February 2019 Update: DOE previously sought comments on the general terms of the Programmatic Agreement as described on this website from October 18 – November 18, 2018. In response to the public’s request to see the specific terms of the Programmatic Agreement, DOE posted the current draft of the Programmatic Agreement, and sent out an email announcement to the public on February 28, 2019 and March 1, 2019.

DOE will be accepting comments until April 8th, 2019.  If you have comments, please direct them to Debbie Kramer at: debbie.kramer@emcbc.doe.gov

What is Section 106?

Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires federal agencies to consider the adverse effects of a proposed undertaking on historic properties through consultation.  Historic properties are defined by the regulations implementing Section 106 of the NHPA (36 CFR Part 800) as any prehistoric or historic district, site, building, structure, or object, or properties of traditional religious or cultural importance to an Indian tribe that are included in or eligible for inclusion in the National Register of Historic Places (NRHP).

To assess the effects on historic properties, the Section 106 regulations establish a four-step process: 1) initiate the Section 106 process; 2) identify and evaluate NRHP eligibility of historic properties; 3) assess adverse effects; and 4) resolve adverse effects. Not all of the steps must be completed for every undertaking. As shown in the figure, the Section 106 process includes questions at the end of each step that, depending on the answers, may result in proceeding to the next or concluding the Section 106 process.


(Image taken from page 8 of the NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 available at https://ceq.doe.gov/docs/ceq-publications/NEPA_NHPA_Section_106_Handbook_Mar2013.pdf

When the potential effects on historic properties are complex, involve large land areas, and cannot be fully determined prior to approval of an undertaking, an agency’s obligations under Section 106 are satisfied by negotiation and execution of a legally binding agreement called a Programmatic Agreement.  A Programmatic Agreement may establish a process for phased identification and evaluation of historic properties (36 CFR § 800.4(b)(2)), as well as a process for the resolution of adverse effects on historic properties from certain complex project situations (36 CFR § 800.14(b)).  The process in the Programmatic Agreement is customized based on the undertaking. 

Throughout a Section 106 consultation, including during development of a Programmatic Agreement, the federal agency is required or encouraged to consult with numerous parties, including but not limited to the State Historic Preservation Officer, federally recognized tribes, consulting parties with a demonstrated interest, and the public.

The Section 106 regulations recognize that the views of the public are essential to informed decision-making in the Section 106 process. The level of public involvement is determined on a project-by-project basis by the federal agency implementing Section 106, and should be commensurate with the complexity of the undertaking, the effects on historic properties, the public interest, and other factors.  In addition, the Section 106 regulations require the agency to provide the public information at Steps 2, 3, and 4 of the Section 106 process.

Helpful Links

The following links provide information developed by the Advisory Council on Historic Preservation (ACHP), a federal agency that generally oversees the operation of the Section 106 process.

DOE’s Section 106 Process
DOE is committed to conducting a thorough and open review of the Undertaking under Section 106.

Consulting Parties
DOE has consulted with the California State Historic Preservation Office; a federally recognized tribe, the Santa Ynez Band of Chumash Indians; and numerous non-federally recognized tribes. DOE has also invited many other interested parties to participate in consultation throughout the Section 106 process. 

: Attachment 2 to the Programmatic Agreement provides a list of the Consulting Parties (Table 1) and a list of the invited parties that have not participated, and are therefore not considered Consulting Parties (Table 2). As noted in the Programmatic Agreement (see Section XIX, Addition and Termination), other parties may submit a request to DOE to become Consulting Parties. Since initiating consultation on the Undertaking in 2009, DOE has held numerous meetings with the Consulting Parties to discuss the Undertaking’s potential effects to historic properties and develop the Programmatic Agreement. In the fall of 2018, DOE shared an updated draft of the PA, held meetings, and received comments from the Consulting Parties.

Public Involvement

DOE has previously sought public comment on the Section 106 identification of historic properties through the National Environmental Policy Act (NEPA) process, specifically by inviting comments during the scoping meetings and by describing the identified sites and DOE’s intention to use a Programmatic Agreement in the Draft Environmental Impact Statement (EIS). DOE also invited comments during the public comment period and public hearings on the Draft EIS.

: DOE sent out a public email announcement and posted material to the project website on October 18, 2018 explaining the general terms of the Programmatic Agreement and requesting comments within 30 calendar days.

In addition, DOE released the Final EIS on December 18, 2018, in which DOE responded to comments about cultural resources and historic properties. The Draft and Final EIS can be found at the following website: http://www.ssflareaiveis.com/.

The Proposed Programmatic Agreement

The draft Programmatic Agreement is now available for viewing by the public. Based on comments received by the Consulting Parties and the public, the following content has been edited to reflect the currently proposed language in the Programmatic Agreement.

Justification for Using a Programmatic Agreement
: DOE has determined that a Programmatic Agreement is appropriate because:

Purposes of the Programmatic Agreement: Through the Programmatic Agreement, DOE will complete a phased NRHP eligibility evaluation of historic properties and undertake resolution of adverse effect to those historic properties.  The Programmatic Agreement will:

Content of the Programmatic Agreement: The Programmatic Agreement establishes how DOE either has or will conclude each of the aforementioned four steps of the 106 process. It is a procedural document that is closely tied to the requirements in the Section 106 regulations and will provide the vehicle for complying with Section 106 of the NHPA no matter what decisions are made by the DTSC through the SRAIP process.  

As described in the Programmatic Agreement, there is one Undertaking composed of three phases, including 1) building demolition and removal, 2) groundwater cleanup and related activities, and 3) soil cleanup and related activities. Because DOE has already surveyed the Area of Potential Effects and is at different steps in the Section 106 process for each of the phases, DOE has structured the PA by the Undertaking phases, rather than by the Section 106 steps. The Programmatic Agreement establishes the work that must be completed prior to the implementation of each phase of the Undertaking.
The Programmatic Agreement documents that DOE will not make finding(s) of effect for the Undertaking until after DTSC has approved the SRAIP. DOE previously proposed a finding of adverse effect by assuming that 1) at least one of the proposed archaeological districts or traditional cultural properties would be eligible for listing on the NRHP and 2) the soil cleanup phase would result in some adverse effect to those historic properties. However, based on feedback from the Consulting Parties, DOE has determined that it may be able to apply Native American Artifacts exemptions or impose conditions that would enable DOE to make a finding of no adverse effect.  Therefore, the Programmatic Agreement now integrates the SRAIP development process and assessment of adverse effect step of the Section 106 process.

DOE will prepare the following plans/reports under the Programmatic Agreement that will be made available online:

Opportunities for Public Involvement in the Programmatic Agreement: The PA establishes numerous opportunities for the public to review progress on implementing the Section 106 process throughout the cleanup process.  DOE is proposing to commit to: