# DISTRIGAS OF MASSACHUSETTS LLC — Notice of Probable Violation

- **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:** Not available
- **summary:** CLOSED notice of probable violation citing 193.2635, 193.2713, 193.2715, 193.2717.
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- **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.

Official case documents:

120023003_Decision on Petition for Reconsideration_ 05262009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120023003/120023003_Decision%20on%20Petition%20for%20Reconsideration_%2005262009.pdf

120023003_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

120023003_Final Order_11022005.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120023003/120023003_Final%20Order_11022005.pdf

120023003_Petition for Limited Reconsideration_11212005.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120023003/120023003_Petition%20for%20Limited%20Reconsideration_11212005.pdf

CPF No 1-2002-3003 Final Order.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120023003/CPF%20No%201-2002-3003%20Final%20Order.pdf

120023003_Decision on Petition for Reconsideration_ 05262009_text.pdf

MAY 26 2009
Mr. Francis J. Katulak
President
Distrigas of Massachusetts, LLC
18 Rover Street
Everett, MA 02149
Re: CPF No. 1-2002-3003
Dear Mr. Katulak:
Enclosed is the Decision on the Petition for Reconsideration filed by Distrigas of Massachusetts,
LLC, in the above-referenced case. For the reasons specified therein, the Decision affirms in
part the Final Order, dated November 2, 2005, but also grants the Petition in part by reducing the
civil penalty issued for Item 3 in said Final Order. Payment of the total reduced civil penalty of
$24,000 is due within 20 days following receipt of this Decision.
The Decision is the final administrative action in this proceeding. Your receipt of the document
constitutes service under 49 C.F.R. § 190.5.
Thank you for your cooperation in this matter.
Sincerely,
Jeffrey D. Wiese
Associate Administrator
for Pipeline Safety
Enclosure
cc: Mr. Byron Coy, Director, Eastern Region, OPS
CERTIFIED MAIL – RETURN RECEIPT REQUESTED [7005 1160 0001 0047 7162]



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, D.C. 20590
____________________________________
In the Matter of )
Distrigas of Massachusetts, LLC, ) CPF No. 1-2002-3003
)
)
)
Petitioner. )
____________________________________)
DECISION ON PETITION FOR RECONSIDERATION
BACKGROUND
In accordance with 49 U.S.C. § 60118 and 49 C.F.R. § 190.213, the Pipeline and Hazardous
Materials Safety Administration (PHMSA) issued a Final Order in this matter on November 2,
2005 (Final Order), finding that Distrigas of Massachusetts, LLC (Distrigas or Petitioner),
committed certain violations of the agency’s Liquefied Natural Gas (LNG) Facilities Federal
Safety Standards regulations (49 C.F.R. Part 193). The Final Order found, inter alia, that
Petitioner violated 49 C.F.R. § 193.2715 by failing to provide certain contract security personnel
(CSP) with initial security training in accordance with the company’s own security training
plan.
1 The Final Order assessed a civil penalty for said violation in the amount of $20,000.2
Under 49 C.F.R. § 190.215, a respondent has the right to file a petition for reconsideration of a
final order issued pursuant to § 190.213. Although the regulations do not require that the agency
consider repetitious information, arguments or petitions, a respondent may request consideration
of additional facts or arguments, provided that the petitioner indicates a valid reason why those
facts or arguments were not presented prior to issuance of the final order.3
The purpose of this
rule is to allow a respondent to present information or arguments that were unavailable or
unknown prior to issuance of the final order and to allow the agency to correct any errors in the
final order, not to provide the respondent with the right to an administrative appeal or de novo
review.
1 Final Order, Item 3.
2 The Final Order assessed a total civil penalty in the amount of $30,000. The Petition does not seek
reconsideration of the $10,000 penalty assessed for Item 2
3 49 C.F.R. § 190.215.



