{"operation":"document","citation":"CPF 320091024H","title":"ROCKIES EXPRESS PIPELINE LLC — Corrective Action Order","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2009-12-21","effective_on":null,"summary":"CLOSED corrective action order.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320091024h.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320091024h.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320091024h","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320091024H","body":"Corrective Action Order involving ROCKIES EXPRESS PIPELINE LLC. The dataset does not identify a cited regulation for this case. The case was opened on 2009-12-21 and is reported as closed as of 2010-11-22. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320091024H_CAO_02172010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320091024H/320091024H_CAO_02172010.pdf\n\n320091024H_CAO_02172010_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320091024H/320091024H_CAO_02172010_text.pdf\n\n320091024H_Closure Letter_11222010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320091024H/320091024H_Closure%20Letter_11222010.pdf\n\n320091024H_Closure Letter_11222010_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320091024H/320091024H_Closure%20Letter_11222010_text.pdf\n\n320091024H_Decision on Petition for Reconsideration_06162010 _text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320091024H/320091024H_Decision%20on%20Petition%20for%20Reconsideration_06162010%20_text.pdf\n\n320091024H_Decision on Petition for Reconsideration_06162010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320091024H/320091024H_Decision%20on%20Petition%20for%20Reconsideration_06162010.pdf\n\n320091024H_Notice of Proposed CAO_12212009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320091024H/320091024H_Notice%20of%20Proposed%20CAO_12212009.pdf\n\n320091024H_Notice of Proposed CAO_12212009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320091024H/320091024H_Notice%20of%20Proposed%20CAO_12212009_text.pdf\n\n320091024H_Request for Hearing_12312009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320091024H/320091024H_Request%20for%20Hearing_12312009.pdf\n\n320091024H_Notice of Proposed CAO_12212009_text.pdf\n\nVIA CERTIFIED MAIL AND FACSIMILE TO: (713) 495-7432\nDecember 21, 2009\nMr. Dwayne Burton\nVice President, Operations and Engineering\nKinder Morgan Energy Partners, L.P.\nOne Allen Center\n500 Dallas Street, Suite 1000\nHouston, TX 77002\nRe: CPF No. 3-2009-1024H\nDear Mr. Burton:\nEnclosed is a Notice of Proposed Corrective Action Order (Notice) issued in the above-\nreferenced case. The Notice proposes that you take certain measures with respect to Spread I\nof your Rockies Express East Pipeline that failed on November 14, 2009. Service is being\nmade by certified mail and facsimile. Your receipt of this Notice constitutes service of that\ndocument under 49 C.F.R. § 190.5.\nIf you have any questions regarding this Notice, please direct them to me at (816) 329-3829.\nThank you for your cooperation.\nSincerely,\nIvan A. Huntoon\nDirector, Central Region\nEnclosures: Notice of Proposed Corrective Action Order\nCopy of 49 C.F.R. § 190.233\n\n\n\nDEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nCENTRAL REGION\nKANSAS CITY, MO 64106\n____________________________________\nIn the Matter of )\nKinder Morgan Energy Partners, L.P., ) CPF No. 3-2009-1024H\n)\n)\n)\nRespondent )\n____________________________________)\nNOTICE OF PROPOSED CORRECTIVE ACTION ORDER\nBackground and Purpose\nOn November 14, 2009, a failure occurred on the Rockies Express interstate natural gas pipeline\noperated by Kinder Morgan Energy Partners, L.P. (Respondent) near Philo, Ohio, resulting in the\nrelease of natural gas. The cause of the failure has not yet been determined. Pursuant to 49\nU.S.C. § 60117, the Pipeline and Hazardous Materials Safety Administration (PHMSA) initiated\nan investigation of the failure.\nPHMSA issues this Notice of Proposed Corrective Action Order, in accordance with 49 U.S.C.\n§ 60112, notifying Respondent of the preliminary findings of the investigation, and proposing\nthat Respondent take corrective measures to protect the public, property, and the environment\nfrom potential hazards associated with the failure.\nPreliminary Findings\n• At approximately 10:20 a.m. local time on November 14, 2009, pipe in Spread I of\nRespondent’s 42-inch Rockies Express East Pipeline running from Mile Post (MP)\n547.9 to MP 578.8 (hereafter “REX-East Spread I”) failed near the town of Philo, Ohio\n(Muskingum County). The failure occurred at MP 575.5, approximately ½-mile\ndownstream of the Chandlersville Compressor Station. The accident was reported to\nthe National Response Center (NRC Report No. 923529).\n• Respondent reported to PHMSA that the failure resulted in the release of approximately\n127,046 thousand cubic feet (MCF) of natural gas. No fires, injures, or fatalities were\nreported in connection with the failure but several homes in the area were evacuated.