{"operation":"document","citation":"CPF 320125018","title":"ENBRIDGE ENERGY, LIMITED PARTNERSHIP — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2012-08-27","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(c)(3), 195.402(d)(1), 195.52.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320125018.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320125018.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320125018","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320125018","body":"Notice of Probable Violation involving ENBRIDGE ENERGY, LIMITED PARTNERSHIP. PHMSA's enforcement data identifies the cited regulations as 195.402(c)(3),  195.402(d)(1),  195.52. The case was opened on 2012-08-27 and is reported as closed as of 2013-09-09. Proposed civil penalty: $118,700. Assessed civil penalty: $112,500. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320125018_Final Order_08222013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320125018/320125018_Final%20Order_08222013.pdf\n\n320125018_Final Order_08222013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320125018/320125018_Final%20Order_08222013_text.pdf\n\n320125018_NOPV PCP_08272012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320125018/320125018_NOPV%20PCP_08272012.pdf\n\n320125018_NOPV PCP_08272012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320125018/320125018_NOPV%20PCP_08272012_text.pdf\n\n320125018_Operator Response to Notice_10162012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320125018/320125018_Operator%20Response%20to%20Notice_10162012.pdf\n\n320125018_Final Order_08222013_text.pdf\n\nAUGUST 22, 2013\nMr. Richard Bird\nChief Executive Officer\nEnbridge Energy, Limited Partnership\nCity Center Office\n1409 Hammond Avenue\nSuperior, Wisconsin 54880-5247\nRe: CPF No. 3-2012-5018\nDear Mr. Bird:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a reduced civil penalty of $112,500. The penalty payment terms are set\nforth in the Final Order. This enforcement action closes automatically upon receipt of payment.\nService of the Final Order by certified mail is deemed effective upon the date of mailing, or as\notherwise 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: Ms. Linda Daugherty, Deputy Associate Administrator for Field Operations, OPS\nMr. Bradley F. Shamla, Vice President, U.S. Operations, Enbridge Energy, Limited\nPartnership, East Duluth Office, 26 East Superior Street, Suite 309, Duluth, MN\n55802\nMr. Shaun Kavajecz, Manager, U.S. Pipeline Compliance, Enbridge Pipelines\n(Lakehead) L.L.C., 119 N. 25th Street E, Superior, Wisconsin 54880\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____________________________________\nIn the Matter of )\nEnbridge Energy, Limited Partnership, ) )\n)\n)\nRespondent. )\n____________________________________)\nCPF No. 3-2012-5018\nFINAL ORDER\nOn May 22, 2009, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), investigated a crude\noil release that occurred on Enbridge Energy, Limited Partnership’s Line 61 in Superior,\nWisconsin. The accident resulted in the release of 154 barrels of crude oil, removal of 700 cubic\nyards of contaminated soil, and reported property damage, lost product, and clean-up costs of\n$117,257. Enbridge Energy, Limited Partnership (Enbridge or Respondent) owns and operates\napproximately 3,386 miles of liquid pipelines running from Oklahoma to Illinois, North Dakota\nto Illinois, Montana to Minnesota, and across Louisiana and Mississippi.1\nAs a result of the investigation, the Director, Central Region, OPS (Director), issued to\nRespondent, by letter dated August 27, 2012, a Notice of Probable Violation and Proposed Civil\nPenalty (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that\nEnbridge had violated 49 C.F.R. §§ 195.52, 195.402(c)(3) and 195.402(d)(1) and proposed\nassessing a civil penalty of $118,700 for the alleged violations.\nEnbridge responded to the Notice by letter dated October 16, 2012 (Response).2 The company\ncontested the allegations and offered additional information in response to the Notice.\nRespondent did not request a hearing and therefore has waived its right to one.\n1 See http://enbridgepartners.com/Delivering-Energy/Pipeline-Systems/Liquids-Pipelines (last accessed on\nMay 6, 2013).\n2 The Notice was mailed on August 27, 2012 and the Response was dated October 16, 2012. Pursuant to 49 C.F.R.\n§ 190.209, a response must be submitted to PHMSA within 30 days of receipt of the Notice.\n\n\n\n2\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.52, which states in relevant\npart:\n§ 195.52 Immediate notice of certain accidents.\n(a) Notice requirements. At the earliest practicable moment following\ndiscovery of a release of the hazardous liquid or carbon dioxide\ntransported resulting in an event described in § 195.50, the operator of the\nsystem must give notice, in accordance with paragraph (b) of this section,\nof any failure that…\n(3) Caused estimated property damage, including cost of cleanup and\nrecovery, value of lost product, and damage to the property of the operator\nor others, or both, exceeding $50,000.