{"operation":"document","citation":"CPF 220065001","title":"MARKWEST RANGER PIPELINE COMPANY, L.L.C. — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2006-06-15","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.401, 195.402(a), 195.402(e), 195.404(a)(2), 195.410(a)(1), 195.440, 195.52(a), 199.105(b), 199.225(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-220065001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-220065001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-220065001","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/220065001","body":"Notice of Probable Violation involving MARKWEST RANGER PIPELINE COMPANY, L.L.C.. PHMSA's enforcement data identifies the cited regulations as 195.401,  195.402(a),  195.402(e),  195.404(a)(2),  195.410(a)(1),  195.440,  195.52(a),  199.105(b),  199.225(a). The case was opened on 2006-06-15 and is reported as closed as of 2012-01-24. Proposed civil penalty: $1,070,000. Assessed civil penalty: $192,500. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n220065001_Decision on the Petition for Reconsideration_01062012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_Decision%20on%20the%20Petition%20for%20Reconsideration_01062012.pdf\n\n220065001_Decision on the Petition for Reconsideration_01062012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_Decision%20on%20the%20Petition%20for%20Reconsideration_01062012_text.pdf\n\n220065001_FinalOrder_02172011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_FinalOrder_02172011.pdf\n\n220065001_FinalOrder_02172011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_FinalOrder_02172011_text.pdf\n\n220065001_notice_letter_06152006.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_notice_letter_06152006.pdf\n\n220065001_notice_letter_06152006_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_notice_letter_06152006_text.pdf\n\n220065001_notification_by_operator_of_suspension_of_operation_of_pipeline_11082006.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_notification_by_operator_of_suspension_of_operation_of_pipeline_11082006.pdf\n\n220065001_operator_response_to_notice_letter_and_request_for_hearing_11302006.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_operator_response_to_notice_letter_and_request_for_hearing_11302006.pdf\n\nOpRes_2-2006-5001_Equitable7 26 270001.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/OpRes_2-2006-5001_Equitable7%2026%20270001.pdf\n\n220065001_FinalOrder_02172011_text.pdf\n\nFEB 17 2011\nMr. Martin Fritz\nPresident, Midstream Operations\nEQT Corporation\n625 Liberty Ave. Suite 1700\nPittsburgh, PA 15222\nMr. John C. Mollenkopf\nSenior Vice President, Chief Operations Officer\nMarkWest Energy Partners, L.P.\n1515 Arapahoe Street\nTower 1, Suite 1600\nDenver, CO 80202\nRe: CPF No. 2-2006-5001\nDear Messrs. Fritz and Mollenkopf:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a reduced civil penalty of $692,500. The civil penalty apportionment\nbetween Equitable and MarkWest and the penalty payment terms are set forth in the Final Order.\nThis enforcement action closes automatically upon receipt of payment. Service of the Final Order\nby certified mail is deemed effective upon the date of mailing, or as otherwise provided under 49\nC.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Wayne Lemoi, Director, Southern Region, PHMSA\nMr. J. Gordon Arbuckle, Attorney for Equitable\nPatton Boggs LLP, 2550 M St. NW, Washington, DC 20037\nMr. Patrick D. Traylor, Attorney for MarkWest\nHogan Lovells LLP, 555 13th St. NW, Washington, DC 20004\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED [7005 1160 0001 0041 0718]\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\nIn the Matter of )\n)\n)\nEquitable Production Company, )\na division of EQT Corporation, )\nand )\nMarkWest Hydrocarbon, Inc., )\na subsidiary of )\nMarkWest Energy Partners, L.P., )\n)\n)\nRespondents. )\n____________________________________)\n) CPF No. 2-2006-5001\nFINAL ORDER\nFrom November 8 to December 17, 2004, pursuant to 49 U.S.C. § 60117, representatives of the\nPipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety\n(OPS), conducted an investigation of a hazardous liquid pipeline accident that occurred on\nNovember 8, 2004, in Ivel, Kentucky (Accident). The pipeline is owned by Equitable\nProduction Company (Equitable or EQT) and at the time of the Accident was operated by\nMarkWest Hydrocarbon, Inc. (MarkWest) (collectively, Respondents or Companies).1\nEQT owns or operates approximately 11,000 miles of natural gas and highly volatile liquid\n(HVL) pipeline in Kentucky, Virginia, West Virginia, and Pennsylvania. MarkWest owns or\noperates approximately 600 miles of pipelines transporting natural gas, crude oil, and HVLs in\nseveral states, including Texas, Oklahoma, and Michigan.