{"operation":"document","citation":"CPF 520075003","title":"BRIDGER PIPELINE LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2007-02-02","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.204, 195.214(a), 195.230(b), 195.402(a), 195.402(c), 195.402(c)(12), 195.403(c), 195.410(a)(1), 195.422(a), 195.428(a), 195.440, 195.49, 195.579(c), 195.583(c).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-520075003.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-520075003.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-520075003","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/520075003","body":"Notice of Probable Violation involving BRIDGER PIPELINE LLC. PHMSA's enforcement data identifies the cited regulations as 195.204,  195.214(a),  195.230(b),  195.402(a),  195.402(c),  195.402(c)(12),  195.403(c),  195.410(a)(1),  195.422(a),  195.428(a),  195.440,  195.49,  195.579(c),  195.583(c). The case was opened on 2007-02-02 and is reported as closed as of 2010-11-10. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n520075003_closure letter_11102010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/520075003_closure%20letter_11102010.pdf\n\n520075003_closure letter_11102010_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/520075003_closure%20letter_11102010_text.pdf\n\n520075003_Decision on Petition for Reconsideration_06162009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/520075003_Decision%20on%20Petition%20for%20Reconsideration_06162009.pdf\n\n520075003_Decision on Petition for Reconsideration_06162009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/520075003_Decision%20on%20Petition%20for%20Reconsideration_06162009_text.pdf\n\n520075003_FinalOrder_04022009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/520075003_FinalOrder_04022009.pdf\n\n520075003_FinalOrder_04022009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/520075003_FinalOrder_04022009_text.pdf\n\n520075003_Operator Response and Request For Hearing_03082007.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/520075003_Operator%20Response%20and%20Request%20For%20Hearing_03082007.pdf\n\n520075003_Petition For Reconsideration_04212009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/520075003_Petition%20For%20Reconsideration_04212009.pdf\n\n520075003_Stay of Final Order_05082009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/520075003_Stay%20of%20Final%20Order_05082009.pdf\n\n520075003_Stay of Final Order_05082009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/520075003_Stay%20of%20Final%20Order_05082009_text.pdf\n\nBPL 5-2007-5003 NOPV-PCO 2-2-07.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/BPL%205-2007-5003%20NOPV-PCO%202-2-07.pdf\n\nbpl 5-2007-5003 nopv-pco 2-2-07_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520075003/bpl%205-2007-5003%20nopv-pco%202-2-07_text.pdf\n\n520075003_FinalOrder_04022009_text.pdf\n\nAPR 2 2009\nVIA CERTIFIED MAIL-RETURN RECEIPT REQUESTED [7005 0390 0005 6163 7459]\nMr. Hank True\nPresident\nBridger Pipeline Company, LLC\n455 N. Poplar Street\nP.O. Drawer 2360\nCasper, WY 82602\nRe: CPF No. 5-2007-5003\nDear Mr. True:\nEnclosed is the Final Order issued in the above-referenced case. It makes findings of violation\nand specifies actions that need to be taken by Bridger to comply with the pipeline safety\nregulations. When the terms of the compliance order have been completed, as determined by the\nDirector, Western Region, this enforcement action will be closed. Your receipt of this Final\nOrder constitutes service of that document under 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: Chris Hoidal\nDirector, Western Region, PHMSA\nColin G. Harris, Esq.\nHolme Roberts & Owen LLP\n1801 13th St., Ste 300\nBoulder, CO 80302-5387\nFax: (303) 866-0200\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 )\nBridger Pipeline Company, LLC, ) CPF No. 5-2007-5003\n)\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nOn June 6-10, July 18-21, and August 15-18, 2005, pursuant to 49 U.S.C. § 60117, a\nrepresentative of the Pipeline and Hazardous Materials Safety Administration’s Office of\nPipeline Safety (PHMSA) conducted a safety inspection of the hazardous liquid pipeline systems\noperated by Bridger Pipeline Company, LLC (Bridger or Respondent), and several related\ncompanies in Montana and Wyoming.\nMontana and North Dakota. As a result of the inspection, the Director, Western Region\n(Director), issued a combined notice of probable violation and proposed compliance order (CPF\nNo. 5-2006-5004) by letter dated February 21, 2006, to one of the companies (Belle Fourche),\nalleging violations of the hazardous liquid pipeline safety regulations with respect to the\ninspected facilities. By letters dated May 26 and December 26, 2006, Belle Fourche objected to\nthe notice on the grounds that the individual companies were separate and distinct legal entities\nand should be named separately.