{"operation":"document","citation":"CPF 120023003","title":"DISTRIGAS OF MASSACHUSETTS LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2002-06-17","effective_on":null,"summary":"CLOSED notice of probable violation citing 193.2635, 193.2713, 193.2715, 193.2717.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120023003.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120023003.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120023003","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120023003","body":"Notice of Probable Violation involving DISTRIGAS OF MASSACHUSETTS LLC. PHMSA's enforcement data identifies the cited regulations as 193.2635,  193.2713,  193.2715,  193.2717. The case was opened on 2002-06-17 and is reported as closed as of 2009-09-24. Proposed civil penalty: $220,000. Assessed civil penalty: $24,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120023003_Decision on Petition for Reconsideration_ 05262009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120023003/120023003_Decision%20on%20Petition%20for%20Reconsideration_%2005262009.pdf\n\n120023003_Decision on Petition for Reconsideration_ 05262009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120023003/120023003_Decision%20on%20Petition%20for%20Reconsideration_%2005262009_text.pdf\n\n120023003_Final Order_11022005.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120023003/120023003_Final%20Order_11022005.pdf\n\n120023003_Petition for Limited Reconsideration_11212005.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120023003/120023003_Petition%20for%20Limited%20Reconsideration_11212005.pdf\n\nCPF No 1-2002-3003 Final Order.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120023003/CPF%20No%201-2002-3003%20Final%20Order.pdf\n\n120023003_Decision on Petition for Reconsideration_ 05262009_text.pdf\n\nMAY 26 2009\nMr. Francis J. Katulak\nPresident\nDistrigas of Massachusetts, LLC\n18 Rover Street\nEverett, MA 02149\nRe: CPF No. 1-2002-3003\nDear Mr. Katulak:\nEnclosed is the Decision on the Petition for Reconsideration filed by Distrigas of Massachusetts,\nLLC, in the above-referenced case. For the reasons specified therein, the Decision affirms in\npart the Final Order, dated November 2, 2005, but also grants the Petition in part by reducing the\ncivil penalty issued for Item 3 in said Final Order. Payment of the total reduced civil penalty of\n$24,000 is due within 20 days following receipt of this Decision.\nThe Decision is the final administrative action in this proceeding. Your receipt of the document\nconstitutes service 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: Mr. Byron Coy, Director, Eastern Region, OPS\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED [7005 1160 0001 0047 7162]\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 )\nDistrigas of Massachusetts, LLC, ) CPF No. 1-2002-3003\n)\n)\n)\nPetitioner. )\n____________________________________)\nDECISION ON PETITION FOR RECONSIDERATION\nBACKGROUND\nIn accordance with 49 U.S.C. § 60118 and 49 C.F.R. § 190.213, the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA) issued a Final Order in this matter on November 2,\n2005 (Final Order), finding that Distrigas of Massachusetts, LLC (Distrigas or Petitioner),\ncommitted certain violations of the agency’s Liquefied Natural Gas (LNG) Facilities Federal\nSafety Standards regulations (49 C.F.R. Part 193). The Final Order found, inter alia, that\nPetitioner violated 49 C.F.R. § 193.2715 by failing to provide certain contract security personnel\n(CSP) with initial security training in accordance with the company’s own security training\nplan.\n1 The Final Order assessed a civil penalty for said violation in the amount of $20,000.2\nUnder 49 C.F.R. § 190.215, a respondent has the right to file a petition for reconsideration of a\nfinal order issued pursuant to § 190.213. Although the regulations do not require that the agency\nconsider repetitious information, arguments or petitions, a respondent may request consideration\nof additional facts or arguments, provided that the petitioner indicates a valid reason why those\nfacts or arguments were not presented prior to issuance of the final order.3\nThe purpose of this\nrule is to allow a respondent to present information or arguments that were unavailable or\nunknown prior to issuance of the final order and to allow the agency to correct any errors in the\nfinal order, not to provide the respondent with the right to an administrative appeal or de novo\nreview.\n1 Final Order, Item 3.\n2 The Final Order assessed a total civil penalty in the amount of $30,000. The Petition does not seek\nreconsideration of the $10,000 penalty assessed for Item 2\n3 49 C.F.R. § 190.215.\n\n\n\n2\nOn November 22, 2005, Petitioner filed a Petition for Reconsideration (Petition) of the Final\nOrder, seeking reconsideration of the finding of violation and the $20,000 civil penalty assessed\nfor Item 3.\ncompany’s imprecise summarization of its own records gave PHMSA the incorrect impression\nthat Distrigas failed to comply with its own security training plan. Petitioner’s arguments are\ndiscussed in greater detail below.