{"operation":"document","citation":"CPF 220106004","title":"NORFOLK SOUTHERN RAILWAY-BROSNAN YARD PIPELINE — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2010-08-30","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.505(a), 195.505(b), 195.507(a), 195.509(e).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-220106004.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-220106004.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-220106004","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/220106004","body":"Notice of Probable Violation involving NORFOLK SOUTHERN RAILWAY-BROSNAN YARD PIPELINE. PHMSA's enforcement data identifies the cited regulations as 195.505(a),  195.505(b),  195.507(a),  195.509(e). The case was opened on 2010-08-30 and is reported as closed as of 2011-09-28. Proposed civil penalty: $98,600. Assessed civil penalty: $98,600. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n220106004_closure letter_09282011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220106004/220106004_closure%20letter_09282011.pdf\n\n220106004_closure letter_09282011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220106004/220106004_closure%20letter_09282011_text.pdf\n\n220106004_Final Order_04082011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220106004/220106004_Final%20Order_04082011.pdf\n\n220106004_Final Order_04082011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220106004/220106004_Final%20Order_04082011_text.pdf\n\n220106004_NOPV PCP PCO_08302010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220106004/220106004_NOPV%20PCP%20PCO_08302010.pdf\n\n220106004_NOPV PCP PCO_08302010_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220106004/220106004_NOPV%20PCP%20PCO_08302010_text.pdf\n\n220106004_closure letter_09282011_text.pdf\n\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nSeptember 28, 2011\nMr. Tim Heilig\nVice President of Mechanical Operations\nNorfolk Southern Corporation\n1200 Peachtree Street NE (Box 184)\nAtlanta, GA 30309\nCPF 2-2010-6004\nDear Mr. Heilig:\nOn September 28-29 and November 30, 2009, a representative of the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA) inspected the Norfolk Southern Corporation\n(NSC) Operator Qualification (OQ) program records and procedures for the Macon Pipeline\nat the Macon, Georgia office pursuant to Chapter 601 of 49 United States Code.\nAs a result of the inspections, PHMSA issued a Final Order to NSC on April 8, 2011. The\nFinal Order included a Compliance Order (CO), which required NSC to take certain actions to\nprotect the public and the environment.\nIn late August 2011, PHMSA received letters from both NSC and Buckeye Development &\nLogistics, LLC (Buckeye) confirming that as of July 1, 2011, Buckeye is the operator of the\nMacon pipeline and that Buckeye employees now operate the pipeline and perform all OQ\ncovered tasks on the pipeline using Buckeye’s OQ plan. Since NSC is no longer the operator\nof the pipeline and all OQ covered tasks on the pipeline are now being completed using\nBuckeye’s OQ plan, the CO is now moot. Therefore, no further action is necessary with\nregards to this Final Order and this case is now closed.\nPlease be advised that this letter refers only to the Final Order (CPF 2-2010-6004) and not to\nany other PHMSA pending cases. Also be advised that nothing herein states or implies that\nthe above described Buckeye OQ plan meets the requirements of the federal pipeline safety\nregulations or that the Buckeye OQ plan is approved. The pipeline system and Buckeye’s\nwritten OQ plan remain subject to inspection by PHMSA.\nSincerely,\nWayne T. Lemoi\nDirector, Office of Pipeline Safety\nPHMSA Southern Region\n\n220106004_Final Order_04082011_text.pdf\n\nAPR 8 2011\nMr. Tim Heilig\nVice President of Mechanical Operations\nNorfolk Southern Corporation\n1200 Peachtree Street NE (Box 184)\nAtlanta, GA 30309\nRe: CPF No. 2-2010-6004\nDear Mr. Heilig:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation, assesses a civil penalty of $98,600, and specifies actions that need to be taken by\nNorfolk Southern Corporation to comply with the pipeline safety regulations. The penalty\npayment terms are set forth in the Final Order. This enforcement action closes automatically\nupon receipt of payment. Service of the Final Order by certified mail is deemed effective upon\nthe 