# MARKWEST RANGER PIPELINE COMPANY, L.L.C. — Notice of Probable Violation

- **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:** Not available
- **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).
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- **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.

Official case documents:

220065001_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

220065001_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

220065001_FinalOrder_02172011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_FinalOrder_02172011.pdf

220065001_FinalOrder_02172011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_FinalOrder_02172011_text.pdf

220065001_notice_letter_06152006.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_notice_letter_06152006.pdf

220065001_notice_letter_06152006_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/220065001_notice_letter_06152006_text.pdf

220065001_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

220065001_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

OpRes_2-2006-5001_Equitable7 26 270001.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220065001/OpRes_2-2006-5001_Equitable7%2026%20270001.pdf

220065001_FinalOrder_02172011_text.pdf

FEB 17 2011
Mr. Martin Fritz
President, Midstream Operations
EQT Corporation
625 Liberty Ave. Suite 1700
Pittsburgh, PA 15222
Mr. John C. Mollenkopf
Senior Vice President, Chief Operations Officer
MarkWest Energy Partners, L.P.
1515 Arapahoe Street
Tower 1, Suite 1600
Denver, CO 80202
Re: CPF No. 2-2006-5001
Dear Messrs. Fritz and Mollenkopf:
Enclosed please find the Final Order issued in the above-referenced case. It makes findings of
violation and assesses a reduced civil penalty of $692,500. The civil penalty apportionment
between Equitable and MarkWest and 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. Wayne Lemoi, Director, Southern Region, PHMSA
Mr. J. Gordon Arbuckle, Attorney for Equitable
Patton Boggs LLP, 2550 M St. NW, Washington, DC 20037
Mr. Patrick D. Traylor, Attorney for MarkWest
Hogan Lovells LLP, 555 13th St. NW, Washington, DC 20004
CERTIFIED MAIL – RETURN RECEIPT REQUESTED [7005 1160 0001 0041 0718]



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, D.C. 20590
____________________________________
In the Matter of )
)
)
Equitable Production Company, )
a division of EQT Corporation, )
and )
MarkWest Hydrocarbon, Inc., )
a subsidiary of )
MarkWest Energy Partners, L.P., )
)
)
Respondents. )
____________________________________)
) CPF No. 2-2006-5001
FINAL ORDER
From November 8 to December 17, 2004, pursuant to 49 U.S.C. § 60117, representatives of the
Pipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety
(OPS), conducted an investigation of a hazardous liquid pipeline accident that occurred on
November 8, 2004, in Ivel, Kentucky (Accident). The pipeline is owned by Equitable
Production Company (Equitable or EQT) and at the time of the Accident was operated by
MarkWest Hydrocarbon, Inc. (MarkWest) (collectively, Respondents or Companies).1
EQT owns or operates approximately 11,000 miles of natural gas and highly volatile liquid
(HVL) pipeline in Kentucky, Virginia, West Virginia, and Pennsylvania. MarkWest owns or
operates approximately 600 miles of pipelines transporting natural gas, crude oil, and HVLs in
several states, including Texas, Oklahoma, and Michigan.
On the morning of November 8, 2004, MarkWest was performing a pigging operation on the
four-inch highly volatile liquids pipeline when the line ruptured beneath a driveway in the
residential neighborhood of Rolling Acres, in the town of Ivel, Kentucky. The ruptured pipeline
released natural gas liquid vapors that were subsequently ignited by an unknown source, causing
a series of explosions that destroyed five homes and injured twelve people, four of whom
required medical attention.
1 On February 9, 2009, the parent of Equitable Production Co., Equitable Resources, Inc., changed its name to EQT
Corporation. On February 21, 2008, MarkWest Hydrocarbon, Inc., became a wholly owned subsidiary of MarkWest
Energy Partners, L.P.



