Oil and water
Anchorage Press – Anchorage,AK,USA June 11, 2008
Is the Copper River safe from a pipeline spill? Residents, environmentalists and fishermen don’t think so.
By Krestia DeGeorge

At about 10:30 last Monday, on the fourth floor of a downtown office building, Gabe Scott was trying, without much success, to keep his hands from fidgeting.

The 34-year-old environmental activist looked like the living definition of the term ill-at-ease. A suit perched awkwardly on his shoulders, incongruously paired with his bushy red beard. In the room—more often used for workers’ compensation proceedings—an administrative hearing was underway, and Scott, who has no formal training to practice as a lawyer, was trying his best to play the role.

It wasn’t going all that well.

At one point, trying to establish the cultural importance of the Copper River salmon runs to the Ahtna people, Scott asked an elder whether fishing was a social event. Perhaps mistaking the intent of the question, the man replied, no, on the contrary, fishing was important to villagers’ survival. Clearly this witness hadn’t been coached. Scott shot a furtive glance across his shoulders toward the opaque faces of the real lawyers in the room. Stephen Mulder is an assistant attorney general representing the state Department of Environmental Conservation in the hearing. Michael Seville is a private attorney who was in the room that morning on behalf of Alyeska Pipeline Services.

The two lawyers, Scott, the elder and a dozen other people were all in this room this morning because an assortment of different groups—environmentalists, Native corporations, fisherman—don’t believe the pipeline company’s latest contingency plan—the document that describes how Alyeska plans to deal with a spill—goes far enough to protect the Copper River and its habitats and fisheries. And they believe that by approving it, the DEC has failed to discharge its obligations under state law.

Although it has the feel of a courtroom, this week’s proceedings (final arguments were scheduled for Thursday, the day this paper hits the street) are a step shy of an actual court case.

To make it to this point, the “requesters,” as they’re called, have already been through the public comment period that normally accompanies contingency plans like the kind that Alyeska has to file. In fact, they’re here mainly because they don’t believe their comments in those public comment periods were taken seriously enough. This is the last chance for an appeal that executive branch decision making provides for. The next stop would be a lawsuit.

These kinds of administrative hearings don’t normally get a lot of press. By the time they happen, of course, public comment periods are past, and often so is the interest in the issue that precipitated them. And they’re not as sexy as honest-to-goodness courtroom battles with their pageantry and high stakes. Plus, administrative hearings often hinge on complex interpretations of arcane pieces of state statute (18 AAC 75.445 (d) (4) of state environmental law, if you really wanted to know). It’s hardly the kind of thing someone would willingly get themselves involved in. Unless they had a strong motivation to do so.

The Copper River is Alaska’s third largest. It drains an area—bounded by the Alaska Range to the north, the Chugach and Talkeetnas in the west and the Wrangells in the east—that’s roughly the size of West Virginia. An estimated 2 million salmon that return to the river and its tributaries each year make it among the most prolific anadromous systems in the world. Those salmon are at the heart of why Scott’s motley band of activists, few of whom have any experience with this sort of thing, are in Anchorage challenging the state and Alyeska.

Somewhere a little bit south of Isabell Pass the Trans-Alaska Pipeline crests the Alaska Range and descends into the watershed of the Copper. Between here and its final destination, the tanker terminal in Valdez, the pipeline parallels the Copper for miles, although it never crosses it. It does, however, cross four of the river’s major tributaries, sometimes only a few miles upstream of where those rivers join the Copper.

It’s impossible to compare a spill from the pipeline at one of these crossings to the spill from the Exxon Valdez that followed its collision with Bligh Reef. There are too many differences. Yet as Alaska waits for the imminent—and ultimate—court decision from that disaster to be handed down, the spill is a palpable presence in the questions Scott asks his witnesses.

The witnesses are the part of this hearing that most make it resemble a legal court. Scott, the Alaska field rep for an environmental group called the Cascadia Wildlands projects, is one of the requesters and he’s playing the part of a lawyer because he and his fellow requesters can’t afford a real one. As the hearing progresses, he calls witnesses and asks them questions, hoping to use their testimony to establish whether the state did or didn’t do its job, whether Alyeska’s latest contingency plan does or does not meet the standards the state requires. In this case, instead of a jury, he’s trying to convince an administrative law judge instead. For this hearing, that judge is Terry Thurbon. Once the hearing wraps up, Thurbon will have the job of wading through hours of testimony, and possibly other comments, before submitting a written recommendation to DEC commissioner Larry Hartig. A month or two from now, Hartig will make the final decision.

Meanwhile, lawyers for Alyeska and the DEC will have an opportunity to bring their own witnesses or to cross-examine Scott’s.

During a break, Scott confides that he wishes the lawyers, who so far have said almost nothing, would seize that chance to cross-examine his witnesses, if only so that he could pick up some techniques from them.

A half-hour later though, and he’s back at it, and if not exactly comfortable, at least settled into something that resembles a groove.

On the stand now is Brenda Rebne, the Vice President of Corporate Affairs for Ahtna, Inc. Perhaps more than any of the other stakeholders bringing this complaint before Thurbon, Ahtna lends it credibility. The group’s stakeholders are residents of the communities along the Copper River—communities that would be hit first and hardest by a spill. And Ahtna has a history of working with Alyeska, something which makes it harder to write them off as cranks.

For Scott, Rebne is an easy witness, easily volunteering point after point to make the case he’s arguing.