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 T. Lemoi, Director, Southern Region, PHMSA\nMr. A. Gayle Jordan, General Solicitor – Environmental\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED [7005 1160 0001 0075 8810]\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)\nNorfolk Southern Corporation, ) CPF No. 2-2010-6004\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nOn September 28-29, and November 30, 2009, pursuant to 49 U.S.C. § 60117, a representative\nof the Pipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline\nSafety (OPS), conducted an on-site pipeline safety inspection of the facilities and records of\nNorfolk Southern Corporation (Norfolk Southern or Respondent) in Macon, GA. Respondent\noperates 5.5 miles of diesel fuel pipeline in Georgia.\nAs a result of the inspection, the Director, Southern Region, OPS (Director), issued to\nRespondent, by letter dated August 30, 2010, a Notice of Probable Violation and Proposed Civil\nPenalty (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that\nNorfolk Southern had committed various violations of 49 C.F.R. Part 195 and proposed\nassessing a civil penalty of $98,600 for the alleged violations.\nNorfolk Southern responded to the Notice by letter dated October 7, 2010 (Response). The\ncompany contested some of the allegations, offered additional information in response to the\nNotice, and requested that the proposed civil penalty be reduced or eliminated. Respondent did\nnot request a hearing and therefore has waived its right to one.\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.505(a), which states:\n§ 195.505 Qualification program.\nEach operator shall have and follow a written qualification program.\nThe program shall include provisions to:\n(a) Identify covered tasks;\n\n\n\n2\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.505(a) by failing to maintain a\nwritten qualification program that identified individuals’ covered tasks properly. Specifically,\nthe Notice alleged that the covered task list in Norfolk Southern’s written Operator Qualification\nPlan (OQ Plan) contained only five tasks, which were broad in nature and missed many of the\nspecific covered tasks that had been performed on Respondent’s pipeline system.\nIn its Response, Norfolk Southern contended that its OQ Plan “met the literal requirements” of\n§ 195.505(a) because it contained a list of covered tasks that are routinely performed on the\npipeline.1 Respondent argued that it was not aware that PHMSA required a more detailed list of\ncovered tasks than the one it provided in its OQ Plan. Therefore, although Respondent now\n“appreciates that PHMSA expects each main covered task to be broken into its component\nsteps,” it maintains that its OQ Plan complied with the stated requirements of § 195.505(a).2\nFurthermore, Norfolk Southern contended that its list of covered tasks was “appropriate in light\nof the nature and extent of our Macon pipeline operations.”3\nUnder § 195.501(b), a “covered task” is defined as an activity that: (1) is performed on a\npipeline; (2) is an operations or maintenance task; (3) is performed as a requirement of Part 195;\nor (4) affects the operation or integrity of the pipeline. Generally, operators provide a list of\nbetween 50 and 100 covered tasks. Respondent provided a list of five covered tasks. In addition\nto its numerical deficiency, Norfolk Southern failed to list several items that are defined as\ncovered tasks under § 195.501(b). For example, Norfolk Southern’s covered task list did not\ncontain many covered tasks that should be performed on a pipeline, such as (1) pipeline repairs,\nsuch as welding, non-destructive testing and evaluation (NDE), tapping the pipeline, and purging\nthe pipeline; (2) repairing pipeline components, such as pipe sleeves or other pipe repairs; and\n(3) excavation of the pipeline. Norfolk Southern also omitted several tasks that would be\nconsidered operations and maintenance tasks and activities that would affect the integrity of the\npipeline, such as (1) checking the pipe-to-soil readings; (2) checking bonds; (3) checking\nelectrical isolation from other structures and casings; (4) testing for shorted casings; (5)\ninstallation of test leads; (6) repairs to the cathodic protection system; (7) the inspection and\nrepair of the underground pipeline coating; (8) the