\nOn the morning of November 8, 2004, MarkWest was performing a pigging operation on the\nfour-inch highly volatile liquids pipeline when the line ruptured beneath a driveway in the\nresidential neighborhood of Rolling Acres, in the town of Ivel, Kentucky. The ruptured pipeline\nreleased natural gas liquid vapors that were subsequently ignited by an unknown source, causing\na series of explosions that destroyed five homes and injured twelve people, four of whom\nrequired medical attention.\n1 On February 9, 2009, the parent of Equitable Production Co., Equitable Resources, Inc., changed its name to EQT\nCorporation. On February 21, 2008, MarkWest Hydrocarbon, Inc., became a wholly owned subsidiary of MarkWest\nEnergy Partners, L.P.\n\n\n\n2\nThe pipeline segment that ruptured is between Flow Stations 3 and 4 on Respondents’\nAppalachian Liquid Pipeline System, running between the Maytown liquids extraction plant,\nsince its construction in 1956, but has had different operators over the years. Between 1979 and\n1999, Ashland Pipeline Company (Ashland) operated the pipeline. MarkWest operated the line\nnear Langley, Kentucky, and Ranger, West Virginia.2 The pipeline has been owned by Equitable\nfrom 2000 until November 2007. Equitable has since resumed operational responsibilities for\nthe pipeline, although the pipeline is not presently in service.\nAs a result of the accident investigation, the Director, Southern Region, OPS (Director), issued to\nRespondents, by letter dated June 15, 2006, a Notice of Probable Violation and Proposed Civil\nPenalty (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that\nEquitable and MarkWest had committed various violations of 49 C.F.R. Part 195 and proposed\nassessing a civil penalty of $1,070,000 for the alleged violations.\nAfter both Companies requested and received an extension of time to respond, Equitable\n1 be dismissed, requested a hearing on the remaining items in the Notice, and asserted that the\ncase file received from OPS pursuant to 49 C.F.R. § 190.211(e) lacked a sufficient evidentiary\nbasis for all the items in the Notice despite representations made by OPS that the information\nresponded on its own behalf by letter dated November 30, 2006.3 Equitable requested that Item\nconstituted the complete administrative case file.\nOn March 15, 2007, the designated hearing officer from the Office of Chief Counsel, PHMSA\n(Hearing Officer), convened a conference call during which the Companies expressed concern\nthat certain documentation collected by OPS during its accident investigation had not been\nincluded in the administrative case file. The Hearing Officer postponed setting a hearing date to\nprovide Respondents and OPS with the opportunity to review any additional materials and to\nensure a complete case file. Respondents subsequently provided lists of documents they\nbelieved were produced during the investigation and requested that OPS locate and determine if\nsuch documents were “material in the case file pertinent to the issues to be determined” as set\nforth in § 190.211(e).4 By letter dated February 12, 2009, OPS confirmed that the administrative\nrecord was complete as originally produced, but, following a second conference call on April 15,\n2009, provided certain additional documentation to the Companies.5\nBy letters dated May 29, 2009, Equitable filed a supplement to its request to dismiss Item 1, and\nMarkWest filed its first substantive response to the Notice by similarly requesting that Item 1 be\ndismissed.6\nThe Hearing Officer denied the Companies’ requests to dismiss Item 1 on the\nground that a decision would be rendered on the matter in the final order, and set a hearing date\n2 Equitable refers to this line as the Kentucky Hydrocarbon pipeline system.\n3 Response of Equitable Production Company Including Motion to Dismiss Count 1, Request for Hearing, and\nStatement of Issues, November 30, 2006.\n4 Letter from Equitable counsel to the Hearing Officer, dated March 28, 2007; Letter from Equitable counsel to the\nHearing Officer, dated April 13, 2007.\n5 Letter from OPS counsel to Equitable and MarkWest counsel, dated May 13, 2009.\n6 Equitable Production Company’s Supplemental Motion to Dismiss Count 1, May 29, 2009 (Equitable’s Supp.\nMotion to Dismiss); MarkWest Hydrocarbon Inc.’s Motion to Dismiss Count 1, May 29, 2009 (MarkWest’s Motion\nto Dismiss).\n\n\n\n3\nfor November 3, 2009.7 The Companies then filed briefs responding to various other allegations\nin the Notice,8 and OPS submitted responses for the record,9 to which Respondents also\nreplied.10 By letters dated October 19, 2009, the Companies withdrew their requests for a\nhearing, thereby waiving their rights to one and allowing this Final Order to be issued without\nfurther notice based on the written record.11\nFINDINGS OF VIOLATION\nThe Notice alleged that Equitable and MarkWest violated 49 C.F.R. Part 195, as follows:\nItem 1: The Notice alleged that Respondents violated 49 C.F.R. § 195.401(b), which states:\n§ 195.401 General requirements.\n(a) . . . .\n(b) Whenever an operator discovers any condition that could\nadversely affect the safe operation of its pipeline system, it shall correct it\nwithin a reasonable time. However, if the condition is of such a nature that\nit presents an immediate hazard to persons or property, the operator may\nnot operate the affected part of the system until it has corrected the unsafe\ncondition.