{"operation":"document","citation":"CPF 120130001","title":"RICHMOND, CITY OF — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2013-05-02","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.605(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120130001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120130001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120130001","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120130001","body":"Notice of Probable Violation involving RICHMOND, CITY OF. PHMSA's enforcement data identifies the cited regulation as 192.605(a). The case was opened on 2013-05-02 and is reported as closed as of 2014-05-12. Proposed civil penalty: $33,700. Assessed civil penalty: $12,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120130001_Final Order_05022014.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120130001/120130001_Final%20Order_05022014.pdf\n\n120130001_Final Order_05022014_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120130001/120130001_Final%20Order_05022014_text.pdf\n\n120130001_NOPV PCP_05022013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120130001/120130001_NOPV%20PCP_05022013.pdf\n\n120130001_NOPV PCP_05022013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120130001/120130001_NOPV%20PCP_05022013_text.pdf\n\n120130001_Operator Response and Request for Hearing_05312013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120130001/120130001_Operator%20Response%20and%20Request%20for%20Hearing_05312013.pdf\n\n120130001_Final Order_05022014_text.pdf\n\nMAY 2, 2014\nMr. Robert Steidel\nDirector, Department of Public Utilities\nCity of Richmond\n730 E Broad Street, 6th Floor\nRichmond, VA 23219\nRe: CPF No. 1-2013-0001\nDear Mr. Steidel:\nEnclosed please find the Final Order issued in the above-referenced case. It makes a finding of\nviolation and assesses a reduced civil penalty of $12,000. The penalty payment terms are set\nforth in the Final Order. This enforcement action closes automatically upon receipt of payment.\nService of the Final Order by certified mail is effective upon the date of mailing as provided\nunder 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, Director Eastern Region, OPS\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 )\nCity of Richmond, Virginia, ) CPF No. 1-2013-0001\n)\n)\n)\nRespondent. )\n___________________________________ )\nFINAL ORDER\nOn December 8, 2011, pursuant to 49 U.S.C. §§ 60106 and 60117, a representative of the\nVirginia State Corporation Commission (VA SCC), as agent for the Pipeline and Hazardous\nMaterials Safety Administration’s Office of Pipeline Safety (OPS), conducted an inspection of\nthe pipeline facilities and associated written procedures of the City of Richmond, Virginia (City\nor Respondent).1\nAs a result of the inspection, the Director, Eastern Region, OPS (Director) issued a Notice of\nProbable Violation and Proposed Civil Penalty (Notice) to the City on May 2, 2013. In\naccordance with 49 C.F.R. § 190.207, the Notice alleged the City committed a violation of the\nnatural gas pipeline safety regulations and proposed a civil penalty of $33,700.\nThe City responded to the Notice on May 31, 2013, and requested a hearing. The City also\nsubmitted supplemental information on August 12, 2013. In accordance with § 190.211, a\nhearing was held on August 20, 2013, in Washington, D.C., before the Presiding Official from\nthe Office of Chief Counsel, Pipeline and Hazardous Materials Safety Administration (PHMSA).\nAfter the hearing, Respondent submitted a post-hearing brief dated September 20, 2013.\nFINDING OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.605(a), which states:\n1 The City operates approximately 1,900 miles of natural gas distribution pipeline and approximately 97,800\nservices, as reported by the City for calendar year 2013 pursuant to 49 C.F.R. § 191.11.\n\n\n\n2\n§ 192.605 Procedural manual for operations, maintenance, and\nemergencies.\n(a) General. Each operator shall prepare and follow for each pipeline,\na manual of written procedures for conducting operations and maintenance\nactivities and for emergency response . . . .\nThe Notice alleged that Respondent violated § 192.605(a) by failing to follow its manual of\nwritten procedures while conducting maintenance activities on a natural gas pipeline.\nSpecifically, the Notice alleged that on December 8, 2011, the City’s contractor was using a\n“squeeze-off tool” to stop the flow of gas on a 6-inch main when an uncontrolled release of gas\noccurred.\n2 The Notice further alleged the release was due to the worker failing to install two\nsaddle clamps as specified by Respondent’s operations and maintenance (O&M) procedures and\nthe tool manufacturer’s instructions.\nAt the hearing and in its written submissions, the City acknowledged that the release of gas was\ncaused by the worker failing to install two saddle clamps as required by the City’s O&M\nprocedures and the tool manufacturer’s instructions. Although the City did not contest these\nfacts, the City provided additional information and argued the civil penalty should be withdrawn\nor reduced. The City’s arguments concerning the penalty are discussed below in the Assessment\nof Penalty section.