{"operation":"document","citation":"CPF 320095022","title":"ENTERPRISE PRODUCTS OPERATING LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2009-10-28","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(c)(3), 195.422(a), 195.505(a), 195.505(b), 199.105(b).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320095022.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320095022.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320095022","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320095022","body":"Notice of Probable Violation involving ENTERPRISE PRODUCTS OPERATING LLC. PHMSA's enforcement data identifies the cited regulations as 195.402(c)(3),  195.422(a),  195.505(a),  195.505(b),  199.105(b). The case was opened on 2009-10-28 and is reported as closed as of 2013-08-26. Proposed civil penalty: $466,200. Assessed civil penalty: $466,200. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320095022_Closure_08262013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095022/320095022_Closure_08262013.pdf\n\n320095022_Closure_08262013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095022/320095022_Closure_08262013_text.pdf\n\n320095022_Final Order_08142012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095022/320095022_Final%20Order_08142012.pdf\n\n320095022_Final Order_08142012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095022/320095022_Final%20Order_08142012_text.pdf\n\n320095022_NOPV PCP PCO_10282009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095022/320095022_NOPV%20PCP%20PCO_10282009.pdf\n\n320095022_NOPV PCP PCO_10282009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095022/320095022_NOPV%20PCP%20PCO_10282009_text.pdf\n\n320095022_Response to NOPV-Letter-Sections 1-4_11252009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095022/320095022_Response%20to%20NOPV-Letter-Sections%201-4_11252009.pdf\n\n320095022_Response to NOPV-Sections 5-9_11252009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095022/320095022_Response%20to%20NOPV-Sections%205-9_11252009.pdf\n\n320095022_Response to NOPV-Sections10-12_11252009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095022/320095022_Response%20to%20NOPV-Sections10-12_11252009.pdf\n\n320095022_NOPV PCP PCO_10282009_text.pdf\n\nNOTICE OF PROBABLE VIOLATION\nPROPOSED CIVIL PENALTY\nand\nPROPOSED COMPLIANCE ORDER\nVIA CERTIFIED MAIL AND BY FACSIMILE TO: 713-381-8056\nOctober 28, 2009\nMr. Terry Hurlburt\nVice President – Operations\nEnterprise Products Operating LLC\n1100 Louisiana Street\nHouston, TX 77002\nCPF 3-2009-5022\nDear Mr. Hurlburt:\nOn September 11, 2007, the Pipeline and Hazardous Materials Safety Administration\n(PHMSA) was notified by the National Response Center (Report No. 848445) of an accident\ninvolving a hazardous liquid pipeline operated by Enterprise Products Operating LLC\n(Enterprise). The accident occurred on Enterprise’s 12-inch “Brown” line in Clark County\nKansas, approximately three miles north of Englewood, KS at Mile Post (MP) 362. The failure\nresulted in the release of approximately 14,763 barrels of a highly volatile liquid, specifically\nY-grade de-methanized natural gas liquid (NGL) mix. As a result of this failure State Highway\n283 was closed for five days.\nThe subsequent investigation confirmed that the cause of the release was the failure of a\nthreaded connection on 2-inch diameter bypass piping. The 2-inch diameter bypass was\ninstalled on the 12-inch Brown line approximately 10 hours before the failure on September\n10, 2007, after a maintenance pig became lodged in the mainline valve setting at Mile Post\n362.\n\n\n\nAs a result of our investigation of this accident, it appears that you have committed probable\nviolations of the pipeline safety regulations, Title 49, Code of Federal Regulations. The\nprobable violations are:\n1. §195.422 Pipeline Repairs.\n(a) Each operator shall, in repairing its pipeline systems, insure that the repairs\nare made in a safe manner and are made so as to prevent damage to persons or\nproperty.\nEnterprise did not insure that the installation of the bypass, as part of the repair effort to\nremove the lodged maintenance pig, was made in a safe manner so as to prevent\ndamage. As evidenced by the failure shortly after installation that resulted in the\nrelease of NGL and property damage, the repair was not made in a safe manner and\nwas inadequate to prevent damage.\nThe 2-inch diameter bypass piping was installed on September 10, 2007, to allow\nproduct flow around the lodged pig. To accomplish removal of the lodged pig and\nrepair of the pipeline, Enterprise intended to weld stopple fittings to the 12-inch Brown\nline while product was flowing through the 2-inch bypass.\nThe post-accident failure analysis concluded that the connection of a 2-inch ball valve\nto a 2-inch fitting was incorrectly installed resulting in damage to the threads. This\ndamaged threaded connection failed at approximately 12:13 a.m. on September 11,\n2007, resulting in over 14,000 barrels released from the pipeline.