{"operation":"document","citation":"CPF 420031005","title":"NATURAL GAS PIPELINE CO OF AMERICA (KMI) — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2003-05-14","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.465(d), 192.605(a), 192.705(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-420031005.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-420031005.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-420031005","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/420031005","body":"Notice of Probable Violation involving NATURAL GAS PIPELINE CO OF AMERICA (KMI). PHMSA's enforcement data identifies the cited regulations as 192.465(d),  192.605(a),  192.705(a). The case was opened on 2003-05-14 and is reported as closed as of 2009-06-08. Proposed civil penalty: $31,000. Assessed civil penalty: $30,500. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n420031005_Decision on Petition_10142005.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420031005/420031005_Decision%20on%20Petition_10142005.pdf\n\n420031005_decision on petition_10142005_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420031005/420031005_decision%20on%20petition_10142005_text.pdf\n\n420031005_Final Order_10212004.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420031005/420031005_Final%20Order_10212004.pdf\n\n420031005_final order_10212004_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420031005/420031005_final%20order_10212004_text.pdf\n\n420031005_Petition for Reconsideration_11092004.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420031005/420031005_Petition%20for%20Reconsideration_11092004.pdf\n\n420031005_decision on petition_10142005_text.pdf\n\nU. S. Department\nof Transportation\nPipeline and\nHazardous Materials Safety\nAdministration\n400 Seventh Street, S. W.\nWashington, D. C. 205SO\nMr. Dwayne Burton\nVice President Gas Operations\nNatural Gas Pipeline Company of America\nKinder Morgan, Inc.\nOne Allen Center\n500 Dallas Street, Suite 1000\nHouston, TX 77002\nRe: CPF No. 4-2003-1005\nDear Mr. Burton:\nEnclosed is a decision on the petition for reconsideration filed in the above-referenced\ncase. The Associate Administrator for Pipeline Safety has denied the petition and therefore,\npayment of the $30, 500 civil penalty is due immediately. Actions specified in the\nCompliance Order must also be taken. Your receipt of this decision constitutes service under\n49 C. F. R. ) 190. 5.\nSincerely,\nJames Reynolds\nPipeline Compliance Registry\nOffice of Pipeline Safety\nEnclosure\nCERTIFIED MAIL — RETURN RECEIPT RE UESTED\n\n\n\nDEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, DC 20590\n)\nIn the Matter of )\n)\nNatural Gas Pipeline Company of America, )\n)\nA wholly-owned subsidiary of )\nKinder Morgan, Inc.\n, )\n)\nPetitioner\n)\n)\nCPF No. 4-2003-1005\nDECISION ON PETITION FOR RECONSIDERATION\nOn October 21, 2004, pursuant to 49 U. S. C. $ 60112, the Associate Administrator for Pipeline\nSafety issued a Final Order in this case finding Petitioner violated the pipeline safety regulations,\nassessed a civil penalty in the amount of $30, 500 and incorporated a Compliance Order that\nrequires Petitioner to take specific steps to come into compliance with the regulations. On\nNovember 9, 2004, Petitioner filed a petition for reconsideration and requested a stay of the\nCompliance Order. OPS granted Petitioner a preliminary extension of time and by letter dated\nJuly 14, 2005 stayed the terms of the Compliance Order until the issuance of this Decision.\nPayment of the civil penalty was stayed automatically.\nIn its petition, Petitioner sought reconsideration of the findings in the Final Order that Petitioner\nviolated 49 C. F. R. $$ 192. 465(d) and 192. 705(a) (Items 2 and 3, respectively) and the civil\npenalties associated with those violations. Petitioner also sought reconsideration of the terms of\nthe Compliance Order associated with Item 3.\nItem 2 of the Final Order found Petitioner violated $ 192. 465(d) by failing to take prompt\nremedial action at seven locations on the Love County Lateral to correct deficient cathodic\nprotection readings. Section 192. 465(d) requires each operator take prompt remedial action to\ncorrect any deficiencies indicated by monitoring. The Final Order found Petitioner had eight low\npipe-to-soil potential readings on the lateral during consecutive annual surveys in June 1999 and\nJune 2000. Petitioner's records indicated that aAer some corrective action had been taken, only\none of the eight locations was tested and found in compliance. The remaining seven locations\nwere not tested ior another nine months. The Final Order found the delay in remediating the\nseven deficiencies supported finding Petitioner had violated $ 192. 465(d) and assessed a civil\npenalty of $3, 500.\n\n\n\nIn its pe i ion, e i ion\nt't, P t't' er advanced two reasons for setting aside the viola '\n' lation. First Petitioner\notice of Probable\nar ed that OPS based the violation on a matter that was never alleged in the Notice o ro a e\nViolation P1otice) or at the hearing. Petitioner argued OPS improper y ase\nP t t' ' f '1 e to survey the entire lateral following completion of the corrective action.