{"operation":"document","citation":"CPF 420121004M","title":"EL PASO NATURAL GAS CO — Notice of Amendment","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2012-03-22","effective_on":null,"summary":"CLOSED notice of amendment citing 192.605(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-420121004m.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-420121004m.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-420121004m","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/420121004M","body":"Notice of Amendment involving EL PASO NATURAL GAS CO. PHMSA's enforcement data identifies the cited regulation as 192.605(a). The case was opened on 2012-03-22 and is reported as closed as of 2013-06-28. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n420121004M_NOA_03222012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420121004M/420121004M_NOA_03222012.pdf\n\n420121004M_NOA_03222012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420121004M/420121004M_NOA_03222012_text.pdf\n\n420121004M_Operator Response and Request for Hearing_04272012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420121004M/420121004M_Operator%20Response%20and%20Request%20for%20Hearing_04272012.pdf\n\n420121004M_Withdrawing Notice of Amendment_06282013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420121004M/420121004M_Withdrawing%20Notice%20of%20Amendment_06282013.pdf\n\n420121004M_Withdrawing Notice of Amendment_06282013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420121004M/420121004M_Withdrawing%20Notice%20of%20Amendment_06282013_text.pdf\n\n420121004M_Withdrawing Notice of Amendment_06282013_text.pdf\n\nJUNE 28, 2013\nMr. Gary Buchler\nVice President of Engineering and Operations\nEl Paso Natural Gas Company, L.L.C.\n1001 Louisiana St, Suite 1000\nHouston, TX 77002\nRe: CPF No. 4-2012-1004M\nDear Mr. Buchler:\nEnclosed please find the Order Withdrawing the Notice of Amendment issued in the above-\nreferenced case. It withdraws the allegation that certain written procedures of El Paso Natural\nGas Company, L.L.C. were inadequate for safe operation. This enforcement action is now\nclosed. Service of the Order by certified mail is effective upon the date of mailing as provided\nunder 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Rod Seeley, Director, Southwest Region, OPS\nMr. Alan Mayberry, Deputy Associate Administrator for Field Operations, OPS\nMs. Jessica Toll, Assistant General Counsel, Kinder Morgan Inc.\n370 Van Gordon St, P.O. Box 281304, Lakewood, CO 80228\nMr. Robert Hogfoss, Esq., Hunton & Williams LLP, Bank of America Plaza, Ste 4100\n600 Peachtree St N.E., Atlanta, GA 30308\nCERTIFIED MAIL – RETURN 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 )\n)\n)\nEl Paso Natural Gas Company, L.L.C., )\nRespondent. )\n___________________________________ )\n) CPF No. 4-2012-1004M\nORDER WITHDRAWING NOTICE OF AMENDMENT\nOn October 20, 2011, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),\nconducted an inspection of the written operations and maintenance procedures of El Paso Natural\nGas Company, L.L.C. (El Paso or Respondent) in Houston, Texas. El Paso is a subsidiary of\nKinder Morgan Inc. and operates approximately 10,000 miles of natural gas transmission\npipeline located primarily in Arizona, New Mexico, and Texas.1\nAs a result of the inspection, the Director, Southwest Region, OPS (Director), issued a Notice of\nAmendment to Respondent on March 22, 2012 (Notice). In accordance with 49 C.F.R.\n§ 190.237, the Notice alleged that Respondent’s written procedures were inadequate to assure\nsafe operations and proposed that certain revisions be made.\nEl Paso responded to the Notice by letter dated April 27, 2012, contested the alleged inadequacy,\nand requested a hearing. Respondent submitted additional written materials on August 3, 2012.\nIn accordance with 49 C.F.R. § 190.211, a hearing was held on August 14, 2012, in Houston,\nTexas, before the Presiding Official from the Office of Chief Counsel, PHMSA. After the\nhearing, Respondent provided a Post-hearing Submittal dated September 14, 2012.\nItem 1: The Notice alleged that Respondent’s procedures were inadequate with regard to\n§ 192.605(a), which states:\n§ 192.605 Procedural manual for operations, maintenance, and\nemergencies.\n(a) General. Each operator shall prepare and follow for each pipeline,\na manual of written procedures for conducting operations and maintenance\nactivities and for emergency response . . . .\n1 El Paso reported pipeline system information for calendar year 2011 pursuant to 49 C.F.R. § 191.17. El Paso was\nacquired by Kinder Morgan Inc. during the course of this proceeding.\n\n\n\n2\n(b) Maintenance and normal operations. The manual required by\nparagraph (a) of this section must include procedures for the following, if\napplicable, to provide safety during maintenance and operations.\n(1) Operating, maintaining, and repairing the pipeline in accordance\nwith each of the requirements of this subpart and subpart M of this part.\nThe Notice alleged that El Paso’s written procedures were inadequate for conducting operations\nand maintenance activities in accordance with class location requirements. Specifically, the\nNotice alleged that Respondent’s procedure Section 200—Pipeline Design General Standards\ncontained an incorrect method for determining the area of a Class 3 location along a pipeline.