{"operation":"document","citation":"CPF 120181001","title":"TENNESSEE GAS PIPELINE COMPANY — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2018-02-12","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.616, 192.706.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120181001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120181001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120181001","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120181001","body":"Notice of Probable Violation involving TENNESSEE GAS PIPELINE COMPANY. PHMSA's enforcement data identifies the cited regulations as 192.616,  192.706. The case was opened on 2018-02-12 and is reported as closed as of 2019-11-26. Proposed civil penalty: $39,700. Assessed civil penalty: $39,700. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120181001_Closure Letter_11262019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_Closure%20Letter_11262019.pdf\n\n120181001_Closure Letter_11262019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_Closure%20Letter_11262019_text.pdf\n\n120181001_Final Order_11142019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_Final%20Order_11142019.pdf\n\n120181001_Final Order_11142019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_Final%20Order_11142019_text.pdf\n\n120181001_NOPV PCP PCO_02122018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_NOPV%20PCP%20PCO_02122018.pdf\n\n120181001_NOPV PCP PCO_02122018_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_NOPV%20PCP%20PCO_02122018_text.pdf\n\n120181001_Operator Post Hearing Brief_07252018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_Operator%20Post%20Hearing%20Brief_07252018.pdf\n\n120181001_Operator Pre-Hearing Submission_06042018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_Operator%20Pre-Hearing%20Submission_06042018.pdf\n\n120181001_Operator Request for Hearing and Preliminary Statement of Issues and Request For Documents_03152018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_Operator%20Request%20for%20Hearing%20and%20Preliminary%20Statement%20of%20Issues%20and%20Request%20For%20Documents_03152018.pdf\n\n120181001_Operator Response To Notice and Request For Hearing_Item 2_03152018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_Operator%20Response%20To%20Notice%20and%20Request%20For%20Hearing_Item%202_03152018.pdf\n\n120181001_PHC Hearing Scheduled_04172018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_PHC%20Hearing%20Scheduled_04172018.pdf\n\n120181001_PHC Hearing Scheduled_04172018_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120181001/120181001_PHC%20Hearing%20Scheduled_04172018_text.pdf\n\n120181001_Final Order_11142019_text.pdf\n\nNovember 14, 2019\nMs. Kimberly Allen Dang\nPresident\nKinder Morgan, Inc.\n1001 Louisiana Street, Suite 1000\nHouston, Texas 77002\nRe: CPF No. 1-2018-1001\nDear Ms. Dang:\nEnclosed please find the Final Order issued in the above-referenced case to your subsidiary,\nTennessee Gas Pipeline Company. It withdraws one of the allegations of violation, makes a\nfinding of violation, and assesses a civil penalty of $39,700. This is to acknowledge receipt of\npayment of the full penalty amount, by wire transfer dated March 15, 2018. This enforcement\naction is now 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.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Ms. Mary McDaniel, Director, Southwest Region, Office of Pipeline Safety, PHMSA\nMr. Kenneth Grubb, Chief Operating Officer, Tennessee Gas Pipeline Company,\n1001 Louisiana Street, Suite 1000, Houston, Texas 77002\nMs. Jessica Toll, Esq., Assistant General Counsel, Kinder Morgan, Inc., 370 Van\nGordon Street, Lakewood, Colorado 80228\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 )\nTennessee Gas Pipeline Company, ) CPF No. 1-2018-1001\na subsidiary of Kinder Morgan, Inc., )\n)\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nFrom May 9-11, 2017, pursuant to 49 U.S.C. §§ 60106 and 60117, representatives of the\nConnecticut Department of Energy and Environmental Protection, as agent for 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 Tennessee Gas\nPipeline Company (TGP or Respondent), in Connecticut. TGP operates approximately 11,750\nmiles of pipelines which run from the Gulf of Mexico coast in Texas and Louisiana through\nArkansas, Mississippi, Alabama, Tennessee, Kentucky, Ohio, and Pennsylvania and deliver gas\nto various states in the northeastern United States. Kinder Morgan, Inc. is the parent company of\nTGP.1\nAs a result of the inspection, the Director, Eastern Region, OPS (Director), issued to Respondent,\nby letter dated February 12, 2018, 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 TGP had committed two violations of 49 C.F.R. Part 192 and proposed\nassessing a civil penalty of $39,700 for one of the alleged violations. The Notice also proposed\nordering Respondent to take certain measures to correct the alleged violations.