\n1 Bridger operates crude oil transmission pipelines in\nIn response to those objections, the Director withdrew the original charges on February 2, 2007,\nand, on the same date, issued separate enforcement documents to each company, including a\nNotice of Probable Violation and Proposed Compliance Order (Notice) issued to Bridger in this\ncase.\ncommitted certain violations of 49 C.F.R. Part 195 and proposed that Bridger take measures to\ncorrect the alleged violations. In addition, pursuant to 49 C.F.R. § 190.205, the Notice advised\nRespondent to take appropriate corrective action to address several warning items or face future\npotential enforcement action.\n2 In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that Bridger had\n1 The companies inspected were Bridger Pipeline Company, LLC, Belle Fourche Pipeline Company (Belle\nFourche), and Butte Pipeline Company (Butte). These companies share the same manual of operating procedures\nand some of the same employees and officers.\n2 The Director issued separate notices to Belle Fourche (CPF No. 5-2007-5002) and Butte (CPF No. 5-2007-5008).\nThis Final Order concerns only the Notice issued to Bridger. Final agency action has already been taken in the case\ninvolving Belle Fourche. The case involving Butte is still pending at this time.\n\n\n\n2\nBridger responded to the Notice by letter dated March 8, 2007 (Response). In its Response, the\ncompany contested the allegations of violation and requested a hearing. In accordance with 49\nC.F.R. § 190.211, a combined hearing was held on August 31, 2007, in Lakewood, Colorado,\nwith an attorney from the Office of Chief Counsel, PHMSA, presiding. Bridger, Belle Fourche,\nand Butte were jointly represented by counsel at the hearing. After the hearing, the companies\nsubmitted a single post-hearing brief (Brief) on October 11, 2007, and additional information by\nletter dated December 21, 2007. To the extent that the issues raised at the hearing and in the\nBrief relate to Bridger, they are addressed below.\nAs a preliminary matter, the parties agree that in making “Findings of Violation,” PHMSA\nburden of production and the burden of persuasion. Dir., Office of Workers’ Comp. Programs,\nDep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 276 (1994). The standard of proof is the\ntraditional preponderance-of-the-evidence standard. Steadman v. SEC, 450 U.S. 91, 102 (1981).\nRespondent argues in its Brief that PHMSA failed to meet its burden of proof on all contested\nItems in the Notice (i.e., Items 3, 4, 5, 10, 11, and 14). As discussed more fully below, I find that\nPHMSA did in fact meet its burden of proof on all the charges.\ncarries the burden of proving the allegations set forth in the Notice.3 This includes both the\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent committed violations of 49 C.F.R. Part 195, as follows:\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 195.214, which provides:\n§ 195.214 Welding procedures.\n(a) Welding must be performed by a qualified welder in accordance with\nwelding procedures qualified under Section 5 of API 1104 or Section IX of the\nASME Boiler and Pressure Vessel Code (incorporated by reference, see §195.3).\nThe quality of the test welds used to qualify the welding procedure shall be\ndetermined by destructive testing.\n(b) Each welding procedure must be recorded in detail, including the results of\nthe qualifying tests. This record must be retained and followed whenever the\nprocedure is used.\nThe Notice alleged that Bridger violated § 195.214 by failing to perform welding in accordance\nwith procedures that had been qualified by the use of test welds determined to be of acceptable\nquality through destructive testing. Specifically, the Notice alleged that butt weld and fillet weld\nprocedures used by Respondent for integrity repairs on the Poplar pipeline in 2005 had not been\nqualified through the use of destructive testing. During the inspection, the PHMSA inspector\n3 Under the Administrative Procedure Act, “the proponent of a rule or order has the burden of proof . . . . A\nsanction may not be imposed or rule or order issued except on consideration of the whole record or those parts\nthereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence.”\n5 U.S.C. § 556(d).\n\n\n\n3\nnoted that Respondent’s welding procedures did not include results from destructive testing that\nwere required in order to qualify the procedures. Violation Report at 2 (Feb. 7, 2008).4\nBridger contended that testimony at the hearing showed the company “used procedures that had\nbeen qualified by a predecessor operator of the pipeline. In any event, Bridger now has its own\nqualified welding procedures.” Brief at 14. However, I can find no evidence in the record to\nsubstantiate this claim. Both Respondent’s procedures and the procedures of the previous\noperator are in the record, but neither includes any record of qualifications using destructive\ntesting. While Respondent stated in its Brief that testimony at the hearing showed Bridger used\nprocedures that had been qualified, the hearing officer noted that Respondent did not introduce\nany evidence at the hearing to support this statement, and I find none in the record. Even if I\nwere to assume the previous operator did indeed qualify the procedures properly through the use\nof destructive testing, the fact remains that Bridger failed to present any tangible evidence of\nthese tests and failed to retain any records of such tests, as required under § 195.214(b). Finally,\nBridger’s statements concerning its efforts to qualify the procedures after PHMSA’s inspection\nare irrelevant to the determination of whether or not the company was in compliance at the time\nof the inspection.