{"operation":"document","citation":"CPF 32021042NOPV","title":"KINDER MORGAN UTOPIA LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2021-05-24","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.310(a), 195.402(a), 195.412(a), 195.49.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-32021042nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-32021042nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-32021042nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/32021042NOPV","body":"Notice of Probable Violation involving KINDER MORGAN UTOPIA LLC. PHMSA's enforcement data identifies the cited regulations as 195.310(a),  195.402(a),  195.412(a),  195.49. The case was opened on 2021-05-24 and is reported as closed as of 2022-09-12. Proposed civil penalty: $17,200. Assessed civil penalty: $0. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n32021042NOPV_Closure Letter_09122022_(21-209923).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021042NOPV/32021042NOPV_Closure%20Letter_09122022_(21-209923).pdf\n\n32021042NOPV_Closure Letter_09122022_(21-209923)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021042NOPV/32021042NOPV_Closure%20Letter_09122022_(21-209923)_text.pdf\n\n32021042NOPV_Final Order_10132021_(21-209923).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021042NOPV/32021042NOPV_Final%20Order_10132021_(21-209923).pdf\n\n32021042NOPV_Final Order_10132021_(21-209923)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021042NOPV/32021042NOPV_Final%20Order_10132021_(21-209923)_text.pdf\n\n32021042NOPV_Operator Response to Notice_06232021_(21-209923).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021042NOPV/32021042NOPV_Operator%20Response%20to%20Notice_06232021_(21-209923).pdf\n\n32021042NOPV_PCP PCO_05242021_(21-209923).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021042NOPV/32021042NOPV_PCP%20PCO_05242021_(21-209923).pdf\n\n32021042NOPV_PCP PCO_05242021_(21-209923)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021042NOPV/32021042NOPV_PCP%20PCO_05242021_(21-209923)_text.pdf\n\n32021042NOPV_Final Order_10132021_(21-209923)_text.pdf\n\nOctober 13, 2021\nVIA ELECTRONIC MAIL TO: tom martin@kindermorgan.com\nTom Martin\nPresident, Gas Pipelines\nKinder Morgan, Inc.\n1001 Louisiana Street, Suite 1000\nHouston, Texas 77002\nRe: CPF No. 3-2021-042-NOPV\nDear Mr. Martin:\nEnclosed please find the Final Order issued in the above-referenced case. It withdraws one of\nthe allegations of violation, makes other findings of violation, and specifies actions that need to\nbe taken by Kinder Morgan Utopia, LLC to comply with the pipeline safety regulations. When\nthe terms of the compliance order have been completed, as determined by the Director, Central\nRegion, this enforcement action will be closed. Service of the Final Order by electronic mail is\neffective upon the date of transmission as provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Gregory Ochs, Director, Central Region, Office of Pipeline Safety, PHMSA\nMr. Kenneth Grubb, Chief Operating Officer, Natural Gas Pipelines, Kinder Morgan,\nkenneth_grubb@kindermorgan.com\nMr. Jaime Hernandez, Director, Engineering, Codes and Compliance, Kinder Morgan,\njaime_hernandez@kindermorgan.com\nCONFIRMATION OF RECEIPT REQUESTED\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\n)\nIn the Matter of )\n)\nKinder Morgan Utopia, LLC, ) CPF No. 3-2021-042-NOPV\na subsidiary of Kinder Morgan, Inc., )\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nFrom March 4, 2019, through September 27, 2019, pursuant to 49 U.S.C. § 60117,\nrepresentatives of the Pipeline and Hazardous Materials Safety Administration (PHMSA), Office\nof Pipeline Safety (OPS), conducted an on-site pipeline safety inspection of the facilities and\nrecords of Kinder Morgan Utopia, LLC (KM Utopia or Respondent) in Ohio and Michigan,\nspecifically, KM Utopia’s roughly 266 miles of pipeline that transports natural gas liquids,\nprimarily ethane, from Harrison County, Ohio through Detroit, Michigan and across the Detroit\nRiver into Ontario, Canada.\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated May 24, 2021, a Notice of Probable Violation, Proposed Civil Penalty, and\nProposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the Notice\nproposed finding that KM Utopia had committed two violations of 49 C.F.R. Part 195, proposed\nassessing a civil penalty of $17,200 for the alleged violations, and proposed ordering Respondent\nto take certain measures to correct the alleged violations. The Notice also included an additional\ntwo warning items pursuant to 49 C.F.R. § 190.205, which required no further action, but warned\nthe operator to correct the probable violations or face possible future enforcement action.