{"operation":"document","citation":"CPF 42021034NOPV","title":"TEXAS EASTERN TRANSMISSION, LP (SPECTRA ENERGY PARTNERS, LP) — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2021-12-21","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.613(a), 192.613(b), 192.705(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-42021034nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-42021034nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-42021034nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/42021034NOPV","body":"Notice of Probable Violation involving TEXAS EASTERN TRANSMISSION, LP (SPECTRA ENERGY PARTNERS, LP). PHMSA's enforcement data identifies the cited regulations as 192.613(a),  192.613(b),  192.705(a). The case was opened on 2021-12-21 and is reported as closed as of 2024-05-30. Proposed civil penalty: $640,300. Assessed civil penalty: $640,300. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n42021034NOPV_Closure Letter_05302024_(20-183709).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_Closure%20Letter_05302024_(20-183709).pdf\n\n42021034NOPV_Closure Letter_05302024_(20-183709)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_Closure%20Letter_05302024_(20-183709)_text.pdf\n\n42021034NOPV_Final Order_02032023_(20-183709).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_Final%20Order_02032023_(20-183709).pdf\n\n42021034NOPV_Final Order_02032023_(20-183709)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_Final%20Order_02032023_(20-183709)_text.pdf\n\n42021034NOPV_Op Resp to Notice and Req for Hearing and Stmnt of Issues (Part 1)_02212022_(20-183709).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_Op%20Resp%20to%20Notice%20and%20Req%20for%20Hearing%20and%20Stmnt%20of%20Issues%20(Part%201)_02212022_(20-183709).pdf\n\n42021034NOPV_Op Resp to Notice and Req for Hearing and Stmnt of Issues (Part 2)_02212022_(20-183709).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_Op%20Resp%20to%20Notice%20and%20Req%20for%20Hearing%20and%20Stmnt%20of%20Issues%20(Part%202)_02212022_(20-183709).pdf\n\n42021034NOPV_Operator Post-Hearing Submission_07182022_(20-183709).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_Operator%20Post-Hearing%20Submission_07182022_(20-183709).pdf\n\n42021034NOPV_Operator Pre-Hearing Submission_05272022_(20-183709).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_Operator%20Pre-Hearing%20Submission_05272022_(20-183709).pdf\n\n42021034NOPV_PCP PCO_12212021_(20-183709).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_PCP%20PCO_12212021_(20-183709).pdf\n\n42021034NOPV_PCP PCO_12212021_(20-183709)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_PCP%20PCO_12212021_(20-183709)_text.pdf\n\n42021034NOPV_PHC Hearing Scheduled_03212022_(20-183709).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_PHC%20Hearing%20Scheduled_03212022_(20-183709).pdf\n\n42021034NOPV_PHC Hearing Scheduled_03212022_(20-183709)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/42021034NOPV/42021034NOPV_PHC%20Hearing%20Scheduled_03212022_(20-183709)_text.pdf\n\n42021034NOPV_PHC Hearing Scheduled_03212022_(20-183709)_text.pdf\n\nMarch 21, 2022\nVIA ELECTRONIC MAIL TO: catherine.little@troutman.com and mary.mcdaniel@dot.gov\nMs. Catherine D. Little, Esq.\nCounsel for Texas Eastern Transmission, LP\nTroutman Pepper, LLP\n600 Peachtree Street, NE, Suite 3000\nAtlanta, GA 30308\nMs. Mary McDaniel\nDirector, Southwest Region\nPipeline and Hazardous Materials Safety Administration\n8701 South Gessner Road, Suite 630\nHouston, Texas 77074\nRe: Notice of Hearing, Texas Eastern Transmission, LP\nCPF No. 4-2021-034-NOPV\nDear Ms. Little and Ms. McDaniel:\nIn accordance with 49 C.F.R. § 190.211, an informal hearing will be held regarding the Notice of\nProbable Violation, Proposed Civil Penalty, and Proposed Compliance Order issued by the Pipeline\nand Hazardous Materials Safety Administration in the above-referenced case. The hearing will take\nplace on June 8, 2022, beginning at 8:30 a.m. Central Time.\nThe hearing will be held via videoconference. I will provide the videoconference information prior\nto the hearing. At least 10 calendar days prior to the hearing (or by May 31, 2022), both parties\nmust submit and exchange any additional written materials they intend to present at the hearing and\nthe name and email address of each attendee. This information should be provided electronically.\nMaterials not submitted by this date may be excluded.\nIf you have any questions, please do not hesitate to contact me.\nSincerely,\nLarry White\nPresiding Official\ncc: Mr. William T. Yardley, Executive Vice President and President, Gas Transmission and\nMidstream, Texas Eastern Transmission, LP, bill.yardley@enbridge.com\nMs. Melanie Lampton, Esq., Counsel, Southwest Region, Office of Pipeline Safety,\nmelanie.lampton@dot.gov\n\n42021034NOPV_Final Order_02032023_(20-183709)_text.pdf\n\nFebruary 3, 2023\nVIA ELECTRONIC MAIL TO: cynthia.hansen@enbridge.com\nMs. Cynthia L. Hansen\nExecutive Vice President and President\nGas Transmission and Midstream\nEnbridge Inc.