ISBA Ag Law Seminar Pipeline Outline_Draft v3

Transcription

REPRESENTING LANDOWNERS IN PIPELINE CASES
AND EASEMENT NEGOTIATIONS
Part 1: Introduction
I.
Overview
Many similarities to electric transmission lines in terms of regulatory approval and
easement terms and conditions. This outline will not repeat the information applicable to
transmission lines (which was provided separately) that also applies to pipelines.
II.
Recent Pipeline projects before the Illinois Commerce Commission
A. Cases pending before the ICC
i.
Explorer Pipeline Company – ICC 13-0433
From the Petition (¶15) – Explorer will consult with landowners along the route and seek
to acquire all necessary easements through good-faith negotiations. Explorer has engaged
experienced land valuation and R-O-W consultants/land agents, is undertaking land valuation
analyses, will conduct all requisite surveys, and has established an Illinois field office. Explorer
intends to offer full fee value for the necessary acreage for easements even though the land will
actually be impressed only with an easement interest. Explorer will fully compensate
landowners for crop damage and will restore all R-O-W areas as closely as possible to their preconstruction state. Explorer is working with IDOA to develop and AIMA modeled on those
reached by IDOA and other pipelines. Explorer has developed a standard easement document
template to use in negotiation. Requisite informational filings have been or are being made as
required by 83 IL Admin. Code Part 300. Explorer’s request for eminent domain authority is
“purely contingent.” Recourse to condemnation would only be as a last resort, and efforts to
reach agreement will continue even if the condemnation process has to be invoked.
Witnesses – Engineering/Routing, Finance, Energy consultant (need for project)
ii. Enbridge Eminent Domain Petition – ICC 13-0446
Follow up to grant of authority issued (certificate in good standing authorizing Enbridge
to operate as a common carrier by pipeline) in ICC 07-0446 for the Southern Access Extension
Pipeline, 165 miles of a 36-inch liquid petroleum pipeline from Pontiac to Patoka. ICC had
deemed it premature in the prior proceeding to grant eminent domain authority under PUA
Section 8-509, instead directing Enbridge to engage in further negotiations with affected
landowners. Enbridge described the progress it had made in acquiring easements since the
2007 docket order and asserted it now needed an 8-509 order due to its inability to negotiate
easements with remaining landowners. Enbridge introduced the testimony of an expert who
introduced land market studies to show that the payments being offered to landowners are
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supported by market data. Enbridge also offered the testimony of its Manager of Land Services
pertaining to Enbridge’s efforts to acquire the rights-of-way necessary for the pipeline project.
The reasons for the considerable gap in time between the original ICC proceeding and
the new Petition are the appeals of the ICC’s prior order (concluded in March 2011) and two
federal district court challenges to certain of Enbridge’s easement rights, along with an appeal to
the 7th Circuit. Delays in increases in demand for petroleum transport also contributed to the
delays. Enbridge described in detail its more recent activities and efforts to negotiate rights-ofway.
Petition to Intervene filed by Attorney Thomas Pliura ostensibly on behalf of the
landowners named in the Petition. Enbridge filed Motion to Strike and Dismiss on several
grounds. ALJ Jones issued a ruling that is included with the materials as it covers several
aspects and issues of the case.
ICC Staff gas engineering witness filed testimony in support of Enbridge’s request for
eminent domain authority. The basis for the Staff witness’ support was his understanding that
Enbridge has made “reasonable attempts to acquire the outstanding land rights through the
negotiation process, but that further attempts to acquire the necessary land rights are not
expected to be successful.”
Relevant factors, as set forth in the Order in ICC 13-0456 (Ameren):
1. The number and extent of contacts with landowners
2. Whether the utility (pipeline) has explained its offer of compensation
3. Whether the offers of compensation are comparable to offers made to similarly
situated landowners
4. Whether the utility (pipeline) has made an effort to address landowner concerns
5. Whether further negotiations will likely prove fruitful in reaching negotiated
settlements
A copy of the Enbridge Petition for Eminent Domain Authority is included for reference.
Also included is a copy of ALJ Larry Jones’ ruling on a Motion filed by Enbridge to deny
intervention filed by Thomas Pliura; as the ruling touches on several issues pertaining to the
proceeding, the right to intervene, and the scope of the proceeding.
B. Another Recent ICC Proceeding
ICC 09-0054 Application of CenterPoint Energy – Illinois Gas Transmission
Company for Certificate Authorizing and Directing Construction, Abandonment,
and Operation of a Natural Gas Pipeline and Granting Authority to Exercise
Eminent Domain
Pipeline’s application to abandon a 55-mile segment of its natural gas pipeline system in
southern Illinois and to construct a 2.2 mile pipeline, and to exercise eminent domain; filed
under Sections 15-401, 8-503 and 8-509 of the PUA. The ICC granted the application except for
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the request under Section 8-509. The Order, at p. 12, stated: “Because the Commission is
concerned about the accuracy of representations made to landowners along the existing
pipeline, it is hesitant to assume that the negotiations with landowners along the route of the
proposed 2.2-mile pipeline will be free of any miscommunications, whether intentional or not.”
Part 2: Proceedings Under 220 ILCS § 5/15-401
I.
Sources of Law
A. Public Utilities Act [220 ILCS 5/1-101 et seq.]
Certificate in Good Standing under Section 15-401 of the Common Carrier by
Pipeline Law, a part of the Public Utilities Act:
(220 ILCS 5/15-401)
Sec. 15-401. Licensing.
(a) No person shall operate as a common carrier by pipeline unless the person
possesses a certificate in good standing authorizing it to operate as a common
carrier by pipeline. No person shall begin or continue construction of a pipeline or
other facility, other than the repair or replacement of an existing pipeline or facility,
for use in operations as a common carrier by pipeline unless the person possesses a
certificate in good standing.
(b) Requirements for issuance. The Commission, after a hearing, shall grant an
application for a certificate authorizing operations as a common carrier by pipeline, in
whole or in part, to the extent that it finds that the application was properly filed; a
public need for the service exists; the applicant is fit, willing, and able to provide the
service in compliance with this Act, Commission regulations, and orders; and the
public convenience and necessity requires issuance of the certificate. Evidence
encompassing any of the factors described in items (1) through (9) of this subsection
(b) that is submitted by the applicant, any other party, or the Commission's staff shall
also be considered by the Commission in determining whether a public need for the
service exists under either current or expected conditions. The changes in this
subsection (b) are intended to be confirmatory of existing law.
For crude oil pipelines, are nine enumerated factors the ICC is to consider in
deciding whether a proposed pipeline is required under the public convenience and
necessity.
The pipeline, in seeking approval under this section, has the option to apply for
approval of a specific route or, instead, a route of a specific width, up to 500 feet,
within identified areas. The pipeline may request any other approvals (including
eminent domain authority) needed to complete the pipeline as part of the same
application. All landowners along a proposed project route, or all potentially affected
landowners within a proposed project route width, are to be notified within 30 days
after the filing.
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Section 15-401(d) provides:
If the Commission grants approval of a project route width as opposed to a specific
project route, then the common carrier by pipeline must, as it finalizes the actual
pipeline alignment within the project route width, file its final list of affected
landowners with the Commission at least 14 days in advance of beginning
construction on any tract within the project route width and also provide the
Commission with at least 14 days notice before filing a complaint for eminent domain
in the circuit court with regard to any tract within the project route width.
The ICC must issue its decision within one (1) year after the application is filed;
extendable up to six more months if the ICC finds, after the initial testimony, that the
extension is needed due to the number of landowners affected and complexity of
issues. An expedited schedule may be set if the ICC determines the public interest
requires it.
Within six (6) months after the ICC order approving a route or a route width, the
pipeline may apply for “minor route deviations outside the approved project route
width, allowing for additions or changes to the approved route to address
environmental concerns encountered during construction or to accommodate
landowner requests.” Section 15-401(f). The ICC must approve the route deviations
within 45 days unless a written objection is filed within 20 days. Hearings are limited
to the reasonableness of the specific variation proposed. ICC rules may include
additional expedited proceeding options.
Part 3: Eminent Domain
I.
Sources of Law
A. PUA
a. Section 8-509 provides that when necessary for construction of facilities
authorized under Sections 15-401 and 8-503, the ICC may authorize the
pipeline to exercise eminent domain.
B. Eminent Domain
a. Eminent Domain Act [735 ILCS 30/1-1-1, et seq.]
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Part 4: Negotiating Pipeline Easements for Landowners
A. Considerations in Assisting Clients in Negotiating Pipeline Easements:
1.
Who has the bargaining power? Does the pipeline have ICC
condemnation authority? If the Pipeline does not, Landowner has much greater
leverage.
2.
If they do have condemnation authority, keep records of all
communications (or lack thereof) in order to have possible foundation to claim
lack of good faith negotiations. (Later consideration if the matter goes to
condemnation).
3.
Compensation for easement is important but is not everything.
a. Get an appraisal
the property.
b. Understand how the pipeline will affect the remainder value of
c. Talk to your client and discuss any future use or exploitation of
the property. Is there any mineral deposit, frac sand, natural gas, coal, etc on the
property?
4.
Recite character and uses of Grantor’s property on which the
easement is to be granted. Ensure you limit the easement to what your client was
paid (no other grants).
5.
Confine the pipeline’s installation activities to the specific
construction easement area negotiated. When drafting the construction
easement make sure the access areas are explicitly described; avoid
generalities.
area shown.
a. Include property diagram/ survey of the construction easement
b. The Construction process can create serious soil issues:
1) Compaction (heavy equipment, trucks, etc.)
2) Soil Mixing (failure to maintain clay/ loam segregation has
long-term impact on productivity)
3) Drainage/ Field tile (must be repaired - issue may not
present itself for some time).
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c. Demand that the farmer/ landlord be paid (hourly) to assist/
supervise the installation of the pipeline. (Farmers want to know what is
happening to their property).
d. Demand additional compensation if the pipeline plans to use
other land of grantor for construction or staging (control valves/ access pointstypically fee price for land).
6.
The Permanent easement is typically much smaller
a. How will the easement restrict current use?
b. How does it impact future farming or future development?
7.
Grantor.
Ensure that the Notice Provision is adequate for Landowner/
a. Describe any periodic maintenance.
b. Provide for any other time when Grantee will be performing work,
and specifying type of equipment that will be on-site.
8.
Limit Grantee pipeline’s right to relocate pipeline after initial
installation, or adding a second parallel pipeline or other facilities within
easement area (there must be a separate negotiation for each pipeline).
9.
Understand and specify depth of pipeline, and provide for
protection of drainage/ field tile.
10.
Crop damage during installation as well as anytime thereafter
during easement period; compaction remediation and damages, and damages to
fences and other grantor property, should be included. Specify method of
determining damages if parties cannot agree, such as independent persons who
can arbitrate the damages.
11.
Pipeline may want right to clear certain amount of land adjoining
the easement area, but this should be limited to easement area only. Specify that
grantor may utilize land for any purpose except as it will interfere with the pipeline
installation or operations; any limitations on grantor should be specifically
described, e.g., grantor will not excavate within easement area without notice to
and approval from grantee.
12.
Include clause by which grantee indemnifies grantor for damages
and injuries resulting from grantee’s activities or presence on grantor’s property
(including any and all environmental related cleanup). Provide for grantor
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protection from mechanics liens and other claims against grantee that could
affect grantor or grantor’s property.
13.
Provide for removal of pipeline and restoration of land if abandoned
(and define “abandon”).
14.
Incorporate AIMA into easement agreement.
15.
If old pipeline easement already exists and pipeline wants to use it
for new project, be sure to determine whether pipeline needs any further rights
(such as extra width of easement area) that can be used to trigger a renegotiation and re-drafting of easement agreement.
16.
Get tax advice as to proper treatment of compensation, including
whether portion of compensation is considered a sale (subject to capital gain
treatment) and what portion is rental income or damage compensation (ordinary
income).
