{"operation":"document","citation":"CPF 220136002","title":"ENMARK ENERGY, INC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2013-03-11","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.440(a), 195.440(b), 195.440(e).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-220136002.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-220136002.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-220136002","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/220136002","body":"Notice of Probable Violation involving ENMARK ENERGY, INC. PHMSA's enforcement data identifies the cited regulations as 195.440(a),  195.440(b),  195.440(e). The case was opened on 2013-03-11 and is reported as closed as of 2013-06-13. Proposed civil penalty: $20,000. Assessed civil penalty: $20,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n220136002_Final Order_06132013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220136002/220136002_Final%20Order_06132013.pdf\n\n220136002_Final Order_06132013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220136002/220136002_Final%20Order_06132013_text.pdf\n\n220136002_NOPV_PCP_03112013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220136002/220136002_NOPV_PCP_03112013.pdf\n\n220136002_NOPV_PCP_03112013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220136002/220136002_NOPV_PCP_03112013_text.pdf\n\n220136002_Operator Response_04092013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220136002/220136002_Operator%20Response_04092013.pdf\n\n220136002_Final Order_06132013_text.pdf\n\nJUNE 13, 2013\nMr. Connell R. Rader\nPresident\nEnmark Energy, Inc.\n104 First Choice Drive, Suite A\nMadison, MS 39110\nRe: CPF No. 2-2013-6002\nDear Mr. Rader:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a civil penalty of $20,000. This is to acknowledge receipt of payment of\nthe full penalty amount, by wire transfer, dated April 9, 2013. This enforcement action is now\nclosed. Service of the Final Order by certified mail is deemed effective upon the date of mailing,\nor as otherwise provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Wayne T. Lemoi, Director, Southern Region, OPS\nMr. Alan Mayberry, Deputy Associate Administrator for Field Operations, OPS\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\n)\nIn the Matter of )\n)\nEnmark Energy, Inc., ) CPF No. 2-2013-6002\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nOn October 16, 2012 and October 17, 2012, pursuant to 49 U.S.C. § 60117, a representative of\nthe Pipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety\n(OPS), conducted an on-site pipeline safety inspection of the facilities and records of Enmark\nEnergy, Inc., (Enmark or Respondent) in Madison, Mississippi. Enmark operates and maintains\nover one hundred miles of high-pressure natural gas and carbon dioxide lines, in the state of\nMississippi.1\nAs a result of the inspection, the Director, Southern Region, OPS (Director), issued to\nRespondent, by letter dated March 11, 2013, a Notice of Probable Violation and Proposed Civil\nPenalty (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that\nEnmark had violated 49 C.F.R. §§ 195.440(a), 195.440(b) and 195.440(e); and proposed\nassessing a civil penalty of $20,000 for the alleged violations.\nEnmark responded to the Notice by letter dated April 9, 2013 (Response). The company did not\ncontest the allegations of violation and paid the proposed civil penalty of $20,000, as provided in\n49 C.F.R. § 190.227, on April 9, 2013. Payment of the penalty serves to close the case with\nprejudice to Respondent.\nFINDINGS OF VIOLATION\nIn its Response, Enmark did not contest the allegations in the Notice that it violated\n49 C.F.R. Part 195, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.440(a), which states:\n1 See, http://enmarkenergy.com/About.html, last accessed May 9, 2013.\n\n\n\n2\n§ 195.440 Public awareness.\n(a) Each pipeline operator must develop and implement a written\ncontinuing public education program that follows the guidance provided in\nthe American Petroleum Institute’s (API) Recommended Practice (RP)\n1162 (incorporated by reference, see §195.3).\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.440(a) by failing to implement a\nwritten continuing public education program meeting the general program requirements of\nAPI RP 1162 and its written procedures. The Notice alleged that although Enmark developed its\nPublic Awareness and Damage Prevention Program (PADPP), the company did not properly\nimplement its program in accordance with its written procedures, Section 8.2.3, “Measuring\nProgram Effectiveness.” Specifically, Enmark’s PADPP, Section 8.2.3, requires that the\ncompany perform an annual review of its program by internal self-assessments, third-party audits\nor regulatory inspections. Enmark was unable to provide any records or other documentation to\ndemonstrate that it had reviewed its public awareness program to ensure proper implementation.\nRespondent did not contest this allegation of violation. Accordingly, based upon a review of all\nof the evidence, I find that Respondent violated 49 C.F.R. § 195.440(a) by failing to implement a\nwritten continuing public education program meeting the general requirement of API RP 1162\nand its written procedures that required an annual review of its PADPP to ensure proper\nimplementation.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.440(a), which states:\n§ 195.440 Public awareness.\n(a) Each pipeline operator must develop and implement a written\ncontinuing public education program that follows the guidance provided in\nthe American Petroleum Institute’s (API) Recommended Practice (RP)\n1162 (incorporated by reference, see §195.3).\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.440(a) by failing to implement a\nwritten continuing public education program that followed the guidance provided in\nAPI RP 1162 and Section 8.3 of its PADPP procedures. Specifically, the Notice alleged that\nEnmark failed to perform a program effectiveness evaluation as set forth in Section 8.3 of its\nprocedures. Although Enmark had surveyed and collected data from others regarding its public\neducation program, the collection of data did not constitute a program effectiveness evaluation of\nEnmark’s public education program. Further, the information collected did not relate to\nEnmark’s carbon dioxide pipelines nor was there any analysis of the data collected. Respondent\ndid not contest this allegation of violation. Accordingly, based upon a review of all of the\nevidence, I find that Respondent violated 49 C.F.R. § 195.440(a) by failing to perform a program\neffectiveness evaluation.