies Foundation uses this mine
yard to build and maintain their equipme it and as storage. May be asbestos in the
remaining mine buildings.
| 3
:i
ji
Silver Bow
Creek-Pre
History Site
Pre-Hiitory
Strcamside
•
Dormant
8 Ac D
Depending on exactly where this area ma/ and what is left the actions of
Strcamside Tailings may drasucally change creek or area. It may not be possible to
avoid resources; although there may not !« much left. On-site mitigation agreed to
but not yet completed.
i •
1
1
Silver How
Creek
Drainage
Pre-History
Strcamside
Survey
Complete
Depending on exactly where this aiea may be and what is left the actions of
Streamside Tailings may drastically chanftj c/eek or area. It may not be possible to
avoid resources; although there may not l>e much left.
{ 5
t
Lexington
Mine and Mill
Cold and Silver.
Reclamation. Richest Hill
Walkcrville TCRA. PS
Rl/FS mine yard-
stormwarer
Partiapatory
Complete
Walkerville TCRA had on (photodocumeiktabon. inventories) and off (Granite
Mountain Plaques) site mitigahon-this hits been completed. Mine Yard was actively
used by New 6uttf? until recently. Fumrr: work will mostly avoid resources.
i 6
Rocker
Cold and Silver,
Reclamation
Rocker TCRA, Rocker
Rl/FS
Participatory
D & D
Inventory has been completed. As a result of the TCRA, off-site mitigation may be
necessary. Depending upon R!/F5detisions may need some off-site mitigation.
7
Milwaukee
Road
Cold and Silver, Smelting
Butte sections PS Rl/FS,
rt>st Strcamside
Controlled
Partiapatory
B& D
Butte sections—railroad bed most Ukely will remain the same. There may be,
however, the necessity to destroy, move or change some trestles such as the trestle
in Lower Area One. This may necessitate some off-site mibgation. Streamside
lections—railroad bed will remain, therefore should be able to avoid resource.
Viprmbt/ fl, 19^4
1
-------
!*
SITE
CONSTELLATION
OPERABLE UNIT
PERfORMANCE ROLE
Attach-
ments B,
C or D
NOTES 1
1 8
BA &P
Corridor
Gold and Silver, Richest
Hill, Smelting
Butte sections—PS
R1/F5; Strcamside, and
Anaconda
Controlled Participatory
B & D
Butte sections-railroad bed most likely will remain the same.
There may be, however, the necessiy to destroy, move or change
some trestles such as the trestie in lower Area One. This may
necessitate some off-site mitigation. Streamside sections and
Anaconda-railroad bed will remair, therefore should be able to
avoid resource.
9
Dublin Gulch
(Town)
Gold ana Silver, Richest Hill
PS ERA, and PS RJ/FS
Controlled Participatory
B4D
May be some residential yards und;r PS ERA. May be some off-
site mitigation required as part of tie mitigation package for loss of
mining landscape.
1 10
Missoula
Gulch
Cold and Silver
PS RJ/FS and LAO
(bottom)
Controlled Participatory
B & D
Walkerville TCRA did p ho tod ocuaen ration, inventories, and
Granite Mountain signs. May be off-site mitigation required
as part of the mitigation package fir loss of mining landscape. |
11
Orphan Boy
Gold and Silver, Richest Hill
Non-Priority Soils
•
Controlled Participatory
B U D
DSL dosed shaft, may require stornwater and soils reclamation.
Should be able to avoid resources. Some off-site may be required.
12
!
Prospect-
Glory Holes/
Bluebird Trail
Gold and Silver, Richest HjII
Non-Pnonty Soils
Controlled Participatory
BiD
Numerous shafts of various depth; and size. May require shaft
dosures. The few resources left met likely could be avoided,
although it may be necessary to dt some off-site mitigation.
13
Buffalo Gulch
Gold and Silver
PS RI/F5
Conirolled Participatory
B U D
May be some off-site mitigation re|uired as part of the mitigation
package for toss of mining lard scape. Depending on action for
RJ/FS these gulches may be drasbally changed.
14
Teddy Bear
Placer
Gold and Silver
Strcamside
Controlled Participatory
C
Depending upon action under Striamside. this may be drastically
changed. Resources should be avi ided. however may require some
on-site mitigation.
15
Other Placers
Gold and Silver
Strcamside
Controlled Participatory
D
Depending upon action under Striamside this may drastically
changed. Resources should be avnided, however may require some
off-site mitigation.
"
Bluebird Mill
Gold and Silver
Non-PS OU
Observed
B&D
As this is a former mill site (here nay be elevated levels of mercury
as well as lead and arsenic. Very little left so should be able to
avoid resources, although may rei|uire some off-site mitigation.
17
Yellow Ditch
Gold and Silver
Streamside
Observed
Bit D
Very little left so should be able bt avoid resources, although may
require some off-site mitigation.
18
Alice Mine
and Mill
Gold and Silver
Walkerville TCRA, PS
R1/F5 stt>m\waU;r
Observed
Complete
Walkerville TCRA did photodocu nentabon, inventories, and
Granite Mountain signs.
Or*/t
September 8, 1994
-------
t
SITE
CONSTELLATION
OPERABLE UNIT
PERFORMANCE ROLE
Attach-
ment B,
C, or O
NOTES
1 19
First Cold
Strike
Cold and Silver
Streamside
Dormant
C
There is very little left here. Shoul d be able to avoid, however may
require some on-site mitigation.
1 20
Emma Mine
Yard
Reclamation, Richest Hill
PS Rl/FS
Participatory
Complete
BSB did reclamation under an RIT grant Stoimwater will be under
PS Rl/FS, however should not cha nge anything that is left DSL
dosed shaft (Historic Properties Vanagcment Plan mitigabon for
this.)
21
Butte
Reduction
Works/
Colorado
Tailings
Reclamation, Smelting
Lower Area One ERA
Participatory
CiD
Most of slag walls will remain, aid tough some scctiuns will be
removed necessitating on-site Vnidj .ation. Most of water flumes will
remain although again, some in-si e miugation will be required.
Foundations, loading platforms od er significant resources will
remain and be avoided.
; 22
i
I
1
Belmont
Reclamation, Richest Hill
PS RJ/FS
Participatory
C
A.RCO did early reclamation rot u >der Superfund. Inland
Properties has done stormwater re lamation not under Superfund.
Mine yard may necessitate some o t-site mitigation. Early work
will be reviewed under PS Rl/FS.
23
Old Works
Golf Course
(Upper and
Lower Works)
Reclamation, Smelting
Anaconda OW/EADA
RI/FS
Controlled Participatory
CiD
Proposed interpretive trail will ser t; as on-site mitigation. Other
resources may be avoided dependi ig upon Rl/FS decisions.
¦
j 24
i
I
Warm Springs
Ponds
Reclamation
Warm Springs Ponds
Controlled Participatory
CiD
Historic inveitory completed as p; rt of previous work. Future
work will avoid resources, althoug i reclamation may require some
orvsite mitigation. Oivsile mitigat >n agreed to but not yet
completed.
; 25
Washoe
Reduction
Works/ stack
Reclamation. Smelting
Anaconda
Controlled Participatory
BID
Avoidance of few remaining struci ires where possible. Final
remedy may require off-site nutig? ion. Stack will remain.
i 26
L'-.
Slag Piles
Reclamation, Smelting
Anaconda Regional
water and waste
Observed
B & D
Depending upon the final ren
-------
27
28
29
30
31
32
33
34
35
SITE
Anaconda
Ponds
Mill Creek
Community
Red Sands
Area
Opportunity
Ponds
Butte Smelters
CONSTELLATION
Reclamation. Smelting
Reclamation, Smelting
Smelting
Reclamation. Smelting
Smelting
Anselmo/
Central
Timber Yard
Missoula
Mine
Mountain Con
Syndicate Pit
Richest Hill
operable unit
Anaconda Regional
Water and Waste R1/F5
Anaconda Soils Rl/FS
Anaconda OW/EADA
RJ/FS
Anaconda Regional
Water and Waste RI/F5
Colorado Smelter TCRA,
PS Rl/FS and Active
Mine
PERFORMANCE ROLE
Observed
Dormant
Controlled Participatory
Observed
Dormant
Anselmo TCRA. PS
Rl/FS stormwater
Richest Hill
Richest Hill
Richest HJI
PS Rl/FS. WalkcrviUe
TCRA
PS Rl/FS, Dumps in PS
ERA
PS ERA, PS RJ/FS
Participatory
Participatory
Participatory
Pamripatory
Attach-
ments B,
C or D
B& D
Bit D
C1D
B k D
B& D
BiD
Bit D
NOTES
Depending on final remedy rrray need some off-site mitigation.
Should be able to avoid most ref iurces.
Most structures already removed under Mill Creek removal. May
need some off-site mitigation.!
Most resources can be avoided/ h iwever depending upon the
remedy the bnd&cape may be ch. nged requiring off-site mitigation.
Colorado Smelter TCRA did inve itones arvl avoided foundations.
Little remaining of other smelters in Butte. Should be able to
mitigate off-site as part of total p- dcage for loss of mining
landscape. Some smelters locatec in active area will be under DSL
reclamation.
BSB RTF funds removed asbestos, put new roofc and windows on
some of the buildings. DSL close I shaft and did some reclamation;
dumps to south of mine yard wh re done by ARCO. Most
resources were avoided duririg Ti Ka, some on-site mitigation
occurred. Stormwater drainage s jl a problem. May need to still
do some on-site mitigation.
Most resources can be avoided; nr >y still need some off-site
mitigation.
Some reclamation work complete* by ARCO, reclamation study
being completed as part of Pi\ ER l, stormwater PS RJ/FS. Mine
buildings in mine yard may conte n asbestos. Resources will be
avoided.
Dumps upgiadient of pit are part jf PS ERA, stormwater under PS
Rl/FS. Mine permit includes pit • nd underground areas, therefore
reclamation will be under DSL.
rvft
ptarvcr 6, 1994
4
-------
#
SITE
CONSTELLATION
OPERABLE UNIT
PERFORMANCE ROLE
Attach-
ment B,
C, or D
NOTES
36
Steward Mine Yard
Richest Hill
PS TCRA. PS Rl/FS
Controlled Participatory
C & D
PS TCRA did partial reclamation, mitigation was
photodocumentation. Resourrcs in mine yard will be avoided,
however may need some off-site tniiigatjon due to stormwater
actions. May be asbestos present in mine buildings.
1
37
Alice Pit and Knob
Richest Hill
PS ERA, PS Rl/FS
Observed
B U D
PS ERA will address Alice Knob. May change shape of knob
drastically therefore will need to do some off-site mitigation.
Stormwater remedy may also change landscape requiring some off-
site mitigation. Should be pait of brtaJ package for loss of mining
landscape.
1 38
[
i
I
!
Mining Landscape
Was a- Dumps/
Mine Yards
Neighborhoods
(throughout Burie)
Reclamation,
Richest Hill
PS ERA, PS Rl/rS, Non-
PS Rl/FS. Active Mine
OU
Observed (Neighborhoods,
and Mining Landscape)
Controlled Pamapatory
(Waste Dumps/Mine Yards)
D
There will be a change to the mining landscape in the sections of
the community that are in the PS CU. The active mine area falls
under DSL reclamation and most licely will not be changed. The
proposed off-site mitigation package should take into account the
loss of this landscape, although lajj.e areas of the community (the
active mine area) will remain the s;jne. Some reclamation lias
taken place under Butte TCRAs. P> era will address residential
yards and remaining dumps.
I 39
Railroads throughout
Butte (Milwaukee,
Creat Northern,
Northern Pacific)
Richest Hill
PS RJ/F5,
Observed
B & D
Railroad beds most likely will arm.un the same. There may be.
however, the necessity to destroy, move or change some trestles or
associated railroad banks, therefon some off-site mitigation may be
a necessary.
! 40
!
]
Ophir Mine Yard
Richest Hill
PS ERA, PS Ri/FS
Dormant
B & D
Few remaining resources. Mine yz rd will be addressed under PS
ERA, stormwater under PS Rl/FS. Most resources can be avoided,
may need some off-site mitigation.
