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Official says pipeline proposal can be fought

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Kentucky Press News Service/The Advocate Messenger

 According to a Kentucky Resources Council official, local government and Boyle County residents may have some recourse against Kinder Morgan’s plans to convert a pipeline to carry volatile natural gas liquids through the county and beneath Herrington Lake.

Boyle County Judge Executive Harold McKinney and Danville Mayor Mike Perros began Thursday’s informational pipeline meeting reminding residents that the city, county and state have little jurisdiction over approval for and regulatory enforcement over the proposal to convert an interstate pipeline from natural gas to NGL service because it is federally regulated.

While this may be true, Tom Fitzgerald, director of the Kentucky Resources Council, said after Thursday’s public forum on the pipeline proposal that there may be steps residents and local government can take to thwart the project, if that is, indeed, the desire of the community.

Fitzgerald suggested residents speak to local officials to encourage them to join forces with the other 18 counties along the pipeline’s path in order to bring concerns and issues before the state as one voice.

“I would encourage you to talk to local government officials about getting together with the other counties and possibly intervening together to raise these issues and to ensure the decisions being made are fully sensitive to the needs and the concerns to the community, particularly in respect to the integrity of the pipe and the emergency response capabilities,” said Fitzgerald.

According to Fitzgerald, Kinder Morgan will begin the task of seeking approval of the Federal Energy Regulatory Commission to abandon Line No. 1 of the pipeline system and convert the system to NGL service in February.

Ryan McCreery, public affairs manager for Kinder Morgan, neither denied nor confirmed Fitzgerald’s contention that the company plans to initiate the approval process with the Federal Energy Regulatory Commission

McCreery said the company does not yet have a customer to transport NGLs through the pipeline nor has the company filed for approval with the FERC.

“Kinder Morgan is a customer-driven company, and we’re not of the philosophy of ‘build it — or repurpose it — and they will come,’” said McCreery Thursday. “We are doing our due diligence, and as I speak to you tonight, we do not have a customer. I hope that we do, to be honest, and I hope to come back to you in the near future to talk about this being a full-on project, but that’s not the case this evening.”

McCreery said when the project is given the full green light, the company will work with cities and counties in Kentucky with “transparency” and “no secrets.”

Entities on both sides of the controversial Utica Mercellus Texas Pipeline Project — the official name of Kinder Morgan’s planned NGL pipeline — continue to proceed as if the project is moving ahead.

“That presents an opportunity for local communities, for individuals to become involved in that process, either as commenters or intervening in the process,” said Fitzgerald of a possible February filing by Kinder Morgan with the FERC. “I will be talking to the city and county government here as well as the other counties along the pipeline route about the possibility of intervening in order to assure that the concerns with the transition process and the concerns about using this particular generation of pipeline for natural gas liquids are fully addressed.”

Fitzgerald suggested residents who have the designated pipeline on their property check the easement granted Tennessee Gas Pipeline to determine whether it is a lease with the company or a condemnation of their property. Fitzgerald suggested that while easements are seemingly in Kinder Morgan’s favor, they may not be iron-clad.

“For those of you who have the pipeline crossing your property, go get a copy of the easement document and see if there’s either a lease or the property was condemned in order to support the pipeline,” said Fitzgerald. “Your rights as a landowner relative to the company are dictated in large part by the language by which they were given easement across the property.”

Fitzgerald said the situation may be very different depending on whether the land was condemned or whether it was a voluntary conveyance of the easement.

In some cases, a new easement may be needed to support the proposed changes and that could be the means to thwart Kinder Morgan’s plans. Likewise, a federal condemnation easement under the Natural Gas Pipeline Safety Act of 1968 may no longer be valid because it does not cover natural gas liquids.

The federal government could not grant the power of condemnation and in April, the proposed Bluegrass Pipeline meant to carry NGLs through another section of Kentucky was abandoned after Franklin Circuit Judge Phillip Shepherd ruled that the companies involved wouldn’t have the power of eminent domain.

Fitzgerald said Shephard’s decision, which is currently under appeal, affects any new condemnation Kinder Morgan might want to do and it affects any existing condemnation that they did under federal law.

