United States of America v. Mid-America Pipeline et al

Filing 9

CONSENT DECREE. Ordered by Judge John M. Gerrard. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
)
v.
)
)
)
ENTERPRISE PRODUCTS OPERATING, L.L.C.; )
and MID-AMERICA PIPELINE COMPANY, LLC, )
)
Defendants.
)
)
)

8:12CV190
CONSENT DECREE

WHEREAS Plaintiff the United States of America, on behalf of the United States
Environmental Protection Agency (EPA), has filed a Complaint in this action concurrently with this
Consent Decree against Defendants Enterprise Products Operating, L.L.C. (“Enterprise”) and MidAmerica Pipeline Company, L.L.C. (“MAPL”) (collectively “Settling Defendants”) under Sections
301, 309 and 311 of the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq.
WHEREAS the Complaint alleges that Settling Defendants are and were the owners and
operators of a natural gasoline pipeline known as the West Red Pipeline, from which there was a
discharge of oil on March 29, 2007, near Yutan, Nebraska, on April 23, 2010, near Niles, Kansas
and on August 13, 2011, near Onawa, Iowa.
WHEREAS Settling Defendants do not admit any liability to the United States arising out
of the transactions or occurrences alleged in the Complaint.
WHEREAS the Parties recognize, and the Court by entering this Consent Decree finds, that
this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation
between the Parties and that this Consent Decree is fair, reasonable, and in the public interest.

NOW, THEREFORE, before the taking of any testimony, without the adjudication or
admission of any issue of fact or law except as provided in Section I, 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, Sections 309(b), 311 (b)(7)(E) and 311(n)
of the CWA, 33 U.S.C. §§ 1319(b), 1321(b)(7)(E) and (n), and Section 109(c) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §
9609(c). The Court has personal jurisdiction over the Parties to this Consent Decree. Venue lies in
this District pursuant to 28 U.S.C. §§ 1391(b) and (c), and 1395(a), because one of the discharges
alleged in the Complaint occurred in, and Settling Defendants conduct business in, this judicial
district. For purposes of this Decree, or any action to enforce this Decree, Settling Defendants
consent to the Court’s jurisdiction and to venue in this judicial district.
2.

For purposes of this Consent Decree, Defendants agree that the Complaint states

claims upon which relief may be granted pursuant to Sections 301, 309 and 311of the Clean Water
Act, 33 U.S.C. §§ 1311, 1319 and 1321.
II. APPLICABILITY
3.

The obligations of this Consent Decree apply to and are binding upon the United

States, and upon Settling Defendants joint and severally, and upon any successors or assigns.
4.

No transfer of ownership or operation of the Pipeline or any portion thereof, prior to

the Termination Date, whether in compliance with the procedures of this Paragraph or otherwise,
shall relieve Settling Defendants of their obligation to ensure that the terms of this Decree are
implemented unless EPA agrees to the substitution of the new owner for Settling Defendants. Such
agreement will not be unreasonably withheld. Any transfer of ownership or operation of any portion
United States v. Enterprise et al. Consent Decree Page 2.

of the Pipeline to any other person must be conditioned upon the transferee’s agreement to undertake
the obligations required by this Consent Decree as provided in a written agreement between Settling
Defendants and the proposed transferee, enforceable by the United States as a third-party beneficiary
of such agreement. At least 30 Days prior to such transfer, Settling Defendants shall provide a copy
of this Consent Decree to the proposed transferee and shall simultaneously provide written notice
of the prospective transfer, together with a copy of the proposed written agreement, to EPA Region
7 and to the United States Department of Justice, in accordance with Section XIV of this Decree
(Notices). Any transfer of ownership or operation of the Pipeline without complying with this
Paragraph constitutes a violation of this Decree.
5.

Settling Defendants shall provide a copy of this Consent Decree to all officers,

employees, and agents whose duties might reasonably include compliance with any provision of this
Decree. Settling Defendants shall also provide to any contractor retained to perform work required
under this Consent Decree with the provisions of the Consent Decree that are relevant to the work
that contractor is performing. Settling Defendants shall instruct their contractors to perform such
work in conformity with the terms of this Consent Decree.
6.

In any action to enforce this Consent Decree, Settling Defendants shall not raise as

a defense the failure by any of their officers, directors, employees, agents, or contractors to take any
actions necessary to comply with the provisions of this Consent Decree.
III. DEFINITIONS
7.

Terms used in this Consent Decree that are defined or used in the CWA, or in

regulations promulgated thereunder, shall have the meanings assigned to them in the CWA or such
regulations promulgated thereunder, unless otherwise provided in this Decree. Whenever the terms
set forth below are used in this Consent Decree, the following definitions shall apply:

United States v. Enterprise et al. Consent Decree Page 3.

“Calendar Year" or "Year" shall mean the period of time consisting of 365 or 366 days
beginning on January 1 and continuing to and including December 31.
“Complaint” shall mean the complaint filed by Plaintiff in this action, unless noted otherwise.
“Consent Decree” or “Decree” shall mean this Decree.
“Day” shall mean a calendar day unless expressly stated to be a working day. In computing
any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday,
or federal holiday, the period shall run until the close of business of the next working day.
“Date of Lodging” shall mean the day that this Consent Decree is lodged with the Court for
the public comment period.
“Deep Tilling” shall mean agricultural activity, including plowing and ripping, where the
earth is disturbed greater than 18 inches in depth or, as it relates to tilling in a specific area, greater
than the known pipeline depth in that area.
“Defendants” or “Settling Defendants” shall mean Enterprise Products Operating, L.L.C. and
Mid-America Pipeline Company, L.L.C.
“Effective Date” shall mean the day that this Consent Decree is entered and signed by the
Court.
“Excavation” shall mean the movement of earth, rock, soil, or other material by any means
including blasting, boring, channeling, grading, clearing, tunneling, drilling, jack-hammering,
digging, or backfilling below the existing grade by non-mechanical or mechanical equipment or by
explosives. Excavation shall not include normal agricultural practices, including plowing, tilling,
planting, and harvesting that are unlikely to reach the depths of the Pipeline.
“EPA” shall mean the United States Environmental Protection Agency and any of its
successor departments or agencies.
“Interest” shall mean interest at the rate specified in 28 U.S.C. § 1961.
United States v. Enterprise et al. Consent Decree Page 4.

