{"operation":"document","citation":"CPF 320055018","title":"TEXAS EASTERN PRODUCTS PIPELINE CO — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2005-04-25","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(a), 195.403(a), 195.403(c), 195.422(a), 195.54(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320055018.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320055018.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320055018","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320055018","body":"Notice of Probable Violation involving TEXAS EASTERN PRODUCTS PIPELINE CO. PHMSA's enforcement data identifies the cited regulations as 195.402(a),  195.403(a),  195.403(c),  195.422(a),  195.54(a). The case was opened on 2005-04-25 and is reported as closed as of 2010-10-12. Proposed civil penalty: $350,000. Assessed civil penalty: $325,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320055018_Decision on Petition of Reconsideration _10122010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320055018/320055018_Decision%20on%20Petition%20of%20Reconsideration%20_10122010.pdf\n\n320055018_Decision on Petition of Reconsideration _10122010_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320055018/320055018_Decision%20on%20Petition%20of%20Reconsideration%20_10122010_text.pdf\n\n320055018_FnalOrder _02272009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320055018/320055018_FnalOrder%20_02272009.pdf\n\n320055018_FnalOrder _02272009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320055018/320055018_FnalOrder%20_02272009_text.pdf\n\n320055018_Decision on Petition of Reconsideration _10122010_text.pdf\n\nOCT 12 2010\nMr. Michael A. Creel\nPresident and Chief Executive Officer\nEnterprise Products Partners, LP\n1100 Louisiana Street, 10th Floor\nHouston, TX 77002\nRe: CPF No. 3-2005-5018\nDear Mr. Creel:\nEnclosed please find the Decision on the Petition for Reconsideration filed by TE Products\nPipeline Company, LLC, (TEPPCO) now part of Enterprise Products Partners, in the above-\nreferenced case. The Decision grants TEPPCO’s petition in part, denies it in part, and reduces\nthe total civil penalty to $325,000. The terms of the Final Order are now in effect, including the\nassessment of the reduced penalty. Pipeline and Hazardous Materials Safety Administration\n(PHMSA) also acknowledges receipt of a check from TEPPCO in the amount of $345,903.25 on\nJune 2, 2009.\nBy copy of this letter, I have informed the Federal Aviation Administration (FAA), Financial\nOperations Division, of the reduction in the penalty and the need for the FAA to refund $20,000,\nplus any applicable penalty and interest paid by TEPPCO in this case. If you should have any\nquestions about this, please contact the FAA at (405) 954-8893 or (405) 954-2685.\nService of this document by certified mail is deemed effective upon the date of mailing, or as\notherwise 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. David Barrett, Director, Central Region, PHMSA\nMr. Vincent Atriano, Esq., Squire, Sanders & Dempsey L.L.P.,\n2000 Huntington Center, 41 South High Street, Columbus, OH 43215\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED [70051160000100456808]\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\nIn the Matter of )\nEnterprise Products Partners, LP ) CPF No. 3-2005-5018\n(f/n/a Texas Eastern Petroleum )\nProducts Company), )\n)\n)\n)\nPetitioner. )\n____________________________________)\nDECISION ON PETITION FOR RECONSIDERATION\nOn February 27, 2009, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\nissued a Final Order in this case, finding that TE Products Pipeline Company, LLC, formerly\nknown as Texas Eastern Petroleum Products Company (TEPPCO or Petitioner), had committed\n10 violations of the hazardous liquid pipeline safety regulations and assessing civil penalties for\nnine of the violations. This proceeding arose out of a June 28, 2002 incident at Petitioner’s\nTodhunter facility in Middletown, Ohio (Todhunter Accident). The incident involved the release\nof butane vapors during the course of a header piping modification tie-in project that exposed\nseveral workers to toxic butane vapors. One of the workers was overcome by fumes and\nsubsequently died from butane asphyxiation.\nPHMSA initiated an investigation of the Todhunter Accident and subsequently issued a Notice\nof Probable Violation and Proposed Civil Penalty to Petitioner by letter dated April 25, 2005\n(Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that Petitioner\nhad committed violations of 49 C.F.R. Part 195 and assessing a total civil penalty of $350,000.\nPetitioner responded to the Notice by letters dated June 30, 2005, and March 17, 2006\n(collectively, Response) and waived its right to an informal hearing. By merger effective\nOctober 26, 2009, TEPPCO became a wholly owned subsidiary of Enterprise Products Partners,\nLP, the current owner and operator of the pipeline facilities that are the subject of this\nproceeding.1\n1 2009 Annual Report, Enterprise Products Partners, LP (http://www.epplp.com/pdf/epd-ar-2009.pdf ) (last accessed\n9/22/10).