{"operation":"document","citation":"CPF 420091007","title":"MARDI GRAS PIPELINE, LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2009-03-04","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.805(b), 192.905(a), 192.905(b), 192.911(m), 192.915, 192.945(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-420091007.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-420091007.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-420091007","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/420091007","body":"Notice of Probable Violation involving MARDI GRAS PIPELINE, LLC. PHMSA's enforcement data identifies the cited regulations as 192.805(b),  192.905(a),  192.905(b),  192.911(m),  192.915,  192.945(a). The case was opened on 2009-03-04 and is reported as closed as of 2018-04-09. Proposed civil penalty: $63,800. Assessed civil penalty: $35,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n420091007_DOJ_Court_Filing_(Collection_of_Assessed_Penalty)_Complaint-Rec_Doc_1_07142017.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420091007/420091007_DOJ_Court_Filing_(Collection_of_Assessed_Penalty)_Complaint-Rec_Doc_1_07142017.pdf\n\n420091007_Final Order_12192011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420091007/420091007_Final%20Order_12192011.pdf\n\n420091007_Final Order_12192011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420091007/420091007_Final%20Order_12192011_text.pdf\n\n420091007_HQ Referral to DOJ_11032016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420091007/420091007_HQ%20Referral%20to%20DOJ_11032016.pdf\n\n420091007_HQ Referral to DOJ_11032016_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420091007/420091007_HQ%20Referral%20to%20DOJ_11032016_text.pdf\n\n420091007_Mardi Gras Pipeline_Order to Dismiss (R Doc 9)_04092018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420091007/420091007_Mardi%20Gras%20Pipeline_Order%20to%20Dismiss%20(R%20Doc%209)_04092018.pdf\n\n420091007_Motion to Stay Proceedings (08312017)_04092018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420091007/420091007_Motion%20to%20Stay%20Proceedings%20(08312017)_04092018.pdf\n\n420091007_nopv pcp pco_03042009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420091007/420091007_nopv%20pcp%20pco_03042009.pdf\n\n420091007_nopv pcp pco_03042009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420091007/420091007_nopv%20pcp%20pco_03042009_text.pdf\n\n420091007_Order to Stay Proceedings (09182017)_04092018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420091007/420091007_Order%20to%20Stay%20Proceedings%20(09182017)_04092018.pdf\n\n420091007_Final Order_12192011_text.pdf\n\nDEC 19 2011\nMr. John Burge\nPresident\nMardi Gras Pipeline, LLC\n700 Covington Center, Suite 2\nCovington, LA 70433\nRe: CPF No. 4-2009-1007\nDear Mr. Burge:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation, withdraws an allegation of violation, and assesses a reduced civil penalty of $35,000.\nIt further withdraws the compliance order proposed in the Notice due to Mardi Gras’ divestiture\nof the pipeline facilities that are the subject of this proceeding. When the civil penalty has been\npaid, this enforcement action will be closed. Service of the Final Order by certified mail is\ndeemed effective upon the date of mailing, or 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. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety\nMr. Rod M. Seeley, Director, PHMSA Southwest Region\nMr. Paul Biancardi, Esq., 5818 Beaver Falls Dr., Kingwood, TX 77345, counsel for\nRespondent\nMr. Randy Ziebarth, Vice President Operations, Torch Energy Services, Inc.,\n1331 Lamar Street, Suite 1450, Houston, Texas 77010\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED [71791000164202935579]\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 )\nMardi Gras Pipeline, LLC, ) CPF No. 4-2009-1007\n)\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nOn April 16-20, 2007, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),\nconducted an on-site pipeline safety inspection of the integrity management program procedures\nand records of Mardi Gras Pipeline, LLC (Mardi Gras or Respondent), in Covington, Louisiana.\nAt the time of the inspection, Mardi Gras operated a natural gas pipeline system consisting of\napproximately 22.2 miles of 8- and 12-inch diameter pipeline in Louisiana and Mississippi. The\npipeline was subsequently transferred to, and is now operated by, Torch Energy Services, Inc.\nAs a result of the inspection, the Director, Southwest Region, PHMSA (Director), issued to\nRespondent, by letter dated March 4, 2009, a Notice of Probable Violation, Proposed Civil\nPenalty, and Proposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the\nNotice proposed finding that Mardi Gras had committed various violations of 49 C.F.R. Part 192\nand proposed assessing a civil penalty of $63,800 for the alleged violations. The Notice also\nproposed ordering Respondent to take certain measures to correct the alleged violations.