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OFFICE OF THE

NOV 1 ~ 7I11Q

The Honorable Tom UdallUnited States SenateSenate Office BuildingWashington, D.C. 20515

The Honorable Martin HeinrichUnited States SenateSenate Office BuildingWashington, D.C. 20515

The Honorable Ben Ray LujanU.S. House of RepresentativesHouse Office BuildingWashington, D.C. 20515

Dear Senator Udall, Senator Heinrich, and Congressman Lujan:

This responds to your September 25, 2019, letter regarding voluntary alternative housing for theRed Water Pond Road (RWPR) Community. The U. S. Environmental Protection Agency(USEPA) and the U.S. Army Corps of Engineers (USACE) (collectively, the Agencies) havebeen working in partnership, with USEPA as the primary decision maker on housing options,and USACE the implementer on housing-related actions for many Community members, perUSEPA’s direction. I am responding to your letter on behalf of both Agencies.

In anticipation of the multi-year cleanup of over one million cubic yards of contaminated soil atthe Northeast Church Rock (NECR) Mine Site, USEPA enlisted the USACE in 2012 to providevoluntary alternative housing for the RWPR residents because of USACE’ s extensive experiencewith housing implementation. The Agencies have worked together to identify and implementappropriate options that are voluntary because the cleanup is not expected to pose a health threatfrom contamination. USEPA has offered the alternative housing to mitigate the significantdisruption due to the noise, traffic, and dust associated with the movement of thousands oftruckloads of waste.

Although USEPA has removed over 200,000 tons of contaminated soil from within the RWPRresidential area, disruption due to cleanup activities for the mine site is not expected to becomplete for at least another seven years. Given this timeframe, the Agencies have activelyconsidered the possibility of creating an alternative on-reservation community, such as theStanding Black Tree Mesa (the Mesa).

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The Agencies did not receive the University of New Mexico housing plan that was included inthe RWPR Community Association’s July 13, 2019, letter until you forwarded the plan to us inyour September 25, 2019 letter. While the Community estimates that the plan would costapproximately $2.1 million to implement, 1~S~P~j ~ wn estimate is that constructing housingand infrastructure for a community on the Mesa is likely to cost an order of magnitude more thanthat amount. Federal regulations require the Agencies to provide housing that shall be at areasonable cost and with adequate standards for size, safety, and sanitation.

Even if USEPA determined that the construction of infrastructure to support a housingcommunity on the Mesa was cost effective, as required by law, the issue of the feasibility ofongoing operation and maintenance of the access road and utilities remains a barrier. On July 10,2017, Navajo Tribal Utility Authority (NTUA) provided a written determination that bringingwater to the Mesa location was “not feasible.” Without NTUA support, there is no entitycurrently able to provide such operation and maintenance of the water system. Similarly, noagency has accepted responsibility for maintaining the road to the Mesa. Developing acommunity on the Mesa could potentially adversely affect residents because of the potential forimpassable roads during both summer rains and winter storms. Another issue with the proposedplan is that water collection from rooftops would not reliably provide a year-round safe drinkingwater source for the Community’s needs, given historical precipitation patterns in the region.

In addition to communicating with the Community, USEPA routinely coordinates with theNavajo Nation government on NECR and all efforts related to Navajo Abandoned UraniumMines. USEPA has consulted with the Navajo Nation President’s office on the NECR cleanupplan specifically and has met with representatives from the President’s Office regarding varioustopics related to NAUMs at least annually.

The Agencies believe that our actions to date have been consistent with all relevant laws,guidance and policies. We continue to seek collaborative solutions and appreciate theCommunity’s efforts to bring additional resources and perspectives to bear on the challengesposed by both short and long-term disruptions to the Community.

Regarding location for a housing alternative, the Agencies have concluded that there aresignificant barriers to creating “decent, safe and sanitary” housing on the Mesa. The UniformRelocation Act defines what constitutes “decent, safe, and sanitary” housing, which the Agenciesuse as a standard for any relocation efforts. Currently, we do not see a path to overcoming thosebarriers, which include:

(1) Water: As discussed above, on July 10, 2017, Navajo Tribal Utility Authority (NTUA)provided a written determination that bringing water to the Mesa location was “notfeasible.” While other options such as drilling a well have been explored, all wouldrequire extensive maintenance. A lack of NTUA support would be a significant barrier;

(2) Power: Creating and maintaining a reliable power source would be challenging, as thereis no existing power infrastructure on the Mesa;

(3) Road Access: The current road to the Mesa has a series of steep switchbacks. Even withmajor road improvements, the road to the Mesa could potentially be impassable for days

at a time during winter storms and summer monsoons, and would be challenging tomaintain; and

(4) Navajo Nation Government Approvals: Creating a community on the Mesa wouldrequire a variety of Navajo Nation Agency approvals, including biological clearances andapprovals by both local chapter governments and Navajo Nation government agencies forhome site leases and utility rights of way. These requirements are complex and timeconsuming, even in the case where nearby infrastructure is available and there are nosensitive habitat designations as there are accessing the Mesa.

