{"operation":"document","citation":"CPF 120120007","title":"CHARLOTTESVILLE, CITY OF — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2012-12-13","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.161(c), 192.317(b), 192.353(c), 192.357(a), 192.479(a), 192.707(c), 192.739(a), 192.805(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120120007.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120120007.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120120007","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120120007","body":"Notice of Probable Violation involving CHARLOTTESVILLE, CITY OF. PHMSA's enforcement data identifies the cited regulations as 192.161(c),  192.317(b),  192.353(c),  192.357(a),  192.479(a),  192.707(c),  192.739(a),  192.805(a). The case was opened on 2012-12-13 and is reported as closed as of 2014-12-16. Proposed civil penalty: $88,500. Assessed civil penalty: $79,300. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120120007_Closure Letter_12162014.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120120007/120120007_Closure%20Letter_12162014.pdf\n\n120120007_Closure Letter_12162014_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120120007/120120007_Closure%20Letter_12162014_text.pdf\n\n120120007_Final Order_08132014.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120120007/120120007_Final%20Order_08132014.pdf\n\n120120007_Final Order_08132014_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120120007/120120007_Final%20Order_08132014_text.pdf\n\n120120007_NOPV_PCP_PCO_12132012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120120007/120120007_NOPV_PCP_PCO_12132012.pdf\n\n120120007_NOPV_PCP_PCO_12132012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120120007/120120007_NOPV_PCP_PCO_12132012_text.pdf\n\n120120007_Operator Response_01142013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120120007/120120007_Operator%20Response_01142013.pdf\n\n120120007_Closure Letter_12162014_text.pdf\n\nU.S. Department Of Transportation Pipeline and 609.989.2171\nHazardous Materials\nSafety Administration\n820 Bear Tavern Road, Suite 103\nWest Trenton, NJ 08628\nEXPRESS OVERNIGHT DELIVERY\nDecember 16, 2014\nMr. Maurice Jones\nCity Manager\nCity of Charlottesville\n305 4th Street NW\nCharlottesville, VA 22903\nCPF 1-2012-0007\nDear Mr. Jones:\nOn August 13, 2014, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\nissued to the City of Charlottesville a Final Order in the above-referenced case. This Order\nincluded a Compliance Order and Civil Penalty assessment. Based on our review of the\ndocumentation you provided, and confirmation of payment of the civil penalty, it has been\ndetermined that you have complied with the terms of this Order.\nAccordingly, this case is now closed and no further action is contemplated with respect to the\nmatters involved in this case. Thank you for your cooperation in this matter.\nSincerely,\nByron Coy, PE\nDirector, Eastern Region\nPipeline and Hazardous Materials Safety Administration\nCc: Mr. James Hotinger, VA SCC\n\n120120007_Final Order_08132014_text.pdf\n\nAUGUST 13, 2014\nMr. Maurice Jones\nCity Manager\nCity of Charlottesville\n305 4th Street NW\nCharlottesville, VA 22903\nRe: CPF No. 1-2012-0007\nDear Mr. Jones:\nEnclosed please find the Final Order issued in the above-referenced case. It withdraws one\nallegation of violation, makes other findings of violation, assesses a reduced civil penalty of\n$79,300, and specifies actions that need to be taken by the City of Charlottesville to comply with\nthe pipeline safety regulations.\nThe penalty payment terms are set forth in the Final Order. When the civil penalty has been paid\nand the terms of the compliance order completed, as determined by the Director, Eastern Region,\nthis enforcement action will be closed. Service of the Final Order by certified mail is deemed\neffective upon the date of mailing, or as otherwise provided 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, P.E., Director, Eastern Region, OPS\nJoshua L. Menter, Esq., Miller, Balis & O-Neil, PC, Counsel for City of Charlottesville\nMs. Lauren Hildebrand, P.E., Director of Public Utilities, City of Charlottesville\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\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)\nCity of Charlottesville, Virginia, ) CPF No. 1-2012-0007\na municipal corporation, )\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nBetween January 24 and March 9, 2011, pursuant to 49 U.S.C. § 60117, a representative of the\nVirginia State Corporation Commission (VA SCC), as agent for the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), conducted an on-\nsite pipeline safety inspection of the facilities and records of the City of Charlottesville\n(Charlottesville, City, or Respondent) in Charlottesville, Virginia. The City operates a\nmunicipally-owned natural gas distribution system, consisting of 316 miles of main and 17,828\nservice lines.