{"operation":"document","citation":"CPF 220101004","title":"FLORIDA GAS TRANSMISSION CO — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2010-02-23","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.5(b)(3), 192.615(a), 192.709, 192.903(b), 199.105(a), 199.225(a)(1).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-220101004.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-220101004.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-220101004","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/220101004","body":"Notice of Probable Violation involving FLORIDA GAS TRANSMISSION CO. PHMSA's enforcement data identifies the cited regulations as 192.5(b)(3),  192.615(a),  192.709,  192.903(b),  199.105(a),  199.225(a)(1). The case was opened on 2010-02-23 and is reported as closed as of 2012-01-13. Proposed civil penalty: $95,000. Assessed civil penalty: $95,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n220101004_Decision on the Petition for Reconsideration_12142011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_Decision%20on%20the%20Petition%20for%20Reconsideration_12142011.pdf\n\n220101004_Decision on the Petition for Reconsideration_12142011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_Decision%20on%20the%20Petition%20for%20Reconsideration_12142011_text.pdf\n\n220101004_Final Order_06292011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_Final%20Order_06292011.pdf\n\n220101004_Final Order_06292011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_Final%20Order_06292011_text.pdf\n\n220101004_notice letter_02232010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_notice%20letter_02232010.pdf\n\n220101004_notice letter_02232010_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_notice%20letter_02232010_text.pdf\n\n220101004_operator response_03262010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_operator%20response_03262010.pdf\n\n220101004_Final Order_06292011_text.pdf\n\nJUN 29 2011\nMr. Thomas Stone\nVice President, Chief Operations and Maintenance Officer\nFlorida Gas Transmission Company, LLC\n5444 Westheimer Road\nHouston, TX 77056\nRe: CPF No. 2-2010-1004\nDear Mr. Stone:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a civil penalty of $95,000. The penalty payment terms are set forth in the\nFinal Order. This enforcement action closes automatically upon receipt of payment. Service of\nthe Final Order by certified mail is deemed effective upon the date of mailing, or as otherwise\nprovided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: . Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety\nMr. Wayne Lemoi, Director, Southern Region, PHMSA\nMr. Louis P. Soldano, Vice President, General Counsel, Florida Gas Transmission\nCompany, LLC\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED [7005 1160 0001 0075 9503]\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\n)\nIn the Matter of )\n)\nFlorida Gas Transmission Company, ) CPF No. 2-2010-1004\nLLC )\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nPursuant to 49 U.S.C. § 60117, representatives of the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA), Office of Pipeline Safety (OPS), conducted an investigation of a\nfailure involving a pipeline system operated by Florida Gas Transmission Company, LLC\n(FGTC or Respondent) in Martin County, Florida. FGTC is the operator of a 5,000-mile natural\ngas pipeline system that originates in Texas and terminates in South Florida.1\nThe investigation arose out of a May 4, 2009 failure that occurred on FGTC’s 18-inch natural\ngas pipeline at Milepost 810.3 in southeast Florida. Specifically, the pipeline ruptured and the\ngas ignited ejecting a 113-foot section of pipe from the ground. The failure resulted in serious\ninjuries including the hospitalization of three individuals and the temporary closure of the\nFlorida Turnpike.2\nAs a result of the investigation, the Director, Southern Region, OPS (Director), issued to\nRespondent, by letter dated February 23, 2010, a Notice of Probable Violation and Proposed\nCivil Penalty (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding\nthat FGTC had committed various violations of 49 C.F.R. Part 192, and proposed assessing a\ncivil penalty of $95,000 for the alleged violations. The Notice also included several warning\nitems pursuant to 49 C.F.R. § 190.205.\nFGTC responded to the Notice by letter dated March 26, 2010 (Response). Respondent\ncontested three of the allegations and requested a hearing. An informal hearing was\nsubsequently held on July 15, 2010, in Atlanta, Georgia, with an attorney from the Office of\nChief Counsel, PHMSA, presiding. At the hearing, FGTC was represented by counsel and\n1 http://www.panhandleenergy.com/comp_fld.asp.\n2 See In the Matter of Florida Gas Transmission Company, LLC, CPF No. 2-2009-1002H (May 7, 2009) (available\nat www.phmsa.dot.gov).