\n4 The Petition does not request the consideration of additional facts but claims that the\nThis case arose out of an onsite safety inspection conducted by a representative of the Eastern\nRegion, Office of Pipeline Safety (OPS), PHMSA, on November 26 to 30, 2001, at an LNG\nterminal operated by Distrigas and located along the Mystic River in Everett, Massachusetts\n(LNG Plant). At this facility, LNG tanker vessels deliver LNG for storage and distribution. As a\nresult of probable violations discovered during the inspection, PHMSA issued a Notice of\nProbable Violation, Proposed Civil Penalty and Proposed Compliance Order (Notice) to\nPetitioner on June 17, 2002. The Notice alleged that Petitioner violated 49 C.F.R. § 193.2715 by\nfailing to provide adequate training for certain of its CSP. Specifically, the Notice alleged that\nDistrigas failed to train the CSP to (1) recognize breaches of security; (2) carry out security\nprocedures under 49 C.F.R. § 193.2903 relating to their duties; (3) be familiar with basic plant\noperations and emergency procedures that were needed to effectively perform their duties; and\n(4) recognize conditions where security assistance was needed.\nThe Notice alleged that Petitioner failed in 50 cases to train CSP in accordance with Petitioner’s\nwritten LNG facility security procedures. In its Response to the Notice, Petitioner contested all\nof the allegations and requested an informal hearing, which was held on November 14, 2002,\nwith an attorney from the Office of Chief Counsel, PHMSA, presiding. At the hearing,\nPetitioner provided PHMSA with certain training records not provided during the inspection.\nPetitioner later provided PHMSA with a post-hearing submittal (Closing) dated December 13,\n2002. Based on these records and the Closing, I found in the Final Order that Distrigas violated\n§ 193.2715 by failing to provide security training for 10 of its security personnel in accordance\nwith the company’s training plan. In its Petition, Distrigas contests the findings and penalties\nassessed for eight of the 10 individuals.\nDISCUSSION\nItem 3 of the Final Order found that 10 of Petitioner’s CSP did not receive the training that the\ncompany’s own written Training Standards for Security Personnel required. This finding was\nsupported by Petitioner’s own records, including a training records reconciliation spreadsheet\n(“Reconciliation”) provided by Distrigas at the hearing. According to the Final Order, the\ncompany’s records showed that these 10 individuals did not receive all of their requisite training\n4 The Petition incorrectly referred to two separate actions filed by PHMSA against Distrigas (CPF No.\n1-2002-3003 and CPF No. 1-2002-3004-M), even though the substance of the Petition dealt solely with the former.\nThe latter was a Notice of Amendment proceeding issued simultaneously with the Notice in this case. PHMSA\nclosed CPF No. 1-2002-3004-M by letter dated April 23, 2003.\n\n\n\n3\nwithin nine months of their start date, as required by the company’s training plan. Petitioner\nseeks reconsideration of this finding on two grounds.\nFirst, Distrigas asserts in its Petition, for the first time, that it was not required under PHMSA\nregulations to maintain training records for three of the 10 individuals.\n5 According to Petitioner,\n49 C.F.R. § 193.2719(b) provides that an LNG operator is required to maintain training records\nonly for one year “after personnel are no longer assigned duties at the LNG plant.” Distrigas\npresented evidence showing that these three individuals ceased employment at the company\nmore than one year prior to November 26, 2001, the first day of the PHMSA inspection.\ncompany argued that since it was not required to keep training records for these employees as of\nthe date of the inspection, it could not be charged with violating the training requirements for\nthose employees under § 193.2715. Even though Petitioner did not raise this argument in its\nResponse for these three individuals, as it did for many other employees, I believe it is a\nlegitimate defense. Accordingly, I find that at the time of the safety inspection, Petitioner was no\nlonger required to maintain training records for security personnel Basinisi, Peterson, and Deters,\nand that the allegations relating to these three individuals are therefore withdrawn.\n6 The\nrequirements of § 193.2715 and its own training plan, as set forth in the “Distrigas Everett\nMarine Terminal Manual of Security Procedures,” issued March 1997 (“Security Procedures” or\n“MSP”). The Final Order found that the Reconciliation showed that these five individuals had\nnot received the required training within nine months of their start dates. In its Petition, Distrigas\ncontends that PHMSA failed to consider other company records, in addition to the\nReconciliation, that demonstrated compliance with the regulation.