\nTGP responded to the Notice by letter dated March 15, 2018 (Response). TGP did not contest\nthe first alleged violation and paid the civil penalty for that item. TGP contested the second\nalleged violation and requested a hearing. A hearing was subsequently held on June 12, 2018, in\nWest Trenton, New Jersey before a PHMSA Presiding Official. At the hearing, Respondent was\nrepresented by counsel. Respondent provided additional written material prior to the hearing by\nletter dated June 4, 2018 (Prehearing Submission), and following the hearing by letter dated July\n26, 2018 (Post-hearing Submission). The Director submitted a region recommendation on\n1 Pipeline Safety Violation Report (Violation Report), (Feb. 12, 2018) (on file with PHMSA), at 1; Kinder Morgan,\nInc. website, available at https://www kindermorgan.com/business/gas pipelines/east/TGP (last accessed Oct. 9,\n2019).\n\n\n\nCPF No. 1-2018-1001\nPage 2\nJanuary 3, 2019 (Region Recommendation). TGP submitted a reply to the Director’s\nrecommendation on February 13, 2019 (Reply).\nFINDING OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 192, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 192.616(a), which states:\n§ 192.616 Public awareness.\n(a) Except for an operator of a master meter or petroleum gas system\ncovered under paragraph (j) of this section, each pipeline operator must\ndevelop and implement a written continuing public education program that\nfollows the guidance provided in the American Petroleum Institute's (API)\nRecommended Practice (RP) 1162 (incorporated by reference, see §192.7).\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.616(a) by failing to implement\ncertain elements of its written continuing public education program. Specifically, the Notice\nalleged that TGP failed to provide the program communications materials to the appropriate\npublic officials in 11 specified towns in accordance with its written procedures.\nRespondent did not contest this allegation of violation. Accordingly, based upon a review of all\nof the evidence, I find that Respondent violated 49 C.F.R. § 192.616(a) by failing to provide\nwritten public education program materials to the appropriate public officials in 11 towns in\naccordance with its written procedures.\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. § 192.706, which states:\n§ 192.706 Transmission lines: Leakage surveys.\nLeakage surveys of a transmission line must be conducted at intervals\nnot exceeding 15 months, but at least once each calendar year. However, in\nthe case of a transmission line which transports gas in conformity with\n§192.625 without an odor or odorant, leakage surveys using leak detector\nequipment must be conducted—\n(a) In Class 3 locations, at intervals not exceeding 7 ½ months, but at\nleast twice each calendar year; and\n(b) In Class 4 locations, at intervals not exceeding 4 ½ months, but at\nleast four times each calendar year.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.706 by failing to conduct\ntransmission line leakage surveys at intervals not exceeding 15 months, but at least once each\ncalendar year at four specified locations. Specifically, the Notice alleged that TGP’s aerial\n\n\n\nCPF No. 1-2018-1001\nPage 3\nleakage surveys, which among other things look for dead vegetation, should have been\nsupplemented with ground surveys where the pipeline crossed under a paved parking lot in each\nof the four locations.\nIn its Response and at the hearing, TGP argued that the plain language of the regulation does not\nrequire that an operator conducting leak detection on gas transmission lines using aerial surveys\nto also use ground surveys in paved areas the size of the specified parking lots.2 Respondent\nstated that the regulation is a performance-based rule that does not prescribe any particular\nmethod for conducting these leak surveys and an individual operator has the latitude to determine\nits leak survey method to be used, and that aerial patrolling had been used for decades on\nodorized lines.3\nTGP noted that under the Administrative Procedures Act (APA), a regulation must provide a\nregulated entity with “fair notice” of the obligations it imposes and be issued pursuant to notice\nand comment rulemaking.4 Quoting ExxonMobil Pipeline Co v. US. DOT, No. 16-60448, 2017\nUS. App. LEXIS 15144 (5th Cir. Aug. 14, 2017), TGP stated that “fair notice requires the\nagency to have stated with ascertainable certainty what is meant by the standards it has\npromulgated.