\n\n\n\n2\npresented testimony from its Director of Pipelines and a Technical Consultant. After the hearing,\nRespondent provided a post-hearing statement for the record, by letter dated August 30, 2010\n(Closing).3\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 192, as follows:\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 199.105, which states in\nrelevant part:\n§ 199.105 Drug tests required.\nEach operator shall conduct the following drug tests for the presence\nof a prohibited drug:\n(a) . . . .\n(b) Post-accident testing. As soon as possible but no later than 32\nhours after an accident, an operator shall drug test each employee whose\nperformance either contributed to the accident or cannot be completely\ndiscounted as a contributing factor to the accident. An operator may\ndecide not to test under this paragraph but such a decision must be based\non the best information available immediately after the accident that the\nemployee's performance could not have contributed to the accident or that,\nbecause of the time between that performance and the accident, it is not\nlikely that a drug test would reveal whether the performance was affected\nby drug use.4\nThe Notice alleged that Respondent violated 49 C.F.R. § 199.105(b) by failing to drug test each\nemployee whose performance either contributed to the May 4, 2009 accident or could not be\ncompletely discounted as a contributing factor to the accident. In particular, the Notice stated\nthat FGTC did not drug test two of the four pipeline controllers who were involved in operating\nthe pipeline during the accident.\n5\nIn its Response, at the hearing, and in its Closing, FGTC disputed this allegation. Respondent\n3 On September 1, 2010, the presiding official informed Respondent that he had not received its post-hearing\nmaterials, which were due by August 30, 2010. He ordered counsel to show cause as to why the matter should not\nbe decided in their absence. On September 3, 2010, FGTC responded by stating that those materials had been sent\nto the presiding official via certified mail on August 30, 2010, and later provided further information which verified\ntheir transmission on the date in question. The presiding eventually received Respondent’s Closing and confirmed\nthat its receipt had been delayed for several days due to an internal mailing issue. For the reasons, FGTC’s Closing\nis deemed timely filed as of its mailing date for purposes of this proceeding.\n4 In accordance with § 199.3, the term “accident” includes an incident reportable under part 191 involving a gas\npipeline facility.\n5 The Notice incorrectly stated that FGTC only had four pipeline controllers on duty on May 4, 2009. The actual\nnumber was five.\n\n\n\n3\nexplained that its pipeline controllers are staffed on 12-hour shifts, and that those shifts are\nscheduled daily from 5:30 a.m. to 5:30 p.m. (day shift) and 5:30 p.m. to 5:30 a.m. (night shift).\nFGTC stated that it drug tested the two night-shift pipeline controllers who were on duty at the\ntime of the rupture, but that it did not drug test the three day-shift controllers who reported for\nduty shortly thereafter. Respondent argued that the best available information at that time of the\naccident showed that the performance of the day-shift controllers could not have been a\ncontributing factor. Therefore, FGTC concluded that it did not need to drug test those three day\nshift employees.\n6\nAt the hearing, the Director maintained that the company did not have sufficient information\nimmediately available after the accident to “completely discount” the performance of the day-\nshift controllers as a contributing factor. The Director further noted that Respondent had not\nmade or kept any contemporaneous records documenting the basis for its decision not to drug\ntest those three employees.\nSection 199.5(b) states that “an operator shall drug test each employee whose performance either\ncontributed to the accident or cannot be completely discounted as a contributing factor to the\naccident.” Like the other requirements in 49 C.F.R. Part 199, § 199.5(b) is designed to “place\nand structure of the regulation creates a strong presumption in favor of post-accident drug\ntesting, i.e., an operator must drug test each employee whose performance either contributed to\nthe accident or cannot be completely discounted as a contributing factor to the accident.\nsignificant constraints on an operator's discretion in conducting drug testing.”7 Indeed, the text\nIn this case, the evidence indicates that FGTC’s pipeline ruptured at approximately 5:09 a.m.\nEastern Daylight Savings Time (EDT). Two night-shift pipeline controllers were on duty at that\ntime, with three day-shift pipeline controllers reporting for duty during the next 26 minutes, i.e.,\nat 5:10 a.m., 5:34 a.m., and 5:35 a.m., respectively.