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Home Historic Preservation Programs & Officers Federal Multiagency: National Contingency Plan Introduction Background on the Committee
Background on the Formation of the NRT Ad Hoc Committee on Cultural Resources and the Development of the Programmatic Agreement
Section 106f of the National Historic Preservation Act (NHPA), 16 USC Section 470f, requires Federal agencies having direct or indirect jurisdiction over a proposed federal or federally assisted "undertaking" to take into account the effect of the undertaking on historic properties included in or eligible for inclusion in the National Register of Historic Properties. In response to an Action Proposal seeking NRT guidance on the effect of Section 106 on federally led emergency response to discharges of oil and hazardous substances under the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), the NRT formed the Ad Hoc Committee on Cultural Resources in 1995.
The Committee worked for two years to develop a programmatic agreement (PA) which would clarify the role of the Federal On-Scene Coordinator (FOSC) during emergency response and provide some measure of protection to the FOSC in the event his or her actions are challenged.
Drafting and Review Process of the PA
All NRT-member departments and agencies were invited to participate on the Ad Hoc Committee. The Committee that drafted the PA was chaired by the Department of Justice and included representatives of the Environmental Protection Agency, Department of Transportation (including the Coast Guard), Department of the Interior (including the National Park Service), Department of Commerce (particularly NOAA), Department of Agriculture and Department of Defense. In addition, two non-NRT member organizations were actively involved in the drafting and revision of the PA: the Advisory Council on Historic Preservation (ACHP), which is primarily responsible for the administration of the NHPA, and the National Conference of State Historic Preservation Officers (NCSHPO), which is the national organization of State Historic Preservation Officers, who are appointed by the governor of each state and territory.
Each participating Federal agency or department was asked to solicit comments from its employees. EPA, for instance, distributed drafts of the PA to OSCs in the Regions and solicited their comments twice in 1996. The PA was distributed in an earlier form at the NRT/RRT Co-Chairs meeting in Alexandria, Virginia in 1996. On October 30, 1996, a revised PA was formally transmitted to the NRT for comments by its members. In December 1996, ACHP published notice of the proposed PA in the Federal Register and solicited comments from interested parties and the public. Finally, the PA was presented again at the most recent NRT/RRT Co-Chairs meeting in Denver this past winter. Changes were made in the PA at each stage in this process, most of them to reflect and further clarify the limited role of the FOSC in considering potential effects on historic properties during emergency response, rather than affirmatively requiring the FOSC to protect historic properties.
Important Features of the Programmatic Agreement
Perhaps the most important feature of the PA is inherent in its form. An interagency agreement or memorandum of understanding sets out an agreement between Federal departments or agencies. Compliance with a programmatic agreement, as that term is employed by the Advisory Council on Historic Preservation in its regulations, 36 CFR Section 800.13, is deemed to satisfy an agency's legal requirements under Section 106. Under the terms of the instant PA then, compliance by a Federal department or agency will constitute compliance with Section 106 of the NHPA.(1)
The PA does not commit its signatories to a position on the applicability of any legal requirements under Section 106. Rather, the PA, at IV.A., provides only that "[f]or the purpose of this PA, the Federal OSC...is responsible for ensuring that historic properties are appropriately considered" [emphasis supplied]. Both the NRT and the Committee members have long-since agreed that, while it is not necessary to determine whether an emergency response activity is, in fact, legally an undertaking within the meaning of the NHPA, the FOSC, as the Federal official designated to coordinate and direct response actions, is the only Federal official who can meaningfully ensure that historic properties are appropriately considered during emergency response. Any other determination might result in dividing the FOSC's authority at the site of a spill or release. While the FOSC must ultimately consider the potential effects of emergency response actions on historic properties, Federal agencies, State officials, State Historic Preservation Officers (SHPOs) and others are available to assist in the work necessary to make such consideration possible.
In sum, the instant PA has been drafted both to facilitate consideration of historic properties during emergency response and to help protect the FOSC's actions from legal challenges under NHPA. The Sections of the PA are described briefly below.
Brief Overview of the Programmatic Agreement
The PA is divided into eight sections. The first three sections are introductory and explanatory. Section I explains the purposes of the PA, but makes clear that the priorities set out in the NCP, particularly protecting public health and safety, are the overriding concerns of the FOSC. Nothing in the PA changes the national response priorities set out in 40 CFR Section 300.17; nor does the PA change existing law. Sections II and III describe the NHPA and define "historic property."
An important change in the draft PA since it was first distributed to the NRT in March 1996, is contained in I.A., which now indicates that both ACHP and NCSHPO will be available to assist Federal OSCs in the event an individual SHPO does not respond. Also, I.F. notes that "during such time as ACHP and the NCSHPO are signatories, compliance with this PA will be deemed compliance with Section 106."
Section IV explains the role of the FOSC in considering the effect of emergency response activities on historic properties during planning and emergency response under the NCP. Significantly, as explained above, IV.A. does not interpret the legal requirements of Section 106; it merely specifies the responsibilities of the FOSC "[f]or the purpose of this PA." Also, Section IV now contains new language describing the assistance to the FOSC to be provided by the National Program Center (NPC) of the National Park Service. The inclusion of the NPC language satisfies long-standing concerns expressed by EPA members of the Committee as to the level of assistance available to FOSCs.
Section V further elaborates how historic properties are to be considered during pre-incident planning. Section VI spells out the specific actions to be taken to consider the effect of emergency response actions on historic properties, including activating the mechanisms and procedures developed during pre-incident planning. Section VI also lists potential adverse effects of a spill or release and of emergency response actions on historic properties. Section VII provides for development of regional PAs tailored to address local concerns and conditions.
The last textual portion of the PA, Section VIII, describes the signature and withdrawal process. It is important to note that while any signatory is free to withdraw from the agreement with 30 days' written notice, no signatory can unilaterally terminate the PA. In the event of a legal challenge, this will enable remaining signatories to contend in good faith that they are in substantive compliance with any applicable requirements of Section 106 of the NHPA. Of equal importance, it will enable remaining signatories to continue to utilize the procedures set out in the PA in order to consider the potential effect of emergency response on historic structures.