MEMORANDUM
OF AGREEMENT
for
the
BASIN
ENVIRONMENTAL IMPROVEMENT PROJECT
COMMISSION
August
13, 2002
PREAMBLE
The
parties to this Memorandum of Agreement (hereafter,
Agreement) commit to work together in good faith through the
Basin Environmental Improvement Project Commission
(hereafter, Basin Commission) to address heavy metal
contamination in the Coeur d'Alene Basin. The Basin
Commission is established to implement, direct, and/or
coordinate environmental remediation, natural resource
restoration, and related measures to address water quality
and heavy metal contamination in the Coeur d'Alene Basin
(hereafter, Basin), in a manner that is protective of human
health and the environment, and consistent with local,
state, federal and tribal participation, resources, and
authorities. The Basin Commission works through the direct
exercise of certain authorities of the state of Idaho (as
described in Section 39-8105 of the enabling legislation)
and through its coordination with other entities and
governments and their exercise of independent
authorities.
I.
PURPOSE OF AGREEMENT
The
overarching purpose of this Agreement is to fulfill the
requirement laid out in the enacting State of Idaho
legislation to establish an agreement (or compact) necessary
for the U.S. Government and the State of Washington and the
Coeur d'Alene Tribe's membership of the Basin Commission. As
well, the Agreement defines the conditions under which the
parties to the Agreement will participate on the Basin
Commission. The Agreement also affirms the dual roles of the
Basin Commission: to exercise certain state authorities to
address heavy metal contamination in the Coeur d'Alene
Basin, as set forth in the enabling legislation; and to
coordinate the Commission's activities and authorities with
those of other entities operating in the Basin to achieve a
similar purpose.
II.
SCOPE OF THE BASIN COMMISSION ACTIVITIES
The
Basin Commission conducts its work in the Coeur d'Alene
Basin of Idaho. The Coeur d'Alene Basin is defined as the
watershed of Coeur d'Alene Lake within the counties of
Shoshone, Kootenai and Benewah as well as the Coeur d'Alene
Reservation located within the state of Idaho.
The
primary purpose and foundation of the Basin Commission's
work will be to implement the 2002 Record of Decision
approved pursuant to the federal Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended (CERCLA) to address heavy metal contamination in the
Coeur d'Alene Basin. Future Records of Decision to address
Coeur d'Alene Basin heavy metal contamination issued by
Environmental Protection Agency, with concurrence from the
Idaho Department of Environmental Quality and the Coeur
d'Alene Tribe, as appropriate, may be incorporated into the
Basin Commission's work. In addition, the Basin Commission
may address the following:
1.
A Record of Decision implementing Phase II of the Bunker
Hill Comprehensive Cleanup Plan consistent with the 1992
Bunker Hill Record of Decision;
2.
Adoption and implementation/coordination of the Lake Coeur
d'Alene Management Plan to manage, enhance, preserve, and
protect lake water quality; and
3.
Remediation of heavy metal contamination at specific mining
sites in the North Fork of the Coeur d'Alene River.
Additions
to the Basin Commission's work involving other remediation,
restoration or measures to address heavy metal contamination
within this geographical area shall require amendment of
this Agreement.
The
Basin Commission will closely coordinate with authorities of
the State of Idaho and the State of Washington, Counties in
the State of Idaho, the Coeur d'Alene Tribe, and agencies of
the Executive Branch of the United States and coordinating
Tribes on activities funded by these authorities which also
support the remediation and restoration goals of the Basin
Commission.
III.
FUNDING
The
Basin Commission shall seek and utilize funding, services
and materials from agreements, grants, appropriations,
donations, gifts or other appropriate contributions, and
coordinate with other funding authorities to carry out its
operations and implement the basin project
workplans.
