{"operation":"document","citation":"CPF 32021037NOPV","title":"CALIBER BEAR DEN INTERCONNECT LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2021-08-04","effective_on":null,"summary":"CLOSED notice of probable violation citing 194.107(c)(1)(ix), 194.121(b)(8), 195.403(c), 195.420(b).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-32021037nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-32021037nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-32021037nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/32021037NOPV","body":"Notice of Probable Violation involving CALIBER BEAR DEN INTERCONNECT LLC. PHMSA's enforcement data identifies the cited regulations as 194.107(c)(1)(ix),  194.121(b)(8),  195.403(c),  195.420(b). The case was opened on 2021-08-04 and is reported as closed as of 2022-01-27. Proposed civil penalty: $57,000. Assessed civil penalty: $57,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n32021037NOPV_Closure Letter_10312022_(21-210458).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021037NOPV/32021037NOPV_Closure%20Letter_10312022_(21-210458).pdf\n\n32021037NOPV_Closure Letter_10312022_(21-210458)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021037NOPV/32021037NOPV_Closure%20Letter_10312022_(21-210458)_text.pdf\n\n32021037NOPV_Final Order_01122022_(21-210458).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021037NOPV/32021037NOPV_Final%20Order_01122022_(21-210458).pdf\n\n32021037NOPV_Final Order_01122022_(21-210458)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021037NOPV/32021037NOPV_Final%20Order_01122022_(21-210458)_text.pdf\n\n32021037NOPV_Operator Response to Notice_09212021_(21-210458).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021037NOPV/32021037NOPV_Operator%20Response%20to%20Notice_09212021_(21-210458).pdf\n\n32021037NOPV_PCP_08042021_(21-210458).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021037NOPV/32021037NOPV_PCP_08042021_(21-210458).pdf\n\n32021037NOPV_PCP_08042021_(21-210458)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021037NOPV/32021037NOPV_PCP_08042021_(21-210458)_text.pdf\n\n32021037NOPV_Closure Letter_10312022_(21-210458)_text.pdf\n\nVIA ELECTRONIC MAIL TO: dwerth@calibermidstream.com;\nbkent@calibermidstream.com\nOctober 31, 2022\nDaniel Werth\nChief Executive Officer\nCaliber Bear Den Interconnect LLC\n950 17th Street, Suite 1000\nDenver, CO 80202\nRE: CPF 3-2021-037-NOPV\nDear Mr. Werth:\nOn January 12, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\nissued to Caliber Bear Den Interconnect LLC a Final Order that made findings of violations and\nassessed a civil penalty of $98,900. Based on our review of your Payment of Penalty in the amount\nof $57,000 on January 27, 2022, it has been determined that Caliber Bear Den Interconnect LLC\nhas complied with the terms of the Final Order.\nAccordingly, this case is now closed, and no further action is contemplated with respect to the\nmatters involved in this case. Thank you for your cooperation in this matter.\nSincerely,\nGregory A. Ochs\nDirector, Central Region, OPS\nPipeline and Hazardous Materials Safety Administration\ncc: Mr. Bill Kent, DA Administrator/DOT Compliance Primary , Caliber Bear Den Interconnect\nLLC, bkent@calibermidstream.com\n\n32021037NOPV_Final Order_01122022_(21-210458)_text.pdf\n\nJanuary 12, 2022\nVIA ELECTRONIC MAIL TO: dwerth@calibermidstream.com\nMr. Daniel Werth\nPresident and Chief Executive Officer\nCaliber Midstream Partners, LP\n950 17th Street, Suite 1000\nDenver, Colorado 80202\nRe: CPF No. 3-2021-037-NOPV\nDear Mr. Werth:\nEnclosed please find the Final Order issued in the above-referenced case to your subsidiary,\nCaliber Bear Den Interconnect, LLC. It makes findings of violation and assesses a civil penalty\nof $57,000. The penalty payment terms are set forth in the Final Order. This enforcement action\ncloses automatically upon receipt of payment. Service of the Final Order by e-mail is effective\nupon the date of transmission as provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Gregory A. Ochs, Director, Central Region, Office of Pipeline Safety, PHMSA\nMs. Carol Butero, Director of Regulatory, Safety, and Compliance, Caliber Midstream\nPartners, LP, cbutero@calibermidstream.com\nCONFIRMATION OF 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 )\n)\n)\nCaliber Bear Den Interconnect, LLC, a subsidiary of Caliber Midstream Partners, LP, )\n)\nRespondent. )\n_____________________________________________)\n) CPF No. 3-2021-037-NOPV\nFINAL ORDER\nFrom March 18, 2019 through August 1, 2019, pursuant to 49 U.S.C. § 60117, a representative\nof the Pipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline\nSafety (OPS), conducted an on-site pipeline safety inspection of the facilities and records of\nCaliber Bear Den Interconnect, LLC (CBDI or Respondent), near Watford City, North Dakota\nand at the headquarters of Caliber Midstream Partners, LP, located in Denver, Colorado.