\n\n\n\n2\nThe Final Order found Petitioner in violation of all 10 Items alleged in the Notice and assessed a\ntotal civil penalty of $345,000.\n2\nTEPPCO responded to the Final Order, as permitted under\n§ 190.215, by submitting a petition for reconsideration dated April 1, 2009 (Petition).\nPetition, TEPPCO did not challenge the findings of violation in the Final Order but requested\nreconsideration of the penalty amounts assessed for four of the nine violations. These four\nviolations are as follows:\n3 In its\n• (Item 2C) TEPPCO’s violation of 49 C.F.R. § 195.402(a), for failing to follow its own\nwritten procedures providing Emergency Plan training to the three workers involved in\nthe Todhunter Accident. The Final Order assessed a penalty of $60,000 for this Item;\n• (Item 2D-1) TEPPCO’s violation of 49 C.F.R. § 195.402(a), for failing to follow its own\nwritten procedures for utilizing Section 3.2(e) of API Publication 2200, “Repairing\nCrude Oil, LPG and Products Pipelines,” that required the development of a written\nwork plan for conducting repairs. The Final Order assessed a penalty of $60,000 for this\nItem;\n• (Item 2D-2) TEPPCO’s violation of 49 C.F.R. § 195.402(a), for failing to follow its own\nwritten procedures for utilizing Section 6.2(k) of API Publication 2200 for combustible\ngas testing and monitoring at the worksite. The Final Order assessed a penalty of\n$40,000 for this Item; and\n• (Item 3B) TEPPCO’s violation of 49 C.F.R. § 195.403(c), for failing to verify that the\nsupervisor involved in the Todhunter Accident had maintained a thorough knowledge of\nthe company’s applicable operations, maintenance, and emergency procedures. The\nFinal Order assessed a penalty of $60,000 for this Item.\nPetitioner asserts that the penalties cited above are excessive because the Notice only alleged\nviolations occurring on June 28, 2002, the day of the Todhunter Accident, but that PHMSA was\nlimited as of the date of the accident to imposing penalties of not more than $25,000 per day of\nviolation. TEPPCO therefore contends that each of these penalties should be reduced to an\namount not exceeding the $25,000 per-day limit.\n4\n2 In the Final Order, the penalty for Item 2A of the Notice was reduced from the proposed amount of $30,000 to\n$25,000. This was because the Notice had only alleged a single-day violation (i.e., June 28, 2002) and therefore the\npenalty was limited to the $25,000 per-day cap discussed more fully below. This reduced penalty for Item 2A served\nto reduce the total penalty assessed from $350,000 to $345,000.\n3 Section 190.215 provides that a petitioner may request the Associate Administrator to reconsider a final order.\nUnder such review, the Associate Administrator does not consider repetitious information, arguments, or petitions,\nbut may consider additional facts or arguments, provided that the petitioner submits a valid reason why such\ninformation was not presented prior to issuance of the final order. The Associate Administrator may grant or deny,\nin whole or in part, a petition for reconsideration without further proceedings.\n4 Petition at 1. The maximum statutory penalties were raised to $100,000 per day for each day of violation, up to a\nmaximum of $1,000,000 for any related series of violations by the Pipeline Safety Improvement Act of 2002, Pub.\nL. 107-355, § 8(b)(1), 116 Stat. 2992 (December 17, 2002). Petitioner urges PHMSA to reduce the total penalty in\nthis case from $345,000 to $205,000. This is apparently based on the fact that the Final Order stated the penalties\nfor Items 2C/3A, 2D-1, 2D-2 and 3B were for multiple-day violations and calculated at a rate of $20,000 per day for\neach violation. Final Order at 10-11.\n\n\n\n3\nDiscussion\nIn its Petition, TEPPCO makes two related arguments for a reduction in the four penalties.\nFirst, it asserts that the Notice alleged only single-day violations and that any suggestion in the\nFinal Order to convert them into multiple-day or continuing violations “would have constituted\n‘new material allegations’ to which [TEPPCO] would have been entitled to formally respond\nunder [49 C.F.R.] § 190.207(c).” To support its argument, Petitioner points to the Violation\nReport prepared by the PHMSA Central Region, the document that served as the principal\nevidence in the case file and the basis for the Notice and the proposed penalties.\nPetitioner relies largely upon a sentence in Section 23b of the Violation Report, “Analysis of\nProposed Remedy,” where it states: “Fines: Other than the Accident Report, the durations are\none (1) day.”5 Petitioner contends that this statement, along with the failure of the Notice to\nspecifically allege multiple-day violations, precludes PHMSA from finding TEPPCO in violation\nof each of the four Items for more than a single day and from imposing more than a total of\n$25,000 per violation.