Tag: State of Michigan

Michigan Officials Direct Nestlé to Reexamine Impact to Freshwater Resources of Increased Pumping Proposal


Acting in part on scientific evidence developed and submitted by FLOW and our expert team, the Michigan Department of Environmental has directed Swiss water-bottling giant Nestlé to reassess the likely impact on local wetlands, streams, and natural springs of its application to dramatically increase water extraction to 210 million gallons a year near Evart, northeast of Big Rapids. 

The state action is an important step forward in protecting vulnerable water resources, as Nestlé Ice Mountain seeks a state permit to more than double its spring water withdrawal from the current rate of 150 gallons-per-minute (gpm) to 400 gpm, or as much as 576,000 gallons-per-day, from its White Pine Springs well No. 101 in the headwaters of Chippewa and Twin creeks in Osceola County.

“Staff have endeavored to complete their review with the information provided and, in light of input from Nestlé’s experts, have concluded that the information, analysis, data, and explanation provided does not yet provide the DEQ with a reasonable basis to make the determination if the requirements” in the law will be met, James Gamble of the Michigan Department of Environmental Quality wrote the company on June 21.

The DEQ requested that Nestlé provide, among other things, a revised groundwater model using improved methods to evaluate the interaction between the streams, aquifers, and wetlands and detailed water budget analyses – including sources of water and assumptions – during wet, normal and dry years.

“It shows that science and law still matter and must come before corporate schemes to turn the public’s water into a private commodity,” said Jim Olson, FLOW’s president and founder, who as a Traverse City environmental attorney previously fought Nestlé in court on behalf of the Michigan Citizens for Water Conservation. “The DEQ should be commended for upholding the law to its highest standard, which is to require evidence of actual impact before approving the permit.”

It is the second time the DEQ has sought more information on Nestlé's July 2016 permit application for the highly controversial proposal, which is part of the company’s $36 million planned expansion of its Ice Mountain bottling plant in Stanwood. Hundreds of people in April attended a state public hearing to oppose to permit, and tens of thousands submitted public comments in opposition.

The MDEQ is reviewing Nestle's application under Section 17 of the Michigan Safe Drinking Water Act, a regulation specific to Michigan water bottlers developed in response to environmental concerns sparked by Nestle's original Sanctuary Springs wellfield. It's the first Section 17 application to be reviewed since the law passed. The statute is tie-barred with the Natural Resources and Environmental Protection Act, which states that groundwater pumping must have no "individual or cumulative adverse resource impacts."

In reviewing Nestlé's application this spring, FLOW requested that a team of scientists – Dave Hyndman, PhD, an expert in hydrogeology, and Mark Luttenton, PhD, with expertise in stream and wetlands – review the Nestlé application. 

Dr. Hyndman’s evaluation found that Nestlé’s “application does not fully evaluate the existing hydrologic, hydrogeological, or other physical and environmental conditions because: (1) Data collected between 2001 and the onset of pumping in 2009 do not appear to be used or evaluated; (2) The seven or eight years of data on the effects of pumping at 150 gpm when pumping started in 2009 have not been used or evaluated.”

Dr. Luttenton found that the information submitted and evaluated is insufficient for the MDEQ to make a determination of effects, impacts, harms, and impairment of Nestle’s proposal, including likely impacts on:

-Fish species
-Invertebrate communities
-Existing physical conditions, including upstream or in surrounding seeps and unnamed small creeks
-Wetlands and plant species

“Based on my analysis to date, my opinion is that the water withdrawal by Nestlé’s [proposal] will, or is very likely to cause environmental impacts to the surface water resources in the region,” Dr. Luttenton concluded. “In addition, my opinion is that during low flow and low water level conditions, there is inadequate water in the Chippewa Creek, Twin Creek, and other surface water features, to prevent probable impairment, degradation, or harm to the aquatic and ecological system, including fish and fish habitat.”