\"5\nRespondent also argued that this citation was inconsistent with OPS’ past enforcement practices\ninvolving the leak detection regulation which raised additional fair notice issues. At the hearing,\nTGP stated:\n“If PHMSA wants to change its interpretation or adopt a new\ninterpretation, due process requires that there be notice and comment rule\nmaking and everybody be put on notice of the new interpretation. It seems\nlike we have a body of 30 years of agency guidance saying that aerial patrols\nare okay and then all of a sudden we get an NOPV…”6\nTGP also argued that the presence of an odorant is recognized under the code as impacting a\npipeline's need for other leak survey methods such as instrumented leakage surveys. In\n§ 192.706, additional methods such as surveys using leak detector equipment are only specified\nfor pipelines that \"transport gas...without an odor or odorant.\" Odorized pipelines require only a\nleakage survey once each calendar year at intervals not exceeding 15 months and the regulations\ndo not specify a method for accomplishing the survey. TGP argued that the administrative\nrecord of the original rulemaking that established the regulation at issue supported its position:\nIn the preamble to the final rule, PHMSA expressly stated that aerial\n2 Post-hearing submission, at 1.\n3 Post-hearing submission, at 2.\n4 5 USC § 554(b).\n5 Post-hearing submission, at 17.\n6 Hearing transcript, at 19.\n\n\n\nCPF No. 1-2018-1001\nPage 4\npatrols were sufficient when it said \"[n]either 192.705 nor 192.706 specifies\nhow patrols or leakage surveys are to be accomplished. The rules are written\nin performance language. Thus, for example, both aerial patrols and aerial\nleakage surveys would be acceptable where they are appropriate and\neffective.\" Final Rule, 40 Fed. Reg. 20279, 20282 (May 9, 1975), see\nExhibit 4 to TGP pre-hearing brief.\nPHMSA acknowledged the limitations of aerial patrols and yet did not\nstate that they were an unacceptable method of conducting leak surveys in\nareas with odorized gas. Specifically, the agency stated:\nOPS considers the use of leak detection\ndevices to provide the most satisfactory\nmeans of protection in the absence of\nodorization for the following reasons.\nWithout instruments, gas leaks are detected\nby sight, sound, smell or by dying vegetation.\nHowever, most leaks are not visible or\naudible, and without an odorant natural gas\ncannot be detected by smell. It follows that\nobserving vegetation is not always effective.\nThe effect of a gas leak on vegetation is only\nnoticeable during the growing season; and a\nleak must exist for a long time to have\nnoticeable effect on vegetation.\nIn contrast, PHMSA expressly required an alternative method to visual\naerial surveys for transmission lines in Class 3 and 4 locations with\nunodorized gas because \"to conduct leakage surveys [without odorized gas]\nwithout using detector equipment would not yield a level of safety\ncomparable to that provided by odorization of gas.\" The agency also states\nthat \" ... leakage surveys using leak detector equipment must be conducted\nunder 192.706 as an alternative safety measure except where gas is\nodorized ... \" Id. at 20283 (emphasis added).\nIt is particularly notable that the proposed rule would have required leak\ndetection equipment in Class 4 locations even where gas is odorized, but\nPHMSA revised its position in the final rule stating clearly, \"[t]he final rule\ndoes not require the use of detector equipment in Class 4 locations where\ntransmission lines carry odorized gas.\" Exhibit 4 to TGP Pre-hearing brief,\nFinal Rule, 40 Fed. Reg. 20282 (May 9, 1975).7\nOPS acknowledged that the regulation was a performance-based regulation, but stated that the\n7 Post-hearing submission, at 5.