\nSecond, Petitioner asserts that five other CSP7 did receive security training that met the\nA closer examination of Petitioner’s security procedures and training requirements is necessary\nto determine whether these individuals received their required training. The Security Procedures\nstate:\nSection 4: Training Standards for Security Personnel\n4.1 Objective of the Training Program . . .\n4.2 Training Outline\nWithin 90 days of Permanent Security Officer status (refer to Section 3.5;\nPermanent Security Officer), Officers will be required to satisfactorily\ncomplete a program of “On the Job Training” (OJT) that will include,\n5 The three employees were identified as Basinisi, Peterson, and Deters.\n6 The Reconciliation, included in Petitioner’s Security Training Appendix Supplement, Book Three of Three, and\npresented at the hearing, shows that the three individuals ceased work at Distrigas prior to November 26, 2000.\n7 The five employees were identified as Doten, Loud, Newell, Bursey, and Snider.\n\n\n\n4\nbut is not limited to the following areas of instruction: . . .\n4.2.1.4 SE-1 Recognizing Breaches of Security\n4.2.1.5 SE-2 Security Procedures\n4.2.1.6 SE-3 Operations and Maintenance Orientation\n4.2.1.7 SE-4 Security Assistance.\n8\n“Permanent Security Officers” are defined as “those with more than six months assigned to the\naccount.”9 All such permanent personnel were required to receive the four training “modules,”\nwhich are listed above as “SE-1” through “SE-4.”10 The Security Procedures do not provide any\nalternative to the completion of these four specific modules.\nAccording to the Reconciliation and the other training records submitted by Petitioner, four of\nthe five individuals in question eventually received their SE-1 – SE-4 security modular training,\nbut not within 12 months of their initial start dates.\nown records showed that four of the five CSP received their training late and that one individual,\nMr. Doten, never completed the training at all.\n11 The Final Order found that the company’s\nIn its Petition, Distrigas argues that these five individuals did in fact receive all their required\ntraining but that such fact might not be readily apparent from the company’s records. The\nPetition states:\nHowever, as noted on the Reconciliation, the five contract security personnel\nin question each received initial training\nshortly after each person’s start date.\nThat training is identified on the reconciliation as “Lobby Train” and “Gate\n1,” but that is only a shorthand way to identify the documentation date, as\n8 Security Procedures, Section 4.\n9 Security Procedures, Section 3.5.\n10 In its Closing, Distrigas provided further explanation of its security training requirements:\nContract security personnel (CSPs) begin as “probationary security officers”.\nMSP, ¶ 3. During their probation, security officers are given further on-the-\njob training and supervision as their performance is assessed. Id., MSP, ¶ 3.5\nUpon successful completion of the [6-month] probationary period, a security officer is\nassigned to “permanent” status. Id. Permanent security officers should take\nthe SE modules within 90 days of their assignment, see id. at ¶ 4.2, but the\n90 day period may be extended to 180 days at the discretion of the supervisor,\nsee id. at ¶ 4.4. Thus, in conformity with the MSP, SE modular training might\nnot occur for 9 or even 12 months after an initial start date. [emphasis added]\nClosing, at 54.\n11 All of the five except Doten completed their SE-1 – SE-4 training on December 1, 2001, but each of the four\nstarted work on or before August 2000, more than a year prior to completion of the training.\n\n\n\n5\nopposed to a description of the extent of the training. As detailed in the\nsubsequent sections of the two-volume Security Training Appendix\nSupplement, the “1999 Training” included instruction in the EMT modules.\nSpecifically, as the Training Agenda reveals, those employees were trained\nunder the “1999 Training” program by Armand Santacroce and John Clifford,\nand received “instruction” in the modules as required by the MSP training\nplan. (emphasis added). . . Training for these five contract security guards was\nprovided on various dates. The individuals documented completion of this\ntraining on the dates noted above....\n12\nPetitioner appears to assert that these CSP completed all of their training on the dates shown in\nthe Petition under the column labeled “Initial Training Date.” For each, the “Initial Training\nDate” is the same as the date that each individual completed their “Gate 1” and “Lobby Train”\ntraining. Neither Petitioner’s records nor the Petition reflect that the five individuals underwent\nthe entire SE-1 – SE-4 security modular training. Instead, Petitioner asserts that a review of all\nof its training records shows that while the training received by these five individuals may have\nbeen “different in form” from the SE-1 – SE-4 modules, they nevertheless “confirm instruction\nin the modules to satisfy the requirements of the then-effective written training plan, the MSP, as\ntraining courses, referred to as the “Gate 1” and “Lobby Train” trainings, were the same as or\nreceive.