{"operation":"document","citation":"CPF 120135018","title":"PRODUCTS (SE) PIPE LINE CORPORATION — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2013-08-19","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.410(a), 195.567(c).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120135018.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120135018.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120135018","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120135018","body":"Notice of Probable Violation involving PRODUCTS (SE) PIPE LINE CORPORATION. PHMSA's enforcement data identifies the cited regulations as 195.410(a),  195.567(c). The case was opened on 2013-08-19 and is reported as closed as of 2015-06-10. Proposed civil penalty: $57,600. Assessed civil penalty: $57,600. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120135018_Final Order_05222015.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120135018/120135018_Final%20Order_05222015.pdf\n\n120135018_Final Order_05222015_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120135018/120135018_Final%20Order_05222015_text.pdf\n\n120135018_NOPV PCP_08192013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120135018/120135018_NOPV%20PCP_08192013_text.pdf\n\n120135018_NOPV_PCP_08192013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120135018/120135018_NOPV_PCP_08192013.pdf\n\n120135018_Operator Response_09172013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120135018/120135018_Operator%20Response_09172013.pdf\n\n120135018_Final Order_05222015_text.pdf\n\nMay 22, 2015\nMr. Ron McClain\nPresident, Products Pipelines\nPlantation Pipe Line Company\nKinder Morgan Energy Partners, LP\n1001 Louisiana St, Suite 1000\nHouston, TX 77002\nRe: CPF No. 1-2013-5018\nDear Mr. McClain:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a civil penalty of $57,600. The penalty payment terms are set forth in the\nFinal Order. This enforcement action closes automatically upon receipt of payment. Service of\nthe Final Order by certified mail is deemed effective upon the date of mailing, or as otherwise\nprovided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Byron Coy, Director, Eastern Region, OPS\nMr. James Hotinger, Virginia State Corporation Commission\nMr. Jim Fisher, Virginia State Corporation Commission\nMr. Wayne Simmons, Vice President, Operations, Plantation Pipe Line Company\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\n)\nIn the Matter of )\n)\nPlantation Pipe Line Company, ) CPF No. 1-2013-5018\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nOn September 13, 2012, pursuant to 49 U.S.C. § 60117, a representative of the Virginia State\nCorporation Commission (VA SCC), as agent for the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA), Office of Pipeline Safety (OPS), conducted an on-site pipeline safety\ninspection of the facilities and records of Plantation Pipe Line Company (Plantation or\nRespondent) in Roanoke, Virginia. Plantation is a subsidiary of Kinder Morgan Energy Partners,\nLP, and operates approximately 3,100 miles of pipeline transporting refined petroleum products\nfrom Louisiana to the Washington, DC area.1\nAs a result of the inspection, the Director, Eastern Region, OPS (Director), issued to Respondent,\nby letter dated August 19, 2013, a Notice of Probable Violation and Proposed Civil Penalty\n(Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that Plantation\nhad violated 49 C.F.R. §§ 195.410(a) and 195.567(c) and proposed assessing a civil penalty of\n$57,600 for the alleged violations.\nPlantation responded to the Notice by letter dated September 17, 2013 (Response). The\ncompany contested the allegations, offered additional information in response to the Notice, and\nrequested that the proposed civil penalty be reduced or eliminated. Respondent did not request a\nhearing and therefore has waived its right to one.\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.410(a), which states, in\nrelevant part:\n1 http://www kindermorgan.com/business/products_pipelines/plantation.aspx (last accessed Nov. 24, 2014).\n\n\n\nCPF No. 1-2013-5018\nPage 2\n§ 195.410 Line markers.\n(a) Except as provided in paragraph (b) of this section, each operator\nshall place and maintain line markers over each buried pipeline in\naccordance with the following:\n(1) Markers must be located at each public road crossing, at each\nrailroad crossing, and in sufficient number along the remainder of each\nburied line so that its location is accurately known. . . .