\nPetitioner contended that OPS did not give proper notice that the issue of surveying t e\nwould be considered. As such, Petitioner \"was not given the opportunity to present evidence on\nthe point. \" Petition at 3.\nThe Notice issue in s case ege e\nu d in this case alle ed Petitioner did not take prompt remedial action aAer\ndiscovering low pipe-to-soil potentials on the Love County Latera . e o ice i\nspecific locations where pipe-to-soil potential reading s were below criteria levels during two\nconsecutive years. Although etitioner s a e\n1 h gh P tit' t t d that it had taken remedial action, the order found\nPetitioner failed to survey the entire lateral to veri&» fy whether the deficiencies had been\nremediated. The order found Petitioner spot-checked only one of '~~h\nf eight locations (710+99) on\nAugust 15, 2000 to determine compliance, but Petitioner did not survey\ne the rest of the lateral—\nspecifically the seven other locations — until May 15, 2001. Since remedial action necessarily\nfyi h th th h urse of action has actually remediated the deficiencies,\nPetitioner had clear notice that one of the issues to be determined was whether Petitioner a\npromptly verified the remediation of each deficiency.\nPetitioner also conten e a\nd d that OPS did not fully consider evidence that it complied with\ng 192. 465(d). AAer a review of the record, I confirm the findings in t e ina r er.\nS ecifically, the order found Petitioner began to correct the deficiencies within approximately\npeci ca y, eor er o\ntwo months of discovering them by installing a new recti\nifier. Over the next six months,\nPetitioner determined the new rectifier was insufficient to remediat e the deficiencies and began\nd I nt of a new deep well groundbed, which was completed within approximately thirteen\neve opmen o anew\nmonths of the initial discovery. Petitioner's test point records (Petitioner s x i i . ) '\nthat Petitioner spot-checked location number 710+99 on Augus\nst 15 2000, one month after\ncompleting the deep we groun e, u e\n11 db d b t there is no record that Petitioner surveyed the\nremaining seven locations until May 15, 2001.\nIn most situations, operators should correct a deficiency indicated by monitoring by the next\nins ection cycle. When an operator has not remediated a deficiency y e nex insp\ninspec ion cyc e.\n'\nOPS looks at the circumstances to determine whether remediation w y\nn was unreasonably delayed. In\n'\nthe present case, Petitioner initiated corrective action within a few months o\nf months of discove and\nry\ncompleted the activities shortly after the next inspection cycle. However, Petitioner delayed\nMay 15, 2001. Prompt remedial action necessarily requires prompt verification to s ow t e\ndeficiencies have been reme iate . e e ay o\nd' t d. Th d I ofanadditionalninemonthstoverifyremediation\nwas unreasonable. Accordingly, I affirm the finding that Petitioner violated ) 192. 465(d) at\nseven locations. The $3, 500 civil penalty assessed for the violation is appropriate.\nItem 3 of the Final Order found Petitioner violated $ 192. 705 when it failed to patrol 34 right-of-\nway locations. Section 192. 705(a) requires each operator have and follow a patrol program to\n\n\n\n3\nobserve surface conditions on and adjacent to a transmission line right-of-way for indications of\nleaks, construction activity, and other factors affecting safety and operation. The &equency of\npatrols is determined by class location and other relevant factors, but intervals may not be longer\nthan prescribed in f 192. 705(b). Transmission lines in Class 1 and 2 locations must be patrolled\nat a maximum interval of 15 months, but at least once each calendar year. All highway and\nrailroad crossings in Class 1 and 2 locations must be patrolled at a maximum interval of 7/~\nmonths, but at least twice each calendar year.\nThe Final Order found that Petitioner's records indicated 34 locations had never been patrolled.\nPetitioner's employees also stated during the inspection that Petitioner was not patrolling the\nlocations. In its response to the Notice, Petitioner claimed that it had patrolled the locations by\naerial patrol once a year. However, Petitioner submitted no documentation to demonstrate the\nidentified locations had been patrolled. Petitioner also failed to submit such evidence at the\nhearing or in Petitioner's post-hearing submission. Instead, Petitioner argued that g 192. 705\ndoes not apply to the majority of the 34 locations because they are not \"highway crossings. \" The\nFinal Order determined that $ 192. 705 applies to each of the identified locations and found\nPetitioner failed to patrol the locations in violation of g 192. 705.\nIn the Petition, Petitioner again stated its position that some of the locations are not highway\ncrossings. Whether or not the locations are highway crossings does not bear on the issue of\nwhether Petitioner ever patrolled the locations. Section 192. 