\ndescribed in the Final Order.”13 In other words, Petitioner seems to argue that these other two\nequivalent to the SE-1 – SE-4 security modular training that each new hire was required to\nBased upon a careful review and reconsideration of Petitioner’s voluminous training records and\nSecurity Procedures, it is clear that the “Security Lobby” and “Gate 1” training courses that these\nfive CSP received did not include and were not equivalent to the full SE-1 – SE-4 security\nmodule training.14\nThe “Training Checklist Security Lobby” and “Training Checklist Gate 1”\ntraining documents show that these courses taught employees how to man particular security\nposts at the LNG plant, i.e., the “Security Lobby” and “Gate 1.” It is true that they included\ncertain security elements, such as “Access Control,” “Visual Observations,” “Visitor Control,\n”\n“Vehicle Access,” and “Visitor’s Passes.\n” But when one compares the topics covered by these\ntwo courses with those covered by the full SE-1 – SE-4 modules, it is apparent that the former\n12 Petition for Reconsideration, at 3, 4. Note that in the Petition, the only “dates noted above” are each\nof the five employees’ “Start Dates” and “Initial Training Dates.”\n13 Petition, at 4.\n14 The training records submitted for these five CSP are essentially identical. In addition to the “Security Lobby”\nand “Gate 1” courses, it appears that they also received training related to “Dock Control Officer” and “Ship\nSecurity Post 1,” “Ship Security Post 2,” and other courses related to dock security. These other courses relate to\nfacilities that are under the jurisdiction of the U.S. Coast Guard and are not relevant to LNG Plant security training\nrequirements under 49 C.F.R. Part 193 See Response, at 52.\n\n\n\n6\nneither included nor were equivalent to the SE-1 – SE-4 modules. In fact, they failed to cover\ncertain other critical security elements contained in the SE-1 – SE-4 modules, including:\n• The [Distrigas of Massachusetts, LLC] Manual of Security Procedures;\n• Physical Security Systems;\n• Each security position, patrol schedule, and method of patrolling;\n• Operations and Maintenance Orientation;\n• Notifications of supervisory security personnel; and\n• Security Response to Abnormal Conditions.\nPetitioner presented evidence, through the company’s “1999 Training Agenda” and the affidavit\nof one of its trainers, Armand Santacroce, to show that the training provided to these five CSP\nincluded or was equivalent to the SE-1 – SE-4 modules. However, I do not find this evidence\npersuasive. While the “1999 Training Agenda” lists certain subjects that reference three of the\nfour modules,\nthis agenda. Furthermore, the “1999 Training Agenda” is merely an agenda, not a credible\nrecord of the substantive content of the modules themselves.\n15 there is no evidence as to which, if any, CSP ever received training according to\nOn the contrary, the only training records submitted by Petitioner that appear to follow the “1999\nTraining Agenda” are the two courses (i.e., “Training Checklist Security Lobby” and “Training\nChecklist Gate One”) that these five individuals apparently received. These two are listed as\nsubsets of the “Security Procedures” training shown on the “1999 Training Agenda,\n” further\nconfirming that these two courses were but a small portion of the overall SE-1 –SE-4 training\nrequired.\n16 Finally, the affidavit of Armand Santacroce is unhelpful because it does not even\npurport to show that these five individuals actually received the full training required.17\nThe strongest basis, however, for upholding the findings and penalties in the Final Order\nregarding these five CSP is found in the admissions made by Petitioner in its Response. In that\ndocument, Distrigas acknowledged that four of the five individuals at issue had not completed all\nof their SE-1 – SE-4 training modules within the required time frame. The admissions related to\nthe following individuals:\n15 “Operations and Manitainence Orientation [sic],” “Recognizing Security Breaches,” and “Security Procedures.”\n16 The Petition also contends that under the 1999 Training Agenda, CSP received training in “EMT modules.”\nPetitioner is presumably referring to emergency medical technician training. While this training was likely very\nvaluable, it is of little relevance to the security training requirements in the Security Procedures of 49 C.F.R.\n§ 193.2715.\n17 In his affidavit, Mr. Santacroce merely states that he “prepared an overview of the plant and presented it to\nattendees on August 7, 1999.” See Affidavit of Armand Santacroce, ¶ 5.\n\n\n\n7\nSnider — The Response stated that “all but two [employees] have documented\nmodular training within one year of their start date, as required by the Manual of\nSecurity Procedures. . . The two exceptions are Richard Messenger and Alan\nSnider. . . Snider started at Distrigas on August 1, 2000 and had initial training\nthat same week. He completed SE training on December 1, 2001 and February\n2, 2002 [emphasis added].”18\nDoten — The Response acknowledged that Petitioner’s records showed\nthat seven security personnel did not receive SE modular training. One of those\n19\nwas Doten.