2
On November 22, 2005, Petitioner filed a Petition for Reconsideration (Petition) of the Final
Order, seeking reconsideration of the finding of violation and the $20,000 civil penalty assessed
for Item 3.
company’s imprecise summarization of its own records gave PHMSA the incorrect impression
that Distrigas failed to comply with its own security training plan. Petitioner’s arguments are
discussed in greater detail below.
4 The Petition does not request the consideration of additional facts but claims that the
This case arose out of an onsite safety inspection conducted by a representative of the Eastern
Region, Office of Pipeline Safety (OPS), PHMSA, on November 26 to 30, 2001, at an LNG
terminal operated by Distrigas and located along the Mystic River in Everett, Massachusetts
(LNG Plant). At this facility, LNG tanker vessels deliver LNG for storage and distribution. As a
result of probable violations discovered during the inspection, PHMSA issued a Notice of
Probable Violation, Proposed Civil Penalty and Proposed Compliance Order (Notice) to
Petitioner on June 17, 2002. The Notice alleged that Petitioner violated 49 C.F.R. § 193.2715 by
failing to provide adequate training for certain of its CSP. Specifically, the Notice alleged that
Distrigas failed to train the CSP to (1) recognize breaches of security; (2) carry out security
procedures under 49 C.F.R. § 193.2903 relating to their duties; (3) be familiar with basic plant
operations and emergency procedures that were needed to effectively perform their duties; and
(4) recognize conditions where security assistance was needed.
The Notice alleged that Petitioner failed in 50 cases to train CSP in accordance with Petitioner’s
written LNG facility security procedures. In its Response to the Notice, Petitioner contested all
of the allegations and requested an informal hearing, which was held on November 14, 2002,
with an attorney from the Office of Chief Counsel, PHMSA, presiding. At the hearing,
Petitioner provided PHMSA with certain training records not provided during the inspection.
Petitioner later provided PHMSA with a post-hearing submittal (Closing) dated December 13,
2002. Based on these records and the Closing, I found in the Final Order that Distrigas violated
§ 193.2715 by failing to provide security training for 10 of its security personnel in accordance
with the company’s training plan. In its Petition, Distrigas contests the findings and penalties
assessed for eight of the 10 individuals.
DISCUSSION
Item 3 of the Final Order found that 10 of Petitioner’s CSP did not receive the training that the
company’s own written Training Standards for Security Personnel required. This finding was
supported by Petitioner’s own records, including a training records reconciliation spreadsheet
(“Reconciliation”) provided by Distrigas at the hearing. According to the Final Order, the
company’s records showed that these 10 individuals did not receive all of their requisite training
4 The Petition incorrectly referred to two separate actions filed by PHMSA against Distrigas (CPF No.
1-2002-3003 and CPF No. 1-2002-3004-M), even though the substance of the Petition dealt solely with the former.
The latter was a Notice of Amendment proceeding issued simultaneously with the Notice in this case. PHMSA
closed CPF No. 1-2002-3004-M by letter dated April 23, 2003.



3
within nine months of their start date, as required by the company’s training plan. Petitioner
seeks reconsideration of this finding on two grounds.
First, Distrigas asserts in its Petition, for the first time, that it was not required under PHMSA
regulations to maintain training records for three of the 10 individuals.
5 According to Petitioner,
49 C.F.R. § 193.2719(b) provides that an LNG operator is required to maintain training records
only for one year “after personnel are no longer assigned duties at the LNG plant.” Distrigas
presented evidence showing that these three individuals ceased employment at the company
more than one year prior to November 26, 2001, the first day of the PHMSA inspection.
company argued that since it was not required to keep training records for these employees as of
the date of the inspection, it could not be charged with violating the training requirements for
those employees under § 193.2715. Even though Petitioner did not raise this argument in its
Response for these three individuals, as it did for many other employees, I believe it is a
legitimate defense. Accordingly, I find that at the time of the safety inspection, Petitioner was no
longer required to maintain training records for security personnel Basinisi, Peterson, and Deters,
and that the allegations relating to these three individuals are therefore withdrawn.
6 The
requirements of § 193.2715 and its own training plan, as set forth in the “Distrigas Everett
Marine Terminal Manual of Security Procedures,” issued March 1997 (“Security Procedures” or
“MSP”). The Final Order found that the Reconciliation showed that these five individuals had
not received the required training within nine months of their start dates. In its Petition, Distrigas
contends that PHMSA failed to consider other company records, in addition to the
Reconciliation, that demonstrated compliance with the regulation.
Second, Petitioner asserts that five other CSP7 did receive security training that met the
A closer examination of Petitioner’s security procedures and training requirements is necessary
to determine whether these individuals received their required training. The Security Procedures
state:
Section 4: Training Standards for Security Personnel
4.1 Objective of the Training Program . . .
4.2 Training Outline
Within 90 days of Permanent Security Officer status (refer to Section 3.5;
Permanent Security Officer), Officers will be required to satisfactorily
complete a program of “On the Job Training” (OJT) that will include,
5 The three employees were identified as Basinisi, Peterson, and Deters.
6 The Reconciliation, included in Petitioner’s Security Training Appendix Supplement, Book Three of Three, and
presented at the hearing, shows that the three individuals ceased work at Distrigas prior to November 26, 2000.
7 The five employees were identified as Doten, Loud, Newell, Bursey, and Snider.