Dri/i
- ScpusnUj fl, 7994
5
-------
EXAMPLE 7-C
NANSEMOND ORDNANCE DEPOT
-------
SODb
PROGRAMMATIC AGREEMENT
AMONG
THE NORFOLK DISTRICT, U.S. ARMY CORPS OF ENGINEERS,
REGION III, THE ENVIRONMENTAL PROTECTION AGENCY,
AND
THE VIRGINIA DEPARTMENT OF HISTORIC RESOURCES
SUBMITTED TO THE ADVISORY COUNCIL ON HISTORIC PRESERVATION
PURSUANT TO 36 CFR §800.14 (b)
WHEREAS, the Norfolk District (District), U.S. Army Corps of Engineers and the Envrionmental
Protection Agency, Region III (EPA) are conducting cleanup of ordnance, other unexploded safety hazards
and other hazardous substances at the Former Nansemond Ordnance Depot (FNOD) under the authority of
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended
(CERCLA),42 U.S.C. §§ 9601 et seq.. and other authorities; and
WHERAS, the FNOD consists of 975+ acres on the south shore of the James River, east of the
interesection of the Nansemond River with the James, in the City of Suffolk, Virginia (as shown on the
attached map), and was used by the Department of Defense between 1917 and 1960; and
WHEREAS, the District and EPA have determined that this project is an undertaking under Section 106 of
the National Historic Preservation Act that may have an effect on historic properties, specifically
archaeological sites and have consulted with the the Virginia State Historic Preservation Officer (SHPO)
pursuant to Section 800.14 of the regulations (36 CFR Part 800) implementing Section 106 of the National
Historic Preservation Act (NHPA); (16 U.S.C. 470f), and have invited the Advisory Council on Historic
Preservation (Council) to participate in the consultation; and
WHEREAS the District has prepared a report on the general historic background and contexts of the
FNOD project area, entitled Phase la Historical and Archaeological Assessment of the 1,000-Acre Former
Nansemond Ordnance Depot, City of Suffolk, Virginia (McDonald and Givens 1996) and the District and
the EPA have prepared an Archaeological Work Plan which provides procedures for inventory and
evaluation of archaeological resources as part of all project planning and execution activities for the
FNOD, and is included with this document as Attachment A; and
WHEREAS, as part of the National Environmental Policy Act (NEPA) process, the District and the EPA
have informed the public about the project through various public notices, public hearings, the formation of
a Restoration Advisory Board, and the Draft Final Site Management Plan (January 2000). As a result of
these efforts the District in consultation with the EPA and the SHPO, has identified various parties that
were invited to participate in the development of this Programmatic Agreement (PA); and
WHEREAS, the following Native American tribes, organizations, agencies, and institutions (consulting
parties) were requested participate in consultation, and to concur in this PA:
The Nansemond Tribal Association
The Virginia Council on Indians
The United Indians of Virginia
The Virginia Department of Environmental Quality
The Tidewater Community College
The City of Suffolk
Dominion Land, Incorporated
NOW, THEREFORE, the District, the EPA, and the SHPO agree that the proposed environmental testing
and cleanup shall be carried out in accordance with the following stipulations in order to take into account
-------
the effects of these undertakings on historic properties:
STIPULATIONS
The District and the EPA shall insure that the following stipulations are carried out:
I. Identification and Evaluation
Stipulation 1: The District and the EPA have prepared and will execute an Archaeological Work Plan
(AWP) which provides the technical details for the Identification and Evaluation of historic properties
within the context of the ongoing project. The AWP is included as Attachment A of this PA.
Stipulation 2: The District shall insure that an archaeologist meeting the Secretary of Interior's Professional
Qualifications Standards (Project Archaeologist) shall prepare a detailed map of the project area
delineating its potential to contain archeological properties and submit the map to the SHPO for review and
approval, as indicated in Item 2 of the Archaeological Work Plan.
Stipulation 3: Project Plans, Work Plans, Contracts
The Project Archaeologist shall review all existing and future general plans, work plans, scopes-of-work
and contract documents for possible effects to previously identified and predicted archaeological resources
as provided for in the AWP (Attachment A). This work will be done in cooperation with the EPA Project
Manager and the District Project Manager, and shall include documents prepared by non-federal entities
under the oversight or approval of the EPA or the District. All scopes-of-work and contract documents
prepared by or subject to the approval of the EPA or the District shall contain a reference to this PA as
defining requirements that must be observed in the conduct of contracted work.
Stipulation 4: The Project Archaeologist shall submit plans for all actions with the potential to affect
historic properties to the SHPO for review and comment. If the SHPO does not provide comments within
thirty days, the EPA and the Corps will assume concurrence and proceed. If the EPA and the District in
consultation with the SHPO determines that no historic properties are affected, work may proceed. If the
EPA and the District in consultation with the SHPO find that further identification efforts are needed, the
identification and evaluation of archaeological properties will proceed following the procedures outlined in
the AWP.
Stipulation 5 : If archaeological properties are identified as a result of the execution of the procedures in the
AWP (which includes unexpected discoveries), the EPA and the District will consult with the SHPO and
other consulting parties on ways to reduce, avoid, or mitigate project effects.
If the proposed actions will affect archaeological properties, the Project Archaeologist shall prepare a
treatment plan in consultation the EPA, the District, the SHPO, and other consulting parties. The treatment
plan may include, but need not be limited to, any one or more of the following:
• Avoidance
• Protection in place
• Stabilization
• Data recovery
• Incorporation into protected areas
• Curation
• Publication
• Public Interpretation
• Repatriation
• Long term management and co-management
-------
The Project Archaeologist shall provide all Treatment Plans to the EPA, the District, the SHPO, and all
consulting parties for a thirty day review period. Comments on the Treatment Plans shall be submitted to
the Project Archaeologist.
Stipulation 6: Any human remains encountered during the implementation of this agreement shall be
treated in accordance with the "Regulations Governing Permits for the Archaeological Removal of Human
Remains" (VR 390-01-02) found in the Code of Virginia (10.1-2305, et seq., Virginia Antiquities Act).
The District must obtain a permit from the SHPO for the removal of human remains in accordance with the
regulations stated above. In reviewing a permit involving removal of Native American human remains, the
SHPO will notify, the District and the SHPO will notify and consult with the Nansemond Tribal
Association.
All reasonable efforts will be made to avoid disturbing Native American gravesites and associated artifacts.
Skeletal remains and funerary items shall be handled with respect beginning with the start of excavation,
osteological examination and the final reinterment. Excavation of skeletal remains shall use a pedestal with
the same positioning and orientation as originally found.
The general public shall be excluded from viewing any Native American grave sites and associated
artifacts.
Human skeletal remains shall be reinterred as determined by and in a location as agreed upon by the
Nansemond Tribal Association with two years after removal, with no extension.
Stipulation 7: Unanticipated Discoveries: the EPA and the District will ensure that construction documents
contain the following provisions for the treatment of unexpected discoveries:
"In the event that a previously unidentified historic property is discovered in the area of potential effect
after implementation of this PA or initiation of ground disturbing activities, all construction work involving
subsurface disturbance will be halted in the area of the resource and in the surrounding area where further
subsurface remains can reasonably be expected to occur. The Contractor shall immediately notify the
District Project Manager and/or the EPA Project Manager who will consult with the Project Archaeologist,
the SHPO and other appropriate parties, including the Nansemond Tribal Association, to determine if
further investigations are warranted. The Project Archaeologist will immediately inspect the work site and
determine the area and the nature of the affected archeological property. Work may then continue in the
project area outside the site area."
The District and the EPA, in consultation with the SHPO, will determine the National Register eligibility of
the previously unidentified resource. Potentially eligible historic properties will be evaluated using the
National Register criteria in accordance with 36 CFR 800.4(c). If the resourceis determined to meet the
National Register Criteria (36 CFR Part 60.6), the District and the EPA will ensure compliance with
Section 800.11 of the Council's Regulations. Work in the affected area shall not proceed until either the
development and implementation of an appropriate treatment plan; or the determination is made that the
located resource is not eligible for inclusion on the National Register.
II. Previous Disturbance to Archaeological Sites
Stipulation 8: Because some environmental testing and cleanup was conducted without inventory
completing the identification of historic properties and assessment of effects prior to the execution of this
Programmatic Agreement sites of this previous work will be visited and assessment of any effects to
archaeological resources will be documented, following the procedures called for in the Archaeological
Work Plan (Attachment A).
-------
III. Public Involvement
Stipulation 9: The District and the EPA will arrange for public participation appropriate to the subject
matter and the scope of work and involve the individual, organizations and entities likely to be interested,
in accordance with Section 800.2(d) and Section 800.8 of the regulations (36 CFR Part 800) implementing
Section 106 of the NHPA (16 U.S.C. 470f). Consultation with the Nansemond Tribal Association and other
appropriate interested parties will take place on all aspects of the archaeological resource work arising from
this PA, for example identification, evaluation, treatment, curation, treatment of human remains, and
review of reports. Information contained in technical reports will be provided in accessible, non-technical
form.
IV. Dispute Resolution
Stipulation 10: Should any party to this PA object to any action carried out or proposed with respect to
implementation of this PA, the EPA, the District, and the SHPO will consult with the objecting party to
resolve the objection.
If after inititiang such consultation, the EPA and the District determine.that the objection cannot be
resolved through consultation, the EPA and the District shall forward all documentation relevant to the
objection to the ACHP, including the proposed response to the objection.
Within thirty days after the receipt of all pertinent documentation, the ACHP shall exercise one of the
following options:
(a) Advise the EPA and the District that the ACHP concurs in the proposed response to the objection,
whereupon the EPA and the District will respond to the objection accordingly; or
(b) Provide the EPA and the District with recommendations, which the EPA and the District shall take into
account in reaching a final decision regarding its response to the objection; or
(c) Notify the EPA and the District that the objection will be referred for ACHP comment pursuant to
Section 110(1) of the NHPA and 36 CFR 800.6, and proceed to refer the objection for comment. Any
ACHP comment rendered pursuant to this stipulation shall be understood to apply only to the subject of the
objection; all other responsibilitie of the parties stipulated in this PA shall remain unchanged.
V. Reports, Annual Reports, and Amendments
Stipulation 11: All archaeological work conducted under the terms of this agreement will be the subject of
a comprehensive report or reports, to be submitted within two years of the termination of the undertakings
associated with the cleanup at FNOD. All technical reports prepared pursuant to this agreement will be
consistent with the federal standards entitled Archeology and Historic Preservation: Secretary of the
Interior's Standards and Guidelines (48 FR 44716-44742, September 29, 1983) and the Guidelines for
Preparing Identification and Evaluation Reports for Submission Pursuant to Sections 106 and 110, National
Historic Preservation Act, Virginia Department of Historic Resources, June 1992.
Stipulation 12: On or before January 31st of each year until the EPA and the District determine that the
terms of this PA have been fulfilled and so notify other consulting parties, the Corps will prepare and
provide an annual report to all parties to this PA, addressing:
• Status of Project Implementation
• Progress in Work
• Coordination of work with planning and construction schedules
• Any problems or unexpected issues encountered during the year, and
-------
• Any changes that the EPA and the Corps believe should be made in implementation of this PA.
The Annual Report will be prepared in non-technical, accessible language. The EPA and the District shall
insure that the annual report is made available for public inspection, that potentially interested members of
the public are made aware of its availability, and that interested members of the public are invited to
provide comments to the EPA, the District, and other consulting parties.
Stipulation 13: Based upon this annual review, any party to this PA may propose to the EPA and the
District that the PA be amended, whereupon the EPA and the District will consult with the other parties to
this PA to consider such an amendement. All signatories (EPA, the District, and SHPO) to the PA must
agree to the proposed amendment in accordance with 36 CFR 800.6(c)(l)(i).
Stipulation 14: The distribution of the fourth annual report shall include a request to signatories and
consulting parties to consult to evaluate the execution of the PA, and consider whether to amend, continue
or otherwise extend the PA, which will otherwise terminate at the end of the fifth year (see Siptulation 18).
