BEFORE THE MINNESOTA PUBLIC UTILITIES COMMISSION. Complainants, MPUC Docket No. PL95/PPL

Transcription

1 BEFORE THE MINNESOTA PUBLIC UTILITIES COMMISSION Donovan D. Dyrdal and Anna M. Dyrdal, v. Complainants, MPUC Docket No. PL95/PPL Enbridge Energy Company, Inc., (f/k/a Lakehead Pipeline Co., Inc.), Enbridge Energy, Limited Partnership and Enbridge Pipelines, (Southern Lights), LLC, Respondents. ADDITIONAL COMPLAINT AND OBJECTIONS OF DONOVAN DYRDAL AND ANNA M. DYRDAL TO ENBRIDGE ENERGY, L.P./MERJENT, INC. OCTOBER 19, 2012 REPORT ON ENBRIDGE COMPLIANCE WITH CONDITIONS OF PIPELINE ROUTING PERMIT, AGRICULTURAL MITIGATION PLAN AND ENVIRONMENTAL MITIGATION PLAN AND REQUEST FOR CONTESTED CASE HEARING TO: The Members of the Minnesota Public Utilities Commission 21 7th Place E., Suite 350 Saint Paul, MN Donovan Dyrdal and Anna M. Dyrdal (the Dyrdals ), by their undersigned counsel, submit the following Additional Complaint and Exception and Objection and Request for Contested Case Hearing in the above proceeding. The present Additional Complaint and Exception and Objection and Request for Contested Case Hearing is in addition to the Dyrdals Unresolved Restoration Issues Dyrdal 2012: Complaint of Donovan and Anna M. Dyrdal in Response to Merjent, Inc. s Compliance Report of October 19, 2012 filed together with this Additional Complaint. The Dyrdals are adding the present Additional Complaint to their prior Complaints and request the Commission to treat the Merjent, Inc. October 19, 2012 Report as a Certificate of Completion under Minn. Rule for which the Dyrdals have raised material issues of fact in the present and previous Complaints ans filings. The Dyrdals respectfully request the Commission to refer the matter to the 1

2 Office of Administrative Hearings and to suspend Enbridge s permits until it has established compliance with the permits and the terms and conditions of such permits. ADDITIONAL COMPLAINT The Routing Permits issued for construction by the Commission provide that the PUC may initiate action to suspend or revoke this permit at any time. Grounds for suspension or revocation include: 1. A false statement was knowingly made in the application or in accompanying statements or studies requires of the applicant, and a true statement would have warranted a change in the PUC s findings; 2. There has been a failure to comply with material conditions of this permit, or there has been a failure to maintain health and safety standards; or 3. There has been a material violation of an applicable statute or rule or an order of the PUC. Enbridge Energy, L.P. s violations on the property of Donovan and Anna M. Dyrdal has been documented in the prior Complaints. The Dyrdals have become aware, however of an additional material violation of Minn. Stat. 216G.02 and Minn. Rules parts , subp. 3 and , subp. 3. Minn. Stat. 216G.02, subd. 2 provides in relevant part: A person may not construct a pipeline without a pipeline routing permit issued by the Public Utilities Commission unless the pipeline is exempted from the commission s routing authority under this section or rules adopted under this section. Minn. Rule part , subp. 3 states: Statement of ownership. Each application must include a statement of proposed ownership of the pipeline as of the day of filing and an affidavit authorizing the applicant to act on behalf of those planning to participate in the pipeline project. (underlining added). Enbridge s application for the Alberta Clipper Pipeline, LSr Pipeline and Southern Lights Pipeline routing permits only set forth Enbridge Energy, L.P. and Enbridge Pipelines (Southern Lights) LLC in their Statement of Ownership with an Affidavit from Joel W. Kanvik, as both Assistant Secretary of Enbridge Energy Company, Inc. and Assistant Secretary of Enbridge Pipelines (Lakehead) LLC, the General Partner of Enbridge Energy, L.P., both dated June 18, 2007, that:... as such I am authorized to act on behalf of those planning to participate in the pipeline project, and that all necessary authorizations have been given to me to sign this application. While Kanvik s Affidavit complies to establish that the Enbridge entities have been authorized by 2