\nThe evidence also indicates that FGTC first learned of the failure when it received a telephone\ncall from the Martin County Fire and Rescue Squad at 5:49 a.m., approximately 14 minutes after\nthe last day-shift controller reported for duty and 1 minute before the last night-shift controller\nleft the premises after completing his transition duties. The three day-shift controllers then spent\nthe next several hours assisting FGTC in its efforts to respond to the failure.\nFinally, the evidence indicates that at 8:05 a.m. on the morning of the accident Respondent\nreported to the National Response Center (NRC) that the cause of the failure was “unknown” and\nthat it had “limited information.\n” FGTC still listed the cause of the accident as “unknown” and\n“under investigation” in the incident report it filed with PHMSA 34 days later, on June 8, 2009.\nBased on this evidence, I find that Respondent did not have sufficient information available\nimmediately after the accident to conclude that the performance of the day-shift controllers could\n6 In fact, FGTC argued that it did not have to drug test any of the pipeline controllers because the information\navailable at the time showed that they could not have caused or contributed to the accident.\n7 See Control of Drug Use In Natural Gas, Liquefied Natural Gas, and Hazardous Liquid Pipeline Operations,\n53 Fed. Reg. 47084, 47086 (Nov. 21, 1988).\n\n\n\n4\n“be completely discounted as a contributing factor to the accident.” Accident scenarios play out\nover a period of time and the actions of employees who came on the scene in the minutes\nfollowing the initiating event can impact the severity of spills and releases and the effectiveness\nof response actions. All three of these employees were on duty when FGTC first learned of the\nfailure, and each had an active role in its response to the accident.\nMoreover, Respondent had not identified the cause of the failure in the NRC report filed on the\nmorning of the accident, or in the incident report filed with PHMSA some 34 days later. That\nundermines FGTC’s assertion that it had a legitimate basis for concluding that the performance\nof the day-shift controllers could be completely discounted as a contributing factor, particularly\nin the immediate aftermath of the failure.\n8\nIn summary, the day-shift controllers were on duty when events critical to the accident occurred,\nincluding the initial reporting and response to the failure, and Respondent lacked a sufficient,\ncontemporaneous basis for concluding that those employees should not be drug tested.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n§ 199.105 by failing to drug test each employee whose performance either contributed to the\nMay 4, 2009 accident or could not be completely discounted as a contributing factor to that\naccident.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 199.225, which states in\nrelevant part:\n§ 199.225 Alcohol tests required.\nEach operator shall conduct the following types of alcohol tests for the\npresence of alcohol:\n(a) Post-accident.\n(1) As soon as practicable following an accident, each operator shall\ntest each surviving covered employee for alcohol if that employee's\nperformance of a covered function either contributed to the accident or\ncannot be completely discounted as a contributing factor to the accident.\nThe decision not to administer a test under this section shall be based on\nthe operator's determination, using the best available information at the\ntime of the determination, that the covered employee's performance could\nnot have contributed to the accident.9\nThe Notice alleged that Respondent violated 49 C.F.R. § 199.225(a)(1) by failing to test each\ncovered employee for alcohol whose performance of a covered function either contributed to the\n8 At the hearing and in its Closing, FGTC objected to the Director’s references to the absence of any documentation\nof its decision not to drug test the day-shift controllers, arguing that 49 C.F.R. Part 199 does not require an operator\nto make or keep such records. I note that the allegation of violation in the Notice is based solely on Respondent’s\nfailure to drug test its employees after the accident, rather than any failure on its part to maintain adequate\ndocumentation.\n9 As defined in 49 C.F.R. § 199.3, the term “covered employee” includes any person who performs an operations,\nmaintenance, or emergency-response function regulated by 49 C.F.R. Part 192.\n\n\n\n5\nMay 4, 2009 accident or could not be completely discounted as a contributing factor to that\naccident. In particular, the Notice stated that FGTC did not test two of the four pipeline\ncontrollers who were involved in operating the pipeline during the accident for the presence of\nalcohol.10\nIn its Response, at the hearing, and in its Closing, FGTC argued that it did not commit the\nalleged violation for the same reasons discussed in Item 2. The Director relied on his same\nresponse in maintaining that a violation occurred.