\nThe Notice alleged that Respondents violated 49 C.F.R. § 195.401(b) by failing to correct two\nconditions that could adversely affect the safe operation of the pipeline system. Specifically, the\nNotice alleged that Respondents never corrected two anodic conditions discovered during\nelectrical surveys performed in 1982 and 1987, respectively, conditions which could adversely\nongoing.”\naffect pipeline safety.12 The Notice further alleged that these violations were “continuous and\nEquitable and MarkWest contested the allegations of violation on several grounds. First, the\nCompanies argue that the evidence in the record does not support a finding that either\n7 Decision on Preliminary Motion to Dismiss, June 12, 2009; Letter from the Hearing Officer to Equitable and\nMarkWest counsel, dated July 30, 2009. The Hearing Officer denied the requests for preliminary withdrawal on the\nground that 49 C.F.R. § 190.213 provided for resolution of all material issues in the case by Final Order, and noted\nthat the Companies’ arguments for withdrawal would be considered in the Final Order.\n8 Equitable Production Company’s Hearing Brief, July 22, 2009 (Equitable’s Brief); MarkWest Hydrocarbon, Inc.’s\nResponse to PHMSA Notice of Probable Violation and Proposed Civil Penalty, July 22, 2009 (MarkWest’s Brief).\n9 Opposition to Respondent’s Motion to Dismiss, directed to Equitable, August 27, 2009 (OPS Response to\nEquitable); Opposition to Respondent’s Motion to Dismiss, directed to MarkWest, August 27, 2009 (OPS Response\nto MarkWest).\n10 Equitable Production Company’s Reply to Opposition Brief, September 15, 2009 (Equitable’s Reply); MarkWest\nHydrocarbon, Inc.’s Reply in Support of its Motion to Dismiss, September 15, 2009 (MarkWest’s Reply).\n11 Respondent’s Request for a Ruling without a Hearing, October 19, 2009 (Equitable’s Withdrawal); MarkWest\nHydrocarbon, Inc.’s Withdrawal of its Request for a Hearing, October 19, 2009 (MarkWest’s Withdrawal).\n12 An anodic condition is an environment conducive to external corrosion of the pipeline absent adequate cathodic\nprotection.\n\n\n\n4\nRespondent violated § 195.401(b). Second, the Companies argue that PHMSA is precluded from\nbringing an enforcement action for this Item because it is time-barred under the federal statute of\nlimitations. Finally, Equitable argues that the allegations were already asserted in a previous\nenforcement matter by PHMSA, and that the issues were resolved by final agency action.13\nThese arguments are addressed in turn.\nA. Whether the evidence demonstrates Respondents violated § 195.401(b).\nRespondents correctly note in their briefs that the appropriate standard of proof for OPS in this\nproceeding is the “preponderance of the evidence” standard. Accordingly, I review the evidence\nin the record to determine whether the greater weight of evidence supports a finding that the\nviolations alleged in the Notice occurred.\nThe regulation cited, 49 C.F.R. § 195.401(b), requires that each operator correct within a\nreasonable time any condition discovered that could adversely affect the safe operation of a\npipeline system. A company may be found to have violated this requirement if (1) there was a\ncondition that could adversely affect the safe operation of the pipeline system, (2) the company\ndiscovered the condition, and (3) the company failed to correct it within a reasonable time. I\nmust consider each of these elements to determine whether the evidence in the record shows by a\npreponderance of the evidence that Respondents violated § 195.401(b) as alleged.\n(1) Whether the conditions identified during the 1982 and 1987 surveys could\nadversely affect the safe operation of the pipeline system.\nPHMSA’s investigation following the Accident revealed that in 1982, the prior operator,\nAshland, had conducted a cathodic protection survey that identified nine locations along the\npipeline between Flow Stations 3 and 4 that showed signs of inadequate protection against\ncorrosion. These locations all had negative pipe-to-soil potentials and soil resistivity readings\nbelow 10,000 ohm/cm.14 Following the 1982 survey, Ashland installed anodes to increase\ncathodic protection at eight of the nine locations, but did not install an anode at survey station\n43+80 because the company incorrectly concluded that the line was cased.15 The location of this\nanomaly was approximately 120 feet from the site of the Accident.\nIn 1987, Ashland conducted another electrical survey of the pipeline and found 44 locations\nbetween Flow Stations 3 and 4 that required additional cathodic protection. In particular, the\nreading at station 98+60, the eventual site of the Accident, had a soil resistivity reading of only\n13 MarkWest did not make this third argument.