\nRespondent is a subsidiary of Caliber Midstream Partners, LP, and operates approximately six\nmiles of pipeline that transports crude oil between Enable Midstream’s Devore Terminal and\nDakota Access Pipeline’s Watford City Terminal.\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated August 4, 2021, a Notice of Probable Violation and Proposed Civil Penalty\n(Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that CBDI had\ncommitted two violations of 49 C.F.R. Part 194 and one violation of 49 C.F.R. Part 195 and\nproposed assessing a civil penalty of $57,000 for the alleged violations. The Notice also\nincluded an additional warning item pursuant to 49 C.F.R. § 190.205, which required no further\naction, but warned the operator to correct the probable violation or face possible future\nenforcement action\nOn behalf of Respondent, Caliber Midstream Partners, LP, responded to the Notice by letter\ndated September 21, 2021 (Response). CBDI contested one of the allegations, offered additional\ninformation in response to the Notice, and requested that the proposed civil penalty be\neliminated. Respondent did not request a hearing and therefore has waived its right to one.\n\n\n\nCPF No. 3-2021-037-NOPV\nPage 2\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 194 and Part 195, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 194.107(c)(1)(ix), which in\nrelevant part states:\n§ 194.107 General response plan requirements.\n(a) …\n(c) Each response plan must include:\n(1) A core plan consisting of –\n(i) …\n(ix) Drill Program – an operator will satisfy the requirement for\na drill program by following the National Preparedness for\nResponse Exercise Program (PREP) guidelines. An operator\nchoosing not to follow PREP guidelines must have a drill program\nthat is equivalent to PREP.\nThe Notice alleged that Respondent violated 49 C.F.R. § 194.107(c)(1)(ix) by failing to satisfy\nthe requirements for a drill program by failing to follow the National Preparedness for Response\nExercise Program (PREP) guidelines. Specifically, the Notice alleged that CBDI failed to make\nchanges to its response plan after discovering deficiencies during its September 20, 2017 drill, as\nrequired under the PREP guidelines. The PREP guidelines state that “[P]lan holders are\nresponsible for addressing any issues that arise from evaluation of exercises and making changes\nto their respective response plans to ensure the highest level of preparedness.”1 CBDI identified\ncommunication issues during a drill that occurred on September 20, 2017. However, CBDI was\nunable to provide any documentation identifying changes they made to their response plan to\naddress these issues.\nIn its Response, CBDI did not contest the allegation but stated that it had taken steps to improve\nits drill program practices. Accordingly, after considering all of the evidence, I find that\nRespondent violated 49 C.F.R. § 194.107(c)(1)(ix) by failing to make changes to its response\nplan after discovering deficiencies during its September 20, 2017 drill, as required by PREP\nguidelines.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 194.121(b)(8), which states:\n§ 194.121 Response plan review and update procedures.\n(a) …\n(b) If a new or different operating condition or information\nwould substantially affect the implementation of a response plan,\nthe operator must immediately modify its response plan to address\nsuch a change and, within 30 days of making such a change, submit\n1NATIONAL PREPAREDNESS FOR RESPONSE EXERCISE PROGRAM (PREP) GUIDELINES, DEP’T OF HOMELAND SEC.,\nU.S. COAST GUARD, ENVTL. PROT. AGENCY, DEP’T OF TRANSP., PIPELINE & HAZARDOUS MATERIALS SAFETY\nADMIN., DEP’T OF INTERIOR, BUREAU OF SAFETY & ENVTL. ENF’T, at 1-1 (2016),\nhttps://www.epa.gov/sites/default/files/2020-03/documents/prep_guidelines_2016_12oct18.pdf.