\n11\nNeither party has argued that a material difference exists in the construction or application of\n§ 199.105(b) and § 199.225(a)(1), and I find that there is no other basis in the record for doing so\nin this proceeding. Accordingly, for the reasons discussed in Item 2, after considering all of the\nevidence, I find that Respondent violated 49 C.F.R. § 199.225(a)(1) by failing to test each of the\ncontrollers for alcohol whose performance of a covered function could not be completely\ndiscounted as a contributing factor to that accident.\nItem 4: The Notice alleged that Respondent violated 49 C.F.R. § 192.709, which states in\nrelevant part:\n§ 192.709 Transmission lines: Record keeping.\nEach operator shall maintain the following records for transmission\nlines for the periods specified:\n(a) The date, location, and description of each repair made to pipe\n(including pipe-to-pipe connections) must be retained for as long as the\npipe remains in service.\nThe Notice alleged that FGTC had violated 49 C.F.R. § 192.709(a) by failing to retain a record\nof the date, location, and description of each repair made to the 18-inch pipeline that ruptured on\nMay 4, 2009. In particular, the Notice stated that Respondent had replaced some of the original\nPolyken-tape-coated pipe with fusion-bond-epoxy-coated pipe after discovering external\ncorrosion during a 2004 inline inspection.\nIn its Response, at the hearing, and in its Closing, FGTC did not contest this allegation of\nviolation, but noted it had recently taken steps to improve its recordkeeping system.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n§ 192.709(a) by failing to retain a record of the date, location, and description of each repair\nmade to the 18-inch pipeline that ruptured on May 4, 2009.\nThese findings of violation will be considered prior offenses in any subsequent enforcement\naction taken against Respondent.\n10 As with Item 2, the Notice incorrectly stated that FGTC had four pipeline controllers who were on duty on May 4,\n2009. The actual number was five.\n11 Although the Notice stated that Respondent had tested two of the pipeline controllers who were on duty on May 4,\n2009, for the presence of alcohol, FGTC acknowledged at the hearing that it had not in fact tested any of those\nemployees.\n\n\n\n6\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any\nrelated series of violations. In determining the amount of a civil penalty under 49 U.S.C.\n§ 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,\ncircumstances, and gravity of the violation, including adverse impact on the environment; the\ndegree of Respondent’s culpability; the history of Respondent’s prior offenses; the Respondent’s\nability to pay the penalty and any effect that the penalty may have on its ability to continue doing\nbusiness; and the good faith of Respondent in attempting to comply with the pipeline safety\nregulations. In addition, I may consider the economic benefit gained from the violation without\nany reduction because of subsequent damages, and such other matters as justice may require.\nThe Notice proposed a total civil penalty of $95,000 for the violations in Items 2, 3, and 4, cited\nabove.\nItem 2: The Notice proposed a civil penalty of $40,000 for Respondent’s violation of 49 C.F.R.\n§ 199.105(b), for failing to drug test each employee whose performance either contributed to the\nMay 4, 2009 accident or could not be completely discounted as a contributing factor. FGTC\nargues generally that the proposed penalty amount is excessive. Respondent further argues that\nthe two night-shift pipeline controllers received drug tests immediately after the accident, and\nthat its determination that the day shift controllers did not contribute to the accident was based on\nthe best information available at the time thereby warranting a reduction in the proposed civil\npenalty.\nWith regard to the gravity of this violation, FGTC failed to drug test all of the employees\ninvolved in a serious pipeline accident, i.e., one that occurred in a high consequence area and\nwhich led to the ejection of a 113-foot section of buried pipe, the hospitalization of three\nindividuals, and the temporary closure of the Florida Turnpike. Moreover, as with all violations\nof the drug testing requirements, Respondent’s inaction also meant that the opportunity to drug\ntest these employees in connection with this accident was forever lost.\nMoreover, at the time the Notice was prepared and issued, OPS believed, incorrectly, that FGTC\nhad only failed to drug test two employees. The fact that Respondent actually failed to drug test\nthree employees suggests that the proposed civil penalty is below the amount that should have\nbeen assessed for this violation, not that a reduction is warranted.