\nHaving reviewed the evidence in the record, PHMSA finds that Respondent’s O&M manual\nincluded provisions requiring personnel to use the squeeze tool “in accordance with the\nmanufacturer’s instructions.”3 The manufacturer’s instructions for the tool required two saddle\nclamps to be installed.4 On December 8, 2011, a worker failed to follow these procedures when\nhe installed only one saddle clamp, which resulted in an uncontrolled release of gas when the\nsqueeze tool relieved. Based on these facts, I find Respondent violated § 192.605(a) as alleged.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken 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.5\n2 A squeeze-off tool is an apparatus designed to stop the flow of gas by squeezing the plastic pipe closed.\n3 OPS Pipeline Safety Violation Report at 2 (May 2, 2013).\n4 Violation Report at 3.\n5 Subsequent to issuance of the Notice, the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011,\nPub. L. No. 112-90, § 2(a), 125 Stat. 1905, increased the civil penalty liability for violating a pipeline safety\nstandard to $200,000 per violation for each day up to a maximum of $2,000,000 for any related series of violations.\n\n\n\n3\nIn determining the amount of a civil penalty under 49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I\nmust consider the following criteria: the nature, circumstances and gravity of the violation,\nincluding adverse impact on the environment; the degree of Respondent’s culpability; the history\nof Respondent’s prior offenses; the good faith of Respondent in attempting to comply with the\npipeline safety regulations; and the effect on Respondent’s ability to continue in business. In\naddition, I may consider the economic benefit gained from violation without any reduction\nbecause of subsequent damages, and such other matters as justice may require.\nThe Notice proposed a civil penalty of $33,700 for the violation of § 192.605(a). The amount of\nthe proposed penalty was based on certain factual assertions in the Violation Report, which were\nrelevant to each of the above-listed penalty assessment considerations. The City contested some\nof these facts and provided additional information that it believed warranted elimination or\nreduction of the proposed civil penalty.\nNature and Circumstances of the Violation. With regard to the nature and circumstances of the\nviolation, the proposed penalty was based, in part, on a statement in the Violation Report that the\nviolation was discovered by VA SCC during an inspection.6\nIn its written submission and at the hearing, Respondent stated that the violation was actually\ndiscovered by the City. Respondent explained that the release of gas occurred on December 8,\n2011, at approximately 2:55pm. Respondent notified VA SCC of the event at approximately\n3:40pm, and an inspector from VA SCC arrived at the site sometime thereafter. When the\ninspector arrived, the City had already started its investigation of the event and had determined\nthat a worker neglected to install one of two required saddle clamps. The City communicated\nthese findings to the VA SCC inspector.\nAt the hearing, the VA SCC inspector’s account of events was in substantial agreement with the\nexplanation provided by the City. Based on these facts, PHMSA finds there is sufficient\njustification to reduce the penalty because Respondent discovered the violation and\ncommunicated its findings to the inspector.\nGravity of the Violation and Consequences. With regard to the gravity of the violation, the\nproposed penalty was based on an assertion in the Violation Report that pipeline integrity and\nsafe operation was “potentially compromised in a populated area.”7\nRespondent argued this assertion did not fairly reflect the risk posed by the 6-inch distribution\npipeline operating at only 22 psi. Respondent presented a map showing that the maximum\npotential impact of the pipeline was small enough to be contained almost entirely within the\nexcavation site without approaching or touching any nearby structures. Respondent contrasted\nits 6-inch distribution pipeline to a large diameter, high pressure transmission pipeline that would\npresent a much higher potential gravity.\n6 Violation Report at 4.\n7 Violation Report at 4.\n\n\n\n4\nHaving reviewed the record, PHMSA finds that even a worst case scenario involving\nRespondent’s pipe at this location could not have affected the public or any structures outside of\nthe excavation. Accordingly, PHMSA finds sufficient reason to reduce, but not eliminate, the\npenalty. Since the uncontrolled release of gas potentially compromised safety, a penalty is still\nwarranted.\nWhile the “consequences of a violation” is not listed as a penalty assessment factor in § 190.225,\nthere is a section of the Violation Report used by OPS to document the consequences of an\nincident. In this case, OPS selected “Other” among the list of consequences.8 OPS included a\nnote that the event was not a reportable incident and the City notified VA SCC as a courtesy.\nRespondent argued that OPS incorrectly selected “Other” and should have selected instead the\noption “There was no accident/incident.”\nPHMSA agrees the event that occurred on December 8, 2011, was not an incident as defined in\n§ 191.3. While it would have been accurate for OPS to select the statement suggested by\nRespondent, OPS included an equivalent note in the Violation Report that no reportable incident\noccurred. The proposed penalty was not based on any assertion that a reportable incident had\noccurred. Therefore, no adjustment is necessary.