{"operation":"document","citation":"CPF 320051008","title":"WBI ENERGY TRANSMISSION, INC. — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2005-02-23","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.465(a), 192.471(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320051008.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320051008.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320051008","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320051008","body":"Notice of Probable Violation involving WBI ENERGY TRANSMISSION, INC.. PHMSA's enforcement data identifies the cited regulations as 192,  192.465(a),  192.471(a). The case was opened on 2005-02-23 and is reported as closed as of 2007-07-16. Proposed civil penalty: $5,500. Assessed civil penalty: $5,500. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320051008_FinalOrder_062107.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320051008/320051008_FinalOrder_062107.pdf\n\n320051008_finalorder_062107_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320051008/320051008_finalorder_062107_text.pdf\n\n320051008_finalorder_062107_text.pdf\n\nU S Department\nof Transportatton\nPipeline and Hazardous\nMaterials Safety Administration\n400 Seventh Street, S W\nWashington, D C 20590\nJUN 2 1 2007\nMr. Tony Finneman\nExecutive Vice President\nWilliston Basin Interstate Pipeline Company\n1250 West Century Avenue\nBismarck, ND 58506-5601\nRe: CPF No. 3-2005-1008\nDear Mr. Finneman:\nEnclosed is the Final Order issued by the Associate Administrator for Pipeline Safety in the\nabove-referenced case. It makes findings of violation and assesses a civil penalty of $5, 500.\nThe penalty payment terms are set forth in the Final Order. This enforcement action closes\nautomatically upon payment. Your receipt of the Final Order constitutes service of that\ndocument under 49 C. F. R. $ 190. 5.\nSincerely,\nes Reynolds\nPipeline Compliance Registry\nOffice of Pipeline Safety\nEnclosure\ncc: Ivan Huntoon\nDirector, Central Region, PHMSA\nCERTIFIED MAIL — RETURN RECEIPT RE UESTED\n\n\n\nDEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D. C. 20590\nIn the Matter of\nWilliston Basin Interstate\nPipeline Company,\nRespondent.\nCPF No. 3-2005-1008\nFINAL ORDER\nOn August 2-6, 9-13, 16-20, and August 30-September 2, 2004, pursuant to 49 U. S. C. $ 60117, a\nrepresentative of the Pipeline and Hazardous Materials Safety Administration (PHMSA), Office\nof Pipeline Safety conducted an on-site pipeline safety inspection of Respondent's facilities and\nrecords in its Glendive, Montana, and the North Dakota and South Dakota operating areas. As a\nresult of the inspection, the Director, Central Region, PHMSA, issued to Respondent, by letter\ndated February 25, 2005, a Notice of Probable Violation and Proposed Civil Penalty (Notice). In\naccordance with 49 C. F. R. f 190. 207, the Notice proposed finding that Respondent had\ncommitted violations of 49 C. F. R. Part 192, and proposed assessing a civil penalty of $5, 500 for\nthe alleged violations.\nRespondent responded to the Notice by letter dated March 15, 2005 (Response). Respondent\ncontested the allegations and requested an informal hearing pursuant to 49 C. F. R. $ 190. 211.\nThe hearing was held by teleconference on November 9, 2005. Larry White of PHMSA's Office\nof Chief Counsel served as the Presiding Official. Respondent was represented by counsel.\nAfter the hearing, Respondent provided additional information for the record on December 1,\n2005.\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C. F. R. Part 192 as follows:\nNotice Item 1:\n49 C. F. R. g 192. 465 External corrosion control: Monitoring.\n(a) Each pipeline that is under cathodic protection must be tested at least once each\n\n\n\ncalendar year, but with intervals not exceeding 15 months, to determine whether the\ncathodic protection meets the requirements of $192. 463. However, if tests at those\nintervals are impractical for separately protected short sections of mains or transmission\nlines, not in excess of 100 feet (30 meters), or separately protected service lines, these\npipelines may be surveyed on a sampling basis. At least 10 percent of these protected\nstructures, distributed over the entire system must be surveyed each calendar year, with a\ndifferent 10 percent checked each subsequent year, so that the entire system is tested in\neach 10 — year period.\nSpecifically, Item 1 in the Notice alleged that Respondent failed to conduct annual cathodic\nprotection testing at five of its electrical test stations for the years specified in the Notice.\nIn its Response and at the hearing, Respondent acknowledged that it failed to take readings at the\nfive specified test stations during the relevant time periods. Respondent, however, argued that it\nnevertheless met the $ 192. 465(a) requirement to test the protection level on the overall\n\"pipeline\" because the readings it took at the upstream and downstream stations sufficiently\nestablished the adequacy of the cathodic protection of the pipeline.