{"operation":"document","citation":"CPF 32022019NOPV","title":"TEXAS GAS TRANSMISSION, LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2022-01-21","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.481(a), 192.481(b), 192.603(b), 192.605(a), 192.605(b)(8), 192.619(a)(1), 192.619(a)(1)(ii), 192.705(c), 192.706, 192.706(a), 192.907(a), 192.947(d).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-32022019nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-32022019nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-32022019nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/32022019NOPV","body":"Notice of Probable Violation involving TEXAS GAS TRANSMISSION, LLC. PHMSA's enforcement data identifies the cited regulations as 192.481(a),  192.481(b),  192.603(b),  192.605(a),  192.605(b)(8),  192.619(a)(1),  192.619(a)(1)(ii),  192.705(c),  192.706,  192.706(a),  192.907(a),  192.947(d). The case was opened on 2022-01-21 and is reported as closed as of 2023-04-05. Proposed civil penalty: $474,300. Assessed civil penalty: $237,800. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n32022019NOPV_Closure Letter_04052023_(20-179248).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Closure%20Letter_04052023_(20-179248).pdf\n\n32022019NOPV_Closure Letter_04052023_(20-179248)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Closure%20Letter_04052023_(20-179248)_text.pdf\n\n32022019NOPV_Closure Letter_10112022_(20-179248).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Closure%20Letter_10112022_(20-179248).pdf\n\n32022019NOPV_Closure Letter_10112022_(20-179248)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Closure%20Letter_10112022_(20-179248)_text.pdf\n\n32022019NOPV_Consent Agreement and Order_07012022_(20-179248).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Consent%20Agreement%20and%20Order_07012022_(20-179248).pdf\n\n32022019NOPV_Consent Agreement and Order_07012022_(20-179248)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Consent%20Agreement%20and%20Order_07012022_(20-179248)_text.pdf\n\n32022019NOPV_Op Resp to Notice and Req for Hrng and Statement of Issues (Part 1)_04132022_(20-179248).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Op%20Resp%20to%20Notice%20and%20Req%20for%20Hrng%20and%20Statement%20of%20Issues%20(Part%201)_04132022_(20-179248).pdf\n\n32022019NOPV_Op Resp to Notice and Req for Hrng and Statement of Issues (Part 2)_04132022_(20-179248).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Op%20Resp%20to%20Notice%20and%20Req%20for%20Hrng%20and%20Statement%20of%20Issues%20(Part%202)_04132022_(20-179248).pdf\n\n32022019NOPV_Op Resp to Notice and Req for Hrng and Statement of Issues (Part 3)_04132022_(20-179248).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Op%20Resp%20to%20Notice%20and%20Req%20for%20Hrng%20and%20Statement%20of%20Issues%20(Part%203)_04132022_(20-179248).pdf\n\n32022019NOPV_Operator Withdrawal of Request for Hearing_07012022_(20-179248).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Operator%20Withdrawal%20of%20Request%20for%20Hearing_07012022_(20-179248).pdf\n\n32022019NOPV_PCP_PCO_01212022_(20-179248).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_PCP_PCO_01212022_(20-179248).pdf\n\n32022019NOPV_PCP_PCO_01212022_(20-179248)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_PCP_PCO_01212022_(20-179248)_text.pdf\n\n32022019NOPV_PHC Hearing Scheduled_05192022_(20-179248).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_PHC%20Hearing%20Scheduled_05192022_(20-179248).pdf\n\n32022019NOPV_PHC Hearing Scheduled_05192022_(20-179248)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_PHC%20Hearing%20Scheduled_05192022_(20-179248)_text.pdf\n\n32022019NOPV_Region Requests Compliance Reopen Case_12212022_(20-179248).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Region%20Requests%20Compliance%20Reopen%20Case_12212022_(20-179248).pdf\n\n32022019NOPV_Region Requests Compliance Reopen Case_12212022_(20-179248)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022019NOPV/32022019NOPV_Region%20Requests%20Compliance%20Reopen%20Case_12212022_(20-179248)_text.pdf\n\n32022019NOPV_Op Resp to Notice and Req for Hrng and Statement of Issues (Part 1)_04132022_(20-179248).pdf\n\n610 West 2nd Street\nP.O. Box 20008\nOwensboro, KY 42304-0008\n270/926-8686\nBy Email Only\nApril 13, 2022\nMr. Gregory A. Ochs\nDirector, Central Region\nOffice of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration\n901 Locust Street, Suite 462\nKansas City, MO 64106\nRe: Texas Gas Transmission, LLC, CPF No. 3-2022-019-NOPV\nWritten Response to Notice of Probable Violation, Proposed Civil Penalty and\nProposed Compliance Order, Request for Hearing and Request for Settlement\nMeeting\nDear Mr. Ochs,\nPursuant to 49 C.F.R. § 190.208(a) & (b) and § 190.211, Texas Gas Transmission, LLC (Texas\nGas) respectfully submits a Written Response to Notice of Probable Violation, Proposed Civil Penalty\nand Proposed Compliance Order (Notice) issued on January 21, 2022. On February 2, 2022, PHMSA\napproved an extension until April 21, 2022 to respond to the Notice. Therefore, this response is timely.