{"operation":"document","citation":"CPF 52021002NOA","title":"KINDER MORGAN CO2 CO. LLC — Notice of Amendment","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2021-08-16","effective_on":null,"summary":"CLOSED notice of amendment citing 195.202, 195.204, 195.208, 195.216, 195.222(a), 195.234(a), 195.234(g), 195.404(c)(1).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-52021002noa.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-52021002noa.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-52021002noa","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/52021002NOA","body":"Notice of Amendment involving KINDER MORGAN CO2 CO. LLC. PHMSA's enforcement data identifies the cited regulations as 195.202,  195.204,  195.208,  195.216,  195.222(a),  195.234(a),  195.234(g),  195.404(c)(1). The case was opened on 2021-08-16 and is reported as closed as of 2023-06-29. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n52021002NOA_Closure Letter_06292023_(20-191754).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_Closure%20Letter_06292023_(20-191754).pdf\n\n52021002NOA_Closure Letter_06292023_(20-191754)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_Closure%20Letter_06292023_(20-191754)_text.pdf\n\n52021002NOA_Decision on Petition for Reconsideration_03222023_(20-191754).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_Decision%20on%20Petition%20for%20Reconsideration_03222023_(20-191754).pdf\n\n52021002NOA_Decision on Petition for Reconsideration_03222023_(20-191754)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_Decision%20on%20Petition%20for%20Reconsideration_03222023_(20-191754)_text.pdf\n\n52021002NOA_Notice of Amendment_08162021_(20-191754).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_Notice%20of%20Amendment_08162021_(20-191754).pdf\n\n52021002NOA_Notice of Amendment_08162021_(20-191754)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_Notice%20of%20Amendment_08162021_(20-191754)_text.pdf\n\n52021002NOA_Operator Petition for Reconsideration_11142022_(20-191754).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_Operator%20Petition%20for%20Reconsideration_11142022_(20-191754).pdf\n\n52021002NOA_Operator Post-Hearing Submission_04042022_(20-191754).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_Operator%20Post-Hearing%20Submission_04042022_(20-191754).pdf\n\n52021002NOA_Operator Response to Notice and Request for Hearing and Statement of Issues_09142021_(20-191754).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_Operator%20Response%20to%20Notice%20and%20Request%20for%20Hearing%20and%20Statement%20of%20Issues_09142021_(20-191754).pdf\n\n52021002NOA_Order Directing Amendment_10252022_(20-191754).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_Order%20Directing%20Amendment_10252022_(20-191754).pdf\n\n52021002NOA_Order Directing Amendment_10252022_(20-191754)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_Order%20Directing%20Amendment_10252022_(20-191754)_text.pdf\n\n52021002NOA_PHC Hearing Rescheduled_01102022_(20-191754).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_PHC%20Hearing%20Rescheduled_01102022_(20-191754).pdf\n\n52021002NOA_PHC Hearing Rescheduled_01102022_(20-191754)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_PHC%20Hearing%20Rescheduled_01102022_(20-191754)_text.pdf\n\n52021002NOA_PHC Hearing Scheduled_10192021_(20-191754).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_PHC%20Hearing%20Scheduled_10192021_(20-191754).pdf\n\n52021002NOA_PHC Hearing Scheduled_10192021_(20-191754)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52021002NOA/52021002NOA_PHC%20Hearing%20Scheduled_10192021_(20-191754)_text.pdf\n\n52021002NOA_Notice of Amendment_08162021_(20-191754)_text.pdf\n\nNOTICE OF AMENDMENT\nVIA E-MAIL TO MR. JESSE ARENIVAS\nAugust 16, 2021\nMr. Jesse Arenivas\nPresident, CO2 Pipelines\nKinder Morgan CO2\n1001 Louisiana St, Suite 1000\nHouston, TX 77002\nCPF 5-2021-002-NOA\nDear Mr. Arenivas:\nFrom September 28 through October 2, 2020, a representative of the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA), pursuant to Chapter 601 of 49 United States Code\n(U.S.C.), inspected Kinder Morgan CO2’s (Kinder Morgan) welding, certification, inspection,\nand operator qualification procedures.\nOn the basis of the inspection, PHMSA has identified the apparent inadequacies found within\nKinder Morgan’s plans or procedures, as described below:\n1. § 195.202 - Compliance with specifications or standards.\nEach pipeline system must be constructed in accordance with comprehensive\nwritten specifications or standards that are consistent with the requirements of this\npart.\n§ 195.204 – Inspection - general.\nInspection must be provided to ensure that the installation of pipe or pipeline\nsystems is in accordance with the requirements of this subpart. Any operator\n\n\n\npersonnel used to perform the inspection must be trained and qualified in the phase\nof construction to be inspected. An operator must not use operator personnel to\nperform a required inspection if the operator personnel performed the construction\ntask requiring inspection. Nothing in this section prohibits the operator from\ninspecting construction tasks with operator personnel who are involved in other\nconstruction tasks.