{"operation":"document","citation":"CPF 420205006","title":"ENLINK PROCESSING SERVICES, LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2020-02-18","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.452(f)(6), 195.452(i)(4).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-420205006.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-420205006.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-420205006","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/420205006","body":"Notice of Probable Violation involving ENLINK PROCESSING SERVICES, LLC. PHMSA's enforcement data identifies the cited regulations as 195.452(f)(6),  195.452(i)(4). The case was opened on 2020-02-18 and is reported as closed as of 2025-04-07. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n420205006_Closure Letter_04072025_(19-164084S).pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_Closure%20Letter_04072025_(19-164084S).pdf\n\n420205006_Closure Letter_04072025_(19-164084S)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_Closure%20Letter_04072025_(19-164084S)_text.pdf\n\n420205006_Consent Agreement and Order_06082021_(19-164084S).pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_Consent%20Agreement%20and%20Order_06082021_(19-164084S).pdf\n\n420205006_Consent Agreement and Order_06082021_(19-164084S)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_Consent%20Agreement%20and%20Order_06082021_(19-164084S)_text.pdf\n\n420205006_Decision on Petition for Reconsideration_01042021.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_Decision%20on%20Petition%20for%20Reconsideration_01042021.pdf\n\n420205006_Decision on Petition for Reconsideration_01042021_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_Decision%20on%20Petition%20for%20Reconsideration_01042021_text.pdf\n\n420205006_Final Order_07272020.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_Final%20Order_07272020.pdf\n\n420205006_Final Order_07272020_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_Final%20Order_07272020_text.pdf\n\n420205006_NOPV PCO_02182020.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_NOPV%20PCO_02182020.pdf\n\n420205006_NOPV PCO_02182020_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_NOPV%20PCO_02182020_text.pdf\n\n420205006_Operator Petition for Reconsideration_08202020.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_Operator%20Petition%20for%20Reconsideration_08202020.pdf\n\n420205006_Operator Requesting a Stay and Contesting the Order_02052021_(19-164084S).pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_Operator%20Requesting%20a%20Stay%20and%20Contesting%20the%20Order_02052021_(19-164084S).pdf\n\n420205006_Operator Response to Notice_03162020.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420205006/420205006_Operator%20Response%20to%20Notice_03162020.pdf\n\n420205006_Decision on Petition for Reconsideration_01042021_text.pdf\n\nJanuary 4, 2021\nVIA ELECTRONIC MAIL TO: barry.davis@enlink.com\nMr. Barry E. Davis\nChairman and Chief Executive Officer\nEnLink Midstream, LLC\n1722 Routh Street\nSuite 1300\nDallas, Texas 75201\nRe: CPF No. 4-2020-5006\nDear Mr. Davis:\nEnclosed is the Decision on the Petition for Reconsideration issued in the above-referenced case.\nFor the reasons explained therein, the Decision grants your Petition in part, affirms Item 1 of the\nJuly 27, 2020 Final Order, and issues an Amended Compliance Order. When the terms of the\nAmended Compliance Order have been completed, as determined by the Director, Southwest\nRegion, this enforcement action will be closed. Service of this Decision by electronic mail is\neffective upon the date of transmission as provided under 49 C.F.R. § 190.5.\nThis Decision constitutes the final administrative action in this proceeding.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Ms. Mary McDaniel, Director, Southwest Region, Office of Pipeline Safety, PHMSA\nMr. William V. Murchison, Counsel, Murchison Law Firm, PLLC\nvince.murchison@pipelinelegal.com\nMr. Michael LeBlanc, Senior Vice President, Operations, EnLink Midstream, LLC\nmichael.leblanc@enlink.com\nMr. Cordell Theriot, Senior DOT Compliance Specialist, EnLink Midstream, LLC\ncordell.theriot@enlink.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)\nEnLink Midstream, LLC, ) CPF No. 4-2020-5006\n)\nRespondent. )\n____________________________________)\nDECISION ON PETITION FOR RECONSIDERATION\nFrom February through July 2019, pursuant to 49 U.S.C. § 60117, a representative of the\nPipeline and Hazardous Materials Safety Administration (PHMSA or Agency), Office of\nPipeline Safety (OPS), conducted an on-site pipeline safety inspection of the facilities and\nrecords of EnLink Midstream, LLC (EnLink or Petitioner) in Lafayette, Louisiana and Dallas,\nTexas. As a result of the inspection, the Director, Southwest Region, OPS (Director), issued to\nPetitioner, by letter dated February 18, 2020, a Notice of Probable Violation and Proposed\nCompliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed\nfinding that EnLink had violated 49 C.F.R. § 195.452 and proposed ordering Petitioner to take\ncertain measures to correct the alleged violation. EnLink responded to the Notice by letter dated\nMarch 16, 2020 (Response) contesting the allegation and offering additional information.