\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.410(a) by failing to place and\nmaintain sufficient line markers to accurately know the location of each buried line.\nSpecifically, the Notice alleged that at the time of the VA SCC inspection, Plantation failed to\nhave a sufficient number of line markers over the buried pipeline so that its location could be\naccurately known at two locations: in uncultivated pasture land near Retreat Road and Crooked\nOak Road in Franklin County, Virginia. Photographs and descriptions of the locations that\nallegedly did not have sufficient line markers were included as Exhibit A-4 (Retreat Road) and\nA-5 (Crooked Oak Road) in the Violation Report.2\nIn its Response, Plantation contested the allegations, stating that there were adequate pipeline\nmarkers at the road crossings for Retreat Road and Crooked Oak Road, and submitted\nphotographs of these markers. For Retreat Road, Respondent provided a Google Earth\nphotograph from May 2012, which showed a pipeline marker at the road crossing.3 While it is\ntrue there was a marker at the road crossing, as expressly required under § 195.410(a), it is not\nresponsive to the allegation that there were insufficient markers off the public road and across\nthe pasture to ensure that the location of the pipeline was accurately known.\nPlantation also provided a photograph of the same pasture that was taken after the VA SCC’s\ninspection, showing two pipeline markers: one that was in place at the time of the inspection and\none that was installed following the inspection.4 Again, this does not demonstrate that the\nlocation of the pipeline could have been accurately known in the pasture without the marker that\nPlantation asserts was re-installed subsequent to the inspection.\nFor the location at Crooked Oak Road, Plantation provided a photograph taken on the date of the\ninspection, showing a line marker at the road crossing.5 However, evidence of a line marker at\nthe road crossing again fails to rebut the photographic evidence in the record that there was an\ninsufficient number of line markers along the buried pipeline in the pasture near the road to\nensure that its location could be accurately known to an observer.\n2 Pipeline Safety Violation Report (Violation Report), (August 19, 2013) (on file with PHMSA).\n3 Response, at 3 (Figure No. 1).\n4 Id., at 5 (Figure No. 3). According to Plantation, the marker that was subsequently re-installed “had been knocked\ndown in the brush next to it from farming activities conducted in the pasture. The downed line marker was\ndiscovered in the brush by the Kinder Morgan employee immediately after he installed the new line marker.”\nResponse, at 2-3.\n5 Id., at 4 (Figure No. 2).\n\n\n\nCPF No. 1-2013-5018\nPage 3\nPlantation provided a second photograph that the company contended showed “numerous\npipeline markers that were already in place at the Crooked Oak Road location,” as well as one\nmarker that was added after the inspection.\n6 In this photograph, there is only one marker visible\nin the pasture, which Plantation admits was installed after the VA SCC inspection. In contrast,\nthe photograph that was taken by the VA SCC on September 13, 2012, shows that there were no\npipeline markers in the pasture at that time and that the location of the pipeline in the pasture\ncould not be accurately known after it left the road crossing.\nI would also note that in a letter to the VA SCC dated October 15, 2012, Respondent\nacknowledged that “Kinder Morgan agrees that out of the numerous locations observed during\nthe field review of the BRK pipeline, two locations were noted as missing line markers to see\nacross the crestline of ridges in pastures” during the VA SCC’s field inspection.7 Therefore,\nthere seems to be no dispute that in the two instances cited in the Notice, it was impossible for an\nobserver to discern the location of the pipeline from the road crossings across the crestline of\nboth pastures.\nIn its Response, Plantation also stated that the pastures in question were in farm use and “in the\npath of heavy mowing/farming equipment.” Plantation argued “it is extremely difficult to\nmaintain pipeline markers when subject to heavy mowing equipment as on these two pastures.” 