\n\n\n\nCPF No. 3-2021-037-NOPV\nPage 3\nthe change to PHMSA. Examples of changes in operating conditions\nthat would cause a significant change to an operator’s response plan\nare:\n(8) Any other information relating to circumstances that may\naffect full implementation of the plan.\nThe Notice alleged that Respondent violated 49 C.F.R. § 194.121(b)(8) by failing to modify its\nresponse plan to address new or different operating conditions or information that would\nsubstantially affect the implementation of the response plan and by failing to submit such a\nchange to PHMSA within 30 days. Specifically, the Notice alleged that CBDI failed to submit\nits Spill Response Plan (SRP) revised on July 27, 2018, to PHMSA within 30 days of a\nsignificant information update. CBDI also had outdated information in Section 2.1 and Section\n5.71 of its SRP.\nIn its Response, CBDI did not contest the allegation and provided PHMSA with its updated SRP.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n§ 194.121(b)(8) by failing to modify its response plan to address new operating information and\nby failing to submit the changes to its SRP, revised July 27, 2018, to PHMSA within 30 days.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 195.403(c), which states:\n§ 195.403 Emergency response training.\n(a) …\n(c) Each operator shall require and verify that its supervisors\nmaintain a thorough knowledge of that portion of the emergency\nresponse procedures established under 195.402 for which they are\nresponsible to ensure compliance.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.403(c) by failing to require and\nverify that its supervisors maintain a thorough knowledge of that portion of the emergency\nresponse procedures established under § 195.402 for which they are responsible to ensure\ncompliance. Specifically, the Notice alleged that CBDI failed to provide any documentation\nverifying that supervisors maintained a thorough knowledge of the emergency response\nprocedures for which they are responsible to ensure compliance.\nIn its Response, CBDI contested this alleged violation and provided two substantive arguments\nfor its withdrawal.2 In the first instance, CBDI argued that the Notice did not allege facts that\nestablished a violation of § 195.403(c). Alternatively, CBDI argued that PHMSA had failed to\nmeet its burden of production and its burden of persuasion such that it had not proven that a\nviolation of § 195.403(c) had occurred. I discuss these arguments in turn.\n2 The Respondent makes a tangential argument alleging that the supporting documents for Item 3 were incomplete.\nSpecifically, that the Violation Report lists email correspondence as an exhibit to Item 3 but fails to document those\nemails in the Exhibit list. This inconsistency in the Violation Report is an inconsequential typographical error and\ndoes not negate the allegation that CBDI failed to provide any documentation verifying that its supervisors\nmaintained a thorough knowledge of that portion of the emergency response procedures established under § 195.402\nfor which they are responsible for ensuring compliance.\n\n\n\nCPF No. 3-2021-037-NOPV\nPage 4\nFirst, Respondent argues that the allegation should be withdrawn because the facts asserted in the\nNotice did not amount to a violation of § 195.403(c) because that section of the Pipeline Safety\nRegulations “does not require operators to create or keep documentation of that activity.”3\nRespondent has failed to consider the Pipeline Safety Regulations in their entirety and PHMSA’s\nlongstanding enforcement precedent. CBDI overlooks both the need of operators to demonstrate\ncompliance with the Pipeline Safety Regulations during inspections and years of PHMA\nenforcement of § 195.403(c) requiring proof of compliance in the form of documentation or\nother response demonstrating that verification had taken place.4\nDuring an inspection, operators must be able to provide information to PHMSA that\ndemonstrates compliance with the Pipeline Safety Regulations.5 As Respondent points out, the\nlanguage of § 195.403(c) does not prescribe how operators are to show compliance. Instead,\noperators have the flexibility to prove compliance with § 195.403(c) by any appropriate method.\nCompliance can be shown through submission of written documentation, test records, or other\nverification, including official meeting notes or personnel evaluations. Therefore, PHMSA\nproperly alleged a violation of § 195.403(c) based on CBDI’s failure to show, through\ndocumentation or any other appropriate method, that it had verified supervisor’s knowledge of\nthose emergency response procedures established under § 195.402 for which they are responsible\nto ensure compliance.