# FLORIDA GAS TRANSMISSION CO — Notice of Probable Violation

- **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:** Not available
- **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.

Official case documents:

220101004_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

220101004_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

220101004_Final Order_06292011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_Final%20Order_06292011.pdf

220101004_Final Order_06292011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_Final%20Order_06292011_text.pdf

220101004_notice letter_02232010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_notice%20letter_02232010.pdf

220101004_notice letter_02232010_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_notice%20letter_02232010_text.pdf

220101004_operator response_03262010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220101004/220101004_operator%20response_03262010.pdf

220101004_Final Order_06292011_text.pdf

JUN 29 2011
Mr. Thomas Stone
Vice President, Chief Operations and Maintenance Officer
Florida Gas Transmission Company, LLC
5444 Westheimer Road
Houston, TX 77056
Re: CPF No. 2-2010-1004
Dear Mr. Stone:
Enclosed please find the Final Order issued in the above-referenced case. It makes findings of
violation and assesses a civil penalty of $95,000. The penalty payment terms are set forth in the
Final Order. This enforcement action closes automatically upon receipt of payment. Service of
the Final Order by certified mail is deemed effective upon the date of mailing, or as otherwise
provided under 49 C.F.R. § 190.5.
Thank you for your cooperation in this matter.
Sincerely,
Jeffrey D. Wiese
Associate Administrator
for Pipeline Safety
Enclosure
cc: . Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety
Mr. Wayne Lemoi, Director, Southern Region, PHMSA
Mr. Louis P. Soldano, Vice President, General Counsel, Florida Gas Transmission
Company, LLC
CERTIFIED MAIL - RETURN RECEIPT REQUESTED [7005 1160 0001 0075 9503]



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, D.C. 20590
____________________________________
)
In the Matter of )
)
Florida Gas Transmission Company, ) CPF No. 2-2010-1004
LLC )
)
Respondent. )
____________________________________)
FINAL ORDER
Pursuant to 49 U.S.C. § 60117, representatives of the Pipeline and Hazardous Materials Safety
Administration (PHMSA), Office of Pipeline Safety (OPS), conducted an investigation of a
failure involving a pipeline system operated by Florida Gas Transmission Company, LLC
(FGTC or Respondent) in Martin County, Florida. FGTC is the operator of a 5,000-mile natural
gas pipeline system that originates in Texas and terminates in South Florida.1
The investigation arose out of a May 4, 2009 failure that occurred on FGTC’s 18-inch natural
gas pipeline at Milepost 810.3 in southeast Florida. Specifically, the pipeline ruptured and the
gas ignited ejecting a 113-foot section of pipe from the ground. The failure resulted in serious
injuries including the hospitalization of three individuals and the temporary closure of the
Florida Turnpike.2
As a result of the investigation, the Director, Southern Region, OPS (Director), issued to
Respondent, by letter dated February 23, 2010, a Notice of Probable Violation and Proposed
Civil Penalty (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding
that FGTC had committed various violations of 49 C.F.R. Part 192, and proposed assessing a
civil penalty of $95,000 for the alleged violations. The Notice also included several warning
items pursuant to 49 C.F.R. § 190.205.
FGTC responded to the Notice by letter dated March 26, 2010 (Response). Respondent
contested three of the allegations and requested a hearing. An informal hearing was
subsequently held on July 15, 2010, in Atlanta, Georgia, with an attorney from the Office of
Chief Counsel, PHMSA, presiding. At the hearing, FGTC was represented by counsel and
1 http://www.panhandleenergy.com/comp_fld.asp.
2 See In the Matter of Florida Gas Transmission Company, LLC, CPF No. 2-2009-1002H (May 7, 2009) (available
at www.phmsa.dot.gov).



