Feature
Section 106: Review process well laid out
The finding of historic artifacts or even a gravesite on a construction site makes for big headlines. Often times, the story becomes one of development stalled by sensitive cultural issues and resources that potentially could be lost to modern day progress.
However, thankfully, that doesn’t happen very often, says Russell Holter, a compliance reviewer for Washington’s Department of Archaeology and Historic Preservation. Holter’s office conducted 7,000 federal reviews last year, the vast majority of which were completed within 30 days and many within a week. About 95 percent of those projects were determined to have no adverse effects on cultural resources, he says.
“It’s the other 5 percent that makes headlines,” Holter says.
The National Historic Preservation Act was enacted more than 40 years ago to protect our nation’s cultural and historic resources. Any project that receives federal funding must complete a Section 106 review process of the National Historic Preservation Act. It requires that to receive federal money, substantive, technical information must be brought into the process for informed decision making. This can require consultation with several parties, including the state historic preservation office (SHPO), cities, counties, tribes, nonprofits with an interest in a project, and the public.
In the past, some state officials have expressed frustration with Section 106, saying they need more timely reviews and more solid cost projections for developers. It also isn’t inconceivable, in some states, that all archaeologists performing the reviews would be tied up, making the process even longer. The flow of communication also can be difficult when outside parties get involved.
Today, Section 106 really is well laid out, Holter says. It’s only when a project is determined to have adverse effects on its cultural resources that the process can get convoluted.
Navigating your way through Section 106 has become easier, agrees John Means, brownfields grant manager for the Washington State Department of Ecology. Yet it’s an important process, he adds.
“As to the tribal notification aspect, it’s wise to remember that we are, in many cases, dealing with sovereign governments,” Means says. “In our rush to push projects through, we tend to forget that there are other people who may have an entirely different perspective, and have a longer visionary range. Each tribal entity may have different perspective and processes. It boils down to, in my opinion, respect and justice that are backed up by very powerful law.”
Still, after 40 years, many people don’t understand that they’re required to complete a cultural resource survey for their projects, says Holter, who’s traveled throughout Washington and Oregon to provide training programs on Section 106. In the case of brownfields, these surveys can be especially important because often the issues aren’t above ground but below ground. Important resources can be lost when mitigation occurs, such as the removal of contaminated soil.
The consultative process is as follows:
- It’s the application for federal funds that triggers Section 106. If the project is a type of activity that could affect historic properties--properties that are included in the National Register of Historic Places or meet the criteria for the National Register--then the appropriate SHPO or tribal historic preservation office (THPO) is identified. The role of the SHPO/THPO is to reflect the interests of the state and its citizens in the preservation of cultural heritage. If it’s determined that the activity has no potential to affect historic properties, the process ends.
- If the project could affect historic properties, how the federal money will be spent must be defined (called the scope of work) and a map of the scope of work and its area of potential effect is made. The agency consults with the SHPO and other groups affected. A cultural resource survey is completed by a professional who has a master’s degree in a related field. If no historic properties are present or affected, the process ends.
- If there are found to be historic properties present, a determination must be made on the adverse effects on the identified historic properties. If there aren’t any, the process stops. If there are, or if the parties can’t agree, the agency begins consultation to seek ways to avoid, minimize or mitigate the adverse effects.
- If parties can’t come to an agreement on avoidance alternatives, a memorandum of agreement (a legally binding document) gets all the agencies involved. Reaching this stage in the process is rare, Holter says.
Section 106 does have a learning curve, Holter says. He promises once you’ve gone through the process, it’s far less onerous the second time around. “Once you got it, you can get up and run with it.”
He advises developers to be transparent in their process. You’ll get further faster. “If there are changes in your scope of work, just let us know,” he says. “That’s the kind of consultation we like.”
Holter also tells people to have an “inadvertent discovery plan.” This lets everyone know what needs to be done if human remains are unearthed. “You can find human remains anywhere,” he warns.
Contact your state historic preservation office for more information about Section 106 and the National Historic Preservation Act:
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Problem Solver
Brownfields playing a role in biofuels industry
There’s something ironic about a former gas station, left abandoned and contaminated, being reborn into an alternative fuel retail station. It’s like bringing a brownfield site full circle, only better.
That’s just what happened last year in Eugene, Ore., when SeQuential Biofuels opened the first such alternative fuel station in that state. Peter Murchie, EPA coordinator of the West Coast Collaborative, thinks one day we will see retail stations such as the Eugene one all along the West Coast. The Northwest has grown to become a national leader in the alternative fuels industry, he says. And in Region 10, there are strong movements supporting biofuels, especially those regionally produced.
The development of alternative fuels is an important topic to our nation in many ways, Murchie says. The country has a renewed interest in gaining energy security and independence by moving toward producing more of its fuels, including biofuels such as ethanol and biodiesel. There also is much potential for homegrown economic development in this rising new industry, he says. And, of course, there are the benefits to the environment. Biofuels, such as ethanol and biodiesel, are cleaner fuels that produce fewer pollutants than mainstream fuels.
