{"operation":"document","citation":"CPF 42022047NOPV","title":"ENABLE MISSISSIPPI RIVER TRANSMISSION, LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2022-08-03","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.619(a), 192.933(d)(1)(i).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-42022047nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-42022047nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-42022047nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/42022047NOPV","body":"Notice of Probable Violation involving ENABLE MISSISSIPPI RIVER TRANSMISSION, LLC. PHMSA's enforcement data identifies the cited regulations as 192.619(a),  192.933(d)(1)(i). The case was opened on 2022-08-03 and is reported as closed as of 2022-11-10. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n42022047NOPV_Decision on Petition for Reconsideration_04212023_(21-199242).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022047NOPV/42022047NOPV_Decision%20on%20Petition%20for%20Reconsideration_04212023_(21-199242).pdf\n\n42022047NOPV_Decision on Petition for Reconsideration_04212023_(21-199242)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022047NOPV/42022047NOPV_Decision%20on%20Petition%20for%20Reconsideration_04212023_(21-199242)_text.pdf\n\n42022047NOPV_Final Order_11102022_(21-199242).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022047NOPV/42022047NOPV_Final%20Order_11102022_(21-199242).pdf\n\n42022047NOPV_Final Order_11102022_(21-199242)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022047NOPV/42022047NOPV_Final%20Order_11102022_(21-199242)_text.pdf\n\n42022047NOPV_Operator Petition for Reconsideration_12082022_(21-199242).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022047NOPV/42022047NOPV_Operator%20Petition%20for%20Reconsideration_12082022_(21-199242).pdf\n\n42022047NOPV_Operator Response to Notice_08312022_(21-199242).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022047NOPV/42022047NOPV_Operator%20Response%20to%20Notice_08312022_(21-199242).pdf\n\n42022047NOPV_PCO_08032022_(21-199242).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022047NOPV/42022047NOPV_PCO_08032022_(21-199242).pdf\n\n42022047NOPV_PCO_08032022_(21-199242)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022047NOPV/42022047NOPV_PCO_08032022_(21-199242)_text.pdf\n\n42022047NOPV_Final Order_11102022_(21-199242)_text.pdf\n\nNovember 10, 2022\nVIA ELECTRONIC MAIL TO: gregory.mcilwain@energytransfer.com\nMr. Gregory McIlwain\nExecutive Vice President, Operations\nEnergy Transfer, LP\n1300 Main Street\nHouston, Texas 77002\nRe: CPF No. 4-2022-047-NOPV\nDear Mr. McIlwain:\nEnclosed please find the Final Order issued in the above-referenced case. It makes finding of\nviolation and finds that the proposed actions to comply with the pipeline safety regulations have\nbeen completed. This case is now closed. Service of the Final Order by e-mail is effective upon\nthe date 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\nEnclosures (Final Order and NOPV)\ncc: Mr. Bryan Lethcoe, Director, Southwest Region, Office of Pipeline Safety, PHMSA\nMs. Susie Sjulin, Director, Regulatory Compliance, Energy Transfer, LP,\nsusie.sjulin@energytransfer.com\nMr. Jimmy Cross, Senior Manager, DOT Compliance, Energy Transfer, LP,\njimmy.cross@energytransfer.com\nCONFIRMATION OF RECEIPT REQUESTED\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n__________________________________________\nIn the Matter of )\nEnable Mississippi River Transmission, LLC, ) CPF No. 4-2022-047-NOPV\na subsidiary of Energy Transfer, LP, )\n)\n)\n)\nRespondent. )\n__________________________________________)\nFINAL ORDER\nOn August 3, 2022, pursuant to 49 C.F.R. § 190.207, the Director, Southwest Region, Office of\nPipeline Safety (OPS), issued a Notice of Probable Violation (Notice) to Enable Mississippi\nRiver Transmission, LLC (Respondent). The Notice proposed finding that Respondent had\nviolated the pipeline safety regulations in 49 C.F.R. part 192. The Notice also proposed certain\nmeasures to correct the violations. Respondent did not contest the allegations of violation or\ncorrective measures, but did submit additional information demonstrating compliance with the\nproposed corrective measures.\nBased upon a review of all of the evidence, pursuant to § 190.213, I find Respondent violated the\npipeline safety regulations listed below, as more fully described in the enclosed Notice, which is\nincorporated by reference:\n49 C.F.R. § 192.619(a) (Item 1) ─ Respondent failed to establish a maximum\nallowable operating pressure as required.