{"operation":"document","citation":"CPF 120063002","title":"TOTAL PEAKING SERVICES — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2006-05-23","effective_on":null,"summary":"CLOSED notice of probable violation citing 193.2605(b).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120063002.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120063002.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120063002","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120063002","body":"Notice of Probable Violation involving TOTAL PEAKING SERVICES. PHMSA's enforcement data identifies the cited regulation as 193.2605(b). The case was opened on 2006-05-23 and is reported as closed as of 2008-01-30. Proposed civil penalty: $46,300. Assessed civil penalty: $46,300. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120063002_FinalOrder_01182008.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120063002/120063002_FinalOrder_01182008.pdf\n\n120063002_finalorder_01182008_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120063002/120063002_finalorder_01182008_text.pdf\n\n120063002_finalorder_01182008_text.pdf\n\nO\nU S Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\ni 200 New Jersey Ave S E\nWashrngton DC 20590\nJAN t 8 z03\nTimothy Kelley\nVice President Energy Services\nTotal Peaking Services, LLC\nSouthern Connecticut Gas Company\n77 Hartland Street\nEast Hartford, CT 06108\nRe: CPF No. 1-2006-3002\nDear Mr. Kelley:\nEnclosed is the Final Order issued in the above-referenced case It makes findings of\nviolation and assesses a civil penalty of $46, 300. The penalty payment terms are set forth\nin the Final Order. This enforcement action closes automatically upon payment. Your\nreceipt of the Final Order constitutes service of that document under 49 C. F. R. $ 190. 5,\nThank you for your cooperation in this matter.\nSincerely,\nJe rey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc (by email): Mr. Byron Coy, Director, Eastern Region, PHMSA\nMs. Denise Desautels, Esq. ,\nOffice of Chief Counsel, PHMSA\nMs. Anne O. McCrory, Esq. ,\nSenior Attorney, The Southern Connecticut Gas Co and\nTotal Peaking Services, LLC.\nMr. Philip Sher, DPUC\nCERTIFIED MML — RETURN RECEIPT RE UESTED\n\n\n\nDEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D. C. 20590\nIn the Matter of\n)\n)\n)\nTotal Peaking Services, LLC, and )\nSouthern Connecticut Gas Co.\n, )\nRespondent\n)\n)\n)\nCPF No. 1-2006-3002\nFINAL ORDER\nOn October 3-5, 2005, pursuant to 49 U. S. C. $ 60117, representatives of the State of\nConnecticut Department of Public Utility Control (\"DPUC\"), as interstate agent of the\nPipeline and Hazardous Materials Safety Administration (\"PHMSA\"), conducted an on-\nsite safety inspection of Respondent's liquefied natural gas facility and records in\nMilford, Connecticut (\"LNG Facility\" ). Respondent is comprised of the two companies\nindicated above. The indicated companies jointly own and operate the LNG Facility. As\na result of the inspection, the Director, Eastern Region, PHMSA, issued to Respondent,\nby letter dated May 23, 2006, a Notice of Probable Violation and Proposed Civil Penalty\n(\" Notice\" ). In accordance with 49 C. F. R, $ 190. 207, the Notice proposed finding that\nRespondent had violated 49 C. F. R. ) 193. 2605(b) and assessing a civil penalty of\n$46, 300 for the alleged violation.\nRespondent replied to the Notice by letter dated June 22, 2006 (\" Response\" ). In its\nResponse, Respondent offered information in explanation of the allegation of violation\nand sought elimination of the proposed civil penalty. In addition, by email dated June 26,\n2006, Respondent requested a hearing, which was subsequently held via telephone\nconference on September 6, 2006, with Mr. Jim Curry, Esquire, Office of Chief Counsel,\nPHMSA, presiding. At the hearing, Respondent, who was represented by counsel,\nconceded that it had violated 49 C. F. R, ) 193. 2605(b) but continued to seek elimination\nof the proposed penalty. At the conclusion of the hearing, Respondent was afforded the\nopportunity to submit a post-hearing brief within three (3) weeks. Respondent's counsel\ntimely submitted a post-hearing brief (\" Closing\" ) on September 26, 2006.\n\n\n\nFINDINGS OF VIOLATION\nItem 1: The Notice alleged that Respondent violated 49 C. F. R. Part 193. 2605(b), which\nstates:\n49 C. F. R. g 193. 2605 Maintenance procedures.\n(a) Each operator shall determine and perform, consistent with\ngenerally accepted engineering practices, the periodic inspections or\ntests needed to meet the applicable requirements of this subpart and\nto verify that components meet the maintenance standards prescribed\nby this subpart.