\n2. §195.402 Procedural manual for operations, maintenance, and emergencies.\n(a) General. Each operator shall prepare and follow for each pipeline system a\nmanual of written procedures for conducting normal operations and maintenance\nactivities and handling abnormal operations and emergencies. This manual shall\nbe reviewed at intervals not exceeding 15 months, but at least once each calendar\nyear, and appropriate changes made as necessary to insure that the manual is\neffective. This manual shall be prepared before initial operations of a pipeline\ncommence, and appropriate parts shall be kept at locations where operations and\nmaintenance activities are conducted.\n(c) Maintenance and normal operations. The manual required by paragraph (a)\nof this section must include procedures for the following to provide safety during\nmaintenance and normal operations:\n(3) Operating, maintaining, and repairing the pipeline system in accordance with\neach of the requirements of this subpart and subpart H of this part.\nEnterprise did not include written procedures in its Operations and Maintenance\nmanual that provide for adequate safety when installing threaded pipefittings in\nconnection with performing maintenance and repairs to its pipeline system. Written\nprocedures for pipefitting are necessary to assure safety when conducting maintenance\nand repair activities.\n2\n\n\n\n3. §195.505 Qualification program.\nEach operator shall have and follow a written qualification program. The\nprogram shall include provisions to:\n(a) Identify covered tasks;\nEnterprise did not include pipefitting in the list of covered tasks as part of its Operator\nQualification program. The assembly of threaded pipe connections would be part of\nthe pipefitting task. Pipefitting is an operations and maintenance task performed on the\npipeline that affects pipeline operation and integrity, and is required by §195.422.\n4. §195.505 Qualification program.\nEach operator shall have and follow a written qualification program. The\nprogram shall include provisions to:\n(b) Ensure through evaluation that individuals performing covered tasks are\nqualified;\nThe personnel that installed the 2-inch bypass piping were not evaluated to ensure that\nthey were qualified to perform pipefitting (the task of joining pipe using threaded\nconnections). The pipefitting task was completed on September 10, 2007,\napproximately 10 hours prior to the failure. Enterprise indicated that nine individuals\nwere involved in performing the installation of the 2-inch bypass piping.\n5. §199.105 Drug tests required.\nEach operator shall conduct the following drug tests for the presence of a\nprohibited drug:\n(b) Post-accident testing. As soon as possible but no later than 32 hours after an\naccident, an operator shall drug test each employee whose performance either\ncontributed to the accident or cannot be completely discounted as a contributing\nfactor to the accident. An operator may decide not to test under this paragraph\nbut such a decision must be based on the best information available immediately\nafter the accident that the employee's performance could not have contributed to\nthe accident or that, because of the time between that performance and the\naccident, it is not likely that a drug test would reveal whether the performance\nwas affected by drug use.\nEnterprise did not conduct post-accident drug testing of the nine employees that were\ninvolved with installation of the 2-inch bypass. The installation of the\n2-inch bypass piping was completed at approximately 2:00 p.m. on September 10,\n2007, and the failure of the bypass piping occurred at 12:13 a.m. on September 11,\n2007. Due to the timing of the accident shortly after installation of the bypass piping,\nemployee performance could not be completely discounted as a contributing factor to\nthe accident. Additionally, there was not a sufficiently long period of time between\ninstallation of bypass and the accident to conclude that a drug test would not likely\nreveal whether employee performance was affected by drug use.\nReview of the accident confirmed that employee performance contributed to the\naccident because a threaded connection was damaged by personnel on September 10,3\n\n\n\n2007 during installation of the bypass. Enterprise indicated that twelve persons were\ninvolved with planning, supervising and installing the 2-inch bypass.\nProposed Civil Penalty\nUnder 49 United States Code, § 60122, you are subject to a civil penalty not to exceed\n$100,000 for each violation for each day the violation persists up to a maximum of $1,000,000\nfor any related series of violations. The Compliance Officer has reviewed the circumstances\nand supporting documentation involved in the above probable violation(s) and has\nrecommended that you be preliminarily assessed a civil penalty of $466,200 as follows:\nItem number PENALTY\n1 $100,000\n2 $133,100\n4 $133,100\n5 $100,000\nProposed Compliance Order\nWith respect to items 2, 3, and 4 pursuant to 49 United States Code § 60118, the Pipeline and\nHazardous Materials Safety Administration proposes to issue a Compliance Order to\nEnterprise Products Operating LLC. Please refer to the Proposed Compliance Order, which is\nenclosed and made a part of this Notice.