Michael O'Brien

November 13, 2001

What does an industrial site in Bulgaria have in common with a Native community in the Alaskan arctic?  They are both polluted with high levels of heavy metals.  A report released by the National Park Service (NPS) on June 20, 2001 confirmed that the levels of heavy metals present on the tundra in Cape Krustenstern National Monument are as high as those present at the most polluted industrial sites in Eastern Europe.[2]  The heavy metals lead, cadmium and zinc were found alongside a 52-mile haul road used exclusively by Teck Cominco Ltd. to haul lead from the Red Dog mine.[3]  Worse yet, heavy metal levels located near the ore storage area are considerably higher.[4]

This is an environmental justice problem.[5]  The Alaska Department of Environmental Conservation (ADEC) refuses to close or clean up the haul road corridor[6] and bases this decision on the fact that heavy metal concentration levels do not meet those required for "industrial" sites.[7]  However, this area is by no means "industrial"; on the contrary, it is extremely remote and rural, used as subsistence food gathering area and is the traditional "residence" of the Inupiat people of Kivalina.[8]  While the Alaska Administrative Code provides the ADEC with significant discretion in selecting a cleanup standard,[9] the ADEC has been silent to any standard other than "industrial."[10]

The area alongside the haul road is as much the "residence" of the citizens of Kivalina as the land surrounding any Anchorage subdivision is the "residence" of those who live in the city.  The Alaska Administrative Code's "residential" standard, which mandates cleanup at a far lower level than does the "industrial" standard, is appropriate here.[11]  This editorial explains how a choice of legal interpretation by the ADEC has led to a serious environmental justice issue in Alaska's arctic and a potential threat to the health of the Inupiat residents of Kivalina.  Further, it suggests that the residents of Kivalina have not been afforded the same environmental protection that would normally be given to non-native residents of Alaska's more populated areas.[12]

The Red Dog Mine is a joint venture between the mine owner, Northwest Alaska Native Association Regional Corporation (NANA), Teck Cominco (a Canadian mining company), and the Alaska Industrial Development and Export Authority (AIDEA).[13]  The mine is located in the DeLong Mountains of the western Brooks Range, approximately 600 miles north of Anchorage and 55 miles inland from the Chuckchi Sea.[14]  It is the largest zinc mine in the world, producing 1.2 million tons of lead and zinc concentrate annually.[15]  Lead and zinc are mined and then transported over the DeLong Mountain Transportation System (DMTS) (the haul road's official name), to a port site storage facility.[16]  The metals are transported year-round, but are stored most of the year while the Chuckchi Sea is choked with ice.[17]

The haul road is owned by AIDEA, which leases exclusive travel rights to Teck Cominco.[18]  Trucks continuously traverse the haul road carrying 100-ton payloads to the port site,[19] and they kick up large volumes of airborne dust as they travel.[20]  Because the haul road traverses Cape Krustenstern National Monument, the National Park Service (NPS) commissioned a study to determine whether lead and zinc were being deposited in the dust that was drifting onto the tundra.[21]  The NPS study concluded that:

[a] strong road-related depositional gradient was found for all analytes (Ag, Al, Ca, Cd, Fe, Mg, Pb, and Zn) in Hylocomium splendens moss, with highest concentrations adjacent to the haul road. Concentrations of Cd [cadmium] in these near road samples exceed concentrations in regional samples from arctic Alaska, Europe, . . . as well as concentrations in samples from heavily polluted regions in Eastern Europe. Concentrations of all elements decrease rapidly with distance from the road, although heavy metal levels remain elevated 1000 m - 1600 m from the road at transect endpoints. Concentrations of Cd and Pb [lead] even at 1000 m and 1600 m from the road exceed medians (and in most cases maxima) from all 28 countries in the Nordic moss monitoring program, including many of the most polluted countries in Central and Eastern Europe and all areas of western Russia.

