[author: Robert J. Joyce]

On May 19, 2012, the Department of Justice, on behalf of the EPA, lodged a consent decree in U.S. District Court in Nebraska wherein it proposes to settle a number of alleged Clean Water Act violations in connection with three spills of natural gasoline from a pipeline owned by Mid-America Pipeline, LLC (MAPCO) and operated by Enterprise Pipeline.

The spills occurred in Kansas, Nebraska and Iowa between 2007 and 2011 as the result of third-party and weather-related damage to the 2769-mile-long West Red Pipeline which transports natural gasoline between Conway, Kansas, and Pine Bend, Minnesota. The three spills released 1760 barrels, 1669 barrels and 1760 barrels of natural gasoline, respectively. According to the DOJ press release, “[t]his settlement requires the defendants to honor a schedule of pipeline inspections on the ground and from the air, and reach out to local agencies, contractors and excavators to make sure they are more fully aware of pipeline locations and depths.”

Among other things, the decree requires the companies to do the following:

1. Appoint a damage prevention coordinator at each company.
2. Conduct annual aerial inspections using company personnel.
3. Require contractors working on the pipeline for the companies to use state One-Call systems.
4. Inform state authorities whenever third parties are discovered to have excavated near the pipeline without informing the One-Call system.
5. Promptly report any release that reaches any body of water (whether or not it is navigable) and use a specified calculation methodology for determining the volume of product released.
6. Conduct annual ground inspections of the pipeline and identify “special threats” such as deep tilling, excavating and grading near the line, as well as inadequate markers and exposed pipe.
7. Use reasonable efforts to identify all excavators and land developers operating within 20 miles of the pipeline and provide them with written notifications of the pipeline location in their area and information on the One-Call System.
8. Implement a centralized computer system to track external force threats to the pipeline and issue quarterly reports to “appropriate personnel of Defendants, including the SCADA controllers[.]”
9. Enter agreements with landowners to cease regularly occurring excavation or deep tilling near the pipeline or lower or provide additional cover for the pipeline in that area.
10. Spend at least $200,000 over four years to mitigate external threats to the pipeline using a number of specified mitigation approaches such as installing remote shutoff valves, providing additional cover, installing physical barriers, etc.,
11. Submit annual reports signed by a responsible corporate office.

This action is notable insofar as the EPA, not PHMSA, is the driving force behind the decree and is seeking to impose its own set of integrity management requirements on the pipeline companies irrespective of PHMSA regulatory requirements. This represents yet another step in the EPA’s ongoing efforts to expand its authority over oil and gas operations in the United States. The DOJ will be accepting comments on the consent decree for 30 days after publication in the Federal Register and “will advise the Court as to whether the consent decree may be entered or whether further action may be required.”

• Read the consent decree in the Federal Register