# DAKOTA MIDSTREAM — Notice of Probable Violation

- **operation:** document
- **citation:** CPF 32021059NOPV
- **title:** DAKOTA MIDSTREAM — Notice of Probable Violation
- **source type:** enforcement
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2021-12-30
- **effective on:** Not available
- **summary:** CLOSED notice of probable violation citing 194.107(c)(1)(ix), 194.117(b)(1), 195.208, 195.264(b)(1)(i), 195.402(c)(13), 195.420(b), 195.428(a), 195.430, 195.436, 195.438, 195.440(c), 195.440(d), 195.573(a)(1), 195.573(e), 195.581(a), 195.61(b).
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**body:**

Notice of Probable Violation involving DAKOTA MIDSTREAM. PHMSA's enforcement data identifies the cited regulations as 194.107(c)(1)(ix),  194.117(b)(1),  195.208,  195.264(b)(1)(i),  195.402(c)(13),  195.420(b),  195.428(a),  195.430,  195.436,  195.438,  195.440(c),  195.440(d),  195.573(a)(1),  195.573(e),  195.581(a),  195.61(b). The case was opened on 2021-12-30 and is reported as closed as of 2023-08-08. Proposed civil penalty: $204,000. Assessed civil penalty: $204,000. Open the official case record for notices, responses, orders, and the latest status.

Official case documents:

32021059NOPV_Closure Letter_08082023_(21-200404).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021059NOPV/32021059NOPV_Closure%20Letter_08082023_(21-200404).pdf

32021059NOPV_Closure Letter_08082023_(21-200404)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021059NOPV/32021059NOPV_Closure%20Letter_08082023_(21-200404)_text.pdf

32021059NOPV_Decision on Petition for Reconsideration_12052022_(21-200404).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021059NOPV/32021059NOPV_Decision%20on%20Petition%20for%20Reconsideration_12052022_(21-200404).pdf

32021059NOPV_Decision on Petition for Reconsideration_12052022_(21-200404)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021059NOPV/32021059NOPV_Decision%20on%20Petition%20for%20Reconsideration_12052022_(21-200404)_text.pdf

32021059NOPV_Final Order_08302022_(21-200404).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021059NOPV/32021059NOPV_Final%20Order_08302022_(21-200404).pdf

32021059NOPV_Final Order_08302022_(21-200404)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021059NOPV/32021059NOPV_Final%20Order_08302022_(21-200404)_text.pdf

32021059NOPV_Operator Petition for Reconsideration_09192022_(21-200404).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021059NOPV/32021059NOPV_Operator%20Petition%20for%20Reconsideration_09192022_(21-200404).pdf

32021059NOPV_Operator Response to Notice_01302022_(21-200404).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021059NOPV/32021059NOPV_Operator%20Response%20to%20Notice_01302022_(21-200404).pdf

32021059NOPV_PCP PCO_12302021_(21-200404).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021059NOPV/32021059NOPV_PCP%20PCO_12302021_(21-200404).pdf

32021059NOPV_PCP PCO_12302021_(21-200404)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021059NOPV/32021059NOPV_PCP%20PCO_12302021_(21-200404)_text.pdf

32021059NOPV_Final Order_08302022_(21-200404)_text.pdf

August 30, 2022
VIA ELECTRONIC MAIL TO: heath@dakota-midstream.com and tim@dakota-
midstream.com
Mr. Heath Norman & Mr. Tim Reynolds
Co-Chief Executive Officers
Dakota Midstream, LLC
708 Main Street, 10th Floor,
Houston, Texas 77002
Re: CPF No. 3-2021-059-NOPV
Dear Mr. Norman and Mr. Reynolds:
Enclosed please find the Final Order issued in the above-referenced case. It makes findings of
violation, assesses a civil penalty of $204,000, and specifies actions that need to be taken by
Dakota Midstream, LLC to comply with the pipeline safety regulations. The penalty payment
terms are set forth in the Final Order. When the civil penalty has been paid and the terms of the
compliance order completed, as determined by the Director, Central Region, this enforcement
action will be closed. Service of the Final Order by e-mail is effective upon the date of
transmission and acknowledgement of receipt as provided under 49 C.F.R. § 190.5.
Thank you for your cooperation in this matter.
Sincerely,
Alan K. Mayberry
Associate Administrator
for Pipeline Safety
Enclosure
cc: Mr. Gregory A. Ochs, Director, Central Region, Office of Pipeline Safety, PHMSA
Mr. Kristopher Coe, P.E., Project Manager, Dakota Midstream, LLC,
kristopher@dakota-midstream.com
CONFIRMATION OF RECEIPT REQUESTED