17.
See draft easements attached.
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STATE OF ILLINOIS
ILLINOIS COMMERCE COMMISSION
ENBRIDGE PIPELINES (ILLINOIS) L.L.C.
Petition pursuant to Section 8-509 ofthe Public Utilities
Act to Take Private Property as Provided by the Law of
Eminent Domain.
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Dkt. No. _ __
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PETITION FOR EMINENT DOMAIN AUTHORITY
Joel W. Kanvik
Amy Graham Back
Enbridge Energy Company, Inc.
1409 Hammond A venue
Superior, Wisconsin 54880
(715) 398-4500
Gerald A. Ambrose
Dale E. Thomas
G. Darryl Reed
Sidley Austin LLP
One South Dearborn
Chicago, Illinois 60603
(312) 853-7000
Attorneys for Petitioner
July 22, 2013
TABLE OF CONTENTS
Page
INTRODUCTION ....................................................................................................................... .... 1
EN BRIDGE BACKGROUND ........................................................................................................ 4
STATUTORY PROVISION ........................................................................................................... 5
ENBRIDGE EXPANSION PROGRAMS ....................................................................................... 5
PROJECT STATUS ......................................................................................................................... 8
EASEMENT NEGOTIA TIONS .................................................................................................... l 0
LUXOR EASEMENTS ..................................................................................................... 11
NON -LUXOR EASEMENTS ...................................................................... ..................... 14
NEGOTIATIONS AT IMPASSE .................................................................................................. l6
CONCLUSION .............................................................................................................................. 21
STATE OF ILLINOIS
ILLINOIS COMMERCE COMMISSION
Petition pursuant to Section 8~509 of the Public Utilities
Act to Take Private Property as Provided by the Law of
Eminent Domain.
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Dkt. No. _ __
PETITION FOR EMINENT DOMAIN AUTHORITY
INTRODUCTION
Enbridge Pipelines (Illinois) L.L.C. ("Enbridge lllinois"), through this Petition, hereby
renews its request, originally made in Docket No. 07-0446, for an order pursuant to Section 8509 of the Public Utilities Act ("PUA''), 220 ILCS 5/8-509, authorizing it to acquire private
property in the manner provided for by the law of eminent domain. Such grant of authority is
necessary for Enbridge to construct its new liquid petroleum pipeline - the Southern Access
Extension (''SAX") Pipeline- of approximately 165 miles in length from near Pontiac, Illinois to
Patoka, Illinois, for which the Commission previously issued a "Certificate In Good Standing" in
Docket No.
07~0446.
This Petition is also supported, in part, by the Affidavit of John McKay,
filed concurrently herewith.
In its Order in Docket No. 07-0446, dated July 8, 2009 (''Order"), the Commission found
that ''a certificate in good standing authorizing Petitioner to operate as a common carrier by
pipeline should be granted" to Enbridge Illinois for the SAX pipeline.
Order at 69.
The
Commission also found that "the proposed pipeline is necessary and should be constructed, to
promote the security or convenience of the public, pursuant to Section
8~503
of the Public
Utilities Act." !d. at 70. The Commission therefore ordered that a Certificate In Good Standing
be granted as follows:
"IT IS HEREBY CERTIFIED, subject to the conditions imposed in this
order, that Enbridge Pipelines (Illinois) L.L.C. is authorized, pursuant to
Section 15-401 of the Common Carrier By Pipeline Law, to construct,
operate and maintain the proposed 36-inch pipeline as described in this
order and to operate as a common carrier by pipeline within an area sixty
feet wide and extending approximately 170 miles along the route
identified in Attachments A and B to the petition in Docket No. 07-0446."
Although the Commission granted to Enbridge Illinois the requested Certificate in Good
Standing and authority to construct the SAX pipeline, the Commission did not at the time grant
Enbridge Illinois' further request under Section 8-509 of the PUA for eminent domain authority.
The Commission concluded that .. [h]aving reviewed the record in this case and the
Commission's findings in recent orders in transmission line proceedings, the Commission
believes that it would be premature to grant eminent domain authority under Section 8-509 at
this time." Order at 67. The Commission based its conclusion in part on a determination that
"the record does not support a finding that further negotiations would be pointless" and its stated
belief"that additional negotiations would be appropriate." /d. Indeed, the Commission stated its
view that the very entry of its Order "in which a certificate is granted and a line's route
approved," along with "decisions in federal court involving the status of the easements on the
CIPC pipeline and other factors," "should ... facilitate the negotiation process" by removing or
at least mitigating a number of uncertainties and impediments to fruitful negotiations. /d. at 68.
The Commission made equally clear, however, that "[i]n the event Enbridge Illinois is
still unable to obtain the necessary easement rights through the negotiation process," it could
"renew its request for authority to exercise eminent domain authority by filing a petition for such
relief under Section 8-509 of the PUA and demonstrating that it has made reasonable attempts to
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obtain easements, through good-faith negotiations, with respect to properties for which it is
seeking eminent domain." 1 !d. Accordingly, Enbridge Illinois, by this Petition and pursuant to
Section 8-509 of the PUA, is hereby renewing its request for eminent domain authority for the
SAX pipeline as to the properties, along with the owners thereof, described herein and
specifically identified in Attachment A hereto. As explained in detail below, experience with
property owners along the approved route since the Commission's Order shows that such
authority is necessary for the efficient completion of the pipeline. To date, Enbridge Illinois has
obtained 405 agreements with landowners.
As a result, when considering the 405 obtained
agreements along with the 114 tracts where existing Luxor rights will be exercised, Enbridge
lllinois presently has easement rights on approximately 76 percent of the 679 tracts comprising
the SAX pipeline route. Enbridge Illinois still lacks easement rights, however, in the 148 tracts
listed in Attachment A. For those tracts, "further negotiations" have become "pointless" because
the parties are at impasse. Thus, through this Petition, Enbridge Illinois now seeks eminent
domain authority solely for these tracts.
It remains the policy, practice, and intention of Enbridge Illinois to acquire necessary
interests in real estate through negotiated agreements with property owners to the maximum
extent possible. Indeed, even with the filing of this Petition and the grant by the Commission of
the requested eminent domain authority, En bridge is continuing and will continue to seek the
necessary easements and temporary work space ("TWS") agreements through negotiation with
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In the Docket No. 07-0446 proceeding, Enbridge 1llinois represented to the Commission that its good-faith offers
would be based upon "paying full fee value for both fee interests and permanent easements used for the right-of-way
as well as above-market rentaHype values, generally thirty percent (30%) of fee value, for temporary workspace
easements which last only during construction." Application For Certificate In Good Standing And Other Relief,
Dkt. 07-0446, Aug. 16, 2007, at 24. See also Testimony of Douglas B. Aller, Dkt 07-0446, Enbridge Ex. 2, at II.
As explained in more detail infra, in an effort to increase agreement to easements, Enbridge has now increased its
good faith offers to 125 percent of fee value for permanent easements and SO percent of that amount for temporary
work space grants.
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the landowners listed in Attachment A. But where, as is now the case, certain property owners
refuse to negotiate, indicate they will negotiate only on unreasonable terms, fail to respond to
attempts at contact, or seek unreasonable amounts, a grant of eminent domain authority is needed
to remove the incentive to hold out and engage in uneconomic rent-seeking.
ENB~DGEBACKGROUND
1.
Enbridge Illinois is a Delaware limited liability company with its principal office
located at 1100 Louisiana, Suite 3300, Houston, Texas 77002 (ph. 713-821-2000). En bridge
Illinois is an indirect, wholly-owned subsidiary of Enbridge Inc. ("Enbridge") and as such is an
affiliate of Enbridge Energy Partners, L.P. ("Enbridge Partners"), Enbridge Energy, Limited
Partnership ("Enbridge Energy"), and Enbridge Pipelines (FSP) L.L.C. (""Enbridge FSP").
Enbridge is a leading company in the transportation and distribution of energy in North America.
Through its subsidiary Enbridge Pipelines Inc., Enbridge operates pipelines that, inter alia,
traverse western Canada to transport crude oil east and south to the United States and eastern
Canada. En bridge Partners, through subsidiaries such as Enbridge Energy, owns and operates a
series of liquid petroleum pipeline systems in the United States, including the "Lakehead
System," the U.S. portion of Enbridge's operationally integrated pipeline system which operates
in seven Great Lakes states, including Illinois, and the Enbridge Pipeline (North Dakota) L.L.C.
system, which operates in the Williston Basin!Bakken Formation area of North Dakota and
eastern Montana and ultimately interconnects directly or via affiliates with the Enbridge
Mainline System in Clearbrook, Minnesota and Cromer, Manitoba.
Enbridge's Spearhead
Pipeline, which is owned by CCPS Transportation, L.L.C., operates from Enbridge Energy's
Flanagan Terminal near Pontiac, Illinois and transports crude oil to the major national crude oil
pipeline hub in Cushing, Oklahoma. Together with the Canadian pipeline systems of Enbridge
Pipeline Inc., these systems comprise over 15,000 miles of liquid petroleum pipelines and
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constitute the world's longest crude petroleum and petroleum liquids pipeline network. They are
the primary means of transporting crude oil from Canada to the United States as well as the only
pipeline transit system that transports crude oil from western Canada to eastern Canada. Overall,
Enbridge's pipelines transport over one-half of western Canada's crude oil production and
deliver approximately 15% of U.S. imports of crude oil.
2.
Enbridge and its affiliates employ approximately 10,000 people, primarily in
Canada and the United States. The common stock of Enbridge is widely held and is publicly
traded on both the Toronto Stock Exchange ("TSX:ENB") and the New York Stock Exchange
("NYSE:ENB").
In 2012, Enbridge had total capitalization of Cdn $36 billion and earnings
applicable to common shareholders of Cdn $610 million.
En bridge maintains its corporate
headquarters in Calgary at 425- 1st Street S.W., Calgary, Alberta T2P 3L8 Canada.
STATUTORY PROVISION
3.
Enbridge Illinois is petitioning for eminent domain authority pursuant to Section
8-509 of the PUA. (220 ILCS 5/8-509). Section 8-509 states, in pertinent part:
"When necessary for the construction of any alterations, additions,
extensions or improvements ordered or authorized under Section 8406.1, 8-503, or 12-218 of this Act, any public utility may enter
upon, take or damage private property in the manner provided for
by the law of eminent domain." (220 ILCS 5/8-509).
ENBRIDGE EXPANSION PROGRAMS
4.
As found by the Commission in its Orders in Docket Nos. 06-0470, 07-0446, and
12-0347, public demand for refined petroleum products in Illinois, the Midwest generally, and
across the country requires the importation into Illinois and other areas of immense amounts of
crude oil that can be refined into gasoline, diesel fuel, heating fuels, jet fuel, asphalts,
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petrochemicals, and other items needed by the consuming public. Although conservation efforts
and economic cycles have slowed the rate of growth in demand for petroleum products as an
energy source, such demand is nevertheless expected to remain strong and will continue to grow
in Illinois and throughout the United States as population grows and economic activity expands.
Petroleum products will continue to meet the great majority of America's transportation energy
needs for the foreseeable future, despite growth in alternative energy sources.
5.
Both the heavy and light crude oil produced in western Canada and in the
Williston Basin, an area encompassing much of North Dakota, eastern Montana, and southern
Saskatchewan within which the hydrocarbon rich area known as the Bakken Formation is
located, are economically attractive to American refiners, exist in ample supply, and constitute a
reliable and secure resource for Illinois-area and other U.S. refiners. As non-Canadian supplies
of crude oil have become less attractive or more unsecure or unreliable, and as Canadian and
Bakken supply has increased, Enbridge and its affiliates have acted to expand and extend their
pipeline systems through strategic construction programs to increase access to secure and
growing Canadian and Williston Basin resources.