\nKM Utopia responded to the Notice by letter dated June 23, 2021 (Response). Respondent\ncontested one of the allegations, offered additional information in response to the Notice, and\nrequested that the proposed civil penalty be eliminated. Respondent did not request a hearing\nand therefore has waived its right to one.\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.310(a), which states:\n\n\n\nCPF No. 3-2021-042-NOPV\nPage 2\n§ 195.310 Records.\n(a) A record must be made of each pressure test required by this subpart,\nand the record of the latest test must be retained as long as the facility tested\nis in use.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.310(a) by failing to have complete\npressure test records. At the time of inspection, KM Utopia provided pressure test records for its\npipeline segments 1a, 1b, 2ab, 2c, 2d, 2e1, and 2e2 that were either missing information required\nby § 195.310(b), incomplete according to Respondent’s procedure L-O&M1600 Section 8.1e, or\nboth. Specifically, the Notice alleged that KM Utopia failed to provide temperature recorder\ncalibration certificates and associated records for segment 1b and pressure recorder calibration\ncertificates and associated records for segment 2ab, as required by § 195.310(b). Further, the\nNotice alleged Respondent’s “Hydrotest Test Report”1 records for segments 1a, 1b, 2ab, 2c, 2d,\n2e1, and 2e2 failed to identify the serial numbers of the deadweight tester and the pressure and\ntemperature chart recorder as their procedures required. KM Utopia’s records for segments 2c,\n2d, 2e1, and 2e2 also indicated the use of a pressure recorder but no corresponding pressure\ncalibration records were submitted by the Respondent.\nIn its Response, KM Utopia contested PHMSA’s allegations and noted that, while all of the\nrelevant pressure test information had not been provided during the inspection, the Respondent\nhad records of nearly all of the information required to comply with § 195.310(a) at that time.\nRespondent asserted that, if PHMSA had more specifically identified its concerns, it would have\nbeen able to provide PHMSA with the records needed to show compliance. KM Utopia also\nnoted that it had been able to acquire the one record it was missing from a vendor.2 As part of its\nResponse, KM Utopia provided PHMSA with the additional records.\nUpon review of these documents, the Regional Director submitted a written evaluation of the\nresponse material pursuant to § 190.209(b)(7) confirming the records evidence compliance with\nthe requirements of § 195.310(a). Accordingly, after considering all of the evidence, I withdraw\nthe alleged violation.\nIn the future, Respondent is reminded that it must provide all reasonable assistance during an\ninspection and must make records and information available when requested by PHMSA to\nfacilitate a compliance review. Respondent may not wait until enforcement has commenced\nbefore providing records previously requested by PHMSA as evidence of compliance.\nItem 4: The Notice alleged that Respondent violated 49 C.F.R. § 195.412(a), which states:\n§ 195.412 Inspection of rights-of-way and crossings under navigable\n1 The Notice describes these records as the “Hydrotest Test Reports” while the Response describes these records as\n“Hydrostatic Test Reports.” For consistency, I will use the term “Hydrotest Test Reports.” Compare Notice, at 3,\nwith Response, at 4.\n2 KM Utopia conceded that it did not realize that a vendor had failed to provide the company with the temperature\nrecorder calibration certificate for segment 1b until after receipt of the Notice. See Response, at 4–5.\n\n\n\nCPF No. 3-2021-042-NOPV\nPage 3\nwaters.\n(a) Each operator shall, at intervals not exceeding 3 weeks, but at least\n26 times each calendar year, inspect the surface conditions on or adjacent\nto each pipeline right-of-way. Methods of inspection include walking,\ndriving, flying or other appropriate means of traversing the right-of-way.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.412(a) by failing to use appropriate\nmethods to inspect the surface conditions on or adjacent to certain pipeline rights-of-way.