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\nCompliance Actions\nThe Director has indicated that Respondent completed the actions proposed in the Notice to\ncorrect the violations. Therefore, it is not necessary to include the proposed compliance terms in\nthis Final Order.\nWarning Item\nWith respect to Item 2, the Notice alleged a probable violation of 49 C.F.R. § 192.933(d)(1)(i)\nbut did not propose a civil penalty or compliance order for this item. Therefore, this is\n\n\n\nconsidered to be a warning item. If OPS finds a violation of this provision in a subsequent\ninspection, Respondent may be subject to future enforcement action.\nThe terms and conditions of this order are effective upon service in accordance with 49 C.F.R.\n§ 190.5.\nNovember 10, 2022\n___________________________________ _________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n42022047NOPV_Decision on Petition for Reconsideration_04212023_(21-199242)_text.pdf\n\nApril 21, 2023\nVIA ELECTRONIC MAIL TO: gregory.mcilwain@energytransfer.com\nMr. Gregory McIlwain\nExecutive Vice President, Operations\nEnergy Transfer, LP\n1300 Main Street\nHouston, Texas 77002\nRe: CPF No. 4-2022-047-NOPV\nDear Mr. McIlwain:\nEnclosed is the Decision on the Petition for Reconsideration filed by Enable Mississippi River\nTransmission, LLC in the above-referenced case. For the reasons explained therein, the Decision\ngrants your Petition and withdraws Item 1 of the Final Order. This Decision constitutes the final\nadministrative action in this proceeding. Service of this Decision is made pursuant to 49 C.F.R.\n§ 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Bryan Lethcoe, Director, Southwest Region, Office of Pipeline Safety, PHMSA\nMs. Susie Sjulin, Director, Regulatory Compliance, Energy Transfer, LP,\nsusie.sjulin@energytransfer.com\nMr. Jimmy Cross, Senior Manager, Regulatory Compliance, Energy Transfer, LP,\njimmy.cross@energytransfer.com\nMs. Roina Baker, Counsel for Respondent, Murchison Law Firm, PLLC,\nroina.baker@pipelinelegal.com\nCONFIRMATION OF RECEIPT REQUESTED\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n__________________________________________\nIn the Matter of )\nEnable Mississippi River Transmission, LLC, ) CPF No. 4-2022-047-NOPV\na subsidiary of Energy Transfer, LP, )\n)\n)\n)\nPetitioner. )\n__________________________________________)\nDECISION ON PETITION FOR RECONSIDERATION\nI. Background\nFrom April 26, 2021, to October 21, 2021, representatives from the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA), pursuant to Chapter 601 of 49 United States Code\n(U.S.C.), inspected Enable Mississippi River Transmission, LLC’s (EMRT or Petitioner) natural\ngas transmission pipeline systems and associated records in Louisiana, Arkansas, Missouri, and\nIllinois. As a result of that inspection, the Director, Southwest Region, Office of Pipeline Safety\n(OPS), issued a Notice of Probable Violation (Notice) to EMRT by letter dated August 3, 2022.\nIn accordance with 49 C.F.R. § 190.207, the Notice proposed a finding that EMRT had violated\nthe pipeline safety regulations in 49 C.F.R. § 192.619(a) by failing to establish a maximum\nallowable operating pressure (MAOP) of the A-180 pipeline. The Notice also proposed ordering\nEMRT to take certain measures to correct the alleged violation by establishing an MAOP.\n1 The\nNotice did not propose a civil penalty. In a letter dated August 31, 2022, EMRT submitted a\nresponse (Response) that included additional information demonstrating compliance with the\nproposed corrective measures.\n2 EMRT did not request a hearing and therefore has waived its\nright to one.\nOn November 10, 2022, pursuant to 49 U.S.C. §§ 60118 and 60122 and 49 C.F.R. § 190.213, I\nissued a Final Order, and finding that Petitioner had not contested the alleged violation (Final\nOrder). Based on the documents provided in the Response, I found that EMRT had satisfied the\nproposed compliance order and closed the case.\n1 See Notice (Item 1). The Notice also proposed a warning item (Item 2). Item 2 was not addressed in the Response\nor Petition.\n2 See Response.\n\n\n\nCPF No. 4-2022-047-NOPV\nPage 2\nPetitioner filed a Petition for Reconsideration (Petition) dated December 8, 2022.\n3 Pursuant to\n49 C.F.R. § 190.243, an operator may petition for reconsideration of a final order issued under\n§ 190.213. PHMSA may consider additional facts or arguments if the petitioner submits a valid\nreason explaining why such information was not presented prior to issuance of the final order.