\nTexas Gas also submits a Request for Hearing, Preliminary Statement of Issues and Request\nfor Settlement Meeting. Texas Gas requests a hearing on Item 5, Item 6, Item 8, Item 11, and Item 13.\nTexas Gas also requests a settlement meeting to permit the parties to discuss resolution of the\nallegations in the Notice. Texas Gas requests that the presiding official delay scheduling a hearing to\nallow the parties sufficient time to convene a meeting to resolve issues.\nTexas Gas requests that it continue to be provided with all documents or communications from\nOPS pertaining to the case or the case file, which includes “all agency records pertinent to the matters\nof fact and law asserted,”1 including, but not limited to inspector notes or other materials the region\nintends to rely on to support the NOPV, and Region Director’s “written evaluation of response material\nsubmitted by the respondent and recommendation for final action, if one is prepared.” 49 C.F.R.\n§ 190.209(b)(7). Please consider this a standing request. Texas Gas reserves the right to amend or\nsupplement its Response or the preliminary list of issues in the event that PHMSA provides any\nadditional materials for our review.\n1 49 U.S.C. § 60117(b)(1)(C).\n\n\n\nMr. Gregory A. Ochs, Director, Central Region\nOffice of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration\nApril 13, 2022\nPage 2\nTexas Gas looks forward to working with you and your staff to resolve the issues raised in the\nNotice.\nThank you for your attention on this matter. Should you have any questions, please feel free to\ncontact me at tony.rizk@bwpipelines.com or Ms. Tina Baker at tina.baker@bwpipelines.com.\nRespectfully submitted,\nTony G. Rizk, P. E.\nVice President, Technical Services\nAttachments\nCC: Joseph Hainline, Esq., Sr. Attorney Advisor, Office of Chief Counsel, PHMSA (via email\nJoseph.Hainline@DOT.gov)\n\n32022019NOPV_Closure Letter_10112022_(20-179248)_text.pdf\n\nVIA ELECTRONIC MAIL TO: stan.horton@bwpipelines.com, and\ntina.baker@bwpipelines.com\nOctober 11, 2022\nStanley C. Horton\nCEO Boardwalk Pipelines\nTexas Gas Transmission, LLC\n9 Greenway Plaza, Suite 2800\nHouston, TX 77066\nRe: CPF 3-2022-019-NOPV\nDear Mr. Horton:\nOn January 21, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\nissued to Texas Gas Transmission, LLC a Consent Agreement and Consent Order in the above-\nreferenced case. This Order included a Compliance Order and Civil Penalty assessment. Based on\nour review of the documentation you provided and confirmation of payment of the civil penalty,\nit has been determined that you have 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, Office of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration\ncc: Tina Baker (tina.baker@bwpipelines.com)\n\n32022019NOPV_Op Resp to Notice and Req for Hrng and Statement of Issues (Part 3)_04132022_(20-179248).pdf\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\n____________________________________\nIn the Matter of )\nTexas Gas Transmission, LLC, ) CPF No. 3-2022-019-NOPV\n)\n)\n)\nRespondent. )\n____________________________________)\nRequest for Hearing and Preliminary Statement of Issues\nof Texas Gas Transmission, LLC,\nand Request for Settlement Meeting\nPursuant to § 190.208(a)(4) and § 190.211, Texas Gas Transmission, LLC (Texas Gas),\nsubmits a Request for Hearing and Preliminary Statement of Issues regarding the Notice of\nProbable Violation, Proposed Civil Penalty, and Proposed Compliance Order (Notice) issued on\nJanuary 21, 2022 following an inspection conducted by the Office of Pipeline Safety (OPS). On\nFebruary 2, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\napproved by email an extension until April 21, 2022 to respond to the Notice. Therefore, this\nResponse is timely.\nThe Notice alleges 13 probable violations. Texas Gas does not contest the allegations and\nproposed remedies contained in Item 1, Item 2, Item 3, Item 4, Item 7, Item 9, Item 10 and Item 12.\nTexas Gas is committed to public safety and operating its pipeline facilities in accordance\nwith PHMSA’s regulations. Texas Gas takes PHMSA’s allegations of violation seriously,\nhowever, certain allegations in the Notice are legally and factually unsupported and must be\nwithdrawn. Texas Gas contests Item 5, Item 6, Item 8, Item 11, and Item 13. Texas Gas requests\na hearing on these items. Concurrently with this request, Texas Gas also has filed a written\nresponse with respect to the contested items in the Notice.\nAs permitted under 49 U.S.C. § 60117(b)(1), Texas Gas requests a settlement meeting to\ndiscuss resolution of the alleged violations. Texas Gas requests that the presiding official delay\nscheduling a hearing to allow the parties sufficient time to convene a meeting to resolve issues\nthrough a settlement.