2
presented testimony from its Director of Pipelines and a Technical Consultant. After the hearing,
Respondent provided a post-hearing statement for the record, by letter dated August 30, 2010
(Closing).3
FINDINGS OF VIOLATION
The Notice alleged that Respondent violated 49 C.F.R. Part 192, as follows:
Item 2: The Notice alleged that Respondent violated 49 C.F.R. § 199.105, which states in
relevant part:
§ 199.105 Drug tests required.
Each operator shall conduct the following drug tests for the presence
of a prohibited drug:
(a) . . . .
(b) Post-accident testing. As soon as possible but no later than 32
hours after an accident, an operator shall drug test each employee whose
performance either contributed to the accident or cannot be completely
discounted as a contributing factor to the accident. An operator may
decide not to test under this paragraph but such a decision must be based
on the best information available immediately after the accident that the
employee's performance could not have contributed to the accident or that,
because of the time between that performance and the accident, it is not
likely that a drug test would reveal whether the performance was affected
by drug use.4
The Notice alleged that Respondent violated 49 C.F.R. § 199.105(b) by failing to drug test each
employee whose performance either contributed to the May 4, 2009 accident or could not be
completely discounted as a contributing factor to the accident. In particular, the Notice stated
that FGTC did not drug test two of the four pipeline controllers who were involved in operating
the pipeline during the accident.
5
In its Response, at the hearing, and in its Closing, FGTC disputed this allegation. Respondent
3 On September 1, 2010, the presiding official informed Respondent that he had not received its post-hearing
materials, which were due by August 30, 2010. He ordered counsel to show cause as to why the matter should not
be decided in their absence. On September 3, 2010, FGTC responded by stating that those materials had been sent
to the presiding official via certified mail on August 30, 2010, and later provided further information which verified
their transmission on the date in question. The presiding eventually received Respondent’s Closing and confirmed
that its receipt had been delayed for several days due to an internal mailing issue. For the reasons, FGTC’s Closing
is deemed timely filed as of its mailing date for purposes of this proceeding.
4 In accordance with § 199.3, the term “accident” includes an incident reportable under part 191 involving a gas
pipeline facility.
5 The Notice incorrectly stated that FGTC only had four pipeline controllers on duty on May 4, 2009. The actual
number was five.



3
explained that its pipeline controllers are staffed on 12-hour shifts, and that those shifts are
scheduled 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).
FGTC stated that it drug tested the two night-shift pipeline controllers who were on duty at the
time of the rupture, but that it did not drug test the three day-shift controllers who reported for
duty shortly thereafter. Respondent argued that the best available information at that time of the
accident showed that the performance of the day-shift controllers could not have been a
contributing factor. Therefore, FGTC concluded that it did not need to drug test those three day
shift employees.
6
At the hearing, the Director maintained that the company did not have sufficient information
immediately available after the accident to “completely discount” the performance of the day-
shift controllers as a contributing factor. The Director further noted that Respondent had not
made or kept any contemporaneous records documenting the basis for its decision not to drug
test those three employees.
Section 199.5(b) states that “an operator shall drug test each employee whose performance either
contributed to the accident or cannot be completely discounted as a contributing factor to the
accident.” Like the other requirements in 49 C.F.R. Part 199, § 199.5(b) is designed to “place
and structure of the regulation creates a strong presumption in favor of post-accident drug
testing, i.e., an operator must drug test each employee whose performance either contributed to
the accident or cannot be completely discounted as a contributing factor to the accident.
significant constraints on an operator's discretion in conducting drug testing.”7 Indeed, the text
In this case, the evidence indicates that FGTC’s pipeline ruptured at approximately 5:09 a.m.
Eastern Daylight Savings Time (EDT). Two night-shift pipeline controllers were on duty at that
time, with three day-shift pipeline controllers reporting for duty during the next 26 minutes, i.e.,
at 5:10 a.m., 5:34 a.m., and 5:35 a.m., respectively.
The evidence also indicates that FGTC first learned of the failure when it received a telephone
call from the Martin County Fire and Rescue Squad at 5:49 a.m., approximately 14 minutes after
the last day-shift controller reported for duty and 1 minute before the last night-shift controller
left the premises after completing his transition duties. The three day-shift controllers then spent
the next several hours assisting FGTC in its efforts to respond to the failure.
Finally, the evidence indicates that at 8:05 a.m. on the morning of the accident Respondent
reported to the National Response Center (NRC) that the cause of the failure was “unknown” and
that it had “limited information.
” FGTC still listed the cause of the accident as “unknown” and
“under investigation” in the incident report it filed with PHMSA 34 days later, on June 8, 2009.
Based on this evidence, I find that Respondent did not have sufficient information available
immediately after the accident to conclude that the performance of the day-shift controllers could
6 In fact, FGTC argued that it did not have to drug test any of the pipeline controllers because the information
available at the time showed that they could not have caused or contributed to the accident.
7 See Control of Drug Use In Natural Gas, Liquefied Natural Gas, and Hazardous Liquid Pipeline Operations,
53 Fed. Reg. 47084, 47086 (Nov. 21, 1988).



