{"operation":"document","citation":"CPF 320060004","title":"AMERIGAS PROPANE LP — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2006-07-06","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.465(a), 192.465(d), 192.469, 192.491(c), 192.605(a), 192.605(b)(8), 192.707(d)(2), 192.739, 192.739(a), 192.743(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320060004.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320060004.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320060004","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320060004","body":"Notice of Probable Violation involving AMERIGAS PROPANE LP. PHMSA's enforcement data identifies the cited regulations as 192,  192.465(a),  192.465(d),  192.469,  192.491(c),  192.605(a),  192.605(b)(8),  192.707(d)(2),  192.739,  192.739(a),  192.743(a). The case was opened on 2006-07-06 and is reported as closed as of 2011-04-28. Proposed civil penalty: $105,600. Assessed civil penalty: $105,600. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320060004_Closure Letter_04282011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320060004/320060004_Closure%20Letter_04282011.pdf\n\n320060004_Closure Letter_04282011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320060004/320060004_Closure%20Letter_04282011_text.pdf\n\n320060004_FinalOrder_04152009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320060004/320060004_FinalOrder_04152009.pdf\n\n320060004_FinalOrder_04152009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320060004/320060004_FinalOrder_04152009_text.pdf\n\n320060004_Closure Letter_04282011_text.pdf\n\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nApril 28, 2011\nMr. John S. Iannarelli\nVice President – Field Operations - North\nAmeriGas Propane, Inc.\n460 North Gulph Road\nKing of Prussia, PA 19406\nRe: CPF No. 3-2006-0004\nDear Mr. Iannarelli:\nOn April 15, 2009, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\nissued to Amerigas Propane, Inc a Final Order for CPF 3-2006-0004. The Order included a\nCompliance Order, Civil Penalty, and the requirement to take corrective actions on your\npropane distribution system operated out of Flint Hills, MO. On November 22, 2010, we\nreceived correspondence from Mr. Ron Rogers detailing what was done to comply with the\nFinal Order. Based on that response with the accompanying documentation, as well as some\nfollow-up documentation provided by your personnel, and confirmation of payment of the\ncivil penalty, it has been determined that you have complied with the terms of this Order.\nAccordingly, this case is now closed and no further action is contemplated with respect to the\nmatters involved in this case. Thank you for your cooperation in this matter.\nSincerely,\nDavid Barrett\nDirector, Central Region\nPipeline and Hazardous Materials Safety Administration\n\n320060004_FinalOrder_04152009_text.pdf\n\nAPR 15 2009\nMr. Eugene V. N. Bissell\nChief Executive Officer and President\nAmeriGas Propane, L.P.\n460 North Gulph Road\nKing of Prussia, PA 19406\nRe: CPF No. 3-2006-0004\nDear Mr. Bissell:\nEnclosed is the Final Order issued in the above-referenced case. It makes findings of violation,\nassesses a civil penalty of $105,600, and specifies actions that need to be taken by AmeriGas\nPropane, L.P., to comply with the pipeline safety regulations. The penalty payment terms are set\nforth in the Final Order. When the civil penalty has been paid and the terms of the compliance\norder completed, as determined by the Director, Central Region, this enforcement action will be\nclosed. Your receipt of the Final Order constitutes service of that document under 49 C.F.R.\n§ 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\nJean S. Konowalczyk, Esq., AmeriGas Propane\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED [7005 1160 0001 0047 7032]\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)\nAmeriGas Propane, L.P., ) CPF No. 3-2006-0004\n)\nRespondent. )\n______________________________)\nFINAL ORDER\nOn August 8-12, 2005, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),\nconducted an on-site pipeline safety inspection of the facilities and records of AmeriGas\nPropane, L.P. (Respondent), in Flint Hill, Missouri. As a result of the inspection, the Director,\nCentral Region, OPS (Director), issued to Respondent, by letter dated July 6, 2006, a Notice of\nProbable Violation, Proposed Civil Penalty, and Proposed Compliance Order (Notice).1 In\naccordance with 49 C.F.R. § 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 $105,6002\nfor the alleged violations. The Notice also proposed ordering Respondent to take certain\nmeasures to correct the alleged violations. Finally, the Notice proposed finding that Respondent\nhad committed certain other probable violations of 49 C.F.R. Part 192 and warning Respondent\nto take appropriate corrective action to address them or be subject to future enforcement action.