In the Docket No. 07-0446 proceeding,
Enbridge Illinois provided evidence that the SAX pipeline, along with other system facilities and
improvements, will afford Enbridge the ability to provide an initial 400,000 barrels-per-day
("bpd") of additional capacity into the Midwestern market area. The SAX pipeline will extend
from the Flanagan Terminal to a crude oil hub near Patoka, Illinois in Marion County, where
Enbridge owns storage facilities. At the Patoka Terminal, Enbridge and other companies have
some 13 million barrels of crude petroleum storage and breakout tankage to facilitate further
delivery via connecting pipelines to numerous refineries. By connecting at Flanagan, the SAX
pipeline will afford U.S. refiners the capacity they need for movements of crude petroleum to
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Patoka, where connections exist for movements further south as well as east and west to various
market areas.
6.
As Enbridge Illinois previously explained, the SAX pipeline is to run
underground for approximately 165 miles2 within a 60-foot wide permanent easement right-ofway running from the Flanagan terminal through parts of Livingston, McLean, DeWitt, Macon,
Shelby, Christian, Fayette, and Marion Counties to the Enbridge facilities near Patoka. Much of
the
right~of-way
will be either adjacent to or collocated with existing rights-of-way and/or will
be partially in an existing right-of-way of the former Central Illinois Pipeline Company
("CIPC"), with which Enbridge Illinois merged in 2006. The CIPC right-of-way is generally
referred to as the "Luxor" right-of-way. During construction, an additional 60-foot temporary
workspace easement generally will be needed alongside the permanent easement area (extra
temporary workspace will be required in some locations, such as road, wetland, and water-body
crossings).
Order at 6.
In its Order, the Commission found that "the proposed pipeline is
necessary and should be constructed, to promote the security or convenience of the public,
pursuant to Section 8-503 of the Public Utilities Act." Order at 70. The Commission agreed
with Staff that '"bringing Canadian petroleum to this [Patoka] hub would provide not only our
state, but our nation, with additional crude oil supplies from a friendly and reliable country.'" /d.
at 46. The Commission stated that it "also agrees with Staff that 'Illinoisans are also citizens of
the United States, and a project that provides access to a secure and reliable energy supply and
helps to meet our country's energy needs is a project that benefits Illinois citizens, whether
directly or indirectly"' and that "[t]he changing landscape requires us as a nation to re-evaluate
our energy supply and transmission network and make sure that it is as reliable and redundant as
2
The SAX pipeline route is now estimated to be 165 miles in length, rather than the 170 miles in length initially
estimated.
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possible."' !d. at 46.4 7. The Commission then concluded that "[b]ased on the record in the
case, including the location of the pipeline which would carry Canadian crude to the major
pipeline hub at Patoka, the capacity of the pipeline, the current environment as described by
Staff, and other evidence presented, the Commission agrees with Staff that there is a public need
for the proposed pipeline.'' !d. at 47. The Commission further held that ••[b]ased on the record
of this proceeding and the other findings in this order, and subject to the conditions related to
routing imposed herein, the Commission finds that Enbridge Illinois' proposed route for the
pipeline is reasonable and it is hereby approved." Order at 57.
PROJECT STATUS
7.
The SAX pipeline project has progressed slower than anticipated at the time of
the Commission's Order for several reasons. Most significantly, the Order was appealed to the
Illinois Appellate Court by other parties to the case, and that appeal process was not concluded
until the appellate order was issued on October 25, 2010, and the appeal mandate was issued on
March 9, 2011. See Pliura Intervenors v. Illinois Commerce Commission, 405 Ill. App. 3d 199
(20 10); Enbridge Pipelines (Illinois) L. L. C., ICC Dkt. 07-0446, Mandate of the Court (Appellate
Court, Fourth Dist., March 8, 2011 ). Further, at virtually the same time, and as noted in the
Order itself, litigation was underway in two federal district courts in Illinois concerning the
validity of En bridge Illinois' easement rights in the fonner CIPC or Luxor pipeline right-of-way.
Enbridge Pipelines
(IIlinoi!;~
LLC v. Burris, 08-CV-697-DRH, 2010 WL 1416019 (S.D. Ill. Mar.
31, 2010); Enbridge Pipelines (Illinois) L.L.C. v. Burris, 08-CV-697-DRH-CJP, 2010 WL
3038716 (S.D. Ill. Aug. 3, 2010); Enbridge Pipelines (Illinois) LLC v. Burris, 08-CV-697-DRH,
2010 WL 3038501 (S.D. lll. Aug. 3, 2010); and Enbridge Pipelines
CV-697-DRH, 2010 WL 3038529 (S.D. Ill. Aug. 3, 2010).
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(lllinoi~)
LLC v. Burris,
08~
Enbridge Illinois ultimately
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- - - - - - -
prevailed on summary judgment motions in all of the cases challenging its right to use the Luxor
route for the SAX pipeline. !d. Many of the landowner-plaintiffs in these cases appealed to the
federal court of appeals - the United States Court of Appeals for the Seventh Circuit - and
Once again, Enbridge Illinois
ultimately all the appeals were consolidated for decision.
prevailed in the litigation: All the appeals were denied and the judgments in favor of Enbridge
Illinois were affirmed in Enbridge Pipelines (Illinois) L.L.C. v. Moore, 633 F.3d 602 (ih Cir.
2011 ). That appeal process, however, did not completely culminate until February of 2011. All
of this litigation created uncertainty that the project could successfully go forward, the appeal
from the Order by threatening Enbridge Illinois' status as a common-carrier-by-pipeline, and the
federal cases by threatening its ability to utilize significant parts of the approximately 165-mile
pipeline route, and such uncertainty impeded progress on the project.
Moreover, while the
appellate litigation was pending, significant economic and petroleum-supply developments
occurred that caused delays in the realization of the anticipated transport demand. Such factors
as the economic downturn of 2008-2011 -- the so-called "Great Recession" --and the emergence
of substantially increased light-crude supplies from the Bakken Formation and elsewhere, as well
as industry restructurings such as the disaggregation of integrated entities like Marathon and
ConocoPhillips into independent "upstream" and "downstream" entities, caused petroleum
shippers and refineries to refrain from commitment to transport obligations.
Despite these
influences, as the federal government has recognized and declared "[t]he need for [pipeline]
infrastructure is particularly acute right now. . .. [and] we must make pipeline infrastructure a
•
•
pnonty ...
11
Presidential
Memorandum
of
March
(www.whitehouse.gov/the-press-office/ 20 12/03/22presidentialmemorandum).
22,
2012
According to a
Presidential Executive Order of the same date, "the need for pipeline infrastructure is urgent" and
9
"[e]xpanding and modernizing our nation's crude oil and refined products pipeline infrastructure
is a vital part of a sustained strategy to continue to reduce our reliance on foreign oil and enhance
our nation's energy security," to which ends "it is critical that we make pipeline infrastructure a
top
priority"
(Fact
Sheet:
www. whitehouse .gov/the-press-office/20 12/03/21 fact~sheet ).
Particularly notable in this regard is the dramatic surge in Bakken Formation supply, which had
grown from slightly over200,000 bpd in January 2010 to almost 800,000 bpd by July 2012. The
demand for such supply, particularly for light crude, has caused refiners such as Marathon,
which has three refineries served from the Patoka hub (Canton, Catlettsburg, and Robinson ) to
seek transport via the SAX pipeline for several hundred thousand barrels per day of mostly light
crude oil. To meet such demand, the SAX pipeline must be in-service by mid-2015.
EASEMENT NEGOTIATIONS
8.
Despite the fact that the project was delayed by litigation and by economic
conditions as just described, even before easement negotiation efforts were expanded in July
2012, Enbridge Illinois had obtained easements on approximately 45 percent of the 679 tracts
needed for the project.
Of particular relevance to this Petition, Enbridge lllinois has been
pursuing a land-acquisition program as described and approved in the certification Order and as
is necessary for construction of the pipeline.
9.
Enbridge Illinois' efforts to establish the right-of-way necessary for the SAX
project both before and since July 20 I 2 generally have taken one of two forms.
First, for
properties on the Luxor right-of-way, as to which Enbridge Illinois already has easement rights,
Enbridge Illinois has negotiated upgraded easement rights and payments, determined that certain
re-routes were necessary and therefore some Luxor tracts could not be used at all, or concluded
that condemnation will be necessary for a limited number of Luxor tracts because although the
10
tracts must be used, the particular Luxor easements in question have restrictions that make them
inadequate as they stand for use in construction and negotiations to upgrade these easements
have failed.
10.
Second, as to the non-Luxor or "greenfield" properties, Enbridge Illinois' land-
acquisition program has followed the procedures and processes approved by the Commission in
the certification Order.
Enbridge Illinois has made numerous attempts to contact all such
landowners through phone, mail, and in-person inquiries. Based on landowner willingness to
meet, Enbridge Illinois agents have followed up with onsite visits with the landowners to discuss
the project and answer any questions regarding the project Agents have been working with
landowners since July 2012, and continue to attempt to acquire easements through negotiations.
Such efforts will continue even if condemnation actions have to be filed.
11.
Details about each of these paths to obtaining the necessary easements through
negotiations, and the reasons why condemnation authority is needed to complete the process, are
set forth below.
LUXOR EASEMENTS
12.
In the proceedings in Docket No. 07-0446, the record showed that the Luxor
right-of-way, owned by Enbridge, was expected to be used for approximately 120 miles of the
SAX pipeline, and that that use would provide significant benefits. These benefits included a
reduction in the potential need to condemn easements and a route that would be predominantly
located in rural areas used for agricultural purposes, thereby generally avoiding residential,
commercial, and industrial areas. Order at 54-55.
13.
The expected benefits from use of the Luxor right-of-way have been realized.
There are 371 Luxor tracts along the route ofthe SAX pipeline. Most ofthese are in rural areas
11
used for agricultural purposes; indeed, in those few instances where Enbridge Illinois has had to
vary from the Luxor route, as described below, the reason most often was that the area in
question has become more developed and/or constrained. On 239 of the Luxor tracts, Enbridge
Illinois has negotiated upgraded easements or options with the landowners. These upgrades
provided benefits such as bringing the Luxor easement payments up to the same level as
Enbridge Illinois is paying for non-Luxor or '"greenfield" easements (fair market value and
higher), provisions for adhering to modern pipeline safety and operational maintenance
standards, and added language that makes each easement a defined, rather than a blanket,
easement (a defined easement applies to a specified location on the property, whereas a blanket
easement simply applies to the entire property). Enbridge Illinois also intends to exercise its
existing Luxor rights on 114 tracts if the landowners thereof continue to refuse to negotiate.
These rights are a matter of contract and have been upheld as such by several federal courts. See
pp. 8-9, supra. See also Knight v. Enbridge, No. 12-CV-01244, U.S. Dist. Ct., C.D. Ill., Order
(June 19, 20 13). Nonetheless, Enbridge Illinois' offers of upgraded easements and payments on
these Luxor tracts remain and will remain open.
14.
All together, approximately 78% of the Luxor properties are being used to
construct the SAX pipeline. However, for approximately I 02 of the Luxor properties, it has
become necessary to divert from the precise 1939 path in which the original CIPC pipe was laid
by moving the route to certain non-Luxor tracts. The reasons for these relocations vary, but in
each instance the need for deviating from the CIPC route is compelling. Those reasons are
briefly summarized in the chart in Attachment B.