\n\n\n\n2\n• Respondent’s personnel at a nearby compressor station audibly detected the failure and\ninitiated a shutdown. Respondent closed the upstream block valve at the Chandlersville\nCompressor Station at MP 575.0 and the downstream block valve at MP 590.5.\n• A preliminary inspection at the failure site indicated a field girth weld (welded by the\nshielded metal arc weld (SMAW) process) failure at the top of the pipe at a transition\nfrom line pipe to a segmented induction bend. The sag bend was near the low point of\na valley in hilly terrain and indications of excessive longitudinal stresses were present.\n• Respondent removed the section of pipe containing a 2-foot pup, the failed girth weld,\nthe cut down fitting, girth weld, and another 2-foot pup. The two girth welds each\ncontaining 2-foot of pipe and a 2-foot piece of the fitting were sent to a metallurgist for\nanalysis. On November 25, 2009, Respondent provided PHMSA with Metallurgical\nInvestigation Report NGI-09-46. The report indicated the following:\no The caliper tool survey noted ovality in the sag bend indicating that the field\nmodified induction bend appeared to be under stress. The ovality was\nconfirmed by diameter measurements;\no The coating contained circumferential cracks indicative of pipe deformation.\no Pipe body cross sections through the fracture indicated deformation or\n“necking” indicating the tensile strength was exceeded;\no Indications of poor joint fit-up and misalignment of the field cut segmented\ninduction bend were found; and\no The weld joint was prepared using a taper angle that exceeded the maximum\ninternal taper allowed by the ASME B31.8 standard and Respondent’s\nprocedures.\n• The Rockies Express East Pipeline was newly constructed in 2009 and extends\napproximately 638 miles from Missouri to Ohio. The line is part of the larger Rockies\nExpress system that originates in Colorado. REX-East Spread I is approximately 31\nmiles in length and crosses Muskingum and Perry Counties in the southeastern part of\nOhio.\n• Line pipe used in REX-East Spread I consists of 42-inch nominal diameter, Grade X-\n70, double-submerged arc welded (DSAW) 0.555-inch wall thickness spiral weld pipe\nmanufactured by Wellspun and has a fusion bond epoxy coating. The factory induction\nbends used have wall thicknesses of 0.740, 0.888, and 1.0-inches.\n• The maximum allowable operating pressure (MAOP) of the line at the time of the\nfailure was 1480 psig based on 80 percent SMYS, however the pipeline was restricted\nto a MAOP of 1332 psig corresponding to 72 percent SMYS pending certain\nrequirements being met. The pressure recorded at the Chandlersville Compressor\n\n\n\n3\nStation discharge was 1197 psig and the failure occurred approximately 1660 feet\ndownstream of this point.\n• Respondent reported that it performed hydrostatic testing of REX-East Spread I prior to\nperforming rough clean-up of the right-of-way using heavy equipment.\n• Respondent reported that it performed an inline inspection of REX-East Spread I using\na geometry tool following hydrostatic testing but prior to rough clean-up.\nAllegation of Hazardous Condition and Right to Hearing\nSection 60112 of Title 49, United States Code, provides for the issuance of a Corrective Action\nOrder, after reasonable notice and the opportunity for a hearing, requiring corrective action,\nwhich may include the suspended or restricted use of a pipeline facility, physical inspection,\ntesting, repair, replacement, or other action, as appropriate. The basis for making the\ndetermination that a pipeline facility is or would be hazardous, requiring corrective action, is set\nforth both in the above-referenced statute and 49 C.F.R. § 190.233, a copy of which is enclosed.\nAfter evaluating the foregoing preliminary findings of fact and considering the pipe materials\ninvolved, the manufacturer, the construction practices used, the hazardous nature of the product\ntransported, the pressure required for transporting such product, the accessibility of the pipeline\nroute to the public, the information contained in Metallurgical Investigation Report NGI-09-46,\nand the ongoing investigation to determine the root cause of the failure, it appears that the\ncontinued operation of REX-East Spread I from MP 547.9 to MP 578.8 without corrective\nmeasures would be hazardous to life, property, and the environment.\nAccordingly, PHMSA issues this Notice of Proposed Corrective Action Order to notify\nRespondent of the agency’s intent to issue a Corrective Action Order and to propose that\nRespondent take measures specified herein to protect the public, property, and the environment.\nResponse to this Notice\nRespondent may request a hearing on this Notice, to be held as soon as practicable, by notifying\nthe Director, Central Region, PHMSA, 901 Locust Street, Suite 462, Kansas City, MO 64106 in\nwriting within 10 days of service of this notice. Failure to submit such written notification\nwaives the opportunity for a hearing and allows the Associate Administrator for Pipeline Safety\nto proceed to determine whether or not a Corrective Action Order is required in accordance with\n49 C.F.R. § 190.233. If a hearing is requested, it will be held telephonically or in-person in\nKansas City, Missouri, on a date that is mutually convenient to Respondent and PHMSA.