Alaska Native
Contaminated Conveyances
Determining liability and finding funds hinder cleanup of ANCSA lands
By Isaac Stone Simonelli
Alaska Native
Contaminated Conveyances
Determining liability and finding funds hinder cleanup of ANCSA lands
By Isaac Stone Simonelli
A

lthough the Alaska Native Claims Settlement Act (ANCSA) was passed in 1972, the conveyance of lands to the Alaska Native corporations formed by that act faces ongoing issues, including the fact that many of the lands were contaminated while not under Alaska Native ownership. The pace at which this is being resolved is unacceptable and unreasonable according to US Senator Lisa Murkowski, who calls it a “raw deal.”

The contaminants on some of these lands—which include arsenic, asbestos, lead, mercury, pesticides, polychlorinated biphenyls, and petroleum products—pose health concerns to Native Alaskan communities, negatively impact subsistence resources, and hamper economic activity, according to the Alaska Native Village Corporation Association.

“In a settlement with the government, Alaska Native peoples were promised—were promised—certain lands… and then when the conveyance has been made, you then find out that what you have received is contaminated property,” Murkowski says.

“It is damaged goods, effectively. And you are a small, small village, and you’re up against the federal government saying, ‘Hey, don’t you have a responsibility to clean this up before you give it to us?’ It is truly a situation that is daunting.”

The transferred lands belong not only to some of the 198 Alaska Native village corporations but also to the 12 Alaska Native regional corporations. Nonetheless, the costs of cleanup and the federal government’s ties to the liability in many cases have hampered the speed of remedial efforts, according to Murkowski.

“If it had been the private sector that had occupied these lands, contaminated them, and then walked away, you can bet that there would be no end to the repercussions, the financial assessments, the punitive damages. Yet, because it’s the federal government, it’s kind of like, ‘Well, I guess we’ll get to that when we get to that.’ That’s not acceptable and it’s not reasonable,” Murkowski says.

In 1971, ANCSA settled Alaska Native aboriginal land claims in exchange for titles to 44 million acres of land, a $963 million cash payment from the federal treasury, and additional oil revenue sharing. In an effort to enable statewide economic development, the act also created more than 200 village corporations and 12 regional corporations, some of which have since merged to combine resources or otherwise better serve their shareholders.

“In many cases, the presence of contamination was known by the responsible agency. However, because ANCSA had no provision for considering contamination, the BLM had no mechanism for establishing the presence or absence of contamination on lands to be conveyed.”
Paul Krabacher, Project Lead
2016 Report to Congress: Hazardous Substance Contamination of Alaska Native Claims Settlement Act Lands in Alaska

Congress directed the Department of the Interior’s Bureau of Land Management (BLM) to oversee the transfer of federal lands to the then-newly established ANCs. The first ANCSA conveyance occurred in 1974. To date, about 36 million of the promised 44 million acres have been conveyed.

Though the BLM is not allowed to knowingly transfer contaminated land, which prevents ANCs from returning such land back to the federal government, there were no systems in place at the initial time of conveyance to inform the agency that some of the millions of acres set to be transferred were contaminated.

In 2016, the BLM presented its Report to Congress: Hazardous Substance Contamination of Alaska Native Claims Settlement Act Lands in Alaska. The report included an inventory of all known contaminated sites conveyed to ANCSA landowners, as well as recommendations for cleanup. It came nearly twenty years after a similar 1998 report to Congress.

“There’s a lot of contaminated sites that were conveyed and many have been cleaned up in the past,” says John Halverson, the Alaska Department of Environmental Conservation’s contaminated sites program manager.

“This report is focused more on the sites where contamination remains and sites where prior cleanup efforts may not be sufficient.”

The 2016 BLM report identified 920 contaminated sites conveyed to ANCSA landowners, based on data collected by the Alaska Department of Environmental Conservation and several federal agencies.

“Of those, 328 sites have been cleaned up, 338 sites require additional cleanup, 242 sites have sufficient land use controls to prevent human exposure, and 12 sites have no confirmed release of contaminants,” the report states.

Though the BLM was—and remains—in charge of conveying land to ANCs, at the time when many of the lands were first conveyed to regional and village corporations, the department says it was uninformed of the contaminants.

