|
15-1904-16969-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND INDUSTRY
|
In the Matter of the Revocation of the High Pressure Piping License of Mid-States Mechanical Services, Inc., and the Individual Contracting Pipefitters Licenses of Kent Durenberger and Kevin Durenberger |
FINDINGS OF FACT, CONCLUSIONS AND ORDER |
This matter was scheduled for hearing before Administrative Law Judge Beverly Jones Heydinger (“ALJ”) on January 14, 2008, pursuant to a Second Amended Notice and Order for Hearing, and subsequent orders issued in this proceeding. On the day of hearing, the Respondents notified the Administrative Law Judge that they did not intend to appear at hearing. The record closed upon the Respondents’ default on January 14, 2008.
Appearances: Wendy Willson Legge and Lorelei Hoyer,
Attorneys at Law, Department of Labor and Industry, 443 Lafayette Road North,
St. Paul, MN 55155-4307, on behalf of the Department of Labor and Industry
(Department).
Pursuant to Minn. Stat. § 14.57, and Order of the Commissioner dated January 7, 2008, this Order is the final decision in this case, subject to judicial review pursuant to Minn. Stat. §§ 14.64-68.
STATEMENT OF THE ISSUES
1. Did Mid-States’ repeated incompetence and
violations of the statutes and rules governing high-pressure piping (HPP) in
Minnesota during calendar years 2003, 2004, 2005, and 2006 constitute cause for
revoking or suspending Mid-States’ HPP business license and Individual
Contracting Pipefitter Licenses of Kent Durenberger and Kevin Durenberger?
2. Did Mid-States fail to file applications
for HPP permits with the Department prior to beginning projects involving the
construction or installation of high pressure piping systems as required by
Minn. Stat. § 326.47, subd. 1 (2006), and Minn. R. 5230.0100, subp. 4 (2005),[1] as
follows:
a. Permit
01009: Mid-States began and
completed HPP work at Mrs. Gerry’s Kitchens on July 28, 2005; the permit
application for the project was not filed until July 29, 2005.
b. Permit
00642: Mid-States performed HPP work
at the
c. Permit
00668: Mid-States performed HPP work
at Tony Downs Foods beginning on August 1, 2004; the permit application for the
project was submitted after the work had been completed.
d. Permit
00932: Mid-States performed HPP work
at Faribault Foods beginning on May 2, 2005.
The Department did not receive the permit application for the project
until May 6, 2005.
3. Did Mid-States’ failure to submit
applications for HPP permits to the Department before performing HPP work
deprive the Department of the opportunity to verify the use of licensed
pipefitters, to inspect the welds during the construction project, and to
ensure that Mid-States complied with HPP statutes and regulations?
4. Did Mid-States employ HPP pipefitters to
construct and install HPP who were not licensed in Minnesota and also employ
pipefitter trainees who were not registered with the Department and were not
directly supervised by a licensed pipefitter, as required by Minn. Stat.
§326.48,and Minn. R. 5230.0050 and 5230.0115, as follows:
a. Permit
01074: Mid-States performed HPP work
at Ethanol 2000 LLP on November 9, 2005, and employed one unlicensed, unregistered
pipefitter/trainee to perform HPP work.
b. Permit
01002: Mid-States performed HPP work
at the Schweigert’s facility in
c. Permit
01025: At the Mankato Energy Center,
LLC, Mid-States had unlicensed pipefitters and unsupervised trainees performing
HPP work on October 10, 20, and 28, and November 2 and 8, 2005, and January 6
and February 9, 2006. Mid-States had not
properly registered WN as a trainee on October 14 and 20, 2005, and had not
properly registered JM as a trainee on October 28 and November 2, 2005. On October 28, 2005, the unlicensed
pipefitters and unregistered trainees fled the worksite so that the Department inspectors
could not establish the identities of the workers. On October 10, 2005, Mid-States inadequately
supervised unlicensed pipefitters and trainees.
On October 20, 2005, and January 6, 2006, unlicensed pipefitters and
unsupervised trainees continued to work on the project after the Department investigators
“red tagged,” or condemned HPP, which prevents the HPP from being put into
service.
d. Permit
00901: At Minnesota Soybean
Processors, Mid-States had an unlicensed, unregistered pipefitter working on
May 11, 2005, and four unlicensed, unregistered pipefitters/trainees performing
HPP work on July 21, 2005.
e. Permit
00467: At Cloverleaf Cold Storage,
Mid-States used unlicensed, unregistered pipefitters/trainees to construct and
install an ammonia refrigeration system in 2003, and up to February 12, 2004.
f. Permit
00303: At Minnesota Soybean
Processors, Mid-States used unlicensed, unregistered pipefitters/trainees to
construct and install an HPP steam system in 2003.
g. Permit
00668: At Tony Downs Foods,
Mid-States used two unlicensed employees to perform HPP work on August 21,
2004, without any supervision by a licensed individual.
h. Permit
01069: At Tony Downs Foods,
Mid-States used unlicensed, unregistered pipefitters/trainees to perform HPP
work on October 28, 2005.
