DTE GAS COMPANY — Notice of Probable Violation

320020001_Final Order_07282004.pdf, page 1Official PDFol US Depstnent of Tfonsportoltofi Rcrcorchsrd Spacbl Pr,ogfg.n6 Adrvlrilrtrslbn ri,U Sevenil' Sl 5 t|i ',ta5nv1g161 D ':- ?i5-qtll JUL 2 8 200f Mr. Steven E. Kurmas Senior Vice President, Gas Operations DTE Energy Cas Michigan Consolidated Gas Company 500 Griswold Street Detroit. MI 48226 Re: CPF No. 3-2002-t)001 Dear Mr. Kurmas: Enclosed is the Final Ordcr issued by thc Associate Adntinistrator for Pipeline Safety in the above-referenced case. It makes findings of violation and assesses a ciYil penalty of $25.000. The penaltypayment terms are set forth in the Final Order. This enforcement action closes automatically upon payment. Your receipt of thc Final Orderconstitutes sen'icc of that documcnt under49 C'F.R. $ r90.5. Sincerely, h r/1 .l\ \ / - James Reynolds Pipeline Compliance Rcgi stry Officc of Pipeline SafetY Enclosure I#

320020001_Final Order_07282004.pdf, page 2DEPARTMENT OF TRANSPORTATION RESEARCH AND S PECI-AL PROG RAMS ADM INIS TRATION OFFICE OF PIPELINE SAFETY WASHTNGTON. DC 20590 ln the Matter of DTE Energy Gas, Michigan Consolidated Gas Company, Respondent. l .l )l ll CPF No. 3-2002-0001 FINAI. ORDER On July 17, 2002, pursuant to 49 U,S.C. $ 601 I 7. a represcntative of the Office of Pipeline Safety (OPS) initiated an investigation of Respondent's incident reporting involving its pipeline system. As a result of the investigation, thc Dircctor, Central Region, OPS, issued to Respondcnt, by letter dated November 12.2M\ a Notice of Probable Violation and Proposed Civil Penalty (Notice). In accordance with 49 C.F.R. $ 190.207, the Noticc proposed finding that Rcspondent had violatcd 49 C.F.R. $$ 191.5, 191.9, and l9l.l5 and proposed assessing a civil pcnalty of $25.000 for the alleged violations. Respondent responded to the Notice by lcttcr dated December 5, 2002 (Response). Respondent contcsted the allegation of violation in ltcm I in the Notice, offered information to explain the allegation. and requcsted that the proposed civil penalty bc reduced or eliminated. Respondcnt did not contest the violations allcged in Item 2 and ltem 3 in the Notice, but provided information concerning the corrective actions it has taken. Respondent ditl not request a hearing and, thereforc, has waived its right to one, FTNDINGS OF VIOLATION Contested Item Item I in the Notice alleged that Rcspondent violated 49 C,F.R. $ 191.5 by failing to provide the National Response Center (l.iRC) with telcphonic notification at the earliest practicablc moment following discovery of an incident that occurred around 9:23 AM CST on July 16. 2AO2' Respondent rcported thc incident to the Michigan Public Scn'ice Commission (MPSC) at approximatety i O:aS AM on July 16, 2002, but did not report the incidcnt to the NRC until 3:23 PM the ncxt day, approximately 30 hours afler the incident.#

320020001_Final Order_07282004.pdf, page 32 A contractor for the city struck Respondent's three-inch high density polyethylene distribution line (main) in Detroit, Michigan at approximately 9:23 AM on July 16, 2002. The contractor struck the main while boring, resulting in the release of gas which ignited and set fire to the main and surrounding equipment. Respondent's personnel arrived at the site of the incident at 9:48 AM and stopped the gas flowing to the burning main at approximately 1:27 PM. The fires were extinguished shortly after the gas flow was stopped. MPSC personnel arrived at approximately 2:00 PM. The damage immediately visible to MPSC personnel included the burned main, burned portions of the contractor's truck-mounted auguring equipment, melted traffic control barrels, and singed surrounding trees. While Respondent reported to the MPSC within 2 hours of the incident, it did not to report to the NRC until approximately 30 hours latcr. In its Response, Respondent stated it immediately determined the incident met the MPSC reporting criteria of $10,000 or more property damage but that OPS reporting thresholds were not triggered until July 17 because "(i]nformation was not readily available immediately after the incident to decide if the DOT reporting criteria would be met." Respondent explained that it realized estimated property damage would exceed $50,000 after interviewing contractor personnel on July 17. Respondent contested the allegation of violation because it "believe[d] it notified [the NRC] of the incident immediately after concluding that the estimated property damage criteria was met.…." The pipeline safety regulations require reporting at the carliest practicable moment after discovery of an incident—-not after fully investigating the extent of property damage because of the time- sensitive safety and response coordination functions that incident reporting serves. Reporting must be done promptly to ensure timely response from local and national officials and reduction of risk to public safety and the environment. Accordingly, OPS has historically construed the telephonic incident reporting regulations to require an incident that could potentially meet the reporting criteria to be reported within one to two hours after the pipeline operator first becomes aware of its occurrence: All pipeline operators were formally notified of the two-hour time frame for telephonic incident reporting through an Alert Notice published on April 15, 1991 (ALN-91-01). The Alert Notice, while not itself a basis for a violation, provided pipeline operators with explicit guidance on the manner in which reporting requirements would be enforced. Thus, operators were made aware ofOPS's interpretation of" earliest practicable moment" and the need to exercise diligence in making reporting determinations. Based on the totality of the evidence, Respondent does not appear to have reported to tic NRC at the earliest practicable moment. There is no evidence that Respondent was prevented from gathering information to estimate property damage shortly after the incident on July 16. Access to the incident site was not blocked off, Respondent's personnel were at the incident site within minutes of the incident, and the contractor personnel that struck the main were contemporaneously present and available for interview. Furthering the applicability of the two-hour time frame to the facts of this case, the definition of "incident" in § 191.3 requires operators to estimate property damage, not ascertain a definitive dollar amount of property damage. However, even ignoring Respondent's notice of the two-hour practicability time frame from ALN-91-01, Respondent did not exercise#

