# PRODUCTS (SE) PIPE LINE CORPORATION — Notice of Probable Violation

- **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:** Not available
- **summary:** CLOSED notice of probable violation citing 195.410(a), 195.567(c).
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- **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.

Official case documents:

120135018_Final Order_05222015.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120135018/120135018_Final%20Order_05222015.pdf

120135018_Final Order_05222015_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120135018/120135018_Final%20Order_05222015_text.pdf

120135018_NOPV PCP_08192013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120135018/120135018_NOPV%20PCP_08192013_text.pdf

120135018_NOPV_PCP_08192013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120135018/120135018_NOPV_PCP_08192013.pdf

120135018_Operator Response_09172013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120135018/120135018_Operator%20Response_09172013.pdf

120135018_Final Order_05222015_text.pdf

May 22, 2015
Mr. Ron McClain
President, Products Pipelines
Plantation Pipe Line Company
Kinder Morgan Energy Partners, LP
1001 Louisiana St, Suite 1000
Houston, TX 77002
Re: CPF No. 1-2013-5018
Dear Mr. McClain:
Enclosed please find the Final Order issued in the above-referenced case. It makes findings of
violation and assesses a civil penalty of $57,600. The penalty payment terms are set forth in the
Final Order. This enforcement action closes automatically upon receipt of payment. Service of
the Final Order by certified mail is deemed effective upon the date of mailing, or as otherwise
provided under 49 C.F.R. § 190.5.
Thank you for your cooperation in this matter.
Sincerely,
Jeffrey D. Wiese
Associate Administrator
for Pipeline Safety
Enclosure
cc: Mr. Byron Coy, Director, Eastern Region, OPS
Mr. James Hotinger, Virginia State Corporation Commission
Mr. Jim Fisher, Virginia State Corporation Commission
Mr. Wayne Simmons, Vice President, Operations, Plantation Pipe Line Company
CERTIFIED MAIL - RETURN RECEIPT REQUESTED



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, D.C. 20590
____________________________________
)
In the Matter of )
)
Plantation Pipe Line Company, ) CPF No. 1-2013-5018
)
Respondent. )
____________________________________)
FINAL ORDER
On September 13, 2012, pursuant to 49 U.S.C. § 60117, a representative of the Virginia State
Corporation Commission (VA SCC), as agent for the Pipeline and Hazardous Materials Safety
Administration (PHMSA), Office of Pipeline Safety (OPS), conducted an on-site pipeline safety
inspection of the facilities and records of Plantation Pipe Line Company (Plantation or
Respondent) in Roanoke, Virginia. Plantation is a subsidiary of Kinder Morgan Energy Partners,
LP, and operates approximately 3,100 miles of pipeline transporting refined petroleum products
from Louisiana to the Washington, DC area.1
As a result of the inspection, the Director, Eastern Region, OPS (Director), issued to Respondent,
by letter dated August 19, 2013, a Notice of Probable Violation and Proposed Civil Penalty
(Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that Plantation
had violated 49 C.F.R. §§ 195.410(a) and 195.567(c) and proposed assessing a civil penalty of
$57,600 for the alleged violations.
Plantation responded to the Notice by letter dated September 17, 2013 (Response). The
company contested the allegations, offered additional information in response to the Notice, and
requested that the proposed civil penalty be reduced or eliminated. Respondent did not request a
hearing and therefore has waived its right to one.
FINDINGS OF VIOLATION
The Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:
Item 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.410(a), which states, in
relevant part:
1 http://www kindermorgan.com/business/products_pipelines/plantation.aspx (last accessed Nov. 24, 2014).



