United States District Court, D. Montana
PLAINTIFF UNITED STATES OF AMERICA, NATHANIEL DOUGLAS, JAMES
D. FREEMAN, SUZANNE J. BOHAN, SUSAN PARKAR BODINE, ROSEMARIE
KELLEY, MARK POLLINS, KELLY BRANTNER,
DEFENDANT EXXONMOBIL PIPELINE COMPANY, GERALD S. FRAY
WHEREAS, Plaintiff, United States of America, on behalf of
the United States Environmental Protection Agency
("EPA"), filed a complaint in this action,
concurrently with this Consent Decree, alleging that
Defendant ExxonMobil Pipeline Company ("ExxonMobil"
or "Defendant") is liable for violations of
Sections 301(a) and 311(b)(3) of the Clean Water Act
("CWA" or "the Act"), 33 U.S.C.
§§ 1311(a) and 1321(b)(3), as a result of the July
1, 2011 discharge of more than 1, 500 barrels of crude oil
from its Silvertip Pipeline into and upon the Yellowstone
River and adjoining shorelines in a quantity as may be
harmful (the "Discharge") near Laurel, Montana.
WHEREAS, Defendant undertook cleanup actions shortly
thereafter and in conjunction with a July 6, 2011
Administrative Order issued by the EPA and under a February
28, 2012 Administrative Order on Consent between the Montana
Department of Environmental Quality and Defendant.
WHEREAS, on July 5, 2011, the Pipeline and Hazardous
Materials Safety Administration ("PHMSA") issued
Defendant a Corrective Action Order directing ExxonMobil,
among other things, to construct a new horizontally
directionally drilled crossing for the Silvertip Pipeline
under the Yellowstone River in Laurel, Montana, to conduct
risk assessments of all other major Silvertip Pipeline water
crossings, to submit a contingency plan to operate and
monitor the Silvertip Pipeline during flood conditions, and
to revise its spill response plan. On August 8, 2012, PHMSA
determined that the required actions had been completed.
WHEREAS, on January 23, 2015, PHMSA issued a Final Order to
ExxonMobil that assessed a civil penalty of $1, 045, 000 for
alleged violations of PHMSA regulations, including failing to
consider the risk of flooding and river bottom scour and
other risk factors relevant to the Yellowstone River crossing
in its risk analysis for the Silvertip Pipeline (49 C.F.R.
§ l95.452(i)(2)), failing to effectively train emergency
response personnel (49 C.F.R. § 195.403(a)(3)), failing
to establish adequate written procedures to respond to
seasonal flooding of the Yellowstone River (49 C.F.R. §
195.402(e)(2)), and failing to establish adequate written
procedures to minimize the volume of liquid released in the
event of a pipeline failure (49 C.F.R. 195.402(e)(4)); and on
July 9, 2015 PHMSA issued a closeout letter with a
determination that ExxonMobil had complied with the Final
WHEREAS, in addition to the actions required by this Consent
Decree and the PHMSA orders, ExxonMobil has advised the
United States that it has undertaken the following actions:
1. Following the Discharge, ExxonMobil developed a Water
Crossing Program described more fully in the document
referenced in Paragraph 13, below, to identify and manage the
risk of an oil spill from its pipelines where pipelines cross
water, including risks from physical forces of water during
high flow storms which could cause, either abruptly or over
time, an unacceptable unsupported span length or exceedance
of pipeline physical limitations. ExxonMobil electronically
maintains and tracks information related to the Water
2. ExxonMobil has implemented the Water Crossing Program by
prioritizing the Silvertip Pipeline water crossings,
characterizing each of the Silvertip Pipeline water
crossings, horizontally drilling below nine Silvertip
Pipeline water crossings (including four water crossings
identified as high-priority), and taking other mitigation
action at at least four other water crossings. The mitigation
actions include the following:
Water Crossing Program ID
Sand Creek S. Span
Sand Creek - Middle S. Span
Sand Creek - Middle N. Span
Sand Creek N. Span
Pipe Support improvements
Wash 4.5 mi. N. of Silver Tip Sta.
Pipe Support improvements
Span 0.28 miles N of 24th Street W
Armoring and Pipe Support improvements
3. ExxonMobil modified its Operations Control Center (OCC)
Operating Instructions with respect to the Silvertip Pipeline
in situations where a leak is suspected, but the location is
not known. In addition, a SCADA display was created to show
the elevation of each mainline block valve on the pipeline
system which depicts the hydraulic profile of the system
within the OCC. ExxonMobil also added high water protocols to
the OCC Operating Instructions for the Silvertip Pipeline
system to coordinate actions with Field Operations and
Maintenance personnel based upon the river flow rates during
flooding conditions, including river flow rate thresholds for
shutting down the Silvertip Pipeline.
