On the heels of recent news that Enbridge has long been in violation of safety requirements for its operation of Line 5 under the Straits of Mackinac, our tireless friends over at the National Wildlife Federation have released the latest video in thei recent series of short documentaries about the Kalamazoo spill and its aftermath. They are teriffic. And they reveal how Enbridge’s cavalier (or brazen, if you prefer) attitude toward regulatory compliance is built into the fabric of their corporate culture. You can watch all three of the short films and read more over at the Wildlife Promise blog. But since the third of these just happens to feature this very blog– along with Larry Bell of the great Bell’s Brewery, who gives his version of a story I told in real time back in 2013— I’ve included it here.
As we reported last week, the Department of Justice and Enbridge have reached finally reached a settlement in the Marshall spill. For reasons we described in our post, we don’t think the settlement is at all satisfactory. And we’re not alone. In an excellent Smart Pig blog post, Rebecca Craven of the Pipeline Safety Trust also outlines some of the areas where the settlement appears to fall short. Our own view is that, in many ways, the settlement is quite advantageous to Enbridge.
However, there is one bit of good news in the settlement that we neglected to mention: it clearly prohibits Enbridge from ever re-using the original Line 6B. You might recall that this is something many of us in Michigan asked for repeatedly prior to construction of the new Line. But Enbridge always hedged. Now, that line will be decommissioned permanently, which is very good news indeed. Of course, even that injunction is less than ideal: it should have been part of the terms of approval of the new line and Enbridge should have been required to remove it, rather than leaving it in the ground.
Which brings us back to the consent decree. You see, as we mentioned in our last post, the proposed settlement contains a number of provisions relating to Enbridge’s Line 3 project in Minnesota, a project that might well induce in Michiganders a terrifying sense of déjà vu. Like Line 6B, Line 3 is old and deteriorating. The consent decree requires Enbridge to replace it and decommission the original Line 3. But this is in no way an onerous requirement for Enbridge and it certainly isn’t punishment. That’s because Enbridge already planned to “replace” the line. But as with Line 6B, they aren’t really “replacing” the line. Instead, they’re building a brand new one—an even bigger one—and they want to build it in a different location. Yes, you read that correctly: a larger diameter pipeline in a different location. To call that a replacement is an abuse of language. It’s also a very clever way of skirting the requirements of their presidential permit for that line—a replay of their Line 6B strategy.
But the Line 3 boondoggle is even worse than the Line 6B replacement. That’s because the consent decree does not require the permanent decommissioning of the original Line 3. Instead, it lays out a number of conditions that would allow Enbridge to continue to operate it. That’s deeply troubling. If that line is going to be decommissioned, we agree with our friends in Minnesota that it should be taken out of the ground, just as should have been done with Line 3 (in fact, you can support their efforts by signing this petition). But instead, the settlement leaves open the possibility of allowing Enbridge to operate both a new Line 3 in a new location and the old Line 3. As a result, Enbridge, cunningly, seems to have negotiated an agreement with the Department of Justice that essentially rewards them for the costliest inland oil spill in U.S. history.
But here’s the (potentially) good news: the settlement is not yet final. The public has 30 days to comment on it. We urge you to do so. In particular, we urge you to ask the DoJ to remove the Line 3 provisions altogether. After all, what do those things have to do with affairs in Michigan in the first place? You might also encourage DoJ to file criminal charges and to require Supplemental Environmental Projects that could benefit Michigan. Lastly, you might ask for some tougher requirements with regard to Line 5. Instead of giving them tacit permission to continue to operate those lines, Enbridge should have to generate a plan to shut down and remove those dangerous pipelines from beneath the Straits of Mackinac once and for all.
For more reasons you should oppose the Line 3 project and helpful links for commenting on the consent decree, visit this page from our friends at Honor the Earth.
We’re back from our period of dormancy to mark the sixth anniversary of the Marshall spill. (Yes, despite what Enbridge says, today is the anniversary!).
By now you have probably heard the news: last week the Department of Justice, at long last, has announced penalties against Enbridge for the devastating Marshall spill. Why it took six full years and why the penalties were a matter of negotiation, we will never understand. But setting that aside, we’ve got a few things to say about the substance of the so-called “settlement”:
First, you probably read that Enbridge has been “hit with a $177 million bill” or some such. Everybody seems to be seizing upon this $177 million figure, even those who have been most outspoken or dogged in documenting Enbridge’s misdeeds. But don’t believe it. Enbridge was not hit with a $177 million dollar bill. The DoJ levied a $61 million civil penalty— for violations of the Clean Water Act. They were also “hit” with another $1 million for another spill. And they are required to pay back another $5 million to the Oil Spill Liability Fund, which they drew from during the cleanup.