“One Call” shall mean any system used by a state through which contractors and other
excavators may alert the state and utilities to a planned Excavation and determine whether the
planned Excavation is in an area where there is a pipeline, electric, gas or other buried conduit or
utility.
“Paragraph” shall mean a portion of this Decree identified by an Arabic numeral.
“Parties” shall mean the United States and Settling Defendants.
“Pipeline” shall mean the assets used to transport natural gasoline or other
petroleum products, including all of their components, as depicted on Appendix A, owned and/or
operated by Settling Defendants as of the Date of Lodging of this Consent Decree that are located
in the states of Iowa, Kansas, Nebraska and Minnesota. These assets, known as the 8-inch West Red
Pipeline, start near Conway, Kansas and end near Pine Bend, Minnesota.
“Plaintiff” shall mean the United States.
“Pipeline Right of Way” or “ROW” shall mean the strip of land or water upon which the
Pipeline is located and on which the Settling Defendants have a legal right to bury, maintain, and
access the Pipeline.
“Section” shall mean a portion of this Decree identified by a Roman numeral.
“Termination Date” shall mean the date on which Settling Defendants’ obligations under this
Consent Decree terminate as provided by Section XVIII of this Consent Decree.
“United States” shall mean the United States of America, acting on behalf of
EPA.
IV. CIVIL PENALTY
8.

Within 30 Days after the Effective Date of this Consent Decree, Settling Defendants

shall pay the sum of $1,042,000.00 as a civil penalty, together with Interest accruing from the Date
of Lodging.
United States v. Enterprise et al. Consent Decree Page 5.

9.

Settling Defendants shall pay the civil penalty and accumulated Interest due by

FedWire Electronic Funds Transfer (“EFT”) to the U.S. Department of Justice in accordance with
written instructions to be provided to Settling Defendants, following lodging of the Consent Decree,
by the Financial Litigation Unit of the U.S. Attorney’s Office for the District of Nebraska. At the
time of payment, Settling Defendants shall send a copy of the EFT authorization form and the EFT
transaction record, together with a transmittal letter, which shall state that the payment is for the civil
penalty owed pursuant to the Consent Decree in United States v. Enterprise Products Operating et
al., that the payment is to be deposited into the Oil Spill Liability Trust Fund pursuant to 33 U.S.C.
§ 1321(s) and 26 U.S.C. § 9509(b)(8), and shall reference the civil action number and DOJ case
number 90-5-1-1-06074/4, to the United States in accordance with Section XIV of this Decree
(Notices); by email to [e-mail]; and by mail to:
EPA Cincinnati Finance Office
26 Martin Luther King Drive
Cincinnati, OH 45268
10.

Settling Defendants shall not deduct any penalties paid under this Decree pursuant

to this Section or Section VIII (Stipulated Penalties) in calculating their federal income tax.
V. REQUIREMENTS PERTAINING TO REPORTING OF SPILLS AND PREVENTION OF
THIRD PARTY DAMAGE TO PIPELINE
11.

Potential Conflict with DOT Part 195.440, Public Awareness. With respect to matters

addressed in Paragraphs 12-21 below, if there is any conflict with DOT Part 195.440, 49 C.F.R. §
195.440, or legally required compliance with API 1162 or any applicable laws or regulations,
Defendants shall comply with the stricter requirement from and after the applicable effective date
of such stricter requirement. The United States retains all enforcement authorities with respect to
such stricter requirements under the law but Defendants shall not be subject to stipulated penalties
under this Consent Decree for failure to comply with such stricter requirements.

United States v. Enterprise et al. Consent Decree Page 6.

12.

Aerial Patrol Activities. Within 1 year of the Effective Date, and at least once every

Calendar Year thereafter, an employee of Defendants shall fly with each pilot doing aerial patrols
of the Pipeline on behalf of Defendants, except for substitute pilots that fly infrequently for
Defendants to cover for a normal pilot that is unable to fly because of an unplanned event such as
illness. The Defendants’ employee(s) shall be trained and qualified in recording and reviewing ROW
concerns during the aerial patrol, including but not limited to, encroachments, potential for
mechanical damage, exposed pipe, and, if visible, whether farming methods may threaten the
Pipeline.
13.

Defendants’ Contractor Requirements.

Within 1 year of the Effective Date,

Defendants shall require all of their contractors performing Excavation activities on the Pipeline to
use the One Call system applicable in the state in which they are working and require that such
activities be undertaken in a manner consistent with industry standards of due care.
14.

Notification to State of Excavators Not Following One Call. Beginning no later than

1 year after Effective Date of this Consent Decree, whenever Defendants become aware of any
contractors, excavators, ROW owners, or tenants who have performed an Excavation that potentially
impacts the Pipeline requiring One Call notification in accordance with applicable state law without
notifying an applicable One Call system, Defendants shall notify the state authorities responsible for
enforcement. Defendants shall also contact such contractors, excavators, or ROW owners or tenants
as soon as it becomes aware of such incident and inform them of the One Call system and its
importance in preserving pipeline integrity.
15.

Release Reporting. For any releases of natural gasoline from the Pipeline that

Defendants know have reached a body of water, Defendants shall promptly report the release to the
National Response Center. Defendants shall make the report regardless of whether the body of water
to which oil has been released is a navigable water within the meaning of the Clean Water Act. By
United States v. Enterprise et al. Consent Decree Page 7.

making such a report, Defendants shall not waive their right to contest whether such body of water
is a navigable water.
16.