\nRespondent responded to the Notice by letter dated July 26, 2006, and requested a hearing,\nspecifically to discuss the proposed civil penalty amount (Response). By letter dated April 3,\n2007, Respondent clarified and expanded the issues it sought to discuss at the hearing (Issues\nStatement). A hearing via telephone conference was held on April 4, 2007. After the hearing,\nRespondent provided additional information by letter dated May 3, 2007 (Closing).\nJURISDICTION\nBefore reaching the Notice Items, it is appropriate first to address Respondent’s jurisdictional\narguments. The Part 192 gas pipeline safety standards apply to pipeline facilities and the\n1 The Notice was originally issued with the CPF No. 3-2006-1014. By letter dated July 20, 2006, OPS notified\nRespondent that the CPF Number was changed to 3-2006-0004.\n2 The Notice incorrectly proposed a total civil penalty of $106,400 for the violations. When the individual penalties\nset out on page 5 of the Notice are added, the correct total is $105,600.\n\n\n\n2\ntransportation of gas, including pipeline systems that transport petroleum gas or petroleum\npropane gas distribution systems in the Flint Hill, Missouri area: Green Acres, Daniel Homesites\n(Daniel), and Pine Tree Mobil Manor (Pine Tree). Each of these systems is fed by propane\nstorage tanks that are periodically refilled by tank trucks. Propane flows from the storage tanks\nthrough a combination of buried mains and service lines to individual customers. Green Acres\nhad approximately 77 customers at the time of the 2005 inspection and is the largest of the three\ngas/air mixtures to ten (10) or more customers.3 The Notice addressed three of Respondent’s\nsystems. Respondent has not raised any jurisdictional issues regarding Green Acres.\nSubsequent to the 2005 OPS inspection, AmeriGas argued that the Daniel and Pine Tree systems\nare not subject to Part 192 because these systems each had fewer than ten customers at the time\nof the inspection and during the 2002-2005 time period covered by the Notice. On that basis,\nRespondent argues, the penalties proposed for Items 1(a), 5(b), 7(a), 7(b) and 8 should be\nreduced or eliminated, but has provided differing accounts as to whether and when the Daniel\nand Pine Tree systems became non-jurisdictional to PHMSA. For the reasons explained below, I\nfind that these two systems were subject to PHMSA jurisdiction during the relevant time periods.\nDuring the 2005 inspection, AmeriGas personnel indicated to the OPS inspector that the Daniel\nand Pine Tree systems had 13 and 11 customers, respectively. Afterwards, in a September 15,\n2005 letter sent by email, AmeriGas stated that the Daniel system had 12 customers and that the\nPine Tree system had been removed from service but did not say when that occurred. An\nattachment to the letter, entitled “Action Plan for OPS Systems in Missouri,” stated that the Pine\nTree system would be “abandoned” by September 1, 2005. The attachment is inconclusive on\nthe jurisdictional status of Pine Tree, either prior to or at the time of the inspection.\nLater, in its April 3, 2007 Issues Statement, AmeriGas claimed that the Pine Tree and Daniel\nsystems had become non-jurisdictional in 2001 and early 2003, respectively, but provided no\nsupporting evidence. During the hearing, the Presiding Official questioned AmeriGas about the\njurisdictional status of the systems. Respondent expressed uncertainty about what systems were\nnon-jurisdictional and when they may have become so. The Presiding Official provided\nRespondent with an opportunity to clarify its position and provide supporting evidence in its\nClosing.\nIn its Closing, Respondent provided yet another account of when the two systems became non-\njurisdictional. The company contended that the Pine Tree and Daniel systems became non-\njurisdictional in February 2005 and on July 7, 2004, respectively. Respondent provided\ndocuments in support of its position but they do not support Respondent’s claim that the Daniel\nand Pine Tree systems were non-jurisdictional at the time of the inspection and during the 2002-\n2005 time period covered by the Notice.\nRespondent provided two documents relating to the Daniel system. The first is a faded service\norder, dated July 7, 2004, that appears to relate to work performed pursuant to OPS\nrequirements. The document includes a handwritten note that states “8 meter[s] on system.”\nThis document, however, is inconclusive because it merely states that there are eight meters but\nalso suggests that AmeriGas nonetheless believed the system to be jurisdictional. Moreover,\n3 49 C.F.R. § 192.1(a)(5)(i).\n\n\n\n3\nRespondent’s September 15, 2005 post-inspection letter to OPS clearly stated that the Daniel\nsystem had 13 customers. The second document is a list of meters, dated April 23, 2007, but\nthis list is irrelevant because it post-dates the inspection by almost two years. Based upon a\nreview of these two documents, the company’s own statements during the inspection, and its\nSeptember 15, 2005 letter to OPS, I find that the evidence shows that the Daniel system was\nsubject to Part 192 at the time of the inspection and during the 2002-2005 time period at issue\nin the Notice.