VI. Professional Qualifications
Stipulation 15: All archaeological work conducted under the terms of this agreement will be done under the
direct supervision of qualified individuals meeting, at a minimum, the appropriate federal qualifications
provided in 36 CFR Part 61, Appendix A, as provided for in the Archaeological Work Plan (Attachment
A).
VII. Curation
Stipulation 16: Artifacts collected in the course of implementing this agreement are the property of the
present land owners. The District and the EPA shall encourage the curation of these materials in
accordance with 36 CFR Part 79. All archaeologial field records and documents will be the property of the
District, and will be curated in accordance with 36 CFR Part 79.
VIII. Termination
Stipulation 17: If the EPA or the District determines that the terms of this PA cannot be carried out, or if
the EPA, the District or the SHPO determines that the PA is not being properly implemented, the EPA, the
Distric and the SHPO shall consult to seek amendment of the agreement. If the agreement is not amended,
any signatory may terminate it with thirty days notice to the other signatories. The EPA and the District
shall then either execute a Memomorandum of Agreement with signatories under 36 CFR 800.6(c)(1) or
request the comments of the Council under 36 CFR 800.7 (a).
IX. CERCLA Lead Agency Disclaimer
Stipulation 18: Nothing in this Programmatic Agreement shall be construed as a resolution, agreement or
admission regarding which federal agency is the lead agency at the FNOD for purposes of CERCLA or to
which federal agency the President of the United States has delegated his authority under CERCLA at the
FNOD.
IX. Expiration
Stipulation 19: This agreement will continue in full force and effect for 5 years. At some time in the six
month period prior to the expiration of the Agreement, all parties can agree to extend this agreement with
or without amendments, indicating their agreement to the District and the EPA in writing.
Evidence of Compliance
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Execution and implementation of this Programmatic Agreement evidences that the District and the EPA
have satisfied their Section 106 responsibilities for all individual undertakings of this program.
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REFERENCES:
Benedict, Tod L.
1996 Archeological Assessment of Sampling Grids, Ordnance and Explosives Engineering
Evaluation/Cost Analysis, Former Nansemond Ordnance Depot, City of Suffolk, Virginia.
Letter Report, provided by John L. Milner Associates to Foster-Wheeler Environmental
Corporation, December 12,1996.
McDonald, Bradley M. and David M. Givens
1996 Phase la Historical and Archaeological Assessment of the 1,000-A ere Former Nansemond
Ordnance Depot, City of Suffolk, Virginia. Report prepared by the James River Institute
for Foster Wheeler Environmental Corporation.
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[Separate] SIGNATURE PAGE
NORFOLK DISTRICT, U.S. ARMY CORPS OF ENGINEERS:
By: Date:
ALLAN B. CARROLL, JR.
Colonel, U.S. Army, District Engineer, Norfolk District
REGION III, U.S. ENVIRONMENTAL PROTECTION AGENCY
By: Date:
VIRGINIA STATE HISTORIC PRESERVATION OFFICER:
By: Date:
H. ALEXANDER WISE, JR.
Director, Virginia Department of Historic Resources
ACCEPTED FOR ADVISORY COUNCIL ON HISTORIC PRESERVATION:
By:
Date:
JOHN M. FOWLER
Executive Director, Advisory Council on Historic Preservation
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ATTACHMENT A:
Archaeological Work Plan
Former Nansemond Ordnance Depot
March 2000
Tim Thompson
Archaeologist
Project Management Division, Environmental Branch
Norfolk District
U.S. Army Corps of Engineers
Plan reviewed and approved:
Kirk Stevens Robert Thomson
Project Manager Project Manager
Norfolk District, U.S. Army Corps of Engineers Region III, U.S.
Environmental Protection
Agency
[cover page]
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Introduction
In July 1999, the former Nansemond Ordnance Depot (FNOD) was put on the National Priority List
(NPL) by U.S. EPA Region III. The Department of Defense has been identified as one of the "Primary
Responsible Party" (PRP). Under the Formerly Used Defense Site (FUDS) Program the Norfolk District, U.S.
Army Corps of Engineers is addressing environmental concerns that resulted from Department of Defense
(DOD) use of the former depot. This work plan address the work at this site being conducted at this site by the
Corps of Engineers, the Environmental Protection Agency, and their contractors. A number of specific
actions related to the requirements of Section 106 of the National Historic Preservation Act have been carried
out. However, no overall plan for the identification, evaluation, protection and management of the historic
properties within the FNOD has been completed. This Archaeological Work Plan (AWP) is intended to fill
that void, and provide the basis for a Programmatic Agreement (PA) to establish compliance with Section 106.
The identification and remediation of hazardous materials at FNOD is a complex process, and this
plan will group certain similar sets of activities together to provide generic procedures for insuring that the
requirements of the law and the regulations are met. Reference will be made to the "Draft Final Site
Management Plan, Former Nansemond Ordnance Depot" (January 03, 2000), prepared by the Norfolk District,
to identify activities requiring action to satisfy Section 106.
Before examining the project in more detail it is appropriate to review the Historic Preservation
Contexts to insure that the work plan will address resources within those contexts. Previous reports and
management recommendations are summarized in the section called "Historic Preservation Context."
Following this, a set of general procedures governing the archaeological work at FNOD in the section called
"General Procedures: Archaeological Work." These procedures will be applied to the investigations and
cleanup process, which are described in the next section, "Undertaking: Process". Following this a procedure
for evaluating work completed to this point is given in the section "Undertakings: Completed." This covers
previous testing and remediation excavation that was not covered by previous Section 106 consultation.
The plan section "Undertaking: Locations" reviews the various areas at FNOD where hazardous
materials or unexploded ordnance are known or suspected. The final section "Reports" provides for Reports to
be prepared an all archaeological investigation at the FNOD. A "References" section is provided.
Historic Preservation Context
Milner Report
On 26 September 1996 Robert Ogle, Chief of Planning Division, Norfolk District, sent a letter to
David Dutton, Virginia Department of Historic Resources which gave a brief summary of the history of the
property and included as an attachment "Ordnance and Explosives Engineering Evaluation/Cost Analysis
[EE/CA] at the Former Nansemond Ordnance Depot, Suffolk County, Virginia". The attachment described the
use of 100' by 100' sampling grids placed across the property to identify ordnance deposits. Thirty to forty
sampling grids were used. The details of the procedures to identify archaeological sites are given in the section
of this work plan called "General Monitoring" and will be used to the degree applicable as part of this plan.
The sampling work was completed, and a letter report was submitted to Foster Wheeler Corporation.
This letter report with the subject title "Archeological Assessment of Sampling Grids, Ordnance and Explosive
Engineering Evaluation/Cost Analysis, Former Nanosecond Ordnance Depot, City of Suffolk, Virginia"
documents the completion of the procedures described in Item 3, above. Visual inspection, and the placement
of one shovel test pit within each grid square investigated 34 sample grid squares, designated for geophysical
survey were completed. The final recommendations by the archaeologist include the following statement:
Accordingly, no further archeological monitoring is recommended within the 34 grids
examined during this investigation. However, if similar UXO testing is to be done elsewhere within
the project area, in possibly less-disturbed loci, additional archeological monitoring is advised (12
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December 96 - Letter Report, Todd Benedict, archaeologist, John Milner Associates, to Mark
Shells, Project Manager, Foster-Wheeler Environmental Corporation).
Phase IA Report
In 1996, the James River Institute for Archaeology completed a "Phase IA Historical and
Archaeological Assessment of the 1,000-Acre Former Nansemond Ordnance Depot, City of Suffolk, Virginia
(McDonald and Givens 1996)" under contract to the Foster Wheeler Environmental Corporation. This study
included a review of documentary and cartographic resources pertaining to the study area and included the
results of previous archaeological studies within the area (Outlaw 1990; McSherry and Luccketti 1992). Both
prehistoric and historic period contexts were reviewed, and the following summary was included:
Approximately 130 prehistoric and historic archaeological sites are located in the
immediate vicinity of the project area. It is therefore likely that unidentified archaeological
resources exist within the project area, particularly along the terraces overlooking the tributaries of
West and Streeter Creeks. Archaeological resources likely to be located within the project area
include: (1) small prehistoric campsites dating to the Archaic or Woodland periods; (2)
seventeenth-century domestic sites; (3) eighteenth century domestic sites; (4) nineteenth-century
domestic and agricultural sites; and (5) twentieth-century domestic and military sites. (MacDonald
and Givens 1996: iii).
The following recommendations were given:
The Cultural Resources assessment of the former Nansemond Ordnance Depot suggests
that the majority of the project area has not been surveyed arch aeo logically. Given the
concentration of both prehistoric and historic sites in the immediate vicinity of the study area, it is
likely that — barring significant construction disturbances—the unsurveyed areas have moderate to
high potential to contain a variety of archaeological sites, particularly along the terraces
overlooking the tributaries of West and Streeter Creeks. Archaeological Resources located on the
property may include prehistoric sites, seventeenth-century domestic sites, eighteenth-century
domestic sites, nineteenth-century domestic and farmstead sites, and twentieth-century domestic
and military sites.
One site previously identified within the general bounds of the former Nansemond
Ordnance Depot, 44SK399, was deemed potentially eligible for nomination to the National
Register of Historic Places. Espey, Huston, and Associates recommended this site should be
investigated at the Phase II level if future work will impact this area. Also within the bounds of the
project area, 44SK6 was identified in 1977; at that time, the site was visibly eroded, but the site
form does not indicate the need for further work. JRIA suggests that Site 44 SK6 should be
re-examined if the proposed plan of work at the depot will disturb this area (McDonald and Givens
1996:47).
This work plan is designed to address these recommendations.
Unexpected Discovery: Burial
On Tuesday, 14 April 1998, human bones were discovered in a road cut placed to provide access for
test drilling on the beach on the James River. Some of these were removed by the Suffolk Police Department
as possible "crime scene" evidence, and when they were found to be ancient were returned to the site. During
consultation with the Virginia State Historic Preservation Officer (SHPO) staff and the Nansemond Tribe, it
was agreed that this location would be treated as a prehistoric burial site. The Norfolk District placed filter
cloth and a thick layer of gravel over the remains to protect them from further erosion. It was agreed that if this
location were subject to any further disturbance, that consultation would resume and a more thorough
investigation would be completed to determine the limits of any site that might be present and to design
measures to protect the site or complete data recovery. It was further agreed that a PA would be prepared to
cover the entire project.
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General Procedures: Archaeological Work
1. Project Archaeologist
The archaeologist presently employed by the Norfolk District, U.S. Army Corps of Engineers, is
assigned the role of "Project Archaeologist". That individual meets the professional standards established by
the Secretary of the Interior (Federal Register 62(119):33707-33723). If this role is reassigned, these
qualifications will be required.
2. Probability Map
The Phase IA report (McDonald and Givens 1996) indicated that the entire project area possessed a
medium to high probability for containing significant archaeological resources. The Project Archaeologist will
review previous studies to refine this probability statement and provide a more detailed map indicating
specific areas of high and medium probability. This map will be used to condition management activities for
specific portions of this complex project area. The following elements will be used to create predictive models
and the map:
1. Distribution of topographic and drainage features
2. Prehistoric settlement patterns
3. Historic period settlement patterns
4. Disturbance analysis of recent land use actions in the area.
The Probability Map will be submitted to the Virginia SHPO for review and comment.
3. Unexpected Discoveries: archaeological resources
All contractor personnel and government personnel will be alerted to the possibility that significant
archaeological resources may be encountered at any point in the study area. Of particular concern is the
possibility that additional human remains from either the prehistoric or the historic period may be encountered.
Anyone conducting any excavation or ground disturbance that observes possible archaeological
resources, particularly human burials, will immediately cease work and contact the Norfolk District Project
Manager, or his designated representative, to arrange for a field evaluation of the discovery by the project
archaeologist. This policy will be established immediately for all ongoing work, and will be made a contract
requirement for all future contracts.
Treatment of the unexpected discovery of human remains shall be in accordance with § 10.1-2300 et
seq of the Code of Virginia, and Virginia Regulations 390-1-02, and the SHPO shall be notified immediately.
