“The PM Northwest Dumpsite Remediation on the Swinomish Indian Reservation:
A Case of Environmental Justice in Indian Country”
Nicholas C. Zaferatos
Huxley College of the Environment, Western Washington University
Draft: April 2005
Key Words
Environmental Justice, US Indian Environmental Policy,
Federal Trust Responsibility, Native American Reservation Planning
The U.S. Environmental Protection Agency (EPA) defines environmental justice as the "fair
treatment for people of all races, cultures, and incomes, regarding the development of
environmental laws, regulations, and policies." Over the last decade, national attention has
focused on the environmental pollution inequity that persists among the nations' poorest
communities. Despite these environmental justice efforts, poor communities continue to face
adverse environmental conditions. With respect to the more than 550 Native American
communities, the struggle to attain environmental justice is not merely a matter of enforcing
national laws, but, also, a matter of the federal duty to protect Indian trust lands and natural
resources, honoring a promise that Native American homelands would be forever sustainable.
Furthermore, the federal policy promises to assist tribes in developing and carrying out their own
reservation environmental policy. The PM Northwest (PMNW) dumpsite site is located on nonIndian land within the boundaries of the Swinomish Indian Reservation in Washington State.
Between 1959 and approximately 1970, PMNW Inc. contracted with the Texaco and Shell Oil
Corporations to dispose of petroleum refinery wastes. In compliance with section 104(e) of the
Comprehensive Emergency Response and Comprehensive Liability Act (CERCLA), the
refineries indicated, in 1984, that hazardous substances from their refinery operations were
disposed of on the reservation site. Even though knowledge about the presence of hazardous
waste material existed since the early 1980s, almost two decades would pass before the
Swinomish tribe was able to convince EPA that a cleanup action under CERCLA was warranted.
This paper reviews the struggle to achieve environmental justice on the Swinomish homeland.
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A ceremony occurred on the morning of December 4, 2002 on the Swinomish Indian
Reservation in Washington State. It was a blessing ceremony to heal the land that once contained
a 7-acre petroleum waste dump. Spiritual leaders from the tribe prayed over the site that had
undergone a $4.5 million cleanup remediation. Members of the tribe extended words of thanks
and appreciation and shared the cedar bough with those that helped to heal their reservation
homelands. It was a humbling ceremony, humbling because the Swinomish people, despite years
of frustration to attain environmental justice on this now blessed site, had only words of thanks
and praise for all those that were present.
The rain that fell on the site during the ceremony now filtered through a layer of newly imported
soil, soil that replaced the excavated hazardous material, soil that could once again replenish the
Swinomish aquifer, an aquifer that was perilously close to becoming contaminated. It was a
reminder of the risks the tribe faced had it not been successful in its two decade effort to
convince the federal government of the necessity for site remediation. Had contamination
reached the aquifer, some of the promises made to the Swinomish People in the 1855 Point Elliot
Treaty might not have been attained -- the promise of a sustainable homeland for the future
generations of Swinomish.
Prior to the enactment of laws regulating the disposal of petroleum byproducts, the Texaco and
Shell Corporations had hired a local contractor to dispose of refinery waste products of an upland
disposal pit on the reservation. In the 1960s such practices were common. Despite an early
federal assessment conducted in the 1980s to assess the site’s eligibility under the Superfund
national priority criteria, the site was not deemed to be eligible. The tribe struggled over the next
two decades attempting to convince the EPA that the site needed to be made a federal priority for
cleanup as it threatened the very existence of the Swinomish people. Under an eventual
agreement that was later signed, the petroleum refineries agreed to finance the clean up costs and
remove 58,760 tons of petroleum waste product and contaminated soil from four disposal ponds
on the Swinomish site.
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Environmental Justice and the Nature of Indian Country
Over the past decade, national concern had emerged to recognize that the nation’s minority
populations and lowest-income communities faced a disproportionate amount of adverse health
and environmental risk (Slade 2000; Stephens 2000). This concern led President Clinton to issue
Executive Order 12898 in 1994 (Clinton 1998), focusing federal action on environmental justice
concerns. EPA responded by developing the Environmental Justice Strategy which sought to
promote justice and equal protection under the law for all environmental statutes and regulations
without discrimination based on race, ethnicity, or socioeconomic status (Hines 2001; Ringquist
1998; Tower 2000). Meaningful environmental justice means that potentially harmed
communities would have an opportunity to participate in decisions that affect their environment
and that their concerns be fully considered in the decision making process (Ferris 1993; Harris
1997; Helfand 1999). Environmental justice is achieved when all people enjoy the same degree
of protection from environmental and health hazards as well as equitable access to the decisionmaking process.
Indian tribes and their reservation communities, however, are distinct from other American
minority communities. In 1832 Chief Justice Marshall declared that Indian tribes are “distinct
political communities having territorial boundaries, within which their authority is exclusive, and
having a right to all the lands within those boundaries, which is not only acknowledged, but
guaranteed by the United States" (U.S. Supreme Court, 1832). The Supreme Court first
recognized the existence of a trust relationship in its earliest decisions regarding the
interpretation of Indian treaties (U.S. Supreme Court, 1831). In almost all of the treaties entered
into between 1787 and 1871, Indians ceded their land territories in exchange for promises,
including the guarantee of a permanent reservation for the tribes and the federal protection of
their safety and well-being. The Supreme Court has held that such promises establish a special
trust relationship. The relationship, characterized as that of a ward to his guardian, brought with
it the continued promise to create "a duty of protection" towards Indians (U.S. Supreme Court,
1886). The necessity for a tribe to exercise control over its territory, therefore, was found to be
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a fundamental and necessary attribute to tribal self-government. The unique relationship
between the United States and Indian tribes has shaped the development of the doctrine of tribal
sovereignty and the federal Indian trust responsibility. The trust relationship is the basis for the
federal protection of Indian lands and resources. It also provides federal aid in order to develop
tribal self-governing capacities to manage reservation resources.