705 clearly states that Petitioner\nmust patrol all Class 1 and 2 locations at least once each calendar year, if not more oAen. The\nFinal Order found \"Petitioner did not dispute the allegation that it did not provide records to\ndemonstrate that the locations identified in the Notice were patrolled. \" Final Order at 6.\nAlthough Petitioner repeatedly asserted that it had patrolled the locations, there is no evidence in\nthe record to rebut the allegation that 34 locations \"have never been patrolled. \" Notice at 3 — 4.\nAccordingly, I affirm the finding that Petitioner violated $ 192. 705. The $27, 000 civil penalty\nassessed for the violation is appropriate.\nWith respect to the frequency of patrolling, under $ 192. 705, highway crossings in Class 1 and 2\nlocations must be patrolled at a maximum interval of 7/~ months, but at least twice each calendar\nyear. \"All other places\" on and adjacent to a transmission line right-of-way in Class 1 and 2\nlocations, must be patrolled at a maximum interval of 15 months, but at least once each calendar\nyear. Petitioner put forward several reasons why it believed that 32 of the 34 locations are not\nhighway crossings. First, Petitioner raised due process concerns with respect to its contention\nthat OPS was defining highway outside of a rulemaking.\nFor the purpose of determining maximum interval between patrols, the term \"highway crossing\"\nin $ 192. 705 includes locations on Petitioner's pipeline system where a transmission line crosses\nany aved or hard-surfaced road. This includes, but may not be limited to, any state or county\npublic highway or any road with a paved, asphalt, or chip-seal surface. The record indicates 29\nlocations identified in the Notice are highway crossings. Accordingly, g 192. 705 requires\npatrolling at a maximum interval of 7A months, but at least twice each calendar year at those 29\nlocations. All other locations, including unpaved, gravel, and dirt road crossings, must be\n\n\n\n4\npatrolled at a maximum interval of 15 months, but at least once each calendar year.\n' This is\nconsistent with the language of g 192. 705 and the term \"highway, \" which is not separately\ndefined in OPS regulations. It is also consistent with the intent of ) 192. 705, which requires\nmore frequent patrolling at transmission line right-of-way locations where a pipeline may be\nsubject to regular vehicular or locomotive traffic. It is not inconsistent with other OPS\nregulations, specifically f$ 191. 23 and 195. 55 (safety-related condition reports).\nPetitioner also contended that OPS \"ignored unrebutted evidence at the hearing that a prudent\nperson familiar with the pipeline industry and safety purposes of the standard could have\nbelieved that an unpaved road such as Bill Barrett Road would be a 'highway' under 49 C. F. R.\ng 192. 705. \" Petition at 5. The testimony of Petitioner's witness regarding what he or she could\nhave believed is not controlling on this Decision. Petitioner further urged OPS to consider a\nFederal Railroad Administration (FRA) regulation. I find the regulation is inapplicable.\nUnder the terms of the Compliance Order, Petitioner must verify compliance with $ 192. 705 in\naccordance with this Decision.\nRelief Denied\nI have considered Petitioner's request for reconsideration. I do not find Petitioner's assertions\nwarrant withdrawal of the findings of violation, reduction in the civil penalty, or amendment to\nthe terms of the Compliance Order. The terms of the Final Order remain in effect, including\nassessment of the civil penalty in the amount of $30, 500.\nPayment of the civil penalty must be made within 20 da s of service. Federal regulations (49\nC. F. R. g 89. 21(b)(3)) require this payment be made by wire transfer, through the Federal\nReserve Communications System (Fedwire), to the account of the U. S. Treasury. Questions\nconcerning wire transfers should be directed to: Financial Operations Division (AMZ-120),\nFederal Aviation Administration, Mike Monroney Aeronautical Center, P. O. Box 25082,\nOklahoma City, OK 73125; (405) 954-4719.\nFailure to pay the civil penalty will result in accrual of interest at the current annual rate in\naccordance with 31 U. S. C. $ 3717, 31 C. F. R. $ 901. 9 and 49 C. F. R. $ 89. 23. Pursuant to those\nsame authorities, a late penalty charge of six percent (6%) per annum will be charged if payment\nis not made within 110 days of service. Failure to pay the civil penalty may result in referral of\nthe matter to the Attorney General for appropriate action in a United States District Court.\nThe stay of the terms of the Compliance Order granted by letter dated July 14, 2005 is\nwithdrawn. Accordingly, Respondent is directed to comply with the terms of the Compliance\nBill Barrett Road, Boots Havard Road, C. R. 223, Greens Road, and Jack Station are not highway\ncrossings according to their description and pictures provided in Petitioner's Exlubit II. 5.\nPetitioner cited 49 C. F. R. $ 222. 