\n915 North Eldridge Parkway\nHouston, Texas 77079\nRe: CPF No. 4-2021-034-NOPV\nDear Ms. Hansen:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation, assesses a civil penalty of $640,300, and specifies actions that need to be taken by\nTexas Eastern Transmission, LP to comply with the pipeline safety regulations. The penalty\npayment terms are set forth in the Final Order. When the civil penalty has been paid and the\nterms of the compliance order completed, as determined by the Director, Southwest Region, this\nenforcement action will be closed. Service of the Final Order by e-mail is effective upon the\ndate of transmission and acknowledgement of receipt as provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure (Final Order)\ncc: Mr. Bryan Lethcoe, Director, Southwest Region, Office of Pipeline Safety, PHMSA\nMs. Catherine Little, Esq., Counsel for Enbridge Inc., Bracewell, LLP,\ncatherine.little@bracewell.com\n\n\n\nMs. Annie Cook, Esq., Counsel for Enbridge Inc., Bracewell, LLP,\nannie.cook@bracewell.com\nMs. Karen Stallings, Esq., Associate General Counsel – Permitting, ROW and\nOperations, Enbridge Inc., karen.stallings@enbridge.com\nMr. David Bryson, Senior Vice President and Chief Operations Officer, Gas\nTransmission and Midstream, Enbridge Inc., david.bryson@enbridge.com\nMr. Nathan Atanu, Manager, Operational Compliance, Enbridge Inc.,\nnathan.atanu@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)\nTexas Eastern Transmission, LP, ) CPF No. 4-2021-034-NOPV\na subsidiary of Enbridge Inc., )\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nFollowing two reportable incidents that occurred on Texas Eastern Transmission, LP’s 1\n(TETLP) pipeline facilities located near Danville and Hillsboro, Kentucky in August 2019 and\nMay 2020, respectively, representatives of the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA), Office of Pipeline Safety (OPS), pursuant to Chapter 601 of 49\nUnited States Code (U.S.C.), initiated an investigation and inspection of TETLP’s facilities and\nrecords.\nThe first incident occurred on August 1, 2019, at approximately 1:23 am Eastern Daylight Time\n(EDT) on TETLP’s 30-inch diameter Line 15 near Danville, Kentucky. Line 15 transports\nnatural gas from the Danville Compressor Station to the Tompkinsville Compressor Station in\nKentucky (Danville incident). The line failed at mile post (MP) 423.3, resulting in the release of\napproximately 66 million cubic feet (MMCF) of natural gas. The release of natural gas ignited\nand resulted in the death of one person and the hospitalization of six others. First responders\nevacuated approximately 75 members of the public. The resulting fire destroyed multiple\nstructures and burned vegetation over approximately 30 acres of land. TETLP estimated\ndamages to exceed $19 million. On August 8, 2019, PHMSA issued a Corrective Action Order\n(CAO) that required TETLP to take corrective actions including a root cause analysis of the\nfailure.\n2\nApproximately nine months after the Danville incident, TETLP experienced another incident on\none of the pipelines subject to the CAO. On May 4, 2020, at approximately 4:36 pm EDT\n1 TETLP is a wholly-owned subsidiary of Spectra Energy Partners, LP, which is, in turn, a wholly-owned\nsubsidiary of Enbridge Inc. Enbridge Inc. website, National Gas Transmission and Midstream, available at\nhttps://www.enbridge.com/About-Us/Natural-Gas-Transmission-and-Midstream.aspx (last accessed January 17,\n2023).\n2 In the Matter of Texas Eastern Transmission, LP, Corrective Action Order, CPF No. 2-2019-1002H (Aug. 8,\n2019).\n\n\n\nTETLP experienced a second incident on its 30-inch diameter Line 10 located near Hillsboro in\nFleming County, Kentucky (Hillsboro incident). Line 10, which transports natural gas from\nWheelersburg Compressor Station to Owingsville Compressor Station in Kentucky, failed at MP\n509.898. The failure resulted in a release of approximately 52 MMCF of natural gas, which\nsubsequently ignited, burning a heavily wooded area on a hillside.3 TETLP estimated damages\nfor this incident at approximately $12 million. The CAO was amended on two occasions and the\namendments included preliminary findings that the cause of the girth weld failures appeared to\nbe due to land movement and that the issue of land movement was potentially system-wide.\n4\nAs part of its investigation of these incidents, OPS reviewed the operating history of the parallel\npipelines running along TETLP’s right-of-way and inspected its operation and maintenance\nprocedures for selected locations related to Lines 10, 15, and 25 in Mississippi, Alabama,\nTennessee, Kentucky, Ohio, and Pennsylvania.