\nRegarding the Pine Tree system, Respondent’s personnel stated during the 2005 inspection that\nthe Pine Tree system had 11 active customers. After the hearing, Respondent provided faded\nservice orders with handwritten notes that seemed to suggest that Pine Tree system meters were\nremoved on July 13, 2005. These documents are inconclusive and inconsistent with\nRespondent’s statements made during the inspection. Even if, arguendo, the Pine Tree system\nceased being jurisdictional on July 13, 2005, it is clear that the system was jurisdictional during\nthe 2002-2005 time period at issue in the Notice. Accordingly, on the basis of Respondent’s\nstatements made during the inspection and the inconclusive nature of the evidence provided after\nthe hearing, I find that the Pine Tree system was subject to Part 192 jurisdiction at the time of the\ninspection and during the 2002-2005 time period at issue in the Notice.\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 192, as follows:\nItem 1a: The Notice alleged that Respondent violated 49 C.F.R. § 192.465, which states:\n§ 192.465 External corrosion control: Monitoring.\n(a) Each pipeline that is under cathodic protection must be tested at least once\neach calendar year, but with intervals not exceeding 15 months, to determine\nwhether the cathodic protection meets the requirements of §192.463…\n(d) Each operator shall take prompt remedial action to correct any\ndeficiencies indicated by the monitoring. . . .\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.465(a) by failing to conduct cathodic\nprotection (CP) surveys of the Daniel system for the years 2002 and 2004, and the Green Acres system\nin 2002. The Notice also noted that follow-up field evaluations of both systems at valve locations\nproduced marginal CP readings. Aside from the jurisdictional issues already discussed, Respondent\nsubmitted no evidence regarding the Daniel system. Regarding the Green Acres system, at the hearing\nRespondent indicated it was not contesting the allegation that it failed to conduct a CP survey of the\nsystem in 2002. Therefore, I find that Respondent violated § 192.465(a) by failing to conduct annual\nCP surveys of the Daniel system in 2002 and 2004, and the Green Acres system in 2002.\nItem 1b: The Notice alleged that Respondent violated 49 C.F.R. § 192.465(d), as quoted above,\nby failing to take prompt remedial action to correct inadequate CP on the Green Acres system.\nSpecifically, the Notice alleged that Respondent failed to correct inadequate CP at the Highway\nC and Green Acres Road test location after inspections in 2003 and 2005 produced low CP\nreadings of -0.740v and -0.720v, respectively. These readings fell short of the minimum -0.850v\n\n\n\n4\nCP levels required under the regulations.4 In its Closing, AmeriGas argued that the 2003 and\n2005 records showed that the readings for the “Highway C” test station were higher than those\nalleged in the Notice and within an acceptable range. However, it appears that Respondent was\nreferring to a different Highway C test station other than the one at the intersection with Green\nAcres Road. The records provided by Respondent do not show that the readings at the specific\ntest station cited in the Notice were acceptable and in fact confirm the low readings.5\nAccordingly, I find that Respondent violated 49 C.F.R. § 192.465(d) by failing to take prompt\nremedial action to correct deficiencies indicated by the 2003 and 2005 CP surveys at the\nHighway C and Green Acres Road test station.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 192.469, which states:\n§ 192.469 External corrosion control: Test stations.\nEach pipeline under cathodic protection required by this subpart must have\nsufficient test stations or other contact points for electrical measurement to\ndetermine the adequacy of cathodic protection.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.469 by failing to provide adequate\ntest stations or other contact points on the Green Acres system for electrical measurement to\ndetermine the adequacy of CP. Specifically, the Notice alleged that during the inspection, OPS\nonly observed three CP test stations on the system. The Green Acres system is the largest of the\nthree systems at issue in the Notice, serving approximately 77 meters. The Notice also alleged\nthat OPS had not been able to obtain any CP test station readings on the Daniel system. OPS\ntherefore alleged that there were not enough test stations to adequately monitor either of these\nsystems. Test stations only provide an indication of the adequacy of CP in the vicinity of the\nstation. Unless test stations are located throughout a pipeline system, an operator cannot\ndetermine whether all parts of its system are adequately protected.