USEPA attempted to locate other options for a community move and after discussions withChapter Officials from several of the local Navajo Nation Chapters, the Coyote Canyon Chapteroffered the possibility of an on-reservation community on trust land near the Coyote CanyonChapter House. This location is on the other side of the Mesa, but has easy road access, as wellas existing water and power infrastructure. To date, a number of RWPR Community membershave indicated they are not interested in this location.

However, USEPA and USACE did move several families to their preferred locations inculturally appropriate areas on tribal trust lands where the residents had family histories andconnections. Unfortunately, USEPA and USACE were unable to identify a single housing optionthat was both implementable and acceptable to all members of the Community as culturallyappropriate. In addition, we determined that, despite the significant barriers to move theCommunity to the Mesa, the cost was likely to be an order of magnitude higher than the costscited in the July 31, 2019, letter for implementation of the University of New Mexico plan andsubstantially higher than the costs of the options currently being implemented for individualfamilies. As discussed above, even if the construction costs were determined to be reasonable,the Navajo Tribal Utility Authority, the entity for operating and maintaining public watersystems on the Navajo Nation, has determined that the project is not feasible and will not agreeto operate and maintain infrastructure on the Mesa.

While USEPA has participated in many Community meetings and discussions and has been opento collective voluntary alternative housing options, we have been unable to identify a grouplocation that we believed was implementable that was also acceptable to Community members asa whole. To date, we have provided alternative housing to individual families who havecontacted USEPA and requested to move to a specific location such as a homesite location wherethey have received permission from family members not living at Red Water Pond Road or alocation in a nearby city, such as Gallup, New Mexico.

USEPA has considered and is committed to meeting its trust obligations at every stage of thisproject. The USEPA Indian Policy (EPA Policy for the Administration of EnvironmentalPrograms on Indian Reservations, November 8, 1984) requires USEPA to work with tribes on agovernment-to-government basis. The principles in the USEPA Indian Policy are applicable toour current work at NECR and the Red Water Pond Road Community.

USEPA believes it has fulfilled its obligations for consultations with the Navajo Nationgovernment as documented in our consultation letters. The administrative record for USEPA’s2011 Non-Time Critical Action Memo for NECR, which included the decision to offer voluntary

alternative housing, can be found at https://semspub.epa.govisrc/collectionl09/AR62638.Representatives from NNEPA are also engaged in coordination with USEPA, USACE, and theCommunity on~housingissues and efforts as they are available. Finally, the USEPA works ~withthea appropriate Navajo Nation government agencies.and entities such as Navajo Nation LandsDepartment, Navajo Nation Department ‘of Natural Resources, and the NTUA to~obtain requiredapprovals to provide housing on Navajo trust land.

The letters request information on the applicability of the Uniform Relocation Assistance andReal Property Acquisition Policies for Federal and Federally Assisted Programs, 42 U.S.C. §~4601 et seq., and its implementing regulations, 49 C.F.R. Part 24 (collectively the URA) as well.While this law provides guiding principles for developing housing options for residents in thevicinity of the NECR Mine Site, the URA legally applies only to “displaced persons,” which itdefines as any person who moves from real property “as a direct result of rehabilitation ordemolition for a project,” but does not include “a person who is not required to relocate.” See 49CFR 24.2(9)(i)—(ii).~’~ V V

Because the option to temporarily move at NECR is voluntary - the individuals are not requiredto move, even if they ultimately choose to do so — the URA does not strictly apply to thissituation. Nonetheless, the URA notes that “great care must be exercised to ensure that[residents] are treated fairly and equitably,” even if they are not legally a “displaced person”under the Act. The Ageneies have :followed this principle when conducting voluntary alternativehousing.