5. Did Mid-States fail to have the
certification papers for individual welders present and available on the job
site at the time of two Department inspections in 2005 and at the time of two
inspections in 2003, in violation of Minn. R. 5230.5925, subp. 12, and ASME
B31.1 and Section IX of the ASME Boiler and Pressure Vessel Code, as
incorporated into Minnesota Rules.
6. Did the HPP work performed by Mid-States at
Cloverleaf Cold Storage in 2003 and 2004 under Permit 00467, involving ammonia
piping systems used for closed circuit refrigeration systems, demonstrate
incompetence and code violations, as follows:
a. More than half of the welds failed visual
and/or radiographic inspection, as measured against project design specifications
or the American Society of Mechanical Engineers (ASME) standard B31.5,
whichever is more restrictive, in violation of Minn. R. 5230.5925 and Minn. R.
5230.5010 (A).
b. The welds had many defects, including
welds with incomplete root penetration, welds without proper fusion through the
weld, welds with sockets not welded out, and welds full of porosity, which
welds failed to comply with ASME standard B31.5 and project design
specifications, in violation of Minn. R. 5230.5915 and 5230.5925.
c. Many of the welds that failed
radiographic examination were prepared in a way that did not attempt to achieve
full root penetration but would appear adequate upon cursory external visual
inspection. At the time Mid-States performed
the work, it did not know that its work would be radiographically examined.
d. The welding performed by Mid-States’
welders failed to meet the requirement of the welding procedures specification
and procedure qualification record, in violation of Minn. R. 5230.5925, subp.
8.
e. Mid-States failed to remove and repair
defects in welds, in violation of ASME standard B31.5, chapter 527.6.
f. Mid-States used welders who were not
properly certified and qualified according to the welding procedure for the
project, in violation of Minn. R. 5230.5925, subps. 7 and 11.
g. Welders qualify for certain positions and
types of welds, and must requalify before welding different positions or types
of welds. Mid-States failed to requalify
welders when different welding positions were added, in violation of Minn. R.
5230.5925, subps. 3 and 7, 5230.5010(A), and ASME Boiler and Pressure Vessel
Code, section IX, QW-461.9.
h. Mid-States failed to maintain adequate
records of welder qualification, in violation of Minn. R. 5230.5925, subps. 12
and 15.
i. Mid-States’ welders failed to mark each
weld with their assigned identification marks, in violation of Minn. R.
5230.5925, subps. 13 and 14.
j. Mid-States failed to clean slag off of
torch end cuts.
k. Mid-States failed to remove from the HPP
system, or intentionally placed in the HPP system, debris such as a bee’s nest,
rocks, sand, and torch and welding slag.
l. Mid-States failed to properly measure,
cut, and fit ends for welding.
7. Mid-States failed to promptly correct
violations identified by the Department’s inspectors as follows:
a. Permit
00901: On July 21, 2005, a
Department inspector notified Mid-States that the steam system at Minnesota
Soybean Processors was not properly drained and trapped. As of October 17, 2005, one steam line was
still not properly drained and trapped.
b. Permit
00460 (Fairmont Foods): On April 8,
2004, and June 2, 2004, a Department inspector notified Mid-States that quarter
turn valves on two thermosiphon oil cooler lines were not allowed in ammonia
systems. These violations had not been
corrected at the time of an August 10, 2004, Department inspection, but were
corrected by September 15, 2004.
c. Permit
00303 (Minnesota Soybean Processors):
On June 4 and 9, 2004, a Department inspector notified Mid-States of
violations, including a bypass to a PRV station that was not properly
installed, a free blow valve not installed, and safety valve vent piping
installed incorrectly. The violation on
the PRV station had not been corrected by the time of a February 7, 2005,
Department inspection, but all of the violations were corrected by the time of
an April 11, 2005, Department inspection.
8. In 2006, Mid-States performed HPP work at
Marathon Ashland Petroleum LLC in
9. Did Mid-States have reason to question the
ability of its welders in connection with the Cloverleaf Cold Storage and
Marathon Ashland Petroleum projects, but fail to require the welders to
requalify, in violation of Minn. R. 5230.1100, subp. 8, and 5230.5010(A), and
ASME standard B31.5 and Code Section IX?