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, D.C. 20590
____________________________________
In the Matter of )
Dakota Midstream, LLC, ) CPF No. 3-2021-059-NOPV
)
)
)
Respondent. )
____________________________________)
FINAL ORDER
On March 18, April 8, May 18-20, and May 27, 2021, pursuant to 49 U.S.C. § 60117,
representatives of the Pipeline and Hazardous Materials Safety Administration (PHMSA), Office
of Pipeline Safety (OPS), conducted an on-site pipeline safety inspection of the facilities and
records of Dakota Midstream, LLC (Dakota Midstream or Respondent) in Alexander, North
Dakota. Dakota Midstream owns and operates approximately 65 miles of pipeline in the Bakken
region.1
As a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,
by letter dated December 30, 2021, a Notice of Probable Violation, Proposed Civil Penalty, and
Proposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the Notice
proposed finding that Dakota Midstream had committed sixteen (16) violations of 49 C.F.R.
Parts 194 and 195 and proposed assessing a civil penalty of $204,000 for the alleged violations.
The Notice also proposed ordering Respondent to take certain measures to correct the alleged
violations.
Dakota Midstream responded to the Notice by letter dated January 30, 2022 (Response) and
submitted additional correspondence on March 4 and March 18, 2022. The company contested
several of the allegations, offered additional information in response to the Notice, and requested
that the proposed civil penalty be reduced. Respondent did not request a hearing and therefore
has waived its right to one.
FINDINGS OF VIOLATION
The Notice alleged that Respondent violated 49 C.F.R. Parts 194 and 195, as follows:
Item 1: The Notice alleged that Respondent violated 49 C.F.R. § 194.117(b)(1), which states:
§ 194.117 Training.
1 Dakota Midstream website, available at http://dakota-midstream.com/about/ (last accessed May 25, 2022).



(a) . . . .
(b) Each operator shall maintain a training record for each individual
that has been trained as required by this section. These records must be
maintained in the following manner as long as the individual is assigned
duties under the response plan:
(1) Records for operator personnel must be maintained at the
operator’s headquarters;
The Notice alleged that Respondent violated 49 C.F.R. § 194.117(b)(1) by failing to maintain
training records for each individual assigned duties under the response plan at the operator’s
headquarters. Specifically, the Notice alleged that Dakota Midstream failed to maintain training
records for individual qualifications, tabletop drills, and unannounced PREP drills for 2017-
2020.2
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 194.117(b)(1) by failing to maintain
training records for each individual assigned duties under the response plan at the operator’s
headquarters.
Item 2: The Notice alleged that Respondent violated 49 C.F.R. § 194.107(c)(1)(ix), which states:
§ 194.107 General response plan requirements.
(a) . . . .
(c) Each response plan must include:
(1) A core plan consisting of –
(i) . . . .
(ix) Drill program – an operator will satisfy the requirement for a drill
program by following the National Preparedness for Response Exercise
Program (PREP) guidelines. An operator choosing not to follow PREP
guidelines must have a drill program that is equivalent to PREP. The
operator must describe the drill program in the response plan and OPS will
determine if the program is equivalent to PREP.
The Notice alleged that Respondent violated 49 C.F.R. § 194.107(c)(1)(ix) by failing to have a
response plan that included a drill program following PREP guidelines, or a program that is
equivalent to PREP. Specifically, the Notice alleged that Dakota Midstream failed to conduct
equipment deployment PREP drills in 2017, 2018, and 2019.
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 194.107(c)(1)(ix) by failing to have
a response plan that included a drill program following PREP guidelines, or a program that is
equivalent to PREP.
Item 3: The Notice alleged that Respondent violated 49 C.F.R. § 195.61(b), which states:
2 Dakota Midstream did, however, have a record of a January 4, 2020 unannounced PREP drill.