8\nThis may well be true, but the fact remains that the company had previously installed a marker at\nthe Retreat Road location and that it had apparently been knocked over and later replaced. This\nshows that Respondent apparently believed a marker was needed at that particular location to\nproperly identify the route of the pipeline.\nIt may be difficult in such situations for an operator to properly maintain its markers, and this is\nwhy all operators are required to frequently patrol their lines to assess conditions along the right-\nof-way and to find out whether their lines have been damaged or are threatened. It is also why\nprudent operators frequently take precautions such as installing bollards or other physical means\nof protecting line markers from cattle, farm equipment, or similar threats that can damage or\ndestroy critical facilities. Only by regularly patrolling and checking its line markers, by\ncommunicating with landowners and community members, and by taking precautions to protect\nits equipment can an operator ensure that the pipeline’s location is accurately known and that its\nright-of-way is properly maintained.\nFinally, Plantation argued that the alleged violation was based on the enforcement of PHMSA’s\n“line of sight” standard, i.e., the concept that when standing at one line marker, another is visible\nin each direction, and argued that the “line of sight” standard is unenforceable because it does\nnot appear in the regulation and “has not gone through the due regulatory process.”9\n6 Id., at 6 (Figure No. 4).\n7 Violation Report, Exhibit A-2. The October 15, 2012 letter does not indicate which two locations were missing\nmarkers, but apparently they were the same ones cited in the Notice.\n8 Response, at 6.\n9 Id., at 8.\n\n\n\nCPF No. 1-2013-5018\nPage 4\nIn 2008, PHMSA began re-examining the “line of sight” test used by some inspectors to check if\nmarkers were sufficient in number. The test had been used primarily at cultivated agricultural\nfields and valve sites. An inspector would stand at a valve site or at one end of a cultivated field\nand observe whether the operator’s next line marker could be seen when looking in both\ndirections. Between 2008 and 2011, however, PHMSA withdrew several alleged violations of\n§ 195.410 where “line of sight” was the stated basis for the alleged violation.10 PHMSA made\nclear at the time, however, that the withdrawals were due to a reexamination of the test and that\n“no decision” had been made as to “whether or how [line-of-sight] should be applied.” PHMSA\nalso clarified that the “withdrawal neither constitutes an interpretation of § 195.410(a)(1) nor\nprejudices future potential enforcement action.”11\nSince that time, PHMSA has taken a closer look at the whole issue of what constitutes sufficient\nproof to make a finding of violation under 49 C.F.R. § 195.410. In a recent case that is factually\nsimilar to the present one and was issued in September 2014, PHMSA found that an operator had\nfailed to place and maintain line markers in sufficient number (other than ones expressly required\nat public road and railroad crossings) so that the pipeline’s location could be accurately known.\nIn that case, both parties presented photographic, as well as eyewitness, evidence that markers\nwere not visible through normal observation on the ground. The Associate Administrator\nenunciated the agency’s interpretation of the phrase “sufficient number….that [the pipeline’s]\nlocation is accurately known” to mean that “inspectors must be able to use normal methods of\nobservation to see if markers are present and to discern the location of the pipeline.”12\nIn this case, the Notice and Violation Report did not use or rely upon the “line of sight” standard.\nInstead, it relied on the inspector’s own personal observations, photographic evidence, and\nRespondent’s admission that markers in these two locations were missing. I have closely\nreviewed all of the photographs submitted by the VA SCC inspector and Plantation and the other\nevidence in the record and find that the photographs submitted by Plantation do not serve to\ndisprove or rebut those provided by the VA SCC inspector, which show that there were no\nvisible markers in the pastures in question as of the date of the inspection. Based upon an\ninspector’s “normal methods of observation,” I am convinced that the inspector in this case was\nunable to accurately locate the pipeline’s route once it left the vicinity of the marked road\ncrossings.