\nRequest for Hearing\nTexas Gas requests that PHMSA convene an in-person hearing regarding Item 5, Item 6,\nItem 8, Item 11, and Item 13.\n\n\n\nTexas Gas will be represented by legal counsel at the hearing and intends to raise the issues\nidentified below in its Preliminary Statement of Issues.\nPreliminary Statement of Issues\nTexas Gas intends to raise the issues set forth below in a hearing in this case. Texas Gas\nreserves the right to revise these issues at or before the hearing based on any additional information\nthat may be provided in this proceeding.\nItem 5 § 192.605(a) Procedural manual for operations, maintenance, and emergencies.\nWhether the facts stated in the Notice regarding the status of the gas detector units are\nincorrect.\nWhether OPS failed to satisfy its burden of proving that Texas Gas failed to comply with\nthe Operations and Maintenance Manual.\nWhether OPS failed to satisfy its burden of proving the existence of a violation of\n§ 192.605(a) because the allegation is unsupported by the facts and evidence in the case\nfile.\nWhether the allegation is unsupported by the Pipeline Safety Laws and is inconsistent with\nthe relevant Part 192 regulations, PHMSA case law and guidance.\nWhether the proposed compliance order is inappropriate and unsupported by the facts, the\ncase file, the Pipeline Safety Laws, and relevant Part 190 and Part 192 regulations.\nItem 6 § 192.605(b)(8) Procedural manual for operations, maintenance and emergencies.\nWhether OPS failed to satisfy its burden of proving that Texas Gas failed to document\nperiodic reviews of the effectiveness and adequacy of procedures under § 192.605(b)(8).\nWhether OPS failed to satisfy its burden of proving the existence of a violation of\n§ 192.605(b)(8) because the allegation is unsupported by the facts and the evidence in the\ncase file.\nWhether the allegation is unsupported by the Pipeline Safety Laws and is inconsistent with\nthe relevant Part 192 regulations, PHMSA case law and guidance.\nWhether the proposed compliance order is inappropriate and unsupported by the facts, the\ncase file, the Pipeline Safety Laws and relevant Part 190 and Part 192 regulations.\nApril 13, 2022\nPage 2\n\n\n\nItem 8 § 192.619(a)(1) Maximum allowable operating pressure: Steel or plastic pipelines.\nWhether OPS violated § 190.207(b)(i) by failing to include a statement of evidence upon\nwhich the allegations are based.\nWhether the Notice fails to explain its conclusions in a manner that enables Texas Gas to\nprepare an adequate response.\nWhether OPS failed to satisfy its burden of proving that an MAOP that is based on\n§ 195.555(d)(2) becomes invalid based solely on a change in class location.\nWhether OPS failed to satisfy its burden of proving that Texas Gas was required to confirm\nor verify MAOP under § 192.611 after a class location change.\nWhether OPS failed to satisfy its burden of proving a violation § 192.619(a)(1) because\nthe allegation is unsupported by the facts and the evidence in the case file.\nWhether the allegation is unsupported by the Pipeline Safety Laws and is inconsistent with\nthe relevant Part 192 regulations, PHMSA case law and guidance.\nWhether the proposed compliance order is inappropriate and unsupported by the facts, the\ncase file, the Pipeline Safety Laws and relevant Part 190 and Part 192 regulations.\nWhether the proposed civil penalty is inappropriate and unsupported by the facts, the case\nfile, the Pipeline Safety Laws and relevant Part 190 and Part 192 regulations.\nItem 11 § 192.706(a) Transmission lines: Leakage surveys.\nWhether OPS failed to satisfy its burden of proving that the leak detection devices used by\nTexas Gas to perform leakage surveys were improper.\nWhether OPS failed to satisfy its burden of proving that Texas Gas performed leakage\nsurveys in the locations identified in the Notice using allegedly improper leak detection\nequipment.\nWhether OPS failed to satisfy its burden of proving a violation of § 192.706(a) because the\nalleged violation is unsupported by the facts or the evidence in the case file.\nWhether the allegation is unsupported by the Pipeline Safety Laws and is inconsistent with\nthe relevant Part 192 regulations, PHMSA case law and guidance.\nWhether the proposed compliance order is inappropriate and unsupported by the facts, the\ncase file, the Pipeline Safety Laws and relevant Part 190 and Part 192 regulations.\nApril 13, 2022\nPage 3\n\n\n\nWhether the proposed civil penalty is inappropriate and unsupported by the facts, the case\nfile, the Pipeline Safety Laws and relevant Part 190 and Part 192 regulations.\nItem 13: § 192.947(d) What records must an operator keep?\nWhether OPS failed to satisfy its burden of proving that the documentation supporting\nTexas Gas’s preventative and mitigative measures did not justify the measures selected.\nWhether OPS failed to satisfy its burden of demonstrating that Texas Gas violated\n§ 192.947(d) ) because the alleged violation is unsupported by the facts or the evidence in\nthe case file.