However, a few examples are useful to
illustrate the situations found. Some 27 Luxor tracts are not being used because the existing
Luxor pipeline path traverses portions of the Lake Pana reservoir, crosses a weir forming the
12
reservoir, and runs through what are now residential neighborhoods. Another 22 Luxor tracts are
not being used in order to reduce impacts to post-1939 residences, principally in Harristown, and
to provide better alignment for crossing what is now 1-72. Similarly, nine other Luxor tracts are
not being used to avert a new residential area near the City of Vandalia as well as a concrete
plant and to permit a more perpendicular crossing by the pipeline of a railroad and interstate
highway I-70. Further, seven Luxor tracts are not being used in order to avoid the Fayette Water
Company's wells. 3
Finally, another eight Luxor tracts are not being used near the Patoka
Terminal to avoid making two crossovers of two Marathon petroleum products pipelines,
crossovers which pose inherently greater safety, operational, and maintenance issues. These five
examples alone account for 73 of the I 02 deviations from the Luxor route.
The remaining
deviations, each limited, occurred for similar reasons. See Attachment B.
15.
Furthermore, and of particular importance to this request for eminent domain
authority, these deviations from the Luxor route do not significantly increase the number of
tracts for which En bridge Illinois is seeking eminent domain authority. Indeed, the 102 Luxor
tracts not used for the reasons described above were replaced by 82 new tracts, but only 18 of the
new tracts potentially require the use of eminent domain authority since Enbridge Illinois
successfully negotiated easements for all the others. Equally important, the owners of all 18 of
these tracts had notice that the pipeline might traverse their properties in the Docket No. 07-0446
proceeding.
3
At the time of certification, state regulations required setbacks of the pipeline from these wells of 400 feet, a
standard that the Luxor pipeline met. Since the certification, however, the applicable state regulations have now
been changed to require a I 000 foot setback, which the Luxor pipeline does not meet. See Setback Zone For Fayette
Warer Company Community Water Supply: Amendments To 35111. Adm. Code 618, Opinion and Order of the Board
(by T.A. Holbrooke), RII-25, Illinois Pollution Control Board (June 21, 2012). Thus, a new route and
corresponding new tracts were required to meet the 1,000-foot setback requirement for the Fayette wells. The
certification Order urged that En bridge avoid the wells if possible. Order at 56.
13
NON-LUXOR EASEMENTS
16.
Completion of the SAX pipeline has always required acquisition of easements in
properties not impressed with the CIPC/Luxor right-of-way, so called "greenfield" properties.
Enbridge Illinois has worked doggedly to acquire such interests.
In 2012, Enbridge Illinois
launched an expanded effort to complete the acquisition of required land rights for the SAX
project. Thus, a new land and right-of-way office was established in Decatur in late June 2012,
and currently 13 full time right-of-way personnel, based in Decatur, are working on the
acquisition of land rights.
17.
On July 9, 2012, Enbridge Illinois sent a letter to all landowners (or their
attorneys) of tracts on which easements were needed, communicating that Enbridge Illinois was
"' ... resuming work on the Southern Access Extension Project."
See Attachment C.
New
acquisition offers were first made in the enhanced right-of-way effort by mid-July 2012, and
agents were authorized to make "option" offers (i.e., contingent deals) to non-Luxor tract owners
who did not have attorney representation. These efforts continued through January 2013. In
February 2013, right-of-way agents were directed to make offers to acquire easements instead of
options and to contact all owners (or their attorneys) of tracts on which such easements were
needed. The attorneys were sent copies of any letters and were separately contacted by Enbridge
18.
In addition to the in-person and by-mail-and-telephone contacts outlined above,
Enbridge Illinois held informational "Open Houses" and invited all landowners and stakeholders
to attend and ask questions. See Attachment D. Announcements about these events were also
placed in local newspapers inviting anyone with an interest to attend and learn more about the
4
Concurrently, owners of Luxor tracts were contacted about upgrading or modernizing their easements and
payments.
14
SAX project. These Open Houses were held on February 25-28, 2013, at four locations along
the pipeline route.
19.
As in all current Enbridge projects, Enbridge Illinois' initial acquisition offers to
greenfield landowners were based on 100% of fee value of the property even though only
easement interests were sought. Temporary work space offers were made at 30% of fee value,
well above normal land-rent values. These are the "good-faith" offers that Enbridge Illinois told
the Commission in the Docket No. 07-0446 proceeding it would make to landowners.
Application For Certificate In Good Standing And Other Relief, Dkt. No. 07-0446, Aug. 16,
2007, at 24.
Subsequently, in an effort to increase agreement to easements or options by
landowners on this project, on April 1, 2013, En bridge Illinois increased its offer to landowners
to 125% of fee value for permanent easements and 50% of that amount for temporary work space
grants, additional temporary work space, and access roads. Enbridge Illinois also provides the
difference of this increased payment to landowners who signed previous offer tenders.
To
ensure that its offers were fair, Enbridge Illinois commissioned a new market study of land
values along the route by professional appraisers, which determined that Enbridge Illinois' offers
are in line with current market values.
20.
Between April 1, 2013 and May 22, 2013, all greenfield tract landowners willing
to communicate with Enbridge Illinois were contacted either by phone, mail or personal visits to
present Enbridge Illinois' most recent offers. Overall, in 2012 and 2013, right-of-way agents
made numerous offers to landowners for either an option or easement and in many instances
made additional offers to the same landowner when the offer amount increased.
21.
On May 22, 2013, Enbridge Illinois sent written offer letters to 165 landowners
by Certified Mail, Return Receipt Requested, and a second copy was sent to the same
15
landowners by First Class Mail. See Attachment E. A copy was also sent to the lando\Vller's
attorney by Certified Mail, Return Receipt Requested, if the lando\Vller was kno\Vll to have
attorney representation.
22.
Enbridge Illinois received very little positive response to its May 22 letters, but
did receive three written letters rejecting the offer.
Most replies, which ranged from
acknowledgement of receiving the letter to specific statements by landowners that they did not
want to be contacted in person or by mail, made clear that Enbridge Illinois and these
landowners are at an impasse in the negotiations.
NEGOTIATIONS AT IMPASSE
23.
Since the inception of the project, Enbridge Illinois has made nearly 4,600
contacts with the lando\Vllers of the 679 tracts located along the SAX route, for an average of
over six contacts per landowner. These numbers do not include offers made to owners of tracts
on the first fourteen miles of the SAX pipeline, which runs adjacent to the Flanagan South
Pipeline ("FSP") on those tracts. 5 As a result of all efforts, Enbridge 11linois has obtained 405
agreements with landowners including the first fourteen miles.
24.
No agreement has been reached, however, as to 148 properties that are critical to
the approved route for the SAX pipeline and that are listed in Attachment A. It is these 148
properties for which eminent domain authority is sought. Enbridge Illinois has made a concerted
effort to contact and make an offer to each lando\Vller, including the written offers sent on May
22, 2013.
Since July 2012, Enbridge land agents have made approximately 921 contacts
(excluding survey permission contacts) with the 148 lando\Vllers for the purpose of presenting
5
Because the first fourteen ( 14) miles of the SAX pipeline route in Livingston County parallel the FSP route therein,
acquisition negotiations for properties thereon have been conducted by the FSP right-of-way group for both
pipelines. Numerous contacts, meetings, offers, and discussions have also occurred in connection with this 14-mile
segment.
16
-
--
---
- - - - - - -
and negotiating easement or easement option offers. This also represents an average of over six
contacts per landowner, with actual contacts ranging from a minimum of two to as many as 32
contacts per landowner.
Generally speaking, most landowners have been contacted
approximately five to eight times for easement acquisition purposes.
25.
Negotiations with the 148 remaining properties have reached an impasse, and
further efforts to attempt to negotiate would be "pointless." The owners of the 148 tracts
received notice in the Docket No. 07-0446 proceeding that the SAX pipeline would be traversing
their properties, and as described above have been contacted by Enbridge lllinois numerous
times since then by phone, mail, or personal visits to present Enbridge Illinois' most recent
offers. The basis on which the landowners in question have rejected or not even considered
Enbridge Illinois' offers vary, but can be grouped as described below. The common feature is
that the reasons for rejecting or not even considering Enbridge Illinois' offers are unreasonable
or represent an effort to block the construction of the pipeline and extract non-economic,
extortionate payments by "holding out." The construction of the SAX pipeline, and the proposed
route of that pipeline, were found by the Commission to be reasonable and in the public interest.
Impasse situations such as these threaten to thwart those findings and Enbridge Illinois' ability to
complete the pipeline economically and efficiently and within the timeframe necessary to meet
contractual obligations.
26.
A principal reason for the impasse in obtaining easements for the tracts for which
eminent domain authority is sought is stalled legal negotiations.
Indeed, approximately 48
unsecured tracts belong to landowners represented by two lawyers who previously contested the
certification decision in Docket No. 07-0446 before the Commission and, unsuccessfully, on
appeal. Some 41 tracts, primarily in Livingston County, are represented by attorney Mercer
17
------------
Turner, who also represents landowners along the FSP route (Docket No. 12-0347). Despite
numerous proposals and meetings, agreement on valuations has not been reached with these
landowners as their counsel contends that a pipeline inherently causes substantial remainder
damages, a position Enbridge Illinois disputes. 6 Based on the FSP situation, it appears that
although condemnations will be necessary, both sides will seek expeditious resolutions via
cooperative procedures. 7 At least another seven tracts are represented by attorney Thomas
Pliura.
Enbridge Illinois' various fee-value proposals to the landowners of these tracts,
transmitted to them as well as counsel, have generally been ignored and/or rejected. No specific
counter-offers have been received other than demands to discuss extraneous matters.
27.
Another reason for the impasse in obtaining easements is opposition by certain
landowners to pipeline projects in general. That is, some landowners simply oppose the pipeline
project, regardless of any amount that might be paid for the easements or any other terms and
conditions associated with the easements, and regardless that their lands will not be burdened
without compensation.
28.
Impasse has also arisen because of a refusal by some landowners even to respond
to Enbridge Illinois' offers or to enter into any negotiations with Enbridge Illinois for easements.
Sometimes such refusals take the form of an express refusal to discuss any easement until
Enbridge Illinois obtains eminent domain authority. In other instances, the landowners simply
6
Enbridge Illinois expert witness Joseph Batis pointed out in his Reply Testimony in Docket No. 07-0446 that "[i]t
is not acceptable to conclude remainder damages exist without studying factual market data," and testified that based
on his study of such market data, "[i]t is my opinion there is no systematic and measureable negative impact to
remainder properties based upon the proposed permanent easements for the En bridge project." Reply Testimony of
Joseph E. Batis, MAl, Dkt. No. 07-0446, Enbridge Ex. 6R, February 4, 2008, at 5.
7
Because the FSP route traverses the same "Turner tracts" as the SAX pipeline and because FSP construction is
scheduled to start in August 2013, several FSP condemnation actions against these tracts have been filed and others
are under preparation. Negotiations to settle these cases have continued but so far have not reached agreement.
18
will not communicate with Enbridge Illinois in any way, whether by responding to direct and
certified mailings, telephone calls, or even on-site visits by Enbridge Illinois right-of-way agents.
29.
Finally, eminent domain authority may be required for 5 Luxor tracts because the
original easement rights on these tracts are insufficient to construct the new pipeline (e.g.,
insufficient workspace), and despite various negotiation efforts the tract owners have refused to
enter into upgraded easement with higher payments. 8
30.
As ICC Staff witness Mark Maple testified in the Docket No. 07-0446
proceeding, "the mere fact that the landowners and Enbridge cannot agree to the terms or prices
of the offers does not lead to the conclusion that Enbridge has not made reasonable attempts to
acquire the property." Maple Rebuttal Test., Dkt. No. 07-0446, ICC Staff Exh. 3.0, at 23. The
actions taken by Enbridge Illinois to obtain the agreement with landowners for the necessary
easements, including holding public forums, sending out informational literature, contacting
landowners or their attorneys by mail, using qualified and trained land agents to make face-toface contacts, basing offers on current market values as confirmed by updated market studies,
increasing the level of the offers to enhance the chances of obtaining easements by negotiations,
updating easement offers so that all landowners with easement agreements are paid on the same
basis, are reasonable and reflect good-faith negotiation.
