In comments submitted to state officials Friday, FLOW is urging state regulators to deny a bid by Enbridge Energy to install 48 new anchor supports on dangerous Line 5 at the Straits of Mackinac while evading scrutiny of alternatives that would protect the environment.
Enbridge’s latest request, if approved, would bring the number of anchor brackets to 198 that the governments have allowed the company to install since the early 2000s — completely changing the pipelines’ design.
Structurally, this means that approximately 3 miles of pipeline are elevated in public trust waters above the bottomlands. But the design approved by the state in the 1950s had the pipeline resting in a trench on the lake bottom.
“The fact that the Michigan Department of Environmental Quality and the U.S. Army Corps of Engineers continue to approve Enbridge’s anchor supports on the lakebed of the Lake Michigan as ‘repair’ and ‘maintenance’ is simply untenable,” FLOW says in its comments. “The highly increased risks of and alternatives to a completely modified design under both state and federal permitting laws requires a new agreement of occupancy and permits” under several laws.
“And given the recent anchor dents in the twin lines and rupture of the electrical line and release of toxic fluids, the risks to the Great Lakes are totally unacceptable,” FLOW said.
FLOW called on the state and federal governments to require that Enbridge:
file a full and comprehensive application including a study of potential effects and feasible and prudent alternatives to Line 5 in the Straits in its entirety;
suspend the flow of oil in Line 5 unless and until Enbridge files such application and evidence and obtains proper occupancy agreements, permits, or other approvals for this new or completely modified pipeline design; and
consolidate into one application and examine the risks, impacts, and alternative analyses of the entire 645 miles of Line 5.
Five years ago this spring, when I first learned about Line 5, I could only imagine what a catastrophic oil spill would look like here in the heart of the Great Lakes. Two weeks ago, we dodged a bullet as we watched a hazardous liquid spill from two neighboring transmission cables unfold. What we witnessed was an anatomy of a spill — and how truly devastating an oil spill would be.
Here’s what we know from the April 1st spill in the Straits.
A release of at least 600 gallons of toxic coolant and insulating fluid from electric cables owned by American Transmission Company (ATC) occurred sometime Sunday afternoon in the Straits of Mackinac. The dielectric fluid is a mineral oil that contains a benzene compound. ATC, however, did not report the release to the Coast Guard for 24 hours. By Monday, ATC officials were blaming “extraordinary circumstances” like ice in the water and near the shore that hindered the emergency response.
No cause was initially identified until days later. The cause? Vessel anchor strike. News media coverage revealed the chaotic nature of responding to this hazardous liquid spill with Coast Guard helicopters looking for oil sheens and a multi-agency unified command assembling from federal, state, tribal, and local agencies and units. Reports attempted to allay public fears, indicating that the product was so diluted that it would not pose a threat to drinking water supply intakes. The greatest threat posed was to wildlife and shore birds swimming in possible oil floating on the water’s surface.
On April 3, Enbridge – owner and operator of Line 5 – temporarily shut down the flow of oil in the pipelines to evaluate the leak detection systems. Ten days after the ATC accident, on April 10, Enbridge notified state and federal officials that their pipelines had suffered three dents, likely due to the same vessel activity that may have caused the damage to the ATC lines.
Hold on. Vessel anchor strike hitting Line 5? This was the number one threat that Dynamic Risk identified in their November 2017 alternative report to the Governor-created Michigan Pipeline Safety Advisory Board. Ironically, the original Bechtel engineers believed that a vessel anchor strike was only “one chance in a million.”
Well, two weeks ago that one chance in a million struck.
And finally, a growing chorus of federal and state leaders from both sides of the aisle are demanding that Line 5 be shut down until a full visual inspection has taken place. Tribal leaders like Aaron Payment from the Sault Tribe call for more comprehensive investigation and analysis: “These old pipes need to be shut off, at least until proper investigations and the full analyses are finished.” . . . “Governor Snyder should not be using this accident as an excuse to fast-track a tunnel.”
Liz Kirkwood, Executive Director
So what can we learn from this? First, we don’t need to imagine anymore. We know that it might take up to 24 hours before the spill is even reported. We know exactly how difficult it would be to deploy emergency responders to contain oil in the open waters. We know how extreme the conditions are in the Straits, even in spring. We know about the challenges of ice. We know that we can never be 100% prepared in such a dynamic, chaotic, and extreme environment as the open waters of the Great Lakes. Second, and most important, we can’t take a second chance because of the magnitude of harm and risk that Enbridge is asking citizens of Michigan to shoulder.
