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.

Another pipeline incident anniversary – have things changed since 2009?

Question of the weekI think it was around this time in 2009 that a gas pipeline blew up in Palm City, Florida near a school. What really happened then, and have things gotten safer in the past 6 years?

On May 4, 2009, an 18-inch Florida Gas Transmission Company interstate pipeline ruptured about 6 miles south of Palm City, Florida, releasing about 36 million cubic feet of natural gas and causing three minor injuries in Martin County. The community was fortunate: the gas did not find a source of ignition and catch fire, nor did two other large gas lines buried parallel to the one that ruptured sustain any damage, though 106 feet (over 5,000 pounds) of buried pipeline was blown into the air and landed in the right-of-way between two major highways. The pipeline segment that failed was between two automatic shutoff valves, but only one closed in response to the pressure drop on the pipeline. A Supervisory Control and Data Acquisition (SCADA) system was in use by the pipeline operator at its control center in Houston, TX to remotely monitor and control the movement of gas through the pipeline. The SCADA system also failed to recognize the rupture or trigger any alarms.NTSB: Location next to I-95 and high school, in Rupture of Florida Gas Transmission Pipeline and Release of Natural Gas 20090504

The National Transportation Safety Board (NTSB) issued a pipeline accident brief on this incident, which found the cause of the accident to be the operator’s failure to detect cracking of the pipeline beneath protective coating. The NTSB also found that the operator failed to correctly identify the pipe as being within a high consequence area even though it was near a school.

As with most pipeline incidents, there were many contributing factors to this incident. The operator subsequently changed operations and procedures related to this pipeline in response to a PHMSA corrective action order as reported by the NTSB. But here, in response to the question about whether things have gotten safer in the past 6 years, we will focus on the issue of high consequence area (HCA) identification.

If the pipeline segment had been correctly identified as being within a high consequence area, then it would have been included in the pipeline operator’s integrity management program. There are specific rules in the federal regulations requiring the implementation of integrity management in high consequence areas, and these include specific inspection, analysis, maintenance and repair criteria designed to detect problems such as those that caused this 2009 incident.

As to whether these same mistakes could be happening today, the answer is yes. Are things safer? It’s hard to say. The same rules that allowed the identity and location of HCA’s to be kept secret from the public in 2009 are still in place. The public can’t know, until after an incident, whether an operator has accurately identified the HCAs along its route.  

A fundamental problem is that PHMSA essentially leaves the designation of high consequence area (HCA) boundaries up to the pipeline operators, and entrusts them to update the boundaries when any changes take place that would trigger a new inclusion in the HCA. There is no way for an average citizen to know about the details of these HCA boundaries, to know if PHMSA is enforcing the designation of those areas, and no way to help ensure operators encapsulate what needs to be included within those boundaries according to the regulations.

For example, on a gas transmission line like the one in Florida that ruptured in 2009, the presence of certain populated areas would trigger the HCA designation. There is a complicated way for gas pipeline operators to choose their method of designation and draw their boundaries (see 49 CFR §192.903). Put generally, any area near a pipeline with a high population (for gas pipelines, that means 20 or more homes), or with a populated activity center (e.g. school, office, assisted living, recreation area, campground, etc.; referred to as “designated sites” in the gas regulations), would be considered part of an HCA. Just how near to the gas pipeline these homes and activities need to be to trigger the HCA designation depends on how big the pipeline is, and the pressure inside it.

So what if a community is building a new school? Or what if a development goes in within a half-mile of an existing pipeline? In the case of a hazardous liquid (e.g. crude oil or petroleum) pipeline, nearby town water intakes or environmentally sensitive areas also trigger the HCA designation – what if a town changes their water intake or an agency recognizes a new critical habitat area? These types of changes and development happen all across the country, but only a very few communities have practices or rules in place that facilitate active dialogue between a pipeline operator and developer, or between an emergency management team and pipeline operator, to the degree that these types of changes are promptly reflected in a pipeline operator’s integrity management program.

In fact, PHMSA rules allow over 10 years – yes, TEN YEARS – from the time a natural gas pipeline operator identifies HCA changes to when that information must be part of a completed baseline assessment of the pipeline in the newly identified HCA. And PHMSA rules allow over 6 years from the time a hazardous liquid pipeline operator identifies an area of high population or sensitivity, to when that information must have been incorporated into its completed pipeline assessment. And the time between the actual on-the-ground change and the identification of that change by the pipeline operator adds even more time – a vague amount of time as this type of information analysis is only required by the operator ‘periodically.’

