{"operation":"document","citation":"CPF 12021037NOPV","title":"SOUTHERN STAR CENTRAL GAS PIPELINE, INC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2021-06-17","effective_on":null,"summary":"CLOSED notice of probable violation citing 191.5(a), 199.225(a)(1).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-12021037nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-12021037nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-12021037nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/12021037NOPV","body":"Notice of Probable Violation involving SOUTHERN STAR CENTRAL GAS PIPELINE, INC. PHMSA's enforcement data identifies the cited regulations as 191.5(a),  199.225(a)(1). The case was opened on 2021-06-17 and is reported as closed as of 2022-04-04. Proposed civil penalty: $46,200. Assessed civil penalty: $23,800. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n12021037NOPV_Decision on Petition for Reconsideration_04042022_(20-185140).pdf: https://primis.phmsa.dot.gov/enforcement-documents/12021037NOPV/12021037NOPV_Decision%20on%20Petition%20for%20Reconsideration_04042022_(20-185140).pdf\n\n12021037NOPV_Decision on Petition for Reconsideration_04042022_(20-185140)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/12021037NOPV/12021037NOPV_Decision%20on%20Petition%20for%20Reconsideration_04042022_(20-185140)_text.pdf\n\n12021037NOPV_Final Order_12092021_(20-185140).pdf: https://primis.phmsa.dot.gov/enforcement-documents/12021037NOPV/12021037NOPV_Final%20Order_12092021_(20-185140).pdf\n\n12021037NOPV_Final Order_12092021_(20-185140)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/12021037NOPV/12021037NOPV_Final%20Order_12092021_(20-185140)_text.pdf\n\n12021037NOPV_Operator Petition for Reconsideration_12232021_(20-185140).pdf: https://primis.phmsa.dot.gov/enforcement-documents/12021037NOPV/12021037NOPV_Operator%20Petition%20for%20Reconsideration_12232021_(20-185140).pdf\n\n12021037NOPV_Operator Response to Notice_07062021_(20-185140).pdf: https://primis.phmsa.dot.gov/enforcement-documents/12021037NOPV/12021037NOPV_Operator%20Response%20to%20Notice_07062021_(20-185140).pdf\n\n12021037NOPV_PCP_06172021_(20-185140).pdf: https://primis.phmsa.dot.gov/enforcement-documents/12021037NOPV/12021037NOPV_PCP_06172021_(20-185140).pdf\n\n12021037NOPV_PCP_06172021_(20-185140)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/12021037NOPV/12021037NOPV_PCP_06172021_(20-185140)_text.pdf\n\n12021037NOPV_Final Order_12092021_(20-185140)_text.pdf\n\nDecember 9, 2021\nVIA ELECTRONIC MAIL TO: jimmy.staton@southernstar.com\nMr. Jimmy Staton\nPresident and Chief Executive Officer\nSouthern Star Central Gas Pipeline, Inc.\n4700 State Route 56\nBox 20010\nOwensboro, Kentucky 42301\nRe: CPF No. 1-2021-037-NOPV\nDear Mr. Staton:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a civil penalty of $46,200. The penalty payment terms are set forth in the\nFinal Order. This enforcement action closes automatically upon receipt of payment. Service of\nthis decision by e-mail is effective upon the date of transmission as provided under 49 C.F.R.\n§ 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Robert Burrough, Director, Eastern Region, Office of Pipeline Safety, PHMSA\nMr. Shawn L. Patterson, Vice President and Chief Operations Officer, Southern Star\nCentral Gas Pipeline, Inc., shawn.patterson@southernstar.com\nMr. Craig Thomas, Manager, Integrity Management & PHMSA Compliance, Southern\nStar Central Gas Pipeline, Inc., craig.thomas@southernstar.com\nCONFIRMATION OF 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)\nSouthern Star Central Gas Pipeline, Inc., )\nRespondent. )\n_____________________________________)\n) CPF No. 1-2021-037-NOPV\nFINAL ORDER\nOn July 1, 2020, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), conducted an\ninvestigation following the June 30, 2020, incident at Southern Star Central Gas Pipeline, Inc.\n(Southern Star or Respondent) in Blackwell, Oklahoma (Incident). Southern Star is a transporter\nof natural gas, with approximately 5,800 miles of transmission pipeline in Missouri, Kansas,\nOklahoma, Wyoming, Colorado, Nebraska, and Texas.1\nAs a result of the inspection, the Director, Eastern Region, OPS (Director), issued to Respondent,\nby letter dated June 17, 2021, a Notice of Probable Violation and Proposed Civil Penalty\n(Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that Southern\nStar violated 49 C.F.R. §§ 191.5(a) and 199.225(a)(1) and proposed assessing a civil penalty of\n$46,200 for the alleged violations.