{"operation":"document","citation":"CPF 120040006","title":"RICHMOND, CITY OF — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2004-09-02","effective_on":null,"summary":"CLOSED notice of probable violation citing 191.5(a), 192.751(a), 192.805(b), 192.805(c).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120040006.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120040006.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120040006","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120040006","body":"Notice of Probable Violation involving RICHMOND, CITY OF. PHMSA's enforcement data identifies the cited regulations as 191.5(a),  192.751(a),  192.805(b),  192.805(c). The case was opened on 2004-09-02 and is reported as closed as of 2009-11-05. Proposed civil penalty: $80,000. Assessed civil penalty: $30,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120040006_Decision on Petition for Reconsideration_04022008_(04-111135S).pdf: https://primis.phmsa.dot.gov/enforcement-documents/120040006/120040006_Decision%20on%20Petition%20for%20Reconsideration_04022008_(04-111135S).pdf\n\nCPF NO 1-2004-0006 CITY OF RICHMOND.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120040006/CPF%20NO%201-2004-0006%20CITY%20OF%20RICHMOND.pdf\n\n120040006_Decision on Petition for Reconsideration_04022008_(04-111135S).pdf\n\nU.S. Department\nPipeline and Hazardous\nof Transportation\nWashington, DC 20590\n1200 New Jersey Ave. S.\nAPR 0 2 2008\nMateriais Safety\nAdministration\nVIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED\nMr. Christopher Beschler\nDirector, Department of Public Utilitie\nCity of Richmond\n730 East Broad Street\nRichmond, VA 23219\nRe: CPF No. 1-2004-0006\nDear Mr. Beschler:\nEnclosed is the decision issued on the petition for reconsideration filed by the City of\nRichmond in the above-referenced case. For the reasons specified therein, the City's petition\nis denied. Payment of the $30,000 civil penalty is due within 20 days of service. Your\nreceipt of this decision constitutes service under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nWillian Hate\nfor\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nJ.Dw/dd\nEnclosure\ncc: Mr. Byron Coy, Director, Eastern Region, OPS\nJoshua L. Menter, Esq., Miller, Balis & O'Neil\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nIn the Matter of\nCity of Richmond, Virginia,\nCPF No. 1-2004-0006\nPetitioner\n)\nDECISION ON PETITION FOR RECONSIDERATION\nOn January 12, 2006, pursuant to 49 C.F.R. § 190.213, the Associate Administrator for\nPipeline Safety (Associate Administrator) issued a Final Order in this case finding that\nPetitioner had violated 49 C.F.R. §§ 191.5 and 192.751(a) of the pipeline safety\nregulations and assessing a civil penalty in the amount of $30,000. In addition, the Final\nOrder withdrew two charges (Items 3 and 4) and correspondingly reduced the total\nproposed penalty from $80,000 to $30,000. The Final Order was issued following a\nhearing on a Notice of Probable Violation (NOPV) arising out of a failure investigation\nlocated at 1709 North 21\" Street, Richmond, Virginia.\nof an excavation fire at the City of Richmond's (Petitioner or City) pipeline facilities\nOn February 6, 2006,' Petitioner filed a petition for reconsideration of the Final Order\npursuant to 49 C.F.R. § 190.215, seeking reconsideration of the one remaining finding of\nviolation of 49 C.F.R. § 192.751(a) (Item 2) and its associated penalty. Petitioner argues\nthat the $25,000 penalty assessed for this violation should be withdrawn on the basis that\nPetitioner had taken all reasonable actions prior to the incident to ensure compliance witt\nhe finding and penalty do not further compliance with pipeline safety standards and tha\nPHMSA regulations. Petitioner further argues that the finding and penalty are not well\nsupported factually, legally, or on policy grounds.\nA final decision on reconsideration may be issued without further proceedings. 49 C.F.R.\n§ 190.215(e). Petitioner does not dispute the facts set forth in the Final Order, but seeks\nreconsideration of the finding of violation for Item 2 of the Final Order. That portion of\nthe Final Order found that Petitioner violated 49 C.F.R. § 192.751(a), which states:\n' 49 C.F.R. § 190.215 provides that petitions for reconsideration must be filed within 20 days after service\nof the final order upon the respondent and that \"[p]etitions received after that time will not be considered.\"\ntimely filed its petition.\nIn its Petition, Petitioner stated it did not receive the Final Order until January 17, 2006, and therefore\n\n\n\n2\nEach operator shall take steps to minimize the danger of accidental\neach potential source of ignition must be removed from the area and a\nThe Final Order found the City had violated § 192.751(a) by failing to take steps\nor as ons te dangero of ire or explosion special, it bund the presence.\nPetitioner \"failed to remove a construction light (a potential source of ignition)\nfrom close proximity to the abandonment area where natural gas was being vented\ninto open air.\" A light cord had been draped across the trench without placing a\nwire guard over the glass lens of the light. During the abandonment process, the\nlight fell into the trench and the glass lens shattered, thereby igniting a flash fire\nthat injured two workers. Final Order at 3.\nPetitioner argues that PHMSA should not find the City in violation \"for an act by\nemployees of an independent contractor which those [sic] employees clearly knew or\nshould have known was negligent and unsafe and that [the City] could not prevent despite\nall reasonable efforts.\" Petition at 2. In short, the City argues that it should not be held\nliable for the unsafe actions of its independent contractor, Henkels and McCoy, in\nconnection with a service abandonment procedure. Id. at 1.\nIn its initial response to the NOPV (Response), Petitioner contended that \"the duties for\ntaking appropriate action at the site were properly delegated to Henkels.\" Response at 2.