\nAs a result of the inspections and investigations, the Director, Southwest Region, OPS\n(Director), issued to Respondent, by letter dated December 21, 2021, a Notice of Probable\nViolation, Proposed Civil Penalty, and Proposed Compliance Order (Notice). In accordance\nwith 49 C.F.R. § 190.207, the Notice proposed finding that TETLP had committed two\nviolations of 49 C.F.R. Part 192 and proposed assessing a civil penalty of $640,300 for the\nalleged violations. The Notice also proposed ordering Respondent to take certain measures to\ncorrect one of the alleged violations.\nTETLP responded to the Notice by letter dated February 21, 2022 (Response), as supplemented\nby material submitted on May 27, 2022 (Pre-hearing submission). Respondent contested one of\nthe allegations and requested an informal hearing. A hearing was subsequently held on June 8,\n2022, in Houston, Texas before a Presiding Official with the PHMSA Office of Chief Counsel.\nAt the hearing, Respondent was represented by counsel. After the hearing, Respondent provided\nadditional written material on July 18, 2022 (Post-hearing submission). On August 18, 2022, the\nDirector provided a region recommendation (Recommendation). On September 1, 2022,\nRespondent submitted a Reply to the region recommendation (Reply).\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. § 192.613, which states:\n§ 192.613 Continuing surveillance.\n(a) Each operator shall have a procedure for continuing\nsurveillance of its facilities to determine and take\nappropriate action concerning changes in class location,\n3 PHMSA Accident Report, Form PHMSA F 7100.2 - 20200057-33836, dated June 6, 2020.\n4 In the Matter of Texas Eastern Transmission, LP, Second Amended Corrective Action Order, CPF No. 2-2019-\n1002H (June 1, 2020), at 5.\n\n\n\nfailures, leakage history, corrosion, substantial changes in\ncathodic protection requirements, and other unusual\noperating and maintenance conditions.\n(b) If a segment of pipeline is determined to be in\nunsatisfactory condition but no immediate hazard exists,\nthe operator shall initiate a program to recondition or phase\nout the segment involved, or, if the segment cannot be\nreconditioned or phased out, reduce the maximum\nallowable operating pressure in accordance with § 192.619\n(a) and (b).\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.613 by failing to initiate a program\nto recondition, phase out, or reduce the maximum allowable operating pressure for segments of\nits pipeline systems subject to an unsatisfactory condition. Specifically, the Notice alleged that\nTETLP did not initiate such a program to address the adverse effects of geohazards.5\nAt the hearing, OPS laid out the relevant operating history of the pipeline system as it involved\ngeohazards as follows:\n• On July 3, 1990, in Gaysport, Ohio, TETLP reported that landslide movement caused its\n24-inch natural gas pipeline to fail. TETLP indicated that the pipeline was located in a\nmajor landslide area that encompassed most of the pipeline right-of-way.\n• On May 6, 1998, in Beallsville, Ohio, TETLP reported that forces associated with soil\nslippage along the hillside caused 30-inch natural gas pipeline to rupture at a girth weld.\n• On December 8, 2015, in Trousdale County, Tennessee, TETLP reported that a slow\nnatural gas leak occurred on 30-inch Line 10 (MP 307.70) resulting from a crack in a\ngirth weld caused by a lack of penetration weld defect that was subject to secondary\nloading from geohazards.\n• On January 21, 2019, in Noble County, Ohio, TETLP’s Line 10 failed at a girth weld,\ncausing two injuries and destroying four buildings. PHMSA determined that ground\nmovement overstressed a girth weld and caused the failure.\n• On May 4, 2020, near Hillsboro, Kentucky, TETLP’s Line 10 failed again, at a girth\nweld, causing an explosion and fire. PHMSA, NTSB, and TETLP determined that\nground movement that overstressed a girth weld caused the failure.6\n5 Notice, at 3.\n6 Recommendation, at 3-4.\n\n\n\nOPS noted that it had published an Advisory Bulletin in the Federal Register on May 2, 2019,\nconcerning geohazards.