Native American Indian cultures have always had a close and unique relationship with the
natural environment (Roberts 1975; Harmon 1998). The lands, waters and living things which
comprise the environment on Indian lands are integral components of the social, cultural and
spiritual life of Indian people. Further, natural resources management has traditionally been a
central responsibility of tribal governments (Deloria 1984; Lester 1986). Tribal governments
have historically been among the most adamant spokespersons for preserving the integrity of
their environment. In order to maintain this traditional commitment to the protection of the
environment, tribes have exercised their sovereign powers to manage the resources contained
within their reservation boundaries (Deloria 1985; Cornell 1992). They do this by setting
standards for the environmental integrity of their territories, and through the regulation of
activities which may affect that environment. But in order for the tribes to achieve their
environmental goals, they require assistance and support from the federal government in order to
develop the technical and administrative capabilities to effectively operate environmental
management programs.
In recognizing its trust responsibility to tribes and their resources, the United States, in 1983,
finally acknowledged the governmental statutes of Indian tribes and established a “government
to government” relationship policy between the federal government and Indian tribes (AILTP
1988; Ayer 1991)). In November, 1984, EPA published its agency policy for the development
and implementation of tribal environmental protection programs (USEPA, 1983; 1984). The
EPA Indian policy provides the guidance necessary for the administration of environmental
programs on Indian lands:
1.
EPA will work with tribes on a government-to-government basis;
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2.
EPA will recognize tribal governments as the primary authority to implement
federal environmental programs on tribal lands;
3.
EPA will take affirmative steps to assist the tribes in assuming regulatory
responsibility for reservation lands; and
4.
EPA will encourage cooperation between the tribes and the state and local
governments in the implementation of federal environmental programs.
As a trustee of tribal lands and resources, the United States has a duty to ensure that tribes are
able to fulfill the original purposes for which their reservations were first established -- as tribal
homelands -- and to take all reasonable steps necessary to protect trust resources. Under its
fiduciary duties as a trustee for Indian resources, the United States can be held liable for failing
to protect a tribe’s resource (Cohen 1942; 1986). Thus, the federal trust obligation is broad; it
requires the United States to aid tribes in their efforts to protect reservation resources from
damage or degradation (Marx and others, 1993).
EPA policy has also actively resisted the application of state regulatory jurisdiction on Indian
lands. The 9th Circuit Court of Appeals recognized that EPA properly denied Washington’s
State’s assertion of hazardous waste regulatory jurisdiction over reservation environments (State
of Washington 1985). Similar reasoning was applied in other cases where the Court of Appeals
for the 10th circuit affirmed EPA’s authority to implement the underground Injection Control
(UIC) program on Indian lands even before Congress specifically authorized EPA to do so under
the 1986 Amendments to the Safe Drinking Act. In Nance (U.S. Supreme Court 1981), the court
supported EPA’s approval of the Northern Cheyenne tribe’s redesignation of the reservation air
shed from Class II to Class I, even though no express authorization for such action was
mentioned in the federal Clean Air Act. Further, in Blue Legs v. USEPA (U.S. Supreme Court
1987), the court recognized that tribal adoption of an open dumping ordinance under federal
solid waste legislation established tribal authority and responsibility for implementing the federal
program. Tribal governments, therefore, are recognized under federal environmental laws as one
of three sovereigns which comprise this nation (Royster 1987; Suagee 1990). Tribal
governments thus have the opportunity to exercise their sovereign power to protect the health
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and welfare of the reservation population and to preserve the quality of the reservation
environment.
Tribes have made significant progress over the past decade in ensuring that the protections of the
nation’s environmental laws extend to Indian country. The EPA’s 1984 Indian policy has led to
the amendment of several of the nation’s environmental laws that authorize Indian tribes to
assume the primary role for managing their environmental resources (Harris 1997; Lewis 1986).
The authority for tribes to assume the primary role as managers of their environmental resources
affords them the opportunity to implement environmental protection programs that are consistent
with their traditional values. It is difficult for any tribe acting alone to accomplish these goals,
however, especially when faced with the remediation of environmental degradation caused by
non-Indian persons on non-Indian reservation lands (Sanders 1982; Weiver 1990). As sovereign
nations, while Indian tribes retain authority to manage and control their affairs on their
reservations, their authority to extend tribal laws upon non-Indians is often unclear or contested
(Winchell 1995). Tribal authority is based on the dual power of inherent authority as well as
delegated authority by Congress under the environmental statutes. Tribes possess all the powers
of any sovereign state, subject to the overriding legislative power of the federal government. A
tribe, therefore, has the power of self government to “make its own laws and be ruled by them”
(NIPC, 1993; Goeppele, 1990). But in addition to the tribe’s inherent right of self government,
Congress has also, in several instances, delegated civil regulatory authority to Indian tribes.
Several of the federal environmental statutes allow tribes to apply to EPA for “treatment as a
state” (TAS) similarly to the procedure afforded to the states (USEPA 1994; 1995). TAS statutes
allow federal power to be exercised directly by a tribe, and provide grant assistance to help build
the prerequisite tribal technical and administrative capacity necessary to exercise delegated
federal authority under the environmental statutes. TAS programs transfer primary
administrative duties to tribes to act with equal authority as the states over their reservation
territories. Delegated federal power under TAS is especially important when addressing
environmental violations involving non-Indians on non-Indian lands within the reservation,
where the reach of tribal authority alone may not be sufficient to enforce compliance with tribal
laws (Zaferatos 1998).
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Although the EPA retained responsibility of protecting the reservation's environmental quality, it
rarely exercised its obligations. Despite EPA’s adopted Indian policy establishing the tribe's
authority to conduct reservation-wide environmental programs, the authority to delegate
programs to the tribes occurred about two decades after the initial enactment of the
environmental laws. As a result of the exclusion of tribes in the early period of environmental
capacity development, tribal lands were often ignored, the tribal role in the implementation of
federal programs was not clearly defined, and tribal capacity to operate regulatory programs
remained largely underdeveloped.