\nWhether the allegation is unsupported by the Pipeline Safety Laws and is inconsistent with\nthe relevant Part 192 regulations, PHMSA case law and guidance.\nWhether OPS failed to satisfy its burden of proving that the proposed civil penalty is\ninappropriate and unsupported by the facts, the case law, the Pipeline Safety Laws, and\nrelevant Part 190 and Part 192 regulations.\nRespectfully submitted,\nTony G. Rizk, P. E.\nVice President, Technical Services\nApril 13, 2022\nPage 4\n\n32022019NOPV_Closure Letter_04052023_(20-179248)_text.pdf\n\nVIA ELECTRONIC MAIL TO: stan.horton@bwpipelines.com;\ntina.baker@bwpipelines.com\nApril 5, 2023\nStanley C. Horton\nPresident/CEO Boardwalk Pipelines\nTexas Gas Transmission, LLC\n9 Greenway Plaza, Suite 2800\nHouston, TX 77066\nRe: CPF 3-2022-019-NOPV\nDear Mr. Horton:\nOn January 21, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\nissued to Texas Gas Transmission, LLC a Consent Agreement and Order in the above-referenced\ncase. This Order included a Compliance Order and Civil Penalty assessment. Based on our review\nof the documentation you provided and confirmation of payment of the civil penalty, it has been\ndetermined that you have 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, Office of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration\ncc: Tina Baker, Manager, Compliance Service Boardwalk Pipelines\n(tina.baker@bwpipelines.com)\n\n32022019NOPV_PHC Hearing Scheduled_05192022_(20-179248)_text.pdf\n\nMay 19, 2022\nVIA ELECTRONIC MAIL TO: sam@vnf.com and gregory.ochs@dot.gov\nMs. Susan Olenchuk\nCounsel for Texas Gas Transmission, LLC\nVanNess Feldman, LLP\n1050 Thomas Jefferson Street, NW\nWashington, DC 20007\nMr. Gregory Ochs\nDirector, Central Region\nPipeline and Hazardous Materials Safety Administration\n901 Locust Street, Suite 480\nKansas City, MO 64106\nRe: Notice of Hearing, Texas Gas Transmission, LLC\nCPF No. 3-2022-019-NOPV\nDear Ms. Olenchuk and Mr. Ochs:\nIn accordance with 49 C.F.R. § 190.211, an informal hearing will be held regarding the Notice of\nProbable Violation, Proposed Civil Penalty, and Proposed Compliance Order issued by the\nPipeline and Hazardous Materials Safety Administration in the above-referenced case. The\nhearing will take place on July 14, 2022, beginning at 9:00 a.m. Central Time.\nThe hearing will be held via videoconference. I will provide the videoconference information\nprior to the hearing. At least 10 calendar days prior to the hearing (or by July 4, 2022), both\nparties must submit and exchange any additional written materials they intend to present at the\nhearing and the name and email address of each attendee. This information should be provided\nelectronically. Materials not submitted by this date may be excluded.\nIf you have any questions, please do not hesitate to contact me.\nSincerely,\nKristin Baldwin\nPresiding Official\ncc: Mr. Joseph Hainline, Counsel, Central Region, Office of Pipeline Safety, PHMSA,\njoseph.hainline@dot.gov\nMr. Ryan McClure, Counsel, Central Region, Office of Pipeline Safety, PHMSA,\nryan.mcclure@dot.gov\n\n\n\nCPF No. 3-2022-019-NOPV\nPage 2\nMr. Tony Rizk, Vice President, Technical Services, Texas Gas Transmission, LLC,\ntony.rizk@bwpipelines.com\nMr. Michael McMahon, Senior Vice President and General Counsel, Texas Gas\nTransmission, LLC, mike.mcmahon@bwpipelines.com\nMr. Patrick Byrd, Assistant General Counsel, Texas Gas Transmission, LLC,\npatrick.byrd@bwpipelines.com\nMr. Darral Ward, Manager, Pipeline Safety, Texas Gas Transmission, LLC,\ndarral.ward@bwpipelines.com\nMr. Jeff Sanderson, Senior Vice President, Operations, Engineering, and Construction,\nTexas Gas Transmission, LLC, jeff.sanderson@bwpipelines.com\nMs. Tina Baker, Manager, Compliance Services, Texas Gas Transmission, LLC,\ntina.baker@bwpipelines.com\n\n32022019NOPV_Op Resp to Notice and Req for Hrng and Statement of Issues (Part 2)_04132022_(20-179248).pdf\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\n____________________________________\nIn the Matter of )\nTexas Gas Transmission, LLC, ) CPF No. 3-2022-019-NOPV\n)\n)\n)\nRespondent. )\n____________________________________)\nResponse of Texas Gas Transmission, LLC\nTo Notice of Probable Violation, Proposed Civil Penalty,\nand Proposed Compliance Order\nTexas Gas Transmission, LLC (Texas Gas)1 submits its Response to the Notice of Probable\nViolation, Proposed Civil Penalty, and Proposed Compliance Order (Notice) issued on January 21,\n2022, following an inspection performed by the Office of Pipeline Safety (OPS) in 2020 and 2021.\nOn February 2, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\napproved by email an extension of time until April 21, 2022, to respond to the Notice. This\nresponse is timely.\nTexas Gas is committed to public safety and operating its pipeline facilities in accordance\nwith the PHMSA’s regulations. Texas Gas takes PHMSA’s allegations of violation seriously,\nhowever, certain allegations in the Notice are legally and factually unsupported and must be\nwithdrawn. As discussed below, Texas Gas contests Item 5, Item 6, Item 8, Item 11, and Item 13.