\nPetitioner asserts that the statement quoted above from the Violation Report shows that, except\nfor Item 1 dealing with TEPPCO’s alleged failure to file a timely Accident Report after the\naccident, the Violation Report and the Notice only encompassed single-day violations. In order\nfor the agency to impose penalties for multiple-day violations in the Final Order, TEPPCO\nasserts that it either had to allege multiple-day violations in the Notice or, under 49 C.F.R.\n§ 190.207(c), provide TEPPCO with fair notice of such “new” allegations and “increased”\npenalties. Section 190.207(c) states:\n(c) The Associate Administrator, OPS may amend a notice of\nprobable violation at any time prior to issuance of a final order under\n§ 190.213. If an amendment includes any new material allegations of\nfact or proposes an increased civil penalty amount or new or additional\nremedial action under § 190.217, the respondent shall have the\nopportunity to respond under § 190.209.\nAccording to Petitioner, because PHMSA never amended the Notice “to allege that these Items\nwere continuing, multiple-day violations prior to issuance of the Final Order, [TEPPCO] was\nnever given an opportunity to respond to any such allegations.”6\nPetitioner is partially correct. First, PHMSA acknowledged in the Final Order that all of the\nproposed penalties at issue in this case were subject to the $25,000 per-day limit in effect at the\ntime of the Todhunter Accident.7 In addition, the agency acknowledges that it is unclear from\n5 Office of Pipeline Safety, Hazardous Liquid Pipeline Safety Violation Report, CPF No. 3-2005-5018 (Violation\nReport), at 13.\n6 Petition at 5 (unnumbered).\n7 Final Order at 9.\n\n\n\n4\nthe record how the proposed penalties in the Violation Report were actually calculated or why\nthe Violation Report contained the statement, insofar as the penalties were concerned, that\nstatement was meant to characterize the duration of the violations themselves or whether it was\nmeant to describe the methodology by which the penalties were calculated.\n“[o]ther than the Accident Report, the durations are one (1) day.”8 It is unclear whether this\nRegardless, Petitioner contends that the four penalties are contrary to law and should be reduced.\nPetitioner is correct that 49 C.F.R. § 190.207(c) requires that if new factual allegations, penalties\nor compliance terms are added after issuance of a Notice of Violation, then it must be amended\nor re-issued. The initial question, however, is whether the quoted statement from the Violation\nReport, in conjunction with the allegations of violation in the Violation Report and Notice,\nconstitute allegations of single-day or multiple-day violations. Petitioner argues that the Final\nOrder, by imposing multiple-day penalties for single-day violations described in the Violation\nReport and Notice, violates the notice provisions of 49 C.F.R. § 190.207(c).\nIn order to evaluate Petitioner’s argument, it is necessary to consider the facts alleged in the\nNotice and the Violation Report for each of the four Items. Each is discussed separately below.\nItem 2C. The Violation Report and Notice alleged that TEPPCO violated 49 C.F.R.\n§ 195.402(a) by failing to follow its own written procedures for providing Emergency Plan\ntraining to the contract workers involved in the Todhunter Accident. The Violation Report\nalleged that TEPPCO’s procedures called for such training to take place as soon as reasonably\npossible after an employee commenced work or was transferred. It is apparent from the facts\nalleged in the Notice that the violation was not limited to a single day and that TEPPCO had\nadequate notice the alleged violation was ongoing from the time the contract employees were\nhired for this project. In addition, both documents proposed a penalty of $60,000 for the\nviolation, an amount no higher than what was ultimately assessed. At no time did PHMSA\nallege any new material allegations of fact or propose any new penalties or corrective actions\nthat would necessitate an amended Notice or an additional opportunity for TEPPCO to respond,\nas required under § 190.207(c). Accordingly, I find that the penalty assessed in the Final Order\nfor Item 2C does not violate 49 C.F.R. § 190.207(c).\nItem 2D-1. The Violation Report and Notice alleged that TEPPCO violated 49 C.F.R.\n§ 195.402(a) by failing to utilize Section 3.2(e) of American Petroleum Institute (API)\nPublication 2200, entitled “Repairing Crude Oil, LPG and Products Pipelines,” as required by\nProcedure M-245 of TEPPCO’s own Operating and Maintenance Procedures. The API standard\nrequires the development of a written work plan for repairs, including proper drain-down\nprocedures and equipment. Petitioner has not disputed the fact that the project was commenced\non June 26, 2002, two days prior to the accident, that the company failed to establish or follow\nthe required procedures from the time the work commenced, and that the noncompliance\ncontinued during the days of June 26, June 27, and June 28 (the day of the incident). The\nViolation Report and Notice are worded in such a way that it is clear the alleged violation was\nnot limited to a single day and that Petitioner’s failure to develop a written work plan continued\nover multiple days of construction. In addition, both documents proposed a penalty of $60,000\n8 Office of Pipeline Safety, Hazardous Liquid Pipeline Safety Violation Report, CPF No. 3-2005-5018 (Violation\nReport), at 13.