The Swinomish Tribe’s Environmental Authority
The Swinomish tribe is a federally recognized Indian tribe organized pursuant to the Indian
Reorganization Act (IRA, 1934), and derives its authority from its Constitution and Bylaws. The
Swinomish Indian Reservation is the permanent tribal homeland. The tribe has governing powers
over its reservation lands and resources, and has the right to protect, conserve and restore the
total environment of the lands, air, waters, flora and fauna, and other resources traditional to their
culture. The tribe is also a natural resource trustee under applicable federal law. The tribe has
been regulating land use and water quality within the reservation boundaries since the 1970s and
has established an environmental commission through which it has negotiated an agreement with
EPA under TAS to provide for cooperative management of tribal environmental resources.
Figure 1 here
As the tribes assume greater responsibilities under federal environmental programs, their need to
develop technical capabilities has also increased. States, having received program development
funding from the EPA for over two decades, can provide an important role of support in the
development of tribal programs. In return, the states benefit by assisting in the development of
tribal environmental programs that achieve a greater environmental policy consistency that helps
to overcome problems associated with transboundary issues. The Swinomish tribe has also
entered into a tri-lateral agreement between Washington's Department of Ecology and EPA for
cooperation in administering permit activities under the federal National Pollution Discharge
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Elimination System (NPDES) program that essentially contracts with the state for technical
assistance to support tribal and EPA decisions regarding on-reservation pollution discharge
permits. The EPA retains permit issuance responsibility under the NPDES program until such
time that the tribe enacts its own water quality standards and applies for program delegation. In
addition to protecting public health and safety, tribal economic survival is also dependent upon
the maintenance of reservation environmental quality. Assistance provided under the EPA
Indian policy provides opportunities to strengthen tribal governance over its territory while also
fostering cooperative relations with state and local governments.
History of the PM Northwest Dump Site
The tribe had prioritized the investigation and assessment of potential hazardous environmental
threats to its reservation in its earliest environmental management strategy stemming from
awareness of the historic disposal practices on the reservation that had occurred since the late
1950s. The following summarizes the chronology of events tracing the tribe’s attempt, from
1981 to 2000, to assess the environmental threat to groundwater resources and to obtain federal
assistance to remove the threat to the reservation environment.
Section 103 of the Comprehensive Environmental Response Compensation and Liability Act of
1980 (CERCLA) required industries engaged in the transport and disposal of hazardous waste
material to submit a disclosure report on disposal practices on or before June 9, 1981. Three
industries reported the disposal of materials on the Swinomish Indian Reservation. The Texaco
and Shell Petroleum refineries are located immediately adjacent to the reservation on Fidalgo
Island in Skagit County, Washington. On June 11, 1981, the Texaco Corporation reported
disposing 126,000 gallons of waste to the reservation landfill between 1959 and 1961 and
indicated that there was “no likely suspected releases to the environment.” The Shell Oil
Company reported on June 8, 1981 that its waste disposal between 1960 and 1968 included
refinery wastes that were not tested prior to disposal at the reservation site.
On May 29, 1981, PM Northwest Inc. (PMNW) reported its activities in handling waste
materials collected from the Shell and Texaco refineries since 1958, listing a variety of wastes
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materials including spent catalyst, oil sludge, and spent caustic materials that were disposed in a
landfill site it operated on the reservation. It reported a disposal quantity of 13,000 cu. ft. of
material within its 21.9 acre reservation facility. PMNW operated its disposal site since 1959,
and reported closing the dumpsite thereafter because of financial failure. The disposal pits were
covered over with clean soil in 1967 after not being used for several years. In the disclosure
report, PMNW indicated that “at the present time there was approximately one acre where some
oil has surfaced”. It also reported that there were no homes or wells in the area for at least a mile
in any direction. During the initial investigation, EPA failed to notify or include the tribe in its
activities.
In investigating the potential types of toxicants in the Shell and Texaco waste materials disposed
of on the reservation, the Washington Department of Ecology (WDOE), working in conjunction
with the EPA inquiry, identified the potential for several different types of pollutants, including
aluminum oxide, hydrochloric acid, fluorides, and other hazardous materials. EPA reviewed the
industry disclosure reports and in a correspondence to WDOE, found that “there was not enough
information to make judgment,” recommending that a site visit be scheduled for further review.
EPA records indicated that a site investigation was conducted in June 1981. It noted in its files
that the PMNW site score under CERCLA criteria would likely be “. . . low, and it is likely that
the quantities of heavy metals involved is small,” based, in part, on comments made in the Shell
and Texaco reports. Later, EPA findings revealed a copy of an invoice dated January 6, 1970
from PMNW to Shell listing 939 barrels of waste material and 295 drums that had not been
previously reported on the federal CERCLA section 103 disclosure forms. On October 23, 1985,
EPA sent a letter to the landowners of the PMNW site announcing that additional information
was required to accurately profile the nature and extent of past waste disposal activities at the
site.
In November, 1985, a second on-site inspection occurred as a result of conversations among
EPA, the U.S. Bureau of Indian Affairs, DOE and PMNW. The inspection report concluded that
large quantities of uncharacterized petroleum refinery wastes were disposed at the site. In 1987,
the tribe, having been informed of the inspection by the Bureau of Indian Affairs, sent a letter to
EPA stating that had they not been contacted about the inspection done by the EPA site
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assessment contractor in June 1986 and that, unknown to EPA or to its contractor, the tribe’s
public water supply was located within 1 mile of site. The tribe outlined several concerns: 1) the
PMNW site’s close proximity to the tribe’s ground water source, 2) disposal quantities were still
unknown, 3) tribal members working for both companies between 1960-1970 testified that the
companies disposed large quantifies of caustic liquids in 55 gallon drums into deep pits and later
buried those pits, 4) the potential for groundwater seepage contaminating both the reservation
aquifer as well as adjacent marine wetlands, and 5) the assurance that the tribe would be directly
involved with all further studies. The EPA site investigation report identified the existence of 3
surface ponds with limited information regarding the ponds’ contents. This prompted the tribe to
request EPA to conduct soils and groundwater testing. In response, in 1986, EPA conducted a
limited soils and groundwater sampling investigation and concluded that measurable amounts of
several petroleum products existed in the soils. However the potential for groundwater
contamination was still unknown. EPA refused to further consider the site as a candidate for the
Superfund program due to the petroleum exclusion provision in CERCLA.