4
“be completely discounted as a contributing factor to the accident.” Accident scenarios play out
over a period of time and the actions of employees who came on the scene in the minutes
following the initiating event can impact the severity of spills and releases and the effectiveness
of response actions. All three of these employees were on duty when FGTC first learned of the
failure, and each had an active role in its response to the accident.
Moreover, Respondent had not identified the cause of the failure in the NRC report filed on the
morning of the accident, or in the incident report filed with PHMSA some 34 days later. That
undermines FGTC’s assertion that it had a legitimate basis for concluding that the performance
of the day-shift controllers could be completely discounted as a contributing factor, particularly
in the immediate aftermath of the failure.
8
In summary, the day-shift controllers were on duty when events critical to the accident occurred,
including the initial reporting and response to the failure, and Respondent lacked a sufficient,
contemporaneous basis for concluding that those employees should not be drug tested.
Accordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.
§ 199.105 by failing to drug test each employee whose performance either contributed to the
May 4, 2009 accident or could not be completely discounted as a contributing factor to that
accident.
Item 3: The Notice alleged that Respondent violated 49 C.F.R. § 199.225, which states in
relevant part:
§ 199.225 Alcohol tests required.
Each operator shall conduct the following types of alcohol tests for the
presence of alcohol:
(a) Post-accident.
(1) As soon as practicable following an accident, each operator shall
test each surviving covered employee for alcohol if that employee's
performance of a covered function either contributed to the accident or
cannot be completely discounted as a contributing factor to the accident.
The decision not to administer a test under this section shall be based on
the operator's determination, using the best available information at the
time of the determination, that the covered employee's performance could
not have contributed to the accident.9
The Notice alleged that Respondent violated 49 C.F.R. § 199.225(a)(1) by failing to test each
covered employee for alcohol whose performance of a covered function either contributed to the
8 At the hearing and in its Closing, FGTC objected to the Director’s references to the absence of any documentation
of its decision not to drug test the day-shift controllers, arguing that 49 C.F.R. Part 199 does not require an operator
to make or keep such records. I note that the allegation of violation in the Notice is based solely on Respondent’s
failure to drug test its employees after the accident, rather than any failure on its part to maintain adequate
documentation.
9 As defined in 49 C.F.R. § 199.3, the term “covered employee” includes any person who performs an operations,
maintenance, or emergency-response function regulated by 49 C.F.R. Part 192.



5
May 4, 2009 accident or could not be completely discounted as a contributing factor to that
accident. In particular, the Notice stated that FGTC did not test two of the four pipeline
controllers who were involved in operating the pipeline during the accident for the presence of
alcohol.10
In its Response, at the hearing, and in its Closing, FGTC argued that it did not commit the
alleged violation for the same reasons discussed in Item 2. The Director relied on his same
response in maintaining that a violation occurred.
11
Neither party has argued that a material difference exists in the construction or application of
§ 199.105(b) and § 199.225(a)(1), and I find that there is no other basis in the record for doing so
in this proceeding. Accordingly, for the reasons discussed in Item 2, after considering all of the
evidence, I find that Respondent violated 49 C.F.R. § 199.225(a)(1) by failing to test each of the
controllers for alcohol whose performance of a covered function could not be completely
discounted as a contributing factor to that accident.
Item 4: The Notice alleged that Respondent violated 49 C.F.R. § 192.709, which states in
relevant part:
§ 192.709 Transmission lines: Record keeping.
Each operator shall maintain the following records for transmission
lines for the periods specified:
(a) The date, location, and description of each repair made to pipe
(including pipe-to-pipe connections) must be retained for as long as the
pipe remains in service.
The Notice alleged that FGTC had violated 49 C.F.R. § 192.709(a) by failing to retain a record
of the date, location, and description of each repair made to the 18-inch pipeline that ruptured on
May 4, 2009. In particular, the Notice stated that Respondent had replaced some of the original
Polyken-tape-coated pipe with fusion-bond-epoxy-coated pipe after discovering external
corrosion during a 2004 inline inspection.
In its Response, at the hearing, and in its Closing, FGTC did not contest this allegation of
violation, but noted it had recently taken steps to improve its recordkeeping system.
Accordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.
§ 192.709(a) by failing to retain a record of the date, location, and description of each repair
made to the 18-inch pipeline that ruptured on May 4, 2009.
These findings of violation will be considered prior offenses in any subsequent enforcement
action taken against Respondent.
10 As with Item 2, the Notice incorrectly stated that FGTC had four pipeline controllers who were on duty on May 4,
2009. The actual number was five.
11 Although the Notice stated that Respondent had tested two of the pipeline controllers who were on duty on May 4,
2009, for the presence of alcohol, FGTC acknowledged at the hearing that it had not in fact tested any of those
employees.