320020001_Final Order_07282004.pdf, page 43 diligence in estimating property damage for reporting purposes by choosing to rvait until the day after the incident to gather important and relevant information. Therefore, Respondent did not telephonically report the incident on July 16, 2002 to thc NRC at the earliest practicable moment. For the foregoing reasons, I find that Respontlent violated 49 C.F.R. rs l9 | .5. Uncontested ltems ln its Response, Respondent did not contest the violations alleged in Items 2 and 3 of the Notice. Accordingly, I find that Respondent violatcd thc follorving sections of 49 C'.F.R. Part l!)1, as more fully described in the Notice: 49 C.F.R. $ 191.9 -- failing to submit timely DOT RSPA Form 7100.1 rvritten reports following telephonic reporting of three incidents involving Respondent's gas distribution pipclinc systcm that occurred on November 30, 2001, June 28, 2002, and July 16,2002. Respondent submitted written reports for all of these incidents on September 19,2002, a minimum of approximately 34 days over the 3O-day submission deadline and a maximum of approximatcly 263 days over the deadline; and 49 C.F.R. $ l9l.l5 -- failing to submit timely a DOT RSPA Form 7100.2 written report following telephonic reporting of an incidcnt involving Respondent's ga-s transmission pipe line system that occuned on Deccmber 12, 2001 . Respondent submitted a written report forthis incident on September l6, 2002, approximately 247 days aftcr the 30-daysubmission deadline. These findings of violation will be considered prior offenses in any subscquent enforcement action takcn against Respondent. ASSESSMENT OF PENALTY Under 49 U.S.C. $ 60122, Respondent is subject to a civil penalty not to exceetl $100,000 per violation for each dayof the violation up to a maximum of SI,000,000 for any'relatcd series of violations. 49 U.S.C. $ 60122 and 49 C.F.R. $ 190.225 require that, in detcrmining the amount of the civil penalty, I consider the following criteria: naturc, circumstances, and gravity of the I'iolation, degrcc of Respondent's culpability, history of Rcspondent's prior offenses, Respondcnt's ability to pay the penatty, good faith by Respondent in attempting to achieve compliance, the effect on Rcspondent's ability to continuc in business, and such other maners as justice may require. Thc Notice proposcd a total civil penalty of $25,000 for the violations. Telqrhonic incident reports and written follow-up reports are crucial to fulfilling the OPS mission of ensuring public and environmcntal safety. Failure to telcphonically report incidents in a timely#

320020001_Final Order_07282004.pdf, page 54 fashion significantly affects local and national response to pipeline incidents and can put the public and environment at risk. Failure to file written follow-up reports within 30 days of telephonic reporting deprives OPS of information on the status of incident response and changes, additions, or corrections to data that was originally supplied with the telephonic repor. Furthermore, incident reporting is critical to determine nationwide trends in pipeline incidents. I have determined that Respondent has no financial circumstances that would prevent it from paying the penalty amounts assessed below and that Respondent's ability to continue in business will not be significantly affected. Having reviewed the record and considered the assessment criteria, I assess a total penalty of $25,000 which reflects $5,000 for violation of 49 C.F.R. § 191.5, $15,000 for three instances of violation of 49 C.F.R. § 191.9, and $5,000 for violation of 49 C.F.R. § 191.15. Payment of the civil penalty must be made within 20 days of service. Federal regulations (49 C.F.R. § 89.21(b)(3)) require this payment 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-120), Federal Aviation Administration, Mike Monroney Aeronautical Center, P.O. Box 25082, Oklahoma City, OK 73125; (405) 954-4719. Failure to pay the $25,000 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. Furthermorc, failure to pay the civil penalty may result in referral of the matter to the Attorney General for appropriate action in a United States District Court. Under 49 C.F.R. § 190.215, Respondent has a right to submit a Petition for Reconsideration of this Final Order. The petition must be reccived within 20 days of Respondent's reccipt of this Final Order and must contain a brief statement of the issue(s). The filing of the petition automatically stays the payment of any civil penalty assessed. However if Respondent submits payment for 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. on receipt. A Hordal.. ?/2E/01 Stacey Gerard Date Issued Associate Administrator for Pipeline Safety#