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. The original Notice and Order for Hearing in this matter was signed on November 22, 2005, and served on December 5, 2005, alleging violations of the regulations governing the high pressure piping (HPP) license held by Mid-States Mechanical Services, Inc. (Mid-States). The alleged violations occurred in 2003, 2004 and 2005.
2. On October 25, 2006, the Department filed an Amended Notice and Order for Hearing adding allegations addressing the Individual Contracting Pipefitters Licenses of Kevin Durenberger and Kent Durenberger, principals of Mid-States, and adding additional allegations related to matters raised in the initial Notice and Order for Hearing, and occurring in 2003. The parties agreed to extend the deadline for discovery to March 2, 2007.
3. A telephone conference was held on March 9, 2007, to address remaining discovery issues and reset the deadline for discovery. On May 30, 2007, after obtaining additional documents, the Department submitted to the ALJ a proposed Second Amended Notice of Hearing. In an Order dated July 6, 2007, the ALJ granted the Department’s Motion to serve and file the Second Amended Notice of Hearing, with certain exceptions. Pursuant to the Second Amended Notice of Hearing, the Department sought to revoke the high pressure piping license of Mid-States Mechanical Services, Inc., and the Individual Contracting Pipefitters Licenses of Kevin Durenberger and Kent Durenberger.
4. The Respondents’ request for additional discovery concerning the allegations made in the Second Amended Complaint was granted. The ALJ issued a Revised Scheduling Order on August 10, 2007.
5. On September 28, 2007, the Respondents filed a Motion for Partial Summary Disposition, and the Department filed its response on October 17, 2007. The Respondents filed their reply on October 31, 2007. On November 30, 2007, the ALJ issued “Recommendations and Order on Motion for Partial Summary Disposition,” granting summary disposition to the Respondents on allegations 9(d) and 11(e), dismissing part of allegation 11(a) related to two employees performing HPP work without a proper license or registration, part of allegation 12 related to the Department’s six 2004 inspections, and allegation 14. The balance of the motion was denied.
6. On October 12, 2007, Respondents filed their Second Motion for Summary Disposition. The Department filed its response on November 2, 2007, and Respondents filed their reply on November 16, 2007. The Order on Second Motion for Partial Summary Disposition was issued on December 5, 2007, denying the Motion.
7. Pursuant to the Second Revised Scheduling Order, dated September 28, 2007, the matter was set for hearing on January 14, 2008. Pursuant to the Fourth Revised Scheduling Order and Order Allowing Release of Data, issued December 28, 2007, the parties filed their exhibit and witness lists on January 3, 2008.[2]
8. On January 14, 2008, prior to the start of the hearing, counsel for the three Respondents notified the undersigned and the Department by facsimile and email of the following:
Please
be advised that Mid-States Mechanical Services, Inc., Kent Durenberger and
Kevin Durenberger (“Respondents”) will not appear, present evidence or
otherwise contest the Second Amended Notice Hearing (“Notice”) in the above
referenced matter as scheduled at 9:00 a.m., on January 14, 2008. The Respondents have made their decision
after substantial and careful consideration and reflection. The Respondents’ decision should not be
construed as an admission to any of the allegations in the Notice.
9.
The Respondents did not appear for hearing. Because Respondents failed to appear at the
hearing, they are in default.
10.
Pursuant to Minnesota Rules, part 1400.6000, the allegations
contained in the Second Amended Notice of Hearing, as modified by the
Recommendations and Order on Motion for Partial Summary Disposition, are taken
as true and incorporated by reference into these Findings of Fact.
Based
upon the foregoing Findings of Fact, the Administrative Law Judge makes the
following:
CONCLUSIONS
1.
The Administrative Law Judge and the Commissioner of Labor
and Industry are authorized to consider the charges against Respondent under
Minn. Stat. §§ 326.51, 14.50, and 14.57, subd. 1 (2006).
2.
By Order dated January 7, 2008, pursuant to Minn. Stat. §
14.57, the Commissioner of Labor and Industry delegated final decisionmaking
authority in this matter to the undersigned, and this Order shall constitute
the final decision in this case.
3.
Respondents received due, proper and timely notice of the
charges against them, and of the time and place of the hearing. This matter is, therefore, properly before
the Commissioner and the Administrative Law Judge.
4.
The Department has complied with all relevant procedural
legal requirements.
5.