31.
As shown, despite such good faith negotiations, Enbridge Illinois still faces a
sizeable number of "holdouts." As Peter F. Colwell, Emeritus Professor at the University of
Illinois at Urbana-Champaign and a recognized expert in the fields of real estate
valuation/appraisal and eminent domain, testified in the Docket No. 07-0446 proceeding, "[a]
holdout is a seller of property who tries to extract the gain of the buyer through an extreme
8
For example, one of the Luxor easements specifies that only a 10-inch pipeline is permitted. In other instances, the
pipeline, as noted, will need to traverse the tract in a different location than utlized by the CIPC!Luxor line.
19
asking price." Colwell Test., Dkt. No. 07-0446, Enbridge Ex. 4.0R, at 5. Professor Colwell
explained that holdouts present a particular problem for networks, such as an oil pipeline, that
"must connect to have value." !d. For reasons of efficiency, in terms of the use of land and
other resources, Professor Colwell testified that "these connections should be as straight as
possible." !d. at 6. The problem, according to Professor Colwell, is that as the assembly of a
network such as the SAX pipeline proceeds, "market power naturally gravitates to the ovmers of
segments of the network that are not yet assembled." !d. at 5. This is the situation in which
Enbridge finds itself today.
In these circumstances, Professor Colwell testified, "[e]minent
domain is a device that provides the assembler of the network some countervailing power to the
monopoly power that accrues to holdouts as a result of the nature of these network assembly
problems." !d. at 5-6.
32.
Construction of the SAX pipeline is scheduled to begin in August/September of
2014. The pipeline is scheduled to be in service in the second quarter of 2015. En bridge Illinois
also plans to perform some right-of-way clearing in March 2014.
Accordingly, for those
properties for which eminent domain authority has become necessary (all with landovmers who
had notice in the Docket No. 07-0446 proceeding that their property would be traversed by the
pipeline), it is essential that En bridge Illinois receive that authority by September
A grant of eminent domain authority by September
1st
1st
of this year.
would enable Enbridge to begin
condemnation proceedings, which once filed can take between 9- to 12-months in Illinois to
complete, as early as September.
Moreover, it is disruptive and not cost effective during
construction to skip over tracts on the route where easement rights have not yet been settled.
Accordingly, Enbridge Illinois must now seek condemnation authority to meet its schedules.
20
33.
Even as this Petition is filed, and even if condemnation authority is granted,
Enbridge Illinois will continue its efforts to reach agreement with landowners by negotiation.
Indeed, such efforts will continue even if condemnation actions have to be filed.
However,
landowners should not be permitted to blockade construction of the pipeline, found by this
Commission to be necessary and promote the security or convenience of the public, to extract
non-economic, extortionate payments by holding-out, or refusing to negotiate.
CONCLUSION
For the reasons stated above, the Petition of Enbridge Pipelines (Illinois) L.L.C. should
be granted and Enbridge Illinois should be authorized to condemn private property when
necessary to construct the Southern Access Extension Pipeline.
Specifically, authority to
condemn should now be granted as to the 148 tracts set forth in Attachment A to this Petition.
21
Respectfully submitted,
OF COUNSEL:
Joel W. Kanvik
Amy Graham Back
Enbridge Energy Company, Inc.
1409 Hammond A venue
Superior, Wisconsin 54880
(715) 398-4500
Gerald A. Ambrose
Dale E. Thomas
G. Darryl Reed
Sidley Austin LLP
One South Dearborn
Chicago, Illinois 60603
(312) 853-7000
Attorneys for Petitioner
By:
/s/ G. Darryl Reed
G. Darryl Reed
One of Petitioner's Attorneys
Dated: July 22, 2013
CHI 7840101 v.l
22
--
- - - - - - - - - - - - - - - - - -
VERJt'JCATION
CITY OF SUPERIOR
DOUGLAS COUNTY
STATE OF WISCONSIN
)
)
)
SS:
John McKay~ first being duly sworn upon oath, deposes and says that he is the Manager,
Land Services (U.S. Projects), of Enbridgc Energy. Limited Partnership. an affiliate of Petitioner
Enbridgc Pipelines (Illinois) l ,,L.C .; that he manages and directs the right~of-way acquisition
program for the Southern Access Extension pipeline project; [hat he is authorized to muke this
verification on behalf of Petitioner; and that he has read the above and foregoing Petition,
including the attachments appended thereto. and knows the contents thereof, and that said
contents arc true and correct to the best of his knowledge, intonnation, and beliet:
Sl JRSCRlRED AND SWORN
to before this_) ,q day of July, 2013
.....
..-.......__
-
CORISSA SElLV
Notal)' PuNc
Stitt of wttconstn
1
or 5
Enbrldge Pipelines (Illinois) LL.C
Landowner List
A·
A
TractNo
Tract County Owner
LIVinoston
Joan T. Bolen
~003
06-005
Livinoston
James W. Mackinson Trustee
00-007
Livinoston
James W. Mackinson Trustee
KJ€;-010
LIVingston
M & R Duffy Farms LL.C.
06-014
Livinoston
Michael W Francis
06-016-3
Livingston
Paul A. Russow
06-017
t ivinoston
Phillip J Duffy, Trustee
06-018
LIVingston
Ruth K. McCabe
00-019
Livinoston
Ruth McCabe
Livingston
P6-020
Joan M. Duffy
06-020-2
Steven G. Duffy
LivrnQston
06-025
Livinoston
Ted A Bauknecht
Livingston
Ted A. Bauknecht
06-027
06-028
Livinoston
Justin J. Stoller as Trustee
06-029
Livingston
M & R Duffy Farms L LC
LIVIngston
M & R Duffy Farms LLC
06-030
06-031
Uvinoston
Robert E. Carroll
Livingston
06-037-1
Jayme Wilburn
06-038
LivU"lQston
Farada}' J. Strock Trustee
100:_040
Lrvinaston
Paul D. Duffy
06-041
Livinoston
MIChael M. Duffy
Q§-042
Livingston
Michael M. Duffy
06-044
Livinqston
Julie A. Gleeson as Trustee
Livingston
06-045
Jeff E Barth
Michelle E KniQht
06-04$
Livinoston
Jean E. Cremeens
06-047
Uvinqston
Jeff E. Barth
06-048-2
Livingston
EliZabeth Anne Laughlrn
Ellen Lou1se D1naledrne
p6-049
Livingston
Elizabeth Anne Laughlin
Ellen Louise Dinoledine
06-050
Livinoston
Tracv L. Barth
06-051
LIVIngston
Sancken AQri-Resources Inc.
Address
6 Laure! Court
6 Laure! Court
6484 E 1600 North Rd.
230 Westwood Oaks Court
6 Laure! Court
6 Laure! Court
5413 Rolhng R1dge
5413 ROIIInQ RldQe
313 Apple Dnve
6484 E 1600 North Rd.
300 West Washmgton Street
1200 N Ma1n St Apt 5A
20681 N. 1500 Ea& Rd.
20681 N. 1500 East Rd.
19014 N. 1275 East Rd.
20200 N. 1300 East Rd
12076 East 1975 North Road
19014 N. 1275 East Rd.
215 E Washington St
215 E. Wash1nQton St
11368 Wa shw.gton Street
11368 Easl1900 North Road
11753 E. 1800 North Rd
11753 East 1800 North Road
15 west Front Street
19014 N. 1275 East Rd
19014 N. 1275 East Rd.
17583 N 1090 East Rd
1807 West Diehl Road
223 North Mrll Street PO Box 680
758 N. First Rd.
535 South Bluff
535 south Bluff
Citv
Pontiac
Pontiac
Pont1ac
Pontiac
Pontiac
Pont1ac
Pontiac
Pontiac
Pontiac
Pont1ac
Pont1ac
Pontiac
Pont1ac
El Paso
Pont1ac
Pontiac
Pont1ac
Naperville
Pontiac
Dana
South Beloit
South Beloit
Pontiac
lomahawk
Tomahawk
Metamora
Flanag_an
Washington
WashinQton
washington
Washington
Flanag_an
Kankakee
IL
IL
IL
ll
State
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
WI
WI
IL
IL
IL
IL
A ITACIIMENT A
61764
61764
61764
61764
61764
61764
61764
61764
61764
61764
61764
61764
61764
61738
61764
61764
61764
60563
61764
61321
61080-2238
61080-2238
61764
54487
54487
61548
61740
61571
61571
61571
61571
61740
60901
Zip
2of 5
Enbrldge Pipelines (Illinois> l.L.C
Landowner List
A
TractNo
Tract Countv owner
L ivt[lg_&On
The Bank of Pontiac as Trustee
96-051-4
Jay E Barth
LiVII"tQston
06-054
Livingston
06-055
Jay E Barth
06-056
LivinQston
Maurine KalkWart
06-057
Livingston
Jeffrey E. Barth
Jay E Barth
Living&on
06-059
LiVIQQ_ston
Allee M Raber as Trustee
96-061
L1V1ngston
Margaret Rose Kampfner
06-065
06-072
Uvtrgston
DEL-MAR-BVA Trust Agreement
C&C Trust No. 1 dated 1-6-1989 Soy captlaiBank
Livtngston
06-073
Ltvtng&on
Louis Bachman
06-078
06-079
Livingston
Louis R Bachman
Kenneth L Kuerth
P6-083-1
LivtOQston
b6-084
Livtngston
Debra S. Kuerth Trust
Joan K Widmer Life Estate
07-003
McLean
Mark Widmer
Robert Vv'idmer
Mclean
Larry D. Kiefer
P7-006
07-007
Mclean
Barbara J. Kiefer
107-012
Mclean
James M Ondeck
McLean
Residuary Trust under the Last WHI and Testament
~7-015
McLean
Monarch Farms LLC an Illinois Limited Liability
~7-016
Sarah H Butler Trust, Soy capit_al Bank and Trust
07-019
Mercer Turner as Trustee
McLean
07-021
McLean
Franklin J. Grusv
Duane E Guth
McLean
m-o22
P7-022-2
McLean
C&C Webber Pro~rties Inc. an Iowa Corporation
William A Freed Declaration ofT rust
~7-022-6
McLean
McLean
Wilham A Freed Declaration of Trust
P7-022-7
K)7-027
McLean
Freed Agricultural Service Inc. steve A. Freed
Freed Agricultural Service Inc steve A. Freed
Mclean
107-028
07-028-1
Bryan K. HoQgtns
McLean
McLean
Wendell Learned
107-031
07-035
Oswego Community Bank. as Trustee Trust #187
McLean
07-037
Mclean
Catherine Jordan Keller
Killian Farms, Inc
Mclean
107-038
Address
15691 North 600 East Road
6484 E 1600 North Rd
401 Webster Street
6355 E 1400 North Road
2415 East 28 Road
PO Box 1607
30 Crosswinds Court
30 Crosswinds Court
22777 E 31 00 North Rd
31594 N 2180 East Road
2025 East Lincoln Apt 2210
4 Ebach
4 Ebach Drive
707 Market St
RR#2 Box118 707 Market St
25358 N 1475 East Rd
1960 N 2200 East Rd
PO Box 1607
PO Box 1607
116 Boulder
305 E. 6th Street
804 Meadowlark Ave
1108 S Falmore Drive
1108 S Falmore Drive
26 Baypomt
1812 Cherry Road
302 W Main st.
RR 1 Box 349
Citv
46506
IN
61702
61704
61704
61744
61744
67101
61701
61701
61744
61744
61748
61752
61702
61702
61744
61744
61744
50583-1818
61753
61753
60067-7024
60067-7024
61753
61704
60543
61753
61776
60901
61740
61740
61740
61740
61740
61740
61740
ZIP
State
IL
IL
IL
IL
IL
IL
IL
IL
ll
IL
IL
IL
IL
IL
IL
IL
ll
IL
IL
IL
IL
IL
IL
Grid~
Gridley
IL
Gridley
IL
Sac City
lA
Lexiogton
IL
Lexington
IL
Palatine
IL
Palatine
IL
Lexington
IL
Bloomington IL
Oswego
IL
Lexington
IL
IL
Towanda
Kankakee
Flanagan
Flanagan
Flanagan
Flanagan
Flanagan
Flanagan
Flanagan
Bremen
Bloomington
Bloommgton
Bloomington
Gridley
Gridley
Bloomington
Bloomington
Bloomington
Gndley
Gridley
Hudson
LeRoy
Bloominaton
Bloomtngton
3of5
En bridge Pipelines (Illinois) L..LC
Landowner List
A
rractNo
ITract Countv owner
Killian Farms Inc
07-040
Mclean
AI Killian
Al Killran
Mclean
Tom Killian and Jean Killian Family Farm Trust
07-041
Tom Krllian and Jean Killian Famrty Farm Trust
07-043
Mclean
Tom Killran and Jean Killran Famrty Farm Trust
Timothy Krllian
07-044
Mclean
AI Killran as Trustee
07-045
McLean
AI Killian as Trustee
07-046
McLean
Doris J Grunloh as Trustee
Doris J. Grunloh
07-047
McLean
Leslie Dean Troyer
Mclean
07-048
AMB Holdrngs, LLC.
