{"operation":"document","citation":"CPF 120121004","title":"NEW YORK STATE ELECTRIC & GAS CORP — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2012-05-21","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.491(c), 192.616(f), 192.625(b), 192.706(a), 192.751(c).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120121004.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120121004.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120121004","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120121004","body":"Notice of Probable Violation involving NEW YORK STATE ELECTRIC & GAS CORP. PHMSA's enforcement data identifies the cited regulations as 192.491(c),  192.616(f),  192.625(b),  192.706(a),  192.751(c). The case was opened on 2012-05-21 and is reported as closed as of 2012-11-09. Proposed civil penalty: $52,000. Assessed civil penalty: $52,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120121004_Final Order_10232012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120121004/120121004_Final%20Order_10232012.pdf\n\n120121004_Final Order_10232012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120121004/120121004_Final%20Order_10232012_text.pdf\n\n120121004_NOPV_PCP_05212012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120121004/120121004_NOPV_PCP_05212012.pdf\n\n120121004_NOPV_PCP_05212012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120121004/120121004_NOPV_PCP_05212012_text.pdf\n\n120121004_Operator Response_06182012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120121004/120121004_Operator%20Response_06182012.pdf\n\n120121004_Final Order_10232012_text.pdf\n\nOCTOBER 23, 2012\nMr. Mark S. Lynch\nPresident\nNew York State Electric and Gas Corporation\n89 East Avenue\nRochester, NY 14649-0001\nRe: CPF No. 1-2012-1004\nDear Mr. Lynch:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a civil penalty of $52,000. 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. Byron Coy, P.E., Director, Eastern Region, OPS\nMr. Alan Mayberry, Deputy Associate Administrator for Field Operations, OPS\nMr. Kevin Speicher, New York State Department of Public Service\n3 Empire State Plaza Albany, NY 12223\nMr. Michael Eastman, Vice President, Gas Operations, Rochester Gas and Electric –\n89 East Ave., Rochester, NY 14649-0001\nMr. John J. Sherman, Chairman and Chief Executive Officer, Inergy Midstream, L.P. -\n2 Brush Creek Blvd., Suite 200, Kansas City, MO 64112\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____________________________________\nIn the Matter of )\n)\n)\nNew York State Electric and Gas Corporation, )\n)\nRespondent. )\n____________________________________)\n) CPF No. 1-2012-1004\nFINAL ORDER\nFrom July 12 through August 23, 2010, pursuant to 49 U.S.C. § 60117, representatives of the\nNew York State Department of Public Service, acting 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 New York State Electric and Gas\n(NYSEG or Respondent) in Watkins Glen, New York. At the time of the inspection, NYSEG\noperated a natural gas storage facility known as the Seneca Storage Facility and the associated\nSeneca West Pipeline, which is approximately 20 miles long and connects the Seneca Storage\nFacility to a transmission pipeline in Big Flats, New York.1\nAs a result of the inspection, the Director, Eastern Region, OPS (Director), issued to Respondent,\nby letter dated May 21, 2012, a Notice of Probable Violation and Proposed Civil Penalty\n(Notice), which also included a warning pursuant to 49 C.F.R. § 190.205. In accordance with\n49 C.F.R. § 190.207, the Notice proposed finding that NYSEG committed various violations of\n49 C.F.R. Part 192 and proposed assessing a civil penalty of $52,000 for the alleged violations.\nThe warning item required no further action, but warned the operator to correct the probable\nviolation or face possible enforcement action.\nNYSEG responded to the Notice by letter dated June 18, 2012 (Response).2 The company did\nnot contest the allegations of violation but provided an explanation of its actions. Respondent\ndid not request a hearing and therefore has waived its right to one.\n1 On July 13, 2011, NYSEG sold the Seneca Storage Facility and the Seneca West Pipeline to Inergy Midstream,\nLP, the current operator of the facilities.\n2 While the Seneca Storage Facility and the Seneca West Pipeline were operated by NYSEG at the time of the\ninspection, the Notice was addressed to Rochester Gas and Electric Corporation. Both companies are subsidiaries of\nIberdrola USA. See http://www.iberdrolausa.com/OurCompanies/nyseg html (last accessed October 9, 2012).\n\n\n\n2\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. § 192.625(b), which states:\n§ 192.625 Odorization of gas.