\nSecond, Respondent argues that, even if the Notice properly alleged a violation of § 195.403(c),\nthis Item should nevertheless be withdrawn because PHMSA has failed to meet its burdens of\nproduction and persuasion. In order to satisfy its burden and find that CBDI violated\n§ 195.403(c), PHMSA must determine, by a preponderance of the evidence, that CBDI failed to\nrequire and verify that its supervisors maintain a thorough knowledge of that portion of the\nemergency response procedures established under § 195.402 for which they are responsible to\nensure compliance.6\n3 Response, at 2.\n4 See, e.g., Columbia Midstream Group, LLC, a subsidiary of TransCanada Corporation, Final Order, CPF No. 1-\n2018-6001, 2018 WL 3703697, at *2 (June 15, 2018) (finding a violation of § 195.403(c) where “[C]olumbia was\nallegedly unable to provide any documentation, training record, or response demonstrating that it had verified that\nsupervisors maintained a thorough knowledge of the portions of the emergency response procedures for which they\nwere responsible to ensure compliance.”); TE Products Pipeline Company, LLC, F/N/A Texas Eastern Petroleum\nProducts Co., Final Order, CPF No. 3-2005-5018, 2009 WL 557739, at *7 (Feb. 27, 2009) (stating that evidence of\nverification under § 195.403(c) might typically include “a documented review, written test or other form of\nverification.”); see also Navajo Nation Oil & Gas Co., Inc., a federal corporation, Final Order, CPF No. 4-2006-\n5029, 2010 WL 1323383 (Mar. 17, 2010).\n5 49 U.S.C. § 60117(c); see also Kinder Morgan Energy Partners, LP, Final Order, CPF No. 4-2006-5023, 2010 WL\n6531634, at *2 (Aug. 31, 2010) (citing to the section of the United States Code that 49 U.S.C. § 60117(c) was\ncodified at prior to amendment by the PIPES Act of 2020, Public Law No. 116-260 (Dec. 27, 2020)) (stating\n“§ 60117(b) gives PHMSA broad authority to require pipeline owners or operators to provide documentation of\ncompliance”); see also Pipeline & Terminal Management Corp. Key West Pipeline Company, Decision on Petition\nfor Reconsideration, CPF No. 2-2005-6027, 2006 WL 7129215, at *1 (Sept. 1, 2006).\n6 See, e.g., Express Holdings (USA), LLC, a subsidiary of Enbridge, Inc., Decision on Reconsideration, CPF No. 3-\n2020-5005, 2021 WL 4055257, at **4–5 (July 26, 2021); Sunoco Pipeline, LP, a subsidiary of Energy Transfer, LP,\nFinal Order, CPF No. 1-2019-5006, 2020 WL 6955633, at *3 (June 26, 2020).\n\n\n\nCPF No. 3-2021-037-NOPV\nPage 5\nThroughout the inspection and these proceedings, including in its Response to the Notice, CBDI\nhas failed to provide any evidence that they complied with § 195.403(c). The documentation of\nemergency procedure trainings in 2017 and 2018 that CBDI submitted during the inspection\nfailed to verify that supervisors maintained a thorough knowledge of the emergency response\nprocedures as required by § 195.403(c). Here, PHMSA requested that CBDI provide\ndocumentation verifying compliance with § 195.403(c) as part of the inspection and gave CBDI\nthe opportunity to respond. CBDI failed to provide any evidence of compliance and has not\nattempted to refute PHMSA’s claim by stating that they have verified supervisor’s knowledge as\nrequired by § 195.403(c). Therefore, in the absence of any evidence to the contrary, the\npreponderance of the evidence supports a finding that CBDI failed to verify supervisor’s\nknowledge in accordance with § 195.403(c).\nAccordingly, after considering all of the evidence and the legal issues presented, I find\nthat Respondent violated 49 C.F.R. § 195.403(c) by failing to require and verify that its\nsupervisors maintain a thorough knowledge of that portion of the emergency response\nprocedures established under § 195.402 for which they are responsible to ensure compliance.\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, 33 U.S.C. § 1321(j), and 49 C.F.R. § 190.223(b), Respondent is\nsubject to an administrative civil penalty for the violations.