2
The pipeline segment that ruptured is between Flow Stations 3 and 4 on Respondents’
Appalachian Liquid Pipeline System, running between the Maytown liquids extraction plant,
since its construction in 1956, but has had different operators over the years. Between 1979 and
1999, Ashland Pipeline Company (Ashland) operated the pipeline. MarkWest operated the line
near Langley, Kentucky, and Ranger, West Virginia.2 The pipeline has been owned by Equitable
from 2000 until November 2007. Equitable has since resumed operational responsibilities for
the pipeline, although the pipeline is not presently in service.
As a result of the accident investigation, the Director, Southern Region, OPS (Director), issued to
Respondents, by letter dated June 15, 2006, a Notice of Probable Violation and Proposed Civil
Penalty (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that
Equitable and MarkWest had committed various violations of 49 C.F.R. Part 195 and proposed
assessing a civil penalty of $1,070,000 for the alleged violations.
After both Companies requested and received an extension of time to respond, Equitable
1 be dismissed, requested a hearing on the remaining items in the Notice, and asserted that the
case file received from OPS pursuant to 49 C.F.R. § 190.211(e) lacked a sufficient evidentiary
basis for all the items in the Notice despite representations made by OPS that the information
responded on its own behalf by letter dated November 30, 2006.3 Equitable requested that Item
constituted the complete administrative case file.
On March 15, 2007, the designated hearing officer from the Office of Chief Counsel, PHMSA
(Hearing Officer), convened a conference call during which the Companies expressed concern
that certain documentation collected by OPS during its accident investigation had not been
included in the administrative case file. The Hearing Officer postponed setting a hearing date to
provide Respondents and OPS with the opportunity to review any additional materials and to
ensure a complete case file. Respondents subsequently provided lists of documents they
believed were produced during the investigation and requested that OPS locate and determine if
such documents were “material in the case file pertinent to the issues to be determined” as set
forth in § 190.211(e).4 By letter dated February 12, 2009, OPS confirmed that the administrative
record was complete as originally produced, but, following a second conference call on April 15,
2009, provided certain additional documentation to the Companies.5
By letters dated May 29, 2009, Equitable filed a supplement to its request to dismiss Item 1, and
MarkWest filed its first substantive response to the Notice by similarly requesting that Item 1 be
dismissed.6
The Hearing Officer denied the Companies’ requests to dismiss Item 1 on the
ground that a decision would be rendered on the matter in the final order, and set a hearing date
2 Equitable refers to this line as the Kentucky Hydrocarbon pipeline system.
3 Response of Equitable Production Company Including Motion to Dismiss Count 1, Request for Hearing, and
Statement of Issues, November 30, 2006.
4 Letter from Equitable counsel to the Hearing Officer, dated March 28, 2007; Letter from Equitable counsel to the
Hearing Officer, dated April 13, 2007.
5 Letter from OPS counsel to Equitable and MarkWest counsel, dated May 13, 2009.
6 Equitable Production Company’s Supplemental Motion to Dismiss Count 1, May 29, 2009 (Equitable’s Supp.
Motion to Dismiss); MarkWest Hydrocarbon Inc.’s Motion to Dismiss Count 1, May 29, 2009 (MarkWest’s Motion
to Dismiss).



