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Arkansas AG on Why He's Taking Exxon Spill Probe Into His Own Hands

Dustin McDaniel is on a mission to resolve the many unanswered questions about the March 29 pipeline rupture. 'The timeline is going to be very important.'

Apr 24, 2013
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Arkansas Attorney General Dustin McDaniel

Since launching an investigation into the Mayflower, Ark. oil spill on April 2, state Attorney General Dustin McDaniel has pushed hard to resolve unanswered questions about the pipeline accident.

McDaniel, a Democrat in his second term as attorney general, caused a stir on April 3 when he insisted on touring the site of the spill with his staff instead of in a bus tour organized by ExxonMobil, the company responsible for the 210,000-gallon pipeline rupture. He drew attention again when he was among the first public officials to acknowledge that some of the oil had reached Lake Conway, a popular recreational area. And instead of relying solely on the U.S. Department of Transportation to investigate the spill, he issued a subpoena that forced ExxonMobil to provide his office with documents about the pipeline and its operational history.

The investigation is an enormous undertaking for McDaniel's office, which has little experience with pipeline accidents. The office has hired dozens of experts to review the more than 12,500 pages of documents Exxon turned over, a process that could take many months. McDaniel requested $4 million from Exxon to fund the investigation, but the company turned down that request last week.

In an interview with InsideClimate News on Friday, McDaniel said he hopes his investigation will lead to faster and greater transparency about the cause and consequences of the spill.

InsideClimate News: You've said publicly that you were frustrated with ExxonMobil during your first visit to the spill site. Can you tell us what happened?

Ark. Attorney General Dustin McDaniel: As soon as I saw on the news what was happening on Good Friday [March 29, the day of the spill], I was communicating with my staff, and they were communicating with other state agencies who were involved in the initial response. I contacted the county judge [Allen Dodson]. In Arkansas, a county judge is the county administrator, the top executive of the county—it's not a judicial position. I let it be known we would be coming with our environmental team up to the site, and obviously offered our support in whatever way that we could in the first couple of days.

On the morning of [our visit on April 3], one of the lawyers from my office got a call from a lobbyist for Exxon, one of their government relations guys. He told my staff that what would need to happen was to meet at City Hall, not at the operation center, and that I could get into a 15-passenger van along with the local member of Congress, the county judge, the mayor of the town, and the president of ExxonMobil Pipeline Company, and that I could go on a tour.

So when my staff told me that I said, 'Well that's nice, but I'm not going over there for a tour. I'm going to stay with my investigators and team, and we're going to go where we want to go and view what we want to view, and take pictures of what we want to take pictures of and talk to who we want to talk to. And I certainly can't do that if I'm on a guided tour with a member of Congress and a bunch of Exxon lobbyists. And so tell them, thank you but no thank you.'

That set off a morning flurry of phone calls. They were just dumbfounded that I wasn't going to take the tour, and they wanted me to know that they'd set this tour up, they'd rented this bus, and they had the president of ExxonMobil Pipeline Company, and they just couldn't understand why I wasn't going to get on the bus.

When I walked into the operations center, I just walked up to the kid who was running the check-in, and I told him who I was and that I was there to get my ID badge. The next thing you know there's about three people from Exxon public relations going 'Wait a minute, you're not supposed to be here. You're supposed to be on the tour!'

...Throughout the morning I kept getting phone calls or emails or people showing up to say 'hey, you're missing the tour. We really need you to go on the tour.' So I had to decline the tour about 12 times.

(McDaniel's office said the attorney general and his staff were able to walk through the site and conduct their investigation that day without any problems.)

ICN: How many people are working on the investigation your office is conducting?

McDaniel: I have a very limited environmental division directly in the AG's office. I have two lawyers and an investigator, and they coordinate with the Arkansas Department of Environmental Quality daily. I don't think over the course of a normal year I need any more than that, because we certainly use the rather sizable staff at the ADEQ.

For this case, I'm contracting with outside sources to supplement our workforce…with air sampling and soil sampling [experts]. So we are continually gathering the necessary resources to deal with this incident ... I think it would be fair to say I'm retaining dozens of additional personnel to assist in various areas of expertise.

ICN: Does that include pipeline experts?

McDaniel: Yes, and also pipeline law experts. There's no one in my office that has any real experience with the Code of Federal Regulations as they apply to pipeline construction, maintenance or operations. We discovered that a "pig" [an internal inspection device] was sent through this section of the pipeline in February, but we've also discovered there's a 60 to 90-day lag from the time the pig goes through to the time you get the data from that inspection. So even now we still don't have the data, much less the expertise to technically or legally analyze the data.

ICN: Your office received more than 12,000 pages of documents from ExxonMobil. Will you make those documents public?