In the case of remains that are, or are suspected to be of Native American Origin, the Virginia Council on
Indians, the United Indians of Virginia, and the Nansemond Tribal Association shall be notified immediately
to participate in consultation on the treatment of such remains.
4. Site Management and Work Plan Review
Thorough reviews of the Draft Final Site Management Plan ("SMP"; U.S. Army Corps of Engineers
2000) and other specific work plans and studies for individual candidate remediation sites is ongoing. All
segments of these plans that might result in the disturbance of archaeological resources, particularly
contractors' work plans and project scopes, will be identified and subject to review by the project
archaeologist This will allow for the identification of archaeological resource management problems and the
formulation of specific procedures prior to the initiation of field activities for testing or remediation. Specific
procedures are given below, in the section "Integrating Archaeological Protection and the Cleanup Process."
Any changes needed these plans to insure compliance activities can by incorporated will be made.
Changes and modifications to the SMP and other work plans will likewise be reviewed by the project
archaeologist, and the AWP adjusted to address these changes.
5. Scopes of Work, and Contracts
Existing scopes of work and contracts will be reviewed by the project archaeologist as soon as
possible to identify compliance needs. Soils and surface condition data generated by previous studies will be
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used to aid in the disturbance analysis, which is a factor in the creation of the probability map.
Future work plans, scopes of work, and contracts will be reviewed in consultation with the project
archaeologist to identify compliance needs. Any changes to these scopes and contracts required to insure
compliance will be made.
6. Other Activities
Any activities connected with the FNOD cleanup that involve ground disturbance or excavation of
any kind that are not covered in the Site Management Plan or other work plans will be submitted to the
Norfolk District Project Manager for review by the project archaeologist with sufficient lead time to allow for
the design of any project modifications that may be necessary to insure the protection of any archaeological
resources, and to complete any needed archaeological field investigations, as described below in the section
"Integrating Archaeological Protection and the Cleanup Process."
7. Unexpected Discovery: Unexploded Ordnance, Hazardous Materials
If an unexpected discovery of explosive ordnance, or any item or object that as an immediate threat to
life or property occurs, and immediate remediation is required, the Norfolk District Project Manager will be
notified, and the project archaeologist will be given an opportunity to examine any excavation after the threat
is removed and before the excavation is backfilled. This provision applies to circumstances that occur outside
the normal screening and identification procedures provided for in the Site Management Plan.
8. General Monitoring
This plan follows the model originally specified in the "Ordnance and Explosives Engineering
Evaluation/Cost Analysis at the Former Nansemond Ordnance Depot, Suffolk County, Virginia." The details
of this procedure are quoted below. The Virginia State Historic Preservation Office approved this procedure in
1997 for the limited sampling area covered by this EE/CA.
Procedures will be implemented to identify archaeological sites and to avoid damage to
such sites. Prior to the start of excavation work, the contractor must first locate and stake the
corners of the sampling grids. Grids in areas of heavy vegetation must be cleared enough so that
workers carrying geophysical instruments can gain access to the grid. Once the grids have been
staked and cleared of vegetation, the contractor's archaeologist (with the accompaniment and
guidance of ordnance specialists) will visually survey the areas for anything of archaeological
significance and indicate the locations where archaeological samples shall be taken. If anything of
archaeological significance is found at the grid, no ordnance sampling will be done and the Virginia
SHPO will be notified. (Grids eliminated from ordnance sampling due to archaeological
significance will generally be shifted to avoid areas of archaeological significance or replaced by
newly established grids outside the areas of archaeological significance). If there is no indication of
archaeological significance for the grid, the archaeologist will move on to the next grid, and the
contractor's ordnance specialists will begin the ordnance sampling. (Safety regulations require that
only persons trained in ordnance operation are allowed within 1250 feet of ordnance sampling
operations. Therefore, the archaeologist may not be present during the ordnance sampling
operations.) After completion of ordnance sampling, but prior to backfilling of holes, the
archaeologist will conduct quality assurance inspections on ordnance excavations.
These procedures are here modified to set the withdrawal of the archaeologist to the "Public
Withdrawal Distance" (PWD) specified for particular locations in the contractor's work plans, and to allow for
their use in intrusive geophysical and other testing actions, in addition to ordnance removal.
9. Exceptions
Some activities that are part of routine sampling operations do not create sufficient disturbance to
require immediate archaeological attention. Two activities are specified:
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a. Placement ofgroundwater monitoring wells
These wells are created by drilling an encased shaft two to three inches in diameter into the water
table to provide for periodic monitoring of the chemical constituents of the groundwater.
b. Hand Auger soil sampling
This sampling procedure uses hand operated augers to sample soil below the surface for various
constituents needed to evaluate the need for more extensive intrusive testing. This sampling procedure creates
an auger hole three to four inches in diameter, normally to a depth no greater than four feet.
While these activities in themselves do not create sufficient effects to require immediate
archaeological attention, more extensive earthmoving, such as excavation or grading for access roads
associated with them may be more damaging. For this reason, the project archaeologist should be notified of
these procedures prior to their conduct, and any additional ground disturbance associated with them should be
indicated and evaluated by the project archaeologist to determine whether archaeological testing or monitoring
is required.
10. Archaeological Investigations
a. Previously identified archaeological sites
There are eight previously identified archaeological sites within the project boundaries. Seven of
these are listed in the Phase LA archaeological report submitted by James River Institute (McDonald and
Givens 1996:43):
44SK6
44SK379
44SK396
44SK398
44SK399
44SK401
44SK403
Of these, five had been determined not eligible to the National Register of Historic Places (NRHP),
44SK378, 44SK396, 44SK398, 44SK401, and 44SK403, and no further action is required under this plan.
44SK6 was recommended "status unclear", and will require further evaluation. This site is just to the west of
the portion of the project referred to as the "James River Beachfront". 44SK399 is classified "potentially
eligible" and Phase II is recommended. This site is on the west edge of the "Impregnite Kit Area Geophysics
Coverage area".
An eighth site is represented by the "Unexpected Discovery" of a human burial, mentioned above.
This location, based on very limited evidence, is interpreted as a prehistoric burial. It is some distance to the
east of 44SK6, a historic period site, and may be associated with it, though it is more likely to represent a
separate prehistoric site.
Before an intrusive investigation, removal or other ground disturbance is conducted in the vicinity of
44SK6, 44SK399, or the burial site, the SHPO will be consulted to determine whether or not further
archaeological evaluation is required.
b. Archaeological sites discovered during the project
Any archaeological sites identified during the further conduct of the project will be evaluated in the
field by the project archaeologist. Any intrusive work at or near an archaeological site location will be
suspended until this evaluation is complete. The project archaeologist will prepare a recommendation based on
the nature of the site and the nature of any intrusive work that is needed to complete the project, and it will
immediately be submitted to the Virginia SHPO for consultation. Site testing will be recommended if
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absolutely necessary. Every effort will be made to avoid disrupting or delaying any investigations or removal
work.
Undertaking: Process
Cleanup Process
This section of the plan provides a general analysis of the site cleanup process and some general
procedures that will be followed as the site cleanup work continues. The process used to cleanup FNOD is not
unlike that followed in archaeological studies. It begins with the identification of possible unexploded
ordnance (UXO) or other hazardous and toxic items. This is followed by an investigation of the items to
determine if they are really a threat, a decision about the best course of action, a cleanup action, and a closeout
of the process. The formal stages involve documentation and verification and proceed as follows:
Preliminary Assessment/Site Inspection (PA/SI)
Remedial Investigation/Feasibility Study (RI/FS)
Record of Decision (ROD)
Remedial Design or Remove Action (RD/RA)
Close-out
After each of these stages (except closeout) a decision may be made that no further Department of
Defense action is required (NDAI). This could happen if no material requiring remediation or removal is
discovered, or if something is found that is not the responsibility of the Department of Defense to remediate.
Also, at any stage of the process a removal action can be taken if warranted by an immediate threat to
life or property.
The processes of assessment and inspection (PA/SI), remedial investigation (RI/FS), and remediation
or removal may all involve excavation to gather samples for testing, to evaluate anomalies identified by
remote sensing such as magnetometer, or to remove hazardous material including UXO. Since there are
several different locations at FNOD that have already been identified as candidates for possible remediation
there may be several evaluation and remediation actions running on parallel tracks, each of which may cause
an adverse effect to archaeological resources. This is particularly true since no comprehensive archaeological
inventory of the property has been conducted.
A removal action may follow one of two tracks. In the case of a removal action which is "non-time
critical" — that is where there is no imminent threat, and there is more than six months available for planning
— a document called an "Engineering Evaluation/Cost Analysis (EE/CA) may be prepared. This is an internal
document that may be used to analyze and justify the procedures to be used and the costs to be incurred. This
is not required, however, and in cases which are time critical, and actions must be initiated with less than six
months lead time it may be dispensed with.
In many cases evaluation reports and work plans are prepared, sometimes after actions have taken
place that might otherwise have required Section 106, National Historic Preservation Act (NHPA).
The general site cleanup procedures described here are ideals based on the Department of Defense
FUDS manual which is not regulatory, and individual sites may be subject to different sequences of
investigation, evaluation and removal. In addition, the FNOD has been designated as a National Priority List
site and may be subject to what is referred to as a "Superfiind Accelerated Cleanup Model" with fewer
opportunities for plan and testing review.
The process described here, in practical execution, generates numerous activities that could have an
adverse effect on archaeological resources, and the General Procedures for archaeological work, given at the
beginning of this plan have been designed to provide maximum flexibility in completing appropriate
archaeological evaluation in a timely way, in order to not retard the process of identifying and removing
materials that are hazardous to life and property.
Integrating Archaeological Protection and the Cleanup Process
The project archaeologist will work closely with the FNOD project management team, both for the
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Norfolk District, USACE, and the EPA Region III, to identify archaeological and assessment needs for all
activities involving ground disturbance, using the general archaeological procedures described in the
beginning of this AWP.
1. In any case where a site investigation or other testing or evaluation or removal will be carried out
that may involve ground disturbance, that is outside the scope of any existing work plan, this action will be
referred to the project archaeologist for evaluation.
a. If the location is within an area of high probability for the presence of archaeological resources,
sufficient lead time will be given for the project archaeologist to make a field inspection of the area after
vegetation has been cleared. If an UXO or other hazard exists, the project archaeologist will be accompanied
by an appropriate expert(s) to insure the safety of all parties. If an archaeological resource is identified or
suspected, a limited archaeological test excavation will be conducted, subject to the supervision and control of
an appropriate site safety expert. If this cannot be done within the standard safety protocols in place for the
overall conduct of the site cleanup, it will be deferred. If a significant archaeological resource is identified, the
project will immediately advise the Virginia SHPO of the location and nature of the resource and evaluation of
the potential effects of the ground disturbing procedure. If any alternatives to the procedure exist, they will be
provided. In the case of excavation for general site characterization, excavations will be shifted to avoid
affecting significant archaeological resources, if possible. The project archaeologist will confer with the
project manager to determine whether or not the procedure (including removal) is essential to the completion
of the cleanup mission, and if it is the project archaeologist will recommend procedures to minimize the
effects to the archaeological resource. If such procedures are not feasible, the project manager will advise the
SHPO that the action must be carried out, and provide minimal documentation of the decision.
In all areas of high probability, whether or not significant resources are identified in advance, the
project archaeologist will inspect all excavations before they are backfilled and document any resources that
have been revealed, if any.
b. In areas of low or medium probability will inspect excavations after they are complete and before
they are backfilled, on a sampling basis. Any resources revealed will be documented, and the probability map
adjusted, if necessary.
2. In the case of actions for which scopes of work, or work plans have been prepared, the project
archaeologist will review such documents and identify any actions needed to insure the protection of
archaeological resources, using the general procedures for archaeology and the specific procedures described
in item 1., immediately above.
3. In all cases the general procedures for archaeological work, given above will be followed,
particularly Item 3 (unexpected discoveries: archaeological resources), Item 7 (unexpected discovery:
unexploded ordnance), and item 8 (General Monitoring).