\n1\nAs a result of the inspection, the Director, Eastern Region, OPS (Director), issued to Respondent,\nby letter dated December 13, 2012, a Notice of Probable Violation, Proposed Civil Penalty and\nProposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the Notice\nproposed finding that Charlottesville had committed various violations of 49 C.F.R. Part 192 and\nproposed assessing a civil penalty of $88,500 for the alleged violations. The Notice also\nproposed that Respondent be required to take certain measures to correct the alleged violations.\nCharlottesville responded to the Notice by letter dated January 14, 2013 (Response). The City\ncontested four of the eight allegations, offered additional information in response to the Notice,\nand requested that the proposed civil penalty be reduced or eliminated. Respondent did not\nrequest a hearing and therefore has waived its right to one.\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 192, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 192.739(a), which states:\n1 http://www.charlottesville.org/ (last accessed May 2, 2013)\n\n\n\n2\n§ 192.739 Pressure limiting and regulating stations: Inspection and\ntesting.\n(a) Each pressure limiting station, relief device (except rupture discs),\nand pressure regulating station and its equipment must be subjected at\nintervals not exceeding 15 months, but at least once each calendar year, to\ninspections and tests to determine that it is\n(1) In good mechanical condition . . . .\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.739(a) by failing to demonstrate\nthat each pressure regulating station and its equipment had been inspected and tested at intervals\nnot exceeding 15 months, but at least once each calendar year.\n2 Specifically, the Notice alleged\nthat Charlottesville could not provide inspection records to demonstrate that the Rt. 29 North,\nRutledge, and McIntire Park pressure regulating stations had been inspected and tested at the\nrequired intervals.\nThe Notice provided the following chart of violations:\nStation Inspection Date Inspection Date Calendar Year\nMissed\nNumber of Days Late\nRt. 29 North 12/2/2008 1/8/2010 2009 8\nRutledge 12/2/2008 1/8/2010 2009 8\nMcIntire Park 12/8/2009 1/5/2011 2010 5\nRespondent did not contest this allegation of violation. Accordingly, based upon a review of all\nof the evidence, I find that Respondent violated 49 C.F.R. § 192.739(a) by failing to demonstrate\nthat each pressure regulating station and its equipment had been inspected and tested at intervals\nnot exceeding 15 months, but at least once each calendar year.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 192.161(c), which states:\n§ 192.161 Supports and anchors.\n(a) …\n(c) Each support or anchor on an exposed pipeline must be made of\ndurable, noncombustible material and must be designed and installed as\nfollows:\n(1) Free expansion and contraction of the pipeline between supports\nor anchors may not be restricted.\n(2) Provision must be made for the service conditions involved.\n(3) Movement of the pipeline may not cause disengagement of the\nsupport equipment.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.161(c) by failing to install supports\non an exposed pipeline that were made of durable, noncombustible material. Specifically, the\n2 Pipeline Safety Violation Report (December 13, 2012) (Violation Report), Exhibit A4.\n\n\n\n3\nNotice alleged that Charlottesville had installed wooden blocks that were not fastened to the\nbuilding as support for an exposed roof main.\nRespondent did not contest this allegation of violation. Accordingly, based upon a review of all\nof the evidence, I find that Respondent violated 49 C.F.R. § 192.161(c) by failing to install\nsupports on an exposed pipeline that were made of durable, noncombustible material.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 192.317(b), which states:\n§ 192.317 Protection from hazards.\n(a) ….\n(b) Each aboveground transmission line or main, not located offshore\nor in inland navigable water areas, must be protected from accidental\ndamage by vehicular traffic or other similar causes, either by being placed\nat a safe distance from the traffic or by installing barricades.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.317(b) by failing to protect an\naboveground transmission line or main from accidental damage by vehicular traffic, either by\nplacing the line at a safe distance from traffic or by installing barricades. Specifically, the Notice\nalleged that Charlottesville did not protect an aboveground regulator station from accidental\nvehicular damage by placing it either at a safe distance from traffic or by installing barricades at\nEast Market Street and Old Preston Avenue in Charlottesville. According to the Notice,\ninspectors photographed the regulator sitting 12 feet from the edge of the road, where the road\ncurves at East Market Street and Old Preston Avenue.