{"operation":"document","citation":"CPF 320111015","title":"GAS RECOVERY SYSTEMS, LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2011-10-20","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.616.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320111015.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320111015.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320111015","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320111015","body":"Notice of Probable Violation involving GAS RECOVERY SYSTEMS, LLC. PHMSA's enforcement data identifies the cited regulation as 192.616. The case was opened on 2011-10-20 and is reported as closed as of 2014-12-10. Proposed civil penalty: $27,800. Assessed civil penalty: $27,800. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320111015_Closure_12102014.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320111015/320111015_Closure_12102014.pdf\n\n320111015_Closure_12102014_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320111015/320111015_Closure_12102014_text.pdf\n\n320111015_Final Order_10182012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320111015/320111015_Final%20Order_10182012.pdf\n\n320111015_Final Order_10182012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320111015/320111015_Final%20Order_10182012_text.pdf\n\n320111015_NOPV PCP PCO_10202011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320111015/320111015_NOPV%20PCP%20PCO_10202011.pdf\n\n320111015_NOPV PCP PCO_10202011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320111015/320111015_NOPV%20PCP%20PCO_10202011_text.pdf\n\n320111015_Operator Response to Notice_11172011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320111015/320111015_Operator%20Response%20to%20Notice_11172011.pdf\n\n320111015_NOPV PCP PCO_10202011_text.pdf\n\nNOTICE OF PROBABLE VIOLATION\nPROPOSED CIVIL PENALTY\nand\nPROPOSED COMPLIANCE ORDER\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nOctober 20, 2011\nMr. Anthony J. Falbo\nVice President / General Manager\nFortistar Company / Gas Recovery Systems, LLC\n5087 Junction Road\nLockport, New York 14094\nCPF 3-2011-1015\nDear Mr. Falbo:\nOn June 7-8, 2011, a representative of the Ohio Public Utilities Commission (OH-PUC) acting\nas an inter-state agent for the Pipeline and Hazardous Materials Safety Administration\n(PHMSA) pursuant to Chapter 601 of 49 United States Code inspected your records and\nfacilities for Gas Recovery Systems, LLC in Toledo, OH.\nAs a result of the inspection, it appears that you have committed a probable violation of the\nPipeline Safety Regulations, Title 49, Code of Federal Regulations. The item inspected and\nthe probable violation is:\n\n\n\n1. §192.616 Public Awareness\n(a) Except for an operator of a master meter or petroleum gas system covered\nunder paragraph (j) of this section, each pipeline operator must develop and\nimplement a written continuing public education program that follows the\nguidance provided in the American Petroleum Institute's (API) Recommended\nPractice (RP) 1162 (incorporated by reference, see § 192.7).\n(b) The operator's program must follow the general program recommendations of\nAPI RP 1162 and assess the unique attributes and characteristics of the operator's\npipeline and facilities.\n(c) The operator must follow the general program recommendations, including\nbaseline and supplemental requirements of API RP 1162, unless the operator\nprovides justification in its program or procedural manual as to why compliance\nwith all or certain provisions of the recommended practice is not practicable and\nnot necessary for safety.\n(d) The operator's program must specifically include provisions to educate the\npublic, appropriate government organizations, and persons engaged in excavation\nrelated activities on:\n(1) Use of a one-call notification system prior to excavation and other damage\nprevention activities;\n(2) Possible hazards associated with unintended releases from a gas pipeline\nfacility;\n(3) Physical indications that such a release may have occurred;\n(4) Steps that should be taken for public safety in the event of a gas pipeline\nrelease; and\n(5) Procedures for reporting such an event.\n(e) The program must include activities to advise affected municipalities, school\ndistricts, businesses, and residents of pipeline facility locations.\n(f) The program and the media used must be as comprehensive as necessary to\nreach all areas in which the operator transports gas.