\nThe procedures used a measurement of 100 yards from the boundary of a frequently used\nbuilding or outside area. The Notice alleged that a measurement of 220 yards was required.\nAt the hearing and in its written submissions, Respondent maintained that its procedures for\nusing a 100-yard measurement were consistent with § 192.5 as well as other interpretive\nguidance and internal documents prepared by PHMSA.\nBackground\nThe natural gas pipeline safety regulations use class location as a method of providing higher\nsafety standards for pipelines in more densely populated areas.2 Class 1 and 2 areas are less\npopulated, while Class 3 and 4 areas are more densely populated. Determining which class\nlocation applies to a segment of pipeline is accomplished by measuring population according to\nthe methods set forth in § 192.5. The method for identifying a Class 3 location is as follows:\n§ 192.5 Class locations.\n(a) This section classifies pipeline locations for purposes of this part.\nThe following criteria apply to classifications under this section.\n(1) A “class location unit” is an onshore area that extends 220 yards\n(200 meters) on either side of the centerline of any continuous 1-mile (1.6\nkilometers) length of pipeline . . . .\n(b) Except as provided in paragraph (c) of this section, pipeline\nlocations are classified as follows . . .\n(3) A Class 3 location is:\n(i) Any class location unit that has 46 or more buildings intended for\nhuman occupancy; or\n(ii) An area where the pipeline lies within 100 yards (91 meters) of\neither a building or a small, well-defined outside area (such as a\nplayground, recreation area, outdoor theater, or other place of public\nassembly) that is occupied by 20 or more persons on at least 5 days a week\nfor 10 weeks in any 12-month period. (The days and weeks need not be\nconsecutive.) . . .\n(c) The length of Class locations 2, 3, and 4 may be adjusted as\nfollows . . . .\n2 See, e.g., § 192.619.\n\n\n\n3\n(2) When a cluster of buildings intended for human occupancy\nrequires a Class 2 or 3 location, the class location ends 220 yards (200\nmeters) from the nearest building in the cluster.\nSection 192.5 provides two methods for establishing a Class 3 location, either of which may be\nsatisfied. The first method, § 192.5(b)(3)(i), measures the number of buildings within a “class\nlocation unit”—a one-mile length of pipeline extending 220 yards on either side of the centerline\nof the pipe. The mile-long zone, referred to as a “sliding mile,” is moved along the pipeline and\nthe number of buildings within the zone at any point during the movement determines the class\nlocation for the entire mile-long zone.3 A Class 3 location is any class location unit that has 46\nor more buildings intended for human occupancy.\nThe other method for identifying a Class 3 location is based on whether there is a certain type of\nfrequently used building or outside area within close proximity to the pipeline. Under\n§ 192.5(b)(3)(ii), a Class 3 location is any area where the pipeline lies within 100 yards of a\nbuilding or a small, well-defined outside area (such as a playground, recreation area, outdoor\ntheater, or other place of public assembly) that is occupied by 20 or more persons on at least 5\ndays a week for 10 weeks in any 12-month period. By comparison to the first method, this\nmethod does not require counting the number of buildings within 220 yards of the pipeline;\nrather, it requires the identification of a single frequently used building or outside area within\n100 yards.\nOnce a Class 3 location is identified, the length of the class location along the pipeline differs\ndepending on which of the two methods was used.4 Under the first method, which measures the\nnumber of buildings, the length of the Class 3 area is one class location unit (i.e., one mile of\npipeline). It may be longer if the “sliding mile” continues to have 46 or more buildings as it\nmoves along the pipeline. There is an exception to the one-mile length under this method when\nthe 46 or more buildings are part of a “cluster,” for example, where all the buildings are located\nat a major road crossing. When a cluster of buildings requires a Class 3 location under\n§ 192.5(b)(3)(i), the class location ends 220 yards from the nearest building in the cluster, rather\nthan extending an entire mile in both directions.5\nUnder the second method of determining a Class 3 location, which identifies any frequently used\nbuilding or outside area within 100 yards of the pipeline, the parties disagreed about the length of\nthe class location. Both parties offered their own interpretation of the regulation.\nOPS argued that the length of a Class 3 location under § 192.5(b)(3)(ii) should be determined by\nusing a two-step process. The first step is to measure 100 yards from the pipeline to determine\nwhether there is a frequently used building or outside area. If there is, an operator must use a\nsecond step to determine the distance of the class location up and down the pipeline. The second\n3 The term “sliding mile” was used in the original notice of proposed rulemaking. See Class Location Definitions,\n35 FR 5012, 5013 (proposed Mar. 24, 1970).