\nIn its Petition, the City argues that the Final Order improperly found that the City had\ndelegated all responsibility for maintaining regulatory compliance to Henkels. On the\ncontrary, the City contends that it only delegated such responsibility to Henkels \"at the\nsite of the incident,\" and that it was necessary to do so because the City's own employees\nwere required to perform other safety duties elsewhere at the same time. Id. at 3\n(emphasis original). According to Petitioner, it would be \"arbitrary and inequitable\" to\nfind the City in violation of PHMSA regulations when there was nothing it could\nreasonably have done to prevent the contractor's unsafe acts. Id. at 5.\nThe Federal pipeline safety laws, however, make PHMSA's minimum safety standards\napplicable to \"owners and operators\" of pipeline facilities. See 49 U.S.C. § 60102(a)(2)(A).\nThe regulation at issue requires that \"each operator shall take steps\" to minimize the risk of\naccidental ignition. 49 C.F.R. § 192.751. An \"operator\" is defined as a person who engages in\nthe transportation of gas. 49 C.F.R. §§ 191.3, 192.3. Therefore, in order to prevail, the City\nmust demonstrate that Henkels and McCoy was an operator of the pipeline at the time of the\nfailure.\n\n\n\n3\nPetitioner has not sufficiently demonstrated through new evidence that Henkels and\nMcCoy was an operator of this pipeline at the time of the incident. The City's\n\"Attachment A\" to its Response contained a copy of the City's non-exclusive contract\nwith Henkels and McCoy. Under that contract, Henkels and McCoy's work was limited\nto the \"investigation, location and repair of leakage to gas and water services and mains\nand the relocation of gas meters on the City of Richmond gas and water system.\" Special\nprovisions of Henkels DPU Contract, at 1. Moreover, it states that \"[t]he City will\nprovide gas and water survey results and generate service orders with which the\nContractor will be required to locate and repair water leakage.\" Id. at 2.\nAs stated in the Final Order, the Federal pipeline safety laws (49 U.S.C. § 60101, et seq.)\nrequire the owners and operators of a natural gas pipeline system to comply with the\npipeline safety standards applicable to their system. Because Henkels and McCoy's\ncontractual obligations were limited to the repair of gas and water leaks, it did not\n\"operate\" the pipeline. Moreover, the City did not present evidence demonstrating that\nHenkels and McCoy contractually assumed the daily operations of the pipelines. Cf. In\nthe Matter of Potomac Electric Power Company and Support Terminal Services, Final\nOrder at 18, CPF No. 1-2000-6003 (June 2, 2004) (daily operations of the pipeline were\nST Services' responsibility pursuant to an operating agreement); Decision on Petition for\nReconsideration (Feb. 9, 2005). Therefore, the City has not produced sufficient evidence\nto demonstrate that Henkels and McCoy was an operator of the pipeline at the time of the\nincident. Accordingly, I find Henkels and McCoy was not an operator of the pipeline at\nthe time of the incident and that the City violated 49 C.F.R. § 192.751(a) when its\ncontractor failed to remove a potential source of ignition from the area where a hazardous\namount of gas was being vented from the City's pipeline system.\nAlternatively, Petitioner argues that the $25,000 penalty assessed in the Final Order\nshould be withdrawn; specifically, Petitioner contends that PHMSA based the penalty on\nthe application of one criterion, namely, the gravity of the violation. Petition at 6.\nPetitioner further argues that PHMSA neglected to consider all the criteria set forth in 49\nC.F.R. § 190.225 in determining the amount of a civil penalty, including \"any good\nfaith….. in attempting to achieve compliance\" and \"such other matters as justice may\nrequire.\" Id. The City contends that the record in the case demonstrates that it undertook\n\"numerous good faith efforts to achieve compliance with [PHMSA's] safety regulations\nand § 192.751(a) in particular.\" Id.\nContrary to Petitioner's argument, the penalty amount in the Final Order was not solely\nbased on the gravity of the violation. The Final Order specifically stated that all of the\ncriteria set forth in 49 C.F.R. § 190.225 were taken into consideration. Final Order at 5.\nThe Assessment of Penalty for Item 2 merely noted that the gravity of the violation was\n\"significant\" and that the City had not presented information warranting a reduction in\nthe proposed violation. Id. Petitioner has not presented any new facts or legal basis to\njustify a reduction or withdrawal of the penalty.\n\n\n\n4\nRelief Denied\nI have considered Petitioner's request for reconsideration. I find that Petitioner has not\npresented any new evidence or arguments warranting withdrawal of a finding of\nviolation, reduction in the civil penalty, or amendment to the terms of the Compliance\nOrder. Accordingly, the petition for reconsideration is denied. The terms of the Final\nOrder remain in effect, including assessment of the civil penalty in the amount of\n$30,000.\nPayment of the civil penalty must be made within 20 day of service. Federal regulations\n(49 C.F.R. § 89.21(b)(3)) require this payment be made by wire transfer, through the\nFederal Reserve Communications system (Fedwire), to the account of the U.S. Treasury.\nQuestions concerning wire transfers should be directed to: Financial Operations Division\n(AMZ-120), Federal Aviation Administration, Mike Monroney Aeronautical Center,\nP.O. Box 25082, Oklahoma City, OK 73125; (405) 954-4719.\nAccordingly, Petitioner is directed to comply with the terms of the Compliance Order\ncontained in the final Order within 60 days of service of this decision on reconsideration.\nThe Director, Eastern Region, PHMSA may grant an extension of time for\nnoncompliance with any of the terms of the Compliance order upon a written request by\nthe Petitioner demonstrating good cause for an extension.\nThis decision on reconsideration is the final administrative action in this proceeding.\nWilliant Gat\nAPR 0 2 2008\nfor\nJeffrey D. Wiese\nDate Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":11726}