inspection of exposed pipe; (9) inspecting the\nsurface of removed pipe; (10) inspecting and repairing the coating on aboveground pipeline; and\n(11) examining the surface of corroded pipe. Indeed, Respondent’s inclusion of pipeline right-\nof-way (ROW) examinations as a covered task is an example of its failure to list all tasks\nrequired under Part 195 as covered tasks. More specifically, Norfolk Southern failed to address\nseveral requirements relating to ROW examinations that are contained in Part 195. These ROW\nrequirements addressed in Part 195, but not mentioned in Respondent’s list of covered tasks,\ninclude, but are not limited to: (1) locating the pipeline in response to One Call notifications; and\n(2) line marking or excavation activities as part of its operations, maintenance, and damage\nprevention programs.\nUnder 49 C.F.R. § 195.505(a), the OQ Plan is required to contain all tasks that may be defined as\n(1) an activity performed on a pipeline; (2) an operations or maintenance task; (3) a requirement\nof Part 195; or (4) an activity affecting the operation or integrity of the pipeline. Respondent’s\n1 Response, at 2.\n2 Id.\n3 Id.\n\n\n\n3\nuse of overly broad descriptions of covered tasks led to the omission of a number of specific\ncovered tasks that must be included in its OQ Plan. The items included above provide a non-\nexhaustive list of the tasks Respondent failed to include. Moreover, the combination of\nRespondent’s numerical deficiency and insufficient specificity in its list of covered tasks\nhighlights its failure to identify covered tasks properly. Accordingly, after considering all of the\nevidence, I find that Respondent violated 49 C.F.R. § 195.505(a) by failing to maintain a written\nqualification program that identified covered tasks properly.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.505(b), which states:\n§ 195.505 Qualification program.\nEach operator shall have and follow a written qualification program.\nThe program shall include provisions to:\n(b) Ensure through evaluation that individuals performing covered tasks are qualified;\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.505(b) by failing to ensure through\nevaluation that individuals performing covered tasks were qualified. Under § 195.503,\n“qualified” is defined as being able to: (a) perform assigned covered tasks; and (b) recognize and\nreact to abnormal operating conditions (AOCs). Specifically, the Notice alleged that Norfolk\nSouthern failed to establish abnormal operating conditions (AOC) for each covered task in its\nOQ Plan, and thus Respondent could not evaluate an individual’s ability to either recognize or\nreact to an AOC.\nIn its Response, Norfolk Southern contended that the regulations do not require operators to list\nAOCs along with covered tasks. Further, Respondent stated that PHMSA acknowledged that the\nOQ Plan contained AOCs, but that PHMSA cited Norfolk Southern for failing to explicitly refer\nto the listed conditions as AOCs. In sum, Norfolk Southern contends that the regulations never\nrequire operators to list all AOCs accompanying the individual’s covered tasks.\nUpon closely reading Respondent’s contentions, it is apparent that Norfolk Southern\nmisinterpreted the NOPV as citing it for merely failing to list all AOCs accompanying covered\ntasks. Rather, PHMSA alleged that Respondent violated § 195.505(b) by failing to include a\nprovision in its written qualification program that mandates evaluations of individuals’ ability to\nrecognize and react to AOCs.\nFurthermore, although Respondent conducts “emergency” training for all emergency personnel,\nemergency training is a separate requirement from the evaluation of individuals’ ability to\nrecognize and react to AOCs. While Norfolk Southern did conduct emergency training as\nrequired under § 195.403, it did not conduct separate evaluations of individuals performing\ncovered tasks for their ability to recognize and react to AOCs, as required under § 195.505(b).