37, an FRA regulation pertaimng to the establishment of \"quite\nzones. \" The regulation mentions a \"county road\" and \"State highway\" in a parenthetical example of a\npubhc grade crossing under the authority and control of more than one pubhc authority.\n\n\n\nOrder contained in the Final Order within 60 da s of service of this Petition. The Director,\nSouthwest Region, OPS may grant an extension of time for compliance with any of the terms of\nthe Compliance Order upon a written request by the Petitioner demonstrating good cause for an\nextension.\nThis decision on reconsideration is the final administration action in this proceeding.\np7\npe & 4 M\nDate Issued\nS a y erard\nA ciate Administrator\nfor Pipeline Safety\n\n420031005_final order_10212004_text.pdf\n\nUS Department\nof Transportation\nResearch and\nSpecial Programs\nAdministration\n400 Seventh St, \" W\nWashington D i. ?0590\nOCT 2 t\nMr. Scott E. Parker\nPresident\nNatural Gas Pipeline Company of America\n747 East 22\" Street\nLombard, IL 60148-5072\nRE: CPF No. 4-2003-1005\nDear Mr. Parker:\nEnclosed is the Final Order issued by the Associate Administrator for Pipeline Safely in the\nabove-referenced case. It makes findings of violation, requires certain corrective action.\nand\n,\nassesses a civil penalty of $30, 500. Your receipt of the Final Order constitutes service of that\ndocument under 49 C. F. R. $ 190. 5. At such time that the civil penalty is paid and the terms &f the\ncompliance order are completed, as determined by the Director, Southwest Region, this enfor ct ment\naction will be closed. Your receipt of the Final Order constitutes service of that document u ider\n49 C. F. R. 5 190. 5.\nSincerely,\nJames Reynolds\nPipeline Compliance Registry\nOffice of Pipeline Safety\ncc; . Mr. Michael Noone, Attorney for NGPL\nMr. Dwayne Burton, Vice-President of Gas Pipeline Operations, NGPL\nMr. R. M. Seeley, Director, OPS Southwest Region\nCERTIFIED MAIL - RETIJRN RECEIPT RE UESTED\n\n\n\nDEPARTMENT OF TRANSPORTATION\nRESEARCH AND SPECIAL PROGRAMS ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, DC 20590\nNatural Gas Pipeline Company of America, )\nRespondent\n)\n)\n)\n)\n)\nCPF No. 4-2003-1005\nFINAL ORDER\nBetween February 25 and July 26, 2002 pursuant to 49 U. S. C. $ 60117, representatives of the\nSouthwest Region, Office of Pipeline Safety (OPS), conducted onsite pipeline safety inspections on\nmultiple units of Respondent's natural gas onshore Gulf Coast pipehne system in Texas and\nLouisiana and the Oklahoma Extension and Mountain View pipeline systems, which consist of\nRatliff City, Mooreland, Roxton, Mt. View, Lufkin, Victoria, Robstown, Wharton, New Caney,\nCameron, Devers and Marshall. Respondent is a subsidiary of KN Energy, Incorporated. As a result\nof this investigation, the Director, Southwest Region, OPS, issued to Respondent, by letter dated\nMay 14, 2003, a Notice of Probable Violation, Proposed Civil Penalty, and Proposed Comphance\nOrder (Notice). In accordance with 49 C. F. R. ) 190. 207, the Notice proposed finding that\nRespondent had committed violations of 49 C. F. R. Part 192, proposed assessing a total civil penalty\nof $31, 000 for the alleged violations, and proposed that Respondent take certain measures to correct\nthe alleged violations.\nRespondent responded to the Notice by letter dated, June 13, 2003 (Response). Respondent\ncontested two of the three allegations, offered information in explanation of the allegations and in\nmitigation of the proposed penalty and requested a hearing. The hearing was held on November13,\n2003 in Houston, TX. After this hearing, Respondent provided additional information and a closing\nResponse dated December 2, 2003.\nFINDINGS OF VIOLATION\nIn its Response and at the hearing, Respondent did not contest Item 1 of the Notice.\nAccordingly, I find that Respondent violated the following sections of 49 C. F. R. Part 192, as more\nfully described in the Notice:\n\n\n\n~ I I ~ r ~ ~ ~ ~ r I ~\n~ ~ I ~ ~ I ~ I ~ ~ ~ I ~ ~\n~ ~ a ~ ~ ~\n~ ~ ~\nI ~ ~ I I\n~ I\nio I II . ~\nI ~\nI I . ~\nIII ~ ~\n~\n~ II '\n~ ~ ~ ~ Ir I ~\n~ ~ I ~ ~ ~ I ~ ~\n~ ~ ~ I r ~\n~ ~ ~ ~\n~ I\n~ ~\nI I ~\n~ ~ ~ I I ~ ~\nI ~ ~ ~ ~\n~ ~ ~\nII a . ~\n~\n~\n~\n~\n~\n~ f r ~\n~ ~ ~ ~ ~\n~\n~ ~ ~ I\nI I ' 'I '\nI\n~ ~ I ~ ~ ~\n~ ~ ~ I ~ ~ ~\n~ ~ ~ ~ I ~ ~ ~\n~ ~ ~ ~ ~ ~ ~ ~\n~ ~ ~ ~ I ~ ~ ~ ~\n~ ~ ~\n+ ~ ~\n~ ~ +\n~ ~ ~ ~\n~ ~ ~\n~ ~ I \"\\\n~ ~ ~\n~ ~ ~ I ~ ~ ~ ~\nI I I I ' I I I\nI' 'I\n~ ~ I ~\nlo s II\nI ~ g ~ I\nI ~ I It\n~ ~\nI ~ I ~ ~\nI ~\nI ~\n~ ~\n~ ~\n~ ~\n~ I ~ I\n\n\n\n920+94 06/24/99\n06/21/00\n. 845\n. 832\n953+76 06/24/99\n06/21/00\n. 822\n. 830\nIn response to the Notice and at the hearing, Respondent acknowledged that its corrosion control\nrecords showed low pipe-to-soil readings but contended that the readings were not at \"critical\"\nlevels. Respondent argued that it took immediate action in response to the 6/19/99 low pipe-to-soil\nreadings in the affected area by installing a new rectifier on 8/24/99. However, the new rectifier did\nnot improve the low pipe-to-soil potentials. Respondent explained that when it discovered that the\nrectifier had not improved the readings, it designed a deep ground bed system. Respondent further\nexplained that it took approximately 6-7 months to obtain the necessary approvals and permits,\nexecute bid packages and select a contractor for the ground bed system. The ground bed system was\ninstalled between 7/10/00 and 7/12/00. Respondent stated that its annual survey, performed on\n5/18/01, showed all readings were in compliance. Respondent contends that these steps show that\nit took prompt remedial action within the 15 month inspection mterval to address low pipe-to-soil\ncondition readings.