Sixth Anniversary Thoughts on the Enbridge Spill in Marshall Michigan; comment opportunity

July 25, 2016

Six years ago today, Line 6b, part of Enbridge’s Lakehead Pipeline System, failed in Talmadge Creek, near Marshall, Michigan. It wasn’t until six years ago tomorrow, July 26 and three work shifts later that Enbridge’s control center and on-site staff figured out that what they had hoped was a column separation causing a pressure change in the pipe was in fact a rupture of the pipe that resulted in the country’s largest onshore oil spill, requiring a billion dollar multiyear clean-up effort, a record-setting pipeline safety penalty, a Corrective Action Order, including appointment of a third party auditor, being imposed on the entire Lakehead system, and now, a second-largest-ever Clean Water Act penalty being levied in a proposed consent decree between the Environmental Protection Agency and Enbridge (in all its many personalities: Enbridge Inc., Enbridge Energy Partners, etc.). The proposed Consent Decree also includes a number of operational constraints on the Lakehead system, including a permanent injunction from ever using “old” line 6b again, and a series of other measures to improve the system and the organization’s response capacity, like the production of a leak response report following the testing of a set of leak response methods.

Two years ago, we wrote another edition of the Smart Pig, describing the spill, including an excerpt from the NTSB report, describing the clean up, the replacement of Line 6b, and the continuing upheaval in the lives of everyone affected by the spill. We also pointed out that of the many recommendations and shortcomings that the NTSB identified in its report, precious few have been resolved.

Unfortunately, very little appears to have changed in these past two years. Fully six years after the spill and four years after the NTSB issued the recommendations, several critical recommendations remain to be resolved:

1) While a proposed rule on the safety of hazardous liquid pipelines has been proposed, it is not yet final, and there is no certainty about what any final rule will contain and the extent to which it will be responsive to the NTSB recommendations about cracks and their management and repair, about leak detection, about discovery of anomalies, and the like.

2) An audit of PHMSA’s implementation of spill response planning requirements by the Secretary’s office began in 2014, two years after the recommendation was made. As of the spring of 2016, the audit is “complete but undergoing internal administrative review”, as it has been for several months now. There have been changes in the program in staffing and review procedures, but almost entirely out of the view of the public: no changes to the spill planning rules have been proposed, no public announcements or advisory bulletins about changes in agency expectations for spill plans, no indication that the coordination recommended by the NTSB between PHMSA and EPA and the Coast Guard to more closely align PHMSA’s rules and processes with the other agencies’ has occurred, and little, if any, public discussion about assigning more resources to the spill planning section and what that might mean for the public or operators.  

3) The public still has no inkling about any follow-up on the assignment of a third party auditor on the Lakehead System under the PHMSA Corrective Action Order. We don’t know who it is/was, what they found, whether any changes were made in Enbridge’s governing plans and policies or behavior as a result of the auditor’s presence. And because of that lack of information, we also can’t know how many, if any, of the provisions in the Consent Decree are complete duplications of what may be required of Enbridge under the CAO. Don’t get me wrong, I’m all for tying things up in the nice box with a pretty bow that is a consent decree, but the public deserves to know how much of the decree imposes new obligations on Enbridge and how much is existing obligations Enbridge is under elsewhere that are just being listed in this decree.

4) In a recommendation the Board reiterated from the investigation into PG&E’s rupture and explosion in San Bruno, CA, they recommended that PHMSA require operators to provide system specific information to local governments and first responders. PHMSA has yet to put forward any regulatory proposal to respond to this recommendation.

PHMSA and the industry still have significant work to do to accomplish the changes recommended by the NTSB as a result of this failure.

In an Inside Climate News article covering the announcement of the Consent Decree, I was quoted as saying that no fine would be big enough to un-do the damage that was done by the spill: to the river and its environment, to its neighbors, to their health and well being.   Our Executive Director, Carl Weimer added that the Trust would have liked the fine to be substantially larger. Like any monetary award for a non-monetary loss, whether the destruction of a river or the loss of a family member, financial penalties are by their nature always insufficient, whether as recompense or punishment. They are, however, what our legal system allows injured individuals, families and society to extract from wrong-doers. The exception to that is in the context of negotiated settlements like consent decrees where the parties can agree to certain changed behaviors or to pay for things that aren’t really the subject of the legal dispute.