\nResponse to this Notice\nEnclosed as part of this Notice is a document entitled Response Options for Pipeline Operators\nin Compliance Proceedings. Please refer to this document and note the response options. Be\nadvised that all material you submit in response to this enforcement action is subject to being\nmade publicly available. If you believe that any portion of your responsive material qualifies\nfor confidential treatment under 5 U.S.C. 552(b), along with the complete original document\nyou must provide a second copy of the document with the portions you believe qualify for\nconfidential treatment redacted and an explanation of why you believe the redacted\ninformation qualifies for confidential treatment under 5 U.S.C. 552(b). If you do not respond\nwithin 30 days of receipt of this Notice, this constitutes a waiver of your right to contest the\nallegations in this Notice and authorizes the Associate Administrator for Pipeline Safety to find\nfacts as alleged in this Notice without further notice to you and to issue a Final Order in your\ncorrespondence on this matter, please refer to CPF 3-2009-5022 and for each document you\nsubmit, please provide a copy in electronic format whenever possible.\n4\n\n\n\nSincerely,\nIvan A. Huntoon\nDirector, Central Region\nPipeline and Hazardous Materials Safety Administration\nEnclosures: Proposed Compliance Order\nResponse Options for Pipeline Operators in Compliance Proceedings\n5\n\n\n\nPROPOSED COMPLIANCE ORDER\nPursuant to 49 United States Code § 60118, the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA) proposes to issue to Enterprise Products Operating LLC (Enterprise)\na Compliance Order incorporating the following remedial requirements to ensure the\ncompliance of Enterprise with the pipeline safety regulations:\n1. In regard to Item Number 2 of the Notice pertaining to the lack of written\nprocedures, Enterprise must prepare and submit written procedures for\npipefitting. Pipefitting includes, but is not limited to; making and/or connecting\nthreaded pipe and components, assembling flanged pipe and components,\ncoupled connections, bending and/or connection of instrument and control\ntubing, and inspections of completed pipefitting assemblies. The procedures\nshall also include, but not be limited to, description of the following: minimum\npipe and component strength, minimum pressure ratings and dimensions of pipe\nand components, maximum unsupported length of completed assemblies, and\nother requirements necessary to assure that completed assemblies conform to 49\nCFR Part 195.\n2. In regard to Item Number 3 of the Notice pertaining to inclusion of pipefitting\nas a covered task, Enterprise must identify and add to its covered task list any\nand all tasks associated with pipefitting. Pipefitting task(s) are as described in\nItem 1 above of the Proposed Compliance Order. The identification of\npipefitting task(s) must be in conformance with the requirements of 49 CFR\nPart 195, Subpart G – Qualification of Pipeline Personnel.\n3. In regard to Item Number 4 of the Notice pertaining to evaluation and\nqualification of employees to perform pipefitting, Enterprise must prepare and\nsubmit a written evaluation and qualification program for pipefitting in\nconformance with the requirements of 49 CFR Part 195, Subpart G –\nQualification of Pipeline Personnel.\n4. In regard to Item Number 4 of the Notice pertaining to evaluation and\nqualification of employees to perform pipefitting, Enterprise must complete the\ntraining, evaluation, and qualification of all personnel who will perform\npipefitting tasks on its pipeline.\n5. Items 1, 2, and 3 of the Proposed Compliance Order must be completed and\nsubmitted for approval by the Director, Central Region, PHMSA within 30 days\nafter receipt of the Final Order.\n6. Item 4 of the Proposed Compliance Order must be completed and documented\nwithin 90 days after receipt of the Final Order. Enterprise shall submit\ndocumentation to the Director, Central Region, PHMSA demonstrating that\ntraining, evaluation, and qualification of personnel is complete.\n7. Enterprise shall maintain documentation of the safety improvement costs\nassociated with fulfilling this Compliance Order and submit the total to Ivan A.\nHuntoon, Director, Central Region, Pipeline and Hazardous Materials Safety\nAdministration. Costs shall be reported in two categories: 1) total cost\nassociated with preparation/revision of plans, procedures, studies and analyses,\nand 2) total cost associated with replacements, additions and other changes to\npipeline infrastructure.