\nAccordingly, after considering all of the evidence, I find Respondent violated 49 C.F.R.\n§ 195.214 by failing to perform welding in accordance with welding procedures that had been\nqualified using test welds of acceptable quality, as determined by destructive testing.\nItem 4: The Notice alleged that Respondent violated 49 C.F.R. § 195.230, which states:\n§ 195.230 Welds: Repair or removal of defects.\n(a) Each weld that is unacceptable under § 195.228 must be removed or\nrepaired. Except for welds on an offshore pipeline being installed from a pipe lay\nvessel, a weld must be removed if it has a crack that is more than 8 percent of the\nweld length.\n(b) Each weld that is repaired must have the defect removed down to sound\nmetal and the segment to be repaired must be preheated if conditions exist which\nwould adversely affect the quality of the weld repair. After repair, the segment of\nthe weld that was repaired must be inspected to ensure its acceptability.\nThe Notice alleged that Respondent violated § 195.230 by failing to repair and re-inspect a weld\nthat was “unacceptable” under § 195.228. Specifically, the Notice alleged that Bridger rejected\nweld XR-11 because it had a pinhole defect but failed to repair and re-inspect it.\nthe record included an inspection form utilized by Bridger’s radiographer that shows he had\ndetermined this particular weld to be unacceptable. Violation Report Ex. 2. When questioned\nabout this during the PHMSA inspection, Respondent’s personnel were unable to produce any\nrecord of the weld ever having been repaired and re-inspected. Violation Report at 3.\n5 Evidence in\n4 The inspector provided copies of Respondent’s procedures, dated February 2005, for the record. Violation Report\nEx. 1.\n5 This weld was performed by Respondent’s personnel during a short segment replacement project on the Poplar\npipeline. It is not the same “weld XR-11” that was part of a 17,000-foot repair project on the same pipeline.\n\n\n\n4\nIn its written submissions and at the hearing, Respondent presented several arguments why it had\nnot violated § 195.230. First, it argued that weld XR-11 should not be considered\n“unacceptable.\n” Brief at 3-4. Second, it argued that even if PHMSA now deemed the weld to be\nunacceptable, Bridger had already repaired the weld. Brief at 4. Third, it argued that Bridger did\nnot have fair notice of the agency’s interpretation and application of this standard. Response\nat 4.\nAs for Bridger’s first argument that weld XR-11 should not be considered “unacceptable,” the\ncompany contends that neither the criteria for the acceptability of welds in § 195.228 nor Section\n9 of American Petroleum Institute Welding Standard 1104 (API 1104), which is incorporated\ntherein, specify that pinholes are unacceptable. Respondent’s engineer testified in an affidavit\nthat “[s]ection 9.3 [of API 1104] lists and explains the defects that . . . may warrant rejection in\nconnection with radiographic testing. A ‘pinhole’ is not one of them.” Brief Ex. 6 at ¶ 26. In\naddition, Respondent’s consultant expressed the opinion that “[t]he list of unacceptable defects\n[in Section 9 of API 1104] does not include a ‘pinhole.’ Therefore . . . the mere fact that a\nradiographer found a ‘pinhole’ . . . does not mean that the weld failed the acceptability criteria of\nAPI-1104.” Brief Ex. 7 at ¶ 12. Because a pinhole is not listed as an unacceptable defect in\n§ 195.228 or Section 9 of API 1104, Bridger argues that § 195.230 does not require that it be\nrepaired. Brief at 3.\nRespondent is correct that neither §§ 195.230, 195.228, nor Section 9 of API 1104 expressly\nstates that a “pinhole” is an unacceptable weld defect.\ncompany may reject a weld for any reason other than those explicitly referenced in Section 9.3.\nSection 9.2 states:\n6 Section 9, however, does provide that a\nAll nondestructive test methods are limited in the information that can be derived\nfrom the indications they produce. The company may therefore reject any weld\nthat appears to meet these acceptance standards if, in its opinion, the depth of an\nimperfection may be detrimental to the weld.\nAccordingly, an operator may reject a weld if the company finds an imperfection that it considers\n“detrimental to the weld,” even if the type of imperfection is not explicitly enumerated in Section\n9 of API 1104.