In a letter to EPA, the tribe requested that additional hazardous site analysis be conducted to
fully evaluate the potential threats to the reservation environment. This request was in response
to the recommendations contained in the EPA report that concluded that no further actions under
CERCLA were needed to be taken and that no further Superfund actions should be considered.
In a later correspondence to the tribe on April 4, 1990, EPA suggested that the tribe should
approach the Bureau of Indian Affairs for assistance in conducting groundwater studies and
insisted the site was not eligible for NPL listing or superfund assistances. In response to
repeated tribal requests for investigative action, EPA notified the tribe in November 23, 1990
that it had sent a notification letter to PMNW requesting additional information pursuant to
CERCLA and RCRA. The letter requested PMNW to identify the chemical characterization of
all hazardous substances disposed at the site, and for each hazardous substance, to identify how
they were handled by providing a shipping manifesto along with any environmental
investigations that may have been conducted relevant to the site.
On January 4, 1991, the tribe notified EPA that it had failed to properly inform and involve the
tribe in the original 1986 site investigation, which resulted in the exclusion of tribal testimony.
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The tribe emphasized in its letter that by excluding the tribe, EPA failed to recognize tribal
jurisdiction and interests over reservation public health and welfare. The tribe requested EPA to
recognize its fiduciary responsibilities pursuant to its federal trust relationship, and demanded
that EPA undertake a more complete site investigation under CERCLA. On February 1, 1991,
the EPA Regional Director rejected the tribe’s concerns that data collected during the 1986 EPA
site inspection was insufficient and explained that the site inspection was intended only to obtain
information necessary to determine a hazard ranking score, and was “not meant to provide a
complete characterization of the site.” He further stated that since it appeared the PMNW dump
site was not eligible for NPL listing, Superfund resources would not be an available option to
meet the tribe’s request to fund the remediation of the site.
In several ongoing correspondences occurring between 1991 and 1995, the tribe continued to
restate its concerns regarding the threat to the reservation ground water supply, and demanded
that measures be taken to guarantee that the reservation ground water quality was fit for human
consumption. In response, in 1995 EPA sent a letter to Texaco stating that “USEPA obtained
information indicating the presence of hazardous substances within the material disposed at the
PMNW site, as defined by Section 101 of CERLA, which provided the long awaited formal
notification to the refinery of its potential liability as defined under CERCLA (section 107(a)).
The notification requested additional information concerning materials disposed at the site,
including materials contained in the drums that were reported to be disposed at the site.
In late 1996, EPA agreed to the tribe’s request and authorized its site contractor to perform
further site investigation. Site characterization was further defined in May 1997, when EPA
conducted an emergency removal assessment, including subsurface sampling in 12 test pits
within the approximate boundaries of the disposal ponds on the site. The samples were analyzed
for VOCs, SVOCs, metal and TPH. Numerous contaminants were detected with some exceeding
the Washington State Model Toxics Control Act (MTCA) cleanup standards. Based upon the
petroleum exclusion provision of CERCLA, EPA concluded that the site would not qualify under
CERCLA when the consultant’s technical report findings, released in July 16, 1997, concluded
that benzene exceeded the cleanup standard level for protection of groundwater in 3 samples;
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xylene exceeded cleanup level for groundwater in 1 sample; total petroleum hydrocarbons (TPH)
exceeded cleanup level in 6 samples; and TPH – diesel exceeded cleanup in 9 samples.
Upon review of the report findings, on July 29, 1997 the tribe requested EPA to conduct further
analysis for the detection of solvents, including tecnol, and cyanide, zink, nickel, and cadmium,
metals that are often associated with refinery wastes. The tribe noted that the consultant’s
preliminary data showed very high levels of diesel petroleum hydrocarbons and benzene, xylene,
and other volatiles. The limited excavation did not uncover the drums, however, which had been
reported to have been disposed of at the site by the tribal members working for the refineries at
the time. In response to the tribe’s letter of August 5, 1997, EPA communicated to the tribe that
based on its preliminary review of the consultant’s data, it did not see further work warranted
because “the primary contaminant is oil related product” and no surface waters are affected or
directly threatened by the site. The EPA further recommended that the matter be referred to
Washington Department of Ecology for possible corrective action under MTCA rules.
Figure 2
Because the EPA failed to proceed with further investigations, the tribe secured a bid and
arranged for its own contractors to conduct a magnetic survey to detect evidence of buried
drums. The tribe’s research included the careful review of aerial photographs of the site between
the years 1960 – 1975. The aerials provided clear evidence of the location of four, disposal
ponds, where only three had been previously believed to exist. Using geographic information
systems (GIS) mapping, the tribe was able to pinpoint the coordinate locations for the four
ponds, and worked with the contractor to establish a survey grid. Global positioning equipment
located the coordinates on the ground. The magnetic survey conducted in October 1997 detected
the presence of several clusters of magnetic anomalies over several of the buried disposal ponds.
The findings provided persuasive evidence of the probable existence of the buried drums. In a
subsequent meeting with the EPA Regional X Director, the tribe presented its findings and again
requested further EPA investigation in order to recover the buried drums in the disposal ponds
and test the contents of the drums.
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In a meeting with the tribe on February 1998, EPA agreed to locate and uncover the buried
drums and sample for toxic materials, and to further investigate the possible contamination of
ground water in the site vicinity. This was the critical meeting between the tribe and EPA when
the Regional Director finally agreed to support the tribe in its efforts to fully assess the site under
CERCLA rules. EPA also agreed to conduct its relationship with the tribe under the EPA
government to government policy. EPA also agreed to the tribe’s request to expand the sampling
investigation in order to detect the presence of PCBs and Chlorinated organics to characterize the
presence of compounds in the groundwater system. Subsequent data collected at the site as a
result of tribal request showed the presence of a variety of hazardous substances, which later led
the USEPA Region 10 Office of Regional Counsel to conclude that a federal response to the site
is not limited by the petroleum exclusion provision under CERCLA.
The agreed action, to proceed with further EPA investigation in cooperation with the tribe, was
formalized in an agreement that was drafted by the tribe. During 1998 and 1999, EPA conducted
an Integrated Site Assessment (ISA) to determine the need for a site clean up response action.
