Cultural Resources
Management for
USE PA Personnel
Eastern Surplus Superfund Site and archaeological discovery
Meddybemps, Maine
Ail instruction manual for 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
July 2013
United States
Environmental Protection
m m Agency
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COMPLIANCE WITH SECTION 106 OF THE NHPA:
WORKING WITH THE REGULATIONS
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 Know if Resources are Affected by Your Proj ect 7
a. Who decides? 8
b. What criteria are used? 8
c. The Section 106 Process Flow Chart (ACHP) 10
4. Making the 106 Process Work for You: Four Steps to Success 11
a. Initiate the Process 12
b. Identify Historic Properties (Stage IA, IB, II) 13
c. Determine Effect 16
d. Resolve Adverse Effects 18
5. Agreement Documents 19
a.. What are Agreement Documents? 20
b. How is the Decision to Prepare a Document Made? 20
c. Who Prepares the Agreement Document? 22
d. Who signs the Agreement Document 22
e. Why do we need Agreement Documents? 23
f. Can Agreement Documents be Revised? 24
g. What if the terms aren't carried out? 24
6. Working with Consulting Parties 25
a. the Advisory Council on Historic Preservation 26
b. the Historic Preservation Officer (SHPO/THPO) 26
c. the Tribes 27
d. the Public 28
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COMPLIANCE WITH SECTION 106 OF THE NHPA
WORKING WITH THE REGULATIONS
TABLE OF CONTENTS
(continued)
7. Guidelines on Data Recovery
a. Advisory Council Guidance 29
b. Twelve Keys to Successful Data Recovery 30
c. Conservation and the Fate of Recovered Resources 30
7. Guidelines on Data Recovery
a. Advisory Council Guidance 29
b. Twelve Keys to Successful Data Recovery 30
c. Conservation and the Fate of Recovered Resources 30
8. Integrating Section 106 and NEPA
a. Advisory Council Guidance on NHPA/NEPA Integration 31
VIRTUAL RESOURCES
• Listing of SHPOs by State: http://www.ncshpo.org
• Listing of THPOs by State: http://www.nps.gov/history/thpo/
• Regulations 36 CFR Part 800: http://www.achp.gov/regs-rev04.pdf
• Professional Qualification Standards: http://www.nps.gov/history/local-
law/ arch_stnds_9. htm
• NHPA and NEPA Integration Guidance:
http://www.achp.gov/docs/NEPA_NHPA_Section_l 06_Handbook_Mar2013 .pdf
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UNIT ONE
WHY SHOULD YOU CARE?
IT'S THE LAW
RULES & REGS REQUIRE IT
rT—
I ' — Hl'jllM I
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 431-433) 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 regulations 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)
This 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?
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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)
Archeological and Historic Preservation Act of 1974 (16 USC 469-469c)
Archaeological Resources Protection Act of 1979, as amended (16 USC 470aa-mm)
Bald Eagle Protection Act of 1940 (16 USC 668-668d)
The Copyright Act of 1976 (17 USC 101 et seq. [1988 & Supp. V 1993])
Disposal of Records (44 USC 3301 et seq.)
Endangered Species Act of 1973, as amended (16 USC 1531-1543)
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 et seq.)
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)
Lacey 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 1-4, 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)
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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 Federally-Owned and Administered Archeological 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 Archeological 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 11593 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)
Executive Memorandum on Tribal Consultation (2009)
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UNIT TWO
WHAT ARE CULTURAL RESOURCES?
DISTRICTS
SITES
BUILDINGS
STRUCTURES
AND OBJECTS
ON OR 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: 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: 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: structures built principally to accommodate 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.)
Other Structures: 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/viewsheds, waterways etc.) are also
cultural properties which may be subject to protection.
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UNIT THREE IS EPA s ACTIONS AFFECTING RESOURCES?
WHO DECIDES WHAT IS AND ISN'T A CULTURAL
"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
The Public
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
EPA's ACTIONS: AFFECTS TO CULTURAL RESOURCES
Who decides what is and isn't a resource? The Key Players
• EPA Responsible Official (Usually the Division ead 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.
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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)
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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
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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. The 106 process should be coordinated with other reviews (e.g. NEPA)
The ACHP's regulations define "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; and those requiring a Federal
permit, license or approval." (36 CFR 800.16(y))
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 IA 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(a)(l):
"(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(a)(2)). 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 are 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 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. "
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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.
B.
It is
soon
the
Invite
C.
minimize
important that the Council be notified of every finding of adverse effect as
as the finding is complete. The MOA should NOT be the first notice that
Council receives of an undertaking with adverse effects.
the Council to participate if:
a National Historic Landmark is adversely affected,
a Programmatic Agreement is proposed, or
The agency wants Council involvement.
Consider alternatives to avoid effects and alternatives to mitigate or
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; or
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; or
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"
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UNIT FIVE
AGREEMENT DOCUMENTS
A. WHAT ARE AGREEMENT DOCUMENTS?
NAE s/ MOAs / PAs
B. HOW IS THE DECISION TO PREPARE A
DOCUMENT REACHED?
C. WHO PREPARES THE DOCUMENT?
WHEREAS
NOW
THEREFORE
D. WHO SIGNS THE DOCUMENT?
E. WHY DO WE NEED AGR
DOCUMENTS?
F. CAN THEY BE
REVISED?
G. WHAT IF THE TERMS AREN'T CARRIED OUT?
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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(b). 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.
Memoranda of Agreement (MOA) are executed under 36 CFR §800.6(c). 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) are executed under 36 CFR §800.14(b). 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 §800.5(a)] to historic
properties within an undertaking's ts, in consultation with the SHPO. 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 are questions to be resolved about the nature of the 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
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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 a 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, a 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 §800.14(b) 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 §§800.3 through 800.6 with
respect to actions under the program the PA covers.
22
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C. Who prepares the agreement document?
NAE determinations. Under 36 CFR §800.5(b), 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, include specific conditions recommended by
another party (e.g., a SHPO).
MOAs. The regulations at 36 CFR §800.6(b)(1) permit agencies and SHPOs to resolve
adverse effects without Council participation, provided the responsible agency notifies
the Council when it determines a finding of adverse effect for a project. 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
(36 CFR §800.6(b)(2)). 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 §800.14(b)] Certain
kinds of frequently used PAs, such as those 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?
Three-party MOAs are created as the result of consultation under 36 CFR §800.6(b)(2), in which
the Council elects to participate in consultation, or is invited to consult by the agency or SHPO.
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In some cases, two-party MOAs (36 CFR §800.6(b)(1)) 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 SHPO 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 MO A. 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 §800.6(b)(l)(v)]
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?
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
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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 §800.6(c)(7). 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 are 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)(1)). 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
proves unproductive, the agency is required to seek Council comment (36 CFR
§800.6(c)(8)).
PAs. Failure 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 §800.14(b)(2)(v)).
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UNIT SIX
WORKING WITH CONSULTING PARTIES
C. NATIVE AMERICAN TRIBES AND
NATIVE HAWAIAN ORGANIZATIONS
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.
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
project.
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• 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.
The Native American Graves Protection and Repatriation Act of 1990 (25 USC 3001-3013) may
apply to resources in the project area.
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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.
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UNIT 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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UNIT EIGHT
INTEGRATING SECTION 106 AND NEPA
UNIT 8 INTEGRATING SECTION 106 AND NEPA 36 CFR § 800 8(a)
It is important to recognize the distinction between coordinating reviews and substituting the NEPA
analysis and documentation (NEPA review) for Section 106 procedures. Coordination means maintaining
the standard steps in the Section 106 review process but aligning them with the development of the NEPA
review. Substitution means fulfilling the purposes of Section 106 review in the context of a NEPA review,
without employing the standard Section 106 steps. Coordination of NEPA reviews and Section 106
compliance processes under 36 CFR § 800.8(a) typically allows the responsible federal agency's
environmental review processes to be comprehensive and less duplicative, and should be done for all
undertakings to the greatest extent possible. Substitution of NEPA for Section 106 compliance is an
optional tool that may be appropriate in certain circumstances but not necessarily all. In that respect,
substitution is similar to the use of a Section 106 program alternative.1
The ACHP and CEQ are in the process of finalizing guidance that illustrates the benefits of coordinating
or substituting Section 106 and NEPA procedures, for example, integrating the two processes:
• Facilitates a broad discussion of effects to the human environment and integrates the
consideration of historic properties with other environmental factors.
• Provides a more holistic view of the proposed federal undertaking and its effects, and
ensures that historic preservation concerns are not treated as an afterthought.
• Reduces the probability that cultural resources that do not meet the criteria for listing
on the National Register of Historic Places are given insufficient consideration.
• Offers the public opportunities to provide more focused and timely input.
• Enables agencies to develop timelines and milestones that eliminate duplication.