\nEnLink did not request a hearing and therefore has waived its right to one.\nOn July 27, 2020, pursuant to 49 U.S.C. §§ 60118 and 60122 and 49 C.F.R. § 190.213, the\nAssociate Administrator for Pipeline Safety (Associate Administrator) issued a Final Order\nfinding that Petitioner had committed a violation of 49 C.F.R. § 195.452 with respect to its\nintegrity management program (IMP). The Final Order found that Petitioner had failed to\nevaluate certain preventative and mitigative measures (P&M Measures) to protect a high\nconsequence area (HCA) in its IMP.\nPursuant to the authority of 49 U.S.C. § 60118(b) and 49 C.F.R. § 190.217, the Final Order also\nincluded a Compliance Order that required Petitioner to perform an emergency flow restricting\ndevice (EFRD) study, including consideration of the factors listed in § 195.452(i)(4). The Final\nOrder did not assess a civil penalty for the violation.\n\n\n\nCPF No. 4-2020-5006\nPage 2\nOn August 20, 2020, Petitioner filed a petition for reconsideration pursuant to 49 C.F.R.\n§ 190.243 (Petition).1 In its Petition, EnLink sought reconsideration of the entire Final Order,\nincluding the finding of violation and the terms of the Compliance Order.\nSection 190.243 allows a respondent to petition the Associate Administrator for reconsideration\nof a final order that has been issued pursuant to § 190.213. Reconsideration is not an appeal or a\ncompletely new review of the record. A respondent may ask for correction of an error or, in\nlimited circumstances, may present previously unavailable information. If a respondent requests\nconsideration of additional facts or arguments, the respondent must submit the reasons they were\nnot presented prior to the issuance of the final order. Repetitious information or arguments will\nnot be considered.2 The Associate Administrator may grant or deny, in whole or in part, a\npetition for reconsideration without further proceedings.\nIn its Petition, Petitioner presents several grounds for reconsideration. First, Petitioner contends\nthat it did not violate § 195.452(f)(6) as found in the Final Order. Second, Petitioner contends\nthat the Final Order improperly applied the standard of conduct required by the regulation.\nThird, Petitioner contends that PHMSA did not provide fair notice of the compliance\nexpectations under the cited regulations. Fourth, Petitioner contends PHMSA did not “carry the\nburden of proof.” Last, Petitioner contends that the Compliance Order should be withdrawn\nbecause it is ambiguous and impermissibly broad. This Decision carefully considers and\naddresses each of Petitioner’s contentions in turn.\nI. Finding of Violation\nPetitioner contends it did not violate § 195.452(f)(6), based on its reading of the regulation.\nFirst, I consider the text of the regulation itself and its plain meaning. Then I consider whether\nthe Final Order was correct in deciding that the evidence supports the finding in the Final Order\nthat Petitioner violated § 195.452(f)(6).\na. Analysis of 49 CFR § 195.452(f)(6)\nItem 1 in the Final Order found that EnLink had violated § 195.452(f)(6) by failing to identify\nP&M Measures to protect an HCA in its IMP. That section states:\n§ 195.452 Pipeline integrity management in high consequence areas.\n(a) …\n(f) What are the elements of an integrity management program? An\nintegrity management program begins with the initial framework. An\noperator must continually change the program to reflect operating\n1 On August 11, 2020, the Associate Administrator granted EnLink additional time to file a petition for\nreconsideration.\n2 Plains All American Pipeline, LP, CPF No. 5-2009-00118, 2013 WL 5883403, at *3 (Aug. 30, 2013).\n\n\n\nCPF No. 4-2020-5006\nPage 3\nexperience, conclusions drawn from results of the integrity assessments,\nand other maintenance and surveillance data, and evaluation of\nconsequences of a failure on the high consequence area. An operator must\ninclude, at minimum, each of the following elements in its written integrity\nmanagement program: . . .\n(6) Identification of preventive and mitigative measures to protect the\nhigh consequence area (see paragraph (i) of this section); . . .\n(i) What preventive and mitigative measures must an operator take to\nprotect the high consequence area?—(1) General requirements. An\noperator must take measures to prevent and mitigate the consequences of a\npipeline failure that could affect a high consequence area. These measures\ninclude conducting a risk analysis of the pipeline segment to identify\nadditional actions to enhance public safety or environmental protection.