\n14 A soil resistivity of below 10,000 ohm/cm is generally considered to be a corrosive environment, with varying\ndegrees of corrosivity ranging from very corrosive (0 ohm/cm) to mildly corrosive as the value approaches 10,000.\nA.W. Peabody, Control of Pipeline Corrosion 88 (R.L. Bianchetti ed., NACE Press 2001).\n15 In some instances, pipelines are cased when they cross under rivers, roads and railroads. A cased crossing is\nessentially one where a “carrier” pipe is placed within an outer pipe called a “casing” and centralizers are used to\nmaintain an equal axial distance between the carrier pipe and the casing. The space between the pipes can be filled\nwith wax, open to the atmosphere, or sealed. An electrical survey reading alone at a cased location typically would\nnot indicate an accurate potential for external corrosion of the carrier pipe, since the latter is usually electrically\nisolated from the casing.\n\n\n\n5\n680 ohm/cm, well below 10,000 ohm/cm. The reading was so low that, given the location of the\ntest point beneath a concrete driveway, Ashland concluded the reading must be incorrect and that\nit had been improperly influenced by interference from the driveway itself. There is no evidence\nthat Ashland conducted any further investigation of the unusually low reading. PHMSA’s\naccident investigation also did not find any evidence that an anode had ever been installed at or\nnear either location 43+80 or 98+60.16\nThe survey performed in 1987 did not identify the same condition that was identified in 1982 at\n43+80, nor did subsequent surveys performed by Ashland in 1992 and 1997 detect either the\n1982 or 1987 conditions at 43+80 or 98+60, respectively. The 1992 and 1997 surveys identified\na number of other anodic conditions between Flow Stations 3 and 4, but those other conditions\nare not at issue in this case.\nIn 2002, MarkWest performed its own electrical survey of the pipeline that also failed to identify\nanodic conditions at either location, but the company later discovered that the survey had not\nbeen performed correctly. The survey wire had been connected to the vent pipe or pipeline\ncasing and therefore the readings for that section of the pipeline were likely not accurate.\nIn its brief, Equitable argues that the two 1982 and 1987 readings did not reflect conditions that\ncould adversely affect the safe operation of the pipeline system. The company asserts that the\nreadings had been analyzed by a technician at the time they were taken and “based upon his\nexpertise, experience, and all of the information available to him,” he determined that “there was\nno active corrosion at the specified locations.”17 MarkWest similarly argues that the 1982 and\n1987 surveys concluded that the readings did not constitute safety-related conditions based on\nthe technician’s analysis and that subsequent surveys conducted in 1992, 1997, and 2002\nconfirmed the absence of safety-related conditions at the two locations.18\nWith regard to the 1982 condition, the evidence in the record demonstrates that the technician\nidentified an anodic condition with a soil resistivity of only 3,000 ohm/cm at test station 43+80\nand that he indicated this on an inspection form by marking a box that meant an anode was\nneeded to correct the condition.19 At some point, this recommendation was cancelled by writing\nover it “Do Not Install” on the grounds that the “Line Is Cased.”20 The belief that the line was\ncased was incorrect. Since the line was not cased, the reading demonstrated that an anodic\ncondition existed in fact, meaning there was a risk of external corrosion that needed to be\ncorrected. In his affidavit, the technician did not explain why he believed a cased pipeline would\nnot require an anode, or at least why further investigation was not warranted despite the low\nreading, stating only that he “believed the pipeline in this area was cased, which explained the\ndata and determined the lack of any need for an anode there.”21\n16 Violation Report, at 3. Anodes are typically installed to remediate inadequate cathodic protection.\n17 Equitable’s Supp. Motion to Dismiss, at 10.\n18 MarkWest’s Motion to Dismiss, at 5.\n19 Violation Report Evidence, Exhibit 9, at 5, “Ashland Pipe Line Company, Surface Potential Survey & MG\nAnode Installation Data, Aug. 3, 1982.”\n20 Id.\n21 Equitable’s Supp. Motion to Dismiss, Attachment B (Hendricks Affidavit), at 2.\n\n\n\n6\nInadequate protection against corrosion, as evidenced by electrical survey data or low cathodic\nprotection readings, is a condition that can adversely affect the safe operation of a pipeline\ncondition that could adversely affect the safety of the pipeline under § 195.401(b), regardless of\nthe reasonableness of the technician’s mistaken belief.