\nAs soon as practicable after the conclusion of a hearing, or if no hearing is requested, the\nAssociate Administrator for Pipeline Safety will determine whether or not a Corrective Action\nOrder is required. If the Associate Administrator finds the facility is or would be hazardous to\nlife, property, or the environment, the Associate Administrator shall issue a Corrective Action\nOrder in accordance with 49 C.F.R. § 190.233. If the Associate Administrator does not find the\nfacility is or would be hazardous to life, property, or the environment, the Associate\n\n\n\n4\nAdministrator shall withdraw the allegation of the existence of a hazardous condition contained\nin this Notice, and promptly notify Respondent in writing.\nProposed Corrective Action\nPursuant to 49 U.S.C. § 60112 and 49 C.F.R. § 190.233, PHMSA proposes to issue to Kinder\nMorgan Energy Partners, L.P. a corrective action order incorporating the following remedial\nrequirements with respect to REX-East Spread I from MP 547.9 to MP 578.8:\n1. Prior to resuming operation of REX-East Spread I, develop and submit a written re-start\nplan for prior approval of the Director, Central Region, OPS, Pipeline and Hazardous\nMaterials Safety Administration, 901 Locust Street, Suite 462, Kansas City, MO 64106-\n2641 (Director).\n2. The restart plan must include all of the following elements:\n(A) The performance of metallurgical testing and failure analysis as follows:\no When handling and transporting the failed pipe section and other evidence from\nthe failure site, document the chain-of-custody;\no Obtain the Director’s prior approval of the mechanical and metallurgical testing\nprotocols, including approval of the testing laboratory;\no Prior to commencing the mechanical and metallurgical testing, provide the\nDirector with the scheduled date, time, and location of the testing to allow a\nPHMSA representative to witness the testing; and\no Ensure that the testing laboratory distributes all resulting reports, whether draft\nor final, to the Director at the same time as they are made available to\nRespondent.\n(B) A detailed review of the data from the Enduro caliper tool inspection including\nthe minimum and maximum pipe diameters including bend and pipe wall\nthickness, induction bend ovality (% OD), a profile diagram, and depth\nmeasurements within 6-inches on either side of both the field cut and factory cut\nends of all field segmented induction bends for the purpose of identifying the\ninduction bends to be excavated and evaluated. Make this information available\nto the Director.\n(C) A detailed review of the welding inspection records including all transition welds,\nbackfill and rough clean-up records, induction bend procedure and inspection\nrecords, and segmenting of induction bend procedure and inspection records for\neach induction bend. Make this information available to the Director.\n\n\n\n5\n(D) The performance of finite element analysis (FEA) of the joint configuration and\nweld defect interaction associated with the failed girth weld and additional FEA\nanalyses will be completed utilizing the additional information gathered during\nthe recent fitting removal and examination program undertaken by Respondent.\nFEA analysis should include worst case joint geometry of approximately 3/8-inch\nmaximum external misalignment and weld defects that were found during the\nrecent investigation that do not meet API 1104 standards for weld quality.\n(E) Based on the results of the FEA and other actions conducted pursuant to this item,\nconduct the excavation, weld radiographing and alignment examination of the\nfield segmented induction bends located in terrain similar to the terrain at the\nfailure site, or alternatively run an in-line inspection on Spread I using a tool\ncapable of assessing girth welds.\n(F) Based on the actions and evaluations performed pursuant to paragraphs (A)–(E)\nof this item, segmented induction bends are to be cut out and replaced as\nappropriate based on a risk-ranked matrix that includes but is not limited to the\nfollowing factors:\no Whether induction bend was cut in the field;\no Whether records exist indicating the wall thickness offset has an internal\ntransition that does not meet Respondent’s procedures;\no Whether the induction bend was field cut in the bending radius in one or\nmore locations, leaving one or both ends of the induction bend field\nsegmented prior to installation in the pipeline. Particular consideration\nshould be given for segmented induction bends that were cut in the\noriginal induction bend between 30 and 60 degrees.\no Whether the pipe out-of-round axis tolerance exceeds API 5L limits of ± 1\npercent or ≤ 0.625-inches for pipe diameter to wall thickness (D/t) ≤ 75;\no Whether construction records indicate the induction bend may not have\nbeen properly backwelded;\no Whether construction records indicate that rough clean up was performed\nafter hydrostatic testing; and\no Whether construction records indicate the use of excessive force in\naccomplishing a tie-in that may have placed undue stress on an existing\ngirth weld.