\nOPS argued that at the time of the 2002 inspection, Respondent's corrosion control records on the\nLove Country Laterals indicated that pipe-to-soil potentials had been low for multiple years with no\ndocumented remedial action. Respondent acknowledged that at the time of the inspection its\ncorrosion control records showed there were low pipe-to-soil readings. During the hearing,\nRespondent submitted documents to indicate remedial action had been completed, Although\nRespondent argued that it had initiated several projects to address low pipe-to-soil readings in the\nsubject area, Respondent's documentation and records at the hearing did not demonstrate that the\nentire lateral was surveyed before the next inspection cycle. Respondent's annual survey was\nperformed on 5/18/01.\nConsistent low cathodic protection readings indicate that a pipeline is not receiving adequate\nprotection, a condition that could adversely affect the safe operation of a pipeline system. The risk\nof corrosion on the pipeline significantly increases with inadequate pipe-to-soil potentials and can\nresult in a pipeline failure. Prompt remedial action at the earliest warning or indication of low pipe-\nto-soil readings is critical to safety of the public, environment and property. Respondent's Love\nCounty Laterals had low pipe-to-soil readings with no indication or documentation of timely\ncorrective action on the entire lateral before the next inspection cycle. Documentation submitted by\nRespondent at the hearing showed completion of remedial action at only one location, Mile Post\n710+99, where the reading on 8/15/00 was 1. 298. Accordingly, I find that Respondent violated\n49 C. F. R. $192. 465(d) by not taking prompt remedial action actions to correct the condition.\nItem 3 in the Notice alleged that Respondent had violated 49 C. F. R. $ 192. 705(a) by not providing\nrecords at the time of the inspection to show that it patrolled its pipelines to observe surface\nconditions on and adjacent to the transmission line right-of-way for indications of leaks, construction\n\n\n\nactivity, and other factors affecting safety and operation. At highway and railroad crossings, in Class\n1 and 2 locations, the maximum intervals between patrols is 7 /~ months, but at least twice each\ncalendar year.\nAt the time of the inspection, Respondent's records for the Mt. View District indicated that Line\nNumber OEP1 has 13 highway crossings that have never been patrolled, ' Line Number MAM has\n15 crossings that have never been patrolled, ' and in the Roxton and Chico Districts 5 highway\ncrossings have never been patrolled. ' Also, in the Lufkin District there are 21 highway crossings that\nhave never been patrolled. '\nOPS testified that during the inspection, a request was made for patrol records and that in response\nto the request, records were provided by Respondent's employee with the locations identified in the\nNotice. OPS inspector testified that while reviewing the records identified by Respondent's\nemployee as patrol records, he saw that the form identified locations as highways and written next\nto some of the highways was \"N/A\". The OPS inspector testified that he questioned the \"N/A\"\ndesignation and Respondent's employee stated that they were not inspecting those locations.\nRespondent countered that it is not responsible for personnel providing incorrect forms that led the\nOPS inspector to request the patrol records which lead to the Notice. Respondent stated that it\npatrols all Class 1 and Class 2 areas by aerial patrol once a year. Respondent argued that some of\nthe roads identified by OPS are not highways. Although Respondent conceded that two of the\nlocations were highways, Respondent argued that the remaining locations are county roads and that\nregulations do not require the patrol of county roads. Respondent stated that the county does not\nconsider these locations highways. During the hearing, Respondent submitted an excerpt from\nWebster's Dictionary II and argued that Webster's defines highway as \"A main public road, esp. one\nconnecting towns and cities. \" Respondent further argued that 49 C. F. R. $195. 55 (b)(1) defines\nhighways in relation to safety-related condition reports and in that regulation a distinction is made\nbetween highways, roads and streets. Respondent submitted color photographs of the locations\nidentified in the Notice to support its position that the locations are not highways.\nThirteen crossings not patrolled at Mile Numbers: 141, 146, 151, 153, 155, 157, 158, 173, 174, 182, 187,\n196 and 202.