Kivalina takes Red Dog to court over air quality complaints
Exhibits for the case were to be filed with the court on Jan. 22, said Luke Cole, director of the San Francisco-based Center on Race, Poverty and the Environment, which is representing plaintiffs from the island of Kivalina.
U.S. District Court Judge John Sedwick will hear the case.
Cole, who served six years on the U.S. Environmental Protection Agency’s National Environmental Justice Advisory Council, said in an interview Jan. 11 that the lawsuit aims to get Teck Cominco to abide by stipulations laid out in the EPA permit that allows the firm to operate the mine.
According to EPA statistics, the massive amount of metals mined at Red Dog each year make the mine the greatest source of toxic releases in the nation.
“They’ve violated the permit more than 4,000 times,” Cole said. “This is a lawsuit to enforce just some of the violations. The court has already ruled in our favor on 621 of the violations and we will be proving several thousand more in trial.”
Teck Cominco’s attorney, Sean Halloran of Hartig Rhodes Hoge and Lekisch, said a lot of the violations alleged are based on a permit issued in 1998.
“The permit conditions contained in that permit were to be a starting point while the mine, the EPA and the state determined what were in fact appropriate standards that should be inserted in the permit,” Halloran said. “Since that time, the EPA has attempted to issue a new permit that incorporates the standards that the state of Alaska and EPA all agree should be the standards that protect the environment and that Teck Cominco should be meeting.
“The permit that incorporated all the revised standards is not in effect because the plaintiffs continually challenge issuance of a new permit and have frustrated the ability of the agencies to properly regulate the mine,” Halloran added.
Cole said the plaintiffs’ portion of the trial would last a couple of days. Halloran said the defense portion of the trial would take several weeks.
The lawsuit, filed in 2002, stems from concerns from the Kivalina Relocation Planning Committee that their drinking water and traditional hunting and fishing grounds have been contaminated by activity at the Red Dog Mine.
Kivalina lies on the tip of an eight-mile barrier reef between the Chukchi Sea and Kivalina River, about 80 air miles northwest of Kotzebue.
Residents of this small Inupiat Eskimo community, with a population of fewer than 400, are primarily subsistence hunters and fishers who rely on beluga whales, bearded seal, caribou and Dolly Varden trout, among other Arctic species, for the bulk of their food supply.
The community’s primary source of drinking water is the Wulik River. The lawsuit filed on behalf of the Kivalina Relocation Planning Committee alleges that Teck Cominco has violated its permits at its mine site and at the port site along the Chukchi Sea.
According to documents filed with the EPA, when it is discharging, the mine has almost continuously violated its permit conditions since permits were issued in 1998 and 1999, plaintiffs’ attorneys said.
Halloran countered that in fact Teck Cominco meets all standards, including water quality standards, that are protective of the environment. The reason there are some technical violations of a long-outdated permit is because plaintiffs keep working to assure that there will be violations in the future by challenging issuance of a new permit, he said.
The plaintiffs also allege that permit violations the relocation planning committee has identified are significant and hazardous, and that Teck Cominco’s wastewater regularly contains 1,500 percent more total dissolved solids than its permit allows. The lawsuit argues that the mine is releasing into the environment cyanide, lead, cadmium and zinc.
“The water quality standard initially adopted by the state of Alaska and approved by the EPA is 1,500 milligrams per liter of total dissolved solids measured at a particular point in the stream,” Halloran said. “At or below 1,500 milligrams per liter, there is absolutely no harm to the environment. Teck Cominco has never exceeded that 1,500 milligrams per liter standard.”
Red Dog, a major employer in Northwest Alaska, is a big contributor to the economy of the Northwest Arctic Borough. Belt-tightening, operational improvements to increase production and dramatic increases in zinc prices have combined to produce record profits, a banner year for the operator Teck Cominco and the landowner, NANA Regional Corp. NANA is the area’s Alaska Native regional corporation.
The mine currently employs more than 450 full-time, year-round workers and 91 seasonal workers, who come on board in the summer, when more help is needed for the shipping port and barge loading of metal concentrate. From 1989 through 2006, Teck Cominco has paid royalties to NANA totaling $177 million, according to mine officials.
Jim Kulas, environmental superintendent for Red Dog, said the mine is meeting high standards, and the complaints are still coming in because “I don’t think they fully understand what we’re doing.”
Officials from the mine meet on a quarterly basis with four elders from Kivalina and Noatak to discuss environmental issues, Kulas said. Mining officials are careful to avoid conflicts with caribou migration and other subsistence events, and also meet with residents of Kivalina at open house events twice a year, he said.
“That is our social license to operate,” Kulas said. Social license, a term now in vogue in the mining industry, means the mine is operating in an environmentally responsible manner with the consent of the community.
“NANA has a very strong presence in our activity and their mandate is very much the protection of subsistence and issues of their people,” Kulas said. “To me, Red Dog is a role model for anyone who wants to do business with Alaska Natives.”
In fact, Kulas said, the presence of minerals impacted Red Dog Creek, which runs into the Wulik, before mining began, and made it an unfriendly environment for fish.
“Now that we are collecting and treating water going into Red Dog Creek, we have fish spawning there, arctic grayling and Dolly Varden,” he said. “We have natural spawning.”
The plaintiffs’ attorney, Cole, scoffs at arguments that Red Dog Creek is now cleaner than before mining began. “When God created the creek it ran across a little patch of earth that was mineralized. Now miles of earth are exposed,” he said.
Kivalina resident Joe Swan Sr. doesn’t believe it either. Swan said some residents of Kivalina have tried since the mine opened in 1989 to get the company to reduce its discharges into waterways.
“They killed a lot of our fish,” he said. “This fall we found three dead mud sharks in the bottom of the creek. We tried to tell them to do something about it.”
Halloran countered that numerous studies of the water downstream of Red Dog Mine show the water is much cleaner and much safer than when the mine began operations.
“The natural state of Red Dog Creek, which flows into the Wulik River, is toxic,” he said.
Swan and others involved in the lawsuit have also expressed concern over fugitive dust, a term used to describe dust containing ore particles that gets into the environment from mining operations, including the transport of ore concentrate from the mine.
Swan said he believes Teck Cominco should build a pipeline from the mine to the ocean port to carry the ore to eliminate problems with fugitive dust, which can be inhaled by workers and spread throughout the environment.
Rich Sundet, of the Alaska Department of Environmental Conservation, noted in November the state approved a risk assessment of metals in dust from Red Dog, done under contract by Exponent Inc., a scientific and engineering consulting firm. The study was prompted by a 2001 National Park Service study, which found that concentrations of metals in tundra near the 52-mile DeLong Mountain Regional Transportation System road were higher than those observed in outlying areas.
Teck Cominco uses the road and port for transport of zinc and lead ore concentrate from the mine to ships on the Chukchi Sea. Exponent concluded in the report that “in most cases, the potential for harmful effects to occur in the environments surrounding the road, port and mine was considered to be low.”
Exponent found no harmful effects in the marine, coastal lagoon, freshwater stream and tundra pond environments, “although the potential for effects to invertebrates and plants could not be ruled out for some small, shallow ponds found close to facilities within the port site.”
The report also concluded that the likelihood of risk to populations of animals was considered low, with the exception that risks related to lead were predicted for ptarmigan living closest to the port and mine.
The report called for development of a risk management plan to identify the most appropriate combination of actions to achieve the overall goal of minimizing risk to human health and the environment in the mine area.
This is not an unusual approach, as risk management plans to protect the environment are development all the time, Halloran said.
“Everybody wants to make sure that the mine is not polluting anything,” he said.
Margaret Bauman can be reached at [email protected].