\nAfter requesting and receiving an extension of time, Mardi Gras responded to the Notice by letter\ndated May 8, 2009, as supplemented by letter dated October 14, 2009 (collectively, Response).\nMardi Gras contested the allegations in the Notice and requested a hearing. An informal hearing\nwas subsequently held on February 10, 2010, in Houston, Texas, with an attorney from the\nOffice of Chief Counsel, PHMSA, presiding. At the hearing, Respondent was represented by\ncounsel. After the hearing, Mardi Gras provided additional materials for the record on\nMarch 12 and 21, 2010, as well as a post-hearing closing argument dated March 30, 2010\n(Closing).\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 192, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 192.905(a), which states:\n\n\n\n2\n§ 192.905 How does an operator identify a high consequence area?\n(a) General. To determine which segments of an operator's\ntransmission pipeline system are covered by this subpart, an operator must\nidentify the high consequence areas. An operator must use method (1) or\n(2) from the definition in §192.903 to identify a high consequence area.\nAn operator may apply one method to its entire pipeline system, or an\noperator may apply one method to individual portions of the pipeline\nsystem. An operator must describe in its integrity management program\nwhich method it is applying to each portion of the operator's pipeline\nsystem. The description must include the potential impact radius when\nutilized to establish a high consequence area. (See appendix E.I. for\nguidance on identifying high consequence areas.)\nThe Notice alleged that Respondent violated 49 C.FR. § 192.905(a) by failing to properly\nidentify those segments of its gas transmission pipeline system that constituted High\nConsequence Areas (HCAs) and were therefore subject to PHMSA’s integrity management\n(i.e., Method 1) that utilized class locations to identify HCAs, but that the company failed to\nregulations.1 Specifically, the Notice alleged that Respondent elected to use a selection method\nmake comprehensive or complete determinations of these areas, insofar as the company had no\ndocumentation for the beginning and end points of the Class 3 areas along the pipeline.\nIn its Response and at the hearing, Mardi Gras acknowledged that its records did not reflect\naccurate beginning and end points of the Class 3 areas along the pipeline, but argued that it\nshould not be found in violation because its methodology served to capture Class 2, as well as\nClass 3, areas and did not omit any Class 3 areas.\nRespondent’s argument is not persuasive. The regulations contain a very specific definition of\nwhat constitutes an HCA. If an operator elects to use Method 1, the regulation requires that the\nClass 3 areas be properly identified. A lack of precision in establishing the beginning and end\npoints of these areas is not consistent with the purpose and intent of the regulation and may\nimproperly identify the higher-risk portions of an operator’s system. Accordingly, after\nconsidering all of the evidence and the legal issues presented, I find that Respondent violated\n49 C.F.R. § 192.905(a) by failing to properly identify HCAs along its pipeline that are subject to\nintegrity management.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 192.905(b), which states:\n§ 192.905 How does an operator identify a high consequence area?\n(a) . . .\n(b)(1) Identified sites. An operator must identify an identified site, for\npurposes of this subpart, from information the operator has obtained from\nroutine operation and maintenance activities and from public officials with\nsafety or emergency response or planning responsibilities who indicate to\nthe operator that they know of locations that meet the identified site\ncriteria. These public officials could include officials on a local emergency\n1 Operators are responsible for identifying higher-risk areas along their pipelines that qualify as HCAs, using one of\ntwo methods described in the regulations. See, 49 C.F.R. § 192.903.\n\n\n\n3\nplanning commission or relevant Native American tribal officials.\n(2) If a public official with safety or emergency response or planning\nresponsibilities informs an operator that it does not have the information to\nidentify an identified site, the operator must use one of the following\nsources, as appropriate, to identify these sites.