When Defendants make an initial report of a release to surface water pursuant to

Paragraph 15, Defendants shall report the volume released from the Pipeline as the calculated
volume of the Pipeline between the nearest upstream and downstream block valves for the Pipeline.
If the location of the nearest upstream and downstream block valves is unknown or uncertain at the
time of the release. Defendants shall report the volume released from the Pipeline as the calculated
volume of a 10-mile segment of the Pipeline. Defendants shall report this calculated volume
regardless of any contrary information Defendants may possess that the release volume is less or
different, and the United States shall not claim or allege in any forum that Defendants should have
reported a lesser or different quantity. Subsequent to the initial notification, once Defendants have
verified additional information concerning the actual quantity released, Defendants may provide
updated information or estimates to the National Response Center to inform the National Response
Center that the volume released is different.
17.

Appointment of a Damage Prevention Coordinator. Within 1 year of the Effective

Date, Defendants shall appoint one person to be their Damage Prevention Coordinator.
18.

Ground Monitoring. Within 1 year of the Effective Date of this Consent Decree, and

once every Calendar Year thereafter, Defendants shall conduct ground monitoring of the Pipeline
by walking or driving along the Pipeline. During this and any other dedicated ground monitoring
performed, the monitors shall note in writing any observation of special threats to the Pipeline that
were not previously discovered and noted. Such special threats may include, but are not limited to,
Deep Tilling within 50 feet of the Pipeline, Excavation within 75 feet of the Pipeline, surface grading
within 75 feet of the Pipeline, inadequate markers, and/or any exposed pipe. These threats shall be
promptly reported to the Defendants’ Damage Prevention Coordinator. The monitors shall also
United States v. Enterprise et al. Consent Decree Page 8.

immediately determine if any observed Deep Tilling or Excavation activities within 75 feet of the
Pipeline were reported to the applicable state's One Call system, if required by the applicable state’s
One Call system. If the monitors determine that the observed Deep Tilling or Excavation was not
reported to the state's One Call system as required by the state’s One Call system, the monitor shall
notify the appropriate MAPL, Enterprise, or contractor personnel who would normally have received
a One Call notification, who shall treat the Deep Tilling or Excavation as if it had been the subject
of a One Call notification.
19.

Notification to Excavators and Land Developers. Within 1 year of the Effective Date

of this Consent Decree, Defendants shall use reasonable efforts to identify all excavators and land
developers who conduct operations within 20 miles of the Pipeline. Within 1 year of the Effective
Date of this Consent Decree, and once each Calendar Year thereafter, Defendants shall use
reasonable efforts to notify such excavation contractors and land developers in writing of the
Pipeline locations in their area and provide them with information about any applicable One Call
system. Defendants shall maintain this list of excavators and land developers and use reasonable
efforts to update it annually.
20.

Within 1 year of the Effective Date of this Consent Decree, Defendants shall use a

centralized computerized system to track the external force threats to the Pipeline. Any information
concerning activities that pose threats to the Pipeline that Defendants acquire from their aerial
patrols, ground monitoring, or other sources (including notice of Excavations where One Call was
not notified) shall be reported to the Damage Prevention Coordinator, who shall ensure the entry of
this information into the external force threat tracking system. The Damage Prevention Coordinator
shall compile, review, analyze, and disseminate this information in an appropriate written or
electronic format to appropriate personnel of Defendants, including the SCADA Controllers, on a
quarterly basis.
United States v. Enterprise et al. Consent Decree Page 9.

21.

If any information gathered pursuant to this Consent Decree or by other means

demonstrates that Excavation or Deep Tilling is regularly occurring at depths or in a manner that may
cause damage to a buried pipeline, Defendants shall either reach agreement with the landowner to
cease such activities, lower this segment of the Pipeline, or otherwise provide additional cover for
the segment of Pipeline.
22.

Funds for Mitigation of External Pipeline Threats. During the 4 year period after the

Effective Date of this Consent Decree, Defendants shall spend at least $200,000 in total on the
following activities to mitigate external threats to the Pipeline or the potential for a release to reach
a navigable water, including: (1) relocating, providing additional cover, lowering or replacing
Pipeline segments; and/or (2) the installation of new remote shutoff valves on Pipeline segments that
would minimize release volumes; and/or (3) the installation of new physical barriers that protect the
Pipeline, such as fences or pipeline protective covers such as concrete barriers; and/or (4) the
installation of equipment, structures, or systems that will prevent discharges from reaching navigable
water; and/or (5) any other acceptable mitigation efforts that have been pre-approved by EPA
pursuant to Paragraph 23-25 below. Items (1), (2), (3), and (4) of the preceding sentence shall not
require EPA pre-approval. Within the first three Annual Reports required by Paragraph 29 below,
Defendants shall submit documentation of expenditures within the reporting period that are
consistent with these stated purposes, for EPA approval pursuant to Paragraphs 23-25 below. EPA
may disapprove any expenditure claimed by Defendants in satisfaction of this Paragraph on the sole
ground it does not satisfy one of the categories described above, subject to Defendants’ right to
Dispute Resolution (Section X). Should EPA take this action and the Defendants not be successful
in Dispute Resolution (Section X), this amount shall not be deducted from the total expenditures
required by Defendants pursuant to this Paragraph, and the obligations for mitigation expenditures
shall continue until EPA has approved $200,000 in expenditures. This Paragraph does not limit
United States v. Enterprise et al. Consent Decree Page 10.

Defendants’ obligation, if any, to undertake any of the above measures to the extent required by
applicable law.
VI. APPROVAL OF DELIVERABLES
23.

Approval of Deliverables. After review of any plan, report, or other item that is

required to be submitted pursuant to this Consent Decree, EPA shall in writing: a) approve the
submission; b) approve the submission upon specified conditions; c) approve part of the submission
and disapprove the remainder; or d) disapprove the submission.
24.

If the submission is approved pursuant to Paragraph 23.a, Settling Defendants shall

take all actions required by the plan, report, or other document, in accordance with the schedules and
requirements of the plan, report, or other document, as approved. If the submission is conditionally
approved or approved only in part, pursuant to Paragraph 23.b or .c, Settling Defendants shall, upon
written direction from EPA, take all actions required by the approved plan, report, or other item that
EPA determines are technically severable from any disapproved portions, subject to Settling
Defendants’ right to dispute only the specified conditions or the disapproved portions, under Section
X of this Decree (Dispute Resolution).
25.