\nLoud — The Response stated that “Loud’s security assignment was terminated\non January 21, 2002, but he had previously completed SE-1 through SE-4 on\nDecember 1, 2001.\nDistrigas on September 1, 1999, more than a year prior to his completion of\nsecurity training on December 1, 2001.\n”20 The Reconciliation shows that Loud began work at\nBursey\n— The Response stated that “Bursey started on February 1, 2000,\ncompleted the SE modules on December 1, 2001 and February 2, 2002. . .”\n21\nThese admissions were neither repudiated nor contradicted by any of the evidence in the record\nor by the Petition. Furthermore, Petitioner presented no new facts or arguments to support its\ncontention that its own records were misconstrued or that these five CSP actually received all of\nthe training they were required to take. Accordingly, upon reconsideration of all the evidence in\nthe case, I affirm the findings of violation and civil penalties imposed in Item 3 of the Final\nOrder relating to Petitioner’s failure to provide employees Doten, Loud, Newell, Bursey, and\nSnider with timely initial security training, in violation of the company’s own Security\nProcedures and § 193.2715.\nHowever, I do hereby grant Petitioner’s request to withdraw the findings of violation and\npenalties imposed under Item 3 of the Final Order relating to Petitioner’s failure to provide\nemployees Basinisi, Peterson, and Deters with timely initial security training, as Petitioner was\nnot required to retain training records for these individuals as of the date of the safety inspection.\nIn accordance with that finding, I am proportionally reducing the civil penalty for Item 3 of the\nFinal Order from $20,000 to $14,000. As noted above, Petitioner did not seek reconsideration of\n18 Response, at 61.\n19 Response, at 57-58.\n20 Response, at 59.\n21 Response, at 61.\n\n\n\n8\nthe other findings of violation and penalty under Item 2 in the amount of $10,000. Therefore, I\nassess a total civil penalty against Petitioner under the Final Order in the amount of $24,000.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations (49\nC.F.R. § 89.21(b)(3)) require that the payment be made by wire transfer, through the Federal\nReserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed\ninstructions are contained in the enclosure. Questions concerning wire transfers should be\ndirected to: Financial Operations Division (AMZ-341), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P.O. Box 25082, Oklahoma City, OK 73125; (405) 954-8893.\nThis Decision on Reconsideration is the final administrative action in this proceeding.\n__________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\nCPF No 1-2002-3003 Final Order.pdf\n\nU.S. Department\nof Transportation\nPipeline and\nHazardous Materials Safety\nAdministration\n400 Seventh Street, S.W.\nWashington, D.C. 20590\nNOV - 2 2005\nFrancis J. Katulak\nSenior Vice President Operations\nDistrigas of Massachusetts Corporation\n18 Rover Street\nEverett, Massachusetts 02149\nRe: CTF NO. l-2OO2-3OO3\nDear Mr. Katulak:\nEnclosed is the Final Order issued by the Associate Administrator for Pipeline Safety in the\nabove-referenced case. It makes findings of violation and assesses a civil penalty of $30,000. It\nfurther finds that you have completed the actions specified in the Notice required to comply with\nthe pipeline safety regulations. When the civil penalty is paid, this enforcement action will be\nclosed. Your receipt of the Final Order constitutes service of that document under 49 C.F.R.\nfj 190.5.\nSincerely,\nJames Reynolds\nPipeline Compliance Registry\nOffice of Pipeline Safety\nEnclosure\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\n\n\n\nDEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, DC 20590\nIn the Matter of )\nDistrigas of Massachusetts LLC )\n)\n1\n)\nRespondent. )\nCPF NO. 1-2002-3003\nFINAL ORDER\nOn November 26-30, 2001 and April 12, 2002, pursuant to 49 U.S.C. $ 601 17, a representative\nof the Office of Pipeline Safety (OPS), conducted an on-site pipeline safety inspection of\nRespondent's facilities and records at the Distrigas Everett Marine LNG Terminal in Everett,\nMassachusetts. As a result of the inspection, the Director, Eastern Region, OPS, issued to\nRespondent, by letter dated June 17, 2002, a Notice of Probable Violation, Proposed Civil\nPenalty, and Proposed Compliance Order (Notice). In accordance with 49 C.F.R. $ 190.207, the\nNotice proposed finding that Respondent had violated 49 C.F.R. §§ 193.2635, 193.271 3,\n193.2715 and 193.2717 and proposed assessing a civil penalty of $220,000 for the alleged\nviolations. The Notice also proposed that Respondent take certain measures to correct the\nalleged violations.