\n\n\n\nCPF No. 1-2018-1001\nPage 5\nmethod had to be effective.8 OPS cited a 2009 Letter of Interpretation which stated that\noperators could utilize aerial surveys only if they were effective and that determination should be\ninformed by factors including the time of year, weather conditions, ground visibility, soil\nconditions, and the location of the pipeline and that additional leakage survey methods would\npotentially be necessary in locations without vegetation cover.9 OPS argued that the aerial\nsurveys conducted by TGP were inherently ineffective at detecting leaks in paved areas because\nTGP’s own written procedures list the leak indicators that TGP personnel should be looking for\nwhile conducting leak surveys to include “signs of erosion,” “sunken backfill,” and “dead\nvegetation.”10 TGP disagreed, stating that OPS had no evidentiary basis that would support a\ndetermination that its leak detection method for the areas at issue were ineffective. TGP argued\nthat the available information was more consistent with a determination that its leak detection\nprogram was effective. TGP explained that there were numerous test points in the vicinity of the\nparking lots, and its personnel are trained to recognize gas leaks when they are performing\nelectrical checks, patrols or other duties on the pipeline and they would respond to any gas odors\ndetected.11 As a measure of its effectiveness, TGP stated that no leaks had ever been detected in\nthe four locations specified in the NOPV.12\nHaving considered these arguments, OPS is correct that a performance-based regulation must be\ncarried out in a manner that is effective in achieving the purpose. However, in the absence of a\nreason to believe that TGP’s method was ineffective, such as one or more leak incidents, it is\nOPS that has the burden of proof in showing that Respondent’s methods were not effective. The\n2009 Letter of Interpretation cited by OPS does not shift this burden in this proceeding. In the\ncontext of proving a code violation for ineffective leak detection where no leaks had occurred, it\nwas incumbent on OPS to demonstrate that underground migration patterns or other factors made\nRespondent’s method ineffective. OPS did not provide any technical analysis along these lines\nand no history of a leak incident was shown.\nOPS also argued that TGP had fair notice that parking lots were required to have supplemental\nleakage surveys by citing the Guide for Gas Transmission, Distribution, and Gathering Piping\nSystem (Addendum 8, 2017 to the 2015 Edition) (GPTC Guide).13 Although the GPTC Guide\nhas not been incorporated into the regulations, OPS views it as evidence of industry practices\nthat operators should be aware of. TGP countered that the reliance on guidance by OPS was\ninconsistent with the importance of notice and comment rulemaking, and that the Constitutional\nprincipal of due process and the Administrative Procedure Act limit the role that agency\n8 Hearing transcript, at 12.\n9 PHMSA Interpretation PI-09-0018 (Nov. 5, 2009) available at https://www.phmsa.dot.gov/regulations/title49/interp/PI-\n09-0018.\n10 Hearing transcript, at 57.\n11 Hearing transcript, at 34-35.\n12 Id.\n13 Region recommendation, at 8-9.\n\n\n\nCPF No. 1-2018-1001\nPage 6\nguidance can play.14 TGP also pointed out that reliance on guidance was inconsistent with\nExecutive Branch policy.15 TGP is correct that the GPTC Guide does not create an enforceable\nrequirement on when to conduct a survey other than a vegetation survey. TGP was also able to\nshow that other interpretive statements made by OPS were either agnostic on the method to be\nused or tended to support its argument that ground patrols for small paved areas had never been\nrequired in the past on odorized pipelines for which aerial patrolling of a vegetated right-of-way\nwas done.16\nDuring the hearing, OPS cited a Notice of Amendment that had been issued to another operator\nin accordance with § 190.206 and noted how that operator had amended its procedures to include\nsupplemental leak detection in paved areas.17 OPS stated that TGP’s written procedures “don’t\nspecify that in areas where there’s inadequate vegetation, that TGP would have to provide further\ninstruction on how to perform leak surveys…”.18 In this case, however, for whatever reason\nOPS elected not to allege that Respondent’s procedures were inadequate.19 To be sure,\nRespondent would probably be well served by enhancing its written procedures for addressing\nsmaller paved areas such as parking lots.20 Under the regulation that was cited in the Notice,\nhowever, an operator is not required to have any particular combination of methods for\nconducting leak surveys on an odorized pipeline.