{"operation":"document","citation":"CPF 320081005","title":"SOUTHERN STAR CENTRAL GAS PIPELINE, INC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2008-12-12","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.203(b)(9), 192.227(a), 192.625, 192.751.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320081005.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320081005.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320081005","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320081005","body":"Notice of Probable Violation involving SOUTHERN STAR CENTRAL GAS PIPELINE, INC. PHMSA's enforcement data identifies the cited regulations as 192.203(b)(9),  192.227(a),  192.625,  192.751. The case was opened on 2008-12-12 and is reported as closed as of 2011-10-21. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320081005_ Final Order_10212011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320081005/320081005_%20Final%20Order_10212011_text.pdf\n\n320081005_Final Order_10212011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320081005/320081005_Final%20Order_10212011.pdf\n\n320081005_NOPV PCO_12122008.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320081005/320081005_NOPV%20PCO_12122008.pdf\n\n320081005_nopv pco_12122008_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320081005/320081005_nopv%20pco_12122008_text.pdf\n\n320081005_Operator_Response_and_Request_for_Hearing_01052009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320081005/320081005_Operator_Response_and_Request_for_Hearing_01052009.pdf\n\n320081005_ Final Order_10212011_text.pdf\n\nOCT 21 2011\nMr. Robert S. Bahnick\nSenior Vice President\nOperations and Technical Services\nSouthern Star Central Gas Pipeline, Inc.\n4700 Highway 56\nP.O. Box 20010\nOwensboro, Kentucky 42301\nRE: CPF No. 3-2008-1005\nDear Mr. Bahnick:\nEnclosed please find the Final Order issued in the above-referenced case. It withdraws one\nallegation of violation and issues a warning to Southern Star Central Gas Pipeline, Inc., with\nrespect to three other alleged violations. This case is now closed. Service of the Final Order by\ncertified mail is deemed effective upon the date of mailing, or as otherwise provided under 49\nC.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety\nMr. Dave Barrett, Central Region Director, PHMSA\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED [7005 1160 0001 0075 9633]\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\n)\nIn the Matter of )\n)\nSouthern Star Central Gas Pipeline, Inc., ) CPF No. 3-2008-1005\n)\nRespondent. )\n___________________________________ )\nFINAL ORDER\nFrom June to August 2008, pursuant to 49 U.S.C. § 60117, a representative 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 the Welda Unit, a\nnatural gas pipeline system operated by Southern Star Central Gas Pipeline, Inc. (Southern Star\nor Respondent), a subsidiary of Southern Star Central Corporation, in the State of Kansas.\n1\nAs a result of that inspection, the Director, Central Region, OPS (Director), issued to Southern\nStar, by letter dated December 12, 2008, a Notice of Probable Violation and Proposed\nCompliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed\nfinding that Southern Star had violated 49 C.F.R. § 192.625. The Notice also proposed ordering\nRespondent to take certain measures to correct one of the alleged violations, and warning\nRespondent to take appropriate corrective action or be subject to future enforcement action.\nSouthern Star responded to the Notice by letter dated January 5, 2009 (Response). Respondent\ncontested one of the allegations, offered additional information in response to the Notice, and\nrequested a hearing. A hearing was subsequently held on April 22, 2009, at the PHMSA Central\nRegion Office in Kansas City, Missouri, with an attorney from the Office of Chief Counsel,\nPHMSA, presiding. After the hearing, Southern Star submitted a Post-Hearing Brief, dated\nApril 30, 2009 (Brief), and additional evidence for the record.\n1 The Welda Unit is part of Southern Star’s 6,000-mile network of natural gas pipelines and related facilities in the\nMidwest, including Wyoming, Nebraska, Kansas, Missouri, Kentucky, Colorado, Texas, and Oklahoma.\nhttp://www.sscgp.com/aboutus (last accessed August 5, 2010).\n\n\n\n2\nFINDINGS OF VIOLATION\nItem 3: The Notice alleged that Southern Star violated 49 C.F.R. § 192.625, which states, in\nrelevant part:\n§ 192.625 Odorization of gas.\n(a) A combustible gas . . . must contain a natural\nodorant or be odorized so that at a concentration in air of one-fifth of the\nlower explosive limit, the gas is readily detectable by a person with a\nnormal sense of smell.\n(b) After December 31, 1976, a combustible gas in a transmission line\nin a Class 3 or Class 4 location must comply with the requirements of\nparagraph (a) of this section unless:\n(1) At least 50 percent of the length of the line downstream from that\nlocation is in a Class 1 or Class 2 location;\n(2) . . . .