With an estimated 130,000 septic systems leaking E. coli and other pollutants into Michigan groundwater, lakes, and streams, you would hardly think it time to relax inspection requirements.
But that’s exactly what Kalkaska County is considering this spring – and this has some local residents and environmental experts concerned.
Kalkaska County has a sanitary code that requires inspections of septic systems when residential properties sell.There are no such statewide requirements, making Michigan the only state without them and leaving the job of protecting waters from septic systems up to local government.
“This proposal [to kill the inspection requirement] is wrong,” says Kalkaska county resident Seth Phillips, who adds the answer to any problems with the District 10 sanitary code’s point-of-sale requirement for septic system inspections is to improve it, not rescind it.
“We know that bad septic systems pollute and pose a threat to our drinking water and our lakes and streams. We need to work together to protect our water for all of us and for future generations,” Phillips says.
A study by Michigan State University found that septic systems in Michigan are not preventing E. coli and other fecal bacteria from reaching our water supplies. Sampling 64 river systems that drain approximately 84 percent of the Lower Peninsula for E. coli and the human-specific source tracking marker bacteria called B-theta, the research found a clear correlation: The more septic systems in the watershed, the more human fecal source-tracking bacteria in the water.
Failing septic systems expose water not only to pathogen pollution from 31 million gallons a day of raw sewage statewide, but also to the release of chemical, pharmaceutical, and other wastes resulting from domestic use.
Point-of-sale inspection ordinances make sense.A study coordinated by Tip of the Mitt Watershed Council found that one third of the aging septic systems in Antrim County have not been replaced.
“Tip of the Mitt Watershed Council has been researching this topic for several years,” says Grenetta Thomassey, the Council’s Watershed Director. “One thing that has been very clear is that Time of Transfer or Point of Sale septic system inspection programs find things wrong with septic systems and require them to be fixed. It may not be perfect; some failing systems are not inspected because the property is not being sold or transferred. However, it’s obvious from the annual reports that problems are being found and corrected, and this is a step in the right direction and helps protect our water resources.”
A report on the Kalkaska County point-of-sale program found that between April 2017 and March 2018, 335 inspections were performed in the County. Forty-five systems were in compliance with the sanitary code, while three were found to be failing. The other 287 were identified with some level of concern. So, 87% of the inspected systems during the period presented some level of issue for owners to address or be aware of.
In a letter to Kalkaska County Commissioners, FLOW urged the officials not to eliminate the requirement.
“Requiring inspection and correction of failing on-site septic systems at the time of property sale is a reasonable method of protecting the public’s waters without unduly burdening property owners,” wrote FLOW executive director Liz Kirkwood.“It assures that the vast majority of systems will be inspected at some time to assure they are providing proper stewardship of our shared waters. Eliminating this ordinance will remove the only protection now in place to protect the public health and environment from the threats posed by inadequate septic systems.”
The District 10 Health Board will hold a public hearing on the proposed change on Friday, April 26 at the District 10 office in Cadillac, 521 Cobb Street, at 9 a.m.
Michigan Senator Gary Peters, ranking member of a Senate committee overseeing hazardous pipelines, held a public hearing in Traverse City, Michigan Monday, ground zero in a race to turn off Enbridge’s 65-year old Line 5 before it spills millions of gallons into the Straits of Mackinac and blackens the water, life, and economy of the Upper Great Lakes. Senator Peters called the hearing to open an investigation and find solutions to reform a patchwork of ineffective federal regulations that lack authority and power to shut down pipelines that threaten the health and safety of residents, businesses, schools, and communities across the country. What better place to start than Line 5 in the heart of the Straits and Great Lakes?
Senator Peters convened two panels: one made up of an Enbridge upper-level executive and federal officials from the Pipeline Hazardous Materials Safety Administration (PHMSA), the Coast Guard emergency response team, and National Oceanic and Atmospheric Administration (NOAA); the other filled with representative leaders from conservation, labor, and business across the region. After their testimony and questioning from a well-prepared, sometimes passionate Senator Peters, and applause from a sympathetic audience, the message was clear—we need legal reforms, and we need them now, to fix the holes and fragmentation in current regulations.
Monday’s public hearing may well be the tipping point to turn off the rush of 23 million gallons a day through a pipeline that is outdated and failing the dictates of its original design. It may also be the year of reckoning for the Snyder Administration’s and Attorney General Schuette’s game of footsie with Enbridge that has, in my opinion, imprudently gambled the soul of our state’s water, life and economy by helping Enbridge keep Line 5 open for gushing crude oil from Alberta to Sarnia far too long. Here’s why.