\nConcurrently with this written response, Texas Gas is submitting a Request for a Hearing,\na Preliminary Statement of Issues and Request for Settlement Meeting pursuant to 49 C.F.R.\n§ 190.208(a)(4) and § 190.211 and as permitted under 49 U.S.C. § 60117(b)(1). Texas Gas is\nrequesting the settlement meeting to discuss resolving these allegations and also is requesting that\nthe presiding official delay scheduling a hearing to allow the parties sufficient time to convene a\nmeeting to resolve issues through a settlement.\nTexas Gas does not contest Item 1, Item 2, Item 3, Item 4, Item 7, Item 9, Item 10 and\nItem 12.\nI. Executive Summary\nItem 5 § 192.605(a) Procedural manual for operations, maintenance, and emergencies.\nTexas Gas contests the allegation that it failed to follow its procedure for inspecting gas detection\nunits at the Dillsboro Compressor Station because the alleged facts regarding the status of the gas\n1 Texas Gas is a wholly-owned operating subsidiary of Boardwalk Pipelines, LP (Boardwalk).\n\n\n\nResponse of Texas Gas Transmission, LLC\nCPF No. 3-2022-019-NOPV\nApril 13, 2022\ndetector units are incorrect. When compressor engines #1, #2, #3, #9, and #10 were dismantled\nfor repairs and upgrades in 2017, the gas detector units for these engines were permanently\nremoved from service. Contrary to statements in the Notice, these gas detector units were not\n“returned to service” and were not “re-inspected” in 2018. When the repaired and upgraded\ncompressor engines were restored to service in late 2017 and early 2018, Texas Gas installed new\ngas detector units for each engine. Texas Gas did not miss the summer 2017 inspection cycle for\nthese units and did not fail to comply with its procedure. The alleged violation and proposed civil\npenalty must be withdrawn.\nItem 6 § 192.605(b)(8) Procedural manual for operations, maintenance and emergencies.\nTexas Gas contests Item 6 because the information relied on by OPS does not support the\nallegation. The Notice relies on Texas Gas’s Form 1000-20 to support the allegation that Texas\nGas did not “document any the assessment of work performed as part of the operations and\nmaintenance procedures.” Form 1000-20 is not the form Texas Gas uses to document compliance\nwith § 192.605(a)(8). Texas Gas uses Form 1000-10 to document changes made to procedures\nunder § 192.605(a)(8). The proposed compliance order requiring Texas Gas to draft procedures\nmust be withdrawn because the Notice does not allege that Texas Gas lacks a procedure or that\nTexas Gas’s existing procedure is inadequate. OPS has not met its burden of proving that the\nproposed remedy is appropriate.\nItem 8 § 192.619(a)(1) Maximum allowable operating pressure: Steel or plastic pipelines.\nTexas Gas contests Item 8 because the Notice fails to explain how Texas Gas allegedly violates\n§ 192.619(a)(1)(ii). The Notice fails to comply with § 190.207(b)(1) which requires that a notice\nof probable violation include statement of evidence upon which the allegations are based. If not\nwithdrawn for failing to comply with § 190.207(b)(1), then Item 8 must be withdrawn because the\nNotice incorrectly suggests that a maximum allowable operating pressure (MAOP) established\nunder § 192.555(d)(2) is automatically nullified by a class location change. This suggestion is not\nsupported by any PHMSA decision, interpretation or guidance and is contrary to § 192.611. The\nassertion that Texas Gas is required to confirm or revise MAOP under § 192.611 is incorrect and\ninconsistent with the plain language of that regulation. The proposed compliance order and\nproposed civil penalty also must be withdrawn.\nItem 11 § 192.706(a) Transmission lines: Leakage surveys. Texas Gas contests this\nalleged violation because OPS has not satisfied its burden of proving that Texas Gas conducted\nleakage surveys using improper leak detection equipment on transmission pipelines in Class 3\nlocations. First, OPS has not demonstrated that the leak detection equipment listed in the Notice\nis improper or inappropriate for detecting leaks in a pipeline right of way. The Notice does not\nidentify any undetected leak or leak incident and OPS provides no technical analysis explaining\nwhy the leak detectors used by Texas Gas are not designed for detecting leaks that come from pipe\nlocated below ground. OPS also does not explain the concentration levels a leak detector must be\ncapable of measuring in a pipeline right of way or why the leak detectors identified in the Notice\ncannot detect gas at those concentrations. Second, information contained in the Violation Report\ndoes not demonstrate that the leakage surveys listed in the Violation Report were performed using\nthe equipment alleged to be improper or that these leakage surveys were performed in Class 3\n2\n\n\n\nResponse of Texas Gas Transmission, LLC\nCPF No. 3-2022-019-NOPV\nApril 13, 2022\nlocations. The allegation, proposed compliance order and proposed civil penalty must be\nwithdrawn.