\n\n\n\n5\nfor the violation, an amount no higher than what was ultimately assessed. At no time did\nPHMSA allege any new material allegations of fact or propose any new penalties or corrective\naction that would necessitate an amended Notice or an additional opportunity for TEPPCO to\nrespond, as required under § 190.207(c). Accordingly, I find that the penalty assessed in the\nFinal Order for Item 2D-1 does not violate 49 C.F.R. § 190.207(c).\n.\nItem 2D-2. The Violation Report and Notice alleged that TEPPCO violated 49 C.F.R.\n§ 195.402(a) by failing to utilize Section 6.2(k) of API Publication 2200, as required by\nProcedure M-245 of TEPPCO’s own Operating and Maintenance Procedures. Section 6.2(k)\nrequires that an excavation and its surrounding area be tested and continuously monitored with\na combustible gas indicator, an oxygen monitor, or both, to determine whether the atmosphere\nis safe in which to work. The Notice and Violation Report both alleged that at the time of the\nTodhunter Accident, neither a combustible gas indicator nor an oxygen monitor was in use at\nthe worksite.\nThe Violation Report and Notice further alleged that on Friday, June 28, 2002, combustible\ngas indicator and oxygen monitor readings were taken at the site, that TEPPCO subsequently\nsuffered a butane release later that day, and that the company failed to follow its procedure\nrequiring continuous gas monitoring. Neither document states or implies that the failure to\nmonitor continuously extended throughout the project or for multiple days. No evidence was\nprovided by OPS to show a continuing violation. While both documents state that readings were\ntaken on June 28,\nOPS considered the violation to be continuing in nature and extending over multiple days.\n9 this is insufficient information to provide Petitioner with adequate notice that\nIn its Petition, TEPPCO argues that the penalty for Item 2D-2 should be reduced to $20,000\nsince the Final Order stated that the proposed penalty of $40,000 was based upon a two-day\nviolation at $20,000 per day.10\nWhile it is possible that the violation did continue for two or\nmore days and that the larger penalty is warranted, I consider it appropriate under the\ncircumstances to leave the Final Order intact on this issue. Accordingly, I find that the penalty\nassessed in the Final Order for Item 2D-2 is contrary to 49 C.F.R. § 190. 207(c) and therefore\nI reduce the penalty to $20,000, the amount assessed in the Final Order for a single-day\nviolation.\nItem 3B. The Violation Report and Notice alleged that TEPPCO violated 49 C.F.R.\n§ 195.403(c) by failing to verify that the supervisor involved in the Todhunter Accident had\nmaintained a thorough knowledge of the applicable operations, maintenance, and emergency\nprocedures established under § 195.402 for which he was responsible. The two documents\nalleged that TEPPCO was unable to produce any records, upon request, to demonstrate that\nthe supervisor had received any training in applicable TEPPCO operations, maintenance and\nemergency procedures. Such training, by its very nature, would continue over an extended\nperiod of time, and not be limited to the day of the accident. In addition, both documents\nproposed a penalty of $60,000 for the violation, an amount no higher than what was ultimately\n9 The Violation Report refers to the date of the readings as “Friday, June 26, 2002,” but the Notice and Exhibit 8 of\nthe Violation Report refer to the date as “Friday, June 28, 2002,” the date of the accident. The Final Order correctly\nstated the date of the accident as being June 28, 2002.\n10 Final Order at 11.\n\n\n\n6\nassessed. At no time did PHMSA allege any new material allegations of fact or propose any\nnew penalties or corrective action that would necessitate an amended Notice or an additional\nopportunity for TEPPCO to respond, as required under § 190.207(c). Accordingly, I find that\nthe penalty assessed in the Final Order for Item 3B does not violate 49 C.F.R. § 190.207(c).\nPetitioner’s second argument in the Petition is that PHMSA’s failure to provide TEPPCO with\nadequate notice of the duration of four of the alleged violations constitutes a “denial of TE’s\nright to due process.”11 Since I have already agreed that the penalty imposed for Item 2D-2\nshould be reduced, there is no need to address the due process argument relating to that Item.