So why is everybody saying $177 million? Well, it’s because Enbridge and DoJ estimate that it’s going to cost Enbridge an additional $110 million to comply with a number of provisions in the settlement, many of them having to do with safety tests of their pipeline network and others having to do with repairs and other costs.
But it’s a real stretch to pretend that money is some sort of penalty. After all, most of what the DoJ is requiring of Enbridge— hydrotests to assess the conditions of their pipelines, for instance— is stuff you’d expect them to be doing anyway. It’s the normal cost of operating pipelines.
Even worse, probably the largest chunk of that $110 million has to do with the replacement of Line 3, an aging pipeline Enbridge operates which runs from Neche, North Dakota to Superior, Wisconsin, which the consent decree requires. Trouble is, replacing that line is something Enbridge is already planning to do. So it’s a capital investment they are making anyway (or so they have hoped), regardless of what DoJ said.
Which brings us to our second point: as a provision in this settlement, the replacement of Line 3 is not a penalty. It’s a gift. In fact, it’s great news for Enbridge.
We told you a bit about Line 3 a long time ago. That proposed “replacement” project is an even greater boondoggle than the “replacement” of Line 6b was. That’s because Enbridge’s proposed route for the new Line 3 doesn’t even follow the same route as the original Line 3. It’s not a “replacement,” it’s new infrastructure. Enbridge wants to put that line in the same corridor as the proposed Sandpiper pipeline— a route that, as our friends at the Friends of the Headwaters know very well, is totally bonkers, as it threatens some of the most environmentally sensitive areas in the state.
Even worse, the route for the newly proposed Line 3 is identical to the route of the Sandpiper pipeline, which, frankly put, is just plain crazy. Our friends at the Friends of the Headwaters have explained why repeatedly— and convincingly.
So here’s the problem with the DoJ provision: it may well be that Line 3, an aging pipeline, needs to be replaced (just as Line 6b did). But that fact does not mean that Enbridge ought to get to do whatever it wants, however it wants. But that’s going to be exactly what happens now. Enbridge will use that provision as a cudgel to beat any sort of questions or opposition to that project into submission. Any questions anybody asks Enbridge about the Line 3 replacement (such as its route) are going to be met with “we’re legally obligated to do this according to the Department of Justice, so just shut up.” Essentially, that provision gives Enbridge’s Line 3 plans federal blessing.
The third problem with the settlement is the failure of the DoJ to file any kind of criminal charges. Here it’s worth remembering some basic facts (all readily available in the NTSB report from 2011): Enbridge knew about defects in Line 6b for five years, but chose to do nothing about them. For years, Enbridge fostered a “culture of deviance” from its own safety protocols, which directly contributed to the Marshall disaster. As if that’s not bad enough, Enbridge’s control room operators knew there was a problem with Line 6b SEVENTEEN HOURS before shutting the pipeline down.
Letting Enbridge off the criminal hook is a slap in the face to the families whose lives were ruined by Enbridge’s documented negligence. Here we’ll just quote our friend Susan Connolly:
“Six years have passed with questions unanswered and concerns remain,” Susan Connolly, a local Michigan mother whose children suffered rashes as a result of the Kalamazoo spill, said in a statement. “The fines related to the Clean Water Act should not be in the form of a ‘settlement’ discussed and agreed to between the agencies and the at fault party. The maximum penalty should be ordered, criminal penalties assessed, and a Michigan Pipeline Trust created.”
Fourth, the feds missed an opportunity to make some lasting good out of this disaster. It is common in cases like this one, where businesses reach settlements with the feds for failures to comply with environmental laws, to create what are called Supplemental Environmental Projects (SEP), which are designed to help protect the environment. In a state as reliant on its marvelous natural resources, it is frankly shocking that the settlement included no SEPs of any kind. This is a travesty.
Finally, the settlement includes a whole bunch of provisions related to Line 5. Mostly, these have to do with conducting tests to assess the condition of the lines and repairing any defects or problems with the pipelines’ supports or coverage. On the face of it, these seem like good measures (although, again, these are things Enbridge ought to be doing already). But as with Line 3, these provisions simply give Enbridge federal cover. In this case, cover to continue operating those lines indefinitely, when nearly everybody— even those whose judgement is generally suspect— now recognizes that those lines ought to be shut down and decommissioned permanently. But now Enbridge gets to pretend like the federal government has given its approval for them to continue to operate Line 5. And, unfortunately, they’re right about that. They’ll now tell everybody that these federal mandates preempt any and all state and local authority.
As we (and plenty of others) have said repeatedly, the Marshall spill was not just an accident. It was not an honest mistake. It was the result of systemic problems and preventable actions. Those problems and actions destroyed properties, uprooted families, affected individuals’ health in ways we still don’t even understand. The DoJ’s consent decree does not even come close to redressing those actions; it certainly won’t do anything to deter Enbridge from continuing to operate as it always has. Quite the contrary: given the modesty of the penalty and the friendly Line 3 and Line 5 provisions, the consent decree, six years in the making, rewards Enbridge’s behavior.