\n(a) A combustible gas in a distribution line must contain a natural\nodorant or be odorized so that at a concentration in air of one-fifth of the\nlower explosive limit, the gas is readily detectable by a person with a\nnormal sense of smell.\n(b) After December 31, 1976, a combustible gas in a transmission line\nin a Class 3 or Class 4 location must comply with the requirements of\nparagraph (a) of this section unless:\n(1) At least 50 percent of the length of the line downstream from that\nlocation is in a Class 1 or Class 2 location;\n(2) The line transports gas to any of the following facilities which\nreceived gas without an odorant from that line before May 5, 1975;\n(i) An underground storage field;\n(ii) A gas processing plant;\n(iii) A gas dehydration plant; or\n(iv) An industrial plant using gas in a process where the presence of\nan odorant:\n(A) Makes the end product unfit for the purpose for which it is\nintended;\n(B) Reduces the activity of a catalyst; or\n(C) Reduces the percentage completion of a chemical reaction;\n(3) In the case of a lateral line which transports gas to a distribution\ncenter, at least 50 percent of the length of that line is in a Class 1 or Class\n2 location; or\n(4) The combustible gas is hydrogen intended for use as a feedstock in\na manufacturing process.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.625(b) by failing to odorize the gas\nin its transmission line. Specifically, the Notice alleged that NYSEG failed to odorize the gas in\nthe Seneca West Pipeline, which the company’s Operations and Maintenance (O&M) Procedure\n7.650 indicated was located within a Class 3 location. In its Response, NYSEG did not contest\nthe allegation of violation. The company stated, however, that while its philosophy was to\nconservatively design all facilities to Class 3 requirements, the entire Seneca West Pipeline was\nlocated entirely within Class 1 and 2 locations and that therefore the exemption in\n§ 192.625(b)(1) applied to this pipeline. NYSEG acknowledged that the company’s O&M\nprocedure did not specify that the exemption applied to this line.\nNotwithstanding Respondent’s contention that the pipeline was exempt from the odorization\nrequirement, NYSEG did not submit any evidence demonstrating that at least 50 percent of the\nlength of the downstream line was in a Class 1 or Class 2 location. The company’s O&M\n\n\n\n3\nprocedure stated only that the pipeline should be operated as if it were in a Class 3 location;\ntherefore, the gas was required to be odorized. Accordingly, after considering all of the\nevidence, I find that Respondent violated 49 C.F.R. § 192.625(b) by failing to odorize the gas in\nits transmission line.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 192.491(c), which states:\n§ 192.491 Corrosion control records.\n(a) . . .\n(c) Each operator shall maintain a record of each test, survey, or\ninspection required by this subpart in sufficient detail to demonstrate\nthe adequacy of corrosion control measures or that a corrosive\ncondition does not exist. These records must be retained for at least 5\nyears, except that records related to §§ 192.465 (a) and (e) and\n192.475(b) must be retained for as long as the pipeline remains in\nservice.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.491(c) by failing to maintain a\nrecord of each test, survey, or inspection required by Subpart I of Part 192. Specifically, the\nNotice alleged that NYSEG could not produce a record of the internal pipe-surface inspection\nrequired by § 192.475(b)3 when meters were replaced at the Seneca Storage Facility in 2009.\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. § 192.491(c) by failing to maintain a\nrecord of each test, survey, or inspection required by Subpart I of Part 192.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 192.616(f), which states:\n§ 192.616 Public awareness.\n(a) Except for an operator of a master meter or petroleum gas system\ncovered under paragraph (j) of this section, each pipeline operator must\ndevelop and implement a written continuing public education program that\nfollows the guidance provided in the American Petroleum Institute's (API)\nRecommended Practice (RP) 1162 (incorporated by reference, see\n§ 192.7) . . . .\n(f) The program and the media used must be as comprehensive as\nnecessary to reach all areas in which the operator transports gas.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.616(f) by failing to ensure its\npublic education program was as comprehensive as necessary to reach all areas in which the\ncompany transported gas. Specifically, the Notice alleged that NYSEG’s public education\nprogram did not ensure that the required information would reach all the public living along the\npipeline right-of-way (ROW).