\n(b) Each operator shall follow one or more manuals of written\nprocedures for the maintenance of each component, including any\nrequired corrosion control. The procedures must include:\n(1) the details of the inspections or tests determined under paragraph\n(a) of this section and their frequency of performance;. . . . .\nNotice Item 1 alleged that Respondent violated 49 C. F. R. $ 193. 2605(b) by failing to\nmeet required deadlines provided in its manual of written procedures for inspection of\ncertain fire protection components at the LNG Facility. At the inspection, Respondent\noffered a certain document, entitled \"TPS Inspection and Maintenance Plan, IMP-7. 3\nHazard Detection and Mitigation\" (\"IMP-7. 3\"), dated November 14, 2002, as its manual\nof written procedures. That document covered fire protection systems, including\nRespondent's gas detectors and water systems, and required that fire protection systems\nbe inspected at least semi-annually. Respondent also submitted inspection forms that\nindicated what types of activities Respondent was required to perform during semi-\nannual inspections.\nDuring DUPC's inspection of Respondent's records, inspectors discovered that\nRespondent had failed to meet its own semi-annual inspection requirement for four (4)\ngas detectors at the facility. Gas detectors test for the presence of flammable gas and are\nintended to alert Respondent to potentially dangerous leaks that could lead to fires or\nexplosions. DUPC inspectors discovered that Respondent had last inspected the gas\ndetector at the AC Control House on March 29, 2004, thereby missing the required\nJuly/August 2004, February 2005, and August 2005 inspection periods. DUPC\ninspectors also discovered that Respondent had not performed the required August 2005\ninspection of the gas detectors for the CP-30, CP-10 South, and CP-84A units.\nIn its Response, Respondent argued that its written policy did \"not indicate with any\nspecificity what exactly is required to 'inspect' the fire protection system, \"' Respondent\n' Response at 1\n\n\n\nfurther argued that it subjected all four (4) of the gas detectors to \"manual monthly\nreadings\" to ascertain that the gas-to-air ratios were below 20% of the lower explosive\nlevel (\"LEL\"). The LEL is the minimum concentration of gas in a given environment at\nwhich a fire or explosion could occur. Respondent argued that the monthly manual\nreadings were \"supportive of inspection activities for these units and consistent with the\n[Respondent's] written procedures. \"\nAlthough Respondent's monthly readings may have been \"supportive\" of inspection\nactivities, the fact remains that the required semi-annual tests were simply not performed\nduring the monthly manual readings. Respondent's inspection forms for semi-annual gas\ndetector inspections contain specific provisions for performing and recording the results\nof gas detector readings, zero checks, span checks, as well as inspection notes taken.\nRespondent's procedures also specifically require that personnel who are inspecting\nsystem components shall review the maintenance measures required from the previous\ninspection and make recommendations regarding required and recommended\n4\nmaintenance at the time of the gas detector inspections, Respondent's practice of\nmonthly manual readings does not satisfy the semi-annual inspection requirement set\nforth in Respondent's written procedures.\nThe requirement for LNG operators to follow their own inspection plans is an essential\npart of maintaining the safety of LNG and pipeline facilities. Section 193. 2605(b)\nrequirements for operators to have and follow written procedures derive, in part, from 49\nU. S. C. $ 60108(a)(1), which provides that \"each person owning or operating an intrastate\ngas pipeline facility or hazardous liquid pipeline facility shall carry out a current written\nplan (including any changes) for mspection and maintenance of each facility. . .\n\" Early in\nthe development of Federal pipeline safety law, Congress required operators to create,\nfile with the Secretary, and comply with their inspection and maintenance plans. ' The\nHouse Report on the Natural Gas Pipeline Safety Act of 1968 found that \"an important\npart of the program proposed by this legislation to achieve pipeline safety is the plan of\ninspection and maintenance according to which the company maintains surveillance of its\nlines and facilities. \"\nDuring the hearing and in its Closing, Respondent conceded that it had missed the\nrequired semi-annual inspection intervals for the four (4) gas detectors above. '\nAfter considering all of the evidence, I find Respondent violated ) 193. 