\n(i) Visible marking (e.g., a sign); or\n(ii) The site is licensed or registered by a Federal, State, or local\ngovernment agency; or\n(iii) The site is on a list (including a list on an internet web site) or\nmap maintained by or available from a Federal, State, or local government\nagency and available to the general public.\nThe Notice alleged that Mardi Gras violated 49 C.F.R. § 192.905(b) by failing to use public\nofficials as a resource in the identification of areas that would qualify as “identified sites” within\nLouisiana, area. In its Response and at the hearing, Mardi Gras described its general process for\nidentifying HCAs, but did not present convincing evidence that the company had used a\ndocumented systematic methodology for identifying “identified sites” with input from public\nthe potential impact radius2 along its pipeline, including a prison and buildings in the Angie,\nofficials. Accordingly, after considering all of the evidence and the legal issues presented, I find\nthat Respondent violated 49 C.F.R. § 192.905(b) by failing to use public officials as a resource to\nidentify indentified sites.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 192.945(a), which states:\n§ 192.945 What methods must an operator use to measure program\neffectiveness?\n(a) General. An operator must include in its integrity management\nprogram methods to measure, on a semi-annual basis, whether the\nprogram is effective in assessing and evaluating the integrity of each\ncovered pipeline segment and in protecting the high consequence areas.\nThese measures must include the four overall performance measures\nspecified in ASME/ANSI B31.8S (incorporated by reference, see § 192.7),\nsection 9.4, and the specific measures for each identified threat specified\nin ASME/ANSI B31.8S, Appendix A. An operator must submit the four\noverall performance measures, by electronic or other means, on a semi-\nannual frequency to OPS in accordance with § 192.951. An operator must\nsubmit its first report on overall performance measures by August 31,\n2004. Thereafter, the performance measures must be complete through\nJune 30 and December 31 of each year and must be submitted within 2\nmonths after those dates.\nThe Notice alleged that Mardi Gras violated 49 C.F.R. § 192.945(a) by failing to submit integrity\nmanagement program performance records to OPS on a semi-annual basis, beginning on\nDecember 31, 2005. Specifically, the Notice alleged that the company had failed to submit\ntimely reports for the performance measures that were due within two months after 12/31/05,\n2 The term “potential impact radius” is defined as the radius of a circle within which the potential failure of a\npipeline could have significant impact on people or property. See 49 C.F.R. § 192.903.\n\n\n\n4\n6/30/06, and 12/31/06. In its Response and at the hearing, Mardi Gras acknowledged that its\nprogram performance records had been submitted late and that it had not filed any prior to\nMarch 22, 2006. To the extent Respondent provided information and explanations that may be\nrelevant to the proposed penalty amount, those arguments will be considered in the Assessment\nof Penalty section below.\nAccordingly, after considering all of the evidence and the legal issues presented, I find that\nRespondent violated 49 C.F.R. § 192.945(a) by failing to submit integrity management program\nperformance records to OPS on a semi-annual frequency, beginning with the reporting period\nending on December 31, 2005.\nItem 4: The Notice alleged that Respondent violated 49 C.F.R. § 192.911(m), which states:\n§ 192.911 What are the elements of an integrity management\nprogram?\nAn operator's initial integrity management program begins with a\nframework (see § 192.907) and evolves into a more detailed and\ncomprehensive integrity management program, as information is gained\nand incorporated into the program. An operator must make continual\nimprovements to its program. The initial program framework and\nsubsequent program must, at minimum, contain the following elements.\n(When indicated, refer to ASME/ANSI B31.8S (incorporated by\nreference, see § 192.7) for more detailed information on the listed\nelement.)\n(a) . . .\n(m) A communication plan that includes the elements of ASME/ANSI\nB31.8S, section 10, and that includes procedures for addressing safety\nconcerns raised by—\n(1) OPS; and\n(2) A State or local pipeline safety authority when a covered segment\nis located in a State where OPS has an interstate agent agreement.