\nIn determining the amount of a civil penalty under 49 C.F.R. § 190.225, I must consider the\nfollowing criteria: the nature, circumstances, and gravity of the violation, including adverse\nimpact on the environment; the degree of Respondent’s culpability; the history of Respondent’s\nprior offenses; any effect that the penalty may have on its ability to continue doing business; the\ngood faith of Respondent in attempting to comply with the pipeline safety regulations; and self-\ndisclosure or actions to correct a violation prior to discovery by PHMSA. 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 $57,000 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $19,000 for Respondent’s violation of 49 C.F.R.\n§ 194.107(c)(1)(ix), for failing to make changes to its response plan after discovering\ndeficiencies during a drill as required by PREP guidelines. Respondent neither contested the\nallegation nor presented any evidence or argument justifying reduction of the proposed civil\npenalty. Accordingly, having reviewed the record and considered the assessment criteria, I\nassess Respondent a civil penalty of $19,000 for violation of 49 C.F.R. § 194.107(c)(1)(ix).\nItem 2: The Notice proposed a civil penalty of $19,000 for Respondent’s violation of 49 C.F.R.\n§ 194.121(b)(8), for failing to modify its response plan to address new information and for\nfailing to submit its plan to PHMSA within 30 days of making such change. Respondent neither\ncontested the allegation nor presented any evidence or argument justifying reduction of the\n\n\n\nCPF No. 3-2021-037-NOPV\nPage 6\nproposed civil penalty. Accordingly, having reviewed the record and considered the assessment\ncriteria, I assess Respondent a civil penalty of $19,000 for violation of 49 C.F.R.\n§ 194.121(b)(8).\nItem 3: The Notice proposed a civil penalty of $19,000 for Respondent’s violation of 49 C.F.R.\n§ 195.403(c), for failing to require and verify that its supervisors maintain a thorough knowledge\nof that portion of the emergency response procedures established under § 195.402 for which they\nare responsible to ensure compliance. Respondent contested the allegation but, for the reasons\ndescribed above, I found CBDI in violation of § 195.403(c). CBDI did not provide any\narguments justifying reduction of the proposed civil penalty. Accordingly, having reviewed the\nrecord and considered the assessment criteria, I assess Respondent a civil penalty of $19,000 for\nviolation of 49 C.F.R. § 195.403(c).\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 $57,000.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations (49\nC.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 (AMK-325), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, 6500 S MacArthur Blvd, Oklahoma City, Oklahoma 79169.\nThe Financial Operations Division telephone number is (405) 954-8845.\nFailure to pay the $57,000 civil penalty will result in accrual of interest at the current annual rate\nin 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 4, the Notice alleged a probable violation of Part 195, but identified it as a\nwarning item pursuant to § 190.205. The warning was for:\n49 C.F.R. § 195.420(b) (Item 4) ─ Respondent’s alleged failure to inspect its\nmainline valves at intervals not exceeding 7 ½ months, but at least twice each\ncalendar year.\nCBDI presented information in its Response showing that it had taken certain actions to address\nthe cited item. If OPS finds a violation of this provision in a subsequent inspection, Respondent\nmay be subject to future enforcement action.\nUnder 49 C.F.R. § 190.243, Respondent may submit a Petition for Reconsideration of this Final\nOrder to the Associate Administrator, Office of Pipeline Safety, PHMSA, 1200 New Jersey\n\n\n\nCPF No. 3-2021-037-NOPV\nPage 7\nAvenue, SE, East Building, 2nd Floor, Washington, DC 20590, with a copy sent to the Office of\nChief Counsel, PHMSA, at the same address, no later than 20 days after receipt of service of the\nFinal Order by Respondent. Any petition submitted must contain a brief statement of the issues\nand meet all other requirements of 49 C.F.R. § 190.243. The filing of a petition automatically\nstays the payment of any civil penalty assessed. The other terms of the order, including any\ncorrective action, remain in effect unless the Associate Administrator, upon request, grants a\nstay. If Respondent submits payment of the civil penalty, the Final Order becomes the final\nadministrative decision and the right to petition for reconsideration is waived.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nJanuary 12, 2022\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":23340}