\nIn its Response, Charlottesville raised three defenses. First, it argued that the regulator station\nhad been located at a safe distance from traffic since its initial installation, as the station was\nlocated 12 feet from the road’s concrete curb line, the road had a six-inch-high curb, the area had\na 25 miles per hour (mph) speed limit, and the regulator was located on the inside of a curve in\nthe road. Respondent further argued that because of the angle of the road, a speeding car might\nmiss the curve but would travel away from the regulator station. Second, Respondent argued\nthat the VA SCC had never before suggested that the regulator station was not at a safe distance.\nThe City pointed out that the regulator station had been inspected in November 2007, and the\nVA SCC had not communicated any concerns regarding its safe distance from traffic at that time.\nThird, Charlottesville argued that, in an effort to be proactive and ensure compliance with\n49 C.F.R. § 192.317(b), the Chief Gas Engineer of Charlottesville had made repeated requests,\nover a three-year period, for guidance or an interpretation of the phrase “at a safe distance from\nthe traffic.” Respondent stated that after three years with no response, the City provided the VA\nSCC with its interpretation, suggesting that “safe distance” should be a function of the speed\nlimit, the road edge construction (i.e., concrete curb versus edge of pavement), and other\nconsiderations. Still, Charlottesville received no response from the VA SCC until it received the\nNotice alleging this violation.\nIn response to Respondent’s arguments, PHMSA asserted that it was unaware of any verbal or\nwritten requests by Charlottesville to the VA SCC for guidance or an interpretation of 49 C.F.R.\n§ 192.317(b). PHMSA also asserted that Respondent could have searched PHMSA’s public\n\n\n\n4\nwebsite for enforcement guidance or sought informal guidance and interpretive assistance, in\naccordance with 49 C.F.R. § 190.11. The agency further argued that Respondent could have\nobtained commercially available software such as WinDOT, industry standards, or industry\nassociation information as sources of pipeline safety guidance and regulation interpretations.\nMoreover, PHMSA explained that the agency had issued an informal interpretation of the phrase\n“at a safe distance from traffic.” The agency interpretation of 49 C.F.R. § 192.317(b), dated\nOctober 9, 1995, states, in relevant part:\nAs to §192.317(b), we have not adopted criteria to judge the safety of\ndistances separating aboveground gas pipeline facilities from vehicular\ntraffic. So a safe distance would be whatever a reasonable and prudent\noperator would conclude is safe under the circumstances, considering\nrelevant factors such as the speed limit, the direction of traffic, the terrain,\nand any natural barriers.\nConsidering the arguments and evidence, I find that the regulation does not provide a “bright\nline” test, but the 1995 interpretation of 49 C.F.R. § 192.317(b) does provide useful clarification\nof the phrase “at a safe distance from traffic.” In fact, the 1995 interpretation addresses the very\nquestion that the City had asked the VA SCC: “What criteria can be used to determine if the\npipeline is a ‘safe distance from the traffic’ under §192.317(b)?” by providing a description of\nthe relevant factors that need to be considered.3 While barricades can provide additional\nprotection from vehicular traffic, I find that under the particular factual scenario here,\nCharlottesville reasonably considered the relevant factors, such as the speed limit (25 mph), the\ndirection of traffic (angle of the road slowing the traffic), and any natural barriers (12 feet from\nthe road’s concrete curb line and a six-inch high curb). Based upon the foregoing, I hereby order\nthat Item 3 of the Notice be withdrawn.\nItem 4: The Notice alleged that Respondent violated 49 C.F.R. § 192.353(c), which states:\n§ 192.353 Customer meters and regulators: Location.\n(a) …\n(c) Each meter installed within a building must be located in a\nventilated place and not less than 3 feet (914 millimeters) from any source\nof ignition or any source of heat which might damage the meter.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.353(c) by failing to install a meter\nwithin a building in a ventilated place and at a distance not less than three feet from any potential\nsource of ignition or heat which might damage the meter. Specifically, the Notice alleged that\nCharlottesville had installed a meter in a location without proper ventilation, near a wood storage\narea, and less than three feet from electrical equipment inside a building in the 1730 block of\nAllied Street in Charlottesville.\nIn its Response, Respondent raised two defenses. First, the City argued that the Notice\n3 On file with PHMSA.