\nRespondent responded to the Notice by letter dated July 19, 2002. (Response) Respondent\ncontested all the allegations and requested a hearing. The hearing was held on November 14,\n2002 in Washington, DC. At the hearing, Respondent provided many boxes of materials\nsupporting its arguments. After this hearing, Respondent provided additional information on\nDecember 13,2002. (Response-2).\nFINDINGS OF VIOLATION\nNotice Item 1\nItem 1 in the Notice alleged that Respondent had violated 49 C.F.R. $193.2635 for failing to\ninspect components protected from atmospheric corrosion within a three year interval.\nSpecifically, the Notice stated that during the OPS inspection, the inspector discovered\natmospheric corrosion at the interface of existing carrier pipes and their respective metal pipe\nsupports. (Notice, p.2) The inspector noted that it appeared that the paint coating had degraded.\nId. When the OPS inspector asked for evidence to demonstrate the last time that an atmospheric -\ncorrosion inspection was performed in that area; Respondent could not produce any evidence.\nId. -\n\n\n\nRespondent, in its Response, asserted that the burden is on OPS to acquire sufficient evidence to\nprove the violation and that Respondent does not need to affirmatively prove that it satisfied the\nregulation. (Response-2, p.4) In support of Respondent's corrosion program, Respondent\nasserted that \"its prior long-standing procedure for monitoring and addressing corrosion was safe\nand effective.\" and that it \"operates a facility that is constantly manned and constantly inspected\nthrough visual inspection made by operations and maintenance personnel on regular rounds.\" a.\nRespondent added that \"these observations were not typically documented by written records\" as\nindicated in its Maintenance Records procedure EMT- 16M which states that \"no written records\nwill be kept of routine daily and weekly checks and observations . . . .\" (Response-2, pp. 5-6)\nRespondent further indicated that in an extensive corrosion investigation that it conducted prior\nto the hearing, no serious corrosion problems were found. (Response-2, p. 6) Lastly,\nRespondent requested that, in light of this information and its efforts in resolving the proposed\ncompliance order, this item be closed without an adverse finding.\nWith respect to Respondent's first point, yes - OPS does have the burden of ultimate persuasion.\nHowever, once OPS has presented a prima facie case showing that Respondent has violated a\nregulation, the burden then shifts to the Respondent who must present evidence to rebut the\nprima facie case.\nIn this case, OPS alleged in the Notice that Respondent failed to inspect components protected\nfrom atmospheric corrosion within a three year interval. OPS interviewed Respondent's\nOperations Manager who indicated that no records existed to show that the inspections for\natmospheric corrosion were performed. (See Violation Report, p.3, fl 12 and 14a) The pipeline\nsafety laws state, \"To enable the Secretary to decide whether a person owning or operating a\npipeline facility is complying with . . . standards prescribed . . . under this chapter [49 USCS\n$ 5 60101 et seq.], the person shall - - (1) maintain records . . . and provide information . . .; and\n(2) make the records, . . . and information available . . . .\" (49 U.S.C.S. $601 17(b)) Based on\nthe above, OPS has presented a prima facie case and Respondent has not presented evidence to\nrebut that prima facie case. Therefore, I find Respondent in violation of 49.C.F.R. $ 193.2635.\nNotice Item 2\nItem 2 in the Notice alleged that Respondent had violated 49 C.F.R. 193.2713 for failing to\nconduct initial training and continuing instruction for all operations personnel and all\nmaintenance personnel within a two-year interval in accordance with its written plan.\nSpecifically, Respondent's records revealed that for (a) Maintenance training - three employees\nhad never received training and several others had either not received initial training or refresher\ntraining within the two-year interval; and (b) Operational training - that four employees did not\nreceive initial training and several others had not received refresher training at any time or within\nthe two-year interval.\nIn one of the Response documents entitled - Response of Distrigas of Massachusetts LLC. to\nNotice of Probable Violation, Proposed Civil Penalty and Proposed Compliance Order, and\nNotice of Amendment (Response-2) - Respondent allots 42 pages of the 98 page Response\ndocument to this issue. Furthermore, Respondent provided thirteen (13) volumes of materials\n\n\n\nwhich contain various training records for operations and maintenance personnel. Respondent\nargues that the violation should be withdrawn because the \"records confirm that Distrigas\nprovides and implements a comprehensive, written plan for initial and continuing training . . . .