\nThis is precisely what Bridger did. The record clearly shows that the inspection was performed\nby Bridger’s welding inspection contractor and that the contractor’s radiographer noted his\nrejection of this particular weld on his inspection form. The form included a column labeled\n“Weld Acceptability” and two columns beneath that column with headings of “Yes” and “No.”\nViolation Report Ex. 2. The radiographer marked the “No” column under the “Weld\nAcceptability” heading for weld XR-11, indicating that he had determined the weld was\nunacceptable.\nThe radiographer also recorded, under the column entitled “Type of Defects in Rejectable\nWelds,\n” that the defect type was a pinhole. In his affidavit submitted by Respondent, the\nradiographer acknowledged that he had “indicated that weld XR-11 was not acceptable.” Brief\n6 In this case, radiographic testing was used by Respondent to examine weld XR-11. Brief at 3. Section 9.3 of API\n1104 specifies acceptance standards for weld imperfections located by radiographic testing.\n\n\n\n5\nEx. 5. Since it was Bridger’s own contractor who determined that XR-11 was “unacceptable”\nunder § 195.228 and API 1104, the company was required under § 195.230 to repair and re-\ninspect the weld to ensure integrity.\nAs for Respondent’s second argument that the company had in fact repaired the weld, Bridger\nacknowledged that it did not have a record of the repair and that such lack of documentation was\nmost likely due to a clerical error. Response at 4. The company argued, however, that normal\ncompany practice was to grind down and repair pinhole imperfections in welds. Id. Bridger also\nsubmitted several affidavits of persons familiar with the matter who attested that weld XR-11\nhad “likely” been repaired. The affidavit of the radiographer who personally examined weld\nand affidavit of another employee, who had spoken to the weld foreman of the repair project,\nXR-11 indicated that he “believe[s] that weld XR-11 was repaired.”7 Brief Ex. 5. The testimony\nindicated:\nHe [the weld foreman] informed me that it was the practice on this project to\ngrind down any “pinhole” anomalies, at which point the weld was not [sic] longer\nconsidered to be rejectable by T&K. [He also] informed me that it was likely that\nXR-11 was ground down, and mistakenly not noted in writing by the inspector on\nthe applicable T&K worksheet or any subsequent document.\nBrief Ex. 6 at 4.\n8\nWhile such statements may be helpful in determining the company’s standard practices, I find\nthem unpersuasive in this case. First, there is no definitive statement in the record that the repair\nwas actually made. More importantly, Bridger has no documentation of the repair having been\nmade, even though the company was or should have been fully aware of its obligation under 49\nC.F.R. § 195.266 to maintain a complete record of all girth welds, including the disposition of\neach rejected weld. The absence of any record of a repair and re-inspection in this case, when\ncoupled with the lack of other tangible evidence or conclusive testimony, is telling.\nFinally, Respondent argued that PHMSA is attempting to punish the company for violating a\nstandard without providing fair notice of the agency’s prospective interpretation or application of\nsuch standard. According to Bridger, it would violate due process to hold the company liable\nunder PHMSA’s interpretation of § 195.230 without fair notice. Response at 4.\nRespondent is correct that governmental agencies may not violate a person’s right of due process\nby depriving such person of property without providing a minimum level of “fair notice” as to\nwhat may constitute a violation of law. “Due process requires that parties receive fair notice\nbefore being deprived of property . . . . In the absence of notice—for example, where the\nregulation is not sufficiently clear to warn a party about what is expected of it—an agency may\nnot deprive a party of property by imposing civil or criminal liability.” Gen. Elec. Co. v. U.S.\nEPA, 53 F.3d 1324, 1328-29 (D.C. Cir. 1995) (citations omitted) (internal quotation marks\nomitted). See also, United States v. Chrysler Corp., 158 F.3d 1350, 1354 (D.C. Cir. 1998);\n7 In its Brief at 4, Bridger misidentified this individual as “the welder who made weld XR-11” when in fact the\nindividual was the inspector of the weld, according to the individual’s own affidavit.\n8 It is not clear from the record how long ago the witness actually spoke to the weld foreman. Respondent was not\nable to locate the foreman to offer testimony in this case. Brief at 8.