It
is the parties' intention to work together as the Basin
Commission to identify the appropriate entity (or entities)
to carry out specific remedial actions identified in the
Record(s) of Decision. Under CERCLA, Section 104(d), 42
U.S.C. § 9604(d), and the NCP, 40 C.F.R. §
300.515, EPA may enter into a cooperative agreement with a
state, tribe, federal agency, or political subdivision of a
state to carry out remedial actions. EPA may also sponsor
and fund remedial actions directly and may utilize
designated subcontractors to assist them. EPA, after fully
considering any recommendations of the Basin Commission, to
the extent consistent with EPA's legal responsibilities, may
decide to enter a cooperative agreement with the entity
recommended by the Basin Commission. In issuing a grant or
entering a cooperative agreement, EPA and any Party using
federal monies, must comply with all applicable federal
authorities and regulations, including but not limited to 40
C.F.R. Part 31 and 40 C.F.R. Part 35, Subpart O.
The
Basin Commission will work together with other agencies or
entities which fund and conduct natural resource restoration
and other related measures to address water quality, habitat
quality, or natural ecosystem recovery. The parties agree to
coordinate remedial actions conducted under the Record(s) of
Decision with resource restoration and management activities
involving Trustees responsible for natural resources of the
Coeur d'Alene Basin. The parties agree to and strongly
support this coordination in order to improve and
efficiently promote the broader responsibility inherent in
collective stewardship of basin resources.
The
Basin Commission will establish appropriate fiscal policies
and procedures to implement whatever fiduciary
responsibilities it chooses to undertake.
IV.
BASIN COMMISSION ORGANIZATION
The
parties recognize that the Basin Commission shall establish
an organizational structure that includes a Basin
Environmental Improvement Project Commission Board (Basin
Commission Board), a Basin Commission Technical Leadership
Group (Technical Leadership Group), and a Basin Commission
Citizen Coordinating Council (Citizen Coordinating Council).
A.
Basin Commission Board
1.
Membership
Membership
of the Board is described in Section 39-8106 (3) of the
enabling legislation.
2.
Functions
The
Board has specific powers and duties as described in Section
39-8106. The Basin Commission Board shall annually approve
one- and five-year Commission workplans, including
establishment of annual project priorities and budgets, and
directing the workplans' implementation. The Board shall
appoint an Executive Director to assist the Board in
administering basin projects. The Executive Director's
duties shall include contract management, fiscal planning
support, annual report development duties, and assisting the
Commission with public involvement and outreach. The
Executive Director will also coordinate closely with the
Technical Leadership Group on numerous topics including work
planning, budget planning, monitoring, contract
specifications, and assuring the group is kept current and
well-informed of remedial actions under the oversight of the
Executive Director. The Board will define and assume
additional specific duties and/or functions for itself over
the course of its early discussions.
B.
Commission Technical Leadership Group
1.
Membership
The
Technical Leadership Group, which serves in an advisory
capacity to the Board, shall consist of federal, state,
local, and tribal representatives serving the governmental
entities with regulatory or land management responsibilities
in the Coeur d'Alene Basin that may be affected by remedial
actions. The Technical Leadership Group may also determine,
as a group, to consult with other individuals with specific
scientific, engineering and/or regulatory/land management
expertise to advise them on specific issues as the Technical
Leadership Group deems necessary to assist the Basin
Commission perform its duties.
The
Technical Leadership Group shall strive to come to agreement
on recommendations or conclusions to be presented to the
Basin Commission. If no agreement is reached, the parties
will contemporaneously represent their positions to the
Basin Commission Board.
2.
Functions
The
Technical Leadership Group advises and provides
recommendations on and plans for all duties related to
implementation of Records of Decision and other technical or
regulatory issues put forward to the Board. Specific duties
and functions of the Technical Leadership Group in
coordination with the Executive Director will include advice
on the development of workplans and funding plans,
technology development, demonstration/pilot project
development, remedial priorities, and coordination with
related activities in the Basin. The Technical Leadership
Group's responsibilities shall also include the
following.
A.