• Promotes transparency and accountability in federal decision-making.
The guidance, in the form of a handbook, provides NEPA and Section 106 practitioners, project managers
and proponents, environmental planners, and contractors with key concepts and strategies for integrating
these two analyses. Many federal agencies have their own implementing regulations or administrative
protocols for implementing NEPA or approved program alternatives for Section 106 compliance. These
recommendations serve as a foundation from which federal agencies may develop or revise their own
procedures or protocols to best suit their agencies' missions, their agencies' frameworks for implementing
their programs, and their agencies' approaches to specific undertakings to satisfy the requirements of both
NHPA and NEPA.
NEPA and Section 106 both require federal agencies to consider environmental impacts before making
project and program decisions. NEPA has a broader scope, including the entire environment, of which
cultural resources are one integral element. Section 106 and its implementing regulations, 36 CFR Part
800, focus on a specific subset of cultural resources: those properties that are listed on or meet the
eligibility criteria for the National Register. Thus, coordinating the Section 106 and NEPA processes
works best when agency actors begin Section 106 simultaneously with the NEPA process. Where NEPA
and Section 106 are not aligned the findings in each process will not fully inform the other, and it is
1 See 36 CFR § 800.14 (providing several methods for federal agencies to meet their Section 106 obligations through
the development and implementation of program alternatives such as alternative procedures, programmatic
agreements, exempted categories, standard treatments, and program comments).
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possible that key relevant information will be revealed late in decision-making, or the processes might
become overly complicated.
Several misconceptions may create impediments to effective coordination of Section 106 and NEPA. For
instance, the Section 106 process is not a form of mitigation to be referenced in a NEPA document. While
substantive mitigation measures may result from the Section 106 review, Section 106 review is a
procedural requirement. Further, limiting the cultural resources section of a NEPA document to
considering only Section 106 and historic properties may not be sufficient to address the full range of
cultural resources that NEPA requires. Historic properties and cultural resources are not synonymous
terms, and often refer to different resources. Finally, compliance with Section 106 does not necessarily
fulfill the requirements of the Native American Graves Protection and Repatriation Act, the
Archaeological Resources Protection Act, or the many other federal and states laws, regulations, and
policies that require consideration of historic properties and cultural resources.
The entire 50-page guidance, jointly issued by ACHP and CEQ is available at:
http://www.achp.gov/docs/NEPA_NHPA_Section_l 06_Handbook_Mar2013 .pdf
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SUPPLEMENTAL
ATTACHMENTS
for
NHPA TRAINING
-------
NEW ENGLAND TRIBAL CONTACTS
(Revision: 10/10/2013)
TRIBE
CONTACTS
HOULTON BAND OF MALISEET INDIANS
88 Bell Road
Littleton, ME 04730
PHONE: 207/532-4273, 1/800/545-8524
FAX: 207/532-6883
Brenda Commander, Chief; Brian Reynolds, Administrator (no Vice Chief)
Environmental Contacts:
Susan Young. Natural Resources Director, ogsl@maliseets.com
* Sharri Venno. Environmental Planner. x215 envplanner@maliseets.com
Cara O'Donnell Water Resource Spec.. x212 water@maliseets.com
Matthew Edberg, Natural Resource spec., timber@maliseets.com
THPO: Sharri Venno coordinates NHPA Section 106 reviews
NARRAGANSETT INDIAN TRIBE
PO Box 268
Charlestown, Rl 02813
PHONE: 401/364-1100
FAX: 401/364-6432
Matthew Thomas, Chief ; alternative contact: Hiawatha Brown, Councilman hibrown53@vahoo.com
Environmental Contacts:
* Dinalvn Spears, Director of Nat.Resources/Planning, x210 DSpears@nitribe.org
Greg Soder, Asst. Director of Nat.Resources/Plannins x226 gsoder@nitribe.org
SGT Robin Spears Jr.. Environmental Police Officer. x217 rspearsir@nitribe.org
THPO: John Brown. 401-491-9459 brwnib bl23@aol.com
Preservation: Doug Harris 413-325-7691 dhnithpo@gmail.com
PASSAMAQUODDY TRIBE OF INDIANS
INDIAN TOWNSHIP RESERVATION
PO Box 301
Princeton, ME 04668
PHONE: 207/796-2301
FAX: 207/796-2420
Joseph Socobasin, Tribal Chief; Clayton Sockabasin, Vice-Chief
Environmental Contacts:
Trevor White, Environmental Director, 207-796-2677 ex 226 trevorenv@mvfairpoint.net
Joe Musante. Biologist. 207-796-2677. ioemusante@vahoo.com
Darrin Coffin. EPA bookkeeper. 207-796-6116.coffin.darrin@gmail.com
THPO Donald Soctomah, soctomah@ainop.com 207-796-5533
PASSAMAQUODDY TRIBE OF INDIANS
PLEASANT POINT RESERVATION
PO Box 343
Perry, ME 04667
PHONE: 207/853-2600
FAX: 207/853-6039
Reuben Clayton Cleaves, Tribal Chief; Kenneth Poynter, Lt. Governor
Environmental Contacts:
* Marvin Cling, Environmental Planner, x234, marvin@wabanaki.com
Ed Bassett. Environmental Technician. GPS/GIS. x255. edb@wabanaki.com
Karen Neptune. Water QualitvTechnician. x284. kneptune@wabanaki.com
Dale Mitchell, Water Qualitv Technician, x245, dalem@wabanaki.com
THPO Donald Soctomah, soctomah@ainop.com 207-214-4051
PENOBSCOT INDIAN NATION
12 Wabanaki Way
Indian Island,ME 04468
PHONE: 207/827-7776 (Main office)
FAX: 207/827-1137
Kirk Francis, Chief; William Q. Thompson, Vice Chief
Environmental Contacts:
* John Banks. Dir. of Natural Resources. 207 817-7330. iohn.banks@penobscotnation.org
Dan Kusnierz, Water Resources Manager,207 817-7361 dan.kusnierz@penobscotnation.org
Bill Thompson. Air Pros. Manager. 207-817-7340 bill.thompson@penobscotnation.org
Angie Reed. Water Resources Planner. 207-817-7360 angie.reed@penobscotnation.org
TPHO Chris Sockalexis 207-817-7471 chris.sockalexis@penobscotnation.org
MASHANTUCKET PEQUOT TRIBAL N ATION
Tribal Office
Indiantown Rd.- PO Box 3060
Mashantucket, CT 06339-3060
PHONE: 860-396-6740
FAX: 860-396-6745
Rodney Butler, Chairman
Richard E. Sebastian, Vice Chairman
Environmental Contacts:
* Michael Boland, Dir. Natural Resources Protection, 860-396-7590 MBoland@MPTN.org
P.O. Box 3202, Mashantucket CT 06338-3202
THPO Kathleen Knowles. 860.396.6887 kknowles@mptn-nsn.gov
WAMPANOAG TRIBE OF GAY HEAD (Aquinnah)
20 Black Brook Road
Aquinnah, MA 02535
PHONE: 508/645-9265
FAX: 508/645-3790
Cheryl Andrews-Maltais, Chairwoman, Richard Randolph, Vice Chairman
Environmental Contacts:
Natural Resources: 508-645-9265 fax: 508-645-3233,
*Bret Stearns. Dir. of Natural Resources. xl41. bstearns@wampanoagtribe.net
Jim Miller, Environmental Program Coordinator, xl43, imiller@wampanoagtribe.net
Andre Jacobs. Bav Scallop Coordinator, x 145 aiacobs@wampanoagtribe.net.