\n\n\n\n6\nTrinity Broad. of Fla., Inc. v. FCC, 211 F.3d 618, 628 (D.C. Cir. 2000). When an agency\ninterprets a regulation through enforcement rather than pre-enforcement efforts, the issue of\nnotice rests on “whether the regulated party received, or should have received, notice of the\nagency’s interpretation in the most obvious way of all: by reading the regulations. If, by\nreviewing the regulations and other public statements issued by the agency, a regulated party\nacting in good faith would be able to identify, with ‘ascertainable certainty,’ the standards with\nwhich the agency expects parties to conform, then the agency has fairly notified a petitioner of\nthe agency’s interpretation.” Gen. Elec. Co., 53 F.3d at 1329.9\nIn this case, I find, as a matter of law, that Bridger received fair notice of the conduct that was\nrequired of the company. Section 195.230 is clear on its face and provided Bridger with\nadequate notice that each unacceptable weld must either be removed or repaired and re-\ninspected. Section 195.228, and Section 9 of API 1104, incorporated therein, are also quite clear\nthat a company may deem a weld unacceptable on its own or for a variety of explicitly\nenumerated reasons. In this case, Bridger itself determined that weld XR-11 was unacceptable;\ntherefore, the company was required to address the weld accordingly. Having considered all of\nthe evidence and issues presented, I find Respondent violated 49 C.F.R. § 195.230 by failing to\nrepair a weld that the company had determined was unacceptable.\nItem 5: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(c)(1), which states:\n§ 195.402 Procedural manual for operations, maintenance, and\nemergencies.\n(a) General. Each operator shall prepare and follow for each pipeline system a\nmanual of written procedures for conducting normal operations and maintenance\nactivities and handling abnormal operations and emergencies . . . . [A]ppropriate\nparts shall be kept at locations where operations and maintenance activities are\nconducted . . . .\n(c) Maintenance and normal operations. The manual required by\nparagraph (a) of this section must include procedures for the following to provide\nsafety during maintenance and normal operations:\n(1) Making construction records, maps, and operating history available as\nnecessary for safe operation and maintenance . . . .\nThe Notice alleged that Respondent violated § 195.402 by failing to make updated maps and\nalignment sheets available as necessary for safe operation and maintenance of the Poplar\npipeline. Specifically, the Notice alleged that Bridger maintained only one set of updated\nalignment sheets, which showed new crossings and other changes to the facility, and kept those\ndocuments at the Glendive office rather than making them available to personnel performing\noperations and maintenance functions in the field. It was impractical for PHMSA’s inspector to\ninclude a copy of the alignment sheets in the record, but he noted that Bridger’s supervisor\n9 Such “ascertainable certainty” may not be possible where an agency has given conflicting public interpretations of\na regulation. In addition, even in those situations where an “agency does not issue contradictory public statements,\nit may fail to give sufficient fair notice to justify a penalty if the regulation is so ambiguous that a regulated party\ncannot be expected to arrive at the correct interpretation using standard tools of legal interpretation, must therefore\nlook to the agency for guidance, and the agency failed to articulate its interpretation before imposing a penalty.”\nUnited States v. Lachman, 387 F.3d 42, 57-58 (1st Cir. 2004) (citation omitted).\n\n\n\n7\ninformed him that the set of alignment sheets at the Glendive office was the only updated (i.e.,\naccurate) copy for the Poplar pipeline. Violation Report at 4.\nIn its Response, the company stated only that “[a]lignment sheets have been disseminated and\nBridger is engaged in an ongoing process of updating.” Response at 5. In its Brief, Respondent\ncontended that the requirements of the regulation were met by keeping the updated maps at the\nGlendive office,\n“where pipeline operations and maintenance are based.” Brief at 14.\nUnder § 195.402(a) and (c)(1), as quoted above, persons performing operations and maintenance\nactivities in the field, such as excavation activities that require precisely locating underground\nfacilities, must have current maps of the pipeline facility on hand when those activities are being\nconducted. Performing such activities without any maps or with outdated or inaccurate maps\nincreases the chances that a pipeline will be struck and damaged, causing a release of product\nharmful to the public and environment. The evidence shows that Bridger had only one set of\ncurrent alignment sheets and that set did not leave the Glendive office. Accordingly, after\nconsidering all of the evidence, I find that Respondent violated 49 C.F.R. § 195.402(c)(1) by\nfailing to make current maps available as necessary for the safe operation and maintenance of the\nPoplar pipeline.\nItem 10: The Notice alleged that Respondent violated 49 C.F.R. § 195.422(a), which states:\n§ 195.422 Pipeline repairs.\n(a) Each operator shall, in repairing its pipeline systems, insure that the repairs\nare made in a safe manner and are made so as to prevent damage to persons or\nproperty.