3 the parent corporation of Enbridge Pipelines (Southern Lights), LLC and the general partner of Enbridge Energy, L.P., it does not establish that these applicants have been authorized to act on behalf of other entities planning to participate or actually participating in the pipeline projects. However, Kanvik s Affidavit dated June 18, 2007 is a false affidavit in light of the fact that Michels Corporation, as well as others planning to participate in the project had not granted Kanvik authorization for Kanvik to sign the application. Moreover, a true statement would have warranted a change in the PUC s findings. The present and previous complaints of the Dyrdals have all stemmed from the facts, discovered during the construction of the Alberta Clipper Pipeline that neither Enbridge entity was actually constructing these pipelines but that Michels Corporation was actually performing the construction of the Alberta Clipper Pipeline, as well as the LSR Pipeline. The Dyrdals have discovered through related litigation that Enbridge had entered into a contract or agreement, essentially of a joint venture, with an entity named Global Pipeline Partners, LLC. This entity appears to be an alter ego of Michels Corporation, having the same address as that firm in Brownsville, Wisconsin. There can be little wonder that Enbridge has failed so abysmally in complying with the terms and conditions of the Routing Permits, the Environmental Mitigation Plan and Agricultural Mitigation Plan, if it was not Enbridge, but independent contractors like Michels Corporation, which were performing the actual construction. Michels and any other independent contractor involved in the Alberta Clipper Pipeline Project and the related pipeline projects needed to on the permits, as well as Enbridge, so that they might be equally liable and responsible for compliance with their terms and conditions. As it so happened in the Dyrdals experience, Michels Corporation and its employees and agents, who were not on the permits, felt they were not liable or responsible for complying with the permit conditions, and evidently not even aware of what they were. The Commission still has time to enforce Minn. Stat. 216G.02, subd. 2, its rules and regulations, as long as it retains jurisdiction over the Permit which continues until the Commission has approved a certificate of pipeline completion under Minn. Rule part This rule provides: Permittees shall file with the commission a written certification that the permitted pipeline construction has been completed in compliance with all permit conditions. The certification shall be considered by the commission within 60 days of its filing. The commission shall accept or reject the certification of completion and make a final determination regarding cost or reimbursements due. If the commission rejects the certification, it shall inform the permittee in writing which deficiencies, if corrected, will allow the certification to be accepted. When corrections to the deficiencies are completed, the permittee shall notify the commission, and the commission shall reconsider the certification at its next regularly scheduled meeting, provided the notification is received at least 20 days before the meeting. After acceptance of the certification by the commission, the commission's jurisdiction over the permittee's pipeline routing permit shall be terminated. 3

4 The Dyrdals have previous requested the Commission to suspend or revoke the permits on the grounds that Enbridge amended or modified the permits without Commission approval on the parts of the AMP that resulted in serial noncompliance with the Permit, the AMP and EMP. The Dyrdals hereby renew their Complaints and Supplemental Complaints beginning with their initial Formal Complaint dated January 26, 2010 and filed January 28, 2010 (the January 10, 2010 Complaint ) which the Commission has so far all but completely ignored. The Dyrdals would note also that their Fourth Supplemental Complaint filed over a year ago in which the Dyrdals requested an emergency cease and desist order and an opportunity to address the Commission has been completely ignored and unresponded to by MPUC Staff. The Dyrdals herewith renew the requests and demands in their previous complaints and adds the following Objections and Exceptions to their previous Complaints, Objections and Exceptions. OBJECTION AND EXCEPTION 1 Merjent, Inc. s October 19, 2012 Report Must Be Rejected as an Attempted Circumvention and Evasion of Minn. Rule part Which Requires a Written Certification That the Permitted Pipeline Construction Has Been Completed in Compliance with All Permit Conditions. This Objection and Exception to the October 19, 2012 Merjent, Inc. Report is also extended to all of the Merjent, Inc. Reports, including the May 14, 2011 Report, the September 30, 2011 Report and now the October 19, 2012 Report. The October 19, 2012 Report here receives particular attention because it is here that Enbridge Energy, L.P. seems to be attempting to circumvent and evade the requirement of Minn. Rule part requiring that the Permittee shall file with the commission a written certification that the permitted pipeline construction has been completed in compliance with all permit conditions. It is true that Enbridge is also required to the extent possible, restore the area affected by the pipeline to the natural conditions that existed immediately before construction of the pipeline under (N). But that is only one of the terms and conditions of the permits; that condition cannot be allowed to override compliance with the other terms and conditions during construction. It is evident that Merjent, Inc. s October 19, 2012 Report evaluating Enbridge s restoration of the Dyrdals land, completely disregards the series of specific and detailed Complaints filed by the Dyrdals since January 26, 2010 establishing specific non-compliance with the permit conditions. Even though Merjent, Inc. has itself corroborated the Dyrdals complaints of Enbridge s noncompliance with the permit conditions, Merjent now seeks to whitewash these violations by looking only at Enbridge s restoration or clean-up of the Dyrdals Agricultural Land following construction. (Michels Corporation, which was the principal agency of this damage and which never obtained any permit from the Commission as required by law, has long since left the scene of this environmental crime). Obviously, Enbridge cannot and must not be excused from its flagrant noncompliance with the topsoil segregation requirements of the permit which has resulted in ongoing subsidence and a deficient soil in the right of way by throwing a few shovels full of fertilizer on the ruined soil. 4

