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OFFICE OF
LAND AND EMERGENCY
MANAGEMENT
formerly
OFFICE OF
JAN 1 7 2017 SOLID WASTE AND
EMERGENCY RESPONSE
OLEM 9200.2-177
MEMORANDUM
SUBJECT: Consideration of Tribal Treaty Rights and Traditional Ecological Knowledge in the
Superfund Remedial Program
FROM: James E. Woolford, Director
Office of Superfund Remediati&n and Technology Innovation
TO: Superfund National Policy Managers
Purpose
The purpose of this memorandum is to provide recommendations to the Superfund Remedial Program1
regarding the role of tribal treaty rights and traditional ecological knowledge (TEK).2 This
memorandum follows the February 2016 EPA Policy on Consultation and Coordination with Indian
Tribes: Guidance for Discussing Tribal Treaty Rights ("Treaty Rights Guidance") and the January 2017
Office of Land and Emergency Management (OLEM) Considering Traditional Ecological Knowledge
during the Cleanup Process ("OLEM TEK memorandum").
Background
The U.S. Environmental Protection Agency (EPA) has a strong history of working collaboratively with
federally recognized tribes in a government-to-government relationship. In addition, pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) section 126(a),
tribes "shall be afforded substantially the same treatment as a state" with regard to a number of specific
provisions in the statute, including those dealing with consultation on remedial actions, and roles and
responsibilities under the National Oil and Hazardous Substances Pollution Contingency Plan (NCP).
In 2011, EPA issued its policy on Consultation and Coordination with Indian Tribes ("Consultation
Policy"), which established national guidelines for EPA's consultation with federally recognized Indian
1 For purposes of this document, hereafter "Superfund Remedial Program" refers to the Superfund remedial and non-time
critical removal processes.
2 This document provides guidance to regional staff regarding how the Agency intends to interpret and implement the CJ1
National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which provides the blueprint for Comprehensive ^
Environmental Response, Compensation and Liability Act (CERCLA) implementation. However, this document neither o
substitutes for those provisions or regulations, nor is it a regulation itself. Thus it cannot impose legally binding requirements IO
on EPA, states, or the regulated community and may not apply to a particular situation based upon the circumstances. Any ^
decisions regarding a particular situation will be made based on the statute and the regulations, and EPA decision-makers
retain the discretion to adopt approaches on a case-by-case basis that differ from the guidance where appropriate. OO
Internet Address (URL) • http://www.epa.gov
Recycled/Recyclable • Printed with Vegetable Oil Based Inks on 100% Postconsumer, Process Chlorine Free Recycled Paper
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tribes across all Agency programs. It reflects the principles for interacting with tribes expressed in the
1984 EPA Policy for the Administration of Environmental Programs on Indian Reservations and
provides for EPA to consult with tribes on a government-to-government basis and consider their
interests "when EPA actions and decisions may affect tribes and tribal interests." The 2011 Consultation
Policy also fulfilled the Agency's responsibilities under Executive Order 13175, which requires federal
agencies to have an accountable process to ensure meaningful and timely input by tribal officials in the
development of regulatory policies that have tribal implications.
In July 2014, the Agency issued EPA Policy on Environmental Justice for Working with Federally
Recognized Tribes and Indigenous Peoples for all Agency programs. Principle 6 of this policy states:
The EPA encourages, as appropriate and to the extent practicable and permitted by law, the
integration of Traditional Ecological Knowledge into the Agency's environmental science,
policy, and decision-making processes, to understand and address environmental justice concerns
and facilitate program implementation.
As a continuation of its commitment to engage meaningfully with federally recognized tribal
governments, EPA built upon its 2011 Consultation Policy by issuing the Treaty Rights Guidance in
February 2016. The Treaty Rights Guidance follows the statement issued by Administrator McCarthy in
December 2014 that recognizes EPA's commitment to its partnership with federally recognized Indian
tribes and to tribal self-government in implementing environmental protection programs.3 The
Administrator's December 2014 memorandum states that under the U.S. Constitution, treaties have the
same legal force as federal statutes." The 2014 memorandum further states that
(w)hile treaties do not expand the EPA's authority, the EPA must ensure its actions do not
conflict with tribal treaty rights. In addition, EPA programs should be implemented to enhance
protection of tribal treaty rights and treaty-covered resources when we have the discretion to do
so.