\nThe Notice alleged that Respondent violated § 195.422(a) by failing to ensure that integrity\nrepairs performed on the Poplar pipeline in 2005 were made in a safe manner. Specifically, it\nalleged that Bridger failed to use a nondestructive testing (NDT) method to examine sleeve-to-\npipe fillet welds associated with type-B repair sleeves. The Notice also alleged that industry\npractice has been to use NDT to ensure that type-B repair sleeves are installed in a safe manner.\nThe Notice alleged further that Respondent’s repair records did not even indicate whether visual\nexaminations of such welds had been performed.\nDuring the PHMSA inspection, the inspector noted that Bridger had made repairs using type-B\nsleeves, but there was no record that such repairs had been visually inspected or tested using\nNDT. The inspector documented statements made by two of Respondent’s employees that the\ncompany had visually inspected the welds but did not need to perform NDT because such testing\nhad been performed on two sleeve repairs on another pipeline operated by a sister company and\nthat such tests had been successful. Violation Report at 5.\nBridger raised several defenses to Item 10. First, it contended that the company ensured type-B\nrepair sleeves were installed in a safe manner by using fully qualified welders and procedures, by\nvisually inspecting the welds, and by performing a\npost-repair hydrostatic test of the pipeline. Response at 6. Second, it argued that PHMSA failed\nto provide the company with fair notice of the agency’s interpretation and application of this\nNDT standard.\n\n\n\n8\nAs for Bridger’s first defense that the company ensured the repairs were made in a safe manner,\nthe company presented one of its engineers, who stated that he had been told by the welding\ntestified that, to his knowledge, the company had used qualified welders and procedures and that\nthe company had performed a hydrostatic test on the pipeline. Id. at ¶¶ 8 and 10. Respondent\nmaintained these measures constituted compliance with § 195.422 and American Society of\nMechanical Engineers (ASME) Standard B31.4, which Respondent referred to as “the relevant\nprofessional code governing pipeline transportation systems.\nRespondent contended that Section 451.6.3 of ASME B31.4 “allows for ‘other methods’ along\nwith visual inspection” to ensure the safety of repair welds and that Respondent chose\nhydrostatic testing in addition to visual inspection. Response at 6.\nforeman that all of the welds were visually inspected. Brief Ex. 6 at ¶ 9.10 The witness also\n” Response at 5. In particular,\nWith regard to the use of qualified workers and procedures, Respondent is correct to point out\nthat these are critical for ensuring repairs are made in a safe manner. However, the use of\nqualified workers and procedures is not a substitute for post-repair examination. The use of\nqualified workers and procedures only serve prospectively to make it more likely that repairs will\nbe made safely in the future. The use of post-repair examinations is also needed to ensure that\nrepairs were in fact made safely. Moreover, I have found that Bridger did not use qualified\nwelding procedures when performing fillet welds on the Poplar pipeline in 2005 (see Item 3 of\nthis Order).\nWith regard to the visual examinations and hydrotest, I find little support in the record for\nRespondent’s assertion that it conducted visual examinations of these repair welds, other than\nsecond-hand accounts and hearsay. Even if visual examinations were performed, they do not\nprovide enough information on their own to determine whether repair welds were properly\nperformed. For that reason, another type of post-repair examination method is required. While\nRespondent asserted that the leading industry standard accepts the use of hydrostatic testing in\naddition to visual examinations in such circumstances, the standard actually states that “[w]elds\nshould also be examined by at least one other nondestructive examination method” in addition to\nvisual examinations. ASME B31.4 § 451.6.3(b) (2002) (emphasis added). Rather than utilize\nanother method of NDT, as recommended in the leading industry standard, Respondent instead\nchose to hydrotest the pipeline.\nAt the hearing, the Director explained that hydrostatic testing is not a suitable process for\ndetermining the soundness of a type-B sleeve repair. This is because hydrotests are not capable\nof testing the integrity of the fillet welds on a type-B repair sleeve. In fact, Respondent informed\nPHMSA, by letter dated December 21, 2007, that it had recently performed NDT on several\ntype-B repair sleeves from the 2005 repair project at issue in this case and found some sleeves\nhad cracks in the pipe-to-sleeve fillet weld that had not been detected by Bridger during any of\nits previous post-repair examination methods, including the hydrostatic test. Respondent also\ndetermined that six of the twelve excavated repairs were not made in their intended locations.\nThe cracks in the repair welds and the incorrect locations of the repair sleeves are further\nindications that the repairs were not performed in a safe manner.\n10 The date this witness spoke to the foreman is not evident in the record, but it was likely years ago, since\nRespondent was not able to locate the foreman to testify. Brief at 8.