\nIn its Closing, Respondent did not contest the allegation that it had inadequate CP test stations on\nthe Green Acres System and explained that since the date of the inspection, it had added several\ntest stations. Regarding the Daniel system, aside from the jurisdictional arguments already\ndiscussed, Respondent submitted no evidence to show that it had sufficient test stations.\nAccordingly, I find that Respondent violated 49 C.F.R. § 192.469 by failing to provide an\nadequate number of test stations or other contact points for electrical measurement on the Green\nAcres and Daniel systems to determine the adequacy of CP.\nItem 5a: The Notice alleged that Respondent violated 49 C.F.R. § 192.605, which states:\n§ 192.605 Procedural manual for operations, maintenance, and\nemergencies.\n4 Appendix D to Part 192 – Criteria for Cathodic Protection and Determination of Measurements.\n5 Closing, Ex. 2. Respondent’s records for 2003 and 2005 confirm low CP readings for the Highway C and Green\nAcres Road test station.\n\n\n\n5\n(a) Each operator shall prepare and follow for each pipeline, a manual of\nwritten procedures for conducting operations and maintenance activities and\nfor emergency response…\nThe Notice further alleged that Respondent violated 49 C.F.R. § 192.615(c), which states:\n§ 192.615 Emergency plans.\n(a)…\n(c) Each operator shall establish and maintain liaison with appropriate fire,\npolice, and other public officials to:\n(1) Learn the responsibility and resources of each government\norganization that may respond to a gas pipeline emergency;\n(2) Acquaint the officials with the operator’s ability in responding to a gas\npipeline emergency;\n(3) Identify the types of gas pipeline emergencies of which the operator\nnotifies the officials; and\n(4) Plan how the operator and officials can engage in mutual assistance to\nminimize hazards to life or property.\nThe Notice alleged that Respondent violated § 192.605(a) by failing to follow its manual of\nwritten procedures for emergency plans. Respondent is required to develop emergency plan\nprocedures in accordance with § 192.615 and to include such procedures in the Operations and\nRespondent had failed to establish a liaison with local fire, police and public officials. The\nNotice alleged that Respondent could provide no documentation that it had conducted such\nMaintenance (O&M) manual required by § 192.605(a).6 Specifically, the Notice alleged that\nliaison with regard to any of the three systems for the years 2002-2004.\nRespondent did not contest this allegation. Accordingly, I find that Respondent violated 49\nC.F.R. § 192.605(a) by failing to follow its manual of written procedures for emergency plans.\nItem 5b: The Notice alleged that Respondent violated 49 C.F.R. § 192.605(a), as quoted above,\nby failing to follow its own procedures for conducting monthly tests to ensure that the gas in its\nsystem contained the proper concentration of odorant. The methodology in Respondent’s\nprocedure for confirming odorization is also set forth in § 192.625(f), which states:\n§ 192.625 Odorization of gas.\n(a)…\n(f) To assure the proper concentration of odorant in accordance with this\nsection, each operator must conduct periodic sampling of combustible gases\nusing an instrument capable of determining the percentage of gas in air at which\nthe odor becomes readily detectable. Operators of master meter systems may\ncomply with this requirement by-\n(1) Receiving written verification from their gas source that the gas has the\nproper concentration of odorant; and\n(2) Conducting periodic “sniff” tests at the extremities of the system to\nconfirm that the gas contains odorant.\n6 49 C.F.R. § 192.605(e).\n\n\n\n6\nSpecifically, the Notice alleged that AmeriGas violated § 192.605(a) by failing to follow its own\nprocedures for conducting monthly “sniff” tests on each of its systems, as follows:\n• Pine Tree: Failed to conduct tests for five months in 2002\n• Daniel: Failed to conduct tests for nine months in 2003 and one\nmonth in 2004\n• Green Acres: Failed to conduct tests for three months in 2002 and one\nmonth in 2003.\nIn its Closing, AmeriGas admitted that it did not follow its own O&M procedures for ensuring\nthat its propane contained the proper concentration of odorant. Respondent’s procedures\nrequired that AmeriGas personnel verify the presence of odorant by two methods: (1) when gas\nis delivered to the storage tank or service is performed on the system; and (2) on a monthly basis\nat several test points along the pipeline. Respondent’s procedures specifically stated that the\nverification of odorant at delivery “does not take away the responsibility of the District to verify\nthe presence of odorant each month.”7\nAlthough Respondent conceded that it failed to follow its own odorant procedures, it contested\nthe allegation on two grounds. First, in its Issues Statement and Closing, Respondent argued that\n“PHMSA has not provided any citation to the regulation that it alleges requires that the\noperator’s procedures be followed even if the procedure is not required under the Pipeline Safety\n“each operator shall prepare and follow for each pipeline, a manual of written procedures for\nconducting operations and maintenance activities and emergency response.” [Emphasis added].