\n(3) In the case of a lateral line which transports gas to a distribution\ncenter, at least 50 percent of the length of that line is in a Class 1 or Class\n2 location;\nThe Notice alleged that Southern Star violated § 192.625(b) by failing to odorize the natural gas\nin a transmission line in the Welda Unit. Specifically, the Notice alleged that Respondent had\nnot injected any odorant into the DW-003 “lateral line,\n” a 1.83-mile pipeline segment in a Class\n3 location. The Notice further stated that less than 50% of the length of that line was in a Class 1\nor Class 2 location; therefore, the exception in § 192.625(b)(3) did not apply.\nIn its Response, Southern Star contested the alleged violation, arguing that the exception in\n§ 192.625(b)(3) applied to the DW-003.\nApril 2009 Hearing\nTwo witnesses testified on Southern Star’s behalf at that hearing: Mr. David Sinclair, the\ncompany’s Manager of Pipeline Compliance, and Mr. John S. Zurcher, an independent\nconsultant and the author of a report, entitled “Report on the Requirements to Conduct\nOdorization of Gas,” which Southern Star had used as foundation for its odorization program\n(Zurcher Report). OPS offered the testimony of Mr. Ivan Huntoon, the former Director of the\nCentral Region, PHMSA, and Mr. Hans Shieh, the OPS employee who had performed the\ninspection of the Welda Unit.\nMr. Sinclair testified that, in his view, the DW-003 lateral line did not require odorant under\n§ 192.625(b)(3). He noted that his position was consistent with the opinions rendered in the\nZurcher Report, and bolstered by the fact that the DW-003 line connects with another pipeline\nnot owned or operated by Southern Star, which transports natural gas for several more miles\ndownstream before reaching a distribution center. Mr. Sinclair also stated that the sole reason\nfor the odorization requirement was leak detection, and that this objective could be accomplished\non transmission lines without using odorant, e.g., by performing periodic leak surveys and\nrelying on the public’s ability to see and hear leaks.\n\n\n\n3\nMr. Zurcher’s testimony focused on several alleged inadequacies in the odorization regulation\nand OPS’s application of that regulation to the DW-003 line. Specifically, he testified that (1)\nthere was no definition for “lateral line” or “distribution center” in 49 C.F.R. Part 192; (2) the\nDW-003 line did not terminate at a distribution center; (3) OPS used the term “branch line” in\nthe compliance order portion of the Notice, which was also not defined in 49 C.F.R. Part 192; (4)\nodorization was not the only means of detecting natural gas leaks on transmission lines; (5)\nPHMSA had never established a clear policy on applying the odorization requirement; (6) OPS’s\ninterpretation was impracticable and unduly expensive; and (7) PHMSA’s various Regional\nOffices would not be capable of consistently applying such an interpretation.\nMr. Zurcher also discussed the methodology used in his report. He explained that he had defined\na lateral line in that report as:\n[A] transmission line that branches off a main line or another lateral line to\nconnect a gathering system or source of supply; or which connects a main line or\nanother lateral line to a distribution center, or a direct connect to an end user not\nconnected to a distribution center. A lateral line does not have compression other\nthan for peak shaving or other temporary purposes and in no case does the\ncompression operate more than 45 days per year. A lateral line extends beyond\nthe limits of a circle with a radius of 300 feet, from the point where it ties into a\nmain line or other lateral line.2\nMr. Zurcher then described how his interpretation of the odorization requirement would apply to\nthree hypothetical pipeline systems, concluding in each instance that odorant would not be\nrequired. He also sought to demonstrate the impracticability of OPS’s position by applying it to\nfive theoretical modifications of the pipelines in the Welda Unit.\nMr. Huntoon, the former Director of the Central Region, defended the violation as alleged in the\nNotice. He also questioned some of the assumptions in the Zurcher Report, particularly the\nauthor’s conclusions that the odorization regulation should be applied at the farthest possible\npoint upstream and that a lateral line should be defined so as to maximize the number of covered\npipeline segments. The Director stated that, in his view, public safety required that the\nodorization regulation be applied to a natural gas pipeline system in a far more conservative\nmatter, i.e., from the farthest possible point downstream, on a lateral-by-lateral basis. Counsel\nfor OPS also noted that the Pipeline Glossary on PHMSA’s website included a definition for the\nterm lateral: “a segment of a pipeline that branches off the main or transmission line to a tank\nline or metering station.”3\n2 Mr. Zurcher noted that his definition of lateral line sought to draw a distinction between the terms “main line” and\n“lateral line,” both of which are considered “transmission lines” under Part 192. He also stated that he used the term\n“distribution system” instead of “distribution center,” a term not defined in Part 192, to “add clarity of intent.” Mr.