\nThis is problematic because AOCs are different from emergencies. Under 195.503, AOCs are\ndefined as “a condition identified by the operator that may indicate a malfunction of a\ncomponent or deviation from normal operations that may: (a) indicate a condition exceeding\ndesign limits; or (b) result in a hazard(s) to persons, property, or the environment.” Emergencies\nare those unexpected pipeline circumstances or conditions that can cause injury, death, property\ndamage or the environmental harm. It is clear that emergencies are a narrower and sometimes\n\n\n\n4\ndifferent set of circumstances than AOCs. Therefore, Norfolk Southern’s emergency training\ndoes not qualify as a proper evaluation of individuals’ ability to recognize and react to AOCs\nunder § 195.505(b).\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n§ 195.505(b) by failing to ensure through evaluation that individuals performing covered tasks\nwere qualified. More specifically, Respondent failed to determine that individuals performing\ncovered tasks were able to recognize and react to AOCs.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 195.507(a), which states:\n§ 195.507 Recordkeeping.\nEach operator shall maintain records that demonstrate compliance with\nthis subpart.\n(a) Qualification records shall include:\n(1) Identification of qualified individual(s);\n(2) Identification of the covered tasks the individual is qualified to\nperform;\n(3) Date(s) of current qualification; and\n(4) Qualification method(s).\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.507(a) by failing to maintain\nqualification records for its employees properly. Specifically, the Notice alleged that Norfolk\nSouthern did not maintain records regarding the qualification methods of individuals, the dates of\nthe individual’s qualification, or the identification of the covered tasks for which the individual\nwas qualified. Respondent did not contest this allegation of violation. Accordingly, based upon\na review of all of the evidence, I find that Respondent violated 49 C.F.R. § 195.507(a) by failing\nto maintain qualification records for its employees properly.\nThese findings of violation will be considered prior offenses in any subsequent enforcement\naction taken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$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 $98,600 for the violations cited above.\n\n\n\n5\nItem 1: The Notice proposed a civil penalty of $38,300 for Respondent’s violation of 49 C.F.R.\n§ 195.505(a) for failing to maintain a written qualification program that identified individuals’\ncovered tasks properly. Respondent requested that PHMSA “substantially reduce” the civil\npenalty. Norfolk Southern’s non-compliance was not a contributing factor in a significant spill,\naccident, or pipeline failure. Accordingly, the low gravity of the violation was taken into\naccount in calculating the penalty. A further reduction in the civil penalty under a good faith or\ngravity analysis is not warranted. In addition, Respondent’s indication that it is willing to and\nhas amended its OQP is post violation compliance that is consistent with and nothing more than\nwhat I have ordered herein. Accordingly, having reviewed the record and considered the\nassessment criteria, I assess Respondent a civil penalty of $38,300 for violation of 49 C.F.R.\n§ 195.505(a).\nItem 2: The Notice proposed a civil penalty of $42,000 for Respondent’s violation of 49 C.F.R.\n§ 195.505(b), for failing to ensure through evaluation that individuals performing covered tasks\nwere qualified. Respondent has requested the withdrawal of the civil penalty, or alternatively a\n“substantial reduction.” I disagree with its assertion that a withdrawal or substantial reduction is\njustified. While the nature, circumstances, and gravity of the violation is mild, these factors were\naccounted for in the original calculation of the penalty. Respondent misinterpreted § 195.503,\nwhich defined the term “qualified” under § 195.505(b). Therefore, Norfolk Southern failed to\nrecognize the specific requirement under § 195.505(b), and it is fully culpable for the violation.\nRespondent expressed its willingness to follow PHMSA’s directive to list AOCs in its effort to\nensure all required individuals are qualified to recognize and react to AOCs. Similarly, its post-\nviolation efforts toward compliance do not warrant a reduction in the civil penalty under a good\nfaith analysis. Accordingly, having reviewed the record and considered the assessment criteria, I\nassess Respondent a civil penalty of $42,000 for violation of 49 C.F.R. § 195.505(b).\nItem 3: The Notice proposed a civil penalty of $18,300 for Respondent’s violation of 49 C.F.R.