4
but is not limited to the following areas of instruction: . . .
4.2.1.4 SE-1 Recognizing Breaches of Security
4.2.1.5 SE-2 Security Procedures
4.2.1.6 SE-3 Operations and Maintenance Orientation
4.2.1.7 SE-4 Security Assistance.
8
“Permanent Security Officers” are defined as “those with more than six months assigned to the
account.”9 All such permanent personnel were required to receive the four training “modules,”
which are listed above as “SE-1” through “SE-4.”10 The Security Procedures do not provide any
alternative to the completion of these four specific modules.
According to the Reconciliation and the other training records submitted by Petitioner, four of
the five individuals in question eventually received their SE-1 – SE-4 security modular training,
but not within 12 months of their initial start dates.
own records showed that four of the five CSP received their training late and that one individual,
Mr. Doten, never completed the training at all.
11 The Final Order found that the company’s
In its Petition, Distrigas argues that these five individuals did in fact receive all their required
training but that such fact might not be readily apparent from the company’s records. The
Petition states:
However, as noted on the Reconciliation, the five contract security personnel
in question each received initial training
shortly after each person’s start date.
That training is identified on the reconciliation as “Lobby Train” and “Gate
1,” but that is only a shorthand way to identify the documentation date, as
8 Security Procedures, Section 4.
9 Security Procedures, Section 3.5.
10 In its Closing, Distrigas provided further explanation of its security training requirements:
Contract security personnel (CSPs) begin as “probationary security officers”.
MSP, ¶ 3. During their probation, security officers are given further on-the-
job training and supervision as their performance is assessed. Id., MSP, ¶ 3.5
Upon successful completion of the [6-month] probationary period, a security officer is
assigned to “permanent” status. Id. Permanent security officers should take
the SE modules within 90 days of their assignment, see id. at ¶ 4.2, but the
90 day period may be extended to 180 days at the discretion of the supervisor,
see id. at ¶ 4.4. Thus, in conformity with the MSP, SE modular training might
not occur for 9 or even 12 months after an initial start date. [emphasis added]
Closing, at 54.
11 All of the five except Doten completed their SE-1 – SE-4 training on December 1, 2001, but each of the four
started work on or before August 2000, more than a year prior to completion of the training.



5
opposed to a description of the extent of the training. As detailed in the
subsequent sections of the two-volume Security Training Appendix
Supplement, the “1999 Training” included instruction in the EMT modules.
Specifically, as the Training Agenda reveals, those employees were trained
under the “1999 Training” program by Armand Santacroce and John Clifford,
and received “instruction” in the modules as required by the MSP training
plan. (emphasis added). . . Training for these five contract security guards was
provided on various dates. The individuals documented completion of this
training on the dates noted above....
12
Petitioner appears to assert that these CSP completed all of their training on the dates shown in
the Petition under the column labeled “Initial Training Date.” For each, the “Initial Training
Date” is the same as the date that each individual completed their “Gate 1” and “Lobby Train”
training. Neither Petitioner’s records nor the Petition reflect that the five individuals underwent
the entire SE-1 – SE-4 security modular training. Instead, Petitioner asserts that a review of all
of its training records shows that while the training received by these five individuals may have
been “different in form” from the SE-1 – SE-4 modules, they nevertheless “confirm instruction
in the modules to satisfy the requirements of the then-effective written training plan, the MSP, as
training courses, referred to as the “Gate 1” and “Lobby Train” trainings, were the same as or
receive.
described in the Final Order.”13 In other words, Petitioner seems to argue that these other two
equivalent to the SE-1 – SE-4 security modular training that each new hire was required to
Based upon a careful review and reconsideration of Petitioner’s voluminous training records and
Security Procedures, it is clear that the “Security Lobby” and “Gate 1” training courses that these
five CSP received did not include and were not equivalent to the full SE-1 – SE-4 security
module training.14
The “Training Checklist Security Lobby” and “Training Checklist Gate 1”
training documents show that these courses taught employees how to man particular security
posts at the LNG plant, i.e., the “Security Lobby” and “Gate 1.” It is true that they included
certain security elements, such as “Access Control,” “Visual Observations,” “Visitor Control,
”
“Vehicle Access,” and “Visitor’s Passes.
” But when one compares the topics covered by these
two courses with those covered by the full SE-1 – SE-4 modules, it is apparent that the former
12 Petition for Reconsideration, at 3, 4. Note that in the Petition, the only “dates noted above” are each
of the five employees’ “Start Dates” and “Initial Training Dates.”
13 Petition, at 4.
14 The training records submitted for these five CSP are essentially identical. In addition to the “Security Lobby”
and “Gate 1” courses, it appears that they also received training related to “Dock Control Officer” and “Ship
Security Post 1,” “Ship Security Post 2,” and other courses related to dock security. These other courses relate to
facilities that are under the jurisdiction of the U.S. Coast Guard and are not relevant to LNG Plant security training
requirements under 49 C.F.R. Part 193 See Response, at 52.