\nSpecifically, the Notice alleged that KM Utopia failed to employ appropriate methods for\ninspecting the surface conditions on or adjacent to the pipeline right-of-way at one location in\nPHMSA Unit 84290 and at eight locations in PHMSA Unit 89739.3 PHMSA inspectors\nreviewed Respondent’s aerial patrol information for PHMSA Unit 849290 and walked portions\nof the right-of-way in PHMSA Unit 89739 and noted these locations as areas where aerial patrol\nwas inappropriate but where KM Utopia was unable to provide records that it had employed an\nalternative appropriate means of inspecting the surface conditions.\nIn its Response, KM Utopia did not contest this allegation of violation. Accordingly, after\nconsidering all of the evidence, I find that Respondent violated 49 C.F.R. § 195.412(a) by failing\nto use appropriate methods to inspect the surface conditions on or adjacent to pipeline rights-of-\nway at one location in PHMSA Unit 84290 and at eight locations in PHMSA Unit 89739.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any\nrelated series of violations.4\nIn determining the amount of a civil penalty under 49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I\nmust consider the following criteria: the nature, circumstances, and gravity of the violation,\nincluding adverse impact on the environment; the degree of Respondent’s culpability; the history\nof Respondent’s prior offenses; any effect that the penalty may have on its ability to continue\ndoing business; the good faith of Respondent in attempting to comply with the pipeline safety\nregulations; and self-disclosure or actions to correct a violation prior to discovery by PHMSA.\nIn addition, I may consider the economic benefit gained from the violation without any reduction\nbecause of subsequent damages, and such other matters as justice may require. The Notice\n3 The locations were in PHMSA Unit 84290 near Ridge Road and Strasburg Bolivar Road and in PHMSA Unit\n89739 at Sandusky River crossing, at Wolfe Creek crossing, at Muskellunge Creek, at the Rock Quarry near the\nmarker that still referenced Plains Pipeline at the time of inspection, at the railroad crossing near Mile Post 169.1,\nnear 1031 Kieswetter Road in Holland, Ohio, at Oak Valley road, and near 8716 Willow Boulevard in Sylvania,\nOhio. See Notice, at 4–5.\n4 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223.\n\n\n\nCPF No. 3-2021-042-NOPV\nPage 4\nproposed a total civil penalty of $17,200 for the violations cited above.\nItem 2: The Notice proposed a civil penalty of $17,200 for Respondent’s alleged violation of\n49 C.F.R. § 195.310(a). Since this alleged violation has been withdrawn, the proposed penalty is\nnot assessed.\nCOMPLIANCE ORDER\nThe Notice proposed a compliance order with respect to Item 4 in the Notice for violation of\n49 C.F.R. § 195.412(a). Under 49 U.S.C. § 60118(a), each person who engages in the\ntransportation of hazardous liquids or who owns or operates a pipeline facility is required to\ncomply with the applicable safety standards established under chapter 601. Pursuant to the\nauthority of 49 U.S.C. § 60118(b) and 49 C.F.R. § 190.217, Respondent is ordered to take the\nfollowing actions to ensure compliance with the pipeline safety regulations applicable to its\noperations:\n1. With respect to the violation of § 195.412(a) (Item 4), Respondent must submit a\nplan and schedule of action that includes clearing the right-of-way and for using other\nmethods of inspection when clearing is not possible or has not yet occurred for the\nidentified locations. The plan must include identifying sections of pipeline right-of-\nway throughout the system that are overgrown and will remain overgrown for a\nperiod of time while awaiting clearing or will not be cleared. For these sections\nidentified in Item 4, if KM Utopia has already performed clearing actions since the\ntime of the inspection and receipt of this Final Order, the records associated with this\naction must be provided as part of the plan submitted. KM Utopia must use an\nalternate means of inspection, as opposed to flying, to comply with inspection of the\nsurface conditions on or adjacent to the pipeline right-of-way as required by\n§ 195.412 until cleared. KM Utopia must provide the plan and action schedule within\n30 days from the date of receipt of the Final Order to the Director, Central Region.