\n3 49 C.F.R. § 192.475(b) states, in relevant part: “Whenever any pipe is removed from a pipeline for any reason, the\ninternal surface must be inspected for evidence of corrosion. . . .”\n\n\n\n4\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. § 192.616(f) by failing to ensure its\npublic education program was as comprehensive as necessary to reach all areas in which it\ntransported gas.\nItem 4: The Notice alleged that Respondent violated 49 C.F.R. § 192.491(c), as quoted above,\nby failing to maintain a record of each test, survey, or inspection required by Subpart I of Part\n192. Specifically, the Notice alleged that NYSEG failed to maintain a record of the most recent\natmospheric corrosion inspection required by § 192.481(a).4\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. § 192.491(c) by failing to maintain a\nrecord of each test, survey, or inspection required by Subpart I of Part 192.\nItem 5: The Notice alleged that Respondent violated 49 C.F.R. § 192.706(a), which states:\n§ 192.706 Transmission lines: Leakage surveys.\nLeakage surveys of a transmission line must be conducted at intervals\nnot exceeding 15 months, but at least once each calendar year. However,\nin the case of a transmission line which transports gas in conformity with\n§ 192.625 without an odor or odorant, leakage surveys using leak detector\nequipment must be conducted—\n(a) In Class 3 locations, at intervals not exceeding 7½ months, but at\nleast twice each calendar year . . . .\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.706(a) by failing to conduct\nleakage surveys of its transmission line at intervals not exceeding 7½ months, but at least twice\neach calendar year. Specifically, the Notice alleged that no instrumented leakage surveys had\nbeen conducted on the transmission lines at the Seneca Storage Facility and that there was only a\nrecord of one instrumented leak detection survey, performed in 2009, for the Seneca West\nPipeline.\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. § 192.706(a) by failing to conduct\nleakage surveys of its transmission line at intervals not exceeding 7½ months, but at least twice\neach calendar year.\nThese findings of violation will be considered prior offenses in any subsequent enforcement\naction taken against Respondent.\n4 49 C.F.R. § 192.481(a) requires each operator to inspect each onshore pipeline or portion of pipeline that is\nexposed to the atmosphere for evidence of atmospheric corrosion at least once every three calendar years, but at\nintervals not exceeding 39 months.\n\n\n\n5\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 $52,000 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $10,000 for Respondent’s violation of\n49 C.F.R. § 192.625(b), for failing to odorize the gas in its transmission line. As discussed\nabove, NYSEG did not contest the allegation of violation but claimed that the pipeline was\nexempt from the odorization requirement. Respondent failed to present any evidence supporting\nits contention or any information justifying a reduction in the proposed penalty. Public safety is\njeopardized when a gas pipeline in a populated area is not odorized. The regulatory requirement\nis clear and NYSEG is fully culpable for the failure to odorize the pipeline. Accordingly, having\nreviewed the record and considered the assessment criteria, I assess Respondent a civil penalty of\n$10,000 for violation of 49 C.F.R. § 192.625(b).\nItem 2: The Notice proposed a civil penalty of $8,700 for Respondent’s violation of\n49 C.F.R. § 192.491(c), for failing to maintain a record of each test, survey, or inspection\nrequired by Subpart I of Part 192. NYSEG neither contested the allegation nor presented any\nevidence or argument justifying a reduction in the proposed penalty. The failure to maintain\nrecords of corrosion inspections on the pipeline limits the operator’s ability to analyze corrosion\nthreats. While NYSEG was fully culpable for the failure to maintain these records, the violation\ndid not pose a significant threat to pipeline integrity or public safety. I find that the nature,\ncircumstances, and gravity of the violation support the proposed penalty. Accordingly, having\nreviewed the record and considered the assessment criteria, I assess Respondent a civil penalty of\n$8,700 for violation of 49 C.F.R. § 192.491(c).