\nThe Notice also proposed identical civil penalty amounts for Respondent’s violation of both the\ndrug and alcohol testing requirements. As these requirements serve the same purpose, and the\nallegations of violation are based on the same factual premise, i.e., that FGTC had failed to test\nall covered employees the proposed penalties for both violations are reasonable and consistent.\nFinally, Respondent has not presented any persuasive justification for its conduct, or contended\nthat the proposed penalty would have an adverse effect on its ability to continue in business.\nAccordingly, FGTC’s contention that it should receive a reduction in the proposed civil penalty\nfor failing to drug test all covered employees is unpersuasive. Accordingly, having reviewed the\nrecord and considered the assessment criteria, I assess FGTC a civil penalty of $40,000 for\nviolation of 49 C.F.R. § 199.105(b).\n\n\n\n7\nItem 3: The Notice proposed a civil penalty of $40,000 for Respondent’s violation of 49 C.F.R.\n§ 199.225(a)(1), for failing to test each covered employee for alcohol whose performance of a\ncovered function either contributed to the May 4, 2009 accident or could not be completely\ndiscounted as a contributing factor to that accident. FGTC argues that the proposed penalty\namount is excessive. For the reasons stated in Item 2, I do not find these arguments persuasive.12\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $40,000 for violation of 49 C.F.R. § 199.105(b).\nItem 4: The Notice proposed a civil penalty of $15,000 for Respondent’s violation of 49 C.F.R.\n§ 192.709(a), for failing to retain a record of the date, location, and description of each repair\nmade to the 18-inch pipeline that ruptured on May 4, 2009. FGTC notes that it has recently\ntaken steps to improve this aspect of its recordkeeping system.\nRespondent failed to properly document repairs that it made to a pipeline that later experienced a\nfailure. If readily available, those records could have assisted in determining its potential cause\nand the likelihood of a similar incident occurring in another location. Respondent has not\npresented any persuasive justification for its conduct, or argued that the proposed penalty would\nhave an adverse effect on its ability to continue in business. Accordingly, having reviewed the\nrecord and considered the assessment criteria, I assess Respondent a civil penalty of $15,000 for\nviolation of 49 C.F.R. § 192.709(a).\n13\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a total civil penalty of $95,000.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations\n(49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through the Federal\nReserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed\ninstructions are contained in the enclosure. Questions concerning wire transfers should be\ndirected to: Financial Operations Division (AMZ-341), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P.O. Box 269039, Oklahoma City, Oklahoma 73125. The\nFinancial Operations Division telephone number is (405) 954-8893.\nFailure to pay the $95,000 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.\n12 The Notice stated that FGTC had tested two of the pipeline controllers for alcohol, but Respondent admitted at the\nhearing that it had not tested on any of its five pipeline controllers. As OPS has not asked to issue an amendment\nbased on that admission, the civil penalty is based solely on the allegation made in the Notice, i.e., that FGTC failed\nto perform the required alcohol test on two employees.\n13 See In the Matter of Columbia Gas Transmission, LLC, CPF No. 1-2007-1004, 2009 WL 5538656 (Dec. 17,\n2009) (assessing $11,000 civil penalty for violation of recordkeeping requirement in 49 C.F.R. § 192.709).\n\n\n\n8\nWARNING ITEMS\nWith respect to Items 1, 5, and 6, the Notice alleged probable violations of Part 192 and\nspecifically considered these to be warning items. The warnings were for:\n49 C.F.R. § 192.5(b)(3) (Item 1) ─ Respondent’s alleged failure to determine the\nproper class location unit for the pipeline that ruptured on May 4, 2009.