\nAs for the other three penalties, I disagree with Petitioner that its due process rights have been\nviolated. Petitioner never cited any legal authority to support its claim that it was deprived of\ndue process and I am unaware of any case law that would mandate such a conclusion. The due\nprocess principles embodied in the Administrative Procedure Act and the Constitution require\nthat persons alleged to have committed violations receive adequate notice of the allegations and\nof the potential penalties that may be imposed against them, in order that they have an adequate\nopportunity to defend themselves.\nNotice both set forth the basic facts constituting the three alleged violations and that they were\ncontinuing in nature.\n12 In this case, as noted above, the Violation Report and\nFurthermore, both documents stated that the proposed penalty for Item 2C was $60,000, that\nthe proposed penalty for Item 2D-1 was $60,000, and that the proposed penalty for Item 3B\nwas $60,000. Under due process and notions of fundamental fairness, PHMSA could not have\nproperly imposed penalties higher than the amounts proposed for each Item in the Notice without\nre-issuing or amending the Notice and giving the operator a full opportunity to prepare an\nadequate defense against the new charges. However, in this case, Petitioner had full and\nadequate notice of the substantive violations and the maximum penalties for which it could\npotentially be held liable and had ample opportunity to defend itself. The company filed and\nlater withdrew a request for an informal hearing, at which time it could have more fully\npresented its objections to the proposed penalties. In addition, the petition for reconsideration\nprocess, of which TEPPCO has availed itself here, provides Petitioner with still another\nopportunity to present evidence and legal argument showing that the violations were limited\nto the day of the Todhunter Accident and were not continuing in nature. Petitioner, however,\nhas failed to present any evidence showing that it did not, in fact, commit ongoing violations.\nAccordingly, I find that Petitioner had fair notice of both the alleged violations and the proposed\npenalty amounts and that it has not suffered a violation of its right of due process.\n11 Petition at page 5.\n12 E.g., In the Matter of Enbridge Energy Company, Inc., Decision on Petition for Reconsideration, C.P.F. No. 4-\n2005-8004 (Oct. 2, 2009) (available at www.phmsa.dot.gov/pipeline/enforcement).\n\n\n\n7\nConclusion\nIn conclusion, I have reconsidered the entire record in this proceeding in light of TEPPCO’s\nPetition. I find that the Violation Report and Notice alleged facts that constituted continuing\nviolations with respect to Items 2C, 2D-1, and 3B and that Petitioner has been provided with fair\nand adequate notice of the proposed penalty levels and the basis for those levels, in accordance\nwith both the administrative procedures in 49 C.F.R. Part 190 and principles of due process.\nAs for Item 2D-2. I find that TEPPCO violated 49 C.F.R. § 195.402(a), as alleged in the Notice,\non June 28, 2002, and that the maximum potential penalty for such single-day violation was\n$25,000. I hereby reduce the assessed penalty for this Item to $20,000, the amount attributed to\na single-day violation for this Item in the Final Order. Since the assessed penalty of $40,000 has\nbeen already paid by Petitioner, I order that the difference of $20,000 be refunded to Petitioner.\nAll other provisions of the Final Order, including the findings of violation and the total reduced\npenalty of $325,000, which amount has already been paid, will remain in effect as set forth\ntherein. This Decision on the Petition for Reconsideration is the final administrative action in\nthis proceeding.\n___________________________________ __________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n320055018_FnalOrder _02272009_text.pdf\n\nMr. Leonard Mallett\nVice President of Operations\nTE Products Pipeline Company, LLC\nP.O. Box 2521\nHouston, TX 77252-6500\nRe: CPF No. 3-2005-5018\nDear Mr. Mallett:\nEnclosed is the Final Order issued in the above-referenced case. It makes findings of violation\nand assesses a civil penalty of $345,000. The penalty payment terms are set forth in the Final\nOrder. This enforcement action closes automatically upon payment. Your receipt of the Final\nOrder constitutes service of that document 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: Ivan Huntoon, Director, Central Region, PHMSA\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\nIn the Matter of )\nTE Products Pipeline Company, LLC ) CPF No. 3-2005-5018\n(f/n/a Texas Eastern Petroleum )\nProducts Company), )\n)\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nOn June 29, 2002, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), initiated an\ninvestigation of a June 28, 2002, accident at the hazardous liquid pipeline facility of TE Products\nPipeline Company, LLC (TEPPCO or Respondent) known as the Todhunter facility, located at\n3590 Yankee Road, Middletown, Ohio. TEPPCO is the general partner of TEPPCO Partners, L.P.,\nwhich owns and operates one of the largest common carrier petroleum products pipelines in the\nUnited States. The accident involved a release of butane vapors that occurred during the course of\na header piping modification tie-in project, during which several TEPPCO contract workers were\nexposed to the toxic butane vapors. One of the workers, Mr. Brandon Jones, was overcome by\nfumes and subsequently died from butane asphyxiation.