{"operation":"document","citation":"CPF 120175015","title":"COLONIAL PIPELINE CO — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2017-07-25","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.505(a), 195.505(b).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120175015.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120175015.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120175015","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120175015","body":"Notice of Probable Violation involving COLONIAL PIPELINE CO. PHMSA's enforcement data identifies the cited regulations as 195.505(a),  195.505(b). The case was opened on 2017-07-25 and is reported as closed as of 2020-06-26. Proposed civil penalty: $50,100. Assessed civil penalty: $0. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120175015_Amended Final Order_08152019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_Amended%20Final%20Order_08152019.pdf\n\n120175015_Amended Final Order_08152019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_Amended%20Final%20Order_08152019_text.pdf\n\n120175015_Decision on Petition for Reconsideration_06262020.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_Decision%20on%20Petition%20for%20Reconsideration_06262020.pdf\n\n120175015_Decision on Petition for Reconsideration_06262020_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_Decision%20on%20Petition%20for%20Reconsideration_06262020_text.pdf\n\n120175015_Final Order_08052019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_Final%20Order_08052019.pdf\n\n120175015_Final Order_08052019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_Final%20Order_08052019_text.pdf\n\n120175015_NOPV PCP PCO_07252017.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_NOPV%20PCP%20PCO_07252017.pdf\n\n120175015_NOPV PCP PCO_07252017_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_NOPV%20PCP%20PCO_07252017_text.pdf\n\n120175015_Operator Petition for Reconsideration_09092019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_Operator%20Petition%20for%20Reconsideration_09092019.pdf\n\n120175015_Operator Post-Hearing Brief_03162018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_Operator%20Post-Hearing%20Brief_03162018.pdf\n\n120175015_Operator Pre-Hearing Brief_02122018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_Operator%20Pre-Hearing%20Brief_02122018.pdf\n\n120175015_Operator Request for Hearing and Response to Notice_10022017.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120175015/120175015_Operator%20Request%20for%20Hearing%20and%20Response%20to%20Notice_10022017.pdf\n\n120175015_Decision on Petition for Reconsideration_06262020_text.pdf\n\nJune 26, 2020\nVIA ELECTRONIC MAIL TO: jblount@colpipe.com\nMr. Joseph A. Blount, Jr.\nPresident and Chief Executive Officer\nColonial Pipeline Company, LLC\n1185 Sanctuary Parkway\nSuite 100\nAlpharetta, Georgia 30009\nRe: CPF No. 1-2017-5015\nDear Mr. Blount:\nEnclosed please find the Decision on the Petition for Reconsideration filed by Colonial Pipeline\nCompany, LLC in the above-referenced case. For the reasons explained therein, the Decision\ngrants your Petition for Reconsideration. This Decision constitutes the final administrative\naction in this preceding. Service of the Decision by electronic mail is deemed effective upon the\ndate of transmission, or as otherwise provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nPipeline Safety\nEnclosure\ncc: Mr. Robert Burrough, Director, Eastern Region, Office of Pipeline Safety, PHMSA\nMs. Catherine Little, Esq., Troutman Sanders, LLP, catherine.little@troutman.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\nIn the Matter of )\nColonial Pipeline Company, LLC, ) CPF No. 1-2017-5015\n)\n)\n)\nPetitioner. )\n____________________________________)\nDECISION ON PETITION FOR RECONSIDERATION\nOn August 15, 2019, the Pipeline and Hazardous and Materials Safety Administration (PHMSA)\nissued an Amended Final Order1 to Colonial Pipeline Company (Colonial or the Respondent), in\nconnection with a Notice of Probable Violation, Proposed Civil Penalty, and Proposed\nCompliance Order (NOPV) issued to the Respondent on July 25, 2017. The Amended Final\nOrder found that Colonial violated 49 C.F.R. Part 195.505(a) by failing to identify removal of a\ncasing as a covered task in its Operator Qualification (OQ) program; assessed a civil penalty of\n$29,300; and imposed a Compliance Order requiring corrective action within sixty (60) days.\nOn September 9, 2019, Colonial filed a Petition for Reconsideration2 of the Amended Final\nOrder requesting that PHMSA reconsider its sole finding that removal of a casing is an OQ\ncovered task. The Petitioner argued that the Amended Final Order was a novel interpretation of\nthe OQ regulations and impermissibly expanded upon prior enforcement precedent and agency\nguidance. It also argued that, for reasons of public policy, its Petition should be granted.