\n§ 195.507(a), for failing to maintain qualification records for its employees properly.\nRespondent neither contested the allegation nor presented any evidence or argument justifying a\nreduction in the proposed penalty. Accordingly, having reviewed the record and considered the\nassessment criteria, I assess Respondent a civil penalty of $18,300 for violation of 49 C.F.R.\n§ 195.507(a).\nFailure to pay the $98,600 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.\nCOMPLIANCE ORDER\nThe Notice proposed a compliance order with respect to Items 1, 2, and 3 in the Notice for\nviolations of 49 C.F.R. §§ 195.505(a), 195.505(b), and 195.507(a), respectively. Under 49\nU.S.C. § 60118(a), each person who engages in the transportation of hazardous liquids or who\n\n\n\n6\nowns or operates a pipeline facility is required to comply with the applicable safety standards\nestablished under chapter 601. Pursuant to the authority of 49 U.S.C. § 60118(b) and 49 C.F.R.\n§ 190.217, Respondent is ordered to take the following actions to ensure compliance with the\npipeline safety regulations applicable to its operations:\n1. With respect to the violation of § 195.505(a) (Item 1), Respondent must review its\noperations and maintenance (O&M) tasks to be performed on the Norfolk Southern\npipeline by using the four-part test included in § 195.505(b) to ensure that any and all\ncovered tasks to be performed on the Norfolk Southern pipeline are included on the\ncovered task list.\n2. With respect to the violation of § 195.505(b) (Item 2), Respondent must identify\nabnormal operating conditions (AOCs) for each covered task determined in\naccordance with Item 1 of this Compliance Order.\n3. With respect to the violation of § 195.507(a) (Item 3), Respondent must prepare\nand maintain records to show:\na. All OQ covered tasks for the entire Norfolk Southern pipeline and facilities;\nb. That AOCs have been reviewed for each covered task with each individual\nperforming an OQ covered task on Norfolk Southern’s pipeline and that each\nindividual is able to recognize and properly react to an AOC;\nc. The evaluation methods used to establish the qualifications of each individual\nperforming an OQ covered task;\nd. That when evaluation methods include observation of on the job performance\nor a review of performance history, that this was not the sole evaluation method;\ne. The criteria Norfolk Southern used with the evaluation methods to establish\nqualifications for individuals performing covered tasks;\nf. How Norfolk Southern evaluates and approves non-Norfolk Southern OQ\nand/or other OQ programs to allow individuals under those programs to perform\ncovered tasks on Norfolk Southern pipelines;\ng. The re-evaluation of all Norfolk Southern employees performing covered tasks;\nh. The re-evaluation of all contractor individuals qualified under the Norfolk\nSouthern OQ Plan performing covered tasks; and\ni. The evaluation methods and approval process of third party OQ programs that\nNorfolk Southern accepts for contractor individuals to perform covered tasks on\nits pipeline.\n\n\n\n7\n4. With respect to the violations of §§ 195.505(a), (b) (Items 1 &2), Respondent\nmust provide written documentation to the Director, Southern Region the Compliance\nOrder Items 1 & 2 have been completed within 30 days following your receipt of the\nFinal Order. This written documentation must include the covered task list.\n5. With respect to the violation of § 195.507(a) (Item 3), Respondent must make the\nrecords required under Item 3 of this Compliance Order available for inspection by\nPHMSA representatives within 120 days following your receipt of this Final Order.\n6. Norfolk Southern is requested to maintain documentation of the safety\nimprovement costs associated with fulfilling this Compliance Order and submit the\ntotal to the Director, PHMSA Southern Region. Costs should be reported in two\ncategories: (1) total cost associated with preparation and revision of plans,\nprocedures, studies, and analyses; and (2) total cost associated with replacements,\nadditions, and other changes to pipeline infrastructure.\nThe Director may grant an extension of time to comply with any of the required items upon a\nwritten request timely submitted by the Respondent and demonstrating good cause for an\nextension.