In collaboration with the Executive Director, develop and
recommend to the Board one- and five-year workplans,
including establishment of annual project priorities and
budgets, as well as design and implementation of planning
and construction projects. Development of the plans will be
coordinated with other natural resource management agencies
to improve planning and promote efficient use of available
resources for all remediation projects.
B.
Support and advise the Board on the exercise of its
authorities to implement the Commission workplan.
C.
Coordinate with agencies with authority and expertise or
active resource management and restoration activities to
help implement the Commission's workplan.
D.
Design and develop implementation plans and coordinate with
the Executive Director in defining and developing detailed
budget estimates for specific remedial projects in the Coeur
d'Alene Basin to implement the Record(s) of Decision related
to heavy metal contamination in the Basin.
E.
Make recommendations regarding the evaluation and oversight
of Basin monitoring and reporting, as provided in the
Commission's annual or five-year workplan(s) or required by
Records of Decision.
F.
Closely coordinate and assist in the development and
approval of annual reports to the Basin Commission Board
summarizing accomplishments, performance, budgets, and
goals.
The
Technical Leadership Group will consider citizen input
provided through public hearings or meetings, workshops,
comment periods, or the Board.
C.
Commission Citizen Coordinating Council
A
Citizen Coordinating Council will serve as a primary
information conduit to and from the Basin Commission on
citizen/community issues, concerns, and opportunities for
input related to Commission activities. The Council is
provided for in Section 39-8106(4). The Council will
function to communicate citizen issues and formal comments
to the Basin Commission or Executive Director on Basin
work.
It
is the parties' intent to have all key interests in the
Basin represented on the Citizen Coordinating Council while
maintaining a manageable group size and balance.
1.
Membership
The
Council shall be open and inclusive and include a balance
and diversity of views. Members shall meet one or more of
the following criteria:
A.
Demonstrated interest or responsibilities (e.g., land
ownership, statutory authority, or directly and
intrinsically affected by remedial decisions);
B.
Official representative of a defined constituency
group;
C.
Represent a specific geographic area or population group;
D.
Views and interests not otherwise represented that are
necessary for effective citizen dialogue, input, and
perspective; or
E.
Technical, scientific, or engineering skills applicable to
the process of basin cleanup.
2.
Functions
The
Council shall provide three primary support functions to the
Basin Commission, and the Board, particularly:
A.
Coordinate, with the Executive Director, basin-wide public
education and outreach.
B.
Advise on community issues and concerns.
C.
Assist with the development and distribution of an
information newsletter and assist in hosting a website
containing information about the Commission, future
meetings, and projects, with authorization from the
Board.
V.
PUBLIC INVOLVEMENT AND OUTREACH
A.
Public Involvement
Public
participation is an essential element of the Commission
process. The parties commit to ensuring a significant, fair,
and structured process of public information and involvement
in the design and implementation of environmental
remediation and natural resource restoration priorities and
projects.
B.
Public Comment
To
the extent possible, the parties to this Agreement agree to
coordinate their public comment requirements and
responsibilities through Board discussions and activities.
VI.
DECISIONS REGARDING INTERPRETATION OF MOA
Decisions
of the parties regarding the interpretation of this
Agreement shall be by consensus. In the event of a dispute
involving this Agreement, the parties shall initially
attempt to resolve the dispute through good faith
discussions directed toward obtaining consensus. The party
raising the dispute shall contemporaneously provide an
explanation for why such a dispute is necessary to protect
the significant interests and obligations the party
represents. In the event consensus cannot be reached, the
matter shall be presented to the signatories of the parties
to the dispute for resolution.
VII.
RESERVATION OF RIGHTS
Each
party to this Agreement reserves all rights, powers, and
remedies now or hereafter existing at law or in equity, or
by statute or otherwise, and nothing in this Agreement
waives or forecloses the exercise of any such rights,
powers, or remedies.
The
parties recognize that under the Appointments Clause of the
Constitution, only officers of the United States may
exercise governmental authority and that it is the federal
government's responsibility to make various decisions under
CERCLA. The participation of the federal representative on
the Basin Commission will be governed by federal law,
including the following relevant ethics regulations: 5
C.F.R. Part 2635, 5 C.F.R. part 6401.103.