\nColonial also requested that PHMSA stay the Compliance Order pursuant to 49 C.F.R. Part\n190.243(c), a request that the Associate Administrator granted on September 27, 2019.\nBackground\nDuring an inspection of field activities in Woodbine, Maryland, Office of Pipeline Safety (OPS)\ninspectors observed Colonial contractors removing a casing from Line 04 to examine an anomaly\non the pipeline. When asked for the qualification records of the contractors removing the casing,\nColonial stated that it did not consider removal of a casing to be a covered task and therefore this\nactivity was not included in its written operator qualification program.\n1 Colonial Pipeline Company LLC, Amended Final Order, CPF No. 1-2017-5015 (August 15, 2019) (Amended\nFinal Order). On August 5, 2019, a Final Order was issued that mistakenly omitted a paragraph. This error was\ncorrected and the Amended Final Order, referenced above, was issued on August 15, 2019.\n2 Petition for Reconsideration, dated September 9, 2019 (Petition).\n\n\n\nCPF No. 1-2017-5015\nPage 2\nOn July 25, 2017, PHMSA issued the NOPV, which alleged two violations, proposed a total civil\npenalty of $50,100, and proposed a compliance order with two requirements. Colonial filed a\ntimely Request for Hearing and participated in a hearing on February 20, 2018. On August 5,\n2019, PHMSA issued a Final Order3 that withdrew one item, upheld a finding of violation under\n49 C.F.R. Part 195.505(a), assessed a reduced civil penalty of $29,300, and required corrective\naction to ensure that removal of a casing was identified as a covered task in Colonial’s written\nqualification program within 60 days. Colonial submitted a timely Petition for Reconsideration\non September 9, 2019.\nIn its Petition, Colonial objected to the Final Order on the following grounds: that (1) no express\nlaw, enforcement precedent, guidance or industry standard identifies removal of a casing as a\ncovered task; and (2) this case was the first instance in which OPS had ever cited a pipeline\noperator for failure to identify removal of a casing as an OQ covered task.\nStandard of Review\nUnder 49 C.F.R. § 190.243, a respondent is afforded the right to petition the Associate\nAdministrator for reconsideration of a Final Order. However, that right is not an appeal or an\nopportunity to seek a de novo review of the record.4 It is a venue for presenting the Associate\nAdministrator with information that was not previously available or requesting that any errors in\nthe Final Order be corrected. Requests for consideration of additional facts or arguments must\nbe supported by a statement of reasons as to why those facts or arguments were not presented\nprior to the issuance of the Final Order. Repetitious information or arguments will not be\nconsidered.\nAnalysis\nIn this case, the Notice alleged that “Colonial failed to have and follow a written qualification\nprogram that identified removing a casing as a covered task on January 27, 2017, in accordance\nwith §195.505(a).”5 After reviewing the record in this case, I have determined that this case\nshould have proceeded as a Notice of Amendment directing Colonial to amend its OQ plan to\nindicate casing removal as a covered task. This decision is based on the specific circumstances\nof this case and does not broadly prohibit OPS from pursuing a Notice of Probable Violation in\nsimilar cases. Therefore, I am granting the Petitioner’s requested relief by withdrawing the\nfinding of violation in Item 1 of the August 15, 2019 Amended Final Order. The Compliance\nOrder is also withdrawn.\nRELIEF GRANTED\n3 This Final Order was amended on August 15, 2019. All references to the agency’s Final Order refer to the\nholding in the Amended Final Order.\n4 49 C.F.R. § 190.243(a)-(d).\n5 Notice, at 2.\n\n\n\nCPF No. 1-2017-5015\nPage 3\nBased on the information provided in the Petition, a review of the record, and for the reasons\nstated above, the relief sought in the Petition is granted and the finding of violation in Item 1 of\nthe August 15, 2019 Amended Final Order is withdrawn. The Compliance Order is also\nwithdrawn.\nThis Decision is the final administrative action in this proceeding.\nJune 26, 2020\n_____________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n120175015_NOPV PCP PCO_07252017_text.pdf\n\nNOTICE OF PROBABLE VIOLATION\nPROPOSED CIVIL PENALTY\nand\nPROPOSED COMPLIANCE ORDER\nOVERNIGHT EXPRESS DELIVERY\nJuly 25, 2017\nJohn W. Somerhalder\nInterim President and Chief Executive Officer\nColonial Pipeline Company, LLC\n1185 Sanctuary Parkway, Suite 100\nAlpharetta, GA 30009\nCPF 1-2017-5015\nDear Mr. Somerhalder:\nFrom January 23–26, 2017, representatives of the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA), Office of Pipeline Safety (OPS), pursuant to Chapter 601 of 49 United\nStates Code conducted a field verification inspection on field activities being performed by\nColonial Pipeline Company (Colonial) in relation to its Integrity Management Program (IMP) in\nWoodbine, Maryland. The PHMSA representatives also inspected Colonial’s Operations and\nMaintenance (O&M) procedures, IMP procedures, and Operator Qualification (OQ) records\nassociated with the field activities.