\nFailure to comply with this Order may result in the administrative assessment of civil penalties\nnot to exceed $100,000 for each violation for each day the violation continues or in referral to the\nAttorney General for appropriate relief in a district court of the United States.\nWARNING ITEM\nWith respect to Item 4, the Notice alleged probable violations of Part 195.509(e) but did not\npropose a civil penalty or compliance order for these items. Therefore, these are considered to\nbe warning items. The warnings were for:\n49 C.F.R. § 195.509(e) (Item 4) ─ Respondent’s alleged use of on-the-job\nperformance as the sole method of evaluation for pipeline personnel.\nNorfolk Southern presented information in its Response showing that it had taken certain actions\nto address the cited items. Accordingly, having considered such information, I find, pursuant to\n49 C.F.R. § 190.205, that a probable violation of 49 C.F.R. § 195.509(e) (Notice Item 4)\noccurred and Respondent is hereby advised to correct such conditions. In the event that OPS\nfinds a violation of this provision in a subsequent inspection, Respondent may be subject to\nfuture enforcement action.\nUnder 49 C.F.R. § 190.215, Respondent has a 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 service of this Final Order by\nthe Respondent, provided they contain a brief statement of the issue(s) and meet all other\n\n\n\n8\nrequirements of 49 C.F.R. § 190.215. The filing of a petition automatically stays the payment of\nany civil penalty assessed. Unless the Associate Administrator, upon request, grants a stay, all\nother 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\n220106004_NOPV PCP PCO_08302010_text.pdf\n\nNOTICE OF PROBABLE VIOLATION\nPROPOSED CIVIL PENALTY\nand\nPROPOSED COMPLIANCE ORDER\nCERTIFIED - RETURN RECEIPT REQUESTED\nAugust 30, 2010\nMr. Tim Heilig\nVice President of Mechanical Operations\nNorfolk Southern Corporation\n1200 Peachtree Street NE (Box 184)\nAtlanta, GA 30309\nCPF No. 2-2010-6004\nDear Mr. Heilig:\nOn September 28-29 and on November 30, 2009, a representative of the Pipeline and\nHazardous Materials Safety Administration (PHMSA) inspected the Norfolk Southern\nCorporation (NSC) pipeline system in Macon, Georgia, pursuant to 49 United States Code\n(USC), Chapter 601.\nAs a result of the inspection, it appears you have committed probable violations of the pipeline\nsafety regulations in Title 49 of the Code of Federal Regulations. The items inspected and the\nprobable violations are:\n1. §195.505 Qualification program.\nEach operator shall have and follow a written qualification program. The\nprogram shall have provisions to:\n(a) Identify covered tasks;\nNSC's written \"Operator Qualification Plan\" (OQ Plan) dated November 2009 failed to\nlist many covered tasks routinely performed on the pipeline as part of NSC's ongoing\noperations and maintenance (O&M) program. The covered task list in Section 3.3, Page\n5, of the OQ Plan contained only five covered tasks. Moreover, the list was general in\ncontent, broad in nature, and was missing many of the specific covered tasks that had\nbeen performed on the pipeline system in accordance with NSC’s written O&M\nmanual.\n\n\n\nThe covered tasks identified in NSC's OQ Plan specifically addressed the examination\nof the pipeline right-of-way (ROW) by a qualified contractor, hydrostatic testing of the\npipeline, cathodic protection, valve inspections, and pipeline start-up and shut-down.\nThis covered task list, however, did not contain many other O&M covered tasks that\nhad been performed and should be performed on a pipeline system by a pipeline\noperator in the performance of O&M duties. Such items would include, but are not\nlimited to, tasks associated with corrosion control (atmospheric corrosion inspection,\ninspection of removed pipe for internal corrosion, coating inspection and repair),\ndamage prevention activities (line marking, excavation), and maintenance/repair\nactivities (welding, NDE, purging).\n2. §195.505 Qualification program.\nEach operator shall have and follow a written qualification program. The program\nshall have provisions to:\n(b) Ensure through evaluation that individuals performing covered tasks are\nqualified;\n[Note: Qualified means that an individual has been evaluated and can: (a) perform\nassigned covered tasks and (b) recognize and react to abnormal operating conditions\n(see §195.503 Definitions)].