The site assessment involved the collection of samples from the former disposal pond areas and
from target areas potentially impacted through contaminant migration. Samples collected from
the former disposal ponds in June 1998 included aliquots from 11 excavated containers and
several samples from sludge material surrounding the drums. A total of 36 soil, sludge, or
product samples and six infiltrated groundwater samples were collected. During a subsequent
sampling phase in late 1998 and early 1999, samples were collected from monitoring wells, the
tribal municipal well, the perimeter of the dump site, and the wetland area east of the dump site.
A total of 22 ground water, five surface water, 22 sediment and 24 samples were collected.
Figure 3
The ISA recovered several buried drums and documented the release of hazardous substances at
the site. Future response activities for the site included the removal of hazardous substances for
off-site disposal at a RCRA approved hazardous waste management facility, additional
characterization of groundwater contamination, implementation of a response action to address
ground water problems, and investigation and implementation of response actions for hazardous
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substances that have migrated away from the PMNW property. EPA agreed to further evaluate
the site for placement to the National Priorities List (NPL) pursuant to Section 105 of CERCLA.
Results from ISA activities included the following findings:
Table 1. Integrated Site Assessment Findings
Sample Location
Federal or State Standards
Sampling Results and Exceedance Levels
Disposal pond surfaces and
Region 9 soil PRGs, EPA
Benzene (94,000 ug/kg),
subsurface soils, sludge and
MCLs, or MTCA Method A
Benzo[a]-anthracene (100,0000 ug/kg), Carbon
drum contents
Soil Cleanup Levels
Tetrachloride (2200 ug/kg), Mercury (7900
gu/kg),
Naphthalene (1,300,000 ug/kg),
1,3,5-Trimethyl-benzene (540,000 ug/kg),
Benzo[b]-fluoranthene (5,700 ug/kg),
Benzo[a]-pyrene (200,000 ug/kg),
Carbazole (200,000 ug/kg),
Chrysene (300,000 ug/kg),
1,2,4-Trimethyl-benzene (950,000 ug/kg), 1,3,5Trimethyl-benzene (540,000 ug/kg),
1,2-Dibromo-3-chloropropane (25,000 ug/kg),
2,6-Dinitrotouluene (300,000 ug.kg),
n-Nitrosodium-phenylamine (1,000,000 ug/kg),
Tetrachloroethene (28,000 ug/kg),
Arsenic (26,000 ug/kg),
Cadmium (3,800 ug/kg),
Chromium (2,700,000 ug/kg),
Lead (330,000 ug/kg).
Total Petroleum Hydrocarbon (TPH) standard
was exceeded in 33 of 37 samples collected from
the identified source areas.
Groundwater samples from
Region 9 PRGs (tap water),
Benzene (650 ug/l),
monitoring wells
EPA MCLs or MTCA A
Benzo[b]-flouranthene (5 ug/l),
Protection of Groundwater
bis(2-Ethylhexyl)-phthlate (20 ug/l),
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Cleanup Levels.
Naphthalene (45.4 ug/l),
1,3,5-Trimethyl-benzene (280 ug/l),
Dibenzofuran (43 ug/l), Chrysene (23 ug/l),
Ethylbenzene (140 ug/l),
1,2,4-Trimethyl-benzene (570 ug/l),
Methylene Chloride (23 ug/l),
Toluene (910 ug/l),
Vinyl Chloride (2 ug/l),
Antimony (20.6 ug/l),
Barium (2,200 ug/l),
Chromium (410 ug/l),
Lead (7.51 ug/l).
Surface water samples
Ambient Water Quality
Arsenic (13.7 ug/l),
collected from locations in
Criteria, or MTCA B Surface
Aluminum (6790 ug/l), Copper (47.9 ug/l),
and near the adjacent
Water Cleanup Levels
Iron (53,900 ug/l),
wetland area
Lead (130 ug/l),
Mercury (0.14 ug/l),
Nickel (31 ug/l).
Sediment samples collected
MTCA Sediment Quality
from locations in and near
Standards
Cadmium (8.85 ug/kg).
the adjacent wetlands area
Other volatile organic, semi-
Detected substances below
VOCs and SCOVs are not naturally occurring
volatile organic compounds
screening or regulatory levels
chemicals and should not be present. Detected
and metals detected in the
metals exceeded background concentrations.
various media sampled at
the Site.
On April 25, 2000, EPA urged the responsible parties to voluntarily enter into negotiations with
for the performance and financing of a cleanup response action under CERCLA.
Figure 4
The Cleanup Agreement
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EPA negotiated a Memorandum of Agreement (MOA) with the Tribe that set forth the working
relationship, roles and responsibilities between EPA and the tribe (USEPA 2000a). EPA would
act as the lead agency for site cleanup activities working in consultation with the tribe. The tribe
also would be a signatory to an Administrative Order on Consent (AOC) with respect to cleanup
activities at the PMNW site (USEPA 2002b). The mutual commitments made by the tribe and
EPA to work together to satisfy the goals of the agreement are summarized in Paragraph IV.2 of
the MOA as follows:
EPA will consult with the tribe with respect to (1) all major decision points, broad issues,
and overall results regarding the Site and (2) other matters regarding the Superfund
process concerning the Site which the parties may agree are of significance to the tribe as
discussed during their periodic meetings or other communications.
As used herein, “consult” was defined as the process of seeking, discussing, and considering the
views of the tribe at the earliest time in EPA Region 10’s decision making. Consultation means
more than simply providing information about what the agency is planning to do and allowing
comment. Rather, consultation means ongoing two-way communication that works toward a
consensus reflecting the concerns of the tribe.
The AOC provides that the tribe shall be treated as a state under section 126 of CERCLA with
respect to implementation of response actions. The tribe’s role as a state, together with EPA’s
obligations to deal with the tribe on a government to government basis, are controlling under the
agreement. The tribe was directly involved in all aspects of the site clean up work, including
overseeing field work and commenting on work products and deliverables. The tribe had
retained a consultant to assist in reviewing work products and deliverables under the AOC. Since
EPA did not allocate resources for contractor support at the site, EPA relied on the expertise of
the tribal staff and its consultants as the work proceeded.
