{"operation":"document","citation":"CPF 32024036NOPV","title":"DAKOTA GASIFICATION COMPANY — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"current","official":true,"published_on":"2024-06-28","effective_on":null,"summary":"OPEN notice of probable violation citing 195.452(f)(1), 195.452(f)(3), 195.452(g)(1), 195.452(g)(4), 195.54(a), 195.577(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-32024036nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-32024036nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-32024036nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/32024036NOPV","body":"Notice of Probable Violation involving DAKOTA GASIFICATION COMPANY. PHMSA's enforcement data identifies the cited regulations as 195.452(f)(1),  195.452(f)(3),  195.452(g)(1),  195.452(g)(4),  195.54(a),  195.577(a). The case was opened on 2024-06-28 and is reported as open. Proposed civil penalty: $78,600. Assessed civil penalty: $48,800. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n32024036NOPV_Consent Agreement and Order_06232025_(23-264742).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_Consent%20Agreement%20and%20Order_06232025_(23-264742).pdf\n\n32024036NOPV_Consent Agreement and Order_06232025_(23-264742)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_Consent%20Agreement%20and%20Order_06232025_(23-264742)_text.pdf\n\n32024036NOPV_Consent Agreement Modification (Second)_06182026_(23-264742).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_Consent%20Agreement%20Modification%20(Second)_06182026_(23-264742).pdf\n\n32024036NOPV_Consent Agreement Modification (Second)_06182026_(23-264742)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_Consent%20Agreement%20Modification%20(Second)_06182026_(23-264742)_text.pdf\n\n32024036NOPV_Consent Agreement Modification_03312026_(23-264742).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_Consent%20Agreement%20Modification_03312026_(23-264742).pdf\n\n32024036NOPV_Consent Agreement Modification_03312026_(23-264742)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_Consent%20Agreement%20Modification_03312026_(23-264742)_text.pdf\n\n32024036NOPV_Operator Response to Notice and Request for Hearing and Request Informal Settlement Consultation and Statement of Issues_09092024_(23-264742).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_Operator%20Response%20to%20Notice%20and%20Request%20for%20Hearing%20and%20Request%20Informal%20Settlement%20Consultation%20and%20Statement%20of%20Issues_09092024_(23-264742).pdf\n\n32024036NOPV_PCP PCO_06282024_(23-264742).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_PCP%20PCO_06282024_(23-264742).pdf\n\n32024036NOPV_PCP PCO_06282024_(23-264742)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_PCP%20PCO_06282024_(23-264742)_text.pdf\n\n32024036NOPV_PHC Hearing Rescheduled_03272025_(23-264742).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_PHC%20Hearing%20Rescheduled_03272025_(23-264742).pdf\n\n32024036NOPV_PHC Hearing Rescheduled_03272025_(23-264742)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_PHC%20Hearing%20Rescheduled_03272025_(23-264742)_text.pdf\n\n32024036NOPV_PHC Hearing Rescheduled_05212025_(23-264742).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_PHC%20Hearing%20Rescheduled_05212025_(23-264742).pdf\n\n32024036NOPV_PHC Hearing Rescheduled_05212025_(23-264742)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_PHC%20Hearing%20Rescheduled_05212025_(23-264742)_text.pdf\n\n32024036NOPV_PHC Hearing Scheduled_10102024_(23-264742).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_PHC%20Hearing%20Scheduled_10102024_(23-264742).pdf\n\n32024036NOPV_PHC Hearing Scheduled_10102024_(23-264742)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024036NOPV/32024036NOPV_PHC%20Hearing%20Scheduled_10102024_(23-264742)_text.pdf\n\n32024036NOPV_Consent Agreement Modification (Second)_06182026_(23-264742)_text.pdf\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\nIn the Matter of )\nDakota Gasification Company, ) CPF No. 3-2024-036-NOPV\n)\n)\n)\nRespondent. )\n____________________________________)\nMODIFICATION TO CONSENT AGREEMENT\nFrom August 15 through August 17 and August 22 through 23, 2023, representatives of the\nPipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety\n(OPS), pursuant to Chapter 601 of Title 49, United States Code (U.S.C.), inspected Dakota\nGasification Company’s (DGC or Respondent) carbon dioxide pipeline in North Dakota.\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated June 28, 2024, a Notice of Probable Violation, Proposed Civil Penalty, and Proposed\nCompliance Order (Notice).