Undertakings: Completed
Work has been underway at FNOD that has not undergone Section 106 NHPA review. It is desirable
to do field evaluations of locations where extensive excavation has taken place to determine if any
archaeological resources were present. The project archaeologist will review project documentation to tabulate
a list of such locations. These will be visited on a time-available basis, without interrupting the procedures
given above which are necessary to complete the timely closeout of all sites at FNOD. Any new data
generated by the field review may be used to modify the archaeological probability map.
Undertaking: Locations
The Draft Final Site Management Plan (SMP) identifies several different categories of locations and
of actions to be taken at the FNOD. These include "Removal Actions", "NPL Source Areas" and "Areas of
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Concern". These are shown aerial photographs in the SMP.
Removal Action Areas (RAAs)
The SMP identifies five RAAs, as follows:
1. Removal Action Area 1: TCC Geophysical Anomaly Investigation
2. Removal Action Area 2: FNOD Main Burning Ground Area
3. Removal Action Area 3: James River Beachfront Area
4. Removal Action Area 4: Nansemond River Beachfront Area
5 Other Removal Actions
Removal Action Area 1 ¦ TCC Geophysical Anomaly Investigation
There are five areas of concern (AOCs) that have been identified related to the possibility of
unexploded ordnance. Additional investigations are planned for these areas. Some areas have already been
subject to limited investigations and remediation. These will be subject to a field impact evaluation by the
project archaeologist on a time available basis, without interrupting the schedule for dealing with the AOCs.
]. TNT Removal Area. Some investigation and removal has been completed in this area, but it has
been expanded to insure that all hazardous material has been or will be identified.
2. Athletic Field (South and North). Based on the terrain of this area, it was included in the
geophysical survey.
3.Renovation Plant area. This area was previously used to renovate shells.
4. Buildings L-l 1 and L-12. These magazine buildings were destroyed by fire in the 1920s by fire.
5. Building 410. This magazine building was destroyed by fire in 1937.
Removal Action Area 2: FNOD Main Burning Ground Area
The Ordnance and Explosives Final Engineering Evaluation/Cost Analysis (OE EE/CA) identified
trenches that may contain OE and OE-related items. These areas are in the main burning ground source area.
That area is also defined as an NPL source area.
Removal Action Area 3: James River Beachfront Area
The James River Beachfront is also designated Source Area 2 in the EPA's "Hazardous Ranking
System" documentation. A Removal is scheduled for June 2000.
Removal Action Area 4: Nansemond Rjver Beachfront Area
This area was identified by consensus between the Corps of Engineers, the EPA, and Virginia
Department of Environmental Quality as the highest priority Area of Concern (AOC) at FNOD.
"areas of concern" (AOCs) that will be subject to testing and remediation in the near future. This
AWP will address work planned at these AOCs in the order that investigations are planned. The AOCs include
the following:
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1. Source Area: TNT removal area, residual soil evaluation
2. Source Area: James River beach front, metallic debris field
3. Source Area: Impregnite test kit area
4. Source Area: Horseshoe Pond
5. Source Area: Main Burning Ground and Steamout Pond
6. Source Area: Track K dump
Each of these will be analyzed and informal Source Area Archaeological Work Plans prepared for
each in the order in which investigations will proceed. The general procedures for "Integrating Archaeological
Protection and the Cleanup Process," given above will be used to designate specific actions that will be carried
out to identify and protect any archaeological resources that may be present.
Additional Areas
It is possible that other areas may be identified in the course of investigations and remediation that
will require cleanup activity. Such areas will be treated according to this plan.
Reports
Prior to project closeout, the project archeologist will prepare archaeological reports on each of the
project sites, and an overall summary report on the archaeological work will be prepared. In the case of any
remediation site where no resources were identified, a brief description of what was done will be provided.
¦ Any needed funding for these reports will be secured in advance.
References
Benedict, Todd
1996 "Archeological Assessment of Sampling Grids, Ordnance and Explosives Engineering
Evaluation/Cost Analysis, Former Nansemond Ordnance Depot, City of Suffolk,
Virginia." Letter Report, Todd Benedict, archaeologist, John Milner Associates, to Mark
Shells, Project Manager, Foster-Wheeler Environmental Corporation.
Foster Wheeler Environmental Corporation
n.d. Ordnance and Explosives Engineering Evaluation/Cost Analysis at the Former Nansemond
Ordnance Depot, Suffolk County, Virginia.
McDonald, Bradley M., and David M. Givens
1996 Phase IA Historical and Archaeological Assessment of the 1,000-Acre Former
Nansemond Ordnance Depot, City of Suffolk, Virginia. James River Institute for
Archaeology, submitted to Foster Wheeler Environmental Corporation, 8 October 1996.
McSherry, Perry, and Nicholas Luccketti
1992 Phase I Archaeological Survey of Nansemond Waste Water Treatment Plant, Suffolk,
Virginia. James River Institute for Archaeology, Williamsburg, Virginia.
Ogle, Robert
1996 Letter, Robert Ogle, Chief of Planning Division, Norfolk District, to David Dutton,
Virginia Department of Historic Resources. 26 September 1996.
Outlaw, Alain C.
1990 Phase I Archaeological Survey at Pig Point, Suffolk, Virginia. Espey, Huston &
Associates, reported submitted to Dominion Resources, Richmond, Virginia.
U.S. Army Corps of Engineers, Norfolk District
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2000 Draft Final Site Management Plan, Former Nansemond Ordnance Depot. January 3,
2000, U.S. Army Corps of Engineers, Norfolk District, Norfolk, Virginia.
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EXAMPLE 7-D
EMERGENCY RESPONSE
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NRT
\W
National Response
Team (5101)
U.S. EPA -
Washington, DC
20460
Chair.
Environmental
Protection Agency
Vice-Chain
U.S. Coast Guard
Department of
Commerce
Department of
the Interior
Department of
Agriculture
Department of
Defense
Department of
State
Departmentof
Justice
De,
Ti
)epadmen
lep^men
entof
Hon
Depafmentof
Health and Human
Services
Federal Emergency
Management
Agency
Departmentof
Energy
Departmentof
Labor
Nuclear Regulatory
Commission
General Services
Administration
Departmentof
'he Treasury
Ms. Elaine Davies
Acting Deputy Director
Office of Emergency & Remedial Response
United States Environmental Protection Agency (5202G)
Washington, D.C. 20460
Re; Transmittal for Signature of Programmatic Agreement on Protection of
Historic Properties during Emergency Response
Dear Ms. Davies:
At its March meeting, the National Response Team (NRT), the organization of 16
Federal agencies responsible for oil discharge and hazardous material release response
planning and coordination at the national level (40 CFR Part. 300), recommended that
member agencies .sign the attached Programmatic Agreement (PA) addressing the
protection of historic properties during an emergency response. The Agreement reflects
two years of work by a National Response Team Committee chaired by the Justice
Department. The committee, included representatives from affected Federal agencies and
representatives from the appropriate State organization.
It is the judgment of the NRT that implementation of the PA will enable the Federal
On-Scene Coordinator (FOSC) to consider the effects of Federal emergency response
activities on historic properties without hindering the FOSC's primary mission of
protecting the public and the environment. Under the Advisory Council on Historic
Preservation's regulations, compliance with this PA constitutes compliance with Section
106 of the National Historic Preservation Act, thereby providing the FOSC with a
simplified and expedited process that should be defensible in a legal challenge. The
National Response Team therefore transmits the Programmatic Agreement to you with its
strong recommendation that you or the appropriate official sign it on behalf of your
Department or Agency.
Report Oil and
Chemical Spills
Toll-Free
'-80^424-8802
Please note that we have provided a separate signature page for each Department,
Agency, or organization to complete with the appropriate official's name and title. Please
send the signed page back to John Gustafson (EPA Headquarters, Waterside Mall, 401 M
Street, SW, MC 5104, Washington, DC 20460), so that we can assemble a complete
copy.
THE NATIONAL RESPONSE TEAM
JZX
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In addition to the Programmatic Agreement, we also have included background
information to assist in consideration of the Agreement. If you have questions, please
contact Steve Baer, NRT Justice Department Respresentative and Cultural Resources
Committee Chair, at 202-267-0528; Jan Thorman, NRT Department of the Interior
Alternate Representative and Cultural Resources Committee ViceChair, at 202-208-6304;
Enclosures:
Background Document
Programmatic Agreement
Qs & As
Fact Sheet
o
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NRT
National Response
Team (5101)
U.S. EPA
Washington, DC
20460
Background on the Formation of the NRT Ad Hoc Committee on
Cultural Resources and the Development of the Programmatic
Agreement
Chair:
Environmental
Protection Agency
Vice-Chain
U.S. Coast Guard
Department of
Commerce
Department of
the Interior
Departmentof
\griculture
Departmentof
Defense
Departmentof
State
Departmentof
Justice
Dep
Tre
itof
Ion
Section 106f of the National Historic Preservation Act (NHPA), 16 USC §
470f, requires federal agencies having direct or indirect jurisdiction over a proposed
federal or federally assisted "undertaking11 to take into account the effect of the
undertaking on historic properties included in or eligible for inclusion in the National
Register of Historic Properties. In response to an Action Proposal seeking NRT
guidance on the effect of Section 106 on federally led emergency response to discharges
of oil and hazardous substances under the National Oil and Hazardous Substances
Pollution Contingency Plan (NCP), the NRT formed the Ad Hoc Committee on Cultural
Resources in 1995. The Committee worked Tor two years to develop a Programmatic
Agreement (PA) which would clarify the role of the Federal On-Scene Coordinator
(FOSC) during emergency response and provide some measure of protection to the
FOSC in the event his or her actions are challenged. Along with the attached
information, this document provides background to the PA.
Drafting and Review Process of the PA
Depaiu.,entof
Health and Human
Services
All NRT-member Departments and Agencies were invited to participate on the
Ad Hoc Committee. The Committee that drafted the PA was chaired by the
Department of Justice and included representatives of the Environmental Protection
Agency, Department of Transportation (including the Coast Guard), Department of the
Interior (including the National Park Service), Department of Commerce (particularly
NOAA), Department of Agriculture and Department of Defense. In addition, two non-
NRT-member organizations were actively involved in the drafting and revision of the
PA: the Advisory Council on Historic Preservation (the Advisory Council), which is
primarily responsible for the administration of the NHPA, and the National Conference
of State Historic Preservation Officers (NCSHPO), which is the national organization of
State Historic Preservation Officers, who are appointed by the governor of each state
and territoiy. Each participating federal Agency or Department was asked to solicit
comments from its employees. EPA, for instance, distributed drafts of the PA to OSCs
in the Regions and solicited their comments twice in 1996. The PA was distributed in
an earlier form at the NRT/RRT Co-Chairs meeting in Alexandria, Virginia in 1996.
On October 30, 1996, a revised PA was formally transmitted to the NRT for comments
by its members. In December 1996, the Advisory Council published notice of the
Report O//a/idproposed PA in the Federal Register and solicited comments from interested parties and
ToN-Free Pu^c- Finally, the PA was presented again at the most recent NRT/RRT Co-Chairs
1-P' '24-8802aee:^nS i11 Denver this past winter. Changes- were made in the PA at each stage in this
process, most of them to reflect and further clarify the limited role of the FOSC in
considering potential effects on historic properties during emergency response, rather
than affirmatively requiring the FOSC to protect historic properties.
Federal Emergency
Management
Agency
Departmentof
Energy
Departmentof
labor
Nuclear Regulatory
Commission
Senerai Services
Administration
Departmentof
he Treasury
THE NATIONAL RESPONSE TEAM
¦ o^M^ori Paner
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Important Features of the Programmatic Agreement
Perhaps'the most important feature of the PA is inherent in its form. An
interagency agreement or memorandum of understanding sets out an agreement between
federal Departments or Agencies. Compliance with a Programmatic Agreement, as that
term is employed by the Advisory Council on Historic Preservation in its regulations, 36
CFR § 800.13, is deemed to satisfy an agency's legal requirements under Section 106.