\n6\n\n320095022_Closure_08262013_text.pdf\n\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nAugust 26, 2013\nMr. Terry Hurlburt\nVice President - Operations\nEnterprise Products Operating LLC\n1100 Louisiana Street\nHouston, Texas 77002\nCPF 3-2009-5022\nDear Mr. Hurlburt:\nOn August 14, 2012, the Pipeline and Hazardous Materials Safety Administration\n(PHMSA) issued to Enterprise Products Operating, LLC a Final Order in the above-\nreferenced case. This Order included a Compliance Order and Civil Penalty assessment.\nBased on our review of the documentation you provided and confirmation of payment of\nthe civil penalty, it has been determined that you have complied with the terms of this\nOrder.\nAccordingly, this case is now closed and no further action is contemplated with respect to\nthe matters involved in this case. Thank you for your cooperation in this matter.\nSincerely,\nLinda Daugherty\nDirector, Central Region\nPipeline and Hazardous Materials Safety Administration\n\n320095022_Final Order_08142012_text.pdf\n\nAugust 14, 2012\nMr. Michael A. Creel\nPresident and CEO\nEnterprise Products Operating, LLC\n1100 Louisiana Street\nHouston, TX 77002\nRe: CPF No. 3-2009-5022\nDear Mr. Creel:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a civil penalty of $466,200. It further specifies actions that need to be\ntaken by Enterprise to comply with the pipeline safety regulations. The penalty payment terms\nare set forth in the Final Order. When the civil penalty has been paid and the terms of the\ncompliance order satisfied, as determined by the Director, Central Region, this enforcement\naction will be closed. Service of the Final Order by certified mail is deemed effective upon the\ndate of mailing, or as otherwise provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. David Barrett, Director, Central Region, OPS\nMr. Alan Mayberry, Deputy Associate Administrator for Field Operations, OPS\nEdward C. Lewis, Esquire, Fulbright & Jaworski, LLP, Counsel for Enterprise Products\nOperating, LLC\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 )\nEnterprise Products Operating, LLC, ) CPF No. 3-2009-5022\n)\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nIn September 2007, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), opened\nan investigation of an incident involving the hazardous liquid pipeline system operated by\nEnterprise Products Operating, LLC (Enterprise or Respondent), in Clark County, Kansas.\nRespondent is a subsidiary of Enterprise Products Partners, LP, which transports natural gas,\nNGL crude oil, refined products, and petrochemicals through more than 50,000 miles of pipeline\nin North America.1\nThe investigation arose out of an incident that occurred on Enterprise’s 12-inch “Brown” line\n(Brown Pipeline) in Clark County, Kansas, approximately three miles north of Englewood,\nKansas, at Mile Post (MP) 362, on September 11, 2007 (Incident). The Brown Pipeline begins in\nSkellytown, Texas, and runs through Conway, Kansas; the total system is approximately 1,150\nmiles. The Incident resulted in the release of approximately 14,763 barrels of a highly volatile\nliquid (HVL), specifically, Y-grade de-methanized NGL mix. Due to its proximity to the Brown\nPipeline and the continuing release of flammable product, State Highway 283 was closed for five\ndays.2\nAs a result of the investigation, the Director, Central Region, OPS (Director), issued to\nRespondent, by letter dated October 28, 2009, a Notice of Probable Violation, Proposed Civil\nPenalty, and Proposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the\nNotice proposed finding that Enterprise had committed various violations of 49 C.F.R. Part 195,\nproposed assessing a civil penalty of $466,200 for the alleged violations, and proposed ordering\nRespondent to take certain measures to correct the alleged violations.\nEnterprise responded to the Notice by letter dated November 25, 2009 (Response). The\n1 http://www.enterpriseproducts.com/corpProfile/businessProfile.shtm (last accessed December 27, 2011).\n2 Pipeline Safety Violation Report (Violation Report), CPF 3-2009-5022, October 28, 2009 (on file with PHMSA).\n\n\n\n2\ncompany contested the allegations and requested a hearing, which was subsequently held on May\n11, 2010, in Kansas City, Missouri, with an attorney from the Office of Chief Counsel, PHMSA,\npresiding. At the hearing, Enterprise was represented by counsel. After the hearing, Enterprise\nprovided a post-hearing statement for the record by letter dated June 18, 2010 (Closing).\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.422(a), which states:\n§ 195.422 Pipeline repairs.\n(a) Each operator shall, in repairing its pipeline systems, insure that the\nrepairs are made in a safe manner and are made so as to prevent damage to\npersons or property.