6
ASSESSMENT OF PENALTY
Under 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed
$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any
related series of violations. In determining the amount of a civil penalty under 49 U.S.C.
§ 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,
circumstances, and gravity of the violation, including adverse impact on the environment; the
degree of Respondent’s culpability; the history of Respondent’s prior offenses; the Respondent’s
ability to pay the penalty and any effect that the penalty may have on its ability to continue doing
business; and the good faith of Respondent in attempting to comply with the pipeline safety
regulations. In addition, I may consider the economic benefit gained from the violation without
any reduction because of subsequent damages, and such other matters as justice may require.
The Notice proposed a total civil penalty of $95,000 for the violations in Items 2, 3, and 4, cited
above.
Item 2: The Notice proposed a civil penalty of $40,000 for Respondent’s violation of 49 C.F.R.
§ 199.105(b), for failing to drug test each employee whose performance either contributed to the
May 4, 2009 accident or could not be completely discounted as a contributing factor. FGTC
argues generally that the proposed penalty amount is excessive. Respondent further argues that
the two night-shift pipeline controllers received drug tests immediately after the accident, and
that its determination that the day shift controllers did not contribute to the accident was based on
the best information available at the time thereby warranting a reduction in the proposed civil
penalty.
With regard to the gravity of this violation, FGTC failed to drug test all of the employees
involved in a serious pipeline accident, i.e., one that occurred in a high consequence area and
which led to the ejection of a 113-foot section of buried pipe, the hospitalization of three
individuals, and the temporary closure of the Florida Turnpike. Moreover, as with all violations
of the drug testing requirements, Respondent’s inaction also meant that the opportunity to drug
test these employees in connection with this accident was forever lost.
Moreover, at the time the Notice was prepared and issued, OPS believed, incorrectly, that FGTC
had only failed to drug test two employees. The fact that Respondent actually failed to drug test
three employees suggests that the proposed civil penalty is below the amount that should have
been assessed for this violation, not that a reduction is warranted.
The Notice also proposed identical civil penalty amounts for Respondent’s violation of both the
drug and alcohol testing requirements. As these requirements serve the same purpose, and the
allegations of violation are based on the same factual premise, i.e., that FGTC had failed to test
all covered employees the proposed penalties for both violations are reasonable and consistent.
Finally, Respondent has not presented any persuasive justification for its conduct, or contended
that the proposed penalty would have an adverse effect on its ability to continue in business.
Accordingly, FGTC’s contention that it should receive a reduction in the proposed civil penalty
for failing to drug test all covered employees is unpersuasive. Accordingly, having reviewed the
record and considered the assessment criteria, I assess FGTC a civil penalty of $40,000 for
violation of 49 C.F.R. § 199.105(b).