\nOn June 12, 2025, PHMSA and Respondent (the Parties) entered into a Consent Agreement\n(Agreement) to resolve the Notice. The Agreement was approved by the Acting Associate\nAdministrator for Pipeline Safety, PHMSA, and incorporated by reference into a Consent Order\nthat was issued pursuant to 49 CFR § 190.219 on June 23, 2025.\nParagraph 28 of the Agreement states that the Agreement may be modified by mutual agreement\nof the Parties and that such modifications must be in writing and signed by both parties. The parties\nmodified the Agreement pursuant to Paragraph 28 on March 31, 2026.\nIn accordance with Paragraph 28 of the Agreement, the Parties hereby agree to modify Paragraph\n22.a. of the Agreement. The modification to Paragraph 22.a does not otherwise change any of the\nother terms of the Agreement, which remain in full force and effect unmodified. This modification\nsupersedes and replaces the March 31, 2026 modification.\nI. Modification:\nParagraph 22.a. of the Agreement is hereby struck and replaced with the following:\n\n\n\nDGC must conduct an AC interference study and consider and prioritize the need for AC\nmitigation in the areas identified as having an elevated AC risk within 15 months from\nreceipt of the Consent Order. The 15-month deadline may be extended upon mutual\nagreement by the Parties in writing.\nII. Ratification:\n1. The Parties’ undersigned representatives certify that they are fully authorized to enter into\nthe terms and conditions of this modification and to execute and legally bind such party to this\ndocument.\n2. The Parties hereby agree to all findings, conditions, and terms of this modification.\n[Signature Lines on Following Page]\n\n\n\nFor Dakota Gasification Company:\n_______________________________\n________________________\nDate\nFor PHMSA:\n________________________________________\nDirector, Central Region, Office of Pipeline Safety\n________________________\nDate\n\n32024036NOPV_PHC Hearing Rescheduled_03272025_(23-264742)_text.pdf\n\nDate: March 27, 2025\nFrom: Joseph St. Peter\nTo: File\nRe: Continuance of Informal Hearing in CPF No. 3-2024-036-NOPV (Dakota Gasification\nCompany)\nBy electronic mail on February 26, 2025, Ryan McClure, Counsel for Central Region, provided a\njoint status update indicating that the parties have initiated settlement discussions to potentially\nresolve the issues raised in the Notice of Probable Violation. The parties therefore requested the\nscheduled April 2, 2025, hearing date in this matter be continued. The request is granted, and the\ninformal hearing in this case will be held on Thursday May 29, 2025, at 8:30 a.m. Central\nDaylight Time. Pre-hearing submissions under 49 CFR § 190.211(d) are due no later than May\n19, 2025.\n\n32024036NOPV_Consent Agreement and Order_06232025_(23-264742)_text.pdf\n\nJune 23, 2025\nVIA ELECTRONIC MAIL TO: tbrickhouse@bepc.com\nTodd Brickhouse\nPresident & CEO\nDakota Gasification Company\n1717 East Interstate Avenue\nBismarck, ND 58503\nCPF No. 3-2024-036-NOPV\nDear Mr. Brickhouse:\nEnclosed please find a Consent Order incorporating the terms of the Consent Agreement between\nthe Pipeline and Hazardous Materials Safety Administration (PHMSA) and Dakota\nGasification Company, which was executed on June 12, 2025. Service of the Consent Order and\nConsent Agreement by electronic mail is deemed effective upon the date of transmission and\nacknowledgement of receipt, or as otherwise provided under 49 CFR § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nLinda Daugherty\nActing Associate Administrator\nfor Pipeline Safety\nEnclosure: Consent Order and Consent Agreement\ncc: Christopher Breiner, Compliance Supervisor, Dakota Gasification Company\ncbreiner@bepc.com\nDale Johnson, Sr. VP & Plant Manager, Dakota Gasification Company, dalej@bepc.com\nMaggie Olson, Senior Staff Counsel, Basin Electric Power Cooperative,\n\n\n\nmolson@bepc.com\nJames Martin, Outside Counsel, Beatty & Wozniak, PC, jmartin@bwenergylaw.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____________________________________\nIn the Matter of )\nDakota Gasification Company, ) CPF No. 3-2024-036-NOPV\n)\n)\n)\nRespondent. )\n____________________________________)\nCONSENT ORDER\nBy letter dated June 28, 2024, pursuant to 49 CFR § 190.207, the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), issued a Notice of\nProbable Violation, Proposed Civil Penalty, and Proposed Compliance Order (Notice) to Dakota\nGasification Company (DGC or Respondent).