{"operation":"document","citation":"CPF 120153003","title":"NIAGARA MOHAWK POWER CORP — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2015-07-09","effective_on":null,"summary":"CLOSED notice of probable violation citing 193.2605(b)(1).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120153003.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120153003.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120153003","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120153003","body":"Notice of Probable Violation involving NIAGARA MOHAWK POWER CORP. PHMSA's enforcement data identifies the cited regulation as 193.2605(b)(1). The case was opened on 2015-07-09 and is reported as closed as of 2016-11-15. Proposed civil penalty: $11,500. Assessed civil penalty: $0. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120153003_Final Order_11152016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120153003/120153003_Final%20Order_11152016.pdf\n\n120153003_Final Order_11152016_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120153003/120153003_Final%20Order_11152016_text.pdf\n\n120153003_NOPV_PCP_07092015.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120153003/120153003_NOPV_PCP_07092015.pdf\n\n120153003_NOPV_PCP_07092015_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120153003/120153003_NOPV_PCP_07092015_text.pdf\n\n120153003_Operator Response to Notice and Request for Hearing_07242015.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120153003/120153003_Operator%20Response%20to%20Notice%20and%20Request%20for%20Hearing_07242015.pdf\n\n120153003_Final Order_11152016_text.pdf\n\nNovember 15, 2016\nMr. Kenneth D. Daly\nPresident NY Jurisdiction\nNiagara Mohawk Power Corp.\nOne Metro Tech Center\nBrooklyn, NY 11201\nRe: CPF No. 1-2015-3003\nDear Mr. Daly:\nEnclosed please find the Final Order issued in the above-referenced case. It makes a finding of\nviolation and withdraws the proposed civil penalty. This enforcement action is now closed.\nService of the Final Order is made pursuant to 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nActing Associate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Bryon Coy, Director, Eastern Region, OPS\nMr. Ross Turrini, Senior Vice President, Gas Process & Engineering\nNiagara Mohawk Power Corp., 25 Hub Drive, Melville, NY 11747\nMr. David C. Lodemore, Senior Counsel, National Grid USA\n40 Sylvan Road, Waltham, MA 02451\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)\nNiagara Mohawk Power Corp., )\na subsidiary of National Grid plc, )\nRespondent. )\n___________________________________ )\n) CPF No. 1-2015-3003\nFINAL ORDER\nDuring October 20–24, 2014, pursuant to 49 U.S.C. § 60117, representatives of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS)\nconducted an inspection of the liquefied natural gas (LNG) pipeline facility of Niagara Mohawk\nPower Corporation (Niagara or Respondent) in Providence, Rhode Island.1\nAs a result of the inspection, the Director, Eastern Region, OPS, issued a Notice of Probable\nViolation and Proposed Civil Penalty on July 9, 2015 (Notice). In accordance with 49 C.F.R.\n§ 190.207, the Notice alleged that Niagara committed one violation of the LNG pipeline safety\nstandards in 49 C.F.R. § 193.2605 and proposed a civil penalty of $11,500 for the violation.\nNiagara responded on July 24, 2015, and requested a hearing. Additional written materials were\nsubmitted by Respondent on September 21, 2015. In accordance with 49 C.F.R. § 190.211, a\nhearing was held in Washington, D.C. on February 3, 2016, before a Presiding Official from the\nOffice of Chief Counsel, PHMSA. After the hearing, Niagara submitted additional written\nmaterials on March 4, 2016 (Post-hearing Brief). Pursuant to § 190.209(b)(7), the Director\nsubmitted a written evaluation of Respondent’s response material on April 21, 2016.\nFINDING OF VIOLATION\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 193.2605(b), which states:\n1 Niagara is a subsidiary of National Grid plc and operates three LNG facilities, 270 miles of gas\ntransmission, 11,800 miles of gas distribution pipelines, and 750,000 services in New York and Rhode\nIsland as reported by Respondent for calendar year 2015.\n\n\n\nCPF No. 1-2015-3003\nPage 2\n§ 193.2605 Maintenance procedures.\n(a) . . . .\n(b) Each operator shall follow one or more manuals of written\nprocedures for the maintenance of each component, including any required\ncorrosion control. The procedures must include:\n(1) The details of the inspections or tests determined under\nparagraph (a) of this section and their frequency of performance . . . .\nThe Notice alleged that Respondent violated § 193.2605(b)(1) by failing to follow its written\nmaintenance procedures for isolating and purging a boil-off compressor. During the inspection,\nOPS inspectors reviewed Respondent’s procedures and related records and noted that a boil-off\ncompressor had been taken out of service on October 23, 2013. The inspectors requested records\nrelated to the activity, including a checklist that was required to be completed under Section 5.0\nof Respondent’s written procedures. The Notice alleged that when Niagara provided a copy of\nthe checklist, it was not dated and portions were not signed.