Enbridge expected to face criminal charges over Michigan spill

Washington Independent
March 7, 2011

The former chief of the U.S. Department of Justice’s environmental crimes section said Friday that the oil and gas company Enbridge will likely face criminal charges over its 2010 Michigan pipeline rupture.

On July 26, an Enbridge oil pipeline that runs between Griffith, Ind., and Sarnia, Ontario ruptured in Marshall, Mich., spilling an estimated 819,000 gallons of sticky Canadian tar sands crude into a tributary to the Kalamazoo River.
“I would expect the federal government to bring criminal negligence charges against Enbridge under the Clean Water Act, which are the same charges they are likely to seek for the Gulf oil spill.” said David Uhlmann, who led DOJ‘s environmental crimes section for seven years and now teaches at the University of Michigan.
In order to prove negligence in such a case, the government only needs to prove that the company failed to use reasonable care, he said.

“Negligence is not going to be hard to prove given the lack of maintenance and the extent of damage from the spill.”
Pipeline tests by the company showed corrosion problems on the Michigan pipeline more than a year before the spill and company officials were arguing with regulators for more time to fix the problem as the leak occurred.
The company has a record of safety violations. In August, federal officials announced more than $2.4 million in civil fines against Enbridge for other maintenance and safety problems in Minnesota, Louisiana and Oklahoma dating back to 2006.
The U.S. Department of Transportation found that the company’s failure to safely and adequately perform maintenance and repair activities on the Lakehead pipeline system in Clearbrook, Minn., caused a leak and explosion that killed two workers in 2007.

Federal criminal charges would likely involve misdemeanors, but those still would result in a criminal record for the company, substantial fines and the possible loss of government contracts, Uhlmann said.
Felony charges would require a knowing discharge, which is harder to prove. It is not clear at this point whether individuals within Enbridge can be held criminally responsible.

In a forthcoming article about the Gulf oil spill, Uhlmann writes that it is important for the DOJ to pursue criminal charges because criminal prosecution is a more powerful expression of societal condemnation of the negligence that caused the spill and will deter future spills.

“The Justice Department and the Michigan Attorney General’s office also may file a civil complaint, in addition to the likely criminal charges against Enbridge,” he said.

A civil case could seek penalties for natural resource damages and cleanup costs.

The spill covered a 30-mile long stretch of the Kalamazoo River and its floodplain; killed vegetation, fish, birds and small mammals; forced some people to leave their homes and sickened hundreds of others.

The impacted section of the river remains closed for all public uses due to ongoing contamination.
Enbridge has settled many claims with local residents, but is fighting some oil spill claims in local court.
In defending itself in cases seeking damages for property, business and health losses, Enbridge says it cannot be held liable for oil spill damage claims because it has followed all relevant laws, regulations and industry standards and the damage was not foreseeable.

Enbridge also argues that the charges against it are improper “because federal, state and/or local authorities and agencies have mandated, directed, approved and/or ratified the alleged actions or omissions.”
Denying responsibility in local court may not help Enbridge when it comes time to deal with criminal and or civil suits brought by the state and federal government, Uhlmann said.

“I think the better approach for Enbridge would be to accept responsibility for the damage they have done, remedy the harm and pay restitution to any victims,” he said.

“BP hasn’t fought the government or its victims over the harm caused by the Gulf oil spill and that will help BP when they enter settlement negotiations with the government.”

In August, the Great Lakes Environmental Law Center gave notice that it intended to sue Enbridge under the Clean Water Act.

In a letter sent to Enbridge CEO Patrick Daniel and copied to U.S. Environmental Protection Agency Region 5 Administrator Susan Hedman and Michigan Dept. of Natural Resources and Environment Director Rebecca Humphries, GLELC stated that Enbridge could be liable for up to $100 million in civil financial penalties for the spill.

In an interview with Michigan Radio GLEC Executive Director Nick Schroeck said that the lawsuit would be delayed or dismissed if the state or federal government decides to pursue fines against the company.

So far state and federal officials have not announced fines, and GLELC has not filed its suit.

Ulhmann said that officials are unlikely to discuss plans before announcing charges and that it normally takes 12 to 18 month to bring a case under the Clean Water Act.

There are some signs that charges could be in the works.

In September, EPA regional administrator Hedman announced that the agency had begun a criminal investigation into the spill, and the Dept. of Justice has signaled interest in pursuing the operators of leaking pipelines.

“In the last year alone, transportation pipelines released more than two million gallons of oil into the environment, posing a serious threat to human health and natural habitats,” Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance said in August as she announced a $44 million dollar Clean Water Act settlement with Plains All American Pipeline L.P. “These spills – and the recent pipeline spill in the Kalamazoo River – remind us that we must be diligent in our enforcement efforts and work to ensure that companies are meeting their environmental obligations.”

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