TUESDAY, OCTOBER 25, 2022
Minnesota state agencies, in partnership with Fond du Lac Band, recently announced enforcement penalties resulting in $11 million against Enbridge Energy’s Line 3 pipeline construction project as a result of investigations conducted against the company.
Additionally, Minnesota Attorney General Keith Ellison has filed criminal charges this month against Enbridge, which has admitted that in January 2021 it breached a confined aquifer that led to an uncontrolled flow of groundwater. Enbridge has since agreed to a settlement regarding the charges.
Latest Fine
Results from enforcement investigations of water quality violations and aquifer breaches conducted by the Minnesota Pollution Control Agency and Department of Natural Resources found that Enbridge violated a series of regulations and requirements between June 2021 and August 2021.
According to the Agency’s release from Oct. 17, building upon previous enforcement actions, the DNR has also finalized two comprehensive enforcement resolution agreements to address the three aquifer breaches.
“At the start of this project, the MPCA issued our most stringent water quality certification to date and permits that were strong, enforceable, and protective — and this enforcement action holds Enbridge accountable for the violations that occurred during construction,” said MPCA Commissioner Katrina Kessler. “We are committed to protecting Minnesota’s wetlands and streams and will continue to monitor the company’s ongoing work to return the site to its pre-construction condition.”
Enbridge fined $11 million for construction of Line 3 pipeline https://t.co/QfNiH8MCRE
— Hanlire (@HanlireCom) October 17, 2022
“In entering into these comprehensive enforcement actions, the DNR is holding Enbridge fully accountable and ensuring that the DNR has the resources needed to address the aquifer breaches,” DNR Commissioner Sarah Strommen said.
The DNR and Fond the Fond du Lac Band of Lake Superior Chippewa reportedly reached an agreement with Enbridge to address an aquifer breach at Milepost 1102.5, which is located west of the Fond du Lac Reservation. This agreement includes:
DNR and Enbridge also reached an agreement for two other aquifer breaches, one near Enbridge’s Clearbrook Terminal and the other near the LaSalle Creek Crossing, including $165,400 in additional groundwater mitigation funds for the Clearbrook location.
For the LaSalle Creek site, the new agreement includes:
Additionally, the MPCA investigation results required Enbridge to pay $2.395 million to the State of Minnesota, as well as fund $2.625 million to complete several supplemental environmental projects in affected watersheds along the project line.
Criminal Charges, Settlement
The same day, Attorney General Ellison announced that Enbridge has admitted to the aquifer breaches, which resulted from its construction activity. The company also admitted that it delayed notifying the state DNR about the breach as required.
The admission reportedly arrives as Ellison filed one misdemeanor count against Enbridge for appropriating state waters without a permit through construction. Alongside the criminal charge, the attorney general has entered into a diversion agreement which results in the form of continuance for dismissal of the charge.
According to the release form the Office of the Attorney General, Minnesota and Enbridge agree that in exchange for Enbridge’s admission of the facts around the aquifer breach, paying a fine of $1,000—the maximum fine available under the law—and agreeing to remain law-abiding and not further break the law, the charge will be dismissed after one year.
Additionally, though not required by law, Enbridge agrees to perform a community service project by funding up to $60,000 for fen restoration in Marshall and Polk Counties.
The state reports that the terms of the diversion agreement are greater than what it could have won if Enbridge had been convicted of the misdemeanor charge at trial.
“The facts that Enbridge admits today about its breach of the aquifer constitute in the State’s view a criminal violation of the law. Corporations rarely admit facts that constitute a violation of criminal law. Unless and until the Legislature changes the law, a misdemeanor is the only charge against Enbridge the State can support with probable cause under current state law. I am pleased that the agreement we have reached with Enbridge is greater than any penalty we could have won against Enbridge at trial,” Attorney General Ellison said.
“Today’s resolution of the criminal charge I filed against Enbridge, coupled with the other settlements the State has reached, constitute an important step forward in holding Enbridge accountable for the damage it caused to Minnesota’s water and environment, and for restoring that damage.”
Previous Fines, Initial Discovery
In September last year, reports indicated that the DNR ordered Enbridge Energy to pay $3.32 million for failure to follow environmental laws. The fine regarded a portion of construction conducted on the company’s $2.9 billion project earlier last year.
