{"operation":"document","citation":"CPF 220055003","title":"ENTERPRISE PRODUCTS OPERATING LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2005-01-25","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(c)(1), 195.402(c)(13), 195.402(c)(4).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-220055003.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-220055003.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-220055003","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/220055003","body":"Notice of Probable Violation involving ENTERPRISE PRODUCTS OPERATING LLC. PHMSA's enforcement data identifies the cited regulations as 195,  195.402(c)(1),  195.402(c)(13),  195.402(c)(4). The case was opened on 2005-01-25 and is reported as closed as of 2005-12-13. Proposed civil penalty: $10,000. Assessed civil penalty: $10,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n220055003_Final Order_12012005.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220055003/220055003_Final%20Order_12012005.pdf\n\nCPF No 2-2005-5003 Final Order Enterprise Produts Operating LP.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220055003/CPF%20No%202-2005-5003%20Final%20Order%20Enterprise%20Produts%20Operating%20LP.pdf\n\nCPF No 2-2005-5003 Final Order Enterprise Produts Operating LP.pdf\n\nU.S. Department\nof Transportation\nPipeline and\nHazardous Materials Safety\nAdministration\n400 Seventh Street, S.W.\nWashington, D.C. 20590\nMr. Terry Hurlburt\nVice President, Eastern Operations\nEnterprise Products Operating, LP\n2727 North Loop West\nHouston, TX 772 10\nRE: CPF NO. 2-2005-5003\nDear Mr. Scott:\nEnclosed is the Final Order issued by the Associate Administrator for Pipeline Safety in the\nabove-referenced case. It makes a finding of violation and assesses a civil penalty of $10,000.\nThe penalty payment terms are set forth in the Final Order. This enforcement action closes\nautomatically upon payment. Your receipt of the Final Order constitutes service of that document\nunder 49 C.F.R. 5 190.5.\nSincerely,\nJames Reynolds\nPipeline Compliance Registry\nOffice of Pipeline Safety\nEnclosure\ncc: Mr. Joel E. Kohler, PE, Manager Pipeline Compliance, Enterprise Products\nMs. Linda Daugherty, Director, Southern Region, OPS\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\n\n\n\nDEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\nIn the Matter of 1\nEnterprise Products Operating, LP,\nRespondent.\n) I CPF NO. 2-2005-5003\nFINAL ORDER\nFrom November 15-18, 2004, pursuant to 49 U.S.C. $ 601 17, a representative of the Office of\nPipeline Safety (OPS), Southern Region conducted an on-site pipeline safety inspection of\nRespondent's Chunchula pipeline facilities and records in Alabama and Mississippi. As a result of\nthe inspection, the Director, Southern Region, OPS, issued to Respondent, by letter dated January\n25,2005, a Notice of Probable Violation and Proposed Civil Penalty (Notice)'. In accordance with\n49 C.F.R. $ 190.207, the Notice proposed finding that Respondent had violated 49 C.F.R. $195.402\nand proposed assessing a civil penalty of $10,000 for the alleged violations.\nRespondent responded to the Notice by letter dated February 18, 2005 (Response). Respondent\ncontested the allegations of violation, offered an explanation to explain the allegations and provided\ninformation concerning the corrective actions it has taken. Respondent also requested that the\nproposed civil penalty be eliminated. Respondent did not request a hearing, and therefore has\nwaived the right to one.\nFINDINGS OF VIOLATION\nItem 1 of the Notice alleged that Respondent violated 49 C.F.R $195.402 (a) and (c)(4), by not\nidentifying or designating in its manual of written procedures which pipeline facilities are located\nin areas that would require an immediate response by the operator to prevent hazards to the public\nif the facilities failed or malhctioned. At the time of the inspection, Respondent did not provide\nrecords to demonstrate compliance but stated that it would respond immediately to failures along the\npipeline.\ni This case, however, is no longer before RSPA for decision. Effective February 20,2005, the Pipeline and\nHazardous Materials Safety Administration (PHMSA) was created to further the highest degree of safety in pipeline\ntransportation and hazardous materials transportation. See, section 108 of the Norman Y. Mineta Research and\nSpecial Programs Improvement Act (Public Law 108-426, 11 8 Stat. 2423-2429 (November 30,2004)). See also, 70\nFed. Reg. 8299 (February 18,2005) redelegating the pipeline safety functions to the Administrator, PHMSA.