6
neither included nor were equivalent to the SE-1 – SE-4 modules. In fact, they failed to cover
certain other critical security elements contained in the SE-1 – SE-4 modules, including:
• The [Distrigas of Massachusetts, LLC] Manual of Security Procedures;
• Physical Security Systems;
• Each security position, patrol schedule, and method of patrolling;
• Operations and Maintenance Orientation;
• Notifications of supervisory security personnel; and
• Security Response to Abnormal Conditions.
Petitioner presented evidence, through the company’s “1999 Training Agenda” and the affidavit
of one of its trainers, Armand Santacroce, to show that the training provided to these five CSP
included or was equivalent to the SE-1 – SE-4 modules. However, I do not find this evidence
persuasive. While the “1999 Training Agenda” lists certain subjects that reference three of the
four modules,
this agenda. Furthermore, the “1999 Training Agenda” is merely an agenda, not a credible
record of the substantive content of the modules themselves.
15 there is no evidence as to which, if any, CSP ever received training according to
On the contrary, the only training records submitted by Petitioner that appear to follow the “1999
Training Agenda” are the two courses (i.e., “Training Checklist Security Lobby” and “Training
Checklist Gate One”) that these five individuals apparently received. These two are listed as
subsets of the “Security Procedures” training shown on the “1999 Training Agenda,
” further
confirming that these two courses were but a small portion of the overall SE-1 –SE-4 training
required.
16 Finally, the affidavit of Armand Santacroce is unhelpful because it does not even
purport to show that these five individuals actually received the full training required.17
The strongest basis, however, for upholding the findings and penalties in the Final Order
regarding these five CSP is found in the admissions made by Petitioner in its Response. In that
document, Distrigas acknowledged that four of the five individuals at issue had not completed all
of their SE-1 – SE-4 training modules within the required time frame. The admissions related to
the following individuals:
15 “Operations and Manitainence Orientation [sic],” “Recognizing Security Breaches,” and “Security Procedures.”
16 The Petition also contends that under the 1999 Training Agenda, CSP received training in “EMT modules.”
Petitioner is presumably referring to emergency medical technician training. While this training was likely very
valuable, it is of little relevance to the security training requirements in the Security Procedures of 49 C.F.R.
§ 193.2715.
17 In his affidavit, Mr. Santacroce merely states that he “prepared an overview of the plant and presented it to
attendees on August 7, 1999.” See Affidavit of Armand Santacroce, ¶ 5.