\nSuch actions may include, but are not limited to, implementing damage\nprevention best practices, better monitoring of cathodic protection where\ncorrosion is a concern, establishing shorter inspection intervals, installing\nEFRDs on the pipeline segment, modifying the systems that monitor\npressure and detect leaks, providing additional training to personnel on\nresponse procedures, conducting drills with local emergency responders\nand adopting other management controls.\n(2) Risk analysis criteria. In identifying the need for additional\npreventive and mitigative measures, an operator must evaluate the\nlikelihood of a pipeline release occurring and how a release could affect the\nhigh consequence area. This determination must consider all relevant risk\nfactors, including, but not limited to:\n(i) Terrain surrounding the pipeline segment, including drainage\nsystems such as small streams and other smaller waterways that could act\nas a conduit to the high consequence area;\n(ii) Elevation profile;\n(iii) Characteristics of the product transported;\n(iv) Amount of product that could be released;\n(v) Possibility of a spillage in a farm field following the drain tile into a\nwaterway;\n(vi) Ditches alongside a roadway the pipeline crosses;\n(vii) Physical support of the pipeline segment such as by a cable\nsuspension bridge;\n(viii) Exposure of the pipeline to operating pressure exceeding\nestablished maximum operating pressure;\n(ix) Seismicity of the area.\n(3) Leak detection. An operator must have a means to detect leaks on its\npipeline system. An operator must evaluate the capability of its leak\ndetection means and modify, as necessary, to protect the high consequence\narea. An operator's evaluation must, at least, consider, the following\nfactors—length and size of the pipeline, type of product carried, the\npipeline's proximity to the high consequence area, the swiftness of leak\ndetection, location of nearest response personnel, leak history, and risk\n\n\n\nCPF No. 4-2020-5006\nPage 4\nassessment results.\n(4) Emergency Flow Restricting Devices (EFRD). If an operator\ndetermines that an EFRD is needed on a pipeline segment to protect a high\nconsequence area in the event of a hazardous liquid pipeline release, an\noperator must install the EFRD. In making this determination, an operator\nmust, at least, consider the following factors—the swiftness of leak\ndetection and pipeline shutdown capabilities, the type of commodity\ncarried, the rate of potential leakage, the volume that can be released,\ntopography or pipeline profile, the potential for ignition, proximity to power\nsources, location of nearest response personnel, specific terrain between the\npipeline segment and the high consequence area, and benefits expected by\nreducing the spill size.\nSection 195.452(f) requires operators of pipelines that could affect an HCA to create a written\nIMP that the operator must “continually change the program” to reflect operating experience;\nconclusions drawn from results of the integrity assessments and other maintenance and\nsurveillance data; and evaluation of the consequences of a failure on HCAs. Section\n195.452(f)(6), in particular, requires that operators include identification of P&M Measures to\nprotect HCAs in their written integrity management programs. Section 195.452(f)(6)\nspecifically refers to § 195.452(i) for the requirements regarding identifying and taking such\nP&M Measures.\nAs quoted above, § 195.452(i) requires operators to conduct three analyses regarding the\nidentification of necessary P&M Measures. First, § 195.452(i)(1) contains the general\nrequirement to take P&M Measures to prevent and mitigate the consequences of a pipeline\nfailure that could affect an HCA, as well as the requirement to conduct a risk analysis of pipeline\nsegments to identify actions to enhance public safety or environmental protection. Subparagraph\n(i)(2) lists the risk analysis criteria that an operator must use in identifying the need for any\nadditional P&M Measures that the operator has not already implemented on a line that could\naffect an HCA. Second, subparagraph (i)(3) requires operators of pipelines that could affect\nHCAs to have a means to detect leaks on its pipeline system and requires that operators consider\na different set of criteria to determine the capability of the leak detection system to protect each\nHCA. Third, subparagraph (i)(4) requires operators to determine whether EFRDs are needed on\na pipeline segment to protect an HCA in the event of a hazardous liquid pipeline release. This\nsubparagraph lists still another set of 10 specific factors that an operator must at least consider\nwhen determining the need for EFRDs. Each of these analyses is set forth in a separate\nsubparagraph of § 195.452(i), indicating they are distinct requirements.\nThe Petition centers on the notion that operators must perform the EFRD analysis pursuant to\n§ 195.452(i)(4) only if the general risk analysis provided at § 195.452(i)(1) and (2) first identifies\na need for additional P&M Measures. This interpretation, however, is inconsistent with the plain\n\n\n\nCPF No. 4-2020-5006\nPage 5\nlanguage of the regulation.3 A close reading of the regulation reveals nothing in the text of the\nregulation that indicates that either the evaluation of leak detection systems or the analysis of the\nneed for EFRDs are contingent on the results of the general risk analysis conducted pursuant to\n§ 195.452(i)(1) and (2).