\nIn response to the Notice, Respondent contested the proposed civil penalty and the proposed\ncompliance order for certain alleged violations and requested a hearing (Response). DGC also\nrequested to meet informally with PHMSA to discuss the matters raised in its Response.\nRespondent and PHMSA (the Parties) subsequently met on April 30, 2025. As a result of those\ndiscussions, the Parties have agreed to a Consent Agreement by which PHMSA makes findings\nof violations for each of the Items alleged in the Notice, Respondent will pay a reduced civil\npenalty in the amount of $48,800, and Respondent will complete certain compliance actions.\nAccordingly, the Consent Agreement is hereby approved and incorporated by reference into this\nConsent Order issued pursuant to § 190.219. DGC is hereby ordered to comply with the terms of\nthe Consent Agreement pursuant to its terms. Pursuant to 49 U.S.C. § 60101, et seq., failure to\ncomply with this Consent Order may result in the assessment of civil penalties as set forth in\n49 U.S.C. § 60122 and 49 CFR § 190.223, or in referral to the Attorney General for appropriate\nrelief in a district court of the United States.\nThe terms and conditions of this Consent Order are effective upon service in accordance with\n49 CFR § 190.5.\n______________________ ______________________\nLinda Daugherty Date Issued\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)\nDakota Gasification Company, ) CPF No. 3-2024-036-NOPV\n)\nRespondent. )\n____________________________________)\nCONSENT AGREEMENT\nFrom August 15 through 17 and August 22 through 23, 2023, representatives of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), pursuant\nto Chapter 601 of Title 49, United States Code (U.S.C.), inspected Dakota Gasification\nCompany’s (DGC or Respondent) carbon dioxide pipeline in North Dakota.\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated June 28, 2024, a Notice of Probable Violation, Proposed Civil Penalty, and\nProposed Compliance Order (Notice). In accordance with 49 CFR § 190.207, the Notice\nproposed finding that DGC committed four violations of 49 CFR Part 195 (Items 1 – 4),\nproposed ordering Respondent to take certain measures to correct the alleged violations, and\nproposed a civil penalty of $78,600.\nAfter receiving an extension of time to respond to the Notice, DGC submitted a substantive\nresponse by letter dated September 9, 2024 (Response). Respondent contested several of the\nalleged violations, the proposed civil penalty, and the proposed compliance order, and requested\na hearing. DGC also requested to meet informally with PHMSA to discuss the matters raised in\nits Response. DGC supplemented its response by letter dated January 17, 2025 (Supplemental\nResponse).\nPHMSA and Respondent (the Parties) subsequently met to discuss the issues raised in the\nResponse. As a result of those discussions and as explained in more detail below, the Parties\nhave agreed to a Consent Agreement by which PHMSA makes findings of violations for each of\nthe Items alleged in the Notice, Respondent will pay a reduced civil penalty in the amount of\n$48,800, and Respondent will complete certain compliance actions.\nHaving agreed that settlement of this proceeding will avoid further administrative proceedings or\nlitigation and will serve the public interest by promoting safety and protection of the\nenvironment, pursuant to 49 U.S.C. § 60101, et seq. and 49 CFR Part 190, and upon consent and\nagreement, the Parties hereby agree as follows:\n\n\n\nI. General Provisions\n1. Respondent acknowledges that as the operator of the pipeline facilities subject to\nthe Notice, Respondent and its referenced pipeline facilities are subject to the jurisdiction of the\nFederal pipeline safety laws, 49 U.S.C. § 60101, et seq., and the regulations and administrative\norders issued thereunder. For purposes of this Consent Agreement (Agreement), Respondent\nacknowledges that it received proper notice of PHMSA’s action in this proceeding and that the\nNotice states claims upon which relief may be granted pursuant to 49 U.S.C. § 60101, et seq.,\nand the regulations and orders issued thereunder.\n2. After Respondent returns this signed Agreement to PHMSA, the Agency’s\nrepresentative will present it to the Associate Administrator for Pipeline Safety, recommending\nthat the Associate Administrator adopt the terms of this Agreement by issuing an administrative\norder (Consent Order) incorporating the terms of this Agreement. The terms of this Agreement\nconstitute an offer of settlement until accepted by the Associate Administrator. Once accepted,\nthe Associate Administrator will issue a Consent Order incorporating the terms of this Agreement.