7
Snider — The Response stated that “all but two [employees] have documented
modular training within one year of their start date, as required by the Manual of
Security Procedures. . . The two exceptions are Richard Messenger and Alan
Snider. . . Snider started at Distrigas on August 1, 2000 and had initial training
that same week. He completed SE training on December 1, 2001 and February
2, 2002 [emphasis added].”18
Doten — The Response acknowledged that Petitioner’s records showed
that seven security personnel did not receive SE modular training. One of those
19
was Doten.
Loud — The Response stated that “Loud’s security assignment was terminated
on January 21, 2002, but he had previously completed SE-1 through SE-4 on
December 1, 2001.
Distrigas on September 1, 1999, more than a year prior to his completion of
security training on December 1, 2001.
”20 The Reconciliation shows that Loud began work at
Bursey
— The Response stated that “Bursey started on February 1, 2000,
completed the SE modules on December 1, 2001 and February 2, 2002. . .”
21
These admissions were neither repudiated nor contradicted by any of the evidence in the record
or by the Petition. Furthermore, Petitioner presented no new facts or arguments to support its
contention that its own records were misconstrued or that these five CSP actually received all of
the training they were required to take. Accordingly, upon reconsideration of all the evidence in
the case, I affirm the findings of violation and civil penalties imposed in Item 3 of the Final
Order relating to Petitioner’s failure to provide employees Doten, Loud, Newell, Bursey, and
Snider with timely initial security training, in violation of the company’s own Security
Procedures and § 193.2715.
However, I do hereby grant Petitioner’s request to withdraw the findings of violation and
penalties imposed under Item 3 of the Final Order relating to Petitioner’s failure to provide
employees Basinisi, Peterson, and Deters with timely initial security training, as Petitioner was
not required to retain training records for these individuals as of the date of the safety inspection.
In accordance with that finding, I am proportionally reducing the civil penalty for Item 3 of the
Final Order from $20,000 to $14,000. As noted above, Petitioner did not seek reconsideration of
18 Response, at 61.
19 Response, at 57-58.
20 Response, at 59.
21 Response, at 61.



8
the other findings of violation and penalty under Item 2 in the amount of $10,000. Therefore, I
assess a total civil penalty against Petitioner under the Final Order in the amount of $24,000.
Payment of the civil penalty must be made within 20 days of service. Federal regulations (49
C.F.R. § 89.21(b)(3)) require that the payment be made by wire transfer, through the Federal
Reserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed
instructions are contained in the enclosure. Questions concerning wire transfers should be
directed to: Financial Operations Division (AMZ-341), Federal Aviation Administration, Mike
Monroney Aeronautical Center, P.O. Box 25082, Oklahoma City, OK 73125; (405) 954-8893.
This Decision on Reconsideration is the final administrative action in this proceeding.
__________________________ __________________________
Jeffrey D. Wiese Date Issued
Associate Administrator
for Pipeline Safety

CPF No 1-2002-3003 Final Order.pdf

U.S. Department
of Transportation
Pipeline and
Hazardous Materials Safety
Administration
400 Seventh Street, S.W.
Washington, D.C. 20590
NOV - 2 2005
Francis J. Katulak
Senior Vice President Operations
Distrigas of Massachusetts Corporation
18 Rover Street
Everett, Massachusetts 02149
Re: CTF NO. l-2OO2-3OO3
Dear Mr. Katulak:
Enclosed is the Final Order issued by the Associate Administrator for Pipeline Safety in the
above-referenced case. It makes findings of violation and assesses a civil penalty of $30,000. It
further finds that you have completed the actions specified in the Notice required to comply with
the pipeline safety regulations. When the civil penalty is paid, this enforcement action will be
closed. Your receipt of the Final Order constitutes service of that document under 49 C.F.R.
fj 190.5.
Sincerely,
James Reynolds
Pipeline Compliance Registry
Office of Pipeline Safety
Enclosure
CERTIFIED MAIL - RETURN RECEIPT REQUESTED



DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, DC 20590
In the Matter of )
Distrigas of Massachusetts LLC )
)
1
)
Respondent. )
CPF NO. 1-2002-3003
FINAL ORDER
On November 26-30, 2001 and April 12, 2002, pursuant to 49 U.S.C. $ 601 17, a representative
of the Office of Pipeline Safety (OPS), conducted an on-site pipeline safety inspection of
Respondent's facilities and records at the Distrigas Everett Marine LNG Terminal in Everett,
Massachusetts. As a result of the inspection, the Director, Eastern Region, OPS, issued to
Respondent, by letter dated June 17, 2002, a Notice of Probable Violation, Proposed Civil
Penalty, and Proposed Compliance Order (Notice). In accordance with 49 C.F.R. $ 190.207, the
Notice proposed finding that Respondent had violated 49 C.F.R. §§ 193.2635, 193.271 3,
193.2715 and 193.2717 and proposed assessing a civil penalty of $220,000 for the alleged
violations. The Notice also proposed that Respondent take certain measures to correct the
alleged violations.
Respondent responded to the Notice by letter dated July 19, 2002. (Response) Respondent
contested all the allegations and requested a hearing. The hearing was held on November 14,
2002 in Washington, DC. At the hearing, Respondent provided many boxes of materials
supporting its arguments. After this hearing, Respondent provided additional information on
December 13,2002. (Response-2).
FINDINGS OF VIOLATION
Notice Item 1
Item 1 in the Notice alleged that Respondent had violated 49 C.F.R. $193.2635 for failing to
inspect components protected from atmospheric corrosion within a three year interval.
Specifically, the Notice stated that during the OPS inspection, the inspector discovered
atmospheric corrosion at the interface of existing carrier pipes and their respective metal pipe
supports. (Notice, p.2) The inspector noted that it appeared that the paint coating had degraded.
Id. When the OPS inspector asked for evidence to demonstrate the last time that an atmospheric -
corrosion inspection was performed in that area; Respondent could not produce any evidence.
Id. -