\nKinder Morgan failed to have a procedure specifying what training and qualifications are\nrequired by inspectors for the specific phase of construction they are inspecting (i.e. welding\ninspectors or coating inspectors), pursuant to § 195.204.\nKinder Morgan does have a document that they claim they are using to evaluate training and\nqualifications, but its Operations & Maintenance manual neither explains the procedure nor\nidentifies where the document can be found.\nKinder Morgan must develop a procedure for determining what training and qualifications are\nneeded in the phase of construction to be inspected, including what documentation or records\nwill be maintained.\n2. § 195.208 - Welding of supports and braces.\nSupports or braces may not be welded directly to pipe that will be operated at a\npressure of more than 100 p.s.i. (689 kPa) gage.\nKinder Morgan does not have a procedure for welding supports directly to the pipeline or a\nstatement that prohibits supports being welded directly to the pipeline.\nKinder Morgan must develop a procedure for supports or braces welded directly to the pipe\noperating at a pressure below 100 psi, and a statement prohibiting supports or braces welded\ndirectly to the pipe that will be operated at a pressure of more than 100 psi.\n3. § 195.222 - Welders and welding operators: Qualification of welders and welding\noperators.\n(a) Each welder or welding operator must be qualified in accordance with section 6,\nsection 12, Appendix A or Appendix B of API Std 1104 (incorporated by reference,\nsee § 195.3), or section IX of the ASME Boiler and Pressure Vessel Code (ASME\nBPVC), (incorporated by reference, see § 195.3) except that a welder or welding\noperator qualified under an earlier edition than listed in § 195.3, may weld but may\nnot requalify under that earlier edition.\nKinder Morgan does have a procedure for welder qualifications located in its Liquid Operations\n& Maintenance Manual (L O&M), Procedure #L O&M 401 – Welder Qualification and Testing,\nRevised March 11, 2020.\n2\n\n\n\nIn the procedure, Section 5 – Core Information and Requirements, Subsection 5.1 – Qualification\nRequirements, it states, “[a] welder shall meet one of these eligibility requirements to be tested\nas a welder: a. The person has passed a similar test recently.” However, the procedure fails to\ndefine what “similar” or “recently” means.\nSection 5, Subsection 5.8 – Retesting Due to Conditions Beyond the Welder’s Control is\nconfusing and fails to follow the re-testing flowchart found in Attachment 3 – Testing Procedure\nChart, found on page 13/13 of the procedure. Attachment 3 – Testing Procedure Chart is\nconfusing. The flow chart has circular paths and fails to clearly show the process of how welders\nare qualified.\nFinally, the procedure fails to identify or mention the American Petroleum Institute’s (API)\nStandard 1104 – Welding of Pipelines and Related Facilities, and the appropriate sections of\n1104 that are incorporated by reference for qualifying welders.\nKinder Morgan must revise its procedure to clearly identify the process used to qualify all\nwelders working on Kinder Morgan assets.\n4. § 195.234 - Welds: Nondestructive testing.\n(a) A weld may be nondestructively tested by any process that will clearly indicate\nany defects that may affect the integrity of the weld.\nKinder Morgan’s Liquid Operations & Maintenance Manual, Procedure 454 – Non-Destructive\nRequirements, Revised August 18, 2018, Section 2.0 – Core Information and Requirements,\nSubsection 2.2 – Codes and Standards (Page 2/9) incorrectly identifies and implies multiple\n“approved DOT” procedures and/or standards which are not Incorporated by Reference (IBR) in\nthe applicable Pipeline Safety Regulations.\nSpecifically, Subsection 2.2 states: “NDT testing shall conform to, or exceed requirements of,\nthe following codes and standards, as applicable:”\nItem D - ASME Section V - Nondestructive Examination, most recent DOT-approved edition -\nThis section is not IBR and the standard being used isn't clear.\nItem G - ASTM E709 - Standard Recommended Practice for Magnetic Particle, most recent\nDOT-approved edition - This standard is not IBR.\nItem H - ASTM E165 - Standard Practice for Liquid Penetrate Inspection Method, most recent\nDOT-approved edition - This standard is not IBR.\nItem I - ASTM E142 - Standard Method for Controlling Quality of Radiographic Testing, most\nrecent DOT-approved edition - This standard is not IBR.\nItem J - ASTM E1444-01: Standard Practice for Magnetic Particle Examination, most recent\nedition.\n3\n\n\n\nAdditionally, the Procedure's Codes and Standards section mentions most recently approved\nDOT editions for Items D, G, H, and I, however, PHMSA does not Incorporate by Reference\nthese mentioned standards.