\n7 The Advisory Bulletin discussed the need for comprehensive\nsurveillance and monitoring procedures to address geohazards including:\n• Identification of areas surrounding the pipeline that may be prone to large earth\nmovement, including but not limited to slope instability, subsidence, frost heave, soil\nsettlement, erosion, earthquakes, and other dynamic geologic conditions that may pose a\nsafety risk;\n• Utilization of geotechnical engineers during the design, construction, and ongoing\noperations of a pipeline system to ensure that sufficient information is available to avoid\nor minimize the impact of earth movement on the integrity of the pipeline system;\n• Development of design, construction, and monitoring plans and procedures for each\nidentified location, based on the site-specific hazards identified; and\n• Monitoring plans that may include identifying geodetic monitoring points (i.e., survey\nbench marks) to track potential ground movement; conducting stress/strain analysis\nutilizing in-line inspection tools equipped with Inertia Mapping Unit technology and\nHigh Resolution Deformation in-line inspection for pipe bending and denting from\nmovement; and reducing the operating pressure temporarily or shutting-in the affected\npipeline segment completely.\nIn its Response and at the hearing, TETLP contested the allegation in the Notice, contending that\nPHMSA’s allegation was “divorced from the law and the facts.”8 Respondent stated that\n“PHMSA misapplies the regulation, mischaracterizes the record, and ignores the existence of\nTETLP’s geohazard procedures and the extensive work being done to address geohazards while\nincorporating lessons learned in the field and in the industry.”9 Respondent argued that:\n49 C.F.R. § 192.613 is a performance-based regulation that\nrequires operators to “have a procedure for continuing\nsurveillance” for certain enumerated conditions including in\nrelevant part, “other unusual operating and maintenance\nconditions.” There is no reference to the requisite specificity or\ncomprehensiveness of the “procedure.” There is also no specific\nreference to geohazards or landslides, although TETLP agrees that\nthey are captured by “other unusual operating and maintenance\nconditions.”10\n7 Advisory Bulletin, Pipeline Safety: Potential for Damage to Pipeline Facilities Caused by Earth Movement and\nOther Geological Hazards, 84 Fed. Reg. at 18920-21 (May 2, 2019).\n8 Post-hearing submission, at 2.\n9 Id.\n10 Post-hearing submission, at 3.\n\n\n\nWith respect to the alleged inadequacy of its procedures, Respondent argued that the lack of\nspecifics prescribing the content of an operator’s procedures for continuing surveillance in\n§192.613 should mean that its failure to initiate a program to recondition, phase out, or reduce\nthe maximum allowable operating pressure for segments of its pipeline systems subject to an\nunsatisfactory condition was permissible under the regulations. In other words, Respondent\nargued that if its procedures met the applicable requirements and did not trigger the initiation of\nsuch a program, its failure to initiate and conduct the program could not constitute non-\ncompliance regardless of the series of operating failures that were occurring.\nTETLP argued that its pre-May 2020 procedures did meet the\nminimum standards in the regulation and provided fourteen of its\nStandard Operating Procedures (SOPs) that TETLP stated covered\ngeohazard management for its pipeline systems. Respondent\nexplained that it was also taking steps in its field work in the\nmonths prior to the Hillsboro incident to address geohazards.\nTETLP stated that it implemented revised procedures for\ngeohazards in May 2020 that had substantially more specificity\nand explained that it had been developing these revised procedures\n(which it called “interim” procedures) for geohazards prior to the\nHillsboro incident, but they were not provided to OPS during the\ninspection because OPS did not ask for them. 11\nFinally, Respondent argued that if the failure incidents involving geohazards constituted a basis\nfor the need to initiate a remedial program, it would mean that PHMSA was applying a strict\nliability standard in this case. Respondent stated “The existence of an incident does not infer or\nequate to the absence of a program or actions in the field to address certain conditions. Neither\nthe Pipeline Safety Act nor PHMSA regulations provide for strict liability because an incident\noccurred.”12\nHaving carefully considered Respondent’s arguments, I find them to be unpersuasive. With\nregard to the fourteen procedures that were in effect prior to the May 2020 revisions, they were\nnot focused on geohazards and addressed several operational topics, such as integrity\nmanagement, pipeline patrolling, direct assessment, in-line tool inspections, mining, right-of-way\nmaintenance, and encroachment. Some of these procedures either applied only to High\nConsequence Areas, only to long-mining areas, or were general patrolling procedures not\nspecifically covering continuing surveillance of areas prone to geohazards.\nNotably, the Director reviewed all fourteen of these procedures and determined that they did not\nprovide Respondent’s personnel with effective guidance for monitoring and addressing the threat\nof geohazards causing an unsatisfactory condition on its pipeline. With respect to what\nRespondent referred to as the “most pertinent” five procedures, the Director explained that:\n11 Post-hearing submission, at 8.