Respondent, in its Response, asserted that the burden is on OPS to acquire sufficient evidence to
prove the violation and that Respondent does not need to affirmatively prove that it satisfied the
regulation. (Response-2, p.4) In support of Respondent's corrosion program, Respondent
asserted that "its prior long-standing procedure for monitoring and addressing corrosion was safe
and effective." and that it "operates a facility that is constantly manned and constantly inspected
through visual inspection made by operations and maintenance personnel on regular rounds." a.
Respondent added that "these observations were not typically documented by written records" as
indicated in its Maintenance Records procedure EMT- 16M which states that "no written records
will be kept of routine daily and weekly checks and observations . . . ." (Response-2, pp. 5-6)
Respondent further indicated that in an extensive corrosion investigation that it conducted prior
to the hearing, no serious corrosion problems were found. (Response-2, p. 6) Lastly,
Respondent requested that, in light of this information and its efforts in resolving the proposed
compliance order, this item be closed without an adverse finding.
With respect to Respondent's first point, yes - OPS does have the burden of ultimate persuasion.
However, once OPS has presented a prima facie case showing that Respondent has violated a
regulation, the burden then shifts to the Respondent who must present evidence to rebut the
prima facie case.
In this case, OPS alleged in the Notice that Respondent failed to inspect components protected
from atmospheric corrosion within a three year interval. OPS interviewed Respondent's
Operations Manager who indicated that no records existed to show that the inspections for
atmospheric corrosion were performed. (See Violation Report, p.3, fl 12 and 14a) The pipeline
safety laws state, "To enable the Secretary to decide whether a person owning or operating a
pipeline facility is complying with . . . standards prescribed . . . under this chapter [49 USCS
$ 5 60101 et seq.], the person shall - - (1) maintain records . . . and provide information . . .; and
(2) make the records, . . . and information available . . . ." (49 U.S.C.S. $601 17(b)) Based on
the above, OPS has presented a prima facie case and Respondent has not presented evidence to
rebut that prima facie case. Therefore, I find Respondent in violation of 49.C.F.R. $ 193.2635.
Notice Item 2
Item 2 in the Notice alleged that Respondent had violated 49 C.F.R. 193.2713 for failing to
conduct initial training and continuing instruction for all operations personnel and all
maintenance personnel within a two-year interval in accordance with its written plan.
Specifically, Respondent's records revealed that for (a) Maintenance training - three employees
had never received training and several others had either not received initial training or refresher
training within the two-year interval; and (b) Operational training - that four employees did not
receive initial training and several others had not received refresher training at any time or within
the two-year interval.
In one of the Response documents entitled - Response of Distrigas of Massachusetts LLC. to
Notice of Probable Violation, Proposed Civil Penalty and Proposed Compliance Order, and
Notice of Amendment (Response-2) - Respondent allots 42 pages of the 98 page Response
document to this issue. Furthermore, Respondent provided thirteen (13) volumes of materials