\nProcedure 454 - Section 2.4 Magnetic Particle Test Method does not mention any acceptable\nstandards or explicitly state that magnetic particle testing must meet Section 9.4.2 of API 1104\nfor acceptability.\nKinder Morgan must revise its Non-Destructive Requirements Procedure to clearly state the\ncorrect acceptable standards that will be used for nondestructive testing.\n5. § 195.234 - Welds: Nondestructive testing.\n(a) …\n(g) At pipeline tie-ins, including tie-ins of replacement sections, 100 percent of the\ngirth welds must be nondestructively tested.\nKinder Morgan’s Liquid Operations & Maintenance Manual (L O&M), Procedure 406 – Weld\nInspection and Testing, Revised April 8, 2020, Section 3.2 – Non-Destructive Testing, Section\n3.2.1 – Non-Destructive Testing in the United States mentions the requirements for § 195.234(d)\nand (e) but fails to state or identify the requirements under § 195.234 (g) for tie-ins. However,\nthis code requirement is found in Procedure 454 – Non-Destructive Requirements, Table 1.\nKinder Morgan must revise its procedure to include all the requirements found in § 195.234, and\ncorrectly reference where the reader will find all non-destructive testing requirements for welds.\n6. § 195.216 - Welding: Miter joints.\nA miter joint is not permitted (not including deflections up to 3 degrees that are\ncaused by misalignment).\nKinder Morgan’s Liquid Operations & Maintenance Manual (L O&M), Procedure\n456 – Welding and Fabrication, Revised April 8, 2020, Section 5 – Welding\nProcedure – General, Item 5.18 is worded oddly and unclearly. The operator appears to be\nallowing installation of miter joints under the pre-approval of a Kinder Morgan representative\nbut fails to identify a process for this approval.\nKinder Morgan must revise its procedure to clearly identify a process for allowing installation of\nmiter joints and the procedure for installation, or revise the procedure to state Kinder Morgan\nprohibits the use of miter joints.\n7. § 195.404 - Maps and records.\n(a) …\n(c) Each operator shall maintain the following records for the periods specified:\n4\n\n\n\n(1) The date, location, and description of each repair made to pipe shall be\nmaintained for the useful life of the pipe.\nWhile reviewing project files for in-line inspection (ILI) repairs for sleeve installation and\nproject files for pipeline replacements, the files failed to clearly identify which contractor and/or\nemployee performed specific covered tasks. While operator qualification (OQ) records for\ncontractor and employees were provided in the project files, compliance could not be determined\ndue the records failing to indicate who performed each covered task.\nKinder Morgan must develop or identify a clear process that will document which qualified\npersonnel performs each covered task.\nResponse to this Notice\nThis Notice is provided pursuant to 49 U.S.C. § 60108(a) and 49 C.F.R. § 190.206. Enclosed as\npart of this Notice is a document entitled Response Options for Pipeline Operators in\nCompliance Proceedings.\nPlease refer to this document and note the response options. Be advised that all material you\nsubmit in response to this enforcement action is subject to being made publicly available. If you\nbelieve that any portion of your responsive material qualifies for confidential treatment under 5\nU.S.C. 552(b), along with the complete original document you must provide a second copy of\nthe document with the portions you believe qualify for confidential treatment redacted and an\nexplanation of why you believe the redacted information qualifies for confidential treatment\nunder 5 U.S.C. 552(b).\nFollowing the receipt of this Notice, you have 30 days to submit written comments, revised\nprocedures, or a request for a hearing under §190.211. If you do not respond within 30 days of\nreceipt of this Notice, this constitutes a waiver of your right to contest the allegations in this\nNotice and authorizes the Associate Administrator for Pipeline Safety to find facts as alleged in\nthis Notice without further notice to you and to issue an Order Directing Amendment. If your\nplans or procedures are found inadequate as alleged in this Notice, you may be ordered to amend\nyour plans or procedures to correct the inadequacies (49 C.F.R. § 190.206). If you are not\ncontesting this Notice, we propose that you submit your amended procedures to my office within\n60 days of receipt of this Notice. This period may be extended by written request for good\ncause. Once the inadequacies identified herein have been addressed in your amended\nprocedures, this enforcement action will be closed.\nIt is requested (not mandated) that Kinder Morgan CO2 maintain documentation of the safety\nimprovement costs associated with fulfilling this Notice of Amendment (preparation/revision of\nplans, procedures) and submit the total to Dustin Hubbard, Director, Western Region, Pipeline\nand Hazardous Materials Safety Administration. In correspondence concerning this matter,\nplease refer to CPF 5-2021-002-NOA and, for each document you submit, please provide a copy\n5\n\n\n\nin electronic format whenever possible.