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Americans Finding Themselves Powerless to Stop Pipeline Companies From Taking Their Land

Unable to deny right of way for new Enbridge pipeline in Michigan, homeowners see their American dream overtaken 'by an invading army' on their property.

Sep 16, 2013

The distant rumbling starts about the time David Gallagher pours his first cup of coffee in the morning.

It's a signal that work crews from Enbridge Inc. are beginning another day of construction on an underground pipeline that will someday carry 21 million gallons of heavy crude oil a day just 14 feet from his Ceresco, Mich. home.

By the time Gallagher settles into his favorite chair and sets his cup on the living room table, the parade of bulldozers, backhoes and trucks is grinding past just a few feet from his picture windows. The trembling sets off little seismic waves in his coffee.

(Watch video: What It's Like Living Within Feet of a Pipeline's Construction)

Michigan, like almost every other state that is crisscrossed by oil pipelines, does not stipulate how much space should separate pipelines from houses. The state's Public Service Commission asks only that pipelines be "designed and routed in a reasonable manner."

The federal Pipeline Hazardous Materials Administration (PHMSA), which regulates most of the nation's pipelines, is no more specific. "Pipeline right-of-way must be selected to avoid, as far as practicable, areas containing private dwellings, industrial buildings, and places of public assembly," says a 74-word PHMSA directive, the only mention of keeping pipelines a safe distance from houses in tens of thousands of pages of regulations.

PHMSA relies on the states to provide specific rules addressing pipeline locations. Yet regulators throughout the country, including those in the five states that account for more than half the nation's 194,000 miles of oil pipelines, don't impose any restrictions of their own. Instead, they defer to the scant PHMSA standards, then proclaim they are in compliance with federal regulations.

The regulatory division between making sure a pipeline itself is safe and safely locating that pipeline leaves many troubling holes, said Richard Kuprewicz, president of the engineering consulting company Accufacts Inc. and an adviser to PHMSA.

"Clearly the pipeline safety regulations aren't adequate in this area and the siting regulations aren't adequate," Kuprewicz said. "It's a bad combination."

Without state or federal regulations to protect them, people who live along the 210-mile Michigan section of Enbridge's new pipeline have been left to plead with a company many say is indifferent to their concerns. The 36-inch diameter pipeline will run from Griffith, Ind. across southern Michigan to Sarnia, Ontario, Canada. It is replacing Enbridge's 44-year-old Line 6B, which ruptured near Marshall, Mich. in 2010, causing the largest inland oil spill in North American history. Line 6B was reopened a few months later, and the new, larger pipeline is being built alongside it. A natural gas pipeline owned by an Enbridge subsidiary is also buried in the right of way.

To accommodate the new, $1.3 billion pipeline, Enbridge added about 50 feet to its existing right of way. That put it on a collision course with landowners who have nurtured sprawling gardens, orchards and stands of trees more than a century old in what is now the pipeline's path. When people refused to sell their strip of land, Enbridge exercised its legal right to condemn the property. Although the owners are compensated, some still feel their rights have been violated.

A section of the new line already has been installed about 7 feet from Marty Burke's house in Howell, Mich.—so close that Enbridge used a special process to make sure his foundation didn't collapse.

"At every level of government I contacted, they all said they had no regulations or no authority to do anything," Burke said.

Enbridge took Burke's land though condemnation proceedings and he is waiting for a judge to determine how much Enbridge will pay for it. 

Beth Duman, who lives on five acres in Howell with her husband, Bob, said she hasn't had any peace since she learned more than a year ago that part of her back deck might be sliced off to accommodate the pipe's installation.

"We knew the pipeline was coming through so we had to make choices we thought best, none of them very good," said Duman, who has since reached a settlement with Enbridge. "Think of it like having an invading army come in and occupy your home. They have complete control."

When the Michigan Public Service Commission was debating whether to approve the new line, the commission staff urged Enbridge to try to reduce the pipeline's impact on houses and other structures.

In an environmental impact report Enbridge filed with the commission, it said it was considering rerouting the pipeline around approximately 30 houses, as well as a wetland, roads, railroad tracks and other types of buildings.

The plan didn't specify how Enbridge chose those houses or how it planned to deal with those homeowners. The three-member commission decided the path was "reasonable" and voted unanimously to approve it.