\nsystem.22 Since this pipeline was not cased, the 1982 reading at test station 43+80 indicated a\nWith regard to the 1987 condition, the evidence in the record demonstrates that the technician\nhad identified a soil resistivity of only 680 ohm/cm at test station 98+60, which was at the\n“centerline [of a] concrete driveway.”23 The location was identified as a “spot,” which meant\nthat the survey had identified the location as an anodic area with a change in voltage potential\nfrom positive to negative and a corresponding negative potential remote.24 The technician\nexplained in his testimony that “the soil resistivity reading of 680 ohm/cm was . . . entirely\ninconsistent with the typical soil characteristics of the area,” and therefore he “concluded the\ndata was inaccurate and did not represent an anodic condition.”25 He also explained that it is\n“not possible to get an accurate potential measurement when there is blacktop and/or concrete.”26\nHad the technician believed the reading was inaccurate due to the presence of the concrete\ndriveway or for any other reason, a new reading at this location would have been required, such\nas taking readings at both sides of the driveway or by drilling a hole in the concrete, to ensure\nthat a complete electrical survey was performed. Absent additional information taken during the\n1987 survey, I find no justification for the operator to disregard the low reading taken at 98+60\nand to assume that adequate cathodic protection existed. PHMSA expects operators to take\nadditional precautions to ensure that they have accurate readings where pipe is located under\nconcrete or asphalt.\ndemonstrated a condition consistent with inadequate protection against corrosion, I find that the\nanodic area was a condition that could adversely affect the safety of the pipeline. This condition\nwas also the site of the Accident, which further shows that the condition may have actually\naffected the integrity of the pipeline. The reason the low readings were not later detected during\nsubsequent surveys is not apparent in the record, but at the time the conditions were identified,\nthey met the criteria for being corrected under the regulation.\n27 Because the only reading at this location during the 1987 survey\nIn conclusion, the readings at issue taken during electrical surveys in 1982 and 1987 indicated\ninadequate protection against corrosion and therefore were conditions that could adversely affect\nthe safe operation of the pipeline system.\n22 In the Matter of Colonial Pipeline Co., Final Order, CPF No. 1-2002-5009 (December 10, 2003), at 3 (finding a\nviolation of § 195.401(b) because the operator had failed to correct low cathodic protection readings, indicating a\nrisk of corrosion, which is a condition that can adversely affect the safe operation of a pipeline system). PHMSA\nenforcement decisions are available online at http://www.phmsa.dot.gov/pipeline/enforcement.\n23 Violation Report Evidence, at 43, “Ashland Pipe Line Co., 1987 Cell-to-Cell Surface Potential Summary Sheet,”\nExhibit 11.\n24 See, e.g., Violation Report Evidence, “Project Summary for 1992 electrical survey,” Exhibit 12.\n25 Hendricks Affidavit, at 3.\n26 Id.\n27 PHMSA Fact Sheet: Close Interval Survey, available at http://primis.phmsa.dot.gov/comm (follow “Pipeline\nLibrary” hyperlink; then follow “Close Interval Surveys” hyperlink).\n\n\n\n7\n(2) Whether Respondents discovered the conditions.\nEquitable argued that even though Ashland, as the operator of the pipeline at the time of the 1982\nand 1987 electrical surveys, discovered the anodic conditions at the two locations in question,\nEquitable, as the owner of the pipeline, cannot not be held in violation of the regulation because\nit never actually “discovered” the conditions.\nThe regulation at issue sets forth requirements for “an operator” of a pipeline, but under 49\nC.F.R. § 195.2, the requirements also apply to pipeline owners because the term “operator” is\ndefined in the regulations to include any person “who owns or operates” a pipeline facility.\nFederal law also specifies that the pipeline safety standards established by PHMSA “apply to\nowners and operators of pipeline facilities.”28 As PHMSA has previously explained, it is not\nuncommon for a pipeline owner to contract with a third party for the operation and maintenance\nof a pipeline, but such a “contractual arrangement does not absolve the owner from\nresponsibility” for compliance with the pipeline safety regulations.29 “Whether the owner is an\nactive participant in the business operation or not is of no consequence,” and the action may be\ncommenced against either the owner or operator of the pipeline, or both, for the actions\nconducted by either party with respect to the facility.30\nAs the owner of the pipeline in question, Equitable was not only responsible for its own conduct\nwith respect to the operation and maintenance of the pipeline, but for the conduct of any third\nparty performing such activities on its facility. The evidence demonstrates that the two anodic\nconditions were “discovered” by the operator of the facility, notwithstanding the technician’s\nincorrect decision that the conditions did not require further action. As the owner of the pipeline,\nEquitable was responsible for correcting these conditions, which could (and, ultimately, may\nhave) adversely