“In many cases, the presence of contamination was known by the responsible agency. However, because ANCSA had no provision for considering contamination, the BLM had no mechanism for establishing the presence or absence of contamination on lands to be conveyed,” explains Paul Krabacher, the project lead for the 2016 Report to Congress. “We don’t have the authority to compel action was the main message that we delivered in that 2016 report.”

Instead of the BLM, the responsibility for ensuring the lands are cleaned up ultimately falls on the shoulders of the Alaska Department of Environmental Conservation (ADEC) and the Environmental Protection Agency (EPA).

Though not responsible for picking up the tab, ADEC does oversee cleanup of all contaminated sites in Alaska, including those identified on land conveyed to ANCs, explains Halverson.

Establishing liability, however, is more difficult, as the lands were managed by various federal government bodies, as well as leased out to private sector operations. One of the many factors stymying efforts to clean up the contaminated lands is compiling a site-specific history on each property and determining who is responsible.

“Liability provisions in both state and federal laws are broad—and that’s by intent so that the burden doesn’t fall back to the state or the federal governments to do the cleanups unless they are the responsible parties or liable parties,” Halverson says. “It depends on who caused the release, who owned the land at the time of the release, and what’s happened since then.”

However, the liability provisions are even broader than that, extending to current owners and operators, which was one of the challenges with the ANC sites, Halverson says. Up until 2018, the state had some limited liability relief for corporations that received contaminated land.

“That was obviously very concerning for the corporations,” Halverson says.

That changed with the passage of the 2018 Brownfields Utilization, Investment, and Local Development (BUILD) Act, which established that corporations that received land under ANCSA aren’t liable for contamination that existed at the time of conveyance as long as they didn’t cause or contribute to it.

“For years, it’s been unclear who is ultimately responsible for cleanup of lands conveyed to ANCs that were contaminated by the federal government,” Senator Dan Sullivan says.

“[The BUILD Act provision] is a first step in righting a wrong. We aren’t done. We’ll continue to fight to ensure that federal agencies take responsibility for all lands in Alaska that they contaminated,” Sullivan says.

The BUILD Act is making a significant difference, Halverson says.

“ANCs were hesitant to notify us of contamination because they were concerned that they would then be held liable and have to undertake the cleanup work,” Halverson says.

“If it had been the private sector that had occupied these lands, contaminated them, and then walked away, you can bet that there would be no end to the repercussions, the financial assessments, the punitive damages. Yet, because it’s the federal government, it’s kind of like, well, I guess we’ll get to that when we get to that. That’s not acceptable and it’s not reasonable.”
Senator Lisa Murkowski

Prior to the changes, ANCs were ineligible for cleanup grants, such as EPA Brownfield grants, because they were responsible parties per the Comprehensive Environmental Response, Compensation, and Liability Act, explains Alaska Native Village Corporation Association Executive Director Hallie Bissett.

This left them responsible for the cleanup of land they received in exchange for settling land claims.

In some cases, the passing of the BUILD Act was less useful to ANCs, as contaminated land sometimes becomes landfill sites for villages.

“There was a dumpsite and then the local community members just turned that into a landfill,” says Brennan Cain, vice president and general counsel for The Eyak Corporation. “And that’s where there is a big problem because through the Native American Lands Environmental Mitigation Program—as far as I understand it—the government wants all the responsible parties to come together, which is challenging for the ANC. Even if you’re 10 percent or 20 percent liable, that can still be an enormous bill, especially for a village corporation to have to foot.”

Though the exact cost of the cleanups is hard to estimate, the Alaska Native Village Corporation Association estimates it is in the tens of billions of dollars.

Nearly half (162) of the sites identified by ADEC that still need to be cleaned up were owned or operated by the Department of Defense prior to transfer, according to the 2016 Report to Congress. Many of these were part of the World War II and the Cold War buildups in the Last Frontier. The next largest category was “State of Alaska and state political subdivisions,” which comprises 51 sites.

While gathering the funding necessary for these cleanups is slow, establishing the liable party is much easier for military sites than for the little more than 100 contaminated sites that are considered orphaned. For these sites, the ADEC must identify an existing financially viable liable party or parties.