Enbridge has bought out at least three homeowners in Michigan and has paid tens of thousands of dollars to others to offset the hardship of having a pipeline within feet of their homes. Yet there appears to be no pattern to how Enbridge determines the compensation. Duman's house was on Enbridge's list of homes where the pipeline might be re-routed. Gallagher's and Burke's were not.

Enbridge spokesman Larry Springer said the company doesn't have a standard that specifies how close a pipeline can be built to a house. But it does have a safety standard for how close a pipeline can be built to another pipeline—25 feet. In Gallagher's case, the new pipeline was built closer to his house in order to keep it away from the pipelines already buried in the right of way.

Springer said he couldn't discuss the company's dealings with Gallagher, Duman or Burke because those matters are confidential. Gallagher sent a note to Springer giving the company permission to disclose details to InsideClimate News, but Enbridge still declined to discuss his case.

Springer said Enbridge works closely with individual property owners to minimize disruptions during construction.

"Safety is our number one priority and in any construction situation our focus is to protect the public, our workers and the environment," Springer said. "We work with landowners to minimize the impact to their property and to address their concerns through amicable agreement."

Vibrations Rattle a Basement

Marty Burke's relationship with Enbridge has been so contentious that he once faced arrest because he refused to allow the company to use his private road. 

The edge of the trench for Line 6B was originally going to be just two feet from Burke's house—so close that he worried the house could collapse into the trench, which would have to be about eight feet deep and up to eight feet across to accommodate installation of the pipe.

"For months I'd been trying to tell them of the risk to my house," Burke said. "They just tuned me out and said they were going to do that they wanted. My house didn't mean anything to them."

Finally, an Enbridge engineer showed up and confirmed Burke's fears. Burke said the engineer told him there simply wouldn't be enough earth in the sidewall of a trench that size to support the weight of Burke's 2,800 square foot Cape Cod-style house.

The engineer's decision was one of the few concessions Enbridge has made after months of negotiations, Burke said. 

Instead of digging a trench, the company used a counter bore method in which a machine digs a tunnel beneath the earth and the pipeline is pushed through the length of the tunnel. It's the technique used when pipelines cross roads or streams, where digging a trench isn't possible.

"They saved my house only to put in a pipeline seven feet away," Burke said.

After the 36-inch pipe was installed, Enbridge used a procedure called hydro testing, which pumps water though the line at high pressure to check for leaks. Burke was in his basement when the test was conducted and said he could feel the vibrations and hear the whooshing of water through the pipe.

"Standing there with the whirling sound and the pulsing of the liquid going through the pipe makes you realize just how close it is," he said. "It's frightening."

Burke said Enbridge initially offered to pay him $6,000, the company's standard opening offer. Enbridge has since made higher offers, but Burke has rejected them. He hopes the judge in his condemnation case will order Enbridge to buy his house for its value before the pipeline went in.

"Who wants to buy a house with a big oil pipeline seven feet away?" Burke said. "I wouldn't and I don't know who would."

Perplexing Questions

Enbridge made several attempts to ease the problem at the Dumans' house, which was on the list of structures where the company told the Public Service Commission it would try to reroute the line.

The pipeline was originally planned to come within 15 feet of the their house – so close that their back deck would have to be torn down during construction.

First, Enbridge considered routing it through an open space about 200 feet away.

That would have taken the pipeline through a neighbor's open land and required a new right of way. The neighbor threatened litigation.

"So that idea didn't go anywhere fast," Beth Duman said.

Next Enbridge proposed moving the line to the front of the house, where it would cut though a yard full of apple trees, wildflowers and unspoiled prairie grass the couple had protected for a quarter century.

"No way were they going to rip up our yard," she said.

Ultimately the Dumans allowed the pipeline to follow the original path through their backyard. Enbridge didn't demolish their deck, and the couple negotiated a financial settlement that Duman describes as "significantly better" than the original $6,000 offer.

Just as Gallagher is perplexed that his house wasn't on the list, Duman can't explain why hers was.

She suspects Enbridge was more willing to accommodate them because they remained low-key and tempered their criticism of the company.

"We never raised our voices," Duman said. "We were firm but never hostile...It looks to me like the more hostile you are the more Enbridge pushes back."

In the environmental impact report Enbridge filed with the Public Service Commission last year Enbridge said it "considers a variety of factors in evaluating route variations, including length, land requirements, the number of landowners affected, and potential for reducing or minimizing resource impacts."

Cost can also be a compelling factor in locating a pipeline, said Kuprewicz, the pipeline consultant.