7
Item 3: The Notice proposed a civil penalty of $40,000 for Respondent’s violation of 49 C.F.R.
§ 199.225(a)(1), for failing to test each covered employee for alcohol whose performance of a
covered function either contributed to the May 4, 2009 accident or could not be completely
discounted as a contributing factor to that accident. FGTC argues that the proposed penalty
amount is excessive. For the reasons stated in Item 2, I do not find these arguments persuasive.12
Accordingly, having reviewed the record and considered the assessment criteria, I assess
Respondent a civil penalty of $40,000 for violation of 49 C.F.R. § 199.105(b).
Item 4: The Notice proposed a civil penalty of $15,000 for Respondent’s violation of 49 C.F.R.
§ 192.709(a), for failing to retain a record of the date, location, and description of each repair
made to the 18-inch pipeline that ruptured on May 4, 2009. FGTC notes that it has recently
taken steps to improve this aspect of its recordkeeping system.
Respondent failed to properly document repairs that it made to a pipeline that later experienced a
failure. If readily available, those records could have assisted in determining its potential cause
and the likelihood of a similar incident occurring in another location. Respondent has not
presented any persuasive justification for its conduct, or argued that the proposed penalty would
have an adverse effect on its ability to continue in business. Accordingly, having reviewed the
record and considered the assessment criteria, I assess Respondent a civil penalty of $15,000 for
violation of 49 C.F.R. § 192.709(a).
13
Accordingly, having reviewed the record and considered the assessment criteria, I assess
Respondent a total civil penalty of $95,000.
Payment of the civil penalty must be made within 20 days of service. Federal regulations
(49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through the Federal
Reserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed
instructions are contained in the enclosure. Questions concerning wire transfers should be
directed to: Financial Operations Division (AMZ-341), Federal Aviation Administration, Mike
Monroney Aeronautical Center, P.O. Box 269039, Oklahoma City, Oklahoma 73125. The
Financial Operations Division telephone number is (405) 954-8893.
Failure to pay the $95,000 civil penalty will result in accrual of interest at the current annual rate
in accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to
those same authorities, a late penalty charge of six percent (6%) per annum will be charged if
payment is not made within 110 days of service. Furthermore, failure to pay the civil penalty
may result in referral of the matter to the Attorney General for appropriate action in a district
court of the United States.
12 The Notice stated that FGTC had tested two of the pipeline controllers for alcohol, but Respondent admitted at the
hearing that it had not tested on any of its five pipeline controllers. As OPS has not asked to issue an amendment
based on that admission, the civil penalty is based solely on the allegation made in the Notice, i.e., that FGTC failed
to perform the required alcohol test on two employees.
13 See In the Matter of Columbia Gas Transmission, LLC, CPF No. 1-2007-1004, 2009 WL 5538656 (Dec. 17,
2009) (assessing $11,000 civil penalty for violation of recordkeeping requirement in 49 C.F.R. § 192.709).



8
WARNING ITEMS
With respect to Items 1, 5, and 6, the Notice alleged probable violations of Part 192 and
specifically considered these to be warning items. The warnings were for:
49 C.F.R. § 192.5(b)(3) (Item 1) ─ Respondent’s alleged failure to determine the
proper class location unit for the pipeline that ruptured on May 4, 2009.
Specifically, the Notice stated that this segment lies within 100 yards of South
Fork High School’s 4H agriculture facilities, and that those facilities are occupied
by 20 or more persons on at least 5 days a week for 10 weeks in any 12-month
period and that FGTC should have identified it as being within a Class 3 location;
49 C.F.R. §§ 192.615(a)(3)(iii) and (a)(6) (Item 5) ─ Respondent’s alleged failure
to have and follow procedures for prompt and effective response to each type of
emergency, including an explosion that occurs near or directly involves a pipeline
facility and for initiating an emergency shutdown and pressure reduction in any
section of its pipeline system that is necessary to minimize hazards to life or
property. In particular, the Notice stated that FGTC’s 18-inch natural gas pipeline
ruptured at 5:09 a.m. EST on May 4, 2009, but that Respondent did not recognize
that event until it received a phone call from the Martin County Fire and Rescue
Squad 5:49 a.m. EST. The Notice also stated that a mainline valve downstream
from the rupture point failed to automatically close at the time of the accident, and
that natural gas from a parallel 30-inch line continued to flow back into and vent
out of the 18-inch line until FGTC manually closed that valve two hours later.
Finally, the Notice stated that Respondent’s emergency response was not prompt,
and that its Supervisory Control and Data Acquisition System failed to recognize
the rupture at the time of the accident; and
49 C.F.R. §§ 192.903 and 192.905(b) (Item 6) ─ Respondent’s alleged failure to
identify South Fork High School’s 4-H agricultural facilities as an identified site
within the potential impact radius (PIR) of its 18-inch line. In particular, the
Notice alleged that South Fork High School students use those facilities five days
per week, that they are within the 365-foot PIR for FGTC’s 18-inch line, and that
Respondent is in the process of designating the affected pipeline segments as a
High Consequence Area (HCA).
FGTC presented information in its Response showing that it had taken certain actions to address
the cited items. In the event that OPS finds a violation of these provisions in a subsequent
inspection, Respondent may be subject to future enforcement action.
Under 49 C.F.R. § 190.215, Respondent has the right to submit a Petition for Reconsideration of
this Final Order. The petition must be sent to: Associate Administrator, Office of Pipeline
Safety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor, Washington, DC
20590, with a copy sent to the Office of Chief Counsel, PHMSA, at the same address. PHMSA
will accept petitions received no later than 20 days after receipt of the Final Order by the
Respondent, provided they contain a brief statement of the issue(s) and meet all other