affected the safety of its pipeline system. Therefore, I find that Equitable may\nbe held liable for any failure to comply with § 195.401(b) with respect to the conditions\ndiscovered on its pipeline requiring remediation.31\nMarkWest argues that it never discovered the conditions in 1982 and 1987 either, insofar as it\ndid not begin operating the pipeline until 2000. MarkWest further contends that by the time it\nassumed operations, there was no indication that conditions existed at the two locations based on\nelectrical surveys conducted by the prior operator in 1992 and 1997. The company also noted\nthat it conducted its own survey in 2002, which did not identify any conditions at those locations,\nalthough MarkWest acknowledged that the survey was not conducted properly and may not have\nproduced accurate readings.32\n28 49 U.S.C. § 60102.\n29 In the Matter of Ozark Gas Transmission, L.L.C., Decision on Petition for Reconsideration, CPF No. 2-2002-\n1004, 2003 WL 25429903 (Dec. 31, 2003).\n30 Id.\n31 In its July 22, 2009 brief, Equitable cited the PHMSA stakeholder’s communication website for the proposition\nthat a single reading cannot be the basis for discovering an anodic condition. Equitable’s Brief at 2. I am unaware\nof any public statement by PHMSA that supports such an assertion, and the company did not quote or otherwise cite\nany specific language from that website.\n32 MarkWest Motion to Dismiss, at 10-11.\n\n\n\n8\nThe fact that the initial discovery of the conditions occurred before MarkWest began operating\nthe pipeline does not necessarily require that PHMSA find that the company had no knowledge\nof the conditions. Under § 195.401(b), a subsequent operator of a pipeline facility may be held\nresponsible for correcting conditions discovered by a prior operator if the new operator was\naware of them, or if the company had reason to know about them, such as by obtaining the\nnecessary information from the prior operator. Thus, if MarkWest was aware of the conditions\ndiscovered by the prior operator, or should have known about them, then the company would be\nrequired to correct the conditions.\nIn the present case, the conditions at issue were first discovered in 1982 and 1987, dates that\nwere 18 and 13 years prior to MarkWest assuming operations of the pipeline. When MarkWest\nbegan operating the pipeline in 2000, subsequent surveys had been conducted in 1992 and 1997\nthat did not identify anodic conditions at the 43+80 and 98+60 sites. There is no other evidence\nin the record to suggest that MarkWest had reason to believe that anodic conditions existed at\nthose locations or that they had not already been corrected. Therefore, it does not appear that\nMarkWest knew, or should have known, that any conditions existed at those sites when it\nassumed operations in 2000.\nI reach different conclusions about whether Equitable and MarkWest discovered the conditions,\nbecause they were in fundamentally different positions with respect to the actions that took place\nin the 1980s, prior to MarkWest becoming the operator of the pipeline. Equitable was the owner\nof the pipeline at the time in question, and was therefore responsible for the discovery of the\nconditions that took place at that time, whereas MarkWest did not own, operate, or have any\nother involvement with the pipeline until years later and had no reason to suspect the conditions\nwere present or had not been corrected.\nIn conclusion, I find that Equitable, as the owner during the period in question, discovered the\nconditions at 43+80 and 98+60 as a result of the electrical surveys performed in 1982 and 1987.\nI further find there is insufficient evidence to conclude that MarkWest discovered the conditions\nafter it began operating the pipeline in 2000. Since I find insufficient evidence to prove that\nMarkWest discovered the conditions, I must withdraw the allegation of violation with respect to\nthat company.\n(3) Whether Equitable corrected the conditions within a reasonable time of discovery.\nWith regard to the 1982 condition at 43+80, the evidence in the record demonstrates that the\ntechnician performing the survey decided not to install an anode to correct the condition because\nhe believed the pipeline was cased at this particular location. The investigation following the\nAccident found the pipeline was not cased, and there was no evidence that an anode had ever\nbeen installed to correct the condition at 43+80. In its Response, Equitable did not provide any\nevidence that it took action to correct the anodic condition discovered in 1982. Accordingly, I\nfind that Equitable failed to correct this condition within a reasonable time.\nWith regard to the 1987 condition at 98+60, the evidence in the record demonstrates that the\ntechnician decided not to install an anode to correct the condition because he improperly\nassumed that the reading was in error. Despite failing to take any additional readings, the\ntechnician simply assumed that the pipeline had adequate protection against corrosion. The\ninvestigation following the Accident found there was no evidence that an anode had ever been\n\n\n\n9\ninstalled to correct the condition at 98+60 identified during the 1987 survey. Accordingly, I find\nthat Equitable failed to correct this condition within a reasonable time.