The Treaty Rights Guidance outlines affirmative steps for EPA tribal consultations to help ensure EPA
proposed actions and initiatives are consistent with treaties and treaty-protected resources "both inside
and outside of the boundaries of reservations."4 EPA intends for the Treaty Rights Guidance to provide
assistance on consultation with respect to EPA decisions focused on specific geographic areas where
tribal treaty rights relating to natural resources may exist in, or treaty-protected resources may rely upon,
those areas. In these instances, during consultation with tribes, EPA will seek information and
recommendations on tribal treaty rights in accordance with the Treaty Rights Guidance:
EPA will subsequently consider all relevant information obtained to help ensure that EPA's
actions do not conflict with treaty rights, and to help ensure that EPA is fully informed when it
seeks to implement its programs and to further protect treaty rights and resources when it has
discretion to do so.
3 See Memorandum from Administrator McCarthy to EPA employees, entitled "Commemorating the 30th
Anniversary of the EPA's Indian Policy" (December 1, 2014), available at
https://www.epa.gov/sites/productioii/files/2015-05/docuinents/indianpolicvtreatyrightsmemo2014.pdf".
4 See EPA Policy on Consultation and Coordination with Indian Tribes: Guidance for Discussing Tribal Treaty
Rights (February 2016) available at: https://www.epa.gov/sites/production/files/2016-
02/documents/tribal treaty rights guidance for discussing tribal treaty rights.pdf.
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EPA leadership has also heard many tribal leaders' request to enhance the use of TEK in the Agency's
day-to-day actions of protecting human health and the environment in Indian country. In response to
these comments, and consistent with the guidances and policies discussed above, OLEM issued the
OLEM TEK memorandum in January 2017 to provide further guidance on use of TEK during the
cleanup process. While there is no statutory or regulatory definition for TEK, for purposes of the OLEM
TEK memorandum and this guidance, the working definition provided by the U.S. Fish and Wildlife
Service5 is appropriate:
Traditional Ecological Knowledge, also called by other names including Indigenous Knowledge
or Native Science, (hereafter, TEK) refers to the evolving knowledge acquired by indigenous and
local peoples over hundreds or thousands of years through direct contact with the environment.
This knowledge is specific to a location and includes the relationships between plants, animals,
natural phenomena, landscapes and timing of events that are used for lifeways, including but not
limited to hunting, fishing, trapping, agriculture, and forestry. TEK is an accumulating body of
knowledge, practice, and belief, evolving by adaptive processes and handed down through
generations by cultural transmission, about the relationship of living beings (human and non-
human) with one another and with the environment. It encompasses the world view of
indigenous people which includes ecology, spirituality, human and animal relationships, and
more.
While tribal treaties may not address TEK, it may be appropriate for consideration at Superfund sites.
However, it should be noted that TEK will not be the sole basis for decisions and should be considered
in the context of other factors (e.g., the NCP's nine criteria for evaluating alternatives). This
memorandum provides recommendations for considering TEK in the Superfund Remedial Program.
Implementation
Tribal Treaty Rights
EPA intends for this memorandum to provide recommendations for the regional Superfund Remedial
Program to consider when evaluating tribal treaty rights and treaty-protected resources in program
implementation. During the site assessment and National Priorities List (NPL) rulemaking process
(ideally, early in that process), regions generally should evaluate whether any area under consideration
may be subject to tribal treaty rights or affect treaty-protected resources. It is important to note that some
"tribes may possess treaty rights both inside and outside the boundaries of reservations."3 In some cases,
other programs within a region (e.g., water programs) or the Office of Regional Counsel may have
already evaluated whether the area in question is subject to treaty rights. Therefore, regional Superfund
Remedial Programs are strongly encouraged to reach out to other organizations within EPA to help
ensure a consistent approach.
The Agency's Treaty Rights Guidance identifies three questions to raise "during consultations when
proposing an action that may affect tribal treaty rights within a specific geographic area." The three
questions are:
1. Do treaties exist within a specific geographic area?
5 Rinkevich, S., Greenwood, K., and Leonetti, C. U.S. Fish and Wildlife Service, Native American Program. (2011).
Traditional ecological knowledge for application by service scientists fact sheet.
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2. What treaty rights exist in, or what treaty-protected resources rely upon, the specific geographic
area?
3. How are treaty rights potentially affected by the proposed action?
Depending on site-specific circumstances, these discussions may touch on issues of unique tribal
sensitivity, such as cultural practices, environmental resource use and cultural resource locations.
