{"operation":"document","citation":"CPF 320151004","title":"DTE GAS COMPANY — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2015-05-11","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.465(d), 192.709(c), 192.921(a)(1).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320151004.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320151004.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320151004","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320151004","body":"Notice of Probable Violation involving DTE GAS COMPANY. PHMSA's enforcement data identifies the cited regulations as 192.465(d),  192.709(c),  192.921(a)(1). The case was opened on 2015-05-11 and is reported as closed as of 2016-02-26. Proposed civil penalty: $31,800. Assessed civil penalty: $31,800. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320151004_Final Order_02042016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320151004/320151004_Final%20Order_02042016.pdf\n\n320151004_Final Order_02042016_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320151004/320151004_Final%20Order_02042016_text.pdf\n\n320151004_NOPV PCP_05112015.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320151004/320151004_NOPV%20PCP_05112015.pdf\n\n320151004_NOPV PCP_05112015_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320151004/320151004_NOPV%20PCP_05112015_text.pdf\n\n320151004_Operator Response to Notice_06112015.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320151004/320151004_Operator%20Response%20to%20Notice_06112015.pdf\n\n320151004_Final Order_02042016_text.pdf\n\nFebruary 4, 2016\nMr. Gerard M. Anderson\nChairman and CEO\nDTE Energy Company\nOne Energy Plaza\nDetroit, MI 48226\nRe: CPF No. 3-2015-1004\nDear Mr. Anderson:\nEnclosed please find the Final Order issued in the above-referenced case to your subsidiary, DTE\nGas Company. It makes findings of violation and assesses a civil penalty of $31,800. The\npenalty payment terms are set forth in the Final Order. This enforcement action closes\nautomatically upon receipt of payment. Service of the Final Order by certified mail is deemed\neffective upon the date 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. Allan C. Beshore, Director, Central Region, PHMSA OPS\nMs. Alida Sandberg, Director, Engineering Services, DTE Gas Company\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)\nDTE Gas Company, ) CPF No. 3-2015-1004\na subsidiary of DTE Energy Company, )\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nBetween December 1 and 5, 2014, pursuant to 49 U.S.C. § 60117, representatives of the\nMichigan Public Service Commission (MIPSC), as interstate agent for 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 DTE Gas\nCompany (DTE or Respondent) for the company’s Vector/DTE Pipeline (Subject Pipeline) in\nMichigan. Respondent is a subsidiary of DTE Energy Company and is engaged in the purchase,\nstorage, transmission, distribution, and sale of natural gas to approximately 1.2 million customers\nin Michigan.1\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated May 11, 2015, a Notice of Probable Violation and Proposed Civil Penalty\n(Notice), which also included a warning pursuant to 49 C.F.R. § 190.205. In accordance with\n49 C.F.R. § 190.207, the Notice proposed finding that DTE had violated 49 C.F.R. §§ 192.465,\n192.709, and 192.921 and proposed assessing a civil penalty of $31,800 for the alleged\nviolations. The warning item required no further action, but warned the operator to correct the\nprobable violation or face potential future enforcement action.\nDTE responded to the Notice by letter dated June 11, 2015 (Response). The company did not\ncontest the allegations of violation but provided an explanation of its actions and requested that\nthe proposed civil penalty be reduced. Respondent did not request a hearing and therefore has\nwaived its right to one.\n1 DTE Energy Company, website, available at https://dteenergy.mediaroom.com/index.php?s=26823 (last accessed\nDecember 23, 2015).\n\n\n\nCPF No. 3-2015-1004\nPage 2\nFINDINGS OF VIOLATION\nIn its Response, DTE did not contest the allegations in the Notice that it violated 49 C.F.R. Part\n192, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 192.465, which states, in\nrelevant part:\n§ 192.465 External corrosion control: Monitoring.\n(a) Each pipeline that is under cathodic protection must be tested at\nleast once each calendar year, but with intervals not exceeding 15 months,\nto determine whether the cathodic protection meets the requirements of\n§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(d) by failing to take prompt\nremedial action when external corrosion control monitoring indicated two deficiencies.