\n\n\n\n5\nincorrectly alleged that the City had installed the meter less than three feet from electrical\nequipment inside a building. Charlottesville explained that there was no electrical equipment\ninside the building when it installed the meter and that the electrical equipment was installed\nlater. Charlottesville acknowledged that the electrical equipment had been installed 2.5 feet from\nthe meter but argued that the distance was only slightly less than three feet. Second, Respondent\nargued that, given the size of the room, PHMSA incorrectly concluded that the space was not\nsufficiently ventilated. Respondent also questioned any suggestion by PHMSA that wood, as a\nsource of ignition, would interact with leaking gas to trigger an immediate combustion.\nPHMSA acknowledged that there was some exchange of air in the room, but argued it was\nneither adequate to ensure natural venting nor adequate enough to consider the large space\nproperly ventilated. The agency also noted that the spontaneous combustion of wood in the\nbuilding was not the issue but that the wood could be ignited by some other event or activity.\nAny such ignition would have the potential to cause fire damage to the gas meter, the rapid\nrelease of natural gas, and an explosion inside the building.\nThe regulation requires that each meter installed within a building be located in a ventilated\nplace not less than three feet from any source of ignition. When the meter was installed, there\nwas no source of ignition or any source of heat within three feet of the meter. However, the later\ninstallation of the electrical equipment by the operator, less than three feet from the meter, and a\nwood storage area created the condition cited in the Notice. Accordingly, based upon a review\nof all of the evidence, I find that Respondent violated 49 C.F.R. § 192.353(c) by failing to have a\nmeter in a ventilated place within a building and less than three feet from any source of ignition.\nItem 5: The Notice alleged that Respondent violated 49 C.F.R. § 192.357(a), which states:\n§ 192.357 Customer meters and regulators: Installation.\n(a) Each meter and each regulator must be installed so as to minimize\nanticipated stresses upon the connecting piping and the meter.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.357(a) by failing to install a meter\nso as to minimize anticipated stress upon the connecting pipeline and meter. Specifically, the\nNotice alleged that during the audit, VA SCC inspectors observed and photographed a meter\ninside a building in the 1730 block of Allied Street, but the meter had no supports to limit the\npossible horizontal movement of the pipe and the meter.\nIn its Response, Charlottesville did not contest this allegation of violation but described the\nCity’s post-inspection corrective measure of moving the meter outside the building so that it had\nproper supports to minimize stresses. Accordingly, based upon a review of all of the evidence, I\nfind that Respondent violated 49 C.F.R. § 192.357(a) by failing to install a meter to minimize\nanticipated stress upon the connecting pipeline and meter.\nItem 6: The Notice alleged that Respondent violated 49 C.F.R. § 192.479(a), which states:\n§ 192.479 Atmospheric corrosion control: General.\n(a) Each operator must clean and coat each pipeline or portion of\n\n\n\n6\npipeline that is exposed to the atmosphere, except pipelines under\nparagraph (c) of this section.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.479(a) by failing to clean and coat\neach pipeline or portion of pipeline exposed to the atmosphere. Specifically, the Notice alleged\nthat during the audit, VA SCC inspectors observed and photographed (1) approximately 320 feet\nof inadequately coated two-inch main secured to a row of buildings and feeding eight meters to\nvarious commercial customers at North Wing Barracks Road, and (2) a two-inch main on the\nside of and across the roof of a building in the 1730 block of Allied Street in Charlottesville.\nRespondent did not contest these allegations of violation. Accordingly, based upon a review of\nall of the evidence, I find that Respondent violated 49 C.F.R. § 192.479(a) by failing to clean and\ncoat each pipeline or portion of its pipeline exposed to the atmosphere.\nItem 7: The Notice alleged that Respondent violated 49 C.F.R. § 192.707(c), which states:\n§ 192.707 Line markers for mains and transmission lines.\n(a) …\n(c) Pipelines aboveground. Line markers must be placed and\nmaintained along each section of a main and transmission line that is\nlocated aboveground in an area accessible to the public.