Department of Interior Responsibility for Contaminated Sites in Alaska
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Department of Environmental Conservation OFFICE OF THE COMMISSIONER Post Office Box 111800 Juneau, Alaska 99811-1800 Main: 907.465.5066 Fax: 907.465.5070 May 27, 2021 Secretary Debra Haaland Department of the Interior 1849 C Street, N.W. Washington, DC 20240 Subject: Department of Interior Responsibility for Contaminated Sites in Alaska Dear Secretary Haaland, Congratulations on your appointment as Secretary of the Department of Interior (DOI). We look forward to working with you, and expect there will be a fair number of opportunities to do so as a significant portion of the land managed by DOI is within Alaska. We would like to bring to your attention a matter of great concern to the people of Alaska generally and Alaska Natives in particular, namely the cleanup of hundreds of contaminated sites located on lands conveyed by the federal government under the Alaska Native Claims Settlement Act (ANCSA). As you likely know, the federal government did not enter into treaties with most Alaska Natives. Instead, they enacted ANCSA whereby Alaska Natives gave up their aboriginal land rights in exchange for, among other things, land. The transfer of these lands was a vital part of the settlement and the land was intended to be used by Alaska Native Corporations to benefit their members. Since Congress passed ANCSA in 1971, the federal government has conveyed over 44 million acres of land to Alaska Native Corporations. Regrettably, the conveyed lands included more than a thousand contaminated sites, for which the federal government bears responsibility for cleanup. Alaska Native Corporations should not have received contaminated lands as part of ANCSA. This was not a part of the bargain struck in 1971. These sites include many former military installations, as well as schools, tank farms, oil exploration sites, and abandoned mines. Contaminants remaining at these sites include petroleum, heavy metals, polychlorinated biphenyls (PCBs), and chlorinated solvents. Many of these sites are located within or adjacent to our rural communities, and in some cases, contamination presents substantial risks to rural populations or is preventing the beneficial re-use of otherwise valuable real estate. Many of these contaminated sites pose a substantial risk to human health and the environment. Congress has, over many years, requested that DOI provide it with information on the transfer of contaminated lands under ANCSA. In 1990, Congress requested that the Secretary of the Interior (SOI) prepare a report about the contaminated lands conveyed under ANCSA. Specifically, the SOI was to DOI – ANCSA Sites 2 May 27, 2021 report on 1) the identification of lands transferred to Alaska Native Corporations under ANCSA which, at the time of transfer, were reported by the federal government as free from contamination and which, after transfer, were discovered to be contaminated, and 2) the identification of land the federal government knowingly transferred to Alaska Native Corporations with contamination.1 We have been unable to find any report resulting from the 1990 request. In 1995, Congress amended ANCSA and required that the SOI submit a report addressing the issue of contamination on lands conveyed pursuant to ANCSA including: 1. existing information on the nature and types of contamination on lands before conveyance; 2. identification of potentially responsible parties for removal or remediation of contaminants; 3. identification of existing remedies at each site; 4. recommendations for legislation necessary to remedy the situation; 5. identification of structures with asbestos; and 6. training of locals to participate in the cleanup efforts.2 The SOI issued a report in 1998. While the report did compile an inventory of sites, it failed to fulfill the requirements of numbers 3, 5, and 6 above (DOI admitted to this in its subsequent 2016 report) and gave only cursory attention to numbers 2 and 4. Finally, in 2014 Congress required that DOI report on: 1. a comprehensive inventory; 2. an updated status on the six items requested in 1995; and 3. “[a] detailed plan on how the Department intends to complete cleanup of each contaminated site.”3 The resulting 2016 report provided an updated, yet still not comprehensive, inventory of a total of 1,179 contaminated sites conveyed to Alaska Native Corporations through ANCSA.4 With respect to the other issues Congress requested of DOI, not only did DOI blatantly ignore Congressional direction to do this work, astoundingly, BLM instead laid further inventory work and responsibility to ensure cleanup at the feet of the Alaska Department of Environmental Conservation (DEC). Recommendations of the 2016 Report include that DEC should