{"operation":"document","citation":"CPF 320031004","title":"NORTHERN NATURAL GAS CO — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2003-02-19","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.605(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320031004.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320031004.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320031004","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320031004","body":"Notice of Probable Violation involving NORTHERN NATURAL GAS CO. PHMSA's enforcement data identifies the cited regulation as 192.605(a). The case was opened on 2003-02-19 and is reported as closed as of 2003-07-29. Proposed civil penalty: $15,000. Assessed civil penalty: $15,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320031004_Final Order_06232003.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320031004/320031004_Final%20Order_06232003.pdf\n\ncpf320031004o.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320031004/cpf320031004o.pdf\n\ncpf320031004o_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320031004/cpf320031004o_text.pdf\n\n320031004_Final Order_06232003.pdf\n\no\nU.S.Deportment\nof Tronsporlotion\nReseorchond\nSpeciol Progroms\nAdminislrqlion\n400 Sevenlh St . S W\nWashington. D C 20590\nJiiil : 3 ,lii03\nMr. Royce Ramsay\nVice President-Operations\nNorthem Natural Gas Company\n111 South 103'd Street\nOmaha, NE 68124-1091\nRE: CPF No. 3-2003-1004\nDear Mr. Ramsay:\nEnclosed is the Final Order issued by the Associate Administrator for Pipeline Safety in the\nabove-referencedcase. Itmakesafindingofviolationandassessesacivilpenaltyof$15,000. The\npenaltypayment terms are set forth in the Final Order. This enforcement action closes automatically\n\"po\"puyt\"ent. Yourreceipt ofthe Final Orderconstitutes service ofthat documentunder49 C.F'R'\n$ 190.5.\nSincerely,\nGwendolyn M. Hill\nPipeline Compliance Registry\nOffice of Pipeline SafetY\nEnclosure\nCERTIFIED MAIL. RETURN RECEIPT REOUESTED\n\n\n\nDEPARTMENT OF TRANSPORTATION\nRESEARCH AND SPECIAL PROGRAMS ADMINISTRATION\no TII qI9LPJ lTI IJE SAFE rY\nWASHINGTONO D'C' 20590\nln the Matter of\nNORTHERN NATT]RAL GAS COMPANY\nRespondent\nCPF No. 3-2003-1044\nFINAL ORDER\nPursuant to 49 U.S.C. $ 60117, arepresentative of the Central Region, Office of Pipeline Safety\n(OPS) initiated an investigation of an incident involving a natural gas line operated by Northern\nNatural Gas Company (Respondent). The Director, Central Region, OPS, issued to Respondent, by\nletter dated February 19 ,2003 ,\na Notice of Probable Violation and Proposed Civil Penalty (Notice).\nIn accordance with 49 C.F.R. 5 190.207, the Notice proposed finding Respondent in violation of\n49 C.F.R. $ 1 92.605(a) and proposed assessing a civil penalty of $ 1 5,000 for the alleged violation.\nRespondent responded to the Notice by letter dated February 26,2003 (Response). Respondent\ncontested the alleged violation, offered an explanation and requested reconsideration ofthe proposed\ncivil penalty. Respondent did not request a hearing and therefore, has waived its right to one.\nFINDINGS OF VIOLATION\nThe Notice alleges that Respondent violated 49 C.F.R. $ 192.605(a), by failing to follow its manual\nof written procedures for conducting operations, maintenance activities and emergency response.\nRespondent's Damage Prevention Procedures Number 80.002 (5.4 and 5.5) state that Respondent\nwill assign a company representative to be present when excavation activities occur within 25 feet\nof the pipeline. The manual also states that the depth of the pipeline at the location where it is to be\ncrossed will be determined using a method that is reliable and produces results compatible with need.\nGenerally, depth data is determined using electronic instruments and should be confirmed using a\nprod rod or the equivalent. However, Respondent's employee gave a third party excavator approval\nto dig during a telephone call and no company representative was present during the excavation. The\nthird party damage resulted in a gas leak.\n\n\n\n2\nRespondent contested the alleged violation and explained that it promptly reported the incident to\nthe National Response Center and submitted an Incident Form 7100.2 to OPS. Respondent further\nexplained that the employee involved received proper training and understood Northern's line\nlocation procedures. Respondent argued that it should not be found in violation because of one\nemployee's choice not to follow Northern's written procedures for line location.\nAn employer is ultimately responsible for the actions of its employees. This is a well-settled rule\nof law that comes into play when the employer has the right and ability to control or supervise the\nactivities of an employee. On the moming of October 8,2002, Respondent's employee visited the\nexcavation site, flagged the pipeline and left with the understanding that the excavator would be in\nposition to cross the pipeline the next day. However, the excavator phoned Respondent's employee\nin the evening on the same day seeking approval to cross the pipeline. During that phone\nconversation, Respondent's employee approved excavation activities within 25 feet of the pipeline\nwithout being present at the site and without determining the depth of the pipeline at the location\nwhere it was to be crossed. The excavator struck the pipeline causing a leak, $133,900 in property\ndamage and the evacuation of sixty people.