07-049
McLean
Kraft Farms LLC
kJ7-050
Mclean
Kraft Farms llC
07-051
Timothy C Kraft
Mclean
07-052
Mclean
William H. Hams Trustee
07-053
Mclean
William H. Hams Trustee
07-054
Mclean
Maurice E Jones Trustee
07-055
McLean
M and 0 Jones Farm rnc
'07-056
Mclean
M and 0 Jones Farm. Inc.
07-057
McLean
Carol K. Holstine
07-058
Mclean
Nina S. Armstrong, as Trustee
07-059
Mclean
Nma S. Armstrong, as Trustee
07-060
McLean
Nina S Armstrong as Trustee
07-060-5
McLean
Carla S. Temple Trustee
Carol K. Holstine
07-061
McLean
The Hinthorn Fam1tv Limrted Partnership "8"
07-062
McLean
The Robert J. Kmg Declaration of Trust dated 29th
07-063
McLean
Rosemary KlnQ, Trustee
07-064
McLean
JPR Family Partnership, L. P. and Patnc1a Kelley
07-066
Mclean
Korte Farm Partnership Trust
07-067
Mclean
Korte Farm Partnership Trust
07-068
Mclean
Kraft Farms LLC
07-069
McLean
Kraft Farms LlC
07-070
McLean
KraftFarms, lLC
s
Address
RR 1 Box 349
2138 E 2200 Nortn Road
28525 N. 2380 East Rd.
28525 N. 2380 East Rd
28525 N. 2380 East Rd
28525 N. 2380 East Road
RR 1 Box 349
RR 1 Box 349
20514 N 2150 East Rd
17792 E. 2200 North Rd
7357 Covington Home Place
426 South Frfth Street
426 South Fifth Street
21148 E 1900 N Rd
P.O Box412
P. 0. Box 412
18264 N. 2150 East Road
16264 N 2150 East Rd
16264 N 2150 East Rd
415 South 11th Street· PO Box 500
920 Johnson Road
920 Johnson Road
920 Johnson Road
415
11th St
415 South 11th Street PO Box 500
22720 E 1900 North Rd
17473 N. 2100 East Road
21024 E 1600 North Rd.
400 Oouq!as Street
400 Douglas Street
426 §outh Fifth Street
:itv
Towanda
Towanda
Towanda
Gridley
Gridley
Gndley
Gridley
Towanda
Towanda
Towanda
Towanda
Hudson
Culpeper
Springfield
Springfield
Towanda
Fairfreld
Fairfteld
Towanda
Towanda
Towanda
Nevada
Wadsworth
Wadsworth
Wadsworth
Nevada
Nevada
Towanda
Towanda
Normal
Normal
Park Forest
Park Forest
Sorinafield
SprinQfield
Springfield
IL
IL
IL
!l
!l
!L
!L
ll
ll
lA
!A
OH
OH
OH
lA
ll
IL
!l
VA
ll
!L
IL
VA
VA
IL
!L
State
ll
IL
ll
IL
JL
ll
ll
ll
IL
IL
Zio
62701
62701
61776
61776
61776
61744
61744
61744
61744
61776
61776
61776
61776
61748
22701
62701
62701
61776
24435
24435
61776
61776
61776
50201-0500
44281-9091
44281-9091
44281-9091
50201-3004
50201-0500
61776
61776
61761
61761
60466
60466
62701
Mclean
Mclean
Mclean
Mclean
Mclean
Mclean
Mclean
Mclean
Mclean
Dewitt
Dewitt
Dewitt
Dewitt
Dewitt
07-106
07-107
07-109
07-112
07-113
Q7-116
07-130
07-131
07-134
pa-015
00::025
PB-026
pa-.027
08-029
4of5
Mclean
Mclean
Mclean
McLean
Mclean
Mclean
Mclean
Mclean
Mclean
Mclean
McLean
Mclean
Mclean
Woolley I LLC. a WvomlnQ l.LC
Woolley I LLC. a W.,.ominQ l.LC
Daniel F Lay
V1ctor W Bittner
Weldon Trov Muli1ken & Barre B. Mulliken-Briaos
Darrell L Miller
Charles E Murptry
Marv Sue Murphy Martin
Midnight Sun Inc. VI
Midnight Sun Inc. VI
REH Family Farms Inc.
REH Family Farms Inc
Barbara J Washburn Trustee of Trust Number H-295
Maroot Y. Rudesill Trustee UTA dated 11/10/87
John L. BenJamin
Dorothv F. Beniamin Trustee VTAdated 11-27-1995
Mark Hines
Mark Hines
Monarch Farms LLC an Illinois Limited Liability
Mona1ch Farms LLC an Illinois Limited Liability
Mark Irving Andrews
Ronald l. Stark
Ronald L Stark
Kent Murphy
Founders Bank Trustee
Daniel Friant
Raymond Dean Prosser as Trustee
Jean Snvder Trustee
Betty Jean livingston
Frank E. Roop
Grworv B Roop
Heidi CRoop
Lisa M. Jones
William J. Jr. Roop
Tract County 0\Nfler
07-071
07-072
07-073
07-074
07-076
07-077
07-081
07-082
07-083
07-097
07-098
07-103
07-104
A
TractNo
.......
Enbridge Pipelines (Illinois) L.L.C
Landowner List
Address
5445 Half Round Rd
5445 Half Round Rd
19754 E 1300 North Rd
PO Box67
1264 N 1800 East Rd
7524 Carte Springs Road
5023 Nicklaus DriveN W
14550 Excelsior Blvd. Ste 202
14550 Excelsior Blvd Ste 202
24207 Ron Smith Hwy
15515 Dan Patch Dr
24207 Ron Smrth Hwy
POBox 405
1 Brickvard Drive Su1te 101
216 Fleetwood Drive
216 Fleetwood Dr.
319 Robin Hood Drive
608 Spring Brook Lane
4430 Mercer
302 W Main St.
15214 Strollwavs
2375 lntertackm C1rcle t'NV
2025 E. Lincoln Street Act. 1213
23236 E. 1100 N. Rd.
23236 E 11 00 N. Rd.
810 Karin Drive
302 W Main St.
3268 Blue Ridqe Road
3268 Blue Ridge Road
14497 John Humphrey Dr
Cltv
Lexington
Chesterfield
Cleveland
Bloominqton
Downs
Downs
Normal
Bloominqlon
Lexington
Briohton
Brighton
Downs
Orland Park
Minooka
Downs
Bloominaton
Bloomington
Bloomington
Downs
Rale1gh
Leander
Grand
Prairie
Oswego
Oswego
Shirley
Bloomington
Bloominqton
Heyworth
Wapella
Rochester
Minnetonka
Minnetonka
Hudson
Plainfield
Hudson
IL
IL
IL
IL
IL
IL
IL
MN
MN
MN
IL
ll
ll
IL
MO
TN
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
NC
TX
TX
State
60543
60543
61772
61704
61702-{)067
61745
61777
55901
55345
55345
61748
60544
61748
ZiD
61753
63017
37312-2235
61701
61736
61736
61761-3144
61704
99999
62012
62012
61736
60462
60447
61736
61701
61701-2027
61701
61736
27605
78641
75052
Macon
Macon
Macon
Macon
Christian
Shelby
Shelt:Jy
Shelby
Shelby
Shelby
Shelby
Shelby
Shelby
Shelby
Shelby
Fayette
Fayette
Fayette
Fayette
Fayette
Fayette
Marion
Marion
12-060-2
12-064-1
13-011
13-020
5of5
09-050
09-052
09-059
09-078-3
10-033
11-040
11-041
11-042
11-044
11-045
11-047
11-050
11-051
11-059-1
11-067
12-008-1
12-030
12-051
12-052
Edward Hoke
James D Roby
Beverly A. Gul1ck
R1chard D. Gulick
Brian S. Schwalbe Revocable Inter Vivos Trust
Jon B. Kraft
Luclile Bernice Hanks
Deborah F. Evans
Jason R Farmer
The Baker Family Umrted Partnership
M1chael R Evrley
Robert J. Beyers Trustee of the Regina E. ~yers
Robert J. Beyers Trustee of the Regina E Beyers
Robert J Beyers Trustee of the Regina E Beyers
Sharon Jean Morell
Daniel C. Beyers
Jeffrey J Witt
Kathleen A. KJein
William Patrick Schmitz
Donald Lynch
Wlliam R. Pearson
Rocky L. Kramer
The Charles E. Rhoads Family LIVing Trust
Allen Joe Radcliff
Clyde Austin Trustee and Carol Austin, Trustee
Clyde Austin
Clyde Austin
Clyde Austin
Randy A. Meyer
Mark Murfin Jr
Tract County O'Mler
Dewitt
Macon
Macon
Macon
Macon
A
08-039-5
09-037
09-040
09-041
09-047
TractNo
.Ill
Enbridge Pipelines (Illinois) L.L.C
Landowner List
Address
15515 Dan Patch Dr
5686 state Highway 10
1665 Quail Run
4303 W Center St
4660 McKinley Road
130 Southbrooke Ct
130 South Brooke Ct
5640 W Cantrell St
1190 S Joynt Rd
5456 W Rock Springs Rd
19 ShaW Court
15 N 2700 EAST RD
2217 Georgetown Drive
221 7 Georgetown Drive
2217 Georgetown Drive
31 N 1600 East Rd
107 V1ne Street
387 N. 1600 East Rd
RR3 Box294A
RR 3 Box 141C
1772 N 2525 E Rd
RR 1 Box 415
6965 Oleatha Ave
RR 1 Box 79
RR 1 Box 156
RR 1 Box 156
R R #i Box 156
R R #1 Box 156
18241 Irving Rd.
2168 Tank Farm Rd
Citv
Pla1nfield
Clinton
Prescott
Decatur
Decatur
Decatur
Decatur
Decatur
Decatur
Decatur
Macon
Pana
Chamooion
Champaign
Champaign
Pana
Rosamond
Pana
Pana
Pana
Pan a
Moweaoua
Herrick
StLouis
Brownstown
Brownstown
Brownstown
Brownstown
Brownstown
Witt
Vernon
ll
ll
IL
IL
IL
IL
IL
MO
IL
ll
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
!L
IL
IL
AZ
State
IL
IL
ZiD
60544
61727
86303
62522
62526
62521
62521
62522
62522
62522
62544
62557
61821
61821
61821
62557
62083
62557
62557
62557
62557
62550
62431
63139
62418
62418
62418
62418
62418
62094
62892-1808
ATTACHMENT B
SOUTHERN ACCESS EXTENSION PROJECT
ICC DOCKET NO. 07-0446
MAJOR DEVIATIONS FROM LUXOR ROUTE
Deviation
#
Deviation Name
Tabor Road Re1 Route
Approx.