\n\n\n\nIn Response, Respondent asserted that based upon a recommendation from an OPS Team during an\nApril 2004 Operations and Maintenance Manual (O&M) inspection, it inserted language into its\nO&M under \"Investigation of Failures\" to address the subject of areas for immediate response. In\nsupport of its position, Respondent submitted a copy of its Procedure 5.1 \"Investigation of Failures,\"\nwhich it argued has been in the manual effective June 2004 and was available before and during the\nNovember 15- 18,2004 OPS inspection. Respondent further asserted that its immediate response\nareas are linked to its high consequence areas (HCA) and strip maps, which were and are available\nwithin its pipeline integrity department and local offices.\nAlthough, Respondent argued that the subject compliance language has been in its manual since June\n2004 and available before and during the OPS inspection, the OPS inspector was unable to find any\nsuch language in Respondent's O&M manual after a thorough review. Nevertheless, in the interest\nof good faith, the OPS inspector gave Respondent three (3) days to research the O&M manual and\nshow that the subject compliance language was contained within.\nAAer three days, Respondent failed to demonstrate that the O&M manual contained any language\nthat addressed immediate response areas. Respondent also acknowledged during its exit interview\nthat it had not provided the OPS inspector the O&M language referencing its immediate response\nareas. Federal regulations require that Respondent maintain and follow its manual of written\nprocedures which must include which pipeline facilities are located in areas that would require an\nimmediate response by the operator to prevent hazards to the public if the facilities failed or\nmalfunctioned. At the time of the inspection, Respondent failed to provide or demonstrate that its\nO&M manual contained the requisite compliance language. Accordingly, I find that Respondent\nviolated 49 C.F.R. § 195.402 (a)and (c)(4) by failing to include in its manual of written procedures\nwhich pipeline facilities are located in areas that would require an immediate response by the\noperator to prevent hazards to the public if the facilities failed or malfunctioned.\nItem 2 of the Notice alleged that Respondent violated 49 C.F.R 8195.402 (a) and (c)(13), by not\nproviding records to demonstrate that it periodically reviews the work done by its personnel to\ndetermine the effectiveness and adequacy of the procedures used in normal operations and\nmaintenance.\nIn Response, Respondent submitted language fiom its O&M procedures that it argued addressed this\nrequirement. Respondent further argued that the procedures and relevant forms have been used since\nits manual review in 2003. Respondent explained that a standard form is used to address each area\nof O&M and to document the performance of these reviews. For operations personnel, the\nemployee's supervisor reviews normal, abnormal, and emergency procedures annually. The results\nare documented as Satisfactory, Unsatisfactory, or Not Applicable. For maintenance personnel, the\nemployee's supervisor reviews routine maintenance, mechanical troubleshooting, IIE, meter\nprovinglrepair, corrosion protection, lock-outhag-out, and excavation procedures. The same criteria\nare used as with operations to document the results. Respondent further explained that for field\nverification of the performance of a task, it utilizes the performance-based evaluations required by\nOperator Qualification rule and a part of its Operator Qualification Program. Each person is\nqualified to perform a covered task must complete a performance-based evaluation of the elements\nof the covered tasks.\n\n\n\nA review of the forms submitted by Respondent are clearly labeled \"Pipeline Employee Evaluation\"\nand are used to document the training performance of their employees. The O&M excerpt submitted\nby Respondent to demonstrate compliance actually refers to employee training and the annual review\nof written procedures by employees and contractors. However, the alleged violation has nothing to\ndo with training or the performance of the employee.\nThe requisite review is of the procedures, not the employee. For example, an employee may\ncomplete a procedure in an excellent manner but the procedure itself could be flawed. Conversely,\nthe employee's performance could be unsatisfactory but the procedure used could be found to be\nvery effective. Federal regulations require that Respondent periodically review the work done by its\npersonnel to determine the effectiveness and adequacy of the procedures used and to take corrective\naction where deficiencies are found. The forms submitted by Respondent labeled \"Pipeline\nEmployee Evaluation\" failed to demonstrate compliance. Accordingly, I find that Respondent\nviolated 49 C.F.R. 8195.402 (a)and (c)(13) by failing to provide records to demonstrate that it\nperiodically reviews the work done by its personnel to determine the effectiveness and adequacy of\nthe procedures used.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to a civil penalty not to exceed $100,000 per\nviolation for each day of the violation up to a maximum of $1,000,000 for any related series of\nviolations. The Notice proposed a $10,000 civil penalty for violations of 49 C.F.R. 8 195.402.