\nAn employer is responsible for implementing the necessary training for its employees. Emphasis\nshould be on achieving the required competencies for the appropriate level of response to a given\nsituation, rather than on merely accumulating training hours. When an employee acts within the\nscope of his authority, as the employer's representative, and fails to take appropriate action, that\nfailure is attributable to the employer. Respondent's employee approved excavation activities within\n25 feet of the pipeline without being present at the site and without determining the depth of the\npipeline at the location where it was to be crossed. Respondent failed to follow its manual ofwritten\nproceduresforconductingoperations,maintenanceactivitiesandemergencyresponse. Accordingly,\nI find Respondent violated 49 C.F.R. $ 192.605(a),\nThis f,rnding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. 5 60122, Respondent is subject to a civil penalty not to exceed $100,000 per\nviolation for each day of the violation up !o amaximum of $1,000,000 for anyrelated series of\nviolations. The Notice proposed assessing a penalty of $15,000 for violation of 49 C.F.R.\n$ le2.60s(a).\n49 U.S.C. 5 60122 and 49 C.F.R. 5 190.225 require that, in determining the amount of the civil\npenalty, I consider the following criteria: nature, circumstances, and gravity of the violation, degree\nof Respondent's culpability, history of Respondent's prior offenses, Respondent's ability to pay the\npenalty, good faith by Respondent in attempting to achieve compliance, the effect on Respondent's\nability to continue in business, and such other matters as justice may require.\n\n\n\n3\nRespondent requested reconsideration of the proposed civil penalty based on its prompt reporting\nof the incident to the National Response Center, submission of an Incident Form 7100.2to OPS and\ndischarge ofthe employee involved in the incident. Respondent arguedthat the incident would not\nhave occured but for the actions of one employee who had received proper training on line location\nprocedures, and understood the procedures but made an individual choice not to follow them.\nRespondent further advised that it issued a safety bulletin concerning the incident to each of its\nemployees ten days after the incident.\nAn employer is responsible for the actions of its employees at the workplace or while performing\nthe duties and responsibilities of an employer at any location. If an employee is found to have acted\ninappropriately while performing his duties, his acts or omissions are properly atkibutable to the\nemployer. An employee should have sufficient training or experience to demonstrate competency\nin understanding what the hazards are, their associated risks, and the potential outcomes. Operators\nare ultimately responsible for their own compliance with Pipeline Safety laws and regulations even\nin the face of mistakes, omissions or commissions that occurwithin its employee's scope of duties.\nAccordingly, havingreviewed therecord andconsideredthe assessment criteria,I assess Respondent\na civil penalty of $15,000. A determination has been made that Respondent has the ability to pay\nthis penalty without adversely affectingits ability to continue business.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations\n(49 C.F.R. $ 89.21(bX3)) require this payment be made by wire transfer, through the Federal\nReserve Communications System (Fedwire), to the account of the U.S. Treasury. Detaited\ninstructions are contained in the enclosure. After completing the wire transfer, send a copy ofthe\nelectronic funds transfer receipt to the Office of the Chief Counsel (DCC-l), Research and\nSpecial Programs Administration, Room 8407, U.S. Department of Transportation,400 Seventh\nStreet, SW, Washington, DC 20590-0001.\nQuestions conceming wire transfers should be directed to: Financial Operations Division(AMZ-\n120), Federal Aviation Administration, Mike Monroney Aeronautical Center, P.O. Box 25770,\nOklahoma City, OK 73125; (405) 954-4719.\nFailure to pay the $ 1 5,000 civil penalty will result in accrual of interest at the current annual rate in\naccordancewith3lu.s.c. s3717,31C.F.R.$901.9and49C.F.R.$89.23. Pursuanttothosesame\nauthorities, a late penalty charge of six percent (6%) per annum will be charged if payment is not\nmade within 1 10 days of service. Furthelanore, failure to pay the civil penalty may result in referral\nof the matter to the Attorney General for appropriate action in an United States District Court.\nUnder 49 C.F.R. $ 190.215, Respondent has a right to petition for reconsideration of this Final\nOrder. However, if the civil penalty is paid, the case closes automatically and Respondent waives\nthe right to petition for reconsideration. The filing of the petition automatically stays the payment\n\n\n\n4\nof any civil penalty assessed. The petition must be received within 20 days of Respondent's receipt\nof this Final Order and must contain a brief statement of the issue(s). The terms and conditions of\nthis Final Order are effective on receipt.\n: , )\nDate Issued\n&,qso.iute Administrator\nfor Pipeline Safety","truncated":false,"body_characters":10254}