§ 195.61 National Pipeline Mapping System.
(a) . . . .
(b) This information must be submitted each year, on or before June
15, representing assets as of December 31 of the previous year. If no
changes have occurred since the previous year's submission, the operator
must refer to the information provided in the NPMS Operator Standards
manual available at www.npms.phmsa.dot.gov or contact the PHMSA
Geographic Information Systems Manager at (202) 366-4595.
The Notice alleged that Respondent violated 49 C.F.R. § 195.61(b) by failing to submit to
PHMSA geospatial data for its facility each year, on or before June 15, representing assets as of
December 31 of the previous year. Specifically, the Notice alleged that Dakota Midstream failed
to submit geospatial data for 2018 and 2019, and submitted its 2020 data late.
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.61(b) by failing to submit to
PHMSA geospatial data for its facility each year, on or before June 15, representing assets as of
December 31 of the previous year.
Item 4: The Notice alleged that Respondent violated 49 C.F.R. § 195.208, which states:
§ 195.208 Welding of supports and braces.
Supports or braces may not be welded directly to pipe that will be
operated at a pressure of more than 100 p.s.i. (689 kPa) gage.
The Notice alleged that Respondent violated 49 C.F.R. § 195.208 by welding braces or supports
directly to pipe that will be operated at a pressure of more than 100 psi gage (PSIG).
Specifically, the Notice alleged that during the inspection, PHMSA observed supports welded
directly to the pipeline, located down the middle of the 10 Spackler tanks and feeding all the
tanks.
In its Response, Dakota Midstream contested the allegation of violation. Specifically,
Respondent noted that this pipeline at the above-referenced location has a pressure control valve
set to 75 PSIG and will never operate above 100 PSIG. Response at 3 and Exhibit 1. Pursuant
to § 195.208, operators may not weld supports to pipe that will be operated at a pressure of more
than 100 PSIG. Since Dakota Midstream restricts the pressure on this line to a maximum
pressure of 75 PSIG, and there is nothing in the record to indicate that the pressure control valve
was malfunctioning, improperly calibrated, or otherwise not accurately restricting the pressure
on this line, I find that this pipeline is not being operated above 100 PSIG. Since the pipeline
will not be operated above 100 PSIG, the requirements set forth in § 195.208 are not applicable.
Accordingly, after considering all of the evidence, I find that no basis for finding a violation.
Based upon the foregoing, I hereby order that Item 4 be withdrawn.
Item 5: The Notice alleged that Respondent violated 49 C.F.R. § 195.264(b)(1)(i), which states:



§ 195.264 Impoundment, protection against entry, normal/emergency
venting or pressure/vacuum relief for aboveground breakout tanks.
(a) . . . .
(b) After October 2, 2000, compliance with paragraph (a) of this
section requires the following for the aboveground breakout tanks
specified:
(1) For tanks built to API Spec 12F, API Std 620, and others (such as
API Std 650 (or its predecessor Standard 12C)), the installation of
impoundment must be in accordance with the following sections of
NFPA-30 (incorporated by reference, see § 195.3);
(i) Impoundment around a breakout tank must be installed in
accordance with section 22.11.2;
The Notice alleged that Respondent violated 49 C.F.R. § 195.264(b)(1)(i) by failing to install the
impoundment around its aboveground breakout tank in accordance with Section 22.11.2 of
NFPA-30. Specifically, the Notice alleged that Dakota Midstream failed to establish a one
percent slope away from the tanks at both the Wheatland and Spackler tank farms, despite the
requirements of Section 22.11.2.1 requiring a one percent or greater slope the first 50 feet away
from the tank or to the dike base, whichever is less.
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.264(b)(1)(i) by failing to install
the impoundment around its aboveground breakout tank in accordance with Section 22.11.2 of
NFPA-30.
Item 6: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(c)(13), which states:
§ 195.402 Procedural manual for operations, maintenance, and
emergencies.
(a) . . .
(c) Maintenance and normal operations. The manual required by
paragraph (a) of this section must include procedures for the following to
provide safety during maintenance and normal operations:
(1) . . .
(13) Periodically reviewing the work done by operator personnel to
determine the effectiveness of the procedures used in normal operation
and maintenance and taking corrective action where deficiencies are
found.
The Notice alleged that Respondent violated 49 C.F.R. § 195.402(c)(13) by failing to have and
follow a manual to provide safety during maintenance and normal operations that included
periodically reviewing the work done by operator personnel to determine the effectiveness of the
procedures and taking corrective action where deficiencies are found. Specifically, the Notice
alleged that Dakota Midstream failed to produce records during the inspection evidencing
completion of effectiveness reviews for 2019 and 2020.



Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.402(c)(13) by failing to have
and follow a manual to provide safety during maintenance and normal operations that included
periodically reviewing the work done by operator personnel to determine the effectiveness of the
procedures and taking corrective action where deficiencies are found.
Item 7: The Notice alleged that Respondent violated 49 C.F.R. § 195.420(b), which states:
§ 195.420 Valve maintenance.
(a) . . . .
(b) Each operator shall, at intervals not exceeding 7 1/2 months, but at
least twice each calendar year, inspect each mainline valve to determine
that it is functioning properly.
The Notice alleged that Respondent violated 49 C.F.R. § 195.420(b) by failing to inspect each
mainline valve to determine that it is functioning properly at intervals not exceeding 7 ½ months
but at least twice each calendar year. Specifically, the Notice alleged that Dakota Midstream
failed to conduct inspections on each mainline block valve on the Low Rider pipeline at the
required intervals for calendar years 2019 and 2020, resulting in eleven missed inspections.
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.420(b) by failing to inspect each
mainline valve to determine that it is functioning properly at intervals not exceeding 7 ½ months
but at least twice each calendar year.
Item 8: The Notice alleged that Respondent violated 49 C.F.R. § 195.428(a), which states:
§ 195.428 Overpressure safety devices and overfill protection systems.
(a) Except as provided in paragraph (b) of this section, each operator
shall, at intervals not exceeding 15 months, but at least once each calendar
year, or in the case of pipelines used to carry highly volatile liquids, at
intervals not to exceed 7 1/2 months, but at least twice each calendar year,
inspect and test each pressure limiting device, relief valve, pressure
regulator, or other item of pressure control equipment to determine that it
is functioning properly, is in good mechanical condition, and is adequate
from the standpoint of capacity and reliability of operation for the service
in which it is used.
The Notice alleged that Respondent violated 49 C.F.R. § 195.428(a) by failing to inspect and test
each pressure limiting device, relief valve, pressure regulator, or other item of pressure control
equipment to determine that it is functioning properly, is in good mechanical condition, and is
adequate from the standpoint of capacity and reliability of operation for the service in which it is
used at intervals not exceeding 15 months, but at least once each calendar year. Specifically, the
Notice alleged that Dakota Midstream failed to conduct inspections and tests on overpressure
protection devices located on the Low Rider pipeline, the Spackler and Wheatland tank farms,
and Spackler Pump Station for calendar years 2019 and 2020. During the inspection, PHMSA
reviewed certain records, but ultimately could not determine compliance because they failed to



include critical safety information, including “as found” pressures and “as left” pressures, to
determine if the devices were functioning properly, in good mechanical condition, and adequate
from the standpoint of capacity and reliability of operation for the service in which it is used.
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.428(a) by failing to inspect and
test each pressure limiting device, relief valve, pressure regulator, or other item of pressure
control equipment to determine that it is functioning properly, is in good mechanical condition,
and is adequate from the standpoint of capacity and reliability of operation for the service in
which it is used at intervals not exceeding 15 months, but at least once each calendar year.
Item 9: The Notice alleged that Respondent violated 49 C.F.R. § 195.430, which states:
§ 195.430 Firefighting equipment.
Each operator shall maintain adequate firefighting equipment at each
pump station and breakout tank area. The equipment must be -
(a) In proper operating condition at all times;
(b) Plainly marked so that its identity as firefighting equipment is
clear; and
(c) Located so that it is easily accessible during a fire.
The Notice alleged that Respondent violated 49 C.F.R. § 195.430 by failing to maintain adequate
firefighting equipment at each pump station and breakout tank area. Specifically, the Notice
alleged that Dakota Midstream failed to have adequate firefighting equipment at the Wheatland
tank farm.
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.430 by failing to maintain
adequate firefighting equipment at each pump station and breakout tank area.
Item 10: The Notice alleged that Respondent violated 49 C.F.R. § 195.436, which states:
§ 195.436 Security of facilities.
Each operator shall provide protection for each pumping station and
breakout tank area and other exposed facility (such as scraper traps) from
vandalism and unauthorized entry.
The Notice alleged that Respondent violated 49 C.F.R. § 195.436 by failing to provide protection
for each pumping station and breakout tank and other exposed facility from vandalism and
unauthorized entry. Specifically, the Notice alleged that Dakota Midstream failed to have a
fence or other protection from unauthorized entry.3
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.436 by failing to provide
protection for each pumping station and breakout tank and other exposed facility from vandalism
3 The Notice also alleged that Dakota Midstream failed to lock valves.