Contrary to some who think pipeline information needs to be less accessible, we think the secrecy surrounding pipeline operator’s designations of high consequence areas (HCAs) and other withheld information leads to more risky pipelines. If communities could access this type of information easily, it would be easy for planners, emergency responders, and concerned citizens to inform pipeline operators when a change is needed – thereby leading to SAFER pipelines, not more risky ones. Our experience is that those most impacted by pipelines – those who live in close proximity to them, are the ones with most at stake and most interested in keeping the pipelines and their community safe. Withholding information from these stakeholders disregards critical allies in our collective efforts toward safer pipelines.

Despite the lack of a transparent playing field in this area, there are some things you can do.

Communities with active Local Emergency Planning Committees (LEPC) often have regular open meetings, and the committee itself should include representation from community groups as well as emergency response professionals, elected officials, professional staff, and facility and pipeline operators. The emergency responders who participate in these meetings have the ability to access information from pipeline operators that the general public cannot access. Pipeline operators are required to share their emergency response plans with local first responders, and to maintain liaison with appropriate fire, police, and other public officials. Citizens can participate with the LEPC and request the committee work on accurate identification of HCAs in partnership with the pipeline operator. The LEPC topic is addressed in more detail in chapter 5 of our Local Government Guide to Pipelines.

PHMSA maintains a web-based National Pipeline Mapping System (NPMS), which is viewable on a county-level and depicts the location of hazardous liquid and natural gas pipelines, along with population areas and other information. While the population areas may give some indication of where a high consequence area is likely to be designated, there is not a direct link between the NPMS information and what the operators currently use to designate their HCAs. The PHMSA information is not up to date, and does not include the level of detail or environmental information needed to truly assess HCA boundaries. This is a problem. There are periodic opportunities for the public to comment on this issue, as the Trust did in December 2014 and October 2013 (comments of the Trust on a variety of pipeline safety topics are viewable here). The public needs to be able to view information and data gathered from pipeline companies on NPMS that depicts pipeline locations within an HCA with a high level of accuracy. There is in fact a statutory requirement that HCAs be incorporated as part of NPMS and updated biennially.[1]

Lastly, the Palm City, Florida incident was one of the incidents the NTSB highlighted in their recent safety study published earlier this year entitled “Integrity Management of Gas Transmission Pipelines in High Consequence Areas” and discussed in our January 30 Smart Pig blog post. This study included a number of additional changes needed to help make pipelines safer over time.

[1] Pipeline Safety Regulatory Certainty, and Job Creation Act of 2011; Section 6 made part of 49 USC 60132.

Reflections on San Bruno, PG&E and the CPUC

Question of the week: I heard the California Public Utilities Commission levied a fine of $1.6 billion dollars against PG&E for pipeline safety violations relating to the terrible San Bruno pipeline explosion in 2010. Do you think this will make a difference and improve PG&E’s safety? Is that all that will happen?

Reflections on San Bruno, PG&E and the CPUC

In case you missed it, last week, the California Public Utilities Commission (CPUC) levied a fine of $1.6 billion dollars against PG&E for violations of the state pipeline safety regulations, violations identified following the failure and explosion of one of PG&E’s natural gas transmission lines in San Bruno, California in 2010. That explosion killed 8 people and injured many more, destroyed an entire neighborhood and laid bare a multitude of shortcomings and outright failures of natural gas pipeline safety regulation in California. The City of San Bruno undertook a monumental effort on several fronts, seeking out every possible forum where PG&E might be held to account, and where regulatory change might be made so that no other community needlessly suffer from another completely preventable pipeline failure.

Whether or not one believes the utility’s and the regulator’s exclamations of intent to reform, whether or not one gives credence to the much-publicized efforts to operate more safely or to oversee more carefully, there is plenty of evidence that there remains a long way to go. The report of the National Transportation Safety Board following the explosion described a utility that didn’t know what pipes it had in the ground, and didn’t have adequate records or integrity programs. And it described a regulator that had apparently ignored those shortcomings of which it was aware, and simply hadn’t looked very hard to find others. Since the NTSB report, the media has been filled for nearly 5 years now with seemingly endless disclosures of cronyism between the regulator and the utility, the misappropriation of ratepayer funds collected in the name of safety upgrades but spent elsewhere, descriptions of yet another home destroyed and community disrupted because PG&E’s records did not accurately reflect what pipes were in the ground, and numerous reports and audits suggesting that the CPUC is not yet capable of adequately regulating.