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.52 by failing to provide notice of a\ncrude oil release meeting PHMSA’s immediate reporting requirements. Specifically, the Notice\nalleged that Enbridge did not report its May 21, 2009 release from the Pig Trap Sender on Line\n61 at the Superior Terminal within 1-2 hours.\nIn its Response, Enbridge contends that this release did not initially meet any of the reporting\ncriteria since the oil was immediately contained on Enbridge property in an isolated retention\nbasin. However, the company made the notification to the National Response Center (NRC) as a\nprecautionary measure. According to Enbridge, the incident occurred at 16:00 Central Daylight\nTime and the company contacted the NRC at 18:32 Central Daylight Time.3 In light of the\ncircumstances involving this release and the fact that Enbridge made its notification within 2.5\nhours of discovery of the release, Enbridge believes it contacted the NRC at the earliest\npracticable moment, in compliance with § 195.52.\nSection 195.52 requires that operators report releases meeting certain requirements at the earliest\npracticable moment following discovery of a release. Since 1971, through interpretations,\nadvisory bulletins, and numerous enforcement cases, PHMSA has interpreted “earliest\npracticable moment” to mean within 1-2 hours. Furthermore, PHMSA has held that “discovery”\nrelates to the actual release, not to the realization that an incident has resulted in circumstances\n(e.g., property damage) that render the release reportable.4\nEnbridge was required to report the release within 1-2 hours and failed to do so. Accordingly,\nbased upon a review of all of the evidence, I find that Respondent violated 49 C.F.R. § 195.52 by\n3 See Response.\n4 E.g., In the Matter of Texas Eastern Transmission Corporation, CPF No. 4-2001-1003, at 3 (May 5, 2005), citing\nIn the Matter of Enstar Natural Gas Company, CPF No. 52016 (May 14, 1997). See also, In the Matter of Buckeye\nPartners, LP, 3-2010-5006 (November 19, 2012).\n\n\n\n3\nfailing to provide notice of a crude oil release at the earliest practicable moment, within 1-2\nhours of discovery.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(c), which states in\nrelevant part:\n§ 195.402(c) Procedural manual for operations, maintenance, and emergencies.\n(a) General. Each operator shall prepare and follow for each pipeline\nsystem a manual of written procedures for conducting normal operations\nand maintenance activities and handling abnormal operations and\nemergencies. This manual shall be reviewed at intervals not exceeding 15\nmonths, but at least once each calendar year, and appropriate changes\nmade as necessary to insure that the manual is effective. This manual\nshall be prepared before initial operations of a pipeline commence, and\nappropriate parts shall be kept at locations where operations and\nmaintenance activities are conducted…\n(c) Maintenance and normal operations. The manual required by\nparagraph (a) of this section must include procedures for the following to\nprovide safety during maintenance and normal operations…\n(3) Operating, maintaining, and repairing the pipeline system in\naccordance with each of the requirements of this subpart and subpart H of\nthis part.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.402(c)(3) by failing to follow its\nwritten procedures for Lock Out/Tag Out (LOTO) of equipment. Specifically, the Notice alleged\nthat Enbridge had locked out the valves associated with Enbridge’s Line 61 Pig Sending Trap but\nno LOTO log was completed. In addition, Enbridge personnel failed to complete the Pressure\nPiping Isolation (Valve Positioning) Form, as required by its LOTO procedures. As a result, a\ntechnician was unaware that the trap vent valve had been left in the open position, and when the\ncontrol center issued a de-isolation command, crude oil flooded the trap, drained through the\nopen valve, and overflowed the trap sump, resulting in a release of 154 barrels of crude oil.\nIn Response, Enbridge acknowledged that the main cause of this incident was a\nmiscommunication between Enbridge personnel regarding the open vent line. In its Response,\nEnbridge discussed corrective actions it had taken, including revising the LOTO procedures and\ncreating a detailed communication process to avoid a similar occurrence.\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated\n49 C.F.R. § 195.402(c)(3) by failing to follow its written LOTO procedures.\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\n\n\n4\n$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any\nrelated series of violations. In determining the amount of a civil penalty under 49 U.S.C.\n§ 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,\ncircumstances, and gravity of the violation, including adverse impact on the environment; the\ndegree of Respondent’s culpability; the history of Respondent’s prior offenses; the Respondent’s\nability to pay the penalty and any effect that the penalty may have on its ability to continue doing\nbusiness; and the good faith of Respondent in attempting to comply with the pipeline safety\nregulations. In addition, I may consider the economic benefit gained from the violation without\nany reduction because of subsequent damages, and such other matters as justice may require.