\nSouthern Star responded to the Notice by letter dated July 6, 2021 (Response). Respondent\ncontested one of the allegations and offered additional information in response to the Notice.\nRespondent did not request a hearing and therefore has waived its right to one.\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 191 and 199, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 191.5(a), which states:\n§ 191.5 Immediate notice of certain incidents.\n(a) At the earliest practicable moment following discovery, but no later\nthan one hour after confirmed discovery, each operator must give notice in\n1 About Southern Star, https://www.southernstar.com/about-us/ (last accessed November 16, 2021).\n\n\n\nCPF No. 1-2021-037-NOPV\nPage 2\naccordance with paragraph (b) of this section of each incident as defined in\n§ 191.3.\nThe Notice alleged that Respondent violated 49 C.F.R. § 191.5(a) by failing to give notice of the\nIncident at the earliest practicable moment following discovery, but no later than one hour after\nconfirmed discovery. Specifically, the Notice alleged that on June 30, 2020, Respondent was in\nthe process of relieving pressure at its Blackwell Storage Field when an employee was struck on\nthe back of the head. The employee was administered first aid while an ambulance was\ndispatched, and the employee was later admitted to the hospital for head injuries. The Notice\nalleged that Southern Star did not give notice in accordance with paragraph (b) of § 191.5 until\n4:45 PM CDT on June 30, 2020, despite the Incident occurring around 12:23 PM CDT on June\n30, 2020.\nIn its Response, Southern Star asserted that at the time of the Incident around 12:23 PM CDT on\nJune 30, 2020, the on-site personnel did not know the severity of the employee’s injury and\nwhether in-patient hospitalization would be required. Respondent argued that it complied with\n§ 191.5 by giving notice after learning the hospital admitted the injured employee for\nobservation at 4:09 PM CDT on June 30, 2020.\nI find Southern Star’s argument unpersuasive.\nPursuant to § 191.5, an operator must give notice no later than one hour after confirmed\ndiscovery of each incident as defined in § 191.3.2 “Confirmed discovery” is defined as: “when it\ncan be reasonably determined, based on information available to the operator at the time a\nreportable event has occurred, even if only based on a preliminary evaluation.”3\nAn operator’s obligation to report under § 191.5 is not dependent upon its confirmation that the\nreporting criteria have been met.4 Rather, the relevant criteria for when an operator must report\nare: whether an operator could know that a report is likely to be required after the event, and, if\nso, whether it is able to collect the reportable information mandated by §191.5(b).5 This\nmandated reporting allows the National Response Center (NRC) to obtain potentially critical\n2 An “incident” means an event that involves a release of gas and that results in, among other things, personal injury\nnecessitating in-patient hospitalization. There is no dispute that the event in question meets the definition of an\nincident as defined in § 191.3. See 49 C.F.R. § 191.3(1)(i).\n3 49 C.F.R. § 191.3.\n4 See The City of Richmond Virginia, CPF 1-2004-0006; 2006 WL 3825337, at *2 (January 12, 2006) (“…OPS\ninterprets ‘discovery’ to mean discovery of the incident itself, not discovery that the reporting criteria have been\nmet. Therefore, OPS requires pipeline operators to report incidents to the NRC at the earliest practicable moment\nfollowing discovery of the incident itself.”).\n5 See Texas Eastern Transmission Corporation, CPF 4-2001-1003; 2005 WL 5010168, at *4 (May 5, 2005) (finding\nthat respondent’s report of a gas release 27 hours after it occurred was non-compliant with the reporting\nrequirements of § 191.5 because, less than two hours after it occurred, respondent could have estimated it would\nlikely need to be reported, based on the amount and cost of gas released, and respondent was able to collect the\nminimal amount of information required to be reported).