Therefore, EPA staff and managers should be mindful of these sensitivities when undertaking these
discussions.
The applicability of treaty rights to EPA actions is a complex inquiry that depends on the context and
circumstances of each case. Moreover, when an EPA action may affect treaty rights, EPA's next step
typically involves conducting legal and policy analyses to determine how to protect the rights. As the
Treaty Rights Guidance notes, "[tjhese analyses often are complex" and may involve coordination with
other federal agencies. Therefore, Superfund Remedial Program staff and managers should consider
tribal interests and tribal treaty right implications as early as possible. Treaty rights analyses also depend
upon the context and circumstances relative to a particular Superfund site and/or decision. Regions
should recognize that a site-specific treaty right analysis may involve multiple tribes and can be
potentially precedent-setting. In addition, such an analysis may require coordination with other federal
agencies with relevant expertise, such as the U.S. Department of the Interior and the U.S. Department of
Justice, as well as, natural resource trustees and partners working on natural resource damages.
Similarly, the Superfund Remedial Program should recognize that there are other EPA Headquarters
programs, including, but not limited to, the Office of Superfund Remediation and Technology
Innovation (OSRTI), the Office of International and Tribal Affairs, and/or the Office of General
Counsel, as well as the relevant regional tribal programs and Office of Regional Counsel that can
provide valuable resources as necessary. In certain cases (e.g., overlapping treaty rights or tribal lands
that span multiple EPA regions), it may be appropriate for regional Superfund Remedial Program offices
to consult with other tribes and regions.
Section 300.430(d)(2) of the NCP indicates that, as part of the lead agency's efforts to characterize a site
or to develop potential remedial options, it should assess a number of factors, including (v) "actual and
potential exposure pathways through environmental media;" and (vii) "[o]ther factors, such as sensitive
populations, that pertain to the characterization of the site or support the analysis of potential remedial
action alternatives." Depending on the site-specific circumstances, as part of that analysis, regional
Superfund Remedial Program offices should consider the human health and environmental risks to tribal
members, treaty-protected resources and lifeways. In instances where the Agency determines that a
Superfund remedial decision potentially affects tribal treaty rights or treaty-protected resources, EPA
should identify the nature and extent of potential risks to tribal members exercising those rights. For
example, as part of the baseline risk assessment, the tribal lifestyle may result in different risks, such as
higher fish consumption rates due to subsistence fishing. Similarly, a portion of a site may be a
sacred/ceremonial area or an area of cultural sensitivity that warrants consideration in remedy
selection/implementation.
Traditional Ecological Knowledge
The 2017 OLEM TEK memorandum "provides direction to improve the decision-making process as it
relates to site assessment, characterization, and cleanup activities." The memorandum offers the
following suggested questions as a "starting point for EPA staff to ask when a tribe chooses to discuss
TEK with the Agency:
1) What TEK, if any, does a tribe want to share?
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2) Should we be aware of any tribal laws or policies established regarding the use of TEK?
3) How will the tribal government or their duly designated representative(s) transmit the
information?
4) Have you informed the tribes that there are limitations on the Agency's ability to protect TEK
from public disclosure which is a potential risk of sharing TEK with the Agency?
5) What implications can TEK have on the decision?
Consistent with the OLEM TEK memorandum, it is the Superfund Remedial Program's "intention to
acknowledge and consider TEK during our cleanup process when the information is freely provided" by
tribe(s). If the tribe decides not to share TEK, this decision may affect a region's ability to gather,
understand and use this information to help inform decisions. In the 2014 EPA Policy on Environmental
Justice for Working with Federally Recognized Tribes and Indigenous Peoples, Principle 7 states:
The EPA considers confidentiality concerns regarding information on sacred sites, cultural
resources, and other traditional knowledge as permitted by law. The EPA acknowledges that
unique situations and relationships may exist in regard to sacred sites and cultural resources
information for federally recognized tribes and indigenous peoples.