Laboratorv Manager. 508-645-2903. wtghalaboratorv@comcast.net
TPHO Bettina Washington 508.645.9265 x 175 bettina@wampanoagtribe.net
AROOSTOOK BAND OF MICMACS
8 Northern Road
Presque Isle, ME 04769
PHONE: 207/764-1972
FAX: 207/764-7768
Edward (Charlie) Peter Paul, Chief; Jennifer Kiandoli, Vice Chief
Environmental Contacts:
* Fred Corev. Environmental Director. 207-764-7765. fcorev@micmac-nsn.gov
David Macek, Environmental Specialist, dmacek@micmac-nsn.gov
THPO Jennifer Pictou 207.942.1900director@micmac-nsn.gov
MOHEGAN TRIBE
Mohegan Tribal Office
13 Crow Hill Road
Uncasville, CT 06382
PHONE: 860/862-6112
FAX: 860/862-6129
Kevin Brown, Tribal Chairman; James Gessner, Vice Chairman
Thayne Hutchkins, Treasurer and Councilmember
Environmental Contact:
* Jean Mclnnis, Environmental Protection Administrator ,T: 860-862-6112;
Fax 860-862-6129. Cell: 860-367-1817 imcinnis@moheganmail.com
THPO James Quinn 860-862-6893 jquinn@moheganmail.com
MASHPEE WAMPANOAG
Mashpee Wampanoag Tribe
Mailing Address: 483 Great Neck Rd. South
Mashpee, MA 02649
PHONE: 508-477-0208
FAX: 508 477-1218
Cedric Cromwell, Chairman; Jessie Baird, Vice Chairwoman
Natural Resources Department Office Address: 215 Sampson Hill Road
Mailing Address: 483 Great Neck Rd. South
Environmental Contact:
* Quan Tobev, Environmental Director, 508-477-5800, ex 10 atobev@mwtribe.com
* George "Chuckie" Green, Assistant Director, 508-477-5800-ex 11 cgreen@mwtribe.com
THPO Ramona Peters 508-477-6186 physical address: 766 Falmouth Road Suite A3, Mashpee MA
02649 106review@mwtribe.com
* RTOC PRIMARY ENVIRONMENTAL CONTACT S
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U.S. EPA
5 Post Office Square, Suite 100
Boston, MA 02109-3912
Region 1 Tribal Program
Lois Adams (OEP 06-3), Branch Chief: Grants, Tribal, Community, and Municipal Assistance, OEP:
617-918-1591/F-0591, adams.lois@epa.gov
Kristi Rea (OEP 06-3), Section Chief: Tribal & Community Programs Unit,
617-918-1595/Fax-0595, rea.kristiOepa.gov
Mike Stover (OEP 06-3), Region 1 Indian Program Manager
617-918-1123/F-0123, stover.michaelOepa.gov
EPA-Tribal Coordinators
Tim Bridges (EQA), EPA-Mashantucket Pequot Coordinator, 617-918-8603, bridges.tim@epa.gov
Donna Smith-Williams (OEP 06-3), EPA-Micmac and Penobscot Coordinator, 617-918-1620,
smith.donnaOepa.gov
Ellie Kwong (OEP 06-2), EPA-Narragansett Coordinator, 617-918-1592. kwong.ellieOepa.gov
William Nuzzo (OEP 06-3), EPA-Wampanoag Tribe of Gay Head [Aquinnah] and Passamaquoddy
Tribe: Indian Township Coordinator nuzzo.williamOepa.gov
Michael Ochs (OEP 06-3) EPA-Passamaquoddy Tribe: Pleasant Point Coordinator 617-918-1133
ochs.michaelOepa.gov
Ellen Weitzler (OEP 06-2), EPA-Mohegan Coordinator, 617-918-1582, weitzler.ellenOepa.gov
Kwabena Kyei-Aboagye (OEP 06-2) EPA-Mashpee Wampanoag and Maliseet Coordinator, 617-918-1609,
kvei-aboagve.kwabena(5)epa.gov
Stacey Johnson-Pridgeon (OEP 06-3) GAP Program Lead, 617-918-1552, iohnson.stacevOepa.gov
Sandy Brownell
(OEP 06-2) CWA 106 Program Lead, 617-918-1797; brownell.sandraOepa.gov
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National Historic Preservation Contacts
Headquarters
Mr. Craig Hooks
Assistant Administrator
Office of Administration and Resources Management (OARM)
Federal Preservation Officer
Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, NW
Mail Code 3101A
Washington, DC 20460
Phone: 202.564.4600
Fax: 202.564.0233
E-mail: Hooks.craig@,Epa. go v
Mr. Cliff Rader
Director/Deputy FPO
NEPA Compliance Division
Office of Federal Activities
Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, NW
Mail Code 3101A
Washington, DC 20460
Phone: 202.564.7159
Fax: 202.564.0233
E-mail: rader.cliff@,epa.gov
Matt Nowakowski, MS, MSHP
U.S. Environmental Protection Agency
Office of Enforcement and Compliance Assurance
NHPA Compliance
OECA/OFA/NEPA (NCD) Mail Code 2252A
1200 Pennsylvania Ave., NW
Washington, DC 20460
202-564-7156
Nowakowski.matt@epa.gov
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Region 1
Lois K. Adams, Agency Official for NHPA
Branch Chief
Grants, Tribal, Community and Municipal Assistance
Mail Code: OEP06-2
617-918-1591
Adams.lois@epa.gov
Mike Stover, PE
Indian Program Manager
OEP06-3
617- 918-1123
stover.michael@epa.gov
Amyjean McKeown, Brownfields Program Historic Preservation Coordinator
OSRR07-3
617-918-1248
Mckeown.amyiean@epa.gov
Karen Lumino, OSRR Technical Support for NHPA
OSRR07-1
617-918-1348
Lumino.karen@epa.gov
Rona Gregory, Legal Counsel
617-918-1096
Gregory.rona@epa.gov
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State Historic Preservation Offices
6-20-13
Maine
Website: http ://www.state. me .us/mhpc/
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@maine.gov
Massachusetts
Website: http://www.sec.state.ma.us/mhc/
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
Deputy: Michael Steinitz
Director, Preservation Planning Division
E-mail: Michael.Steinitz@sec.state.ma.us
Deputy: Nancy Maida
Co-Director, Grants Division
E-mail: Nancy.Maida@sec.state.ma.us
Deputy: Edward L. Bell
Senior Archaeologist, Technical Services Division
E-mail: Ed.Bell@sec.state.ma.us
1
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Vermont
Website: http://www.historicvermont.org/
Noelle Mackay, Acting SHPO
Vermont Department of Housing and Community Development
National Life North Building
One National Life Drive - 6th Floor
Montpelier, VT 05620-1201
E-mail: noelle.mackav@state.vt.us
Fax: 802-828-3206
Director of Operations: Ms. Judith Williams Ehrlich
Phone: 802-828-3049
E-mail: iudith.ehrlich@state.vt.us
New Hampshire
Website: http://www.nh.gov/nhdhr/
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: Mr. Richard A. Boisver
E-mail: richard.boisvert@dcr.nh.gov
Rhode Island
Website: http://www.preservation.ri.gov/
Mr. Edward F. Sanderson SHPO
Rhode Island Historic Preservation & Heritage Commission
Old State House
150 Benefit Street
Providence, RI 02903
2 | P a g e
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Phone: 401-222-4130
Fax: 401-222-2968
E-mail: esanderson@preservation.ri.gov
Deputy: Mr. Richard Greenwood
Phone: 401-222-2078
E-mail: Rick.Greenwood@preservation.ri.gov
Connecticut
Website: http://www.cultureandtourism.org/
Mr. Christopher Bergstrom, Acting SHPO
Deputy Commissioner
Dept. of Economic and Community Development
Deputy: Daniel T. Forrest
Historic Preservation Office
Phone: 860-256-2761
FAZ: 860-256-7673
E-mail: daniel.forrest@ct.gov
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SECTION 106 WORKSHOP SCENARIOS
1. Brownfields: Assessment of Effects of Undertakings
You have received a cleanup grant and there was prior coordination with the SHPO and the EPA PO
on the assessment activities. You are good to go and you don't need to deal with Section 106, right?
Wrong: Coordination was only done for Phase II assessment activities. You will need to consult with
your EPA PO and have them initiate consultation with the SHPO because cleanup most likely involves
activities that may have an adverse effect.
Discussion: You will be implementing your cleanup funding at a property already listed on the
National Historic Register. Which of the following undertakings would warrant consultation with
the SHPO due to potential for adverse effects?
• Underground storage tank removal - No, if tank is close enough to threaten stability of a
building, tank would be filled rather than removed. Filling of tank would not have potential
for adverse effect.
• Soil excavation and off-site disposal - Yes
• Injection of remedial amendments via Geoprobe® - No
• Hazardous materials abatement - No
• Construction of soil cap - Yes
• Demolition of structures - Yes
• Construction of new structures - Yes
2. Superfund: Eligibility for Listing on National Historic Register
You have a building less than 50 years old that you want to demolish with Superfund funding, you
are all set and you don't need to involve Section 106, right??
Wrong: Just because a building is younger than 50 years old does not mean that there are no
issues. For instance, the World Trade Center (opened in 1973) has been listed on the National
Historic Register.
Discussion: Which of the properties described below are eligible for listing on the National Historic
Register?
• 19th century industrial building predominantly used for manufacturing of rubber products,
including military shoes and replica tanks used during WWII as diversionary tactic - Likely
eligible if integrity retained
• Victorian-style residential neighborhood initially developed to house mill workers - Likely
eligible if integrity retained
• Nondescript post-office building constructed in 1953; vacant since 2002 - Likely not
eligible
• Town green/center and adjacent church, dating back to early 1900s - Maybe; only if part of
a historic district or has some non-religious significance (architectural or historical)
NHPA Scenarios Page 1
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• Commercial corridor developed in 1970s, including underutilized multi-unit retail buildings,
vacant movie theater, and several small grocery stores and other family businesses - Likely
not eligible
• Nightclub, now vacant, that was reconstructed in the 1980s to match a previous venue that
was popular during the advent of early blues and rock n roll musicians - Maybe; only if part
of restoration master plan, accurate, and no other building of same significance has
survived
3. Private development/NPDES Stormwater
A residential developer wishes to construct a subdivision in a non-delegated CWA NPDES state.