\nItem 3: The Notice proposed a civil penalty of $10,000 for Respondent’s violation of\n49 C.F.R. § 192.616(f), for failing to ensure that its public education program was as\ncomprehensive as necessary to reach all areas in which it transported gas. NYSEG neither\ncontested the allegation nor presented any evidence or argument justifying a reduction in the\nproposed penalty. While NYSEG had a public awareness program, it was not comprehensive\nenough to ensure that the public living along the ROW had adequate information about the\npipeline and the potential impact of a natural gas release or ignition. While pipeline integrity\nwas not significantly impacted by the violation, public safety could have been adversely affected\nif a pipeline incident had occurred. I find that the nature, circumstances, and gravity of the\nviolation support the proposed penalty. Accordingly, having reviewed the record and considered\nthe assessment criteria, I assess Respondent a civil penalty of $10,000 for violation of\n\n\n\n6\n49 C.F.R. § 192.616(f).\nItem 4: The Notice proposed a civil penalty of $8,700 for Respondent’s violation of\n49 C.F.R. § 192.491(c), for failing to maintain a record of each test, survey, or inspection\nrequired by Subpart I of Part 192. NYSEG neither contested the allegation nor presented any\nevidence or argument justifying a reduction in the proposed penalty. The failure to maintain\nrecords of corrosion inspections on the pipeline limited the operator’s ability to analyze\ncorrosion threats. While NYSEG was fully culpable for the failure to maintain these records, the\nviolation did not pose a significant threat to pipeline integrity or public safety. I find that the\nnature, circumstances, and gravity of the violation support the proposed penalty. Accordingly,\nhaving reviewed the record and considered the assessment criteria, I assess Respondent a civil\npenalty of $8,700 for violation of 49 C.F.R. § 192.491(c).\nItem 5: The Notice proposed a civil penalty of $14,600 for Respondent’s violation of\n49 C.F.R. § 192.706(a), for failing to conduct leakage surveys of its transmission line at intervals\nnot exceeding 7½ months, but at least twice each calendar year. NYSEG neither contested the\nallegation nor presented any evidence or argument justifying a reduction in the proposed penalty.\nWhile pipeline integrity was not significantly impacted by the violation, public safety and the\nsafety of operator personnel could have been impacted if a pipeline incident had occurred as a\nresult of the operator’s noncompliance. I find that the nature, circumstances, gravity, and\nduration of the violation support the proposed penalty. Accordingly, having reviewed the record\nand considered the assessment criteria, I assess Respondent a civil penalty of $14,600 for\nviolation of 49 C.F.R. § 192.706(a).\nIn summary, having reviewed the record and considered the assessment criteria for each of the\nItems cited above, I assess Respondent a total civil penalty of $52,000.\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 $52,000 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.\n\n\n\n7\nWARNING ITEM\nWith respect to Item 6, the Notice alleged a probable violation of Part 192 but did not propose a\ncivil penalty or compliance order for this item. Therefore, this is considered to be a warning\nitem. The warning was for:\n49 C.F.R. § 192.751(c) (Item 6) ─ Respondent’s alleged failure to have sufficient\nwarning signs to minimize the danger of accidental ignition of gas at the NYSEG\nHibbard Road and Backer Road valve set facilities.\nNYSEG stated in its Response that it would communicate this issue to Inergy Midstream, LLC,\nthe current owner of the Seneca West Pipeline. If OPS finds a violation of this provision, the\npipeline operator may be subject to future enforcement action.\nUnder 49 C.F.R. § 190.215, Respondent has the right to submit a Petition for Reconsideration of\nthis Final Order. The petition must be sent to: Associate Administrator, Office of Pipeline\nSafety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor, Washington, DC\n20590, with a copy sent to the Office of Chief Counsel, PHMSA, at the same address. PHMSA\nwill accept petitions received no later than 20 days after receipt of service of the Final Order by\nthe Respondent, provided they contain a brief statement of the issue(s) and meet all other\nrequirements of 49 C.F.R. § 190.215. The filing of a petition automatically stays the payment of\nany civil penalty assessed but does not stay any other provisions of the Final Order, including\nany required corrective actions. If Respondent submits payment of the civil penalty, the Final\nOrder becomes the final administrative decision and the right to petition for reconsideration is\nwaived.\nThe terms and conditions of this Final Order are effective upon service in accordance with\n49 C.F.R. § 190.5.\n___________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":21517}