\nZurcher explained that his definition “helps to clarify the difference between main line and lateral line.” Finally, he\nstated that he “added a measurable length” of 300 feet (the smallest distance used in 49 C.F.R. § 192.5 to determine\na Class Location) to the last part of his definition to exclude taps from being considered as lateral lines.\n3 PHMSA Pipeline Safety Program, Stakeholder Communications, Pipeline Glossary,\nhttp://primis.phmsa.dot.gov/comm/glossary/index.htm?nocache=7616#Lateral (last accessed July 30, 2009).\n\n\n\n4\nPost-Hearing Brief\nIn its Brief, Southern Star stated that its dispute with OPS was “much larger than that [of] one\nlateral.”4 According to Respondent, “[i]t [wa]s the very definition of lateral, or rather the LACK\nof definition in the regulations [sic] of lateral, that [wa]s the significant issue.”5\nTo prove its point, Southern Star criticized the Pipeline Glossary’s definition of a lateral, stating\nthat it “seem[ed] to apply MORE to liquid lines than to natural gas lines,\n” that it “appear[ed]\nNOT in the regulations but in the [PHMSA] Glossary, [which was] generally adapted for the\ngeneral public as informational,\n” and that it was on a website that is “generally [not] reviewed by\nthe industry, particularly in these matters.”6 Accordingly, Southern Star argued that using the\nPipeline Glossary definition as a point of reference would be “inequitable . . . given its less than\neven qualify as a lateral under the Pipeline Glossary’s definition, because it did not terminate at a\npublic knowledge of availability.”7 Respondent further noted that the DW-003 line would not\ndistribution center or metering station.\nSouthern Star also stated that the DW-003 line would not need to be odorized under the\nAmerican Gas Association’s definition of a lateral, “a pipe in a . . . transmission system which\nbranches away from the central and primary part of the system.\n”8 Southern Star further\nexplained that its decision not to odorize the DW-003 was “consistent with the express intent of\nOPS” in adopting the (b)(3) lateral exception, namely,\n“to avoid odorization costs for certain\nsegments of pipe.\n”9\nIn closing, Southern Star argued that “it ha[d] been painted as a probable violator when, in fact, it\nha[d] gone above what many have done in attempting to garner outside help in interpreting the\napplicable regulations.\n”10 Respondent, therefore, requested that Item 3 of the Notice be\nwithdrawn.11\n4 Post-Hearing Brief at 2.\n5 Id.\n6 Id. at 3.\n7 Id.\n8 Id.\n9 Id. at 4.\n10 Id. at 6.\n11 Southern Star also requested that PHMSA initiate a new rulemaking proceeding to repeal and replace the current\nodorization regulation. If Southern Star wishes to obtain further action on that request, it must file a petition for\nrulemaking under 49 C.F.R. § 190.331.\n\n\n\n5\nAnalysis\nBecause the release of a combustible gas is a risk to public safety, particularly in populated areas,\n§ 192.625(b) requires that transmission lines in Class 3 or Class 4 locations contain a natural\nodorant or be odorized. However, odorant is not required if “[a]t least 50 percent of the length of\nthe line downstream from that location is in a Class 1 or Class 2 location.” Odorant is also not\nrequired “in the case of a lateral line which transports gas to a distribution center,” if “at least 50\npercent of the length of that line is in a Class 1 or Class 2 location.”\nAfter the record closed in this case, I issued a decision that clarified the scope of the latter\nexception. Specifically, I found that a lateral line is a pipeline segment which terminates at a\ndistribution center and originates at the first upstream connection with another transmission\nline.12 I also provided the following illustration of that determination:\nFigure 1: Identification of laterals for purposes of § 192.625(b)(3).\nConsistent with that decision and contrary to Respondent’s contentions, § 192.625(b)(3) is not\ndesigned so that successive segments of pipeline can be operated without odorant. It is meant to\nensure that certain “short” pipeline segments—i.e., those near the end of transmission lines in\npredominantly rural areas—are not subject to that requirement.\n13\nIt should also be noted that\n12 In the Matter of ANR Pipeline Company (ANR), Final Order, CPF No. 3-2007-1006, p. 7 (Dec. 4, 2009), aff’d by\nDecision on Petition for Reconsideration, CPF No. 3-2007-1006, pp. 4-12 (Dec. 30, 2010) (available at\nwww.phmsa.dot.gov/pipeline/enforcement).