\n(G) Any replacement bends for cut outs of defective segmented induction bends must\nbe installed as follows:\n\n\n\n6\no Pipe and induction bend bevel design must be in accordance with ASME\nB31.8 and Respondents procedures for wall thickness variances;\no Tolerances for weld ends must be taken into account in accordance with\nAPI 5L Table 8 and ASME B31.8 to ensure that segmented induction\nbend bevel design and weld alignment tolerances do not create undue\nstress risers in the new joint design and weld;\no Replacements must be welded and backwelded in accordance with API\n1104 and Respondents approved welding procedures and hydrostatically\ntested in accordance with Part 192, Subpart J;\no Appropriate on-site quality control personnel must be present to provide\noversight;\no Adequate support for the pipe and induction bend must be provided and\napplicable backfill procedures followed to ensure the segmented induction\nbends and associated welds are not unduly stressed; and\no Maintain complete records of all replacements and make the records\navailable to PHMSA.\n(H) Provision for adequate patrolling of the pipeline segment during the restart\nprocess. Specify a daylight restart and detail advance communications with local\nemergency response officials.\n(I) Conduct two instrumented leak surveys of Spread I, at 600 psig and again at 1080\npsi, either ground or aerial leak surveys can be used.\n(J) Perform ongoing ground patrols on a weekly basis to observe for any loading or\nearth movement that may place additional loads on the pipeline. The use of high\nspeed aerial patrols can not be used to meet this requirement.\n3. Perform all field work involved in the restart plan and provide the Director with\nongoing updates as to the results of the field work. Based on the results or any other\nrelevant data, the Director may require other actions, including high resolution caliper\nor deformation tool in-line inspections or hydrostatic testing prior to resumption of\noperations.\n4. Obtain written approval to resume operation of the line from the Director prior to\nresuming operation.\n5. After receiving approval from the Director to restart the line, establish a reduced\nmaximum operating pressure on REX-East Spread I that does not exceed 1080 psig.\nAll affected compressor stations and pressure control devices must be set to ensure this\nreduced maximum operating pressure is not exceeded. This pressure restriction will\n\n\n\n7\nremain in effect until written approval to increase the pressure or return the pipeline to\nits pre-failure operating pressure is obtained from the Director.\n6. Within 30 days following receipt of the order, develop and submit to the Director for\napproval a written remedial work plan that includes corrective measures. The work\nplan must fully address all known or suspected factors that caused or contributed to the\nNovember 14, 2009 failure and must include all of the following elements:\n(A) The integration of the information developed from the actions required by Items\n1-5 with any relevant pipeline system information, including: construction\nrecords, hydrostatic testing records, previous failure investigations, leak history,\nrepair records, internal inspections, operating procedures, and other relevant\noperating data for the purpose of performing a comprehensive root cause analysis\nof the available information associated with the factors that caused or contributed\nto the failure.\n(B) The performance of any additional field testing, inspections, and evaluations to\ndetermine whether and to what extent the conditions associated with the failure,\nor any other integrity-threatening conditions, are present elsewhere on the line.\nThe field testing must include:\no Consideration of a high-resolution deformation tool in-line inspection\ncapable of ± 1 percent accuracy;\no Consideration of a hydrostatic test to 100 percent SMYS;\no A detailed description of the criteria to be used for the evaluation and\nprioritization of any integrity threats/anomalies that are identified;\no Make the results of the inspections, field excavations, and evaluations\navailable to PHMSA or its representative; and\no The performance of repairs or other corrective measures not already made\nprior to the restart that fully remediate the condition(s) associated with the\npipeline failure and any other integrity-threatening condition everywhere\nalong the pipeline where such conditions are identified by the evaluation\nprocess. Include a detailed description of the repair criteria and method(s)\nto be used in undertaking any repairs or other remedial actions.\n(C) Provisions for continuing long-term periodic testing and integrity verification\nmeasures to ensure the ongoing safe operation of the pipeline considering the\nresults of the analyses, inspections, and corrective measures undertaken pursuant\nto the Corrective Action Order.