{"operation":"document","citation":"CPF 120101006","title":"EASTERN GAS TRANSMISSION AND STORAGE, INC. — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2010-10-18","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.605(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120101006.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120101006.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120101006","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120101006","body":"Notice of Probable Violation involving EASTERN GAS TRANSMISSION AND STORAGE, INC.. PHMSA's enforcement data identifies the cited regulation as 192.605(a). The case was opened on 2010-10-18 and is reported as closed as of 2011-06-24. Proposed civil penalty: $60,000. Assessed civil penalty: $60,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120101006_Final Order_06092011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120101006/120101006_Final%20Order_06092011.pdf\n\n120101006_Final Order_06092011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120101006/120101006_Final%20Order_06092011_text.pdf\n\n120101006_NOPV PCP_10182010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120101006/120101006_NOPV%20PCP_10182010.pdf\n\n120101006_NOPV PCP_10182010_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120101006/120101006_NOPV%20PCP_10182010_text.pdf\n\n120101006_Operator Response_01062011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120101006/120101006_Operator%20Response_01062011.pdf\n\n120101006_Final Order_06092011_text.pdf\n\nJUN 9 2011\nMr. Jeffrey L. Barger\nVice President, Operations\nDominion Transmission, Inc.\n445 West Main Street\nClarksburg, WV 26301\nRe: CPF No. 1-2010-1006\nDear Mr. Barger:\nEnclosed please find the Final Order issued in the above-referenced case. It makes a finding of\nviolation and assesses a civil penalty of $60,000. The penalty payment terms are set forth in the\nFinal Order. This enforcement action closes automatically upon receipt of payment. Service of\nthe Final Order by certified mail is deemed effective upon the date of mailing, or as otherwise\nprovided 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. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety\nMr. Byron E. Coy, Director, Eastern Region, PHMSA\nMs. Susan A. Olenchuk, Esq.\nCounsel for Dominion Transmission, Inc.\nVan Ness Feldman, P.C.\n1050 Thomas Jefferson St. N.W.\nSeventh Floor\nWashington, DC 20007\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED [7005 1160 0001 0075 9305]\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\n)\nIn the Matter of )\n)\nDominion Transmission, Inc., ) CPF No. 1-2010-1006\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nOn May 8, 2009, pursuant to 49 U.S.C. § 60117, a representative of the West Virginia Public\nService Commission, as agent for the Pipeline and Hazardous Materials Safety Administration\n(PHMSA), Office of Pipeline Safety (OPS), conducted an investigation of an incident involving\nthe pipeline system operated by Dominion Transmission, Inc. (Dominion or Respondent).\n1 The\nincident occurred in the Rachet-Newberne gas storage field, which is located near Cox’s Mill,\nWest Virginia. Dominion operates 11,000 miles of natural gas transmission, gathering, and\nstorage pipeline and 21,800 miles of gas distribution pipeline in Ohio, West Virginia,\nPennsylvania, New York, Maryland, and Virginia. Dominion also owns the nation’s largest\nunderground gas storage system, constituting approximately 262,000 acres of operated\nleaseholds in New York, Ohio, Pennsylvania, and West Virginia.2\nThe investigation arose out of a third-party strike of Respondent’s TL-286 natural gas pipeline\nthat occurred on May 7, 2009. While clearing mud from an access road located within the gas\nstorage field, a Dominion contractor struck an 8-inch main trunk, rupturing it and causing a\nrelease of natural gas from an approximately 2-inch gouge.\nthe strike.\n3 No fires or fatalities resulted from\nAs a result of the investigation, the Director, Eastern Region, OPS (Director), issued to\nRespondent, by letter dated October 18, 2010, a Notice of Probable Violation and Proposed Civil\nPenalty (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that\nDominion had violated 49 C.F.R. § 192.605 and assessing a civil penalty of $60,000 for the\nalleged violation.\nDominion responded to the Notice by letter dated November 15, 2010, seeking additional time to\nfile a formal response and a copy of the agency’s case file. On November 18, 2010, PHMSA\n1 Dominion Transmission, Inc., is the interstate gas transmission subsidiary of Dominion Resources, Inc.\n2 SEC Form 10-K, Dominion Transmission, Inc., February 2011, at 5.\n3 Pipeline Safety Violation Report (Oct. 18, 2010) (Violation Report), at 5.\n\n\n\n2\ngranted the extension request and provided the case file. Dominion submitted a timely written\nresponse on January 6, 2011 (Response). The company did not contest the allegation of\nviolation but provided an explanation of its actions and requested that the proposed civil penalty\nbe reduced. Respondent did not request a hearing and therefore has waived its right to one.\nFINDING OF VIOLATION\nIn its Response, Dominion did not contest the allegation in the Notice that it violated 49 C.F.R.\nPart 192, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 192.605(a), which states:\n§ 192.605 Procedural manual for operations, maintenance, and\nemergencies.\n(a) General. Each operator shall prepare and follow for each\npipeline, a manual of written procedures for conducting operations and\nmaintenance activities and for emergency response. For transmission\nlines, the manual must also include procedures for handling abnormal\noperations. This manual must be reviewed and updated by the operator at\nintervals not exceeding 15 months, but at least once each calendar year.