and unauthorized entry.
Item 11: The Notice alleged that Respondent violated 49 C.F.R. § 195.438, which states:
§ 195.438 Smoking or open flames.
Each operator shall prohibit smoking and open flames in each pump
station area and each breakout tank area where there is a possibility of the
leakage of a flammable hazardous liquid or of the presence of flammable
vapors.
The Notice alleged that Respondent violated 49 C.F.R. § 195.438 by failing to prohibit smoking
and open flames in each pump station area and each breakout tank area where there is a
possibility of the leakage of a flammable hazardous liquid or of the presence of flammable
vapors. Specifically, the Notice alleged that Dakota Midstream failed to have a “No Smoking”
sign at the Wheatland tank farm, or otherwise have identifiable prohibitions on smoking at this
location.
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.438 by failing to prohibit
smoking and open flames in each pump station area and each breakout tank area where there is a
possibility of the leakage of a flammable hazardous liquid or of the presence of flammable
vapors.
Item 12: The Notice alleged that Respondent violated 49 C.F.R. § 195.440(d), which states:
§ 195.440 Public awareness.
(a) . . . .
(d) The operator’s program must specifically include provisions to
educate the public, appropriate government organizations, and persons
engaged in excavation related activities on:
(1) Use of a one-call notification system prior to excavation and other
damage prevention activities;
(2) Possible hazards associated with unintended releases from a
hazardous liquid or carbon dioxide pipeline facility;
(3) Physical indications that such a release may have occurred;
(4) Steps that should be taken for public safety in the event of a
hazardous liquid or carbon dioxide pipeline release; and
(5) Procedures to report such an event.
The Notice alleged that Respondent violated 49 C.F.R. § 195.440(d) by failing to have a public
awareness program that specifically included provisions to educate the public, appropriate
government organizations, and persons engaged in excavation activities on the matters set forth
in § 195.440(d)(1)-(5). Specifically, the Notice alleged that Dakota Midstream’s public
awareness program in 2018, 2019 and 2020 failed to educate all the appropriate parties, and
failed to include all the requisite information.
4
4 See Notice at 6 (listing out each deficiency).



Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.440(d) by failing to have a
public awareness program that specifically included provisions to educate the public, appropriate
government organizations, and persons engaged in excavation activities on the matters set forth
in § 195.440(d)(1)-(5).
Item 13: The Notice alleged that Respondent violated 49 C.F.R. § 195.440(c), which states:
§ 195.440 Public awareness.
(a) . . .
(c) The operator must follow the general program recommendations,
including baseline and supplemental requirements of API RP 1162, unless
the operator provides justification in its program or procedural manual as
to why compliance with all or certain provisions of the recommended
practice is not practicable and not necessary for safety.
The Notice alleged that Respondent violated 49 C.F.R. § 195.440(c) by failing to follow the
general program recommendations, including baseline and supplemental requirements of API RP
1162, unless the operator provides justification in its program or procedural manual as to why
compliance with all or certain provisions of the recommended practice is not practicable and not
necessary for safety. Specifically, the Notice alleged that Dakota Midstream failed to follow API
RP 1162 Section 8.4, which requires an effectiveness evaluation of all four audiences every four
years. During the inspection, Dakota Midstream did not produce any records demonstrating that
it completed an effectiveness review pursuant to API RP 1162, Section 8.4.5
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.440(c) by failing to follow the
general program recommendations, including baseline and supplemental requirements of API RP
1162.
Item 14: The Notice alleged that Respondent violated 49 C.F.R. § 195.573(a)(1), which states:
§ 195.573 What must I do to monitor external corrosion control?
(a) Protected pipelines. You must do the following to determine
whether cathodic protection required by this subpart complies with §
195.571:
(1) Conduct tests on the protected pipeline at least once each calendar
year, but with intervals not exceeding 15 months. However, if tests at
those intervals are impractical for separately protected short sections of
bare or ineffectively coated pipelines, testing may be done at least once
every 3 calendar years, but with intervals not exceeding 39 months.
5 Dakota Midstream did not otherwise provide justification in its public awareness program or procedural manual as
to why compliance with API RP 1162 Section 8.4 is not practicable and not necessary for safety.