\n13 In the preamble to the final rule that adopted the odorization regulation, PHMSA included the following relevant\ndiscussion on the intent of the lateral-line exception:\nAnother problem raised by commenters is that most lateral transmission lines serving distribution\ncenters from interstate transmission lines are predominantly in Class 1 or Class 2 locations. In\nthese cases, the terminal portion of a lateral line generally lies in a Class 3 or Class 4 location and\n\n\n\n6\nPHMSA’s predecessor agency considered, and rejected, all of Southern Star’s arguments about\nthe need to use odorant as a leak detection measure in transmissions lines more than 30 years\nago,\n14 and that the Zurcher Report’s definition of a lateral line also incorporates a number of\nfactors and other criteria that are not listed in the odorization regulation, including the use of\ncompression, number of operating days, and a minimum-length requirement.\n15\nNevertheless, the evidence of record is not sufficient to sustain the allegation of violation.\napply the lateral line exception in § 192.625(b)(3), the record must contain information about the\ndistance and class location(s) from the distribution center to the first upstream connection. Only\npart of that information is available in this case. Specifically, the record indicates that the DW-\n003 is a 1.83-mile pipeline segment situated entirely in a Class 3 location. It also indicates that\n16 To\nunder the proposed rule would be subject to the odorization requirement. Because in most cases\nthe segment of line to be odorized is short, commenters argued that the cost of installing and\noperating odorizers would far exceed the safety benefit. OPS agrees with these comments. The\nfinal rule, therefore, in § 192.625(b)(3) exempts odorization of gas in a transmission line used in\ntransporting gas to a distribution center if 50 percent or more of the line is in a Class 1 or Class 2\nlocation.\nDepartment of Transportation, Office of Pipeline Safety, Odorization of Gas in Transmission Lines, 40 Fed. Reg.\n20279, 20281 (May 9, 1975).\n14 In an August 1973 notice of proposed rulemaking, OPS cited the results of a recently-completed study and stated\nthat:\nIn the transmission lines of those operators who odorize gas, a number of leaks have been located\nthrough odorization. The fact of such results refutes any contentions that odorization is\nappropriate only for distribution mains and service lines and that high pressure leaks are detectable\nonly by other means. Odorization allows the early detection of leaks and does not limit detection\nto company employees. In a number of cases, odorization led to discovery of leaks that would not\nhave been disclosed until later by the means normally used.\nOffice of Pipeline Safety, Gas in Transmission Lines, Odorization Requirements, 38 Fed. Reg. 22044 (Aug. 15,\n1973). Similarly, in a May 1975 final rule, OPS noted that some “commenters restated conventional opinions that\nodorization does not enhance the detection of leaks in transmission lines and that normal odorization is ineffective in\nopen air.” Department of Transportation, Office of Pipeline Safety, Odorization of Gas in Transmission Lines, 40\nFed. Reg. 20279, 20280 (May 9, 1975). OPS responded by stating that “[o]n these latter points, . . . the record is\nclear—a large number of gas leaks, including leaks on transmission lines, have been detected by people smelling\nodorant in open air.” Id.\n15 Southern Star’s lack of ownership or control over the downstream pipeline segment that actually terminates at the\ndistribution center is not relevant to whether the DW-003 must be odorized. See Ross Marsh Foster Myers &\nQuiggle, #PI-91-038 (Dec. 26, 1991) (available at http://www.phmsa.dot.gov/pipeline/regs/interps) (noting that non-\nownership of pressure control devices does not excuse a regulated pipeline operator’s responsibility for complying\nwith Parts 192 and 195).\n16 OPS bears the burden of proof in an enforcement action and must prove, by a preponderance of the evidence, that\nall of the elements of a violation exist. In the Matter of Alyeska Pipeline Service Co., Decision on Reconsideration,\nCPF No. 5-2005-5023, p. 4-5 (Dec. 16, 2009); In the Matter of Butte Pipeline Co., Final Order, CPF No. 5-2007-\n5008, p. 2, n. 3 (Aug. 17, 2009)\n(http://primis.phmsa.dot.gov/comm/reports/enforce/documents/520075008/520075008_Final%20Order_08172009.p\ndf?nocache=1644; see Schaeffer v. Weast, 546 U.S. 49, 56-58 (2005).\n\n\n\n7\nthe DW-003 connects with another pipeline that transports gas to a distribution center, but does\nnot contain any specific information about length and class location(s) of that downstream line.\nWithout such information, a determination cannot be made as to whether or not the DW-003 line\nis part of a “lateral line” and, if so, whether the DW-003 must be odorized under 49 C.F.R.\n§ 192.625(b)(3). Accordingly, I am withdrawing Item 3 of the Notice and the Compliance Order\nwithout prejudice.