\nItem 13: § 192.947(d) What records must an operator keep? Texas Gas contests the\nalleged violation in Item 13. Each preventative and mitigative (P&M) measure selected and\nimplemented by Texas Gas in the ten high consequence areas (HCA) identified in the Notice is\nsupported by a Risk Analysis, a completed Preventative and Mitigative Measures form (P&M\nForm), the Boardwalk Integrity Management Plan, and ASME/ANSI B31.8S.2 Each measure is\nplainly tailored to mitigate risks associated with the threats identified in each HCA. The Notice\ndoes not identify either a pipeline or public risk resulting from the alleged lack of documentation\nor any incremental safety benefit created by having any additional documentation. The proposed\ncivil penalty also must be withdrawn as excessive, unwarranted, and disproportionate to the alleged\nviolation.\nII. Response of Texas Gas\nA. PHMSA Bears the Burden of Proving the Allegations in the Notice.\nPHMSA has the burden of proving that Texas Gas has violated the pipeline safety\nregulations.3 PHMSA has the “‘burden of production,’ i.e., . . . the obligation to come forward\nwith the evidence at different points in the proceeding,” and the “‘burden of persuasion,’ i.e., which\nparty loses if the evidence is closely balanced.”4 PHMSA “bears the burden of proof as to all\n2 ASME/ANSI B31.8S-2004, “Supplement to B31.8 on Managing System Integrity of Gas Pipelines,” incorporated\nby reference into Part 192. 49 C.F.R. § 192.7.\n3 49 U.S.C. § 60117(b)(1)(F) (2018), as amended by the Protecting our Infrastructure of Pipelines and Enhancing\nSafety Act of 2020, Pub. L. No. 116-260, div. R, title I, § 108(a)(2), 134 Stat. 2221, 2223 (Dec. 27, 2020). See 49\nC.F.R. § 190.213(a)(1) (2021). In re Tennessee Gas Pipeline Co., Final Order, CPF No. 1-2018-1001, 2019 WL\n7943664, **4, 5 (Nov. 14, 2019) (withdrawing alleged violation of § 192.706 because “OPS did not meet its burden\nof proving a violation of the leak detection regulation”); In re ExxonMobil Pipeline Co., Final Order, CPF No. 4-2017-\n5027, 2019 WL 3734516, **4, 5 (Apr. 3, 2019) (withdrawing allegation because PHMSA’s evidence did not establish\na violation); In re Inland Corp., Final Order, CPF No. 1-2017-5003, 2018 WL 2229407, *3 (Mar. 7, 2018)\n(withdrawing alleged violation where testimony was contradictory and factual evidence provided by respondent did\nnot support OPS’s claim); In re Air Prods. & Chems., Inc., Final Order, CPF No. 4-2013-1001, 2015 WL 6758819,\n*3 (Aug. 10, 2015) (withdrawing alleged violation because PHMSA did not produce “any evidence to support its\nposition” and thereby did not meet its burden of proof); In re ExxonMobil Pipeline Co., Final Order, CPF No. 5-2013-\n5007, 2015 WL 780721, *12 (Jan. 23,add 2015) (finding that PHMSA failed to meet burden of proving that certain\nmeasures were required under the regulations); In re So. Star Cent. Gas Pipeline, Inc., Final Order, CPF No. 3-2008-\n1005, 2011 WL 7006614, *4 (Oct. 21, 2011) (finding the evidence insufficient to sustain the allegation); In re Golden\nPass Pipeline, LLC, Final Order, CPF No. 4-2008-1017, 2011 WL 1919517, *5 (Mar. 22, 2011) (finding that PHMSA\ndid not meet its burden of proving that its interpretation of regulatory language was correct).\n4 Schaeffer v. Weast, 546 U.S. 49, 56 (2005) (quoting Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v.\nGreenwich Collieries, 512 U.S. 267, 272 (1994)); see also In re Butte Pipeline Co., Final Order, CPF No. 5-2007-\n5008, 2009 WL 3190794, *1 (Aug. 17, 2009) (“PHMSA carries the burden of proving the allegations set forth in the\nNotice, meaning that a violation may be found only if the evidence supporting the allegation outweighs the evidence\nand reasoning presented by Respondent in its defense.”) (internal citation omitted).\n3\n\n\n\nResponse of Texas Gas Transmission, LLC\nCPF No. 3-2022-019-NOPV\nApril 13, 2022\nelements of the proposed violation.”5 To meet its burden of production, PHMSA must present\nsufficient evidence to sustain an allegation of violation. Where PHMSA does not produce such\nevidence, the allegation of violation must be withdrawn.6 If the cited regulatory provision does\nnot relate to the alleged problem, the alleged violation must be withdrawn.7\nTo meet its burden of persuasion, PHMSA “must prove, by a preponderance of the\nevidence, that the facts necessary to sustain a probable violation actually occurred.”8 This burden\nis carried “only if the evidence supporting the allegation outweighs the evidence and reasoning\npresented by Respondent in its defense.”9 A respondent will prevail under this standard not by\nconclusively proving compliance, but where its rebuttal evidence is more persuasive than the\nevidence provided by PHMSA.10 If “the evidence is closely balanced,” PHMSA has not met its\nburden of persuasion and the allegation of violation must be withdrawn.11\nB. Texas Gas Did Not Fail to Comply With Section 9040 of Its O&M Manual.