\nFifteen crossmgs not patrolled at Mile Numbers. 143, 146, 151, 153, 154, 157, 158, 164, 166, 170, 172,\n176, 177, 178 and 186\nFive highways and crossmg not patrolled at FM 1658 at MP 346, Highway 101 at MP 344, FM 1655 at\nMP 339 and MP 337 and Highway 287 at MP 333.\nTwenty-one highway crossings not patrolled: Strmg Town Road, River Jordan Road, Industrial Road,\nProvidence Road, Rayon Road, Greens Road, Jack Station, Bill Barrett, Princess Road, Boot Harvard Road, C R\n257, C R. 285, Deer Lane, Hoskin Road, Carrel Road, C. R. 137a, Water Well Road, C R 220, C R. 223, C. R 260\nand C R. 263.\n\n\n\nAs for Respondent's position that it is not responsible for personnel providing incorrect forms that\nled the OPS inspector to request the patrol records, an employer is ultimately responsible for the\nactions of its employees. Although Respondent's employee may have provided the incorrect forms\ninitially, it was those forms that dictated further inquiry and led to a closer inspection of\nRespondent's patrol records. It is an appropriate response for an OPS inspector, in his or her quest\nto determine compliance, to follow-up on, inspect and to investigate documentation that raises\nquestions about compliance with pipeline safety laws and regulations.\nWith respect to Respondent's position that some o f the locations identified by OPS are not highways\nand that the regulations do not require Respondent to patrol county roads, Respondent argued that\nfor OPS to apply 49 C. F. R. $ 192. 705(a) to county roads a rulemaking is required by the\nAdministrative Procedures Act, as this represents a substantive policy change. It is common for a\nRespondent found in violation of OPS regulations to claim that OPS' interpretation of the regulation\nis misplaced; or that the agency's interpretation of the statute, even if permissible, renders the\nstatutory language sufficiently vague that reasonable persons could not have been expected to\nunderstand that their conduct was unlawful. The ultimate criterion is the administrative\ninterpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent\nwith the regulation. Interpretation begins with the language of the statute or regulation itself and is\nbased largely on reading the language of the regulation being interpreted, in light of the purpose of\nthe regulation and the agency's general policy goal. In this case, it is the broad powers and authority\nto enforce pipeline safety.\nRespondent is considered to have received fair notice of the agency's interpretation if a prudent\nperson familiar with the pipeline industry and the safety purposes of the standard would have\nrecognized the safety requirement. In applying the reasonable person standard to the notice issue,\nconsideration is given to a variety of factors, including the language of the regulation, its purpose,\nits placement in the overall regulatory scheme, its regulatory history, the agency's enforcement, and\nOPS' advisory notices and interpretations informing the regulated community of its interpretation.\nPre-enforcement efforts such as advisory bulletins, agency interpretations and 49 C. F. R. $190. 11\nprovide notice and enable Respondent to identify with ascertainable certainty the standards with\nwhich OPS expects parties to conform. Respondent failed to cite anyprecedent where OPS excluded\ncounty roads from the definition of highway, for purposes of enforcing the patrolling requirements.\nAs. for the Respondent's argument about the dictionary definition ofhighway, we believe that most\ndefinitions of \"highway\"included a common term, the word \"public. \" ' The primary objective of the\nFederal gas pipeline safety standards and the purpose for the patrolling requirements is to maintain\npublic safety. Notably, the Federal Highway Act, Title 23 of the United States Code, Section 101,\nsubsection(a), which contains definitions, defines the term \"highway\" as including a road, street, and\nparkway; a right-of-way, bridge, railroad-highway crossing, tunnel, drainage structure, sign,\nWebster's International Dictionary, for example, defines a highway as 'a road or way open to the use of the\npubhc ' Funk & Wagnalls Standard Dictionary defines a highway as '1, A pubhc thoroughfare; specified hne of\n'travel 2 A common or open way or course\n\n\n\nguardrail, and protective structure, in connection with a highway; and a portion of any interstate or\ninternational bridge or tunnel and the approaches thereto. There is a clear indication that these\nlocations are areas traversed by the public.\nThe \"true test\" of whether a \"way\" is a highway is \"whether the 'way or place of whatever nature' is\nopen to the use of the public for purposes of vehicular travel. \" Crouse v. Pugh, 188 Va. 156, 164,\n49 S. E. 2d 421, 426, 4 A. L. R. 2d 1242. ' Respondent argued that the regulations do not require\nRespondent to patrol county roads or roads that are composed of certain materials and in support of\nthat position submitted color photographs o f areas that it deemed county roads. The Court in Crouse\nv. Pugh clearly states that a highway \".