{"operation":"document","citation":"CPF 32022022NOPV","title":"NORTH DAKOTA PIPELINE COMPANY LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2022-04-12","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.406(b), 195.505(b).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-32022022nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-32022022nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-32022022nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/32022022NOPV","body":"Notice of Probable Violation involving NORTH DAKOTA PIPELINE COMPANY LLC. PHMSA's enforcement data identifies the cited regulations as 195.406(b),  195.505(b). The case was opened on 2022-04-12 and is reported as closed as of 2023-01-12. Proposed civil penalty: $44,800. Assessed civil penalty: $44,800. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n32022022NOPV_Final Order_12192022_(20-172199).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022022NOPV/32022022NOPV_Final%20Order_12192022_(20-172199).pdf\n\n32022022NOPV_Final Order_12192022_(20-172199)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022022NOPV/32022022NOPV_Final%20Order_12192022_(20-172199)_text.pdf\n\n32022022NOPV_Operator Response to Notice_05122022_(20-172199).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022022NOPV/32022022NOPV_Operator%20Response%20to%20Notice_05122022_(20-172199).pdf\n\n32022022NOPV_PCP_04122022_(20-172199).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022022NOPV/32022022NOPV_PCP_04122022_(20-172199).pdf\n\n32022022NOPV_PCP_04122022_(20-172199)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022022NOPV/32022022NOPV_PCP_04122022_(20-172199)_text.pdf\n\n32022022NOPV_Final Order_12192022_(20-172199)_text.pdf\n\nDecember 19, 2022\nVIA ELECTRONIC MAIL TO: michael.koby@enbridge.com\nMr. Michael Koby\nVice President, U.S. Operations\nEnbridge Inc.\n5400 Westheimer Court\nHouston, Texas 77056\nRe: CPF No. 3-2022-022-NOPV\nDear Mr. Koby:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a civil penalty of $44,800 against North Dakota Pipeline Company, LLC,\na subsidiary of Enbridge Inc. The penalty payment terms are set forth in the Final Order. This\nenforcement action closes automatically upon receipt of payment. Service of the Final Order by\ne-mail is effective upon the date of transmission and acknowledgement of receipt as provided\nunder 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 Ochs, Director, Central Region, Office of Pipeline Safety, PHMSA\nMr. Dave Stafford, Manager, U.S. Pipeline Compliance, Enbridge Inc.,\ndavid.stafford@enbridge.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____________________________________\n)\nIn the Matter of )\n)\nNorth Dakota Pipeline Company, LLC, ) CPF No. 3-2022-022-NOPV\na subsidiary of Enbridge Inc., )\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nFrom March 16 through October 6, 2020, pursuant to 49 U.S.C. § 60117, a representative of the\nPipeline 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 North Dakota\nPipeline Company, LLC’s, a subsidiary of Enbridge Inc.1 (Enbridge or Respondent), North Dakota,\nSouthern Lights, and Express systems, located in North Dakota, Wisconsin, Minnesota, Montana,\nand Wyoming.\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent, by\nletter dated April 12, 2022, a Notice of Probable Violation and Proposed Civil Penalty (Notice). In\naccordance with 49 C.F.R. § 190.207, the Notice proposed finding that Respondent had committed\ntwo violations of 49 C.F.R. Part 195 and proposed assessing a civil penalty of $44,800 for the\nalleged violations.\nEnbridge responded to the Notice by letter dated May 12, 2022 (Response). Respondent did not\ncontest the allegations of violation but provided an explanation of its actions and requested that the\nproposed civil penalty be reduced. Respondent did not request a hearing and therefore has waived\nits right to one.\nFINDINGS OF VIOLATION\nIn its Response, Enbridge did not contest the allegations in the Notice that it violated 49 C.F.R. Part\n195, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.406(b), which states in\nrelevant part:\n1 U.S. SEC Form 10-K, Enbridge Inc., available at https://www.enbridge.com/investment-center/reports-and-sec-\nfilings/sec-filings/sec-filing-details?docId=264778 (last accessed November 29, 2022)\n\n\n\n§ 195.406 Maximum operating pressure.\n(a) …\n(b) No operator may permit the pressure in a pipeline during surges or other\nvariations from normal operations to exceed 110 percent of the operating\npressure limit established under paragraph (a) of this section. Each operator\nmust provide adequate controls and protective equipment to control the\npressure within this limit.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.406(b) by permitting the pressure in\nthe pipeline during surges or other variations from normal operations to exceed 110 percent of the\noperating pressure limit established pursuant to 49 C.F.R. § 195.406(a). Specifically, the Notice\nalleged that on September 21, 2018, the line blockage protection for Line 81 failed to activate,\nresulting in a line pressure of 114.01 percent of the operating pressure limit.\nRespondent did not contest this allegation of violation. Accordingly, based upon a review of all of\nthe evidence, I find that Respondent violated 49 C.F.R. § 195.406(b) by permitting the pressure in\nthe pipeline during surges or other variations from normal operations to exceed 110 percent of the\noperating pressure limit.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.505(b), which states in\nrelevant part:\n§ 195.505 Qualification program.\nEach operator shall have and follow a written qualification program.\nThe program shall include provisions to:\n(a) …\n(b) Ensure through evaluation that individuals performing covered tasks\nare qualified;\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.505(b) by failing to ensure through\nevaluation that individuals performing covered tasks are qualified. Specifically, the Notice alleged\nthat in July of 2019, the records do not indicate that the individual performing OQ Task 83, overfill\nprotection inspections, in Berthold, North Dakota on tanks 9800, 9801, 9802, 9803, 9804, and 9805\nwas qualified to perform the task.