\nWARNING ITEMS\nWith respect to Items 1, 2, and 4, the Notice alleged probable violations of Part 192, but did not\npropose a civil penalty or compliance order for these items. Therefore, these are considered to\nbe warning items. The warnings were for:\n49 C.F.R. § 192.203 (Item 1) — Southern Star installed its fuel gas regulators at\nthe Hugoton, Ottawa, and Americus compressor stations in a manner that\npermitted the control lines for the operator and monitor to be on the same\npressure-sensing tap, thereby failing to protect each control line from anticipated\ncauses of damage.\n49 C.F.R. § 192.227 (Item 2) — In 2004, Southern Star failed to follow the\nrequirements for properly testing and qualifying a welder under API 1104.\n49 C.F.R. § 192.751 (Item 4) — Southern Star failed to properly remove a\npotential ignition source from the inside of a town border station.\nSouthern Star presented information in its Response indicating that it had taken certain actions to\naddress these warning items. Having considered that information, I find, pursuant to 49 C.F.R.\n§ 190.205, that probable violations of Part 192 occurred as of the date of the inspection, and that\nRespondent has corrected such conditions. If OPS finds a violation of any of these items in a\nsubsequent inspection, Southern Star may be subject to future enforcement action.\nUnder 49 C.F.R. § 190.215, Respondent has a right to submit a petition for reconsideration of\nthis Final Order. The petition must be received within 20 days of Respondent’s receipt of this\nFinal Order, contain a brief statement of the issue(s), and meet all other requirements of 49\nC.F.R. § 190.215. The terms of the Final Order, including any required corrective action, shall\nremain in full force and effect unless the Associate Administrator, upon request, grants a stay.\nThe terms and conditions of this Final Order shall be effective upon receipt.\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n320081005_Final Order_10212011.pdf\n\nU.S. Department\n1200 New Jersey Ave., SE\nof Transportation\nWashington, DC 20590\nPipeline and Hazardous Materials\nSafety Administration\nOCT 21 2011\nMr. Robert S. Bahnick\nSenior Vice President\nOperations and Technical Services\nSouthern Star Central Gas Pipeline, Inc.\n4700 Highway 56\nP.O. Box 20010\nOwensboro, Kentucky 42301\nRE: CPF No. 3-2008-1005\nDear Mr. Bahnick:\nEnclosed please find the Final Order issued in the above-referenced case. It withdraws one\nallegation of violation and issues a warning to Southern Star Central Gas Pipeline, Inc., with\nrespect to three other alleged violations. This case is now closed. Service of the Final Order by\ncertified mail is deemed effective upon the date of mailing, or as otherwise provided under 49\nC.F.R. § 190.5\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\nMr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety\nMr. Dave Barrett, Central Region Director, PHMSA\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED /7005 1160 0001 0075 9633]\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\n)\n)\nSouthern Star Central Gas Pipeline, Inc.,)\nCPF No. 3-2008-1005\nRespondent.\n)\n_)\nFINAL ORDER\nFrom June to August 2008, pursuant to 49 U.S.C. § 60117, a representative 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 the Welda Unit, a\nnatural gas pipeline system operated by Southern Star Central Gas Pipeline, Inc. (Southern Star\nor Respondent), a subsidiary of Southern Star Central Corporation, in the State of Kansas.'\nAs a result of that inspection, the Director, Central Region, OPS (Director), issued to Southern\nStar, by letter dated December 12, 2008, a Notice of Probable Violation and Proposed\nCompliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed\nfinding that Southern Star had violated 49 C.F.R. § 192.625. The Notice also proposed ordering\nRespondent to take certain measures to correct one of the alleged violations, and warning\nRespondent to take appropriate corrective action or be subject to future enforcement action.\nSouthern Star responded to the Notice by letter dated January 5, 2009 (Response). Respondent\ncontested one of the allegations, offered additional information in response to the Notice, and\nrequested a hearing. A hearing was subsequently held on April 22, 2009, at the PHMSA Central\nRegion Office in Kansas City, Missouri, with an attorney from the Office of Chief Counsel,\nPHMSA, presiding. After the hearing, Southern Star submitted a Post-Hearing Brief, dated\nApril 30, 2009 (Brief), and additional evidence for the record.\n'The Welda Unit is part of Southern Star's 6,000-mile network of natural gas pipelines and related facilities in the\nMidwest, including Wyoming, Nebraska, Kansas, Missouri, Kentucky, Colorado, Texas, and Oklahoma.\nhttp://www.sscgp.com/aboutus (last accessed August 5, 2010).\n\n\n\n2\nFINDINGS OF VIOLATION\nItem 3: The Notice alleged that Southern Star violated 49 C.F.R. § 192.625, which states, in\nrelevant part:\n§ 192.625 Odorization of gas.\n(a) A combustible gas ... must contain a natural\nodorant or be odorized so that at a concentration in air of one-fifth of the\nlower explosive limit, the gas is readily detectable by a person with a\nnormal sense of smell.