which contain various training records for operations and maintenance personnel. Respondent
argues that the violation should be withdrawn because the "records confirm that Distrigas
provides and implements a comprehensive, written plan for initial and continuing training . . . ."
(Response-2, p 7)
OPS based the proposed violation for Item 2 on its review of the Everett Marine Terminal
Personnel Training Program (EMT PTP) and training records submitted by Respondent during
the inspection. Those training records solely corresponded to the operations and the maintenance
training modules. (Notice, pp. 2-4)
In its Response-2, Respondent asserts:
(1) Modular training is only one part of a "more comprehensive program that includes
'coordinated training, education and career developments ... based on the needs of
[Distrigas] and all its employees."' (Response-2, p.9 [citing Source Materials Appendix,
SSPM-28, Training Guidelines, Policy, fi 1.1.11)
(2) "Training is based on regulatory requirements, the needs of the employee's job
description and the discretion of the employee's supervisor or Training Administrator."
Id. (citing Source Materials Appendix, SSPM-28, Training Guidelines, Training
Administrator and Manager, fi 3 and Training Plans 7 4)
(3) "In addition to or in substitution for the written modular training sessions, an employee's
training may include safety meetings, toolbox talks, videos, CD ROMs, policy specific
training (hands on, in-house instruction), courses and programs at outside schools, on the
job training with qualified supervisors and more." Id. (citing Source Materials
Appendix, SSPM-28, Training Guidelines, 7 4)
(4) "[Tlhe regulations do not specify how the continuing instruction is to be performed. That
aspect is left to the company's discretion, provided that the O&M employees 'keep
... current on the knowledge and skills they gained in the program of initial instruction."'
Id. (citing 8 193.271 3(b)) -
While Respondent did provide extensive documentation of training taken by the employees in
question, the training regulations require a written plan of training. (49 C.F.R. $ 193.2713)
Respondent appears to rely on the Training Guidelines, SSPM-28, for its written plan.
Respondent indicates that "[tlhis written training program, SSPM-28, incorporates the EMT PTP
modular training." (Response-2, p.10) Respondent asserts that it can use its discretion as to how
the training can be performed. (See number 4 above) However, both the Operations Procedures
Training Modules and the Maintenance Procedures Training Modules list as trainees - All
permanent operations and maintenance personnel, respectively. (Source Materials Appendix,
EMT PTP) These procedures do not leave room for a supervisor's discretion to substitute other
training. Furthermore, SSPM-28 states that training must be completed satisfactorily and that
satisfactory completion is defined for graded courses as a final grade of 80% or better. (Source
Materials Appendix, SSPM-28, p.5) Taking together that all permanent operations and
maintenance personnel are required to take the respective operations and maintenance modular
training and that graded courses, such as the operations and maintenance modular training, must
be completed satisfactorily, I find that in accordance with Respondent's written plan, the



modular training is required training for its personnel. Based on this analysis, the issue turns to
whether Respondent's operations and maintenance personnel were trained in accordance with the
written plan which requires completion of the sections regarding Operating and Maintenance
procedures1.
Before addressing those specifics, I must first address the statute of limitations that deals with
these proceedings. Under 28 USC $ 2462, cases must be "commenced" within 5 years of an
alleged violation. In this instance, the case was commenced, with the issuance of the Notice, on
June 17,2002. Therefore, the only alleged violations that can be addressed as part of this action
are those that occurred on or after June 17, 1997. Based on this date restriction, the only alleged
violations that remain are:
Operations: H.C.G - Module 4 - exceeded biennial (Jan 98 - Nov 00)
B.Y - no modular training in 1998
P.M - all modules - exceeded biennial (Feb 96 - Nov 98)
J. S. - no modular training in 1998
L.B. - only received module 4 training in 2001
D. S. - no modular training in 200 1
P.D. -no modular training in 2001
Maintenance: M.K - no modular training since assigned to maintenance in 1999
K.J. - no modular training since assigned to maintenance in 1999
J.C. -no modular training since assigned to maintenance in 1999
R.C. - no modular training in 2000
S.D. - no modular training in 2000
R.M. - no modular training in 1998 and 2000
C.D. - no modular training in 2001
A.D. - no modular training in 2001
After a thorough review of the evidence submitted, I find the following:
(a) Maintenance Training (Maintenance Procedures) - Respondent has provided evidence that
R.M., C.D. and A.D. were trained in accordance with the written training plan - both C.D.
and A.D. fall into the probationary category, and R.M. was assigned to maintenance in 2001.
As for the remaining personnel (M.K., K.J., J.C., R.C., and S.D.), Respondent has not
provided evidence that they have completed the required maintenance modular training as
indicated above.
(b) Operations Training (Operating Procedures) - Respondent has provided evidence that the
seven operations personnel have completed the required training, in the required time frame.
Thus, Respondent was in compliance with 49.C.F.R. $ 193.2713.
I The voluminous evidence submitted by Respondent appears more so to be directed at whether the personnel were
qualified. That is not the issue in this case and my decision should not be read to imply that personnel were not
qualified. The issue is whether they were trained in accordance with Respondent's training plan.
5