Let’s do the right thing. Michigan leaders – it’s time to be proactive and shut down this 65-year-old oil pipeline before it’s really too late.
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned. Rather, this commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
Perhaps if they hear it often enough, they’ll act.
Michigan’s Pipeline Safety Advisory Board, established by Governor Snyder in September 2015, heard Monday from FLOW Executive Director Liz Kirkwood about the state’s public trust responsibilities.
It was FLOW that identified these responsibilities as the debate over unsafe Enbridge Line 5 at the Straits of Mackinac intensified several years ago. Simply put, the public owns the lakebed under the Straits that Line 5 crosses – and state government, as the trustee, has the authority and the obligation to assure that any party granted an easement to use the public’s lakebed is not compromising the public uses protected by the trust. The Legislature passed a law in 1953 granting Enbridge an easement across the Straits – subject to the public trust.
Enbridge has clearly fallen short of that standard with shoddy maintenance, concealment of damaging information and a track record of failure, culminating in the mammoth spill into the Kalamazoo River watershed in 2010.
FLOW’s message Monday – Enbridge can comply with public trust interests and state law only if the state compels it to submit an application for the entire massive overhaul of Line 5 it seeks to undertake, and only with simultaneous consideration of feasible and prudent alternatives – including using other means to deliver the petroleum currently served up by Line 5.
Here are a few of Liz’s comments from Monday:
“We are approaching the hour of decision on the fate of Line 5. This process has been an epic example of how not to protect a world-class resource. Transparency, corporate integrity and the rule of law have all been casualties. But there is one last chance to make it right.
“Enbridge has never applied for and DEQ has never comprehensively reviewed, considered, or authorized the new design with 128 screw anchors elevating the Line 5 pipelines off the lakebed. This new design was not contemplated in 1953. Moreover, the Great Lakes Submerged Lands Act does not authorize ‘activity’ permits that actually constitute a new design, permanent structures, and improvements on bottomlands or suspended in water areas above the bottomlands; rather, a new application is required in conformance with the public trust.
“The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust, and the U.S. Supreme Court has held states have the power to resume the trust whenever the State judges best. The state owes Enbridge nothing. Enbridge owes the people of Michigan the respect they deserve by ending its efforts to skirt statutes and the public trust.”
Advocates of shutting down dangerous Line 5 at the Straits of Mackinac presented a detailed plan for its decommissioning yesterday. The plan gives the state officials who are accountable, Attorney General Bill Schuette and Governor Rick Snyder, a detailed, realistic plan for protecting the Great Lakes from a catastrophic oil spill while assuring energy to meet Michigan’s needs.
Enbridge has been using publicly-owned lakebed at the Straits as a conduit for its shipments of oil and gas underneath the Straits under a 65-year-old easement granted by the state on the condition that the company operates prudently. But repeated disclosures of shoddy maintenance, structural flaws in the pipelines and concealment of critical information from state officials demonstrated Enbridge is not acting prudently.
FLOW Executive Director Liz Kirkwood said, “It’s time to move forward with legal action to compel strict enforcement of the current easement and to set a timetable for ending the easement.”
Over two years ago, the Governor of Michigan created this Advisory Board by Executive Order to “Review and make recommendations for statutory, regulatory, and contractual implementation of the Michigan Petroleum Pipeline Task Force Report.” This meant the board was required to oversee an independent and comprehensive analysis of risks and alternatives.
Instead we Michiganders have (1) no risk report, (2) a flawed alternative report that still ignores the most credible alternative – using existing and expanded pipeline infrastructure around the Great Lakes, and (3) the Governor’s Thanksgiving deal with Enbridge that locks in a tunnel alternative under 20 percent of the planet’s fresh surface water.
What our leaders have now is Tunnel Vision.
Tens of thousands of citizens of this state have taken the time to study these matters and express their views to you. Members of this board have spent countless hours on your task. All of that for naught because of a closed-door agreement between Enbridge and the governor.
The deal allows Enbridge’s decaying Line 5 oil pipelines to continue to occupy the publicly owned lakebed at the Straits of Mackinac indefinitely, despite the company’s record of deception, poor stewardship, and bungled emergency response. It’s a reward for failure.
We know a fair alternative analysis can be done. In fact, in December 2015, FLOW offered a thorough analysis for the decommissioning of Line 5 that established an alternative that reasonably met the basic purpose of transporting crude oil to the various refineries within and beyond the Great Lakes region. Why hasn’t the state done the same?