\n(b) After December 31, 1976, a combustible gas in a transmission line\nin a Class 3 or Class 4 location must comply with the requirements of\nparagraph (a) of this section unless:\n(1) At least 50 percent of the length of the line downstream from that\nlocation is in a Class 1 or Class 2 location;\n(2)....\n(3) In the case of a lateral line which transports gas to a distribution\ncenter, at least 50 percent of the length of that line is in a Class 1 or Class\n2 location;\nThe Notice alleged that Southern Star violated § 192.625(b) by failing to odorize the natural gas\nin a transmission line in the Welda Unit. Specifically, the Notice alleged that Respondent had\nnot injected any odorant into the DW-003 \"lateral line,\" a 1.83-mile pipeline segment in a Class\n3 location. The Notice further stated that less than 50% of the length of that line was in a Class 1\nor Class 2 location; therefore, the exception in § 192.625(b)(3) did not apply.\nIn its Response, Southern Star contested the alleged violation, arguing that the exception in\n§ 192.625(b)(3) applied to the DW-003.\nApril 2009 Hearing\nTwo witnesses testified on Southern Star's behalf at that hearing: Mr. David Sinclair, the\ncompany's Manager of Pipeline Compliance, and Mr. John S. Zurcher, an independent\nconsultant and the author of a report, entitled \"Report on the Requirements to Conduct\nOdorization of Gas,\" which Southern Star had used as foundation for its odorization program\n(Zurcher Report). OPS offered the testimony of Mr. Ivan Huntoon, the former Director of the\nCentral Region, PHMSA, and Mr. Hans Shieh, the OPS employee who had performed the\ninspection of the Welda Unit.\nMr. Sinclair testified that, in his view, the DW-003 lateral line did not require odorant under\n§ 192.625(b)(3). He noted that his position was consistent with the opinions rendered in the\nZurcher Report, and bolstered by the fact that the DW-003 line connects with another pipeline\nnot owned or operated by Southern Star, which transports natural gas for several more miles\ndownstream before reaching a distribution center. Mr. Sinclair also stated that the sole reason\nfor the odorization requirement was leak detection, and that this objective could be accomplished\non transmission lines without using odorant, e.g., by performing periodic leak surveys and\nrelying on the public's ability to see and hear leaks.\n\n\n\n3\nMr. Zurcher's testimony focused on several alleged inadequacies in the odorization regulation\nand OPS's application of that regulation to the DW-003 line. Specifically, he testified that (1)\nthere was no definition for \"lateral line\" or \"distribution center\" in 49 C.F.R. Part 192; (2) the\nDW-003 line did not terminate at a distribution center; (3) OPS used the term \"branch line\" in\nthe compliance order portion of the Notice, which was also not defined in 49 C.F.R. Part 192; (4)\nodorization was not the only means of detecting natural gas leaks on transmission lines; (5)\nPHMSA had never established a clear policy on applying the odorization requirement; (6) OPS's\ninterpretation was impracticable and unduly expensive; and (7) PHMSA's various Regional\nOffices would not be capable of consistently applying such an interpretation.\nMr. Zurcher also discussed the methodology used in his report. He explained that he had defined\na lateral line in that report as:\n[A] transmission line that branches off a main line or another lateral line to\nconnect a gathering system or source of supply; or which connects a main line or\nanother lateral line to a distribution center, or a direct connect to an end user not\nconnected to a distribution center. A lateral line does not have compression other\nthan for peak shaving or other temporary purposes and in no case does the\ncompression operate more than 45 days per year. A lateral line extends beyond\nthe limits of a circle with a radius of 300 feet, from the point where it ties into a\nmain line or other lateral line.'\nMr. Zurcher then described how his interpretation of the odorization requirement would apply to\nthree hypothetical pipeline systems, concluding in each instance that odorant would not be\nrequired. He also sought to demonstrate the impracticability of OPS's position by applying it to\nfive theoretical modifications of the pipelines in the Welda Unit.\nMr. Huntoon, the former Director of the Central Region, defended the violation as alleged in the\nNotice. He also questioned some of the assumptions in the Zurcher Report, particularly the\nauthor's conclusions that the odorization regulation should be applied at the farthest possible\npoint upstream and that a lateral line should be defined so as to maximize the number of covered\npipeline segments. The Director stated that, in his view, public safety required that the\nodorization regulation be applied to a natural gas pipeline system in a far more conservative\nmatter, i.e., from the farthest possible point downstream, on a lateral-by-lateral basis. Counsel\nfor OPS also noted that the Pipeline Glossary on PHMSA's website included a definition for the\nterm lateral: \"a segment of a pipeline that branches off the main or transmission line to a tank\nline or metering station. \"3\n- Mr. Zurcher noted that his definition of lateral line sought to draw a distinction between the terms \"main line\" and\n\"distribution system\" instead of \"distribution center,\" a term not defined in Part 192, to \"add clarity of intent.