Since the project site is more than one acre of disturbance, the developer has filed for coverage
under the nationwide NPDES permit for stormwater discharges by filing her project under the
electronic Notice of Intent (e-NOI) system 14 days prior to commencing construction. The area of
development was a battle site from King Philips War in the 1600's. A tribe that claims cultural
aff iliation is concerned that the developer has not adequately investigated or addressed the
impacts of the construction to potential underground battlefield features at the site. Should EPA
be involved? Is this project a federal undertaking?
EPA needs to be involved, as it is a federal undertaking since the nationwide NPDES permit is
involved. EPA should consult with the tribe and SHPO as part of the 106 process, and if necessary,
investigate the issues.
4. Consultation Partners
The cleanup grant is part of a larger redevelopment project with lots of federal funding, you must
be good to go because some other federal agency should have done the coordination, right?
Wrong: You need to figure out what federal agency did the 106 coordination and get a copy of their
letter from the SHPO. Confer with your EPA PO and have them write a letter to the SHPO stating
that your activities are the same as what was discussed before and you are all set. Sometimes, the
previous agreement does not cover what you want to do so consultation will be required.
Discussion: Your community has been awarded an EPA Cleanup Grant to facilitate redevelopment of
an eligible former textile mill located on the banks of a river that was once a power source for
numerous 18th and 19th century industrial developments. DOT has also provided funding to road
upgrades as part of the project and a Community Development Block Grant has also been allocated
by HUD to assist in development of affordable housing at a portion of the property. Who is the
agency responsible for maintaining compliance with Section 106? -
For projects with multiple federal agencies involved, 36 CFR Part 800.2(2) specifies that the
agencies may designate a lead agency to fulfill their collective responsibilities under Section 106.
HUD is the only federal agency that delegates their compliance to the group that receives the
funding. So there is generally no circumstance where HUD would lead consultation.
NHPA Scenarios Page 2
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5.
Mitigation of Adverse Effects During Assessment Phase
Your building is not eligible for listing so you are all set right?
Wrong: Your building may be adjacent to a historic district and could affect a view shed.
Discussion: It turns out your building is determined to have an adverse effect on the viewshed of
the adjacent historic district. Impacts to viewshed may be difficult to mitigate without killing the
project. How can your assessment activities be expanded as a means of mitigating the adverse
impact?
You could retain an archaeologist/historian to photo-document your site and the adjacent district in
a manner which captures the essence of the area prior to you project. Archaeology and/or
historical investigation conducted at your site to evaluate for potential historical resources that
may be consistent with those that make the adjacent district signif icant.
6. Mitigation of Adverse Effects During Cleanup Planning and Cleanup Phases
The building was determined to be eligible for listing 10 years ago. You are planning on using your
cleanup grant to demolish the building because there is contamination underneath the building. Now
what?
Since the eligibility determination was made years ago and the property meets the definition of a
brownf ields, it may be in such poor condition that it no longer meets the criteria to be listed. It
may not retain the integrity to stay listed. You will need to have your EPA PO discuss with the
SHPO and most likely hire a historical architect to make a current determination. If the building
does not retain integrity it will not be eligible for listing and you are done. If it does, you will need
to enter into an MOA with the SHPO. This document is agreed to by the grantee, SHPO and EPA
and details the adverse effects and the mitigation plan.
Discussion: Your historical architect determines that, though the effects of time have degraded
the building, it still retains its historical integrity and thus remains eligible for listing. Prior to
initiating MOA negotiations, you and your team must consider how your cleanup plan and site design
can be modified to mitigate adverse impacts that will result from building demolition.
Revisit your soil cleanup approach. If excavation and disposal was the selected strategy, are there
areas where soil can be left in place to support a particular feature of the building which can be
retained (i.e. chimney, wall, etc.). A combination of excavation, capping, and/or soil vapor control
may be an appropriate cleanup approach which mitigates both environmental risks and adverse
effects to historical resources.
Enhancement of the existing historical dataset for the site is an indirect mitigation approach.
Compile historical photographs and maps or create a new photographic record of the pre-project
conditions. Plan to display these resources in the new building.
NHPA Scenarios Page 3
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Revisit you architectural design. Plan to recover usable building materials for incorporation in the
new construction, such as timbers, field stones, etc.
Discussion: During excavation of contaminated soil, the contractor discovers a field stone retaining
wall that was previously unknown due to heavy vegetation coverage. Remedial and grading
requirements for the site necessitate removal of soil adjacent to this resource. What are some
appropriate mitigation actions that could be taken in response to this discovery?
Notify the SHPO of this discovery and describe a plan to survey, map, and photo-document the wall
to establish a historical record of this feature. If possible, recover the wall remnants and
incorporate them into final site. For example, use the stones to construct a retaining wall at
another area of the site.
7. Enforcement Actions
A town finds itself under an EPA enforcement action to come into compliance under the Clean
Water Act. The court orders the town to initiate construction of a new wastewater treatment plant
on a designated parcel of land, and EPA would not permit any further delays to the town's non-
compliance without enforcement action taken against the town. This designated land parcel was
used by the Massachusetts Bay Colony in the 1600s as a holding camp for Native Americans who
were to be shipped off as slaves. Their descendants claim per oral tradition that there are burials
on the land parcel from those who perished while under custody at the encampment. However, there
is no literature on or past studies of the site. The town was under a strict court order to initiate
construction. Should this situation exempt the town from tribal consultation under NHPA?
No. The town should still follow the Section 106 process to determine if there will be an effect. If
the environmental situation poses an imminent threat to public health or safety, the emergencies
situations process may be applicable (800.12)
8. Dam Removal/404 Wetlands Program
Removing a dam may require evaluations and permits from state, federal, and local authorities.
These requirements are typically to ensure that the removal is done is a manner that is safe and
minimizes short and long term impacts to the river and f loodplain.
There is a certain dam removal project in New England that has been funded by a local river
restoration advocacy group and both the town and state have approved the project. Because the
activity will impact wetlands, and EPA's authority under CWA Section 404 Dredge and Fill
permitting process is exercised. Additionally, the impoundment creaies elevated thermal
temperatures which violate the EPA-approved state water quality standards. However, the dam
structure and its impoundment are a source of pride for the community, and the impoundment has
been a favorite spot for fishing, swimming and boating for over 100 years. The dam, which once
served a mill industry, no longer serves an industrial purpose. The dam is proposed to be removed to
restore the river to its natural state, allow fish spawning, and improve water quality. Is the dam
removal a federal undertaking? Can the impoundment itself be considered a historic property?
NHPA Scenarios Page 4
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The project is a federal undertaking since a federal permit is involved. The Section 106 process
should be followed to determine if the dam structure is eligible for the National Registry. The
impoundment should be evaluated under the 106 process as it may be considered a Traditional
cultural property as a vista or waterway which may be subject to protection.
Discussion:
The following federal requirements may apply to dam removal: Rivers and Harbors Act Permit; FERC
License Surrender or Non-power License Approval; Federal Consultations (Endangered Species Act
Section 7 Consultation, Magnuson- Stevenson Act Consultation, National Historic Preservation Act
Compliance) State Certif ications (Water Quality Certif ication, Coastal Zone Management Act
Certification)
9. SRF Sewer Pro ject
A certain part of a New England bayside town is in need of community sewer, as the residences are
served by old cesspools, and due to the sandy soils, the bay is constantly eutrophic and has
experienced high bacteria counts in its waters. The sewer project is funded under the SRF program
and the state has provided the town with a loan for the project. The area has overlapping tribal
cultural affiliation. How should the project proponent proceed? What role and responsibilities does
EPA have in the project? What documents should be considered for the NHPA process?
The project is a federal undertaking since federal funding is involved. If a programmatic agreement
is in place delegating the responsibility of carrying out NHPA responsibilities to the state, the
state should take the lead. EPA retains oversight authority. A Memorandum of Agreement among
the parties (state, town, EPA, SHPO and THPO) is recommended to ensure that roles and
responsibilities, as well as disposition of features or remains found are clearly defined.
10. Adverse Effect to Historic District
EPA entered into an agreement and signed an MOA recognizing that the entire Raritan Arsenal in
Edison, NJ, Middlesex County, is eligible for the NRHP. The period of significance is pre-WWI
through the Korean War. The facility is in disrepair and a number of structures are underused and
decrepit. Others have been demolished through neglect (36 CR 800). EPA is responsible for the
land and structures here at the Edison Facility—one of the few actual landholdings for the agency.