\nSincerely,\nDustin Hubbard\nDirector, Western Region, Office of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration\nEnclosure: Response Options for Pipeline Operators in Enforcement Proceedings\ncc: PHP-60 Compliance Registry\nPHP-500 D. Fehling (#20-191754)\n6\n\n52021002NOA_Closure Letter_06292023_(20-191754)_text.pdf\n\nVIA ELECTRONIC MAIL TO MR. DARRELL RICKETSON\nJune 29, 2023\nMr. Darrell Ricketson\nChief Operating Officer\nKinder Morgan CO2 Company, LLC\n1001 Louisiana Street, Suite 1000\nHouston, Texas 77002\nCPF 5-2021-002-NOA\nClosure Letter\nDear Mr. Ricketson:\nOn October 25, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\nissued to Kinder Morgan CO2 Company, LLC, an Order Directing Amendment in the above-\nreferenced case. This Order included a requirement to amend your procedures. Based on our\nreview of the documentation you provided on May 3, 2023, it has been determined that you have\ncomplied with the terms of this Order.\nAccordingly, this case is now closed and no further action is contemplated with respect to the\nmatters involved in this case. Thank you for your cooperation in this matter.\nSincerely,\nDustin Hubbard\nDirector, Western Region\nPipeline and Hazardous Materials Safety Administration\ncc: PHP-60 Compliance Registry\nPHP-500 D. Fehling (#20-191754)\nJaime Hernandez, Director Engineering, Codes and Standards\n\n52021002NOA_Order Directing Amendment_10252022_(20-191754)_text.pdf\n\nOctober 25, 2022\nVIA ELECTRONIC MAIL TO: darrell ricketson@kindermorgan.com\nMr. Darrell Ricketson\nChief Operating Officer\nKinder Morgan CO2 Company, LLC\n1001 Louisiana Street, Suite 1000\nHouston, Texas 77002\nRe: CPF No. 5-2021-002-NOA\nDear Mr. Ricketson:\nEnclosed please find the Order Directing Amendment issued in the above-referenced case. It\nmakes findings of inadequate procedures, finds that certain amended procedures provided by\nKinder Morgan CO2 Company, LLC are adequate, and specifies actions that need to be taken by\nKinder Morgan CO2 Company, LLC to address a remaining inadequacy in its written procedures\nin accordance with the pipeline safety regulations. When the amendment of procedures has been\ncompleted, as determined by the Director, Western Region, this enforcement action will be\nclosed. Service of the Order Directing Amendment by e-mail is effective upon the date of\ntransmission and acknowledgement of receipt as provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure (Order Directing Amendment)\ncc: Mr. Dustin Hubbard, Director, Western Region, Office of Pipeline Safety, PHMSA\nMr. Jaime Hernandez, Director, Engineering, Codes and Standards, Kinder Morgan,\njaime_hernandez@kindermorgan.com\n\n\n\nMs. Jessica Toll, Assistant General Counsel, Kinder Morgan, jessica_toll@kindermorgan.com\nMs. Annie Cook, Esq., Bracewell LLP, Counsel Kinder Morgan, annie.cook@bracewell.com\nCONFIRMATION OF RECEIPT REQUESTED\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\nIn the Matter of )\nKinder Morgan CO2 Company, LLC, ) CPF No. 5-2021-002-NOA\n)\n)\n)\nRespondent. )\n____________________________________)\nORDER DIRECTING AMENDMENT\nFrom September 28, 2020 through October 2, 2020, pursuant to Chapter 601 of title 49, United\nStates Code, a representative of the Pipeline and Hazardous Materials Safety Administration\n(PHMSA), Office of Pipeline Safety (OPS), inspected the written procedures for welding,\ncertification, inspection, and Operator Qualification (OQ) procedures of Kinder Morgan CO2\nCompany, LLC (KM CO2 or Respondent). KM CO2 is the largest transporter of carbon dioxide\nin North America, transporting approximately 1.2 billion cubic feet per day of CO2 from its\nsource fields in Southwest Colorado to New Mexico and West Texas.\n1\nAs a result of the inspection, the Director, Western Region, OPS (Director), issued to\nRespondent, by letter dated August 16, 2021, a Notice of Amendment (Notice). The Notice\nalleged seven instances of inadequacies in Respondent’s written operating and maintenance\nprocedures and proposed requiring KM CO2 to amend its procedures to comply with the\nprovisions of 49 C.F.R. Part 195.\nKM CO2 responded to the Notice by letter dated September 14, 2021 (Response). KM CO2 did\nnot contest six of the seven alleged inadequacies and submitted revised procedures to address\nthese inadequacies. With respect to the seventh alleged inadequacy, Respondent contested the\nallegation and requested a hearing. A hearing was subsequently held via videoconference on\nMarch 3, 2022, before a Presiding Official from the Office of Chief Counsel, PHMSA. At the\nhearing, Respondent was represented by counsel. Respondent provided additional written\nmaterial prior to the hearing on February 21, 2022 (Pre-hearing submission) and following the\nhearing on April 4, 2022 (Post-hearing submission). The Director submitted a post-hearing\nrecommendation on May 4, 2022 (Recommendation).