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EPA Superfund cleanup turns messy

Part one

ELEM COLONY, Calif. - When the U.S. Environmental Protection Agency began its Superfund cleanup of fill dirt tainted with mercury within 50 acres of the Elem Pomo Colony, it was a welcomed project, said Jim Brown III, the tribe's administrator.

But his opinion of the $7.3 million project changed when he learned from the tribe's cultural monitors that historic artifacts were popping out of the ground as bulldozers moved and excavated the soil. Dump trucks hauled the waste to the nearby Sulfur Bank Mercury Mine - the area from which it first came.

The monitors were responsible for identifying cultural artifacts and notifying the EPA and tribal council of sensitive areas.

Sandy Thomas, Pomo, and a cultural monitor worked on the project the day it broke ground in June 2006. She said that cultural artifacts and materials surfaced the moment the excavation began. Spearheads, old wooden nails, and fragments of Chinese porcelain bowls and plates were among many of the items.

Thomas said that she told tribal officials to call the archaeologist assigned to the project - but there was no archaeologist on board.

''Before the project began I told them that they had to have an archaeologist there or on call; they figured that we were good enough,'' she said, adding that the monitors' knowledge of archaeology is limited.

Prior to the cleanup, the EPA relocated about 16 families into temporary housing off the reservation. Cultural monitors and workers were the only people allowed on the reservation during the cleanup process.

Meanwhile, Brown decided to do some digging of his own. With the help of archaeologist John Parker, they concluded that the EPA failed to meet requirements of Section 106 of the National Historic Preservation Act. Parker was hired as the archaeologist in late July, and stayed on board for two months.

Section 106 states that ''prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.''

Brown put a call into the Advisory Council on Historic Preservation in September to find out if the EPA violated Section 106. One month later, John Eddins, historic preservationist specialist/archaeologist for the agency, sent a letter to Keith Takata, director of the EPA Superfund division.

In the Oct. 18, 2006, letter, Eddins stated that ''the ACHP has not received any notification of adverse effect for this undertaking'' and that the advisory council ''[has] no correspondence indicating that the Section 106 process has been initiated.''

''The EPA told us that they were exempt from all federal regulations,'' Brown said, referring specifically to the Superfund.

Rick Sugarek, the EPA remedial project manager for the Elem cleanup, said this is true with a few exceptions. He said planners for each project must make a substantial effort to protect the resources of the site they are trying to clean up.

Sugarek added that if the EPA had to obtain permits for each job, it may have to seek approval from countless agencies. This would cause Superfund projects to move at a snail's pace.

The Superfund was created in 1980 when Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act to clean up the nation's uncontrolled hazardous waste sites.

Eddins said in an e-mail that the EPA hasn't responded to the letter, as they are ''investigating the case and will be providing a formal response to ACHP in the near future.''

He explained that the ACHP will determine if Section 106 was violated ''based on the nature of the pollution problem and the nature of the cleanup.''

Raymond Brown, the tribal chairman and Jim Brown's brother, said he was 80 percent satisfied with the job, but thought the contractors could have ''started out stronger'' when it came to protecting his tribe's artifacts.

He said that time and the money being spent on the project likely contributed to the EPA's oversight on certain aspects of the project.

''They wanted to hurry and get things done,'' he said. ''When they took their time we found a lot of artifacts.''

(Continued in part two)