The
parties recognize that although this Agreement and the
statute creating the Commission define the Basin as lying
wholly within the State of Idaho, a significant part of the
Basin site as defined under the Record of Decision is
downstream of the Idaho-Washington border. The parties
recognize that, because a significant portion of the Basin
lies within Washington, the State of Washington and the
Spokane Tribe of Indians reserve the right to negotiate
directly with the EPA, and expect that remedial actions,
authorities, and duties in Washington will be independent of
the operational framework established for the parties by
this Agreement. The State of Washington, which is located
downstream of the Basin Commission jurisdictional area, will
consult with the EPA regarding implementation of the Record
of Decision in Washington, and will make good faith efforts
to keep the parties appraised of remedial projects and to
pursue remedies consistent with the goals of the parties.
The remedial actions in Washington will be prioritized
consistent with human health protection goals defined in the
ROD.
VIII.
OTHER PROVISIONS
A.
Commitment of Resources
Nothing
in this Agreement shall be construed as obligating the
United States, the State(s), the Tribe(s), their officers,
agents, or employees, to expend any funds in excess of
appropriations authorized by law.
B.
Effective Date, Ratification, Modification, and
Termination
1.
This Agreement becomes effective when:
A.
It has been executed on behalf of the United States of
America, the States of Idaho and Washington, the Coeur
d'Alene Tribe, and the Local Governments listed in Appendix
I, Section A; or
B.
Parties that have signed the Agreement by August 20, 2002
determine to make the Agreement effective and to
proceed.
2.
The terms of the Agreement may be modified by unanimous
agreement among the parties.
C.
Execution and Withdrawal
This
Agreement shall be executed in counterparts. A copy with all
original executed signature pages affixed will constitute
the original Agreement. Any signatory may withdraw 30 days
after providing a written notice to the parties of its
decision and reasons for withdrawal.
IX.
SIGNATURES
A.
Parties which are Basin Commission Board Members
-
- State
of Idaho
- By:
- Date
- Coeur
d'Alene Tribe
- By:
- Date
- Shoshone
County
- By:
- Date
- Benewah
County
- By:
- Date
- United
States of America
- By:
- Date
- State
of Washington
- By:
- Date
- Kootenai
County
- By:
- Date
B.
Parties which are Coordinating Entities
- United
States Department of the Interior
- By:
- Date
- United
States Forest Service
- By:
- Date
- Spokane
Tribe of Indians
- By:
- Date
APPENDIX
I. PARTIES AND AUTHORITIES
A.
Parties which are Basin Commission Board Members
This
Agreement is made and entered into by and among the
following, which shall each be represented on the Basin
Commission Board:
THE
STATE OF IDAHO
THE
STATE OF WASHINGTON
COEUR
D'ALENE TRIBE
the
UNITED STATES OF AMERICA
BENEWAH
COUNTY OF IDAHO
KOOTENAI
COUNTY OF IDAHO
SHOSHONE
COUNTY OF IDAHO
B.
Parties which are Coordinating Entities
This
Agreement is made and entered into by and among the
following, which while not being members of the Basin
Commission Board, have agreed to coordinate their efforts,
pursuant to their respective authorities in the Coeur
d'Alene Basin, with the Basin Environmental Improvement
Project Commission. This coordination, which is called for
in the Agreement, may include participation on the Technical
Leadership Group and other activities which can contribute
to the common goals of remediating heavy metal contamination
and water quality problems in the Basin in order to protect
human health and restore the environment.
UNITED
STATES DEPARTMENT OF THE INTERIOR
UNITED
STATES DEPARTMENT OF AGRICULTURE
SPOKANE
TRIBE OF INDIANS
Collectively,
all signatories to this Agreement will be referred to as the
parties.
Authority
for the State of Idaho to enter into this Agreement is
contained in Idaho Code Section 39-8104.