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n10 See, e.g., Citgo Pipeline Co., CPF 4-2007-5010, Item 3, 2011 WL 2040231 (Apr. 14, 2011); Kinder Morgan CO2\nCo., CPF 4-2006-5003, Item 1, 2010 WL 6539184 (Oct. 12, 2010); Kinder Morgan Energy Partners, L.P., CPF 4-\n2006-5023, Item 2, 2010 WL 6531634 (Aug. 31, 2010); BP Pipelines (North America), Inc., CPF 4-2007-5003, Item\n1, 2010 WL 6518288 (Jul. 19, 2010); Enterprise Products Operating, LLC, CPF 4-2007-5015, Item 2, 2009 WL\n5538652 (Dec. 2, 2009); and NuStar Logistics, L.P., CPF 4-2005-5048, Item 2, 2009 WL 1211363 (Mar. 11, 2009).\nPHMSA also held a public workshop on February 20-21, 2008, in Houston, Texas, to discuss, among other issues,\nplacement of line markers. See also, Pipeline Safety: Workshop on Public Awareness Programs for Pipeline\nOperators and Location of Line Markers, 73 Fed. Reg 223 (Jan. 2, 2008).\n11 E.g., Enterprise Products, CPF 4-2007-5015, Item 2.\n12 Magellan Pipeline Company, CPF 4-2012-5010, Item 2, 2014 WL 5431188 (Sept. 2, 2014), at 11.\n\n\n\nCPF No. 1-2013-5018\nPage 5\n§ 195.410(a) by failing to maintain sufficient line markers to accurately know the location of\neach buried line off Retreat Road and Crooked Oak Road.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.567(c), which states:\n§ 195.567 Which pipelines must have test leads and what must I do to\ninstall and maintain the leads?\n(a) General. Except for offshore pipelines, each buried or submerged\npipeline or segment of pipeline under cathodic protection required by this\nsubpart must have electrical test leads for external corrosion control. . . .\n(c) Maintenance. You must maintain the test lead wires in a condition\nthat enables you to obtain electrical measurements to determine whether\ncathodic protection complies with § 195.571.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.567(c) by failing to maintain the\ntest lead wires on its pipeline in a condition that enabled the company to obtain electrical\nmeasurements to determine whether cathodic protection complied with § 195.571. Specifically,\nthe Notice alleged that Plantation failed to maintain the test lead wire at station number 2180+19\nin Franklin County, Virginia, in a condition that would allow the company to conduct the\nnecessary tests during the 2011 and 2012 annual surveys.\nIn its Response, Plantation acknowledged that no pipe-to-soil measurements were taken during\n2011 and 2012 because the test lead could not be located during the annual surveys, and stated\nthat the test station was repaired on September 13, 2012. Accordingly, after considering all of\nthe evidence, I find that Respondent violated 49 C.F.R. § 195.567(c) by failing to maintain the\ntest lead wires in a condition that enabled the company to obtain electrical measurements to\ndetermine whether cathodic protection complied with § 195.571.\nThese findings of violation will be considered prior offenses in any subsequent enforcement\naction taken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any\nrelated series of violations.13 In determining the amount of a civil penalty under 49 U.S.C.\n§ 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,\ncircumstances, and gravity of the violation, including adverse impact on the environment; the\ndegree of Respondent’s culpability; the history of Respondent’s prior offenses; and any effect\nthat the penalty may have on its ability to continue doing business; and the good faith of\nRespondent in attempting to comply with the pipeline safety regulations. In addition, I may\nconsider the economic benefit gained from the violation without any reduction because of\n13 The Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, Pub. L. No. 112-90, § 2(a)(1), 125 Stat.\n1904, January 3, 2012, increased the civil penalty liability for violating a pipeline safety standard to $200,000 per\nviolation for each day of the violation, up to a maximum of $2,000,000 for any related series of violations.\n\n\n\nCPF No. 1-2013-5018\nPage 6\nsubsequent damages, and such other matters as justice may require. The Notice proposed a total\ncivil penalty of $57,600 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $28,900 for Respondent’s violation of 49 C.F.R.