\n49 U.S.C. 8 60122 and 49 C.F.R. 8 190.225 require that, in determining the amount of the civil\npenalty, I consider the following criteria: nature, circumstances, and gravity of the violation, degree\nof Respondent's culpability, history of Respondent's prior offenses, Respondent's ability to pay the\npenalty, good faith by Respondent in attempting to achieve compliance, the effect on Respondent's\nability to continue in business, and such other matters as justice may require.\nThe Notice in Item 1 proposed a civil penalty of $5,000, as Respondent failed to include in its\nmanual of written procedures designations for which pipeline facilities are located in areas that\nwould require an immediate response by the operator to prevent hazards to the public if the facilities\nfailed or malfunctioned. Respondent argued that the civil penalty should be eliminated because it\ninserted language to address areas for immediate response into its O&M under \"Investigation of\nFailures\" effective June 2004 and that it was available before and during the November 15- 18,2004\nOPS inspection.\nAlong with the Response, Respondent submitted its Procedure 5.1 \"Investigation of Failures,\"which\nit contended referenced its immediate response areas and was in the manual effective June 2004 and\nthat it was available before and during the November 15-1 8, 2004 OPS inspection. Respondent\nargued that it has and continues to achieve compliance with the regulations and seeks elimination\nof the proposed civil penalty.\n\n\n\nAt the time of the inspection, Respondent failed to provide or demonstrate that the requisite\ncompliance language was in its O&M manual, even after being given an additional three days to do\nso. Respondent's submission raised more questions than provided answers. It is interesting that\nafter the Respondent was given three (3) days to research it's O&M manual Respondent was unable\nto show that the subject compliance language was contained therein. Also of interest is the fact that\nthe records show, during the exit interview, two of Respondent's employees concurred with the\ninspector's findings that Respondent had not provided the O&M language. After receipt of the\nNotice, Respondent submitted documents which it contended was in the manual at the time of the\ninspection. However, the appearance of the submission differs from the photostatic copies taken of\nRespondent's O&M manual at the Chunchula, Alabama office during the inspection. The documents\ncopied during the inspection showed Respondent's logo at the top of each page, a page number at\nthe bottom center of each page and a date in the lower left of each page. The response submission\ndoes not have Respondent's logo, a page number or a date. Also of interest is the fact that the date\non the photocopies is not June 2004. Even if Respondent changed its O&M manual in June 2004\nas it contended, that change was not shown in the O&M manual being use in the field during the\nNovember 15-1 8,2004 OPS inspection.\nAn objective of the regulation is to assure that operators are prepared to recognize pipeline facilities\nlocated in areas that would require an immediate response to prevent hazards to the public if the\nfacilities failed or malfunctioned in an expeditious and safe manner. When an operator fails to\ninclude such language in its O&M, the proper procedures and techniques to follow may not be clear\nto those responsible for responding to immediate response areas. At the time of the inspection,\nRespondent failed to provide or demonstrate that the requisite compliance language was in its O&M\nmanual. Respondent has not provided any evidence that would justifl elimination of the proposed\ncivil penalty. Accordingly, having reviewed the record and considered the assessment criteria, I\nassess Respondent a civil penalty of $5,000, for violation of 49 C.F.R. §195.402(a) and (c)(4).\nThe Notice in Item 2 proposed a civil penalty of $5,000, as Respondent failed to provide records to\ndemonstrate that the it periodically reviews the work done by its personnel to determine the\neffectiveness and adequacy of the procedures used in normal operations and maintenance. In\nresponse, Respondent advised that it has corrected its O&M procedures manual, developed\napplicable documents to record the requirement and submitted copies of several completed forms.\nRespondent argued that it has and continues to achieve compliance with the regulations and seeks\nelimination of the proposed civil penalty.\nFederal regulations require that Respondent periodically review the work done by its personnel to\ndetermine the effectiveness and adequacy of the procedures used in normal operations and\nmaintenance. During the exit interview, Respondent's employees acknowledged and concurred with\nthe inspector's findings that they had not periodically reviewed and documented the work done by\nthe it's personnel to determine the effectiveness of the procedures used in normal operations and\nmaintenance. In furtherance, Respondent's submission failed to demonstrate compliance.