\" Mr.\n\"lateral line,\" both of which are considered \"transmission lines\" under Part 192. He also stated that he used the term\nstated that he \"added a measurable length\" of 300 feet (the smallest distance used in 49 C.F.R. § 192.5 to determine\nZurcher explained that his definition \"helps to clarify the difference between main line and lateral line.\" Finally, he\na Class Location) to the last part of his definition to exclude taps from being considered as lateral lines.\n3 PHMSA Pipeline Safety Program, Stakeholder Communications, Pipeline Glossary,\nhttp://primis.phmsa.clot.gov/comm/glossary/index.htm?nocache=7616#Lateral (last accessed July 30, 2009).\n\n\n\n4\nPost-Hearing Brief\nIn its Brief, Southern Star stated that its dispute with OPS was \"much larger than that [of] one\nlateral.\"* According to Respondent, \"lilt [wals the very definition of lateral, or rather the LACK\nof definition in the regulations [sic] of lateral, that [wals the significant issue.\"S\nTo prove its point, Southern Star criticized the Pipeline Glossary's definition of a lateral, stating\nthat it \"seem|ed] to apply MORE to liquid lines than to natural gas lines,\" that it \"appear[ed]\nNOT in the regulations but in the [PHMSA] Glossary, [which was] generally adapted for the\ngeneral public as informational,\" and that it was on a website that is \"generally [not] reviewed by\nthe industry, particularly in these matters.\" Accordingly, Southern Star argued that using the\nPipeline Glossary definition as a point of reference would be inequitable ... given its less than\npublic knowledge of availability.\" Respondent further noted that the DW-003 line would not\neven qualify as a lateral under the Pipeline Glossary's definition, because it did not terminate at a\ndistribution center or metering station.\nSouthern Star also stated that the DW-003 line would not need to be odorized under the\nAmerican Gas Association's definition of a lateral, \"a pipe in a ... transmission system whict\nranches away from the central and primary part of the system.\nSouthern Star further\nexplained that its decision not to odorize the DW-003 was \"consistent with the express intent of\nOPS\" in adopting the (b)(3) lateral exception, namely, \"to avoid odorization costs for certain\nsegments of pipe.\")\nIn closing, Southern Star argued that \"it ha[d] been painted as a probable violator when, in fact, it\napplicable regulations.\"'° Respondent, therefore, requested that Item 3 of the Notice be\nha[d] gone above what many have done in attempting to garner outside help in interpreting the\nwithdrawn.\n* Post-Hearing Brief at 2.\nSId.\nId. at 3.\nId. at 4.\n10 Id. at 6.\n\" Southern Star also requested that PHMSA initiate a new rulemaking proceeding to repeal and replace the current\nodorization regulation. If Southern Star wishes to obtain further action on that request, it must file a petition for\nrulemaking under 49 C.F.R. § 190.331.\n\n\n\n5\nAnalysis\nBecause the release of a combustible gas is a risk to public safety, particularly in populated areas,\n§ 192.625(b) requires that transmission lines in Class 3 or Class 4 locations contain a natural\nodorant or be odorized. However, odorant is not required if \"[a]t least 50 percent of the length of\nthe line downstream from that location is in a Class 1 or Class 2 location.\" Odorant is also not\nrequired \"in the case of a lateral line which transports gas to a distribution center,\" if \"at least 50\npercent of the length of that line is in a Class 1 or Class 2 location.\"\nAfter the record closed in this case, I issued a decision that clarified the scope of the latter\nexception. Specifically, I found that a lateral line is a pipeline segment which terminates at a\ndistribution center and originates at the first upstream connection with another transmission\nline.\n!? Lalso provided the following illustration of that determination:\nFigure I: Identification of laterals for purposes of § 192.625(b)(3).\n..• Lateral transmission\n- Transmission (non-lateral)\nDistribution Center\nDistribution Center\nDistribution Center\nF\nE\nG\nLateral system\nDistribution Center\nH\nTransmission Pipeline\nConsistent with that decision and contrary to Respondent's contentions, § 192.625(b)(3) is not\ndesigned so that successive segments of pipeline can be operated without odorant. It is meant to\nensure that cerain short\" pipeline segmet it reuse men the in hotdaso be interes at\n12 In the Matter of ANR Pipeline Company (ANR), Final Order, CPF No. 3-2007-1006, p. 7 (Dec. 4, 2009), aff'd by\nDecision on Petition for Reconsideration, CPF No. 3-2007-1006, pp. 4-12 (Dec. 30. 