5 The Dyrdals are submitting with this Additional Complaint their own Dyrdals Unresolved Restoration Issues Dyrdal 2012: Complaint of Donovan and Anna M. Dyrdal in Response to Merjent, Inc. s Compliance Report of October 19, The Dyrdals Unresolved Restoration Issues Dyrdal 2012 addresses the insufficiency of Merjent, Inc. s October 19, 2012 Report in terms of the adequacy of Enbridge s compliance with the requirement that Enbridge restore the area affected by the pipeline to the natural conditions that existed immediately before construction of the pipeline. But the Commission must also address the Dyrdals present and prior Complaints about Enbridge s noncompliance with the permit conditions during construction. OBJECTION AND EXCEPTION 2. Merjent s Reports Lack Credibility Due to Its Conflict of Interest in Investigating Its Own Failure to Fulfill Its Duties under the Agricultural Mitigation Plan as the Agricultural Monitor During Construction of the Alberta Clipper Pipeline The Dyrdals Complaints, starting with the January 10, 2010 Complaint, and each following thereafter, have documented not only Enbridge s violations and the violations of Michels Corporation, the entity which actually performed the construction, but they also document the noncompliance of Merjent, Inc. to perform its duties as Agricultural Monitor during construction. None of Merjent, Inc. s Reports address its own failure to perform the audit and monitoring functions during construction because to do so would be to concede its own utter failure to perform such functions. The Agricultural Mitigation Plan No. 22 required that the Agricultural Monitor (which is Merjent, Inc.) audit the permittee s compliance with the AMP, monitor construction and restoration activities on Agricultural Land for compliance with provisions of this AMP, Report instances of noncompliance to Enbridge s Agricultural Inspector, prepare regular compliance reports and submit to MDA, report to the Minnesota Department of Agriculture (MDA) and act as liaison between the MDA and the landowner to explain changes in the AMP during construction. Agricultural Mitigation Plan No. 22 (2), (3), (4) and (5). It should not have been difficult for Merjent, Inc. to validate that it had complied with these conditions of the AMP by showing that it audited Enbridge, especially for its changes to the AMP during construction, and provided regular compliance reports which it submitted to the MDA. The fact that Merjent, Inc. has never done so compels the inference that it did not comply with AMP No. 22. It would be a different story if Merjent, Inc. had complied during construction on an ongoing basis with AMP No. 22 during construction. Without evidence of such compliance, none of the Merjent, Inc. Reports which are after the fact evaluations of its own performance, can be given any credence as objective reports of an independent agency or consultant for the reason that no agency or consultant can be deemed to be independent in evaluating or judging its own performance. Merjent, Inc. s Reports must therefore be discounted or rejected on the grounds that Merjent failed to perform its role as Agricultural Monitor under AMP No. 22. It has an inherent conflict of interest which prevent its honest after the fact evaluation of post-construction 5

6 restoration of damage to Agricultural Land which would not have resulted had it performed its duties as Agricultural Monitor during construction. Rather than repeat all of the Comments by the Dyrdals in their April 4, 2011 Comments, the Dyrdals will simply list again the seven highlighted violations of the Routing Permit, the Agricultural Mitigation Plan (AMP) and Environmental Mitigation Plan (EMP) which occurred during construction and adding to each one how each of these violations were also violations by Merjent, Inc. in that they involve a complete failure by Merjent, Inc. to fulfill its responsibilities as Agricultural Monitor during construction: 1. That Enbridge Energy, L.P. and Enbridge Pipelines (Southern Lights), LLC violated the Routing Permit, Part V.K., p. 11, and Minn. Rules part and by amending or modifying the Permit Conditions without Commission Approval. Merjent, Inc. violated the AMP in failing to act as liaison between the MDA and landowner in explaining the changes to the Permit which were never approved by the MPUC. 2. That Enbridge Energy, L.P. and Enbridge Pipelines (Southern Lights), LLC and their contractors have failed to comply with and violated the Commission s December 28, 2008 Order in Docket No. PL95/PPL , specifically, the Permit Conditions, V. B. Agricultural Mitigation Plan, and V. D. Construction Practices 7. Topsoil Protection and V.D. 8. Soil Compaction. 19. Monitor and Inspection Notices. V.N. 6. Third Party Environmental Inspectors/Monitors. V.N. 12. Post Construction Approval Forms. Merjent, Inc. violated the AMP in failing to audit Enbridge s compliance with this provision of the AMP and the Routing Permit. 3. That Enbridge Energy, L.P. and Enbridge Pipelines (Southern Lights), LLC and their contractors have failed to comply with and violated the Agricultural Mitigation Plan, and V. D. Construction Practices as required by 19. Monitor and Inspection Notices. V.N. 6. Third Party Environmental Inspectors/Monitors by failing to provide the Complainants with the name, addresses or contact numbers of any Third Party Inspectors/Monitors and that they have failed to work with the Complainants to obtain satisfaction or even notified the Complainants that the Respondents were required to obtain Post-Construction Approval from landowners. Merjent, Inc. violated the AMP in failing to audit Enbridge s compliance with this provision of the AMP and the Routing Permit. 4. That Enbridge Energy, L.P. and Enbridge Pipelines (Southern Lights), LLC and their contractors have failed to comply with and violated the Agricultural Mitigation Plan and V. D. Construction Practices 7. Topsoil Protection and V.D. 8. Soil Compaction by failing to stockpile topsoil as required and failing to take adequate precautions or in mitigating topsoil compaction on the Complainants land during and after construction, resulting in the material destruction of the topsoil on Complainant s land. Merjent, Inc. 6