\nWith regard to what procedures must be followed, the regulation draws no distinction among\nRegulations.”8 This is incorrect. Item 5 of the Notice cited § 192.605(a), which provides that\ncomponents of a procedural manual specifically required by Part 192, or other procedures an\noperator has included in its manual. Respondent must follow all written procedures contained in\nits manual for conducting operations and maintenance activities and for emergency response.\nRespondent further argued that the requirements of § 192.625(f) conflict with the National Fire\nProtection Association 58: Liquefied Petroleum Gas Code (NFPA 58) and that § 192.11(c)\nprovides that, in the event of a conflict with NFPA 58, the latter prevails.9 irrelevant since Respondent included two methods of odorization verification in its O&M\nmanual, and admittedly failed to follow them. The company cannot violate its own procedures\nand then claim that they conflict with NFPA 58.\nI find this argument\nFurthermore, I see no conflict between the requirements of NFPA 58 and § 192.625(f). Section\n4.2.3 of NFPA 58 requires operators to test for the presence of odorant by sniff-testing when the\ngas is delivered to the bulk plant. Section 192.625(f)(1) is consistent with this requirement,\ninsofar as it permits written verification from the gas delivery source (such as a documented\n7 OPS Violation Report, attachments for Item 5b, AmeriGas Odorization Procedures, § 5.20. OPS collected\nRespondent’s procedures at the time of the inspection.\n8 Closing at 3.\n9 49 C.F.R. § 192.11(c) states: “In the event of a conflict between this [Part 192] and ANSI/NFPA 58 and 59,\nANSI/NFPA 58 and 59 prevail.”\n\n\n\n7\nsniff-test by the driver delivering the gas to the bulk plant) that odorant has been added. The fact\nthat § 192.625(f)(2) also permits an operator to meet the testing requirement by conducting stiff\ntests at the extremities of the system does not place the regulation in conflict with NFPA 58; the\nregulation simply permits an additional means of achieving compliance. The possibility of\nconflict would only arise if it were impossible or impracticable to comply with both.\nIn its Closing, Respondent also cited a training manual for Liquefied Petroleum (LP) gas systems\npage of the manual “clearly demonstrates that NFPA 58, rather than Part 192 applies to propane\nodorization testing.” This argument is also irrelevant to the allegation of violation. Respondent\nthat is shown on the PHMSA website.10 Respondent argues, without elaboration, that the cited\nchose to include two methods of odorization verification in its O&M manual and admittedly\nfailed to follow them. The mere reference to NFPA 58 in a training manual does not prove that\nthe requirements of Part 192 do not also apply.\nAccordingly, I find that Respondent violated 49 C.F.R. § 192.605(a), by failing to follow its own\nprocedures for conducting monthly sniff tests for the three systems during the time periods\ndescribed above, to ensure the proper concentration of odorant.\nItem 7a: The Notice alleged that Respondent violated 49 C.F.R. § 192.739, which states:\n§ 192.739 Pressure limiting and regulating stations: Inspection\nand testing.\n(a) Each pressure limiting station, relief device (except rupture discs), and\npressure regulating station and its equipment must be subjected at intervals not\nexceeding 15 months, but at least once each calendar year, to inspections and\ntests to determine that it is-\n(1) In good mechanical condition;\n(2) Adequate from the standpoint of capacity and reliability of operation for\nthe service in which it is employed;\n(3) Except as provided in paragraph (b) of this section, set to control or relieve\nat the correct pressure consistent with the pressure limits of § 192.201(a); and\n(4) Properly installed and protected from dirt, liquids, or other conditions\nthat might prevent proper operation.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.739 by failing to conduct the\nfollowing regulator inspections:\n• Daniel: Failed to conduct inspections of one of two regulators in 2002\n• Green Acres: Failed to conduct inspections of many regulators in 2002. (Respondent\ninspected only 5 out of more than 30 regulators).\nIn its Closing, Respondent did not contest this allegation. Accordingly, I find that Respondent\nviolated 49 C.F.R. § 192.739 by failing to conduct regulator inspections at the locations and in\nthe years described above.\n10 Closing Ex 4: “Training Guide for Operators of Small LP Gas Systems,” at II-3.