The court was divided 4-4.
A key federal regulatory body is disregarding citizen concerns about transporting tar sands via the Keystone XL Pipeline.
This indifference was on display both at a conference in Dallas on June 19-20, and in a report the agency released on June 25.
The regulatory body in question is the Pipeline and Hazardous Materials Safety Administration. Its conference in Dallas on pipeline safety public awareness was for "stakeholders" -- industry executives, pipeline operators, emergency responders, local public officials, and excavators.
The Pipeline and Hazardous Materials Safety Administration provided an overview of its safety program.
Concerned citizens criticized the regulatory body for failing to differentiate between diluted bitumen (known as tar sands) and crude oil. Enbridge, one of the companies whose pipelines transports bitumen, defines it as "a form of heavy crude oil that resembles molasses when it's first separated from the sand and clay it is found in. In order for bitumen to flow through a pipeline, it needs to be mixed with diluents called condesate".
The industry has not been forced to reveal diluted bitumen's chemical makeup since it is proprietary information, which is problematic. How can you study the effects of a bitumen spill on the environment and people's health if you are not aware of its components?
The Pipeline and Hazardous Materials Safety Administration website currently makes no distinction between bitumen and crude oil pipeline hazards, thus failing to provide the public with crucial safety information.
In the shadow of the Exxon Pegasus bitumen spill in Mayflower, Arkansas, and the soon to be completed southern portion of the Keystone XL, conference attendees expressed multiple concerns about the Pipeline and Hazardous Materials Safety Administration's negligence in not providing critical safety information.
Protesters out side of the Pipeline and Hazardous Materials Safety Administration Pipeline Safety Conference in Dallas. Photo by Julie Dermansky.
Emily Harris, part of the Faulkner County Citizens Advisory Group, was making a statement about Mayflower when she was cut off by the Pipeline and Hazardous Materials Safety Administration's Christie Murray, who told her there had been enough talk about the Exxon spill. Harris's group has set up a community meeting and can't get Exxon to attend. The question she was prevented from asking was "How does PHSMA get industry and community to the table in light of ongoing investigations?" "PHSMA needs to tell the truth about infrastructure and not allow repurposing of pipelines that are unfit to transport bitumen."
Grassroots activist Chris Wilson thought the conference was a step in the right direction because the Pipeline and Hazardous Materials Safety Administration gave the public a chance to speak. According to Wilson, the regulatory body needs to be protective of human health and safety and the environment -- and should stop characterizing diluted bitumen tar sands as crude oil. They have distinctly different chemical, physical, toxicological, and biological impact properties. When a tar sands spill occurs, calling the accident a crude oil spill is wrong.
"Improper characterization leads to the health and safety of first responders and the community being compromised and unprotected because a dilbit spill exposes the public and first responders to a bitumen and diluent spill," Wilson says. "Diluent is highly toxic and contains carcinogenic materials like benzene. Proper evacuation zones cannot be determined if the nature of the material that spilled is intentionally mischaracterized. PHMSA can take a proactive role in assuring that dilbit pipelines are properly characterized as part of a push to ensure that first responders and the community are properly protected when the next dilbit spill occurs. We cannot allow another Kalamazoo and Mayflower to ever happen again."
Members of the activist group Tar Sands Blockade also object to the improper classification of dilbit, claiming that it is only classified as dilbit when it benefits the industry bottom line.
Dilbit is treated differently from crude oil by the IRS: The industry does not have to pay into the oil spill clean up fund when transporting tar sands.
During a lunch break, members of the Tar Sands Blockade hung a protest banner in the lobby of the Hyatt where the conference was held. The hotel management promptly whisked it away.
A couple of the activists interrupted the conference with impassioned messages.
One used a megaphone to inform the attendees that "PHSMA is a sham."
And another yelled out, "You are wasting your time in this hotel. Go to Mayflower and do your job. Quit trying to clean up bitumen with paper towels."
Both were escorted out by police.
Evan Vokes, former industry insider turned whistleblower, who was terminated by TransCanada after he presented evidence of company's wrongdoing to the Canadian Energy Board, attended the conference. The Pipeline and Hazardous Materials Safety Administration, Vokes points out, is way behind in adding incident reports to its website, including many that he submitted. He thinks the public needs access to this information.
Tom Smitty of Public Citizen with Evan Vokes at lunch. Vokes holds up a pages of the ASME's code of construction. Photo by Julie Dermansky.
Vokes is not worried about bitumen passing though pipelines if they are built or repurposed correctly. Instead, he worries about bitumen's impact outside a pipeline. He is against the Keystone XL because it is not being built to code, he says, thereby increasing its risk of failure.
Vokes says that Pipeline and Hazardous Materials Safety Administration is mandated to uphold the American Society of Mechanical Engineers' specifications. But a representative of the Pipeline and Hazardous Materials Safety Administration disagreed, saying that its oversight mandate was changed on January 3, 2012, when President Obama signed the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 into law. Public Law 112-90 says, "Section 24 of the Act requires, within one year of enactment (January 2013), that PHMSA no longer incorporate, in whole or in part, voluntary consensus standards by reference into its regulations unless those standards have been made available free of charge to the public on the Internet."
This new law has an unintended consequence: It cripples regulatory oversight. Though it's a good idea that everyone has equal access to the rules of code compliance online, because the American Society of Mechanical Engineers has not allowed the code documents to be released for free on line, a Catch-22 has emerged. Vokes asked how this could be acceptable since without an independent regulatory agency overseeing pipeline construction's adherence to code, how can any pipeline ever be constructed safely? The Pipeline and Hazardous Materials Safety Administration rep didn't answer but pulled up the link to the new rule on its website to back up her claim.
At the end of the meeting, officials with the Pipeline and Hazardous Materials Safety Administration said that improving public trust is paramount, yet they have been stonewalling the public when contacted directly about pipeline deficiencies in the southern route of the Keystone XL.
TransCanada's Shawn Howard says the number of anomalies doesn't matter, so long as they are fixed. The Pipeline and Hazardous Materials Safety Administration seems to concur.
I inquired on June 12th if the Pipeline and Hazardous Materials Safety Administration has concerns about the number of anomalies and how many times their inspectors have been in the field to conduct inspections. I have yet to get an answer.
During the meeting the organizations, "East Texas Sub-Regional Planning Commission" and "Stand With Landowners Against TransCanada" presented petitions demanding that the Pipeline and Hazardous Materials Safety Administration conduct and investigation into the anomaly situation.
Less than a week after the conference, the Pipeline and Hazardous Materials Safety Administration released its study of the corrosive properties of bitumen in pipelines.
According to the Washington Post, the committee found no "evidence of chemical or physical properties of diluted bitumen that are outside the range of other crude oils or any other aspect of its transportation by transmission pipeline that would make diluted bitumen more likely than other crude oils to cause releases." The study did not address how a bitumen spill differs from a crude oil spill.
And though the study determined bitumen won't make a pipeline more likely to spill, all pipelines have the potential to spill.
If the Keystone XL is not built properly and the Pipeline and Hazardous Materials Safety Administration doesn't update its safety information, when bitumen spills in America's heartland, the public and the workers who have to deal with the spill won't have the proper information about the dangers they are facing.