\nAt the hearing and in its Post-hearing Brief, Respondent “did not dispute that the C-1 isolation\nand purge checklist should have been signed and was not,” however, it believed that important\nmitigating information warranted reducing the alleged violation to a warning.2 In particular,\nRespondent argued “the actual isolation and purging process was performed safely, in\naccordance with the procedure and with the appropriate level of management oversight.”3 At the\nhearing, OPS did not contest Respondent’s assertion that the isolation and purging process was\nproperly performed in accordance with the Company’s procedures.\nRespondent explained that on the day of the maintenance activity, the LNG Plant Supervisor was\npresent for the work and utilized the checklist at issue. She completed the checklist in her\nhandwriting, checked off the appropriate boxes and initialed the front of the document. In\naddition, plant personnel recorded the maintenance activity in the LNG Plant Logbook with the\nnames of the persons involved and the time the activity was completed. The Supervisor\nreviewed the entries for accuracy and initialed the logbook page. Finally, a Hot Work Permit\nwas created on the day of the maintenance. The permit shows the signature of three individuals:\none person signed the permit out, another person who performed the work signed, and the\nSupervisor signed after determining the work had been properly performed. All of these\ndocuments were stored in the LNG Plant Files.\nAt the hearing, OPS discussed the importance of following procedures, including procedures that\nrequire a checklist to be signed. A missing signature, OPS explained, may indicate that the\nchecklist was not followed or that the operator does not pay enough attention to detail.\nAccordingly, OPS maintained the facts proved a violation in this instance.\n2 Post-hearing Brief at 2.\n3 Post-hearing Brief at 3.\n\n\n\nCPF No. 1-2015-3003\nPage 3\nAnalysis\nSection 193.2605 requires pipeline operators to follow their written procedures for performing\nmaintenance activities involving a facility. Respondent’s written procedures for isolating and\npurging a boil-off compressor included provisions for performing the maintenance task itself and\nseparate provisions for keeping records of the task.4 For example, the procedures required\nRespondent to lower tank pressure prior to isolation, perform electrical isolation and gas\nisolation using a number of steps, and complete purging and isolating.\nThe record keeping provisions required, among other things, that Respondent forward the\n“completed, signed checklist” to the Supervisor. They also required a plant logbook to be\nupdated. Plant management is required to review the documents for accuracy and sign, and the\nrecords must be retained for at least five years. The evidence in this case indicates Respondent\nperformed the maintenance activity, completed the checklist, updated the logbook, reviewed the\ndocuments for accuracy and initialed them, and retained the records. Respondent did not,\nhowever, sign the checklist as required.\nFor this reason, I must find Respondent failed to follow its procedures regarding the signing of\nthe checklist. The other actions Respondent performed to complete the maintenance task and to\nkeep records of the activity are acknowledged and will be considered below with regard to the\nproposed civil penalty.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n§ 193.2605 by failing to follow its written procedures for the maintenance of a boil-off\ncompressor, which required the checklist to be signed. This finding of violation will be\nconsidered a prior offense in any subsequent enforcement action taken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any\nrelated series of violations.\nIn determining the amount of a civil penalty under 49 U.S.C. § 60122 and 49 C.F.R. § 190.225,\nPHMSA must consider the following criteria: the nature, circumstances and gravity of the\nviolation, including adverse impact on the environment; the degree of Respondent’s culpability;\nthe history of Respondent’s prior offenses; the good faith of Respondent in attempting to comply\nwith the pipeline safety regulations; and the effect on Respondent’s ability to continue in\nbusiness. In addition, PHMSA may consider the economic benefit gained from the violation and\nsuch other matters as justice may require.\nThe Notice proposed a civil penalty of $11,500 for Respondent’s violation of 49 C.F.R\n§ 193.2605, for failing to sign the checklist used to isolate and purge the boil-off compressor.\n4 OPS Pipeline Safety Violation Report, dated July 8, 2015, Exhibit A-02.