Analysis of Alternatives to 64-Year-Old “Line 5” Pipelines Riddled with Bad Assumptions, Miscalculations

 

TRAVERSE CITY – A draft report for the State by Dynamic Risk Inc. of alternatives to Enbridge’s risky twin oil pipelines crossing the lakebed at the Straits of Mackinac is so deeply flawed, according to FLOW, a Traverse City-based Great Lakes water law and policy center, that the State cannot credibly rely on its findings to decide Line 5’s future.

“The report is unreliable and should not be used,” said Liz Kirkwood, Executive Director of FLOW. “Instead, the State should protect the Great Lakes from the potential of a catastrophic oil spill and exercise its legal authority to revoke Enbridge’s permission to use the waters and lakebed that belong to the people of Michigan.”

Prepared by Dynamic Risk Assessment Systems of Calgary – a firm with business ties to Enbridge – the study is rife with biased assumptions and technical errors that skew its findings, said FLOW representatives at a public meeting on the campus of Northwestern Michigan College.

“The process of developing these now-discredited reports has cost Michigan well over a year that should have been spent crafting a thoughtful decommissioning process that protects the Great Lakes, prioritizes citizens, businesses, and tribes, and ultimately addresses Michigan’s energy needs,” said Kirkwood, “Enbridge has been granted an extension through distraction.”

Among the draft report’s flaws:

• It completely ignores the most suitable alternative to Line 5, which is existing infrastructure. The state asked consultant Dynamic Risk to analyze it. Failure to do so taints the analysis.

• The draft report assumes that the state must guarantee that Enbridge deliver 23 million gallons of oil that is now being transported daily through Line 5, rather than protecting the energy needs of its citizens. This bias results in the tunnel option appearing as a favored report alternative.

• The draft report assumes the best-case scenario for a spill, not the worst. The consultant uses assumptions of risk that are woefully inadequate and are not credible. It estimates that an average 20 miles of shoreline would be impacted by a spill. This is just 3% of the 720-mile area the University of Michigan found vulnerable to a spill in its 2016 study.

• It significantly understates the likelihood of pipeline failure at an already-alarming 1 in 60 chance by ignoring 50 years of neglect, unsupported spans, powerful currents, and gravity. Applying DOT engineering standards and adding up the failure probability on a yearly basis gives the 2017 failure probability at 46.4% and the 2053 failure probability at 72.5%, or odds of about 3-1. These figures are far different from the Alternatives Analysis estimate of 1.6% by 2053.

• It relies on flawed economic impact modeling that unreasonably concludes that a spill in the open waters of the Great Lakes would only cost $100-200 million in damages.

• It estimates an impact to propane supply much greater than what FLOW’s independent experts have determined would be necessary to provide the Upper Peninsula’s Rapid River facility with an alternative supply. The flawed alternatives report finds that up to 35 railcars per week or 15 truckloads per day would be necessary to replace the Line 5 supply of natural gas liquids, while FLOW’s expert studies have found it would take only one railcar or 3-4 truckloads per day. Line 5 supplies only 35-50 percent of the Upper Peninsula’s propane.

“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.”
Last month, the state cancelled a contract for an analysis of the financial risks associated with the Mackinac pipeline when it was disclosed an employee of contractor Det Norske Veritas worked on another project for Enbridge, creating a conflict of interest.

“The risk is far too high for State leaders to use this flawed report as an excuse for more delay, especially when there are obvious alternatives for Enbridge, Michigan, and Canada without Line 5 in the Straits,” said Jim Olson, FLOW’s founder and president and a renowned water rights attorney. “Good leadership calls for interim measures now, based on the clear authority and duties imposed on the State to protect the Straits and Great Lakes. This means prohibiting the transport of crude through Line 5, pending further proceedings and final decisions.”

After the revelation last month that Enbridge for years routinely violated a legal agreement to properly anchor its dual pipelines against the swift currents in the Mackinac Straits, FLOW argued the state of Michigan now must apply the law, stop Line 5’s oil flow, and hold public hearings as it considers the Canadian company’s application to squeeze more life out of its decaying steel infrastructure built in 1953.