\n1 KM CO2 website, available at https://www.kindermorgan.com/Operations/CO2/Index (last accessed Aug. 31,\n2022).\n\n\n\nSTANDARD OF REVIEW\nPursuant to 49 C.F.R. § 190.206(a), a Regional Director begins a proceeding to determine\nwhether an operator’s plans or procedures required under parts 192, 193, 195, and 199 are\ninadequate to assure safe operation of a pipeline facility by issuing a Notice of Amendment. The\nNotice specifies the alleged inadequacies and the proposed revisions. After considering all\nmaterial presented by an operator in writing or at the hearing in response to a Notice of\nAmendment, the Associate Administrator determines whether the plans or procedures are\ninadequate as alleged and orders the required amendment if they are inadequate or withdraws the\nNotice if they are not.\nIn determining the adequacy of an operator’s plans or procedures, the Associate Administrator\nmay consider: relevant available pipeline safety data; whether the plans or procedures are\nappropriate for the particular type of pipeline transportation or facility and for the location of the\nfacility; the reasonableness of the plans or procedures; and the extent to which the plans or\nprocedures contribute to public safety, in accordance with 49 C.F.R. § 190.206.\n2\nFINDINGS OF INADEQUACY\nThe Notice alleged that Respondent’s written operating and maintenance procedures were\ninadequate under 49 C.F.R. Part 195, as follows:\nItem 1: The Notice alleged that Respondent’s operations and maintenance procedures were\ninadequate with regard to 49 C.F.R. §§ 195.202 and 195.204, which state:\n§ 195.202 Compliance with specifications or standards.\nEach pipeline system must be constructed in accordance with\ncomprehensive written specifications or standards that are consistent with\nthe requirements of this part.\n§ 195.204 Inspection - general.\nInspection must be provided to ensure that the installation of pipe or\npipeline systems is in accordance with the requirements of this subpart. Any\noperator personnel used to perform the inspection must be trained and\nqualified in the phase of construction to be inspected. An operator must not\nuse operator personnel to perform a required inspection if the operator\npersonnel performed the construction task requiring inspection. Nothing in\nthis section prohibits the operator from inspecting construction tasks with\noperator personnel who are involved in other construction tasks.\nThe Notice alleged that KM CO2 did not have a procedure specifying what training and\nqualifications are required by inspectors for the specific phase of construction they are\n2 49 C.F.R. § 190.206 (b) and (c). Paragraph (c) provides that an order directing amendment of an operator’s plans\nor procedures under paragraph (a) is in addition to, and may be used in conjunction with, other appropriate\nenforcement actions prescribed in Part 190.\n\n\n\ninspecting. In its Response, KM CO2 provided its amendments. The Director, Western Region,\nreviewed the amended procedure and concluded that the inadequacies had been corrected.\nAccordingly, based upon a review of all the evidence, I find that Respondent’s procedures were\ninadequate, as alleged in the Notice, but have subsequently been adequately amended. Therefore,\nno further action is necessary with regard to this Item.\nItem 2: The Notice alleged that Respondent’s operations and maintenance procedures were\ninadequate with regard to 49 C.F.R. § 195.208, which states:\n§ 195.208 Welding of supports and braces.\nSupports or braces may not be welded directly to pipe that will be\noperated at a pressure of more than 100 p.s.i. (689 kPa) gage.\nThe Notice alleged that KM CO2 did not have a procedure for welding supports directly to the\npipeline or a statement that prohibits supports being welded directly to the pipeline. In its\nResponse, KM CO2 provided its amendments. The Director, Western Region, reviewed the\namended procedure and concluded that the inadequacies had been corrected.\nAccordingly, based upon a review of all the evidence, I find that Respondent’s procedures were\ninadequate, as alleged in the Notice, but have subsequently been adequately amended. Therefore,\nno further action is necessary with regard to this Item.\nItem 3: The Notice alleged that Respondent’s operations and maintenance procedures were\ninadequate with regard to 49 C.F.R. § 195.222(a), which states:\n§ 195.222 Welders and welding operators: Qualification of welders and\nwelding operators.\n(a) Each welder or welding operator must be qualified in accordance\nwith section 6, section 12, Appendix A or Appendix B of API Std 1104\n(incorporated by reference, see § 195.3), or section IX of the ASME Boiler\nand Pressure Vessel Code (ASME BPVC), (incorporated by reference, see\n§ 195.3) except that a welder or welding operator qualified under an earlier\nedition than listed in § 195.3, may weld but may not requalify under that\nearlier edition.\nThe Notice alleged that KM CO2’s procedures for welding qualifications did not clearly identify\nthe process used to qualify each welder. In its Response, KM CO2 provided its amendments.\nThe Director, Western Region, reviewed the amended procedure and concluded that the\ninadequacies had been corrected.\nAccordingly, based upon a review of all the evidence, I find that Respondent’s procedures were\ninadequate, as alleged in the Notice, but have subsequently been adequately amended.\nTherefore, no further action is necessary with regard to this Item.\n\n\n\nItem 4: The Notice alleged that Respondent’s operations and maintenance procedures were\ninadequate with regard to 49 C.F.R. § 195.234(a), which states:\n§ 195.234 Welds: Nondestructive testing.\n(a) A weld may be nondestructively tested by any process that will\nclearly indicate any defects that may affect the integrity of the weld.\nThe Notice alleged that KM CO2’s procedures for nondestructive testing did not accurately\nidentify the correct acceptance standards to be used in the testing. In its Response, KM CO2\nprovided its amendments. The Director, Western Region, reviewed the amended procedure and\nconcluded that the inadequacies had been corrected.\nAccordingly, based upon a review of all the evidence, I find that Respondent’s procedures were\ninadequate, as alleged in the Notice, but have subsequently been adequately amended. Therefore,\nno further action is necessary with regard to this Item.\nItem 5: The Notice alleged that Respondent’s operations and maintenance procedures were\ninadequate with regard to 49 C.F.R. § 195.234(g), which states:\n§ 195.234 Welds: Nondestructive testing.\n(a) …\n(g) At pipeline tie-ins, including tie-ins of replacement sections, 100\npercent of the girth welds must be nondestructively tested.\nThe Notice alleged that KM CO2’s procedures for nondestructive testing did not include\nrequirements for tie-ins in the section of the procedures where they should appear. In its\nResponse, KM CO2 provided its amendments. The Director, Western Region, reviewed the\namended procedure and concluded that the inadequacies had been corrected.\nAccordingly, based upon a review of all the evidence, I find that Respondent’s procedures were\ninadequate, as alleged in the Notice, but have subsequently been adequately amended. Therefore,\nno further action is necessary with regard to this Item.\nItem 6: The Notice alleged that Respondent’s operations and maintenance procedures were\ninadequate with regard to 49 C.F.R. § 195.216, which states:\n§ 195.216 Welding: Miter joints.\nA miter joint is not permitted (not including deflections up to 3 degrees\nthat are caused by misalignment).\nThe Notice alleged that KM CO2’s procedures for welding did not clearly indicate when the\ninstallation of miter joints is restricted or prohibited. In its Response, KM CO2 provided its\namendments. The Director, Western Region, reviewed the amended procedure and concluded\nthat the inadequacies had been corrected.\n\n\n\nAccordingly, based upon a review of all the evidence, I find that Respondent’s procedures were\ninadequate, as alleged in the Notice, but have subsequently been adequately amended. Therefore,\nno further action is necessary with regard to this Item.\nItem 7: The Notice alleged that Respondent’s operations and maintenance procedures were\ninadequate with regard to 49 C.F.R. § 195.404(c)(1), which states:\n§ 195.404 Maps and records.\n(a)…\n(c) Each operator shall maintain the following records for the periods\nspecified:\n(1) The date, location, and description of each repair made to pipe shall\nbe maintained for the useful life of the pipe.\nThe Notice alleged that KM CO2’s did not have procedures for creating and maintaining records\nindicating which contractor and/or employee performed certain tasks involved in pipeline\nreplacements and sleeve installations following in-line inspections. Specifically, the Notice\nalleged that KM CO2 did not have procedures for maintaining records indicating which\ncontractor and/or employee performed “covered tasks” under the OQ regulations.\nSection 195.404(c)(1) states that “the date, location, and description” of each repair must be\nmaintained in the operator’s records. At the hearing, OPS argued that while the regulations did\nnot expressly define the word “description,\n” the plain meaning of the term is “the who, what,\nwhen, where, and why” of the subject being be described and that the “who” had particular\nrelevance to this case.\n3 OPS argued that since KM CO2’s procedures did not include recording\nthe name of the individual who performed the repair, the “who” was missing and therefore\nRespondent did not comply with the requirement to fully describe the repair.4\nKM CO2 strongly disagreed that the word “description” should be defined in the manner\nsuggested by OPS. Respondent pointed to a dictionary definition of this term as meaning “kind\nor character” or “a statement or account giving the characteristics of someone or something.”5\nRespondent believes that its interpretation is more consistent with this dictionary definition and\nargued that the OPS explanation of how it was applying this term was exceedingly novel and\nexpansive.\n6 KM CO2 stated that it believed OPS was attempting to impermissibly expand the\nrequirements of § 195.404(c)(1) without providing fair notice or due process and requested that\nItem 7 be withdrawn.7\nHaving considered these arguments, I agree with Respondent that the language of the general\n3 Recommendation, at 4.\n4 Recommendation, at 6.\n5 Description, Merriam-Webster.com Dictionary, https://www merriam-webster.com/dictionary/description.\n6 Post-hearing submission, at 2.\n7 Id.\n\n\n\nrecordkeeping requirement in § 195.404(c)(1) does not specify that the word “description”\nmeans that all records created and maintained by a pipeline operator must automatically include\nthe “who, what, when, where, and why” of any and all repairs. OPS could have included such\nprecision in § 195.404(c)(1) when it promulgated the regulation but did not do so. Accordingly,\nthis order does not apply such an automatic requirement to all recordkeeping generally done by\nRespondent.\nTurning to the specific part of the allegation in the Notice concerning the alleged failure to have\nprocedures for having records that indicate which contractor and/or employee performed pipeline\nrepair tasks which there is no dispute are “covered tasks” under the OQ regulations found in\nsubpart G of Part 195.\n8 At the hearing, OPS pointed out that the OQ regulations in subpart G\ninclude specific requirements that bear on the question of whether an operator’s record of a\npipeline repair that involved a covered task under the OQ regulations must include the\nidentification of the individual who performed the covered repair task. OPS argued that the OQ\nrequirements were relevant and that the recordkeeping requirements should be read in a wholistic\nmanner.\nRespondent disagreed with OPS’ arguments concerning the relevance of the OQ regulations.\nRespondent pointed out that the Notice itself did not cite the OQ regulations and noted that the\nOQ regulations were put in place long after the general recordkeeping requirement in\n§195.404(c)(1). Respondent argued that the general recordkeeping requirement in §\n195.404(c)(1) should be viewed by itself without regard to the OQ regulations.\nIn evaluating these arguments, it must first be recognized that recordkeeping is not required\nmerely for the sake of creating documentation. The primary purpose of the recordkeeping\nrequired by the regulations is to demonstrate compliance with the regulations and facilitate\noversight of personnel. As OPS correctly pointed out:\nPHMSA has previously stated that “[m]aintaining complete and\naccurate records is itself important to safety because, in the absence of\ncomplete records, an operator’s managers cannot perform effective\noversight of personnel who perform pipeline maintenance.” In re Pacific\nOperators Offshore, LLC, Final Order, 2010 WL 1323384, at *2 (Mar. 17,\n2010) (emphasis added). If personnel are not identified on repair records,\nthen supervisors cannot track their performance to ensure repairs are made\nsafely.9\nIn assessing the relevance of the OQ regulations, it is helpful to understand the purpose and\nintent of these regulations. PHMSA promulgated the OQ regulations in 1999 in order to ensure a\nqualified workforce and reduce the probability and consequences of accidents caused by human\n8 The term covered task is defined in § 195.501(b). Covered tasks are identified as such in the operator’s written\nOQ program and include operations and maintenance tasks performed as a requirement of Part 195 and that affect\nthe operation or integrity of the pipeline.\n9 Recommendation, at 6.\n\n\n\nerror. 64 Fed. Reg. 46853 (Aug. 27, 1999).10 Of particular relevance to this case, the OQ\nregulations include a section on recordkeeping that reads as follows:\n§ 195.507 Recordkeeping.\nEach operator shall maintain records that demonstrate compliance\nwith this subpart.\n(a) Qualification records shall include:\n(1) Identification of qualified individual(s);\n(2) Identification of the covered tasks the individual is qualified to\nperform;\n(3) Date(s) of current qualification; and\n(4) Qualification method(s).\n(b) Records supporting an individual's current qualification shall be\nmaintained while the individual is performing the covered task. Records of\nprior qualification and records of individuals no longer performing covered\ntasks shall be retained for a period of five years.\nNotably, the first thing on the list of what must be included in the employee qualification records\nin § 195.507(a)(1) is “Identification of the qualified individual(s).” The reason for this is\nobvious, the name and qualifications need to be matched up with a field activity record such as a\ncovered repair task to determine if the qualifications were met. If the field record does not\nidentify the individual, it is not possible to then match it up with the qualifications of that\nindividual to ascertain whether or not the individual was qualified to perform that task. At their\ncore, the primary purpose of the OQ regulations is to ensure that the individual assigned by an\noperator to perform a covered task was fully trained and qualified to perform that task. If a\nreview of the covered tasks performed on a given day or at a given project location does not\nindicate which individuals performed one or more of the covered tasks, it is not possible to\ndetermine if the individual was qualified to perform such task and not possible to determine\nwhether compliance with the OQ regulations was achieved. Such an outcome would negate the\ncore purpose and effect of the OQ regulations to ensure it can be verified that individuals\nperforming pipeline repair tasks are qualified to perform those tasks. Thus, while § 195.507 is\naimed at the qualification records and not the covered repair records directly, it serves to clarify\nthe content needed in the repair records to make the qualification records fulfill their function.\nWhile Respondent is correct that the OQ regulations were promulgated long after the general\nrecordkeeping requirement in § 195.404(c)(1), that does not mean that they can be ignored. It is\nwell established that regulations, like statutes, must be construed wholistically and in a manner\nthat, where possible, gives effect to all of the provisions.11 Many of the pipeline safety\n10 The Pipeline Safety Act states: “The operator of a pipeline facility shall ensure that employees who operate and\nmaintain the facility are qualified to operate and maintain the pipeline facilities.” 49 U.S.C. 60102(a)(3).\n11 “As with statutes, regulations must be construed holistically.” See Am. Paper Inst., Inc. v. EPA, 996 F.2d 346,\n356 n.10 (D.C. Cir. 1993); see also Carlson v. Postal Regulatory Comm’n, 938 F.3d 337, 349 (D.C. Cir. 2019) (“[I]n\nexpounding a statute, we must not be guided by a single sentence ... but look to the provisions of the whole law.”)\n(quoting Del. Dep't of Nat. Res. & Envtl. Control v. EPA, 895 F.3d 90, 97 (D.C. Cir. 2018); see also Black &\nDecker Corp. v. Comm'r, 986 F.2d 60, 65 (4th Cir. 1993) (“We must read the body of regulations ... so as to give\neffect, if possible, to all of its provisions.”)(internal citation omitted).\n\n\n\nregulations in Part 195 were promulgated after the general recordkeeping regulation in §\n195.404(c)(1), but that does not mean the appropriate records to demonstrate compliance with\nthese newer regulations need not be kept. Plainly, § 195.507 clarifies what the content of the\nqualification and covered task records must include. When the Part 195 regulations are read\ntogether and in a cohesive manner, it is clear that the records for a pipeline repair that is a\ncovered task under the OQ regulations must include the identification of the individual(s)\nperforming the covered task. I find that Respondent’s argument that the general recordkeeping\nrequirement must be read to the exclusion of later promulgated regulations such as the OQ\nregulations, was unpersuasive.\nWith regard to the fair notice concern raised by Respondent, it should be noted that as discussed\nabove I did not apply any sweeping requirement that the “who” be included in all repair\nrecordkeeping generally done by operators and the relevance of the OQ regulations serves to\nnarrow the identification requirement to OQ covered repairs.\n12 Moreover, the fact that § 195.507\nappears prominently in the Part 195 regulations and OPS is not relying on some form of obscure\nguidance belies any such concerns. While it may have been helpful if OPS had referenced §\n195.507 in the Notice itself, the Notice was sufficient to inform Respondent that the records at\nissue were for OQ covered repairs. This is particularly true in light of the fact that the remedy\nsought by OPS is for Respondent to simply correct its recordkeeping procedures going forward\nas opposed to imposing any penalty on Respondent.13\nFinally, Respondent pointed to three other documents it maintained concerning repairs that it\nbelieved painted an adequate picture of the repairs. The first is the Pipeline Inspection/Repair\nReport (PIR). This fillable form includes information on when and where the repair was\ncompleted, what repair activity was performed, and why it was needed. It does not record who\nperformed the repair. The second document Respondent provided is an Employee Sign-in Sheet,\na fillable form that records the names of individuals present at a work site and the times they\nenter and leave the site. It does not record who performed specific repair activities. Finally,\nRespondent submitted a Job Hazard Analysis Worksheet. This fillable document records the\nsequence of basic job steps, potential hazards of each job step, and a plan of action to control or\neliminate the hazard(s).14 While Respondent is correct that the regulations do not require any\nspecific type of record or form be used, these documents did not serve to identify the individual\nwho performed a given covered repa","truncated":true,"body_characters":62374}