\nUnder the pipeline safety regulations, each pipeline must have sufficient electrical test stations to\ndetermine the adequacy of cathodic protection. ' When a cathodic protection system is designed\nand installed, the locations of the test stations correspond to locations where a qualified system\ndesigner made a determination that periodic testing of the adequacy of cathodic protection was\nappropriate, but the regulations do not set any particular spacing or require a certain number of\ntest stations. Unless otherwise provided, once a cathodic protection system and its associated\ntest stations are installed, annual testing at each test station is standard practice. Operators are\nrequired to establish written operating and maintenance procedures for their pipelines setting\nforth the frequency and manner of cathodic protection testing — which must at least meet the\nregulatory minimums — and operators are required to follow the procedures they establish.\nIf an operator later decides to deviate from its established procedures and discontinue testing at a\nparticular station or stations, its decision must be based on a determination by a qualified\nindividual that annual testing at that station is no longer necessary to evaluate the effectiveness\nof the cathodic protection in that area. This determination must be based on technical analysis\nperformed at or before the time the testing for that station was discontinued. An operator must\ndocument such a decision and its technical justification in the contemporaneous records in order\n49 C. F. R. $ 192. 469.\nIt is common practice in the industry to locate test stations at approximately one-mile increments when installing\ncathodic protection in environments like the one in which Respondent's pipeline system is located.\nFor purposes of the annual survey, an individual qualified in pipeline corrosion control may decide that test leads\n(or a spotting bar) should be attached at the locations that person determines to be appropriate for detecting\ndeficiencies which may include locations in addition to those where existing test stations are present.\nA documented \"close-interval survey\" is an example of a technical analysis that could form the basis for a\ndecision to discontinue testing at a particular test station.\n\n\n\n3\nto ensure that missed cathodic protection readings are not the result of ad hoc failures on the part\nof field technicians to take annual readings in accordance with its established procedures — which\nis a maintenance issue that constitutes non-compliance.\nIn this case, Respondent did not provide any documented procedures or technical analysis\nshowing how the spacing between its test stations was originally established by the designer, nor\ndid Respondent provide any documented procedures or technical analysis demonstrating that any\nof the specified test stations had been designated as stations not to be used during annual surveys\nat the time the readings were missed. Respondent did provide the field records for the annual\nsurveys it conducted during the relevant periods of time. According to these records, the reasons\nits field technicians failed to take readings at the specified test stations were more or less random\nevents including temporary flooding, locked gates, and in one instance the presence of buffalo in\nthe field. The regulatory formulation of \"once each calendar year, but with intervals not\nexceeding 15 months\" provides operators with the flexibility to return to a test location if follow-\nup is needed due to seasonal issues such as weather or temporary flooding. Respondent had no\nexplanation for the absence of follow-up visits to these test stations. Respondent failed to\ndemonstrate in its Response or during the hearing that a decision to deviate from its established\nprocedures and discontinue annual testing at these five test stations was made by qualified\npersonnel based on technical analysis performed at or before the time the readings were missed.\nAfter considering all the evidence and the legal issues presented, I find that Respondent violated\n49 C. F. R. $ 192. 465(a) by failing to conduct annual cathodic protection testing at five electrical\ntest stations as more fully described in the Notice.\nNotice Item 2:\n49 C. F. R. g 192. 471 External corrosion control: Test leads.\n(a) Each test lead wire must be connected to the pipeline so as to remain mechanically\nsecure and electrically conductive.\nSpecifically, Item 2 in the Notice alleged that Respondent failed to reconnect a test lead on the\nSafeguard System at Mile Post 21. 72 after discovering that it was broken during the 2002 annual\nsurvey.\nIn its Response and during the hearing, Respondent acknowledged that although its personnel\nidentified the test lead as broken in 2002, it failed to reconnect the lead until October 6, 2004.\nHowever, Respondent again argued that its failure to reconnect the test lead should not be\nconsidered a violation because despite the omission of testing at this station, it had reason to\nbelieve that the cathodic protection level in the area was adequate.\nSection 192. 471(a) states that \"Each test lead wire must be connected to the pipeline so as to\nremain mechanically secure and electrically conductive. \" As we have already discussed, if\nRespondent had been able to demonstrate that it made a technically justified decision to\ndiscontinue testing at this station (or remove it) at the relevant time, this regulation would have\n\n\n\n4\nbeen inapplicable to that particular location. Respondent, however, made no such demonstration.\nThere is nothing in the record that would warrant a conclusion that Respondent's failure to repair\nthe broken test lead was anything other than a lack of maintenance. After considering all the\nevidence and the legal issues presented, I find that Respondent violated 49 C. F. R. $ 192. 471(a)\nby failing to reconnect a test lead on the Safeguard System as more fully described in the Notice.