\nDegree of Culpability. Respondent did not contest the penalty with regard to the consideration\nof culpability. Consistent with the Violation Report, PHMSA finds that Respondent was\ncognizant of the regulatory requirement to have and follow written procedures and that\nRespondent had taken some steps to address the issue by having procedures for the use of a\nsqueeze-off tool.\nGood Faith in Attempting to Comply. With regard to good faith, the Violation Report did not\nrecommend any penalty reduction because Respondent did not act in accordance with its duty to\nensure that work was carried out in compliance with its procedures.9\nIn its written submission and at the hearing, Respondent contended that it demonstrated good\nfaith in several ways. The City stated that it showed a high level of good faith by carrying out its\nsafety responsibilities in general. More specifically, the City contended that it had detailed\nwritten procedures that went beyond the minimum regulatory requirements. The City also\nargued that it had demonstrated good faith by giving notification of the event even though it was\nnot required.\nWere a penalty to be assessed, the City argued, the penalty would have a “chilling effect” on\noperators who may choose to have such detailed procedures or who may take proactive steps in\nthe future.10 Finally, the City contended that the pipeline safety regulations permit or at least\nanticipate operator errors by establishing requirements to prevent reoccurrence.\n11\n8 Violation Report at 5.\n9 Violation Report at 6.\n10 Post-hearing brief at 4.\n11 Respondent cited to §§ 192.617, 192.631, 192.805, and 192.1009.\n\n\n\n5\nWhen considering the good faith of a respondent, PHMSA looks at the attempt to comply with\nthe cited regulation prior to the occurrence of the violation.12 Having reviewed the facts of this\ncase, PHMSA finds there is not sufficient reason to reduce the penalty under the good faith\nconsideration. PHMSA does not agree a reduction is warranted for exceeding regulatory\nobligations. The requirement to have written procedures for safely stopping the flow of gas on\nits pipeline is mandated under § 192.605(a). If an operator’s written procedures do not have\nsufficient detail to ensure safety, the operator may be subject to enforcement under 49 C.F.R.\npart 190.13\nWith regard to the City’s voluntary notification to VA SCC, these facts are already considered\nabove under circumstances. Circumstances takes into account an operator’s conduct following\nthe violation, whereas good faith considers an operator’s attempt to comply prior to the\noccurrence of the violation. As noted above, PHMSA is reducing the proposed penalty to reflect\nthe circumstances of Respondent’s voluntary notification.\nFinally, with regard to whether operator errors are anticipated by the pipeline safety regulations,\nPHMSA agrees that certain regulations cited by Respondent require operators to investigate the\ncause of failures and to take appropriate action to minimize the possibility of recurrence.\nRespondent’s good faith effort to investigate the cause of this failure and to make sure it does not\nrepeat is noted, but Respondent is already expected to comply with these regulations to prevent\nreoccurrence. These actions are not a reason to reduce the penalty.\nOther Considerations. Respondent has two prior violations, including a previous violation of\n§ 192.605(a).14 Respondent did not assert that the penalty would have an effect on its ability to\ncontinue doing business.\nIn summary, having reviewed the record and considered each of the assessment criteria, PHMSA\nassesses a reduced civil penalty of $12,000 for the violation of § 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 (AMK-325), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P.O. Box 269039, Oklahoma City, Oklahoma 73125. The\nFinancial Operations Division telephone number is (405) 954-8845.\n12 Kinder Morgan Liquids Terminals LLC, CPF No. 1-2011-5001, at 11, 2012 WL 6184429 (Oct. 17, 2012). Final\norders can be viewed on PHMSA’s website at http://www.phmsa.dot.gov/pipeline/enforcement (follow link for\nenforcement since 2002 and then for final orders issued by year).\n13 See, e.g., §§ 190.206 and 190.207.\n14 CPF 1-2011-0002, 2012 WL 2521044 (May 11, 2012) (failing to follow procedures for installing plastic service\ntees); and CPF 1-2011-0001, 2012 WL 4846325 (Aug. 1, 2012). Enforcement actions can be viewed on PHMSA’s\nwebsite at http://www.phmsa.dot.gov/pipeline/enforcement (follow link for enforcement since 2002 and then links\nfor final orders issued by year).\n\n\n\n6\nFailure to pay the $12,000 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.\nUnder 49 C.F.R. § 190.243 (formerly § 190.215), Respondent may submit a petition for\nreconsideration of this Final Order to the Associate Administrator for Pipeline Safety, PHMSA,\n1200 New Jersey Avenue SE, East Building, 2nd Floor, Washington, D.C. 20590, no later than\n20 days after receipt of the Final Order by Respondent. Any petition submitted must contain a\nstatement of the issue(s) and meet all other requirements of 49 C.F.R. § 190.243. The filing of a\npetition automatically stays the payment of any civil penalty assessed. If Respondent submits\npayment of the civil penalty, the Final Order becomes the final administrative decision and the\nright to petition for reconsideration is waived.\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":17355}