EPA decided (Facilities) last year that it wanted to complete the demolition of four large
warehouses that are not unique except for the experimental use of roof materials in certain areas.
EPA has no ties and never used the buildings.
EPA Facilities submitted a letter to the NJSHPO voiding the MOA and deciding that since the
buildings are falling apart they are no longer eligible and it is not necessary to consult with the
SHPO nor advise the ACHP of an adverse effect. Facilities feels strongly about this because the
price of scrap steel is rising and the contractor will demolish the buildings for free.
NHPA Scenarios Page 5
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The regional office wants a level one recordation that would cost EPA about $150k; Facilities does
not want to spend this much money on a recordation of old warehouses. The regional office has now
involved the EPA HQ Off ice of federal Activities with the view that HQ will intervene. What
should be done?
No black and white answer here!
11. Multi federal agency involvement and responsibilities
South Coast Rail project is beginning to gain steam. The project will involve an air permit from the
EPA, as well as a dredge and fill permit from the US Army Corps of Engineers. The route for the
rail will impact some cedar swamps that a tribe considers sacred as a resource for medicine and
healing. Should the tribe who considers this area as culturally significant be consulted under the
106 process, even archaeology studies revealed no historic properties? Should EPA assume the lead
role?
The project is a federal undertaking as federal permits are involved. Since EPA's permit is a minor
involvement as compared to USACE's involvement under the 404 permitting process, USACE should
assume the lead role for consultation, with EPA as a consulting party. While there may be no
historic properties present, since the cedar swamps are considered a Traditional cultural
property, the swamps may be subject to protection, and the 106 process should address the
impacts.
12. Projects constructed by tribes on reservation trust land with EPA funding
A tribe received an EPA Drinking Water Tribal Set-aside grant to replace a water storage tank.
The existing tank is 89 years old, and is made of redwood stave boards, and over the years tribal
members have etched into the wood engravings depicting tribal ceremonies of the past, including
names of the participants. The tribal public works department, who is managing the grant, wants
the leaking tank demolished and does not plan on following any historic preservation process, citing
the project as an "internal tribal matter." The EPA project officer, having visited the site, is aware
of the potential for the tank to be eligible for the National Register. What should the project
officer do?
The project is a federal undertaking as federal funding is involved, and regardless of the structure
located on tribal trust lands, NHPA regulations (federal law) are not superseded by tribal
departmental or administrative decisions. The project officer, responsible for overseeing grant
requirements which include compliance with applicable federal law, should facilitate discussion with
the public works department and the THPO. The same applies for any grant funded by EPA... the
Project Officer is responsible for ensuring that the grant conditions are met, which include federal
law. This includes EPA Tribal Coordinators and EPA Program Officers who manage EPA-funded grant
programs including GAP, 106, 319, Air, Wetlands and Brownfields.
NHPA Scenarios Page 6
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950 CMR; OTICi: OK THE SECRETARY OF THE COMMONWEALTH
APPENDIX A (continued)
To the best of your knowledge, are any historic or archaeological properties known to exist within the
project's area of potential impact? If so, specify.
What is the total acreage of the project area?
Woodland
W; etland
I'loodplain
Open space
Developed _
acres
acres
acres
acres
acres
Productive Resources:
Agriculture
Fore sin.
Mining/Extraction
Total Project Acrcagc_
acres
acres
acres
acres
What is the acreage of the proposed new construction? acres
What is the present land use of the project area?
Please attach a copy of the section of the USGS quadrangle map which clearly marks the project location.
This Project Notification Form has been submitted to the MHC in compliance with 950 CMR 71.00.
Signature of Person submitting this form:
Name:
Date:
Address;
City/Town/Zip:
Telephone:
REGULATORY AUTHORITY
950 CMR 71.00: M.G.I - c. 9, §§ 26-27C as amended by St. 1988. c. 254.
7/1/93
950 CMR - 276
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950 CMR; OFFICE OF THE SECRETARY OF THE COMMONWEALTH
APPENDIX A
MASSACHUSETTS HISTORICAL COMMISSION
220 MORRISSEY BOULEVARD
BOSTON. MASS. 02125
617-727-8470, FAX: 617-727-5128
PROJECT NOTIFICATION FORM
Project "Name:
Location / Address:
City / Town:. __
Project Proponent
Name: _
Address:
City/Town 17. i p/Te I e p h o n e:
Agency license or funding for the project (list all licenses, permits, approvals, grants or other entitlements being
sought from state and federal agencies).
Aeencv Name Type of License or'funding (specify')
Project Description (narrative):
Does the project include demolition? If so, specify nature of demolition and describe the building(s) which
are proposed for demolition.
Does the project include rehabilitation of any existing buildings? If so, specify nature of rehabilitation
and describe the building(s) which are proposed for rehabilitation.
Does the project include new construction? if so, describe (attach plans and elevations if necessary).
5/31/96 (Effective 7/1/93) - corrected
950 CMR - 275
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PROJECTS CANNOT BE PROCESSED WITHOUT THIS INFORMATION
Project Boundaries and Description
I I Attach the relevant portion of a 7.5' USGS Map (photocopied or computer-generated) indicating the
defined project boundary. (See RPR Instructions and R&C FAQs for guidance.)
f~1 Attach a detailed narrative description of the proposed project.
: ' Attach a site plan. The site plan should include the project boundaries and areas of proposed excavation.
[ I Attach photos of the project area {overview of project location and area adjacent to project location, and
specific areas of proposed impacts and disturbances.) (Informative photo captions are requested.)
EH A DHR file review must be conducted to identify properties within or adjacent to the project area.
Provide file review results in Table 1 or within project narrative description. (Blank table forms are
available on the DHR website.)
File review conducted on / / .
Architecture
Are there any buildings, structures {bridges, walls, culverts, etc.) objects, districts or landscapes within the
project area? EH Yes EH No
If no, skip to Archaeology section. If yes, submit all of the following information:
Approximate age{s):
I I Photographs of each resource or streetscape located within the project area, with captions, along with a
photo key. {Digital photographs are accepted. All photographs must be clear, crisp and focused.)
EH If the project involves rehabilitation, demolition, additions, or alterations to existing buildings or
structures, provide additional photographs showing detailed project work locations, (i.e. Detail photo of
windows if window replacement is proposed.)
Archaeology
Does the proposed undertaking involve ground-disturbing activity? EH Yes EH No
If yes, submit all of the following information:
! J Description of current and previous land use and disturbances.
I~1 Available information concerning known or suspected archaeological resources within the project area
(such as cellar holes, wells, foundations, dams, etc.)
Please note that for many projects an architectural and/or archaeological survey or other
additional information may be needed to complete the Section 106 process.
DHR Comment/Finding Recommendation This Space for Division of Historical Resources Use Only
I I Insufficient information to initiate review. EJ Additional information is needed in order to complete review.
I I No Potential to cause Effects EH No Historic Properties Affected EH No Adverse Effect EH Adverse Effect
Comments: „ _
If plans change or resources are discovered in the course of this project, you must contact the Division of Historical
Resources as required by federal law and regulation.
Authorized Signature: Date:
New Hampshire Division of Historical 'Resources / State Historic Preservation ffffier
March 2013
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Please mail the completed form and required material to:
New Hampshire Division of Historical Resources
State Historic Preservation Office
Attention: Review & Compliance
19 Pillsbury Street, Concord, NH 03301-3570
DHR Use Only
R&C#
Log In Date
_/. /
Response Da te
/ /
Se:nt Date
_/ /
Request for Project Review by the
New Hampshire Division of Historical Resources
Q This is a new submittal
I I This is additional information relating to DHR Review & Compliance (R&C) #:
GENERAL PROJECT INFORMATION
Project Title
Project Location
City/Town Tax Map
Lot#
NH State Plane - Feet Geographic Coordinates: Easting
(See RPR Instructions and R&C FAQs for guidance.)
Northing
Lead Federal Agency and Contact (if applicable)
(Agency providing funds, licenses, or permits)
Permit Type and Permit or Job Reference #
State Agency and Contact (if applicable)
Permit Type and Permit or Job Reference #
APPLICANT INFORMATION
Applicant Name
Mailing Address
Phone Number
City State Zip
Email
CONTACT PERSON TO RECEIVE RESPONSE
Name/Company
Mailing Address
Phone Number
City State Zip
Email
This form is updated periodically. Please download the current form at www.nh.gov/nhdhr/review. Please refer to
the Request for Project Review Instructions for direction on completing this form. Submit one copy of this project
review form for each project for which review is requested. Include a self-addressed stamped envelope to expedite
review response. Project submissions will not be accepted via facsimile or e-mail. This form is required. Review
request form must be complete for review to begin. Incomplete forms will be sent back to the applicant without
comment. Please be aware that this form may only initiate consultation. For some projects, additional
information will be needed to complete the Section 106 review. All items and supporting documentation
submitted with a review request, including photographs and publications, will be retained by the DHR as part of
its review records. Items to be kept confidential should be clearly identified. For questions regarding the DHR
review process and the DHR's role in it, please visit our website at: www.nh.gov/nhdhr/review or contact the R&C
Specialist at chrisfcina.st.louis@dcr.nh.gov or 603,271.3558.