TEK may be related to or independent of tribal treaty rights. While some information may be obtained
through literature reviews or through conversations with other federal agencies, it is recommended that
Superfund Remedial Program staff confer directly with tribal representatives to learn whether a tribe
wishes to share TEK with EPA. During the course of these conversations, it is important for Superfund
Remedial Program personnel to understand the limits of EPA's ability to protect information from
public disclosure especially in light of the Freedom of Information Act, and to refrain from making any
assurances that EPA can keep confidential TEK that is provided by a tribe. In some instances, a tribe
may want to protect information regarding tribal lifeways, subsistence practices and other sensitive
resources from public disclosure due to its significance to their way of life and concerns about losing
ownership of the information. Whether a particular tribe wishes to share TEK depends on a number of
factors related to the specific situation but generally EPA personnel should be prepared for cases where
direct knowledge is limited to certain individual tribal members, elders or representatives, who may not
want to share such knowledge. EPA must respect a tribe's decision to withhold or only partially share
specific information; however, if a tribe declines to provide information for whatever reason, the
Superfund Remedial Program will not be able to consider the information in its decision-making
process.
There are numerous aspects of the Superfund Remedial Program where consideration of TEK may be
appropriate. For example, TEK may be relevant to aspects of site listing, development of the remedial
investigation/feasibility study (RI/FS) and site decision-making. As part of the site listing process, the
Superfund Remedial Program seeks to obtain information from tribes to assess releases of hazardous
substances to support NPL decision-making activities. In particular, the Hazard Ranking System (HRS)
Guidance Amendments (OSWER 9200.0-66) focus information gathering on Native American: resource
usage, workers, and seasonal populations, as well as attractiveness and accessibility of recreational use
areas. However, that guidance is limited to providing direction to EPA personnel regarding ways to
consider tribal traditional lifeways when scoring sites under the HRS.
During the RI/FS and cleanup decision processes, TEK may be relevant to the formulation of sampling
and analysis plans, conceptual site models, human and ecological risk assessments, remedial action
objectives, remedial alternatives, and other analyses. For example, higher fish consumption rates due to
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subsistence practices could inform the human health risk assessment and how the Agency assesses
remedy protectiveness. Similarly, TEK may help inform the alternatives analysis when a site area is
sacred (e.g., if a portion of the site is a place where ceremonies take place or an area where sacred plants
grow, this cultural significance may affect the ability to implement various alternative cleanup
approaches). In developing remedial action alternatives and carrying out the NCP's nine criteria analysis
(see 40 CFR 300.430(3)(9)(iii)) during the feasibility study and formulating the proposed plan, regions
may consider TEK. For example, TEK may help inform the alternative analysis when a site is on land
that is sacred to a tribe or important to tribal lifeways.
Closing
There are numerous points in the Superfund Remedial Program where tribal treaty rights and TEK may
be appropriate for consideration. Regions should exercise their best professional judgment early and
throughout the Superfund cleanup process in concert with EPA's consultation policy and the federal
government's general trust responsibility to federally recognized tribes. EPA is committed to ensure that
its actions do not conflict with tribal treaty rights and to "further protect tribal treaty rights and resources
when it has the discretion to do so."3 Similarly, as discussed in the OLEM TEK memorandum, "the
Agency makes decisions based on multiple factors and considerations" and it should be recognized that
"TEK will not be the sole determining factor" in EPA decision-making. To the extent that tribal treaty
rights and TEK help inform Superfund Remedial Program implementation, their roles should be
explained and documented, as appropriate, in site decision documents and administrative records.
Regions are strongly encouraged to share their tribal treaty right- and TEK-informed decisions with
OSRTI's Assessment and Remediation Division so that OSRTI can track such decisions nationally and
share information across the regional Superfund Remedial Program offices. As the Superfund Remedial
Program gains experience on tribal treaty rights and TEK, and builds upon growing knowledge, this
approach may be modified to reflect the program's experiences.
If a region has a question regarding this guidance, please contact the Director of the Assessment and
Remediation Division in OSRTI, Dana Stalcup (703-603-8702 or stalcup.dana@epa.gov).
Alternatively, staff may contact Christine Poore (703-603-9022 or poore.christine@epa.gov) or
Anne Dailey (703-347-0373 or dailey.anne@epa.gov).
Cc: Mathy Stanislaus, OLEM
Barry Breen, OLEM
Cyndy Mackey, OECA/OSRE
Dana Stalcup, OSRTI
Charlotte Bertrand, FFRRO
Reggie Cheatham, OEM
John Michaud, OGC
Andrew Baca, OITA
Jennifer Hovis, OSRTI
Douglas Ammon, OSRTI
Jessica Snyder, OLEM
Anne Dailey, OSRTI
Christine Poore, OSRTI
Regional Superfund Remedial Branch Chiefs
Superfund Regional Tribal Coordinators
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