The cleanup agreement between EPA, the tribe, and the responsible parties provided for the
complete cleanup of the site. The response was to be conducted in two phases. Phase 1 involved
Environmental Justice in Indian Country. 3/2/2016
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contaminant source removal as a “time-critical removal action” (TCR). Phase 2, a “non-time
critical removal action” (NTCR), assessed the potential risk to off-site properties and evaluated
further EPA response actions. The Phase 2 investigation would be conducted following
completion of the Phase 1 TCR action.
Figure 5
Conclusion and Lessons Learned
The MOA that was executed with the tribe provided a framework for good faith government to
government coordination for the CERCLA response activities conducted at the reservation PM
NW site, and ensured that EPA fulfill its trust responsibilities to consult with the tribe prior to
taking action that affected tribal reservation resources. The MOA also established procedures for
consulting with the tribe under the provisions of the AOC. The MOA identified each
government’s role and responsibility relating to the remedial actions that occurred at the site.
The MOA further created a consultative relationship between EPA and the tribe consistent with
the EPA Indian policy. In accordance with that policy, EPA recognized the tribe as the primary
party for setting standards, making environmental decisions, and managing programs affecting
the reservation, and the health and welfare of the reservation population. Although the tribe has
an inherent right to take unilateral enforcement action under its own authority, it agreed that
EPA, as the federal trustee over the reservation environment, should assume the lead agency role
for undertaking Superfund response activities at the site. The MOA did not modify, diminish, or
alter the rights and entitlements of the either the tribe or the EPA. The tribe’s participation in the
Agreement and in the Superfund process did not constitute a waiver of sovereign immunity by
the tribe. The MOA was intended to facilitate intergovernmental coordination between the
parties.
As an Environmental Justice Initiative, from 1986-2003 the tribe was successful in its efforts to:

Prove the existence and risk to human health and to the environment, of an uncontrolled,
abandoned hazardous waste disposal site located on the reservation,
Environmental Justice in Indian Country. 3/2/2016
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
Assist the EPA, through persistence, to advance tribal sovereignty as well as the
agencies’ federal trust responsibilities,

Join with EPA, Shell Oil Company, Texaco, Inc., and PM Northwest, Inc. as signatory to
AOC ordering the remediation of the site,

Become an active cleanup participant, as a consulted government, under the terms of the
Agreement with EPA, and

Expand tribal self-governance capacity by acquiring staff and consultants to negotiate
cleanup standards, oversee remediation activities, and support investigations of off-site
contaminant migration.
Because the cleanup project began a decade prior to Executive Order 12898 which requires EPA
to develop its environmental justice strategy, the assertion of sovereignty and trust responsibility
in the cleanup effort was fraught with delays, frustrations and difficulties. However, in addition
to the successful implementation of site cleanup activities, the process helped EPA to better
come to terms with the meaning of its own Indian policies, and helped the tribe to develop
greater environmental program management capacity. Through persistence, relationship
building, and the establishment of mutual expectations in formalized agreements, human health
and the environment on the Swinomish Indian reservation were protected. Because the
reservation is essentially an island surrounded by saltwater, the reservations’ sole-source
groundwater aquifer and adjoining wetlands and tidal areas could potentially have been
significantly degraded by migration of contaminants from the disposal site had the cleanup
action not occurred.
As an environmental justice initiative, the primary challenge facing the tribe was to assert its
own sovereignty and its interests in order to persuade EPA to acknowledge its legal
responsibilities as a federal trust agency. From 1981 to 1986, site investigation activities
conducted by EPA and its consultants occurred in the absence of any involvement by the tribe.
Indeed, even the Washington State Department of Ecology was included in the process, without
tribal knowledge. In 1986, after EPA announced that no cleanup actions were required, the tribe
was finally notified. When the tribe protested EPA’s findings and decisions, the potential of risk
Environmental Justice in Indian Country. 3/2/2016
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to tribal resources was repeatedly minimized. The tribe, however, was diligent in its efforts. In
order to prove that environmental risk was present, other federal agency support was solicited.
Tribal leaders lobbied continually on a government-to-government basis, from 1987 until 2000,
when the agreement providing for site cleanup was finally reached.
The experience resulted in
several important outcomes:

Protection of human health and the environment through the excavation and off-site
disposal of 58,790 tons of hazardous materials,

Protection of human health and the environment through the negotiation of residual soil
cleanup standards that exceeded state requirements by 30%,

Confirmation that potential off-site contaminant migration does not present a risk to
human health and the environment,

Expanded tribe’s environmental management capacity to collaborate on a technically
equal basis with EPA during the cleanup process, that later enabled the tribe to manage the
closure of a large reservation solid waste landfill, clean up other abandoned reservation waste
sites, and participate in regional waste management initiatives.

Assertion of tribal sovereignty that led to federal agency performance consistent with the
federal trust responsibility,

Negotiation of the MOA and AOC defining the government-to-government relationship
governing the clean up program, and

Reimbursement of 13 years of costs related to tribal efforts to implement cleanup of the
PMNW site.
The project demonstrated that tribal technical capacity can be developed at a high level of
qualification, and that the involvement of tribal government in the environmental cleanup
process can contribute to the success of the project. Following an almost twenty year effort to
engage the resources of EPA as a trustee of the reservation environment, the cleanup
investigations and cooperative management activities became a model of technical and political
collaboration.
Environmental Justice in Indian Country. 3/2/2016
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And consistent with tribal cultural traditions, a proper closure to the project occurred during the
‘Blessing of the Land’ ceremony. It was a cultural sharing, healing and recognition process that
included over 70 individuals representing the tribe, EPA, the refineries and the property owner,
contractors, and the local and regional media. Hosted by the tribal chairman and supported by
Swinomish spiritual groups, under a tent in the woods during a Pacific Northwest rain, the
process concluded with a show of appreciation, recognition, and remembrance of the reasons
why everyone was brought together. As one oil company representative expressed:
" …in combined effort with the tribe, EPA, the oil companies and the landowner,
environmental mistakes of the past were corrected, cleaned up and healed. I wish to
thank all of those who took an active part and particularly the tribe for their
graciousness and for teaching us something about the sacredness of the land.”