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.707(c) by failing to place and\nmaintain line markers along exposed sections of main lines at two aboveground locations at\nNorth Wings Barracks Road and in the 1730 block of Allied Street. Specifically, the Notice\nalleged that during their audit, VA SCC inspectors observed and photographed two locations that\ndid not have line markers: (1) a two-inch main secured to a row of buildings feeding eight meters\nto various commercial customers at North Wing Barracks Road; and (2) a two-inch main on the\nside of the building in the 1730 block of Allied Street.\nIn its Response, Charlottesville contested both alleged violations, arguing that neither pipe\nsegment was a transmission or main line. Instead, the City argued that they constituted service\nlines, for which no line markers were required, according to the definition of “service line” found\nat 49 C.F.R. § 192.3. In both cases, the City asserted that the pipeline segments distributed gas at\nthe same pressure at which the gas was delivered to the customer. Thus, Respondent argued,\neach pipe segment should be considered a service manifold, i.e., part of a service line.4\nCharlottesville cited an e-mail from the Virginia SCC in support of its argument that the pipe\nsegment at Barracks Road could not be considered a service line because it was upstream of a\nservice regulator that reduced the pressure to the same pressure at which the gas was delivered to\nthe customer. Charlottesville argued that the VA SCC’s interpretation, as reflected in the e-mail,\nalso supported the City’s argument that the Allied Street pipeline segment must also be\nconsidered part of a service line because it was located downstream of a service regulator that\nreduced the pressure of that segment to the level at which the gas was delivered to a small\n4 Response, at Attachment 2.\n\n\n\n7\nnumber of small commercial customers.\nFirst, I disagree with the City’s interpretation as to what constitutes a “main” versus a “service\nline” at both locations. The City relies too heavily on whether a pipe segment lies downstream\nor upstream of a regulator. The real crux of the issue is the pressure at which gas is ultimately\ndelivered to the customer. Section 49 C.F.R. § 192.3 defines “service line” as follows:\nService line means a distribution line that transports gas from a common\nsource of supply to an individual customer, to two adjacent or adjoining\nresidential or small commercial customers, or to multiple residential or\nsmall commercial customers served through a meter header or manifold. . . .\nThe “common source of supply” in the service line definition is the same “common source of the\nsupply” found in the definition of a “main” in 49 C.F.R § 192.3:\nMain means a distribution line that serves as a common source of supply for\nmore than one service line.\nA key aspect of the definition of a “main” is that it serves as a common source of supply for\nmore than one service line. As shown on page 3 of Exhibit B03 in the Violation Report for the\nBarracks Road location, there is more than one meter set and therefore more than one service\nline along the common source of the supply identified as a main line on pages 1 and 2 of Exhibit\n3. The main lines were correctly identified in the Exhibits. Each of the respective service lines\nstarts from the tap off the common source of supply through the meter set. Since each customer\nis served through a line that has its own meter and service regulator that reduces the pressure to a\nparticular customer, the line serving that group of customers must be a main line.\nAdditionally, the City mischaracterized the regulators at each location as “service regulators.” A\nservice regulator is defined in 49 C.F.R § 192.3 as follows:\nService regulator means the device on a service line that controls the pressure\nof gas delivered from a higher pressure to the pressure provided to the\ncustomer. A service regulator may serve one customer or multiple customers\nthrough a meter header or manifold.\nSpecifically, the City argued that the Fischer 627R at the Barracks Road location could be\nconsidered a service regulator. As such, according to Charlottesville, any portion of the pipeline\nsegment downstream of that regulator could be considered service line.\nThis is an incorrect interpretation. As mentioned by both the operator and VA SCC, the Fischer\n627R regulator reduces the pressure from about 90 to 30 psig. Each of the meters off the taps in\nExhibit B3 are then further reducing pressure from the common source of supply (or main)\nrunning at 30 psig to the customer pressure 7” W.C. Even though the Fischer 627R is\ncontrolling pressure from a higher pressure (i.e. 90 psig), it is not a service regulator since the 30\npsig is not the pressure at which gas is ultimately delivered to the customer(s). As correctly\nstated by the VA SCC, if the customers were taking 30 psig directly, the Fischer 627 R would be\nconsidered a service regulator. However, the customers are taking a pressure of 7” W.C., so the\n\n\n\n8\nFischer 627 R cannot be considered a service regulator. The meter sets that reduce the pressure\nto the customers’ pressure of 7” W.C. are considered service regulators. The same type of\nanalysis holds true for the main line at Allied Street.