\nThe four parking lots specified in this case were of a size that held approximately 50-100 cars. If\naerial surveys of vegetation were being performed along a significant portion of a pipeline right-\nof-way where no vegetation was present anywhere in the vicinity at the time of the patrol such as\nhundreds of yards of fields in a non-growing season, it may well have been a violation for TGP\nnot to use leak detection methods other than aerial vegetation patrols. In this case, however,\nTGP was doing aerial patrols along a vegetated right-of-way during the season of growth. Based\non the text of the regulation, an operator in TGP’s position has no way of knowing how small a\npaved area crossing that right of way must be to avoid a citation. Operators would be left to\nwonder what OPS would do if the size of a given parking lot is less than 50-100 cars. There are\nalso driveways, recreation areas, structures, and walkways which are common along pipeline\nright of ways. Based on the very austere plain language of this one-sentence regulation, and in\nthe absence of any authoritative history of any pipeline operator being found in violation of the\n14 Post-hearing submission, at 6.\n15 Memorandum for all Components from the Attorney General, Subject: Prohibition on Improper Guidance\nDocuments, November 16, 2017. The Attorney General stated that: \"guidance may not be used as a substitute for\nrulemaking and may not be used to impose new requirements on entities outside the Executive Branch. Nor should\nguidance create binding standards by which the Department will determine compliance with existing regulatory or\nstatutory requirements.\"\n16 Hearing transcript, at 17-18.\n17 Hearing transcript, at 65.\n18 Hearing transcript, at 54.\n19 This would have involved citing § 192.605.\n20 OPS likely could have issued a Notice of Amendment under § 190.206 along these lines instead of an NOPV.\n\n\n\nCPF No. 1-2018-1001\nPage 7\ncited regulation under similar circumstances, I find that the use of an alleged violation of\n§ 192.706 to establish a new requirement for TGP on top of using aerial patrolling for a right-of-\nway containing ample vegetation that has small paved areas the size of the parking lots specified\nin this case is inconsistent with fair notice.\nAccordingly, after considering all of the evidence and the legal issues presented, I find that OPS\ndid not meet its burden of proving that TGP violated the cited regulation. Based upon the\nforegoing, I hereby order that this allegation 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.21 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 $39,700 for the first violation cited above.\nItem 1: The Notice proposed a civil penalty of $39,700 for Respondent’s violation of 49 C.F.R.\n§ 192.616(a) by failing to provide written public education program materials to the appropriate\npublic officials in eleven towns in accordance with its written procedures. TGP neither contested\nthe allegation nor presented any evidence or argument justifying a reduction in the proposed\npenalty. Having reviewed the record, I find that the assessment criteria for the Item cited above\nincluding nature, circumstances and gravity of the violation, Respondent’s culpability, history of\nprior violations, and any good faith attempts at compliance, are supported by the record.\nAccordingly, I assess Respondent a total civil penalty of $39,700, which amount was paid in full\nby wire transfer on March 15, 2018.\nCOMPLIANCE ORDER\nThe Notice proposed a compliance order with respect to Items 1 and 2 in the Notice for the\nalleged violations of 49 C.F.R. §§ 192.616(a) and 192.706. Under 49 U.S.C. § 60118(a), each\nperson who engages in the transportation of gas or who owns or operates a pipeline facility is\nrequired to comply with the applicable safety standards established under chapter 601. As\ndiscussed above, Item 2 has been withdrawn. Therefore, the compliance terms proposed in the\nNotice for that Item are not included in this Order. Pursuant to the authority of 49 U.S.C.\n§ 60118(b) and 49 C.F.R. § 190.217, Respondent is ordered to take the following actions to\n21 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223.\n\n\n\nCPF No. 1-2018-1001\nPage 8\nensure compliance with the pipeline safety regulations applicable to its operations:\n1. With respect to the violation of § 192.616(a) (Item 1), within 60 days following\nreceipt of this Order, Respondent must determine the required public official\nstakeholder group members for the 11 towns listed in the Notice, provide necessary\npublic awareness messages to those officials, and submit documentation of the\ncompletion of this requirement to the Director.\nThe Director may grant an extension of time to comply with the required item upon a written\nrequest timely submitted by the Respondent and demonstrating good cause for an extension.\nIt is requested (not mandated) that Respondent maintain documentation of the safety\nimprovement costs associated with fulfilling this Compliance Order and submit the total to the\nDirector. It is requested that these costs be reported in two categories: (1) total cost associated\nwith preparation/revision of plans, procedures, studies and analyses; and (2) total cost associated\nwith replacements, additions and other changes to pipeline infrastructure.