Milepost
63.55
Approx.
Length
0.1
Deviation Rational
Avoid having to put the
new line below Luxor as
there is not sufficient
room to put it next to
Luxor under original
easements, avoid bore
pit in ditch and lower
elevation of pipeline
under road
Luxor
Tracts
Deviated
From
l
2
1-72 Re-Route
87.55
3.1
3
Decatur Landfill ReRoute
89.35
0.7
Better alignment for 1-72
crossing, reducing
residence impacts,
mostly Harristown.
Avoid developed area of
landfill, better alignment
crossing river, reduced
tree removal, avoid
ponds
92.05
0.1
Avoid home.
3
l
94.8
0.8
Better alignment to cross
Panhandle and REX
pipelines
l
98.25
1
Shorter route, adjacent to
road fewer bends
3
3.9
Avoid Reservoir. avoid
disturbance to weir, avoid
residential areas
27
4 Crackel Re-Route
5
Panhandle Re-Route
6
Suqoia Re-Route
7
Lake Pana Re-Route
8
Rudow Re-Route
9
Medley Re-route
Allen & Rouch
10 Reoute
120.95
123.4
Avoid residence, pond,
1 minimize tree removal
125.65
0.5
Avoid pond, avoid
substantial tree removal,
avoid proximity to
residence
133.35
0.5
Avoid 3 residences
22
1
l
2
------------------
ATTACHMENT B
SOUTHERN ACCESS EXTENSION PROJECT
ICC DOCKET NO. 07~0446
MAJOR DEVIATIONS FROM LUXOR ROUTE
11
Kramer Re-route
12
County Road 24 Reroute
13
Potter Re-route
14
Fayette Wells
15 Linn Creek Reroute
16
1-70 Reroute
17
Hickory Creek Reroute
18
Kruenegel farms
19
Marathon Triangle
135.625
Re-route around garage,
farther away from house,
0.25 try to get into farm field
With most tracts closed
opportunity to shorten up
1.3 the route.
Move line to not be under
water when Potter floods.
Keep line closer to
1.5 upland
138
140.75
142.5
7
0
Avoid Fayette wells,
need 1000ft setback
under current
regulations, was 400ft at
time of ICC Certification.
7
Avoid 2 residents, avoid
pond, shorter route, 6 of
1.25 8 closed
6
2
145.475
0
150.6
Avoiding new residential
area, more perpendicular
crossing of railroad and I
1 70, avoids concrete plant
9
155.3
Creek crossing more
perpendicular, shorter,
fewer trees removed
0
161
0.4
1 Avoid farm property
Avoid two crossovers
(which pose inherently
greater safety,
operational, and
maintenance issues) of
the two marathon
pipelines, shorten up
route. We had previously
1.7 acquired most tracts.
163.15
2
3
8
-
--
-
~----------------------------
ATTACHMENT C
00u9ta• e. Aller
Enllridv• tU.S 1 Inc.
t ~c~ H~l'l'f">>nd Av•n..o
Sus:-er~cr. \I'll ~aeo
T~II-FtN Bf6·331•3-li3
L~rd• & R-91>1· of·
UotRe;•·· us
-~~-1
..,_ •nb•oc.q•~:>et$ .:01"'
Re: Sourbcro Accw Extension Projecc ..-conl:~d by Enhc1d¥e rep~nt:.)ti""
De:u landoJwncr:
cnbritlge PIJWlines (Illinois) L.I•.C. ("'EnbriJI!!e··l is retumins work an the SoJutl\em Access Ex1ensiun
Proj~:~t. a pipeline prt.>j«t located in your an:a th:u Enbridse tempot:wily suspended. Wo are sending you thi$
l•tt.,r in :1d'~~·• of ;sn i::nbd.Jg~ repr~en1:uiv~ cont:lc:tin!J you by tcl~one cr in ~rsen. As ""<: resum.: tl:\'
Proj~t. w~ will N :~cquiring ca$emCOI$ from sl)me l:llldo\'\oncts ond. in some c:aus. updating en\·ironmclll:&l
and civil sur\·ey information in ordc.tr IQconfirm the proposed ruutt orrh~ pipeline 40d iu s~itic o.lignmc:nt
oo individualprupenies.
Th..: S<)uthem A.:ceS$ E:\lension Project i~ an ~~opproltim&loly 166-mile I\Jnl piptli~ that will C."<tcnd
Enbridge's c:T\Ide oil pipeline system from lu Flanog:m renninal n~r Pootiac, llliMis south to the m~jor
petroleum hub at Patoka. lllinuis Th~ pip.:lioe will b4 co~aed in the corridor appto~·cd by lhe llllnoi~
Com~JK"~"~;C Cummission in pi"OI;~edin" 07--446 And will iencrally parnUcl cxiSling pipeline and electric
transmission rights-of-wa~·. includini Enbridge·s existing right-of-w:~y. Subj~ to other pending regulaiOl)
oppro~111s . Enbrid§r:: antKipat~:s bc&inning co~tNction U. mid-201-J, wid1 dw pipeline' in $ervicc in 20 IS.
lo mo~t c:1~cs, Enbridge reproscruali,.es will ~umc discussions with lanJuwael"$ w:~d upd~Us: info~tion
~:nhc:rcd pre"·iously. For prop•my QW~onr;rs whiJ arc new or who v.erc oot pan cf those oriJinal diS(uS5ions.
EnbriJge represent:uives will prOI.'icH tllem witb PJ')~Ct inf~Xma,iun ~ ~swer their question~. A..:quiring
the rcmnining e~$<:rncnu needed
the Project and updacing intbrmution is an impon;mt pan or che procl!ss
r.,r
of rc...:ontinnins rhe pipelin~ Ntlh!. B:ued on the updated inf\lrm~tion, """ cnn icHntjfy 3ny new community,
tnviroomenul or lundo .... ner-sp.:citic: ~ue• to:~ oni11t Project pbnnen in minimiziDJ Oldvcrse im~u IQ
landowner~ nt~d
lhc c:nvirQIJmc:nt.
Information about the
'""'w ..:nbriJgc.ctlm. In
~<lmmcnf~.
Svuth~m A~:c~sl htc:nsiun Projo:ct will ~ availabl.! on the: Enbridje websire .-c
1hc me:~ntim~. ple-:lse feel free to ..:onucr us at {866) JJ1-J.,9J with any q~H5tWtt:i or
ATTACHMENT D
February 8, 2013
(Prefix] (First Name)
[Address 1)
[Address2)
(City}, (State} IZipl
RE: Southern Ac:cess 'Extension Pipeline ProJect Open Houses
Dear Sal. last Name:
As you are aware, Enbridge Enersv Company, Inc., thrcuah Its affiliate Enbrtdse Pipelines (Illinois) L.L.C.,
!together with Enbrldge Enersv Company, Inc., "Enbrid&e") Is proposlns to expand Its pipeline system by
building the Southern Access Extension Pipeline Project ("ProJect")- a 165-m lie crude oil pipeline that
wiU orisinate at Enbrldge's Flanagan Terminal near Pontiac, Ill. and terminate at a majOr refinery hub
near Patoka, Ill.
This Project Is Enbr1dge's response to market demands for Increased access to growing volumes of oil
from North Dakota and western Cilnada. The Project 1$ approved 11;1c up to 361.-.;tie~ In diameter;
/'lowever, the final c~paclty and diameter won't be finalized untU the transporutlon needs of shippers
have been determined throurh commercial open seuons.
As part of Enbrldge's initial outreach for the ProJect, the company 1$ hostJns tflree open houses alons
the route. The times ;wnd rocatlons are as follows:
funo'pv. E«btyqrv26 • S;OO- Z;31J PM
Yandaii-.IL.
WdniJdm kbrvqryll • I:DD-l.;JO.PM
Decatur, IL.
Vandalia Oays Inn Hotel
1920 Kennedy Bou~vacd, Hwy St;~~nd 1-70,
Vandalia, IL 62471
Decatur Conference Center and Hotel
4191 US .36 West (Wyckles Rd.)
Decatur, IL625l2
Thursdgv. FDM!ry ZB • 5:00- 7:30PM
Sloomintton, IL
Bloomington Chateau Hotel & Conference
center
1601 Jumer Drive
8/oomlfllton, IL 61704
landowners and the public may attend these wme·and-eo open houses ilt any time betweeo 5:00p.m.
aod 7:30 p.m. Attendees will be able to view maps and displays, meet ltroject team members, ask
question~
and comment on the rollte.
If you have any questions about the open houses, or anythll18 about the pro}ect, ple11se contilet me.
Slncerely,
Richard Xem
Right of Way
Enbrldge Enersy Company, Inc.
Phone: 1·855-714-8373
E-mail;
r1ch 1 11tm!!tn~rldgtu;om
ATTACHMENT E
En bridge Pipelines (Illinois) L.L.C.
2535 Millikin Parkway
Decatur, Illinois 62526
May22,2013
VIA CERTIFIED MAIL AND FIRST CLASS MAIL
RE:
OFFER TO PURCHASE PERMANENT AND TEMPORARY EASEMENT
rNTERESTS FOR A PIPELINE RIGHT-OF-WAY·· PROPERTY TRACf
NO. FP·'
Dear
As you are aware from previous communications nnd negotiations, Enbridge Pipelines (Illinois)
L.L.C. -· "Enbridge" --wishes to purchase pennanent and temporary easement interests in your
property located in
County, rllinois, (Enbridge Tract No. FP-·
.). These interests are
sought for tbe construction of a new pipeline known as the ftSouthem Access Extension Pipeline."
Our records indicnte that in the period of 2008-2010 Enbridge right-of-way agents communicated
Enbridge's interest to you and offered to purchase the necessary property interests.
As background, in July 2009 Enbridge received authorization from the Illinois Commerce
Commission (ICC) by its Order in Docket No. 07~0446 to construct, operate, and maintain the
Southern Access Extension Pipeline. The route approved and authorized for the pipeline will travel
from Enbridge facilities near Pontiac to a petroleum storage and pipeline interconnection facility
in Patoka (the "Patoka Hub"). The route for this pipeline crosses your property. The pipeline will
transport crude petroleum from western Canada and North Dakota to American refineries.
Implementation ofthe authority granted by the ICC was deferred due to various fac.:tors, including
legal and economic challenges. The legal appeals and challenges to both the Commission's
authorization decision and other Enbridge rights were finally resolved in Enbridge's favor only io
2011. The national adverse economic conditions lasting from 2009 to 2011, as well as petroleum
industry reorganizations and uncertainties, also worked to defer the proj~t. As these adverse
economic influences have waned. increased North American crude production and refinery
demund have mnde completion of the Southern Access Extension Pipeline essential to meeting
public nel:!d tor refined petroleum products nnd enhancing national energy security and
independt:nce. AC(:Otdingly, Enhridge is proceeding with construction of the pipeline, as approved
by the ICC, with the intention of placing it in servi~e by mid-2015.
To achieve that goal, Enbridge needs to ncquirc eosement interests in tracts along the pipeline route
in which it does not have e;oo;.isting right-of-way rights. To that end, Enbridge makes this offer to
you in the total amount of$
·to purch11se the requisite permanent and tempor.1ry casements.
As with Enbridge's previous offer(s), Enbridge has based this offer on a professional market
analysis of current property values in Macon County tor properties such as yours. This offer is
May 22,2013
Pag(> 2
based on the highest value shown by this analysis for a fee interest even though Enbridge seeks
only easement interests. Easement interests by definition are ofless value than the fee of a propt:rty.