Under Minn. R. 1400.6000, a contested case may be decided
adversely to a party who defaults. On
default, the allegations and the issues set out in that Notice of and Order for
Hearing or other pleading may be taken as true or deemed proved without further
evidence.
6.
The Respondents are in default herein as a result of their
failure to appear at the hearing.
7.
Mid-States failed to file applications for HPP permits with
the Department prior to beginning projects involving the construction or
installation of high pressure piping systems in violation of Minn. Stat. §
326.47, subd. 1, and Minn. R. 5230.0100, subp. 4, for Permits 01009, 00642,
00668 and 00932.
8.
Mid-States’ failure to submit applications for HPP permits
to the Department before performing HPP work deprived the Department of the
opportunity to verify the use of licensed pipefitters, to inspect the welds
during the construction project, and to ensure that Mid-States complied with
HPP statutes and regulations.
9.
Mid-States employed HPP pipefitters to construct and install
HPP who were not licensed in Minnesota and also employed pipefitter trainees
who were not registered with the Department and were not directly supervised by
a licensed pipefitter, in violation of Minn. Stat. §326.48,and Minn. R.
5230.0050 and 5230.0115, for Permits 01074, 01002, 01025, 00901, 00467, 00303,
00668 and 01069.
10.
Mid-States failed to have the certification papers for
individual welders available on the job site at the time of two Department
inspections in 2005 and at the time of two inspections in 2003, in violation of
Minn. R. 5230.5925, subp. 12, and ASME B31.1 and Section IX of the ASME Boiler
and Pressure Vessel Code, as incorporated into Minnesota Rules.
11.
The HPP work performed by Mid-States at Cloverleaf Cold
Storage in 2003 and 2004 under Permit 00467, involving ammonia piping systems
used for closed circuit refrigeration systems, demonstrated incompetence, in
violation of Minn. Stat. § 326.51, and code violations, as follows:
a. More than half of the welds failed visual
and/or radiographic inspection, as measured against project design
specifications or the American Society of Mechanical Engineers (ASME) standard
B31.5, whichever is more restrictive, in violation of Minn. R. 5230.5925 and
Minn. R. pt. 5230.5010 (A).
b. The welds had many defects, including
welds with incomplete root penetration, welds without proper fusion through the
weld, welds with sockets not welded out, and welds full of porosity, which
welds failed to comply with ASME standard B31.5 and project design
specifications, in violation of Minn. R. 5230.5915 and 5230.5925.
c. Many of the welds that failed
radiographic examination were prepared in a way that did not attempt to achieve
full root penetration but would appear adequate upon cursory external visual
inspection. At the time Mid-States
performed the work, it did not know that its work would be radiographically
examined.
d. The welding performed by Mid-States’
welders failed to meet the requirement of the welding procedures specification
and procedure qualification record, in violation of Minn. R. 5230.5925, subp.
8.
e. Mid-States failed to remove and repair
defects in welds, in violation of ASME standard B31.5, chapter 527.6.
f. Mid-States used welders who were not
properly certified and qualified according to the welding procedure for the
project, in violation of Minn. R. 5230.5925, subps. 7 and 11.
g. Mid-States failed to requalify welders
when different welding positions were added, in violation of Minn. R.
5230.5925, subps. 3 and 7, 5230.5010(A), and ASME Boiler and Pressure Vessel
Code, section IX, QW-461.9.
h. Mid-States failed to maintain adequate
records of welder qualification, in violation of Minn. R. 5230.5925, subps. 12
and 15.
i. Mid-States’ welders failed to mark each
weld with its assigned identification mark, in violation of Minn. R. 5230.5925,
subps. 13 and 14.
j. Mid-States failed to clean slag off of
torch end cuts, in violation of Minn. Stat. § 326.51.
k. Mid-States failed to remove from the HPP
system, or intentionally placed in the HPP system, debris such as a bee’s nest,
rocks, sand, and torch and welding slag, in violation of Minn. Stat.
§ 326.51.
l. Mid-States failed to properly measure,
cut, and fit ends for welding, in violation of Minn. Stat. § 326.51.
12.
Mid-States failed to promptly correct violations identified
by the Department’s inspectors for Permits 00901, 000460 and 00303.
13.
In 2006, Mid-States performed HPP work at Marathon Ashland
Petroleum LLC in
14.
Mid-States had reason to question the ability of its welders
in connection with the Cloverleaf Cold Storage and Marathon Ashland Petroleum
projects, and failed to require the welders to requalify, in violation of Minn.
R. 5230.1100, subp. 8, and 5230.5010(A), and ASME standard B31.5 and section
IX.