\nNSC failed to assure that individuals performing covered tasks on its pipeline system\nwere properly OQ qualified because it did not establish abnormal operating conditions\n(AOCs) for each covered task in its OQ Plan and thus could not evaluate an individual's\nability to either recognize or react to an AOC while performing a covered task.\nThe covered task list in Section 3.3, Page 5, of the OQ Plan, listed examination of the\npipeline ROW by a qualified contractor as one of five covered tasks. While the\ndescription of this covered task in the OQ Plan included certain items that a contractor\nshould have reported to NSC if observed during a ROW examination, these items were\nnot identified as AOCs in the OQ Plan. Moreover, none of the other four covered tasks\nin the OQ Plan listed any AOCs or how an individual was to recognize or react to an\nAOC.\n3. §195.507 Recordkeeping.\nEach operator shall maintain records that demonstrate compliance with this\nsubpart.\n(a) Qualification records shall include:\n(1) Identification of qualified individual(s);\n(2) Identification of the covered tasks the individual is qualified to perform;\n(3) Date(s) of current qualification; and\n(4) Qualification method(s).\nNSC failed to maintain sufficient records to adequately demonstrate compliance with\nthe OQ regulations. While NSC did provide some records showing the training of\ncertain individuals, these training records did not meet the regulatory requirements for\nOQ qualification because they did not include information on the methods used to\nqualify the individuals, on the dates of the qualification, or on the identification of the\ncovered tasks for which the individual was being qualified.\n\n\n\n4. §195.509 General.\n(e) After December 16, 2004, observation of on-the-job performance may not be\nused as the sole method of evaluation.\nNSC failed to meet the regulation because it has allowed observation of on-the-job\nperformance as a sole method of evaluation after December 16, 2004.\nThe OQ Plan identifies initial and subsequent evaluation methods for qualification to\nperform covered tasks as \"knowledge-based classroom presentation and hands-on skills\nand abilities evaluations.\" Also, NSC uses an \"OQ Ability Evaluation Record\" form to\nevaluate an individual for one or more covered tasks. When taken together, the\nstatement and the form indicate that using observation of on-the-job performance as the\nsole method of evaluation is acceptable. This is in direct contradiction to the regulation.\nProposed Civil Penalty\nUnder 49 United States Code, § 60122, you are subject to a civil penalty not to exceed\n$100,000 for each violation for each day the violation persists up to a maximum of $1,000,000\nfor any related series of violations. The Compliance Officer has reviewed the circumstances\nand supporting documentation involved in the above probable violation(s) and has\nrecommended that you be preliminarily assessed a civil penalty of $98,600 as follows:\nItem number PENALTY\n1 $ 38,300\n2 $ 42,000\n3 $ 18,300\nWarning Items\nWith respect to item 4: We have reviewed the circumstances and supporting documents\ninvolved in this case and have decided not to conduct additional enforcement action or penalty\nassessment proceedings at this time. We advise you to promptly correct this item. Be advised\nthat failure to do so may result in Norfolk Southern Corporation being subject to additional\nenforcement action.\nProposed Compliance Order\nWith respect to item(s) 1-3 pursuant to 49 United States Code § 60118, the Pipeline and\nHazardous Materials Safety Administration proposes to issue a Compliance Order to Norfolk\nSouthern Corporation. Please refer to the Proposed Compliance Order, which is enclosed and\nmade a part of this Notice.\nResponse to this Notice\nEnclosed as part of this Notice is a document entitled Response Options for Pipeline Operators\nin Compliance Proceedings. Please refer to this document and note the response options. Be\nadvised that all material you submit in response to this enforcement action is subject to being\nmade publicly available. If you believe that any portion of your responsive material qualifies\nfor confidential treatment under 5 U.S.C. 552(b), along with the complete original document\nyou must provide a second copy of the document with the portions you believe qualify for\nconfidential treatment redacted and an explanation of why you believe the redacted information\n\n\n\nqualifies for confidential treatment under 5 U.S.C. 552(b). If you do not respond within 30\ndays of receipt of this Notice, this constitutes a waiver of your right to contest the allegations in\nthis Notice and authorizes the Associate Administrator for Pipeline Safety to find facts as\nalleged in this Notice without further notice to you and to issue a Final Order.