\n4 Neither party contended that the length of a Class 3 location under § 192.5(b)(3)(ii) should be equivalent to a one-\nmile class location unit under § 192.5(b)(3)(i).\n5 § 192.5(c)(2).\n\n\n\n4\nstep involves measuring a 220-yard arc from the boundary of the frequently used building or\noutside area back to the pipeline. OPS explained that although the code is silent on this second\nstep in § 192.5(b)(3)(ii), the language in § 192.5 as a whole establishes a minimum length for a\nClass 3 area that is calculated using a 220-yard arc. OPS explained that this method results in a\nlonger length of Class 3 area than Respondent’s method, and thus a greater level of safety.\nRespondent, on the other hand, argued that the plain language of the regulation requires the\nlinear length of the class location under § 192.5(b)(3)(ii) to be 100 yards from the boundary of\nthe frequently used building or outside area. Respondent acknowledged that a 220-yard\nmeasurement is relevant when building density is used under § 192.5(b)(3)(i), but argued that\n“the relevant regulation at issue, 49 C.F.R. Part 192.5(b)(3)(ii) states that a Class 3 location is an\narea where the pipeline lies within 100 yards (300 feet) of either a building or a well-defined\noutside area that meets certain assembly requirements. The radial arc under these circumstances\nthus extends 300 feet from the structure to the pipeline for purposes of evaluating these areas,\nand that arc continues to define the appropriate class location linearly along the pipeline itself.”6\nAnalysis and findings\nHaving considered the plain language of the regulation, I find that Respondent’s method of\nimplementing the requirement was permissible. Pursuant to § 192.5(b)(3)(ii), a Class 3 location\nmust be determined by measuring 100 yards from the pipeline to any frequently used building or\noutside area. It follows necessarily that pipe located more than 100 yards from a frequently used\nbuilding or outside area does not meet the definition of a Class 3 location under § 192.5(b)(3)(ii).\nAccordingly, based on the language in the regulation, I must conclude that this 100-yard\nmeasurement establishes the minimum length of the Class 3 location.\nThe position offered by OPS at the hearing is not sustainable because the regulation does not\nimpose an additional step of using a 220-yard arc from the building or outside area to establish\nthe length of the class under § 192.5(b)(3)(ii). The 220-yard measurement for establishing class\nlocation under § 192.5(c)(2) is only applicable when a cluster of 46 or more buildings requires a\nClass 3 location, not when the presence of a single frequently used building or outside area\ncauses the location to be Class 3. The cluster exception was adopted to avoid a situation where a\ntwo-mile stretch of Class 3 would be created solely by a small group of buildings at a road\ncrossing.7 This type of situation does not arise under § 192.5(b)(3)(ii).8 Ultimately, there is\nnothing in the regulation explicitly requiring a 220-yard measurement to establish the length of\nthe class under § 192.5(b)(3)(ii).\nWritten interpretations published by PHMSA did not support the position advocated by OPS. I\nreviewed several interpretations issued between 1982 and 1996 that discussed a 220-yard\nmeasurement, but only in the context of the cluster exception, which is not applicable to the\nmethod in § 192.5(b)(3)(ii). Respondent, on the other hand, cited an interpretation issued in\n6 Pre-hearing submission at 4 (emphasis in original).\n7 Establishment of Minimum Standards, 35 FR 13,248, 13,251 (Aug. 19, 1970).\n8 The 220-yard measurement for Class 4 locations under § 192.5(c)(1) is also not relevant here.\n\n\n\n5\n1976 concerning § 192.5(b)(3)(ii), which supports the operator’s position by discussing uses of\nproperty that would not cause a “pipeline within 100 yards” to be a Class 3 location.\n9\nInternal PHMSA training material, submitted by Respondent, depicted the length of a Class 3\nlocation under § 192.5(b)(3)(ii) to be 100 yards from the boundary of the frequently used\nbuilding or outside area.10 This material was prepared by the agency for internal use and does\nnot constitute official agency guidance material, but nevertheless reflected a reading of the\nregulation consistent with the plain language.\nFor the reasons stated above, there is insufficient cause to find Respondent’s procedures for\ndetermining the area of a Class 3 location along a pipeline were inadequate to assure safe\noperations. Therefore, the allegation is withdrawn.\nThe terms and conditions of this Final Order are effective upon service in accordance with\n49 C.F.R. § 190.5.\n___________________________________ ______________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety\n9 PHMSA Interpretation #PI-76-059 (Sept. 14, 1976) available at: http://phmsa.dot.gov/pipeline/regs/interps. When\nthe interpretation was issued, the relevant regulation was codified at § 192.5(d)(2).\n10 Post-hearing submission at 4.","truncated":false,"body_characters":15439}