\n(g) The program must be conducted in English and in other languages commonly\nunderstood by a significant number and concentration of the non-English speaking\npopulation in the operator's area.\n2\n\n\n\n(h) Operators in existence on June 20, 2005, must have completed their written\nprograms no later than June 20, 2006. The operator of a master meter or\npetroleum gas system covered under paragraph (j) of this section must complete\ndevelopment of its written procedure by June 13, 2008. Upon request, operators\nmust submit their completed programs to PHMSA or, in the case of an intrastate\npipeline facility operator, the appropriate State agency.\n(i) The operator's program documentation and evaluation results must be\navailable for periodic review by appropriate regulatory agencies.\nGas Recovery Systems LLC (GRS) did not develop and implement a written continuing\npublic education program as required by §192.616 that followed the guidance provided\nin the American Petroleum Institute's (API) Recommended Practice (RP) 1162.\nGRS was required to have a public awareness plan by June 20, 2006. As of the standard\ninspection in June 2011, there was no plan and no records showing the identification of\nstakeholders, the implementation of required baseline measures, the annual\nimplementation review and the four year effectiveness evaluation of the plan. GRS did\nnot provide the required notifications to the four stakeholder audiences within the\npipeline facilities to inform them of the characteristics and hazards of landfill gas.\nAdditionally, there was no notification and education of the public and appropriate\ngovernment organizations on how to recognize and react to possible pipeline incidents.\nProposed Civil Penalty\nUnder 49 United States Code, § 60122, you are subject to a civil penalty not to exceed\n$100,000 for each violation for each day the violation persists up to a maximum of $1,000,000\nfor any related series of violations. The Compliance Officer has reviewed the circumstances\nand supporting documentation involved in the above probable violation and has recommended\nthat you be preliminarily assessed a civil penalty of $27,800.\nProposed Compliance Order\nWith respect to item one pursuant to 49 United States Code § 60118, the Pipeline and\nHazardous Materials Safety Administration proposes to issue a Compliance Order to Gas\nRecovery Systems, LLC. Please refer to the Proposed Compliance Order, which is enclosed\nand made a part of this Notice.\nResponse to this Notice\nEnclosed as part of this Notice is a document entitled Response Options for Pipeline\nOperators in Compliance Proceedings. Please refer to this document and note the response\noptions. Be advised that all material you submit in response to this enforcement action is\n3\n\n\n\nsubject to being made publicly available. If you believe that any portion of your responsive\nmaterial qualifies for confidential treatment under 5 U.S.C. 552(b), along with the complete\noriginal document you must provide a second copy of the document with the portions you\nbelieve qualify for confidential treatment redacted and an explanation of why you believe the\nredacted information qualifies for confidential treatment under 5 U.S.C. 552(b). If you do not\nrespond within 30 days of receipt of this Notice, this constitutes a waiver of your right to\ncontest the allegations in this Notice and authorizes the Associate Administrator for Pipeline\nSafety to find facts as alleged in this Notice without further notice to you and to issue a Final\nOrder.\nIn your correspondence on this matter, please refer to CPF 3-2011-1015 and for each\ndocument you submit, please provide a copy in electronic format whenever possible.\nSincerely,\nDavid Barrett\nDirector, Central Region\nPipeline and Hazardous Materials Safety Administration\nEnclosures: Proposed Compliance Order\nResponse Options for Pipeline Operators in Compliance Proceedings\n4\n\n\n\nPROPOSED COMPLIANCE ORDER\nPursuant to 49 United States Code § 60118, the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA) proposes to issue to Gas Recovery Systems, LLC a Compliance\nOrder incorporating the following remedial requirements to ensure the compliance of Gas\nRecovery Systems, LLC with the pipeline safety regulations:\n1. In regard to Item Number One of the Notice pertaining to the Public Awareness\nPlan, Gas Recovery Systems, LLC must develop and implement a Public\nAwareness Plan in accordance to §192.616.\n2. The Public Awareness Plan must be completed and submitted to the Central\nRegion Director and the Pipeline Safety Program Manager of the Ohio Public\nUtilities Commission within 30 days of the receipt of the Final Order.