\nThe segment of two-inch pipe running up the building in the 1730 block of Allied Street (shown\non pg. 3 in Exhibit B 08), also operates at about 30 psig. The evidence indicates that this line\nprovides a common source of supply for more than one service line, which aligns with the\ndefinition of a main. The service lines begin at the point where they branch off from the main as\neach of the service lines feed from the main. The main has a separate customer meter and\nregulator to further reduce the gas to inches of water column pressure provided to the\ncustomers. The two-inch pipeline is not a service line, as the City contends, since the pressure in\nthe line is not the same as the pressure at which gas is provided to the customers. The regulator\nshown on page 3 of Exhibit B 08 is not a service regulator since it simply reduces pressure from\napproximately 90 psig to approximately 30 psig. If the 30 psig were fed directly to a customer,\nthe line running up the building could be considered a service line and the regulator could be\nconsidered a service regulator; however, the 30 psig is not the pressure provided to the customers\nand the regulator is not reducing the pressure to a level provided to the customers. Each of the\nother regulators on the respective service lines that reduce the 30 psig pressure to the inches of\nwater column pressure provided to customers is considered a service regulator.\nAccordingly, after considering all of the evidence, I find that Respondent violated\n49 C.F.R. § 192.707(c) by failing to place and maintain line markers along exposed sections of\nmain lines at two aboveground locations, North Wings Barracks Road and in the 1730 block of\nAllied Street.\nItem 8: The Notice alleged that Respondent violated 49 C.F.R. § 192.805(a), which states:\n§ 192.805 Qualification program.\nEach operator shall have and follow a written qualification program.\nThe program shall include provisions to:\n(a) Identify covered tasks…\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.805(a) by failing to have and\nfollow a written operator qualification (OQ) program that identified the calibration and\nmaintenance of field transmitters used in the City’s telemetry system as a covered task.\nSpecifically, the Notice alleged that the VA SCC staff reviewed the City’s OQ program and\nfound no evidence of a qualification program for City employees who calibrate and maintain\npressure transducers used in the City’s telemetry system.\nIn its Response, Charlottesville contested the allegation of violation on a number of grounds.\nThe City argued that the calibration of telemetering equipment is not a covered task because\ncalibration is not required anywhere in Part 192. Additionally, the City asserted that after the\nOQ regulations were promulgated, it met with the VA SCC to identify and define what activities\nconducted by its personnel should be included as covered tasks. Calibration of telemetering\nequipment was not one of them. Since the OQ program was developed over 10 years ago,\nneither PHMSA nor the VA SCC had ever indicated that the City’s written qualification program\nwas not in compliance with § 192.805. The City conceded that § 192.741 requires an operator in\n\n\n\n9\ncertain circumstances to install telemetering, but argued that it does not require that such\nequipment be calibrated.\nI disagree. Section 192.801(b) defines a covered task as any activity that (1) is performed on a\npipeline facility, (2) is an operations or maintenance task, (3) is performed as a requirement of\nPart 192, and (4) affects the operation or integrity of the pipeline. Section 192.741(c) states that\nif there are indications of abnormal pressure, the regulator and auxiliary equipment must be\ninspected and the unsatisfactory operating conditions corrected. Since the calibration of\ntelemetering equipment is performed on a pipeline facility, is part of the operation of the pipeline\nsystem, is performed as a requirement of Part 192 and affects the operation of such pipeline, it is\na covered task.\nCovered tasks not only include those activities that are specifically prescribed by Part 192 but\nalso include ones undertaken as part of performance-based requirements. Subpart N of Part 192\ngives each operator the opportunity to identify the covered tasks for all of its operations and\nmaintenance activities that are required by Part 192, even if an activity isn’t specifically\nprescribed. In this case, calibration of the City’s telemetry equipment is a necessary and integral\npart of insuring satisfactory operating conditions under § 192.741 and should therefore be\nincluded in the City’s written qualification program. Accordingly, after considering all of the\nevidence, I find that Respondent violated 49 C.F.R. § 192.805(a) by failing to have and follow a\nwritten qualification program that identified the calibration and maintenance of field transmitters\nused in its telemetry system as a covered task.