\"\n(Response-2, p 7)\nOPS based the proposed violation for Item 2 on its review of the Everett Marine Terminal\nPersonnel Training Program (EMT PTP) and training records submitted by Respondent during\nthe inspection. Those training records solely corresponded to the operations and the maintenance\ntraining modules. (Notice, pp. 2-4)\nIn its Response-2, Respondent asserts:\n(1) Modular training is only one part of a \"more comprehensive program that includes\n'coordinated training, education and career developments ... based on the needs of\n[Distrigas] and all its employees.\"' (Response-2, p.9 [citing Source Materials Appendix,\nSSPM-28, Training Guidelines, Policy, fi 1.1.11)\n(2) \"Training is based on regulatory requirements, the needs of the employee's job\ndescription and the discretion of the employee's supervisor or Training Administrator.\"\nId. (citing Source Materials Appendix, SSPM-28, Training Guidelines, Training\nAdministrator and Manager, fi 3 and Training Plans 7 4)\n(3) \"In addition to or in substitution for the written modular training sessions, an employee's\ntraining may include safety meetings, toolbox talks, videos, CD ROMs, policy specific\ntraining (hands on, in-house instruction), courses and programs at outside schools, on the\njob training with qualified supervisors and more.\" Id. (citing Source Materials\nAppendix, SSPM-28, Training Guidelines, 7 4)\n(4) \"[Tlhe regulations do not specify how the continuing instruction is to be performed. That\naspect is left to the company's discretion, provided that the O&M employees 'keep\n... current on the knowledge and skills they gained in the program of initial instruction.\"'\nId. (citing 8 193.271 3(b)) -\nWhile Respondent did provide extensive documentation of training taken by the employees in\nquestion, the training regulations require a written plan of training. (49 C.F.R. $ 193.2713)\nRespondent appears to rely on the Training Guidelines, SSPM-28, for its written plan.\nRespondent indicates that \"[tlhis written training program, SSPM-28, incorporates the EMT PTP\nmodular training.\" (Response-2, p.10) Respondent asserts that it can use its discretion as to how\nthe training can be performed. (See number 4 above) However, both the Operations Procedures\nTraining Modules and the Maintenance Procedures Training Modules list as trainees - All\npermanent operations and maintenance personnel, respectively. (Source Materials Appendix,\nEMT PTP) These procedures do not leave room for a supervisor's discretion to substitute other\ntraining. Furthermore, SSPM-28 states that training must be completed satisfactorily and that\nsatisfactory completion is defined for graded courses as a final grade of 80% or better. (Source\nMaterials Appendix, SSPM-28, p.5) Taking together that all permanent operations and\nmaintenance personnel are required to take the respective operations and maintenance modular\ntraining and that graded courses, such as the operations and maintenance modular training, must\nbe completed satisfactorily, I find that in accordance with Respondent's written plan, the\n\n\n\nmodular training is required training for its personnel. Based on this analysis, the issue turns to\nwhether Respondent's operations and maintenance personnel were trained in accordance with the\nwritten plan which requires completion of the sections regarding Operating and Maintenance\nprocedures1.\nBefore addressing those specifics, I must first address the statute of limitations that deals with\nthese proceedings. Under 28 USC $ 2462, cases must be \"commenced\" within 5 years of an\nalleged violation. In this instance, the case was commenced, with the issuance of the Notice, on\nJune 17,2002. Therefore, the only alleged violations that can be addressed as part of this action\nare those that occurred on or after June 17, 1997. Based on this date restriction, the only alleged\nviolations that remain are:\nOperations: H.C.G - Module 4 - exceeded biennial (Jan 98 - Nov 00)\nB.Y - no modular training in 1998\nP.M - all modules - exceeded biennial (Feb 96 - Nov 98)\nJ. S. - no modular training in 1998\nL.B. - only received module 4 training in 2001\nD. S. - no modular training in 200 1\nP.D. -no modular training in 2001\nMaintenance: M.K - no modular training since assigned to maintenance in 1999\nK.J. - no modular training since assigned to maintenance in 1999\nJ.C. -no modular training since assigned to maintenance in 1999\nR.C. - no modular training in 2000\nS.D. - no modular training in 2000\nR.M. - no modular training in 1998 and 2000\nC.D. - no modular training in 2001\nA.D. - no modular training in 2001\nAfter a thorough review of the evidence submitted, I find the following:\n(a) Maintenance Training (Maintenance Procedures) - Respondent has provided evidence that\nR.M., C.D. and A.D. were trained in accordance with the written training plan - both C.D.\nand A.D. fall into the probationary category, and R.M. was assigned to maintenance in 2001.\nAs for the remaining personnel (M.K., K.J., J.C., R.C., and S.D.), Respondent has not\nprovided evidence that they have completed the required maintenance modular training as\nindicated above.\n(b) Operations Training (Operating Procedures) - Respondent has provided evidence that the\nseven operations personnel have completed the required training, in the required time frame.