Authority
for the State of Washington to enter into this Agreement is
contained in Revised Code Washington Ch.
43.21A.150.
Authority
for the United States of America to enter into this
Agreement is contained in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended, (CERCLA), the National Oil and Hazardous Substances
Pollution Contingency Plan (NCP), and Appointment by the
President of the United States of America.
The
Coeur d'Alene Tribe has authority to enter into this
Agreement pursuant to their inherent tribal sovereignty,
Article VII, Section 1 of the revised Constitution and
Bylaws of the Coeur d'Alene Tribe, the Comprehensive
Environmental Response, Compensation and Liability Act,
including 42 U.S.C. §§ 9626, 9604, 9605 and the
National Oil and Hazardous Substances Pollution Contingency
Plan, including 40 CFR 300.515(b); 42 U.S.C. 9607(f)(1), 40
CFR 610, 615 and the Natural Resource Damage Assessment
Regulations 43 CFR Part 11; Coeur d'Alene Tribal Resolutions
No. 102(91) and No. (02), and other applicable Federal and
Tribal Law.
Authority
for the County of Benewah to enter into this Agreement is
contained in [PLEASE FILL IN]
Authority
for the County of Kootenai to enter into this Agreement is
contained in [PLEASE FILL IN]
Authority
for the County of Shoshone to enter into this Agreement is
contained in [PLEASE FILL IN]
Authority
for the United States Department of the Interior to enter
into this Agreement is contained in Section 107(f)(2)(A) of
CERCLA, 42 U.S.C. § 9607(f)(2)(A), Section 311(f)(5) of
the Clean Water Act, 33 U.S.C. §1321(f)(5), and the NCP
at 40 C.F.R. § 300.600, through which the President has
designated the Secretary of the Interior as a Federal
Trustee for natural resources managed or controlled by the
Department of the Interior. In the Coeur d'Alene Basin, the
authority of the Secretary of the Interior has been
delegated to the Regional Director, Region 1 of the United
States Fish and Wildlife Service. Under CERCLA and the NCP,
as a natural resource trustee, the Department of the
Interior coordinates its activities with the lead agency,
other trustees and interested parties to insure the
protection of its trust resources and to promote the
restoration of resources injured by the release of hazardous
substances. These resources include but are not limited to
migratory birds and their supporting ecosystem, endangered
species and their supporting ecosystem, and resources
located on, under or over public lands managed by the Bureau
of Land Management.
Authority
for the United States Department of Agriculture Forest
Service to enter into this Memorandum of Agreement is
contained in the following authorities: Section 107(f)(2)(A)
of CERCLA, 42 U.S.C. § 9607(f)(2)(A), together with 40
C.F.R. 300.600(b)(3), provides for the delegation of CERCLA
authority to the Secretary of Agriculture to act as a
Natural Resource Trustee with respect to natural resources
on, over or under land administered by the United States
Department of Agriculture. The Secretary's CERCLA authority
to act as a Natural Resource Trustee was delegated to the
Chief of the Forest Service by 7 C.F.R. § 2.60(a)(42).
The Chief's authority has, in turn, been delegated to the
Regional Forester by Forest Service Manual Section
2164.04c(3). Pursuant to Executive Order 12777, Section
1(c)(3), the Secretary of Agriculture has also been
delegated the authority to act as Natural Resource Trustee
under Section 311(f)(5) of the Clean Water Act, 33 U.S.C.
§ 1321(f)(5). Natural Resource Trustees are broadly
authorized to coordinate and cooperate in carrying out their
trustee responsibilities by 40 C.F.R. §
300.615.
The
Chairman of the Spokane Tribal Business Council, or his
designee, has authority to enter this Agreement pursuant to
the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sections 9601, et seq., the
National Oil and Hazardous Substances Pollution Contingency
Plan, 40 CFR Part 300, Spokane Tribal Business Council
Resolution No. , and other applicable Federal and Tribal
law.
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