\nSpecifically, the Notice stated that this segment lies within 100 yards of South\nFork High School’s 4H agriculture facilities, and that those facilities are occupied\nby 20 or more persons on at least 5 days a week for 10 weeks in any 12-month\nperiod and that FGTC should have identified it as being within a Class 3 location;\n49 C.F.R. §§ 192.615(a)(3)(iii) and (a)(6) (Item 5) ─ Respondent’s alleged failure\nto have and follow procedures for prompt and effective response to each type of\nemergency, including an explosion that occurs near or directly involves a pipeline\nfacility and for initiating an emergency shutdown and pressure reduction in any\nsection of its pipeline system that is necessary to minimize hazards to life or\nproperty. In particular, the Notice stated that FGTC’s 18-inch natural gas pipeline\nruptured at 5:09 a.m. EST on May 4, 2009, but that Respondent did not recognize\nthat event until it received a phone call from the Martin County Fire and Rescue\nSquad 5:49 a.m. EST. The Notice also stated that a mainline valve downstream\nfrom the rupture point failed to automatically close at the time of the accident, and\nthat natural gas from a parallel 30-inch line continued to flow back into and vent\nout of the 18-inch line until FGTC manually closed that valve two hours later.\nFinally, the Notice stated that Respondent’s emergency response was not prompt,\nand that its Supervisory Control and Data Acquisition System failed to recognize\nthe rupture at the time of the accident; and\n49 C.F.R. §§ 192.903 and 192.905(b) (Item 6) ─ Respondent’s alleged failure to\nidentify South Fork High School’s 4-H agricultural facilities as an identified site\nwithin the potential impact radius (PIR) of its 18-inch line. In particular, the\nNotice alleged that South Fork High School students use those facilities five days\nper week, that they are within the 365-foot PIR for FGTC’s 18-inch line, and that\nRespondent is in the process of designating the affected pipeline segments as a\nHigh Consequence Area (HCA).\nFGTC presented information in its Response showing that it had taken certain actions to address\nthe cited items. In the event that OPS finds a violation of these provisions in a subsequent\ninspection, Respondent may be subject to future enforcement action.\nUnder 49 C.F.R. § 190.215, Respondent has the right to submit a Petition for Reconsideration of\nthis Final Order. The petition must be sent to: Associate Administrator, Office of Pipeline\nSafety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor, Washington, DC\n20590, with a copy sent to the Office of Chief Counsel, PHMSA, at the same address. PHMSA\nwill accept petitions received no later than 20 days after receipt of the Final Order by the\nRespondent, provided they contain a brief statement of the issue(s) and meet all other\n\n\n\n9\nrequirements of 49 C.F.R. § 190.215. The filing of a petition automatically stays the payment of\nany civil penalty assessed. If Respondent submits payment of the civil penalty, the Final Order\nbecomes the final administrative 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.\n___________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n220101004_Decision on the Petition for Reconsideration_12142011_text.pdf\n\nDEC 1 4 2011\nMr. Thomas Stone\nVice President, Chief Operations and Maintenance Officer\nFlorida Gas Transmission Company, LLC\n5051 Westheimer Road\nHouston, TX 77056\nRe: CPF No. 2-2010-1004\nDear Mr. Stone:\nEnclosed please find the Decision on Reconsideration issued in the above-referenced case. It\ndenies your Petition for Reconsideration. Service of the Decision by certified mail is deemed\neffective upon the date of mailing, or as otherwise provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Wayne Lemoi, Director, Southern Region, PHMSA\nMr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety,\nPHMSA\nMr. Louis Soldano, Vice President and General Counsel, Florida Gas Transmission\nCompany, LLC\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED [71791000164202950824]\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 )\nFlorida Gas Transmission ) CPF No. 2-2010-1004\nCompany, LLC, )\n)\n)\n)\nPetitioner. )\n______________________________)\nDECISION ON RECONSIDERATION\nIn a June 29, 2011 Final Order, I found that Florida Gas Transmission Company, LLC (FGTC)\nhad violated the drug and alcohol testing requirements in 49 C.F.R. §§ 199.105(b) and\n199.225(a)(1) and the gas transmission line recordkeeping requirements in 49 C.F.R.\n§ 192.709(a), based on the results of the Office of Pipeline Safety’s (OPS) investigation of a\nMay 2009 pipeline accident in Southeast Florida. I assessed FGTC a civil penalty of $95,000 for\nthose violations and issued the company a warning item for several other probable violations.\nOn July 15, 2011, FGTC submitted a Petition for Reconsideration (Petition) of the Final Order.\nThe Petition stated that the findings of violation related to the drug and alcohol testing\nrequirements were arbitrary and capricious, an abuse of discretion, or otherwise not in\naccordance with law. The Petition requested that those portions of the Final Order be\nwithdrawn.\nBecause the evidence of record supports the findings in question, I am denying this Petition and\naffirming the Final Order without modification.\nBackground\nOn May 4, 2009, FGTC’s 18-inch natural gas pipeline ruptured at Milepost (MP) 810.3 in Martin\nCounty, Florida.