3
for November 3, 2009.7 The Companies then filed briefs responding to various other allegations
in the Notice,8 and OPS submitted responses for the record,9 to which Respondents also
replied.10 By letters dated October 19, 2009, the Companies withdrew their requests for a
hearing, thereby waiving their rights to one and allowing this Final Order to be issued without
further notice based on the written record.11
FINDINGS OF VIOLATION
The Notice alleged that Equitable and MarkWest violated 49 C.F.R. Part 195, as follows:
Item 1: The Notice alleged that Respondents violated 49 C.F.R. § 195.401(b), which states:
§ 195.401 General requirements.
(a) . . . .
(b) Whenever an operator discovers any condition that could
adversely affect the safe operation of its pipeline system, it shall correct it
within a reasonable time. However, if the condition is of such a nature that
it presents an immediate hazard to persons or property, the operator may
not operate the affected part of the system until it has corrected the unsafe
condition.
The Notice alleged that Respondents violated 49 C.F.R. § 195.401(b) by failing to correct two
conditions that could adversely affect the safe operation of the pipeline system. Specifically, the
Notice alleged that Respondents never corrected two anodic conditions discovered during
electrical surveys performed in 1982 and 1987, respectively, conditions which could adversely
ongoing.”
affect pipeline safety.12 The Notice further alleged that these violations were “continuous and
Equitable and MarkWest contested the allegations of violation on several grounds. First, the
Companies argue that the evidence in the record does not support a finding that either
7 Decision on Preliminary Motion to Dismiss, June 12, 2009; Letter from the Hearing Officer to Equitable and
MarkWest counsel, dated July 30, 2009. The Hearing Officer denied the requests for preliminary withdrawal on the
ground that 49 C.F.R. § 190.213 provided for resolution of all material issues in the case by Final Order, and noted
that the Companies’ arguments for withdrawal would be considered in the Final Order.
8 Equitable Production Company’s Hearing Brief, July 22, 2009 (Equitable’s Brief); MarkWest Hydrocarbon, Inc.’s
Response to PHMSA Notice of Probable Violation and Proposed Civil Penalty, July 22, 2009 (MarkWest’s Brief).
9 Opposition to Respondent’s Motion to Dismiss, directed to Equitable, August 27, 2009 (OPS Response to
Equitable); Opposition to Respondent’s Motion to Dismiss, directed to MarkWest, August 27, 2009 (OPS Response
to MarkWest).
10 Equitable Production Company’s Reply to Opposition Brief, September 15, 2009 (Equitable’s Reply); MarkWest
Hydrocarbon, Inc.’s Reply in Support of its Motion to Dismiss, September 15, 2009 (MarkWest’s Reply).
11 Respondent’s Request for a Ruling without a Hearing, October 19, 2009 (Equitable’s Withdrawal); MarkWest
Hydrocarbon, Inc.’s Withdrawal of its Request for a Hearing, October 19, 2009 (MarkWest’s Withdrawal).
12 An anodic condition is an environment conducive to external corrosion of the pipeline absent adequate cathodic
protection.



4
Respondent violated § 195.401(b). Second, the Companies argue that PHMSA is precluded from
bringing an enforcement action for this Item because it is time-barred under the federal statute of
limitations. Finally, Equitable argues that the allegations were already asserted in a previous
enforcement matter by PHMSA, and that the issues were resolved by final agency action.13
These arguments are addressed in turn.
A. Whether the evidence demonstrates Respondents violated § 195.401(b).
Respondents correctly note in their briefs that the appropriate standard of proof for OPS in this
proceeding is the “preponderance of the evidence” standard. Accordingly, I review the evidence
in the record to determine whether the greater weight of evidence supports a finding that the
violations alleged in the Notice occurred.
The regulation cited, 49 C.F.R. § 195.401(b), requires that each operator correct within a
reasonable time any condition discovered that could adversely affect the safe operation of a
pipeline system. A company may be found to have violated this requirement if (1) there was a
condition that could adversely affect the safe operation of the pipeline system, (2) the company
discovered the condition, and (3) the company failed to correct it within a reasonable time. I
must consider each of these elements to determine whether the evidence in the record shows by a
preponderance of the evidence that Respondents violated § 195.401(b) as alleged.
(1) Whether the conditions identified during the 1982 and 1987 surveys could
adversely affect the safe operation of the pipeline system.
PHMSA’s investigation following the Accident revealed that in 1982, the prior operator,
Ashland, had conducted a cathodic protection survey that identified nine locations along the
pipeline between Flow Stations 3 and 4 that showed signs of inadequate protection against
corrosion. These locations all had negative pipe-to-soil potentials and soil resistivity readings
below 10,000 ohm/cm.14 Following the 1982 survey, Ashland installed anodes to increase
cathodic protection at eight of the nine locations, but did not install an anode at survey station
43+80 because the company incorrectly concluded that the line was cased.15 The location of this
anomaly was approximately 120 feet from the site of the Accident.
In 1987, Ashland conducted another electrical survey of the pipeline and found 44 locations
between Flow Stations 3 and 4 that required additional cathodic protection. In particular, the
reading at station 98+60, the eventual site of the Accident, had a soil resistivity reading of only
13 MarkWest did not make this third argument.
14 A soil resistivity of below 10,000 ohm/cm is generally considered to be a corrosive environment, with varying
degrees of corrosivity ranging from very corrosive (0 ohm/cm) to mildly corrosive as the value approaches 10,000.
A.W. Peabody, Control of Pipeline Corrosion 88 (R.L. Bianchetti ed., NACE Press 2001).
15 In some instances, pipelines are cased when they cross under rivers, roads and railroads. A cased crossing is
essentially one where a “carrier” pipe is placed within an outer pipe called a “casing” and centralizers are used to
maintain an equal axial distance between the carrier pipe and the casing. The space between the pipes can be filled
with wax, open to the atmosphere, or sealed. An electrical survey reading alone at a cased location typically would
not indicate an accurate potential for external corrosion of the carrier pipe, since the latter is usually electrically
isolated from the casing.