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A Disappointing Distraction: FLOW’s Statement on the Line 5 Alternatives Study

On June 29, the State of Michigan released for public comment a consultant’s study on alternatives to Line 5, the risky 64-year-old dual oil pipelines that cross the lakebed of the Straits of Mackinac.  The state is now holding public meetings on the study.

The study is a major disappointment and contributes little of value to the discussion on the fate of the oil pipelines operating in the Great Lakes since 1953. 

FLOW’s position is unchanged:  the State of Michigan must terminate the easement allowing Enbridge to use Lake Michigan’s lakebed for the pipelines.  The state has the authority and the responsibility to do so to prevent a catastrophic oil spill.  In light of Enbridge’s consistent record of disregard for maintenance of Line 5, the state must do so.

* FLOW rejects the alternatives study as fatally tainted by the authors’ blatant conflict of interest. The consulting firm’s vice president has an extensive history of working alongside of, and in support of, Enbridge.  The state’s process is now revealed for what it always has been – a distraction from its responsibility to protect the Great Lakes by shutting down Line 5 now.

* Substantively, the alternatives study can’t be taken seriously because it:

  1. Completely ignores the most suitable alternative to Line 5, which is existing infrastructure. The state asked consultant Dynamic Risk to analyze it. Failure to do so skews the analysis. Since the state and consultant won’t do their jobs and analyze the existing infrastructure, FLOW will continue to analyze it by updating our 2015 independent expert report on that alternative in the near future.
  2. Assumes the best-case scenario for a spill. The consultant uses assumptions of risk that are woefully inadequate and are not credible. It estimates that:
  • Only 20 miles of shoreline would be impacted by a spill. This is just 3% of the 720-mile area the University of Michigan found vulnerable to a spill in its 2016 study.
  • An oil spill would cost $100 million to $200 million, when Enbridge’s cleanup costs for its Line 6B pipeline oil spill into the Kalamazoo River watershed in 2010 cost more than $1.2 billion.
  1. Inflates the impact of shutting down Line 5 to the U.P.’s propane supply. The report estimates an impact to propane supply much greater than what FLOW’s independent experts have determined would be necessary to provide the Upper Peninsula’s Rapid River facility with an alternative supply. The flawed report finds that up to 35 railcars per week or 15 truckloads per day would be necessary to replace the Line 5 supply of natural gas liquids, while FLOW’s expert studies have found it would take only one railcar or 3 – 4 truckloads per day.

FLOW is a leader in the Oil & Water Don’t Mix campaign uniting citizens, businesses, groups, governments, tribes, and faith communities in support of shutting down Line 5 to avoid a catastrophic Great Lakes oil spill.

Please submit your comments on the State of Michigan’s Line 5 alternatives study by August 4 by visiting the Oil & Water Don’t Mix website here: www.OilandWaterDontMix.org.

 

 

 

 

 

 

Action Alert: Enbridge Trying to Squeeze More Life Out of “Line 5” in the Mackinac Straits

Take Action Now!

Urgent Threat: Enbridge is courting an oil spill disaster again in Michigan, and this time the Great Lakes are at risk. The public has until June 29, 2017, to oppose the Canadian energy transport giant’s request for state permission to squeeze more life out of a cracked, dented, and deformed pair of pipelines that push 23 million gallons of oil a day across the bottom of the Mackinac Straits, where Lake Michigan and Lake Huron meet. The request to continue the piecemeal patch up of the 64-year-old “Line 5” pipelines threatens the drinking water source for more than 40 million people, the economic engine for the Great Lakes region, and a way of life for millions of North Americans.

Terrible Track Record: Recall that Enbridge in 2010 caused the largest inland oil spill in U.S. history when its southern Michigan pipeline ruptured and dumped more than one million gallons of heavy tar sands oil into the Kalamazoo River watershed. That failure sickened 150 people, and permanently drove 150 families from their homes, taking four years and over $1.2 billion to clean up to the extent possible. Enbridge’s Line 5 has a similar dark history, with at least 29 spills totaling more than one million gallons of oil spread along its path in Michigan and Wisconsin since 1953.