After four years of state task forces, boards, studies and exercises to clean up a mock spill, nothing has happened except permission to Enbridge to keep Line 5 going at full tilt. During this same time, National Wildlife Federation, FLOW, the Grand Traverse Band of Ottawa and Chippewa Indians, and other tribes and organizations have filed compelling scientific, technical, and legal analyses and reports that have more than documented what is now obvious: Crude oil in Line 5 in the Straits and over or near tributaries that flow to Lake Michigan and Lake Huron constitutes what is known in the hazardous risk industry as a “Tier 1″ risk. It must be avoided, and reasonable alternatives exist– that is, Line 5 in the Straits or waters of the Great Lakes is not essential for Canada, Enbridge, or Michigan and its residents.
A “Tier 1″ risk means that the magnitude of harm is so devastating or grave, that principles of risk management require those responsible to implement both a temporary and a long-term solution that removes and avoids the risk entirely. In plain terms, this means that if there is an alternative to a pipeline that is unacceptable under any circumstances, the alternative must be implemented, as long as it reasonably achieves the overall purpose of avoiding the risk and allowing a means through some other route to continue transporting crude oil.
In the last four years, it has become clear, as reinforced by Senator Peters at the start of the hearing, that the Straits is “the worst place for an oil pipeline in the Great Lakes,” and that we must find a way to take hold of this unacceptable risk and end it. For example, strong currents have continuously scoured the rocks and soil under the heavy pipeline designed to lay on the bottom of the lakebed; in an attempt to patch a failing design, Enbridge, with the help of Michigan’s DEQ, has been able to install anchor supports to elevate the line above the lakebed since 2001 as a “repair,” with little to no notice to the public. There are now 150 supports holding up the line, and an application to the DEQ for 48 more. That means nearly three miles or one-third of the original design has been totally changed, and the stage is set for more and more “repairs” without any application, determination, and legal authorization as required for altered and new pipeline designs or structures on the bottomlands of the Great Lakes under our Great Lakes Submerged Lands Act. If our leaders forced Enbridge to apply for new authorization of this serious, never-before-reviewed change, Enbridge would have to show no “Tier 1″ risk and no alternative– finally, the substance and risk and fate of the Straits and Great Lakes and citizens would be under the rule of law.
Also, in the last four years, strategic organizing from Oil and Water Don’t Mix, a consortium of organizations like Groundwork Center, Michigan Environmental Council, Sierra Club, the tribes, Northern Michigan Environmental Action Council, and many others have fostered tens of thousands of letters, public comments, all urging state leaders to end this catastrophic risk that puts oil above the state’s and its citizens’ paramount interest and public trust in water and the Great Lakes.
Nearly 70 communities have passed resolutions calling for decommissioning or ending the flow of oil in Line 5, as have approximately 15 tribes and tribal organizations. This has led to a Pipeline Advisory Board questioning the lack of action by the state, conflicts of interest in a risk study, and questioning whether Line 5 should be allowed to continue in light of reasonable adjustments and alternatives elsewhere within Enbridge’s larger system.
Then, last fall, Governor Snyder announced he’d signed an agreement with Enbridge that allows Enbridge to pick an option to replace Line 5 with a new line in the Straits. In other words, Enbridge was given the green light to replace Line 5, continue Line 5 in the Straits until the replacement was operational in seven years, and avoid the rule of law.
No wonder Senator Peters held the hearing to launch a process to find out why the federal regulatory framework hasn’t done more. As urged by the Senator and agreed to by other panelists at the hearing, the Straits and Great Lakes demand a far more responsive legal framework than PHMSA safety code inspections and wrist slapping or Coast Guard after-the-fact response and cleanup actions. And it’s not just the Great Lakes. There are thousands of miles of crude oil pipelines and thousands of communities, lakes, streams, groundwater, drinking water and other sensitive environments that have been damaged or are threatened.
We need go no farther than the 2010 Enbridge Kalamazoo River rupture and disaster or the Deep Horizon debacle in and along the beaches of the Gulf of Mexico.
Based on the testimony of the panelists and careful questioning of Senator Peters, here is what the record looks like and what we might expect to address Line 5 and many other oil pipeline risks across the United States and, hopefully, beyond our borders.
First, after accidents like the anchor strike that broke the utility line, released pollutants into the Straits and was reported by Enbridge to have dented Line 5, inspections by PHMSA review the company’s evaluation and self-reporting, and the Coast Guard completes assessments of conditions and response actions only after a spill of pollutants. As it turned out, PHMSA did not independently inspect the dents. The Coast Guard has no jurisdiction except to respond to the spill of the pollutant from the utility line. Fortunately, an assessment and inspection performed 2.5 weeks later revealed a “gouge,” not just a dent.