If the submission is disapproved in whole or in part pursuant to Paragraph 23.c or .d,

Settling Defendants shall, within 45 Days or such other time as the Parties agree to in writing, correct
all deficiencies and resubmit the plan, report, or other item, or disapproved portion thereof, for
approval, in accordance with the preceding Paragraphs. If the resubmission is approved in whole or
in part, Settling Defendants shall proceed in accordance with the preceding Paragraph.
26.

Any stipulated penalties applicable to the original submission, as provided in Section

VIII of this Decree (Stipulated Penalties), shall accrue during the 45-Day period or other specified
period, but shall not be payable unless the resubmission is untimely or is disapproved in whole or
in part; provided that, if the original submission was so deficient as to constitute a material breach
United States v. Enterprise et al. Consent Decree Page 11.

of Settling Defendants’ obligations under this Decree, the stipulated penalties applicable to the
original submission shall be due and payable notwithstanding any subsequent resubmission.
27.

If a resubmitted plan, report, or other item, or portion thereof, is disapproved in whole

or in part, EPA may again require Settling Defendants to correct any deficiencies, in accordance with
the preceding Paragraphs, subject to Settling Defendants’ right to invoke Dispute Resolution and the
right of EPA to seek stipulated penalties as provided in the preceding Paragraphs.
28.

Permits. Where any compliance obligation under this Section requires Settling

Defendants to obtain a federal, state, or local permit or approval, Settling Defendants shall submit
timely and complete applications and take all other actions that are legally required or reasonably
necessary to obtain all such permits or approvals. Settling Defendants may obtain relief under the
provisions of Section IX of this Consent Decree (Force Majeure) for any delay in the performance
of any such obligation resulting from a failure to obtain, or a delay in obtaining, any permit or
approval required to fulfill such obligation, if Settling Defendants have submitted timely and
complete applications and have taken all other actions that are legally required or reasonably
necessary to obtain all such permits or approvals.
VII. REPORTING REQUIREMENTS
29.

In addition to any submittals or record keeping required above, within 3 months

following the first annual anniversary of the Effective Date, Defendants shall submit an Annual
Report fully documenting the performance of Defendants of the tasks required by Section V above
including any specific submissions required by those Paragraphs. Thereafter, during the pendency
of this Decree, by the annual anniversary of this date, Defendants shall submit an updated Annual
Report documenting the performance of Defendants of the tasks required by Section V above. These
Annual Reports shall be submitted as specified in Section XIV (Notices). Within the fourth and final
Annual Report, Defendants shall provide an evaluation of the Defendants’ experience in the
United States v. Enterprise et al. Consent Decree Page 12.

implementation of the injunctive relief requirements set forth in Section V. This evaluation is to be
provided subsequent to Defendants having fulfilled all of their obligations under this Consent Decree
and shall include (1) a description of what elements of the required injunctive relief Defendants
anticipate continuing after termination of this Consent Decree; and (2) what elements of the required
injunctive relief Defendants anticipate continuing in a modified form. In no event shall this
evaluation be a basis, in any manner whatsoever, for stipulated penalties or any other violation under
this Consent Decree.
30.

Each report submitted by Defendants under this Section shall be signed by a

responsible corporate officer of the submitting party and include the following certification:
I certify under penalty of law that this document and all attachments were prepared
under my direction or supervision in accordance with a system designed to assure
that qualified personnel properly gather and evaluate the information submitted. I
further certify, based on my inquiry of the person or persons who manage the system,
or those persons directly responsible for gathering the information, the information
submitted is, to the best of my knowledge and belief, true, accurate, and complete.
I am aware that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowingly and willfully
submitting a materially false statement.
VIII. STIPULATED PENALTIES
31.

If Defendants fail to make the payments required under Section IV (Civil Penalty)

when due, Defendants shall pay a stipulated penalty of ten thousand dollars ($10,000) to Plaintiff
per day for each day that the payment is late. Late payment of the civil penalty shall be made in
accordance with payment instructions in Section IV above. Stipulated penalties shall be paid in
accordance with the instructions set forth in Paragraph 40 below.
32.

Defendants shall be liable for stipulated penalties in the amounts detailed below to

the United States for all other violations of this Consent Decree, unless excused under Section IX
(Force Majeure). The following stipulated penalties shall accrue for each violation of this Consent

United States v. Enterprise et al. Consent Decree Page 13.

Decree as set forth in Paragraph 32 a-e below. Where the stipulated penalty indicated below accrues
“per violation per day,” the penalty shall apply for each day that the violation continues.
a.

Violations of the requirements set forth in Paragraphs 15-16 relating to release

reporting: $5,000 per release not reported in compliance with Paragraphs 15 and 16.
b.

Violations of the requirements set forth in Paragraphs 12 - 14 , 18, 19 and 21

regarding aerial patrols, contractors, reporting of excavators not following One Call, ground
monitoring, notification to excavators, contractors and developers, and landowner agreements: $500
per violation per day.
c.

Violations of the requirements set forth in Paragraphs 17-18 regarding the

Damage Prevention Coordinator and tracking of external threats: $250 per violation per day.
d.

Violations of the requirements set forth in Paragraph 22 regarding funds for

mitigation of Pipeline threats: $1.50 for each dollar not spent on mitigation as required.
e.

Violations of any other requirements not listed in paragraphs 32 a-d above:

$150 per violation per day.
33.

Stipulated penalties under this Section shall begin to accrue on the day after

performance is due, and shall continue to accrue until performance is satisfactorily completed or the
violation otherwise cured. Stipulated penalties shall accrue simultaneously for separate violations
of this Consent Decree. Defendants shall pay any stipulated penalty within 30 Days of receiving a
written demand. The United States may, in the unreviewable exercise of its discretion, reduce or
waive stipulated penalties otherwise due under this Consent Decree.
34.

Stipulated penalties shall continue to accrue as provided in Paragraph 33, above,

during any Dispute Resolution, with interest on accrued penalties payable and calculated at the rate

United States v. Enterprise et al. Consent Decree Page 14.

established by the Secretary of the Treasury, pursuant to 28 U.S.C. § 1961, but need not be paid until
the following:
a.