\n(D) A proposed schedule for completion of the actions required by paragraphs (A)\nthrough (C) of this Item.\n\n\n\n8\n7. Revise the remedial work plan as necessary to incorporate new information obtained\nduring the failure investigation and associated remedial activities. Submit any such\nplan revisions to the Director for prior approval. The Director may approve plan\nelements incrementally. The remedial work plan shall become incorporated into the\ncorrective action order.\n8. Implement the work plan as it is approved by the Director, including any revisions to\nthe plan.\n9. Submit quarterly reports to the Director that: (1) include available data and results of\nthe testing and evaluations required by this Order; and (2) describe the progress of the\nrepairs and other remedial actions being undertaken.\n10. Maintain documentation of the costs associated with implementation of the corrective\naction order. Include in each quarterly report submitted pursuant to Item 9, the to-date\ntotal costs associated with: (1) preparation and revision of procedures, studies and\nanalyses; and (2) physical changes to pipeline infrastructure, including repairs,\nreplacements and other modifications.\n11. The Director may allow the removal or modification of the pressure restriction set forth\nin Item 5 upon a written request from Respondent demonstrating that the hazard has\nbeen abated and that restoring the affected pipeline, or portion thereof, to its pre-failure\noperating pressure is justified based on a reliable engineering analysis showing that the\npressure increase is safe considering all known defects, anomalies, and operating\nparameters of the pipeline.\n12. The Director may grant an extension of time for compliance with any of the terms of\nthis Order upon a written request timely submitted demonstrating good cause for an\nextension.\n13. With respect to each submission that under this Order requires the approval of the\nDirector, the Director may: (a) approve, in whole or part, the submission; (b) approve\nthe submission on specified conditions; (c) modify the submission to cure the\ndeficiencies; (d) disapprove in whole or in part, the submission, directing that\nRespondent modify the submission, or (e) any combination of the above. In the event\nof approval, approval upon conditions, or modification by the Director, Respondent\nshall proceed to take all action required by the submission as approved or modified by\nthe Director. In the event that the Director disapproves all or any portion of the\nsubmission, Respondent shall correct all deficiencies within the time specified by the\nDirector, and resubmit it for approval.\n14. Respondent may appeal any decision of the Director to the Associate Administrator for\nPipeline Safety. Decisions of the Associate Administrator shall be final.\n\n\n\n9\nThe actions proposed by this Notice of Proposed Corrective Action Order are in addition to and\ndo not waive any requirements that apply to Respondent’s pipeline system under 49 C.F.R. Parts\n190 through 199, under any other order issued to Respondent under authority of 49 U.S.C.\n§ 60101 et seq., or under any other provision of Federal or state law.\nAfter receiving and analyzing additional data in the course of this investigation, PHMSA may\nidentify other corrective measures that need to be taken. In that event, Respondent will be\nnotified of any additional measures required and amendment of the corrective action order will\nbe considered. To the extent consistent with safety, Respondent will be afforded notice and an\nopportunity for a hearing prior to the imposition of any additional corrective measures.\n___________________________________ __________________\nIvan A. Huntoon Date Issued\nDirector\nCentral Region, PHMSA\n\n320091024H_Closure Letter_11222010_text.pdf\n\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED\nNovember 22, 2010\nMr. Dwayne Burton\nVice President, Operations and Engineering\nKinder Morgan Energy Partners, L.P.\n500 Dallas Street; Suite 1000\nHouston, Texas 77002\nRe: CPF No. 3-2009-1024H\nDear Mr. Burton:\nOn December 21, 2009, the Pipeline and Hazardous Materials Safety Administration\n(PHMSA) issued a Notice of Proposed Corrective Action Order (Notice) following the\nfailure on your 42-inch diameter Rockies Express East (REX East) natural gas pipeline in\nMuskingum County, Ohio. After a hearing held on the matter, PHMSA subsequently\nissued the Corrective Action Order (Order) on February 17, 2010. The Order outlined\nseventeen (17) items that Kinder Morgan Energy Partners, L.P. (Kinder Morgan) was\nrequired to complete to ensure the future integrity of the REX East pipeline.\nKinder Morgan submitted plans in response to the Order. The Director, Central Region\nsubsequently approved those plans and the activities performed to complete them have\nbeen monitored closely. On October 21, 2010, Kinder Morgan requested that the Order\nbe closed. Based upon its review of the activities performed by Kinder Morgan and the\ndocumentation provided to support those efforts, the Central Region has determined that\nthe items required by the Order have been completed.