Lagoon Floods

In a recent article, Robert Martin compels the U.S. President to use his executive authority to move the village of Kivalina out of harm’s way of its landfill. Kivalina’s open dump site is about one-and-a-half miles from the village. Villagers haul their own waste, which exposes them to considerable health risks. The Indian Health Service found in 2011 that Kivalina’s open dump posed a ”high health threat.”

When it floods, the risk to the community’s health and well-being posed by the open dump site becomes severe. Leeching from the dump contaminates berry patches, fish, other traditional foods, and drinking water supplies.

The President’s authority to relocate the village away from the dump site would come from Superfund laws—technically Section 9626(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) established by Congress in 1980.  CERCLA created $1.6 billion in revenues from taxes on industry and established a trust fund to pay for the clean-up of abandoned or unmanaged hazardous waste sites that endanger public health and welfare.

The health risks of having an open dump in such close proximity to the village compound with other challenges Kivalina faces, which include climate change, erosion and flooding, lack of running water, and need for imminent relocation. Needed ennvironmental diagnosis remain incomplete. According to the 2006 U.S. Army Corps Master Relocation Plan, ”No record of waste taken to the landfill has ever been kept and it is not known whether hazardous waste is separated from municipal solid waste.”

Martin’s arguing that if permanent relocation authorities and funds are available under CERLCA to assist with the permanent relocation of the Village of Kivalina, the open dump issue may offer a potentially alternative remedy to support of Kivalina’s relocation. His prescient article anticipated the recent flooding that occurred in Kivalina in August.  Although the state of Alaska has not declared disaster in Kivalina due to flooding and the landfill situation, Governor Parnell is reportedly making a decision sometime this week.

The tribal government of Kivalina would need to support the pursuit of such authority. Under CERLCLA § 9626(b):

“Should the President determine that proper remedial action is the permanent relocation of tribal members away from a contaminated site because it is cost effective and necessary to protect their health and welfare, such finding must be concurred in by the affected tribal government before relocation shall occur. The President, in cooperation with the Secretary of the Interior, shall also assure that all benefits of the relocation program are provided to the affected tribe and that alternative land of equivalent value is available and satisfactory to the tribe. Any lands acquired for relocation of tribal members shall be held in trust by the United States for the benefit of the tribe.”

Read Martin’s full article here.

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