New Hampshire Divukm. of Historical Resources / State Historic Preservation Office
March 2013
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\ i 1 AC" 11MEST 6
MOA TEMPLATE
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MEMORANDUM OF AGREEMENT
BETWEEN [insert Agency)
AND THE
[insert name of State or Tribcj ["STATE" or "TRIBAL"! HISTORIC PRESERVATION
OFFICER
REGARDING THE {insert project name and location]
WHEREAS tlx- | Agency| ([insert Agency abbreviation!> pl;«ns ["carry out" or
"fund" or "approvc"/"Iicense"/"permit" or other appropriate verb) the [insert project
iianiej $ undertaking) pursuant to the [insert it ami- of the substantia statute authorizing the
Federal agency involvement in the undertaking], (insert legal cite tor that statute]: and
WHEREAS the undertaking consists of (insert a brief explanation of the
undiTtakingj;
WHEREAS, | Agency abbreviation] has dell nod the undertaking's area of potential
effect (APE) as [insert written description and/or "described in Attachment XXX"]; and
WHEREAS |Agency abbreviation] bus determined thai the undertaking ma\ have an
adverse effect on j insert name of historic properties)], which ("is" or "are"] ("listed in" or
"eligible for listing in"J the National Register offlisHtrie Places, and lia> consulted with the
jinsert name of State or Tribe] ["State" or "Tribal"] Historic Preservation Officer (|"SHPO"
or "THPO"] l pursuant to 36 C.F.R. part 800. of the regulations implementing Section 106 of
the National Historic Preservation Act (16 1 fS.C. § 470f); and
WHEREAS ]Agency abbreviation] has consulted with the |insert name of Tribe(s)|,
lor which [insert name of llistoric property(ics)| ["has" or "have"! religious and cultural
significance, and has invited the Tribejsj to sign this Memorandum of Agreement (MOA) us a an
invited signatory [Insert this whereas clause if appropriate!; an^
WHEREAS. [Agency abbreviation] has consulted with [insert names of other
consulting parties, if any) regarding the effects of the undertaking on historic properties and has
invited them to to sign this MOA as a ["invited signatory(ies)" or "concurring party{ies)"|;
and
WHEREAS, in accordance with 36 C.F.R. § K00.6{a)(l), (Agency abbreviation} lias
notified the Advisory Council on Historic Preservation (AOIP) of it> adverse effect
determination with specified documentation and the ACHP has chosen not to participate in the
consultation pursuant to 36 O R § 800.6(a)( 1 >(iii); and
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NOW, THEREFORE, [Agency abbreviation] and the ["SHPO" or "T1IPO"] 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
[Agency abbreviation! shall ensure that the following measures are carried out:
[I.-I1I. (Or whatever number of stipulations is necessary) Insert negotiated measures to
avoid, minimize, or mitigate the adverse effects oil historic properties,]
IV DURATION
This MOA will be null and void if its terms are not carried out within five (5) years [or specify
other appropriate time period] from the date of its execution. Prior to such time, [Agency
abbreviation] may consult with the other signatories to reconsider the terms of the MOA and
amend it in accordance with Stipulation VI11 below.
V. POST-REVIEW DISCOVERIES
If potential historic properties arc discovered or unanticipated effects on historic properties
found, the [Agency abbreviation] shall implement the discovery plan included as attachment
[insert number of attachment! of this MOA. [Insert this stipulation if there is an indication
that historic properties are likely to be discovered during implementation of the
undertaking. |
VI MONITORING AND REPORTING
Each [insert a specific time period] following the execution of this MOA until it expires or is
terminated, [Agency abbreviation! shall provide all parties to this MOA ["and the ACHP" if
desired| a summary report detailing work undertaken pursuant to its terms. Such report shall
include any scheduling changes proposed, any problems encountered, and any disputes and
objections received in [Agency abbreviation]^ efforts to carry out the terms of this MOA.
VII DISPUTE RESOLUTION
Should any signatory * or concurring party to this MOA object at any time to any actions
proposed or the manner in which the terms of this MOA are implemented, [Agency
abbreviation] shal consult with such party to resolve the objection. If [Agency abbreviation}
determines that such objection cannot be resolved, [Agency abbreviation] will:
A. forward all documentation relevant to the dispute, including the | Agency
abbreviation|'s proposed resolution, to the ACHP. The AC'l IP shall provide [Agency
abbreviation) with its advice on the resolution of the objection within thirty (30) days of
receiving adequate documentation. Prior to reaching a final decision on the dispute.
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[Agency abbreviation] shall prepare a written response that takes into account any
timely advice or comments regarding the dispute from the ACHP, signatories and
concurring parties, and provide them with a copy of this written response. [Agency
abbreviation] will then proceed according to its final decision.
B, [f the AO IP does not provide its advice regarding the dispute within the thirty (30)
day time period. [Agency abbreviation] may make a final decision on the dispute and
proceed accordingly. Prior to reaching such a final decision, j Agency abbreviation] shall
prepare a written response that takes into account any timely comments regarding the
dispute from the signatories and concurring parties to the MOA. and provide them and
the ACHP with a copy of such written response.
C. [Agency abbreviation |'s responsibility to carry out all other actions subject to the
terms of this MOA that are not the subject of the dispute remain unchanged.
VIII AMENDMENTS
This MOA may be amended when such an amendment is agreed to in writing by all
signatories. The amendment will be effective on the date a copy signed by ail of the
signatories is filed with the ACHP.
I\ TERMINATION
If any signatory to this MOA determines that its terms will not or cannot be carried out.
that party shall immediately consult with the other parties to attempt to develop an
amendment per Stipulation VIII, above. If within thirty (30) days (or another time period
agreed to by all signatories) an amendment cannot be reached, any signatory may
terminate the MOA upon written notification to the other signatories.
Once the MOA is terminated, and prior to work continuing on the undertaking, [Agency
abbreviation] must either (a) execute an MOA pursuant to 36 CFR § 800.6 or (b)
request, take into account, and respond to the comments of the ACHP under 36 CFR §
800.7. | Agency abbreviation] shall notify the signatories as to the course of action it wi 11
pursue.
I execution of this MOA by the [Agency abbreviation] and ("S" or "T" jl IPO and
implementation of its terms evidence that [Agency abbreviation] has taken into account the
effects of this undertaking on historic properties and afforded the AC! IP an opportunity to
comment."*
SIGNATORIES:
[insert Agency name]
Date
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[insert agency official name and title]
(insert name of State or Trihej ("State" or "Tribal") Historic Preservation Officer
Date
(insert name and title]
INVITED SIGNATORIES;
[insert invited signatory natnej
_ _ _ __ Date
(insert name and titlej
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CONCURRING PARTIES:
[insert name of concurring party]
Date
[insert name and title]
Notes:
* This document assumes that the term "signatory " has been defined in the agreement to
include both signatories and invited signatories.
** Remember that the agency must submit a copy of the executed MO A. along with the
documentation specified in Sec. 800.11(f). to the AC HP prior to approving the
undertaking in order to meet the requirements of section 106. 36 CFR 800.6(b)( 1 )(iv).
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ATTACHMENT 7
EMAIL NOTIFICATION TO I'A SS A VI AO IJ ODD Y
'TRIBE AND PENOBSCOT NATION and RESPONSES
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Section 106 of the National Historic Preservation Act
AmyJean McKeown to: soctomah 01/27/2010 12:27 PM
Hi Donald, I just called you office and they suggested thai I send you an e-mail. I am a project officer in the
Brownfields Program at EPA. We have three sites in Maine (with more to come) that we need to initiate
consultation. I spoke with Bonnie Newsom this morning and she suggested that I contact all four tribes in
Maine.
The sites are:
Howland Tannery, Howland - cleanup of contamination along the Penobscot River with subsequent
capping.
Webster's Mill, Orono - cleanup of conta r,ination along the Penobscot River with subsequent capping.
Aerofab Mill, Sanford - demolition of a building and soil remediation.
What information would you like and in what format?
Thank you for your help.