7 violated the AMP in failing to audit Enbridge s compliance with this provision of the AMP and the Routing Permit. Merjent, Inc. also failed to report Enbridge s noncompliance to the MDA. 5. That Enbridge Energy, L.P. and Enbridge Pipelines (Southern Lights), LLC and their contractors have failed to comply with and violated EMP 1.20 Stone Removal and AMP 5 Rock Removal by failing to remove large stones and rocks as required by the EMP and AMP on an ongoing basis during construction. Merjent, Inc. violated the AMP in failing to audit Enbridge s compliance with this provision of the AMP and the Routing Permit. Merjent, Inc. also failed to report Enbridge s noncompliance to the MDA. 6. That Enbridge Energy, L.P. and Enbridge Pipelines (Southern Lights), LLC and their contractors have failed to comply with and violated AMP 15 Controlling Weeds and EMP 1.15 Controlling Spread of Undesirable Species by using mulch which imported weeds, including noxious weeds, which have been left to grow and go to seed creating a long term weed bank on the Dyrdals tracts. Merjent, Inc. violated the AMP in failing to audit Enbridge s compliance with this provision of the AMP and the Routing Permit. Merjent, Inc. also failed to report Enbridge s noncompliance to the MDA. 7.That Enbridge Energy, L.P. and Enbridge Pipelines (Southern Lights), LLC and their contractors have failed to comply with and violated AMP 10 and EMP 2.7 Drainage Ditches and Intermittent Streams Enbridge has damaged Conservation Reserve Program (CRP) and EQIP (Environmental Quality Incentives Program) lands without providing temporary cover using mulch or by revegetation or reseeding with a temporary crop. Merjent, Inc. violated the AMP in failing to audit Enbridge s compliance with this provision of the AMP and the Routing Permit. Merjent, Inc. also failed to report Enbridge s noncompliance to the MDA. REQUEST FOR CONTESTED CASE HEARING The Commission should deem the Merjent, Inc. Compliance Report of October 19, 2012 for what it really is: a Certificate of Completion under the permit and Minn. Rule However, the foregoing Additional Complaint and Objections and Exceptions, as well as the previous Complaints by the Dyrdals raise material issues of fact about Enbridge s compliance with the permit conditions which cannot be resolved outside of a quasi-judicial contested case hearing. Additional material issues of fact are raised in the Dyrdals Unresolved Restoration Issues Dyrdal 2012: Complaint of Donovan and Anna M. Dyrdal in Response to Merjent, Inc. s Compliance Report of October 19, 2012 filed together with this Additional Complaint. Under Minn. Rule part , the Commission may refer a proceeding for contested case proceeding: If a proceeding involves contested material facts and there is a right to a hearing under statute or rule, or if the commission finds that all significant issues have not been resolved to its satisfaction, the commission shall refer the matter to the Office of Administrative Hearings 7

8 for contested case proceedings,.... The Dyrdals respectfully request that the Commission deem the Merjent, Inc. October 19, 2012 Compliance Report as Enbridge s Certificate of Completion and refer their Complaints, including the present Additional Complaint and related filing to the Office of Administrative Hearings for a Contested Case Hearing. The Dyrdals also respectfully request that the Commission suspend Enbridge s permit until it has established compliance with the permits and the terms and conditions of such permits. th Dated this 19 day of November, Respectfully submitted, s/ Jon Erik Kingstad Jon Erik Kingstad Attorney at Law Minn. Reg. Number Lake Elmo Bank Building Suite Inwood Avenue North Oakdale, Minnesota Tel: (651) Attorney for Complainants Donovan D. Dyrdal and Anna M. Dyrdal 8