\n3. Respondent consents to the issuance of the Consent Order, and hereby waives any\nfurther procedural requirements with respect to its issuance. Respondent waives all rights to\ncontest the adequacy of notice, or the validity of the Consent Order or this Agreement, including\nall rights to administrative or judicial hearings or appeals, except for the Dispute Resolution\nprovisions set forth herein. Respondent agrees to withdraw its request for an administrative\nhearing regarding the Notice.\n4. This Agreement shall apply to and be binding upon PHMSA and Respondent, its\nofficers, directors, and employees, and its successors, assigns, or other entities or persons\notherwise bound by law. Respondent agrees to provide a copy of this Agreement and any\nincorporated work plans and schedules to all of Respondent’s officers, employees, and agents\nwhose duties might reasonably include compliance with this Agreement.\n5. This Agreement constitutes the final, complete and exclusive agreement and\nunderstanding between the Parties with respect to the settlement embodied in this Agreement.\nThe Parties acknowledge that there are no representations, agreements or understandings relating\nto settlement other than those expressly contained in this Agreement, except that the terms of this\nAgreement may be construed by reference to the Notice.\n6. Nothing in this Agreement affects or relieves Respondent of its responsibility to\ncomply with all applicable requirements of the Federal pipeline safety laws, 49 U.S.C. § 60101,\net seq., and the regulations and orders issued thereunder. Nothing in this Agreement alters\nPHMSA's right of access, entry, inspection, and information gathering or PHMSA's authority to\nbring enforcement actions against Respondent pursuant to the Federal pipeline safety laws, the\nregulations and orders issued thereunder, or any other provision of Federal or State law.\n7. For all transfers of ownership or operating responsibility of Respondent’s pipeline\nsystem referenced herein, Respondent will provide a copy of this Agreement to the prospective\n\n\n\ntransferee at least 30 days prior to such transfer. Respondent will provide written notice\nof the transfer to the Director no later than 60 days after the transfer occurs.\n8. This Agreement does not waive or modify any Federal, State, or local laws or\nregulations that are applicable to Respondent’s pipeline systems. This Agreement is not a\npermit, or a modification of any permit, under any Federal, State, or local laws or regulations.\nRespondent remains responsible for achieving and maintaining compliance with all applicable\nFederal, State, and local laws, regulations and permits.\n9. This Agreement does not create rights in, or grant any cause of action to, any third\nparty not party to this Agreement. The U.S. Department of Transportation is not liable for any\ninjuries or damages to persons or property arising from acts or omissions of Respondent or its\nofficers, employees, or agents carrying out the work required by this Agreement. Respondent\nagrees to hold harmless the U.S. Department of Transportation, its officers, employees, agents,\nand representatives from any and all causes of action arising from any acts or omissions of\nRespondent or its contractors in carrying out any work required by this Agreement.\n10. Except as set forth herein, this Agreement does not constitute a finding of\nviolation of any other federal law or regulation and may not be used in any civil proceeding of\nany kind as evidence or proof of any fact, fault or liability, or as evidence of a violation of any\nlaw, rule, regulation, or requirement, except in a proceeding to enforce the provisions of this\nAgreement or in future PHMSA enforcement actions.\nII. Findings of Violation:\n11. Item 1- 49 CFR § 195.54(a): The Notice alleged DGC failed to report three\nreportable accidents within the 30-day time frame required by § 195.54(a). Respondent does not\ncontest the allegation of violation as alleged in the Notice. As such, PHMSA finds a violation of\n49 CFR § 195.54(a).\n12. Item 2 – 49 CFR § 195.452(f)(3): The Notice alleged that DGC failed to provide\nin its Carbon Dioxide Pipeline Integrity Management Plan (IMP), revised July 2023, adequate\nguidance for assessing risk on its pipeline. DGC does not contest the allegation of violation as\nalleged in the Notice. As such, PHMSA finds a violation of 49 CFR § 195.452(f)(3).