Water Utility Strongly Objects To Government Settlement With ExxonMobil

May 29, 2015

Photo of heavy crude oil in a residential subdivision of Mayflower, days after the spill in March, 2013.
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The utility which provides drinking water to hundreds of thousands of Central Arkansans says three provisions of an agreement between the state, federal government and the ExxonMobil Pipeline Company are “unacceptable.” 

The proposed consent decree would settle state and federal environmental claims from the against ExxonMobil over the 2013 rupture of its Pegasus Pipeline and ensuing oil spill in Mayflower.

John Tynan of Central Arkansas Water said one provision, requiring that ExxonMobil treat a segment of the pipeline “susceptible to longitudinal seam failure” in order to meet current federal regulations is unacceptable because ExxonMobil was already supposed to do that.

An executive summary of CAW's comments claims the Pipeline and Hazardous Materials Safety Administration regulations, or PHMSA, already had a “zero tolerance” policy, and ExxonMobil's testing in 1991 and 2006 had already shown the pipeline to be “susceptible to seam failure,” according to the federal agency. CAW calls this first provision “a throw away, mere fluff,” because it “accomplishes nothing.”

“Including this provision in the consent decree is really just restating the obvious,” Tynan said. “It's nothing new.”

CAW objects to the second provision, which requires ExxonMobil to provide training in 2015 and 2017 to employees who would be first responders to a Pegasus Pipeline spill, because “the pipeline will most likely not be in use during the period of required training.”

Instead, CAW recommends that the consent decree require training “for all first responders, including local, county and state emergency responders, and affected water suppliers whose water supply the Pegasus pipeline traverses.”

“When the next spill occurs, the first responders are going to be... the people who live and work in the community where the spill occurs,” said Tynan, noting that a commitment by ExxonMobil to train only its employees “really misses the mark.”

The third provision, which requires the company keep caches of “spill response supplies and equipment” in three locations—two in Texas, one in Mayflower—is unacceptable to CAW because the utility says the locations would be of little help to a majority of Arkansas residents living near the pipeline, the supplies would be “insufficient” and “an obligation to maintain the caches for [a] two-year period when the pipeline will most likely be empty is absurd.”

CAW also proposes thirteen new provisions to add to the consent decree, including removal of the pipeline from the Lake Maumelle Watershed, replacing sections of pipeline that go near streams or rivers that feed into a “potable water supply system's intake sites,” perform spike hydrotesting of the pipeline, and ensure that local and state emergency responders receive training in spill response.

Ten other public officials and utilities from around Central Arkansas have signed onto the comments submitted by CAW on Thursday (the deadline for public comments on the proposed consent decree, which was announced last month).

Legal action was taken in the U.S. District Court for the Eastern District of Arkansas in a jointly filed complaint by the U.S. Department of Justice Environmental and Natural Resources Division, on behalf of the Environmental Protection Agency and the Arkansas Attorney General, on behalf of the Arkansas Department of Environmental Quality.

Under the consent decree, ExxonMobil is also to pay $1 million in State penalties, as well as $280,000 in legal fees, and $600,000 to go toward “water quality-based Supplemental Environmental Projects,” according to an April press release from the Arkansas Attorney General's office. That's in addition to $3.19 million in federal fines.

Richard Keil, a spokesman for ExxonMobil, declined to comment on any specific objections from CAW but said his company has been cooperative party to reaching a consent decree.

“We respect the public's role in this process and interest in sharing its views. ExxonMobil pipeline company took immediate responsibility for the spill, cleaned it up and we have honored all valid claims,” said Keil, “This settlement is one that all parties agreed to. It was completed in a timely manner and accurately reflects our cooperation throughout the process—the remediation and restoration processes.”

In response to an inquiry seeking comment on CAW's input, spokesman Judd Deere sent the below statement from Arkansas Attorney General Leslie Rutledge:

“The point of a public comment period is exactly that – a time to allow interested parties to voice their concerns about an agreement in which they were not able to participate in the original negotiations. I welcome these comments from Central Arkansas Water and commend them for their thorough, and robust review of the consent decree. I continue to encourage other comments and look forward to the response from the Environmental Protection Agency.

Many of the concerns raise important points. With the very recent revelation by Exxon regarding the delay in the pipeline’s use, CAW’s commentary regarding the two year period of compliance with safety training and supply caches is a legitimate issue that EPA should address. While far from perfect, this settlement secured a state civil penalty of $1 million – a historic dollar amount for an Arkansas settlement regarding air and water violations – that allows the Arkansas Department of Environmental Quality to supplement funds available to address emergency actions, and requires greater scrutiny by federal pipeline regulators. I do share CAW’s concerns about PHMSA’s ability to fully regulate interstate pipelines, and I am anxious to continue publicly discussing enhancement of the tools PHMSA and the states have to proactively address safety issues.

 

Arkansas must have a better preparedness and enforcement plan, and I am committed to working with the General Assembly and our federal delegation on these important matters.”

An official with the U.S. Department of Justice declined to comment specifically on CAW's objections but said in an email, “We’ve received a number of public comments, all of which will be thoroughly reviewed by the Justice Department and the EPA.”

The public comments are still up for review by the court and the litigating parties. The federal case is separate from another civil case involving Mayflower residents seeking compensation for damages from the spill. That trial is set for October.