“For example, where a mining company operated for a period of time and it no longer exists, it may have been purchased by a successor company or it may have simply gone out of business,” Halverson says. “If there’s no responsible party that’s left, the landowner still would have liability.”

In those cases, ADEC has to establish which federal government agency owned the land or managed it at the time of contamination to establish liability. In other cases, there may be many parties with liability and negotiation is needed to determine how to divide up the costs and conduct the cleanup.

Though those cases are particularly murky, others are much more straightforward, such as the Buskin Beach land conveyance.

According to a statement by Natives of Kodiak (NOK), the corporation was allowed to select 23,040 acres of land within “reasonable proximity” of the municipality of Kodiak in lieu of direct cash payments with the understanding that they held significant future economic value.

Limited availability of federal lands within the designated area resulted in the corporation receiving only about 5 percent of the acres promised, among those 743 acres known as the Buskin Beach property.

“In its ongoing efforts to provide financial benefits to its shareholders, NOK has continually sought to develop its Buskin Beach lands as a residential subdivision and commercial property, an obligation ultimately rendered impossible to fulfill due to the property’s serious environmental contamination—which was NOT PROPERLY DISCLOSED to NOK, by the Federal Government, prior to land conveyance,” the document reads.

The site, which was previously the central headquarters for US Army Fort Greely during World War II, contains various types of contamination as it was an asphalt and metal disposal area and housed an underground storage tank site and grease pit.

“Due to the existence of groundwater contamination, NOK is unable to develop this land or sell it to a third party in its current condition,” the document reads, noting that, despite years of remediation efforts by Army Corps of Engineers, the land remains significantly contaminated. “Our shareholders have been unduly and unfairly penalized financially by this situation for more than forty years and it is time to permanently and equitably rectify it.”

The corporation continues to get regular updates on the levels of contamination of the property, confirms NOK Vice President David Anderson. And, despite the significant setbacks, Anderson says that the corporation is moving forward with finding development opportunities to better support their shareholders.

Corroded metal containers
Three corroded metal containers

Cain points out that several ANCs have not pursued or been able to pursue certain economic opportunities on their land because of contamination.

“Somebody wanted to do a hunting lodge, which can make pretty good money, people spend a lot of money on those trips, but they couldn’t because the land they were considering using was contaminated,” Cain says.

Though such economic impacts are troubling for ANCs, there is more work to be done than money allocated to do it. With limited budgets and cleanup for some sites—such as those with heavy metal contaminants—being decade-long projects, the ADEC is working with various federal agencies and ANCs to prioritize efforts.

Following the 2016 report, the Alaska Native Village Corporation Association formed a contaminated lands working group and continued to work directly with the Army Corps of Engineers with the intent of prioritizing sites for cleanup. Additionally, it’s been working with members to apply for cleanup funds, putting them in partnerships with companies that have significant past performance with environmental cleanup so that they can train their own people locally and gain valuable skill sets where they are needed the most, Bissett says.

“We do try to focus our efforts first on the highest risk sites. Those would be ones where you’ve got contaminants that people are being exposed to, especially on a regular basis. So, for example, sites with drinking water impacts—those go to the top of the list,” Halverson says. “Or if we have high concentrations of contaminants in, say, surface soils in an area that people use regularly—such as a residential area or a populated area—there’s a greater potential for exposure.”

Another set of factors that are considered when establishing priorities are the properties of the contaminants, such as how persistent they are and whether they bioaccumulate. Unlike petroleum products, which naturally breakdown over time, heavy metals and PCBs are extremely persistent, making them higher priorities, says Halverson.

“Some of those persistent contaminants also will bioaccumulate in people, wildlife, or plants. So, those are a higher concern than something that doesn’t bioaccumulate,” he explains.

Alaska shares a full list of environmental contaminants that pose health concerns to the rest of the country, including heavy metals and organic compounds, says Michael Brubaker, the director of Community Environmental Health for the Alaska Native Tribal Health Consortium.