\nThese findings of violation will be considered prior offenses in any subsequent enforcement\naction taken against Respondent.\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\n49 U.S.C. § 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 $88,500 for the violations cited above.\nThe City contended generally in its Response that the “very high level of penalties proposed” in\nthe Notice were not justified or appropriate under the penalty assessment criteria set forth in\n49 C.F.R. § 190.225. The City cited two mitigating factors that should serve to eliminate or\ngreatly reduce the penalty amounts. The first was that the City’s “past conduct” demonstrated a\n“consistent attitude of compliance,” as reflected by the fact that each time City received\nnotifications of possible non-compliance from the VA SCC, it promptly complied with the\n\n\n\n10\ninspectors’ requests and that the City had been “proactive” in asking questions about the intent of\nthe various regulations.5 According to the City, the Notice in this case assumed just the\nopposite, namely, that Charlottesville had made no efforts to comply since the date of the\ninspection and therefore a compliance order was needed.\nThis is incorrect. Neither the Notice nor the underlying Violation Report assumed that the City\nhad failed to take corrective actions nor was the proposed penalty higher because of any\nperceived recalcitrance or inaction by the City. PHMSA does not assess higher penalties\nbecause of the length of time that occurs after an inspection before a violation has corrected or\nwhether it’s been corrected at all. PHMSA expects any reasonable and prudent operator to\ncorrect violations once they have occurred and been brought to its attention. For this reason,\nPHMSA does not apply any sort of “good faith” credit for actions taken by an operator to correct\na violation subsequent to a regulatory inspection or accident investigation. Such a credit only\napplies where an operator’s actions prior to the commission of a violation were based on a\nreasonable interpretation of the regulatory requirement and the operator had a credible belief that\nits approach to achieving compliance was faithful to its duty to meet the regulatory obligation.6\nSecond, the City argued that its good compliance record should warrant a reduction in the\nproposed penalties, noting that “since 2005 until the NOPV issued in this docket, there has not\nbeen one NOPV sent to Charlottesville with respect to any regulation”7 It is accurate to say that\nthe City has not been found in violation of any Federal pipeline safety regulation by PHMSA\nwithin the five years prior to the 2011 inspection. This consideration was noted in the Violation\nReport and was the reason why PHMSA did not propose an enhanced penalty based on prior\nviolations. If there had been prior violations, the proposed penalties would have been higher.\nItem 1: The Notice proposed a civil penalty of $10,300 for Respondent’s violation of 49 C.F.R.\n§ 192.739(a), for failing to demonstrate that the Rt. 29 North, Rutledge, and McIntire Park\npressure regulating stations had been inspected and tested at intervals not exceeding 15 months,\nbut at least once each calendar year annually. As discussed above, I found that the City had\nmissed timely inspections at three regulator stations. The City acknowledged that three\nviolations had occurred but argued that they were “technical” or “de minimis” violations that\ndictated either no penalty at all or a reduced one.\nI disagree. Regular inspection of all pressure limiting stations, relief devices, and pressure\nregulating stations—as well as any associated equipment—is necessary to prevent overpressure\nat compressor stations. Overpressure at these stations can lead to pipeline failures and safety\nrisks to the public. The regulation sets a specific minimum inspection interval to ensure safety\nand the City missed that deadline at three different stations. In addition, the nature and reduced\ngravity of the violations were already taken into consideration by the agency, as reflected in\nSection C-2 – Consequences of an Accident/Incident of the Violation Report.8 If the violations\n5 Response, at 1-2.\n6 E.g., See Violation Report, at 6.\n7 Id.\n8 Violation Report, at 5.\n\n\n\n11\nhad involved more stations or had threatened the integrity or safe operation of the pipeline, the\nproposed penalty would have been higher. Accordingly, having reviewed the record and\nconsidered the assessment criteria, I assess Respondent a civil penalty of $10,300 for violation of\n49 C.F.R. § 192.739.\nItem 2: The Notice proposed a civil penalty of $16,200 for Respondent’s violation of 49 C.F.R.