\nIn fact, if one considers the entire text and structure of § 195.452(i) as a whole, it is evident that\none must read the whole paragraph in its entirety to be applied properly and that one cannot pick\nand choose the individual words or subparagraphs to fit one’s own ends.4 PHMSA’s integrity\nmanagement program for hazardous liquid pipelines is contained entirely within § 195.452, so\nthe constituent parts of that section should be read holistically to properly interpret the purpose\nand meaning of individual paragraphs and subparagraphs. The alleged violation here revolves\nentirely around the concept of P&M Measures that pipeline operators must consider\nperiodically,5 taking into account constantly changing circumstances to determine what\nadditional protections they should develop and implement “to prevent and mitigate the\nconsequences of a pipeline failure that could affect a high consequence area.”6 Nowhere in\n§ 195.452 does one find a single instance where any one particular P&M Measure is prescribed,\nincluding EFRDs; instead, we find that operators are required to follow prescribed analytical\nprocesses that consider specific factors in order to develop and implement their own unique\nP&M Measures to prevent and mitigate releases. It is not a particular result that is generally\nprescribed, but, rather, a process by which a valid result can be achieved and documented.\nHere, the structure of paragraph (i) is particularly telling. The paragraph is titled: (i) What\npreventive and mitigative measures must an operator take to protect the high consequence\narea?” What follows are four subparagraphs that must be read individually in order to\nunderstand how they fit together. Subparagraph (1) sets forth the general requirements, which\nincludes a “risk analysis” of the relevant pipeline segment to identify additional P&M Measures\ndesigned “to enhance public safety or environmental protection.” One of these measures is the\npossible installation of EFRDs. Subparagraph (2) then lists the set of minimum criteria or factors\nthat must be employed to determine whether additional measures are needed, aimed at the unique\nphysical characteristics of a particular segment and its operation.\n3 See Statewide Bonding, Inc. v. U.S. Dep’t of Homeland Sec., 980 F.3d 109, 116 (D.C. Cir. 2020) (“Where [] an\nagency’s regulation is unambiguous, the court must give effect to the regulation’s plain meaning.”); Kisor v. Wilkie,\n139 S.Ct. 2400, 2415 (2019) (explaining that to determine whether a regulation is ambiguous, “a court must\n‘carefully consider’ the text, structure, history and purpose of a regulation….”). See also, Gen. Elec. Co. v. U.S.\nE.P.A., 53 F.3d 1324, 1329 (D.C. Cir. 1995), as corrected (June 19, 1995) (“[W]e must ask whether the regulated\nparty received, or should have received, notice of the agency's interpretation in the most obvious way of all: by\nreading the regulations.”).\n4 See Statewide Bonding 980 F.3d at 117, (“A basic principle of statutory and regulatory interpretation is that the\nstatute or regulation should be read in context.”).\n5 The concept of periodic integrity assessments of an operator’s pipeline system and its IM program is intrinsic to\n49 C.F.R. § 195.452. For more details, see § 195.452(f) and (j).\n6 49 C.F.R. § 195.452(i)(1).\n\n\n\nCPF No. 4-2020-5006\nPage 6\nA separate required element in this overall consideration of P&M Measures is leak detection,\nwhich is an important process for the timely detection of oil spills. Subparagraph (3), entitled\n“Leak detection,” requires that every operator with pipeline segments that could affect a HCA\n“must have a means to detect leaks on its pipeline system.” It does not mandate a particular\nmethod of leak detection, but provides that the “means” chosen must be based on an evaluation\nof the capability of the operator’s leak detection system, considering certain specific factors. The\nsubparagraph dictates that an operator must be able to show that the process used to evaluate and\nuse a particular leak-detection system has considered certain specific factors.\nA similar requirement is found in subparagraph (4), entitled “Emergency Flow Restricting\nDevices (EFRD).” This subparagraph is even less prescriptive than the preceding subparagraph\non leak detection and does not dictate that an operator employ EFRDs at all. On the contrary, it\nmerely requires every operator with pipeline segments that could affect HCAs to determine\nwhether EFRDs are needed, based on the actual consideration of 10 specific factors (see\nregulation cited above).