Oil isn't even flowing through the Dakota Access pipeline yet, but already there's been a leak. The 1,100-mile pipeline, the subject of controversy and mass protests, will be fully operational June 1, according to Energy Transfer Partners (ETP), the company that built it. But in April, a mechanical failure caused an 84-gallon oil spill northeast of Tulare, a tiny town in South Dakota.
The spill was entirely contained and is considered small. But for environmental groups and members of the Standing Rock Sioux tribe, who have been fighting the pipeline since before construction began—and are still in court trying to shut it down—this spill is a harbinger of more to come and an ongoing threat to their drinking water supply.
"This is what we have said all along: Oil pipelines leak and spill," said Standing Rock Sioux Tribe chairman Dave Archambault II. "The Dakota Access pipeline has not yet started shipping the proposed half million barrels of oil per day, and we are already seeing confirmed reports of oil spills from the pipeline."
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The spill happened April 4 during the testing of a surge pump, according to Brian Walsh, an environmental scientist with the South Dakota Department of Environment and Natural Resources. At this particular pump station, oil is pumped into what's called a surge tank, which measures flow rates, among other things, and then pumped back into the main line.
The surge pump had a mechanical failure, but the entire spill happened within a lined containment area. Gravel on top of the liner that covered with oil was collected and disposed of, and oil never touched the unlined ground. "There were no off-site impacts, no impact to the soil or groundwater, and the oil did not get into any surface water," said Walsh, adding that this leak isn't indicative of the overall state of the pipeline and "wasn't necessarily surprising," given that similar spills have occurred at other South Dakota pipelines when lines are being started up.
ETP spokeswoman Lisa Dillinger told me that the spill "occurred in a containment area, which has about six inches of gravel on top of a special, non-permeable liner covering the ground so there was no impact to the area," and that the pipeline was safe.*
Walsh told me that South Dakota typically gets 200 to 300 spills a year from fuel leaks, pipelines, oil wells, and various other sources. "We do not generally public notice a spill unless there is an imminent threat to public health, a drinking-water system, or surface-water body," said Walsh. "We treated this 84-gallon spill just as we would treat any other 84-gallon spill that occurs in our state."
But Jan Hasselman, an attorney with Earthjustice representing the Standing Rock Sioux Tribe in court, says that's beside the point.
"Pipelines leak and spill," he said, echoing Archambault. "Sometimes a little, sometimes a lot. It's all but inevitable. Maybe next time it's next to an elementary school or a drinking-water reservoir. Assurances that that this is a state-of-the-art modern pipeline that nobody needs to worry about are hard to credit when it's spilling before it's even been turned on."
State regulations require companies to report spills right away, and Walsh said ETP did (it reported the spill two days after the fact, on April 6). Cleaning up is happening, and it won't be fined or penalized in any way. "If we have good, responsible parties, we generally do not do that," he said.
But the tribe and many environmentalists are troubled by how the news of the spill is only emerging now—more than a month after it happened.
"It doesn't say much for the accountability of the company and the transparency of the regulatory process when these things happen and there's no notification to the public," Hasselman told me.
The South Dakota government tracks spills of all kinds on a map on a website, searchable by date, type of spill, and responsible party. But there are no announcements of any particular spill; a reporter for the Aberdeen American News, a local outlet, broke the story of the DAPL after finding it on the site. The state's full report on the spill isn't complete yet. Walsh said it will take a couple of weeks, once ETP submits documentation to show that it disposed of contaminated materials properly.
Meanwhile, the tribe's legal battle against ETP continues. They has asked a judge to declare that the Trump administration's reversal of the environmental study and issuing the permits was illegal. "We've asked him to vacate the permits which would mean the pipeline has to stop," said Hasselman. "At this point we are waiting for a decision from the court." That decision could take weeks or months.
In the meantime, new reports have emerged revealing that the company doesn't yet have emergency equipment in place to handle a major spill in the future. The government doesn't require it to have one for one year from the day the pipeline starts running, according to court documents that were recently made public, though it does mandate "open water spill response" equipment to be permanently stored.
"What if something happens before that?" asks Hasselman. "There's no plan. It's just another example of the way in which the tribe's interests have been stepped over in the haste to get this thing in the ground."
"It's more important than ever for the court to step in and halt additional accidents before they happen," said Archambault. "Not just for the Standing Rock Sioux Tribe and our resources, but for the 17 million people whose drinking water is at risk."
As for the April spill, Hasselman pointed out that it would have received more attention if it were a major spill that affected drinking water. "But what we've been trying to say all along is that those risks are real," he told me. "They need to be analyzed before decisions are made, and we were dismissed at every turn. It doesn't give anybody any pleasure to say, 'I told you so,' but—here we are."
*This story has been updated to include comment from ETP.
Cole Kazdin is a writer living in Los Angeles.