\n\n\n\nCPF No. 1-2021-037-NOPV\nPage 3\ninformation at the earliest practicable moment.6 OPS realizes that this may result in the NRC\nreceiving reports of events that are not required to be reported. If an operator determines through\nlater investigation that an event initially reported as an “incident” was not required to be\nreported, it should, within 48 hours after the confirmed discovery of the incident, to the extent\npracticable, revise its initial telephonic notice pursuant to the report submission requirements of\n§ 191.7.7\nThe evidence shows that, around the time of the employee’s injury, Southern Star could know it\nwould likely need to make a report. The Incident occurred on June 30, 2020, around 12:23 PM\nCDT, when Respondent’s employees were relieving excess pressure in Well 30 at Blackwell\nStorage Field. During this work, one employee sustained blunt force trauma to the back of their\nhead from equipment used to relieve the pressure. On-site personnel determined around the time\nof the injury that the employee necessitated transport to a hospital for medical attention. It is\nreasonable that in-patient hospitalization would result therefrom. Southern Star was able to\ncollect the reportable information at the time of the employee’s injury, that is: the location of the\nincident, time of the incident, number of injuries, the name of person reporting, and any other\nsignificant facts known by the operator relevant to the cause of the incident or extent of the\ndamages.\nAccordingly, after considering all of the evidence and the legal issue presented, I find\nthat Respondent violated 49 C.F.R. § 191.5 by failing to give notice of the Incident at the earliest\npracticable moment following discovery, but no later than one hour after confirmed discovery.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 199.225(a)(1), which states:\n§ 199.225 Alcohol tests required.\nEach operator must conduct the following types of alcohol tests for the\npresence of alcohol.\n(a) Post accident. (1) As soon as practicable following an accident, each\noperator must test each surviving covered employee for alcohol if that\nemployee’s performance of a covered function either contributed to the\naccident or cannot be completely discounted as a contributing factor to the\naccident. The decision not to administer a test under this section must be\nbased on specific information that the covered employee’s performance had\nno role in the cause(s) or severity of the accident.\nThe Notice alleged that Respondent violated 49 C.F.R. § 199.225(a)(1) by failing to conduct\nrequired alcohol tests as soon as practicable following the Incident for employees performing\ntasks that contributed to the Incident or those whose performance of a task cannot be completely\ndiscounted as a contributing factor to the accident. Specifically, the Notice alleged that Southern\nStar did not test two of its employees associated with the Incident.\n6 See Public Service Company of New Mexico, CPF 44003; 1998 WL 35166483, at *2 (March 2, 1998) (stating that\nthe policy of early reporting requirements of §191.5 “allow[] the NRC to gather potentially critical information at\nthe earliest practicable moment,” even if it results in over-reporting).\n7 See 49 C.F.R. § 191.5(c).\n\n\n\nCPF No. 1-2021-037-NOPV\nPage 4\nRespondent did not contest this allegation of violation. Accordingly, based upon a review of all\nof the evidence, I find that Southern Star violated 49 C.F.R. § 199.225(a)(1) by failing to conduct\nrequired alcohol tests as soon as practicable following the Incident for employees performing\ntasks that contributed to the Incident or those whose performance of a task cannot be completely\ndiscounted as a contributing factor to the accident.\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$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any\nrelated series of violations.8\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; any effect that the penalty may have on its ability to continue\ndoing business; the good faith of Respondent in attempting to comply with the pipeline safety\nregulations; and self-disclosure or actions to correct a violation prior to discovery by PHMSA.\nIn addition, I may consider the economic benefit gained from the violation without any reduction\nbecause of subsequent damages, and such other matters as justice may require. The Notice\nproposed a total civil penalty of $46,200 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $22,400 for Respondent’s violation of 49 C.F.R.