\nAdditionally, the Plan must be implemented immediately upon completion.\nGas Recovery Systems, LLC will submit quarterly reports to the Central\nRegion Director and the Pipeline Safety Program Manager of the Ohio Public\nUtilities Commission detailing the progress of the implementation for a period\nof 365 days after the implementation of the program.\n3. It is requested (not mandated) that Gas Recovery Systems, LLC maintain\ndocumentation of the safety improvement costs associated with fulfilling this\nCompliance Order and submit the total to David Barrett, Director, Central\nRegion, Pipeline and Hazardous Materials Safety Administration. It is\nrequested that these costs be reported in two categories: 1) total cost associated\nwith preparation/revision of plans, procedures, studies and analyses, and 2)\ntotal cost associated with replacements, additions and other changes to pipeline\ninfrastructure.\n5\n\n320111015_Closure_12102014_text.pdf\n\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nDecember 10, 2014\nMr. Mark Comora\nPresident\nGas Recovery Systems, LLC\nOne North Lexington Avenue\nWhite Plains, New York 10601\nCPF 3-2011-1015\nDear: Mr. Comora\nOn October 18, 2012, the Pipeline and Hazardous Materials Safety Administration\n(PHMSA) issued to Gas Recovery Systems, LLC a Final Order in the above-referenced\ncase. This Order included a Compliance Order and Civil Penalty assessment. Based on our\nreview of the documentation you provided and confirmation of payment of the civil\npenalty, 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\nthe matters involved in this case. Thank you for your cooperation in this matter.\nSincerely,\nAllan C. Beshore\nDirector, Central Region\nPipeline and Hazardous Materials Safety Administration\n\n320111015_Final Order_10182012_text.pdf\n\nOCTOBER 18, 2012\nMr. Mark Comora\nPresident\nGas Recovery Systems, LLC\nOne North Lexington Avenue\nWhite Plains, New York 10601\nRe: CPF No. 3-2011-1015\nDear Mr. Comora:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation, assesses a civil penalty of $27,800, and specifies actions that need to be taken by Gas\nRecovery Systems, LLC, to comply with the pipeline safety regulations. The penalty payment\nterms are set forth in the Final Order. When the civil penalty has been paid and the terms of the\ncompliance order completed, as determined by the Director, Central Region, this enforcement\naction will be closed. Service of the Final Order by certified mail is deemed effective upon the\ndate of mailing, or as otherwise 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, Central Region Director, OPS\nMr. Alan Mayberry, Deputy Associate Administrator for Field Operations, OPS\nMr. Anthony J. Falbo, Senior Vice President – Operations, Gas Recovery\nSystems, LLC, 5087 Junction Road, Lockport, New York 14094\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____________________________________\n)\nIn the Matter of )\n)\nGas Recovery Systems, LLC, ) CPF No. 3-2011-1015\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nOn June 7-8, 2011, pursuant to 49 U.S.C. § 60117, a representative of the Ohio Public Utilities\nCommission (OH-PUC), acting as interstate agent for the Pipeline and Hazardous Materials\nSafety Administration (PHMSA), Office of Pipeline Safety (OPS), conducted an on-site pipeline\nsafety inspection of the facilities and records of Gas Recovery Systems, LLC (GRS), in Toledo,\nOhio. GRS, a subsidiary of Fortistar, LLC, operates a group of renewable energy gas projects,\nincluding a 3.2-mile pipeline that transports methane from a landfill in Ohio to a General Motors\nfacility.1\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated October 20, 2011, a Notice of Probable Violation, Proposed Civil Penalty, and\nProposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the Notice\nproposed finding that GRS had violated 49 C.F.R. § 192.616, and proposed assessing a civil\npenalty of $27,800 for the alleged violation. The Notice also proposed ordering Respondent to\ntake certain measures to correct the alleged violation.\nFINDING OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 192, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 192.616, which states, in\nrelevant part:\n§ 192.616 Public awareness.\n(a) Except for an operator of a master meter or petroleum gas system\ncovered under paragraph (j) of this section, each pipeline operator must\n1 Fortistar, LLC home page, http://www.fortistar.com/default.aspx (last visited Sept. 20, 2012).