5
680 ohm/cm, well below 10,000 ohm/cm. The reading was so low that, given the location of the
test point beneath a concrete driveway, Ashland concluded the reading must be incorrect and that
it had been improperly influenced by interference from the driveway itself. There is no evidence
that Ashland conducted any further investigation of the unusually low reading. PHMSA’s
accident investigation also did not find any evidence that an anode had ever been installed at or
near either location 43+80 or 98+60.16
The survey performed in 1987 did not identify the same condition that was identified in 1982 at
43+80, nor did subsequent surveys performed by Ashland in 1992 and 1997 detect either the
1982 or 1987 conditions at 43+80 or 98+60, respectively. The 1992 and 1997 surveys identified
a number of other anodic conditions between Flow Stations 3 and 4, but those other conditions
are not at issue in this case.
In 2002, MarkWest performed its own electrical survey of the pipeline that also failed to identify
anodic conditions at either location, but the company later discovered that the survey had not
been performed correctly. The survey wire had been connected to the vent pipe or pipeline
casing and therefore the readings for that section of the pipeline were likely not accurate.
In its brief, Equitable argues that the two 1982 and 1987 readings did not reflect conditions that
could adversely affect the safe operation of the pipeline system. The company asserts that the
readings had been analyzed by a technician at the time they were taken and “based upon his
expertise, experience, and all of the information available to him,” he determined that “there was
no active corrosion at the specified locations.”17 MarkWest similarly argues that the 1982 and
1987 surveys concluded that the readings did not constitute safety-related conditions based on
the technician’s analysis and that subsequent surveys conducted in 1992, 1997, and 2002
confirmed the absence of safety-related conditions at the two locations.18
With regard to the 1982 condition, the evidence in the record demonstrates that the technician
identified an anodic condition with a soil resistivity of only 3,000 ohm/cm at test station 43+80
and that he indicated this on an inspection form by marking a box that meant an anode was
needed to correct the condition.19 At some point, this recommendation was cancelled by writing
over it “Do Not Install” on the grounds that the “Line Is Cased.”20 The belief that the line was
cased was incorrect. Since the line was not cased, the reading demonstrated that an anodic
condition existed in fact, meaning there was a risk of external corrosion that needed to be
corrected. In his affidavit, the technician did not explain why he believed a cased pipeline would
not require an anode, or at least why further investigation was not warranted despite the low
reading, stating only that he “believed the pipeline in this area was cased, which explained the
data and determined the lack of any need for an anode there.”21
16 Violation Report, at 3. Anodes are typically installed to remediate inadequate cathodic protection.
17 Equitable’s Supp. Motion to Dismiss, at 10.
18 MarkWest’s Motion to Dismiss, at 5.
19 Violation Report Evidence, Exhibit 9, at 5, “Ashland Pipe Line Company, Surface Potential Survey & MG
Anode Installation Data, Aug. 3, 1982.”
20 Id.
21 Equitable’s Supp. Motion to Dismiss, Attachment B (Hendricks Affidavit), at 2.