\n§ 191.5(a), for failing to give notice of the Incident at the earliest practicable moment following\ndiscovery, but no later than one hour after confirmed discovery. Respondent contested the\nallegation and the proposed penalty. For the reasons set forth above, I found Southern Star’s\nargument for withdrawing the underlying item unpersuasive. Respondent did not set forth any\nadditional arguments for reduction of the proposed civil penalty. Considering the penalty\nassessment factors, I find the proposed penalty appropriate for this violation. Specifically, the\nnature of the violation related to Respondent’s failure to conduct an activity; the circumstances\nwere that the violation was discovered by PHMSA; the gravity recognized that safety was\nminimally affected; culpability reflected Respondent failed to comply with an applicable\nrequirement; Respondent had a single prior offense; and good faith reflected that the operator did\nnot have a reasonable justification for the noncompliance. Accordingly, having reviewed the\nrecord and considered the assessment criteria, I assess Respondent a civil penalty of $22,400 for\nviolation of 49 C.F.R. § 191.5(a).\nItem 2: The Notice proposed a civil penalty of $23,800 for Respondent’s violation of 49 C.F.R.\n§ 199.225(a)(1), for failing to conduct required alcohol tests as soon as practicable following the\nIncident for employees performing tasks or those whose performance of a task cannot be\n8 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223.\n\n\n\nCPF No. 1-2021-037-NOPV\nPage 5\ncompletely discounted as a contributing factor to the accident. Southern Star neither contested\nthe allegation nor presented any evidence or argument justifying a reduction in the proposed\npenalty. Accordingly, having reviewed the record and considered the assessment criteria, I\nassess Respondent a civil penalty of $23,800 for violation of 49 C.F.R. § 199.225(a)(1).\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 $46,200.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations (49\nC.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, 6500 S MacArthur Blvd, Oklahoma City, Oklahoma 79169.\nThe Financial Operations Division telephone number is (405) 954-8845.\nFailure to pay the $46,200 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, Respondent may submit a Petition for Reconsideration of this Final\nOrder to the Associate Administrator, Office of Pipeline Safety, PHMSA, 1200 New Jersey\nAvenue, SE, East Building, 2nd Floor, Washington, DC 20590, with a copy sent to the Office of\nChief Counsel, PHMSA, at the same address, no later than 20 days after receipt of service of the\nFinal Order by Respondent. Any petition submitted must contain a brief statement of the issue(s)\nand meet all other requirements of 49 C.F.R. § 190.243. The filing of a petition automatically\nstays the payment of any civil penalty assessed. The other terms of the order, including any\ncorrective action, remain in effect unless the Associate Administrator, upon request, grants a\nstay. If Respondent submits payment of the civil penalty, the Final Order becomes the final\nadministrative decision and the right to petition for reconsideration is waived.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nDecember 9, 2021\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n12021037NOPV_Decision on Petition for Reconsideration_04042022_(20-185140)_text.pdf\n\nApril 4, 2022\nVIA ELECTRONIC MAIL TO: jimmy.staton@southernstar.com\nMr. Jimmy Staton\nPresident and Chief Executive Officer\nSouthern Star Central Gas Pipeline, Inc.\n4700 State Route 56\nBox 20010\nOwensboro, Kentucky 42301\nRe: CPF No. 1-2021-037-NOPV\nDear Mr. Staton:\nEnclosed is the Decision on the Petition for Reconsideration issued in the above-referenced case.