McDaniel: At some point, yes, but first of all they're still being analyzed. There are engineering specs, schematics, codes, printouts ... It's meaningless to someone who doesn't have the expertise to understand how to look at it ... So we're still having it all analyzed. As of yesterday [April 18], we've made an additional request for additional documents because we already know that we don't have everything we need, even to make sense out of what we have.

ICN: What's missing from the documents?

McDaniel: I probably have to decline to answer that, because I don't specifically know and because I don't think my team would want me to say that just yet.

ICN: What are the key questions you're trying to answer?

McDaniel: Some of the basics, [such as] what happened? Here we are, 22 days post-event, and we still don't have even an indication of what caused this rupture. I've seen a photo of the rupture, and it's a 22-foot long, perfectly symmetrical linear rupture. So we know it's not a jagged edge, it's not something caused by the digging of heavy equipment. So what were the pressure readings? What are the concerns there?

This thing was built in 1948. Have there been other stretches of pipeline built that year by the same manufacturer? There was a manufacturer somewhere post-World War II that was churning out pipe to be used in the new underground infrastructure. Have there been any other problems with the same type of material by the same manufacturer anywhere else? In other words, did they [Exxon] have any reason to go look at this stretch before it [ruptured]?

It would seem to me that people in the pipeline business know there are probably four or five primary causes of ruptures, and I would think that you could narrow those down pretty quickly. I think they [ExxonMobil] already know what the most likely cause is, even if they can't say 100 percent until they get their analysis done. So I'm trying to push for greater transparency, greater disclosures in a more rapid sequence.

ICN: We still don't know when the spill started, because there are discrepancies between the reports from local police and ExxonMobil. Is that something you're looking into?

McDaniel: I want to know exactly how long it was leaking. It obviously [took] some time before the oil so permeated the ground that it broke to the surface.

What I also want to know is at what point did they first detect a drop in pressure from a monitoring station somewhere along this pipeline. At [what] point did they first detect there was less product coming out than coming in at the beginning?

Did this start out as a minor leak that went on for hours, days, weeks before it became a major rupture? Was it all one incident that happened quickly?

The timeline is going to be very important, and we don't have all the sources in place yet to give us what I would consider to be a reliable timeline.

ICN: Do you have any advice for the residents of Mayflower?

McDaniel: First of all, when the order to evacuate came, it came from local authorities with no experience in this type of incident. And so they only ordered the evacuation of one street. It didn't come to my attention for several days that all the rest of the streets in the subdivision were still occupied. They were supposed to have been informed by ExxonMobil that although they weren't forcibly evacuated, they still had the option of leaving their homes and having accommodations elsewhere provided by the company. When it came to my attention, I asked that Exxon go and personally provide additional notice to homeowners, [telling them] that even though you've been here for several days and weren't forced to evacuate, you need to know that you can still leave, even now.

When it came time for the re-introduction of people into the evacuated area, I wanted to make sure that they knew that just because the state said they no longer were forced to leave, it didn't mean that they were in turn forced to return, that they could still stay away.

I applaud Exxon for quickly letting people know that they're going to buy every house in that subdivision if the homeowners want to sell, at the pre-spill home value. That's a good thing. But I've also asked, what about people who live close to the area but they're not in the subdivision? ... Is there a radius in which you're going to extend the same offer? I haven't gotten an answer to that yet.

I want people to consult their physicians. I want them to consult with their attorneys. I also worry about someone going and very quickly signing up a contingency fee contract with legal counsel—which is what they should do. But as soon as they get an offer for their home, which the attorney did nothing to secure, [I worry about them] having to pay an attorney's fee for the sale of the house. I'm really worried about not just the health of the people in that area and the environment on behalf of the state, but I also kind of revert back to my primary role as the state's consumer advocate that people get what they're entitled to without having to pay excessive attorney's fees.

ICN: Have residents called your office for help or legal advice?

McDaniel: We really haven't received, to my knowledge, specific requests like that. We don't refer people to lawyers and we certainly can't be people's individual counsels. So it's been more in the way of communicating with local press, saying, 'Be careful of what you sign, talk to an attorney you trust, watch out for people who are sending you telephone or mail solicitations who simply want to gather clients in the area. You do need legal representation but you want to be careful in that process, just like you would in any other process.'

ICN: You asked ExxonMobil for $4 million to pay for your investigation, but the company refused. What is your next step?

McDaniel: Well, I don't intend for the state of Arkansas to have to foot the bill for the manpower necessary to oversee the cleanup and assess the damages for the state.

I think that expense should be borne by Exxon. I'm not surprised that they declined my initial request for them just to send us a blank check, so I'm willing to discuss with them other alternatives. But my primary concern from the outset is that an unexpected budget hit to the taxpayers of Arkansas for this situation is an unfair shifting of the burden from the responsible party to the citizens of Arkansas. I don't want to see that happen.

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