\nThis manual must be prepared before operations of a pipeline system\ncommence. Appropriate parts of the manual must be kept at locations\nwhere operations and maintenance activities are conducted.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.605(a) by failing to follow its own\nwritten procedures for conducting operations and maintenance activities. Specifically, the\nNotice alleged that Dominion conducted neither a field survey nor an engineering survey prior to\nclearing an access road, in violation of its operations and maintenance procedure, Guidelines for\nConstruction Activities on Rights of Way and in the Vicinity of Dominion Inc. By conducting\neither survey, Dominion would have discovered the potential consequences of using a bulldozer\nto scrape an access road running directly over Respondent’s line.\nfailure to follow its own written procedure, the company’s contractor was unaware of the exact\ndepth of the pipeline and did not take proper precautions.\n4 As a result of Dominion’s\nDominion indicated in its Response that it took various actions following the accident to improve\noperations, including a new procedure to “identify and protect any DTI pipelines in the vicinity\nof any DTI-managed well work in any DTI storage field.”5\nIn addition, the Respondent\ndeveloped a new form in order to integrate Field Operations and Gas Storage Personnel.\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated 49\nC.F.R. § 192.605(a) by failing to follow its own operations and maintenance procedures\nrequiring a field survey and an engineering study to determine the effects of any proposed\nactivity over its pipelines.\n4 “Norman Isenhart, the dozer operator, stated he was just scraping the mud off the access road when he hit the line.\nHe said he knew there was a pipeline crossing but had no idea how shallow the pipe was.” Violation Report, at 6.\n5 Response, at 2.\n\n\n\n3\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any\nrelated series of violations. In determining the amount of a civil penalty under 49 U.S.C.\n§ 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,\ncircumstances, and gravity of the violation, including adverse impact on the environment; the\ndegree of Respondent’s culpability; the history of Respondent’s prior offenses; the Respondent’s\nability to pay the penalty and any effect that the penalty may have on its ability to continue doing\nbusiness; and the good faith of Respondent in attempting to comply with the pipeline safety\nregulations. In addition, I may consider the economic benefit gained from the violation without\nany reduction because of subsequent damages, and such other matters as justice may require.\nThe Notice proposed a total civil penalty of $60,000 for the violation cited above.\nItem 1: The Notice proposed a civil penalty of $60,000 for Respondent’s violation of 49 C.F.R.\n§ 192.605(a), for failing to follow its own written procedures when conducting operations and\nmaintenance activities. Respondent advanced several arguments in support of a penalty\nreduction. First, Dominion argued that the Violation Report inappropriately identified the\nincident as occurring in or affecting a populated area, a High Consequence Area (HCA),6 an\nHCA “could affect” segment, a road or railroad crossing, a plant/station, or similar higher-risk\narea.7 Dominion argued that the affected area posed little or no threat to public safety, as it was\nprivately owned, inaccessible to the public, and rural in character. In support of its argument,\nDominion submitted several photographs and an employee statement “demonstrat[ing] the rural\ncharacter of the road.\n”8\nSecond, Dominion argued that the proposed penalty was excessive in comparison to one imposed\nby PHMSA in another case involving a violation of § 192.605(a). In that case, PHMSA reduced\na proposed civil penalty, based upon an operator’s showing that a release of gas did not threaten\na nearby school’s gas facilities.\n9 Dominion argued that this accident involved a similar lack of\nthreat to public safety, given the rural, non-public character of the incident site. Third, Dominion\ncontended that the statutory assessment criteria require “a reduction in the civil penalty due to\nthe remote, private, and secure nature of the road at the incident location.”10\nI address each of Respondent’s arguments in turn. First, Respondent argues that the Violation\nReport mistakenly identified the location of the noncompliance and that Box 4 should not have\n6 A “High Consequence Area” is an area defined as either a Class 3 location or Class 4 location under § 192.5; any\narea in a Class 1 or Class 2 location where the potential impact radius is greater than 660 feet and the area within a\npotential impact circle contains 20 or more buildings intended for human occupancy; or as further defined in 49\nC.F.R. § 192.903.\n7 Response, at 3.\n8 Response, Attachments C-D.\n9 In the matter of Southern Star Central Gas Pipeline, Inc., Final Order, CPF No. 3-2005-1015, 2006 WL 3825330,\nat 2-3 (Apr. 26, 2006).\n10 Response, at 3.\n\n\n\n4\nbeen checked.\n11 However, an underground gas storage field is properly categorized as a higher-\nlocations listed in Box 4, present a heightened level of risk because of the concentrated volume\nrisk “station/plant or similar area”12 Underground gas storage fields, like the other types of\nof flammable product, the presence of people in the vicinity, and the potentially grave\nconsequence in the event of an accident.