\n\n\n\n2\ndevelop and implement a written continuing public education program that\nfollows the guidance provided in the American Petroleum Institute's (API)\nRecommended Practice (RP) 1162 (incorporated by reference, see\n§ 192.7).\n(b) The operator's program must follow the general program\nrecommendations of API RP 1162 and assess the unique attributes and\ncharacteristics of the operator's pipeline and facilities.\n(c) The operator must follow the general program recommendations,\nincluding baseline and supplemental requirements of API RP 1162, unless\nthe operator provides justification in its program or procedural manual as\nto why compliance with all or certain provisions of the recommended\npractice is not practicable and not necessary for safety.\n(d) The operator's program must specifically include provisions to\neducate the public, appropriate government organizations, and persons\nengaged in excavation related activities on:\n(1) Use of a one-call notification system prior to excavation and other\ndamage prevention activities;\n(2) Possible hazards associated with unintended releases from a gas\npipeline facility;\n(3) Physical indications that such a release may have occurred;\n(4) Steps that should be taken for public safety in the event of a gas\npipeline release; and\n(5) Procedures for reporting such an event.\n(e) The program must include activities to advise affected\nmunicipalities, school districts, businesses, and residents of pipeline\nfacility locations.\n(f) The program and the media used must be as comprehensive as\nnecessary to reach all areas in which the operator transports gas.\n(g) The program must be conducted in English and in other languages\ncommonly understood by a significant number and concentration of the\nnon-English speaking population in the operator's area.\n(h) Operators in existence on June 20, 2005, must have completed\ntheir written programs no later than June 20, 2006. . . .\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.616 by failing to develop and\nimplement a written continuing public education program that followed the guidance provided in\nAPI RP 1162. GRS was required to have completed its written program by June 20, 2006.\nRespondent did not contest this allegation of violation. Accordingly, based upon a review of all\nof the evidence, I find that Respondent violated 49 C.F.R. § 192.616 by failing to develop and\nimplement a written continuing public education program that followed the guidance provided in\nAPI RP 1162.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\n\n\n\n3\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any\nrelated series of violations. In determining the amount of a civil penalty under\n49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,\ncircumstances, and gravity of the violation, including adverse impact on the environment; the\ndegree of Respondent’s culpability; the history of Respondent’s prior offenses; the Respondent’s\nability to pay the penalty and any effect that the penalty may have on its ability to continue doing\nbusiness; and the good faith of Respondent in attempting to comply with the pipeline safety\nregulations. In addition, I may consider the economic benefit gained from the violation without\nany reduction because of subsequent damages, and such other matters as justice may require.\nThe Notice proposed a total civil penalty of $27,800 for the violation cited above.\nItem 1: The Notice proposed a civil penalty of $27,800 for Respondent’s violation of\n49 C.F.R. § 192.616, for failing to develop and implement a written continuing public education\nprogram that followed the guidance provided in API RP 1162. GRS neither contested the\nallegation nor presented any evidence or argument justifying a reduction in the proposed penalty.\nThe record shows that the Respondent did not create any kind of a public awareness plan for its\nfacilities. A public awareness plan is a critical component in protecting the public and an\noperator’s own facilities in the event of a failure. The transmission line runs almost entirely in a\npopulated area that includes a school and several residential subdivisions. PHMSA considers\nthis area to be a High Consequence Area, as defined in § 192.903. Due to the high population\ndensity, public awareness is necessary to educate the public about the location of the pipeline,\nthe identification of potential leaks and the actions needed in response to a potential failure.