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US Enbridge to court: State can't override feds' pipeline regulation on Line 5

03:15  01 july  2020
03:15  01 july  2020 Source:   freep.com

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Enbridge Line 5 is a major oil pipeline in the Enbridge Lakehead System , which conveys petroleum from western Canada to In late June 2019, the state of Michigan filed a lawsuit asking the Ingham County Court to compel the decommissioning of the segment of Line 5 that runs under the Straits of

Enbridge 's Line 5 is a 645-mile, 30-inch-diameter pipeline that travels through Michigan's Upper and Lower Peninsulas, originating in Superior, Wisconsin, and terminating in Sarnia The products moved on Line 5 heat homes and businesses, fuel vehicles, and power industry in the state of Michigan.

Michigan can't order the Line 5 oil and gas pipelines on the Straits of Mackinac lake bottom shut down even temporarily over concerns about anchor strikes or other damage — only federal regulators of interstate pipelines have that authority, Enbridge's attorneys argued in an online court hearing Tuesday.

The company is fighting a preliminary injunction sought by state Attorney General Dana Nessel, seeking to keep Line 5 shut down until Enbridge provides the state with all information related to "significant damage" found June 18 to an anchor support on the east leg of the twin underwater pipelines, and a mark from some object apparently striking the west leg of the line, potentially affecting its outer protective coating.

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Canadian pipeline operator Enbridge Inc has to halt Line 5 operations and disclose information related to the recent damage caused to a part of the oil pipeline The company said it will provide the court with the information it has requested related to the assessment on the current situation with Line 5

The state wants its own evaluators to determine whether it is safe to continue operations of either or both of the pipelines. Nessel's office cites the state's 1953 easement with Enbridge allowing it to place and operate the pipes on the state-held lake bottom. A provision in that easement requires the pipeline operator "at all times shall exercise the due care of a reasonably prudent person for the safety and welfare of all persons and all public and private property."

a screen shot of a computer: A photo provided by Enbridge to the state of Michigan shows damage done to an anchor for one of the Line 5 pipelines in the Straits of Mackinac in 2020. © Enbridge Energy A photo provided by Enbridge to the state of Michigan shows damage done to an anchor for one of the Line 5 pipelines in the Straits of Mackinac in 2020.

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Ingham County Circuit Court Judge James Jamo last Thursday ordered Enbridge to shut down Line 5 in the Straits, pending the outcome of Tuesday's hearing on a temporary injunction. After more than four hours of testimony Tuesday, Jamo said he would consider the evidence and issue a written ruling, likely within the next few days.

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Enbridge Line 5 Payment Agreement. Copyright: © All Rights Reserved . The State and Enbridge consent to the jurisdiction of the U.S. District Court for the Western District of Michigan to enforce this Documents Similar To Enbridge Line 5 Payment Agreement. Carousel Previous Carousel Next.

Canadian pipeline operator Enbridge Inc has to halt Line 5 operations and disclose information related to the recent damage caused to a part of the oil pipeline , a Michigan circuit "If the lines are put back into operation, one mismanaged incident or accident would result in a historic catastrophe for our state ."

"Underlying this case, and relevant to this motion, there is a serious risk of harm, not only to natural resources, but to many communities — that endangers, or potentially endangers, the livelihood of many people and businesses," assistant state attorney general Robert Reichel said.

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Though Enbridge last week provided state officials with engineering reports and video from its remote-operated vehicles inspecting the underwater pipes, critical information is still not available to the state to evaluate whether the pipelines should continue operating, Reichel said.

Enbridge now believes that the damage was done to the individual underwater lines by two separate boats in separate incidents —  one ship traveling east-west through the Straits, dragging something other than an anchor, perhaps a cable, based on drag marks and the glancing loss of outer biological coverings on the west leg pipeline, and the other ship traveling north-south through the Straits, parallel to Line 5, that caused the damage to the east leg anchor support.

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Todd Williams spent months sparring with Enbridge all over Hamilton, trying to disrupt the company's pipeline operations. In the end, the court found that Enbridge was entitled to an injunction restraining Williams and Hill from interfering "They determined their rights override my treaty rights.

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"They've hypothesized about it, but there's been no determination of cause," Reichel said. "And even more remarkably, there's been no determination of when these events that gave rise to these conditions occurred. There's no evidence that Enbridge has systems in place that have the capacity to detect when they incur impacts by foreign objects to the pipelines — which, needless to say from the state's perspective, is extremely concerning."

The state contends there are still important pieces of information that have not yet been provided by Enbridge.

"Without full information, the state cannot exercise the duty that the court recognized it has to protect the public trust and to ensure compliance with the 1953 easement," Reichel said.

Enbridge attorneys, however, said they have agreed to provide the state with all information they are sharing with the federal Pipeline and Hazardous Materials Safety Administration, or PHMSA, which allowed the west leg of the twin pipelines to resume operations June 20, before Jamo's order temporarily halted the flow.

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The revelation comes as state officials consider whether Line 5 should be shut down or diverted out of the Straits, because of the potential catastrophe to the The letter also calls on Enbridge to share with state officials within 14 days the most recent underwater inspection of the Straits pipelines , as well

(A) The sufficiency of existing Federal and state laws and regulations to ensure the safety of gas and hazardous liquid gathering lines Distribution lines , per the regulations , are required to be odorized which provides members of the public with a warning system for the period between surveys.

"The burden of supporting the attorney general's preliminary injunction motion is, of course, on the attorney general. She has not come close to meeting it," Enbridge attorney David Coburn said.

"Neither the attorney general, nor any other organ of the state of Michigan — or any other state, for that matter — can serve as the regulator of an interstate pipeline. The state is preempted from doing so expressly by the Pipeline Safety Act," a 1979 federal law passed by Congress to bring uniformity to the regulation of interstate pipelines, he said.

Though Enbridge acknowledges the "due care clause" in the 1953 easement, the authority designated by law to determine whether it is exercising due care is PHMSA, company attorney William Hassler said.

"If Enbridge is not acting consistent with its due care obligations, in terms of safety, then the state can complain about that to PHMSA," he said. "What it cannot do is start regulating safety on its own."

Jamo at one point in Tuesday's hearing appeared to question PHMSA's diligence in reviewing the damage Enbridge had found to Line 5 before allowing resumption of oil and gas flows on the western pipe. He noted that PHMSA indicated it agreed to resume the western flows "based on Enbridge's assurances that there are no issues or damage to the west line."

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"Where in all of that ... is it documented that PHMSA undertook any kind of analysis and reached an independent conclusion?" the judge asked.

Enbridge attorneys noted that within days of PHMSA's statement, the agency had reviewed its video inspection footage and other provided pipeline integrity data.

Hassler at one point argued that the strikes and damage, which don't appear to be severe enough to have occurred from a large ship's anchor, were not significant enough to cause a safety concern with the thick underwater pipes.

"There is no iota of evidence in the record that (the damage that's occurred) is dangerous," he said. "If (the state) want to put into evidence that the east line is unsafe, they have not done that."

Enbridge proposes as a longer-term solution to the aging Line 5 underwater pipelines a $500 million tunnel beneath the Straits of Mackinac lake bottom, into which a single, 30-inch oil and gas transmission line would operate.

But the Michigan Public Service Commission on Tuesday ruled that the project wouldn't get an automatic go-ahead, but will instead require a contested-case hearing process.

Contact Keith Matheny: 313-222-5021 or kmatheny@freepress.com.

This article originally appeared on Detroit Free Press: Enbridge to court: State can't override feds' pipeline regulation on Line 5

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