\nThus, Respondent was in compliance with 49.C.F.R. $ 193.2713.\nI The voluminous evidence submitted by Respondent appears more so to be directed at whether the personnel were\nqualified. That is not the issue in this case and my decision should not be read to imply that personnel were not\nqualified. The issue is whether they were trained in accordance with Respondent's training plan.\n5\n\n\n\nTherefore, based on the analysis above, I find Respondent to be in violation of 49 C.F.R.\n5193.2713 for failing to train several maintenance personnel in accordance with its written\ntraining plan. I also make no finding of violation with respect to the operations personnel.\nNotice Item 3\nItem 3 in the Notice alleged that Respondent had violated 49 C.F.R. 9 193.2715 for failing to\nprovide initial training for personnel responsible for security and subsequent continuing\ninstruction at intervals of not more than two (2) years. Specifically, Respondent failed to provide\ninitial training and continuing training to several contract security personnel.\nIn its Response-2, Respondent asserts that the regulations do not prescribe how many security\npersonnel are appropriate, do not require facilities to hire professional security forces, and do not\ndictate when initial training must be completed or in what manner. (Response-2, p.49)\nRespondent also asserts that with respect to physical security, \"nothing beyond fences, lights and\nwarning signs are required.\" Respondent further asserts that the \"extraordinary security\nmeasures\" that it has \"voluntarily implemented\" are exemplary. (Response-2, p.49)\nRespondent appears to be focusing on the quality of the training. While the quality of the\ntraining is important, it is not the issue. The regulation at issue - 49 C.F.R. 5 193.271 5 - states\nthat \"[plersonnel responsible for security . . . must be trained in accordance with a written plan . .\n. .\" 49 C.F.R. 5 2715(a) The key words that Respondent is not focusing on is \"in accordance\nwith a written plan.\"\nRespondent's security training plan is the Everett Marine Terminal Manual of Security\nProcedures. (Security Training Appendix, MSP) Respondent states with respect to the timing\nof security training that security personnel begin as probationary security officers with a\nprobationary period that \"can last up to six months.\" (Response-2, p.54, citing Id. at 7 3.5) A\nsecurity officer is then assigned to \"permanent\" upon successful completion of the probationary\nperiod. Id. Therefore, by six months from the date of being hired, security personnel are either\nlet go or become Permanent Security Officers.\nOnce a security officer becomes a Permanent Security Officer, that person has 90 days to\nsatisfactorily complete the training as outlined in the manual. (Id., citing Security Training\nAppendix, MSP at 7 4.2) Respondent then states that \"the 90 day period may be extended to 180\ndays at the discretion of the supervisor, see id. at 7 4.4\" thus giving up to 12 months from initial\nstart date to complete the modular training outlined in the training manual. (Id., citing Id. at 7\n4.4)\nI do not accept Respondent's assertions. The training plan, section 4 - Training Standards for\nSecurity Personnel - deals with security personnel who have reached Permanent status.\n(Security Training Appendix, MSP at 1 4 ) Once they reach permanent status, they are required\nto, within 90 days, satisfactorily complete the o u t l i d hzining pmgrzm. (u. at 7 4.2) That\ntraining \"will include, but is not limited to\" modules SE-1 through SE-4. (Security Training\nAppendix, MSP at 7 4.2) Section 4.4 Qualification Requirements, states \"All Officers are\n\n\n\nsubject to a ninety (90) day probationary period. Such period may be extended, at the discretion\nof the Security Site Supervisor, for a period not to exceed an additional ninety (90) days.\" (Ic-l. at\n7 4.4) Thus, according to the training plan, the probationary period of 90 days is not the same as\nthe 90 days to successfully complete the training. The probationary 90-day period is a\nmechanism to ensure that personnel are performing their duties or they will be removed. (See &I.\nat 7 4.4) Once past this period, they have 90 days to meet the training requirements. Therefore,\nRespondent's personnel have up to nine (9) months from initial state date (6 months to become\nPermanent + 90 days to complete training) to successfully complete the modular training, not\none year.\nBased on the analysis above, a review of the training records spreadsheet provided by\nRespondent at the hearing (See Security Training Appendix Supplement, Reconciliation) shows\nthat the following personnel were not trained in accordance with Respondent's written plan:\nInitials of\nRespondent's\nPersonnel\nStart Date End Date as of\nlast\ndocumentation\nreceived\nR.M.\nJ.D.\nM.B.\nJ.P.\nT.D.\nW.D.\nP.L.\nE.N.\nJ.B.\nA.S.\nMay 1995\nJulv 1995\nDecember 1997\nDecember 1998\nDecember 1998\nJun","truncated":true,"body_characters":83851}