\n12 Post-hearing submission, at 12.\n\n\n\nWhile SOP 1-6060, “Mining Subsidence and Soil Slippage” did\nmention geohazards, this procedure is only applicable to areas\naffected by longwall mining yet dozens of other geohazard sites on\nTETLP’s system are also not in longwall mining areas.\nTETLP also cited two sentences from SOP 1-5010, “Right-of-Way\nMaintenance,” only one of which refers to geohazards. This\nsingle sentence refers to noting evidence of “erosion, scour,\nsubsidence, or slides,” during right-of-way patrols. A visual\nobservation, however, cannot detect all types of hazardous land\nmovement, nor does this procedure require any follow-up or\nmitigative actions for land movement such as scour, subsidence, or\nlandslides.\nTETLP also cited one sentence from SOP 1-6040, “Aerial Pipeline\nPatrol,” in support of its argument that this was part of its\ngeohazard procedures. It required pilots to observe and document\n“soil slippage” and “landslide areas” once per year. However, in\npractice, this procedure failed to identify geohazards. For\nexample, TETLP personnel were aware of potential land\nmovement prior to both incidents through an aerial patrol report\nbut “did not feel [the slope] was enough of a concern to call\nCentral Region Operations integrity engineers.” TETLP did not\nhave technical criteria to determine when to report land\nmovements or geohazards because there were no procedures with\nsuch criteria. Nor did TETLP have specific training for patrolling\npilots to identify the preliminary signs of land movement or\nprecursors to a landslide. Absent these critical geohazard\nprocedures, TETLP personnel were forced to make arbitrary,\nuniformed decisions when reporting land movement and\ngeohazards.\nTETLP also cited SOP 1-6010, “Pipeline Patrol and Leakage\nSurvey Frequency Criteria,” because it references “scour, seismic\nactivity, soil slides, [and] subsidence,” once. One reference to\ngeohazards does render this procedure a geohazard procedure. As\nis the case with all fourteen SOPs, this was a general operating\nprocedure not intended to monitor and manage geohazards.\nTETLP also cites its Integrity Management Program - Threat\nResponse Guidance – Section 490 (TRDG 490), as evidence it had\nexisting geohazard procedures. However, this procedure only\napplies to High Consequence Areas (HCAs), which account for\nonly eight percent of TETLP’s pipeline facilities. Most of the\nidentified geohazards sites were not in HCAs, and the Fleming and\nNoble County incidents did not occur in HCAs. A procedure\n\n\n\naddressing geohazards only in HCAs does not meet the continuing\nsurveillance requirements of § 192.613.13\nThe other nine SOPs are general operating procedures and do not mention geohazards. TETLP\nfailed to identify any portion of these procedures that are relevant to managing and monitoring\ngeohazards.\nIn its response and at the hearing, Respondent discussed at length its efforts to work with leading\ntechnical experts and Enbridge personnel, leading a joint industry project, and its intention to\nfurther develop revised procedures in the months prior to the adoption of the revised procedures\nin May of 2020.14 Respondent also discussed at length various field activities it had voluntarily\nundertaken and how it was incorporating lessons learned.15 While Respondent certainly deserves\ncredit for these efforts, this information does not overcome the absence of effective procedures\nactually being in place for geohazards along the subject pipelines for purposes of determining\ncompliance.\nThis conclusion is also evidenced by the NTSB report issued on May 31, 2022 which states:\nIn 2018, Enbridge identified the rupture location as a potential\ngeohazard. They took action to analyze the active landslide and\nstarted taking steps to mitigate the hazard before the rupture.\nHowever, Enbridge’s pre-rupture analysis estimated a girth weld\ntensile strain demand that was at least three times lower than post-\nrupture analysis later indicated. The post-rupture analysis\ndemonstrated that in April 2018 or earlier Enbridge could have\nforeseen the likelihood that the tensile strain demand would exceed\nthe strain capacity due to documented land movement at the site.