9
requirements of 49 C.F.R. § 190.215. The filing of a petition automatically stays the payment of
any civil penalty assessed. If Respondent submits payment of the civil penalty, the Final Order
becomes the final administrative decision and the right to petition for reconsideration is waived.
The terms and conditions of this Final Order are effective upon service in accordance with 49
C.F.R. § 190.5.
___________________________________ __________________________
Jeffrey D. Wiese Date Issued
Associate Administrator
for Pipeline Safety

220101004_Decision on the Petition for Reconsideration_12142011_text.pdf

DEC 1 4 2011
Mr. Thomas Stone
Vice President, Chief Operations and Maintenance Officer
Florida Gas Transmission Company, LLC
5051 Westheimer Road
Houston, TX 77056
Re: CPF No. 2-2010-1004
Dear Mr. Stone:
Enclosed please find the Decision on Reconsideration issued in the above-referenced case. It
denies your Petition for Reconsideration. Service of the Decision by certified mail is deemed
effective upon the date of mailing, or as otherwise provided under 49 C.F.R. § 190.5.
Thank you for your cooperation in this matter.
Sincerely,
Jeffrey D. Wiese
Associate Administrator
for Pipeline Safety
Enclosure
cc: Mr. Wayne Lemoi, Director, Southern Region, PHMSA
Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety,
PHMSA
Mr. Louis Soldano, Vice President and General Counsel, Florida Gas Transmission
Company, LLC
CERTIFIED MAIL – RETURN RECEIPT REQUESTED [71791000164202950824]



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, D.C. 20590
______________________________
In the Matter of )
Florida Gas Transmission ) CPF No. 2-2010-1004
Company, LLC, )
)
)
)
Petitioner. )
______________________________)
DECISION ON RECONSIDERATION
In a June 29, 2011 Final Order, I found that Florida Gas Transmission Company, LLC (FGTC)
had violated the drug and alcohol testing requirements in 49 C.F.R. §§ 199.105(b) and
199.225(a)(1) and the gas transmission line recordkeeping requirements in 49 C.F.R.
§ 192.709(a), based on the results of the Office of Pipeline Safety’s (OPS) investigation of a
May 2009 pipeline accident in Southeast Florida. I assessed FGTC a civil penalty of $95,000 for
those violations and issued the company a warning item for several other probable violations.
On July 15, 2011, FGTC submitted a Petition for Reconsideration (Petition) of the Final Order.
The Petition stated that the findings of violation related to the drug and alcohol testing
requirements were arbitrary and capricious, an abuse of discretion, or otherwise not in
accordance with law. The Petition requested that those portions of the Final Order be
withdrawn.
Because the evidence of record supports the findings in question, I am denying this Petition and
affirming the Final Order without modification.
Background
On May 4, 2009, FGTC’s 18-inch natural gas pipeline ruptured at Milepost (MP) 810.3 in Martin
County, Florida.
1
The rupture caused the ejection of a 113-foot section of the pipeline, the
hospitalization of three individuals, and the closure of the Florida Turnpike.
1 See In the Matter of Florida Gas Transmission Company, LLC, CPF No. 2-2009-1002H (May 7, 2009) (available
at
www.phmsa.dot.gov). FGTC is the operator of a 5,000-mile natural gas pipeline system that runs from Texas to
South Florida. http://www.panhandleenergy.com/comp_fld.asp.