\nFor the reasons explained therein, the Decision grants your Petition. When the remaining civil\npenalty has been paid, this enforcement action will automatically be closed. This Decision\nconstitutes the final administrative action in this proceeding. Service of this decision by\nelectronic mail is effective upon the date of transmission and acknowledgment of receipt as\nprovided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Robert Burrough, Director, Eastern Region, Office of Pipeline Safety, PHMSA\nMr. Shawn L. Patterson, Vice President and Chief Operations Officer, Southern Star\nCentral Gas Pipeline, Inc., shawn.patterson@southernstar.com\nMr. Craig Thomas, Manager, Integrity Management & PHMSA Compliance, Southern\nStar Central Gas Pipeline, Inc., craig.thomas@southernstar.com\n\n\n\nMr. Mark Luckett, Lead Attorney, Southern Star Central Gas Pipeline, Inc.,\nmark.luckett@southernstar.com\nCONFIRMATION OF 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)\nSouthern Star Central Gas Pipeline, Inc., )\nRespondent. )\n______________________________________)\n) CPF No. 1-2021-037-NOPV\nDECISION ON PETITION FOR RECONSIDERATION\nOn July 1, 2020, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), conducted an\ninvestigation following the June 30, 2020 incident at Southern Star Central Gas Pipeline, Inc.\n(Southern Star or Respondent) in Blackwell, Oklahoma (Incident). Southern Star is a transporter\nof natural gas, with approximately 5,800 miles of transmission pipeline in Missouri, Kansas,\nOklahoma, Wyoming, Colorado, Nebraska, and Texas.1\nAs a result of the inspection, the Director, Eastern Region, OPS (Director), issued to Respondent,\nby letter dated June 17, 2021, a Notice of Probable Violation and Proposed Civil Penalty\n(Notice).2 In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that Southern\nStar violated 49 C.F.R. §§ 191.5(a) (Item 1) and 199.225(a)(1) (Item 2) and proposed assessing a\ncivil penalty of $46,200 for the alleged violations.3\nSouthern Star responded to the Notice by letter dated July 6, 2021 (Response).4 Respondent\ncontested the proposed finding in Item 1 that it violated § 191.5(a) and offered additional\ninformation in response to the Notice.5 Respondent did not contest Item 2. Respondent did not\nrequest a hearing and therefore waived its right to one.\n1 About Southern Star, https://www.southernstar.com/about-us/ (last accessed March 7, 2022).\n2 Southern Star Central Gas Pipeline, Inc., Notice of Probable Violation and Proposed Civil Penalty, CPF No. 1-\n2021-037-NOPV (Notice) (June 17, 2021) (on file with PHMSA).\n3 Id., at 2-3.\n4 Response to Notice of Probable Violation and Proposed Civil Penalty, dated July 6, 2021 (Response) (on file with\nPHMSA).\n5 Id.\n\n\n\nCPF No. 1-2021-037-NOPV\nPage 2\nOn December 9, 2021, pursuant to 49 U.S.C. §§ 60117 and 60122 and 49 C.F.R. § 190.213,\nPHMSA issued a final order finding that Responded violated 49 C.F.R. §§ 191.5(a) and\n199.225(a)(1) (Final Order).6 Item 1 of the Final Order found that Southern Star violated\n§ 191.5(a) by failing to give notice of the Incident at the earliest practicable moment following\ndiscovery, but no later than one hour after confirmed discovery.7 Item 2 of the Final Order found\nthat Respondent violated § 199.225(a)(1) by failing to conduct required alcohol tests as soon as\npracticable following the Incident for employees performing tasks that contributed to the\nIncident or those whose performance of a task cannot be completely discounted as a contributing\nfactor to the Incident.8 The Final Order assessed a civil penalty of $46,200, pursuant to the\nauthority of 49 U.S.C. § 60122 and 49 C.F.R. §190.223.\nOn December 23, 2021, Southern Star filed a Petition for Reconsideration pursuant to 49 C.F.R.\n§ 190.243 (Petition).9 In its Petition, Respondent requested reconsideration of Item 1 of the Final\nOrder.10 Respondent did not request reconsideration of Item 2 of the Final Order.\nStandard of Review\nUnder 49 C.F.R. § 190.243, a respondent may petition the Associate Administrator for\nreconsideration of a final order that has been issued pursuant to §190.213. Reconsideration is\nnot an appeal or a completely new review of the record.11 A respondent may ask for correction\nof an error or, in limited circumstances, may present previously unavailable information. If a\nrespondent requests consideration of additional facts or arguments, the respondent must submit\nthe reasons they were not presented prior to the issuance of the final order. The Associate\nAdministrator may grant or deny, in whole or in part, a petition for reconsideration without\nfurther proceedings.\nDiscussion\nItem 1: The Final Order found that Respondent violated 49 C.F.R. § 191.5(a), which states:\n§ 191.5 Immediate notice of certain incidents.