At one point, from the witness stand, she reads directly from the comments submitted by Ahtna, a sentence that sums up what might be the most significant objection that the requesters have: “The CPlan appears to be fatally defective by omitting the Copper River from its coverage.”

Sure there are others, and it’s more complicated than that, but the thought of oil—any amount of oil—drifting down the waterway that Rebne says “defined us” as a people is anathema to her. Scott, in framing his questions about the gravity of a spill, asked several witnesses, rhetorically, whether an eye-dropper of petroleum wouldn’t be all right. Rebne, though, proclaimed a “zero-tolerance” policy.

If even a small amount of oil were to spill into one of the four major tributaries the pipeline crosses, Rebne and others who’ve brought this complaint fear, the oil would have an immediate and disastrous effect on salmon spawning in that river. But the troubles would only begin there. Some of the oil would form tar balls that would sink to the river bottom where they would act as timed-release capsules for some of the most noxious chemicals contained in the North Slope crude—effectively killing off or harming fish life in the stream for years to come.

Several of the witnesses spoke about the swiftness of the rivers that feed into the Copper, saying that there’d be no way to stop a spill into one of them from reaching the main stem of the river. In one scenario, Kristin Smith of the Copper River Watershed Project suggested that Alyeska hadn’t even properly factored that into their own containment strategies. Using hydrological data from the U.S. Geological Survey, she testified, her group had calculated that during the time frame listed by Alyeska to mount a response, about six hours, the spilled oil would’ve moved nearly twice as far downstream as the planned containment site. And well into the mainstream of the Copper River.

Once crude oil reaches the Copper River, the problems only mount. Rebne and Smith both say they’re concerned about how a spill moving downstream will affect the ability of salmon migrating upriver to navigate to their spawning grounds—a problem that could potentially affect all the salmon in a run, not just those headed for the damaged stream. And even if they did make it through the slick, some villagers testified, would you really want to eat them?

That question becomes a lot less rhetorical when a significant portion of your diet comes from those fish. One member of the Ahtna tribe testified that between 30 and 40 percent of his diet and the diet for his family comes from subsistence activities. And while a decent chunk of the cash that fuels the cash portion of the Copper River Valley’s economy comes—ironically enough—from pipeline contracts, other sources, like sport fishing and tourism, are growing.

“We have a salmon economy,” says Smith. “We have a salmon commercial fishing economy; we have a salmon sport fishing economy; we have a salmon subsistence economy.”

Rebne points out that the east bank of the Copper comprises a section of the border of Wrangell-St. Elias National Park and Preserve. Her shareholders are hoping to capitalize on their holdings their as tourism grows.

“We view that area as the next Denali Park,” she says at one point. At another, she notes, with some irony, that even there the pipeline’s presence could help—as long as they can trust that it’s safe:

“The pipeline itself is a tourist attraction; oil coming out of it won’t be.”

Arguments in favor of the existing plan are harder to come by. On Monday, the lawyer representing Alyeska said he was unsure whether the company might call witnesses.

As the Press was headed to press Wednesday afternoon, Alyeska External Affairs Manager Matt Carle emailed the following statement:

“Alyeska’s highest priorities are safety of people and protection of the environment. We feel our currently approved plan meets these goals and we will continue to work with the state to ensure our plan meets the State’s oil prevention and response requirements.

“This plan follows previously approved plans with additions to reflect changes needed because of the Strategic Reconfiguration Project, primarily at Pump Stations 1, 3, 4, 5, and 9, and the Glennallen Response Base. Those changes included new response equipment like new types of boom and command trailers, larger and faster helicopters, new equipment containment sites, and new response strategies. We believe that this ADEC approved plan being appealed actually improves oil spill prevention and response along the pipeline.”

On the state side, Assistant Attorney General Mulder said the department wouldn’t comment while the process is open.

Gary Mendivil, a program coordinator in Commisioner Hartig’s office, did talk to the Press about procedural details though.

The DEC has already approved Alyeska’s contingency plan, albeit with 48 pages of stipulations, he says. That means that, hearing notwithstanding, “it is in place until it is overturned,” he explains.

What comes next isn’t clear. If Hartig rules in favor of the requesters, Alyeska would be forced to retool its plan to the DEC’s satisfaction a second time—this time making adjustments for at least some of the objections the requesters raised. If not, Scott and his coalition could try a lawsuit, although that would take money they don’t have right now.

For now he’s optimistic about their chances.

“I’m feeling really good,” he says.

“If we get a chance to take our case to the commissioner, there’s no way that he’s not gonna see that this needs more attention than it’s getting.”

Scott knows that he’s fighting a perception that, as an environmental activist, he’s unwilling to settle for anything less than extreme regulation on the state’s behalf. Would anything that Alyeska could do ever be enough to satisfy the requesters?

“Yeah, and it’s the Citizens Advisory Council,” he says. In the wake of the Exxon spill, the Prince William Sound Regional Citizens Advisory Council was formed “to provide a voice for communities affected by oil industry decisions in Prince William Sound, the Gulf of Alaska, and Cook Inlet,” its website explains. Residents in that area (Scott lives in Cordova) trust Alyeska more now because of that voice. He even thinks the company has done a good job with their spill plans there—because of the council. “Certainly in Alaska, they’re a leader in spill response,” he says. “We haven’t challenged the Prince William Sound plan.”

What he says he can’t understand is why it would have to take a spill—as it did for the sound—to get such a council.

Alyeska is “one of our best companies; [the Copper] is one of our best rivers,” eh says. “If we can’t do it right here, we can’t do it right anywhere.”

krestia.degeorge@anchoragepress.com