\n4\nPHMSA may grant or deny, in whole or in part, a petition for reconsideration without further\nproceedings, but may request additional information or comment if deemed appropriate.\nIn its Petition, EMRT presents multiple grounds for reconsideration. First, Petitioner argues that\nthe Final Order mischaracterizes the Response as uncontested when it had in fact contested the\nfinding of violation for Item 1. Second, Petitioner contends PHMSA did not meet its burden of\nproof that EMRT had violated 49 CFR § 192.619 and argues, therefore, the item should have\nbeen withdrawn. Lastly, Petitioner argues that the evidence satisfying the proposed compliance\norder attached to the Response required the violation to be withdrawn, and failure to do so\nresulted in arbitrary and capricious agency action. For the reasons described below, this\nDecision grants the Petition and withdraws the finding of violation in the Final Order.\nII. Discussion\ni. Response to Notice\nPetitioner contends that the Final Order mischaracterizes the Response, asserting that the\nsubmission of the documents establishing Line A-180’s MAOP constituted an objection to the\nallegation of violation in the Notice. Petitioner asserts that an operator is not required to recite\nprecise words in a Response to contest a finding of violation, rather, Petitioner argues the\nresponse only needs to demonstrate disagreement with the Notice.\n5 Petitioner argues that, in this\ninstance, EMRT contested the Notice by its submission of documentation showing compliance\nwith § 192.619, and the Final Order should have treated the Response as such.\nPursuant to 49 CFR § 190.208(b), an operator may respond to a notice of proposed violation that\ncontains a compliance order in one of four ways: (1) the operator may agree with the finding of\nviolation and the compliance order, (2) the operator and PHMSA can execute a consent order,\n(3) the operator can contest one or more of the alleged probable violations and/or some or all of\nthe compliance terms, but not request a hearing, or (4) the operator may request a hearing.6\nWhile I agree § 190.208(b) does not require operators to use specific words in response to a\nnotice of probable violation to effectively contest the notice, there does need to be a clear\ndemonstration of the operator’s intent. Petitioner argues that the act of providing documentation\nindicating compliance with the pipeline safety regulations is, in and of itself, an objection to a\nnotice of proposed violation. I disagree. Operators may, and often do, submit Responses that do\n3 The Associate Administrator granted Petitioner’s request for an extension of time to file a Petition for\nReconsideration on November 21, 2022.\n4 See 49 CFR § 190.243(a-d).\n5 See Petition, at 6\n6 See 49 CFR § 190.208(b).\n\n\n\nCPF No. 4-2022-047-NOPV\nPage 3\nnot contest a finding of violation and that include documentation to demonstrate the operator has\nsatisfied all or part of a proposed compliance order.7 In such instances, the Final Order may find\nviolations against an operator for failing to meet the requirements of the regulations, and also\nfind the proposed compliance order has been satisfied based on the actions the operator has taken\nsince the notice was issued.\n8 Thus, a submission of documents showing an operator’s\ncompliance after the issuance of a notice of proposed violation is not an automatic indicator that\nan operator is contesting a finding of violation.\nIn this case, the wording used in Petitioner’s Response was reasonably construed by PHMSA as\nPetitioner electing not to contest the Notice. Petitioner stated, “at the time of the field inspection\nperformed for Line A-180, EMRT was not able to produce the complete MAOP validation for\nthis pipeline,” admitting EMRT did not have records available to show compliance with the\nregulations at the time of the inspection.\n9 Petitioner also specifically stated, “with the actions\ntaken and supporting documentation provided [with the Response], EMRT believes it has\nfulfilled the requirements of this Compliance Order (emphasis added).”10 PHMSA reasonably\nconstrued this statement by EMRT to mean that it took action to complete of the Proposed\nCompliance Order following issuance of the Notice, rather than a statement that EMRT\ncontested the Notice or Proposed Compliance Order.