\nThe Notice alleged that Mardi Gras violated 49 C.F.R. § 192.911(m) by failing to have an\nintegrity management program containing a communication plan that included the elements of\nvbn section 10 of the ASME/ANSI Standard B31.8S (Standard). Specifically, the Notice alleged\nthat Mardi Gras had been unable to provide the OPS inspection team with a copy of its\ncommunication plan (or “public awareness plan”), nor was it able to present evidence that such a\nplan had been developed. Under the Standard, an operator must include in its integrity\nmanagement plan a communication plan to keep appropriate company personnel, jurisdictional\nauthorities, and the public informed about its integrity management efforts.3\nIn its Response and at the hearing, Mardi Gras acknowledged that it had not developed and\nimplemented a full communication plan until March 2008, but argued that it had had sufficient\nplans involving communications in place at the time of the inspection. OPS countered, and I\n3 Under 49 C.F.R. § 192.616, all natural gas pipeline operators are required to develop and implement a written\ncontinuing public education program, or “public awareness’ program. The requirement to develop an internal and\nexternal “communications plan” under § 192.911(m) goes beyond the normal public awareness plan to include the\ncommunication of a company’s integrity management program.\n\n\n\n5\nagree, that to the extent Respondent had any plans involving communications in place at the time\nof the inspection, those materials merely parroted the regulatory requirements and did not\nconstitute a bona fide communication plan meeting the requirements of the Standard.\nAccordingly, after considering all of the evidence and the legal issues presented, I find that\nRespondent violated 49 C.F.R. § 192.911(m) by failing to have an integrity management\nprogram containing a communication plan that included the elements of the Standard.\nItem 5: The Notice alleged that Respondent violated 49 C.F.R. § 192.915, which states:\n§ 192.915 What knowledge and training must personnel have to carry\nout an integrity management program?\n(a) Supervisory personnel. The integrity management program must\nprovide that each supervisor whose responsibilities relate to the integrity\nmanagement program possesses and maintains a thorough knowledge of\nthe integrity management program and of the elements for which the\nsupervisor is responsible. The program must provide that any person who\nqualifies as a supervisor for the integrity management program has\nappropriate training or experience in the area for which the person is\nresponsible.\n(b) Persons who carry out assessments and evaluate assessment\nresults. The integrity management program must provide criteria for the\nqualification of any person—\n(1) Who conducts an integrity assessment allowed under this subpart;\nor\n(2) Who reviews and analyzes the results from an integrity assessment\nand evaluation; or\n(3) Who makes decisions on actions to be taken based on these\nassessments.\n(c) Persons responsible for preventive and mitigative measures. The\nintegrity management program must provide criteria for the qualification\nof any person—\n(1) Who implements preventive and mitigative measures to carry out\nthis subpart, including the marking and locating of buried structures; or\n(2) Who directly supervises excavation work carried out in\nconjunction with an integrity assessment.\nThe Notice alleged that Mardi Gras violated 49 C.F.R. § 192.915 by failing to have an integrity\nmanagement program which ensured that company personnel had the requisite knowledge and\ntraining to carry out the program. Specifically, the Notice alleged that the company’s program\nfailed to provide that Respondent’s supervisory personnel, persons who carried out integrity\nassessments, and persons responsible for developing preventive and mitigative measures were\nproperly trained and experienced to carry out their responsibilities. The Notice further alleged\nthat Mardi Gras had been unable to provide the OPS inspection team with the criteria the\ncompany used to qualify personnel for such duties.\nIn its Response, at the hearing, and in its post-hearing materials, Mardi Gras explained that a\ncontractor, Stockton Engineering Services, Inc., had provided training to its various personnel,\n\n\n\n6\nincluding Respondent’s supervisor, and that such supervisor had met the training requirements of\nInland Paperboard and Packaging, the former operator of the pipeline. Respondent also cited\nSection 12.02 of its procedures, which stated that only qualified personnel would be used to\nperform certain task. Respondent’s procedures, however, failed to include any criteria by which\nthe qualifications of its integrity management personnel could be evaluated to determine whether\nthey were in fact properly trained and qualified.\nAccordingly, after considering all of the evidence and the legal issues presented, I find that\nRespondent violated 49 C.F.R. § 192.915 by failing to have an integrity management program\nwhich provided that its personnel who were responsible for carrying out the program had the\nrequisite knowledge and training to perform their duties.