If the dispute is resolved by agreement, Defendants shall pay accrued

stipulated penalties determined to be owing, together with interest, to Plaintiff within 30 Days of the
effective date of that agreement unless that agreement limits or waives such penalties;
b.

If the dispute is submitted to the Court and Plaintiff prevails in whole or in

part, Defendants shall pay all accrued penalties determined by the Court to be owed, together with
interest, within 60 Days of receiving the Court’s decision or order, except as provided in
Subparagraph c. below;
c.

If any Party appeals the district court’s decision, Defendants shall pay all

accrued penalties determined to be owed, together with interest, within 15 Days of receiving the final
appellate court decision.
35.

Defendants shall, as directed by the United States in its demand, pay stipulated

penalties owed to the United States by EFT or by certified or cashier’s check in the amount due,
payable to the U.S. Department of Justice, referencing the civil action number assigned to this case
and DOJ Number 90-5-1-1-06074/4, and delivered to the office of the United States Attorney,
District of Nebraska, to be deposited in the U.S. Treasury. The payment documents shall specify that
the payments are for stipulated penalties to be deposited into the United States Treasury pursuant to
31 U.S.C. § 3302.
36.

Defendants shall not deduct stipulated penalties paid under this Section in calculating

federal income tax.

United States v. Enterprise et al. Consent Decree Page 15.

37.

If Defendants fail to pay stipulated penalties according to the terms of this Consent

Decree, Defendants shall be liable for interest on such penalties, as provided for in 28 U.S.C. § 1961,
accruing as of the date payment of stipulated penalties became due under Paragraph 34.
38.

Subject to the provisions of Section XII of this Consent Decree (Effect of

Settlement/Reservation of Rights), the stipulated penalties provided for in this Consent Decree shall
be in addition to any other rights, remedies, or sanctions available to Plaintiff for Defendants’
violation of this Consent Decree or applicable law.
IX. FORCE MAJEURE
39.

“Force majeure,” for purposes of this Consent Decree, is defined as any event arising

from causes beyond the control of Settling Defendants, of any entity controlled by Settling
Defendants, or of Settling Defendants’ contractors, that delays or prevents the performance of any
obligation under this Consent Decree despite Settling Defendants’ best efforts to fulfill the
obligation. The requirement that Settling Defendants exercise “best efforts to fulfill the obligation”
includes using best efforts to anticipate any potential force majeure event and best efforts to address
the effects of any such event (a) as it is occurring and (b) after it has occurred to prevent or minimize
any resulting delay to the greatest extent possible. “Force Majeure” does not include Settling
Defendants’ financial inability to perform any obligation under this Consent Decree.
40.

If any event occurs or has occurred that may delay the performance of any obligation

under this Consent Decree, whether or not caused by a force majeure event, Settling Defendants shall
provide notice orally or by electronic or facsimile transmission to the United States and EPA within
72 hours, or as soon as possible thereafter, of when Settling Defendants first knew that the event
might cause a delay. Within 7 Days thereafter, Settling Defendants shall provide in writing to EPA
an explanation and description of the reasons for the delay; the anticipated duration of the delay; all

United States v. Enterprise et al. Consent Decree Page 16.

actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of any
measures to be taken to prevent or mitigate the delay or the effect of the delay; Settling Defendants’
rationale for attributing such delay to a force majeure event if it intends to assert such a claim; and
a statement as to whether, in the opinion of Settling Defendants, such event may cause or contribute
to an endangerment to public health or welfare, or the environment. Settling Defendants shall include
with any notice all available documentation supporting the claim that the delay was attributable to
a force majeure. Failure to comply with the above requirements shall preclude Settling Defendants
from asserting any claim of force majeure for that event for the period of time of such failure to
comply, and for any additional delay caused by such failure. Settling Defendants shall be deemed
to know of any circumstance of which Settling Defendants, any entity controlled by Settling
Defendants, or Settling Defendants’ contractors knew or should have known.
41.

If EPA agrees that the delay or anticipated delay is attributable to a force majeure

event, the time for performance of the obligations under this Consent Decree that are affected by the
force majeure event will be extended by EPA for such time as is necessary to complete those
obligations. An extension of the time for performance of the obligations affected by the force
majeure event shall not, of itself, extend the time for performance of any other obligation. EPA will
notify Settling Defendants in writing of the length of the extension, if any, for performance of the
obligations affected by the force majeure event.
42.

If EPA does not agree that the delay or anticipated delay has been or will be caused

by a force majeure event, EPA will notify Settling Defendants in writing of its decision.
43.

If Settling Defendants elect to invoke the dispute resolution procedures set forth in

Section X (Dispute Resolution), it shall do so no later than 15 days after receipt of EPA's notice. In
any such proceeding, Settling Defendants shall have the burden of demonstrating by a preponderance

United States v. Enterprise et al. Consent Decree Page 17.

of the evidence that the delay or anticipated delay has been or will be caused by a force majeure
event, that the duration of the delay or the extension sought was or will be warranted under the
circumstances, that best efforts were exercised to avoid and mitigate the effects of the delay, and that
Settling Defendants complied with the requirements of Paragraphs 39-40, above. If Settling
Defendants carry this burden, the delay at issue shall be deemed not to be a violation by Settling
Defendants of the affected obligation of this Consent Decree identified to EPA and the Court.
X. DISPUTE RESOLUTION
44.

Unless otherwise expressly provided for in this Consent Decree, the dispute resolution

procedures of this Section shall be the exclusive mechanism to resolve disputes arising under or with
respect to this Consent Decree. Settling Defendants’ failure to seek resolution of a dispute under this
Section shall preclude Settling Defendants from raising any such issue as a defense to an action by
the United States to enforce any obligation of Settling Defendants arising under this Decree.
45.

