{"operation":"document","citation":"CPF 32024037WL","title":"DAKOTA GASIFICATION COMPANY — Warning Letter","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2024-06-28","effective_on":null,"summary":"CLOSED warning letter citing 195.440(a), 195.440(b), 195.440(c), 195.452(i)(1), 195.452(l)(1)(ii).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-32024037wl.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-32024037wl.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-32024037wl","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/32024037WL","body":"Warning Letter involving DAKOTA GASIFICATION COMPANY. PHMSA's enforcement data identifies the cited regulations as 195.440(a),  195.440(b),  195.440(c),  195.452(i)(1),  195.452(l)(1)(ii). The case was opened on 2024-06-28 and is reported as closed as of 2024-06-28. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n32024037WL_Warning Letter_06282024_(23-264742).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024037WL/32024037WL_Warning%20Letter_06282024_(23-264742).pdf\n\n32024037WL_Warning Letter_06282024_(23-264742)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32024037WL/32024037WL_Warning%20Letter_06282024_(23-264742)_text.pdf\n\n32024037WL_Warning Letter_06282024_(23-264742)_text.pdf\n\nWARNING LETTER\nVIA ELECTRONIC MAIL TO: tbrickhouse@bepc.com; cbreiner@bepc.com;\ndalej@bepc.com\nJune 28, 2024\nTodd Brickhouse\nPresident & CEO\nDakota Gasification Company\n1717 East Interstate Avenue\nBismarck, ND 58503-0564\nCPF 3-2024-037-WL\nDear Mr. Brickhouse:\nFrom August 15 through August 17, and August 22 through August 23, 2023, representatives of\nthe Pipeline and Hazardous Materials Safety Administration (PHMSA) ), Office of Pipeline\nSafety (OPS), pursuant to Chapter 601 of 49 United States Code (U.S.C.), inspected the Dakota\nGasification Company’s (DGC) carbon dioxide pipeline in North Dakota.\nAs a result of the inspection, it is alleged that you have committed probable violations of the\nPipeline Safety Regulations, Title 49, Code of Federal Regulations (CFR). The items inspected\nand the probable violations are:\n1. § 195.440 Public awareness.\n(a) Each pipeline operator must develop and implement a written continuing public\neducation program that follows the guidance provided in the American\nPetroleum Institute's (API) Recommended Practice (RP) 1162 (incorporated by\nreference, see § 195.3).\n(b) The operator's program must follow the general program recommendations of\nAPI RP 1162 and assess the unique attributes and characteristics of the\noperator's pipeline and facilities.\n(c) The operator must follow the general program recommendations, including\nbaseline and supplemental requirements of API RP 1162, unless the operator\n\n\n\nprovides justification in its program or procedural manual as to why compliance\nwith all or certain provisions of the recommended practice is not practicable and\nnot necessary for safety.\nDGC failed to follow the provisions of API RP 1162, incorporated by reference, by failing to\nfully evaluate the effectiveness of its public awareness program, in violation of § 195.440(c).\nTable 8-1 of API RP 1162 requires effectiveness evaluation at a frequency of every four years,\nand states that one function of effectiveness surveys is to “assess outreach efforts, audience\nknowledge and changes in behavior,” which, by necessity, requires analysis of trends or changes\nover time. Similarly, API RP 1162 section E.3.4 states that “[o]perators should try to keep their\nquestions the same over time so that trends can be evaluated.” DGC has performed effectiveness\nevaluation surveys at the required frequency, but has not compared the responses to identify\nchanges over time to evaluate trends or changes in behavior. Consequently, DGC’s evaluation of\nthe effectiveness of its public awareness program was not complete as required by § 195.440(c).\n2. § 195.452 Pipeline integrity management in high consequence areas.\n(a) . . . .\n(i) What preventive and mitigative measures must an operator take to protect the high\nconsequence area? —\n(1) General requirements. An operator must take measures to prevent and mitigate\nthe consequences of a pipeline failure that could affect a high consequence area.\nThese measures include conducting a risk analysis of the pipeline segment to\nidentify additional actions to enhance public safety or environmental protection.\nSuch actions may include, but are not limited to, implementing damage\nprevention best practices, better monitoring of cathodic protection where\ncorrosion is a concern, establishing shorter inspection intervals, installing\nEFRDs on the pipeline segment, modifying the systems that monitor pressure\nand detect leaks, providing additional training to personnel on response\nprocedures, conducting drills with local emergency responders and adopting\nother management controls.\nDGC failed to implement preventive and mitigative measures (PMMs) for the pipeline, as\nrequired by § 195.452(i)(1). In its PMM evaluation documents, DGC identified alternating\ncurrent (AC) mitigation in the high consequence area (HCA) designated “DGC/AVS/Coteau” as\nthey only needed PMMs for calendar years 2021 and 2022. However, it had not been\nimplemented by the time of the 2023 inspection. Therefore, DGC failed to meet the requirement\nto take measures to prevent and mitigate the consequences of pipeline failure that could affect an\nHCA, as required by § 195.452(i)(1).\n3. § 195.452 Pipeline integrity management in high consequence areas.