CPF No. 1-2013-5018
Page 2
§ 195.410 Line markers.
(a) Except as provided in paragraph (b) of this section, each operator
shall place and maintain line markers over each buried pipeline in
accordance with the following:
(1) Markers must be located at each public road crossing, at each
railroad crossing, and in sufficient number along the remainder of each
buried line so that its location is accurately known. . . .
The Notice alleged that Respondent violated 49 C.F.R. § 195.410(a) by failing to place and
maintain sufficient line markers to accurately know the location of each buried line.
Specifically, the Notice alleged that at the time of the VA SCC inspection, Plantation failed to
have a sufficient number of line markers over the buried pipeline so that its location could be
accurately known at two locations: in uncultivated pasture land near Retreat Road and Crooked
Oak Road in Franklin County, Virginia. Photographs and descriptions of the locations that
allegedly did not have sufficient line markers were included as Exhibit A-4 (Retreat Road) and
A-5 (Crooked Oak Road) in the Violation Report.2
In its Response, Plantation contested the allegations, stating that there were adequate pipeline
markers at the road crossings for Retreat Road and Crooked Oak Road, and submitted
photographs of these markers. For Retreat Road, Respondent provided a Google Earth
photograph from May 2012, which showed a pipeline marker at the road crossing.3 While it is
true there was a marker at the road crossing, as expressly required under § 195.410(a), it is not
responsive to the allegation that there were insufficient markers off the public road and across
the pasture to ensure that the location of the pipeline was accurately known.
Plantation also provided a photograph of the same pasture that was taken after the VA SCC’s
inspection, showing two pipeline markers: one that was in place at the time of the inspection and
one that was installed following the inspection.4 Again, this does not demonstrate that the
location of the pipeline could have been accurately known in the pasture without the marker that
Plantation asserts was re-installed subsequent to the inspection.
For the location at Crooked Oak Road, Plantation provided a photograph taken on the date of the
inspection, showing a line marker at the road crossing.5 However, evidence of a line marker at
the road crossing again fails to rebut the photographic evidence in the record that there was an
insufficient number of line markers along the buried pipeline in the pasture near the road to
ensure that its location could be accurately known to an observer.
2 Pipeline Safety Violation Report (Violation Report), (August 19, 2013) (on file with PHMSA).
3 Response, at 3 (Figure No. 1).
4 Id., at 5 (Figure No. 3). According to Plantation, the marker that was subsequently re-installed “had been knocked
down in the brush next to it from farming activities conducted in the pasture. The downed line marker was
discovered in the brush by the Kinder Morgan employee immediately after he installed the new line marker.”
Response, at 2-3.
5 Id., at 4 (Figure No. 2).



CPF No. 1-2013-5018
Page 3
Plantation provided a second photograph that the company contended showed “numerous
pipeline markers that were already in place at the Crooked Oak Road location,” as well as one
marker that was added after the inspection.
6 In this photograph, there is only one marker visible
in the pasture, which Plantation admits was installed after the VA SCC inspection. In contrast,
the photograph that was taken by the VA SCC on September 13, 2012, shows that there were no
pipeline markers in the pasture at that time and that the location of the pipeline in the pasture
could not be accurately known after it left the road crossing.
I would also note that in a letter to the VA SCC dated October 15, 2012, Respondent
acknowledged that “Kinder Morgan agrees that out of the numerous locations observed during
the field review of the BRK pipeline, two locations were noted as missing line markers to see
across the crestline of ridges in pastures” during the VA SCC’s field inspection.7 Therefore,
there seems to be no dispute that in the two instances cited in the Notice, it was impossible for an
observer to discern the location of the pipeline from the road crossings across the crestline of
both pastures.
In its Response, Plantation also stated that the pastures in question were in farm use and “in the
path of heavy mowing/farming equipment.” Plantation argued “it is extremely difficult to
maintain pipeline markers when subject to heavy mowing equipment as on these two pastures.” 8
This may well be true, but the fact remains that the company had previously installed a marker at
the Retreat Road location and that it had apparently been knocked over and later replaced. This
shows that Respondent apparently believed a marker was needed at that particular location to
properly identify the route of the pipeline.
It may be difficult in such situations for an operator to properly maintain its markers, and this is
why all operators are required to frequently patrol their lines to assess conditions along the right-
of-way and to find out whether their lines have been damaged or are threatened. It is also why
prudent operators frequently take precautions such as installing bollards or other physical means
of protecting line markers from cattle, farm equipment, or similar threats that can damage or
destroy critical facilities. Only by regularly patrolling and checking its line markers, by
communicating with landowners and community members, and by taking precautions to protect
its equipment can an operator ensure that the pipeline’s location is accurately known and that its
right-of-way is properly maintained.
Finally, Plantation argued that the alleged violation was based on the enforcement of PHMSA’s
“line of sight” standard, i.e., the concept that when standing at one line marker, another is visible
in each direction, and argued that the “line of sight” standard is unenforceable because it does
not appear in the regulation and “has not gone through the due regulatory process.”9
6 Id., at 6 (Figure No. 4).
7 Violation Report, Exhibit A-2. The October 15, 2012 letter does not indicate which two locations were missing
markers, but apparently they were the same ones cited in the Notice.
8 Response, at 6.
9 Id., at 8.