Therefore, based on the analysis above, I find Respondent to be in violation of 49 C.F.R.
5193.2713 for failing to train several maintenance personnel in accordance with its written
training plan. I also make no finding of violation with respect to the operations personnel.
Notice Item 3
Item 3 in the Notice alleged that Respondent had violated 49 C.F.R. 9 193.2715 for failing to
provide initial training for personnel responsible for security and subsequent continuing
instruction at intervals of not more than two (2) years. Specifically, Respondent failed to provide
initial training and continuing training to several contract security personnel.
In its Response-2, Respondent asserts that the regulations do not prescribe how many security
personnel are appropriate, do not require facilities to hire professional security forces, and do not
dictate when initial training must be completed or in what manner. (Response-2, p.49)
Respondent also asserts that with respect to physical security, "nothing beyond fences, lights and
warning signs are required." Respondent further asserts that the "extraordinary security
measures" that it has "voluntarily implemented" are exemplary. (Response-2, p.49)
Respondent appears to be focusing on the quality of the training. While the quality of the
training is important, it is not the issue. The regulation at issue - 49 C.F.R. 5 193.271 5 - states
that "[plersonnel responsible for security . . . must be trained in accordance with a written plan . .
. ." 49 C.F.R. 5 2715(a) The key words that Respondent is not focusing on is "in accordance
with a written plan."
Respondent's security training plan is the Everett Marine Terminal Manual of Security
Procedures. (Security Training Appendix, MSP) Respondent states with respect to the timing
of security training that security personnel begin as probationary security officers with a
probationary period that "can last up to six months." (Response-2, p.54, citing Id. at 7 3.5) A
security officer is then assigned to "permanent" upon successful completion of the probationary
period. Id. Therefore, by six months from the date of being hired, security personnel are either
let go or become Permanent Security Officers.
Once a security officer becomes a Permanent Security Officer, that person has 90 days to
satisfactorily complete the training as outlined in the manual. (Id., citing Security Training
Appendix, MSP at 7 4.2) Respondent then states that "the 90 day period may be extended to 180
days at the discretion of the supervisor, see id. at 7 4.4" thus giving up to 12 months from initial
start date to complete the modular training outlined in the training manual. (Id., citing Id. at 7
4.4)
I do not accept Respondent's assertions. The training plan, section 4 - Training Standards for
Security Personnel - deals with security personnel who have reached Permanent status.
(Security Training Appendix, MSP at 1 4 ) Once they reach permanent status, they are required
to, within 90 days, satisfactorily complete the o u t l i d hzining pmgrzm. (u. at 7 4.2) That
training "will include, but is not limited to" modules SE-1 through SE-4. (Security Training
Appendix, MSP at 7 4.2) Section 4.4 Qualification Requirements, states "All Officers are



subject to a ninety (90) day probationary period. Such period may be extended, at the discretion
of the Security Site Supervisor, for a period not to exceed an additional ninety (90) days." (Ic-l. at
7 4.4) Thus, according to the training plan, the probationary period of 90 days is not the same as
the 90 days to successfully complete the training. The probationary 90-day period is a
mechanism to ensure that personnel are performing their duties or they will be removed. (See &I.
at 7 4.4) Once past this period, they have 90 days to meet the training requirements. Therefore,
Respondent's personnel have up to nine (9) months from initial state date (6 months to become
Permanent + 90 days to complete training) to successfully complete the modular training, not
one year.
Based on the analysis above, a review of the training records spreadsheet provided by
Respondent at the hearing (See Security Training Appendix Supplement, Reconciliation) shows
that the following personnel were not trained in accordance with Respondent's written plan:
Initials of
Respondent's
Personnel
Start Date End Date as of
last
documentation
received
R.M.
J.D.
M.B.
J.P.
T.D.
W.D.
P.L.
E.N.
J.B.
A.S.
May 1995
Julv 1995
December 1997
December 1998
December 1998
Jun
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