2605(b) by failing\nto perform the semi-annual inspections for the AC Control House gas detector in\nJuly/August 2004, February 2005, and August 2005 and for the gas detectors for the CP-\n30, CP-10 South and CP-84A units in August 2005, in accordance with Respondent's\nwritten procedures set forth in IMP-7. 3.\n' Id. at 1-2.\n'Id at2,\n' IMP-7. 3, Procedure Guidelmes 17-25.\nSee The Natural Gas Pipeline Safety Act of 1968, P L 90-481\nHR. Rep No 1390 (1968), repnnted m U S Code Congressional and Administrative News, at 3239-40\n(1968) ' Closing at 2\n\n\n\nThis finding of violation will be considered a prior offense in any subsequent\nenforcement action taken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U. S. C. ) 60122, Respondent is subject to an administrative civil penalty not to\nexceed $100, 000 per violation for each day of the violation up to a maximum of\n$1, 000, 000 for any related series of violations. In addition, under 49 C. F. R. $190. 223(c)\nany person violating a standard or order under 49 U. S. C. $ 60103 (\" Standards for\nliquefied natiual gas pipeline facilities\" ) is subject to an additional administrative civil\npenalty not to exceed $50, 000 for each violation.\n49 U. S. C. ) 60122 and 49 C. F. R. ) 190. 225 require that in determining the amount of the\ncivil penalty, I consider the following criteria: nature, circumstances, and gravity of the\nviolation; degree of Respondent's culpability; history of Respondent's prior offenses;\nRespondent's ability to pay the penalty; good faith by Respondent in attempting to\nachieve compliance; the effect on Respondent's ability to continue in business; and such\nother matters as justice may require.\nThe Notice proposed a civil penalty of $43, 600 for violation of ) 193. 2605(b), The\nfailure of Respondent to follow its written procedures for the inspection and maintenance\nof gas detection equipment jeopardizes public safety, property, and the environment. The\nfailure to timely inspect and test gas detectors increases the risk that a gas leak may not\nbe detected and a fire or explosion may result. In its Response, at the hearing and in the\nClosing, Respondent offered arguments in support of its request for elimination of\nPHMSA's proposed civil penalty.\nFirst, in its Response, Respondent stated that once it had become aware of PHMSA's\nconcerns regarding the semi-annual inspections, Respondent reminded its personnel of\nthe importance of completing semi-annual inspections and all inspection reports.\nRespondent also stated that it instituted an additional procedure requiring supervisors to\nsign-off on each semi-annual inspection report to confirm completion of the inspection\nand associated reports. Though PHMSA appreciates Respondent's efforts to prevent\nfuture non-compliance, I find that Respondent's efforts after the violation occurred do not\nwarrant elimination or mitigation of the civil penalty. Respondent is obligated to comply\nwith the regulations at all times and will not be given credit for subsequent efforts to\nimprove performance.\nSecond, Respondent asked PHMSA to consider its practice of manual monthly readings\nof the gas detectors in determination of the gravity of the violation, As stated in the\nFindings of Violation, Respondent's manual monthly readings do not satisfy the semi-\nannual inspection requirement. The semi-annual testing and inspection in Respondent's\n' Response at 2.\nId.\n\n\n\nwritten procedures appears to be intended to allow Respondent to determine if its\ndetectors are functioning correctly. Manual monthly readings alone do not achieve this\nimportant safety goal. The regulations require that Respondent follow its written\nprocedures. I find that Respondent's practice of manual monthly readings does not\nwarrant mitigation of the civil penalty amount in this case.\nThird, Respondent argues that its CP-30 liquefaction turbine and CP-10 Unit were not in\nservice and that the gas sources to each were cut off at the time the respective gas\ndetector inspections should have occurred. ' Respondent argued that the safety of the\nfacility and employees was therefore not jeopardized by Respondent's \"failure to\ncomplete th[e] inspection\" of the CP-30 gas detector. \" Respondent noted that it now\ninspects the CP-30 detector according to company policy. '\nRespondent also argued that its CP-10 gas detector was redundant to another detector in\nthe same building and that the Unit serviced by the CP-10 detector was taken out of\nservice more than ten (10) years ago.