AmyJean McKeown
Brownfields Project Officer
USEPA - Region I
5 Post Office Sq. Suite 100
Mail Code OSRR07-3
Boston, MA 02109-3912
phone 617 918 1248
fax 617 918 0248
mckeown.amyjean@epa.gov
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 1
5 POST OFFICE SQUARE. SUITE 100
BOSTON, MA 02109-3912
January 21.2010
Chief Sachem Matthew Thomas
Narragansett Indian Tribe
PO Box 2<>fi
Charlestown. R1 0281 >
Rc: Request to Initiate Consultation, Chapachet Mill Site
Dear Chief Sachem Thomas:
In August 2009. the U.S. Environmental Protection Agency (EPA) awarded a $200,000
Brownfields Cleanup grant to the Town of Glocester, Rhode Island to conduct a
hazardous substance cleanup at the Chepachet Mill Site (the "Site"),
The Site is located in the historic Chepachet Village, and is on the Chepachet River.
Various mill activities occurred on this site from the early 1700s to the early 1900s. Most
of the mill burnt down and/or was abandoned in the 1890s. Remediation is only
associated with the locations of the former mill facilities, and will likely involve targeted
removal of contaminated soil or capping of contaminants in place. Planning of the actual
remediation methodology and the coordination with a co-located stormwater retention
project is still ongoing and no final plans have been made at this time.
Attached is a technical memorandum including maps from an archeological survey
conducted on behalf of R( Department of Environmental Management (RI DEM), R1
DEM has initialed hazardous substance assessment activities on the site and is supporting
the Town uf Glocester in their efforts to remediate the contamination on the property.
The memorandum focuses on resources associated with the mill complex and its
significance to the Chepachet Village area as a property listed on the National Historic
Register. I low ever, this memorandum does not address the potential for tribal historic
resources located within the mill facility.
EPA would like to initiate government-to-government consultation with the Narragansett
Indian Tribe for this project. Among other things, we would like this consultation to
address any cultural and historic resource issues, pursuant to the regulations
implementing Section 106 of the National Historic Preservation Act (36 CFR Part 800).
Your response to this letter, acknowledging your interest in participating in this
undertaking as a consulting party, and in identifying any historic properties that may exist
within the project's Area of Potential Effects (APE), is greatly appreciated. Please
pro\ ide a response by February 22. 2010 so that we may discuss this undertaking and any
of those identified areas of interest.
Toll Free ¦ 1-888-372-7341
Internet Address (URL) • tittp -'¦¦'www epa gov/regionl
Hecycledfflftcyctable • Printed with V»g»t«bl» Oil Bused Inks on Recycled Pap»r (Minimum 301. Pos(eonsum»r)
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If you have any questions, you may contact Jessica Domirtguez. the I '.S EPA project
officer for the Town of Glocestcr's Brownfield Grant She can be reached ai
doniinuuv/.ics.sica'?7 cpu.'-'ov or at {(' 1 7) 918-1627.
Thank you for your time and consideration.
Smcere.lv.
\\ ' ~' -
\j -i. ¦ *" —
Tai
ames F. Owens, III
Director
Office of Sue Remediation and Restoration
U.S. H:nironmental Protection Agency - Region 1
CC". John Brown. Narraganselt Indian THPO
Ldward Sanderson. R1 SHPO
Cynthia Gianfrancesco, R1 DEM
Raymond Goff, Glocester Planning Department
Lois Adams, Chief, Grants, Tribal, Community & Municipal Assistance Br.,
fc-'.PA Region I
Attachment:
Technical Memorandum. Chepachet River Park Brownfields Cleanup Modified
Phase II Archeological Survey. October 2009
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I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 1
5 POST OFFICE SQUARE SUITE 100
BOSTON, MA 02109-3912
January 20, 20 i 0
Jeffrey Emidy
Project Review Coordinator
Rhode Island Historic Preservation
& Heritage Commission
Old State House
150 Benefit Street
Providence, Rhode Island 02903
Subject: Providence - Genera) Ice Cream Building, 485 Plainfield Street
Dear Mr, Emidy:
In accordance with our telephone discussion on December 28, 2009,1 am initiating
Section 106 of the National Historic Preservation Act (36 CFR Part 800) review and
asking for your consultation.
In 2007. the U.S. Environmental Protection Agency (EPA) awarded a $200,000
Brownfields Cleanup grant to the Rhode Island Family Life Center (now know™ as
OPENDOORS) to conduct a hazardous substance cleanup at the former Genera! Ice
Building located at 485 Plainfield Street, Providence (the "Site"). The Site was added to
the National Register of Historic Places in 2008.
1 am attaching a Site plan and a description of the cleanup activities thai the property
owner's consultant has prepared.
If you have any questions. I can be reached at 617 918 1248 or at
mckcown.amviean@ena.aov.
A
B
Toll Free • 1 -888-372-7341
Internet Address (URL) • http /'www epa.govregion 1
R*cycl«vn*cycuibl* ¦ Pnn1»a wilh Vegetable Oil Based Inks on Recycled Paper (Minimum SON Po»lccin*urt>»r |
Initiation of Section 106 Review and Request for Consultation for
Hazardous Substances Cleanup
US EPA Brownfields Grant BF9718620I
Sincerely,
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Environmental Information - EPA Section 106 Historic Review:
Several environmental issues were identified during the implementation of appropriate
environmental due diligence assessment efforts. The following paragraphs describe the
contaminants identified and summarize the approach 10 manage the issues associated with each
contaminant.
INTERIOR:
Interior assessments identified the presence of asbestos-containing materials, lead-based paint,
discarded drums, mercury-containing equipment. PCB "-containing equipment and boiler ash with
elevated concentrations of heavy metals. Bach of the materials identified were commonly utilized
in the construction these types of buildings and the management of these materials is
straightforward All of the identified materials shall be managed in accordance with local, state
and federal regulation;; as further described below.
The inspection to identify asbestos-containing materials was conducted by a U.S. EPA accredited
and RI Department of Health licensed asbestos inspector. Asbestos-containing materials
identified at the Site are as follows: vinyl floor tiling, sheet flooring, mastic associated with
flooring and cove base, boiler breach insulation, boiler insulation and gasketing, pipe insulation,
roofing material and caulking and glazing on windows and doors. The boiler breach insulation,
boiler insulation and gasketing and a majority of the pipe insulation was identified is found in the
basement level of the building. Some additional pipe insulation is also found in other areas of the
building, typically associated with the healing system or in plumbing chases. The majorit) of the
asbestos-containing flooring materials and mastic are in the office area on the second floor of the
building The asbestos containing caulking and glazing is located on windows and doors
throughout the building. The roofing materials are present on the loading dock covering. All of
the identified asbestos-containing materials shall be abated by licensed asbestos abatement
contractor under the supervision of Resource Controls, with the exception of the roofing material
The roofing material is to be abated by a licensed asbestos abatement contractor under the
supervision of the Bailey Group, the general contractor for the site redevelopment.
The inspection to identif\ load based paint was conducted by a licensed lead inspector for the
State ol Rhode Island. Lead-based paint was identified on several surfaces within the building.
However, the majontv of the surfaces where lead-based paint was identified arc to be demolished
as part of the site redevelopment. The lead-based paint present on the structural uilurnns and
basement walls that are not scheduled for demolition shall be stabilized and encapsulated by a
licensed lead abatement contractor under the supervision of Resource Controls. The demolition
debris from areas containing lead-based paint shall be disposed of off-site by the Bailey Group,
based on appropriate TCI P analysis of the waste,
Other hazardous materials identified in the building included the following- transformers, light
ballasts, fluorescent hghi bulbs, mercury switches, discaidcd dmms of grease, above ground fuel
storage tanks and boiler ash with elevated concentrations of heavy metals. The discarded drums,
above ground fuel storage tanks and boil ash are located in the basement level boiler room. The
other hazardous materials identified are located throughout the building. The collection and
disposal of these materials shall be conducted under the supervision of Resource Controls and the
materials shall be transported ofT-site for disposal in accordance with applicable regulations.
EXTI-RIOR:
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faivironmental Site Assessment activities identified concentrations of I PH, PAH and metals (lead
and beryllium) above appropriate RIt )KM standards, in addition, an existing, unregistered 5,000-
gailon No. 2 fuel oil underground storage tank (UST) is located adjacent to the northwest comer
of the building.
The Remedial Action Work Plan, prepared by D C International, identified capping as the
appropriate response action for the Site. Under the plans for redevelopment, the majority' of the
contaminated soil at the site will remain below a cap consisting of paved area or one to two feet
of clean fill. Based on requirements for Site grading, some contaminated soil may be removed
and disposed of off-site in accordance with local, state and federal regulations.