\nAs a result of the investigation, the Director, Central Region, PHMSA, issued to Respondent, by\nletter dated April 25, 2005, a Notice of Probable Violation and Proposed Civil Penalty (Notice). In\naccordance with 49 C.F.R. § 190.207, the Notice proposed finding that Respondent had committed\nvarious violations of 49 C.F.R. Part 195 and assessing a total civil penalty of $350,000.\nRespondent initially responded to the Notice by letter dated June 30, 2005 (Response).\nRespondent contested some of the allegations, presented information and explanations in\nmitigation of the proposed penalty, and requested an oral hearing. By letter dated March 17, 2006,\nRespondent submitted additional responsive materials and withdrew its request for a hearing\n(Supplemental Response).\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. § 195.54(a), which states:\n\n\n\n2\n§ 195.54 Accident reports.\n(a) Each operator that experiences an accident that is required\nto be reported under § 195.50 shall as soon as practicable, but not later\nthan 30 days after discovery of the accident, prepare and file an\naccident report on DOT Form 7000–1, or a facsimile.\nSpecifically, the Notice alleged that Respondent failed to file a DOT Form 7000–1 report\nregarding the June 28, 2002, accident at TEPPCO’s Todhunter facility (Todhunter Accident)\nwithin 30 days of the incident. In its Response, Respondent acknowledged that it had failed to\nfile the report within 30 days of the accident. Accordingly, after considering all of the evidence,\nI find that Respondent violated 49 C.F.R. § 195.54 by failing to file a DOT Form 7000-1 report\nwithin 30 days of the Todhunter Accident.\nItem 2A: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(a), which states:\n§ 195.402 Procedural manual for operations, maintenance, and\nemergencies.\n(a) General. Each operator shall prepare and follow for each\npipeline system a manual of written procedures for conducting normal\noperations and maintenance activities and handling abnormal operations\nand emergencies. This manual shall be reviewed at intervals not\nexceeding 15 months, but at least once each calendar year, and\nappropriate changes made as necessary to insure that the manual is\neffective. This manual shall be prepared before initial operations of a\npipeline system commence, and appropriate parts shall be kept at\nlocations where operations and maintenance activities are conducted.\nSpecifically, Item 2A alleged that Respondent failed to follow its own written policy for\ndocumenting the use of a lockout/tag out procedure by completing the relevant section of the\nTEPPCO Safe Work Permit form.\n1\nOn June 26, 2002, two days before the accident, Respondent\nclosed certain valves in connection with the piping modification project, but without completing\nthe relevant sections of the form. In its Response, TEPPCO acknowledged that it failed to\ndocument the use of the lockout/tag out procedure, as described in the Notice. Accordingly, after\nconsidering all of the evidence, I find that Respondent violated 49 C.F.R. § 195.402(a) by failing\nto follow its own written policy for documenting the use of a lockout/tag out procedure by\ncompleting the relevant section of the TEPPCO Safe Work Permit form.\n1 The term “Respondent,” as used in this Final Order, includes Respondent’s contractors. The workers who were\nperforming the header installation were contract workers subject to the same training and qualification requirements\nas TEPPCO’s permanent employees. 49 C.F.R. § 195.10 states:\n§ 195.10 Responsibility of operator for compliance with this part.\nAn operator may make arrangements with another person for the performance of any\naction required by this part. However, the operator is not thereby relieved from the\nresponsibility for compliance with any requirements of this part.\n\n\n\n3\nItem 2B: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(a), as quoted above,\nby failing to follow its own written procedures for implementing the company’s emergency plan\nwhen the butane release occurred in the Todhunter Accident. Specifically, the Notice alleged\nthat on June 28, 2002, two of the contractor’s workers, while working in an excavation trench,\nwere in the process of removing bolts that retained a “blind”2\nbetween two flanges when gas\nbegan to leak out. The men exited the trench and notified their supervisor. The supervisor\ninstructed them to let the gas leak until it stopped and then to go back and remove the blind. The\nworkers subsequently re-entered the trench and proceeded to remove the blind, causing the leak\nto intensify and form a butane vapor cloud. The workers continued working within the cloud\nuntil they began to suffer the effects of butane asphyxiation.