\nRespondent has not provided any evidence that would justify elimination of the proposed civil\npenalty. Accordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $5,000, for violation of 49 C.F.R. §195.402(a) and (c)(l3).\n\n\n\nPayment of the civil penalty must be made within 20 days of service. Payment may be made by\nsending a certified check or money order (containing the CPF Number for this case) payable to\n\"U.S. Department of Transportation\" to the Federal Aviation Administration, Mike Monroney\nAeronautical Center, Financial Operations Division (AMZ-120), P.O. Box 25770, Oklahoma City,\nOK 73125.\nFederal regulations (49 C.F.R. $ 89.21(b)(3)) also permit this payment to be made by wire transfer,\nthrough the 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 be\ndirected to: Financial Operations Division (AMZ-120), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P.O. Box 25082, Oklahoma City, OK 73125; (405) 954-4719.\nFailure to pay the $10,000 civil penalty will result in accrual of interest at the current annual rate in\naccordance with 3 1 U.S.C. $ 371 7,3 1 C.F.R. $ 901.9 and 49 C.F.R. $89.23. Pursuant to those same\nauthorities, a late penalty charge of six percent (6%) per annum will be charged if payment is not\nmade within 1 10 days of service. Furthermore, failure to pay the civil penalty may result in referral\nof the matter to the Attorney General for appropriate action in an United States District Court.\nWARNING ITEM\nThe Notice did not propose a civil penalty or corrective action for Item 3 in the Notice; therefore,\nthis is considered warning item. Respondent is warned that if it does not take appropriate action to\ncorrect this item, enforcement action will be taken if a subsequent inspection reveals a violation.\nThe warning was for -\n49 C.F.R. $ 195.402(a) - failing to update the alignment sheets in the Chunchula field\noffice where operations and maintenance activities are conducted, as the alignment\nsheets did not reflect any changes that have occurred on the pipeline since the system\nwas built in 1979.\nUnder 49 C.F.R. $ 190.215, Respondent has a right to Petition for Reconsideration of this Final\nOrder. The petition must be received within 20 days of Respondent's receipt of this Final Order and\nmust contain a brief statement of the issue(s). The filing of a petition automatically stays the\npayment of any civil penalty assessed. However, if Respondent submits payment for the civil\npenalty, the Final Order becomes the final administrative decision and the right to Petition for\nReconsideration is waived. The terms and conditions of this Final Order are effective upon receipt.\nDate Issued\n~ w i a t e Administrator\nfor Pipeline Safety\n\n220055003_Final Order_12012005.pdf\n\n@\nU.S. Depodmenf\nof Tronsportotion\nPlpaline ond\nHozol'dous tltoteriots Sotely\nAdmlnbtmtlon\n.[00 Seventh Slreet. S.W.\nWashinglon, D.C. 20590\n0s-tm5\nMr. TerryHurlburt\nVice President, Eastem Operations\nEnterprise Products Operating, LP\n2727 Northloop West\nHouston, TX772L0\nREr CPF No. 2-2005-5003\nDear Mr. Scott:\nEnclosed is the Final Order issued by the Associate Administrator for Pipeline Safety in the\nabove-referenced case. It makes a finding of violation and assesses a civil penalty of $ I 0,000.\nThe penalty payment terms are set forth in the Final Order. This enforcement action closes\nautomatically uponpayment. Yourreceipt ofthe Final Order constitutes service ofthat document\nunder 49 C.F.R. $ 190.5.\nSincerely,\n+\".* #'L-\nJames Reynolds\nPipeline Compliance Registry\nOffice of Pipeline Safety\nEnclosure\nMr. Joel E. Kohler, PE, Manager Pipeline Compliance, Enterprise Products\nMs. Linda Daugherty, Director, Southem Region, OPS\nCERTIF'IED MAIL. RETURN RECEIPT REOUESTED\n,/lnJm,,,l\n\n\n\nDEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOF'FICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\nIn the Matter of\nEnterprise Products Operating, LP,\n)\n)\n) CPF No. 2-2005-5003\n_t\nF'INAL ORDER\nFrom November 15-18,2004, pursuant to 49 U.S.C. $ 60117, a representative of the Office of\nPipeline Safety (OPS), Southern Region conducted an on-site pipeline safety inspection of\nRespondent's Chunchula pipeline facilities and records in Alabama and Mississippi. As a result of\nthe inspection, the Director, Southern Region, OPS, issued to Respondent, by letter dated January\n25,2005, aNotice of Probable Violation and Proposed Civil Penalty (Notice)r. In accordance with\n49 C.F.R. $ 190.207, the Notice proposed finding that Respondent had violated 49 C.F.R. $ 195,402\nand proposed assessing a civil penalty of$10,000 for the alleged violations.