6
Inadequate protection against corrosion, as evidenced by electrical survey data or low cathodic
protection readings, is a condition that can adversely affect the safe operation of a pipeline
condition that could adversely affect the safety of the pipeline under § 195.401(b), regardless of
the reasonableness of the technician’s mistaken belief.
system.22 Since this pipeline was not cased, the 1982 reading at test station 43+80 indicated a
With regard to the 1987 condition, the evidence in the record demonstrates that the technician
had identified a soil resistivity of only 680 ohm/cm at test station 98+60, which was at the
“centerline [of a] concrete driveway.”23 The location was identified as a “spot,” which meant
that the survey had identified the location as an anodic area with a change in voltage potential
from positive to negative and a corresponding negative potential remote.24 The technician
explained in his testimony that “the soil resistivity reading of 680 ohm/cm was . . . entirely
inconsistent with the typical soil characteristics of the area,” and therefore he “concluded the
data was inaccurate and did not represent an anodic condition.”25 He also explained that it is
“not possible to get an accurate potential measurement when there is blacktop and/or concrete.”26
Had the technician believed the reading was inaccurate due to the presence of the concrete
driveway or for any other reason, a new reading at this location would have been required, such
as taking readings at both sides of the driveway or by drilling a hole in the concrete, to ensure
that a complete electrical survey was performed. Absent additional information taken during the
1987 survey, I find no justification for the operator to disregard the low reading taken at 98+60
and to assume that adequate cathodic protection existed. PHMSA expects operators to take
additional precautions to ensure that they have accurate readings where pipe is located under
concrete or asphalt.
demonstrated a condition consistent with inadequate protection against corrosion, I find that the
anodic area was a condition that could adversely affect the safety of the pipeline. This condition
was also the site of the Accident, which further shows that the condition may have actually
affected the integrity of the pipeline. The reason the low readings were not later detected during
subsequent surveys is not apparent in the record, but at the time the conditions were identified,
they met the criteria for being corrected under the regulation.
27 Because the only reading at this location during the 1987 survey
In conclusion, the readings at issue taken during electrical surveys in 1982 and 1987 indicated
inadequate protection against corrosion and therefore were conditions that could adversely affect
the safe operation of the pipeline system.
22 In the Matter of Colonial Pipeline Co., Final Order, CPF No. 1-2002-5009 (December 10, 2003), at 3 (finding a
violation of § 195.401(b) because the operator had failed to correct low cathodic protection readings, indicating a
risk of corrosion, which is a condition that can adversely affect the safe operation of a pipeline system). PHMSA
enforcement decisions are available online at http://www.phmsa.dot.gov/pipeline/enforcement.
23 Violation Report Evidence, at 43, “Ashland Pipe Line Co., 1987 Cell-to-Cell Surface Potential Summary Sheet,”
Exhibit 11.
24 See, e.g., Violation Report Evidence, “Project Summary for 1992 electrical survey,” Exhibit 12.
25 Hendricks Affidavit, at 3.
26 Id.
27 PHMSA Fact Sheet: Close Interval Survey, available at http://primis.phmsa.dot.gov/comm (follow “Pipeline
Library” hyperlink; then follow “Close Interval Surveys” hyperlink).



7
(2) Whether Respondents discovered the conditions.
Equitable argued that even though Ashland, as the operator of the pipeline at the time of the 1982
and 1987 electrical surveys, discovered the anodic conditions at the two locations in question,
Equitable, as the owner of the pipeline, cannot not be held in violation of the regulation because
it never actually “discovered” the conditions.
The regulation at issue sets forth requirements for “an operator” of a pipeline, but under 49
C.F.R. § 195.2, the requirements also apply to pipeline owners because the term “operator” is
defined in the regulations to include any person “who owns or operates” a pipeline facility.
Federal law also specifies that the pipeline safety standards established by PHMSA “apply to
owners and operators of pipeline facilities.”28 As PHMSA has previously explained, it is not
uncommon for a pipeline owner to contract with a third party for the operation and maintenance
of a pipeline, but such a “contractual arrangement does not absolve the owner from
responsibility” for compliance with the pipeline safety regulations.29 “Whether the owner is an
active participant in the business operation or not is of no consequence,” and the action may be
commenced against either the owner or operator of the pipeline, or both, for the actions
conducted by either party with respect to the facility.30
As the owner of the pipeline in question, Equitable was not only responsible for its own conduct
with respect to the operation and maintenance of the pipeline, but for the conduct of any third
party performing such activities on its facility. The evidence demonstrates that the two anodic
conditions were “discovered” by the operator of the facility, notwithstanding the technician’s
incorrect decision that the conditions did not require further action. As the owner of the pipeline,
Equitable was responsible for correcting these conditions, which could (and, ultimately, may
have) adversely affected the safety of its pipeline system. Therefore, I find that Equitable may
be held liable for any failure to comply with § 195.401(b) with respect to the conditions
discovered on its pipeline requiring remediation.31
MarkWest argues that it never discovered the conditions in 1982 and 1987 either, insofar as it
did not begin operating the pipeline until 2000. MarkWest further contends that by the time it
assumed operations, there was no indication that conditions existed at the two locations based on
electrical surveys conducted by the prior operator in 1992 and 1997. The company also noted
that it conducted its own survey in 2002, which did not identify any conditions at those locations,
although MarkWest acknowledged that the survey was not conducted properly and may not have
produced accurate readings.32
28 49 U.S.C. § 60102.
29 In the Matter of Ozark Gas Transmission, L.L.C., Decision on Petition for Reconsideration, CPF No. 2-2002-
1004, 2003 WL 25429903 (Dec. 31, 2003).
30 Id.
31 In its July 22, 2009 brief, Equitable cited the PHMSA stakeholder’s communication website for the proposition
that a single reading cannot be the basis for discovering an anodic condition. Equitable’s Brief at 2. I am unaware
of any public statement by PHMSA that supports such an assertion, and the company did not quote or otherwise cite
any specific language from that website.
32 MarkWest Motion to Dismiss, at 10-11.