The environmental justice experience on the Swinomish Indian Reservation demonstrates how
tribal self-determination and tribal capacity building is necessary in order to bring about
environmental justice in the most marginalized segment of the American landscape – Indian
Country. The experience not only removed the environmental conditions that threatened the long
term survival of the tribal community, but it also helped foster a meaningful partnership between
the tribe and the federal trustee to cooperatively manage the reservation environment.
Environmental Justice in Indian Country. 3/2/2016
Page 20
Acknowledgements
The author wishes to acknowledge several of the many people who were responsible for
pursuing the tribal environmental justice effort and carrying out the eventual cleanup action on
the Swinomish Indian Reservation: WaWalton, former tribal chairman, Brian Cladoosby, tribal
chairman, Lorraine Loomis, tribal natural resources director, Jim Wilbur and Larry Campbell,
Swinomish Environmental Commission, Lauren Rich, tribal environmental planner, Charlie
O’Hara, tribal planning director, Allan Olson, tribal general manager, Sharon Haensley, tribal
attorney, Steve Roy, Bureau of Indian Affairs, Chuck Clarke, USEPA Region 10 Regional
Director, and Rich McAlister, USEPA attorney,
Environmental Justice in Indian Country. 3/2/2016
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Literature Cited
BOLD MEANS NEED REFERENCE IN TEXT
American Indian Law Review (AILR). 1982. “Zoning: controlling land use on the checkerboard:
the zoning powers of Indian tribes after Montana v. United States.” American Indian
Law Review 10.
American Indian Lawyer Training Program, Inc. (AILTP). 1988. Indian Tribes as sovereign
governments. Oakland, CA.
Ayer, M. Francis. 1991. Meaningful implementation of the government-to-government relationship between each
Indian tribe and the United States: A concept paper. National Indian Policy Center, Washington, D.C.
Bryant, B. (ed) (1995). Environmental Justice: Issues, Policies, and Solutions. Washington, DC:
Island Press.
Bryant, B., and P. Mohai (eds). (1992). Race and the Incidence of Environmental Hazards: A
Time for Discourse. Boulder: Westview Press.
Bullard, R.D. (ed). (1993). Confronting Environmental Racism: Voices from the Grassroots.
Boston: South End Press.
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
(Superfund), 42 U.S.C. 9610 et. Seq.
Clinton, William, President. 1998. Executive order on consultation with Indian Tribal
governments. Federal Register: May 19, 1998, 63:96. Presidential Documents, 2765527657.
Cohen, Fay G. 1986. Treaties on trial: The continuing controversy over Northwest Indian rights.
University of Washington Press, Seattle, WA.
Cohen, Felix S. 1942. Felix S. Cohen's handbook of federal Indian law. U.S. Government
Printing Office, Washington D.C.
Cornell, Stephen, and Joseph P. Kalt. 1992. What can tribes do? Strategies and institutions in
American Indian economic development. American Indian Studies Center. University of
California, Los Angeles
Environmental Justice in Indian Country. 3/2/2016
Page 22
Deloria, Vine, Jr. 1985. American Indian policy in the twentieth century. University of
Oklahoma Press, Norman, Ok.
Deloria, Vine, Jr., and Clifford M. Lytle. 1984. The nations within: The past and future of
American Indian sovereignty. New York: Pantheon.
Faber, D. (ed). (1998). The Struggle for Ecological Democracy: Environmental Justice
Movements in the United States. New York: The Guilford Press.
Ferris, D. 1993. “A broad environmental justice agenda: Mandating change begins at the federal
level.” Maryland Journal of Contemporary Legal Issues 5:115 - 127
Goeppele, Craighton. 1990. “Solutions for uneasy neighbors: regulating the reservation
environment after Brendale v. Confederated Tribes and Bands of Yakima Indian Nation.”
Washington Law Review, 65, 2: 417-36.
Goldtooth, T. B. K. (1995). Indigenous nations: Summary of sovereignty and its implications for
environmental protection. In B. Bryant (ed) Environmental Justice: Issues, Policies, and
Solutions (pp 138-148). Washington, DC: Island Press.
Harmon, Alexandra. 1998. Indians in the making: ethnic relations and Indian identities around
Puget Sound. University of California Press, Los Angeles.
Harris, S.G. B.L. Harper. 1997a. “A Native American exposure scenario.” Risk Analysis. 17:6,
789-796.
Harris, G.R. 1997b. “A social critique of environmental justice.” Journal of the American
Planning Association, 63:1, 149.
Helfand, G.E. L.J. Peyton. 1999. “A conceptual model of environmental justice.” Social Science
Quarterly March. 80:1, 68-83.
Hines, R.I. 2001. “African Americans' struggle for environmental justice and the case of the
Shintech plant - lessons learned from a war waged.” Journal of Black Studies, 31:6, 777789.
Indian Reorganization Act (IRA) of 1934, Section 16 (25 USC 476 et. seq.).
Environmental Justice in Indian Country. 3/2/2016
Page 23
Kuehn, Robert R. (2000). “A Taxonomy of environmental justice”. 30 Environmental Law Rep.
10581.
LaVelle, John P. (2001). “Rescuing Paha Sapa: Achieving Environmental Justice by Restoring
the Great Grasslands and Returning the Sacred Black Hills to the Great Sioux Nation.” 5
Great Plains Natural Resources Journal 40.
Lester, David. 1986. “The environment from an Indian perspective.” Environmental Protection
Agency Journal 27, 12:1.
Lewis, Jack. 1986. “An Indian policy at EPA.” EPA Journal, 12: 23-26.
Kuehn, Robert R. (2000). “A Taxonomy of Environmental Justice”. 30 Environmental Law Rep.
10581.
LaVelle, John P. (2001). “Rescuing Paha Sapa: Achieving Environmental Justice by Restoring
the Great Grasslands and Returning the Sacred Black Hills to the Great Sioux Nation.” 5
Great Plains Natural Resources Journal 40.