\nGRS requested that PHMSA waive the civil penalty on the ground of financial hardship, due to\nthe fact that the facility in question was a poor financial performer. In its Response, GRS\nexplained that the line lost $102,000 over the past three years and asked that PHMSA “waive the\ncivil penalty and allow us to spend available financial resources for safety and environmental\nprograms…”2 Fortistar, however, is a large corporation with roughly 58 different energy\nprojects in the U.S. and Canada.3 Given the responsibility of all pipeline operators to carry out\neffective public awareness programs, I see no reason to reduce or eliminate the proposed penalty\nin this case. Accordingly, having reviewed the record and considered the assessment criteria, I\nassess Respondent a civil penalty of $27,800 for violation of 49 C.F.R. § 192.616.\nIn summary, having reviewed the record and considered the assessment criteria for the Item cited\nabove, I assess Respondent a total civil penalty of $27,800.\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 such payment to be made by wire transfer through the Federal\nReserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed\nASSESSMENT OF PENALTY\n2 Response at 2.\n3 Fortistar website, supra.\n\n\n\n4\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, Oklahoma 73125. The\nFinancial Operations Division telephone number is (405) 954-8893.\nFailure to pay the $27,800 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. § 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 district\ncourt of the United States.\nCOMPLIANCE ORDER\nThe Notice proposed a compliance order in the Notice for violation of 49 C.F.R. § 192.616.\nUnder 49 U.S.C. § 60118(a), each person who engages in the transportation of gas or who owns\nor operates a pipeline facility is required to comply with the applicable safety standards\nestablished 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:\n1. With respect to the violation of § 192.616 (Item 1), Respondent must take the following\naction:\na. 2. GRS must develop and implement a Public Awareness Plan in accordance with\n§ 192.616.\nb. The Public Awareness Plan must be completed and submitted to the Central\nRegion Director and the Pipeline Safety Program manager of the Ohio Public\nUtilities Commission within 30 days of the receipt of this Order. Additionally,\nthe Plan must be implemented immediately upon completion. GRS will submit\nquarterly reports to the Central Region Director and the Pipeline Safety Program\nManager of the OH-PUC detailing its progress for a period of 365 days after\nbeginning implementation of the program.\nWith respect to the violation of § 192.616 (Item 1), Respondent is requested to maintain\ndocumentation of the safety improvement costs associated with fulfilling this Compliance\nOrder and submit the total to David Barrett, Director, Central Region, Pipeline and\nHazardous Materials Safety Administration. It is requested that these costs be reported in\ntwo categories: 1) total cost associated with preparation/revisions of plans, procedures,\nstudies and analyses; and 2) total cost associated with replacements, additions and other\nchanges to pipeline infrastructure.\n\n\n\n5\nThe Director may grant an extension of time to comply with any of the required items upon a\nwritten request timely submitted by the Respondent and demonstrating good cause for an\nextension.\nFailure to comply with this Order may result in administrative assessment of civil penalties not\nto exceed $100,000 for each violation for each day the violation continues or in referral to the\nAttorney General for appropriate relief in a district court of the United States.\nUnder 49 C.F.R. § 190.215, Respondent has a right to submit a Petition for Reconsideration of\nthis Final Order. The petition must be sent to: Associate Administrator, Office of Pipeline\nSafety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor, Washington, DC\n20590, with a copy sent to the Office of Chief Counsel, PHMSA, at the same address. PHMSA\nwill accept petitions received no later than 20 days after receipt of service of this Final Order by\nthe Respondent, provided they contain a brief statement of the issue(s) and meet all other\nrequirements of 49 C.F.R. § 190.215. The filing of a petition automatically stays the payment of\nany civil penalty assessed. Unless the Associate Administrator, upon request, grants a stay, all\nother terms and conditions of this Final Order are effective upon service in accordance with\n49 C.F.R. § 190.5.\n___________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":23824}