\n\n\n\n9\nWhile NDT may be an appropriate method to ensure type-B repair sleeves are installed in a safe\nmanner, the text of § 195.422(a) does not explicitly require the use of NDT to determine the\nsafety of such repairs. As Respondent correctly notes, § 195.422(a) is a performance-based\nregulation that requires a specified minimum level of safety for pipeline repairs but does not\nprescribe a specific process or method to be used for each type of repair. With regard to the\nrepairs at issue in this case, the question is whether Respondent used an evaluation process\ncapable of ensuring that type-B repair sleeves were installed in a safe manner. For the reasons\nexpressed above, I find the methods used by Respondent to determine the safety of those repairs\nwere inadequate to comply with § 195.422(a).\nAs for Bridger’s second argument that PHMSA failed to provide fair notice of its interpretation\nand application of this regulation to require NDT, Respondent argued that it “could not have\nreasonably ascertained that OPS now considers NDT to be a mandatory requirement under 49\nC.F.R. § 195.422(a),” because the regulation, on its face, imposes no such requirement. Brief\nat 10.\nBridger has clearly misinterpreted the agency’s application of § 195.422 in this case. As\nexplained above, PHMSA does not take the position that NDT, specifically, is a mandatory\nrequirement of the regulation. Rather, the agency notes the industry practice has been to use\nNDT to meet the performance-based regulation for the type of pipeline repair at issue in this\ncase. It is clear from the text of § 195.422(a) that in order to ensure a particular pipeline repair\nhas been made in a safe manner, an operator must use an evaluation method that is capable of\nmaking that determination. As a matter of law, therefore, I find that Bridger had fair notice of\nthe requirement within § 195.422(a) that it use an evaluation method capable of determining\ntype-B sleeve repairs were made in a safe manner. Unfortunately, for the reasons expressed\nabove, the methods of evaluation used by Bridger were insufficient to comply with this\nrequirement.\nRespondent’s assertion that the company was not aware NDT was the “industry standard” is\nspecious, as Bridger itself cited the ASME B31.4 standard, which states explicitly that repair\nwelds should be examined by NDT. Whether or not NDT is the industry standard, however, is\nultimately irrelevant because § 195.422(a) does not bind Respondent to the industry standard.\nRespondent may comply with the regulation by using one or more evaluation methods capable of\ndetermining that “the repairs are made in a safe manner;” but the operator must be able to\ndemonstrate the chosen method is capable of making such a determination. In this case, I find\nBridger’s chosen evaluation method was not capable of demonstrating the repairs were made\nsafely.\nAccordingly, after considering all of the evidence and arguments presented, I find Respondent\nviolated 49 C.F.R. § 195.422(a) by failing to ensure that type-B repairs sleeves were completed\nin a safe manner.\nItem 11: The Notice alleged that Respondent violated 49 C.F.R. § 195.428(a), which states:\n§ 195.428 Overpressure safety devices and overfill protection systems.\n(a) [E]ach operator shall, at intervals not exceeding 15 months, but at least\nonce each calendar year . . . inspect and test each pressure limiting device, relief\nvalve, pressure regulator, or other item of pressure control equipment to\n\n\n\n10\ndetermine that it is functioning properly, is in good mechanical condition, and is\nadequate from the standpoint of capacity and reliability of operation for the\nservice in which it is used.\nThe Notice alleged that Respondent violated § 195.428(a) by failing to inspect and test certain\npressure control equipment on the Poplar pipeline to determine that such equipment was\nfunctioning properly, was in good mechanical condition, and adequate in terms of capacity and\nreliability of operation. Specifically, the Notice alleged that Bridger failed to test or calibrate\n“transducers that transmit data” to the company’s Supervisory Control and Data Acquisition\n(SCADA) center. The Notice alleged that such devices were part of the company’s pressure\ncontrol system and therefore had to be inspected and tested periodically under § 195.428(a). The\nDirector’s Violation Report also referenced an enforcement action brought against the previous\noperator of the Poplar pipeline in 2004 for the same issue. Violation Report at 6.11\nBridger raised several defenses to Item 11. First, the company argued that the requirements in\n§ 195.428(a) do not apply to pressure “transmitters,” which the company termed the equipment\nat issue in the Notice. Response at 7. Second, the company argued that Bridger did not have fair\nnotice of this interpretation and application of § 195.428(a). Id.