\nSpecifically, the Notice alleged that DTE found broken wires for Test Points 109 and 109.5 at a\nforeign-line crossing on November 24, 2010, but that DTE’s records indicated the company did\nnot take remedial action on the broken wires in 2011 or 2012. DTE’s October 25, 2013\nmonitoring records showed that the broken wires had been repaired. According to PHMSA’s\nPipeline Violation Safety Report dated May 11, 2015 (Violation Report), Respondent provided\nno other records demonstrating that the test points had been repaired prior to October 25, 2013.2\nDTE made certain arguments relating to the penalty amount that are discussed in the\n“Assessment of Penalty” section below.\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated\n49 C.F.R. § 192.465(d) by failing to take prompt remedial action to correct two deficiencies\nindicated by external corrosion control monitoring.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 192.709, which states, in\nrelevant part:\n§ 192.709 Transmission lines: Record keeping.\nEach operator shall maintain the following records for transmission\nlines for the periods specified:\n(a) . . . .\n(c) A record of each patrol, survey, inspection, and test required by\nsubparts L and M of this part must be retained for at least 5 years or until\nthe next patrol, survey, inspection, or test is completed, whichever is\nlonger.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.709(c) by failing to retain\n2 Violation Report, at 4.\n\n\n\nCPF No. 3-2015-1004\nPage 3\ninspection records from 2010, 2011, and 2012 for the Operator/Monitor regulators located at the\nBelle River Station on the Subject Pipeline. Specifically, the Notice alleged that DTE’s 2010\nannual report showed DTE as the operator of the Subject Pipeline in 2010 but that DTE\npersonnel indicated that the inspections for these facilities were probably done but they had no\nrecords of the inspections. The Violation Report alleged that Respondent provided PHMSA with\ninspection records for 2013 and 2014, but that no records for the Belle River Station\nOperator/Monitor regulators existed for earlier years.\n3\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated 49\nC.F.R. § 192.709(c) by failing to provide inspection reports from 2010, 2011, and 2012 for the\nBelle River Station Operator/Monitor regulators.\nThese findings of violation will be considered prior offenses in any subsequent enforcement\naction taken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any\nrelated series of violations.4 In determining the amount of a civil penalty under 49 U.S.C.\n§ 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; and any effect\nthat the penalty may have on its ability to continue doing business; and the good faith of\nRespondent in attempting to comply with the pipeline safety regulations. In addition, I may\nconsider the economic benefit gained from the violation without any reduction because of\nsubsequent damages, and such other matters as justice may require. The Notice proposed a total\ncivil penalty of $31,800 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $18,900 for Respondent’s violation of\n49 C.F.R. § 192.465(d), for failing to take prompt remedial action to correct two test-point\ndeficiencies indicated by external corrosion control monitoring. Respondent did not contest the\nproposed violation but argued that the proposed penalty should be reduced. Respondent noted,\nin its Response, that the operator of the foreign line converted its corrosion protection system\nfrom an impressed-current cathodic protection system using rectifiers to a sacrificial anode\nsystem. Respondent argued that the foreign line’s sacrificial anode system did not generate\nenough electric current to cause interference with the Subject Pipeline’s corrosion control\nsystem. Respondent further argued that additional testing had demonstrated sufficient cathodic\nprotection of the Subject Pipeline.\n3 Violation Report at 11.\n4 The Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, Pub. L. No. 112-90, § 2(a)(1), 125 Stat.\n1904, January 3, 2012, increased the civil penalty liability for violating a pipeline safety standard to $200,000 per\nviolation for each day of the violation, up to a maximum of $2,000,000 for any related series of violations.\n\n\n\nCPF No. 3-2015-1004\nPage 4\nRegardless of Respondent’s allegations concerning the lack of interference with or sufficiency of\nthe Subject Pipeline’s corrosion control system, DTE designated Test Points 109 and 109.5 as\ntest points to ensure adequate cathodic protection of the Subject Pipeline and monitor\ninterference. Those purposes cannot be accomplished if the test points are not remediated. DTE\nshould have repaired the test points after discovering the deficiencies on November 24, 2010, but\nfailed to do so until October 25, 2013.\nI find that Respondent has not demonstrated any circumstances justifying a reduction in the civil\npenalty. Accordingly, having reviewed the record and considered the assessment criteria, I\nassess Respondent a civil penalty of $18,900 for violation of 49 C.F.R. § 192.465(d).\nItem 2: The Notice proposed a civil penalty of $12,900 for Respondent’s violation of 49 C.F.R.