Enbridge was reported to have launched work at its Clearbrook, Minnesota, site in early 2021. However, in a statement from the DNR, the Department found that the company had failed to follow construction plans previously submitted regarding the work being carried out.
According to reports, the plans called for the use of traditional trench construction methods at a depth of 8–10 feet. The company instead constructed the trench at a depth of approximately 18 feet with sheet piling installed to a depth of 28 feet.
As a result of the changes, the DNR reported that Enbridge breached the confining layer of an artesian aquifer, resulting in an unauthorized groundwater appropriation near the project’s Clearbrook Terminal. In addition to failing to notify the Department of the construction plan changes, Enbridge also failed to notify DNR of the groundwater situation.
DNR’s civil enforcement orders required Enbridge to pay mitigation and penalty funds of $3.32 million which includes a restoration order requiring $300,000 in initial mitigation funds to pay for the loss of groundwater resources, $250,000 for DNR monitoring of calcareous fen wetlands near the area of the aquifer breach and a $20,000 administrative penalty order (the maximum allowed under state law).
The DNR has also ordered Enbridge to place $2.75 million in escrow for restoration and mitigation of any damage to the calcareous fen wetlands. DNR will determine what restoration and mitigation is required.
In addition, Enbridge is also required to implement a restoration plan to stop the unauthorized groundwater flow within 30 days. The order requires the company to conduct additional groundwater and site monitoring and report the results, as well as to develop a Calcareous Fen Management Plan. DNR is also requiring Enbridge to fund a reinspection of any and all areas along the entire route where construction depths deviated from plans (as they did at the Clearbrook Terminal site) to ensure that there are no additional violations.
The DNR has referred the matter to the Clearwater County Attorney for criminal prosecution, finding that Enbridge violated Minnesota Statute 103G.141, subdivision 1, which makes it a crime to appropriate “waters of the state without previously obtaining a permit from the commissioner.”
Investigation Results
Investigative work, including an aerial inspection, was conducted to assess if there were any other unidentified breach sites, following three site breaches in September 2021. Enbridge agreed to penalties, including the $3.32 million penalty last October, and the State Attorney General's Office had reportedly been reviewing the incident for potential prosecution.
The three identified aquifer breach sites included:
Enbridge successfully stopped the flow of groundwater at the Clearbrook site in January. DNR reports that from October through January 2021, there was discharge of approximately 32,600,000 gallons of groundwater.
The water has since been sent to a treatment structure to remove sediment and was returned to the environment. According to the release, DNR has inspected the site repair and determined the flow has been stopped at this time, implementing ongoing monitoring to verify long-term effectiveness.
For the Lasalle site, the DNR found that the breach occurred on or about Aug. 2, during pipeline construction where sheet piling was installed prior to trench excavation. Enbridge stopped construction work at the site and the DNR outlined a corrective action plan to address the flow.
Later that month, the DNR approved a remedial groundwater investigation plan to gather hydrological information needed for to stop the flow, and a corrective action plan was approved in September. On Dec. 20, Enbridge reportedly notified DNR it had successfully stopped the groundwater discharge at the site.
The investigation found that a total volume of groundwater discharged at Lasalle was 9,800,000 gallons. The DNR reports that, after the spring thaw, it will conduction onsite monitoring and repair for a long-term solution.
Finally, the Mile Post 1102.5 site was identified on or about Sept. 10, when groundwater reportedly began upwelling during the removal of sheet piling following completion of pipeline construction in the area. The DNR partnered with the Fond du Lac Band, St. Louis County, Minnesota Pollution Control Agency (MPCA) and Minnesota Department of Health (MDH) for the investigation at this site.
Due to its location in a wet forest complex that drops in elevation toward the Fond du Lac Reservation lands, the aquifer breach reportedly resulted in high pressure flow of groundwater. As a result, there was an impact on the Dead Fish Lake on the reservation.
Additionally, the investigation found that, to date, an estimated 219,600,000 gallons of groundwater was released from this breach. At the time of the announcement, the flow of groundwater has been “substantially reduce” from 330 gallons per minute to just six gallons per minute.
Tagged categories: Environmental Controls; Environmental Protection; Government; Health & Safety; Laws and litigation; Lawsuits; Pipeline; Pipelines; Program/Project Management; Water/Wastewater