While the fine imposed against PG&E is of record size, the company’s stock price recovered and closed higher on the day after the penalty was announced. This, in spite of the company’s 2013 protestation that a fine of that magnitude would surely force a bankruptcy or some other catastrophic result. In fact, PG&E has recently announced that it will not appeal the CPUC fine and decision.

Meanwhile, the aftermath of the failure continues in a variety of forums: Rulemaking efforts on the federal level that might respond to some of the concerns raised by the NTSB in its report on the PG&E failure have been bogged down for years. We continue to wait for a proposed rule to be released and open to comment, review by the Technical Advisory committees and perhaps one day become new regulations. State legislation has strengthened some California gas safety rules, and proposed legislation may alter the allocation of the fine levied by the CPUC to further benefit pipeline safety rather than the state’s general fund. The cronyism exposed by the dogged efforts of the City of San Bruno to obtain emails and other documents has resulted in changes in personnel in high levels both within PG&E and within the CPUC. The federal prosecutor impaneled a grand jury that last year returned criminal indictments against PG&E. The State Attorney General has opened a criminal investigation of PG&E and its relationship with the CPUC, seeking evidence of wrongdoing on the part of the CPUC, its former president, and perhaps others. These criminal proceedings are still in the very early stages. The legacy of the San Bruno tragedy will continue for some time, and we can only hope, for all our sakes, that it eventually results in significant safety improvements, regulatory capacity, and some small measure of justice.  

NTSB’s recent study on systemic weaknesses in gas pipeline safety

News media recently reported that the National Transportation Safety Board (NTSB) found continuing systemic weaknesses in gas pipeline safety. What does the NTSB have to say about where improvements are needed?

The NTSB and the gas pipeline integrity management rules

The NTSB is a congressionally-mandated transportation agency that operates independently to conduct objective accident investigations and safety studies, and advocates for implementation of safety recommendations. The NTSB does not conduct investigations of all pipeline incidents; it investigates those in which there is a fatality, substantial property damage, or significant environmental impact. In the past five years, the NTSB investigated three major gas transmission pipeline accidents in which operator and PHMSA oversight deficiencies were identified as concerns, occurring in Palm City, FL (2009), San Bruno, CA (2010), and Sissonville, WV (2012). These three accidents resulted in 8 deaths, over 50 injuries, and 41 homes destroyed with many more damaged.

The five-member NTSB Board held a meeting on Tuesday and soon after released an abstract of their recommendations. [The full study is now available here.] The study focuses on gas transmission pipelines within High Consequence Areas – basically, areas with higher population – and therefore must have in place an integrity management program. Only about 7% of the nearly 300,000 miles of gas transmission pipelines nationwide are required to have an integrity management program, though the industry says many more miles are inspected under integrity management than what the rules require.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) gas pipeline integrity management program rules took effect in 2004. They require, among other things, that the pipeline operators inspect their gas pipelines at least every seven years, and have a program in place to assess risk and ensure their pipelines are safe and reliable. Integrity management rules are performance-based rather than prescriptive, and rely on the operator to have good and complete data that is continually evaluated. Pipeline operator integrity management programs are periodically inspected by PHMSA and/or state regulators to assess compliance. Theoretically, using integrity management, gas pipeline operators should be finding and addressing potential problems before they result in accidents. Clearly, that is not working as evidenced by the accidents mentioned, leading the NTSB to embark on their study.

The NTSB Study

The study highlights shortcomings of the gas transmission integrity management system, and underscores issues the Trust has been bringing up for years. [See our 2012 comments submitted to PHMSA on gas transmission line safety and our 2014 comments to PHMSA on improving the national pipeline mapping system.] The abstract from NTSB states, “there is no evidence that the overall occurrence of gas transmission pipeline incidents in HCA pipelines has declined.” The complexity of the integrity management programs require expertise in multiple technical disciplines from both operator personnel and pipeline inspectors, and PHMSA does not have the resources for guiding them. The thirty-three findings of the study are published in the abstract and are followed by twenty-eight recommendations.

In brief, many things need improvement, including much better geographic information so that inspectors and operators clearly know where pipelines and high consequence areas are, and all data is better integrated; better communication between state inspections lead by the National Association of Pipeline Safety Representatives and PHMSA; better use of in-line inspection tools and improved operation of the same; better threat identification and assessment methods, with PHMSA acting as a guide for pipeline operators and inspectors in this area; and generally stronger, clearer standards and criteria for both operator and inspector programs and personnel to raise the safety bar higher.

We sincerely hope that 2015 will be remembered not for more terrible pipeline accidents, but for safety improvements that are made in part when studies and recommendations like the NTSB’s are heeded.