\nItem 6: The Notice alleged that Respondent violated 49 C.F.R. § 192.805(b), which states:\n§ 192.805 Qualification program.\nEach operator shall have and follow a written qualification program.\nThe program shall include provisions to:\n(a) Identify covered tasks;\n(b) Ensure through evaluation that individuals performing covered\ntasks are qualified; . . . .\nThe Notice alleged that Mardi Gras violated 49 C.F.R. § 192.805(b) by failing to have and\nfollow a written qualification program that ensured through evaluation that individuals\nperforming covered tasks were qualified. Specifically, the Notice alleged that two individuals\nperforming certain covered tasks, other than cathodic protection surveys and odorization of gas,\nhad not been qualified through evaluation.\nAt the hearing and in its post-hearing materials, Mardi Gras provided records demonstrating that\nthe two specified individuals had indeed been properly qualified through evaluation to perform\nthe covered tasks in question. Accordingly, after considering all of the evidence, I find that no\nviolation occurred and hereby order that Item 6 be withdrawn.\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$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\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; 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\n\n\n\n7\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 $63,800 for the violations cited above.\nMardi Gras offered several general arguments regarding the proposed penalties and several\nspecific arguments as to why the proposed penalties for each item should be reduced or\neliminated. The company presented three general arguments as to why the proposed penalties\nwere excessive. First, it contended that PHMSA had been remiss in waiting 23 months to\nprosecute an NOPV against the company, that such delay had prejudiced the Respondent in\ndefending itself against the allegations, and that the government’s inaction constituted laches, an\ninexcusable delay in presenting a legal claim.\n4 Second, Respondent argued that both the\nevidence in the record and PHMSA’s delay in bringing the case “conclusively demonstrate[d]\nthat the risk for any one of these alleged violations was extremely low or non-existent.”5 Third,\nit argued that because Mardi Gras had divested itself of the subject pipeline assets subsequent to\nthe inspection and no longer operated the line, a civil penalty would not serve any of PHMSA’s\nsafety or deterrence goals and would run counter to the “requirements” of the Small Business\nAdministration.\n6 Finally, the company argued that in proposing the penalties, PHMSA had\nfailed to give Mardi Gras credit for its good-faith efforts to achieve compliance, especially\nconsidering the fact that there had been some ambiguity about whether the line was subject to\nPHMSA jurisdiction.\n7\nI find all of these arguments unpersuasive. First, while the 23-month period between the time of\nthe inspection and the time of the Notice may have been longer than ideal and while Mardi Gras\nhad apparently divested itself of the pipeline prior to receiving the Notice, I do not find that the\ndelay was either excessive or that it precludes PHMSA from bringing the NOPV or assessing an\nappropriate penalty.8\nUnder the applicable statute of limitations (28 U.S.C. § 2462), OPS\nactually had up to five years from the time the violations occurred to issue the Notice and\ncommence its case. Moreover, Respondent did not articulate any particular prejudicial impact in\nthis case.\nSecond, I reject the company’s contention that the gravity of the violations was minimal and that\nthe penalties should therefore be lower. It is critical that operators of higher-risk pipelines\nclearly identify the boundaries of those areas, that they file timely reports, and that they have\nproper plans in place to reduce the likelihood and consequences of accidents in HCAs. In that\nsense, I do not consider any of these violations to be de minimis. On the other hand, the penalties\nproposed for the violations in this particular case do, in fact, reflect the minimum penalties\nassessed by PHMSA for integrity management violations, since the total number of miles in\nMardi Gras’ system that could affect HCAs is relatively low.\n4 Closing, at 1-2 and 15.\n5 Id, at 12-13.\n6 Id, at 2.\n7 Id, at 14.\n8 To the extent that Respondent asserts an affirmative defense of laches, I find the doctrine inapplicable in this\nproceeding and the cases cited by Respondent inapposite. Laches does not apply to U.S. governmental functions,\nnor to its officers or agencies. Thompson v. U.S., 312 F2d 516 (10th Cir. 1962).