Enrichment factor analysis of moss versus local soil parent material demonstrates that remobilized soils (e.g., dust composed of roadbed material) account for only a fraction of the elevated heavy metal concentrations in the road corridor. Enrichment in Pb, Zn, and Cd from airborne sources other than remobilized soils (e.g., ore concentrate) is readily apparent. Dust on roadside willow and birch contains very high levels of heavy metals, relative to metal levels in soils at depth and materials sites samples. These findings raise the possibility of airborne heavy metal contributions from mining activities not only to the haul road corridor (via ore concentrate escapement) but also to the Omikviorok River drainage as a whole.[22]

To summarize, the NPS report made four important findings.  First, the levels of cadmium and lead alongside the haul road are significant and are higher than those found around heavily polluted industrial sites in Eastern Europe.[23]  Second, whether moving north or south of the haul road, the levels of heavy metals decrease as distance from the road increases-this correlation suggests that the heavy metals come from the road or something traveling on it.[24]  Third, the heavy metals near the road cannot simply be the product of stirred-up road dust and are more likely deposited by the Red Dog trucks as they pass.[25]  Finally, the report suggests that heavy metals may not only be present alongside the haul road, "but also [in] the Omikviorok River drainage as a whole."[26]

The Omikviorok and Wulik River drainages are the residences of the people of Kivalina.[27]  This is an extremely rural area, and the village is perched on a spit in the Chuckchi Sea.  Kivalina depends on subsistence food gathering, as well as hunting seal, walrus, whale, salmon, whitefish and caribou.[28]  The village is made up of 377 residents, 96.6 percent of which are Inupiat.[29]  Over one-half of residents are unemployed and one-third of residents are considered to live in poverty.[30]  The village's inhabitants have historically harvested the now-toxic Omikviorok tundra for subsistence foods such as leafy burdock.[31]

Although AIDEA asserts, "Red Dog Mine is an example of how mining can be compatible with indigenous peoples' values and the principle of sustainable development,"[32] and Teck Cominco states that it "supports environmentally and socially responsible development,"[33] the Kivalina Village Council passed a resolution on June 22, 2001, petitioning the ADEC to issue an emergency order closing the haul road.[34]  Their reasoning was based on the NPS study's conclusions.  It is clear to the people of Kivalina that they are pollution's silent victims and are bearing a disparate environmental burden while others profit.  Their resolution was clear and told ADEC:

contamination along the Red Dog Haul road is an indication that the trucking company is unqualified to haul processed ore in that anyone, even the most untrained citizen in the shipping business, would know that lead and zinc dust will blow if not adequately secured in a container[,] providing proof that the trucking company and Cominco are grossly negligent in their operations or are unqualified to operate a mine. . .[35]

In spite of their pleas, ADEC refused to close or cleanup the road.[36]

The environmental injustice in ADEC's refusal to close or cleanup the haul road corridor stems from its reasoning, which presumes the tundra to be an "industrial site."[37]  The Alaska Administrative Code dealing with lead clean up states: "Lead cleanup levels must be determined on a site-specific basis, based on land use; for residential land use, the soil cleanup level is 400 mg/kg, and for commercial or industrial land use, that level is 1,000 mg/kg."[38]  Thus, there is no inherent "industrial" designation for any land; the code calls for site-specific and use-specific cleanup standards.

ADEC ignored their mandate and arbitrarily chose to implement the least stringent cleanup standard.[39]  This is not reasonable, as the land in question is clearly not industrial.  It is one of North America's most rural areas, is used as a food source and is protected as a National Monument.  These facts severely undercut the appropriateness of an "industrial" standard.  Indeed, the application of this inapposite standard is made more tragic when one notes that lead levels within three meters of the haul road already surpass the residential standard and that the mine is currently increasing production by twenty percent.[40]  Thus, cleanup would have been mandated by the Alaska code had the ADEC declared the area "residential," or if they had simply set a cleanup standard based on current and historical land use.  Clearly, a lower standard is more appropriate.

Simply put, ADEC has chosen the path of least resistance.  When the mostly native, mostly economically disadvantaged people of Kivalina complained of heavy metals in their ancestral home, ADEC had a simple answer: Your home is an industrial site.  Now the people of Kivalina must wait for the level of heavy metals around their homes to reach those of Eastern European industrial sites before ADEC will act.  One must wonder whether homeowners in Anchorage or Juneau would have been held to the same standard.

______________

[1] B.A. The University of Montana, M.A. St. John's College, J.D./M.S.E.L. candidate, Vermont Law School.

