Superfund:

EPA Should Improve the Reliability of Data on National Priorities List Sites Affecting Indian Tribes

GAO-19-123: Published: Jan 23, 2019. Publicly Released: Feb 22, 2019.

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Contact:

J. Alfredo Gómez
(202) 512-3841
gomezj@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

EPA's National Priorities List sites are some of the most contaminated places in the country. They may pose unique challenges for Indian tribes. For example, toxic substances in 2 New York rivers pose a threat to one tribe’s health and its subsistence lifestyle, which includes fishing.

EPA has a policy to consult with tribes if its efforts to deal with these sites may affect them. In some cases, consultation is a legal mandate. However, we found the databases EPA uses to track sites and tribal consultations are sometimes inaccurate.

We made 4 recommendations, including that EPA improve its data and clarify its guidance on consultations.

Remediated areas of the Jackpile-Paguate Uranium Mine in Laguna Pueblo, New Mexico.

Photo of a mined terrace at the Jackpile-Paguate uranium mine site in Pueblo of Laguna, New Mexico

Photo of a mined terrace at the Jackpile-Paguate uranium mine site in Pueblo of Laguna, New Mexico

Additional Materials:

Contact:

J. Alfredo Gómez
(202) 512-3841
gomezj@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

What GAO Found

The Environmental Protection Agency (EPA) does not have reliable data identifying National Priorities List (NPL) sites that are located on tribal property or that affect tribes. Specifically, EPA collects data on whether sites are on tribal property or have Native American Interest (a data variable indicating sites where tribal members or tribal land would be directly affected by the release of hazardous substances), as well as which tribes are associated with NPL sites. However, EPA's data are not always accurate or complete for a number of reasons. For example, EPA can have difficulty identifying some tribal property boundaries, and NPL site boundaries may evolve as the site is investigated and remediated. EPA does not have a regular review process for its data on whether an NPL site is on tribal property. In addition, EPA's guidance for determining whether a site has Native American Interest is unclear, and regions may not interpret it consistently. Without improving its review process and clarifying its guidance, EPA will not have reasonable assurance that its data on tribes that are affected by NPL sites are accurate or complete.

EPA consults with tribes when actions at an NPL site may affect tribal interests, but the agency does not have reliable data on its consultations with tribes. Data from EPA's system for tracking consultation did not include documentation of some consultations that GAO confirmed had occurred. One possible reason that EPA data are incomplete is that the agency's policy is unclear on which interactions are considered consultation and are therefore to be documented in EPA's system of record, which is not consistent with federal standards for internal control. EPA's policy provides a broad definition of consultation and specifies which staff are responsible for determining when consultation may be appropriate. However, the policy does not provide further guidance on the circumstances under which consultation should be considered. For example, it does not specify any specific points in the hazardous substance cleanup process at which consultation should be considered or provide further detail on which tribal interests should be considered when determining if tribal interests on NPL sites are affected. Without clarifying guidance to clearly define circumstances under which consultation with tribes should be considered, EPA cannot have reasonable assurance that it is applying its consultation policy consistently.

EPA has taken various actions to address the unique needs of tribes when making decisions about cleanup actions. These actions include minimizing tribal members' exposure to contaminants because of tribal lifestyle (e.g., greater consumption of local fish and game) and limiting potential damage to culturally important sites. For example, EPA officials said that at one site, they altered the design and route of the roads used to remove contaminated materials to minimize the impact of cleanup activities' on cultural resources. EPA also published a memorandum in 2017 with recommendations on considering tribes' traditional ecological knowledge in the cleanup process if tribes offer it.

Why GAO Did This Study

Superfund is EPA's principal program to address sites with hazardous substances, and some of the most seriously contaminated of these sites are listed on the NPL. Many of these sites can affect Indian tribes or their land. EPA has a policy to consult with tribes when EPA actions or decisions may affect tribal interests, including on cleanup of NPL sites that are on tribal property or that affect tribes.