\nIn your correspondence on this matter, please refer to CPF 2-2010-6004 and for each document\nyou submit, please provide a copy in electronic format whenever possible.\nSincerely,\nWayne T. Lemoi\nDirector, PHMSA Southern Region\nOffice of Pipeline Safety\ncc: Compliance Registry, PHMSA Headquarters\n\n\n\nPROPOSED COMPLIANCE ORDER\nPursuant to 49 United States Code § 60118, the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA) proposes to issue to Norfolk Southern Corporation (NSC) a\nCompliance Order incorporating the following remedial requirements to ensure the compliance\nof Norfolk Southern Corporation with the pipeline safety regulations:\n1. In regard to Item Number 1 of the Notice pertaining to the failure of NSC to\nadequately identify and list in its written \"Operator Qualification Plan\" (OQ Plan)\na comprehensive list of covered tasks, NSC must review its operations and\nmaintenance (O&M) tasks to be performed on the NSC pipeline by using the four\npart test included in §195.501(b) to ensure that any and all covered tasks to be\nperformed on the NSC pipeline are included on the covered task list.\n2. In regard to Item Number 2 of the Notice pertaining to the failure of NSC to assure\nthat individuals performing covered tasks on its pipeline system were properly OQ\nqualified because it did not establish abnormal operating conditions (AOCs) for\neach covered task in its OQ Plan, NSC must identify AOCs for each covered task\ndetermined in accordance with Item Number 1 of this Compliance Order.\n3. In regard to Item Number 3 of the Notice pertaining to the failure of NSC to\nmaintain sufficient records to demonstrate compliance with the OQ regulations,\nNSC must prepare and maintain records to show\na. all OQ covered tasks for the entire NSC pipeline and facilities,\nb. that AOCs have been reviewed for each covered task with each individual\nperforming an OQ covered task on NSC’s pipeline and that each individual\nis able to recognize and properly react to an AOC,\nc. the evaluation methods used to establish the qualifications of each\nindividual performing an OQ covered task,\nd. that when evaluation methods include observation of on the job\nperformance or a review of work performance history, that this was not the\nsole evaluation method,\ne. the criteria NSC used with the evaluation methods to establish\nqualifications for individuals performing covered tasks,\nf. how NSC evaluates and approves non-NSC OQ and/or other OQ programs\nto allow individuals qualified under those programs to perform covered\ntasks on NSC’s pipeline,\ng. the re-evaluation of all NSC employees performing covered tasks,\nh. the re-evaluation of all contractor individuals qualified under the NSC OQ\nPlan performing covered tasks; and,\ni. the evaluation methods and approval process of third party OQ programs\nthat NSC accepts for contractor individuals to perform covered tasks on its\npipeline.\n4. NSC must provide written documentation to the Director, PHMSA Southern\nRegion, that Items 1 and 2 of this Compliance Order have been completed within\n30 days following your receipt of the Final Order. This written documentation\nmust include the covered task list. NSC must make the records required under\nItem 3 of this Compliance Order available for inspection by PHMSA\nrepresentatives within 120 days following your receipt of the Final Order.\n\n\n\n5. NSC must maintain documentation of the safety improvement costs associated with\nfulfilling this Compliance Order and submit the total to the Director, PHMSA\nSouthern Region. The costs must be reported in two categories: 1) total cost\nassociated with preparation/revision of plans, procedures, studies and analyses, and\n2) total cost associated with replacements, additions and other changes to pipeline\ninfrastructure.","truncated":false,"body_characters":36550}