\nRespondent responded to the Notice by letter dated February 18,2005 (Response). Respondent\ncontested the allegations ofviolation, offered an explanation to explain the allegations and provided\ninformation concerning the corrective actions it has taken. Respondent also requested that the\nproposed civil penalty be eliminated. Respondent did not request a hearing, and therefore has\nwaived the right to one.\nFINDINGS OF VIOLATION\nrtem I of the Notice alleged that Respondent violated 49 C.F.R $195.402 (a) and (c)(4), by not\nidentifring or designating in its manual of written procedures which pipeline facilities are located\nin areas that would require an immediate response by the operator to prevent hazards to the public\nif the facilities failed or malfunctioned. At the time of the inspection; Respondent did not provide\nrecords to demonstrate compliance but stated that it would respond immediately to failures along the\npipeline.\n'This case, however, is no longer before RSPA for decision. Effective February 20,2005,the Pipeline and\nHazardous Materials Safety Adminisnation (PHMSA) was created to further the highest degree of safety in pipeline\ntransportation and hazardous materials tansportation. See, section 108 of the Norman Y. Mineta Research and\nSpeciaf Programs Improvement Act (Public Law 108-426, I l8 Stat. 2423-2429 (November 30, 2004)). See also, 70\nFed. Reg. 8299 (February 18, 2005) redelegating the pipeline safety functions to the Administrator, PHMSA.\n\n\n\no2\nIn Response, Respondent asserted that based upon a recommendation from an OPS Team during an\nApril 2004 Operations and Maintenance Manual (O&M) inspection, it inserted language into its\nO&M under \"Investigation of Failures\" to address the subject of areas for immediate response. In\nsupport of its position, Respondent submitted a copy ofits Procedure 5. I \"Investigation ofFailures,\"\nwhich it argued has been in the manual effective June 2004 and was available before and during the\nNovember 15-18, 2004 OPS inspection. Respondent further asserted that its immediate response\nareas are linked to its high consequence areas (HCA) and strip maps, which were and are available\nwithin its pipeline integrity department and local offices.\nAlthough, Respondent argued that the subject compliance language has been in its manual since June\n2004 and' available before and during the OPS inspection, the OPS inspector was unable to find any\nsuch language in Respondent's O&M manual after a thorough review. Nevertheless, in the interest\nof good faith, the OPS inspector gave Respondent three (3) days to research the O&M manual and\nshow that the subject cornpliance language was contained within.\nAfter three da1a, Respondent failed to demonstrate that the O&M manual contained anylangaage\nthat addressed immediate response areas. Respondent also acknowledged during its exit interview\nthat it had not provided the OPS inspector the O&M language referen-ing its immediate response\nareas. Federal regulations require that Respondent maintain and follow its manual of written\nprocedures which must include which pipeline facilities are located in areas that would require an\nimmediate response by the operator to prevent hazards to the public if the facilities failed or\nmalfunctioned. At the time of the inspection, Respondent failed to provide or demonstrate that its\nO&M manual contained the requisite compliance language. Accordingly, I find that Respondent\nviolated 49 C.F.R. 5195.402 (a)and (c)(a) by failing to include in its manual of written procedures\nwhich pipeline facilities are located in areas that would require an immediate response by the\noperator to prevent hazards to the public if the facilities failed or malfunctioned.\nrtem 2 of the Notice alleged that Respondent violated 49 c.F.R $195.402 (a) and (c)(13), by not\nproviding records to demonstrate that it periodically reviews the work done by its personnel to\ndetermine the effectiveness and adequacy of the procedures used in normal operations and\nmaintenance.\nIn Response, Respondent submitted language from its O&M procedures that it argued addressed this\nrequirement. Respondent further argued that the procedures and relevant forms have been used since\nits manual review.in 2003. Respondent explained that a standard form is used to address each area\nof O&M and to document the performance of these reviews. For operations personnel, the\nernployee's supervisor reviews normal, abnormal, and emergency procedures annualiy. The results\nare documented as Satisfactory Unsatisfactory or Not Applicable. For maintenance personnel, the\nemployee's superr.isor reviews routine maintenance, mechanical houbleshooting, VE, meter\nproving/repair, corrosion protection, lock-out/tag-out, and excavation procedures. The same criteria\nare used as with operations to document the results. Respondent fu/Ier explained that ftrr field\nverification of the performance of a task, it utilizes the performance-based evaluations required by\nOperator Qualification rule and a part of its Operator Qualification Program. Each person is\nqualified to perform a covered task must complete a performance-based evaluation of the elements\nofthe covered tasks.