Damage Done: Now Enbridge has applied to the State of Michigan for a permit to install more underwater anchor supports on its antiquated Line 5 pipelines in the Mackinac Straits, which the University of Michigan calls the “worst possible place” for a Great Lakes oil spill. The 22 anchor supports are another belated attempt to keep Line 5 from shifting, bending, and grinding on the bottom in the powerful underwater currents at the Straits, but the damage is already done. These supports are merely the latest in a series of stopgap measures that ignore decades of metal fatigue and stress on the pipeline, which is now well past its 50-year life expectancy and should be permanently shut down as soon as possible.

Follow the Facts

Public records reveal that…

  • From the 1970s through the 1990s, Enbridge installed grout bags to prop up Line 5, attempting to meet the state’s requirement under the 1953 easement to support the steel pipeline at least every 75 feet along the publicly owned bottom of the Great Lakes.
  • In 2001, Enbridge declared an emergency on Line 5 in the Straits to stabilize stretches or spans of the pipeline that had become dangerously unsupported for over 130 feet because of “washouts” of the lake bottom and grout bags caused by swift currents that, records show, were underestimated when the pipeline was designed. 
  • Recently it was revealed that Enbridge was out of compliance likely for decades with the legally required safety margin, allowing 16 spans of Line 5 to go unsupported for lengths greater than 140 feet, with the longest being 224 feet on the east pipeline and 286 feet on the west pipeline – nearly four times the legal limit.
  • With no reliable model to predict lakebed washouts due to the highly dynamic nature of currents in the Mackinac Straits, Enbridge cannot meet its legal duty under the state easement to prudently operate this pipeline.
  • Enbridge incorrectly categorizes its proposed patchwork response to Line 5’s major structural defects as “routine maintenance” when the company has, in fact, been systematically expanding the capacity of Line 5 and Line 6b in southern Michigan to carry Canadian oil heading mostly back to Canadian refineries and to overseas markets.

This strategy has previously enabled the company to avoid State of Michigan review of the safety and necessity of the pipeline itself, and dodge the legally required consideration of alternative routes and methods that do not threaten the Great Lakes.

Take Action Now

The public has until June 29, 2017, to submit comments to the Michigan Department of Environmental Quality opposing Enbridge’s bid to keep Line 5 on life support and seeking to prevent a Great Lakes oil spill disaster.

  • Submit comments at http://www.oilandwaterdontmix.org/anchor_structure_public_comment
  • Draw upon information in this Action Alert, and from www.OilandWaterDontMix.org, to offer objections that are specific and factual.
  • Be sure to demand a public hearing and call for the Michigan DEQ’s full review of the environmental impact of the Enbridge request and feasible and prudent alternatives to Line 5, as required by law.
  • Written comments will be made part of the record and should reference application number 2RD-DFDK-Y35G.

 

Thank you! 

PR: State of Michigan Takes a “Holiday” from Preventing Line 5 Oil Spill Disaster in Great Lakes

FOR IMMEDIATE RELEASE                                                                                         March 9, 2017

Contact:  Liz Kirkwood, Executive Director                                               Email: Liz@FLOWforWater.org

FLOW (For Love of Water)                                                     Office: (231) 944-1568, Cell: (570) 872-4956

 

State of Michigan Takes a “Holiday” from Preventing Line 5 Oil Spill Disaster in Great Lakes

Snyder Administration Watches and Waits as the 64-year-old Dual Pipelines Missing Their Anti-Rust Coating and Structural Supports Continue to Use Mackinac Straits as a High-Risk Shortcut to Private Profits

TRAVERSE CITY, MI – The Snyder administration, in two letters (here and here) released Wednesday, indicated it will seek more information, but take no enforcement action, while continuing to accept Enbridge’s assurances that all is well with dual oil pipelines in the Mackinac Straits that the Canadian company itself has indicated are missing portions of an external, anti-rust coating and lacking 18 anchor supports to prevent the pipes from grinding and bending along the bottom and bursting.