\nFailure to comply with this Order may result in the administrative assessment of civil penalties\nnot to exceed $200,000, as adjusted for inflation (49 C.F.R. § 190.223), for each violation for\neach day the violation continues or in referral to the Attorney General for appropriate relief in a\ndistrict court of the United States.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nNovember 14, 2019\n___________________________________ _________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n120181001_NOPV PCP PCO_02122018_text.pdf\n\nNOTICE OF PROBABLE VIOLATION\nPROPOSED CIVIL PENALTY\nand\nPROPOSED COMPLIANCE ORDER\nOVERNIGHT EXPRESS DELIVERY\nFebruary 12, 2018\nMr. Kenneth Grubb\nChief Operating Officer\nTennessee Gas Pipeline Company\n1001 Louisiana Street, Suite 1000\nHouston, TX 77002\nCPF 1-2018-1001\nDear Mr. Grubb:\nFrom May 9-11, 2017, the Connecticut Department of Energy and Environmental Protection\n(CT DEEP) acting as Agent for the Pipeline and Hazardous Materials Safety Administration\n(PHMSA), Office of Pipeline Safety (OPS), pursuant to Chapter 601 of 49 United States Code\n(U.S.C.) inspected the Tennessee Gas Pipeline Company’s (TGP) records in Connecticut.\nAs a result of the inspection, it is alleged that you have committed probable violations of the\nPipeline Safety Regulations, Title 49, Code of Federal Regulations (CFR). The items inspected\nand the probable violation(s) are:\n1. § 192.616 Public Awareness.\n(a) Except for an operator of a master meter or petroleum gas system covered under\nparagraph (j) of this section, each pipeline operator must develop and implement a\nwritten continuing public education program that follows the guidance provided in\nthe American Petroleum Institute’s (API) Recommended Practice (RP) 1162\n(incorporated by reference, see § 192.7).\nTGP failed to implement its written continuing public education program. Specifically, TGP failed\nto follow its O&M 232 Procedures, Damage Prevention and Public Awareness, Revisions 2014-\n\n\n\nCPF 1-2018-1001\n01-01, 2015-07-01, 2016-06-01, 2016-09-01 (Procedures), Section 3.3, by not providing\ncommunication materials to Local Public Officials for 11 towns between 2012 and 2017.\nDuring the inspection, CT DEEP inspector reviewed TGP’s Procedures, and records of distribution\nof communication materials to Public Officials found in the Public Awareness Contact Report,\ndated 5/23/2017 (Records). The Procedures stated in part:\n“3.3.1 Communication Materials\nCommunication materials including brochures, maps and handouts to be delivered during\ncorporate and field contacts that incorporate appropriate messaging for each Stakeholder Group\nare included in the Public Awareness (PA) Tool Kit located on the PS website.\n…\n3.3.6 Public Officials\nLocal, state, or regional officials who are responsible for directing emergency preparedness\nactivities or who have land use and street/road jurisdiction within 10 miles of KM pipeline\nfacilities. Examples include the sub-groups listed below:\n City and county managers\n City and county council members\n Mayors\n Planning and development directors\n City and county public works directors\n State highway department district engineers\n Zoning board members\n3.3.6.1 Public Officials Corporate Responsibilities:\nCommunication materials shall be delivered in a manner consistent with the Corporate Public\nAwareness Program Appendix A Baseline Messages and Supplemental Enhanced activity\ndescribed in the Supplemental Enhanced Activities Section and Table 1 – Baseline and\nSupplemental Enhanced Activities requiring a communication response. The Company shall\ncommunicate with all Public Officials by e-mail or postal service.\nFor High Consequence Areas:\nCommunication materials shall be delivered in a manner consistent with the Corporate Public\nAwareness Program Appendix A Supplemental Messages and Supplemental Enhanced activity\ndescribed in the Supplemental Enhanced Activities Section and Table 1 – Baseline and\nSupplemental Enhanced Activities requiring a communication response. The Company shall\ncommunicate with all public officials by e-mail or postal service.