\nAccordingly, this case is now closed. Thank you for your cooperation in this matter.\nSincerely,\nDavid Barrett\nDirector, Central Region\nPipeline and Hazardous Materials Safety Administration\n\n320091024H_Decision on Petition for Reconsideration_06162010 _text.pdf\n\nJUN 16 2010\nMr. Dwayne Burton\nVice President\nEngineering & Operations\nKinder Morgan Energy Partners, L.P.\nOne Allen Center\n500 Dallas Street, Suite 1000\nHouston, TX 77002\nRE: CPF No. 3-2009-1024H\nDear Mr. Burton:\nI am writing in response to your March 9, 2010 letter, entitled “Petition for Reconsideration.\n” In\nthat letter, you request that I clarify the terms of the February 17, 2010 Corrective Action Order\n(CAO) in this case, address several “other factual errors or omissions” in the language of the\nCAO, and make certain corrections to the record in this proceeding.\nBefore responding to your specific concerns, I note that your letter presumes that Kinder Morgan\nEnergy Partners, L.P. (Kinder Morgan) has the right to file a petition for reconsideration in this\ncase. However, the Pipeline Safety Laws do not afford you such a right.\nresolve any doubt about the terms of the CAO, the record in this matter, or the legality of this\nproceeding, I will address your concerns as a matter of discretion.\n1 Nonetheless, to\nYour first concern relates to the terms of the CAO. In particular, you note that Kinder Morgan\nhas recently taken actions that may be relevant to the CAO’s implementation, that some of the\ntimelines in the order may be obsolete or no longer necessary, and that there is a typographical\nerror in one of the items in the order.\n1 The authority relied upon in your letter, 49 C.F.R. § 190.215, states, in relevant part, that “[a] respondent may\npetition the Associate Administrator, OPS for reconsideration of a final order issued § 190.213.” I note that only\n“enforcement proceedings commenced under § 190.207”—i.e., those proceedings that “begin[]” when “a Regional\nDirector . . . serv[es] a notice of probable violation on a person charging that person with a probable violation of 49\nU.S.C. 60101 et seq. or any regulation or order issued thereunder”\n—result in a final order issued under § 190.213.\nAs this proceeding commenced under 49 C.F.R. § 190.233(c)(1) when the Director, Central Region, OPS, served\nyour company with written notice of his intent to find that Spread I was a hazardous facility, and I issued my CAO\nin support of that finding under 49 C.F.R. § 190.233(a) and (d)-(e), the right to seek reconsideration under 49 C.F.R.\n§ 190.215 is not applicable.\n\n\n\nI have delegated my authority to oversee the implementation of the CAO to the Director, Central\nRegion, OPS (Director). I am confident that the Director will use that authority to resolve any\nissues that may arise in that respect, and that he will consider all actions Kinder Morgan has\ntaken to abate the hazard posed by the operation of Spread I in determining compliance with the\nterms of the order.\n2\nYour second concern relates to the conduct of the January 29, 2010 hearing in this matter—i.e.,\nyou state that the Hearing Officer “admonished” Kinder Morgan not to present any witnesses at\nthat hearing. You also question the validity of the testimony offered by Mr. Gery Bauman, an\nOPS welding expert, and its subsequent use as evidence in the CAO.\nWith regard to the first issue, I note that in a letter dated January 12, 2010, the Hearing Officer\ninformed your attorney, Mr. Robert E. Hogfoss, that Kinder Morgan would be afforded a hearing\nin this matter on January 29, 2010. He further advised Mr. Hogfoss that Kinder Morgan should\nprovide a “statement of the issues that you intend to raise at the hearing and a list of your\nattendees . . . no later than the close of business on January 22, 2010.”\nOn January 25, 2010, three days after expiration of that deadline, the Hearing Officer sent\nanother letter to Mr. Hogfoss. In that letter, the Hearing Officer confirmed that the hearing\nwould proceed as scheduled and stated: “As you have not submitted a list of witnesses, I assume\nthat none will be appearing on your client’s behalf and that your arguments will be based solely\non the documents previously-submitted to the agency. If that is not correct, please let me know.”\nIn a letter dated January 26, 2010, Mr. Hogfoss replied that “it [wa]s, at a minimum, inefficient\nto proceed with a Hearing in this instance.” He went on to state, however, that “in order to\npreserve our legal rights, [Kinder Morgan] w[ould] appear at the hearing as scheduled.”\nMr. Hogfoss also noted that your company would be represented by three attorneys at the\nupcoming hearing, himself, Ms. Catherine Little, and Ms. Shelia Tweed. He also indicated that\nyou would be attending the hearing as an “observer,\n” and that he understood that the issues\nwould be limited to those raised in the record.