\n\n\n\n8\nThird, while Respondent did divest itself of the pipeline in question and is no longer the operator,\nPHMSA may still assess civil penalties against any “person” who has committed a violation of\nthe regulations.\n9 In no way is this authority limited to the current operator. Moreover, if\nPHMSA were to adopt a policy of dropping enforcement cases under such circumstances, it\ncould give pipeline operators an incentive to divest when compliance issues are discovered. The\nproposed penalties are not excessively punitive, nor do they violate the Small Business\nRegulatory Enforcement Fairness Act of 1996, the statute cited by Respondent.\n10 PHMSA does\nindeed consider an operator’s ability to pay and whether a proposed penalty would affect a\npresented any evidence that either one of these penalty criteria applies.\nrespondent’s ability to continue in business.11 In this case, however, Mardi Gras has not\nFinally, PHMSA did take into account the actions taken by Respondent prior to the inspection.\nWhile there may have been uncertainty on Respondent’s part as to whether the state pipeline\nsafety authority or PHMSA were the primary regulator of the line, there was no uncertainty\nabout the fact that the pipeline was transporting gas and was therefore subject to the code\nrequirements. Respondent objected to statements in the Violation Report that Mardi Gras was\n“fully culpable” for the violations cited, but this statement only meant that Mardi Gras was the\nentity solely responsible for compliance with the regulations,\nheightened level of culpability or that the company had not made some sort of efforts to achieve\ncompliance.\n12 not that there was some\nItem 3: The Notice proposed a civil penalty of $10,000 for Respondent’s violation of\n49 C.F.R. § 192.945(a), for failing to submit integrity management program performance records\nto OPS on a semi-annual basis, beginning with the period ending on December 31, 2005. As\nnoted above, Mardi Gras acknowledged that it had not been timely in filing these reports, but\nasserted that Hurricane Katrina had hit its facilities within weeks after the company took over\noperation of the line and that it was “hardly reasonable to expect timely reports when so much\noperators at all times to be adequately prepared for emergencies, both natural and man-made, and\nto continue meeting the myriad business, maintenance and regulatory demands of operating a\nnatural gas pipeline. Respondent has presented no evidence or arguments that would warrant a\nwork was involved with the cleanup….”13 I disagree. It is the responsibility of pipeline\nreduction in the civil penalty amount proposed for this Item. Accordingly, having reviewed the\nrecord and considered the assessment criteria, I assess Respondent a civil penalty of $10,000 for\nviolation of 49 C.F.R. § 192.945(a).\nItem 4: The Notice proposed a civil penalty of $10,000 for Respondent’s violation of\n49 C.F.R. § 192.911(m), for failing to have an integrity management program containing a\ncommunication plan that included the elements of the Standard. With respect to culpability,\npipeline operators are well aware of their obligation to maintain communications plans that keep\nboth internal and external stakeholders apprised of the company’s integrity management efforts.\n9 49 C.F.R. § 190.221.\n10 PL 104-121 – March 29, 1996.\n11 49 C.F.R. § 190.225.\n12 Pipeline Safety Violation Report, CPF No. 4-2009-1007 (March 4, 2009), at pages 7, 9, and 11.\n13 Closing, at 5.\n\n\n\n9\nWith respect to the gravity of the violation, it is critical that persons potentially affected by a\npipeline emergency have an appropriate and accurate understanding of pipeline operations in\ntheir area in order to promptly respond and ensure public safety. Respondent has presented no\nevidence or arguments that would warrant a reduction in the civil penalty amount proposed for\nthis Item. Accordingly, having reviewed the record and considered the assessment criteria, I\nassess Respondent a civil penalty of $10,000 for violation of 49 C.F.R. § 192.911(m).\nItem 5: The Notice proposed a civil penalty of $15,000 for Respondent’s violation of\n49 C.F.R. § 192.915, for failing to have an integrity management program providing that\ncompany personnel have the requisite knowledge and training to carry out the program. With\nrespect to culpability, pipeline operators are well aware of their obligation to have fully qualified\npersonnel to implement their integrity management programs. With respect to the gravity of the\nviolation, it is essential that operators have specific criteria by which to evaluate whether\nemployees possess the requisite knowledge and qualifications to carry out their duties; otherwise,\nthere is no way of verifying that personnel are actually qualified.