\nThe regulatory history of 49 CFR § 195.452(i) also supports the textualist reading outlined\nabove. In July 1994, Congress specifically required PHMSA to prescribe standards for the use\nof EFRDs to minimize product releases from hazardous liquid pipeline facilities.7 Pursuant to\nthat mandate, PHMSA issued a Notice of Proposed Rulemaking (NPRM)8 seeking public\ncomments on the use of EFRDs in high-risk areas. In December 2000, publication of\n§ 195.452(i) codified the Congressional mandate that PHMSA require operators to evaluate the\nspecific need for EFRDs on their systems. The preamble to the Final Rule, by which\n§ 195.452(i) was promulgated,9 states:\nAnother protective measure the rule identifies is for an operator to install an EFRD on the\npipeline segment. The final rule does not prescribe the specific conditions under which\nEFRDs or other preventative and mitigative measures are required. Rather, the final rule\nrequires an operator to develop and apply risk assessment and decision-making processes\nthat reflect pipeline-specific conditions and operating environments.\nThe preamble to the Final Rule supports a plain language reading of the regulatory text, that\noperators of pipelines that could affect HCAs must follow a defined process to make a\n7 49 USC 60102(j) states that the Secretary of DOT “shall prescribe standards on the circumstances under which an\noperator of a hazardous liquid pipeline facility must use an emergency flow restricting device or other procedure,\nsystem, or equipment described in paragraph (1) of this subsection on the facility.”\n8 Pipeline Safety: Pipeline Integrity Management in High Consequence Areas, Notice of Proposed Rulemaking, 65\nFR 21695 (April 24, 2000).\n9 Pipeline Integrity Management in High Consequence Areas (Hazardous Liquid Operators With 500 or More Miles\nof Pipeline) (Final Rule), 65 Fed. Reg. 75378 (Dec. 1, 2000) (codified at 49 C.F.R. §§ 195.450-195.452).\n\n\n\nCPF No. 4-2020-5006\nPage 7\ndetermination regarding whether EFRDs are needed on their systems to minimize product\nreleases from hazardous liquid facilities. The preamble explains the process that must be\nfollowed in making this determination:\nThe rule also specifies factors that an operator must consider in making this\ndetermination. OPS will review during inspection the adequacy of the analysis\nand the appropriateness of the operator’s decision on the need to install an EFRD\n(emphasis added).10\nIn its Petition, EnLink repeatedly contends that the Notice and Final Order misinterpret and\nmisapply § 195.452(f)(6) and (i)(4). Petitioner argues that the analysis required by\n§ 195.452(i)(4) only needs to be completed if the analysis required by § 195.452(i)(1) and (2)\nidentify a need for additional P&M Measures. This interpretation of the regulations, however, is\ninconsistent with the plain language and context of the regulation, which clearly indicate that\noperators must determine, based on a specific set of criteria, whether additional EFRDs are\nnecessary on their pipeline system. As discussed above, the plain language of the regulations\nrequires operators to conduct three separate analyses regarding the identification of necessary\nP&M Measures, each with separate subparagraphs of § 195.452(i), indicating they are distinct\nrequirements. The EFRD analysis has a separate set of specific criteria from the general risk\nanalysis criteria that must be considered in making the determination regarding the need for\nEFRDs. The factors relevant to the need for EFRDs are in § 195.452(i)(4), not under\n§ 195.452(i)(1) and (2), so the general risk analysis required under (i)(1) and (2) would not be\neffective or sufficient in evaluating the need for EFRDs.\nIn summary, neither the regulatory text nor the preamble to the Final Rule supports Petitioner’s\ninterpretation of § 195.452(i)(4). In fact, Petitioner attempts to subvert the required EFRD\nanalysis by construing the regulation as a sequence of events and concluding that its conduct was\nsufficient to complete the sequence. However, the regulation plainly sets out a list of individual\nanalyses, each of which must be completed to achieve compliance. The Petitioner’s proposed\nprocedure is simply not reflected in the text of the regulations. On the contrary, the text and\nstructure of § 195.452(i) itself, as well as the language in the statute and regulatory measures\ndescribing the leak detection and EFRD analyses, provide that operators must evaluate their\nsystems in light of two unique sets of factors pursuant to § 195.452(f)(6) and (i)(3) and (4).\nAs discussed in more detail in Section III below, subsequent guidance published by PHMSA\non this regulation, as well as enforcement actions issued by the Agency based on violations of\n§ 195.452(f)(6) and (i)(4), show that PHMSA has consistently applied this plain language\nreading of the regulation.\n10 65 Fed. Reg. at 75393.