2
The Director, Southern Region, OPS (Director), initiated an investigation of the accident and
subsequently issued Petitioner a Notice of Probable Violation and Proposed Civil Penalty
(Notice). The Notice, dated February 23, 2010, proposed finding that FGTC had violated
49 C.F.R. §§ 192.709(a), 199.105(b), and 199.225(a)(1) and assessing a civil penalty of $95,000
for the alleged violations. The Notice also included several warning items pursuant to
49 C.F.R. § 190.205.
FGTC responded to the Notice, by letter dated March 26, 2010, and requested a hearing. That
hearing was held on July 15, 2010, in Atlanta, Georgia. By letter dated August 30, 2010,
Petitioner provided a post-hearing statement for the record.
On June 29, 2011, I issued a Final Order that sustained all of the findings of violation proposed
in the Notice. Specifically, I found that FGTC had an obligation to administer drug and alcohol
tests to the three day-shift pipeline control room employees who reported for duty on May 4,
2009, because the company did not have sufficient information available immediately after the
accident to conclude that the conduct of those employees could be completely discounted as a
contributing factor. I further found that FGTC had failed to retain a record of the date, location,
and description of certain repairs made to the ruptured section of the pipeline. Accordingly, I
concluded that Petitioner had violated §§ 199.105(b), 199.225(a)(1), and 192.709(a) as alleged in
the Notice and assessed the proposed civil penalty amount of $95,000 for those violations.
On July 15, 2011, FGTC submitted this Petition requesting reconsideration of those portions of
the Final Order that concerned the drug and alcohol testing requirements of 49 C.F.R. Part 199.
Petitioner argued that the best information available at the time of the accident did not show that
the conduct of the three day-shift pipeline controllers caused or contributed to the May 4, 2009
accident; therefore, FGTC had no obligation to test those employees for the presence of drugs or
alcohol. Petitioner further argued that the Final Order relied on inadequate evidence and an
erroneous interpretation of §§ 199.105(b) and 199.225(a)(1) to sustain the violations alleged in
the Notice.
Standard of Review
A respondent is afforded the right to petition the Associate Administrator for reconsideration of a
final order. However, that right is not an appeal or an opportunity to seek a de novo review of
not previously available or requesting that any errors in the final order be corrected. Requests
for consideration of additional facts or arguments must be supported by a statement of reasons as
the record.2 It is a venue for presenting the Associate Administrator with information that was
to why those facts or arguments were not presented prior to the issuance of the final order.
Repetitious information or arguments will not be considered.
Analysis
Sections 199.105(b) and 199.255(a)(1) require an operator to administer a drug and alcohol test
for each employee whose performance either contributed to an accident or cannot be completely
2 49 C.F.R. § 190.215(a)-(e).