2010) (available at\nwww.phmsa.dot.gov/pipeline/enforcement).\n1? In the preamble to the final rule that adopted the odorization regulation, PHMSA included the following relevant\ndiscussion on the intent of the lateral-line exception:\ncenters from interstate transmission lines are predominantly in Class 1 or Class 2 locations. In\nAnother problem raised by commenters is that most lateral transmission lines serving distribution\nthese cases. the terminal portion of a lateral line generally lies in a Class 3 or Class 4 location and\n\n\n\n6\nPHMSA's predecessor agency considered, and rejected, all of Southern Star's arguments about\nthe need to use odorant as a leak detection measure in transmissions lines more than 30 years\nand that the Zurcher Report's definition of a lateral line also incorporates a number of\nfactors and other criteria that are not listed in the odorization regulation, including the use of\ncompression, number of operating days, and a minimum-length requirement.!5\nNevertheless, the evidence of record is not sufficient to sustain the allegation of violation.! To\napply the lateral line exception in § 192.625(b)(3), the record must contain information about the\ndistance and class location(s) from the distribution center to the first upstream connection. Only\npart of that information is available in this case. Specifically, the record indicates that the DW-\n003 is a 1.83-mile pipeline segment situated entirely in a Class 3 location. It also indicates that\nunder the proposed rule would be subject to the odorization requirement. Because in most cases\noperating odorizers would far exceed the safety benefit. OPS agrees with these comments. The\nthe segment of line to be odorized is short, commenters argued that the cost of installing and\ntransporting gas to a distribution center if 50 percent or more of the line is in a Class 1 or Class 2\nfinal rule, therefore, in § 192.625(b)(3) exempts odorization of gas in a transmission line used in\nlocation.\nDepartment of Transportation, Office of Pipeline Safety, Odorization of Gas in Transmission Lines, 40 Fed. Reg.\n20279, 20281 (May 9, 1975).\n14 In an August 1973 notice of proposed rulemaking, OPS cited the results of a recently-completed study and stated\nthat:\nIn the transmission lines of those operators who odorize gas, a number of leaks have been located\nappropriate only for distribution mains and service lines and that high pressure leaks are detectable\nthrough odorization. The fact of such results refutes any contentions that odorization is\nto company employees. In a number of cases, odorization led to discovery of leaks that would not\nonly by other means. Odorization allows the early detection of leaks and does not limit detection\nhave been disclosed until later by the means normally used.\n1973). Similarly, in a May 1975 final rule, OPS noted that some \"commenters restated conventional opinions that\nOffice of Pipeline Safety, Gas in Transmission Lines, Odorization Requirements, 38 Fed. Reg. 22044 (Aug. 15,\nodorization does not enhance the detection of leaks in transmission lines and that normal odorization is ineffective in\nopen air.\" Department of Transportation, Office of Pipeline Safety, Odorization of Gas in Transmission Lines, 40\nFed. Reg. 20279, 20280 (May 9, 1975). OPS responded by stating that \"o]n these latter points, ... the record is\nclear—a large number of gas leaks, including leaks on transmission lines, have been detected by people smelling\nodorant in open air.\" Id.\nIS Southern Star's lack of ownership or control over the downstream pipeline segment that actually terminates at the\ndistribution center is not relevant to whether the DW-003 must be odorized. See Ross Marsh Foster Myers &\nQuiggle, #PI-91-038 (Dec. 26, 1991) (available at http://www.phmsa.dot.gov/pipeline/regs/interps) (noting that non-\nownership of pressure control devices does not excuse a regulated pipeline operator's responsibility for complying\nwith Parts 192 and 195).\n16 OPS bears the burden of proof in an enforcement action and must prove, by a preponderance of the evidence, that\nall of the elements of a violation exist. In the Matter of Alyeska Pipeline Service Co., Decision on Reconsideration,\nCPF No. 5-2005-5023, p. 4-5 (Dec. 16, 2009); In the Matter of Butte Pipeline Co., Final Order, CPF No. 5-2007-\n(http://primis.phmsa.dot.gov/comm/reports/enforce/documents/520075008/520075008_Final/20Order_08172009.p\n5008, p. 2, n. 3 (Aug. 17, 2009)\ndf?nocache= 1644; see Schaeffer v. Weast, 546 U.S. 49, 56-58 (2005).\n\n\n\n7\nthe DW-003 connects with another pipeline that transports gas to a distribution center, but does\nnot contain any specific information about length and class location(s) of that downstream line.\nWithout such information, a determination cannot be made as to whether or not the DW-003 line\nis part of a \"lateral line\" and, if so, whether the DW-003 must b","truncated":true,"body_characters":42125}