\n16\nMoreover, even if adequate procedures has been in effect, as of the time of the May 2020 failure,\nthe actual failure incident history of the pipelines, including the analysis of prior failures, should\nhave played a central role in Respondent’s decisions concerning the need to initiate a program to\nrecondition, phase out, or reduce the maximum allowable operating pressure for segments of its\npipeline systems subject to an unsatisfactory condition as required by the regulations. Three\nmajor pipeline ruptures involving geohazards in a relatively short time span cannot be considered\nto be a satisfactory condition for a pipeline that transports hazardous products. Contrary to\nRespondent’s argument, this is not a matter of strict liability. The mere fact that the pipeline had\none or more failures and released natural gas does not in-and-of itself constitute a violation.\nHowever, when a regulation such as §192.613 that requires certain actions in the presence of an\nunsatisfactory condition (such as a series of failures that involve similar causes) is allegedly\n13 Recommendation, at 7-8.\n14 Post-hearing submission, at 7-9.\n15 Post-hearing submission, at 10.\n16 NTSB, Accident Report PIR–22/01, Enbridge Inc. Natural Gas Pipeline Rupture, Hillsboro, Kentucky, May 4,\n2020 (May 31, 2022), https://www.ntsb.gov/investigations/AccidentReports/Reports/PIR2201.pdf (NTSB Report).\n\n\n\nviolated, the fact that the failures occurred is of course a relevant fact. Therefore, nothing in this\nOrder should be construed as the application of a strict liability standard.\nWith regard to TETLP’s argument that it was developing “interim” procedures with substantially\nmore specificity on geohazards, it must be recognized that only one set of procedures is in effect\nat any one time and the relevant procedures for purposes of determining compliance were the\nones in place prior to the May 2020 revisions. For a revised procedure to be operative, it must be\nfinalized by the appropriate company official, have an effective date, and formally replace the\nold procedure in the operating and maintenance manual of procedures so that all personnel know\nto follow it. That did not occur here. Thus, even if Respondent had provided the “interim”\nprocedures that were under development prior to the Hillsboro incident, they would not have\nnegated the allegation.\nFinally, it should be noted that if PHMSA were to adopt Respondent’s position that the\napplication of its procedures such as they existed did not call for the initiation of a remedial\nprogram under §192.613 and thus were effectively exculpatory, it would have the perverse effect\nof incentivizing operators to have inordinately sparse procedures that lacked appropriate criteria\nand steps for taking appropriate action to address unsatisfactory conditions. Vague procedures\nthat lack the specificity needed to accomplish the purpose of the underlying regulations can\nimpede an operator from taking needed action even when repeated failure incidents manifestly\nindicate such a need. This would be entirely at odds with the purpose and intent of the Pipeline\nSafety Act and the Part 192 regulations issued thereunder.\nRespondent did not demonstrate that it had initiated a program to recondition, phase out, or\nreduce the maximum allowable operating pressure for segments of its pipeline systems subject to\nan unsatisfactory condition prior to the issuance of the Notice as required by the plain language\nof §192.613. Accordingly, after considering all of the evidence and the legal issues presented, I\nfind that a preponderance of the evidence shows that Respondent violated 49 C.F.R. § 192.613\nby failing to initiate a program to recondition, phase out, or reduce the maximum allowable\noperating pressure for segments of its pipeline systems subject to an unsatisfactory condition,\nspecifically the adverse effects of geohazards.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 192.705(a), which states:\n§ 192.705 Transmission lines: Patrolling.\n(a) Each operator shall have a patrol program to\nobserve surface conditions on and adjacent to the\ntransmission line right-of-way for indications of leaks,\nconstruction activity, and other factors affecting safety and\noperation.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.705(a) by failing to patrol in order\nto observe the surface conditions on and adjacent to its transmission line rights-of-way for\nindications of leaks, construction activity, and other factors affecting safety and operation.\nSpecifically, the Notice alleged that TETLP failed to maintain its rights-of-way to allow for the\nobservation of surface conditions on and adjacent to the transmission line rights-of-way when\n\n\n\nviewed via aerial patrols.\nRespondent did not contest this allegation of violation. Accordingly, based upon a review of all\nof the evidence, I find that Respondent violated 49 C.F.R. § 192.705(a) by failing to patrol in\norder to observe the surface conditions on and adjacent to its transmission line rights-of-way for\nindications of leaks, construction activity, and other factors affecting safety and operation.