The UST present at the Site will be removed by a contractor associated with the RIDEM UST
Program under their supervision.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 1
5 POST OFFICE SQUARE. SUITE 100
BOSTON, MA 02109-3912
January 22, 2010
Robin Stancampiano
Review & Compliance Coordinator
Maine Historic Preservation Commission
55 Capitol Street
65 State House Station
Augusta, ME 04333
Subject: Grono - Webster's Mill, 5 Shore Drive
Initiation of Section 106 Review and Request for Consultation for
Hazardous Substances Cleanup
USEPA Brownfields Grant BF96112001
Dear Ms. Stancampiano:
In accordance with our telephone discussion on January 4, 2010, I am initiating
Section 106 of the National Historic Preservation Act (36 CFR Part 800) review
and asking for your consultation. The EPA has determined that the proposed
Federal action of a partial demolition (complete description is attached) is an
undertaking as described in § 800.16(y) and has the potential to cause effects on
a historic property.
In 2009, the U.S. Environmental Protection Agency (EPA) awarded a $200,000
Brownfields Cleanup grant to the town of Orono to conduct a hazardous
substance cleanup at the former Webster's Mill located at 5 Shore Drive (the
"Site"). The Site was determined to be eligible for nomination to the National
Register of Historic Places by your office in September 2008.
I am attaching a Site plan and a description of the cleanup activities that the
property owner's consultant - Ransom Environmental Consultants, Inc. - has
prepared.
Consistent with § 800.2(d), Evan Richert, of the Planning Department placed an
ad in the local paper announcing that a public meeting would be held. On
January 13, 2010, the public meeting was held where I discussed the Section
106 process in relation to the proposed demolition of the southeast corner of the
building. There were no questions asked or issues raised about this demolition.
Additionally, Ransom and the developer - Developers Collaborative - made
presentations about the cleanup and the future plans for the Site.
Toll Free • 1 -888-372-7341
Internet Address (URL) • http:. 'www,epa gov region1
fieeycledffleEYclabla .Printed Willi Vogatable Oil Based Inks on Recycled Paper (Minimum 30*» Poslconsumerl
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If you have any questions, i can be reached at 61? 918 1248 or at
mctegwn.amweanftepa.ciov.
Sincerely,
f\ , , (y >X\
U'Ux^u^n v|' \L-^^
Amyjeary'McKeown
Brownfields Project Officer
cc: Evan Richert
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^osr-%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 1
5 Post Office Square, Suite 100
BOSTON, MA 02114-2023
February 10, 2010
Chief Brenda Commander
Houlton Band of Maliseet Indians
Littleton, ME 04730
Chief Victoria Higgins
Aroostook Band of Micmacs
8 Northern Road
Presque Isle, ME 04769
Re: Request to Initiate Consultation, Webster's Mill Site, Orono, Maine
Dear Chiefs:
In 2009, the U.S. Environmental Protection Agency (EPA) awarded a $200,000 Brownfields
cleanup grant to the Town of Orono, Maine to conduct a hazardous substances cleanup at the
Webster's Mill Site {the "Site").
I have enclosed a Site Plan and a description of the cleanup activities thai the property owner's
consultant - Ransom Environmental - has prepared.
The Town anticipates beginning this demolition and cleanup project during the spring of 2010.
EPA would like to initiate government-to-govemment consultation with both of the
aforementioned tribes. We would like this consultation to address any cultural and historic
resource issues, pursuant to the regulations implementing Section 106 of the National Historic
Preservation Act (36 CFR Part 800). Your response to this letter, acknowledging your interest in
participating in this undertaking as a consulting party, and in identifying any historic properties
that may exist within the project's Area of Potential Effects (APE), is greatly appreciated. Please
provide a response by March 10, 2010 so that we may discuss this undertaking. We have already
contacted the tribal historic preservation offices of the Passamaquoddy Tribe and the Penobscot
Nation.
If you have any questions, please contact AmyJean McKeown, the EPA project officer for the
Town of Orono's Brownfields grant. She can be reached at mckeown.amviean@,epa.gov or 617-
918-1248.
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Thank you for your time and consideration.
Sincerely.
* •
/ /
i James I ~Owens. Director
i Office of Site Remediation and Restoration
cc: Sharri Venno. Environmental Planner, Houlton Band of Maliscct Indians
Fred Corey, Environmental Health Director, Aroostook Band of Micmacs
Wilkes Harper, Maine DBF (w/o enclosures)
Kwabcna Kyci-Aboayye. EPA Region 1 (w/o enclosures)
Evan Richert, Town of Orono Planning Department (w/o enclosures)
Earl G. Shettleswoith, Jr., Maine Stale Historic Preservation Officer (w/o enclosures)
Robin Stancampui.no, Maine State Historic Preservation Office (w/o enclosures)
2
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Emergency Response Program Guidelines to Implement the National
Programmatic Agreement on Protection of Historic Properties
(Checklist of Procedures is derivedfrom, and is consistent with, the National Programmatic Agreement on
Protection of Historic Properties, 1998)
STEP 1: Receive Notification of Oil Spill or Hazardous Substance Release
STEP 2: Determine if Categorical Exclusions Apply
Releases or Spills Categorically Excluded from Additional National Historic Preservation Act Section 106
Compliance
• Spills/releases onto (which stay on):
o Gravel pads.
o Roads (gravel or paved, not including the undeveloped right-of-way),
o Parking areas (graded or paved)
o Dock staging areas less than 50 years old
o Gravel causeways
o Artificial gravel islands,
o Drilling mats, pads, and/or berms
o Airport runways (improved gravel strips and/or paved runways)
• Releases/Spills into (that stay in):
o Lined pits (e.g., drilling mud pits and reserve pits)
o Water bodies where the spill/release will not (1) reach land/submerged land; and (2) include
emergency response activities with land/submerged land-disturbing components,
o Borrow pits
o Concrete containment areas.
• Spills/releases of:
o Gases (e.g., chlorine gas)
Important Note to Federal On-Scene Coordinators: (1) If you are not sure whether a spill or release fits into one of
the categories listed above; (2) if at any time, the specifics of a spill or release change so it no longer fits into one of
the categories listed above; (3) if the spill is greater than 100,000 gallons; and/or (4) if the State Historic Preservation
Officer or the representative of a Federally-recognized Tribe notifies you that a categorically-excluded spill or release
may have the potential to affect a significant historic property, then these categorical exclusions may not apply.
STEP 3: If Categorical Exclusions do not apply, continue in accordance with the National
Programmatic Agreement and activate Historic Properties Specialist.
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HISTORIC PROPERTIES SPECIALIST CHECKLIST
I lll FOLLOWING STEPS NEED TO BE TAKEN AS APPROPRIATE BY THE
HISTORIC PROPERTIES SPECIALIST FOLLOWING ACTIVATION BY THE
FOSC*:
A.
Identify: (1) historic properties that have been listed in or determined to be eligible for
inclusion in the National Register of Historic Places that might be affected by response
to a release or spill; and/or (2) non-surveyed areas where there is a potential for the
presence of historic properties.
B.
Notify/consult with (as appropriate): *
State Historic Preservation Office
Appropriate CHRIS Information Center
Tribal Historic Preservation Officers, or other tribal land owners or officials
Federal, state, and local landowner(s) and/or land manager(s).
C.
Review (if available) aerial photos or other documentation of the area affected or
potentially affected by the spill or release (this could include digital
photographs/videos taken by on-scene representatives).
D.
If necessary, conduct on-site inspection to determine presence of historic
properties.
E.
Assess whether emergency response strategies have the potential to affect historic
properties and advise the FOSC accordingly. The FOSC shall ensure that response
strategies, including personnel and equipment, are developed to protect historic
properties at risk.
F.
Assess potential effects of emergency response strategies on historic properties, in
consultation with appropriate parties listed above in section B., as needed.
G.
Make arrangements for suspected artifact theft to be reported to the SHPO, law
enforcement officials, and the land owner/manager.
H.
Arrange for disposition of records and collected materials. Make arrangements for
suspected artifact theft to be reported to the SHPO, law enforcement officials, and
the land owner/manager.
I.
Ensure the confidentiality of historic property site location information, consistent
with applicable laws, so as to minimize opportunities for vandalism or theft.
J.
Following activation, brief written activity summaries need to be provided daily by
the Historic Properties Specialist to the FOSC and to the SHPO.
* It should be noted that the FOSC is responsible for ensuring timely notification to the SHPO or THPO and other notifications as
needed (as described above) and should initiate such notifications if an historic property specialist has not yet been activated.
** It should be noted that additional steps may be advisable in more complex incidents. In addition, the identified tasks may
require additional qualified individuals working under the direction/oversight of the FOSC. Qualified individuals may include
Historic Property Specialists working for the Responsible Party.
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DOCUMENTATION OF ACTIONS TAKEN THAT RESULTED IN UNAVOIDABLE INJURY TO
HISTORIC PROPERTIES
This form should be completed and submitted, along with any additional supporting documentation in a reasonable and timely
manner to the appropriate entities listed below:
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