The Notice alleged that Respondent violated 49 C.F.R. § 195.573(a)(1) by failing to conduct
tests on protected pipeline at least once each calendar year, but with intervals not exceeding 15
months, to determine whether cathodic protection required by Subpart H complies with
§ 195.571. Specifically, the Notice alleged that Dakota Midstream failed to conduct the annual
cathodic protection survey on the Wheatland tanks during the December 8, 2018 survey.
Respondent contested this allegation of violation. Specifically, Dakota Midstream stated that
cathodic protection readings could not be taken during the December 8, 2018 survey because it
was determined that the ground was too frozen to achieve effective measurements. Response at
9. In April 2019, when ground conditions improved, a cathodic protection survey was
completed at the Wheatland breakout tanks. Id.
The requirements set forth in § 195.573(a)(1) clearly state that these tests must be completed at
least once each calendar year, but with intervals not exceeding 15 months. By failing to perform
the cathodic protection survey in December 2018, Dakota Midstream failed to conduct the
requisite testing for calendar year 2018. Performing the next annual cathodic protection survey
in 2019 does not negate the company’s failure to conduct testing in calendar year 2018.
Accordingly, based upon a review of all of the evidence, I find that Respondent violated 49
C.F.R. § 195.573(a)(1) by failing to conduct tests on protected pipeline at least once each
calendar year, but with intervals not exceeding 15 months, to determine whether cathodic
protection required by Subpart H complies with § 195.571.
Item 15: The Notice alleged that Respondent violated 49 C.F.R. § 195.573(e), which states:
§ 195.573 What must I do to monitor external corrosion control?
(a) . . .
(e) Corrective action. You must correct any identified deficiency in
corrosion control as required by § 195.401(b). However, if the deficiency
involves a pipeline in an integrity management program under § 195.452,
you must correct the deficiency as required by § 195.452(h).
The Notice alleged that Respondent violated 49 C.F.R. § 195.573(e) by failing to correct
identified deficiencies in its corrosion control as required by § 195.401(b).
6 Specifically, the
Notice alleged that on December 8, 2018, Dakota Midstream learned that cathodic protection on
its Spackler tanks was inadequate, but failed to correct the deficiency by the next inspection
cycle on April 17, 2019. Further, on April 17, 2019, Dakota Midstream learned that cathodic
protection on both Wheatland tanks was inadequate, but failed to correct it by the next inspection
cycle on June 27, 2020.
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.573(e) by failing to correct
6 49 C.F.R. § 195.401(b)(1) requires that, “[w]henever an operator discovers any condition that could adversely
affect the safe operation of its pipeline system, it must correct the condition within a reasonable time. However, if
the condition is of such a nature that it presents an immediate hazard to persons or property, the operator may not
operate the affected part of the system until it has corrected the unsafe condition.”



identified deficiencies in its corrosion control as required by § 195.401(b).
Item 16: The Notice alleged that Respondent violated 49 C.F.R. § 195.581(a), which states:
§ 195.581 Which pipelines must I protect against atmospheric
corrosion and what coating material may I use?
(a) You must clean and coat each pipeline or portion of pipeline that is
exposed to the atmosphere, except pipelines under paragraph (c) of this
section.
The Notice alleged that Respondent violated 49 C.F.R. § 195.581(a) by failing to clean and coat
each pipeline or portion of pipeline that is exposed to the atmosphere. Specifically, the Notice
alleged that during the inspection, PHMSA observed large portions of insufficiently coated pipe
at the Spackler pump station.
Respondent did not contest this allegation of violation. Accordingly, based upon a review of all
of the evidence, I find that Respondent violated 49 C.F.R. § 195.581(a) by failing to clean and
coat each pipeline or portion of pipeline that is exposed to the atmosphere.
These findings of violation will be considered prior offenses in any subsequent enforcement
action taken against Respondent.
ASSESSMENT OF PENALTY
Under 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed
$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any
related series of violations.7
In determining the amount of a civil penalty under 49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I
must consider the following criteria: the nature, circumstances, and gravity of the violation,
including adverse impact on the environment; the degree of Respondent’s culpability; the history
of Respondent’s prior offenses; any effect that the penalty may have on its ability to continue
doing business; the good faith of Respondent in attempting to comply with the pipeline safety
regulations; and self-disclosure or actions to correct a violation prior to discovery by PHMSA.
In addition, I may consider the economic benefit gained from the violation without any reduction
because of subsequent damages, and such other matters as justice may require. The Notice
proposed a total civil penalty of $204,000 for the violations cited above.
Item 1: The Notice proposed a civil penalty of $24,100 for Respondent’s violation of 49 C.F.R.
§ 194.117(b)(1) for failing to maintain training records for each individual assigned duties under
the response plan at the operator’s headquarters. The Notice included the instruction that, “[i]f
you are a small business and would like PHMSA to consider your classification as such in this
enforcement action including, under appropriate circumstances, a potential penalty reduction or
waiver under Section 223 of the Small Business Regulatory Enforcement Fairness Act
7 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223.