CPF No. 1-2013-5018
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In 2008, PHMSA began re-examining the “line of sight” test used by some inspectors to check if
markers were sufficient in number. The test had been used primarily at cultivated agricultural
fields and valve sites. An inspector would stand at a valve site or at one end of a cultivated field
and observe whether the operator’s next line marker could be seen when looking in both
directions. Between 2008 and 2011, however, PHMSA withdrew several alleged violations of
§ 195.410 where “line of sight” was the stated basis for the alleged violation.10 PHMSA made
clear at the time, however, that the withdrawals were due to a reexamination of the test and that
“no decision” had been made as to “whether or how [line-of-sight] should be applied.” PHMSA
also clarified that the “withdrawal neither constitutes an interpretation of § 195.410(a)(1) nor
prejudices future potential enforcement action.”11
Since that time, PHMSA has taken a closer look at the whole issue of what constitutes sufficient
proof to make a finding of violation under 49 C.F.R. § 195.410. In a recent case that is factually
similar to the present one and was issued in September 2014, PHMSA found that an operator had
failed to place and maintain line markers in sufficient number (other than ones expressly required
at public road and railroad crossings) so that the pipeline’s location could be accurately known.
In that case, both parties presented photographic, as well as eyewitness, evidence that markers
were not visible through normal observation on the ground. The Associate Administrator
enunciated the agency’s interpretation of the phrase “sufficient number….that [the pipeline’s]
location is accurately known” to mean that “inspectors must be able to use normal methods of
observation to see if markers are present and to discern the location of the pipeline.”12
In this case, the Notice and Violation Report did not use or rely upon the “line of sight” standard.
Instead, it relied on the inspector’s own personal observations, photographic evidence, and
Respondent’s admission that markers in these two locations were missing. I have closely
reviewed all of the photographs submitted by the VA SCC inspector and Plantation and the other
evidence in the record and find that the photographs submitted by Plantation do not serve to
disprove or rebut those provided by the VA SCC inspector, which show that there were no
visible markers in the pastures in question as of the date of the inspection. Based upon an
inspector’s “normal methods of observation,” I am convinced that the inspector in this case was
unable to accurately locate the pipeline’s route once it left the vicinity of the marked road
crossings.
Accordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.
10 See, e.g., Citgo Pipeline Co., CPF 4-2007-5010, Item 3, 2011 WL 2040231 (Apr. 14, 2011); Kinder Morgan CO2
Co., CPF 4-2006-5003, Item 1, 2010 WL 6539184 (Oct. 12, 2010); Kinder Morgan Energy Partners, L.P., CPF 4-
2006-5023, Item 2, 2010 WL 6531634 (Aug. 31, 2010); BP Pipelines (North America), Inc., CPF 4-2007-5003, Item
1, 2010 WL 6518288 (Jul. 19, 2010); Enterprise Products Operating, LLC, CPF 4-2007-5015, Item 2, 2009 WL
5538652 (Dec. 2, 2009); and NuStar Logistics, L.P., CPF 4-2005-5048, Item 2, 2009 WL 1211363 (Mar. 11, 2009).
PHMSA also held a public workshop on February 20-21, 2008, in Houston, Texas, to discuss, among other issues,
placement of line markers. See also, Pipeline Safety: Workshop on Public Awareness Programs for Pipeline
Operators and Location of Line Markers, 73 Fed. Reg 223 (Jan. 2, 2008).
11 E.g., Enterprise Products, CPF 4-2007-5015, Item 2.
12 Magellan Pipeline Company, CPF 4-2012-5010, Item 2, 2014 WL 5431188 (Sept. 2, 2014), at 11.



CPF No. 1-2013-5018
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§ 195.410(a) by failing to maintain sufficient line markers to accurately know the location of
each buried line off Retreat Road and Crooked Oak Road.
Item 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.567(c), which states:
§ 195.567 Which pipelines must have test leads and what must I do to
install and maintain the leads?
(a) General. Except for offshore pipelines, each buried or submerged
pipeline or segment of pipeline under cathodic protection required by this
subpart must have electrical test leads for external corrosion control. . . .
(c) Maintenance. You must maintain the test lead wires in a condition
that enables you to obtain electrical measurements to determine whether
cathodic protection complies with § 195.571.
The Notice alleged that Respondent violated 49 C.F.R. § 195.567(c) by failing to maintain the
test lead wires on its pipeline in a condition that enabled the company to obtain electrical
measurements to determine whether cathodic protection complied with § 195.571. Specifically,
the Notice alleged that Plantation failed to maintain the test lead wire at station number 2180+19
in Franklin County, Virginia, in a condition that would allow the company to conduct the
necessary tests during the 2011 and 2012 annual surveys.
In its Response, Plantation acknowledged that no pipe-to-soil measurements were taken during
2011 and 2012 because the test lead could not be located during the annual surveys, and stated
that the test station was repaired on September 13, 2012. Accordingly, after considering all of
the evidence, I find that Respondent violated 49 C.F.R. § 195.567(c) by failing to maintain the
test lead wires in a condition that enabled the company to obtain electrical measurements to
determine whether cathodic protection complied with § 195.571.
These findings of violation will be considered prior offenses in any subsequent enforcement
action taken against Respondent.
ASSESSMENT OF PENALTY
Under 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed
$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any
related series of violations.13 In determining the amount of a civil penalty under 49 U.S.C.
§ 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,
circumstances, and gravity of the violation, including adverse impact on the environment; the
degree of Respondent’s culpability; the history of Respondent’s prior offenses; and any effect
that the penalty may have on its ability to continue doing business; and the good faith of
Respondent in attempting to comply with the pipeline safety regulations. In addition, I may
consider the economic benefit gained from the violation without any reduction because of
13 The Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, Pub. L. No. 112-90, § 2(a)(1), 125 Stat.
1904, January 3, 2012, increased the civil penalty liability for violating a pipeline safety standard to $200,000 per
violation for each day of the violation, up to a maximum of $2,000,000 for any related series of violations.