\nRespondent has presented no evidence or arguments that would warrant a reduction in the civil\npenalty amount propose for this Item in the Notice. Accordingly, having reviewed the record\nand considered the assessment criteria, I assess Respondent a civil penalty of $15,000 for\nviolation of 49 C.F.R. § 192.915.\nItem 6: The Notice proposed a civil penalty of $28,800 for Respondent’s alleged violation of\n49 C.F.R. § 192.805(b), for failing to have an integrity management program that ensured\nthrough evaluation that individuals performing covered tasks were qualified. As indicated\nabove, Item 6 has been withdrawn. Therefore, no penalty will be assessed for this Item.\nIn summary, I assess Respondent a total civil penalty of $35,000 for its violations of\n49 C.F.R. Part 192.\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.\n`Failure to pay the $35,000 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.\n\n\n\n10\nCOMPLIANCE ORDER\nThe Notice proposed a compliance order with respect to Items 1−6 in the Notice for violations of\n49 C.F.R. §§ 192.905(a), 192.905(b), 192.945(a), 192.911(m), 192.915, and 192.805(b),\nrespectively. Under 49 U.S.C. § 60118(a), each person who engages in the transportation of gas\nor who owns or operates a pipeline facility is required to comply with the applicable safety\nstandards established under chapter 601. In its Response, Mardi Gras explained that subsequent\nto the commencement of this proceeding, it had divested its pipeline assets. Since Respondent\nno longer operates the pipeline, there is no need to include the compliance terms proposed in the\nNotice in this Order. However, the new operator of the line, Torch Energy Services, Inc., is\nadvised that it needs to comply with the proposed compliance terms applicable to the findings set\nforth above or face the possibility of future enforcement action.\nUnder 49 C.F.R. § 190.215, Respondent has the right to submit a petition for reconsideration of\nthis Final Order. Should Respondent elect to do so, the petition must be sent to: Associate\nAdministrator, Office of Pipeline Safety, PHMSA, 1200 New Jersey Avenue, SE, East Building,\n2nd Floor, Washington, DC 20590, with a copy sent to the Office of Chief Counsel, PHMSA, at\nthe same address. PHMSA will accept petitions received no later than 20 days after receipt of\nservice of the Final Order by the Respondent, provided they contain a brief statement of the\nissue(s) and meet all other requirements of 49 C.F.R. § 190.215. The filing of a petition\nautomatically stays the payment of any civil penalty assessed. Unless the Associate\nAdministrator, upon request, grants a stay, all other terms and conditions of this Final Order are\neffective upon receipt of service.\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\n\n420091007_Mardi Gras Pipeline_Order to Dismiss (R Doc 9)_04092018.pdf\n\nCase 2:17-cv-06756-CJB-JVM Document 9 Filed 04/09/18 Page 1 of 1\nUNITED STATES DISTRICT COURT\nEASTERN DISTRICT OF LOUISIANA\nUNITED STATES OF AMERICA\nCIVIL ACTION\nVERSUS\nNO: 17-6756\nMARDI GRAS PIPELINE, LLC\nSECTION: \"J\" (1)\nORDER\nConsidering the foregoing Motion to Dismiss (Rec. Doc. 8)\nfiled by the United States of America,\nIT IS ORDERED that the motion is GRANTED.\nIT IS FURTHER ORDERED that all claims asserted by the United\nStates of American against Defendant, Mardi Gras Pipeline, LLC, in\nthe above-captioned matter are hereby DISMISSED without prejudice.\nNew Orleans, Louisiana, this 9th day of April, 2018.\nCal alien\nINTER SPATES DESERICE TONGE\n\n420091007_Order to Stay Proceedings (09182017)_04092018.pdf\n\nCase 2:17-cv-06756-CJB-JVM Document 7 Filed 09/18/17 Page 1 of 1\nUNITED STATES DISTRICT COURT\nEASTERN DISTRICT OF LOUISIANA\nUNITED STATES OF AMERICA\nCIVIL ACTION\nVERSUS\nNO: 17-6756\nMARDI GRAS PIPELINE, LLC\nSECTION: \"J\" (1)\nORDER\nConsidering the foregoing Motion to Stay Proceedings (Rec.\nDoc. 6),\nIT IS ORDERED that the motion is GRANTED. All proceedings in\nthis case are hereby stayed until further orders of the Court.\nNew Orleans, Louisiana, this 18th day of September, 2017.\nCaptain\n\n420091007_nopv pcp pco_03042009_text.pdf\n\nNOTICE OF PROBABLE VIOLATION\nPROPOSED CIVIL PENALTY\nand\nPROPOSED COMPLIANCE ORDER\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nMarch 4, 2009\nMr. John Burge\nPresident\nMardi Gras Pipeline\n700 Covington Ctr., Suite 2\nCovington, LA 70433\nCPF 4-2009-1007\nDear Mr. Burge:\nOn April 16 – 20, 2007, representatives of the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA), pursuant to Chapter 601 of 49 United States Code inspected Mardi\nGras Pipeline procedures for Integrity Management in Covington, Louisiana.