The letters – signed by Attorney General Bill Schuette, Michigan Department of Natural Resources Director Keith Creagh, and Michigan Department of Environmental Quality Director Heidi Grether – describe “inviting” Enbridge to explain the company’s September 2016 report that identifies 19 areas along the submerged steel pipes where the anti-corrosion coating is missing. Enbridge’s report euphemistically calls the missing portions “holidays,” industry jargon for areas where the coating has worn or fallen off. The report outlines a plan for assessing Line 5’s integrity where the coating is gone and acidic waste excreted by invasive mussels that blanket the pipes could be causing corrosion.

Enbridge claims that the report is merely “hypothetical,” even though the report flatly states that the external coating is missing and the words “hypothetical” and “theoretical” are not found in the document.

“The State of Michigan is moving in slow motion to question Enbridge’s claims that its own report doesn’t mean what is plainly says,” said Liz Kirkwood, an environmental attorney and executive director of FLOW, a Traverse City-based water law and policy center dedicated to upholding the public’s rights to use and benefit from the Great Lakes. “When the pipelines finally fail, will the state invite Enbridge to explain what the thick, black substance is pouring out of the 64-year-old pipes and into the drinking water source for nearby Mackinac Island, St. Ignace, and roughly 5 million Michiganders?”

The state issued its March 8 letter in response to February 17 correspondence from the Oil & Water Don’t Mix campaign, which FLOW co-leads with several other leading organizations, that raised grave and detailed concerns about the condition of Line 5 and called for its immediate shutdown.

An Enbridge representative is expected to explain its report at the March 13 quarterly meeting in Lansing of the governor-appointed Michigan Pipeline Safety Advisory Board, whose members include Attorney General Schuette. The advisory board is overseeing the completion of two nominally independent studies funded by Enbridge: one on the financial risk to communities and the Pure Michigan economy of a Line 5 oil spill in the Mackinac Straits and the other on alternatives to the aging pipeline that could avoid such a disaster. These two studies are expected by June 2017.

Enbridge is infamous for leaking more than one million gallons of heavy tar sands oil into the Kalamazoo River watershed near Marshall, Michigan, in 2010, fouling nearly 40 miles of the river and shore, sickening numerous people, harming wildlife, and forcing more than 100 families to permanently abandon their homes and property.

The failure to adequately maintain the Line 5 pipelines, including a lack of supports to prevent bending of the pipeline – is a breach of Enbridge’s 1953 legal easement agreement with the State of Michigan that allows the company to occupy public waters and state bottomlands. The failures documented in the Enbridge report add to the mounting evidence of the unacceptable risk that this infrastructure poses to the Great Lakes.

A three-minute video of Line 5 pipelines in the Straits, researched and edited by FLOW’s engineering expert Dr. Ed Timm, reveals the physical deterioration of Line 5, with missing and dislodged coating, broken bands, detached wooden structural slats, unsupported segments, and possible rust and pitting.

In addition, a just-released technical note prepared by Dr. Timm regarding Line 5 reinforces the urgent need for the state to immediately shut down Line 5 while it evaluates the integrity of the aging infrastructure that pumps nearly 23 million gallons of oil a day through the Mackinac Straits before eventually reaching refineries in Sarnia, Ontario. Specifically, this technical note concludes the following:

  • Line 5 is not immune to corrosion and stress cracking despite its thick walls, contrary to Enbridge’s claims;
  • The asphalt enamel based coating system is compromised or missing on many areas of the pipe;
  • The extent of the coverage by invasive mussels on the pipelines makes it “impossible” to evaluate how much of the coating system is compromised;
  • The easement-required wooden slats that were designed to protect from point loads and abrasion are missing entirely on portions of the pipelines; and
  • The peak currents in the Mackinac Straits are nearly twice the maximum velocity considered when the pipeline was designed, adding significant stress;
  • A full study of the integrity of the coating system that includes a careful examination of the impact of the biofouling on the pipelines is critical to making a proper fitness-for-service evaluation.