\nThe Notice alleged that Enterprise violated 49 C.F.R. § 195.422(a) by failing to insure, during\nthe repair of its pipeline system, that the repairs were made in a safe manner and so as to prevent\ndamage to persons or property. Specifically, it alleged that on the day before the Incident,\nbypass piping was installed as part of an effort to remove a maintenance “pig” that had become\nlodged in the pipeline. The Notice further alleged that the company’s own post-incident failure\nanalysis concluded that the failure was caused by the incorrect installation of the connection of a\ntwo-inch ball valve to a two-inch fitting on the bypass piping, resulting in damage to the\nthreads.3\nIn its Response, at the hearing, and in its Closing, Enterprise maintained that the repair had been\nmade correctly and safely, and asserted that the fact that an incident occurred did not mean that\nthe repair had not been made in a safe manner. As stated in the job plan for the repair project,\nEnterprise contended that it had taken “extensive steps to ensure that the bypass project ‘was\nperformed in a good and workmanlike manner enforcing all company policies, procedures,\nspecifications, and guidelines.’”4 Enterprise also stated that it had taken “every reasonable\nprecaution to ensure that the bypass project was performed safely,” even listing some of the\nprecautionary measures it had taken in preparation for the project.5 The company further\nasserted that “under PHMSA’s analysis, any accident following a pipeline repair would\nconstitute a violation of 49 C.F.R. § 195.422,” and that such a conclusion was “inappropriate,\narbitrary, and capricious.”6\nEnterprise is correct that the mere fact an incident occurs following an accident does not\nconstitute a violation per se of the regulation. The heart of the alleged violation, however, is that\n3 Notice at 2.\n4 Response at 3.\n5 Id. at 3-4\n6 Response at 3, Closing at 3.\n\n\n\n3\nthe company failed to conduct the repair in a safe manner and so as to prevent damage to persons\nor property. Over-tightening a threaded connection can easily damage the threads on the pipe,\nresulting in threads that are either not fully engaged or are over-engaged when assembled. This\ncan lead to a failure at the pipe connection or excessive stress on the connection. In this case, the\nrecord shows that Enterprise had no procedures in its Operations and Maintenance Manual\n(O&M Manual) or in the Job Plan for this specific repair on how to make a threaded connection\nsafely. Enterprise employees who were interviewed after the Incident reported that they had\nsimply tightened the fitting as hard as they could, using the largest wrench they had available.\nAccording to Enterprise’s own report, the most probable cause of the failure was incorrect\ninstallation of the 2” ball valve. The report states: “Overall damage to the TOR [thread-o-ring]\nexternal threads indicated that the valve was improperly placed on the TOR and tightened,\nresulting in damage to the internal valve threads and external TOR threads.”7 This conclusion is\nfurther supported by the “out-of-roundness of the TOR threads” and “statements from field\npersonnel noting that the plug separated from the pilot of the removal tool when extracted.”8\nThe cause of the Incident was the failure of the threaded connection, which was an element of\nthe repair.9 That the repair itself caused the failure is a strong indication that the repair work was\nnot performed in a safe manner and so as to prevent damage to persons or property. Accordingly,\nafter considering all of the evidence and the legal issues presented, I find that Respondent\nviolated 49 C.F.R. § 195.422(a) by failing to insure that the installation of the bypass was made\nin a safe manner and so as to prevent damage to persons or property.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(c)(3), which states:\n§ 195.402 Procedural manual for operations, maintenance, and\nemergencies.\n(a) General. Each operator shall prepare and follow for each pipeline system a\nmanual of written procedures for conducting normal operations and maintenance\nactivities and handling abnormal operations and emergencies. This manual shall\nbe reviewed at intervals not exceeding 15 months, but at least once each calendar\nyear, and appropriate changes made as necessary to insure that the manual is\neffective. This manual shall be prepared before initial operations of a pipeline\nsystem commence, and appropriate parts shall be kept at locations where\noperations and maintenance activities are conducted….\n(c) Maintenance and normal operations. The manual required by paragraph\n(a) of this section must include procedures for the following to provide safety\nduring maintenance and normal operations:\n(1) ….\n(3) Operating, maintaining, and repairing the pipeline system in accordance\n7 Violation Report, Exhibit A, Description of Bypass Failure, MAPL South Leg (12” Brown Line), Derek Gilboe,\nPEng, February 14, 2008, at 4.\n8 Id.\n9 Id.\n\n\n\n4\nwith each of the requirements of this subpart and subpart H of this part….\nThe Notice alleged that Enterprise violated 49 C.F.R. § 195.402(c)(3) by failing to include\nprocedures in its O&M Manual for adequate safety during maintenance and normal operations.