\n(a) At the earliest practicable moment following discovery, but no later\nthan one hour after confirmed discovery, each operator must give notice in\naccordance with paragraph (b) of this section of each incident as defined in\n§ 191.3.\n6 Southern Star Central Gas Pipeline, Inc., Final Order, CPF No. 1-2021-037-NOPV (Final Order) (December 9,\n2021) (on file with PHMSA).\n7 Id., at 1-3.\n8 Id., at 3-4.\n9 Petition for Reconsideration of Final Order, dated December 23, 2021 (Petition) (on file with PHMSA).\n10 Id., at 3.\n11 49 C.F.R. § 190.243(a)-(d).\n\n\n\nCPF No. 1-2021-037-NOPV\nPage 3\nThe Final Order found that Southern Star violated 49 C.F.R. § 191.5(a) by failing to give notice\nof the Incident at the earliest practicable moment following discovery, but no later than one hour\nafter confirmed discovery. The event occurred on June 30, 2020, around 12:23 PM CT, when\nRespondent’s employees were relieving excess pressure in Well 30 at Blackwell Storage Field.\nDuring this work, one employee sustained an injury to their head from equipment used to relieve\nthe pressure. On-site personnel determined around the time of the injury that the employee\nnecessitated transport to a hospital for medical attention. The employee was at the hospital for a\nperiod of time before being admitted as an inpatient at 4:09 PM CT. Respondent notified the\nNational Response Center (NRC) at 4:45 PM CT, over four hours after the event occurred, but\nless than one hour after being admitted.\nIn its Petition, Southern Star asserted that its staff at the time of the event could not immediately\nknow the extent of the employee’s “internal injuries,” took reasonable steps to monitor the\nemployee’s care at the hospital, and notified the NRC within one hour of the employee being\nadmitted to the hospital as an inpatient.12\nBackground\nPursuant to 49 C.F.R. § 191.5(a), an operator must provide notice of certain incidents “at the\nearliest practicable moment following discovery, but no later than one hour after confirmed\ndiscovery.”13 Confirmed discovery means “when it can be reasonably determined, based on\ninformation available to the operator at the time a reportable event has occurred, even if only\nbased on a preliminary evaluation.”14 Read together, § 191.5(a) requires operators to report\nincidents at the earliest practicable moment, but no later than one hour after it can be reasonably\ndetermined, based on the information available, that a reportable event has occurred, even if only\nbased on a preliminary evaluation.\nThis reporting requirement was adopted in 2017 at the direction of Congress. In the Pipeline\nSafety, Regulatory Certainty, and Job Creation Act of 2011 (Public Law 112–90), Congress\ndirected PHMSA to “establish time limits for telephonic or electronic notification of an accident\nor incident to require such notification at the earliest practicable moment following confirmed\ndiscovery of an accident or incident and not later than 1 hour following the time of such\nconfirmed discovery.”\nOn January 23, 2017, PHMSA published the rule “Pipeline Safety: Operator Qualification, Cost\nRecovery, Accident and Incident Notification, and Other Pipeline Safety Changes.”15 In the rule,\nPHMSA explained that the purpose of the revised notification requirement is to alert local, state,\n12 Petition, supra, at 2-3.\n13 As it pertains to the facts of this case, a reportable “incident” means an event that involves a release of gas from a\npipeline and results in personal injury necessitating inpatient hospitalization.\n14 49 C.F.R. § 191.3.\n15 82 FR 7972.\n\n\n\nCPF No. 1-2021-037-NOPV\nPage 4\nand federal agencies at the earliest practicable moment so that emergency personnel or\ninvestigators can be dispatched quickly. Without this requirement, and under alternatives\nproposed by commenters, each operator could have a different methodology that would\npotentially take hours or days before an operator completed its evaluation and determined that an\naccident or incident had in fact occurred. PHMSA noted that if an operator were allowed to wait\nfor a definitive confirmation, even where the operator already has sufficient evidence, the intent\nof the Congressional mandate would be defeated. Accordingly, PHMSA explained that it was\nadopting this reporting requirement, including the one-hour time limit and the definition of\n“confirmed discovery,” to abide by the Congressional mandate requiring operators to report\nincidents and accidents despite not having a complete assessment.