After six long years of negotiations—yes, we said negotiations!–the Department of Justice will announce fines against Enbridge for the Marshall spill. The news is almost certain to be infuriated. We’ll have more to say after the announcement and the Enbridge p.r. stunt that follows.
Here’s the Freep story announcing the pending announcement.
A History Lesson for Brad Shamla
Looks like Enbridge needs another history lesson. To mark last week’s anniversary of the Marshall spill, Enbridge VP Brad Shamla penned an editorial that was published in the Battle Creek Enquirer and the Detroit News. A version of the op-ed also appeared as a “letter” (that is, a paid advertisement) in the Detroit Free Press (and probably elsewhere, we’re not sure).
It’s a fine-sounding letter, carefully crafted, we’re sure, by a whole committee of people in the vast Enbridge public relations department. The trouble is, it’s also disingenuous, starting with its very first sentence. See if you can spot the problem:
July 26, 2010, is a day that no one at Enbridge will ever forget.
Yep, that’s right: in an article whose central point is memory and commemoration, the importance of always remembering what happened in Marshall, Shamla gets the date of the spill wrong. July 26, 2010 is NOT the day the “Line 6B pipeline failed near Marshall.” As everybody knows, the failure occurred on July 25.
So what gives? Is it possible Shamla doesn’t know this? Is it merely a typographical mistake? Or might it be, once again, a willful distortion of the facts on the part of Enbridge? You won’t be surprised to learn that we think it’s the latter. Shamla (and Enbridge) date the spill on July 26, presumably, because it allows them to forget what happened the day before, when Enbridge ignored evidence of a problem with the line, ignored its own safety protocols, turned up the pressure on the line, and gushed oil out of the ruptured seam in Line 6B for 17 hours. Here’s the National Transportation Safety Board’s account of what happened:
On Sunday, July 25, 2010, at 5:58 p.m., eastern daylight time, a segment of a 30-inch-diameter pipeline (Line 6B), owned and operated by Enbridge Incorporated (Enbridge) ruptured in a wetland in Marshall, Michigan. The rupture occurred during the last stages of a planned shutdown and was not discovered or addressed for over 17 hours. During the time lapse, Enbridge twice pumped additional oil (81 percent of the total release) into Line 6B during two startups; the total release was estimated to be 843,444 gallons of crude oil. The oil saturated the surrounding wetlands and flowed into the Talmadge Creek and the Kalamazoo River. Local residents self-evacuated from their houses, and the environment was negatively affected.
So far from remembering the Marshall spill, Shamla and Enbridge are actually re-writing history in order to conveniently erase some key facts from the historical record– facts that point directly to the real causes of the spill and its severity.
This revisionism is part and parcel with all of the new measures Shamla touts as Enbridge’s response to the lessons they learned from the spill. Mainly, those measures consist of throwing a lot of money around. Don’t get us wrong, some of the measures Shamla describes seem like good things. But not one of them gets at the core of the problem. Not one of them addresses or acknowledges the principle reason (according to the NTSB) the Marshall spill was so very bad: Enbridge’s “culture of deviance” from following its own safety protocols. Prior to the Marshall spill, Enbridge had all the tools it needed to prevent the spill: detection equipment that found anomalies, control center rules that could have shut down the pipe right away. But Enbridge disregarded or ignored those things. Spending money on new equipment, putting in place new rules and protocols isn’t going to matter one little bit if Enbridge doesn’t change its culture. The former is easy; the latter is very difficult– even more difficult if you’re unwilling even to acknowledge the problem.
“We will not forget the Marshall incident,” Shamla tells Michiganders, which may be true. Unfortunately, the incident Enbridge has “memorialized,” the incident Enbridge vows not to forget appears to be a fictionalized version of the incident, only loosely based on actual events.
As most readers of this blog know, today marks a terrible day. On July 25, 2010, Enbridge’s Line 6B ruptured, spilling over a million gallons of tar sands oil into Talmadge Creek, a tributary of the Kalamazoo River. The spill was not an “accident”; it was the result of neglect, mistakes, poor choices, negligence by Enbridge employees, and a “culture of deviance” from safety protocols at the company as a whole. There’s nothing to celebrate about this day. A better way to mark this occasion is to re-visit and re-read the NTSB report on that spill. It is a parade of horrors. Or, if that’s too much for you to take, you can get a taste of it by looking back at the three part series we did on that report a couple of years ago. There you’ll get the highlights (by which we mean the low lights, of course).
Or even better, head on over to the Pipeline Safety Trust’s “Smart Pig” blog, where they do a brilliant job putting the spill into the appropriate perspective. For our part, we’re on vacation and trying (not very successfully) to not think about such things for a while.