\n13. Item 3 – 49 CFR § 195.452(g)(4): The Notice alleged that DGC failed to perform\ninformation analysis relevant to pipeline integrity and risk by the October 1, 2022 deadline\nrequired by § 195.452(g). DGC does not contest the allegation of violation as alleged in the Notice.\nAs such, PHMSA finds a violation of 49 CFR § 195.452(g)(4).\n14. Item 4 – 49 CFR § 195.557(a): The Notice alleged that DGC failed to protect its\npipeline which was exposed to stay currents by not having an effective program to minimize the\ndetrimental effects of such currents. DGC does not contest the allegation of violation as alleged\nin the Notice. As such, PHMSA finds a violation of 49 CFR § 195.557(a).\n15. Items 1 – 4 will be considered by PHMSA as prior offenses in any future PHMSA\nenforcement action taken against Respondent.\n\n\n\nV. Civil Penalty:\n16. Item 1: The Notice proposed assessing a civil penalty in the amount of $19,100\nfor Item 1. Respondent did not contest the proposed civil penalties for this Item. As such,\nRespondent shall pay a civil penalty in the amount of $19,100 for Item 1.\n17. Item 4: The Notice proposed assessing a civil penalty in the amount of $59,500\nfor Item 4. Respondent requested a reduction of the proposed civil penalty. During the Parties’\ninformal discussions, DGC provided evidence showing that a change to the gravity factor\nselected in the Violation Report was appropriate. PHMSA agrees that a reduction to the\nproposed civil penalty is appropriate based on reconsideration of the gravity factor as supported\nby the additional information provided by Respondent. Respondent agrees to pay a reduced civil\npenalty in the amount of $29,700 for the violation in Item 4.\n18. Respondent will pay a total reduced civil penalty in the amount of $48,800,\npursuant to the payment instructions at 49 CFR § 190.227(a), to be paid in full no later than 20\ndays from the Effective Date of this Agreement.\nVI. Compliance Order:\n19. Item 1: The Notice did not propose any compliance order actions to address the\nnon-compliance alleged for Item 1. As such, no compliance action is required. During the\ninformal discussion between the parties, DGC explained to the satisfaction of the Director that it\nhad completed measures to prevent the actions described in Item 1 from reoccurring.\n20. Item 2: The Notice proposed certain compliance order actions to address the non-\ncompliance alleged in the Notice. Respondent initially contested the Proposed Compliance\nOrder. Following informal discussion with PHMSA, Respondent agrees to undertake the\ncorrective measures proposed in the Notice for Item 2:\na. DGC must revise and amend its Carbon Dioxide Pipeline Integrity Management\nPlan and any relevant associated procedures in order to comply with the\nrequirements of § 195.452, and provide the revisions to the Director for review\nand approval within 90 days of receipt of the Consent Order. Specifically, the\nprocedures must be revised to provide adequate guidance for performing a valid\nrisk analysis of sufficient sophistication to address all relevant risk factors,\nincluding but not limited to those in § 195.452(i)(2).\n21. Item 3: The Notice proposed certain compliance order actions to address the non-\ncompliance alleged in the Notice. Respondent initially contested the Proposed Compliance\nOrder. Following informal discussion with PHMSA, Respondent agrees to undertake the\ncorrective measures for Item 3:\na. DGC must develop a risk model, in accordance with the updated procedures\nrequired by Paragraph 20 of this Consent Agreement, which incorporates all\navailable information and considers all threats and consequences, and provide it to\n\n\n\nthe Director for review and approval within 90 days of receipt of the Consent Order.\nb. DGC must apply the risk model within 90 days of the Director’s approval of it\nand use the new risk analysis to review its assessment methods, assessment\nintervals, and preventative and mitigative measures. Results of the review must\nbe submitted to the Director for review no later than 90 days after DGC’s review\nis completed.