Under the terms of the instant PA then, compliance by a federal Department or Agency
will constitute compliance with Section 106 of the NHPA.1
The PA does not commit its signatories to a position on the applicability of any
legal requirements under Section 106. Rather, the PA, at IV:A., provides only that
"[fjor the purpose of this PA, the federal OSC ... is responsible for ensuring that
historic properties are appropriately considered." [Emphasis supplied.] Both the NRT
and the Committee members have long-since agreed that, while it is not necessary to
determine whether an emergency response activity is, in fact, legally an undertaking
within the meaning of the NHPA, the FOSC, as the federal official designated to
coordinate and direct response actions, is the only federal official who can meaningfully
ensure that historic properties are appropriately considered during emergency response.
Any other determination might result in dividing the FOSC's authority at the site of a
spill or release. While the FOSC must ultimately consider the potential effects of
emergency response actions on historic properties, federal agencies, State officials, State
Historic Preservation Officers (SHPOs) and others are available to assist in the woric
necessary to make such consideration possible.
In sum, the instant PA has been drafted both to facilitate consideration of historic
properties during emergency response and to help protect the FOSC's actions from legal
challenges under NHPA. The Sections of the PA are described briefly below.
B. ief Overview of the Programmatic Agreement
The PA is divided into eight sections. The first three sections are introductory
and explanatory. Section I explains the purposes of the PA, but makes clear that the
priorities set out in the NCP, particularly protecting public health and safety, are the
overriding concerns of the. FOSC. Nothing in the PA changes the national response
1 It should be noted, however, that the language in this PA is much more favorable to federal Departments and
Agencies than other individual agency PAs which appear to give the Advisory Council and the NCSHPO unilateral
power to terminate.
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priorities set out in 40 CFR § 300.17; nor does the PA change existing law. Sections II
and m describe the NHPA and define "historic property."
An important change in the draft PA since it was first distributed to the NRT in
March 1996, is contained in I.A., which now indicates that both the Advisory Council
and the NCSHPO will be available to* assist federal OSCs in the event an individual
SHPO does not respond. Also, I.F. notes that "during such time as the Advisory
Council and the NCSHPO are signatories, compliance with this PA . . . will be deemed
. . . compliance with Section 106." [Emphasis supplied.]
Section IV explains the role of the FOSC in considering the effect of emergency
response activities on historic properties during planning and emergency response under
the NCP. Significantly, as explained above, IV. A. does not interpret the legal
requirements of Section 106; it merely specifies the responsibilities of the FOSC "[f]or
the purpose of this PA." Also, Section IV now contains new language describing the
assistance to the FOSC to be provided by the National Program Center (NPC) of the
National Park Service. The inclusion of the NPC language satisfies long-standing
concerns expressed by EPA members of the Committee as to the level of assistance
available to FOSCs.
Section V further elaborates how historic properties are to be considered during
pre-incident planning. Section VI spells out the specific actions to be taken to consider
the effect of emergency response actions on historic properties, including activating the
mechanisms and procedures developed during pre-incident planning. Section VI also
lists potential adverse effects of a spill or release and of emergency response actions on
historic properties. Section VII provides for development of regional PAs tailored to
address local concerns and conditions.
The last textual portion of the PA, Section VDI, describes the signature and
withdrawal process. It is important to note that while any signatory is free to withdraw
from the agreement with thirty days' written notice, no signatory can unilaterally
terminate the PA. In the event of a legal challenge, this will enable remaining
signatories to contend in good faith that they are in substantive compliance with any
applicable requirements of Section 106 of the NHPA. Of equal importance, it will
enable remaining signatories to continue to utilize the procedures set out in the PA in
order to consider the potential effect of emergency response on historic structures.
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PROGRAMMATIC AGREEMENT ON
PROTECTION OF HISTORIC PROPERTIES
DURING EMERGENCY RESPONSE UNDER THE
NATIONAL OIL AND HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
I. PURPOSE
A. The signatory federal Departments and Agencies enter into this Programmatic
Agreement (PA) to ensure that historic properties are taken into account in their
planning for and conduct of the emergency response under the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP). 40 CFR Part 300.
The National Conference of State Historic Preservation Officers (NCSHPO) is
also a signatory, on behalf of State Historic Preservation Officers (SHPOs), to
facilitate federal agency ability to deveiop and execute a uniform nationwide
approach for considering and treating historic properties before and during
emergency response. In the event an individual SHPO is unable to respond, the
Agency or Department may contact the NCSHPO or the Advisory Council on
Historic Preservation (ACHP) to consider alternatives and receive assistance!
The signatories agree that their Departments/Agencies will follow this PA or, to
meet regional needs, develop regional PAs that are not inconsistent with this PA
and the National Historic Preservation Act of 1966, as amended (NHPA), P.L.
89-665, 16 U.S.C. § 470 gi sfig., and the regulations promulgated thereto.
B. The NCP does not provide specififc guidance for taking historic properties into
account during emergency , response to an actual or threatened release of a
hazardous substance, pollutant or contaminant or the discharge of oil or other
pollutants (hereinafter, a release or spill). Also, emergency provisions
contained in the regulations implementing Section 106 of the NHPA do not
directly address requirements for such emergency responses. Accordingly, for
the purpose of this PA, an "emergency" shall be deemed to exist whenever
circumstances dictate that a response action to a release or spill must be taken so
expeditiously that normal consideration of the Section 106 process is not
reasonably practicable.
C. The purpose of this PA is to provide an alternative process to ensure
appropriate consideration of historic properties within the meaning of the
NHPA during emergency response to a release or spill. This PA does not
address the consultation procedures under Section 106 of the NHPA once that
phase of the response action has ended.
D. In carrying out duties under the NCP, including the priorities of protecting
public health and safety, the federal On-Scene Coordinator (OSC) may have to
make emergency response decisions that adversely affect historic properties. By
following this PA, however, the federal OSC will be making an informed
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decision that takes historic property information into account prior to
authorizing actions that might affect such property.
E. The responsibility of the federal OSC in protecting public health and safety is
paramount. That mission is a difficult one involving problems that cannot be
anticipated and calling for judgment on the part of the federal OSC. Nothing in
this PA changes the national response priorities, nor does it change the effect of
existing law.
F. 36 CFR § 800.13 provides, inter alia, that:
An Agency Official may elect to fulfill an agency's Section 106
responsibilities for a particular program , a large or complex
project, or a class of undertakings . . . through a Programmatic
Agreement.
36 CFR-§ 800.13(e) provides that:
An approved Programmatic Agreement satisfies the Agency's
Section 106 responsibilities for all individual undertakings carried
out in accordance with the agreement until it expires or is
terminated."
During.such time as the ACHP and the NCSHPO are signatories, compliance
with this PA by a federal OSC will be deemed to constitute compliance with
Section 106 of the NHPA during pre-incident planning and emergency response
activities.
II. LEGAL AUTHORITIES PROTECTING HISTORIC PROPERTIES
A. National Historic Preservation Act
1. In 1966, Congress instituted a policy to preserve the Nation's cultural
and historic heritage by enacting the NHPA. The NHPA implementing
regulations most pertinent to actual or threatened releases of hazardous
substances, pollutants or contaminants or oil spills are those of: 1) the
ACHP, an independent federal agency that administers Section 106 of
the NHPA through procedures specified in 36 CFR Part 800,
"Protection of Historic Properties," and 2) the Department of the
Interior (DOI) regulations at 36 CFR Part 60, National Register of
Historic Places.
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2. Section 106 of the NHPA provides that federal agencies are to take into
account the effects of "Federal or federally assisted undertakings" on
historic properties that are listed in or eligible for inclusion in the
National Register of Historic Places. It .further affords the ACHP an
opportunity to comment on the undertaking.1
B. This PA does not address other federal laws defining and protecting historic
properties, such as:
1. The Archaeological Resources Protection Act (ARPA), 16 U.S.C. §
470aa £i §e£., which provides for the protdction of archeological sites
and other resources. ARPA establishes criminal and civil penalties for
actual or attempted illegal excavation or removal of or damage to
archeological resources; illegal trafficking in archeological resources;
and knowingly causing another to commit an ARPA violation;
2. The Native American Graves Protection and Repatriation Act
(NAGPRA), 25 U.S.C. § 3001 ei seq., which provides for the protection
of Native American, human remains and other defined classes of cultural
items. NAGPRA also establishes criminal penalties for illegal
trafficking in these cultural items. 18 U.S.C. § 1170;
3. The Antiquities Act of 1906, 16 U.S.C. § 433 el §eg., which establishes
criminal penalties for non-permitted appropriation, excavation, injury, or
destruction of any historic or prehistoric ruin or monument, or any
object of antiquity, situated on lands owned or controlled by the federal
government; and
1 Section 106 of the NHPA provides, inter alia, a- follows:
Effect of Federal undertakings upon property listed in National Register; comments by
Advisory Council on Historic Preservation
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or
federally asbi?ted undertaking in any State and the head of any Federal department or
independent agency having authority to license any undertaking shall, prior to approval of the
expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as
the case may be, take into account the effect of the undertaking on any district, site, building,
structure, or object that is included in or eligible for inclusion in the National Register. The
head of any such Federal agency shall afford the Advisory Council on Historic Preservation
... a reasonable opportunity to comment with regard to such undertaking.
. U.S.C. § 470f.
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4. The National Marine Sanctuaries Act (also known as Title III of the
Marine Protection, Research and Sanctuaries Act, 16 U.S.C. § 1431, el
seq.. which establishes civil penalties for destruction of, loss.of, or
injury to a sanctuary resource, including historic properties. In addition
to fines, parties can also be held responsible for response costs; damages
including replacement cost, restoration cost, or acquisition of an
equivalent sanctuary resource, and lost-use value of that resource and
interest.
C. Many States also have laws defining and protecting historic properties.
Regional PAs may consider State laws relevant to the historic properties in the
region, to the extent they are not inconsistent with federal law.
III. DEFINITION OF "HISTORIC PROPERTY"
A. The term "historic property" is defined in the NHPA as: "any prehistoric or
historic district, site, building, structure, or object included in, or eligible for
inclusion on the National Register;" such term includes artifacts, records, and
remains which are related to such district, site, building, structure, or object. 16
U.S.C. § 470(w)(5).
B. Criteria for listing a property in the National Register of Historic Places are
found at 36 CFR Part 60. The statutory definition of historic properties and the
established criteria determine whether a historic property needs to be considered
during emergency response. A historic property need not be formally listed on
the National Register to receive.NHPA protection, it need only meet the
National Register criteria (Le., be eligible for listing in the National Register).
Section VI.C.2, below, discusses determining the National Register eligibility
of historic properties during emergency response.
IV. RESPONSIBILITY FOR HISTORIC PROPERTIES CONSIDERATION
A. For the purpose of this PA, the federal OSC, as the federal official designated
to coordinate and direct response actions, is responsible for ensuring that
historic properties are appropriately considered in planning and during
emergency response.
B. Planning Support/Coordination
1. The NCP, at 40 CFR § 300.210(c), provides that Area Contingency
Plans (ACPs) are to be developed under the direction of a federal OSC.
The federal OSC shall ensure that ACPs include the information on
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consideration of historic properties and are developed in consultation
with the parties specified in Section V of this agreement.
2. Federal agencies with expertise in protection of historic properties
available to assist the federal OSC during preparedness planning include
the Department of the Interior,2 the ACHP, and other federal land-
managing agencies for properties on their lands. The primary source of
information on historic properties in an area, particularly properties not
on federal lands, is the SHPO, who is the official appointed by the
Governor as part of the State's participation in NHPA programs. Other
parties that may assist are listed in V.A. of this PA.
3. The National Program Center (NPC) of the National Park Service,
consistent with its authority and responsibilities, will provide
coordination of appropriate expertise to Area Committees and Regional
Response Teams (RRTs) for pre-incident planning activities through the
United States Coast Guard (Coast Guard) and the United States
Environmental Protection Agency (EPA). The NPC will coordinate
through the Commandant of the Coast Guard and the Office
Emergency and Remedial Response of EPA.