\n\n\n\nCPF No. 1-2015-3003\nPage 4\nThe proposed penalty was based on assertions in the Notice and Violation Report relevant to the\npenalty assessment criteria in § 190.225. With regard to the nature, circumstances, and gravity\nof the violation, OPS alleged in the Violation Report this violation concerned a failure to follow\nprocedures that was discovered by PHMSA, but that the violation minimally affected safety.\nWith respect to the good faith of Respondent in attempting to comply with the pipeline safety\nregulations, OPS alleged in the Violation Report that no credit was due for good faith because\nRespondent did not follow its procedures. When considering good faith in attempting to achieve\ncompliance, PHMSA looks at “the attempt by the operator to comply with the cited regulation\nprior to the occurrence of the violation.”5 The cited regulation required Respondent to follow its\nprocedures for performing a particular maintenance activity and for keeping records. It was not\ndisputed in this case that Respondent performed the activity according to the applicable\nprocedures, but did not fully comply with the record keeping procedures that required a\n“completed, signed checklist.” Respondent did, however, follow its record keeping procedures\nfor updating the logbook, review of the logbook by a supervisor for accuracy and signature, and\nretention of the records in the appropriate file.\nI find Respondent exhibited good faith in attempting to comply with its procedures by\nperforming the activity properly, completing the checklist, updating the logbook, reviewing the\ndocuments for accuracy and initialing them, and retaining the records. In addition to overseeing\nthe work and initialing the checklist and the logbook, the plant supervisor signed and cleared the\nwork permit after determining the activity had been completed according to Respondent’s\nprocedures.\nAt the hearing, OPS indicated that it did not believe Respondent had made a good faith attempt\nto achieve compliance because signing the checklist was just as important as the other\nprocedures. I agree that when procedures require a checklist to be signed, it is necessary for the\noperator to document the completion of those steps by signing the form. As noted in the finding\nof violation section of this decision, there is no question Respondent did not sign the form and\ntherefore the Operator did not comply with its procedures. When deciding an appropriate\npenalty, however, I cannot ignore evidence that Respondent followed its procedures by taking\nother actions to document satisfactory completion of the maintenance activity.\nConsideration of good faith in an enforcement matter is particularly dependent on the facts of the\ncase.6 In White Cliffs Pipeline, LLC, PHMSA found an operator was not entitled to a reduction\nof the penalty based on good faith because there was no evidence that the operator took action to\nmaintain certain records.7 In National Grid LNG, L.P.,\n8 however, PHMSA found another\n5 White Cliffs Pipeline, LLC, CPF No. 3-2011-5012, at 6, 2013 WL 1247518, at *5 (Feb. 5, 2013).\n6 See, e.g., Belle Fourche Pipeline Co., CPF No. 5-2009-5042, at 20-21, 2011 WL 7006607, at *19 (Nov.\n21, 2011) (explaining that PHMSA applies the assessment criteria on a case-by-case basis. Given the\nunique facts of each offense, it is not uncommon for there to be some variance in penalties assessed for\nthe same code section. Moreover, PHMSA has been increasing civil penalties over the years).\n7 White Cliffs Pipeline, LLC, CPF No. 3-2011-5012, at 6.\n\n\n\nCPF No. 1-2015-3003\nPage 5\noperator had made a good faith attempt to comply with its procedures by properly performing\nlaboratory tests and responding to the results even though it had neglected to prepare a plan\nrequired by its procedures for addressing the tests.\nIn this case, Niagara presented evidence showing substantial compliance with its maintenance\nprocedures. On this basis, I find justification for reducing the $11,500 proposed civil penalty.\nWith due consideration to the nature, circumstances, and gravity of the violation, degree of\nRespondent culpability, history of prior offenses, and ability to continue in business, I withdraw\nthe penalty associated with Item 1.\nUnder 49 C.F.R. § 190.243, Respondent may submit a petition for reconsideration of this Final\nOrder to the Associate Administrator for Pipeline Safety, PHMSA, 1200 New Jersey Avenue SE,\nEast Building, 2nd Floor, Washington, D.C. 20590, no later than 20 days after receipt of the\nFinal Order by Respondent. Any petition submitted must contain a statement of the issue(s) and\nmeet all other requirements of 49 C.F.R. § 190.243. The terms and conditions of this Final Order\nare effective upon service in accordance with 49 C.F.R. § 190.5.\nNovember 15, 2016\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nActing Associate Administrator\nfor Pipeline Safety\n8 National Grid LNG, L.P., CPF No. 1-2007-3006, at 3, 2009 WL 5538660, at *3 (Dec. 29, 2009).","truncated":false,"body_characters":14942}