\n' Respondent explained that it \"does not typically\nextend all of [its] equipment inspection practices to equipment that is integrally related to\nequipment which is no longer in service. \"' However, Respondent's records indicated\nthat, except for the August 2005 period at issue, it had historically inspected the CP-10\ndetector on the semi-annual schedule provided by IMP-7. 3. \"\nRespondent also argued that its failure to inspect the AC Control House detector was a\ngood faith mistake and was mitigated by the presence of two other detectors at the AC\nControl House building. Respondent argued that no significant safety issues were raised\nby its failure in inspect this detector. Respondent did not discuss its failure to inspect the\nCP-84A gas detector unit.\nRespondent underestimates the importance of adherence to its inspection procedures.\nWritten procedures are intended, in part, to prevent mistakes that could lead to accidents\nRespondent's failure to inspect the four (4) gas detectors in accordance with its written\nprocedures is not mitigated by the presence of other gas detectors nearby nor by gas\nsotnces allegedly cut off to the equipment served by the detectors. Accordingly, I find\nthat mitigation of the proposed civil penalty is not warranted,\nIt is noteworthy that this is not the first time Respondent has failed to test certain\ncomponents at its LNCJ Facility. In 2005, PHMSA issued a Final Order to Total Peaking\n\"Closing at 2-3. Respondent provides no evidence that the gas sources to CP-30 and CP-10 were in fact\ncut off. However, it is not necessary to estabhsh this fact to decide this matter, as it is not relevant to\nRespondent's failure to follow its procedures\n\" Closing at 3\n\"IJ\n14 Iy \" The Milford LNG plant semi-annual inspection records submitted by Respondent mdicate that the CP-10\ngas detector was inspected and tested in March 2004, July/August 2004 and February 2005\n\n\n\nServices, finding that it had failed to test certain equipment at its Milford LNG facility. '\nThe 2005 violation concerned a failure to test equipment according to certain deadlines.\nThe 2005 violation for failure to inspect and test equipment is similar to the finding of\nviolation in the present case.\nFor the foregoing reasons, having reviewed the record and considered the assessment\ncriteria, I assess Respondent a total civil penalty of $46, 300. There is nothing in the\nrecord indicating that payment of this penalty would adversely affect Respondent's\nability to continue in business.\nPayment of the $46, 300 civil penalty must be made within 20 days of service of this Final\nOrder. Federal regulations (49 C, F. R. ( 89. 21(b)(3)) require this payment be made by\nwire transfer, through the Federal Reserve Communications System (Fedwire), to the\naccount of the U. S. Treasury. Detailed instructions are contained in the enclosure.\nQuestions concerning wire transfers should be directed to: Financial Operations Division\n(AMZ-341), Federal Aviation Administration, Mike Monroney Aeronautical Center, P. O\nBox 25082, Oklahoma City, OK 73125; (405) 954-8893.\nFailure to pay the $46, 300 civil penalty will result in accrual of interest at the current\nannual rate in accordance with 31 U. S. C. $ 3717, 31 C. F. R. $ 901. 9 and 49 C. F. R. $\n89. 23. Pursuant to those same authorities, a late penalty charge of six percent (6%) per\nannum will be charged if payment is not made within 110 days of service. Furthermore,\nfailure to pay the civil penalty may result in referral of the matter to the Attorney General\nfor appropriate action in a United States District Court.\nUnder 49 C. F. R. $ 190. 215, Respondent has a right to submit a Petition for\nReconsideration of this Final Order. The petition must be received within 20 days of\nRespondent's receipt of this Final Order and must contain a brief statement of the\nissue(s). The filing of the petition automatically stays the payment of any civil penalty\nassessed. However if Respondent submits payment for the civil penalty, the Final Order\nbecomes the final administrative decision and the right to petition for reconsideration is\nwaived. The terms and conditions of this Final Order are effective on receipt.\ntjAN 1 8 20{}8\nDate Issued\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\n' See In the matter of Total Peaking Services, Final Order, CPF No 1-2005-3003 (Aug 18, 2005) (findmg\nthat Respondent violated 49 C F R $ 193 2619 for failing to test the low-temperature shutoff controllers at\ncertam vaporizer outlets before seasonal use)","truncated":false,"body_characters":17944}