\n\n\n\nCPF No. 4-2020-5006\nPage 8\nb. Evidence and Finding of Violation\nThe Final Order found that Petitioner violated § 195.452(f)(6) by failing to identify P&M\nMeasures to protect a HCA in its IMP. Specifically, the Order found that Petitioner failed to\ndetermine if EFRDs were needed on its Cajon Sibon NGL Pipeline System in accordance with\n§ 195.452(i)(4), which is incorporated into § 195.452(f)(6). As discussed in the Final Order,\nEnLink admitted that it did not conduct an EFRD analysis specific to determining whether\nadditional EFRDs were needed on the IP-1000 segment of the Cajun Sibon NGL Pipeline\nSystem. In its Response, EnLink stated that “[t]he need for additional EFRD analysis was\nevaluated but not recommended since these lines were identified to be most affected by the Third\nParty threat.”11\nFurther, as noted above, there is no documentary evidence showing that EnLink actually\nperformed the required EFRD analysis. EnLink submitted a blank copy of its LIMP Form 108,\ntitled “EFRD Evaluation Form.” This form outlines the factors listed in § 195.452(i)(4) that are\nsupposed to be used for determining whether EFRDs are needed, but it was not completed by\nEnLink. In its Response and in the Petition, EnLink cites to an entirely different form, LIMP\nForm 106, to argue that it complied with the regulations; however, the LIMP Form 106 also does\nnot reflect any analysis of the factors listed in § 195.452(i)(4).12 The form instead indicates\nsimply that “further EFRD/Leak Detection Evaluation” was not recommended.13 In other words,\nEnLink’s own admissions and documents show that EnLink used the risk analysis process that is\nused for a general assessment of the need for additional P&M Measures as a short-cut or\nsubstitute for performing the required EFRD analysis.\nAccordingly, the evidence, including EnLink’s own admissions and records, clearly supports the\nfinding in the Final Order that EnLink did not evaluate the need for additional EFRDs on the IP-\n1000 segment in accordance with § 195.452(f)(6).\nEnLink’s Response and Petition also contend that EnLink considered the factors listed under\n§ 195.452(i)(4) while conducting the general risk analysis for the IP-1000 segment, and\ntherefore, it complied with the regulations.14 EnLink, however, has never been able to produce,\neither during the inspection, in its Response, or with its Petition, any evidence that it evaluated\nall of the factors listed in § 195.452(i)(4).15 EnLink’s Response discussed the factors, but the\n11 Petitioner’s Response to the Notice (Response), at 4-5.\n12 Id., at 15.\n13 Id.\n14 Response, at 2; Petitioner’s Petition for Reconsideration (Petition), at 13.\n15 Section 195.452(l)(1)(ii) requires operators to keep records to demonstrate compliance with the integrity\nmanagement regulations, including “documents to support the decisions and analyses, including any modifications,\njustifications, deviations and determinations made, variances, and actions taken, to implement and evaluate each\n\n\n\nCPF No. 4-2020-5006\nPage 9\nsupporting documentation only included a blank copy of LIMP Form 108, graphs of liquid\nvolume release, a risk table for the IP-1000 System, the LIMP Form 106, and other apparent\noutputs from its risk model, none of which shows that EnLink considered the required factors,\nincluding swiftness of leak detection and pipeline shutdown capabilities, the potential for\nignition, proximity to power sources, location of nearest response personnel, or specific terrain\nbetween the pipeline segment and the HCA. The Petition listed the factors that EnLink\nostensibly evaluated as part of its IM program, but several factors required under § 195.452(i)(4),\nnoted above, were not included. Even if the regulations could be interpreted to allow one\nanalysis that evaluates all of the factors listed in § 195.452(i)(1) through (4) together, as\nPetitioner argues, EnLink would still be in violation of the code since the evidence shows\nEnLink did not evaluate all of the factors required by § 195.452(i)(4).\nFinally, in its Petition, EnLink contends that it fulfilled the requirements of § 195.452(f)(6)\nbecause it demonstrated that its IMP identified P&M Measures to protect the HCAs.16 Petitioner\nargues, on this basis alone, that the finding of violation in the Final Order and the Compliance\nOrder should be withdrawn.17 As discussed above, § 195.452(f)(6) includes the EFRD process\noutlined in paragraph (i) for how an operator must identify and implement necessary P&M\nMeasures and conduct a separate EFRD analysis under subparagraph (i)(4). Simply listing P&M\nMeasures and ignoring the requirements in § 195.452(i)(4), which is clearly and plainly\nreferenced by § 195.452(f)(6), is not sufficient to comply with the entirety of the regulation.18\nHere, it is appropriate to find Petitioner violated § 195.452(f)(6) since paragraph (f)(6) requires\nthe completion of paragraph (i) in its entirety.19\nFor the above reasons, I affirm the finding in the Final Order that Petitioner violated the pipeline\nsafety regulations by not conducting an EFRD analysis, in violation of § 195.452(f)(6). This\nDecision further clarifies the violation is based on EnLink’s failure to conduct the EFRD analysis\non the IP-1000 segment, rather than for the entire Cajun Sibon NGL Pipeline System, as\ndiscussed in more detail in Section V below. Having addressed the fundamental questions of the\nelement of the integrity management program listed in paragraph (f) of this section.” EnLink provided no records to\ndemonstrate compliance.