Attorneys for the Mobile Area Water and Sewer System were standing on their last legal leg in court today, as part of an ongoing attempt to prevent a portion of a 41-mile oil pipeline from running through the city’s primary drinking water supply.
Last month, Mobile Circuit Court Judge Robert Smith accepted pipeline company Plains Southcap’s conversion from a limited liability company to a corporation, reversing a probate court ruling that the company did not have condemnation powers in the state of Alabama.
Today, at the beginning of a non-jury trial expected to last three or four days, the question of preemption, or whether the pipeline would materially interfere with MAWSS’ public use of the watershed was before the court, with the defense team attacking the legitimacy of a third-party report suggesting it would.
In opening arguments, Plains’ attorneys said the report was “pure hearsay,” introducing the deposition of Barry Tierce, a regional manager at Kellogg, Brown & Root, the consultant who published the report in August. Tierce said the report was authored by a trio of partners in Houston and he could not independently vouch for its findings.
MAWSS attorney Don Beebe said he expected to defend the report’s findings, but the case also rested on the fact that MAWSS originally acquired two of the three parcels Plains needs to complete the pipeline for the sole purpose of protecting and preserving the health of the watershed.
In unusual proceedings, Plains has the burden of proof in the case and is calling expert witnesses to counter MAWSS’ concerns, before Judge Robert Smith will even rule whether or not to accept the preemption complaint.
Plains’ first witness was its Managing Director of Engineering Dwayne Koehne, who is supervising the Gulf Coast Pipeline’s construction. Koehne said the development was encouraged by an expansion at Chevron’s Pascagoula refinery, as well as Chevron’s desire to have a secondary source of delivery in the case their primary port in Pascagoula was offline.
Koehne said originally, Plains’ mapping crews suggested three routes — the current route along with two alternate routes further east. Cane said Plains was attracted to the current route’s existing utility corridor and the two alternatives would have been more difficult to push through the acquisition process.
He said it was the company’s belief that a letter of intent received from MAWSS earlier this year provided a reasonable expectation that the water utility would grant the 3,300-feet of right-of-way necessary to complete the project. It wasn’t until MAWSS’ board of directors adopted a resolution against the pipeline over the summer that Plains realized there would be a legal battle.
Plains is investing more than $100 million in the project, which is complete except for the MAWSS tract. Koehne said Plains has responded to MAWSS’ environmental concerns by exceeding federal guidelines for the strength and depth of the pipe, as well as the placement of control valves that can shut down the flow of oil in the event of a rupture. Koehne said the shutoff valves over the Big Creek Lake watershed will be positioned four miles apart, rather than the industry standard 25 miles. The pipeline, should it be realized, will be directionally bored across MAWSS property to a depth of 90 feet under Hamilton Creek and also encased in concrete.
On cross examination, Beebe suggested Plains has been dishonest about the pipeline and had Koehne concede the company had misrepresented the peak flow rate to the Alabama Public Service Commission. The pipeline will be capable of transporting 200,000 barrels of oil per day, or 8,400,000 gallons, from a tank facility in the Eight Mile area to Pascagoula.
Beebe pressed Koehne on the company’s protocols if satellite or cellular communications systems failed, to which he responded it would rely on a manual shutdown. Beebe also asked about the final route selection, and why an alternative through the Magnolia Golf Course was rejected.
“There would be significant resistance to a pipeline running through that golf course,” Koehne said.
Also testifying were right-of-way and acquisition contractors Kevin Taliaferro and Kerry Malone, who said negotiations with MAWSS were congenial as recently as June and July. But Beebe presented documents from as early as Jan. 2012 indicating MAWSS Director Les Brown was not going to allow access to the property to a survey crew, and a document from Aug. 2012 that suggested Brown was not going to issue an easement to Plains.
Plains high-profile legal team is led by Jerrod White, but also includes three former justices on the Alabama Supreme Court; Thomas Woodall, Gorman Houston and Bernard Harwood. Witness testimony will continue tomorrow and is expected to include further testimony about the safety of Plains’ operation.
“That’s the beauty of horizontal drilling,” White said after the first day of testimony. “It won’t disturb MAWSS’ property in any way. Plains is in the business of pipelines and knows a lot about them so for people who haven’t dealt with pipeline cases before it’s important that the court understand what’s involved and what this terminology means and what the process is so today was a lot of background information. Tomorrow we’ll have more expert witnesses. There have been a lot of misconceptions about this pipeline and its safety and its risk to the community and they are going to provide information that explains a lot of things said by MAWSS that isn’t correct.”