Similarly, the USEPA’s 1999 Interim Guidance on Permanent Relocations and August 2004Statement of Work and User’s Guide on Permanent Relocations are not directly applicable, buthave been considered, as discussed 1nEPA’sDecember 2011 Voluntary Flexible HousingOptions document att~ched to your letters.

The Agencies have also attempted to work with the Community in a manner that reflects ourrespect for the Navajo people, their cultural traditions and the entire Community’s concerns. Forexample, we have provided funding for cultural ceremonies related to housing moves andUSEPA has hired Navajo speaking Community Involvement Coordinators to better support ourcommunity involvement efforts. In the past, USEPA has hired a Navajo peace maker to facilitatemeetings with the Community leading up to our selection of a cleanup option. We remain open

[1] Appendix A to the URA provides the following additional information to explain the intent of this definition.

Section 24.2(a)(9)(ii)(D) Persons not displaced. [This p]aragraph . . . recognizes that there arecircumstances where the acquisition, rehabilitation or demolition of real property takes placewithout the intent or necessity that an occupant of the property be permanently displaced. Becausesuch occupants are not considered “displaced persons” under this part, great care must beexercised to ensure that they are treated fairly and equitably. For example, if the tenant-occupantof a dwelling will not be displaced, but is required to relocate temporarily in connection with theproject, the temporarily occupied housing must be decent, safe and sanitary and the tenant must bereimbursed for all reasonable out-of-pocket expenses incurred in connection with the temporaryrelocation. These expenses may include moving expenses and increased housing costs during thetemporary relocation.

to continuing these and similar practices and to other approaches the Community believes wouldbe helpful.

The Agencies have considered available USEPA and USACE regulations and guidance inproviding relocation options. These laws and guidance include the references cited in thefollowing guidances and policies for USEPA Superfund Response Actions and work with tribes:

USEPA Superfund Response Actions: Temporary Relocations Implementation Guidance,2002, OSWER Directive No. 9320.0-97, (see reference materials cited at p.102). Seehttps://semspub.epa.gov/workIllp/174943 .pdf

USEPA Permanent Relocations Statement of Work Template and User’s Guide, August2004, OSWER Directive No. 9320.0-108. Seehttps://semspub.epa. gov/workfllp/ 1 74937.pdf

USEPA Interim Policy on Use of Permanent Relocation as part of Superfund RemedialActions, OSWER Directive 9355.0-71P, June 1999.https ://nepis.epa.govfExe/ZyPDF.cgi/1 0001 V3M.PDF?Dockeyt 10001 V3M.PDF

4. USEPA Policy for the Administration of Environmental Programs on IndianReservations, November 8, 1984. See https://www.epa. gov/sites/productionlfiles/20 15-04/documents/indian-po icy-84.pdf

49 CFR 24, Uniform Relocation Assistance and Real Property Acquisition for Federaland Federally-Assisted Programs. See https://www.ecfr.gov/cgi-binltextidx?c=ecfr&sid=3bdda26e 1 102fe42dd2 1611091 c4a569&rgn=div5&viewztext&node=49:1.0.1.1.1 8&idno=49#se49. 1.24 1404

To the extent that the Community believes that any specific law, policy or guidance has not beenappropriately implemented, the Agencies request that the Community identify their specificconcerns.

The Agencies have attempted to provide support consistent with our obligations, pursuant to alllaws and guidances, as well as in our capacity as an Agency of the United States and asindividuals who wish to provide culturally sensitive support in this very challenging situation.We are not aware of any violation of treaties ratified by the United States that may be applicableto the present situation; however, we encourage the Community to share its concerns in thisregard. We are open to exploring with the Community all issues, including any treaty obligationsthat the Community believes have not been fulfilled.

We hope to continue to work with all parties, including Congressional representatives, theNavajo Nation government and Community members to find the best path forward. In additionto this written response, my staff and representatives from the Army Corps of Engineers plan toattend the November 13, 2019, Red Water Pond Road Community Association monthly meetingto provide a response to the Community in person.

Please contact me at (213) 215-3104 or via e-mail at stoker.michael@epa.gov if I can provideany additional information or refer staff to our Congressional Liaison, Brent Maier, at (415) 947-4256 or via e-mail at maier.brent@epa.gov.

Sincerely,

I~,4~Y Michael Stokej~/ Regional Administrator

President Jonathan Nez, Navajo NationOliver Whaley, Executive Director, Navajo Nation EPARed Water Pond Road Community AssociationColonel Sebastien Joly, Commander, Mobile District, USACE