And that’s where the Enbridge consent decree gets mixed reviews, as far as I’m concerned. On the positive side, it includes some testing and reporting obligations on the part of Enbridge with respect to Line 5 – a pair of hazardous liquid pipelines running under the Straits of Mackinac in the Great Lakes – that may otherwise not have been accomplished for many months or years, if at all. (The existence of those lines in that location is the poster child for a massive improvement in the pipeline siting legal scheme for hazardous liquid pipelines – because who thought that was a good idea? Two Great Lakes, both heavily used for recreation, drinking water and transportation; ice covered in the winter and terrific currents in the Straits all year long.) See today’s blog by our board member Jeff Insko for concerns about these Line 5 provisions specifically along with others that he shares with us.

The decree also prohibits the future use of the “old” Line 6b, a resolution that lays to rest a nagging concern of hundreds of landowners along that route who have lived through the spill, the integrity digs, the new installation of a second, larger pipe, and the reclamation of their properties, many times in an unsatisfactory manner. It is a good thing for them and for the environment to ensure that the old line is not used again.

The decree also requires some leak detection testing and reporting, that if done correctly and with sufficient public access to the results, has the potential to move forward the creation of performance standards for leak detection in PHMSA’s administrative rules, a process that seems otherwise at a standstill.  Without public access to the reports and results, this provision loses significant value.

The decree falls short in three areas in particular:

1). At some point, the Department of Justice and EPA chose not to file criminal charges under the Clean Water Act, a decision likely based on some assessment of the cost of litigation, but one that has not been explained by either agency. According to EPA’s website, the elements of a criminal act under the CWA are met when a someone negligently or knowingly discharges oil or a hazardous substance into a water of the United States/upon adjoining shorelines/into the contiguous zone in a harmful quantity. The largest inland oil spill in the country surely qualifies as a harmful quantity. The spill into the waters of the U.S. is not in doubt, as both Talmadge Creek and the Kalamazoo River qualify. And so the only other element to be proven is “negligently or knowingly.” Let me remind you how the Chairwoman of the NTSB described the failure:

This investigation identified a complete breakdown of safety at Enbridge. Their employees performed like Keystone Kops and failed to recognize their pipeline had ruptured and continued to pump crude into the environment,” said NTSB Chairman Deborah A.P. Hersman. “Despite multiple alarms and a loss of pressure in the pipeline, for more than 17 hours and through three shifts they failed to follow their own shutdown procedures.”

So how knowing or negligent does the next operator have to be before EPA and Justice decide to file criminal charges? Sometimes decisions are made not to criminally prosecute and there are good reasons. Perhaps there are good reasons in this case. If so, EPA and Justice owe it to the public to tell us what they are, because otherwise the message to the next operator is clear that no behavior, no decision, no failure to act is bad enough to warrant a criminal charge under the Clean Water Act.

2) The decree “requires” the replacement of Line 3, a capital project that Enbridge has planned for several/many years, and that is the subject of significant controversy in Minnesota as to whether and where it should be built. The decree gives no background information to the public on why this requirement is included, but it certainly increases the nominal value of the total “penalties” to be paid by Enbridge under the decree, making it appear at first blush as if many tens of millions of dollars more is being required of Enbridge as a penalty than is the case. It is possible that the line is in such condition that it can no longer be safely operated, in which case the public and Enbridge shareholders should be informed and the line taken out of service. The administrative processes underway in Minnesota to permit and site the proposed replacement should go on without interference or influence by the federal government except as a party to those proceedings. The inclusion of the replacement of Line 3 in the Decree implies that the federal agencies have an interest in seeing it replaced. If that is the case, they should become parties to the proceedings in Minnesota and not appear to provide support for Enbridge’s proposed replacement in the context of this consent decree. If there is some other explanation for this provision, the EPA should provide it publicly so that the public can weigh that information in making their comments to the court on the proposed decree.

3) The third major failure of the decree is the failure to include any Supplemental Environmental Projects to benefit the community, the region or the river. All of the penalty money – all 60+ million dollars – goes into the Oil Spill Liability Trust Fund of the federal treasury. It is inexplicable that the agencies and Enbridge could not identify a single project that might spend some of that money to benefit the community or the ecosystem most damaged.

The Consent Decree is open for 30 days of public comments to be filed with the Department of Justice by August 24, 2016. You can find the commenting process here.  After six years, EPA and Justice should be able to provide answers to these concerns in time for the public to consider their reasoning in making their own comments on the decree.

Surprise! Dilbit really IS different!

The National Academies of Sciences Engineering and Medicine this week recommended substantial changes in the rules under which pipeline spill response plans are reviewed and approved, as well as improvements in the type of information made available about various types of crude oil being transported in pipelines. These recommendations were included in the Academies’ second report on the risks of transportation of diluted bitumen by pipeline. Diluted bitumen is one name[1] for the product created when bitumen extracted from the Canadian tar sands is mixed with enough lower viscosity diluent to allow it to be pumped through pipelines.