\n22. Item 4: The Notice proposed certain compliance order actions to address the non-\ncompliance alleged in the Notice. Respondent initially contested the Proposed Compliance\nOrder. Following informal discussion with PHMSA, Respondent agrees to undertake the\ncorrective measures for Item 4:\na. b. c. DGC must conduct an AC interference study and consider and prioritize the need\nfor AC mitigation in the areas identified as having an elevated AC risk within 9\nmonths from receipt of the Consent Order;\nHaving identified areas having an elevated AC risk, if any, DGC must develop a\nschedule for mitigation work in the location(s) having the highest priority, and\nsubmit the plans to the Director for review within 90 days of receipt of the results\nof the interference study referenced above in provision a.\nAfter Director approval of the plan, DGC must implement the applicable AC\nmitigation measures in accordance with the schedule and submit documentation to\nthe Director within 30 days of completion of the mitigation work at each location.\nVII. Enforcement:\n23. This Agreement is subject to all enforcement authorities available to PHMSA\nunder 49 U.S.C. § 60101, et seq., and 49 CFR Part 190, including administrative civil penalties\nunder 49 U.S.C. § 60122, of up to $272,926 per violation for each day the violation continues and\nreferral of the case to the Attorney General for judicial enforcement, if PHMSA determines that\nRespondent is not complying with the terms of this Agreement in accordance with the\ndeterminations made by the Director, or in accordance with decisions of the Associate\nAdministrator if resolved pursuant to the Dispute Resolution process herein. The maximum civil\npenalty amounts are adjusted annually for inflation. See 49 CFR § 190.223. All work plans and\nassociated schedules set forth or referenced in Section VI (Compliance Order) are automatically\nincorporated into this Agreement and are enforceable in the same manner.\nVIII. Review and Approval Process:\n24. With respect to any submission under Section VI (Compliance Order) of this\nAgreement that requires the approval of the Director, the Director may: (a) approve, in whole or\nin part, the submission; (b) approve the submission on specified, reasonable conditions; (c)\ndisapprove, in whole or in part, the submission; or (d) any combination of the foregoing. If the\nDirector approves, approves in part, or approves with conditions, Respondent will take all\nactions as approved by the Director, subject to Respondent’s right to invoke the dispute\nresolution procedures with respect to any conditions the Director identifies. If the Director\ndisapproves all or any portion of the submission, the Director will provide Respondent a written\nnotice of the deficiencies with an explanation of those particulars wherein Respondent’s actions\n\n\n\nfail to satisfy the requirements of the Compliance Order in Section VI. Respondent will correct\nall deficiencies within the time specified by the Director and resubmit it for approval. PHMSA\nwill promptly respond to any requests for clarification or submissions from DGC.\nIX. Dispute Resolution:\n25. The Director and Respondent will informally attempt to resolve any disputes\narising under this Agreement, including any decision of the Director under the terms of Sections\nVI (Compliance Order) and VIII (Review and Approval Process). If Respondent and the\nDirector are unable to informally resolve the dispute within 15 calendar days after the dispute is\nfirst raised, in writing, to the Director, Respondent may submit a written request for a\ndetermination resolving the dispute from the Associate Administrator. Such request must be\nmade in writing and provided to the Director, counsel for the Central Region, and to the\nAssociate Administrator, no later than 10 calendar days from the 15-day deadline for informal\nresolution referenced in this paragraph. Along with its request, Respondent must provide the\nAssociate Administrator with all information Respondent believes is relevant to the dispute.\nDecisions of the Associate Administrator under this paragraph will constitute final agency\naction. The existence of a dispute and PHMSA’s consideration of matters placed in dispute will\nnot excuse, toll, or suspend any term or timeframe for completion of any work to be performed\nunder this Agreement during the pendency of the dispute resolution process.\nX. Effective Date:\n26. The term “Effective Date,” as used herein, is the date on which the Consent Order\nis issued by the Associate Administrator incorporating the terms of this Agreement.