The Governor’s deal has mapped a blueprint that narrows the alternatives to some form of tunnel replacement in the Straits, the Great Lakes, and St. Clair River. Moreover, the deal will bind the state to a new replacement of the entire 645 miles of Line 5 through Michigan and potentially open the door to heavy tar sands.
In the interest of full transparency and public knowledge, this board can do the people of Michigan a service by asking for a full public accounting for this deal, and by demanding a credible adverse weather provision to shut down Line 5 and a comprehensive alternatives analysis as required by law. The future of Line 5 is about the future of the Great Lakes. And fortunately, public trust law makes this the public’s decision, not a closed-door deal between the Governor and Enbridge.
Our State’s leadership in the handling of Enbridge’s Line 5 in the Straits of Mackinac has gone from bad to worse. In light of disclosures by Enbridge of a failed pipeline design and the refusal on the part of our State leaders to take action to prevent devastating harm to the Great Lakes, it is time for leaders to either step up or step aside and let the voters or courts decide.
Enbridge has revealed previously withheld documentation showing bending of pipelines from extreme currents, delaminating protective cover, and numerous sections of bared steel open to corrosion. What Enbridge doesn’t understand is this: The State is trustee for citizens who are legally recognized beneficiaries of the public trust in the Great Lakes. The State trustee has a duty to prevent unacceptable harm or risks to the Great Lakes and the boating, fishing, swimming, and drinking water that depend on them. The decision does not belong to Enbridge but to our State’s leaders as trustees of these public paramount waters. Risk is a function of magnitude of harm; the higher the harm, the greater the risk. So it doesn’t matter what Enbridge executives think or say, or what their studies say after consultants have admitted conflicts of interest and withheld critical information on the failed condition of the lines.
Our State’s leaders must put an end to this now. Statements by Governor Snyder, DEQ Director Grether, and Attorney General Schuette about “serious concern” or “disappointment” do not go far enough. The proper response to the serious risk of unthinkable harm to the Straits and Great Lakes is not mere feeling; it is leadership and action. Governor Snyder’s recent agreement has belied even his disappointment. He expressly short circuited the his own advisory board and a citizen process established by his own Executive Order. The agreement expressly narrows a comprehensive alternative study to find a way to avoid crude oil pipelines in the Great Lakes, by expressly agreeing to a replacement of Line 5 in the Straits of Mackinac and the St. Clair River. So much for disappointment, he’s handing Enbridge a large Christmas present.
The Governor and DEQ should have required Enbridge to prove that there is no alternative to crossing under the Great Lakes for pipeline transport to Canada. It is unlikely Enbridge could prove that a non-Great Lakes pipeline alternative does not exist, given the fact that Enbridge recently doubled its design capacity in Line 6b across southern Michigan to Sarnia from 400,000 to 800,000 barrels. To win approval from the Public Service Commission to double its capacity across southern Michigan after the Kalamazoo disaster, Enbridge repeatedly testified if approved the doubled capacity would fulfill the company’s current and future needs, as well as those of Canada and the smaller needs of Michigan.
Our leaders must suspend the transport of crude oil through Line 5, and order Enbridge to start over by revoking the easement the state granted in 1953 and making the company comply with the laws and public trust that protect the Great Lakes. A bank trustee would have been replaced a year ago for such inaction as our state’s. If our leaders, the sworn trustees of our Great Lakes, don’t take action, they, too, should be replaced. Hopefully, it won’t come to that. If it does, then our third branch of government—the courts—should step in as they would in a receivership where management has failed.
It will not have to come to this if our leaders put a stake in the ground and suspend transport of oil. It will finally after three years of “cat and mouse” place the burden where it belongs: on Enbridge. Enbridge must be forced under rule of law to prove no catastrophic harm or acceptable risk and that it has no alternative to a pipeline in the Great Lakes. The truth is Line 5 under the Straits violates “reasonably prudent person” standard in the Easement, a common sense covenant that the company agreed to when it was granted the 1953 easement. It is no longer prudent to risk the Great Lakes with a crude oil spill of tar balls, dead fish, and oily wildlife and beaches.
The message and course of action for our Great Lakes State leaders is clear: Step up or step aside. If not, the courts or voters will do it for you.