\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 a civil penalty not to exceed $100, 000 per\nviolation for each day of the violation up to a maximum of $1, 000, 000 for any related series of\nviolations.\n49 U. S. C. $ 60122 and 49 C. F. R. $ 190. 225 require that, in determining the amount of the civil\npenalty, I consider the following criteria: nature, circumstances, and gravity of the violation,\ndegree of Respondent's culpability, history of Respondent's prior offenses, Respondent's ability\nto pay the penalty, good faith by Respondent in attempting to achieve compliance, the effect on\nRespondent's ability to continue in business, and such other matters as justice may require.\nWith respect to Item 1, the Notice proposed a civil penalty of $4, 750 for Respondent's failure to\nconduct annual cathodic protection testing at five of its test stations as specified in the Notice.\nPipeline operators are obligated to perform maintenance activities in a thorough and consistent\nmanner to ensure safe operation of their pipelines. Checking the adequacy of cathodic protection\nby conducting electrical surveys on an annual basis is particularly important for pipeline safety\nbecause it is a key aspect of ensuring that pipelines are protected from corrosion. At the hearing,\nRespondent provided information that it compiled after the PHMSA inspection concerning the\nreadings taken from test stations upstream and downstream of the stations that were missed,\nalong with information concerning the output of the rectifiers. Respondent asserted that this\ninformation showed that the cathodic protection levels in the vicinity of the missed stations were\nadequate during the period when the readings were missed. Respondent also noted the absence\nof leaks on the pipeline and argued that the results from subsequent internal inspections showed\nthe absence of corrosion in the pipe, arguing that this constitutes evidence that the cathodic\nprotection levels must have been adequate.\nThe purpose of cathodic protection, however, is preventative. If no corrosion occurred,\nRespondent is fortunate but the purpose of periodically testing the adequacy of cathodic\nprotection is to ensure corrosion does not occur, as opposed to identifying it after it occurs.\nPipeline operators are obligated to ensure that personnel performing maintenance activities do\nnot deviate from normal testing and inspections unless a decision to do so has a sound technical\nbasis and is made by appropriate personnel in a transparent and accountable manner.\nRespondent has presented no information that would warrant a reduction in the civil penalty\n\n\n\n5\namount proposed in the Notice for this violation. Accordingly, having reviewed the record and\nconsidered the assessment criteria, I assess Respondent a civil penalty of $4, 750 for violating 49\nC. F. R. f 192. 465(a).\nWith respect to Item 2, the Notice proposed a civil penalty of $750 for Respondent's failure to\nreconnect a test lead on the Safeguard System. At the hearing, Respondent provided information\nconcerning the readings taken from the nearest upstream and downstream stations. Respondent,\nhowever, has presented no information that would warrant a reduction in the civil penalty\namount proposed in the Notice for this violation. Accordingly, having reviewed the record and\nconsidered the assessment criteria, I assess Respondent a civil penalty of $750 for violating 49\nC. F. R. $ 192. 471(a).\nFor the foregoing reasons, having reviewed the record and considered the assessment criteria, I\nassess Respondent a total civil penalty of $5, 500. There is nothing in the record indicating that\npayment of this penalty would adversely affect Respondent's ability to continue in business.\nPayment of the civil penalty must be made within 20 days of service. Payment may be made by\nsending a certified check or money order (containing the CPF Number for this case) payable to\n\"U. S. Department of Transportation\" to the Federal Aviation Administration, Mike Monroney\nAeronautical Center, Financial Operations Division (AMZ-300), P. O. Box 25082, Oklahoma\nCity, OK 73125.\nFederal regulations (49 C. F. R. $ 89. 21(b)(3)) also permit this payment to be made by wire\ntransfer, through the Federal Reserve Communications System (Fedwire), to the account of the\nU. S. Treasury. Detailed instructions are contained in the enclosure. Questions concerning wire\ntransfers should be directed to: Financial Operations Division (AMZ-300), Federal Aviation\nAdministration, Mike Monroney Aeronautical Center, P. O. Box 25082, Oklahoma City, OK\n73125; (405) 954-8893.\nFailure to pay the $5, 500 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. f 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 United\nStates District Court.\nUnder 49 C. F. R. $ 190. 215, Respondent has a right to submit a petition for reconsideration of\nthis Final Order. Should Respondent elect to do so, the petition must be received within 20 days\nof Respondent's receipt of this Final Order and must contain a brief statement of the issue(s).\nThe filing of a petition automatically stays the payment of any civil penalty assessed. However\nif Respondent submits payment for the civil penalty, the Final Order becomes the final\nadministrative decision and the right to petition for reconsideration is waived. The terms and\nconditions of this Final Order are effective on receipt.\n\n\n\nJ ffr y . Wiese\nA '\ng Associate Administrator\nfor Pipeline Safety\nDate Issued","truncated":false,"body_characters":16567}