\n§ 192.709(c), for failing to retain inspection reports from 2010, 2011, and 2012 for the Belle\nRiver Station Operator/Monitor regulators. Respondent did not contest the proposed violation\nbut presented allegations in support of a reduction in the proposed penalty. The Notice further\nalleged that DTE’s inspection reports failed to document whether Valve F5 was operated in 2010\nand whether Valve F11 was operated in 2012. The Violation Report did not allege a violation of\n49 C.F.R. Part 192 for the failure to document operation of the valves and the Notice did not\nassess a civil penalty based on records of valve operation. Rather, the proposed civil penalty for\nItem 2 was based entirely on Respondent’s failure to provide 2010, 2011, and 2012 inspection\nrecords for the Belle River Station Operator/Monitor regulators.\nRespondent did not contest these findings of violation but noted that Valve F11 is located on a\npig receiver. In its Response, Respondent contended that valves located on pig receivers are not\nconsidered useful in the event of a pipeline emergency and, accordingly, requested that OPS\nconsider the lack of a routine operational check of Valve F11 to be optional under 49 C.F.R.\n§ 192.745. In the instant case, the Notice did not assess a civil penalty based on Respondent’s\nrecords of valve operation. The penalty in Item 2 is based entirely on the failure to retain\ninspection records for the Belle River Station Operator/Monitor regulators. Consequently, the\nResponse, as it pertains to Valve F11, does not justify a reduction in the proposed civil penalty\nand is not further addressed.5\nI find that Respondent’s failure to comply with a clearly applicable standard provides no reason\nto adjust the penalty for diminished culpability or good faith. DTE, a large distribution and\ntransmission pipeline operator, is well aware of applicable regulations and the importance of\nmaintaining inspection records to verify compliance work. Accordingly, having reviewed the\nrecord and considered the assessment criteria, I assess Respondent a civil penalty of $12,900 for\n5 The Response also alleged that DTE received a Notice of Probable Non-Compliance (MIPSC Notice) from\nMIPSC in 2012, which resulted in DTE’s implementation of a system to track inspections and maintain recoverable\nrecords of the inspections in the future. Respondent contended that its compliance with the MIPSC Notice\neffectively mitigated the pipeline safety issues addressed in Item 2 of the Notice. Respondent subsequently opined\nthat Item 2 of the Notice—DTE’s failure to provide inspection records from 2010, 2011, and 2012—constituted a\nsecond citation for the same conduct. Respondent did not provide any evidence that the MIPSC Notice addressed\nthe same failure to produce inspection records for the Belle River Station Operator/Monitor regulators and did not\nprovide further support for amendment of the findings in Item 2. Similarly, Respondent provides no support for the\nassertion that compliance with the MIPSC Notice precludes OPS from finding a violation and issuing a civil penalty\nfor the failure to produce inspection records.\n\n\n\nCPF No. 3-2015-1004\nPage 5\nviolation of 49 C.F.R. § 192.709(c).\nIn summary, having reviewed the record and considered the assessment criteria for each of the\nItems cited above, I assess Respondent a total civil penalty of $31,800.\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\ninstructions are contained in the enclosure. Questions concerning wire transfers should be\ndirected to: Financial Operations Division (AMK-325), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P.O. Box 269039, Oklahoma City, Oklahoma 73125. The\nFinancial Operations Division telephone number is (405) 954-8845.\nFailure to pay the $31,800 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.\nWARNING ITEM\nWith respect to Item 3, the Notice alleged a probable violation of Part 192 but did not propose a\ncivil penalty or compliance order for the item. Therefore, this is considered to be a warning\nitem. The warning was for:\n49 C.F.R. § 192.921(a)(1) (Item 3) ─ Respondent’s alleged use of an ILI tool at a\nspeed outside of the tool’s recommended design parameters, in violation of\nASME/ANSI B31.8S Section 6.2.5(b)(5).\nDTE presented information in its Response showing that it had taken certain actions to address\nthe cited item. If OPS finds a violation of this provision in a subsequent inspection, Respondent\nmay be subject to future enforcement action.\nUnder 49 C.F.R. § 190.243, Respondent has the 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 the 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. § 190.243. The filing of a petition automatically stays the payment of\nany civil penalty assessed but does not stay any other provisions of the Final Order, including\nany required corrective actions. If Respondent submits payment of the civil penalty, the Final\nOrder becomes the final administrative decision and the right to petition for reconsideration is\nwaived.\n\n\n\nCPF No. 3-2015-1004\nPage 6\nThe 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":16994}