GAO was asked to analyze NPL sites that are on tribal property or that affect tribes and EPA's consultation with tribes at these sites. This report: (1) examines the extent to which EPA has reliable data identifying NPL sites that are located on tribal property or that affect tribes, (2) examines the extent to which EPA has reliable data on the agency's consultation with tribes regarding NPL sites, and (3) describes the actions EPA has taken to address the unique needs of tribes when making decisions about cleanup actions at Superfund sites. GAO reviewed laws and policies, assessed EPA data on NPL sites, and interviewed EPA and tribal officials about cleanup actions and consultations at six non-generalizable NPL sites selected in part for their geographic diversity.

What GAO Recommends

GAO is making four recommendations to EPA, including that it take actions to improve the data it collects and to clearly define circumstances under which consultation with tribes should be considered. EPA generally agreed with GAO's recommendations.

For more information, contact Alfredo Gómez at (202) 512-3841 or gomezj@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Comments: EPA concurred with our recommendation. EPA stated that during the course of our work on this report, SEMS tribal data was reviewed for quality control and corrections were made to the existing data. In addition, EPA's Office of Superfund Remediation and Technology Innovation plans to create a schedule to review tribal data in SEMS and disseminate tribal data to Superfund regional coordinators annually for their quality assurance review starting in March 2019.

    Recommendation: The Director of EPA's Office of Superfund Remediation and Technology Innovation should develop a regular review process to ensure the quality of Superfund Enterprise Management System (SEMS) data identifying NPL sites on tribal property and revise automated reports used to check the accuracy of SEMS data to include on tribal property data. (Recommendation 1)

    Agency Affected: Environmental Protection Agency

  2. Status: Open

    Comments: EPA generally agreed with our recommendation. EPA noted that there are a variety of circumstances under which a tribe may have interest in a site, and the agency plans to identify relevant criteria in the Superfund Program Implementation Manual that may be used to support the decision of whether or not to apply the NAI indicator. Additionally, the agency plans to create a headquarters and regional workgroup to review and update tribal data collected in SEMS. The workgroup will provide guidance to clarify the NAI determination, including identifying criteria for designating a site NAI, and identifying a process to update SEMS when a tribe is no longer interested in a site, as needed. EPA plans to complete this no later than October 2019.

    Recommendation: The Assistant Administrator of EPA's Office of Land and Emergency Management should clarify guidance to regional offices on how to determine whether sites have Native American Interest (NAI), including by adding criteria for when a site should be designated as having NAI in the SEMS database and how, if at all, to adjust SEMS data if a tribe is no longer interested in a site. (Recommendation 2)

    Agency Affected: Environmental Protection Agency

  3. Status: Open

    Comments: EPA concurred with our recommendation. EPA plans to issue a memo to the regions that clarifies circumstances under which regions may consider tribal consultation for the Superfund program no later than March 2020.

    Recommendation: The Director of EPA's Office of Superfund Remediation and Technology Innovation should clarify agency guidance regarding tribal consultation for the Superfund program to clearly identify the circumstances under which the agency should consider consulting with tribes. (Recommendation 3)

    Agency Affected: Environmental Protection Agency

  4. Status: Open

    Comments: EPA concurred with our recommendation. EPA is planning four actions in response to this recommendation: (1) issuing a memorandum from the Office of International and Tribal Affairs to EPA Regional Administrators on the importance of following EPA's Tribal Consultation and Coordination Policy and documenting consultation actions into TCOTS, estimated to occur in January 2019; (2) issuing a monthly TCOTS report to Deputy Assistant Administrators and Regional Assistant Administrators on the status of consultations recorded in TCOTS, starting in January 2019; (3) initiating trainings specifically targeted to EPA's Regional Superfund staff on when and how to document consultation actions in TCOTS, estimated to begin in February or March 2019; and (4) conducting training on tribal consultation topics, with a specific emphasis on entering consultation information into TCOTS, beginning in March or April 2019.

    Recommendation: The Assistant Administrator of EPA's Office of International and Tribal Affairs should develop or revise existing guidance to clearly direct regional officials to document all invitations to consult with tribes in the Tribal Consultation Opportunity Tracking System database and provide the guidance to those officials. (Recommendation 4)

    Agency Affected: Environmental Protection Agency

 

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