8
The fact that the initial discovery of the conditions occurred before MarkWest began operating
the pipeline does not necessarily require that PHMSA find that the company had no knowledge
of the conditions. Under § 195.401(b), a subsequent operator of a pipeline facility may be held
responsible for correcting conditions discovered by a prior operator if the new operator was
aware of them, or if the company had reason to know about them, such as by obtaining the
necessary information from the prior operator. Thus, if MarkWest was aware of the conditions
discovered by the prior operator, or should have known about them, then the company would be
required to correct the conditions.
In the present case, the conditions at issue were first discovered in 1982 and 1987, dates that
were 18 and 13 years prior to MarkWest assuming operations of the pipeline. When MarkWest
began operating the pipeline in 2000, subsequent surveys had been conducted in 1992 and 1997
that did not identify anodic conditions at the 43+80 and 98+60 sites. There is no other evidence
in the record to suggest that MarkWest had reason to believe that anodic conditions existed at
those locations or that they had not already been corrected. Therefore, it does not appear that
MarkWest knew, or should have known, that any conditions existed at those sites when it
assumed operations in 2000.
I reach different conclusions about whether Equitable and MarkWest discovered the conditions,
because they were in fundamentally different positions with respect to the actions that took place
in the 1980s, prior to MarkWest becoming the operator of the pipeline. Equitable was the owner
of the pipeline at the time in question, and was therefore responsible for the discovery of the
conditions that took place at that time, whereas MarkWest did not own, operate, or have any
other involvement with the pipeline until years later and had no reason to suspect the conditions
were present or had not been corrected.
In conclusion, I find that Equitable, as the owner during the period in question, discovered the
conditions at 43+80 and 98+60 as a result of the electrical surveys performed in 1982 and 1987.
I further find there is insufficient evidence to conclude that MarkWest discovered the conditions
after it began operating the pipeline in 2000. Since I find insufficient evidence to prove that
MarkWest discovered the conditions, I must withdraw the allegation of violation with respect to
that company.
(3) Whether Equitable corrected the conditions within a reasonable time of discovery.
With regard to the 1982 condition at 43+80, the evidence in the record demonstrates that the
technician performing the survey decided not to install an anode to correct the condition because
he believed the pipeline was cased at this particular location. The investigation following the
Accident found the pipeline was not cased, and there was no evidence that an anode had ever
been installed to correct the condition at 43+80. In its Response, Equitable did not provide any
evidence that it took action to correct the anodic condition discovered in 1982. Accordingly, I
find that Equitable failed to correct this condition within a reasonable time.
With regard to the 1987 condition at 98+60, the evidence in the record demonstrates that the
technician decided not to install an anode to correct the condition because he improperly
assumed that the reading was in error. Despite failing to take any additional readings, the
technician simply assumed that the pipeline had adequate protection against corrosion. The
investigation following the Accident found there was no evidence that an anode had ever been