\nEquitable argues that the subsequent electrical surveys in 1992 and 1997 demonstrated that any\nanodic conditions that may have existed earlier at these two locations had been corrected,\nbecause those surveys did not indicate conditions existed at either 43+80 or 98+60. As evidence\nto support this assertion, Equitable submits the statement of an expert witness who testified that\n“the 1987 survey confirmed that no anodic condition existed at the 43+80 location identified in\nthe 1982 survey,” and “[t]he conclusion that no anodic condition existed at the 43+80 location\nwas further confirmed by the subsequent surveys in 1992 and 1997.”33 He further stated that\n“the surveys performed in 1992 and 1997 . . . did not identify anodic conditions at . . . the site\ndesignated in the 1987 survey as Station No. 98+60.”34\nSince the decisions to not remediate the anodic conditions were in error, and since Equitable\nnever took any action by itself or through its operator to remediate either condition, Equitable\nnever could rightfully assume that the conditions had been remediated. Therefore, I find that\nEquitable failed to correct within a reasonable time of discovery the conditions at 43+80 and\n98+60, which were identified during electrical surveys performed in 1982 and 1987,\nrespectively.\nAccordingly, after considering all of the evidence, I find that Equitable violated 49 C.F.R.\n§ 195.401(b) by failing to correct two conditions that it discovered in 1982 and 1987, which were\nconditions that could adversely affect the safe operation of the pipeline system.\nAfter considering all of the evidence, I find that there is insufficient evidence to prove that\nMarkWest violated 49 C.F.R. § 195.401(b) as alleged in the Notice.\nB. Whether enforcement is barred under the statute of limitations.\nBoth Equitable and MarkWest argue that enforcement of Item 1 is barred by the five-year statute\nof limitations found in 28 U.S.C. § 2462. Specifically, the Companies contend that the\nenforcement window for the violation expired five years after “the expiration of a reasonable\ntime from the discovery of a safety-related condition.”35 MarkWest further suggests that a\n“reasonable time” in which to correct such conditions would be six months, and therefore the\nenforcement period should expire five-and-a-half years after the conditions were discovered in\n1982 and 1987, respectively.36\nIn support of its position that the violation occurred at the end of a reasonable period following\nthe 1982 and 1987 surveys and did not constitute a “continuing violation,” MarkWest relies\nlargely on judicial decisions involving pre-construction permits issued by the Environmental\nProtection Agency (EPA). MarkWest cites several decisions in which courts have found that a\nviolation of certain pre-construction permitting requirements occurred at the time a facility was\n33 Equitable’s Supp. Motion to Dismiss, Attachment A (Garrity Affidavit), at 3.\n34 Id. at 4.\n35 MarkWest’s Motion to Dismiss, at 14; see Equitable’s Supp. Motion to Dismiss, at 9.\n36 MarkWest’s Motion to Dismiss, at 15.\n\n\n\n10\nconstructed or modified, and did not continue after that.37 MarkWest argues that the failure to\ncorrect a dangerous condition on a pipeline is analogous to a failure to obtain a pre-construction\npermit.38\nEquitable further objects to OPS’s characterization of violations as “continuous and ongoing” on\nthe ground that the text of the pipeline safety statute in effect in 1987 “does not create the basis\nfor a potential continuing violation theory.\n”39 This is because, the company argues, the law did\nnot provide that a new violation accrued each day a violation continued.\n40 MarkWest also argues\nthat a continuing violation must “be occasioned by continual unlawful acts, not continual ill\neffects from a lawful violation,”41 and that OPS had alleged “a continuous and ongoing\nconsequence of an earlier violation,” “not a continuous and ongoing violation.”42\nEquitable notes the policy reason for statutes of limitations is “to require actions to be brought\nwhile the facts are fresh, and before such time as ‘evidence has been lost, memories have faded,\nand witnesses have disappeared,’”43 and maintains that the circumstances surrounding the\ndecision not to install anodes in 1982 and 1987 occurred so long ago that they cannot be fairly\nevaluated now.44 MarkWest similarly notes that policy interests in pipeline safety cannot trump\nthose favoring statutes of limitations.45 Finally, MarkWest argues that a “limitations bar against\nPHMSA’s civil penalty claim is not inconsistent with the goal of pipeline safety,” because even\nif a civil penalty is barred, PHMSA still retains the authority to order corrective action.46\nIn its brief, OPS contends that the “statute of limitations defense does not apply to this instance\nbecause the violation was a continuing offense or, in the alternative, there was not one but\ninstead a series of discrete violations.”47 OPS contends that the failure to repair the defects at\nissue in this case was a continuing violation dating from the time of the 1982 and 1987 surveys\nuntil the date of the Accident.48\nOPS also argues, in the alternative, that the failure to correct the\nconditions constitutes a series of discreet daily violations, and that the agency may charge\n37 Id. at 16-17.