“Once you abandon the pipe as a natural gas pipe, it no longer has a purpose for which federal law would allow you to condemn,” said Fitzgerald. “So if they condemned under state, I don’t think they have the authority, and that’s what Judge Shephard’s just ruled — that only utilities have the authority to condemn,” said Fitzgerald. “If that decision holds in the court of appeals, that would be very helpful.”

Other counties tried different tactics in trying to halt the Bluegrass Pipeline. Fitzgerald said Pendleton County looked into changing some of its zoning to allow them some control over where the pipe and pumping stations would go.

“If, for example, there were zoning restrictions that said in these zones, you don’t put hazardous material pipelines, I would argue that this would be a non-conforming use if that were in place. Changing the purpose of the pipeline would be an expansion of the use because it’s a more intense use,” said Fitzgerald.

“You (local governments) can regulate compatibility,” said Fitzgerald. “Putting a pipeline upstream of a drinking source is incompatible. Putting one near a nursing home or near a school where kids have to do evacuations and those sorts of things. You need some spacial distance from sensitive environments. You have some flexibility there.”

In a handout written by Fitzgerald about measures the governor and the general assembly should take to “close the gap on oversight and impacts of natural gas liquid pipelines,” he said “the power to condemn land should be limited to public utilities providing service to Kentuckians, and not to a private interstate pipeline shipping hazardous liquids from other states through Kentucky.”

Fitzgerald suggests residents and local governments reach out to the governor, asking him to address these issues in the 2015 legislative session.

“One thing we tried to do last (legislative) session was to get the state siting board jurisdiction extended to new and repurposed hazardous material pipelines,” said Fitzgerald. “We will be trying to do that again.”

In December, neighboring Marion County decided to take an official stand by passing a resolution opposing the Utica Marcellus Texas Pipeline Project, citing many of the suggestions made by Fitzgerald during and after Thursday’s meeting.

In its resolution, Marion County urged the governor to require a comprehensive review to determine the possible adverse effects of the transport of NGLs, to limit condemnation and to review powers to Kentucky Public Service Commission-regulated public utilities.

“If we start working now with all the other counties along the route — cause that’s a lot of folks, that’s a lot of counties right through the heart (of Kentucky), including some of the leadership counties — I think we can start working now and get some of this legislation going,” said Fitzgerald.

A Kentucky Resources Council fact sheet suggests local governments call on the U.S. Corps of Engineers to demand a comprehensive Environmental Impact Statement for the entire pipeline project to determine the effects the project may incur on aging pipes. This is particularly true in regards to Kinder Morgan’s proposal to construct a new section of pipeline beneath Herrington Lake, the source of Danville’s water supply.

McCreery said Thursday the company fully supports a careful study of the geology of the area before initiating construction.

“We would have to do an extensive study of the geological formations through there to figure out if it’s constructible at all,” said McCreery of the company’s proposal to relocate a portion of the pipeline beneath the lake.

Fitzgerald said following Thursday’s meeting that while there are security measures in place to monitor the pressure of flow within the pipe, if it was determined by the pressure readings that a rupture or break had occurred, it could be too late.

“There would be a certain amount of product that’s going to be released in the environment and the question is what resources might be at risk in that scenario and how do you address that,” said Fitzgerald. “That’s why you want to look at the location relative to drinking water supplies. That’s why you want to avoid putting the pipeline anywhere near the lake.”

This area has experienced ruptured pipelines in the past.

In 1958, just a half mile from where the Tennessee Gas Pipeline crosses Herrington Lake in Boyle County and where Kinder Morgan proposes to construct its new pipeline to carry the heavier NGLs beneath the lake, an explosion rocked the TGP pipeline, leaving a “terrific crater” and flames “rising 1,,000 feet into the air,” according to a Jan. 27, 1958 article in the Advocate-Messenger.

The article went on to say it took 24 hours before the flames burned out once a valve was shut off and the flow of natural gas was halted. Luckily, no one was injured.

In 1985, a Texas Eastern pipeline exploded in Garrard County, just across the Dix River from Boyle County. That explosion, which injured three people, was attributed to a corroded pipeline, which the company admitted to knowing about months before the explosion.