(SBREFA), please respond with the relevant information you wish to be considered. Refer to 13
CFR Part 121 for more information about small business size eligibility provisions and
standards.” Notice at Response Options for Pipeline Operators in Enforcement Proceedings.
In its Response, Dakota Midstream requested a reduction of the proposed civil penalty amount
because it will have an overly punitive effect on its ability to operate as a Small Business, as
classified by the US Small Business Administration. Response at 11. On March 4, 2022, Dakota
Midstream clarified to PHMSA that it would be financially able to pay the proposed civil
penalty, but the penalty amount should be lowered due to the fact that it was a small business and
the penalty amount would disproportionately affect it as compared to other larger operators
(Letter). Letter at 1. On March 18, 2022, upon request from OPS, Dakota Midstream provided
an income statement for December 2020 to November 2021.
Under Section 223 of SBREFA, “[u]nder appropriate circumstances, an agency may consider
ability to pay in determining penalty assessments on small entities.” Pursuant to § 190.225(a)(5),
in determining the amount of a civil penalty, I must consider “[t]he effect on the respondent’s
ability to continue in business.” In its Letter, Dakota Midstream informed PHMSA that it could
pay the penalty amount, and did not provide any information on how the proposed penalty would
affect its ability to continue in business. Respondent’s income statement also does not provide
sufficient information on its ability to continue in business. Therefore, I find no reason to reduce
the civil penalty based on Dakota Midstream’s ability to continue in business.
In regard to the remaining civil penalty assessment factors for Item 1, I see no reason to reduce
the penalty amount. This was a record-keeping violation that was discovered by PHMSA.
Although pipeline safety was minimally affected, Dakota Midstream failed to comply with an
applicable requirement and did not provide a reasonable justification for its noncompliance.
Accordingly, having reviewed the record and considered the assessment criteria, I assess
Respondent a civil penalty of $24,100 for violation of 49 C.F.R. § 194.117(b)(1).
Item 2: The Notice proposed a civil penalty of $27,600 for Respondent’s violation of 49 C.F.R.
§ 194.107(c)(1)(ix) for failing to have a response plan that included a drill program following
PREP guidelines, or a program that is equivalent to PREP. For the reasons set forth above, I do
not believe a penalty reduction for Dakota Midstream’s ability to continue in business is
warranted.
In regard to the remaining civil penalty assessment factors for Item 2, I see no reason to reduce
the penalty amount. This was an activities violation that was discovered by PHMSA. Although
pipeline safety was minimally affected, Dakota Midstream failed to comply with an applicable
requirement and did not provide a reasonable justification for its noncompliance. Accordingly,
having reviewed the record and considered the assessment criteria, I assess Respondent a civil
penalty of $27,600 for violation of 49 C.F.R. § 194.107(c)(1)(ix).
Item 3: The Notice proposed a civil penalty of $28,300 for Respondent’s violation of 49 C.F.R.
§ 195.61(b) for failing to submit to PHMSA geospatial data for its facility each year, on or
before June 15, representing assets as of December 31 of the previous year. For the reasons set
forth above, I do not believe a penalty reduction for Dakota Midstream’s ability to continue in
business is warranted.