\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$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any\nrelated series of violations.17\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\nof Respondent’s prior offenses; any effect that the penalty may have on its ability to continue\ndoing business; the good faith of Respondent in attempting to comply with the pipeline safety\nregulations; and self-disclosure or actions to correct a violation prior to discovery by PHMSA.\nIn addition, I may consider the economic benefit gained from the violation without any reduction\nbecause of subsequent damages, and such other matters as justice may require. The Notice\nproposed a total civil penalty of $640,300 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $552,900 for Respondent’s violation of 49\nC.F.R. § 192.613, for failing to initiate a program to recondition, phase out, or reduce the\nmaximum allowable operating pressure for segments of its pipeline systems subject to an\nunsatisfactory condition.\nRespondent argued that the proposed civil penalty amount in the Notice should be reduced or\neliminated. With respect to the nature, circumstances, gravity, and culpability factors, one of\nRespondent’s witnesses maintained that there was no causal link between the alleged violation\nand the Hillsboro incident in Fleming County, Kentucky.18\nAs discussed during the hearing, however, TETLP determined there was an increase in strain\ndemand at the Fleming County site, a known landslide location in September 2019 based on June\n2019 inertial measurement unit (IMU) strain data, yet TETLP concluded that urgent action was\nnot required and opted to wait for warmer weather to address the issue.19 While TETLP was\n17 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223 for adjusted amounts.\n18 Post-hearing submission, at 14.\n19 Transcript, at 62-63.\n\n\n\nwaiting to take action, it experienced the Hillsboro incident due to geohazards on May 4, 2020,\nat the very location previously identified as unsatisfactory in September 2019. As OPS pointed\nout, this second pipeline failure that occurred is expressly the risk § 192.613 is designed to\nprevent.\nAs to good faith, Respondent argued that the Company was undertaking good faith efforts to\ncomply with the minimal performance-based regulation, in the absence of express regulatory\nrequirements, prior enforcement, and industry standards on geohazard management. Notably,\nthe NTSB identified the probable cause of the Hillsboro incident as TETLP’s “analysis of an\nactive landslide that did not fully address uncertainties associated with pipeline defects, landslide\nmovement, and corresponding pipeline response.”20 Such a finding is consistent with the\nculpability level reflected in the proposed penalty amount and the circumstances do not justify a\ngood faith credit. It should also be noted that none of the penalty consideration factors reflected\nin the proposed civil penalty amount in the Notice reflected any heightened level of\negregiousness or deliberate decision not to comply. Regarding “other matters as justice may\nrequire,” TETLP cited the work it did with experts to address its programs and procedures, to\nimplement those changes in the field, and leading the joint industry program to establish an\nindustry standard to management geohazards. These efforts, however, are not circumstances\nbeyond the operator’s control that prevented compliance with this important regulation and do\nnot implicate this factor. I find that the record supports the civil penalty amount proposed in the\nNotice. Respondent presented no information that would warrant a reduction in the civil penalty\nproposed in the Notice for this item. Based upon the foregoing, I assess Respondent a civil\npenalty of $552,900 for violation of 49 C.F.R. § 192.613.\nItem 2: The Notice proposed a civil penalty of $87,400 for Respondent’s violation of 49 C.F.R.\n§ 192.705(a), for failing to patrol in order to observe the surface conditions on and adjacent to its\ntransmission line rights-of-way for indications of leaks, construction activity, and other factors\naffecting safety and operation. With regard to the nature, circumstances, and gravity of this\nviolation, observing surface conditions to address any potential right-of-way encroachments is a\nkey part of safely operating a pipeline. With respect to the culpability and good faith factors, the\nNotice did not reflect any heightened level of egregiousness or deliberate decision not to comply\nand I find that the record supports the civil penalty amount proposed in the Notice. Respondent\npresented no information that would warrant a reduction in the civil penalty proposed in the\nNotice for this item. Accordingly, having reviewed the record and considered the assessment\ncriteria, I assess Respondent a civil penalty of $87,400 for violation of 49 C.F.R. § 192.705.