CPF No. 1-2013-5018
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subsequent damages, and such other matters as justice may require. The Notice proposed a total
civil penalty of $57,600 for the violations cited above.
Item 1: The Notice proposed a civil penalty of $28,900 for Respondent’s violation of 49 C.F.R.
§ 195.410(a), for failing to maintain sufficient line markers to accurately know the location of
each buried line. Respondent’s defenses to the proposed penalty were the same as the ones
discussed above and which I found unconvincing. The purpose of pipeline markers is to identify
the general location of the pipeline in order to help the public understand the danger of digging
nearby, and thus prevent excavation-damage accidents. In addition, markers are used during the
pipeline operators’ own surveys to inspect the pipeline right-of-way. Respondent provided no
evidence of efforts to ensure its line was adequately marked as of the date of the inspection, to
install physical barriers or take other precautions to protect the line markers from damage or
removal, or to demonstrate why it should not be held fully culpable for the failure to maintain the
pipeline markers. Accordingly, having reviewed the record and considered the assessment
criteria, I assess Respondent a civil penalty of $28,900 for violation of 49 C.F.R. § 195.410(a).
Item 2: The Notice proposed a civil penalty of $28,700 for Respondent’s violation of 49 C.F.R.
§ 195.567(c), for failing to maintain test lead wires in a condition that enabled the company to
obtain electrical measurements to determine whether cathodic protection complied with
§ 195.571. Respondent did not contest this allegation of violation, but stated that it believed the
proposed civil penalty was excessively punitive and requested that the penalty be withdrawn or
reduced. Respondent stated that this was an isolated incident and that a review of its corrosion
records for this pipeline showed it to be the only occurrence over the past 10 years. Respondent
also stated that it was taking steps to ensure that test leads would be better maintained so as to
ensure that pipe-to-soil measurements could be timely taken.
However, Respondent is fully culpable and responsible for this violation. The company failed to
repair the test station after discovering the test lead wires could not be located in 2011, and only
made the repair and conducted the required test after the VA SCC inspection in 2012. In
addition, Respondent’s history of prior offenses and failure to act in accordance with its duty to
meet the regulatory obligation do not warrant a reduction in the penalty. Accordingly, having
reviewed the record and considered the assessment criteria, I assess Respondent a civil penalty of
$28,700 for violation of 49 C.F.R. § 195.567(c).
In summary, having reviewed the record and considered the assessment criteria for each of the
Items cited above, I assess Respondent a total civil penalty of $57,600.
Payment of the civil penalty must be made within 20 days of service. Federal regulations
(49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through the Federal
Reserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed
instructions are contained in the enclosure. Questions concerning wire transfers should be
directed to: Financial Operations Division (AMK-325), Federal Aviation Administration, Mike
Monroney Aeronautical Center, P.O. Box 269039, Oklahoma City, Oklahoma 73125. The
Financial Operations Division telephone number is (405) 954-8845.
Failure to pay the $57,600 civil penalty will result in accrual of interest at the current annual rate



CPF No. 1-2013-5018
Page 7
in accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to
those same authorities, a late penalty charge of six percent (6%) per annum will be charged if
payment is not made within 110 days of service. Furthermore, failure to pay the civil penalty
may result in referral of the matter to the Attorney General for appropriate action in a district
court of the United States.
Under 49 C.F.R. § 190.243, Respondent has the right to submit a Petition for Reconsideration of
this Final Order. The petition must be sent to: Associate Administrator, Office of Pipeline
Safety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor, Washington, DC
20590, with a copy sent to the Office of Chief Counsel, PHMSA, at the same address. PHMSA
will accept petitions received no later than 20 days after receipt of service of the Final Order by
the Respondent, provided they contain a brief statement of the issue(s) and meet all other
requirements of 49 C.F.R. § 190.243. The filing of a petition automatically stays the payment of
any civil penalty assessed but does not stay any other provisions of the Final Order, including
any required corrective actions. If Respondent submits payment of the civil penalty, the Final
Order becomes the final administrative decision and the right to petition for reconsideration is
waived.
The terms and conditions of this Final Order are effective upon service in accordance with
49 C.F.R. § 190.5.
___________________________________ __________________________
Jeffrey D. Wiese Date Issued
Associate Administrator
for Pipeline Safety
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