\n\n\n\n8\nItem 7b: The Notice alleged that Respondent violated 49 C.F.R. § 192.739, as quoted above, by\nfailing to test the external relief devices on the Pine Tree and Green Acres systems from 2002 to\n2004. Respondent contested this allegation in its Issues Statement and Closing, arguing that it\nwas not required to install or test relief devices because its systems were subject to § 192.197(a)\nand not § 192.739.\nSection 192.197 is entitled “Control of the pressure of gas delivered from high-pressure\ndistribution systems.” [Emphasis added]. Section 192.197 is concerned with controlling pressure\non that portion of a gas pipeline system that flows through service lines and regulators to\nresidential and commercial customers. The pressure relief devices at issue in the Notice, on the\ncontrary, are designed to control pressure on that portion of a gas distribution system that is\nupstream of customer service lines and regulators. Section 192.197 does not apply to such\nupstream relief devices that control pressure on the distribution system itself. Therefore, I find\nRespondent’s argument unpersuasive.\nIn its Issues Statement and Closing, Respondent also cited a 2001 Final Order issued by this\ndid not indicate what it believed was similar between the allegation in the Notice and the cited\ncase. The cited case concerned different facts and circumstances. The 2001 Final Order\nwithdrew an allegation that AmeriGas had violated § 192.743 and included a discussion of the\nUL 144 standard for low-pressure gas regulators. Neither § 192.743 nor UL 144 is at issue in\nItem 7b. Absent additional argument or explanation, I find Respondent’s reference to the 2001\nFinal Order inapposite.\nagency and argued that such order withdrew an allegation on “similar grounds.”11 Respondent\nAccordingly, upon review of all of the evidence and arguments of the parties, I find that\nRespondent violated 49 C.F.R. § 192.739(a) by failing to test the relief devices on the Pine Tree\nand Green Acres systems from 2002 to 2004.\nItem 8: The Notice alleged that Respondent violated 49 C.F.R. § 192.743(a), which states:\n§ 192.743 Pressure limiting and regulating stations: Capacity of\nrelief devices.\n(a) Pressure relief devices at pressure limiting stations and pressure\nregulating stations must have sufficient capacity to protect the facilities to which\nthey are connected. Except as provided in § 192.739(b), the capacity must be\nconsistent with the pressure limits of § 192.201(a). This capacity must be\ndetermined at intervals not exceeding 15 months, but at least once each calendar\nyear, by testing the devices in place or by review and calculations.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.743(a) by failing to annually check\nthe pressure relief devices on the Green Acres and Pine Tree systems for sufficient capacity to\nprotect the facilities to which they were connected. Specifically, the Notice alleged that the\nexternal relief devices at these locations had never been checked for capacity. In its Issues\nStatement, Respondent argued that no such capacity review was required because § 192.197,\n11 Closing at 6, citing In the Matter of AmeriGas Partners, L.P., Final Order, CPF No. 38002, later re-numbered as\n3-1998-0002, (December 31, 2001).\n\n\n\n9\nrather than § 192.743, applied to these devices. I find this argument unpersuasive for the same\nreasons as those set forth in Item 7b above.\nAmeriGas also argued that it should not be cited for violating both § 192.739 (for failure to\nconduct annual testing of relief devices) and § 192.743 (for failure to conduct annual capacity\nreviews). Respondent argued that § 192.743 permitted it to either conduct tests or review\ncapacity calculations, but did not require both.12\nRespondent’s argument is not supported by either regulation. Section 192.743 requires a\ndetermination of proper relief device capacity. Many kinds of system changes can affect relief\ncapacity needs, including changes in orifice sizes, vents, piping, etc. Section 192.739 requires\nannual inspections and tests to determine, among other things, that the relief devices are\n“adequate from the standpoint of capacity and reliability of operation for the service in which\n[they] are employed.” Whereas § 192.743 requires an assessment of what the proper relief\ncapacity should be, § 192.739 requires an actual test of the relief device against its determined\ncapacity. Though similar, these regulations have different purposes and requirements. PHMSA\nhas cited other operators for violations of both regulations on the same relief device.13\nAccordingly, I find that Respondent violated 49 C.F.R. § 192.743(a) by failing to annually check\nthe pressure relief devices on the Green Acres and Pine Tree systems for sufficient capacity to\nprotect the facilities to which they are connected.