Companies that have existing rights of way are reluctant to obtain new routes because of a host of factors including the expense of obtaining new land, the multitude of regulatory requirements and landowner opposition.

"So why not take the path of least resistance?" Kuprewicz said. "Use what you've already got in pocket.

"When you look at cost as a factor you may fall into the trap of not using the best route that is the safest."

Enbridge's Springer declined to explain how the company decided to reroute around some houses and not others. The company also did not disclose how many times Line 6B was rerouted to avoid houses.

Acknowledging the Risk

In 2008 PHMSA tried to figure out how close pipelines should come to houses and other structures—but it approached the problem from a different angle: How close should houses be built to existing pipelines?

PHMSA created a coalition of local planning officials, pipeline operators, environmental organizations and public safety agencies to develop advisory standards for new development around existing pipelines. The group, called the Pipeline Informed Planning Alliance (PIPA), came up with a clear message: Don't build too close to a pipeline.

"Buildings and associated structures should not be allowed on the transmission pipeline right-of-ways as this places building occupants in close proximity to the pipeline and could result in interference with pipeline operations and maintenance," according to PIPA.

The alliance didn't establish a specific distance pipelines should be from houses and other development but it suggested that extra precautions be taken and extra planning done if buildings are within 660 feet to 1,000 feet on either side of a pipeline.

The alliance emphasized that buildings inside this area shouldn't be considered unsafe. The point, it said, was that extra care should be taken when constructing buildings and roads, or installing utilities and septic systems in this zone.

Gallagher, the Ceresco homeowner, wonders why such a recommendation shouldn't apply when a new pipeline is built near existing homes.

"It seems they are saying that having pipelines too close is not a good thing," he said. "But here they come putting in this massive new pipe just outside my window."

'You Can't Imagine the Stress'

Gallagher lives in the house his in-laws built in 1973, five years after Line 6B was laid across what was then open farmland. Although Enbridge is moving equipment past his house to work on other sections of the line, digging near his home still appears to be a few days away. 

Early on, Gallagher asked Enbridge to buy his house, but he said the company didn't respond. Finally he accepted a $16,000 "close proximity" fee, along with $6,400 for the extra land Enbridge took.

Because the trench will be dug just a few feet from his home, Gallagher worries that his foundation might be damaged. He said his fears were confirmed when after an Enbridge construction worker told him he was "nervous" about laying the pipe so close the house.

"If he's nervous, how do you think that makes me feel?" Gallagher said. "And what is so awful about this is Enbridge could have moved the pipe."

The pictures and video Gallagher has taken of the heavy equipment lumbering alongside his house have been broadcast on TV stations throughout Michigan. They've also been posted on the Line 6B Citizens' Blog, run by Jeff Insko, an American literature professor at Oakland University in Rochester, Mich.

Insko wrote on his blog that Gallagher's situation is a perfect example of Enbridge's insensitivity when it comes to property owners' safety concerns. "…It illustrates vividly how and why Enbridge has bulldozed its way (literally and figuratively) through the state," he said.

Insko said most of the landowners he knows aren't trying to block the pipeline. They knew Line 6B was nearby when they bought their houses and understand that Enbridge has easement rights.

The problem, Insko said in an interview with InsideClimate News, is "that Enbridge has exercised those rights heavy-handedly, if not abusively."

"Having an easement does not give Enbridge the power to do whatever it wants on people's property."

Fenton, Mich. resident Judy Tanciar said she felt helpless when Enbridge told her they were going to demolish her backyard swimming pool.

The additional right of way Enbridge obtained for the pipeline sliced though the Tanciars' backyard, 30 feet from their house, right down the middle of their swimming pool and along a line of towering trees.

"They just said this is where the line is going," Judy Tanciar said. "It wasn't like 'How can we avoid your house and pool?' but 'Tough luck, you lose.'"

The Tanciars hired a lawyer to fight Enbridge. Judy Tanciar blames the stress of the ensuing battle for her husband's stroke earlier this year.

"You can't imagine the stress this has caused," she said. "It all could have been avoided with a little compromise."

The couple wanted Enbridge to buy the house and five acres, but Judy Tanciar said the company didn't respond. Instead, Enbridge rerouted the pipeline enough to save the pool and paid the Tanciars $48,000.

"That doesn't come close to paying for the grief," Judy Tanciar said.

The trees the couple cherished have now been chopped down, and the pipeline is buried outside their kitchen window.

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