\nPursuant to the Amended Corrective Action Order (ACAO) CPF No.: 1-2015-5018H, Colonial\nhad to review prior in-line inspection tool run results and integrate all data to determine if any\nfeatures with similar characteristics as the failed pipe are present elsewhere on its Line 04.1, 2 As a\nresult of the requirements, Colonial discovered an anomaly on a section of Line 04 (on the carrier\npipe inside a casing) located in Woodbine, Maryland, on March 23, 2016. Colonial’s IMP\n1 On October 22, 2015, PHMSA, OPS issued an ACAO to Colonial requiring it to take certain actions with respect\nto the failure of its Line 04 pipeline on September 21, 2015 in Centreville, VA (available at\nwww.phmsa.dot.gov/pipeline/enforcement).\n2 Line 04 is a hazardous liquid pipeline that runs from the Greensboro Tank Farm in Greensboro, North Carolina to\nthe Dorsey Tank Farm in Woodbine, Maryland.\n\n\n\nCPF 1-2017-5015\nclassified the anomaly as “4D-Anomalies that merit confirmation by visual inspection and in the\nopinion of the District and/or the Asset Integrity Team, do not represent immediate threats to pipe\nintegrity.” Colonial scheduled to visually inspect the anomaly the week of January 23, 2017.\nDuring the week of January 23, 2017, PHMSA representatives observed contractors excavate a\ncased section of Line 04 crossing under Fredrick Road (Route 144) near the town of Lisbon,\nMaryland (Dig #8). This section of Line 04:\n1. 2. 3. Is located in an area that could affect a high consequence area.\n3\nIs 32-inch diameter, 0.281 inch wall thickness, API-5L, and X52 pipe.\nHas a maximum operating pressure (MOP) of 649 pounds per square inch gauge (psig)\nPHMSA representatives also observed contractors prepare the 36-inch diameter casing on Line 04\nfor removal. The operating pressure ranged from 66 -74 psig at the time the casing was being\nremoved. The contractors cut:\n1. 2. 3. Longitudinally along each side of the casing, using a disc grinder and saw.\nAround to the top of the casing and then they removed the top half of the casing.\nAround to the bottom of the casing and then they removed the bottom half of the casing.\nAs a result of the inspection, it is alleged that Colonial has committed probable violations of the\nPipeline Safety Regulations, Title 49, Code of Federal Regulations. The items inspected and the\nprobable violations are:\n1. §195.505 Qualification program.\nEach operator shall have and follow a written qualification program. The\nprogram shall include provisions to:\n(a) Identify covered tasks;\nColonial failed to have and follow a written qualification program that identified removing a casing\nas a covered task on January 26, 2017, in accordance with §195.505(a).\nOn January 26, 2017, PHMSA representatives observed and photographed contractors cut and\nremove the casing on Line 04 to inspect an anomaly on the carrier pipe. During this inspection, a\nPHMSA representative requested to review its procedure for removing a casing. Colonial provided\nits Maintenance Procedure, CM-216, Rev.1 09/01/2016, Remove Casing (Procedure). The\nProcedure provided “instructions for removal of steel casing that is installed on section of line\npipe crossing under roads.” The Procedure also stated that the “purpose of removal work may be\nto facilitate examination, repair, relocation or improvement of the line pipe section.”\n3 High consequence area means (1) A commercially navigable waterway, which means a waterway where a substantial\nlikelihood of commercial navigation exists; (2) A high population area, which means an urbanized area, as defined\nand delineated by the Census Bureau, that contains 50,000 or more people and has a population density of at least\n1,000 people per square mile; (3) An other populated area, which means a place, as defined and delineated by the\nCensus Bureau, that contains a concentrated population, such as an incorporated or unincorporated city, town, village,\nor other designated residential or commercial area; (4) An unusually sensitive area, as defined in §195.6. See 49\nC.F.R. §195.450.\n120175015_NOPV PCP PCO_07252017_text Page 2 of 7\n\n\n\nCPF 1-2017-5015\nThe PHMSA representative also requested to review the OQ records for those contractors who\nremoved the casing. Colonial was unable to produce OQ records. Colonial explained that it follows\nAmerican Petroleum Institute, Recommended Practice for Pipeline Operator Qualification (API\nRP 1161) and that removal of casing is not a covered task.\nAPI RP 1161:\n1. Is not incorporated by reference for a regulation in 49 C.F.R. Part 195.