\nSpecifically, the manual had no written procedures for installing threaded pipefittings in\nconnection with repairs made in accordance with the requirements of Subpart F.10\nIn its Response, Enterprise stated that its O&M Manual and Operator Qualification (OQ)\nDocumentation complied with § 195.402(c)(3) by requiring that all repairs “be made in a manner\nthat is safe and will prevent injury to persons or damage to property,” that “no valve, pipe or\nfitting… be used… unless it is designed, constructed and tested as required in the Company\nEngineering Design Standards,” and that repairs “be made in accordance with ANSI B31.4,\nParagraph 434.5….”11 However, at the hearing and in its Closing, Enterprise admitted that it had\nno detailed procedures in its O&M Manual for making threaded connections and did not contest\nthe alleged violation.12\nAccordingly, after considering all of the evidence, I find that Respondent violated\n49 C.F.R. § 195.402(c)(3) by failing to include procedures in its O&M Manual for adequate\nsafety in repairing its pipeline system in accordance with the requirements of Subpart F.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 195.505(a), which states:\n§ Sec. 195.505 Qualification program.\nEach operator shall have and follow a written qualification program.\nThe program shall include provisions to:\n(a) Identify covered tasks….\nThe Notice alleged that Enterprise violated 49 C.F.R. § 195.505(a) by failing to have and follow\na written qualification program that included adequate provisions to identify “covered tasks,” as\nthat term is defined under § 195.501(b). Specifically, it alleged that Enterprise did not include\npipefitting in its list of covered tasks even though § 195.422 requires all repairs to be “made in a\nsafe manner” and “so as to prevent damage to persons or property.” The Notice explained that\npipefitting, as a covered task, would include the assembly of threaded pipe connections and that\nit met the four-part test for covered tasks under § 195.501(b) for making repairs on Enterprise’s\npipeline system.\nThroughout this proceeding, Enterprise has argued that pipefitting is not a covered task because\nit does not meet the four-part test in § 195.501(b). That regulation defines a covered task as any\nactivity that (1) is performed on a pipeline facility, (2) is an operations or maintenance task, (3)\nis performed as a requirement of Part 195, and (4) affects the operation or integrity of the\npipeline. Specifically, the company contends that pipefitting does not satisfy the third prong of\n10 Notice at 2.\n11 Response at 4.\n12 Closing at 3.\n\n\n\n5\nthe test because Part 195 “must include a requirement specifically regulating the activity” but\nthere is no specific requirement in Part 195 regarding the use of pipefitting in making safe\nrepairs.13\nAs a preliminary matter, it may be helpful to describe generally the role of pipefitting in the\noperations and maintenance of pipelines. Pipefitting is the work of fabricating, constructing,\noperating, and maintaining piping systems in many industries, and most pipeline repair\noperations involve a pipefitting task of some kind. In this particular case, the repair involved the\nassembly of threaded steel pipe. Pipefitting that is not performed correctly can cause safety and\nintegrity risks to a pipeline. A pipefitting task that does not follow all the required procedures\ncan cause a future failure or a condition that would require a pipeline to be shut down for further\nrepair.\nEnterprise presented three main arguments why it believes pipefitting does not meet the third\nprong of the test for covered tasks. First, the company argues that the rulemaking history of\nSubpart G of Part 195, Qualification of Pipeline Personnel, indicates that the intent of the rule is\nto include only those tasks “specifically regulated through very specific requirements” in Part\n195.14\nAccording to Enterprise, the preamble of the final rule provides five examples of activities that\nqualify as covered tasks, and each one represents a task that is specifically required by a\nparticular regulation.\n15 In contrast, PHMSA has relied in this case upon a “general provision” in\n§ 195.422 that repairs be made “in a safe manner.” The company argues that the lack of a\nspecific regulation about the installation of threaded pipe in Part 195 indicates a conscious\ndecision by PHMSA not to make pipefitting a covered task. If PHMSA had wanted to regulate\nthe joining of threaded steel pipe, it could have easily done so, just as it had done for certain\nwelding practices.\n16\n13 Closing at 5.\n14 Id. at 6.\n15 Closing at 5-6; 64 FR 46860. Enterprise cites five examples from the preamble of the rule: purging a pipeline;\nleakage surveys of distribution lines; starting, operating and shutting down gas compressor units; inspection of\nnavigable water crossings; and inspection of breakout tanks.