\nASSESSMENT OF PENALTY\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: the nature, circumstances, and gravity of the violation,\nincluding adverse impact on the environment; the degree of Respondent’s culpability; the history\nof Respondent’s prior offenses; the Respondent’s ability to pay the penalty and any effect that\nthe penalty may have on its ability to continue doing business; and the good faith of Respondent\nin attempting to comply with the pipeline safety regulations. In addition, I may consider the\neconomic benefit gained from the violation without any reduction because of subsequent\ndamages, and such other matters as justice may require. The Notice proposed a total civil\npenalty of $105,600 for the violations.\nNotice Item 1a proposed a civil penalty of $15,000 for violations of 49 C.F.R. § 192.465(a), for\nRespondent’s failure to conduct CP surveys of the Daniel system for the years 2002 and 2004,\nand the Green Acres system in 2002. Adequate CP is an essential part of maintaining the\nintegrity of pipeline systems. In this case, both of AmeriGas’ systems lay in close proximity to\nhomes. Without adequate CP, corrosion could occur and result in a leak and the migration of\nflammable propane into homes. By failing to conduct tests to determine whether CP was\n12 Closing, at 6.\n13 See In the Matter of Fairbanks Natural Gas LLC, Final Order, at 2, CPF No. 5-2000-0006 (Mar. 15, 2004); and,\nmore recently, In the Matter of CenterPoint Energy – Mississippi River Transmission Co., Final Order, at 1-2, CPF\nNo. 3-2007-1014 (Oct. 28, 2008). Although issued after the Notice in the present case, the CenterPoint case\ndemonstrates that PHMSA continues to take the position that §§ 192.739 and 192.743 impose separate requirements\nand support separate violations for the same relief device.\n\n\n\n10\nadequate, Respondent increased the risk of harm to the public, property and the environment.\nRespondent has presented no arguments or information that would warrant a reduction or\nelimination of the proposed civil penalty. Accordingly, having reviewed the record and\nconsidered the assessment criteria, I assess Respondent a civil penalty of $15,000 for violating\n49 C.F.R. § 192.465(a).\nNotice Item 1b proposed a civil penalty of $8,000 for violation of 49 C.F.R. § 192.465(d), for\nRespondent’s failure to take prompt remedial action to correct inadequate CP on one particular\nportion of the Green Acres system. Without adequate CP, corrosion could occur and result in a\nleak and the migration of flammable propane into homes. By failing to correct known\ninadequate CP levels, Respondent increased the risk of harm to the public, property and the\nenvironment. Respondent has presented no arguments or information that would warrant a\nreduction or elimination of the proposed civil penalty. Accordingly, having reviewed the record\nand considered the assessment criteria, I assess Respondent a civil penalty of $8,000 for violating\n49 C.F.R. § 192.465(d).\nNotice Item 5b proposed a civil penalty of $15,000 for violation of 49 C.F.R. § 192.605(a), for\nRespondent’s failure to follow its own procedures for conducting monthly “sniff tests” on each\nof its systems. Respondent’s failure to follow its own written procedures jeopardized public\nsafety, property, and the environment. Adherence by operators to their own written safety\nprocedures has long been a core requirement of the Pipeline Safety Regulations and is intended\nto prevent mistakes that could lead to accidents. Respondent admitted that it did not follow its\nown O&M manual. Having rejected Respondent’s other arguments, as discussed in the Findings\nof Violation, and in the absence of any basis for mitigation or elimination of the civil penalty for\nthis item, I assess Respondent a civil penalty of $15,000 for violating 49 C.F.R. § 192.605(a).\nNotice Item 7a proposed a civil penalty of $15,000 for violation of 49 C.F.R. § 192.739, for\nRespondent’s failure to conduct inspections of regulators on its Daniel and Green Acres systems\nin 2002. Respondent did not submit any evidence that indicated it had conducted the required\ninspections. Regulator inspection is important to pipeline safety because it can help to identify\noperational problems with these important overpressure protection devices. Respondent’s failure\nto conduct regulator inspection increased the risk to the public, property and the environment.\nRespondent has presented no arguments or information that would warrant a reduction or\nelimination of the proposed civil penalty. Accordingly, having reviewed the record and\nconsidered the assessment criteria, I assess Respondent a civil penalty of $15,000 for violating\n49 C.F.R. § 192.739.\nNotice Item 7b proposed a civil penalty of $26,300 for violation of 49 C.F.R. § 192.739, for\nRespondent’s failure to test the external relief devices on the Pine Tree and Green Acres systems\nfrom 2002 to 2004. External relief devices help to prevent overpressure of gas pipeline systems.