\nSecond, Dominion argues that the penalty should be reduced because, in another case involving a\nviolation of 49 C.F.R. § 192.605(a), the penalty was reduced due to a finding of diminished\ngravity. I do not agree that a comparison of the two cases demonstrates a need to reduce the\nproposed penalty here. Under 49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I must consider the\nfacts and circumstances of each case individually and weigh each of the penalty assessment\ncriteria set out in the statute and regulations. Each violation involves a unique set of\ncircumstances that impacts the penalty assessment, including the gravity of the violation, an\noperator’s history of prior offenses, and the degree of culpability. Therefore, it is difficult to\ncompare the facts of various cases in an attempt to discern significant parallels or differences\namong them.\nFurthermore, Respondent’s argument that both cases involved a reduced impact on public safety\nis specious. In the Southern Star case cited by Respondent, PHMSA found that the operator\nfailed to follow required procedures after discovering abnormal operating conditions in its\nregulating facilities. Dominion argues that “PHMSA reduced the civil penalties for two separate\nviolations on the basis of the operator’s showing that a release of gas did not threaten to\noverpressurize a nearby school’s gas facilities.” Given the “rural, non-public character of the\nwell access road,” Respondent argues that a similar reduction is appropriate here because the\nincident location posed little threat to public safety.\nHowever, the penalty in Southern Star was not reduced simply because the operator\ndemonstrated a generalized, reduced impact on public safety. The operator specifically provided\nevidence of additional over-pressure protection equipment that adequately protected a\nneighboring school, notwithstanding the violation. In this case, Respondent has not offered any\nevidence that its violation was mitigated by additional measures or circumstances that would\nhave prevented the potential for serious consequences.\nThird, Respondent argues that the statutory assessment criteria under 49 C.F.R. § 190.225 (a)(1)\nand (b)(2) require a penalty reduction. I find this argument equally unpersuasive. Despite the\nrural character of the incident site, the gravity of the violation and the degree of Respondent’s\nculpability support the proposed penalty. While this incident did not result in injury or loss of\nlife, such consequences may have been largely fortuitous.\nFinally, the gravity of the violation here is heightened because Dominion’s failure to follow its\nown procedures was a causal factor in the accident.13\nPHMSA considers pipeline accidents,\n11 Box 4 is located in Section C1, Gravity, of the Violation Report. This Section enumerates certain criteria that\nmay affect the amount of a proposed penalty based upon the seriousness of the alleged violation. Box 4 applies if\n“[t]he location of the noncompliance . . . was in or affected a populated area, an HCA, an HCA ‘could affect’\nsegment, a road or RR crossing, a plant/station, or similar area.” Violation Report, at 5.\n12 Dominion acknowledges that “the pipeline is located in and serves the Racket-Newberne Gas Storage Field.”\n13 Violation Report, at 5.\n\n\n\n5\nregardless of whether they constitute “near-misses,” spills, property damage, injuries, or\nfatalities, to constitute serious threats to life, property and the environment under the federal\nPipeline Safety Laws. When regulatory violations lead directly to such accidents, it is logical\nand appropriate that they serve to elevate substantially the amounts of the penalties assessed. In\nthis case, the potentially disastrous consequences of the incident are directly linked to the\nRespondent’s violation of its own procedures and the regulation. Accordingly, based upon the\nforegoing, I assess Respondent a civil penalty of $60,000 for the violation of 49 C.F.R.\n§ 192.605(a).\nPayment of the civil penalty must be made within 20 days of service. Federal regulations\n(49 C.F.R. § 89.21(b)(3)) require such payment to 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 269039, Oklahoma City, Oklahoma 73125. The\nFinancial Operations Division telephone number is (405) 954-8893.\nFailure to pay the $ 60,000 civil penalty will result in accrual of interest at the current annual rate\nin accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to\nthose same authorities, a late penalty charge of six percent (6%) per annum will be charged if\npayment is not made within 110 days of service. Furthermore, failure to pay the civil penalty\nmay result in referral of the matter to the Attorney General for appropriate action in a district\ncourt of the United States.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5. Under 49 C.F.R. § 190.215, Respondent has the right to submit a Petition for\nReconsideration of this Final Order. The petition must be sent to: Associate Administrator,\nOffice of Pipeline Safety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor,\nWashington, DC 20590, with a copy sent to the Office of Chief Counsel, PHMSA, at the same\naddress. PHMSA will accept petitions received no later than 20 days after receipt of service of\nthe Final Order by the Respondent, provided they contain a brief statement of the issue(s) and\nmeet all other requirements of 49 C.F.R. § 190.215. The filing of a petition automatically stays\nthe payment of any civil penalty assessed but does not stay any other provisions of the Final\nOrder, including any required corrective actions. If Respondent submits payment of the civil\npenalty, the Final Order becomes the final administrative decision and the right to petition for\nreconsideration is waived.\n_________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":17665}