\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 $640,300.\nPayment of the civil penalty must be made within 20 days after receipt of this Final Order.\nFederal regulations (49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer\nthrough the Federal Reserve Communications System (Fedwire), to the account of the U.S.\nTreasury. Detailed instructions are contained in the enclosure. Questions concerning wire\ntransfers should be directed to: Financial Operations Division (AMK-325), Federal Aviation\n20 NTSB Report, at 6.\n\n\n\nAdministration, Mike Monroney Aeronautical Center, 6500 S MacArthur Blvd, Oklahoma City,\nOklahoma 79169. The Financial Operations 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\nis not made within 110 days of service. Furthermore, failure to pay the civil penalty may result\nin referral of the matter to the Attorney General for appropriate action in a district court of the\nUnited States.\nCOMPLIANCE ORDER\nThe Notice proposed a compliance order with respect to Item 2 in the Notice for violation of 49\nC.F.R. § 192.705(a). Under 49 U.S.C. § 60118(a), each person who engages in the\ntransportation of gas or who owns or operates a pipeline facility is required to comply with the\napplicable safety standards established under chapter 601.\nWith regard to the violation of §192.705(a) (Item 2), Respondent argued the compliance terms\nshould be withdrawn/modified. [Summarize and address Respondent’s argument.]\nFor the above reasons, the Compliance Order is not withdrawn/modified as set forth below.\nPursuant to the authority of 49 U.S.C. § 60118(b) and 49 C.F.R. § 190.217, Respondent is\nordered to take the following actions to ensure compliance with the pipeline safety regulations\napplicable to its operations:\n1. With respect to the violation of § 192.705(a) (Item 2) pertaining to TETLP’s failure to\npatrol in order to observe the surface conditions on and adjacent to its transmission line\nrights-of-way for indications of leaks, construction activities, and other factors affecting\nsafety and operation, TETLP must:\n(a) Review right-of-way maintenance programs, to include personnel training\nacross the TETLP system, to ensure surface conditions are maintained in a manner\nappropriate for observations during patrols. The review must examine instances that\nmay have obstructed personnel in past maintenance efforts; and\n(b) Develop and implement a program to identify and address locations of the\nTETLP system that impede personnel from observing the surface conditions on and\nadjacent to the right-of-way for indications of ground movement, indications of leaks,\nor other factors that may affect the safe operation of the pipeline. The program must\ndefine timeframes to complete all planned implementation.\n2. TETLP must submit the review and written program required by this Compliance\nOrder to Mary L. McDaniel, Director, Southwest Region, Pipeline and Hazardous Materials\nSafety Administration within 45 days of receipt of this Order.\n\n\n\nThe Director may grant an extension of time to comply with any of the required items upon a\nwritten request timely submitted by the Respondent and demonstrating good cause for an\nextension.\nPHMSA requests that Respondent maintain documentation of the safety improvement costs\nassociated with fulfilling this Compliance Order and submit the total to the Director. It is\nrequested that these costs be reported in two categories: (1) total cost associated with\npreparation/revision of plans, procedures, studies and analyses; and (2) total cost associated with\nreplacements, additions and other changes to pipeline infrastructure.\nFailure to comply with this Order may result in the administrative assessment of civil penalties\nnot to exceed $200,000, as adjusted for inflation (see 49 C.F.R. § 190.223), for each violation for\neach day the violation continues or in referral to the Attorney General for appropriate relief in a\ndistrict court of the United States.\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\n20 days after receipt of the Final Order by Respondent. Any petition submitted must contain a\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\norder, including corrective action, remain in effect unless the Associate Administrator, upon\nrequest, grants a stay.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nFebruary 3, 2023\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n42021034NOPV_Op Resp to Notice and Req for Hearing and Stmnt of Issues (Part 2)_02212022_(20-183709).pdf\n\nBefore the\nU.S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\nOffice of Pipeline Safety\nWashington, D.C.\nIn the Matter of )\n) CPF No. 4-2021-034-NOPV\nTexas Eastern Transmission, LP ) Notice of Probable V","truncated":true,"body_characters":60751}