What do the Flint drinking water catastrophe and the recent agreement regarding the Enbridge pipeline at the Straits of Mackinac have in common? Both are the result of a gubernatorial administration with fundamental mistrust of the public it serves.
In Flint, the Snyder Administration appointed an emergency manager to short-circuit democratic processes and act paternally on behalf of a community it deemed incapable of self-government. The result was appalling damage to the health and well-being of the community.
This week, the Snyder Administration appointed itself emergency manager of the imminent danger posed to the Great Lakes by Enbridge, apparently deciding the public, the Governor’s own Pipeline Safety Advisory Board, and the DEQ under the State’s Great Lakes protection laws were incapable of contributing to a rational decision. Astonishingly, the public engagement process the Governor himself set in motion with an executive order more than two years ago was essentially discarded in favor of a pact secretly negotiated with Enbridge. The thousands of people and hundreds of organizations and communities who took the time to comment on the future of the pipeline were ignored in favor of assurances from a company responsible for the worst inland oil spill in U.S. history.
Democracy and public participation are under attack at many levels, and the result is poor public policy. The Governor’s agreement with Enbridge puts the Great Lakes at risk.
Liz Kirkwood, Executive Director Cell: 570-872-4956
FLOW (For Love of Water) Email: email@example.com
Gary Street, Technical Advisor Phone: 231-944-1568
FLOW (For Love of Water)
Portions of the steel oil pipelines in the Mackinac Straits may have lost half their wall thickness since installation in 1953 and become dangerously weakened due to hard-to-detect pitting corrosion, an engineering expert said today.
The independent analysis further strengthens the case for an immediate shutdown of Line 5 to prevent a catastrophic oil spill in the Great Lakes, according to FLOW, a Great Lakes law and policy center based in Traverse City. The full analysis can be found at www.FLOWforWater.org.
The possible damage stems from invasive zebra and quagga mussels that have covered portions of the dual underwater pipelines for years, inhibiting external inspection of Line 5 while possibly weakening the steel.
“The cause of their corrosiveness is the excrement from the mussels, which is acidic. An acidic deposit on bare steel leads to corrosion,” said Gary Street, MS, PE, the former director of engineering at Dow Environmental who conducted the analysis. Street notes that pipeline inspection tools called “smart pigs,” which Enbridge uses to detect corrosion, are not very accurate in detecting pitting corrosion.
The disturbing possibility of a significantly weakened Line 5 in the Mackinac Straits comes after recent acknowledgement by the pipeline owner and operator, Enbridge, that there are several large areas of the pipeline where the protective coating is missing. According to Enbridge, the bare steel on Line 5 in the Mackinac Straits was detected by Canadian oil transport giant Enbridge in 2014 when the company installed more supports, but not revealed to regulators until this summer.
“What else is Enbridge hiding from the public and state regulators?” asked Liz Kirkwood, executive director of FLOW and an environmental lawyer. “Attorney General Bill Schuette must immediately enforce the laws protecting the Great Lakes and revoke the state easement that has allowed a private Canadian company conditional use of our public waters and bottomlands.”
Not all types of corrosion are equally harmful. Some forms are far worse than others. Pitting corrosion is a localized form of corrosion by which tiny cavities or “holes” are produced in the material. The National Association of Corrosion Engineers has stated, “While corrosion of bare steel can take many forms, the most insidious, is pitting corrosion.”
“The prudent scenario is to assume that damage originally occurred in 2003 when the first of the new supports was installed,” said Street, whose 35+ year career in industry and consulting has covered an extensive range of experience in environmental engineering, chemical process design, ethanol production processes, minimization of waste materials, project management, and engineering management. “That being the case, it is very possible that the Line 5 pipe wall has suffered serious pitting corrosion beginning at that time. Making the matter worse, pitting corrosion is very difficult to detect.”
Enbridge acknowledged the areas of external anti-corrosion coating loss in September. Several of the areas are larger than the “Band-Aid“-sized areas Enbridge initially described when the gaps were revealed. The largest patch of exposed pipeline metal is 16 inches long and 10 inches wide. Others are narrower but also exceed a foot in length.
Also detailed in the Enbridge reports is a “disturbed” coating area that’s more than 3 feet long, a “dislodged” coating area that’s 13 feet long and a mysterious 8-inch “white deposit” of unknown origin that Enbridge says “remains under investigation.”
The state pipeline safety advisory board met Monday to discuss next steps on Line 5 at the Straits of Mackinac, in the wake of new revelations about shoddy Line 5 maintenance by Enbridge. FLOW's statement at the meeting said enough is known about the pipeline's condition and poor maintenance for the state to immediately revoke the pipeline's easement to traverse the Straits.