“There are some new actors such as PFAS [perfluoroalkyl and polyfluoroalkyl substances] that we are all learning more about right now. And there are the longer term, well-recognized sources such as DDT which is no longer manufactured in the US or polychlorinated biphenyls,” Brubaker says. “What is different in Alaska is the routes of exposure.”

For those living in Unalakleet, the exposure to PCBs comes via the Air Force-operated North River Radio Relay Station, which was open from 1958 to 1978.

“When military activities in the surrounding area ended, buildings, debris, and thousands of 55-gallon drums were left behind, saturating the tundra and infecting the local food and water sources,” a Unalakleet statement issued in 2013 reads. “In fact, the land around the former RRS is used for hunting, berry picking, and recreation. Soil contaminated by polychlorinated biphenyls (PCBs) was discovered on the site on July 10, 2003.”

Though cleanup began in 2004, with the Air Force removing 31,350 pounds of contaminated soil, a larger volume than estimated was found and logistical complications prevented the removal of all contaminated soil.

“Our shareholders have been unduly and unfairly penalized financially by this [contaminated land] situation for more than forty years and it is time to permanently and equitably rectify it.”
Natives of Kodiak

“The contaminated soil still exists with fencing and warning signs around it,” according to the statement.

In 2013, Unalakleet Village Transportation Planner Stephen Ivanoff testified in front of the EPA, asserting that PCBs still exist on Unalakleet land.

“Parkinson’s disease had not been seen in the Alaska Native population in the past. I believe PCBs and other toxics left behind by the military contributed to the disease I and others have been diagnosed with,” Ivanoff says.

Epidemiological and experimental studies have identified exposure to PCBs as a potential risk factor for Parkinson’s disease, according to Association Between Polychlorinated Biphenyls and Parkinson’s Disease Neuropathology published by Emory University School of Medicine’s Center for Neurodegenerative Disease.

How contaminated land sites are cleaned once funding is made available varies from site to site, Halverson says. The first point of division is under which rules the cleanup will be conducted, as there are both federal and state environmental laws. Though any cleanups can be done under state regulations, many federal agencies prefer to work under EPA regulations by following those established through the Comprehensive Environmental Response, Compensation, and Liability Act or Resource Conservation and Recovery Act.

Corroded metal drums
“ANCs were hesitant to notify us of contamination because they were concerned that they would then be held liable and have to undertake the cleanup work.”
John Halverson
Contaminated Sites Program Manager, ADEC

Either way, the contractor leading the charge on the cleanup will need to conduct fieldwork, taking samples from the soil, groundwater, surface water—whatever is determined necessary to ascertain how far the contaminants have moved in the environment, Halverson says.

The resulting site characterization report is then submitted to the ADEC and in some cases the EPA, which will dictate what needs to be included in the cleanup plan. Once approved, the contractor can move forward with the cleanup.

“The bottom line is that the cleanups take a long time. It’s pretty easy to spill contaminants and create a problem, [but] it takes a long time to clean them up, unfortunately,” Halverson says.

After cleanup, similar steps are taken to prove that the cleanup satisfies the agencies’ requirements, Halverson adds.

Cain points out one way for the ANCs to capitalize on contaminated lands is by becoming engaged with the cleanup as contractors, which out of the gate could provide shareholders with additional training.

“There’s pride associated with that. There’s employment,” Cain says. “And it could be these companies end up doing more work in Alaska. You sort of help impoverished people, impoverished communities develop an economic engine.”

However, Cain says that he recognizes there are limited amounts of funds each year to engage with cleanups. But they must nonetheless be chipped away at.

“It’s going to be a long time before all of them are clean, but—sort of like the whole eating an elephant—you got to take it one bite at a time and you’ve got to keep going,” Cain says.

Murkowski says she sympathizes with the situation the ANCs face.

“You can’t take the federal government to court for this. You basically just have to try to make your case for why it’s a priority. But we have worked on so many of these different issues over the years. Trying to find, is there a trade that can be made? Is there a way that you can help to offset these costs somehow or reduce the costs that are out there?” Murkowski asks.

“It is everywhere from Kodiak Island to Point Lay—to all points in between … We are competing [for funding] with many [contaminated sites] across the country and with extraordinary high cost to remediate—but it’s gotta be done. We’ve got the obligation we need to make it happen.”