\nAnalysis\nIn the present case, the Final Order found that on-site personnel determined around the time of\nthe injury that the employee necessitated transport to a hospital for medical attention. It was\ntherefore reasonable, the Final Order concluded, that inpatient hospitalization would result.\nAccordingly, the Final Order determined Respondent was required to report the incident no later\nthan one hour after the injury occurred.\nOn reconsideration, I review whether Respondent should have determined, based on the\ninformation available, that a reportable event had occurred, even if only based on a preliminary\nevaluation. While Respondent decided the employee necessitated transport to the hospital for\nmedical attention, that decision alone may not necessarily provide enough information to\ndetermine a reportable event has occurred. In some situations, it may be prudent to transport an\nindividual to a hospital for outpatient treatment of injuries that would not be expected to result in\ninpatient hospitalization.\nWith that in mind, and recognizing Respondent’s staff at the time of the event could not ascertain\nthe extent of the employee’s internal injuries, I find reason to exercise enforcement discretion in\nthis matter and reduce the violation to a warning. Accordingly, the finding of violation is\nwithdrawn. If OPS finds a violation of this provision in a subsequent inspection, Respondent\nmay be subject to future enforcement action.\nThe decision to exercise enforcement discretion in this matter is specific to the facts of this\nincident. Unlike in the present case where Respondent’s staff could not ascertain the extent of\nthe injuries, there could be situations where an injury is so severe that the operator has enough\ninformation to reasonably determine the necessity of inpatient hospitalization. In those\nsituations, the text of the regulation confirms the operator would be required to report such an\nincident as soon as practicable but no later than one hour after it can be reasonably determined\nthat a reportable event has occurred, regardless of when admittance to the hospital actually\noccurs.\nSouthern Star also made additional arguments for withdrawing the violation, including that\nPHMSA’s interpretation creates ambiguity and that it would be inconsistent with a prior final\n\n\n\nCPF No. 1-2021-037-NOPV\nPage 5\norder, In the Matter of the City of Richmond, Virginia.\n16 Since the violation is withdrawn, it is\nnot necessary to address Respondent’s additional arguments for withdrawal.\nConclusion\nAfter reconsidering the evidence of record, I find it appropriate to withdraw the finding of\nviolation in Item 1 of the Final Order. As such, the civil penalty assessed for Item 1 is also\nwithdrawn.\nThe Final Order also assessed a civil penalty of $23,800 for Item 2. Respondent did not seek\nreconsideration of Item 2. Therefore, the civil penalty of $23,800 for Item 2 is now due.\nPayment of the civil penalty must be made within 20 days after receipt of this Decision. Federal\nregulations (49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through\nthe Federal Reserve Communications System (Fedwire), to the account of the U.S. Treasury.\nDetailed instructions are contained in the enclosure. Questions concerning wire transfers should\nbe directed to: Financial Operations Division (AMK-325), Federal Aviation Administration,\nMike Monroney Aeronautical Center, 6500 S MacArthur Blvd, Oklahoma City, Oklahoma\n79169. The Financial Operations Division telephone number is (405) 954-8845.\nFailure to pay the $23,800 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 United\nStates District Court.\nThis Decision on Reconsideration is the final administrative action in this proceeding.\nApril 4, 2022\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety\n16 Petition, supra, at 2 (citing In the Matter of the City of Richmond, Virginia, CPF 1-2004-0006; 2006 WL 3825337\n(January 12, 2006)). PHMSA notes City of Richmond was issued before PHMSA adopted the more stringent\nreporting requirement and definition of “confirmed discovery” that exist today.","truncated":false,"body_characters":32698}