\n…\n120181001_NOPV PCP PCO_02122018_text Page 2 of 6\n\n\n\nCPF 1-2018-1001\n3.3.8 Contact Information\nAudience Baseline Materials Baseline\nFrequency\nSupplemental Enhancement Opportunity\nPublic\nOfficials\nPA Tool Kit Public\nOfficials\nEvery 3 years Local field employee contact outside 3\nyear requirement\n”\nThe Records TGP provided indicated that communication materials were not distributed to Local\nPublic Officials in Bethany and Shelton, CT, through which TGP’s pipelines pass. The Records\nalso indicated that communication materials were not distributed to Local Public Officials in the\nfollowing 9 towns that TGP’s pipelines travel within 10 miles of:\n Colebrook, CT\n Cromwell, CT\n Durham, CT\n Middlefield, CT\n Middletown, CT\n Morris, CT\n Oxford, CT\n Plainville, CT\n South Windsor, CT\nTherefore, TGP failed to follow its Procedures by not providing communication materials to the\nLocal Public Officials for 11 towns within 10 miles of their pipeline system between 2012 and\n2017.\n2. § 192.706 Transmission Lines: Leak surveys.\nLeakage surveys of a transmission line must be conducted at intervals not exceeding\n15 months, but at least once each calendar year.\nTGP failed to conduct leakage surveys of a transmission line at intervals not exceeding 15 months,\nbut at least once each calendar year. Specifically, TGP utilized aerial vegetation leak surveys in\npaved areas where vegetation survey is ineffective at detecting leaks.\nDuring the inspection, the CT DEEP inspector reviewed TGP’s procedure for leak detection, O&M\n215, Patrolling and Leak Detection, Revised 2017-02-01 (Procedure), and TGP’s records of leak\nsurvey flights from 2015-2016 (Records). The Procedure stated in part:\n“3.5 …Conduct leakage surveys by walking, driving, flying or using a water vehicle. Note\non the inspection report any construction activity, signs of erosion or sunken backfill and\ndead vegetation indicating leaks.\n120181001_NOPV PCP PCO_02122018_text Page 3 of 6\n\n\n\nCPF 1-2018-1001\n2. 3. For pipelines that transport gas without an odor or odorant, use continuous gas monitoring\n(e.g. flame ionization, Remote Methane Leak Detector, or other leak detection equipment\napproved by the Technical Services Managers) equipment when:\n Surveying Class 3 and 4 areas\n Conducting leak surveys at highway and railroad crossings”\nThe procedures do not prescribe TGP to use another method (e.g. leak detection device) over areas\nwhere no vegetation is present (e.g. large paved areas, dead soil areas, etc.). The procedure\nprescribes visual observation (erosion and vegetation) to conduct leak surveys in all areas except\npipelines without an odor or odorant. The procedure does not provide further instruction on how\nto perform leak survey over areas where no vegetation exists.\nThe CT DEEP inspector observed various portions of TGP’s transmission line system that travel\nunder paved areas where no vegetation exists. The locations observed were:\n1. 41.111581, -73.538991: High Ridge Park, Stamford\na. Large paved parking lot\n41.312891, -73.047492: Hine Terrace, Derby\na. Paved parking lot and roadway\n41.561615, -72.870224: Meriden Waterbury Turnpike, Southington\na. Paved parking lot\n41.931458, -72.713970: Connecticut South Drive, Granby\na. Paved parking lot\nThe CT DEEP inspector asked TGP if other types of leak surveys were conducted at locations\nwhere no vegetation is present. TGP stated that they do not perform any instrumented leak surveys\nin these areas. The Records reviewed confirmed that these areas were leak surveyed using only\nvisual, aerial vegetation surveys.\nAerial vegetation survey is inadequate to perform leak surveys in areas where vegetation does not\nexist, such as these paved areas. Therefore, TGP failed to conduct leak surveys at intervals not\nexceeding 15 months, but at least once each calendar year in these paved areas.\nProposed Civil Penalty\nUnder 49 U.S.C. § 60122 and 49 CFR § 190.223, you are subject to a civil penalty not to exceed\n$209,002 per violation per day the violation persists, up to a maximum of $2,090,022 for a related\nseries of violations. For violations occurring prior to November 2, 2015, the maximum penalty\nmay not exceed $200,000 per violation per day, with a maximum penalty not to exceed $2,000,000\nfor a related series of violations. The Compliance Officer has reviewed the circumstances and\nsupporting documentation involved in the above probable violation(s) and has recommended that\nyou be preliminarily assessed a civil penalty of $39,700 as follows:\n4. 