\n(a) . . . .\n(l) What records must an operator keep to demonstrate compliance?\n(1) An operator must maintain, for the useful life of the pipeline, records that\ndemonstrate compliance with the requirements of this subpart. At a minimum,\n\n\n\nan operator must maintain the following records for review during an\ninspection:\n(i)\n•••\n(i) Documents to support the decisions and analyses, including any modifications,\njustifications, deviations and determinations made, variances, and actions taken,\nto implement and evaluate each element of the integrity management program\nlisted in paragraph (f) of this section.\nDGC failed to adequately document its basis for decision-making in regard to PMMs, as required\nby § 195.452(1)(1)(ii). DGC provided its 2021 and 2022 PMM evaluation documentation (DGC\nform PLR-68) for the following identified HCAs: (1) Lake Sakakawea; (2) Enerplus; (3) Tioga/\nWhite Earth; (4) Tervita/Saddle Butte/Hiland; (5) McGregor/Battleview; (4) Little Missouri\ncurrent practices. No additional measures needed.\" No supporting information was provided to\nRiver; and (5) Charlson/Hess/Bridger. For each identified HCA, the form stated \"[c]ontinue\njustify this conclusion.\nDGC also reported that no PMM evaluation forms were completed for calendar year 2020.\nConsequently, DC's records were insufficient to document DC's analysis and decision-\nmaking as required by § 195.452(1)(1)(ii).\nUnder 49 U.S.C. § 60122 and 49 CFR § 190.223, you are subject to a civil penalty not to exceed\n$266,015 per violation per day the violation persists, up to a maximum of $2,660,135 for a\nrelated series of violations. For violation occurring on or after January 6, 2023 and before\nDecember 28, 2023, the maximum penalty may not exceed $257,664 per violation per day the\nviolation persists, up to a maximum of $2,576,627 for a related series of violations. For violation\noccurring on or after March 21, 2022 and before January 6, 2023, the maximum penalty may not\nexceed $239,142 per violation per day the violation persists, up to a maximum of $2,391,142 for\na related series of violations. For violation occurring on or after May 3, 2021 and before March\n21, 2022, the maximum penalty may not exceed $225,134 per violation per day the violation\npersists, up to a maximum of $2,251,334 for a related series of violations. For violation\noccurring on or after January 11, 2021 and before May 3, 2021, the maximum penalty may not\nexceed $222,504 per violation per day the violation persists, up to a maximum of $2,225,034 for\na related series of violations. For violation occurring on or after July 31, 2019 and before January\n11, 2021, the maximum penalty may not exceed $218,647 per violation per day the violation\npersists, up to a maximum of $2,186,465 for a related series of violations. For violation\noccurring on or after November 27, 2018 and before July 31, 2019, the maximum penalty may\nnot exceed $213,268 per violation per day, with a maximum penalty not to exceed $2,132,679.\nAlso, for each violation involving LNG facilities, an additional penalty of not more than $97,179\noccurring on or after December 28, 2023 may be imposed. For each violation involving LNG\nfacilities, an additional penalty of not more than $94,128 occurring on or after January 6, 2023\nand before December 28, 2023 may be imposed. For each violation involving LNG facilities, an\nadditional penalty of not more than $87,362 occurring on or after March 21, 2022 and before\nJanuary 6, 2023 may be imposed. For each violation involving LNG facilities, an additional\npenalty of not more than $82,245 occurring on or after May 3, 2021 and before March 21, 2022\nmay be imposed. For each violation involving LNG facilities, an additional penalty of not more\n\n\n\nthan $81,284 occurring on or after January 11, 2021 and before May 3, 2021 may be imposed.\nFor each violation involving LNG facilities, an additional penalty of not more than $79,875\noccurring on or after July 31, 2019 and before January 11, 2021 may be imposed. For each\nviolation involving LNG facilities, an additional penalty of not more than $77,910 occurring on\nor after November 27, 2018 and before July 31,2019 may be imposed.\nWe have reviewed the circumstances and supporting documents involved in this case, and have\ndecided not to conduct additional enforcement action or penalty assessment proceedings at this\ntime. We advise you to correct the items identified in this letter. Failure to do so will result in\nDGC being subject to additional enforcement action.\nNo reply to this letter is required. If you choose to reply, in your correspondence please refer to\nCPF No. 3-2024-037-WL. Be advised that all material you submit in response to this\nenforcement action is subject to being made publicly available. If you believe that any portion of\nyour responsive material qualifies for confidential treatment under 5 U.S.C. § 552(b), along with\nthe complete original document you must provide a second copy of the document with the\nportions you believe qualify for confidential treatment redacted and an explanation of why you\nbelieve the redacted information qualifies for confidential treatment under 5 U.S.C. § 552(b).\nSincerely,\nGregory A. Ochs\nDirector, Central Region, Office of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration\ncc: Christopher Breiner, Compliance Supervisor, Dakota Gasification Company\n(cbreiner@bepc.com)\nDale Johnson, Sr. VP & Plant Manager, Dakota Gasification Company (dalej@bepc.com)","truncated":false,"body_characters":10478}