\n. . or place is not determined by whether the way is improved\nor consists of dirt and gravel\". Id at 165. A pubhc way is a way which all the people have the right\nto use.\nThe patrolling of county roads open to use by the public does not expand or represent a change in\nOPS pohcy or interpretation, as pipelines must be patrolled to observed surface conditions for\nindications of leaks, construction activity, and other factors affecting safety and operation and for\nthe purpose of insuring against pipeline encroachments and preventing tree roots from damaging\nunderground pipes in a manner sufficient to cause corrosion. When a pipeline is not adequately\nmonitored and a system of inspection maintained an operator will not be able to insure reasonable\npromptness in the detection of all surface conditions on and adjacent to the transmission line right-\nof-way for indications of any and all factors affecting the safety and operations of the pipeline.\nPatrolling is particularly critical at highway and railroad crossings where the public traverse almost\nconstantly. Patrolling reduces the risk of damage to property, persons and the environment. Without\nthe required documentation an operator cannot adequately demonstrate that it patrolled its pipelines\nto observe surface conditions on and adjacent to the transmission line right-of-way for indications\nof leaks, construction activity, and other factors affecting safety and operation. Without this history\nof patrol records, an operator will have difficultly determining areas where there are problems that\nneed to be addressed. Respondent does not dispute the allegation that it did not provide records to\ndemonstrate that the locations identified in the Notice were patrolled. Accordingly, I find that\nRespondent violated 49 C. F. R. $192. 705(a).\nThese findings of violation will be considered prior offenses in any subsequent enforcement action\ntaken against Respondent.\nIn Crouse v Pugh, 188 Va. 156, 164, 49 S. E. 2d 421, 426 (1948), 4 A. L R 2d 1242, the Court said 'This\nsection needs no construction. Its meamng is perfectly plam, copiprehensive and unambiguous. It does not hriut the\nmeamng of the word 'lughway' to a hard-surfaced or partly hard-surfaced way or to a dirt and gravel way. It does not\nconfine a highway to the mam-travelled portion of the way or to lanes specifically designated for vehicular traffic\nNo exception is made as to the shoulders or slopes of a way The nature of the way or place is not deternuned by\nwhether the way is improved or consists of dirt and gravel. The paving of a way does not make it a 'lughway ' The\ntrue test is whether the 'way or place of whatever nature' is 'open to the use of the pubhc for purposes of vehicular\ntravel. '\n\n\n\nASSESSMENT OF PENALTY\nThe Notice proposed a $31, 000 civil penalty for violation of 49 C. F. R. ) $192. 465(d) and 192. 705(a).\nUnder 49 U. S. C. $ 60122, Respondent is subject to a civil penalty not to exceed $100, 000 per\nviolation for each day of the violation up to a maximum of $1, 000, 000 for any related series of\nviolations.\n49 U. S. C. $ 60122 and 49 C. F. R. $ 190. 225 require that, in determining the amount of the civil\npenalty, I consider the following criteria: nature, circumstances, and gravity of the violation, degree\nof Respondent's culpability, history of Respondent's prior offenses, Respondent's ability to pay the\npenalty, good faith by Respondent in attempting to achieve comphance, the effect on Respondent's\nability to continue in business, and such other matters as justice may require.\nThe proposed penalty for Item 2 is $4, 000 for violation of 49 C. F. R. )192. 465(d). Respondent failed\nto timely correct for multiple years low pipe-to-soil readings on its Love County Laterals, which\ncould adversely affect the safe operation of its pipeline system. Respondent did contest the alleged\nviolation and requested that the proposed violation and civil penalty be set aside, Although\nRespondent provided documentation to show completion of remedial action at one location, Mile\nPost 710+99, Respondent's Love County Laterals had low pipe-to-soil readings with no indication\nor documentation of timely corrective action on the entire lateral before the next inspection cycle.\nHowever, based upon documentation that showed the completion of remedial action at one location\nthe proposed civil penalty is reduced. Without adequate cathodic protection, corrosion can occur\nresulting in a pipeline failure. A failure in a line careering hazardous material poses a danger to the\npublic and the environment. Accordingly, having reviewed the record and considered the assessment\ncriteria, I assess Respondent a civil penalty of $3, 500.\nThe proposed penalty for Item 3 is $27, 000 for violation of 49 C. F. R. $ 192. 705(a). Although\nRespondent contested the alleged violation and contended that the proposed civil penalty associated\nwith county roads be eliminated, Respondent conceded that two of the locations were highways.