\nThe Notice proposed a total civil penalty of $118,700 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $18,700 for Respondent’s violation of 49 C.F.R.\n§ 195.52, for failing to give proper notice of a hazardous liquid release. As discussed above,\noperators are expected to report releases meeting the criteria of § 195.50 within 1-2 hours of\ndiscovery of the release. Respondent should have reported the release within 1-2 hours.\nTherefore, a civil penalty is appropriate. I have reviewed the civil penalty criteria listed in\n§ 190.225 and note that the prior history factor is particularly relevant since Enbridge had 12\nviolations in the five years preceding the date of the Notice.5 However, the fact that Enbridge\nreported the release only 32 minutes late should be accounted for, to some degree, as part of the\nculpability factor. Therefore, I am reducing the proposed civil penalty amount from $18,700 to\n$12,500.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $12,500 for violation of 49 C.F.R. § 195.52.\nItem 2: The Notice proposed a civil penalty of $100,000 for Respondent’s violation of\n49 C.F.R. § 195.402(c)(3), for failing to follow its written LOTO procedures. Enbridge did not\ncontest the associated civil penalty for this item. I have reviewed the assessment criteria listed in\n§ 190.225 and find that the proposed civil penalty amount is appropriate considering that this\nviolation was critical to the cause of the 154 barrel spill. Accordingly, having reviewed the\nrecord and considered the assessment criteria, I assess Respondent a civil penalty of $100,000 for\nviolation of 49 C.F.R. § 195.402(c)(3).\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 $112,500.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations\n(49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through the Federal\nReserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed\ninstructions are contained in the enclosure. Questions concerning wire transfers should be\ndirected to: Financial Operations Division (AMZ-341), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P.O. Box 269039, Oklahoma City, Oklahoma 73125. The\nFinancial Operations Division telephone number is (405) 954-8893.\nFailure to pay the $112,500 civil penalty will result in accrual of interest at the current annual\n5 See Part D-History of Prior Offenses, Pipeline Safety Violation Report, page 23.\n\n\n\n5\nrate in accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to\nthose same authorities, a late penalty charge of six percent (6%) per annum will be charged if\npayment is not made within 110 days of service. Furthermore, failure to pay the civil penalty\nmay result in referral of the matter to the Attorney General for appropriate action in a district\ncourt of the United States.\nWARNING ITEM\nWith respect to Item 3, the Notice alleged a probable violation of Part 195 but did not propose a\ncivil penalty or compliance order for this item. Therefore, this is considered to be warning\nitem. The warning was for:\n49 C.F.R. § 195.402(d)(1) (Item 3) ─ Respondent’s alleged failure to establish\nprocedures for responding to deviations from normal operation. Respondent’s\nprocedures for responding to a Sump Level High-High alarm for the Line 61 Pig\nSending Trap Sump were inadequate because they did not require specific\ncorrective action to be taken by the Control Center Operator.\nEnbridge presented information in its Response showing that it had taken certain actions to\naddress the cited item. If OPS finds a violation of this provision in a subsequent inspection,\nRespondent may be subject to future enforcement action.\nUnder 49 C.F.R. § 190.215, Respondent has the right to submit a Petition for Reconsideration of\nthis Final Order. The petition must be sent to: Associate Administrator, Office of Pipeline\nSafety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor, Washington, DC\n20590, with a copy sent to the Office of Chief Counsel, PHMSA, at the same address. PHMSA\nwill accept petitions received no later than 20 days after receipt of service of the Final Order by\nthe Respondent, provided they contain a brief statement of the issue(s) and meet all other\nrequirements of 49 C.F.R. § 190.215. The filing of a petition automatically stays the payment of\nany civil penalty assessed but does not stay any other provisions of the Final Order, including\nany required corrective actions. If Respondent submits payment of the civil penalty, the Final\nOrder becomes the final administrative decision and the right to petition for reconsideration is\nwaived.\nThe terms and conditions of this Final Order are effective upon service in accordance with\n49 C.F.R. § 190.5.\n___________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":15946}