\nIn this case, Respondent’s failure to conduct annual tests of these devices increased risks to the\npublic, property and the environment. Respondent has presented no arguments or information\nthat would warrant a reduction or elimination of the proposed civil penalty. Accordingly, having\nreviewed the record and considered the assessment criteria, I assess Respondent a civil penalty of\n$26,300 for violating 49 C.F.R. § 192.739.\nNotice Item 8 proposed a civil penalty of $26,300 for violation of 49 C.F.R. § 192.743, for\nRespondent’s failure to annually check the pressure relief devices on the Green Acres and Pine\n\n\n\n11\nTree systems for sufficient capacity to protect the facilities to which they are connected.\nRespondent failed to conduct the annual review of relief device capacity when it failed to inspect\nthe relief devices or perform capacity calculations. Such review is necessary to determine\nwhether the devices have sufficient relief capacity to protect the facilities on which they are\ninstalled. Respondent argued that this penalty was duplicative of the penalty associated with\nItem 7b. I found that these two violations were not duplicative, for the reasons discussed more\nfully above; therefore, neither are the penalties. Respondent has presented no arguments or\ninformation that would warrant a reduction or elimination of the proposed civil penalty.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $26,300 for violating 49 C.F.R. § 192.739.\nAccordingly, having reviewed the record and considered the assessment criteria for all the\nviolations set forth above, I assess Respondent a total civil penalty of $105,600. Respondent has\npresented no information that payment of this penalty would adversely affect its ability to\ncontinue in business.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations\n(49 C.F.R. § 89.21(b)(3)) require this payment be made by wire transfer, through the Federal\nReserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed\ninstructions are contained in the enclosure. Questions concerning wire transfers should be\ndirected to: Financial Operations Division (AMZ-341), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P.O. Box 269039, Oklahoma City, OK 73125; (405) 954-8893.\nFailure to pay the $105,600 civil penalty will result in accrual of interest at the current annual\nrate in 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 United\nStates District Court.\nCOMPLIANCE ORDER\nThe Notice proposed a Compliance Order with respect to Items 2 and 5a in the Notice for\nviolations of 49 C.F.R. §§ 192.469 and 192.605(a), respectively. Under 49 U.S.C. § 60118(a),\neach person who engages in the transportation of gas or who owns or operates a pipeline facility\nis required to comply with the applicable safety standards established under Chapter 601.\nPursuant to the authority of 49 U.S.C. § 60118(b) and 49 C.F.R. § 190.217, Respondent is\nordered to take the following actions to ensure compliance with the pipeline safety regulations\napplicable to its operations.\nRespondent must:\n1. With regard to Notice Item 2, pertaining to the cathodic protection (CP) test stations in Green\nAcres, perform a comprehensive review of the Green Acres CP system that includes:\na. Confirming what materials are used for the main and services, and ensuring that the\nservices, if they are copper, are insulated from the main. This work should include\nfield excavations in various parts of the system;\n\n\n\n12\nb. Addition of new test points throughout the system to ensure adequate cathodic\nprotection monitoring; and\nc. Taking remedial actions to correct any deficiencies found during this evaluation,\nincluding, but not limited to, replacement of corroded pipe, addition or replacement\nof anodes, and re-coating;\n2. Maintain documentation of the safety improvement costs associated with fulfilling this\nCompliance Order and submit the total to Director, Central Region, PHMSA. Costs shall be\nreported in two categories: (1) total cost associated with preparation/revision of plans,\nprocedures, studies and analyses; and (2) total cost associated with replacements, additions and\nother changes to pipeline infrastructure; and\n3. Within 60 days of receipt of this Final Order, submit a proposed time schedule to accomplish\nthe objectives specified in paragraph 1 to the Director, Central Region, PHMSA.\n4. Submit documentation of procedures, costs and evidence of actions taken to the Director,\nCentral Region, Pipeline and Hazardous Materials Safety Administration, 901 Locust Street,\nSuite 462, Kansas City, MO 64106-2641. Please refer to CPF No. 3-2006-0004 on any\ncorrespondence or communication in these matters.\nThe Director, may grant an extension of time to comply with any of the required items upon a\nwritten request timely submitted by Respondent demonstrating good cause for an extension.\nThe Director has indicated that Respondent has taken the following actions to address Item 5a of\nthe Notice, pertaining to Respondent’s failure to follow its manual of written procedures for\nliaison with fire and polic","truncated":true,"body_characters":44043}