9
installed to correct the condition at 98+60 identified during the 1987 survey. Accordingly, I find
that Equitable failed to correct this condition within a reasonable time.
Equitable argues that the subsequent electrical surveys in 1992 and 1997 demonstrated that any
anodic conditions that may have existed earlier at these two locations had been corrected,
because those surveys did not indicate conditions existed at either 43+80 or 98+60. As evidence
to support this assertion, Equitable submits the statement of an expert witness who testified that
“the 1987 survey confirmed that no anodic condition existed at the 43+80 location identified in
the 1982 survey,” and “[t]he conclusion that no anodic condition existed at the 43+80 location
was further confirmed by the subsequent surveys in 1992 and 1997.”33 He further stated that
“the surveys performed in 1992 and 1997 . . . did not identify anodic conditions at . . . the site
designated in the 1987 survey as Station No. 98+60.”34
Since the decisions to not remediate the anodic conditions were in error, and since Equitable
never took any action by itself or through its operator to remediate either condition, Equitable
never could rightfully assume that the conditions had been remediated. Therefore, I find that
Equitable failed to correct within a reasonable time of discovery the conditions at 43+80 and
98+60, which were identified during electrical surveys performed in 1982 and 1987,
respectively.
Accordingly, after considering all of the evidence, I find that Equitable violated 49 C.F.R.
§ 195.401(b) by failing to correct two conditions that it discovered in 1982 and 1987, which were
conditions that could adversely affect the safe operation of the pipeline system.
After considering all of the evidence, I find that there is insufficient evidence to prove that
MarkWest violated 49 C.F.R. § 195.401(b) as alleged in the Notice.
B. Whether enforcement is barred under the statute of limitations.
Both Equitable and MarkWest argue that enforcement of Item 1 is barred by the five-year statute
of limitations found in 28 U.S.C. § 2462. Specifically, the Companies contend that the
enforcement window for the violation expired five years after “the expiration of a reasonable
time from the discovery of a safety-related condition.”35 MarkWest further suggests that a
“reasonable time” in which to correct such conditions would be six months, and therefore the
enforcement period should expire five-and-a-half years after the conditions were discovered in
1982 and 1987, respectively.36
In support of its position that the violation occurred at the end of a reasonable period following
the 1982 and 1987 surveys and did not constitute a “continuing violation,” MarkWest relies
largely on judicial decisions involving pre-construction permits issued by the Environmental
Protection Agency (EPA). MarkWest cites several decisions in which courts have found that a
violation of certain pre-construction permitting requirements occurred at the time a facility was
33 Equitable’s Supp. Motion to Dismiss, Attachment A (Garrity Affidavit), at 3.
34 Id. at 4.
35 MarkWest’s Motion to Dismiss, at 14; see Equitable’s Supp. Motion to Dismiss, at 9.
36 MarkWest’s Motion to Dismiss, at 15.



10
constructed or modified, and did not continue after that.37 MarkWest argues that the failure to
correct a dangerous condition on a pipeline is analogous to a failure to obtain a pre-construction
permit.38
Equitable further objects to OPS’s characterization of violations as “continuous and ongoing” on
the ground that the text of the pipeline safety statute in effect in 1987 “does not create the basis
for a potential continuing violation theory.
”39 This is because, the company argues, the law did
not provide that a new violation accrued each day a violation continued.
40 MarkWest also argues
that a continuing violation must “be occasioned by continual unlawful acts, not continual ill
effects from a lawful violation,”41 and that OPS had alleged “a continuous and ongoing
consequence of an earlier violation,” “not a continuous and ongoing violation.”42
Equitable notes the policy reason for statutes of limitations is “to require actions to be brought
while the facts are fresh, and before such time as ‘evidence has been lost, memories have faded,
and witnesses have disappeared,’”43 and maintains that the circumstances surrounding the
decision not to install anodes in 1982 and 1987 occurred so long ago that they cannot be fairly
evaluated now.44 MarkWest similarly notes that policy interests in pipeline safety cannot trump
those favoring statutes of limitations.45 Finally, MarkWest argues that a “limitations bar against
PHMSA’s civil penalty claim is not inconsistent with the goal of pipeline safety,” because even
if a civil penalty is barred, PHMSA still retains the authority to order corrective action.46
In its brief, OPS contends that the “statute of limitations defense does not apply to this instance
because the violation was a continuing offense or, in the alternative, there was not one but
instead a series of discrete violations.”47 OPS contends that the failure to repair the defects at
issue in this case was a continuing violation dating from the time of the 1982 and 1987 surveys
until the date of the Accident.48
OPS also argues, in the alternative, that the failure to correct the
conditions constitutes a series of discreet daily violations, and that the agency may charge
37 Id. at 16-17.
38 Id. at 17-18.
39 Equitable’s Supp. Motion to Dismiss, at 9
40 Id. Equitable contrasted this to, for example, the Toxic Substances Control Act (TSCA), which the company
suggested might allow for the accrual of daily violations because it reads, “Each day such a violation continues . . .
constitutes a separate violation.” Id., quoting 15 U.S.C. § 2615(a)(1) (1986).
41 MarkWest’s Motion to Dismiss, at 15, quoting New York v. Niagara Mohawk Power Corp., 263 F.Supp.2d 650,
660 (W.D.N.Y. 2003).
42 MarkWest’s Motion to Dismiss, at 16 (emphasis in original).
43 Equitable’s Reply, at 3, quoting Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 349
(1944).
44 Equitable’s Supp. Motion to Dismiss, at 9.
45 MarkWest’s Motion to Dismiss, at 18.
46 Id. at 17-18.
47 OPS Response to Equitable, at 15-16; OPS Response to MarkWest, at 9. Emphasis in original.
48 OPS Response to Equitable, at 15-16.