National Environmental Justice Advisory Committee (2000). “Indigenous Peoples
Subcommittee. Guide on Consultation and Collaboration with Indian Tribal Governments
and the Public Participation of Indigenous Groups and Tribal Members in Environmental
Decision Making.”
http://www.ejrc.cau.edu/compliance/resources/publications/ej/ips_consultation_guide.pdf
Native American Rights Fund. 1988. "Draft concept paper for the consideration of the
establishment of an Indian environmental entity." Boulder, Co.: NARF.
National Indian Policy Center. 1993. Tribal participation in the making of federal Indian law and
policy under the proposed National Commission of Native American Government’s
Recognition Act. Douglas B. L. Endreson, ed. Washington, D.C.
Newton, D. E. (1996). Environmental Justice: A Reference Handbook. Denver: ABC-CLIO.
Pulido, L. (1996). “A critical review of the methodology of environmental racism research.”
Antipode 28:142-159.
Environmental Justice in Indian Country. 3/2/2016
Page 24
Ringquist, E.J. 1998. “A question of justice: equity in environmental litigation.” Journal of
Politics, 60:4, 1148-1165.
Roberts, Natalie Andrea. 1975. A History of the Swinomish Tribal Community. Ph.D., University
of Washington, Seattle, WA.
Royster, Judith B., and Fausett, Rory Snow Arrow. 1981. “Control of the reservation
environment: tribal primacy, federal delegation, and the limits of state intrusion.”
Washington Law Review, 64:581.
Sanders, Allen H., and Robert L. Otsea, Jr. 1982. Protecting Indian natural resources: a manual
for lawyers representing Indian tribes or tribal Members. Native American Rights Fund.
Boulder, Co.
Shrader-Frechette, K. (1996). “Environmental Justice and Native Americans: The Mescalero
Apache and monitored retrievable storage. Natural Resources Journal 35:703-714.
Slade, B.A. and L. Cowart. 2000. “Are minority neighborhoods exposed to more environmental
hazards? Allegations of environmental racism.” Real Estate Review, 30:2, 50-57.
State of Washington. 1985. State of Washington, Department of Ecology v. EPA, (752 F. 2d
1465, 9th Cir.).
Stephens, P. H. G. 2000. “Andrew Dobson, justice and the environment: conceptions of
environmental sustainability and dimensions of social justice.” Environmental Politics,
9:4, 174.175.
Suagee, Dean B. 1990. The application of the national environmental policy act to development
on Indian lands. Albuquerque, N.M.: American Bar Association Section of Natural
Resources.
Suagee, Dean (1994). Turtle’s war party: An Indian allegory on environmental justice. Journal of
Environmental Law and Litigation 9:461-497.
Suagee, Dean (1999). “The Indian country environmental justice clinic: from vision to reality.”
Vermont Law Review 23:567-604.
Environmental Justice in Indian Country. 3/2/2016
Page 25
Suagee, Dean B. (2002). “Dimensions of Environmental Justice in Indian Country and Native
Alaska. http://www.cjrc.cau.edu/summit2/IndianCountry.pdf
Towers, G. 2000. “Applying the political geography of scale: grassroots strategies and
environmental justice.” Professional Geographer, 51:1, 23 - 36
Tsosie, Rebecca (1996). Tribal Environmental Policy in an Era of Self-Determination: The Role
of Ethics, Economics, and Traditional Ecological Knowledge.” 21 Vermont Law Review
225.
United States Environmental Protection Agency. 1983. Administration of Environmental
Programs on Indian Lands. US Environmental Protection Agency, Washington, D.C.
United States Environmental Protection Agency. 1984. Indian policy implementation guidance.
US Environmental Protection Agency, Washington, D.C.
U.S. Supreme Court. 1831. Cherokee Nation v. Georgia (30 U.S. 1).
U.S. Supreme Court. 1832, Worcester v. Georgia. 31 U.S. (6 Pet.) 515, 557.
U.S. Supreme Court. 1987. Blue Legs v. US Environmental protection Agency, 668 F. Supp.
1329 (D.S.D).
U.S. Supreme Court. 1988. Brendale v. Confederated Tribes and Bands of Yakima Indian
Nation. 492 U.S. 408, 106 L. Ed. 2d 343, 109 S. Ct. 2994, 1988.
U.S. Supreme Court, 1886. U.S. v. Kagama, 118 U.S. 375, 384.
U.S. Supreme Court, 1981. Nance v. EPA (645 F.2d 701).
USEPA. 2000a. Superfund memorandum of agreement between the Swinomish Indian tribal
community and the USEPA regarding tribal consultation during implementation of the
superfund program.
US Environmental Protection Agency. 2000b. EPA Docket No. CERCLA-10-2000-0186.
U.S. Environmental Protection Agency. 1984. EPA Policy for the Administration of
Environmental. Programs on Indian Reservations.
U.S. Environmental Protection Agency. 1995. Final EPA/Tribal Agreements Template. March
13, 1995. http://www.epa.gov/indian/agree.htm
Environmental Justice in Indian Country. 3/2/2016
Page 26
Walker, Jana L., et. al. (2002). A Closer Look at Environmental Justice in Indian Country.” 1
Seattle J. for Social Justice 379.
Wood, Mary Christina (1994). “Indian Land and the Promise of Native Sovereignty: The Trust
Doctrine Revisited,” Utah Law Review 1471.
Wood, Mary Christina (1995a). “Fulfilling the Executive’s Trust Responsibility Toward the
Native Nations on Environmental Issues: A Partial Critique of the Clinton
Administration’s Promises and Performance,” 25 Environmental Law 733.
Wood, Mary Christina (1995b). “Protecting the Attributes of Native Sovereignty: A New Trust
Paradigm for Federal Actions Affecting Tribal Lands and Resources,: Utah Law Review
109.
Weiver, Tim. 1990. Brendale: Checkerboards, land and civil authority: managing the reservation
environment. The Indian Law Section. Washington State Bar Association, Seattle, WA.
Winchell, Dick G. 1995. “Tribal sovereignty as the basis for tribal planning.” Indigenous
Planners 1:1-4.
Zaferatos, Nicholas C. 1998. “Planning the Native American tribal community: understanding
the basis of power controlling the reservation territory.” Journal of the American
Planning Association. 64:4: 395-410.
Environmental Justice in Indian Country. 3/2/2016
Page 27