{"operation":"document","citation":"CPF 320201008","title":"TALLGRASS INTERSTATE GAS TRANSMISSION, LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2020-10-26","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.631(c)(3), 192.631(d)(2), 192.631(d)(3), 192.631(e)(2), 192.631(j)(1).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320201008.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320201008.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320201008","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320201008","body":"Notice of Probable Violation involving TALLGRASS INTERSTATE GAS TRANSMISSION, LLC. PHMSA's enforcement data identifies the cited regulations as 192.631(c)(3),  192.631(d)(2),  192.631(d)(3),  192.631(e)(2),  192.631(j)(1). The case was opened on 2020-10-26 and is reported as closed as of 2021-07-19. Proposed civil penalty: $86,700. Assessed civil penalty: $66,500. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320201008_Final Order_07022021_(18-159646S).pdf: https://primis.phmsa.dot.gov/enforcement-documents/320201008/320201008_Final%20Order_07022021_(18-159646S).pdf\n\n320201008_Final Order_07022021_(18-159646S)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320201008/320201008_Final%20Order_07022021_(18-159646S)_text.pdf\n\n320201008_NOPV PCP_10262020.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320201008/320201008_NOPV%20PCP_10262020.pdf\n\n320201008_NOPV PCP_10262020_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320201008/320201008_NOPV%20PCP_10262020_text.pdf\n\n320201008_Operator Response to Notice_12112020.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320201008/320201008_Operator%20Response%20to%20Notice_12112020.pdf\n\n320201008_Final Order_07022021_(18-159646S)_text.pdf\n\nJuly 2, 2021\nVIA ELECTRONIC MAIL TO: bill.moler@tallgrassenergylp.com\nMr. William Moler\nChief Executive Officer\nTallgrass Energy, LP\n4200 W. 115th St., Suite 350\nLeawood, Kansas 66211\nRe: CPF No. 3-2020-1008\nDear Mr. Moler:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a reduced civil penalty of $66,500. The penalty payment terms are set\nforth in the Final Order. This enforcement action closes automatically upon receipt of payment.\nService of the Final Order by electronic mail is effective upon the date of transmission as\nprovided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Gregory Ochs, Director, Central Region, Office of Pipeline Safety, PHMSA\nMs. Crystal Heter, Chief Operating Officer, Tallgrass Energy, LP,\ncrystal.heter@tallgrassenergylp.com\nMr. Craig Meis, Vice President – EHSS & Governmental Affairs, Tallgrass Energy, LP,\ncraig.meis@tallgrassenergylp.com\nCONFIRMATION OF 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 )\nTallgrass Energy Partners, LP, ) CPF No. 3-2020-1008\n)\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nFrom May 7 through 11, 2018, and December 4 through 6, 2018, pursuant to 49 U.S.C. § 60117,\nrepresentatives of the Pipeline and Hazardous Materials Safety Administration (PHMSA), Office\nof Pipeline Safety (OPS), conducted an on-site pipeline safety inspection of the facilities and\nrecords of Tallgrass Energy Partners, LP (Tallgrass or Respondent) in Lakewood, Colorado and\nvirtually. Tallgrass owns and operates more than 8,300 miles of natural gas pipeline and more\nthan 850 miles of crude pipeline, as well as natural gas midstream and natural gas liquids\nfacilities, across Wyoming, Colorado, Nebraska, Colorado, Kansas, Oklahoma, Missouri,\nIllinois, Indiana, and Ohio.1 This inspection included review of three natural gas pipeline\nsystems owned and operated by Tallgrass, including the Rockies Express Pipeline, Tallgrass\nInterstate Gas Transmission, and Trailblazer Pipeline systems.\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated October 26, 2020, a Notice of Probable Violation and Proposed Civil Penalty\n(Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that Tallgrass\ncommitted four violations of 49 C.F.R. Part 192 and proposed assessing a civil penalty of\n$86,700 for the alleged violations.\nTallgrass submitted a timely response to the Notice by letter dated December 11, 2020\n(Response).2 Respondent contested one of the allegations of violation, provided an explanation\nof its actions and requested that the proposed civil penalty be reduced or eliminated for all of the\nitems. Respondent also submitted a supplemental response on April 1, 2021. Respondent did\nnot request a hearing and therefore has waived its right to one.\n1 https://www.tallgrassenergy.com/About.aspx;\nhttps://www.tallgrassenergy.com/Documents/Tallgrass%20System%20Map_11x17_v518L.pdf (last accessed April\n22, 2021).\n2 On November 24, 2020, PHMSA granted Tallgrass a 15-day extension to respond to the Notice.\n\n\n\nCPF No. 3-2020-1008\nPage 2\nFINDINGS 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. § 192.631(c)(3), which states:\n§ 192.631 Control room management.