Informal Dispute Resolution. Any dispute subject to Dispute Resolution under this

Consent Decree shall first be the subject of informal negotiations. The dispute shall be considered
to have arisen when Settling Defendants send the United States a written Notice of Dispute. Such
Notice of Dispute shall state clearly the matter in dispute. The period of informal negotiations shall
not exceed 20 Days from the date the dispute arises, unless that period is modified by written
agreement. If the Parties cannot resolve a dispute by informal negotiations, then the position
advanced by the United States shall be considered binding unless, within 20 Days after the
conclusion of the informal negotiation period, Settling Defendants invoke formal dispute resolution
procedures as set forth below.
46.

Formal Dispute Resolution.

Settling Defendants shall invoke formal dispute

resolution procedures, within the time period provided in the preceding Paragraph, by serving on the

United States v. Enterprise et al. Consent Decree Page 18.

United States a written Statement of Position regarding the matter in dispute. The Statement of
Position shall include, but need not be limited to, any factual data, analysis, or opinion supporting
Settling Defendants’ position and any supporting documentation relied upon by Settling Defendants.
47.

The United States shall serve its Statement of Position within 45 Days of receipt of

Settling Defendants’ Statement of Position. The United States’ Statement of Position shall include,
but need not be limited to, any factual data, analysis, or opinion supporting that position and any
supporting documentation relied upon by the United States. The United States’ Statement of
Position shall be binding on Settling Defendants, unless Settling Defendants file a motion for judicial
review of the dispute in accordance with the following Paragraph.
48.

Settling Defendants may seek judicial review of the dispute by filing with the Court

and serving on the United States, in accordance with Section XIV of this Consent Decree (Notices),
a motion requesting judicial resolution of the dispute. The motion must be filed within 10 Days of
receipt of the United States’ Statement of Position pursuant to the preceding Paragraph. The motion
shall contain a written statement of Settling Defendants’ position on the matter in dispute, including
any supporting factual data, analysis, opinion, or documentation, and shall set forth the relief
requested and any schedule within which the dispute must be resolved for orderly implementation
of the Consent Decree.
49.

The United States shall respond to Settling Defendants’ motion within the time period

allowed by the Local Rules of this Court. Settling Defendants may file a reply memorandum, to the
extent permitted by the Local Rules.
50.

Standard of Review
a.

Disputes Concerning Matters Accorded Record Review. Except as otherwise

provided in this Consent Decree, in any dispute brought under Paragraph 48 pertaining to the

United States v. Enterprise et al. Consent Decree Page 19.

adequacy or appropriateness of plans, procedures to implement plans, schedules, or any other items
requiring approval by EPA under this Consent Decree; the adequacy of the performance of work
undertaken pursuant to this Consent Decree; and all other disputes that are accorded review on the
administrative record under applicable principles of administrative law, Settling Defendants shall
have the burden of demonstrating, based on the administrative record, that the position of the United
States is arbitrary and capricious or otherwise not in accordance with law.
b.

Other Disputes. Except as otherwise provided in this Consent Decree, in any

other dispute brought under Paragraph 48, Settling Defendants shall bear the burden of
demonstrating that their position complies with this Consent Decree and better further the objectives
of the Consent Decree.
51.

The invocation of dispute resolution procedures under this Section shall not, by itself,

extend, postpone, or affect in any way any obligation of Settling Defendants under this Consent
Decree, unless and until final resolution of the dispute so provides. Stipulated penalties with respect
to the disputed matter shall continue to accrue from the first Day of noncompliance, but payment
shall be stayed pending resolution of the dispute as provided in Paragraph 34. If Settling Defendants
do not prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in
Section VIII (Stipulated Penalties).
XI. INFORMATION COLLECTION AND RETENTION
52.

The United States and its representatives, including attorneys, contractors, and

consultants shall, upon presentation of credentials, have the right to:
a.

monitor the progress of activities required under this Consent Decree;

b.

verify any data or information submitted to the United States in accordance

with the terms of this Consent Decree;

United States v. Enterprise et al. Consent Decree Page 20.

c.

obtain samples and, upon request, splits of any samples taken by Settling

Defendants or their representatives, contractors, or consultants;
d.
e.
53.

obtain documentary evidence, including photographs and similar data; and
assess Settling Defendants’ compliance with this Consent Decree.

Upon request, Settling Defendants shall provide EPA or its authorized representatives

splits of any samples taken by Settling Defendants. Upon request, EPA shall provide Settling
Defendants splits of any samples taken by EPA.
54.

Settling Defendants shall retain, and shall instruct their contractors and agents to

preserve, all non-identical copies of all documents, records, or other information (including
documents, records, or other information in electronic form) in their or their contractors’ or agents’
possession or control, or that come into their or their contractors’ or agents’ possession or control,
and that relate to Settling Defendants’ performance of their obligations under this Consent Decree
for a period of 3 years after the creation of such document, record, or other information. This
information-retention requirement shall apply regardless of any contrary corporate or institutional
policies or procedures. At any time during this information-retention period, upon request by the
United States, Settling Defendants shall provide copies of any documents, records, or other
information that Settling Defendants are required to maintain under this Paragraph, and Settling
Defendants shall request their contractors and agents to provide copies of any documents Settling
Defendants instructed their contractors or agents to maintain under this Paragraph.
55.

Settling Defendants may assert that information required to be provided under this

Section is protected as Confidential Business Information (“CBI”) under 40 C.F.R. Part 2 or is
privileged. As to any information that Settling Defendants seek to protect as CBI, Settling
Defendants shall follow the procedures set forth in 40 C.F.R. Part 2. Settling Defendants may assert

United States v. Enterprise et al. Consent Decree Page 21.

that certain documents, records, or other information are privileged under the attorney-client
privilege or any other privilege recognized by federal law. If Settling Defendants assert such a
privilege, they shall provide the following: (1) the title of the document, record, or information; (2)
the date of the document, record, or information; (3) the name and title of each author of the
document, record, or information; (4) the name and title of each addressee and recipient; (5) a
description of the subject of the document, record, or information; and (6) the privilege asserted by
Settling Defendants. However, no documents, records, or other information created or generated
pursuant to the requirements of this Consent Decree shall be withheld on grounds of privilege.
56.