 

When the federal pipeline program was reauthorized in 2012, Congress included in the bill a directive to the Pipeline and Hazardous Materials Administration (PHMSA) to undertake a study of whether there were increased risks of failure in pipelines carrying dilbit. Although risks are normally considered to be of two parts (probability and consequences), the first NAS study commissioned by PHMSA examined only the question of whether the probability of a failure was higher for a pipeline carrying dilbit. You can find that report here. Congress in 2014 further directed PHMSA to “investigate whether the spill properties of diluted bitumen differ sufficiently from those of other liquid petroleum products to warrant modifications of spill response plans, spill preparedness, or clean-up regulations.” The new report is now here. It is long and detailed and thorough. Spoiler alert: Dilbit does indeed behave differently, and in ways that make cleanup harder and less successful. As a result, the report recommends substantial changes in spill planning for pipelines carrying dilbit.

 

Here is a short version of some of the other recommendations for changes in the laws and regulations:

 

Oil Spill Response Planning:

  • Require the plan to identify all types of crude carried by the pipeline by industry standard name, e.g. Cold Lake Blend, and to include Safety Data Sheets for each named crude. SDS sheets should include spill properties as well as personal safety information.
  • Plans should identify all areas most sensitive to spills of dilbit, including water bodies at risk.
  • Plans must detail operator response activities and response resources to mitigate a spill of dilbit.
  • PHMSA must conduct reviews of both the completeness and the adequacy of spill response plans, rather than maintaining their current checklist approach to approving plans. Require PHMSA to consult with USEPA and USCG to obtain input on whether plans are adequate for spills of dilbit.
  • Require operators to post on their websites and submit to PHMSA annual reports of the volumes of the various types of crude oil transmitted by segments of its pipelines.

 

Oil Spill Response

 

  • Response agencies and the oil and pipeline industry should support development of effective techniques for detection containment and recovery of submerged and sunken oils.
  • Response agencies should all use the same nomenclature for crude oils.

 

USCG oil Classification system

 

  • The Coast Guard should revise its classification system to recognize dilbit as a potentially non-floating oil after evaporation of the diluent. The revisions should be incorporated into EPA and PHMSA planning regulations.

 

Improved Coordination

 

  • PHMSA, and federal, state and local response agencies should better coordinate and share lessons to improve spill planning and response. These agencies should jointly conduct announced and unannounced exercises for spills of dilbit. [And in our opinion, all other liquids subject to spill planning rules!]

 

Research priorities

 

  • The report lists several broad areas the need substantial additional research: transport and fate of dilbit in the environment; ecological and human health risks of weathered dilbit; detection and quantification of submerged and sunken oil; techniques to intercept and recover submerged oil on the move; alternatives to dredging; collaboration with and access to spill sites for scientists outside the formal response framework.

 

In response to media requests for response to the report, PHMSA prepared a list of initial tasks it intends to undertake in response to the report, and also indicated that the agency would continue its review of the detailed findings of the study and look for additional steps that it could take. Here is PHMSA’s list of initial tasks:

 

  • develop and publish an Advisory Bulletin highlighting the findings of the study and suggest voluntary improvements that onshore oil pipeline operators should make to their oil spill response plans to address plan improvement recommendations.
  • work with the National Response Team (NRT) and the Interagency Coordinating Committee on Oil Pollution Research (ICCOPR) to advance the recommendations included in the report.
  • continue to work with the American Petroleum Institute’s Spill Advisory Committee, Spill Control Association of America, and other industry organizations to improve oil spill response planning and preparedness.
  • host a public workshop in the spring of 2016 to solicit input from interested parties, government agencies and members of the public on how it can improve and enhance 49 CFR Part 194 and address the NAS recommendations.

 

Succeeding in changing the Part 194 regulations to incorporate these recommendations and changing the internal agency practices and culture around spill planning and plan reviews will be no easy feat. The National Transportation Safety Administration recommended in its 2011 report on the 2010 dilbit spill in Marshall, Michigan that the Secretary of Transportation conduct an audit of PHMSA’s spill response plan program. While that audit has begun, it has not yet been completed or released to the public. This NAS study identifies a number of major corrections that are needed specific to improving plans that relate to potential spills of dilbit. Let’s hope it doesn’t take another 4 years to enact these recommendations.

 

[1] Diluted bitumen is also sometimes referred to as dilbit, tar sands oil, oil sands oil, or is identified by the geographic area of its source, e.g. Cold Lake Blend. The NAS recommends the use of the geographic blend names by all agencies.