\n§ 195.410(a), for failing to maintain sufficient line markers to accurately know the location of\neach buried line. Respondent’s defenses to the proposed penalty were the same as the ones\ndiscussed above and which I found unconvincing. The purpose of pipeline markers is to identify\nthe general location of the pipeline in order to help the public understand the danger of digging\nnearby, and thus prevent excavation-damage accidents. In addition, markers are used during the\npipeline operators’ own surveys to inspect the pipeline right-of-way. Respondent provided no\nevidence of efforts to ensure its line was adequately marked as of the date of the inspection, to\ninstall physical barriers or take other precautions to protect the line markers from damage or\nremoval, or to demonstrate why it should not be held fully culpable for the failure to maintain the\npipeline markers. Accordingly, having reviewed the record and considered the assessment\ncriteria, I assess Respondent a civil penalty of $28,900 for violation of 49 C.F.R. § 195.410(a).\nItem 2: The Notice proposed a civil penalty of $28,700 for Respondent’s violation of 49 C.F.R.\n§ 195.567(c), for failing to maintain test lead wires in a condition that enabled the company to\nobtain electrical measurements to determine whether cathodic protection complied with\n§ 195.571. Respondent did not contest this allegation of violation, but stated that it believed the\nproposed civil penalty was excessively punitive and requested that the penalty be withdrawn or\nreduced. Respondent stated that this was an isolated incident and that a review of its corrosion\nrecords for this pipeline showed it to be the only occurrence over the past 10 years. Respondent\nalso stated that it was taking steps to ensure that test leads would be better maintained so as to\nensure that pipe-to-soil measurements could be timely taken.\nHowever, Respondent is fully culpable and responsible for this violation. The company failed to\nrepair the test station after discovering the test lead wires could not be located in 2011, and only\nmade the repair and conducted the required test after the VA SCC inspection in 2012. In\naddition, Respondent’s history of prior offenses and failure to act in accordance with its duty to\nmeet the regulatory obligation do not warrant a reduction in the penalty. Accordingly, having\nreviewed the record and considered the assessment criteria, I assess Respondent a civil penalty of\n$28,700 for violation of 49 C.F.R. § 195.567(c).\nIn summary, having reviewed the record and considered the assessment criteria for each of the\nItems cited above, I assess Respondent a total civil penalty of $57,600.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations\n(49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through the Federal\nReserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed\ninstructions are contained in the enclosure. Questions concerning wire transfers should be\ndirected to: Financial Operations Division (AMK-325), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P.O. Box 269039, Oklahoma City, Oklahoma 73125. The\nFinancial Operations Division telephone number is (405) 954-8845.\nFailure to pay the $57,600 civil penalty will result in accrual of interest at the current annual rate\n\n\n\nCPF No. 1-2013-5018\nPage 7\nin accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to\nthose same authorities, a late penalty charge of six percent (6%) per annum will be charged if\npayment is not made within 110 days of service. Furthermore, failure to pay the civil penalty\nmay result in referral of the matter to the Attorney General for appropriate action in a district\ncourt of the United States.\nUnder 49 C.F.R. § 190.243, Respondent has the right to submit a Petition for Reconsideration of\nthis Final Order. The petition must be sent to: Associate Administrator, Office of Pipeline\nSafety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor, Washington, DC\n20590, with a copy sent to the Office of Chief Counsel, PHMSA, at the same address. PHMSA\nwill accept petitions received no later than 20 days after receipt of service of the Final Order by\nthe Respondent, provided they contain a brief statement of the issue(s) and meet all other\nrequirements of 49 C.F.R. § 190.243. The filing of a petition automatically stays the payment of\nany civil penalty assessed but does not stay any other provisions of the Final Order, including\nany required corrective actions. If Respondent submits payment of the civil penalty, the Final\nOrder becomes the final administrative decision and the right to petition for reconsideration is\nwaived.\nThe terms and conditions of this Final Order are effective upon service in accordance with\n49 C.F.R. § 190.5.\n___________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":22814}