Court can't add watershed pipeline removal to decree, utility told

Correction: Christian Flathman, a spokesman for Exxon Mobil Corp., is a man. This article gave an incorrect second reference for him.

Central Arkansas Water is free to advocate for removal of the Pegasus pipeline, but a federal court lacks the authority to order the removal as part of a proposed consent decree with Exxon Mobil, the Justice Department said Wednesday.

The department was responding in U.S. District Court to the utility's objections to the proposed lawsuit settlement between two subsidiaries of the oil giant and the federal and state governments.

Central Arkansas Water, which oversees Lake Maumelle, wants the underground pipeline removed or relocated as part of any decree. Built in 1947-48, the line runs through about 13.5 miles of the lake's watershed, which provides drinking water to more than 400,000 people.

"CAW now asserts that the Consent Decree should only be entered if it can eliminate all of the risks posed to the watershed by the Pegasus Pipeline, presumably by a requirement that ExxonMobil remove or relocate the entire pipeline," the Justice Department wrote in its response.

"However, courts are 'not empowered to rewrite ... settlements agreed upon by the parties,'" the department wrote, citing a 1982 decision by a federal appeals court. "Thus CAW advocates for action beyond the scope of the [District] Court's role in deciding whether to enter the Consent Decree. ... If CAW believes that pipeline removal is an appropriate remedy for its concerns, it is, of course, free to pursue those concerns through its own advocacy."

The state and federal governments sued Exxon Mobil Pipeline Co. and Mobil Pipe Line Co. shortly after the Pegasus pipeline cracked open in Mayflower's Northwoods neighborhood on March 29, 2013, and spilled tens of thousands of gallons of heavy crude into the neighborhood, drainage ditches and a cove of Lake Conway.

On July 15 of this year, Central Arkansas Water sent a letter urging U.S. District Judge Kristine Baker at least to wait on a federal regulatory agency's ruling in a review that resulted from the Mayflower oil spill.

On July 17, Baker gave the state and federal governments 14 days to respond to the utility's letter if they wished.

The state, represented by Arkansas Attorney General Leslie Rutledge's office, already has responded to the letter. That office told Baker that it opposes a suggestion that the utility oversee the proposed consent decree.

Exxon Mobil spokesman Christian Flathman was asked if Exxon Mobil plans to file a court response to the utility's letter. She said in an email, "We have no additional comment with respect to our plans to file a response."

In December 2013, Exxon Mobil appealed the federal Pipeline and Hazardous Materials Safety Administration's findings of nine "probable" safety violations, a final corrective action order and proposed fines totaling more than $2.6 million. The agency has yet to announce a decision.

On Wednesday, the Justice Department said the utility's request for a delay was "unsound," and would put off implementation of safety measures and fine payments provided for in the proposed decree.

"The timing for completion of the PHMSA administrative process is uncertain, partly because ExxonMobil has no current plan to attempt to restart the pipeline and thus has not even submitted a revised restart plan to PHMSA for review and approval," the department said.

Of the pipeline's roughly 850 miles, the 650-mile stretch extending from Patoka, Ill., to Corsicana, Texas, has been shut down since the spill at Mayflower.

Central Arkansas Water also had told Baker that the U.S. government "ignores the long-term risks and impacts of allowing an aging, decrepit, and flawed pipeline to remain and potentially operate in the drinking water supply for over 400,000 people, only 8 miles from where the Mayflower rupture occurred."

The Justice Department countered that no oil from the Mayflower spill reached Lake Maumelle or its watershed.

"We further note that Lake Maumelle was constructed in 1958 -- after construction of the Pegasus Pipeline," the department added.

Nothing in the utility's letter "changes the United States' conclusion that the Consent Decree is fair, adequate, reasonable, and consistent with the Clean Water Act," the department wrote.

The proposed consent decree would provide for state and federal penalties totaling almost $5 million.

It also would provide for increased safety measures. The oil giant also would have to treat the Pegasus pipeline as susceptible to longitudinal seam failure, making the line subject to higher safety regulations. That problem led to the Mayflower rupture.

A Section on 07/30/2015

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