\nAs a result of the inspection, it appears that you have committed probable violations of the\nPipeline Safety Regulations, Title 49, Code of Federal Regulations. The items inspected and\nthe probable violation(s) are:\n1. §192.905(a) General. To determine which segments of an operator's transmission\npipeline system are covered by this subpart, an operator must identify the high\nconsequence areas. An operator must use method (1) or (2) from the definition in\n§192.903 to identify a high consequence area. An operator may apply one method for\nits entire pipeline system, or an operator may apply one method to individual portions\nof the pipeline system. An operator must describe in its integrity management program\nwhich method it is applying to each portion of the operator's pipeline system. The\ndescription must include the potential impact radius when utilized to establish a high\nconsequence area. (See appendix E.I. for guidance on identifying high consequence\nareas.)\n\n\n\nAt the time of the inspection, Mardi Gras Pipeline stated that they will use method 1, as\ndefined in §192.903, to identify high consequence areas. The team found that Mardi Gras\nhad not completely determined the identification of HCAs that meet the requirements of\n§192.905. The Class 3 areas identified by Mardi Gras had not been defined with precise end\npoints on the pipeline defined in terms of stationing or another method. Mardi Gras is currently\nmaking an effort to define these locations more precisely.\n2. §192.905(b)(1) Identified sites. An operator must identify an identified site, for\npurposes of this subpart, from information the operator has obtained from routine\noperation and maintenance activities and from public officials with safety or emergency\nresponse or planning responsibilities who indicate to the operator that they know of\nlocations that meet the identified site criteria. These public officials could include\nofficials on a local emergency planning commission or relevant Native American tribal\nofficials.\n(2) If a public official with safety or emergency response or planning responsibilities\ninforms an operator that it does not have the information to identify an identified site,\nthe operator must use one of the following sources, as appropriate, to identify these\nsites.\ni. Visible marking (e.g., a sign); or\nii. The site is licensed or registered by a Federal, State, or local government agency;\nor\niii. The site is on a list (including a list on an internet web site) or map maintained by\nor available from a Federal, State, or local government agency and available to\nthe general public…\nAt the time of the inspection, Mardi Gras Pipeline stated that they had not used public officials\nas a resource to search for identified sites. The team found that Mardi Gras had not\ndocumented a complete systematic, search for potential identified sites using input from public\nofficials and other sources. Although identified sites within class 3 areas will be captured\nbecause Method 1 is being used to define HCAs, this is not the case for class 1 or class 2\nareas. Some sites near the pipeline that could be identified sites within the potential impact\nradius had not been considered specifically the prison south of Angie and buildings near the\nAngie station.\n3. §192.945(a) General. An operator must include in its integrity management program\nmethods to measure, on a semi-annual basis, whether the program is effective in\nassessing and evaluating the integrity of each covered pipeline segment and in\nprotecting the high consequence areas. These measures must include the four overall\nperformance measures specified in ASME/ANSI B31.8S (ibr, see §192.7), section 9.4,\nand the specific measures for each identified threat specified in ASME/ANSI B31.8S,\nAppendix A. An operator must submit the four overall performance measures, by\nelectronic or other means, on a semi-annual frequency to OPS in accordance with\n§192.951. An operator must submit its first report on overall performance measures by\nAugust 31, 2004. Thereafter, the performance measures must be complete through\nJune 30 and December 31 of each year and must be submitted within 2 months after\nthose dates.\nDuring the inspection the Mardi Gras Pipeline IM program performance records were\nreviewed by the inspection team. The team found that Mardi Gras Pipeline failed to provide\nreports to PHMSA in a timely manner. The IM program performance measures required to be2\n\n\n\nreported to PHMSA semi-annually were reported later than the required deadline for the last\nthree reporting periods. The dates for online submittals were 6/30/06, 12/31/06, and 12/31/05.\nPerformance measures were received on 4/10/07, 4/10/07, and 3/22/06.\n4. § 192.911 An operator's initial integrity management program begins with a\nframework (see CFR: 192.907) and evolves into a more detailed an","truncated":true,"body_characters":49538}