15.
Revocation of Mid-States’ HPP business license and the
Individual Contracting Pipefitter licenses of Kent Durenberger and Kevin
Durenberger is in the public interest.
Based upon the foregoing Conclusions, and the record herein, and as more fully set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
IT IS HEREBY ORDERED:
1.
The
Recommendations and Order on Motion for Partial Summary Disposition is AFFIRMED,
granting summary disposition to the Respondents on allegations 9(d) and 11(e),
dismissing part of allegation 11(a) related to two employees performing HPP
work without a proper license or registration, part of allegation 12 related to
the Department’s six 2004 inspections, and allegation 14;
2.
That Mid-States Mechanical Services, Inc.’s high pressure
piping business license is REVOKED;
3.
That the Individual Contracting Pipefitter license of Kent
Durenberger is REVOKED;
4.
That the Individual Contracting Pipefitter license of Kevin
Durenberger is REVOKED; and
5.
The record in this proceeding shall be returned to the
Department of Labor and Industry for retention.
The hearing exhibits prefiled with the ALJ are not part of the record
and will not be retained. Documents in
the record identified as “Not Public” shall retain that status, and the Protective
Agreement and Order issued on April 2, 2007, shall remain in effect. Following the conclusion of this proceeding,
the parties shall return documents obtained during discovery, as set forth in
paragraph 9 of the Protective Agreement and Order.
Dated this 29th day of January, 2008.
|
/s/ Beverly Jones Heydinger |
|
BEVERLY JONES HEYDINGER |
|
Administrative Law Judge |
Reported: Default (not recorded)
MEMORANDUM
At
the time that this action was initiated, the licensing of businesses and
individuals engaged in high pressure pipefitting (HPP) was governed by Minn.
Stat. §§ 326.46-326.51, and rules implementing those provisions. Although several provisions have been amended
or repealed since that time, they govern this proceeding.[3] Pursuant to
The allegations support revocation of Mid-States’ business license. By failing to appear for hearing, the Respondents have failed to contest the allegations. The number of different violations, the frequency of the violations, and the varied aspects of the business that the allegations encompass justify revocation of the license.
Issue #5 is: “Did Mid-States fail to have the certification papers for individual welders present and available on the job site at the time of [certain Department inspections].” The Department cited Minn. R. 5230.5925, subp. 12, and ASME B31.1 and Section IX of the ASME Boiler and Pressure Vessel Code to support the violation. Although the cited state rule requires that the certification documents be “available” at the job site, and the incorporated code provision requires that the documents be “available, upon request,” neither of the two requires that the documents are “present” on the job site. The Department may have offered evidence at hearing in support of its interpretation, but absent that evidence, the conclusion concerning a violation is limited to the plain language of the rule and incorporated code provision, that the documents were not available. There was some evidence offered in support of summary disposition that the documents were available and could be faxed, but facts admitted solely for the purpose of that motion were not considered in reaching the conclusions.
There
are no specific allegations of violations by Kent Durenberger and Kevin
Durenberger as individuals. However, it was alleged, and must be taken as true,
that each of the two was a principal of Mid-States and each one held an
individual contracting pipefitter license.
No corporation may obtain a permit for HPP without a HPP business
license, and each such business must have “at all times as a full-time employee
at least one individual holding an individual contracting pipefitter competency
license.”[4] Moreover, only such persons are entitled to
obtain HPP permits in the name of the business.
As principals, it is appropriate to hold Kent Durenberger and Kevin
Durenberger responsible for Mid-States’ incompetence and violations of the
statutes and rules that govern HPP in
In addition, at no time did either Kent Durenberger or Kevin Durenberger maintain that any other person was the licensed individual overseeing operations for Mid-States, or that other individuals were making business decisions for Mid-States. See, e.g., Letter of January 14, 2008, giving notice that Mid-States, Kent Durenberger and Kevin Durenberger would not appear at the hearing. Absent any such claim, it is appropriate to hold Kent Durenberger and Kevin Durenberger responsible for Mid-States’ violations and take action against their individual licenses.
In light of the pattern of repeated violations, revocation is the appropriate sanction.
B.J.H.
[1]
Unless otherwise indicated, the cited statutes are those in effect in 2006, and
the cited rules are those in effect in 2005.
In several instances, the statutes and rules were repealed effective
December 1, 2007, but still govern the violations alleged in this matter. See
[2] See also Order on Motion to Compel, December 7, 2007, f.n. 1, notifying parties of duty to file exhibits and witness list in advance of the hearing.
[3] See
[4]