\n16 Petition, at 8.\n17 Id.\n18 The Petition itself acknowledges that at least some of paragraph (i) must be completed. Petition, at 6-7, 12.\n19 EnLink’s IMP reflects a process that is not consistent with the regulations. EnLink’s LIMP Form 108 states:\n“Triggering events for EFRD evaluations include follow-up to P&M evaluation or other event that in the judgment\nof the IMP Team Chairman necessitates additional EFRD analysis.” EnLink’s LIMP Form 106 allows personnel to\n“make a recommendation to perform/not perform leak detection and EFRD evaluations.” EnLink’s IMP process\ntherefore is not in accordance with § 195.452(i)(4) because it makes the EFRD analysis and evaluation of the factors\nin subparagraph (i)(4) contingent on the results of the general risk analysis or at the discretion of EnLink personnel.\nEnLink’s IMP, which applies to all of EnLink’s hazardous liquid lines subject to § 195.452, is not consistent with\nthe requirements of the regulations.\n\n\n\nCPF No. 4-2020-5006\nPage 10\nregulation’s requirements and evidence proving EnLink violated the regulation, I now turn to the\nremaining arguments presented in the Petition.\nII. Standard of Conduct\na. Use of Word “Properly” in the Final Order\nPetitioner alleges that the Final Order applied a standard of conduct different than what was\nalleged in the Notice, and therefore, violated Petitioner’s right to due process because Petitioner\ndid not have adequate notice of that standard of conduct and constitutes an arbitrary and\ncapricious agency action. Petitioner argues that the statement in the Final Order that EnLink\n“did not properly determine if EFRDs were needed on its Cajun Sibon NGL Pipeline System to\nprotect HCAs” constituted a heightened standard of conduct and that Petitioner was not given\nfair notice of this standard.\nI disagree. The only standard by which Petitioner’s conduct has been judged during this\nproceeding is the plain language of the regulation. The Notice alleged that “EnLink failed to\nimplement a process for the evaluation, identification, and implementation of preventative and\nmitigative measures to protect the HCAs of its pipeline system as required by § 195.452(f)(6)\nand § 195.452(i)(4).”20 The Final Order likewise found the Petitioner “violated § 195.452(f)(6)\nby failing to identify P&M Measures to protect a high consequence area in its IMP.”21 The Final\nOrder also stated, EnLink “did not properly determine if EFRDs were needed on its Cajun Sibon\nNGL Pipeline System to protect HCAs.”22 Use of the word “properly” did not create some new\nstandard, as Petitioner claims, but rather described Petitioner’s failure to follow the regulation.\nThe Merriam-Webster dictionary defines “properly” to mean “in an accurate or correct way.”23\nUse of the term was appropriate in describing Petitioner’s violation of § 195.452(i)(4). By its\nown admission, Petitioner failed to conduct an EFRD evaluation and the evidence proved that it\nfailed to evaluate the factors required to be considered at § 195.452(i)(4). Thus, Petitioner failed\nto accurately or correctly determine if EFRDs were needed as required by the regulation. Since\nthis language was entirely appropriate, its usage can hardly be said to violate Petitioner’s right to\ndue process or that it constitutes some sort of arbitrary and capricious action. Accordingly, this\nargument is rejected.\nb. Application of the Regulations\n20 Notice of Probable Violation and Proposed Compliance Order (Notice), at 3.\n21 Final Order and Compliance Order (Final Order), at 2.\n22 Id., at 2.\n23 Properly, Merriam-Webster.com Dictionary, Merriam-Webster, https://www merriam-\nwebster.com/dictionary/properly (last visited Nov. 16, 2020).\n\n\n\nCPF No. 4-2020-5006\nPage 11\nPetitioner next argues that the Final Order is deficient because it: imposes a new standard by\n“misapplying” the regulations; bases its finding “upon an erroneous interpretation of its own\nregulations”; and applies an “ad hoc re-interpretation of its own regulations,” constituting an\narbitrary and capricious agency action.24 Petitioner bases these arguments again on its\ncontention that the regulation does not require operators to perform an EFRD analysis pursuant\nto § 195.452(i)(4) because it “requires only that an operator determine whether additional\npreventative and mitigative measures are needed by way of the risk analysis performed pursuant\nto [§ 195.452(i)(1) and (2)].”25 As explained in detail in Section I, Petitioner’s argument\nregarding the construction of §§ 195.452(f)(6) and (i)(1), (2), and (4) is refuted by the plain\nlanguage of the regulation, and is not supported by any Agency statements on the regulations,\nincluding those made in the preamble to the Final Rule when the regulation was first\npromulgated. Therefore, PHMSA did not misapply or “re-interpret” its regulations in finding\nthat EnLink violated § 195.452(f)(6).