“The evidence demands that the State of Michigan respond and fulfill its affirmative fiduciary duty,” wrote Jim Olson, an environmental attorney and FLOW’s president, in a March 9 follow-up letter to the State of Michigan. “It is not enough to stand by the sidelines and merely request additional information from Enbridge given the high risk of a catastrophic oil spill in the Great Lakes that would devastate our public drinking waters and our water-dependent economy. ‘Pure Michigan’ should not just be an advertising slogan.”

For more information, visit the FLOW website at www.FLOWforWater.org

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FINAL FLOW-Line 5 Media Release-Pipeline Coating 3-9-2017

End Enbridge Stonewalling

Observations by some that the State of Michigan has no regulatory authority over hazardous liquid pipelines is correct to the extent that it is understood in the context of  safety regulations — standards, inspection and enforcement; safety code enforcement is covered by the federal PHMSA law, regulation and agency.  However, it is not true that Michigan does not have authority to demand the information Enbridge keeps under its control, and it is not true that Michigan does not have enforcement authority.

As concluded by the Michigan Petroleum Pipeline Task Force Report, 2015, Michigan has authority under the 1953 Easement, including the continuing obligation of Enbridge to conduct itself with prudence at all times, and it has authority under:

(1) its sovereign ownership of bottomlands and waters of the Great Lakes since statehood in 1837 under “equal footings” doctrine. Michigan took title in trust to protect the basic rights of citizens as beneficiaries of a public trust imposed on the state.  This means the state has authority and duty to take actions to protect the public trust as a matter of its “property and public trust power,” whether or not it passes regulations on hazardous liquid pipelines or not.  Under public trust authority and principles, the state cannot transfer or shift control over waters and bottomlands held in trust to any private person or corporation; the retention of information by Enbridge that is required to protect the public trust or to determine whether the public trust is threatened with high unacceptable harm or risk violates this public trust principle, and the Attorney General can demand and take all action necessary to compel Enbridge to turn it over, indeed, even the easement recognizes and is subject to this public trust.

(2)  The Michigan Public Service Commission has authority over siting and locations of crude oil pipelines like Enbridge’s and others.  Anytime Enbridge or some other corporation applies for a change or improvement to the structure it regulates as to siting, including its consideration of risks to property and health or environment and alternatives, the MPSC has authority to demand all relevant information needed to  make a decision on the application for such change.  Unfortunately, the MPSC has not insisted on the full range of information it could demand, including alternative pipeline routes and capacity to Line 5 in the Straits of Mackinac when it doubled capacity for Enbridge’s new replacement for the failed Line 6B that ruptured into the Kalamazoo River in 2010.

(3) Finally, the Michigan Environmental Protection Act, Part 17,  NREPA, imposes a duty to prevent and minimize harm to air, water, and natural resources, and this includes the right to take action where necessary when a corporation’s actions are contrary to this duty to prevent and minimize harm; the MEPA, as it’s  often called, is derived from Art 4, Sec. 52 of the Michigan Constitution.

So while Michigan ponders the aging or new pipeline infrastructure for hazardous liquids and crude oil, the state, including the Attorney General, have the authority to take immediate action to prevent the high risk of Line 5 or other pipelines.  And, where that risk involves the devastating harm that undoubtedly may occur in the Straits, action should be taken immediately pending the coming one to two years of pondering.  In short, there is no legal excuse or justification for Governor Snyder, Attorney General Bill Schuette, or the Department of Environmental Quality to put up with Enbridge’s self-serving stonewalling on disclosure of all information related to its Line 5 hazardous crude oil pipeline.  And, there is no excuse or justification for our state leaders to delay action to eliminate the unacceptable harm from the Straits or other Michigan waters from Line 5.