In regard to the remaining civil penalty assessment factors for Item 3, I see no reason to reduce
the penalty amount. In its Response, Dakota Midstream requested a further reduction due to the
technical nature of the violations, and the fact that the company corrected the 2019 error
promptly. The Violation Report accurately notes that this is an activities violation, even though
Respondent considered it merely a “technical” violation. Violation Report at 22. Further, the
company did not promptly remedy the 2019 violation. It waited approximately six months
before submitting the requisite data to PHMSA. Accordingly, having reviewed the record and
considered the assessment criteria, I assess Respondent a civil penalty of $28,300 for violation of
49 C.F.R. § 195.61(b).
Item 7: The Notice proposed a civil penalty of $31,100 for Respondent’s violation of 49 C.F.R.
§ 195.420(b) for failing to inspect each mainline valve to determine that it is functioning
properly at intervals not exceeding 7 ½ months but at least twice each calendar year. For the
reasons set forth above, I do not believe a penalty reduction for Dakota Midstream’s ability to
continue in business is warranted.
In regard to the remaining civil penalty assessment factors for Item 7, I see no reason to reduce
the penalty amount. This was an activities violation that was discovered by PHMSA. Although
pipeline safety was minimally affected, Dakota Midstream failed to comply with an applicable
requirement and did not provide a reasonable justification for its noncompliance. Accordingly,
having reviewed the record and considered the assessment criteria, I assess Respondent a civil
penalty of $31,100 for violation of 49 C.F.R. § 195.420(b).
Item 8: The Notice proposed a civil penalty of $14,600 for Respondent’s violation of 49 C.F.R.
§ 195.428(a) for failing to inspect and test each pressure limiting device, relief valve, pressure
regulator, or other item of pressure control equipment to determine that it is functioning properly,
is in good mechanical condition, and is adequate from the standpoint of capacity and reliability
of operation for the service in which it is used at intervals not exceeding 15 months, but at least
once each calendar year. For the reasons set forth above, I do not believe a penalty reduction for
Dakota Midstream’s ability to continue in business is warranted.
In regard to the remaining civil penalty assessment factors for Item 8, I see no reason to reduce
the penalty amount. This was a record-keeping violation that was discovered by PHMSA.
Although pipeline safety was minimally affected, Dakota Midstream failed to comply with an
applicable requirement. The company received a good faith credit, however, because it provided
a reasonable justification for its noncompliance. Accordingly, having reviewed the record and
considered the assessment criteria, I assess Respondent a civil penalty of $14,600 for violation of
49 C.F.R. § 195.428(a).
Item 14: The Notice proposed a civil penalty of $10,300 for Respondent’s violation of 49
C.F.R. § 195.573(a)(1) for failing to conduct tests on protected pipeline at least once each
calendar year, but with intervals not exceeding 15 months, to determine whether cathodic
protection required by Subpart H complies with § 195.571. For the reasons set forth above, I
do not believe a penalty reduction for Dakota Midstream’s ability to continue in business is
warranted.



In its Response, Dakota Midstream requested a further reduction because it corrected the
noncompliance as soon as weather conditions permitted. This information was already factored
into the proposed penalty amount. Violation Report at 73. I see no reason to further reduce the
penalty. Accordingly, having reviewed the record and considered the assessment criteria, I assess
Respondent a civil penalty of $10,300 for violation of 49 C.F.R. § 195.573(a)(1).
Item 15: The Notice proposed a civil penalty of $40,400 for Respondent’s violation of 49
C.F.R. § 195.573(e) for failing to correct identified deficiencies in its corrosion control as
required by § 195.401(b). For the reasons set forth above, I do not believe a penalty reduction
for Dakota Midstream’s ability to continue in business is warranted.
In regard to the remaining civil penalty assessment factors for Item 15, I see no reason to reduce
the penalty amount. This was an activities violation that was discovered by PHMSA. The
violations occurred not within a high consequence area (HCA), or “could affect” HCA. Dakota
Midstream failed to comply with an applicable requirement, and did not provide a reasonable
justification for its noncompliance. Accordingly, having reviewed the record and considered the
assessment criteria, I assess Respondent a civil penalty of $40,400 for violation of 49 C.F.R.
§ 195.573(e).
Item 16: The Notice proposed a civil penalty of $27,600 for Respondent’s viol
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