\nXI. Recordkeeping and Information Disclosure:\n27. Unless otherwise required in this Agreement, Respondent agrees to maintain\nrecords demonstrating compliance with all requirements of this Agreement for a period of at\nleast five (5) years following completion of all work to be performed, unless a longer period of\ntime is required pursuant to 49 CFR parts 190-199. For any reports, plans, or other deliverables\nrequired to be submitted to PHMSA pursuant to this Agreement, Respondent may assert a claim\nof business confidentiality or other protections applicable to the release of information by\nPHMSA, covering part or all of the information required to be submitted to PHMSA pursuant to\nthis Agreement in accordance with 49 CFR Part 7. Respondent must mark the claim of\nconfidentiality in writing on each page, and include a statement specifying the grounds for each\nclaim of confidentially. PHMSA determines release of any information submitted pursuant to\nthis Agreement in accordance with 49 CFR Part 7, the Freedom of Information Act, 5 U.S.C. §\n552, DOT and PHMSA policies, and other applicable regulations and Executive Orders.\nXII. Modification:\n28. The terms of this Agreement may be modified by mutual agreement of the Parties.\nSuch modifications must be in writing and signed by both parties.\n\n\n\nXIII. Termination:\n29. This Agreement will remain in effect until the Civil Penalty in Section V is paid\nin full and the Compliance Order in Section VI is satisfied, as determined by the Director. The\nAgreement shall not terminate until the Director confirms, in writing, that the Agreement is\nterminated in accordance with this paragraph. Nothing in this Agreement prevents Respondent\nfrom completing any of the obligations earlier than the deadlines provided for in this Agreement.\nThe Respondent may petition in writing the Director to terminate the Agreement upon\nRespondent’s determination that the terms of the Compliance Order have been satisfied.\nDisputes shall be resolved by reference to Dispute Resolution Section IX.\nXIV. Ratification:\n30. The Parties’ undersigned representatives certify that they are fully authorized to\nenter into the terms and conditions of this Agreement and to execute and legally bind such party\nto this document.\n31. The Parties hereby agree to all findings, conditions, and terms of this Agreement.\n[Signature Lines on Following Page]\n\n\n\nFor Dakota Gasification Company:\n___________________________________\n________________________\nDate\nFor PHMSA:\n________________________________________\nActing Director, PHMSA Central Region, Office of Pipeline Safety\nActing Associate Administrator\nfor Pipeline Safety\n\n32024036NOPV_Consent Agreement Modification_03312026_(23-264742)_text.pdf\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\nIn the Matter of )\nDakota Gasification Company, ) CPF No. 3-2024-036-NOPV\n)\n)\n)\nRespondent. )\n____________________________________)\nMODIFICATION TO CONSENT AGREEMENT\nFrom August 15 through August 17 and August 22 through 23, 2023, representatives of the\nPipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety\n(OPS), pursuant to Chapter 601 of Title 49, United States Code (U.S.C.), inspected Dakota\nGasification Company’s (DGC or Respondent) carbon dioxide pipeline in North Dakota.\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated June 28, 2024, a Notice of Probable Violation, Proposed Civil Penalty, and Proposed\nCompliance Order (Notice).\nOn June 12, 2025, PHMSA and Respondent (the Parties) entered into a Consent Agreement\n(Agreement) to resolve the Notice. The Agreement was approved by the Acting Associate\nAdministrator for Pipeline Safety, PHMSA, and incorporated by reference into a Consent Order\nthat was issued pursuant to 49 CFR § 190.219 on June 23, 2025.\nParagraph 28 of the Agreement states that the Agreement may be modified by mutual agreement\nof the Parties and that such modifications must be in writing and signed by both parties.\nIn accordance with Paragraph 28 of the Agreement, the Parties hereby agree to modify Paragraph\n22.a. of the Agreement. The modification to Paragraph 22.a does not otherwise change any of the\nother terms of the Agreement, which remain in full force and effect unmodified.\nI. Modification:\nParagraph 22.a. of the Agreement is hereby struck and replaced with the following:\nDGC must conduct an AC interference study and consider and prioritize the need for AC\nmitigation in the areas identified as having an elevated AC risk within 12 months from\nreceipt of the Consent Order.\n\n\n\nII. Ratification:\n1. The Parties’ undersigned representatives certify that they are fully authorized to enter into\nthe terms and conditions of this modification and to execute and legally bind such party to this\ndocument.