11
Respondents for each day the violation occurred within the five-year period preceding issuance
of the Notice.49
OPS further contended that the language of the pipeline safety statute indicates “that a violation
occurring over a number of days is actually more than one violation with each new day that the
violation occurs constituting a new violation,” because the law provides that “[a] separate violation
occurs for each day the violation continues.”50 OPS cited a court decision that found the failure
of a facility owner to obtain a preconstruction permit from the EPA was an ongoing offense even
after the facility was constructed, and a new violation accrued each day that the owner operated
the facility without a permit.51 OPS contended that the daily violations in this case continued
until the date of the pipeline explosion, and therefore the agency’s enforcement of the violations
falls within the statute of limitations.52
(1) Discussion
In accordance with 28 U.S.C. § 2462, the statute of limitations for an enforcement action under
the pipeline safety regulations is five years.53 A claim generally accrues for statute of limitations
purposes—meaning that the five-year period begins to run—on the date the violation occurs and
the claim must be brought within five years.54 Certain exceptions to the rule that a case may not
be brought after five years have been established by courts for violations that are “continuing,”
permit claims to be brought after the statutory limitations period would otherwise have expired.
occurred, I evaluate the relevant law to determine whether either of these exceptions apply.
as well as for violations that are considered a “series of daily violations.”55 These exceptions
Since the Notice in this case was issued more than five years after the date the violations first
The key question for courts seeking to determine whether one of these doctrines applies in the
regulatory context is whether a defendant had an ongoing obligation to comply. For example, in
Newell Recycling Co., Inc. v. EPA, the court upheld the decision of the EPA that found the
49 Id. at 18-19; OPS Response to MarkWest, at 11-12.
50 OPS Response to MarkWest, at 13.
51 Id. at 12; OPS Response to Equitable, at 18-19, citing National Parks Conservation Ass’n, Inc. v. TVA, 480 F.3d
410 (6th Cir. 2007).
52 OPS Response to MarkWest, at 13-14.
53 28 U.S.C. § 2462 provides, “Except as otherwise provided by Act of Congress, an action, suit or proceeding for
the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless
commenced within five years from the date when the claim first accrued if, within the same period, the offender or
the property is found within the United States in order that proper service may be made thereon.” See also 3M v.
Browner, 17 F.3d 1453 (D.C. Cir. 1994), which determined that 28 U.S.C. § 2462 applies to administration
adjudications.
54 Accrual for statute of limitations purposes should be distinguished from accrual defined as the first date on which
a claim may be brought. A claim may be brought—and therefore “accrues”—on the date the violation occurs. As
the Companies state, a violation is generally considered to have occurred on the date it actually began, not on the
date the government discovers it. See 3M, 17 F.3d at 1460-63.
55 See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363 (1980). A “continuing violation” tolls the statute of
limitations until the violat
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