\nItem 5 of the Notice asserts that Texas Gas did not follow Section 9040 of its operation and\nmaintenance (O&M) procedures for inspecting the gas detectors at the Dillsboro Compressor\nStation in alleged violation of § 192.605(a) which requires that an operator “prepare and follow\nfor each pipeline, a manual of written procedures for conducting operations and maintenance\nactivities and for emergency response.”12 Section 9040 of Texas Gas’s O&M Manual describes\n5 In re ANR Pipeline Co., Final Order, CPF No. 3-2011-1011, 2012 WL 7177134, *3 (Dec. 31, 2012) (finding that\nevidence in violation report was insufficient); see also In re CITGO Pipeline Co., Decision on Reconsideration, CPF\nNo. 4-2007-5010, 2011 WL 7517716, *5 (Dec. 29, 2011) (finding lack of evidence demonstrating all elements of the\nalleged violation).\n6 See, e.g., Tennessee Gas Pipeline, 2019 WL 7943664 at *5 (withdrawing alleged violation because OPS did not\nmeet its burden of proving a violation); ExxonMobil, 2019 WL 3734516 at **4, 5 (ordering withdrawal of allegations\nwhere OPS failed to prove that Respondent engaged in conduct that would constitute a violation); In re Plains Pipeline,\nL.P., Final Order, CPF No. 4-2009-5009, 2011 WL 1919520, **4, 5 (Mar. 15, 2011) (ordering withdrawal of allegation\nwhen limited evidence in the record was not conclusive); In re EQT Corp., Final Order, CPF No. 1-2006-1006, 2010\nWL 2228558, **6, 7 (May 13, 2010) (finding that OPS did not present evidence or analysis proving that Respondent’s\nactions was inadequate under the regulation); In re Bridger Pipeline Co., Decision on Reconsideration, CPF No. 5-\n2007-5003, 2009 WL 2336991, **5, 6 (June 16, 2009) (finding evidence introduced by PHMSA insufficient to\nestablish a violation).\n7 In re Rocky Mountain Pipeline Sys., Final Order, CPF No. 5-2004-5001, 2006 WL 4488857, **6, 8 (Dec. 11, 2006)\n(withdrawing alleged violations where the cited regulations did not relate to alleged violation).\n8 In re Alyeska Pipeline Serv. Co., Decision on Petition for Reconsideration, CPF No. 5-2005-5023, 2009 WL\n5538655, *3 (Dec. 16, 2009) (citing In re Butte Pipeline, 2009 WL 3190794 at *1, n.3; Schaeffer, 546 U.S. at 56-58).\n9 In re Butte Pipeline, 2009 WL 3190794 at *1 (internal citation omitted).\n10 See ANR Pipeline, 2012 WL 7177134 at *3. In ANR Pipeline, PHMSA found that ANR’s “plausible” explanation\nregarding the discovery of a reportable condition on its pipeline was sufficient to warrant withdrawal of the allegation\nof violation because the “Violation Report contain[ed] no evidence which would rebut ANR’s argument.” Id. See\nalso In re City of Richmond, VA, Final Order, CPF No. 1-2004-0006, 2006 WL 3825337, *4 (Jan. 12, 2006) (stating\nthat the Respondent does not have the burden of proving compliance, rather OPS has the burden of proving the\nviolation).\n11 Alyeska Pipeline, 2009 WL 5538655 at *3 (quoting Schaeffer, 546 U.S. at 56). Cf. In re Buckeye Partners, LP,\nFinal Order, CPF No. 1-2009-5002, 2012 WL 3144486, *7 (May 30, 2012) (where neither party “present[s] sufficient\nproof to prove its position,” the violation must be withdrawn because PHMSA bears the burden).\n12 49 C.F.R. § 192.605(a); Notice at 4; Pipeline Safety Violation Report, CPF No. 3-2022-019-NOPV at 17 (2022)\n(Violation Report).\n4\n\n\n\nResponse of Texas Gas Transmission, LLC\nCPF No. 3-2022-019-NOPV\nApril 13, 2022\nthe procedure for implementing § 192.736 which requires that “[e]ach gas detection and alarm\nsystem” required in a compressor station building “be maintained to function properly. The\nmaintenance must include performance tests.”13 Consistent with this regulation, Section 9040\nrequires that a “functional test” of each compressor station gas detection system be performed\nannually, not to exceed 15 months.14\nThe Notice alleges the following:\nTexas Gas did not have any 2017 inspection records for the gas detectors associated\nwith engines 1, 2, 3, 9, and 10 at its Dillsboro compressor station. The gas detectors\nfor these engines were not re-inspected until 2018. On April 21, 2020, Texas Gas\nstated in response to the finding of lack of inspection: “Engines not available to\nperform annual Gas Detection inspections due to maintenance in 2017.” Although\nthe engines were out of service for part of 2017, the annual maintenance must still\nbe performed because the units were returned to service.\n15\nTexas Gas contests this allegation because the alleged facts regarding the status of these\ngas detector units are incorrect. When compressor engines #1, #2, #3, #9, and #10 were repaired\nand upgraded in 2017, the gas detectors for these engines were permanently removed from service.