\n1\nThe rupture caused the ejection of a 113-foot section of the pipeline, the\nhospitalization of three individuals, and the closure of the Florida Turnpike.\n1 See In the Matter of Florida Gas Transmission Company, LLC, CPF No. 2-2009-1002H (May 7, 2009) (available\nat\nwww.phmsa.dot.gov). FGTC is the operator of a 5,000-mile natural gas pipeline system that runs from Texas to\nSouth Florida. http://www.panhandleenergy.com/comp_fld.asp.\n\n\n\n2\nThe Director, Southern Region, OPS (Director), initiated an investigation of the accident and\nsubsequently issued Petitioner a Notice of Probable Violation and Proposed Civil Penalty\n(Notice). The Notice, dated February 23, 2010, proposed finding that FGTC had violated\n49 C.F.R. §§ 192.709(a), 199.105(b), and 199.225(a)(1) and assessing a civil penalty of $95,000\nfor the alleged violations. The Notice also included several warning items pursuant to\n49 C.F.R. § 190.205.\nFGTC responded to the Notice, by letter dated March 26, 2010, and requested a hearing. That\nhearing was held on July 15, 2010, in Atlanta, Georgia. By letter dated August 30, 2010,\nPetitioner provided a post-hearing statement for the record.\nOn June 29, 2011, I issued a Final Order that sustained all of the findings of violation proposed\nin the Notice. Specifically, I found that FGTC had an obligation to administer drug and alcohol\ntests to the three day-shift pipeline control room employees who reported for duty on May 4,\n2009, because the company did not have sufficient information available immediately after the\naccident to conclude that the conduct of those employees could be completely discounted as a\ncontributing factor. I further found that FGTC had failed to retain a record of the date, location,\nand description of certain repairs made to the ruptured section of the pipeline. Accordingly, I\nconcluded that Petitioner had violated §§ 199.105(b), 199.225(a)(1), and 192.709(a) as alleged in\nthe Notice and assessed the proposed civil penalty amount of $95,000 for those violations.\nOn July 15, 2011, FGTC submitted this Petition requesting reconsideration of those portions of\nthe Final Order that concerned the drug and alcohol testing requirements of 49 C.F.R. Part 199.\nPetitioner argued that the best information available at the time of the accident did not show that\nthe conduct of the three day-shift pipeline controllers caused or contributed to the May 4, 2009\naccident; therefore, FGTC had no obligation to test those employees for the presence of drugs or\nalcohol. Petitioner further argued that the Final Order relied on inadequate evidence and an\nerroneous interpretation of §§ 199.105(b) and 199.225(a)(1) to sustain the violations alleged in\nthe Notice.\nStandard of Review\nA respondent is afforded the right to petition the Associate Administrator for reconsideration of a\nfinal order. However, that right is not an appeal or an opportunity to seek a de novo review of\nnot previously available or requesting that any errors in the final order be corrected. Requests\nfor consideration of additional facts or arguments must be supported by a statement of reasons as\nthe record.2 It is a venue for presenting the Associate Administrator with information that was\nto why those facts or arguments were not presented prior to the issuance of the final order.\nRepetitious information or arguments will not be considered.\nAnalysis\nSections 199.105(b) and 199.255(a)(1) require an operator to administer a drug and alcohol test\nfor each employee whose performance either contributed to an accident or cannot be completely\n2 49 C.F.R. § 190.215(a)-(e).\n\n\n\n3\ndiscounted as a contributing factor to an accident. Those regulations further state that an\noperator’s decision not to administer a drug or alcohol test must be based on the best available\ninformation at the time.\nIn its Petition, FGTC argues that the best information available at the time showed that the\nconduct of the three day-shift pipeline controllers did not cause or contribute to the May 4, 2009\nrupture. Petitioner further argues that the Final Order relied on inadequate evidence (i.e., the fact\nthat FGTC listed the cause of the rupture as unknown in several reports submitted after the\naccident, and that the company failed to maintain any documentation of its decision not to\nsubject the day-shift controllers to drug or alcohol testing) and an erroneous interpretation of\n§§ 199.105(b) and 199.225(a)(1) to sustain the allegations of violation.\nAs I explained in the Final Order, the pipeline in question ruptured at approximately 5:09 a.m.\nEastern Daylight Savings Time (EDT) on May 4, 2009. At that time, FGTC had two night-shift\npipeline controllers on duty. However, the company’s three day-shift pipeline controllers all\nreported for duty within the next 30 minutes (i.e., at 5:10 a.m., 5:34 a.m., and 5:35 a.m.,\nrespectively). At 5:49 a.m., Petitioner first learned of the rupture at MP 810.3, when the\ncompany received a telephone call from the Martin County Fire and Rescue Squad. The three\nday-shift controllers spent the next several hours assisting Petitioner’s accident response efforts.