Second, while PHMSA has legal authority to force shutdown of a pipeline, it has never ordered one decommissioned and removed. The state, through its public trust authorities, has the power to do so, but so far, it seems, has done everything possible not to shut down Line 5.
Third, Enbridge and others maintain that the Great Lakes and Line 5 are not “offshore” hazardous or crude oil pipelines, and are not regulated as strictly as offshore lines and oil wells. The U.S and Michigan supreme courts have consistently ruled that the Great Lakes are seas, like the oceans, and subject a high-degree of protection under the public trust doctrine.
Fourth, PHMSA has not certified the Great Lakes as a critical “environmentally sensitive” area that would impose, at least, stronger safety measures, inspections, or assessments.
Fifth, inspections and assessments are not “hands-on” and are often delayed or too late to quickly determine the gravity of the condition of a pipeline.
Sixth, there is no legal process under federal law or regulations that comprehensively regulates, assesses, and determines whether to shut down high risk pipelines– those that have failed or those in sensitive areas like the Great Lakes. So, while most states, like Michigan, have the authority to locate or terminate high risk pipelines, particularly where they are old, failing, and alternatives exist, the federal government has no framework to do much at all.
Senator Peters has done a great service, and his Senate Commerce Committee needs to carry the day by continuing, as directed by the senator, to record and investigate. The goal should be to establish a framework for the Senate, with the help of experts and citizens, to find a way to overhaul these laws and rules that are supposed to protect the public. For starters, here are some suggestions:
Amend federal laws, such as the Clean Water Act or the PHMSA authorizing law, to establish an authority for the certification of oil and other hazardous liquid or materials pipelines.
New pipelines would have to go through an application, hearing, full transparent information and disclosure, evaluation and study process to determine the risk, potential impacts and damage based on a true “worst case scenario,” and the full range of feasible and prudent alternatives.
Old pipelines, say older than 40 years, or less if beyond their “useful safe lifeline” would have to apply for certification, showing that they do not involve high risks or catastrophic harm or serious impacts based on a worst case scenario, and if the risk is high, they must be shut down if there exists a feasible and prudent alternative or the operation if continued could result in a high-magnitude of harm to the public health, safety, and welfare.
New pipelines proposed for the Great Lakes or equivalent paramount public trust waters or natural resources are prohibited.
Owners and operators of old pipelines in, over, or under the Great Lakes or equivalent public trust waters and natural resources must apply for certification and a determination that there is no feasible and prudent alternative with reasonable adjustments to other routes, design capacities, and locations within the overall crude oil pipeline system and logistics; if there is no feasible and prudent alternative, there would be a determination of remaining “useful life” and that the risks are less than a “Tier 1″ based on a competent credible worst case scenario.
All applications, and supporting materials would be public records and made available, all applications would be subject to public hearings, comments, and testimony by all interested persons and members of the public, and there would be direct citizen suit enforcement similar to that in the Clean Water Act.
All applications would be subject to the National Environmental Policy Act environmental impact statement process.
Federal agencies involved would cooperate with state agencies, including shared jurisdictional and information agreements, and the federal process would not preempt or supplant the state process. State proceedings involving use or potential impact to their sovereign water and other natural resources, or public trust interests in those resources, would not be preempted and could impose more stringent standards or otherwise reserve the state’s property power and public trust in its waters and natural resources to prohibit any existing or proposed new pipeline (which is the law in Michigan and other states today).
Jim Olson, President and Founder
In short, thank you, Senator Peters and the Senate Commerce committee, and those panelists who participated in the hearing Monday: It is far better to remove these regulatory holes with a comprehensive approach to prevent unacceptable risks entirely than to face the catastrophe of a gaping hole in Line 5 in the Great Lakes or other high-risk lines across the country.
The Michigan Department of Environmental Quality has set a public hearing for April 12, 2017, and extended the public comment period until April 21, 2017, on multinational behemoth Nestlé’s bid to more than DOUBLE its groundwater pumping 210 MILLION gallons per year from a well near the headwaters of two coldwater trout streams northwest of Evart in northern Michigan’s Osceola County.
FLOW’s seasoned team of scientists and water-law attorneys, which includes successful fighters of prior Nestlé water wars, is committed to defending our public waters, wetlands, and aquatic life, and shutting down Nestlé’s private water grab. Please learn more and join us in this fight for Michigan’s freshwater and our future: