Interpretation Response #PI-16-0005

Interpretation Response Details

April l, 2016

Mr. Wayne T. Lemoi National Safety Coordinator
U.S. Department of Transportation PHMSA
233 Peachtree Street NE, Suite 600
Atlanta, Georgia 30303
Via e-mail:    wayne.lemoi@dotgov
Re:       Operator Qualification Records Mr. Lemoi,

King-Murray Operating Company, LLC ("King-Murray"), OPID 38917, is providing operations and maintenance services as a contractor for NRG Energy's Osceola Pipeline in Florida.  Until October 2015, King-Murray provided pipeline operations and maintenance services as a contractor for Florida Power and Light Company ("FPL"), at which time FPL allegedly terminated King-Murray's contract and had FPL's affiliate company Nextera Energy Pipeline Services LLC ("Nextera") begin performing the operations and maintenance services.

FPL has sought an injunction against King-Murray in the US District Court, Southern Florida, West Palm Beach Division in Case N umber 9:16-cv-80259-DM M ("Case") in order to take possession of all of King-Murray Operator Qualification Training Records. King-Murray has counter-sued FPL to retain its training records, as well as for violation of affiliate rules, breach of contract, fraud, negligence, conspiracy and other infractions. These are training and qualification records for King-Murray personnel that perform work on the NRG owned pipeline and previously performed work on the FPL owned facilities. Attached is an example of information that King­ Murray has provided to FPL and is willing to provide to FPL, however, FPL has declared that this is insufficient even though PPL accepts similar reports from other contractors.
 

King-Murray is vigorously defending the action brought against it. King-Murray believes that it must retain those Operator Qualifications for the personnel that were trained by King-Murray, both present and former King-Murray personnel since King-Murray is still providing services for NRG Energy and must retain its records for a minimum five-year period as specified in FPSC Rule 25-12 and 49 CFR Part 192.807 and 49 CFR Part 195.507 for services provided to FPL.

FPL's latest filing in the Case and arguments before the US District Court, leads King· Murray to believe that FPL and Nextera are suing King-Murray for possession of its operator qualification records because FPL and Nextera did not train or qualify their personnel, some of which were former King-Murray personnel, when FPL and
Nextera began operations of the FPL owned facilities in October 2015. Rather than train their new employees, FPL and Nextera are presently relying solely upon the personnel's work history with King-Murray Operating in violation of the OQ requirements contained in 49 CFR Part 192.809. King-Murray has provided FPL with a summary of qualifications for each of King-Murray's current and former employees, listing the person, the covered tasks and the date upon which the qualification will expire.

King-Murray is requesting clarification and affirmation that as an operator providing operations and maintenance services to an owner that it must retain these records or be in violation of FPSC Rule 25-12 and 49 CFR Part 192. King­ Murray has informed FPL that it would make its records available to PHMSA or
other regulatory agency for inspection during an audit if requested. A written or verbal opinion from PHMSA upon which King-Murray can rely upon for clarification of the regulations in the Case on or before April 18, 2016 would be greatly appreciated.

Sincerely,

Frank M. Murray
General Manager

Attachment

Cc:     Mr. Rick Moses, FPSC, Bureau of Safety Chief RMoses@PSC.STATE.FL.US

Mr. Frank M. Murray General Manager
King-Murray Company Operating LLC 29760 Hillbrook Street
Livonia, MI  48152

Dear Mr. Murray:

In an April  1, 2016, letter to the Pipeline and Hazardous Materials Safety Administration, (PHMSA), you requested an interpretation of PHMSA regulations to be used in ongoing litigation.  You stated King-Murray Operating Company, LLC ("King-Murray") is the defendant in a lawsuit brought by Florida Power and Light Company ("FPL") in the U.S. District Court for the Southern District of Florida.  You further stated FPL is seeking an order to require King­ Murray to tum over training records and that King-Murray has brought counterclaims. In addition, you stated King-Murray believes that under PHMSA regulations and the rules of the Florida Public Services Commission King-Murray is required to retain these records.  You asked for a "written or verbal opinion from PHMSA upon which King-Murray can rely upon for clarification of the regulations in the Case."

On April 12, 2016, PHMSA received a letter from Charles L. Schlumberger, counsel for FPL and NextEra Energy Pipeline Services, LLC ("NEPS").   Mr. Schlumberger requested that PHMSA refrain from providing the opinion you requested.  Alternatively, he requested he be able to respond on behalf of FPL and NEPS should PHMSA decide to "move forward" on your request.

PHMSA interprets your request for a "written or verbal opinion from PHMSA upon which King­ Murray can rely upon for clarification of the regulations in the Case" as a request for a PHMSA employee to provide expert testimony in the ongoing litigation between King-Murray and FPL. However, 49 C.F.R. § 9.9(c) prohibits any DOT employee from testifying in legal proceedings between private litigants "as an expert or opinion witness with regard to any matter arising out of the employee's official duties or functions of the Department." See also 49 C.F.R. § 9.3 (defining "testimony" as "any written or oral statement by a witness"). Accordingly, PHMSA cannot grant your request at this time.
 

Should you have any questions, please contact Aaron Glaser, an Attorney-Advisor in my office, at (202) 366-6318 or aaron.glaser@dot.gov.

Sincerely,

Teresa A. Gonsalves Chief Counsel

cc: Charles L. Schlumberger, Senior Litigation Counsel, Florida Power & Light Company, 700 Universe Boulevard, Juno Beach, Florida, 33408-0420

Regulation Sections