This Consent Decree in no way limits or affects any right of entry and inspection, or

any right to obtain information, held by the United States pursuant to applicable federal laws,
regulations, or permits, nor does it limit or affect any duty or obligation of Settling Defendants to
maintain documents, records, or other information imposed by applicable federal or state laws,
regulations, or permits.
XII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS
57.

This Consent Decree resolves the claims of the United States for civil penalties and

injunctive relief under Sections 309 and 311(b) of the Clean Water Act, 33 U.S.C. §§ 1319 and
1321(b), arising from the discharges of oil that occurred on March 29, 2007, near Yutan, Nebraska,
on April 23, 2010, near Niles, Kansas, and on August 13, 2011, near Onawa, Iowa.
58.

The United States reserves all legal and equitable remedies available to enforce the

provisions of this Consent Decree, except as expressly stated in Paragraph 57. This Consent Decree
shall not be construed to limit the rights of the United States to obtain penalties or injunctive relief
under the CWA or implementing regulations, or under other federal laws, regulations, or permit
conditions, except as expressly specified in Paragraph 57. The United States further reserves all legal

United States v. Enterprise et al. Consent Decree Page 22.

and equitable remedies to address any imminent and substantial endangerment to the public health
or welfare or the environment arising at, or posed by, Settling Defendants, whether related to the
violations addressed in this Consent Decree or otherwise.
59.

Settling Defendants hereby covenant not to sue and agree not to assert any claims

related to the discharges alleged the Complaint, or response activities or natural resource damages
in connection with those discharges, against the United States pursuant to the CWA, Oil Pollution
Act of 1990 (OPA), 33 U.S.C. § 2701 et seq., or any other federal law, state law, or regulation
including, but not limited to, any direct or indirect claim for reimbursement from the Oil Spill
Liability Trust Fund, as defined in section 1001 of OPA, 33 U.S.C. § 2701(11), and any direct or
indirect claim for reimbursement from the Hazardous Substance Superfund (established pursuant
to the Internal Revenue Code, 26 U.S.C. §9507) through CERCLA sections 106(b)(2), 107, 111,
112, 113, or any other provision of law.
60.

In any subsequent administrative or judicial proceeding initiated by the United States

for injunctive relief, civil penalties, or other appropriate relief relating to Settling Defendants’
violations, Settling Defendants shall not assert, and may not maintain, any defense or claim based
upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim preclusion,
claim-splitting, or other defenses based upon any contention that the claims raised by the United
States in the subsequent proceeding were or should have been brought in the instant case, except
with respect to claims that have been specifically resolved pursuant to Paragraph 57 of this Section.
61.

This Consent Decree is not a permit, or a modification of any permit, under any

federal, state, or local laws or regulations. Settling Defendants are responsible for achieving and
maintaining complete compliance with all applicable federal, state, and local laws, regulations, and
permits; and Settling Defendants’ compliance with this Consent Decree shall be no defense to any

United States v. Enterprise et al. Consent Decree Page 23.

action commenced pursuant to any such laws, regulations, or permits, except as set forth herein. The
United States does not, by its consent to the entry of this Consent Decree, warrant or aver in any
manner that Settling Defendants’ compliance with any aspect of this Consent Decree will result in
compliance with provisions of the CWA, or with any other provisions of federal, state, or local laws,
regulations, or permits.
62.

This Consent Decree does not limit or affect the rights of Settling Defendants or of

the United States against any third parties, not party to this Consent Decree, nor does it limit the
rights of third parties, not party to this Consent Decree, against Settling Defendants, except as
otherwise provided by law.
63.

This Consent Decree shall not be construed to create rights in, or grant any cause of

action to, any third party not party to this Consent Decree.
XIII. COSTS
64.

The Parties shall bear their own costs of this action, including attorney fees, except

that the United States shall be entitled to collect the costs (including attorney fees) incurred in any
action necessary to collect any portion of the civil penalty or any stipulated penalties due but not paid
by Settling Defendants.
XIV. NOTICES
65.

Unless otherwise specified herein, whenever notifications, submissions, or

communications are required by this Consent Decree, they shall be made in writing and addressed
as follows:
Notices and Submissions to the United States: Where this Consent Decree requires that notices and
submissions are to be made to the United States they shall be made to the United States Department

United States v. Enterprise et al. Consent Decree Page 24.

of Justice and EPA. Where the Consent Decree Requires that Notices and Submissions shall be made
to EPA, they need only be sent to EPA.
To the United States:
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
Box 7611 Ben Franklin Station
Washington, D.C. 20044-7611
Re: DOJ No. 90-5-1-1-06074/4
To EPA:
Paula Higbee, Compliance Officer
Storage Tank & Oil Pollution Branch
EPA Region 7
901 N. 5th Street
Kansas City, Kansas 66101
To Settling Defendants(s):
Matt Mara
Senior Director
Enterprise Products
1100 Louisana
Houston, TX 77002
and

Edward Lewis
Fulbright & Jaworski L.L.P.
1201 McKinney, Suite 5100
Houston, TX 77010
66.

Any Party may, by written notice to the other Parties, change its designated notice

recipient or notice address provided above.

United States v. Enterprise et al. Consent Decree Page 25.

67.

Notices submitted pursuant to this Section shall be deemed submitted upon mailing,

unless otherwise provided in this Consent Decree or by mutual agreement of the Parties in writing.
XV. EFFECTIVE DATE
68.

The Effective Date of this Consent Decree shall be the date upon which this Consent

Decree is entered by the Court or a motion to enter the Consent Decree is granted, whichever occurs
first, as recorded on the Court’s docket.
XVI. RETENTION OF JURISDICTION
69.

The Court shall retain jurisdiction over this case until termination of this Consent

Decree, for the purpose of resolving disputes arising under this Decree or entering orders modifying
this Decree, pursuant to Sections X (Dispute Resolution) or XVII (Modification), or effectuating or
enforcing compliance with the terms of this Decree.
XVII. MODIFICATION
70.