\nIn the interest of fairness, however, PHMSA recognizes that it is possible Petitioner used\nimprecise language while intending to contest the Notice. To afford the Petitioner the benefit of\nthe doubt, PHMSA will exercise its discretion in this case and reconsider Petitioner’s Response\nand the alleged violation.\nii. Finding of Violation\nThe Notice alleged Petitioner failed to establish the MAOP for the A-180 pipeline in accordance\nwith § 192.619(a) based on EMRT’s failure to provide records demonstrating how the MAOP\nwas calculated during PHMSA’s inspection.\n11 Specifically, the Notice alleged that while EMRT\ncould provide some documentation regarding the MAOP for certain segments of the pipeline, it\n“could not produce pressure test records, logs, or the highest actual operating pressure for the\nfive-year period preceding July 1, 1970, to establish its MAOP in accordance with\n7 See In the Matter of Columbia Gas Transmission, LLC, a subsidiary of Columbia Pipeline Group, Final Order 1-\n2015-1008, 2016 WL 1104434 (February 6, 2016); See also In the Matter of ONEOK Partners, LP, Final Order 4-\n2008-1003, 2009 WL 7820526 (December 2, 2009); In the Matter of Pacific Operators Offshore, Final Order 5-\n2006-5036, 2009 WL 7812785 (November 5, 2009); In the Matter of Hunt Crude Oil Supply Company, Final Order\n2-2003-5007, 2004 WL 6241268 (August 24, 2004); In the Matter of Atmos Energy, Formerly Known as Greely\nGas Company, Final Order 35113, 2003 WL 2529874 (December 11, 2003); In the Matter of Northern Natural Gas\nCo, Final Order 36111, 2003 WL 25429876 (October 30, 2003); In the Matter of ChevronTexaco Pipeline\nCompany, Final Order 5-2002-0006, 2003 WL 25429840 (October 6, 2003).\n8 Id.\n9 Response, at 4.\n10 Id.\n11 Notice, at 3.\n\n\n\nCPF No. 4-2022-047-NOPV\nPage 4\n§ 192.619(a).12,13 In the Response, Petitioner attached a complete MAOP review of the pipeline,\ndated August 24, 2022, as well as a pressure log listing the highest actual operating pressure for\nthe line from 1965 to 1970 that was not provided during the inspection.\n14 In light of this\nadditional information, I reconsider the finding of violation in the Final Order de novo.\nSection 192.619(a) states, in part, “no person may operate a segment of steel or plastic pipeline\nat a pressure that exceeds a [MAOP] determined under paragraph (c), (d) or (e) of this section.”15\nPer § 192.619(c)(1), an operator may operate a segment of pipeline at its highest actual operating\npressure to which the segment subjected to during the 5 years preceding 1970.\n16 By providing\nthe pressure log from 1965 to 1970 that included the actual highest operating pressure the A-180\npipeline was subjected to during that time, EMRT has demonstrated that it is in compliance\n§ 192.619(c)(1), thus fulfilling the requirements of § 192.619(a).\nIt is important to note that an operator, “is responsible for compliance with the pipeline safety\nregulations, which includes sound record keeping. Without this history, an operator will have\ndifficulty determining areas where there are problems that need to be addressed.”17 While\nPetitioner could not produce the requisite records at the time of inspection, the information\nprovided with the Response demonstrates that Petitioner was in possession of the required\nhistorical documentation and was in compliance with the pipeline safety regulations at that time.\nAccordingly, I grant EMRT’s Petition and withdraw Item 1.\niii. Standard of Review, Burden of Proof, and Miscellaneous Claims\nPetitioner also argues that PHMSA did not meet its burden of proof that EMRT violated §\n192.619(a), engaged in arbitrary and capricious action by not withdrawing Item 1, and denied\nEMRT its due process right to be heard. As this Decision reconsiders Petitioner’s Response and\nwithdraws the finding of violation in the Final Order, it is not necessary to address Petitioner’s\nremaining arguments.\nIII. Conclusion\nFor the reasons stated above, the Petition for Reconsideration is granted, and Item 1 in the Final\nOrder is withdrawn. Item 2 remains a warning item.\n12 Id.\n13 EMRT has been operating the A-180 pipeline since 1964.\n14 See Response.\n15 49 CFR § 192.619(a).\n16 49 CFR § 192.619(c)(1).\n17 In the Matter of Ozark Gas Transmission, Final Order 2-2002-1004, 2003 WL 26473449 at *2 (April 29, 2003).\n\n\n\nCPF No. 4-2022-047-NOPV\nPage 5\nThis Decision on Reconsideration is the final administrative action in this proceeding.\nApril 21, 2023\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":18066}