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United States v. Exxonmobil Pipeline Company

United States District Court, D. Montana

June 4, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
EXXONMOBIL PIPELINE COMPANY Defendant. Water Crossing Program ID Waterway Name Mitigation Water Crossing Program ID Original 2013 Priority Waterway Name

          FOR PLAINTIFF UNITED STATES OF AMERICA, NATHANIEL DOUGLAS, JAMES D. FREEMAN, SUZANNE J. BOHAN, SUSAN PARKAR BODINE, ROSEMARIE KELLEY, MARK POLLINS, KELLY BRANTNER,

          FOR DEFENDANT EXXONMOBIL PIPELINE COMPANY, GERALD S. FRAY

          CONSENT DECREE

         A. 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.

         B. 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.

         C. 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.

         D. 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 Order.

         E. 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 Crossing Program.
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
Waterway Name
Mitigation

RM-0001

Clarks Fork

Horizontally drilled

RM-0002

Rock Creek

Horizontally drilled

RM-0003

Yellowstone River-Billings

Horizontally drilled

RM-0090

Yellowstone River-Laurel

Horizontally drilled

RM-0046

Sand Creek S. Span

Horizontally drilled

RM-0047

Sand Creek - Middle S. Span

Horizontally drilled

RM-0048

Sand Creek - Middle N. Span

Horizontally drilled

RM-0049

Sand Creek N. Span

Horizontally drilled

RM-0050

Sand Creek

Horizontally drilled

RM-0104

Canyon Creek

Pipe Support improvements

RM-0012

Wash 4.5 mi. N. of Silver Tip Sta.

Armoring

RM-0082

Mason Canal

Pipe Support improvements

RM-0107

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.

         F. 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.

         G. 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.

         H. 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.

         I. 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.

         NOW, 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:

         I.JURISDICTION AND VENUE

         1. This 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 Consent Decree.

         2. 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 district.

         3. For 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.

         4. 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).

         II. APPLICABILITY

         5. The 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.

         6. No 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.

         7. In 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 Consent Decree.

         III. DEFINITIONS

         8. 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 Laurel, Montana.
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 agencies.
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 Laurel, Montana.
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.

         IV. CIVIL PENALTIES

         9. Within thirty (30) Days after the Effective Date of this Consent Decree, Defendant shall pay to the United States the ...


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