\n2. Does not include an all-inclusive list of covered tasks. There could be additional tasks\nperformed on pipeline systems that meet the definition of a covered task that are not listed\nin said document.\nColonial is required to have a written qualification program that identifies and documents a\ncovered task as defined in §195.501. Section 195.501 defines a covered task as an activity that:\n1. 2. 3. 4. Is performed on a pipeline facility4\nIs an operation and maintenance task\nIs performed as a requirement of 49 C.F.R. Part 195; and\nAffects the operation or integrity of the pipeline (referred to as the “four-part test”).\nBased on the information above, removing a casing is considered to be a covered task because:\n1. 2. 3. It is performed on a pipeline facility;\nIt is done in the course of pipeline operation and maintenance activities;\nIt is performed as a requirement of 49 C.F.R. Part 195 (e.g. §§195.402(a) and (c); 195.422;\n195.452(b)(5) or 195.452(h)(3) which includes removing the casing on Line 04 to evaluate\nand possibly remediate the anomaly); and\n4. If not properly removed it will affect the operation or integrity of the pipeline.\nIn an e-mail dated March 10, 2017, Colonial confirmed that it did not consider removing a casing\nto be a covered task with regards to Dig #8 on January 26, 2017. In another e-mail dated March\n13, 2017, Colonial confirmed that its OQ program does not include “removing a casing” as a\ncovered task and it is not a part of another covered task.\nTherefore, Colonial failed to have and follow a written qualification program that included the\nidentification of removing a casing, which occurred at Dig #8 on January 26, 2017, as a covered\ntask, in accordance with §195.505(a).\n2. §195.505 Qualification program.\nEach operator shall have and follow a written qualification program. The\nprogram shall include provisions to:\n(a) …\n(b) Ensure through evaluation that individuals performing covered tasks are\nqualified;\n4 The term “pipeline facility” means new and existing pipe, rights-of-way and any equipment, facility, or building\nused in the transportation of hazardous liquids or carbon dioxide. See 49 C.F.R. §195.2\n120175015_NOPV PCP PCO_07252017_text Page 3 of 7\n\n\n\nCPF 1-2017-5015\nColonial failed to have and follow a written qualification program that ensured through evaluation\nthat individuals who performed the covered task of removing a casing on January 26, 2017 were\nqualified in accordance with §195.505(b). As defined in §195.503, qualified means the individuals\nhas been evaluated and can (a) performed the assigned covered tasks; and (b) recognize and react\nto abnormal operating condition.\nOn January 26, 2017, the PHMSA representative observed and photographed contractors cut and\nremove a casing on Line 4 to inspect an anomaly on the carrier pipe. During this inspection, a\nPHMSA representative requested to review the OQ records for the contractors who removed the\ncasing. Colonial was unable to produce OQ records showing that the contractors were qualified\nprior to or at the time of performing this covered task. Colonial explained that it follows American\nPetroleum Institute, Recommended Practice for Pipeline Operator Qualification (API RP 1161)\nand that removal of casing is not a covered task.\nAPI RP 1161:\n1. Is not incorporated by reference for a regulation in 49 C.F.R. Part 195.\n2. Does not include an all-inclusive list of covered tasks. There could be additional tasks\nperformed on pipeline systems that meet the definition of a covered task that are not listed\nin said document.\nColonial is required to have a written qualification program that identifies and documents a\ncovered task as defined in §195.501. Section 195.501 defines a covered task as an activity that:\n1. 2. 3. 4. Is performed on a pipeline facility5\nIs an operation and maintenance task;\nIs performed as a requirement of 49 C.F.R. Part 195; and\nAffects the operation or integrity of the pipeline (referred to as the “four-part test”).\nBased on the information above, removing a casing is considered to be a covered task because:\n1. 2. 3. It is performed on a pipeline facility;\nIt is done in the course of pipeline operation and maintenance activities;\nIt is performed as a requirement of 49 C.F.R. Part 195 (e.g. §§195.402(a) and (c); 195.422;\n195.452(b)(5) or 195.452(h)(3) which includes removing the casing on Line 04 to evaluate\nand possibly remediate the anomaly); and\n4. If not properly removed it will affect the operation or integrity of the pipeline.\nIn an e-mail dated February 27, 2017, the PHMSA representative requested that Colonial provide\na copy of the OQ records for removing the casing at Dig # 8. Colonial was unable to provide\nrecords. In another e-mail dated March 13, 2017, Colonial stated its OQ Program does not include\n“removing a casing” as a covered task so it does not have OQ records for a task that it does not\nhave in its OQ Program. Consequently, Colonial could not demonstrate that the contractors were\nqualified nor were directed and observed by an individual who was qualified for the covered task\nof removing a casing.