\nThe Notice further alleged that the supervisor then returned to the excavation site and ordered the\nworkers from the hole. The supervisor himself then entered the vapor cloud without appropriate\nprotective gear and attempted to reinstall and tighten the bolts to stop the leak. One of the\nworkers then re-entered the vapor cloud to assist the supervisor, who was suffering the effects of\nbutane asphyxiation. Shortly afterward, the worker who re-entered the butane cloud collapsed\nand died. The coroner’s report indicated that the worker, Mr. Jones, died of acute butane\nasphyxiation.\nThe Notice alleged that under its Emergency Procedures, Respondent was required to take the\nfollowing actions upon the release of a hazardous product or when an imminent danger to\nemployees on duty existed:\n• The notification of all persons who “might be in imminent danger from the escaping\nproduct” that an emergency existed;\n• The immediate reporting of the emergency, in accordance with a specific sequence;\n• A prohibition on personnel entering the affected area until all escaping product was\nunder control; and\n• The proper repair of facilities following the emergency. Such repairs must be\nconducted “utilizing the necessary equipment, trained personnel aware of and\nfamiliar with the hazards to public and personnel safety, and appropriate repair\nmaterials.\n”3\nIn its Response, TEPPCO presented three arguments why the provisions of its Emergency Plan\ncited in the Notice were not applicable to the Todhunter Accident. First, TEPPCO argued that\nthe initial release of butane did not constitute an “emergency” as long as the workers were\nattempting to stop the leak. Only after the supervisor had unsuccessfully attempted to control the\n2 According to TEPPCO, a “blind” or “skillet” is “a safety device used as an extra precaution in pipelines that have\nbeen shut down. It is designed to ensure that gas is contained in the pipeline in case the flow of gas has not been\nproperly terminated.” Response, at 1-2.\n3 TEPPCO Pipeline Emergency Procedures, Page 7 item 2(f), Page 8 item (i), and Page 17 item IV.\n\n\n\n4\nleak himself did he identify the situation as an “emergency,” “assess and control the release site,”\nnotify the proper parties, and attempt to prevent possible further injury, damage, or the spread of\npetroleum liquids. Response, at 4.\nSecond, TEPPCO contended that its attempts to repair the leak did not constitute “a repair\nfollowing an emergency,\n” as provided in its Emergency Plan, because the workers’ actions “in\nattempting to re-secure the skillet were undertaken prior to and in the midst of an emergency.”\nResponse, at 4. Third, it argued that the prohibition on personnel entering “the affected area”\nwas not applicable since the three contract workers were already in the area.\nI find all of these arguments unpersuasive. As for TEPPCO’s argument that the initial release of\nbutane did not constitute an “emergency” under its Emergency Plan, the facts are that the release\nof butane quickly formed a visible vapor cloud that was extremely hazardous and caused\ndizziness and disorientation in the two workers and their supervisor, none of whom had self-\ncontained breathing apparatus. The Emergency Plan clearly defines an “emergency” as a leak\nand/or hazard to a worker.\n4\nThis occurred as soon as the butane escaped and formed a vapor\ncloud.\nAs for its argument that the Emergency Plan did not apply to a repair being undertaken “prior to\nor in the midst of” an emergency, Respondent’s Pipeline Emergency Procedures required that all\nrepairs be conducted with appropriate equipment and by trained personnel who were aware of\nthe hazards involved. Both logic and Respondent’s own written procedures dictated that all\nrepairs be undertaken in accordance with the Emergency Plan after an emergency had\ncommenced. In this case, as discussed above, an emergency existed as soon as the butane vapor\ncloud formed. Therefore, the Emergency Plan applied to the repairs undertaken subsequent to the\nrelease, especially those undertaken in the “midst” of such an emergency.\nAs for its argument that the Emergency Plan’s prohibition on workers entering a hazardous area\ndid not apply because the workers were already there, such a contention is specious at best. If a\nbutane vapor cloud creates an area too dangerous for persons to enter, then the area is obviously\ntoo dangerous for persons to remain in it.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n§ 195.402(a) by failing to follow its own procedures for implementing the Emergency Plan when\nthe hazardous leak occurred.