\nAs these letters show, the Hearing Officer never admonished Kinder Morgan to forgo its right to\npresent witnesses at the hearing. Rather, he simply asked counsel to submit a list of attendees\nand, when that list was not provided in a timely manner, asked Mr. Hogfoss if Kinder Morgan\ndid, in fact, intend to present any witnesses. “That was” not, as your letter states, “an unusual\nprocedural response” by the Hearing Officer.\nYour letter also questions the significance of the testimony of Mr. Gery Bauman. In particular,\nyou state that Mr. Bauman was not “physically present at the Hearing,” and that he was not\n“introduced or referred to as a witness, much less a primary witness.\n” You also suggest that\nMr. Bauman’s statements about what he observed during the construction of your pipeline are\nnot evidence and cannot be used to support a material finding of fact.\n2 As Kinder Morgan correctly notes, Item 15 of the CAO should reference the pressure restriction imposed in Item 8\nof the CAO, not Item 5. The Director is advised to make note of that change.\n2\n\n\n\nI note that the Pipeline Safety Regulations do not prohibit a witness’ participation by telephone;3\nthat the Pipeline Safety Laws do not require the use of any particular designation when\nintroducing a witness; and that a witness’ testimony about his personal observations, including\nthose of a welding expert who actually observed unsound construction methods during a field\ninspection, are evidence and can be used to support a material finding of fact.\nnone of the three attorneys who appeared on your behalf objected to Mr. Bauman’s testimony,\nand that they did not question him at that time.\n4 I also note that\nYou also state that PHMSA “missed” the “point of your argument” by “addressing . . .\nmootness[,]” a concept that, in your opinion, “may be more familiar to judicial review than\nadministrative process.” I note that counsel raised the issue of mootness in his written response\nto the Notice, that he has done so in other enforcement actions brought by this agency, and that I\nhave an obligation to consider the merits of that argument if the record indicates that it is not\nfrivolous.5\nYou also state that the CAO “appears to criticize” your company “for undertaking prompt and\neffective remedial actions on its own accord.” The order does not support that assertion. Indeed,\nI noted in the order that “Kinder Morgan has taken significant remedial action in response to the\nNovember 14 accident,” that it “has cooperated with PHMSA throughout this proceeding,” and\nthat the purpose of the CAO was “not to ‘punish’” your company “for experienc[ing] a pipeline\nfailure.” I also explained in the order that Kinder Morgan’s remedial actions did not eliminate\nthe need to issue a CAO. With respect to your offers to enter into a consent agreement, PHMSA\nwill certainly consider such proposals, but is under no obligation to accept them.\nFinally, you state that you “are especially surprised by the statement at page seven of the CAO\nthat PHMSA now believes that the transport of natural gas by pipeline, even at reduced pressure\nand in compliance with all pipeline safety laws and regulations, may nonetheless ‘support a\nhazardous facility finding.’” I have carefully reviewed the entire CAO, including the page cited\nin your letter, and note that the order contains no such statement.\n3 See also 49 C.F.R. 190.211(b) (permitting telephonic hearings if the amount of a proposed civil penalty or cost of a\nproposed corrective action is less than $10,000).\n4 See e.g., Fed. R. Evid. 601-602, 701-702; Layno v. Brown, 6 Vet.App. 465, 469-470 (1994) (discussing the\nconcepts of competency of a witness, lay testimony, and expert testimony in the context of an administrative\nproceeding); but see also 49 C.F.R. § 190.233(c)(3) (noting that CAO hearings are “conducted without strict\nadherence to the formal rules of evidence”).\n5 In the Matter of Kinder Morgan, Inc., Final Order, C.P.F. 5-2007-1008 (Sep. 1, 2009) (available at\nwww.phmsa.dot.gov/pipeline/enforcement) (rejecting present counsel’s argument that the actions taken by Kinder\nMorgan after the commencement of an enforcement proceeding rendered an allegation of probable violation and\nproposed civil penalty moot).\n3\n\n\n\nIn summary, I am confident that the Director will ensure that the terms of the CAO are consistent\nwith the actions taken by Kinder Morgan to abate the hazards associated with the operation of\nSpread I. I am also confident that the Hearing Officer conducted this proceeding in compliance\nwith the Pipeline Safety Laws and Regulations, and that the record supports the CAO’s finding\nthat your pipeline is a hazardous facility.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\ncc: Mr. David Barrett, Director, Central Region, PHMSA\nMr. Robert Hogfoss and Catherine D. Little\nHunton & Williams LLP\nBank of America Plaza, Suite 4100\n600 Peachtree Street, NE\nAtlanta, GA 30308-2216\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED [7005 1160 0001 0043 9559]\n4\n\n320091024H_Decision on Petition for Reconsideration_06162010.pdf\n\nU.S. Department of Transportation\n1200 New Jersey Ave, S.E.