\n5 The term “pipeline facility” means new and existing pipe, rights-of-way and any equipment, facility, or building\nused in the transportation of hazardous liquids or carbon dioxide. See 49 C.F.R. §195.2\n120175015_NOPV PCP PCO_07252017_text Page 4 of 7\n\n\n\nCPF 1-2017-5015\nTherefore, Colonial failed to ensure through evaluation that individuals who performed the\ncovered task of removing a casing at Dig #8 on January 26, 2017 were qualified in accordance\nwith §195.505(b).\nProposed Civil Penalty\nAs of April 27, 2017, under 49 U.S.C. § 60122 and 49 CFR § 190.223, you are subject to a civil\npenalty not to exceed $209,002 per violation per day the violation persists up to a maximum of\n$2,090,022 for a related series of violations. The Compliance Officer has reviewed the\ncircumstances and supporting documentation involved in the above probable violations and has\nrecommended that you be preliminarily assessed a civil penalty of $50,100 as follows:\nItem number PENALTY\n1 $50,100\nProposed Compliance Order\nWith respect to items 1 and 2 pursuant to 49 United States Code § 60118, the Pipeline and\nHazardous Materials Safety Administration proposes to issue a Compliance Order to Colonial\nPipeline Company. Please refer to the Proposed Compliance Order, which is enclosed and made\na part of this Notice.\nResponse to this Notice\nEnclosed as part of this Notice is a document entitled Response Options for Pipeline Operators in\nCompliance Proceedings. Please refer to this document and note the response options. All material\nyou submit in response to this enforcement action may be made publicly available. If you believe\nthat any portion of your responsive material qualifies for confidential treatment under 5 U.S.C.\n552(b), along with the complete original document you must provide a second copy of the\ndocument with the portions you believe qualify for confidential treatment redacted and an\nexplanation of why you believe the redacted information qualifies for confidential treatment under\n5 U.S.C. 552(b).\nFollowing the receipt of this Notice, you have 30 days to submit written comments, or request a\nhearing under 49 CFR § 190.211. If you do not respond within 30 days of receipt of this Notice,\nthis constitutes a waiver of your right to contest the allegations in this Notice and authorizes the\nAssociate Administrator for Pipeline Safety to find facts as alleged in this Notice without further\nnotice to you and to issue a Final Order. If you are responding to this Notice, we propose that you\nsubmit your correspondence to my office within 30 days from receipt of this Notice. This period\nmay be extended by written request for good cause.\nPlease submit all correspondence in this matter to Robert Burrough, Acting Director, PHMSA\nEastern Region, 820 Bear Tavern Road, Suite 103, West Trenton, NJ 08628. Please refer to CPF\n1- 2017-xxxx on each document you submit, and whenever possible provide a signed PDF copy\nin electronic format. Smaller files may be emailed to robert.burrough@dot.gov. Larger files should\nbe sent on a CD accompanied by the original paper copy to the Eastern Region Office.\n120175015_NOPV PCP PCO_07252017_text Page 5 of 7\n\n\n\nCPF 1-2017-5015\nAdditionally, if you choose to respond to this (or any other case), please ensure that any response\nletter pertains solely to one CPF case number.\nSincerely,\nRobert Burrough\nActing Director, Eastern Region\nPipeline and Hazardous Materials Safety Administration\nEnclosures: Proposed Compliance Order\nResponse Options for Pipeline Operators in Compliance Proceedings\n120175015_NOPV PCP PCO_07252017_text Page 6 of 7\n\n\n\nCPF 1-2017-5015\nPROPOSED COMPLIANCE ORDER\nPursuant to 49 United States Code § 60118, the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA) proposes to issue to Colonial Pipeline Company (Colonial) a\nCompliance Order incorporating the following remedial requirements to ensure the compliance of\nColonial with the pipeline safety regulations:\n1. 2. 3. 4. With regard to Item Number 1 of the Notice pertaining to Colonial’s failure to have\nand follow a written qualification (OQ) program that identified removing a casing\nas a covered task, Colonial must ensure any and all activities associated with\nremoving a casing on its pipeline facilities, which meet the four-part test, are\nidentified as a covered task in its written OQ program as prescribed in §195.505(a).6\nColonial must submit the related amendment(s) from its covered task list. Colonial\nmust also submit related documentation showing the method used to identify the\ncovered task.