\nAs a general matter, the parties discussed at the hearing whether a distinction could be drawn\nbetween the terms “transducer” and “transmitter” and, if so, whether that distinction had any\nbearing on the allegation. A “transducer” is a generic term referring to a device that reads data in\none form (for example, pipeline pressure measured in pounds) and translates that data into an\nelectronic signal that can be transmitted, usually by wire. A “transmitter” is an electronic\nassembly with a transducer at the front end and that transmits the signal. Although there is a\ntechnical distinction between the two terms, in this case the terms refer to the same piece of\nequipment that, for ease of discussion, I will refer to simply as a “pressure transmitter.”\nThe company offered several reasons why § 195.428(a) does not apply to pressure transmitters.\nFirst, it explained that Bridger’s pipeline uses on-site devices that are “hard-wired to\nmechanically shut down the system locally and independently of the SCADA system” when\npressure reaches a certain level. Brief at 12. Respondent distinguished those devices from\npressure transmitters that send pressure data to a SCADA center, arguing that the regulation only\napplies to local mechanical devices and not to pressure transmitters.\nWhile Respondent is correct to point out that local mechanical pressure control equipment is\ncovered by § 195.428(a), the regulation is not so limited as to exclude other types of devices\nused to monitor and control operating pressure on a pipeline. By its terms, § 195.428(a) requires\n“each pressure limiting device, relief valve, pressure regulator, or other item of pressure control\nequipment” to be tested and inspected at specified intervals. The regulation does not explicitly\ndefine “pressure control equipment,” but the ordinary meaning of those terms would include\ndevices used to control pipeline operating pressure. The requirements within § 195.428(a) do not\ndistinguish between local and remote control devices, nor does the regulation differentiate\nbetween devices used to control emergency overpressures and those used to control pressure\nduring normal operations.\n11 In the Matter of Shell Pipeline Company L.P., CPF No. 5-2004-5020, Warning Letter (Sept. 23, 2004).\n\n\n\n11\nRegulated hazardous liquid pipelines have controls and protective equipment to control pressure\nduring emergency pressure surges and other variations from normal operations. See\n§ 195.406(b). A pipeline operator may establish set points for the activation of emergency\nshutdown and overpressure devices as high as 110% of the established maximum operating\npressure (MOP) of a pipeline. Id. During normal operations, however, pipeline operators utilize\nelectronic pressure monitoring equipment to assist in operating the pipeline within the\nestablished MOP. When pressure transmitters are used to monitor pipeline pressure, the\ntransmitters send pressure data to a program logic computer or SCADA control center where\npersons and computers make operational decisions based on such data. Safe operation of a\npipeline facility depends on the accuracy of the pressure data being transmitted.\nIf pressure transmitters are not calibrated, they may send inaccurate pressure data to the program\nlogic computer or SCADA center, potentially resulting in the operation of a pipeline at a pressure\nhigher than intended, perhaps even higher than the MOP, without the controller’s knowledge. In\nfact, erroneous pressure data may result in a pipeline being operated at an unsafe pressure as high\nas 110% of MOP without the controller’s knowledge and without triggering any automatic\nremote or local emergency overpressure protection devices. Regular operation of a pipeline\nabove MOP is a significant safety risk to the public, employees, and the environment, and is not\npermitted by the pipeline safety regulations. See § 195.406(a). For these reasons, regular testing\nand calibration of pressure transmitters that send pressure signals to on-site devices and to off-\nsite locations that control pipeline pressure is important for public safety and is a requirement\nunder § 195.428(a).\nSecond, Respondent argued that PHMSA’s interpretation of § 195.428(a) to include pressure\ntransmitters would logically require the agency to extend the applicability of the regulation to all\nother SCADA-related equipment, such as computers, software, alarms, displays, databases, and\neven satellite communications. Brief at 12. PHMSA has never suggested or actually applied the\nregulation so broadly as to require annual testing of all SCADA-related equipment. In addition,\nit would be neither logical nor necessary to extend the application of the regulation to every\ncomponent arguably associated with a SCADA system. On the other hand, pressure transmitters\nthat actually monitor pipeline pressure, convert such data to electronic signals, and transmit such\ndata to an operator’s SCADA system reasonably fall within the scope of the regulation. For\nthese reasons, I find Respondent’s arg","truncated":true,"body_characters":103883}