\nRespondent did not contest this allegation of violation. Accordingly, based upon a review of all of\nthe evidence, I find that Respondent violated 49 C.F.R. § 195.505(b) by failing to ensure through\nevaluation that individuals performing covered tasks are qualified.\nThese findings of violation will be considered prior offenses in any subsequent enforcement action\ntaken 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 related\n\n\n\nseries of violations.2\nIn determining the amount of a civil penalty under 49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I\nmust consider the following criteria: the nature, circumstances, and gravity of the violation,\nincluding adverse impact on the environment; the degree of Respondent’s culpability; the history of\nRespondent’s prior offenses; any effect that the penalty may have on its ability to continue doing\nbusiness; the good faith of Respondent in attempting to comply with the pipeline safety regulations;\nand self-disclosure or actions to correct a violation prior to discovery by PHMSA. In addition, I\nmay consider 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 $44,800 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $22,400 for Respondent’s violation of 49 C.F.R.\n§ 195.406(b), for permitting the pressure in the pipeline during surges or other variations from\nnormal operations to exceed 110 percent of the operating pressure limit. In their Response,\nEnbridge contends that the proposed civil penalty should be reduced based on its good faith\nthroughout the inspection process, its promptness coming into compliance, and its efforts to take\ncorrective action above the minimum required. Specifically, Enbridge lists three corrective\nmeasures it instituted post-inspection including reviewing operating procedures with control room\nstaff and modifying the logic in North Dakota Region Programable Logic Controllers. Respondent\nalso argues that it did not receive an economic benefit by failing to comply with regulations and that\ntheir culpability is low.\nFirst, Respondent did not have a reasonable justification for its non-compliance, so no credit is\nwarranted based on good faith. Next, while PHMSA appreciates Respondent’s swift corrective\nmeasures to comply with pipeline safety regulations, such actions taken after an inspection are not a\nbasis to reduce a civil penalty.3 Additionally, actions taken to strengthen Respondent’s programs\nbeyond the minimum safety regulations are encouraged but are not the basis for credits in the\npenalty calculation. Further, OPS did not allege Respondent received an economic benefit from the\nnoncompliance, so reduction on that basis is not warranted. Finally, in terms of culpability, I find\nthere is no basis to reduce the penalty because Respondent did not take action to address the\nnoncompliance prior to PHMSA learning of the violation. Accordingly, having reviewed the record\nand considered the assessment criteria, I assess Respondent a civil penalty of $22,400 for the\nviolation of 49 C.F.R. § 195.406(b).\nItem 2: The Notice proposed a civil penalty of $22,400 for Respondent’s violation of 49 C.F.R.\n§ 195.505(b), for failing to ensure through evaluation that individuals performing covered tasks are\nqualified. Like Item 1, Enbridge asserts in its Response that the proposed civil penalty should be\nreduced based on its good faith throughout the inspection process, its promptness coming into\ncompliance, and its efforts to take corrective action above the minimum required, including\ncompleting a “communication campaign” to enhance the knowledge of its personnel and changes to\nits OQ records and job planning and assignment systems. Respondent also argues that it did not\n2 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223 for adjusted amounts.\n3 See In the Matter of Oasis Midstream Partners LP, a General Partner of Oasis Petroleum Inc., Final Order 3-2019-\n5020, 2020 WL 6870720 at 7 (August 19, 2020) (“While Oasis is to be commended for improving its internal processes\nto ensure compliance with the pipeline safety regulations, such post-inspection activities do not warrant the withdrawal\nof, or a reduction in, a proposed civil penalty.”)\n\n\n\nreceive an economic benefit by failing to comply with regulations and that its culpability is low.\nFor the same reasons discussed in Item 1, I find there is no basis to reduce the civil penalty.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $22,400 for the violation of 49 C.F.R. § 195.505(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 $44,800.\nPayment of the civil penalty must be made within 20 days after receipt of this Final Order. Federal\nregulations (49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through the\nFederal Reserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed\ninstructions are contained in the enclosure. Questions concerning wire transfers should be directed\nto: Financial Operations Division (AMK-325), Federal Aviation Administration, Mike Monroney\nAeronautical Center, 6500 S MacArthur Blvd, Oklahoma City, Oklahoma 79169. The Financial\nOperations Division telephone number is (405) 954-8845.\nFailure to pay the civil penalty will result in accrual of interest at the current annual rate in\naccordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to those\nsame authorities, a late penalty charge of six percent (6%) per annum will be charged if payment is\nnot made within 110 days of service. Furthermore, failure to pay the civil penalty may result in\nreferral of the matter to the Attorney General for appropriate action in a district court of the United\nStates.\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\nAvenue, SE, East Building, 2nd Floor, Washington, DC 20590, with a copy sent to the Office of\nChief Counsel, PHMSA, at the same address. The written petition must be received no later than 20\ndays after receipt of the Final Order by Respondent. Any petition submitted must contain a brief\nstatement of the issue(s) and meet all other requirements of 49 C.F.R. § 190.243. The filing of a\npetition automatically stays the payment of any civil penalty assessed. The other terms of the order,\nincluding any corrective action, remain in effect unless the Associate Administrator, upon request,\ngrants a stay. 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.\nDecember 19, 2022\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":13767}