\nKM Utopia must implement the plan and schedule within 120 days from the date of\nreceipt of the Final Order. Inspection records for the cleared and uncleared locations\nin Item 4 shall be provided to the Director, Central Region for six months following\nreceipt of the Final Order.\nThe Director may grant an extension of time to comply with any of the required items upon a\nwritten request timely submitted by the Respondent and demonstrating good cause for an\nextension.\nPHMSA requests that Respondent maintain documentation of the safety improvement costs\nassociated with fulfilling this Compliance Order and submit the total to the Director. It is\nrequested that these costs be reported in two categories: (1) total cost associated with\npreparation/revision of plans, procedures, studies, and analyses; and (2) total cost associated with\nreplacements, additions, and other changes to pipeline infrastructure.\nFailure to comply with this Order may result in the administrative assessment of civil penalties\n\n\n\nCPF No. 3-2021-042-NOPV\nPage 5\nnot to exceed $200,000, as adjusted for inflation (see 49 C.F.R. § 190.223), for each violation for\neach day the violation continues or in referral to the Attorney General for appropriate relief in a\ndistrict court of the United States.\nWARNING ITEMS\nWith respect to Items 1 and 3, the Notice alleged probable violations of Part 195, but identified\nthem as warning items pursuant to § 190.205. The warnings were for:\n49 C.F.R. § 195.49 (Item 1) ─ Respondent’s alleged failure to comply with the\nDOT Form PHMSA F 7000-1.1 instructions by failing to report accurate HCA-\nrelated mileage in 2019 and by reporting no commercially navigable river mileage\ndespite the pipeline crossing the Detroit River, a commercially navigable river;\nand\n49 C.F.R. § 195.402(a) (Item 3) ─ Respondent’s alleged failure to follow its\nwritten procedures by failing to conduct the 2018 annual review of its Emergency\nResponse Plan as required under § 195.402, KM Utopia’s procedure L-O&M-003\ntitled “Procedure Review,” and its Emergency Response Plan.\nKM Utopia requested withdrawal of Item 3, because it contends that PHMSA has\nmischaracterized the requirements of KM Utopia’s procedures and § 195.402(a). Under\n§ 190.205, PHMSA does not adjudicate warning items to determine whether a probable violation\noccurred. If OPS finds a violation of any of these items in a subsequent inspection, Respondent\nmay be subject to future enforcement action.\nUnder 49 C.F.R. § 190.243, Respondent may submit a Petition for Reconsideration of this Final\nOrder to the Associate Administrator, Office of Pipeline Safety, PHMSA, 1200 New Jersey\nAvenue, SE, East Building, 2nd Floor, Washington, DC 20590, with a copy sent to the Office of\nChief Counsel, PHMSA, at the same address, no later than 20 days after receipt of service of this\nFinal Order by Respondent. Any petition submitted must contain a statement of the issue(s) and\nmeet all other requirements of 49 C.F.R. § 190.243. The terms of the order, including corrective\naction, remain in effect unless the Associate Administrator, upon request, grants a stay.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nOctober 13, 2021\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n32021042NOPV_Closure Letter_09122022_(21-209923)_text.pdf\n\nVIA ELECTRONIC MAIL TO: tom martin@kindermorgan.com;\njaime_hernandez@kindermorgan.com\nSeptember 12, 2022\nTom Martin\nPresident, Gas Pipelines\nKinder Morgan, Inc.\n1001 Louisiana St., Suite 1000\nHouston, TX 77002\nRe: CPF 3-2021-042-NOPV\nDear Mr. Martin:\nOn October 13, 2021, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\nissued to Kinder Morgan Utopia, LLC (KM Utopia) a Final Order in the above-referenced case.\nThis Order included a Compliance Order requirement to take corrective actions on your pipeline\nsystem. Based on our review of the documentation you provided, it has been determined that KM\nUtopia has complied with the terms of this Order.\nAccordingly, this case is now closed and no further action is contemplated with respect to the\nmatters involved in this case. Thank you for your cooperation in this matter.\nSincerely,\nGregory A. Ochs\nDirector, Central Region, OPS\nPipeline and Hazardous Materials Safety Administration\ncc: Jaime Hernandez, Director – Engineering: Codes and Standards,\njaime_hernandez@kindermorgan.com","truncated":false,"body_characters":18035}