\n2. The Parties hereby agree to all findings, conditions, and terms of this modification.\n[Signature Lines on Following Page]\n\n\n\nFor Dakota Gasification Company:\n_______________________________\n________________________\nDate\nFor PHMSA:\n________________________________________\nActing Director, Central Region, Office of Pipeline Safety\n________________________\nDate\n\n32024036NOPV_PHC Hearing Scheduled_10102024_(23-264742)_text.pdf\n\nOctober 10, 2024\nVIA ELECTRONIC MAIL TO: molson@bepc.com and gregory.ochs@dot.gov\nMs. Maggie Olson\nSenior Staff Counsel\nDakota Gasification Company\n1717 East Interstate Avenue\nBismark, ND 58503-0564\nMr. Gregory Ochs\nDirector, Central Region\nPipeline and Hazardous Materials Safety Administration\n901 Locust Street, Suite 480\nKansas City, MO 64106-2641\nRe: Notice of Hearing, Dakota Gasification Company\nCPF No. 3-2024-036-NOPV\nDear Ms. Olson 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 April 2, 2025, beginning at 8:30 a.m. Central Time.\nThe hearing will be held at the PHMSA Central Region office, 901 Locust Street, Suite 480,\nKansas City, Missouri 64106. Upon arrival at the building, attendees will be required to present\nphoto identification to security personnel. A contact phone number for the day of the hearing is\n(816) 329-3800.\nAt least 10 calendar days prior to the hearing (or by March 24, 2025), both parties must submit\nand exchange any additional written materials they intend to present at the hearing and the name\nand email address of each attendee. This information should be provided electronically.\nMaterials not submitted by this date may be excluded. If you have any questions, please do not\nhesitate to contact me.\n\n\n\nSincerely,\nLarry White\nPresiding Official\ncc: Mr. Todd Brickhouse, President and CEO, Dakota Gasification Company,\ntbrickhouse@bepc.com\nMr. Ryan McClure, OPS Central Region Counsel, PHMSA,\nryan.mcclure@dot.gov\nMs. Mia Petrucci, OPS Central Region Law Clerk, PHMSA,\nmia.petrucci@dot.gov\n\n32024036NOPV_PHC Hearing Rescheduled_05212025_(23-264742)_text.pdf\n\nMay 21, 2025\nVIA EMAIL TO: Molson@bepc.com, Ryan.McClure@dot.gov et al.\nMs. Maggie Olson, Esq.\nCounsel for Dakota Gasification Company\n1717 East Interstate Avenue\nBismark, ND 58503-0564\nMr. Ryan McClure, Esq.\nCounsel for the Agency\nPipeline and Hazardous Materials Safety Administration (PHMSA)\n1200 New Jersey Ave., S.E.\nWashington, DC 20590\nRe: PHMSA CPF No.: 3-2024-036-NOPV, Dakota Gasification Company, Notice of\nHearing and Order Regarding Prehearing Statement\nDear Ms. Olson and Mr. McClure,\nIn accordance with 49 C.F.R. § 190.211, a hearing will be held regarding the Notice of\nProbable Violation, Proposed Civil Penalty and Proposed Compliance Order issued by\nPHMSA in the above referenced case. The hearing will take place on August 5,\n2025, beginning at 9:30 a.m. Eastern Time. The hearing will be held virtually via\nMicrosoft Teams. Hearing login information will be provided later.\nEach party is directed to submit to the presiding official and the other party by email a\npre-hearing statement, due no later than July 23, 2025, including the following\ninformation:\n1. A statement of facts\n2. A list of all agreed upon facts\n3. Defenses (by Respondent)\n4. A witness list including a description and anticipated length of each witness’\nanticipated testimony. The description must be sufficient to show how the\nanticipated testimony may prove or disprove a fact significant to the case.\n5. A copy of all exhibits with an index identifying the documents. All exhibits must\nbe marked for identification in the lower right corner of each page. Documents\nalready in the case file should not be included.\n\n\n\nThe parties must confer regarding item 2 above. Failure to submit items 4 and 5 above\nmay result in disallowance of that evidence at the hearing. The parties may supplement\ntheir hearing exhibits or witness list with fair notice to the other party and the presiding\nofficial.\nA brief pre-hearing conference may be held 7-10 days prior to the hearing if the\npresiding official deems it appropriate.\nThe presiding official strongly recommends that a court reporter transcribe the hearing.\nIf Respondent elects to transcribe the hearing, Respondent should notify the presiding\nofficial (with copy to the other party) as soon as practicable.\nThe Agency is required to be represented by counsel for these proceedings.\nRegards,\nDolores Francis\nPresiding Official","truncated":false,"body_characters":36916}