Central Arkansas Water
(CAW) has filed a notice of intent
to file a citizen lawsuit against ExxonMobil
under the federal Pipeline Safety Act.
The unusual legal maneuver of notifying a party that it'll be sued, rather than simply suing it, is dictated under the Pipeline Safety Act, which requires that potential plaintiffs give 60 days notice to the accused and the Department of Transportation
, whose Pipeline and Hazardous Materials Safety Administration
(PHMSA) regulates pipelines.
ExxonMobil's Pegasus pipeline
, which ruptured in Mayflower in March, runs through the watershed of the utility's primary water source, Lake Maumelle.
In a letter
to local, state and federal elected leaders, CAW CEO Graham Rich
said the notice would ensure that the utility has the option to file an injunction after 60 days should Exxon submit a request with PHMSA to restart the pipeline. Rich said that the notice follows repeated unfulfilled requests by the utility to get "comprehensive, unredacted" information on the pipeline.
Rich said in his letter that CAW had provided a "signed, negotiated, and mutually agreed-upon" version of a confidentially agreement to Exxon on Aug. 27 that would allow CAW to get information it's requested that Exxon hasn't provided, citing security and competitive concerns. But he said CAW hadn't received an executed copy of the agreement. It's worth mentioning that a public utility signing a confidentiality agreement with a private entity is of dubious legality.
CAW Watershed Protection Manager John Tynan
said the notice "doesn't mean that we are suing or are required to sue. Only that after 60 days elapses, we'll have an important option available to us." Despite this move, Tynan said CAW would continue to try to work with Exxon.
In the official notice of intent to sue CAW sent to Exxon and Department of Transportation officials, the water utility lists six violations of the Pipeline Safety Act. Generally, CAW contends that Exxon hasn't sufficiently maintained, inspected or monitored its pipeline. It says that Exxon hasn't updated its spill-response plan after it began transporting Wabasca heavy crude, a thick bitumen, in 2006. CAW also argues that Exxon hasn't taken sufficient steps to mitigate a possible spill in the watershed — by not adding a second shutoff valve in the watershed. We've previously reported on many of these problems identified by CAW
CAW unveiled one previously unreported bit of news in its notice — that a 2006 hydrotest of the Pegasus (a test where an operator pumps water through its pipeline at higher-than-normal pressures in order to force failures in vulnerable parts of the pipe) caused seam ruptures in at least two locations within the watershed. According to CAW, neither Exxon nor PHMSA reported the ruptures to CAW.
Together with our news partner InsideClimate News, we've previously reported on the 2006 hydrotests and other indications Exxon had that its pipeline was in bad shape
The 2006 hydrotest that caused the ruptures in the Lake Maumelle watershed didn't detect leaks in the section of pipeline that ruptured in Mayflower. That's because the 2006 test wasn't conducted at a high enough pressure to identify all of the problem areas in the line, according to Richard Kuprewicz
, a pipeline consultant who's been hired by CAW.
From our previous reporting
Not all hydrotests are sufficiently robust to do the job, however. To eliminate the most dangerous cracks in vulnerable pipelines like the Pegasus, operators must use extra high pressure—pressures higher than Exxon used, according to Kuprewicz. The 2006 Pegasus test met the minimum pressure required to establish the line’s maximum operating pressure, but it wasn't high enough to clear the line of cracks that could later split the pipe.