\nPetitioner makes several other arguments that are equally unpersuasive. First, Petitioner argues\nthat § 195.452 does not require operators to install P&M Measures or EFRDs. I find this\nargument irrelevant. The Final Order never determined that Petitioner violated the regulations\nby failing to install any P&M Measure that should have been installed. In fact, it is not possible\nto know if EFRDs are needed on Petitioner’s pipeline to protect the HCA until the operator has\nperformed the specific analysis required by § 195.452(i)(4). The Compliance Order does not\nrequire the operator to install any P&M Measure at all to come into compliance with the\nregulations, but rather requires the completion of a distinct EFRD analysis that considers all the\nfactors enumerated in subparagraph (i)(4).\nSecond, Petitioner argues that § 195.452(i)(4) only requires operators to “consider” the factors\nlisted and does not require operators to install EFRDs. Again, there is no statement in the\nNotice, Final Order, or Compliance Order that alleges Petitioner was required to install EFRDs.\nAll of the actions are based on the requirement to conduct the EFRD analysis outlined in\n§ 195.452(i)(4).\nc. Agency Intent\nPetitioner next argues that PHMSA “intended” for the requirement to conduct an EFRD analysis\npursuant to § 195.452(i)(4) to be contingent on the results of the risk analysis conducted pursuant\nto § 195.452(i)(1) and (2).26 Petitioner’s interpretation again is refuted by the plain language of\n24 Petition, at 10-12.\n25 Id., at 10-14.\n26 Petitioner also contends that, from a policy perspective, PHMSA has “misdirected” the application of\n§ 195.452(i)(4) since circumstances have supposedly changed since the regulation was first promulgated in 2000,\napproximately 13 years before EnLink’s pipeline was commissioned. “Newly designed systems,” Petitioner argues,\nall address EFRDs in system designs so no additional EFRDs would need to be added to these systems at a later\ntime. I disagree. By its terms, § 195.452(i)(4) applies equally to pipelines such as EnLink’s that may have been\n\n\n\nCPF No. 4-2020-5006\nPage 12\nthe regulations and is not supported by any statement made by the Agency, including those made\nin guidance documents, which are described in more detail in Section III below.\nFor the reasons stated in Section I and reiterated again above, Petitioner’s interpretation of\n§§ 195.452(f)(6) and (i) is erroneous and, therefore, I find there is no violation of due process on\nany of the bases alleged by Petitioner.\nIII. Fair Notice\nPetitioner argues that PHMSA failed to provide Petitioner with “fair notice” of its compliance\nexpectations and, therefore, the findings in the Final Order and Compliance Order constitute an\narbitrary and capricious action.27 Petitioner cites to PHMSA guidance regarding § 195.452(i)(4),\nincluding the Frequently Asked Questions (FAQs) related generally to § 195.45228 and PHMSA\nEnforcement Guidance,29 to support Petitioner’s argument. For the reasons discussed below, I\nfind that Petitioner had fair notice of the requirements of §§ 195.452(f)(6) and (i), and that\nneither the Final Order nor the Compliance Order constitutes an arbitrary and capricious action.\nIn the administrative context, fair notice requires that an agency have stated with “ascertainable\ncertainty what is meant by the standards it has promulgated.”30 Thus, if by reviewing the\nregulations themselves as well as other public statements issued by the agency, a regulated party\nacting in good faith could identify, with “ascertainable certainty,” the standards with which the\nagency expects parties to conform, then the agency has fairly notified a regulated party of the\nagency's interpretation.31 As discussed in detail in Section I, the plain language of the regulation\nin this instance is clear and unambiguous that an operator must perform an EFRD analysis that\nsatisfies § 195.452(i)(4). The regulation is not ambiguous and thus the regulation itself provides\nadequate notice to regulated entities.32 In this case, the regulated party, if acting in good faith,\ndesigned and constructed after the effective date of the regulation, which was March 31, 2001. The regulation\nclearly applied to Petitioner’s pipeline in this case, as intended, and Petitioner’s policy argument is purely\nspeculative.\n27 Petition, at 15-16.\n28 Hazardous Liquid Integrity Management FAQs (HL IM FAQs), available at\nhttps://www.phmsa.dot.gov/pipeline/hazardous-liquid-integrity-management/hl-im-faqs (last accessed November\n12, 2020).\n29 Hazardous Liquid Integrity Management Enforcement Guidance (HL IM Enforcement Guidance), available at\nhttps://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/Hazardous_Liquid_IM_Enforcement_Guidance_12_7_2\n015.pdf (last acc","truncated":true,"body_characters":90276}