The terms of this Consent Decree, including any attached appendices, may be

modified only by a subsequent written agreement signed by all the Parties. Where the modification
constitutes a material change to this Decree, it shall be effective only upon approval by the Court.
71.

Any disputes concerning modification of this Decree shall be resolved pursuant to

Section X of this Decree (Dispute Resolution), provided, however, that, instead of the standard of
review provided by Paragraph 50, the Party seeking the modification bears the burden of
demonstrating that it is entitled to the requested modification in accordance with Federal Rule of
Civil Procedure 60(b).
XVIII. TERMINATION
72.

After Settling Defendants have satisfactorily complied with the requirements of this

Decree for a period of 4 years, and have paid the civil penalty and any accrued stipulated penalties

United States v. Enterprise et al. Consent Decree Page 26.

as required by this Consent Decree, Settling Defendants may serve upon the United States a Request
for Termination, stating that Settling Defendants have satisfied those requirements, together with all
necessary supporting documentation.
73.

Following receipt by the United States of Settling Defendants’ Request for

Termination, the Parties shall confer informally concerning the Request and any disagreement that
the Parties may have as to whether Settling Defendants have satisfactorily complied with the
requirements for termination of this Consent Decree. If the United States agrees that the Decree may
be terminated, the Parties shall submit, for the Court’s approval, a joint stipulation terminating the
Decree.
74.

If the United States does not agree that the Decree may be terminated, Settling

Defendants may invoke Dispute Resolution under Section X of this Decree (Dispute Resolution).
However, Settling Defendants shall not seek Dispute Resolution under Section X of any dispute
regarding termination until 60 days after service of their Request for Termination.
XIX. PUBLIC PARTICIPATION
75.

This Consent Decree shall be lodged with the Court for a period of not less than 30

Days for public notice and comment in accordance with 28 C.F.R. § 50.7. The United States reserves
the right to withdraw or withhold its consent if the comments regarding the Consent Decree disclose
facts or considerations indicating that the Consent Decree is inappropriate, improper, or inadequate.
Settling Defendants consent to entry of this Consent Decree without further notice and agree not to
withdraw from or oppose entry of this Consent Decree by the Court or to challenge any provision
of the Decree, unless the United States has notified Settling Defendants in writing that it no longer
supports entry of the Decree.
XX. SIGNATORIES/SERVICE

United States v. Enterprise et al. Consent Decree Page 27.

76.

Each undersigned representative of Settling Defendants and the Assistant Attorney

General for the Environment and Natural Resources Division of the Department of Justice certifies
that he or she is fully authorized to enter into the terms and conditions of this Consent Decree and
to execute and legally bind the Party he or she represents to this document.
77.

This Consent Decree may be signed in counterparts, and its validity shall not be

challenged on that basis. Settling Defendants agree to accept service of process by mail with respect
to all matters arising under or relating to this Consent Decree and to waive the formal service
requirements set forth in Rules 4 and 5 of the Federal Rules of Civil Procedure and any applicable
Local Rules of this Court including, but not limited to, service of a summons. Copies shall be
provided in accordance with the notice provisions of Paragraph 65. Settling Defendants need not file
an Answer to the Complaint in this action unless and until the United States withdraws its consent
to this Consent Decree and/or the Court declines to enter this Consent Decree.
XXI. INTEGRATION
78.

This Consent Decree constitutes the final, complete, and exclusive agreement and

understanding among the Parties with respect to the settlement embodied in the Decree and
supercedes all prior agreements and understandings, whether oral or written, concerning the settlement embodied herein. No other document, nor any representation, inducement, agreement,
understanding, or promise, constitutes any part of this Decree or the settlement it represents, nor shall
such be used in construing the terms of this Decree.
XXII. FINAL JUDGMENT
79.

Upon approval and entry of this Consent Decree by the Court, this Consent Decree

shall constitute a final judgment of the Court as to the United States and Settling Defendants. The

United States v. Enterprise et al. Consent Decree Page 28.

Court finds that there is no just reason for delay and therefore enters this judgment as a final
judgment under Fed. R. Civ. P. 54 and 58.
DATED this 15th day of August, 2012
BY THE COURT:

John M. Gerrard
United States District Judge

United States v. Enterprise et al. Consent Decree Page 29.

[This page intentionally left blank]

United States v. Enterprise et al. Consent Decree Page 30.

FOR THE UNITED STA1ES OF AMERl~
Date:

u.

0(/JIl

~

C7~

I ACIA S. MORENO 7
Assistant Attorney General
United States Department of Justice
Environment and Natural Resourc Division

W_

Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611, Ben Franklin Station
Washington, D.C. 20044
DEBORAH R. GILG
United States Attorney
District of Nebraska
/s/ LAURIE A. KELLY
LAURIE A. KELLY, Bar # 557575
Assistant United States Attorney
District of Nebraska
1620 Dodge Street, Suite 1400
Omaha, Nebraska 68102-1506
Telephone [phone]
Fax [phone]
[e-mail]

United States v. Enterprise et al. Consent Decree Page 31.

FOR PLAINTIFF THE UNITED STATES OF

Date:

'--( ( 2..

(/2Regional Administrator
U.S. Environmental Protection Agency, Region 7

Date:

'if ¥J l...

DAVID COZAD
Regional Counsel
U.S. Environmental Protection Agency, Region 7

Date:
HOWARD BUNCH
Counsel
U.S. Environmental Protection Agency, Region 7
901 N. 51h Street
Kansas City, Kansas 66101

United States v. Entemrise et al. Consent Decree Page 32.

FOR THE PLAINTIFF UNITED STATES OF AM RICA (continued):

~

Date:

Administrator
f Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460

~.~11~

Acting Director
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460
~

Date:
Director
Water Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460
Date:

tift~

KE Y RANTNER
Water Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460

United States v. Enterprise et al. Consent Decree Page 33.

Date:

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Telephone:
Fax

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United States v. Enterprise et al. Consent Decree Page 34.

FOR DEFENDANT ENTERPRISE PRODUCTS OPERATING, L.L.C.

Date:

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Address: /10"

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United States v. Enterprise et al. Consent Decree Page 35.

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