\nThey were not “returned to service” and they were not “re-inspected” in 2018. When the\nrehabilitated compressor engines were restored to service in late 2017 and early 2018, Texas Gas\ninstalled and commissioned new gas detector units. Texas Gas was not required to inspect the gas\ndetector units permanently removed from service.\nTexas Gas’s Dillsboro Compressor Station has 10 compressor engines. Each compressor\nengine has at least three gas detection units. During 2017, Texas Gas temporarily removed\ncompressor engines #1, #2, #3, #9, and #10 from service for repairs and upgrades. This\nrehabilitation project required that each compressor engine be disconnected from gas supply and\ndisassembled. On compressor engine #1, Texas Gas performed an engine foundation regrout,\nwhich entailed removing and repouring the engine’s concrete foundation.\nThe compressor engine rehabilitation project required that Texas Gas detach the gas\ndetector units from the disassembled engines. These units were permanently removed because\nTexas Gas planned to install new gas detector units on the rehabilitated compressor engines.\nPermanently removing these units from service in 2017 terminated the regulatory obligation to\ninspect them under § 192.736(c) and Section 9040 of Texas Gas’s O&M Manual.\nTexas Gas completed the repairs and upgrades on compressor engines #2, #3, #9, and #10\nin late 2017. Before returning the rehabilitated engines to service, Texas Gas installed new gas\ndetection units on each engine. A new gas detection unit also was installed on compressor engine\n13 Violation Report, Exhibit A at 310-311. For ease of reference, Section 9040 of Boardwalk’s O&M Manual is\nattached hereto as Attachment 1. See also 49 C.F.R. § 192.736.\n14 Attachment 1 at 2.\n15 Notice at 4 (emphasis added).\n5\n\n\n\nResponse of Texas Gas Transmission, LLC\nCPF No. 3-2022-019-NOPV\nApril 13, 2022\n#1 when its rehabilitation and regrout was completed in 2018. These are the units that were\ninspected in 2018.\nThe records documenting the commissioning and initial inspection of all of these new gas\ndetection units, dated October and November 2017, and January 2018 are attached to this Response\nas Attachment 2.16\nThroughout the 2017 compressor engine rehabilitation project, the gas detection and alarm\nsystem at the Dillsboro Compressor Station continued to function because compressor engines #4,\n#5, #6, #7, and #8 and their gas detector units remained in service. Records confirm that Texas\nGas inspected the gas detection units associated with these compressor engines i\nn August 2017 and that the gas detection and alarm systems were functional.17\nTexas Gas did not fail to comply with Section 9040 of its O&M Manual and did not violate\n§ 192.605(a). The Notice fails to set forth “the facts necessary to sustain a probable violation\nactually occurred.”18 This allegation and the proposed civil penalty must be withdrawn.\nC. OPS Fails to Prove That Texas Gas Failed to Document Procedure Reviews\nRequired Under § 192.605(b)(8).\nSection 192.605(b)(8) requires an operator to have and follow a procedural manual for\nmaintenance and normal operations, including procedures for “[p]eriodically reviewing the work\ndone by operator personnel to determine the effectiveness, and adequacy of the procedures used\nin normal operation and maintenance and modifying the procedures when deficiencies are\nfound.”19 Item 6 of the Notice asserts that “Texas Gas failed to determine the effectiveness and\nadequacy of its procedures based on a review of work performed during normal operations by its\npersonnel.”20\nThe Notice states that, during the inspection, OPS “requested to review documentation\nrelating to review of work performed for various procedures as required by Texas Gas procedure\nO&M Section 1010 ‘General Procedures.’”21 The Notice states that the material provided by\nTexas Gas, Form 1000-20: Compliance Manual Effectiveness Review, from the annual review for\n2017, 2018, and 2019, “failed to document any assessment of work performed as part of the\noperations and maintenance procedures.”22 The Notice asserts that Texas Gas was “unable to\n16 Attachment 2 at 1, 2, 5, 6, & 7.\n17 Violation Report, Exhibit E. For ease of reference, an excerpt of Exhibit E containing the 2017 inspection records\nis attached hereto as Attachment 3.\n18 See, e.g., Alyeska Pipeline, 2009 WL 5538655 at *3 (quoting Schaeffer, 546 U.S. at 56-58); ExxonMobil, 2019 WL\n3734516 at **4, 5 (ordering withdrawal of allegations where OPS failed to prove that Respondent engaged in conduct\nthat would constitute a violation); Inland Corp., 2018 WL 2229407 at *3 (withdrawing alleged violation where\ntestimony was contradictory and factual evidence provided by respondent did not support OPS’s claim); So. Star Cent.\nGas Pipeline, 2011 WL 7006614 at *4 (finding the evidence insufficient to sustain the allegation).\n19 49 C.F.R. § 192.605(b)(8).\n20 Notice at 4.\n21 Id. at 4-5.\n22 Id. at 5.\n6\n\n\n\nResponse of Texas Gas Transmission, LLC\nCPF No. 3-2022","truncated":true,"body_characters":136768}