\nWith regard to Item Number 2 of the Notice pertaining to Colonial’s failure to have\nand follow a written qualification (OQ) program that ensured individuals were\nqualified to perform the covered task of removing a casing, Colonial must amend\nits written OQ program to ensure through evaluation that individuals who perform\nthe covered task(s) in the amended cover task list from the above item will be\nqualified as prescribed in §195.505(b). Colonial must submit the related\namendments from its written OQ program, which must include but not limited to:\nevaluation method and criteria; and evaluation for recognition and reaction to\nabnormal operating conditions.\nAll submissions must be provided within 60 days of receipt of the Final Order to\nRobert Burrough, Acting Director, Eastern Region, 820 Bear Tavern Road,\nSuite 103, West Trenton, NJ 08628.\nIt is requested (not mandated) that Colonial maintain documentation of the safety\nimprovement costs associated with fulfilling this Compliance Order and submit the\ntotal to Robert Burrough, Acting Director, Eastern Region, Pipeline and Hazardous\nMaterials Safety Administration. It is requested that these costs be reported in two\ncategories: 1) total cost associated with preparation/revision of plans, procedures,\nstudies and analyses, and 2) total cost associated with replacements, additions and\nother changes to pipeline infrastructure.\n6 A covered task is defined as an activity that (1) is performed on a pipeline facility; (2) is an operation and maintenance\ntask; (3) is performed as a requirement of Part 195; and (4) affects the operation or integrity of the pipeline (referred\nto as the “four-part test”). See 49 C.F.R. §195.501.\n120175015_NOPV PCP PCO_07252017_text Page 7 of 7\n\n120175015_Final Order_08052019_text.pdf\n\nAugust 5, 2019\nMr. Joseph A. Blount, Jr.\nPresident and Chief Executive Officer\nColonial Pipeline Company, LLC\n1185 Sanctuary Parkway\nSuite 100\nAlpharetta, GA 30009\nRe: CPF No. 1-2017-5015\nDear Mr. Blount:\nEnclosed is a Final Order issued in the above-referenced case. It makes a finding of violation,\nassesses a civil penalty of $29,300, and specifies actions that need to be taken by Colonial\nPipeline Company, LLC, to comply with the pipeline safety regulations. The penalty payment\nterms are set forth in the Final Order. When the civil penalty has been paid and the terms of the\ncompliance order completed, as determined by the Director, Eastern Region, this enforcement\naction will be closed. Service of the Final Order by certified mail is effective upon the date of\nmailing as provided under 49 C.F.R. § 190.5.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Robert Burrough, Director, Eastern Region, Office of Pipeline Safety, PHMSA\nMs. Catherine D. Little, Esq., Counsel for Colonial, 600 Peachtree Street N.E. Suite\n3000, Atlanta, GA 30308\nCERTIFIED MAIL - RETURN 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 )\nColonial Pipeline Company, LLC, ) CPF No. 1-2017-5015\n)\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nFrom January 23-26, 2017, pursuant to 49 U.S.C. § 60117, representatives of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),\nconducted an on-site pipeline safety inspection of the facilities and records of Colonial Pipeline\nCompany, LLC (Colonial or Respondent), in Woodbine, Maryland. Colonial’s system extends\nfrom Texas to New York and consists of more than 5,500 miles of pipeline.1\nAs a result of the inspection, the Director, Eastern Region, OPS (Director), issued to Respondent,\nby letter dated July 25, 2017, a Notice of Probable Violation, Proposed Civil Penalty, and\nProposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the Notice\nproposed finding that Colonial violated 49 C.F.R. § 195.505 and proposed assessing a civil\npenalty of $50,100 for the alleged violations. The Notice also proposed ordering Respondent to\ntake certain measures to correct the alleged violations.\nColonial responded to the Notice by letter dated October 2, 2017 (Response), contested all the\nallegations, and requested a hearing. A hearing was subsequently held on February 20, 2018 in\nWest Trenton, NJ with an attorney from the Office of Chief Counsel, PHMSA, presiding. At the\nhearing, Respondent was represented by counsel. After the hearing, Respondent provided a post-\nhearing statement for the record, by letter dated March 16, 2018 (Closing).\nFINDINGS OF VIOLATION\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.505(a), which states:\n§ 195.505 Qualification program.\nEach operator shall have and follow a written qualification program.\nThe program shall include provisions to:\n1 Colonial website, About Colonial, available at http://www.colpipe.com/home/about-colonial (last accessed\nDecember 18, 2018).\n\n\n\nCPF No. 1-2017-5015\nPage 2\n(a) Identify covered tasks;\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.505(a) by failing to have and\nfollow a written qualification program, which must include provisions to identify covered tasks.