\n§ 192.161(c), for failing to install supports on an exposed pipeline that were made of durable,\nnoncombustible material. The City did not contest the allegation of violation but argued that the\nviolation did not present any significant safety risk since the wooden pipe support in question, if\nit failed, would only result in the pipe falling 3.5 inches to the flat surface of the building roof. It\nfurther argued that, according to past practice of the VA SCC, such a violation had not given rise\nto the assessment of any penalty at all.\n9\nI find these arguments unpersuasive. First, the risks inherent in an exposed pipe segment being\nsupported only by a loose wooden block relate not only to the combustible nature of the wooden\nsupport but also to the instability of a support not properly fastened to the building. The City\nfailed to take proper precautions to protect its facilities from the risks of both fire and instability.\nSecond, the decision and authority to seek civil penalties for this violation rests not with the VA\nSCC but with PHMSA and is made in accordance with Federal statutes and the agency’s own\npenalty assessment criteria. The penalty here is far less than the statutory maximum authorized\nby Congress and is consistent with penalties currently being assessed in other cases by PHMSA.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $16,200 for violation of 49 C.F.R. § 192.161(c).\nItem 4: The Notice proposed a civil penalty of $13,700 for Respondent’s violation of 49 C.F.R.\n§ 192.353(c), for failing to have a meter in a ventilated place within a building and less than\nthree feet from any source of ignition. As discussed above, the regulation requires that each\nmeter installed within a building must be located at least three feet away from any source of\nignition. When the meter was originally installed in this case, there was no ignition source\nwithin three feet of the meter, but Respondent was still responsible for the subsequent\ninstallation of the electrical equipment after the meter was installed. Respondent did not argue\nthat it was impossible or even difficult to install the meter at the minimum required distance from\nthe electrical equipment.\nThe City further argued that under 49 C.F.R. § 190.225, it was “culpable, at most, of a technical\nviolation, and there was no intent to violate its substance.”10 I disagree that the violation here\nwas only “technical” in nature, since the proximity of ignition sources is a well-known hazard\nassociated with all gas facilities and § 192.353 clearly specifies the minimum distance required\nbetween gas meters and potential ignition sources such as electrical panels. I would also note\nthat according to the Violation Report, this violation only minimally affected the safe operation\nof the pipeline and therefore the proposed penalty was lower than it otherwise could have been.\nAccordingly, based upon the foregoing, I assess Respondent a civil penalty of $13,700 for\n9 Response, at 4.\n10 Response, at 7.\n\n\n\n12\nviolation of 49 C.F.R. § 192.353(c).\nItem 6: The Notice proposed a civil penalty of $32,100 for Respondent’s violation of 49 C.F.R.\n§ 192.479(a), for failing to clean and coat each pipeline or portion of its pipeline exposed to the\natmosphere. As discussed above, I found that the City failed to properly coat two different\nsections of pipe at North Wing Barracks Road and in the 1730 block of Allied Street. The City\ndid not contest the violations but objected to the proposed penalty for the reasons discussed\nabove, including that it had promptly corrected the violations after being alerted by the VA SCC.\nAs discussed in Item 4, PHMSA does not take into account post-inspection actions to achieve\ncompliance as a basis for lowering a proposed penalty.\nThe City also argued that there was no rationale provided in the Notice to justify the proposed\npenalty. I would note that the Violation Report, not the Notice, sets forth the rationale for a\nproposed penalty. In this case, the Violation Report indicated that the violations of § 192.479(a)\npotentially compromised the integrity or safe operation of these sections of pipe located in a\npopulated area or other high-risk area. Proper cleaning and coating of each pipeline is essential\nto the prevention and control of corrosion; the failure to protect the pipe surface exposed to the\natmosphere could result in a release and the possible ignition of natural gas from a breach in the\npipeline wall. Accordingly, based upon the foregoing, I assess Respondent a civil penalty of\n$32,100 for violation of 49 C.F.R. § 192.479(a).\nItem 7: The Notice proposed a civil penalty of $16,200 for Respondent’s violation of 49 C.F.R.\n§ 192.707(c), for failing to place and maintain line markers along exposed sections of main lines\nin two locations aboveground, North Wings Barracks Road and in the 1730 block of Allied\nStreet. As discussed above, I found that the pipe ","truncated":true,"body_characters":46822}