\nCounty roads are open to the use of the public for purposes of vehicular travel and the dirt, gravel\nor paving does not restrict, confine or limit it as a highway. As discussed above, 49 C. F. R.\n$ 192. 705(a) does not limit the meaning of the word 'highway* to a particular surface and does not\nconfine a highway to a main public road, one connecting towns and cities. Minimum safety\nstandards for pipeline safety are inclusive and not exclusive. Pipelines must be patrolled to obser ved\nsurface conditions for indications of leaks, construction activity, and other factors affecting safety\nand operation and for the purpose of insuring against pipeline encroachments and preventing tree\nroots from damaging underground pipes in a manner sufficient to cause corrosion. Respondent\nfailed to exercise vigilance commensurate with the danger to protect the pubhc, environment, and\nproperty. Respondent is responsible for compliance with the pipeline safety regulations, which\nincludes sound record keeping. Accordingly, having reviewed the record and considered the\nassessment criteria, I assess Respondent a civil penalty of $27, 000.\n\n\n\nAccordingly, having reviewed the record and considered the assessment criteria, I assess Respondent\na total civil penalty of $30, 500. A determination has been made that Respondent has the ability to\npay this penalty without adversely affecting its ability to continue business.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations\n(49 C. F. R. $ 89. 21(b)(3)) require this payment be made by wire transfer, through the Federal Reserve\nCommunications System (Fedwire), to the account of the U. S. Treasury. Detailed instructions are\ncontained in the enclosure. Questions concerning wire transfers should be directed to: Financial\nOperations Division (AMZ-120), Federal Aviation Administration, Mike Monroney Aeronautical\nCenter, P. O. Box 25082, Oklahoma City, OK 73125; (405) 954-8893.\nFailure to pay the $30, 500 civil penalty will result in accrual of interest at the current annual rate in\naccordance with 31 U S. C. $ 3717 31 C. F R $ 901. 9 ~nd 49 C. F. R. $ 89. 23. Pursuant to those same\nauthorities, a late penalty charge of six percent (6%) per annum will be charged if payment is not\nmade within 110 days of service. Furthermore, failure to pay the civil penalty may result in referral\nof the matter to the Attorney General for appropriate action in a United States District Court.\nCOMPLIANCE ORDER\nThe Notice proposed a comphance order with respect to Item 3 for violation of 49 C. F. R.\n5192. 705(a).\nUnder 49 U. S. C. ) 60118(a), each person who engages in the transportation of gas or who owns or\noperates a pipeline facility is required to comply with the applicable safety standards established\nunder chapter 601. Pursuant to the authority of 49 U. S. C. $ 60118(b) and 49 C. F. R. $ 190. 217,\nRespondent is ordered to take the following actions to ensure compliance with the pipeline safety\nregulations applicable to its operations. Respondent must-\n1. Within 30 days of the receipt of this Final Order, perform an audit to ensure\nall NGPL pipelines are in compliance with 49 C. F. R. $192. 705(a). This\naudit shall include:\n(A) Review of all applicable procedures and amendment of procedures, as\nnecessary. Any amended procedures shall be submitted to the Southwest\nRegional Director.\n(B) Perform survey of pipelines throughout NGPL's system to evaluate patrol\nprogram to ensure that the patrolling ofhighways, including countyroads, are\nperformed in accordance with $192. 705(a); and\n(C) After completion of the review and survey, develop a plan for patrolling\nhighway crossings to bring NGPL into comphance. Submit plan along with\na summary and evidence of completion the plan to Southwest Regional\nDirector,\n\n\n\n2. Within 30 days of receipt of this Final Order, submit confirmation and/or evidence\nof completion of these actions to the Director, OPS, Southwest Region, 8701 South\nGessner Street, Suite 1110, Houston, TX 77074.\nThe Director, OPS, Southwest Region may grant an extension of time for\ncompliance with any of the terms of this order for good cause. A request for\nan extension must be in writing.\nFailure to comply with this Final Order may result in the assessment of civil penalties of up to\n$100, 000 per violation per day, or in the referral of the case for judicial enforceinent.\nUnder 49 C. F. R. $ 190. 215, Respondent has a right to submit a Petition for Reconsideration of this\nFinal Order. The petition must be received within 20 days of Respondent's receipt of this Final\nOrder and must contain a brief statement of the issue(s). The filing of the petition automatically\nstays the payment of any civil penalty assessed. All other terms of the order, including any required\ncorrective action, remain in full effect unless the Associate Administrator, upon request, grants a\nsta he terms and conditions of this Final Order are effective on receipt\nOCT 2 ] ZP.\nDate Issued\nStac\nss\nyG rard\niate Administrator\nipeline Safety","truncated":false,"body_characters":39849}