[2] JESSE FORD & LINDA HASSELBACH, NATIONAL PARK SERVICE, NO. NPS/AR/NRTR-2001/38, HEAVY METALS IN MOSSES AND SOILS ON SIX TRANSECTS ALONG THE RED DOG MINE HAUL ROAD-ALASKA ii (May 2001) ("Highest levels near the Red Dog Haul Road equal or exceed (1.5 - 2.5 times) maxima reported for samples from severely polluted regions in Central European countries.") [hereinafter HEAVY METALS]. But see Paula Dobbin, Regulators Swing Focus to Red Dog, ANCHORAGE DAILY NEWS, July 18, 2001 (quoting EPA attorney Keith Cohon "There are probably places in the United States and on every continent that are more and less polluted than Europe.").

[3] Id.

[4] Alaska Community Action on Toxics, Newly Released Information Reveals Toxic Lead and Zinc Contamination at Red Dog Mine's Port Site (Sept. 26 2001), at http://arcticcircle.uconn.edu/SEEJ/RedDog/reddog_akcat.htm [hereinafter ACAT].
[5] Environmental justice is the right to a safe, healthy, productive, and sustainable environment for all, regardless of race or economic standing. Some may argue that this is actually "environmental racism," as defined by Reverend Benjamin E. Chavis, Jr., Ex-Chairman of the NAACP: "Racial discrimination in environmental policy-making, enforcement of regulations and laws, and targeting of communities of color for toxic waste disposal and siting of polluting industries,"

[6] Press Release, Alaska Department of Environmental Conservation, DEC Denies Petition to Close Haul Road to Red Dog Mine (July 13, 2001), available at http://www.state.ak.us/dec/press/2001/rel_07103.htm [hereinafter ADEC Denial].

[7] Letter From AK DEC Commissioner, Michelle Brown, to Anne Rothe, Executive Director of Trustees for Alaska (July 13, 2001), available at http://www.state.ak.us/dec/press/reddog/trustltr.htm [hereinafter Brown].

[8] See I Love Alaska, Kivalina Alaska (2001), at http://www.ilovealaska.com/alaska/Kivalina/.; (n.b. The Native Village of Kivalina is a federally recognized tribe established pursuant to the Indian Reoganization Act of 1934).

[9] ALASKA ADMIN. CODE TIT. 18, § 75.341, nt. 11 ("Lead cleanup levels must be determined on a site-specific basis, based on land use") (emphasis added) [hereinafter 18 AAC § 75.341].

[10] See Brown, supra note 7; see also ADEC Denial, supra note 6.

[11] 18 AAC § 75.341, supra note 9.

[12] The scope of this editorial is limited to the environmental injustice of ADEC's decision to not engage in a cleanup of the haul road. Without a doubt, inquiries into the NANA/Kivalina, NANA/NPS, and Teck Cominco/NANA conflict may also yield interesting and useful information.

[13] Alaska Industrial Development and Export Authority, Virtual Tour of the Red Dog Mine (2001) at http://www.aidea.org/tour.htm. [hereinafter AIDEA] (n.b. See this website for well-organized and illustrative photos of the Red Dog Mine, the ore storage facility and the DeLong Mountains Transportation System).

[14] Id.

[15] Id.
[16] Id.
[17] Id.
[18] National Park Service GIS Data Clearinghouse (2000) at http://www.nps.gov/akso/gis/metadata/reddogrd.html.

[19] HEAVY METALS, supra note 2, at 1.

[20] Id.
[21] Id.

[22] Id. at 21 (emphasis added).

[23] See id.

[24] See id.
[25] See id.

[26] Id.

[27] See Alaska Department of Community and Economic Development, at http://www.dced.state.ak.us/mra/CF_CIS.cfm.

[28] Id.

[29] Id.

[30] Id.

[31] See id.

[32] AIDEA, supra note 2.

[33] Teck Cominco, Environment: Our Commitment, at http://www.teckcominco.com/enviro/enviro.html.
[34] Kivalina IRA Council, Resolution 01-16 (June 22, 2001), at http//:arcticcircle.uconn.edu/SEEJ/RedDog/ira_resolution.htm.

[35] Id.

[36] Brown, supra note 7; ADEC Denial, supra note 6.

[37] Id.

[38] 18 AAC § 75341, supra note 9 (emphasis added).

[39] See Brown, supra note 7; See ADEC Denial, supra note 6.

[40] HEAVY METALS, supra note 2, at 8-11; Teck Cominco, 2000 Annual Report, at http://www.teckcominco.com/invrel/reports/teckar2000.pdf.