finalize the comprehensive inventory and implement a remedial action process to initiate site cleanup at these sites. DEC notes that the inventory, the remedial action process, and cleanup of these sites are the responsibility of the federal government, and not the State of Alaska. Even the inventory is not yet complete and not all sites have been verified as having contamination. The 2016 Report acknowledges that the inventory is “preliminary.” Since 2015, DEC has attempted to advance this effort with BLM, the Environmental Protection Agency (EPA), and other federal agencies, but progress has been slow and a great deal of work remains. While EPA has provided some limited funding for DEC to refine the ANCSA inventory and potentially perform some site verification work, these resources have been woefully short of what is required to complete this work. Finalizing the inventory of 1 Section 326 of Public Law 101-512 (November 1990), page 64. 2 Section 103 of Public Law 104-42 (November 1995), Page 2. 3 Public Law 113-235 (December 2014), page 454 of the joint explanatory statement. 4 Note that DEC’s number is based on the BLM inventory as updated through July 2019. DOI – ANCSA Sites 3 May 27, 2021 the nature and types of contaminants present on lands prior to conveyances to Alaska Native Corporations is the continuing responsibility of DOI -- as intended and directed by Congress. With respect to the cleanup of these federally contaminated sites, the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9607) and Alaska Statutes (AS 46.03.822) establish who is financially responsible or liable for the investigation and cleanup of any release or threatened release of a hazardous substance, jointly and severally. As the former owner who owned the property at the time of the release it is the federal government’s responsibility to perform investigations and clean up these sites. While some sites have been cleaned up in the past, many sites with confirmed contamination have stalled in the cleanup process, and DEC has been unable to establish productive, responsive working relationships with federal agencies who should be conducting these cleanups. Other sites are suspected of being contaminated, but contamination needs to be confirmed through historical research and sampling. DOI must develop a detailed plan to complete cleanup at each contaminated site, both by virtue of being a responsible party at these sites and given the direction of Congress in 2014, and then follow through with actual cleanup. In an effort to move forward with this long-standing problem, we request your assistance in three major areas: 1) Direct DOI to immediately begin to investigate and perform clean up at those sites which are not already being actively addressed on a reasonable timeline; 2) Direct DOI to complete site verification for those sites where contamination is suspected, but not confirmed; and finally 3) As an ongoing activity, direct DOI to refine and maintain the inventory of ANCSA contaminated sites or provide DEC with resources to complete this work. I am sending a separate letter to BLM (enclosed) specifically requesting an update on the cleanup status of these sites, requesting a plan of action for those sites where progress has stalled, and requesting the allocation of further resources to complete the ANCSA Inventory. DOI has a moral and legal responsibility to address these contaminated sites, which have already languished for far too long. I thank you for your attention to this matter and look forward to the day when all these sites have been cleaned up, and Alaska Native Corporations are able to use these lands freely. Sincerely, Jason W. Brune Treg R. Taylor Commissioner Attorney General Enclosure: DEC Letter to BLM, Concerning ANCSA Sites cc: Sara Taylor, Congressional Affairs and Policy Advisory, DOI, Alaska Emma Pokon, Deputy Commissioner, DEC Tiffany Larson, Director, Division of Spill Prevention & Response, DEC Jennifer Currie, Assistant Attorney General, DOL DOI – ANCSA Sites 4 May 27, 2021 Senator Lisa Murkowski Senator Dan Sullivan Representative Don Young Department of Environmental Conservation OFFICE OF THE COMMISSIONER Post Office Box 111800 Juneau, Alaska 99811-1800 Main: 907.465.5066 Fax: 907.465.5070 May 27, 2021 Sara Taylor, Congressional Affairs and Policy Advisory Department of the Interior 4230 University Drive, Suite 300 Anchorage, Alaska 99508 Subject: Notification of Hazardous Substance Liability on ANCSA-conveyed Contaminated Sites Dear Ms. Taylor, The purpose of this letter is to request the completion of the inventory and cleanup plans for contaminated sites located on lands conveyed by the Bureau of Land Management (BLM) to Alaska Native Corporations under the Alaska Native Claims Settlement Act (ANCSA). Although some of the hundreds of sites