4. Prior to finalizing or subsequently revising ACPs, the federal. OSC will
provide a draft of sections addressing historic properties identification
and protection to the parties identified in Section V.A. of this PA. Each
party shall have 30 calendar days from receipt to review the draft and
provide comments to the federal OSC. Should any reviewing party file a
timely objection to the draft or any portion thereof, the federal OSC will
consult with the objecting party to resolve the objection. If the objection
cannot be resolved, the federal OSC will provide documentation of the
dispute to the ACHP and request their comments. The ACHP comments
will be taken into account by the federal OSC in finalizing or revising
ACPs.
2 40 CFR § 300.175(b)(9) reads, in pertinent pan, as follows:
">01 may be contacted through Regional Environmental Officers (REOs), who are the designated
members of RRTs. . . . [B]ureaus and offices have relevant expertise as follows:
. . . (viii) National Park Service: .General biological, natural, and cultural
resource managers to evaluate, measure, monitor and contain threats to park
system lands and resources; archaeological and historical expertise in
protection, preservation, evaluation, impact mitigation, and restoration of
cultural resources .
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C. Emergency Response Support/Coordination
1. To ensure historic properties are considered during emergency response,
the federal OSC must have access to reliable and timely expertise and
support in order to make timely and informed decisions about historic
properties.
2. A federal OSC may obtain historic properties expertise and support in
any one of several ways. These include implementing an agreement
with State or federal agencies that have historic properties specialists on
staff (see IV.B.2), executing a contract with experts identified in ACPs
or hiring historic properties specialists on staff. Historic properties
specialists made available under contract or hired must:
a. Meet the qualifications listed in the Secretary of the Interior's
Standards and Guidelines for Archeology and Historic
Preservation. 48 Federal Register 44738-39 (September 29,
1983); see Appendix II; and
b. Be available to assist the federal OSC whenever needed.
V. PRE-INCIDENT PLANNING
A. As part of pre-incident planning activities, federal OSCs (or the OSC's
management) shall consult with the SHPO, federal land-managing agencies,
appropriate Indian tribes and appropriate Native Hawaiian organizations, as
defined in Section 301 of the NHPA, and the other interested parties identified
during pre-incident planning, as described in Section IV.B of this PA, to:
1. Identify historic properties.
a. Identify: I) historic properties that have been listed in or
determined eligible for inclusion in the National Register of
Historic Places that might be affected by response to a release or
spill; and 2) unsurveyed areas where there is a high potential for
the presence of historic properties.
b. Identify exclusions. These may be specific geographic areas or
types of areas where, should a release or spill occur, historic
properties are unlikely to be affected. This includes the specifics
listed in Appendix I and any additional exclusions agreed on by
the signatories to this or a regional PA. Incidents in areas
covered by exclusions would not require consideration for
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protection of historic properties, except as provided in Section
VI.A.l.3
2. Develop a list of parties that are to be notified in the event of an incident
in a non-excluded area. This list should include the SHPO for the State
in which the incident occurred, federal and Indian tribal land owners or
land managers and Hawaiian Native organizations in the area where the
incident occurred, if any.
3. Develop emergency response strategies that can be reasonably
anticipated to protect historic properties. The federal OSC shall ensure
that response strategies, including personnel and equipment needed, are
developed to protect or help protect historic properties at risk. This
includes consideration of the sensitivity of historic properties to
emergency response measures proposed in ACPs or other response
plans, including chemical countermeasures and in situ burning.
B. The federal OSC shall ensure that historic properties protection strategies can be
carried out by:
1. Identifying who will be responsible for providing expertise on historic
properties matters to the federal OSC during emergency response.
Depending on the size and complexity of the incident, a federal OSC
historic properties specialist or a historic properties technical advisory
group convened by the specialist may be the most effective mechanism;
2. Providing information on availability of appropriate training for historic
property specialists to participate in emergency response, e.g..
Hazardous Waste Operations and Emergency Response (HAZWOPER)
training, familiarity with all relevant contingency plans and response
management systems, etc.; and
3. Working with the parties listed in section V.A. to obtain information for
response personnel on laws protecting and activities that may potentially
affect historic properties.
3 Response to spills or releases that involve non-excluded areas should be considered to have the potential to
adversely affect historic properties that are listed in or eligible for inclusion in the National Register.
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VI. FEDERAL LEAD EMERGENCY RESPONSE
A. The federal OSC shall determine whether the exclusions described in section
V.A.l.b. apply.
1. If the incident affects only excluded areas, no further actions are
necessary under this PA, unless:
a. Previously unidentified historic properties are discovered during
emergency response; or
b. The SHPO (or appropriate federal, Indian, or Hawaiian Native
organizations) notifies the federal OSC that a categorically
excluded release or spill may have the potential to affect a
significant historic property.
2. If the area where a release or spill occurs has not been excluded, in the
cases specified in Section VI.A.l.a or b, if the federal OSC is unsure
whether an exclusion applies, or if the specifics of the incident chnge so
that it no longer fits into one of the exclusions, the remaining steps in
this Section shall be followed.
B. Activate the agreed-upon mechanism for addressing historic properties,
including notification of the parties identified pursuant to Section V.A.2., and
consultation with these parties concerning the identification of historic
properties that may be affected, assessing the potential effects of the emergency
response, and developing and implementing emergency response activities.
These requirements for notification and consultation shall be satisfied if the
federal OSC makes reasonable and timely efforts to notify and consult the
parties listed in this Section. Thereafter there shall be additional consultation to
the extent practicable.
C. Verify identification of historic properties.
1. Consult with the SHPO, landowners and/or land managers, appropriate
Indian tribes and Native Hawaiian organizations, and other interested
parties identified in pre-incident planning to verify the location of
historic properties identified during the planning process and determine
if other historic properties exist in areas identified in V.A.I.a.2. that
might be affected by the incident or the emergency response.
2. If newly discovered or unanticipated potential historic properties are
encountered during emergency response actions, the federal OSC shall
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either: 1) consult with the SHPO (or appropriate federal, Indian, or
Hawaiian Native organizations) to determine if the properties are eligible
for inclusion in the National Register, or 2) treat the properties as
eligible.
Assess potential effects of emergency response strategies on historic properties.
Such assessment shall be done in consultation with the parties listed in Section
V.A.
1. The potential adverse effects of releases or spills and of emergency
response on historic properties may include, but are not limited to:
a. Physical destruction, damage, or alteration of all or part of the
historic property;
b. Isolation of the property from or alteration of the character of the
property's setting when that character contributes to the
property's qualification for the National Register; and
c. Introduction of visual, audible, or atmospheric conditions that are
out of character with the property or alter its setting.
2. Emergency response actions that may have adverse effects on historic
properties include, but are not limited to:
a. The placement of physical barriers to deter the spread of released
or spilled substances and the excavation of trenches to stop the
spread of the released or spilled substances; and
b. Establishing camps for personnel, constructing materials storage
and staging yards, excavating borrow pits for fill materials, and
constructing alignments for road access.
3. Direct physical contact of historic properties with released or spilled
substances may result in one or more of the following: 1) inability to
radiocarbon date the contaminated resources; 2) acceleration of
deterioration of an object or structure; or 3) prevention of identification
of historic properties in the field. As a result, important scientific,
historic, and cultural information may be lost.
Make and implement decisions about appropriate actions. The federal OSC
shall take into account professional comments received from the parties listed in
Section V.A. in making decisions that might affect historic properties.
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1. Emergency response strategies delineated in plans may need to be
reviewed based on information available at the time of an actual
incident. The purpose of this review is to evaluate whether
implementation of the strategies in the plan might, for the emergency
response action that is underway, adversely affect historic properties
and, if so, how such effects might be avoided or reduced.
2. Make' arrangements for suspected artifact theft to be reported to the
SHPO, law enforcement officials, and the landowner/manager.
3. Arrange for disposition of records and collected materials.
4. Ensure the confidentiality of historic property site location information,
consistent with applicable laws, so as to minimize opportunities for
vandalism or theft.
F. Whenever the federal OSC determines the requirements of this Section cannot
be satisfied concurrently with the paramount requirement of protecting public
health and safety, the determination shall be documented in a writing including
the name and title of the person who made the determination; the date of
determination; and a brief description of the competing values between public
health and safety and carrying on the provisions of this Section.
Notwithstanding such a determination, if conditions subsequently permit, the
federal OSC shall endeavor to comply with the requirements of this Section to
the extent reasonably practicable.
VII. REGrONALPAs
A: Regional PAs may be developed as provided in I.A. as an alternative to this
national PA. Regional PAs are to include the provisions of this PA and may
include appropriate additional provisions responsive to regional concerns.
B. A regional PA" should be signed by appropriate regional-level federal officials,
State agencies, tribal officials and the ACHP.
C. Either this PA or a PA developed at a regional level may be adopted by the
RRT and incorporated or referenced in Regional Contingency Plans (RCPs), 36
CFR § 300.210(b), and ACPs in the region.
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VIII. AUTHORITY, EFFECTIVE DATE, WITHDRAWAL, AMENDMENT
A. The signatories below are authorized to sign the PA on behalf of their
respective Department, Agency or organization. This PA may be signed in
counterparts.
B. In order to allow sufficient time for pre-incident planning and other
preparedness activities, this PA shall not be become effective with respect to a
signatory Department or Agency until ninety (90) days after it has been signed
on the Department's or Agency's behalf.
C. Any signatory may withdraw from this PA by sending, through an official
authorized to act in this matter, written notice to all current signatories at least
thirty (30) days in advance of the effective date of withdrawal. The
requirements contained in this PA will remain in full force and effect with
respect to remaining signatories.
D. Nothing herein prevents the signatories from agreeing to amend this PA.
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UNITED STATES E.
BY: /JyUwts
fVIRONMENTAL PROTECTION AGENCY
Date: .^1-^3/9 7
Title: /?Q~a;£> V&Pu 7~y __
oFPice~ op e^>Ifrt-
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APPENDIX I
Categorical Exclusion List
RELEASES OR SPILLS CATEGORICALLY EXCLUDED FROM ADDITIONAL NATIONAL
HISTORIC PRESERVATION ACT SECTION 106 COMPLIANCE
Releases/Spills onto (which stay on):
¦ Gravel pads
¦ Roads (gravel or paved, not including the undeveloped right-of-way)
¦ Parking areas (graded or paved)
¦ Dock staging areas less than 50 years old
¦ Gravel causeways
¦ Artificial gravel islands
¦ Drilling mats, pads, and/or berms
¦ Airport runways (improved gravel strips and/or paved runways)
Releases/Spills into (that stay in):
¦ Lined pits; drilling mud pits and reserve pits
¦ Water bodies where the release/spill will not: I) reach land/submerged land; and 2) include
emergency response activities with land/submerged land-disturbing components
¦ Borrow pits
¦ Concrete containment areas
Releases/Spills of:
* Gases (e.g., chlorine gas)
IMPORTANT NOTE TO FEDERAL OSC: 1) IF YOU ARE NOT SURE WHETHER A RELEASE OR SPILL
FITS INTO ONE OF THE CATEGORIES LISTED ABOVE; 2) IF AT ANY TIME, THE SPECIFICS OF A
RELEASE OR SPILL CHANGE SO IT NO LONGER FITS INTO ONE OF THE CATEGORIES LISTED
ABOVE; 3) IF THE SPELL IS GREATER THAN 100,000 GALLONS; AND/OR 4) IF THE STATE HISTORIC
PRESERVATION OFFICER NOTIFIES YOU THAT A CATEGORICALLY EXCLUDED RELEASE OR
SPILL MAY HAVE THE POTENTIAL TO AFFECT A HISTORIC PROPERTY, YOU OR YOUR
REPRESENTATIVE MUST FOLLOW THE SECTION VI. OF THIS PA.
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APPENDIX II
SECRETARY OF THE INTERIOR'S STANDARDS
FOR ARCHEOLOGY AND HISTORIC PRESERVATION
48 Federal Register 44738-39 (September 29, 198?)
Professional Qualifications Standards
The following requirements are those used by the National Park Service and have been previously published
in the Code of Federal Regulations 36 CFR Part 61. The qualifications define minimum education and experience
required to preform identification, evaluation, registration, and treatment activities. In some cases, additional areas
or levels of expertise may be needed depending on the complexity of the task and the nature of the historic properties
involved. In the following definitions, a year of full-time professional experience need not consist of a continuous
year of full-time work but may be made up of discontinuous periods of full-time or part-time work adding up to the
equivalent of a year of full-time experience.