\nItem 2C: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(a), as quoted above,\nby failing to follow its own written procedures for providing Emergency Plan training to the\nworkers involved in the Todhunter Accident. On page 5, the Emergency Plan requires all\noperating and maintenance employees to receive training to acquaint them with the Emergency\nPlan.\nIn its Response, TEPPCO acknowledged that it “could not provide documentation that this\n4 TEPPCO Emergency Plan, Page 1.\n\n\n\n5\ntraining was ongoing.” In its Supplemental Response, TEPPCO argued that its Emergency Plan\ndid not “expressly require any particular documentation of training…\n” nor did § 195.402(a)\nrequire it. Respondent further argued that as employees of a company that specialized in\nproviding repair, maintenance, and construction services to liquid pipeline companies, the three\nworkers involved must have had some training and contended that the allegation in the Notice\nwas based on an assumption by PHMSA that daily briefings given to these workers did not\nconstitute an appropriate mode of training. Finally, TEPPCO asserted that PHMSA failed to\nproduce any direct evidence that the contract workers hadn’t received any training and therefore\nthat the agency failed to meet its burden of proof on this item.\nWe find these arguments unpersuasive. While TEPPCO had an established training program for\nits own employees that included training on the Emergency Plan, it is clear from the record that\nthe three workers involved in this accident were not given such training. Moreover, TEPPCO’s\nown procedures did not authorize the use of daily briefings as a substitute for actual worker\ntraining. Second, Respondent’s Emergency Plan states, “A record shall be maintained of the\ninitial training of all appropriate operating and maintenance personnel to make them acquainted\nwith the emergency procedures” (Emphasis added). Because the contract employees were\ninvolved in performing work on TEPPCO’s hazardous liquid pipeline, they were clearly\n“appropriate” personnel who should have received training on how to respond to emergencies\nsuch as the release of butane vapors in the Todhunter Accident. Finally, with respect to the\n“burden of proof” argument, PHMSA did not allege that the three workers had no training at all,\nonly that the established mode of emergency training that Respondent provided to its other\npersonnel was not given to these contract personnel.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n§ 195.402(a) by failing to follow its own procedures for providing Emergency Plan training to\nthe three workers involved in the Todhunter Accident.\nItem 2D-1: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(a), as quoted\nabove, by failing to utilize Section 3.2(e) of API Publication 2200, entitled “Repairing Crude Oil,\nLPG and Products Pipelines,\n” as required by Procedure M-245 of TEPPCO’s own Operating\nand Maintenance Procedures. Section 3.2(e) requires the development of a written work plan for\nrepairs, including proper drain down procedures and equipment, where necessary.\nIn its Response, TEPPCO contended that the piping modification project was not a “repair” and\ntherefore that the company was not responsible for following API 2200. In its Supplemental\nResponse, TEPPCO also argued that there was “no mention of API Publication 2200 or 2201 in\nProcedure M-245” and that, as a result, the API publication was inapplicable.\nWe find these arguments unconvincing. In the context of Respondent’s own operating\nprocedures, a project requiring modifications or revisions to a working pipeline, including a tie-\nin and header, would invoke the repair section of Respondent’s manual (i.e., there is no\nconstruction section). Section 3.1 of API 2200 contains a general statement of its applicability to\n“piping revisions, replacements, or repairs….” The term “repair” is sometimes used as\n\n\n\n6\nshorthand when referring to the modification and replacement of piping or piping revisions such\nas a manifold installation because they all involve taking steps such as area assessment,\ndevelopment of work plans, consideration of flow and pressure conditions, shut down and drain\ndown (if required), excavation, welding materials and practices, etc.\nIn addition, Respondent’s statement that there was no mention of API 2200 or 2201 in Procedure\nM-245 is incorrect. The relevant version of Procedure M-245 is designated at the top of each\npage as “Revision Number 1, Revised date January 31, 2002.” Respondent may have\nsubsequently revised Procedure M-245 to remove the API references but the version that was in\neffect at the time of the accident specifically included references to API 2200 and 2201. The\nevidence shows that TEPPCO failed to develop a written work plan for the installation of the\nnew header at the Todhunter facility, as required under Section 3.2(e) of API Publication 2200.\nAccordingly, after considering all of the evidence, I find that Responde","truncated":true,"body_characters":62252}