\n\n\n\nJ\nA review of the forms submitted by Respondent are clearly labeled \"Pipeline Employee Evaluation\"\nand are used to document the training performance oftheir employees. The O&M exceryt subrnitted\nby Respondent to demonstrate compliance actually refers to employee training and the annual review\nof written procedures by employees and contractors. However, the alleged violation has nothing to\ndo with training or the performance of the employee.\nThe requisite review is of the procedures, not the employee. For example, an employee may\ncomplete a procedure in an excellent manner but the procedure itself could be flawed. Conversely,\nthe employee's performance could be unsatisfactory but the procedure used could be found to be\nvery effective. Federal regulations require that Respondent periodically review the worft done by its\npersonnel to determine the ffictiveness and adequacy ofthe procedures used andtotake corrective\naction where deficiencies are found. The forms submitted by Respondent labeled \"Pipeline\nEmployee Evaluation\" failed to demonstrate compliance, Accordingly, I find that Respondent\nviolated 49 C.F.R. $195.402 (a)and (c)(13) by failing to provide records to demonstrate that it\nperiodically reviews the work done by its personnel to determine the effectiveness and adequacy of\nthe procedures used.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. S 60L22, Respondent is subject to a civil penalty not to exceed $100,000 per\nviolation for each day of the violation up to a maximum of $1,000,000 for any related series of\nviolations. The Notice proposed a $10,000 civil penalty for violations of 49 C.F.R. $ 195.402.\n49 U.S.C. $ 60122 utd 49 C.F.R. g 190.225 require that, in determining the amount of the civil\npenalty, I consider the following criteria: nature, circumstances, and gravity ofthe violation, degree\nof Respondent's culpability, history of Respondent's prior offenses, Respondent's ability to pay the\npenalty, good faith by Respondent in attempting to achieve compliance, the effect on Respondent's\nability to continue in business, and such other matters as justice may require.\nThe Notice in Item I proposed a civil penalty of $5,000, as Respondent failed to include in its\nmanual of written procedures designations for which pipeline facilities are located in areas that\nwould require an immediate response by the operator to prevent hazards to the public if the facilities\nfailed or malfunctioned. Respondent argued that the civil penalty should be eliminated because it\ninserted language to address areas for immediate response into its O&M under \"Investigation of\nFailures\" effective June 2004 and that itwas available before and durins theNovember 15-18. 2004\nOPS inspection.\nAlongwiththeResponse,RespondentsubmitteditsProcedure5.l \"InvestigationofFailures,\"which\nit eontended refereneed its inrmediale rcsponsc areas and was in the ma.nual effeetive June 2004 and\nthat it was available before and during the November 15-18,2004 OPS inspection. Respondent\nargued that it has and continues to achieve compliance with the regulations and seeks elimination\nofthe proposed civil penalty.\n\n\n\n4\nAt the time of the inspection, Respondent failed to provide or demonstrate that the requisite\ncompliance language was in its O&M manual, even after being given an additional three days to do\nso. Respondent's submission raised more questions than provided answers. It is interesting that\nafter the Re spondent was given three (3) days to research it's O&M manual Respondent was unable\nto show that the subject compliance language was contained therein. Also of interest is the fact that\nthe records show, during the exit interview, two of Respondent's employees concurred with the\ninspector's findings that Respondent had not provided the O&M language. After receipt of the\nNotice, Respondent submitted documents which it contended was in the manual at the time oftJre\ninspection, However, the appearance ofthe submission differs from the photostatic copies taken of\nRespondent's O&M manual at the Chunchula, Alabama office during the inspection. The documents\ncopied during the inspection showed Respondent's logo at the top of each page, apage number at\nthe bottom center ofeach page and a date in the lower left ofeach page. The response submission\ndoes not have Respondent's logo, 'a\npage number or a date. Also of interest is the fact that the date\non the photocopies is not June 2004. Even if Respondent changed its O&M manual in June 2004\nas it contended, that change was not shown in the O&M manual being use in the field during the\nNovember 1 5-18, 2004 OPS inspection.