WHEREAS, Defendant has reimbursed approximately $ 1, 602,
638.59 of Natural Resource Damage Assessment Costs incurred
by Federal and State Natural Resource Trustees (Trustees) and
has paid $12 million to fund restoration projects selected by
the Trustees to resolve a lawsuit brought by the Trustees
under Section 1002 of the Oil Pollution Act, 33 U.S.C. §
2702, and Montana state law.
WHEREAS, by entering into this Consent Decree, Defendant does
not admit the allegations in the Complaint filed in this
action, or any liability to the United States.
WHEREAS, the Parties agree that settlement of this matter
without further litigation is in the public interest and that
the entry of this Consent Decree is the most appropriate
means of resolving this action.
WHEREAS, the Parties agree, and by entering this Consent
Decree the Court finds, that this Consent Decree: (1) has
been negotiated by the Parties at arm's length and in
good faith, (2) will avoid prolonged litigation between the
Parties; (3) is fair and reasonable; and (4) furthers the
objectives of the CWA.
THEREFORE, before taking testimony and without adjudication
or admission of any issue of fact or law, or liability,
except as provided above and in Section I, below, and with
the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED,
AND DECREED as follows:
Court has jurisdiction over the subject matter of the United
States' claims in this action pursuant to 28 U.S.C.
§§ 1331, 1345, and 1355, and Sections 309(b),
309(d), and 311(b)(7)(E) and (n) of the CWA, 33 U.S.C.
§§ 1319(b), 1319(d), 1321(b)(7)(E) and (n). The
Court has personal jurisdiction over the Parties to this
Venue lies in this judicial district pursuant to 28 U.S.C.
§§ 1391 and 1395 because the claims arose in this
district and Defendant is located and doing business in this
purposes of this Decree, or any action to enforce this
Decree, Defendant consents to the Court's jurisdiction
over this Decree or such action and over Defendant and
consents to venue in this judicial district.
Notice of commencement of this action has been given to the
State of Montana as required by Section 309(b) of the CWA, 33
U.S.C. § 1319(b).
obligations of this Consent Decree apply to and are binding
upon the United States, and upon Defendant and any
successors, assigns, or other entities or persons otherwise
bound by law.
transfer of ownership or operation of any portion of the
Silvertip Pipeline System shall relieve Defendant of its
obligation to ensure that the requirements of this Consent
Decree are implemented.
any action to enforce this Consent Decree, Defendant shall
not raise as a defense the failure by any of its officers,
directors, employees, agents, or contractors to take any
actions necessary to comply with the provisions of this
Terms used in this Consent Decree that are defined in the CWA
shall have the meanings assigned to them in the Act, unless
otherwise provided in this Decree. Whenever the terms set
forth below are used in this Consent Decree, the following
definitions shall apply:
a. "Complaint" shall mean the Complaint filed by
Plaintiff in this action.
b. "Consent Decree" or "Decree" shall
mean this document.
c. "Day" shall mean a calendar day unless expressly
stated to be a working day. In computing any period of time
under this Consent Decree, the rules set forth in Rule 6(a)
of the Federal Rules of Civil Procedure shall be followed.
d. "Defendant" shall mean ExxonMobil Pipeline
Company, a Delaware corporation.
e. "Discharge" shall mean the crude oil spill
commencing on July 1, 2011, from the Silvertip Pipeline, near
f. "Effective Date" shall have the definition
provided in Section XV.
g. "EPA" shall mean the United States Environmental
Protection Agency and any of its successor departments or
h. "Interest" shall mean interest at the rate
specified in 28 U.S.C. § 1961.
i. "Facility" shall mean the 12-inch-diameter,
interstate pipeline, also known as the "Silvertip
Pipeline," which includes a section that runs near
j. "NRC" shall mean the United States Coast Guard
National Response Center.
k. "Paragraph" shall mean a portion of this Decree
identified by an Arabic numeral.
1. "Parties" shall mean the United States, on
behalf of EPA, and Defendant ExxonMobil Pipeline Company.
m. "Plaintiff' shall mean the United States.
n. "Section" shall mean a portion of this Decree
identified by a Roman numeral.
o. "United States" shall mean the United States of
America, acting on behalf of EPA.
p. "Water Crossing Program" shall mean
Defendant's iterative evaluation process for
characterizing and mitigating risks at pipeline water
crossings as referenced in Paragraph 13, below.
Within thirty (30) Days after the Effective Date of this
Consent Decree, Defendant shall pay to the United States the