\n16 Id. at 10-11. Enterprise further argues that the omission of any specific regulation in Part 195 about pipefitting\nshould be interpreted in the same way as an omission in a statute. Roberto v. Department of Navy, 440 F.3d 1341,\n1350 (Fed. Cir. 2006). That case, however, states: “When construing a regulation or statute, it is appropriate first to\nexamine the regulatory language itself to determine its plain meaning…. If the regulatory language is clear and\nunambiguous, the inquiry ends with the plain meaning. However, if the regulation is silent or ambiguous, the court\nthen gives deference to the agency's own interpretations.” [Citations omitted].\nThe company also finds significance in the removal of certain language from the final rule that had appeared in the\nproposed rule. The proposed rule proposed that activities conducted “pursuant to requirements” in Part 195 satisfied\nthe third prong of the four-part test; the final rule substituted the phrase “performed as a requirement of this Part.”\nEnterprise argues this change demonstrates an intent on the part of the agency to limit covered tasks only to those\nspecifically required by a particular regulation. The final rule, however, indicated that the regulatory text was\nchanged simply as a clarification and gave no indication it was intended as a substantive revision. I would also note\nthat the heading in the preamble of the final rule still retained the phrase, “Tasks Performed Pursuant to a\nRequirement in 49 CFR Part 192 or 195.” Id. at 7-8; FR 46860.\n\n\n\n6\nI do not read the final rule so narrowly. If Part 195 requires an operator to perform a certain\nactivity, then an operator is obliged to identify the specific covered tasks it performs as part of\ncarrying out that required activity. In this case, Respondent concedes that making repairs in a\nsafe manner, as required by § 195.422, constitutes a covered task.17\nMaking pipeline repairs in a safe manner involves myriad tasks that may vary from one job to\nanother or from one operator to another. The regulation provides flexibility for each operator to\nidentify those particular repair tasks that meet the four-part test and to ensure that individuals\nperforming such covered tasks are properly qualified.\nMany of the pipeline safety regulations, including § 195.422, contain performance-based, rather\nthan prescriptive, requirements. Unlike the latter, performance-based regulations require\nproactive planning, operations, and accountability by an operator for its own unique systems. If\ncovered tasks only include those activities that are specifically regulated by Parts 192 and 195,\nno performance-based regulation would ever constitute an OQ “requirement” since, by\ndefinition, a performance-based requirement (e.g., that a repair be made “in a safe manner”) does\nnot consist of specific, detailed procedures that must be followed by each operator.\nI interpret § 195.505 more broadly. The OQ regulations require operators to identify covered\ntasks for all of their operations and maintenance activities that are required by Parts 192 and 195,\nregardless of whether such activities arise from performance-based regulations or from more\nprescriptive requirements. For those that are performance-based regulations, such as § 195.422,\nthis means determining which tasks are so integral to meeting the requirements of the regulations\nthat they need to be treated as separate covered tasks under the third prong of the test.\nIn this case, Enterprise asserts that pipefitting should not be considered a separate covered task\nunder the requirement of making repairs safely under § 195.422. However, a careful review of\nthe record shows that for this particular repair, Enterprise itself identified multiple separate\ncovered tasks, including “Install Mechanical Bolt on Clamp,” “Install Full Encirclement Weld\nSleeve,” “Install Composite Repair Sleeve,” “Operate/Maintain Stopple Equipment,” and\n“Operate/Maintain Hot Tapping Equipment,” and explicitly referenced the general safe-repair\nrequirement found in § 195.422 as constituting the regulatory basis for each task.\n18 Therefore,\nby its own actions and treatment of other repair-related activities related to this particular project,\nEnterprise recognized that other critical activities were covered tasks, even though they were not\n“specifically required” by particular regulations in Part 195. Pipefitting is no different.19\n17 Response at 5.\n18 Response at Section 5.\n19 Both Enterprise and OPS cited the positions taken by different trade and standards-setting organizations to\nsupport their respective positions. OPS cited the position of the ASME B31Q Committee’s Pipeline Personnel\nQualification Standard (PPQ Standard) that the joining of threaded pipe constitutes a covered task. Enterprise\ncountered that the PPQ Standard defines the term “covered task” more broadly than § 195.501(b), and that therefore\nthe B31Q Committee’s position is irrelevant. Enterprise also pointed out that the American Petroleum Institute\n(API) Operator Qualification Workgroup Committee concluded that joining threaded pipe is not a covered task. I\nwould note that neither the API nor the ASME definition of “covered task” is incorporated by reference into the\n\n\n\n7\nIn this case, it is undisputed that § 195.422 requires repairs to be made safely and that Enterprise\nproperly treated the regulation as a regulatory requirement. The company also prepared a\ndetailed job plan that identified various sub-tasks for this particular repair project that included\nseparate and discrete covered tasks, ostensibly because they were integral to the more general\nrepair requirement and met the four-part test. It failed, however, to identify pipefitting as a\nseparate task even though it too was an essential part of safely repairing the line.