Liz Kirkwood, Executive Director Cell: 570-872-4956
FLOW (For Love of Water) Email: firstname.lastname@example.org
Jim Olson, Founder & President Cell: 231-499-8831
FLOW (For Love of Water) Email: email@example.com
ST. IGNACE – The state of Michigan must immediately apply the law, stop Line 5’s oil flow, and reject a Canadian company’s application to extract more life out of its decaying steel pipelines built in 1953, according to FLOW, a Traverse City-based Great Lakes water law and policy center in public comments made today. The comments came at a public hearing in St. Ignace on Enbridge’s bid for state approval to shore up parts of Line 5 that are bent or deformed due to the company’s neglect and support other areas potentially prone to erosion.
“Enbridge characterizes the application as seeking authorization for routine maintenance,” said Liz Kirkwood, FLOW’s Executive Director and environmental attorney. “The reality is that Enbridge is scurrying to rectify its dangerous neglect of maintenance over decades, including multiple violations of a legal agreement to properly anchor its dual pipelines against the swift currents in the Straits.”
A recent report by Dr. Ed Timm, a FLOW adviser and former Dow Chemical engineer, shows Line 5 is bent and deformed where Enbridge wants to anchor it. The report presents new evidence of structural damage to the western pipe where Enbridge seeks to install five of the 22 anchors into Lake Michigan’s public bottomlands, stemming from a company pattern of violating a 1953 easement granted by the state allowing Enbridge to occupy the Mackinac Straits.
The state’s easement agreement allowing Line 5 to occupy the Mackinac Straits limits unsupported spans to no more than 75 feet, but a 2003 survey identified 16 unsupported spans greater than 140 feet; the longest at 224 feet on the east leg and 286 feet on the west leg. Other Enbridge inspection report revealed nearly 250 instances between 2005 and 2016 of unsupported spans on the pipelines exceeded a 75-foot legal limit in violation of Michigan’s easement agreement with Enbridge. This track record does not provide confidence that the company will fulfill its obligations in the future.
By attempting to cloak the results of its neglect and avoiding an assessment of Line 5’s impacts and alternatives, Enbridge is perpetuating the imminent threat to the Great Lakes and the protected public uses that include fishing, commerce, navigation, recreation, and drinking, according to a legal analysis by FLOW.
In fact, the company’s poor performance as well as the massive work proposed provides a compelling legal basis for the state to consider feasible and prudent alternatives to continued operation of the dual Line 5 pipelines.
“The state of Michigan must consider under rule of law whether there are viable options to the piecemeal patch-up of these aging steel oil pipelines threatening the Great Lakes,” said Jim Olson, FLOW’s founder and president and a renowned water rights attorney. “Enbridge has expanded Line 5 and the new Line 78 from Indiana across lower Michigan to Sarnia under the rubric of ‘maintenance.’ Our cities, villages, and citizens have ended up with Enbridge’s version of the Keystone XL right here in the Great Lakes, and it happened without the public notice, hearings, and independent impact and alternative analyses required by law.”
Line 5 transports nearly 23 million gallons of oil and natural gas liquids each day through the Mackinac Straits, 80 percent more volume than its past design capacity after several of its so-called “maintenance” upgrades.
Of particular concern is Enbridge’s continued failure to predict and prevent the cumulative impacts on Line 5 of lakebed erosion caused by Straits currents that frequently reverse and can exceed 10 times the flow over Niagara Falls.
Contrary to assertions by Enbridge, the state taking action to stop Line 5’s oil flow in the Mackinac Straits to prevent a catastrophic oil spill would not disrupt Michigan’s or the Midwest’s crude oil and propane supply, according to a set of expert reports FLOW released in December 2015. Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American pipeline system run not only by Enbridge, but also by competitors supplying the same refineries in Detroit, Toledo, and Sarnia, Ontario.
“The fact is, Line 5 is not essential,” said Rick Kane, a Michigan-based hazardous materials risk management specialist advising FLOW. “The regional pipeline system can supply crude oil to Michigan and surrounding refineries while eliminating the risk that Line 5 poses to the Great Lakes,” Kane said. “Feasible and prudent alternatives exist to support domestic needs, as well as exports. However, pipeline company owners will not move to implement any alternatives as long as Line 5 operates and the public continues to carry the risk.”