History
The minimum professional qualifications in history are a graduate degree in history or closely related field:
or a bachelor's degree in history or closely related field plus one of the following:
1. At least two years of full time experience in research, writing, leaching, interpretation, or the
demonstrate professional activity with an academic institution, historic organization or agency,
museum, or other professional institution; or
2. Substantial contribution through research and publication to the body of scholarly knowledge in the
field of history.
Archeology
The minimum professional qualifications in archeology are a graduate degree in archeology, anthropology,
or closely related field plus:
1. At least one year of full-time professional experience or equivalent specialized training in
archeological research, administration or management;
2. At least four months of supervised field and analytic experience in general North American
archeology; and
3. Demonstrated ability to carry research to completion.
In addition to these minimum qualifications, a professional in prehistoric archeology shall have at least one
year of full-time professional experience at a supervisory level in the study of archeological resources of the
prehistoric period. A professional in historic archeology shall have at least one year of full-time professional
experience at a supervisory level in the study of archeological resources of the historic period.
Architectural History
The minimum professional qualifications in architectural history are a graduate degree in architectural history,
~rt history, historic preservation, or closely related field, with courscwork in American architectural history; or a
:helor's degree in architectural history, art history, historic preservation or closely related field plus one of the
.ollowina:
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!. At least two year of full-time experience in research, writing, or teaching in American architectural
history or restoration architecture with an academic institution, historical organization or agency,
museum, or other professional institution; or
2. Substantial contribution through research and publication i he body of scholarly knowledge in the
field of American architectural history.
Architecture
The minimum professional qualifications in architecture are a professional degree in architecture plus at least
two years of full-time experience in architecture: or State license to practice architecture.
Historic Architecture
The minimum professional qualifications historic in architecture are a professional degree in architecture or
a State license to practice architecture, plus one of the following:
1. At least one year of graduate study in architectural preservation, American architectural history,
preservation planning, or closely related field; or
2. At least one year of full-time professional experience on historic preservation projects.
Such graduate srudy or experience shall include detailed investigations of historic structures, preparation of
historic structure research reports, and preparation of plans and specifications for preservation projects.
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SECTION 106/EMERGENCY RESPONSE PROGRAMMATIC AGREEMENT
QUESTIONS & ANSWERS
t. Does Section 106 of the National Historic Preservation Act apply to emergency
responses to spills of hazardous substances and oil?
Section 106 of the National Historic Preservation Act requires federal agencies to
consider the effect on historic properties before a federal or federally assisted undertaking. The
NRT Committee was charged with deciding if and how Section 106 should be followed, not
whether Section 106 is a legal requirement. Both the Committee members and the NRT
agreed that it is important to protect historic properties during emergency response and that the
OSC, as the.federal official most intimately involved in emergency response, should therefore
consider the impact of emergency response on historic properties.
2. Why a programmatic agreement? Since protecting the nation's cultural resources
is only common sense, why do we need a programmatic agreement?
Although almost everyone agrees that protecting historic properties is important,
understanding how to do so, is not that simple,-especially during emergency response to a
release or spill. The Advisory Council on Historic Preservation has promulgated extensive
regulations on Section 106. Professionals, both within and outside the federal government,
possess expertise on historic properties. The Programmatic Agreement provides a road map
for making an informed judgment on protecting historic properties during emergency response
to a release or spill.
3. If we follow the guidelines of the PA, can we still be sued?
Anyone can be sued for anything. The regulations promulgated by the Advisory
Council on Historic Preservation provide, however, that compliance with the PA will be
deemed to be compliance with Section 106. That means that the government and its
employees are much less likely to be sued and much more likely to prevail if they are sued.
4. Do Section 106 and the PA mean that emergency response cain be delayed or
stopped entirely?
No, they do not. The OSC's first priority is protection of public health and the
environment. Nothing in the PA changes that. Neither the PA nor Section 106, moreover,
are designed, to stop an emergency response. Rather they require that the potential effects of
undertakings on historic structures be considered.
5. Can I get help in complying with the PA?
Yes. The PA details a host of federal, state and private parties who will help the OSC.
These include professionals in the National Program Center of the National Park Service, State
Historic Preservation Officers (SHPOs) and historic property experts. (SHPOs are appointed
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by the Governor of each State as part of the States' participation in National Historic
Preservation Act programs. They are the primary source of information on historic properties
on non-federal lands.) The key to considering potential effects on historic structures is pre-
incident planning, so that expertise is available when the OSC acnjally requires assistance.
After ah environmental emergency arises funding will be available from the Superfund or the
Oil Spill Liability Trust Fund to pay for assistance to the OSC. All of this is detailed in the
PA.
6. What are the Advisory Council on Historic Preservation and the National
Conference of Historic Preservation Officers and what do I do to obtain their
assistance?
Both the Advisory Council on Historic Preservation and the National Conference of
State Historic Preservation Officers are signatories to the Programmatic Agreement. The
Advisory Council is the federal council responsible for administering the National Historic
Preservation Act. The National Conference of State Historic Preservation Officers is the
national organization of SHPOs which signed the Programmatic Agreement on behalf of
individual SHPOs. Both the Advisory Council and the National Conference will provide
general assistance to the O^C and well as help in the event the OSC is unable to enlist the
participation of the SHPO.
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NRT Ad Hoc Cultural Resource Committee April 1997
Programmatic Agreement on Historic Properties and Emergency Response
Summary of the Programmatic
Agreement
The Programmatic Agreement (PA) provides a
process for ensuring appropriate consideration
of historic properties during pre-incident
planning and emergency response. It also
provides for development of regional PAs
tailored to address regional concerns and
conditions. The PA does not change the
national response priorities of safety and
stabilization discussed in section 300.317 of the
National Hazardous Substances Pollution
Contingency Plan (NCP).
"^ckground
response to a request from members of the
Alaska Regional Response Team (ARRT), the
National Response Team (NRT) formed an ad
hoc committee on cultural resources to address
how Section 106 of the National Historic
Preservation Act (NHPA), 16 U.S.C. § 470f,
impinges on emergency response actions
under the NCP. Section 106f requires federal
agencies having direct or indirect jurisdiction
over a proposed federal or federally assisted
undertaking to take into account the effect of
the undertaking on historic properties included
in or eligible for inclusion in the National
Register of Historic Places. The NRT ad hoc
committee was chaired by the Department of
Justice and included representatives from the
Department of Agriculture, the US Coast
Guard, the Department of Commerce/NOAA,
the Department of Defense, the Environmental
Protection Agency, the Department of the
Interior, the Advisory Council on Historic
Preservation, and the National Conference of
°*ate Historic Preservation Officers. The PA on
ection of Historic Properties during
..ergency Response under the NCP is the
result of the committee's work.
Overview of the PA
The PA is divided into eight sections. The first
three sections are introductory and explanatory.
Section I explains the purpose of the PA.
Sections II and III describe the National Historic
Preservation Act and define "historic property."
Section IV explains the role of the On-Scene
Coordinator (OSC) in considering the effect of
emergency response activities on historic
properties during planning and emergency
response.under the NCP.
Section V further elaborates how historic
properties are to be considered during pre-
incident planning. Section VI spells out the
specific actions to be taken during emergency
response to consider the effect of response
actions on historic properties, including
activating the mechanisms and procedures
developed during pre-incident planning.
Section VI also lists potential adverse effects of
a spill or release and of emergency response
actions on historic properties. Section VII
provides for development of regional PAs
tailored to address regional concerns and
conditions. Finally, Section VIII describes the
signature and withdrawal process'.
Purpose
The PA provides an alternative to the process
specified in section 106 of the NHPA to ensure
appropriate consideration of historic properties
during emergency response to a release or
spill.
NRT Draft - DO NOT CITE OR QUOTE, FOR DISCUSSION PURPOSES ONLY -
3-7-97
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Important Features of the PA
0 Compliance with the terms of this PA will
constitute compliance with section 106 of
the NHPA. The PA does not commit
signatories to a position on the applicability
of any legal requirements under section
106.
0 The PA requires the potential effects of
response actions on historic properties to
be considered and emphasizes that
effective consideration occurs as part of
planning. It does not require the Federal
On-Scene Coordinator (FOSC) to take or
refrain from any specific response actions.
0 Although the FOSC must ultimately
consider the potential effects of emergency
response actions on historic properties,
federal agencies, State Historic
Preservation Officers, and others are
available to assist in the work necessary to
make such consideration possible. These
include:
1. State Historic Preservation Officers
(SHPO); Officials appointed by the
Governor as part of the State's
participation in NHPA programs. A list
of SHPO's will be posted and updated in
NOAA's FirstClass E-Mail System under
the NRT Conference - Cultural
Resource Committee Sub conference.
The list of SHPO's may also be obtained
through the Internet at:
http://www.cr.nps.gov/pad/shpolist.html.
2. Indian tribes and appropriate Native
Hawaiian organizations;
4. Federal land-managing agencies for
properties on their lands or who have
available technical expertise (i.e.
Department of Agriculture, Department
of Energy, and Department of Defense);
5. The Advisory Council on Historic
Preservation (ACHP); an independent
federal agency that administers Section
106 of the NHPA;
6. The Department of the Interior (DOI);
DOI. may be contacted through Regional
Environmental Officers (REOs), who are
the designated members of the RRTs.
0 The PA outlines actions to be taken during
pre-incident planning and response to.
ensure appropriate consideration of historic
properties. These are summarized in
checklist form in the attachment to this fact
sheet. The corresponding section in the PA
is given in bold at the end of each action
item for easy reference.
POC: Steven R. Baer, Senior Counsel
Environmental Enforcement Section,
Environment and Natural Resource
Division, United States Department of
Justice. Phone: (202) 514-2794.
Jan C. Thorman, Environmental
Protection Specialist, Office of
Environmental Policy & Compliance,
United States Department of Interior.
Phone: (202)208-6304.
Carol Gleichman, Historic Preservation
Specialist Advisory Council on Historic
Preservation, Western Office of Review,
Phone: (303) 969-5110.
3. The National Program Center (NPC) of
the National Park Service will provide
coordination of appropriate DOI
expertise to Area Committees and
RRTs for pre-incident planning
activities. The NPC will coordinate
through Coast Guard and EPA
headquarters at the national level;
Eric Hertfelder, Executive Director,
National Conference of State Historic
Preservation Officers (NCSHPO),
Phone: (202) 624-5465.
NRT Draft - DO NOT CITE OR QUOTE, FOR DISCUSSION PURPOSES ONLY -
3-7-97
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PREPARERS
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LIST OF PREPARERS
This manual was prepared for the U.S. Environmental Protection Agency by Maguire Group Inc.
The following people were instrumental in it's development:
David R. Westcott, A1CP: Maguire Group Inc.
Principal Planner
Mr Westcott has over 20 years of experience as an Environmental Planner and over 7 years
experience teaching at the graduate level. He is Principal Planner with the Maguire Group and an
Adjunct Professor at the University of Rhode Island. He has been a Project Manager for consulting
contracts with EPA Region I and Region II and has worked in Section 106 Compliance for over 10
years.
John Vetter: U.S. EPA
EPA National Expert, Archeology
Mr Vetter is EPA's national expert in archeology. He is based in Region 2 and has 20 years
experience in applying the National Historic Preservation Act to CERCLA, RCRA, and Construction
Grants programs. He is also chairman of the Anthropology Department at Adelphi University in
Garden City, NY.
Patricia Haman: U.S. EPA,
EPA Federal Preservation Officer
Ms. Haman has been EPA's FPO since January, 1997. She participated extensively in the
development of the recently revised 106 regulations. She also has expertise in NEPA and has been
with the EPA for 14 years.
Robert W Hargrove: U.S. EPA
Contract Manager
290 Broadway, Room 1539
New York, NY 1007-1866
(212) 637-3756
Robert Wardwell, AICP: Maguire Group Inc
Contract Manager
One Court Street
New Britain, CT 06051
(860) 224-9141
U.S. EPA Order # 08-0170 -NTLX
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