120181001_NOPV PCP PCO_02122018_text Page 4 of 6\n\n\n\nCPF 1-2018-1001\nItem number PENALTY\n1 $39,700\nProposed Compliance Order\nWith respect to item(s) 1 and 2 pursuant to 49 U.S.C. § 60118, the Pipeline and Hazardous\nMaterials Safety Administration proposes to issue a Compliance Order to Tennessee Gas Pipeline\nCompany. Please refer to the Proposed Compliance Order, which is enclosed and made a part of\nthis 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, Director, PHMSA Eastern\nRegion, 820 Bear Tavern Road, Suite 103, West Trenton, New Jersey 08628. Please refer to\nCPF 1-2018-1001 on each document you submit, and whenever possible provide a signed PDF\ncopy in electronic format. Smaller files may be emailed to robert.burrough@dot.gov. Larger files\nshould be sent on a CD accompanied by the original paper copy to the Eastern Region Office.\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\nDirector, Eastern Region\nPipeline and Hazardous Materials Safety Administration\nEnclosures: Proposed Compliance Order\nResponse Options for Pipeline Operators in Compliance Proceedings\n120181001_NOPV PCP PCO_02122018_text Page 5 of 6\n\n\n\nCPF 1-2018-1001\nPROPOSED COMPLIANCE ORDER\nPursuant to 49 United States Code § 60118, the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA) proposes to issue to Tennessee Gas Pipeline Company (TGP) a\nCompliance Order incorporating the following remedial requirements to ensure the compliance of\nTGP with the pipeline safety regulations:\n1. 2. 3. 4. 5. 6. In regard to Item Number 1 of the Notice pertaining to § 192.616, TGP shall\ndetermine required Public Official stakeholder group members for the 11 towns\nlisted and provide necessary public awareness messages within 60 days of receipt\nof the Final Order.\nTGP shall provide PHMSA record of the distribution of the messages in Number 1\nabove within 60 days of receipt of the Final Order.\nIn regard to Item Number 2 of the Notice pertaining to § 192.706, TGP shall revise\nits procedures for leak survey to address methods of survey for areas where\nvegetation survey is not an effective method of detecting leaks. TGP shall provide\nPHMSA the revised procedures for review within 60 days of receipt of the Final\nOrder.\nWithin 60 days of PHMSA’s acceptance of the revised procedures in Number 3\nabove, TGP must then apply those procedures to conduct effective leak surveys for\nall locations along jurisdictional pipeline segments operated by TGP where\nvegetation survey is not an effective method of detecting leaks.\nUpon request, TGP shall provide records indicating the completion of the leakage\nsurveys in Number 4 above.\nIt is requested (not mandated) that TGP maintain documentation of the safety\nimprovement costs associated with fulfilling this Compliance Order and submit the\ntotal to Robert Burrough, 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.\n120181001_NOPV PCP PCO_02122018_text Page 6 of 6\n\n120181001_PHC Hearing Scheduled_04172018_text.pdf\n\nApril 17, 2018\nVIA CERTIFIED MAIL AND EMAIL TO: Jessica Toll@kindermorgan.com and\nrobert.burrough@dot.gov\nMs. Jessica Toll, Esq.\nCounsel for Tennessee Gas Pipeline Company, LLC\nKinder Morgan, Inc.\n370 Van Gordon Street\nLakewood, CO 80228\nMr. Robert Burrough\nActing Director, Eastern Region\nPipeline and Hazardous Materials Safety Administration\n820 Bear Tavern Road, Suite 103\nWest Trenton, NJ 08628\nRe: Notice of Hearing, Tennessee Gas Pipeline Company, LLC\nCPF No. 1-2018-1001\nDear Ms. Toll and Mr. Burrough:\nIn accordance with 49 C.F.R. § 190.211, an informal hearing will be held regarding the Notice of\nProbable Violation, Proposed Civil Penalty, and Proposed Compliance Order issued to Tennessee\nGas Pipeline Company, L.L.C. by the Office of Pipeline Safety in the above-referenced case. The\nhearing will take place June 12, 2018, beginning at 12:30 p.m. Eastern Time.\nThe hearing will be at the PHMSA Eastern Region office, 820 Bear Tavern Road, Suite 103, West\nTrenton, NJ 08628. Upon arrival at the building, attendees will be required to present photo\nidentification to security personnel. A contact phone number for the day of the hearing is (609)\n989-2171.\nAt least 10 calendar days prior to the hearing (or by June 4, 2018), both parties must submit and\nexchange any additional written materials they intend to present at the hearing and a list of\nattendees. This information should be provided electronically. Materials not submitted by this date\nmay be excluded. If you have any questions, please do not hesitate to call me at (202) 366-9093.\nSincerely,\nLarry White\nPresiding Official\n\n\n\ncc: CPF No. 1-2018-1001\nPage 2\nMr. Kenneth W. Grubb, Chief Operating Officer, Tennessee Gas Pipeline Company, LLC,\n1001 Louisiana Street, Suite 1000, Houston, TX 77002\nMs. Y. Ajoke Agboola, Counsel, Eastern Region, Office of Pipeline Safety, PHMSA\n\n120181001_Closure Letter_11262019_text.pdf\n\nOVERNIGHT EXPRESS","truncated":true,"body_characters":40929}