\nPipeline and Hazardous Materials\nWashington, D.C. 20590\nSafety Administration\nJUN 1 6 2010\nMr. Dwayne Burton\nVice President\nEngineering & Operations\nKinder Morgan Energy Partners, L.P.\nOne Allen Center\n500 Dallas Street, Suite 1000\nHouston, TX 77002\nRE: CPF No. 3-2009-1024H\nDear Mr. Burton:\nI am writing in response to your March 9, 2010 letter, entitled \"Petition for Reconsideration.\" In\nthat letter, you request that I clarify the terms of the February 17, 2010 Corrective Action Order\n(CAO) in this case, address several \"other factual errors or omissions\" in the language of the\nCAO, and make certain corrections to the record in this proceeding.\nBefore responding to your specific concerns, I note that your letter presumes that Kinder Morgan\ncase. However, the Pipeline Safety Laws do not afford you such a right.' Nonetheless, to\nEnergy Partners, L.P. (Kinder Morgan) has the right to file a petition for reconsideration in this\nresolve any doubt about the terms of the CAO, the record in this matter, or the legality of this\nproceeding, I will address your concerns as a matter of discretion.\nYour first concern relates to the terms of the CAO. In particular, you note that Kinder Morgan\nhas recently taken actions that may be relevant to the CAO's implementation, that some of the\ntimelines in the order may be obsolete or no longer necessary, and that there is a typographical\nerror in one of the items in the order.\n' The authority relied upon in your letter, 49 C.F.R. § 190.215, states, in relevant part, that \"[a] respondent may\npetition the Associate Administrator, OPS for reconsideration of a final order issued § 190.213.\" I note that only\n\"enforcement proceedings commenced under § 190.207\"--i.e., those proceedings that \"begin[]\" when \"a Regional\nDirector ... serv[es] a notice of probable violation on a person charging that person with a probable violation of 49\nU.S.C. 60101 et seq. or any regulation or order issued thereunder\" —result in a final order issued under § 190.213.\nyour company with written notice of his intent to find that Spread I was a hazardous facility, and I issued my CAO\nAs this proceeding commenced under 49 C.F.R. § 190.233(c)(1) when the Director, Central Region, OPS, served\nin support of that finding under 49 C.F.R. § 190.233(a) and (d)-(e), the right to seek reconsideration under 49 C.F.R.\n§ 190.215 is not applicable.\n\n\n\nI have delegated my authority to oversee the implementation of the CAO to the Director, Central\nRegion, OPS (Director). I am confident that the Director will use that authority to resolve any\nissues that may arise in that respect, and that he will consider all actions Kinder Morgan has\ntaken to abate the hazard posed by the operation of Spread I in determining compliance with the\nterms of the order.\nYour second concern relates to the conduct of the January 29, 2010 hearing in this matter—i.e.,\nyou state that the Hearing Officer \"admonished\" Kinder Morgan not to present any witnesses at\nthat hearing. You also question the validity of the testimony offered by Mr. Gery Bauman, an\nOPS welding expert, and its subsequent use as evidence in the CAO.\nWith regard to the first issue, I note that in a letter dated January 12, 2010, the Hearing Officer\ninformed your attorney, Mr. Robert E. Hogfoss, that Kinder Morgan would be afforded a hearing\nin this matter on January 29, 2010. He further advised Mr. Hogfoss that Kinder Morgan should\nprovide a \"statement of the issues that you intend to raise at the hearing and a list of your\nattendees ... no later than the close of business on January 22, 2010.\"\nOn January 25, 2010, three days after expiration of that deadline, the Hearing Officer sent\nanother letter to Mr. Hogfoss. In that letter, the Hearing Officer confirmed that the hearing\nwould proceed as scheduled and stated: \"As you have not submitted a list of witnesses, I assume\nthat none will be appearing on your client's behalf and that your arguments will be based solely\non the documents previously-submitted to the agency. If that is not correct, please let me know.\"\nIn a letter dated January 26, 2010, Mr. Hogfoss replied that \"it [wa]s, at a minimum, inefficient\nto proceed with a Hearing in this instance.\" He went on to state, however, that \"in order to\npreserve our legal rights, [Kinder Morgan] w[ould] appear at the hearing as scheduled.\"\nMr. Hogfoss also noted that your company would be represented by three attorneys at the\nupcoming hearing, himself, Ms. Catherine Little, and Ms. Shelia Tweed. He also indicated that\nyou would be attending the hearing as an \"observer,\" and that he understood that the issues\nwould be limited to those raised in the record.\nAs these letters show, the Hearing Officer never admonished Kinder Morgan to forgo its right to\npresent witnesses at the hearing. Rather, he simply asked counsel to submit a list of attendees\nand, when that list was not provided in a timely manner, asked Mr. Hogfoss if Kinder Morgan\ndid, in fact, intend to present any witnesses. \"That was\" not, as your letter states, \"an unusual\nprocedural response\" ","truncated":true,"body_characters":44613}