\nSecond, Enterprise argued that it would be overly broad to treat each separate and discrete\nelement of performing pipeline repairs, such as joining threaded pipe, as a covered task. The\ncompany contended that if covered tasks were defined so broadly, it would “bootstrap all\npipeline maintenance and repair activities as ‘covered tasks’” and render the third prong of the\nfour-part test “superfluous.”20\nI disagree. Any maintenance or repair task must satisfy all four prongs of the test in\n§ 195.501(b) to be considered a covered task. Certain common tasks involved in making safe\nrepairs would not be considered covered tasks if they failed to satisfy each of the other three\nprongs. For example, reading a voltmeter is a common task involved in making many pipeline\nrepairs, but since it is not an operations and maintenance activity, it would not constitute a\ncovered task in and of itself.\nPHMSA explained in the preamble of the final rule that the four-part test should not be read too\nbroadly. It used the activity of welding as an example of an activity that might sometimes be a\ncovered task and sometimes not, depending upon the circumstances under which it was\nperformed. If welding were performed as an operations and maintenance activity, such as when\ninstalling a weld-over sleeve to repair an anomaly, then it would be considered a covered task.\nOn the other hand, if welding were performed during the fabrication of new installations, then it\nwould not be an operations and maintenance activity and therefore not a covered task.\n21\nIn similar fashion, pipefitting may be considered a covered task under certain circumstances but\nnot others. Just because pipefitting should have been included as a covered task in performing\nthe repair in question does not mean that it always needs to be in all situations. I therefore reject\nRespondent’s argument that the inclusion of pipefitting as a covered task in meeting the\nrequirements of § 195.422 in this case renders the third prong of the test overly broad or\n“superfluous.”\nThird, Enterprise argued that PHMSA had been inconsistent in its treatment of pipefitting as a\ncovered task. The company cited a Notice of Amendment case, Valero Terminaling and\nDistribution Company, CPF No. 4-2008-5003M, as showing that PHMSA had not consistently\npipeline safety regulations. While the positions of industry groups are useful and relevant in the interpretation of\nPHMSA regulations, they are not determinative.\n20 Closing at 7.\n21 64 FR 46860.\n\n\n\n8\nconsidered the joining of threaded pipe as a covered task under Part 195.22 Enterprise claimed\nthat the case “addressed an alleged failure of Valero to include joining of threaded pipe as a\ncovered task under Part 195 in its OQ manual.”23 However, PHMSA alleged only that Valero\nneeded to finalize the development of internal training modules for the task of threaded pipe; the\ncase did not address the need to identify pipefitting as a covered task.24 While Valero stated that\nit did not consider the joining of threaded pipe to be a covered task, it did not explain which\nelement of the four-part test was not met, and the communications between PHMSA and Valero\ndid not address this issue.\nIn rebuttal, the agency cited several other Notices of Amendment (NOAs) issued to other\npipeline operators on this issue. While Enterprise noted that none of these NOAs set forth a legal\nrationale for PHMSA’s position,\n25 these NOAs still demonstrate that the agency has considered\nboth pipefitting26 generally and the assembly of threaded connections27 specifically as covered\ntasks for other operators and has required operators to be more specific than simply listing\nrepairs as a single task.\nIn summary, upon consideration of all of the evidence and the legal issues presented, I find that\nRespondent violated 49 C.F.R. § 195.505(a) by failing to properly identify pipefitting, when\nperformed during pipeline repairs as required by § 195.422, as a covered task in its written\nqualification program. In reaching this conclusion, I reject Enterprise’s various arguments that\npipefitting does not satisfy the third prong of the four-part test used to determine whether a\nparticular activity qualifies as a covered task.\nI would note this finding does not reach the larger issue of whethe","truncated":true,"body_characters":57825}