\nAt 8:05 a.m., FGTC informed the National Response Center (NRC) that the cause of the failure\nwas unknown, a position the company continued to maintain in an incident report filed with\nPHMSA on June 8, 2009.\nCiting these facts, I reached the following conclusions in the Final Order as to whether FGTC\nhad an obligation to administer a drug test to the three day-shift controllers:\nRespondent did not have sufficient information available immediately after the\naccident to conclude that the performance of the day-shift controllers could “be\ncompletely discounted as a contributing factor to the accident.” Accident\nscenarios play out over a period of time and the actions of employees who came\non the scene in the minutes following the initiating event can impact the severity\nof . . . releases and the effectiveness of response actions. All three of these\nemployees were on duty when FGTC first learned of the failure, and each had an\nactive role in its response to the accident.\nMoreover, Respondent had not identified the cause of the failure in the NRC\nreport filed on the morning of the accident, or in the incident report filed with\nPHMSA some 34 days later. That undermines FGTC's assertion that it had a\nlegitimate basis for concluding that the performance of the day-shift controllers\ncould be completely discounted as a contributing factor, particularly in the\nimmediate aftermath of the failure.\nIn summary, the day-shift controllers were on duty when events critical to the\naccident occurred, including the initial reporting and response to the failure, and\nRespondent lacked a sufficient, contemporaneous basis for concluding that those\nemployees should not be drug tested.\n\n\n\n4\nIn a subsequent portion of the Final Order, I noted that the same reasoning applied in\ndetermining whether FGTC had an obligation to test the three day-shift controllers for the\npresence of alcohol.\nPetitioner has not presented any persuasive basis for reconsidering these findings. The evidence\nin the record does not show that FGTC had sufficient information available immediately after the\naccident to conclude that the performance of the day-shift controllers could “be completely\ndiscounted as a contributing factor to the accident.” Those employees were on duty during\ncritical phases of the accident, and the record does not show that Petitioner had enough\ninformation about the cause of the failure to determine that they should not be subject to a drug\nor alcohol test. That conclusion is supported by a reasonable construction of the text, structure,\nand purpose of the applicable regulations, which create a strong presumption in favor of post-\naccident drug and alcohol testing.\nFor these reasons, I am rejecting Petitioner’s request for reconsideration of the findings that\nFGTC violated 49 C.F.R. §§ 199.105(a) and 199.225(a)(1) by failing to perform a drug and\nalcohol test of each employee whose performance either contributed to the May 4, 2009 accident\nor could not be completely discounted as a contributing factor to that accident.\nRELIEF DENIED\nBased on the information provided in the Petition, a review of the relevant portions of the record,\nand for the reasons stated above, I am affirming the Final Order without modification.\nThis Decision is the final administrative action in this proceeding.\n_____________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n220101004_notice letter_02232010_text.pdf\n\nNOTICE OF PROBABLE VIOLATION\nAnd\nPROPOSED CIVIL PENALTY\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nFebruary 23, 2010\nMr. Jeryl Mohn\nSenior Vice President, Operations and Engineering\nFlorida Gas Transmission Company, LLC\n5444 Westheimer Road\nHouston, TX 77056\nCPF 2-2010-1004\nDear Mr. Mohn:\nAs a result of the May 4, 2009 pipeline accident on the Florida Gas Transmission (FGT) 18\ninch pipeline in Martin County, Florida, representatives of the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA) pursuant to Chapter 601 of 49 United States Code\ninvestigated the accident and inspected FGT pipeline facilities and records involved in the\naccident. It appears that you have committed probable violations of the pipeline safety\nregulations, Title 49, Code of Federal Regulations. The items inspected and the probable\nviolations are:\n1. §192.5 Class Locations.\n…(b) Except as provided in paragraph (c) of this section, pipeline locations are\nclassified as follows:\n(3) A Class 3 location is:\n(ii) An area where the pipeline lies within 100 yards (91 meter","truncated":true,"body_characters":50136}