Please note that while the pt!rmanent easement areas are valued at fee; tt:mporary workspace areas
are vall1ed essentially as land rentals. Although the temporary workspace i~ similar to a land rental,
it is valu<d at 50% of the fcl."! value of the nec\!ssary acreage (land rentals generally are I O~·o-15%
of ft-e). In addition to the compensation produced by calculating pcnnanent und temporary
easement figures as just di!Scribed. Enbridgc's ubovc·stated offer includes an additional bonus
payment of 25% of the fee value tor the easement. This bonus is included as an inducement to
your acceptance of this offer. For your convenience, a Calculation Sheet is included with this
letter; it shows the determination of the components of the total offer of S
. Please be
advised that the total ot1er is a unitary otTer tor the full compensation of all persons having an
inti.!rest in the property addressed hcrein. If more than one person has an interest in this propeny,
8Uch persons may agree among themselves on any division of the total amount offered.'
A..:companying thi:> letter for your attention and evaluation an: the following documents: ll) An
Alignment Drawing showing the pennancnt casement area and any temporary workspace beyond
the permanent easement area itself required in your property; (2) A "Right-of- Way and Easement
Grant" that sets forth the respective rights and duties of you as the landowner, referred to as the
"Grantor," and Enbridge as the casement owner, referred to us the "Grantee," the attached drawing
describes the strip ofland that will be the pipeline "Right-of-Way'' (the permanent easement area)
and "T ~mpornry Work Space (TWS)" granting En bridge the temporary use of the designated an~a
needed tor constl-uction of the new pipelim: (TWS rights expire upon construction of the pipeline
and restoration of the easement areas substantially to their pre-construction condition; this process
requires uppro:dmatdy one year); nnd (3) A copy of the "A!,'l'icultural Impact Mitigation
Agreement'' entered into by Enbrldge with the Ulinols Department of Agriculture to specify
applicable constntction, impact mitigation, and restoration requirements for the proj~ct.
It is Enbridge's earnest hope that you will find this offer acceptable and will agree to execute the
agreements enclosed herewith. Enbridge believes that this otTer is the best and most reasonable il
can m<tke for the interests being sought in your property and, absent persuasive data contradicting
irs anulyse:;, does not intend to make higher ofters. Of course, Enbridge is willing to discuss any
and all aspects of this propo~al with you and to address ruty questions and concerns you mny have.
Accordingly. this offer will rem<:~ in open for the next fourteen ( 14) days until the close of business
on Juni.! 5, 2013. tfyou WOllld lik\! lO disrJI!;S this otl'r.r r~mlior any of the included materials, please
~on tact our Right-of- Way agent
: al (
)
Any reasonable counter-proposal
will be brought to my immediate attention and given the most serious consideration. However,
given the schedule r~ferenced above, Enbridge needs to moo:c expeditiously ns time is critical tn
us. Absent your accc...-pllmce of the proposal made herein or agreement with you on some variation
· Please no1~ thai in addhion 10 tho:: Iota! (.'Ompen:mHOII dc~rib.:d above. Enbrid!IC: will pny for MY damages lo the
propc:n)' incurred during 1h~ pipclin..:·s. co•~1rucLion, induding fhr rr:pair replacement of drain tiks if netessar:--. as
wo:ll as during sub~uent opemri,,n.·rnainr.:nanl~:jnsjX•c!ion·elc. proc~dures. In Bddilion. Enbridt'e ~ill compeu~te
you t\1r crop los~~j. upon presema1ion of uc1u:.J yidu and u1luc Jatn. ~r the fol!owing fonnula: Ye01r of CUIJ:ilrtK:Ilon
'· !1)() ~; ftrst ~ubs.:quent y.:ur ·' ~s~.; :te\:Qnu ~ub~<:qucm y.:ur ··- 50u·o: lhir\1 sutos~:queo\ :rrt:ur ~ 2:;•;.,; dt~rc-4fl~r ~r
J,,,·um~m~"'..los> Yuu may .-l.:ct lv r~ehe the ro1~1 c~rima1e with the acccptMce of !his l)fT~'I' or dd..:r .:rop-los$
Cl'nlf>"!ll';Hinn to the tblur,.
6
May 22,2013
Page3
by the date stated above, Enbridge will assume that our good-faith and reasonable negotiations
with you have not succeeded. We will then assess other options, which may include petitioning
the ICC for eminent domain authority as discussed in the 2009 Order.
Thank you for your attention to this. We look forward to the favor of a prompt response.
Sincerely yours,
/LJW7
John McKay
Manager, Land Services (US Projects)
cc:
October 11, 2013
Enbridge Illinois Pipelines (Illinois) L.L.C.
Petition Pursuant to Section 8-509 of
the Public Utilities Act to Take Private
Property as Provided by the Law of
Eminent Domain.
:
:
:
:
:
:
13-0446
ADMINISTRATIVE LAW JUDGE’S RULING
This ruling by the Administrative Law Judge is issued with respect to the “Motion to Deny
and Strike Pliura Petition for Intervention” (“Motion”), filed on behalf of Enbridge Pipelines
(Illinois) L.L.C. (“Enbridge Illinois”) on August 30, 2013. A response (“Response”) opposing the
Motion was filed by “Pliura Intervenors” on September 30, 2013. A reply to the Response was
filed by Enbridge Illinois on October 7, 2013.
In the Commission’s Order in Docket No. 07-0446, Enbridge Illinois was issued a
Certificate of Good Standing, pursuant to Section 15-401 of the Common Carrier by Pipeline
Law, which is part of the Public Utilities Act (“PUA”), authorizing it to construct a pipeline and to
operate as a common carrier by pipeline over a route described therein. The Order also found
that the proposed pipeline was necessary, and should be constructed, to promote the security or
convenience of the public, pursuant to Section 8-503 of the Public Utilities Act.
In its petition in the In the current proceeding in Docket No. 13-0446 (“Enbridge Petition”),
Enbridge Illinois states that easement rights for most tracts on the route have been obtained, but
that it still lacks easement rights for the 141 tracts owned by persons identified in Attachment A
to the Enbridge Petition. Enbridge Illinois is seeking, with respect to those 141 tracts, an order
under Section 8-509 of the PUA enabling Enbridge Illinois to proceed with a condemnation
action before the courts “in the manner provided for by the law of eminent domain.”
A single Petition to Intervene was filed on behalf of persons sometimes referred to “Pliura
Intervenors” or “Pliura Petitioners.” The 63 Pliura Petitioners are listed in Schedule A to the
Intervening Petition. The list includes, but is not limited to, some of the owners of the 141 tracts
listed in Attachment A to the Enbridge Petition.
In its Motion, Enbridge Illinois objects to intervention by those Pliura Petitioners who are
not owners of any of the 141 tracts that are the subject of the Enbridge Petition filed pursuant to
Section 8-509. Enbridge Illinois argues that those petitioners have not shown a sufficient
interest to entitle them to intervene in this proceeding or identified issues that are relevant to a
Section 8-509 proceeding, and that their apparent efforts to treat the current Enbridge Petition
as also being subject to Sections 8-503 and 15-401 reveals an intent to go beyond the proper
issues in a Section 8-509 case. Pliura Petitioners respond, in part, that they each have an
enforceable or recognizable right to their individual properties that are in or near the route and
will be adversely affected by the pipeline.
In its Motion, Enbridge Illinois asserts, among other things, that its pre-existing easement
rights have already been affirmed in the federal courts with respect to 37 tracts owned by 28
landowners who now seek to intervene in the current proceeding. Enbridge is not seeking
Section 8-509 relief for those tracts. Enbridge Illinois argues that Pliura Petitioners should not
13-0446
be permitted to avoid or relitigate the validity of Enbridge Illinois' rights in those tracts in the
current proceeding. In their Response, Pliura Petitioners do not directly respond to Enbridge
Illinois’ arguments with respect to those parcels, other than with general comments.
It is observed in this ruling that it is not the purpose of the current proceeding to provide
an opportunity to relitigate issues already decided in the federal courts, or an opportunity to
avoid those decisions, and that a desire to do so is not a sufficient basis for intervention.
In its Motion, Enbridge Illinois also states that at least 12 of the landowners who own 18
tracts listed in Schedule A to the Pliura Petition have in fact reached easement agreements with
Enbridge Illinois. In their Response, Pliura Petitioners do not directly respond to this contention.
Upon a review of the arguments of the parties, it is hereby ruled that the Motion to Deny
Intervention is granted with respect to those Pliura Petitioners who are not subject to the request
for authorization to utilize eminent domain pursuant to Section 8-509 of the PUA. That is, the
Motion is granted with respect to those Pliura Petitioners who are not on the list attached to the
Enbridge Petition as Attachment A.
As noted above, Enbridge has already been issued a Certificate for the project in Docket
No. 07-0446. There were numerous issues addressed by landowners and others in that
contested proceeding. The Commission’s decision was upheld in the Appellate Court.
The scope of a proceeding under Section 8-509 is more narrow, as reflected in Section
8-509, prior Section 8-509 proceedings and Orders, and the Order in Docket No. 07-0446.
Those Pliura Petitioners who are not listed in Attachment A to the Enbridge Petition are not
subject to the Enbridge Petition. The Enbridge Petition does not seek any relief with respect to
them or their parcels, most of which involve easement rights which have been resolved by the
federal courts or by agreements with the owners as observed above. With regard to those
landowners who are not listed in Attachment A to the Enbridge Petition, the blanket assertions
by Pliura Petitioners in their Intervening Petition and their Response to the Enbridge Motion do
not support a conclusion that the issues discussed therein fall within the scope of this Section 8509 proceeding.
Signature and Verification
The Intervening Petition filed on behalf of Pliura Petitioners is not signed by the persons
seeking to intervene. It is signed and verified by attorney Thomas Pliura.
In its Motion, Enbridge Illinois argues that the Intervening Petition filed on behalf of Pliura
Petitioners is defective because it is not verified by each party named in the petition. Enbridge
states that while the petition is verified by attorney Thomas Pliura, Section 200.130 of the
Commission’s Rules of Practice requires that the contents be verified by each party.
In their Response, Pliura Petitioners argue that one reasonable interpretation of Section
200.130 is that the Petition must be signed and verified by either the party or the party’s
attorney. Pliura Petitioners state that in Docket No. 07-0446, petitions to intervene filed by the
Pliura Intervenors contained the verification of Counsel, not the individual petitioner, and
Enbridge Illinois did not object.
It is noted in this ruling that the individual petitioners in Docket No. 07-0446 did sign the
petitions to intervene.
Section 200.130, “Signature and Verification,” provides in part, “The original of every
pleading filed with the Commission shall be signed by the party filing the same or by an officer,
agent or attorney therefor … . The contents of all formal complaints, petitions, applications,
petitions to intervene, supplemental formal complaints and supplemental petitions shall be
verified by the filing party before a notary public”.
2
13-0446
Enbridge also asserts that the Intervening Petition fails to establish that any of the
persons listed in the attached Schedule A are in fact represented by attorney Thomas Pliura for
purposes of this proceeding. Enbridge Illinois provides examples of “Pliura Intervenors” who
may, according to Enbridge Illinois, be represented by a different attorney.
With respect to those Pliura Petitioners who are listed in Attachment A to the Enbridge
Petition, it appears that a concern of Enbridge Illinois is uncertainty over whether Dr. Pliura does
in fact represent the persons named in the Intervening Petition. Given these concerns, to which
there was no direct response, those Pliura Petitioners who are on the list in Attachment A of the
Enbridge Petition are given until November 1, 2013 to file amended petitions to intervene that
are signed by each filing party seeking to intervene. The filings shall be verified by each
petitioner, or their attorney. In the meantime, they will continue to be permitted to participate in
the proceeding. This procedure does not apply to those filers whose requests to intervene are
denied in this ruling above. Whether or to what extent verification by the filing party is expressly
required by Section 200.130, as opposed to the filing party’s attorney, is a question that is not
reached in this ruling, and no presumptions are created with respect thereto.
3

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