\nSpecifically, the Notice alleged that Colonial’s written qualification program failed to identify\nremoval of a casing as a covered task. “Cased” carrier pipes are routinely used by industry for\npipelines that cross under highways and railroads.\nAs noted above, OPS conducted both a field and office inspection of Colonial’s Line 04 in\nWoodbine, Maryland. During the field inspection, an OPS inspector observed Colonial\ncontractors removing casing from Line 04 to directly examine an anomaly. The OPS inspector\nrequested that Colonial provide its procedure for removal of a casing and the Operator\nQualification (OQ) records for the relevant contractors. Colonial provided its procedure, but\nstated that it follows American Petroleum Institute, Recommended Practice of Pipeline Operator\nQualification (API RP 1161) – and therefore does not consider removal of a casing to be a\n“covered task” requiring OQ.\nSubpart G of Part 195 (Qualification of Pipeline Personnel) defines a “covered task” and sets\nforth the requirements for the qualification of any individuals performing covered tasks on a\npipeline facility. For an activity to be considered a “covered task”, the task must meet four\ncriteria, commonly known as the “four-part test.” The task must: (1) be performed on a pipeline\nfacility; (2) be an operations or maintenance task; (3) be performed as a requirement of Part 195;\nand (4) affect the operation or integrity of the pipeline. To determine whether Colonial violated\n49 C.F.R. § 195.505(a), I must determine whether removal of a casing qualifies as a covered task\nunder the four-part test.\nAt the hearing, Colonial acknowledged that its written qualification program does not include\nremoval of a casing as a covered task. However, the Respondent argued that removal of a casing\nshould not qualify as a covered task because it fails to meet the third and fourth required\nelements of the four-part test.2 Colonial also argued that PHMSA has never considered this\nspecific activity as a covered task or, to its knowledge, have other operators. By issuing this\nenforcement action, Colonial argues that PHMSA is “impermissibly expand[ing] the relevant\nplain language of the [OQ] rule,” thereby regulating through enforcement and violating fair\nnotice, as required by the Administrative Procedure Act (APA).\nSince Colonial has conceded to the application of parts one and two, I will turn to parts three and\nfour, separately. As to part three, § 195.501(b)(3) requires that the activity be performed as a\nrequirement of Part 195. Colonial argues that there is no enumerated requirement in Part 195\nthat speaks to removal of a casing, and therefore part 3 is unmet. In support of this argument,\nColonial states that it knows of no other operator that identifies removal of a casing as a covered\ntask or vendor that provides OQ training for this specific activity.\nPart four of the four-part test requires that the task “must affect the operation or integrity of the\npipeline.” Colonial argued in its Closing that, in removing a casing, neither the operation nor the\n2 “Colonial acknowledges that the activity of removing a casing meets parts 1 and 2 of the four-part test. Colonial\ndoes not agree, however, that removal of a casing meets parts 3 or 4.” Closing, at 2.\n\n\n\nCPF No. 1-2017-5015\nPage 3\nintegrity of the pipeline itself is implicated, since neither the pipeline nor pipeline operations are\naffected. In my opinion, the pipeline would certainly be affected by removing a section of casing\nin an unsafe manner. In such a case, the operation or integrity of the carrier pipe would\nundoubtedly be called into question. Colonial already maintains a procedure for removal of a\ncasing because improper execution could affect the operation or integrity of the pipeline. This\nprocedure is driven by the necessity of following a standard operating procedure for a\ncommonplace activity. While maintenance of a procedure for a task is not dispositive of whether\nthe task should be covered or “affects the operation or integrity of the pipeline,” it can certainly\nbe considered as supportive evidence. Therefore, I consider the removal of a casing to be a task\nthat “affect[s] the operation or integrity of the pipeline.”\nAccordingly, after considering all the evidence and the legal issues presented, I find that\nRespondent violated 49 C.F.R. § 195.505(a) by failing to have and follow a written qualification\nprogram for identifying removal of a casing as a covered task.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.505(b), which states:\n§ 195.505 Qualification program.\nEach operator shall have and follow a written qualification program.\nThe program shall include provisions to:\n(b) Ensure through evaluation that individuals performing covered tasks\nare qualified;\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.505(b) by failing to have and\nfollow a written qualification program, which must include provisions to ensure through\nevaluation that individuals performing covered tasks are qualified. Specifically, the Notice\nalleged that Colonial failed to ensure that the individuals who removed the casing on January 26,\n2017, were qualified to perform that task.