Brownfields redevelopment can play an important role in this emerging industry, Murchie says. Brownfields are a nice fit because redeveloping these contaminated lands protects green space; the sites often are an opportunity to reutilize unused urban and industrial space. And often these former gas stations are ideal for such development because they already sit on properties close to roadways.
“SeQuential Biofuels is a model for how we can use green development in brownfields redevelopment,” he says.
Ian Hill, a SeQuential Biofuels co-founder, says brownfields redevelopment fits into his company’s culture and ethic. It can be challenging to find brownfield sites large enough for his company; however, he’d like to work with the state to find other properties for future development, including sites for the production or storage of biofuels. “We’d love to do it again,” he says.
SeQuential Biofuels has 33 branded pumps around the state with independent retail sites. The company, which owns 60 percent of the biodiesel market share in Oregon, has a commercial biodiesel production facility that produces 1 million gallons of ASTM-certified biodiesel made from used cooking oil collected from Pacific Northwest restaurants and food processors and from virgin canola oil grown in eastern Oregon.
The retail fuel station sits along a commercial corridor adjacent to Interstate 5. The former Franko facility sold gasoline from 1976 until 1991. At that time, the property was turned over to a bankruptcy trustee. Also in 1991, petroleum contamination from the site was observed during trenching along the highway east of the site. Contamination also had migrated to a residential well west of the facility.
In 1996, a private party purchased the property and removed the five underground storage tanks and some contaminated soil. Subsequent assessment identified the former fuel pump islands as the primary source of contamination. Lane County then acquired the property through tax foreclosure, and in January 2005 removed more than 400 tires and 15 drums of waste.
SeQuential purchased the property later that year after entering into a Prospective purchaser’s Agreement with the Oregon Department of Environmental Quality (DEQ). The retail fuel station, which sells ethanol and biodiesel blends, opened last fall.
However, the biofuels are only part of the story behind this unique business. Renewable energy, energy efficiency and sustainable design elements are also components. Covering the fueling islands are 244 solar panels that will provide 30 to 50 percent of the electrical power the station requires annually. On the roof of the convenience store are 4,800 plants in 5 inches of soil. The roof will help control rainwater runoff on the site and cool the convenience store during the summer. Other eco-friendly design elements include stormwater detention “bioswales” where plants filter pollutants from rainwater that drains from the roadways and parking areas.
SeQuential took advantage of several state incentives on this project. Oregon and Washington have played active roles in providing tools to advance biofuels in the private sector, Murchie says. On this project, DEQ provided $19,600 for site assessment, EPA awarded a $200,000 brownfields cleanup grant to Lane County and the Oregon Economic and Community Development Department provided a $50,000 loan as match funding for the EPA assessment grant through its Brownfields Redevelopment Fund. The project also qualified for the Oregon Department of Energy’s Business Energy Tax Credit, which is 35 percent of an eligible project’s costs, and its Energy Loan Program, which provides low-interest loans.
After six months in business the retail station is exceeding volume projections, Hill says. Its biggest hurdle now is teaching consumers that these biofuels are appropriate for any vehicle.
The 2007 Oregon Brownfields Conference (www.nebc.org/brownfields), March 1-2 in Salem, will spotlight the SeQuential Biofuels retail station during the session “Brownfields to Alternative Fuels: Opportunities for Renewable Energy.” The session will feature an expert panel that will discuss the various economic development incentive programs Oregon and the federal government offer to private businesses.
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Groundwork
The 4 elements of a response program
State and tribal response programs oversee assessment and cleanup activities at the majority of brownfields sites across the country. The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) authorizes a noncompetitive $50 million grant program to establish and enhance state and tribal response programs. Requests for funding are being accepted through Feb. 15.
To be eligible for funding, a state or tribe must show that its response program includes or is taking reasonable steps to include the four elements of a response program. Those four elements are:
- Timely survey and inventory of brownfields sites on state or tribal land. This enables the state or tribe to establish a system that will provide an estimate of the number, likely locations and the general characteristics of brownfields sites on state or tribal lands.
- Oversight and enforcement authorities or other mechanisms and resources. This element creates state and tribal response programs that include authorities and resources that will ensure a response action will not only protect human health and the environment but also be conducted in accordance with federal and state laws, and that the necessary response activities are completed if the person conducting them fails to follow through.
- Mechanisms and resources to provide meaningful opportunities for public partnerships. States and tribes must include in their response program mechanisms for public participation. At a minimum, this means allowing public access to documents and materials a state, tribe or the party conducting the cleanup is using in making cleanup decisions or conducting site activities; prior notice and opportunity for public comment on cleanup plans and site activity; and a means by which a person who may be affected by a release--or threatened release--of a contaminant at a brownfields site may request a site assessment be conducted.
- Mechanisms for approval of a cleanup plan and verification and certification that cleanup is complete. States and tribes must include in their response program methods to approve cleanup plans and to verify that response actions are complete, including a requirement for certification or similar documentation from the state, tribe or a licensed site professional.
To be eligible for the funding, states and tribes also must maintain a public record system that updates at least annually the record of sites where actions were completed the previous year and are planned to be addressed in the upcoming year. The public record system also must identify whether or not the site, upon completion, will be suitable for unrestricted use. If not, the public record must identify the institutional controls that will be put in place.
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