\n38 Id. at 17-18.\n39 Equitable’s Supp. Motion to Dismiss, at 9\n40 Id. Equitable contrasted this to, for example, the Toxic Substances Control Act (TSCA), which the company\nsuggested might allow for the accrual of daily violations because it reads, “Each day such a violation continues . . .\nconstitutes a separate violation.” Id., quoting 15 U.S.C. § 2615(a)(1) (1986).\n41 MarkWest’s Motion to Dismiss, at 15, quoting New York v. Niagara Mohawk Power Corp., 263 F.Supp.2d 650,\n660 (W.D.N.Y. 2003).\n42 MarkWest’s Motion to Dismiss, at 16 (emphasis in original).\n43 Equitable’s Reply, at 3, quoting Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 349\n(1944).\n44 Equitable’s Supp. Motion to Dismiss, at 9.\n45 MarkWest’s Motion to Dismiss, at 18.\n46 Id. at 17-18.\n47 OPS Response to Equitable, at 15-16; OPS Response to MarkWest, at 9. Emphasis in original.\n48 OPS Response to Equitable, at 15-16.\n\n\n\n11\nRespondents for each day the violation occurred within the five-year period preceding issuance\nof the Notice.49\nOPS further contended that the language of the pipeline safety statute indicates “that a violation\noccurring over a number of days is actually more than one violation with each new day that the\nviolation occurs constituting a new violation,” because the law provides that “[a] separate violation\noccurs for each day the violation continues.”50 OPS cited a court decision that found the failure\nof a facility owner to obtain a preconstruction permit from the EPA was an ongoing offense even\nafter the facility was constructed, and a new violation accrued each day that the owner operated\nthe facility without a permit.51 OPS contended that the daily violations in this case continued\nuntil the date of the pipeline explosion, and therefore the agency’s enforcement of the violations\nfalls within the statute of limitations.52\n(1) Discussion\nIn accordance with 28 U.S.C. § 2462, the statute of limitations for an enforcement action under\nthe pipeline safety regulations is five years.53 A claim generally accrues for statute of limitations\npurposes—meaning that the five-year period begins to run—on the date the violation occurs and\nthe claim must be brought within five years.54 Certain exceptions to the rule that a case may not\nbe brought after five years have been established by courts for violations that are “continuing,”\npermit claims to be brought after the statutory limitations period would otherwise have expired.\noccurred, I evaluate the relevant law to determine whether either of these exceptions apply.\nas well as for violations that are considered a “series of daily violations.”55 These exceptions\nSince the Notice in this case was issued more than five years after the date the violations first\nThe key question for courts seeking to determine whether one of these doctrines applies in the\nregulatory context is whether a defendant had an ongoing obligation to comply. For example, in\nNewell Recycling Co., Inc. v. EPA, the court upheld the decision of the EPA that found the\n49 Id. at 18-19; OPS Response to MarkWest, at 11-12.\n50 OPS Response to MarkWest, at 13.\n51 Id. at 12; OPS Response to Equitable, at 18-19, citing National Parks Conservation Ass’n, Inc. v. TVA, 480 F.3d\n410 (6th Cir. 2007).\n52 OPS Response to MarkWest, at 13-14.\n53 28 U.S.C. § 2462 provides, “Except as otherwise provided by Act of Congress, an action, suit or proceeding for\nthe enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless\ncommenced within five years from the date when the claim first accrued if, within the same period, the offender or\nthe property is found within the United States in order that proper service may be made thereon.” See also 3M v.\nBrowner, 17 F.3d 1453 (D.C. Cir. 1994), which determined that 28 U.S.C. § 2462 applies to administration\nadjudications.\n54 Accrual for statute of limitations purposes should be distinguished from accrual defined as the first date on which\na claim may be brought. A claim may be brought—and therefore “accrues”—on the date the violation occurs. As\nthe Companies state, a violation is generally considered to have occurred on the date it actually began, not on the\ndate the government discovers it. See 3M, 17 F.3d at 1460-63.\n55 See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363 (1980). A “continuing violation” tolls the statute of\nlimitations until the violat","truncated":true,"body_characters":155027}