\nIn its Closing, Colonial argued that the welders performing the task, though not qualified on\n“removal of a casing” were qualified under various other welding tasks and therefore it should\nnot be penalized for failing to have OQ qualified contractors performing this task. OPS\ncountered, in its Region Recommendation, that the welding qualifications held by the contractors\n“did not involve the same processes or considerations that would be involved when removing a\ncasing.”3 I agree with OPS. As I discussed above, removal of a casing meets the requirements\nof the four-part test and should be considered a covered task (or part of another covered task).\nTherefore, there is no question that Colonial should ensure that individuals performing this task\nare qualified pursuant to a separate covered task “removal of a casing” or subsumed within\nanother covered task.\nNonetheless, I find that these violation items are “so closely connected that they overlap” and\n3 “Region Recommendation, 8.\n\n\n\nCPF No. 1-2017-5015\nPage 4\nthat a “single act occurred,” namely the failure to consider the removal of a casing as a covered\ntask.4 OPS Enforcement Procedures afford inspectors latitude in determining whether to pursue\na single or separate violation. However, in this case, I find the evidence in Items 1 and 2 to be so\nclosely related that Item 2 should be withdrawn. In fact, the evidence for Violations 1 and 2 in\nthe Violation report are identical.5\nAccordingly, after considering the evidence and the legal issues presented, I hereby order that\nItem 2 be withdrawn.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any\nrelated series of violations.6 In determining the amount of a civil penalty under 49 U.S.C.\n§ 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,\ncircumstances, and gravity of the violation, including adverse impact on the environment; the\ndegree of Respondent’s culpability; the history of Respondent’s prior offenses; any effect that\nthe penalty may have on its ability to continue doing business; and the good faith of Respondent\nin attempting to comply with the pipeline safety regulations. In addition, I may consider the\neconomic benefit gained from the violation without any reduction because of subsequent\ndamages, and such other matters as justice may require. The Notice proposed a total civil\npenalty of $50,100 for Item 1 cited above.\nItem 1: The Notice proposed a civil penalty of $50,100 for Respondent’s violation of 49 C.F.R.\n§ 195.505(a) for failing to have and follow a written qualification program, which must include\nprovisions to identify covered tasks. The Respondent presented a reasonable justification for its\nnon-compliance. While ultimately unpersuasive, Colonial held a genuine belief that this specific\nactivity did not meet the criteria of the four-part test. Therefore, I will afford it credit for good\nfaith. Accordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $29,300 for violation of 49 C.F.R. § § 195.505(a).\nPayment of the civil penalty must be made within 20 days of service. Federal regulations (49\nC.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through the Federal\nReserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed\ninstructions are contained in the enclosure. Questions concerning wire transfers should be\ndirected to: Financial Operations Division (AMK-325), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, 6500 S MacArthur Blvd, Oklahoma City, Oklahoma 79169.\nThe Financial Operations Division telephone number is (405) 954-8845.\n4 “Use caution before citing the same code section or subsection for more than one Item in a Notice of Probable\nViolation letter because if the Items are based on the same evidence, it may result in a single violation being\ninappropriately alleged as multiple violations.” Pipeline Safety Enforcement Procedures, 26.\n5 Violation Report, 6-7 and 14-15.\n6 These amounts are adjusted annually for inflation. See, 49 C.F.R. § 190.223; Revisions to Civil Penalty Amounts,\n83 Fed. Reg. 60732, 60744 (Nov. 27, 2018).\n\n\n\nCPF No. 1-2017-5015\nPage 5\nFailure to pay the $29,300 civil penalty will result in accrual of interest at the current annual rate\nin accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to\nthose same authorities, a late penalty charge of six percent (6%) per annum will be charged if\npayment is not made within 110 days of service. Furthermore, failure to pay the civil penalty\nmay result in referral of the matter to the Attorney General for appropriate action in a district\ncourt of the United States.\nCOMPLIANCE ORDER\nThe Notice proposed a compliance order with respect to Items 1 and 2 in the Notice for\nviolations of 49 C.F.R. §195.50","truncated":true,"body_characters":61303}