3
discounted as a contributing factor to an accident. Those regulations further state that an
operator’s decision not to administer a drug or alcohol test must be based on the best available
information at the time.
In its Petition, FGTC argues that the best information available at the time showed that the
conduct of the three day-shift pipeline controllers did not cause or contribute to the May 4, 2009
rupture. Petitioner further argues that the Final Order relied on inadequate evidence (i.e., the fact
that FGTC listed the cause of the rupture as unknown in several reports submitted after the
accident, and that the company failed to maintain any documentation of its decision not to
subject the day-shift controllers to drug or alcohol testing) and an erroneous interpretation of
§§ 199.105(b) and 199.225(a)(1) to sustain the allegations of violation.
As I explained in the Final Order, the pipeline in question ruptured at approximately 5:09 a.m.
Eastern Daylight Savings Time (EDT) on May 4, 2009. At that time, FGTC had two night-shift
pipeline controllers on duty. However, the company’s three day-shift pipeline controllers all
reported for duty within the next 30 minutes (i.e., at 5:10 a.m., 5:34 a.m., and 5:35 a.m.,
respectively). At 5:49 a.m., Petitioner first learned of the rupture at MP 810.3, when the
company received a telephone call from the Martin County Fire and Rescue Squad. The three
day-shift controllers spent the next several hours assisting Petitioner’s accident response efforts.
At 8:05 a.m., FGTC informed the National Response Center (NRC) that the cause of the failure
was unknown, a position the company continued to maintain in an incident report filed with
PHMSA on June 8, 2009.
Citing these facts, I reached the following conclusions in the Final Order as to whether FGTC
had an obligation to administer a drug test to the three day-shift controllers:
Respondent did not have sufficient information available immediately after the
accident to conclude that the performance of the day-shift controllers could “be
completely discounted as a contributing factor to the accident.” Accident
scenarios play out over a period of time and the actions of employees who came
on the scene in the minutes following the initiating event can impact the severity
of . . . releases and the effectiveness of response actions. All three of these
employees were on duty when FGTC first learned of the failure, and each had an
active role in its response to the accident.
Moreover, Respondent had not identified the cause of the failure in the NRC
report filed on the morning of the accident, or in the incident report filed with
PHMSA some 34 days later. That undermines FGTC's assertion that it had a
legitimate basis for concluding that the performance of the day-shift controllers
could be completely discounted as a contributing factor, particularly in the
immediate aftermath of the failure.
In summary, the day-shift controllers were on duty when events critical to the
accident occurred, including the initial reporting and response to the failure, and
Respondent lacked a sufficient, contemporaneous basis for concluding that those
employees should not be drug tested.



4
In a subsequent portion of the Final Order, I noted that the same reasoning applied in
determining whether FGTC had an obligation to test the three day-shift controllers for the
presence of alcohol.
Petitioner has not presented any persuasive basis for reconsidering these findings. The evidence
in the record does not show that FGTC had sufficient information available immediately after the
accident to conclude that the performance of the day-shift controllers could “be completely
discounted as a contributing factor to the accident.” Those employees were on duty during
critical phases of the accident, and the record does not show that Petitioner had enough
information about the cause of the failure to determine that they should not be subject to a drug
or alcohol test. That conclusion is supported by a reasonable construction of the text, structure,
and purpose of the applicable regulations, which create a strong presumption in favor of post-
accident drug and alcohol testing.
For these reasons, I am rejecting Petitioner’s request for reconsideration of the findings that
FGTC violated 49 C.F.R. §§ 199.105(a) and 199.225(a)(1) by failing to perform a drug and
alcohol test of each employee whose performance either contributed to the May 4, 2009 accident
or could not be completely discounted as a contributing factor to that accident.
RELIEF DENIED
Based on the information provided in the Petition, a review of the relevant portions of the record,
and for the reasons stated above, I am affirming the Final Order without modification.
This Decision is the final administrative action in this proceeding.
_____________________________ __________________________
Jeffrey D. Wiese Date Issued
Associate Administrator
for Pipeline Safety

220101004_notice letter_02232010_text.pdf

NOTICE OF PROBABLE VIOLATION
And
PROPOSED CIVIL PENALTY
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
February 23, 2010
Mr. Jeryl Mohn
Senior Vice President, Operations and Engineering
Florida Gas Transmission Company, LLC
5444 Westheimer Road
Houston, TX 77056
CPF 2-2010-1004
Dear Mr. Mohn:
As a result of the May 4, 2009 pipeline accident on the Florida Gas Transmission (FGT) 18
inch pipeline in Martin County, Florida, representatives of the Pipeline and Hazardous
Materials Safety Administration (PHMSA) pursuant to Chapter 601 of 49 United States Code
investigated the accident and inspected FGT pipeline facilities and records involved in the
accident. It appears that you have committed probable violations of the pipeline safety
regulations, Title 49, Code of Federal Regulations. The items inspected and the probable
violations are:
1. §192.5 Class Locations.
…(b) Except as provided in paragraph (c) of this section, pipeline locations are
classified as follows:
(3) A Class 3 location is:
(ii) An area where the pipeline lies within 100 yards (91 meter
- **truncated:** true
- **body characters:** 50136