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The Rural Voice, 2000-04, Page 64A. Agrilaw Pipeline puncture — who is liable? By Paul G. Vogel Landowners with energy pipelines crossing their property must be concerned about their potential liability for damages caused by them or their agents resulting from a pipeline puncture. Both under their easement agreements with pipeline companies and by virtue of federal and provincial legislation, when carrying out work in the vicinity of pipelines on their property. landowners may be subject to notice obligations or require the consent of the pipeline company before undertaking excavation in the vicinity of the pipelines. These obligations, limitations on property rights, and resulting potential liability are becoming of increasing concern to pipeline landowner organizations. Where a pipeline is ruptured during the course of excavation by a landowner or his agent, is the landowner, the agent or the company responsible for the resulting environmental damage and cleanup costs? An Ontario court was required to consider this issue in a case where the contractor, employed by the landowner to clear trees and brush from his property, punctured a pipeline with the bucket teeth of his front-end loader while pushing stumps and brush across the pipeline easement resulting in the release of 100,000 litres of gasoline. The pipeline company sued the landowner and the contractor for the significant cleanup costs and the value of the gasoline alleging that they had been negligent in failing to first obtain "a locate" of the line before undertaking the work in question. While the impacted pipeline had been constructed more than 30 years earlier with a design requirement of 24 inches of cover, at the time of this incident, pipeline cover at the point of rupture was only two or three inches. On the evidence adduced at trial, the Court determined that the company was aware of the insufficient cover as a result of a probe investigation conducted at the property three years earlier in 60 THE RURAL VOICE connection with other work carried out by the landowner. At that time, the company had, in fact, lowered 100 feet of the pipeline to a depth sufficient to establish the required cover and had advised the landowner's wife that the remaining line, including the point of puncture, would be lowered. This work was never completed. With respect to the alleged negligence of the landowner or the contractor in failing to obtain "a locate", the Court determined that. had the pipeline been at the required depth, the work undertaken was no of a type that could reasonably have been expected to interfere with the pipeline. In any event. the court held that the cause of the pipeline puncture was not the failure of the landowner or contractor to locate the pipeline because the location of the pipeline was already well -marked on the property and was known to both defendants. The court concluded that the sole effective cause of the damage to the pipeline was the negligence of the pipeline company because, while the pipeline company knew that the pipeline lacked sufficient cover at various locations along its route, the company failed to warn the public but chose to deal with problems as they arose. With respect to the particular property involved in this case, the company had specific knowledge of the insufficiency of cover. In dismissing the company's claim against the landowner and contractor in this case, the Court stated: "The work undertaken by the contractor ... on the ... property, while it did entail the use of mechanical equipment, was qualitatively and quantitatively a surface project. It was not digging, boring, trenching, grading, excavating or breaking ground Landowners must be careful working around pipelines on their property with mechanical equipment. The fact that there was incidental intrusion into the ground does not alter this characterization of the work. Therefore, there was no requirement on the part of (the owner) or (the contractor) to contact (the pipeline company) in accordance with ... the Energy Act. Accordingly, the allegation of negligence against (the contractor) and (the owner) must fail. (The company) owed a duty to take reasonable care in locating its pipeline at a safe depth. (The company) was negligent in that it failed to bury the ... pipeline at the rupture site at a depth of 24 inches or more when the pipeline was first laid. It failed to do so ... when it was laying the second pipeline ... It knew or ought to have known that the pipe was not buried to a depth of 24 inches but was much closer to the surface. It again failed ... to lower the pipeline to a safe depth when it knew or ought to have known that that its pipeline was not at a safe depth based on specific information concerning the depth of its pipeline on the (landowner's) property. It failed to inspect its pipeline on the (landowner's) property at this time or to warn (the landowner) of the situation. It failed to relocate its pipeline at a proper depth of 24 inches or deeper when it knew or ought to have known that failure to do so could result in damage to the pipeline or to others." In the event of the pipeline rupture, it is clear from this case that the issue of the potential liability for damages of the landowner or his contractor will very much depend on the particular facts of the case and the respective responsibility of the parties for the circumstances giving rise to the damages. Landowners concerned about their potential liability should ensure that they are aware of the requirements of their easement agreements and relevant regulatory restrictions.0 Agrilaw is a syndicated column