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 195.440(b), which states:\n§ 195.440 Public awareness.\n(b) The operator’s program must follow the general program\nrecommendations of API RP 1162 and assess the unique attributes and\n\n\n\n3\ncharacteristics of the operator’s pipeline and facilities.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.440(b) by failing to implement a\ncontinuing public education program that assessed the unique attributes and characteristics of\nEnmark’s pipeline system. Specifically, the Notice alleged that from 2007 until 2011 Enmark\nprovided brochures to the public that did not describe the types of products it transported or the\nunique attributes and characteristics of the products in Enmark’s pipelines. Enmark transports\ncarbon dioxide but the brochures provided information about the transportation of petroleum\nproducts. These products have significantly different attributes and characteristics. Respondent\ndid not contest this allegation of violation. Accordingly, based upon a review of all of the\nevidence, I find that Respondent violated 49 C.F.R. § 195.440(b) by failing to provide the target\naudience with the proper information regarding the unique attributes and characteristics of its\npipelines.\nItem 4: The Notice alleged that Respondent violated 49 C.F.R. § 195.440(e), which states:\n§ 195.440 Public awareness.\n(e) The program must include activities to advise affected\nmunicipalities, school districts, businesses, and residents of pipeline\nfacility locations.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.440(e) by failing to include in its\npublic education program baseline message materials, sufficient information for local\nmunicipalities, school districts, businesses, and residents to be able to locate and identify\nEnmark’s pipelines and failing to provide them with the appropriate contact information for the\ncompany. Specifically, the Notice alleged that from 2007 to 2011, Enmark failed to properly\nidentify the location of its pipelines, only providing information regarding the National Pipeline\nMapping System and how someone could obtain the location of its pipelines. Additionally,\nEnmark failed to provide its necessary contact information should an emergency arise, only\nproviding public service contact information. Enmark was required to provide information\nregarding the location of its pipelines and at least provide its name and contact information as the\nentity to call should an issue arise regarding its pipeline. Respondent did not contest this\nallegation of violation. Accordingly, based upon a review of all of the evidence, I find that\nRespondent violated 49 C.F.R. § 195.440(e) by failing to provide the necessary information\nregarding its pipelines and who to contact should and incident occur.\nThese findings of violation will be considered prior offenses in any subsequent enforcement\naction taken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any\n\n\n\n4\nrelated series of violations.2 In determining the amount of a civil penalty under\n49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,\ncircumstances, and gravity of the violation, including adverse impact on the environment; the\ndegree of Respondent’s culpability; the history of Respondent’s prior offenses; and any effect\nthat the penalty may have on its ability to continue doing business; and the good faith of\nRespondent in attempting to comply with the pipeline safety regulations. In addition, I may\nconsider the economic benefit gained from the violation without any reduction because of\nsubsequent damages, and such other matters as justice may require. The Notice proposed a total\ncivil penalty of $20,000 for the violations cited above.\nItem 2: The Notice proposed a civil penalty of $10,000 for Respondent’s violation of\n49 C.F.R. § 195.440(a), for failing to implement a written continuing public education program\nthat followed the guidance provided in API RP 1162 and Section 8.3 of its PADPP procedures.\nEnmark paid the proposed penalty, which serves to close this Item with prejudice and authorizes\nPHMSA to make a finding of violation. Accordingly, having reviewed the record and\nconsidered the assessment criteria, I assess Respondent a civil penalty of $10,000 for violation of\n49 C.F.R. § 195.440(a).\nItem 3: The Notice proposed a civil penalty of $10,000 for Respondent’s violation of\n49 C.F.R. § 195.440(b), for failing to implement a continuing public education program that\nassessed the unique attributes and characteristics of Enmark’s pipeline system. Enmark paid the\nproposed penalty, which serves to close this Item with prejudice and authorizes PHMSA to make\na finding of violation. Accordingly, having reviewed the record and considered the assessment\ncriteria, I assess Respondent a civil penalty of $10,000 for violation of 49 C.F.R. § 195.440(b).\nIn summary, having reviewed the record and considered the assessment criteria for each of the\nItems cited above, I assess Respondent a total civil penalty of $20,000, which has been paid in\nfull.\nWARNING ITEMS\nWith respect to Items 1 and 4, the Notice alleged probable violations of Part 195.440 but did not\npropose a civil penalty or compliance order for these items. Therefore, these are considered to\nbe warning items. The warning(s) were for:\n49 C.F.R. § 195.440(a) (Item 1) ─ Respondent’s alleged failure to perform an\nannual review of its Public Awareness and Damage Prevention Program in\naccordance with Section 8.2.3 of Enmark’s program, “Measuring Program\nEffectiveness;” and\n2 The Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, Pub. L. No. 112-90, § 2(a)(1), 125 Stat.\n1904, January 3, 2012, increased the civil penalty liability for violating a pipeline safety standard to $200,000 per\nviolation for each day of the violation, up to a maximum of $2,000,000 for any related series of violations.\n\n\n\n5\n49 C.F.R. § 195.440(e) (Item 4) ─ Respondent’s alleged failure to include in its\npublic education program baseline message materials with sufficient information\nfor local municipalities, school districts, businesses and residents to be able to\nlocate and identify its pipelines and provide them with Enmark’s appropriate\ncontact information.\nEnmark presented information in its Response showing that it had taken certain actions to\naddress the cited items. If OPS finds a violation of any of these items in a subsequent inspection,\nRespondent may be subject to future enforcement action.\nThe terms and conditions of this Final Order are effective upon service in accordance with\n49 C.F.R. § 190.5.\n___________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":13633}