\nAn objective ofthe regulation is to assure that operators are prepared to recognize pipeline facilities\nlocated in areas that would require an immediate response to prevent hazards to the public if the\nfacilities failed or malfirnctioned in an expeditious and safe manner. When an operator fails to\ninclude such language in its O&M, the proper procedures and techniques to follow may not be clear\nto those responsible for responding to immediate response areas. At the time of the inspection,\nRespondent failed to provide or demonstrate thatthe requisite compliance language was in its O&M\nmanual. Respondent has not provided any evidence that would justiff elimination of the proposed\ncivil penalty. Accordingly, having reviewed the record and considered the assessment criteria, I\nassess Respondent a civil penalty of $5,000, for violation of 49 C.F.R. 9195.a02(a) and (c)(4).\nThe Notice in Item 2 proposed a civil penalty of$5,000, as Respondent failed to provide records to\ndemonstrate that the it periodically reviews the work done by its personnel to determine the\neffectiveness and adequacy of the procedures used in normal operations and maintenance. In\nresponse, Respondent advised that it has corrected its O&M procedures manual, developed\napplicable documents to record the requirement and submitted copies of several completed forms.\nRespondent argued that it has and continues to achieve compliance with the regulations and seeks\nelimination of the proposed civil penal.ry.\nFederal regulations require that Respondent periodically review the work done by its personnel to\ndetermine the effectiveness and adequacy of the procedures used in normal operations and\nmaintenance. Duringtheexitinterview,Respondent'semployeesacknowledgedandconcurredwith\nthe inspector's findings that they had not periodically reviewed and documented the work done by\nthe it's personnel to determine the effectiveness of the procedures used in normal operations and\nmailtenance. In furtherance, Respondent's submission failed to demonstrate compliance.\nRespondent has not provided any evidence that would justify elimination of the proposed civil\npenalty. Accordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $5,000, for violation of 49 C.F.R. 9195.a02(a) and (c)(13).\n\n\n\n5\nPayment of the civil penalty must be made within 20 days of service. Payment may be made by\nsending a certified check or money order (containing the CPF Number for this case) payable to\n\"U.S. Department of Transportation\" to the Federal Aviation Administration, Mike Monroney\nAeronautical Center, Financial Operations Division (AMZ-120),P.O. Box 25770,Oklahoma City,\noK 73125.\nFederal regulations (49 C.F.R. $ 89.21(bX3)) also permit this payment to be made by wire transfer,\nthroughthe Federal Reserve Communications System (Fedwire), to the account ofthe U.S. Treasury.\nDetailed instructions are contained in the enclosure. Questions conceming wire transfers should be\ndirected to: Financial Operations Division (AMZ-120), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P.O. Box 25082, Oklahoma City, OK 73125; (405) 954-4719.\nFailure to pay the $10,000 civil penalty will result in accrual of interest at the current annual rate in\naccordance with 31 u.s.c. s 3717,31 c.F.R. $ 901.9 and 49 C.F.R. $ 89.23. Pursuant to those same\nauthorities, a late penalty charge of six percent (6%) per annum will be charged if payment is not\nmade within I 10 days of service. Furthermore, failwe to pay the civil penalty may result in referral\nof the matter to the Attomey General for appropriate action in an United States District Court.\nWARNING ITEM\nThe Notice did not propose a civil penalty or corrective action for Item 3 in the Notice; therefore,\nthis is considered warning item. Respondent is warned that if it does not take appropriate action to\ncorrect this item, enforcement action will be taken if a subsequent inspection reveals a violation.\nThe warning was for -\n49 C.F.R. $ 195.402(a) - failing to update the alignment sheets in the Chunchula field\noffrce where operations and maintenance activities are conducted, as the alignment\nsheets did not reflect any changes that have occurred on the pipeline since the system\nwas built in1979.\nUnder 49 C.F.R. $ 190.215, Respondent has a right to Petition for Reconsideration of this Final\nOrder. The petition must be received within 20 days of Respondent's receipt ofthis Final Order and\nmust contain a brief statement of the issue(s). The filing of a petition automatically stays the\npayment of any civil penalty assessed. However, if Respondent submits payment for the civil\npenalty, the Final Order becomes the final administrative decision and the right to Petition for\nReconsideration is waived. The terms and conditions ofthis Final Order are effective upon receipt.\n0Fi0 - 1 rnnr\nI L\\.,VJ\nDate Issued\nAdministrator","truncated":false,"body_characters":34075}