\n(a) General. (1) This section applies to each operator of a pipeline\nfacility with a controller working in a control room who monitors and\ncontrols all or part of a pipeline facility through a SCADA system. Each\noperator must have and follow written control room management\nprocedures that implement the requirements of this section …\n(c) Provide adequate information. Each operator must provide its\ncontrollers with the information, tools, processes and procedures necessary\nfor the controllers to carry out the roles and responsibilities the operator has\ndefined by performing each of the following:\n(1) …\n(3) Test and verify an internal communication plan to provide adequate\nmeans for manual operation of the pipeline safely, at least once each\ncalendar year, but at intervals not to exceed 15 months;\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.631(c)(3) by failing to test and\nverify an internal communication plan to provide adequate means for manual operation of the\npipeline safely, at least once each calendar year, but at intervals not to exceed 15 months.\nSpecifically, the Notice alleged that Respondent did not test and verify its internal\ncommunication plan during the calendar year 2017.\nIn its Response, Tallgrass did not contest this allegation of violation, but did request that\nPHMSA reduce the proposed civil penalty for this item.\nAccordingly, I find that Respondent violated 49 C.F.R. § 192.631(c)(3). Respondent’s\narguments regarding the proposed civil penalty are addressed in full in the “Assessment of\nPenalty” section below.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 192.631(d)(2) and (3), which\nstates:\n§ 192.631 Control room management.\n(a) …\n(d) Fatigue mitigation. Each operator must implement the following\nmethods to reduce the risk associated with controller fatigue that could\ninhibit a controller's ability to carry out the roles and responsibilities the\noperator has defined:\n(1) …\n(2) Educate controllers and supervisors in fatigue mitigation strategies\nand how off-duty activities contribute to fatigue;\n\n\n\nCPF No. 3-2020-1008\nPage 3\n(3) Train controllers and supervisors to recognize the effects of fatigue;\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.631(d)(2) and (3) by failing to\neducate controllers and supervisors in fatigue mitigation strategies and how off-duty activities\ncontribute to fatigue and by failing to train controllers and supervisors to recognize the effects of\nfatigue. Specifically, the Notice alleged that the Tallgrass Control Room Management (CRM)\nProcedures required fatigue mitigation training to occur annually, but not to exceed 15 months.\nThe Notice alleged Respondent did not follow those procedures and provide training to educate\nthree controllers in the calendar year 2017, more than 15 months after the last fatigue mitigation\ntraining the controllers received.\nIn its Response, Tallgrass provided additional evidence not presented during the inspection\nshowing two of the three controllers did receive training within the required 15-month interval.\nTallgrass did not contest the allegation of violation regarding the third controller, admitting the\ncontroller completed the training three months after the 15-month interval.3 Tallgrass also\nrequested that the penalty be reduced for this item.\nAfter considering all of the evidence, I find that Respondent violated 49 C.F.R. § 192.631(d)(2)\nand (3) by failing to educate one controller in fatigue mitigation strategies and how off-duty\nactivities contribute to fatigue, but withdraw the allegation with respect to two additional\ncontrollers. Respondent’s arguments regarding the proposed civil penalty are addressed in full in\nthe “Assessment of Penalty” section below.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 192.631(e)(2), which states:\n§ 192.631 Control room management.\n(a) …\n(e) Alarm management. Each operator using a SCADA system must\nhave a written alarm management plan to provide for effective controller\nresponse to alarms. An operator's plan must include provisions to:\n(1) …\n(2) Identify at least once each calendar month points affecting safety\nthat have been taken off scan in the SCADA host, have had alarms inhibited,\ngenerated false alarms, or that have had forced or manual values for periods\nof time exceeding that required for associated maintenance or operating\nactivities;\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.631(e)(2) by failing to have and\nfollow a plan that includes provisions to identify at least once each calendar month points\naffecting safety that have been taken off scan in the SCADA host, have had alarms inhibited,\ngenerated false alarms, or that have had forced or manual values for periods of time exceeding\nthat required for associated maintenance or operating activities. Specifically, the Notice stated\nRespondent’s CRM Procedures required monthly reviews of false alarms, but the monthly\nreviews only included a review of the highest volume alarms without identifying “all the false\n3 Tallgrass Energy, LP’s Response to Notice (December 11, 2020), at 4.\n\n\n\nCPF No. 3-2020-1008\nPage 4\nalarms that could be occurring on the pipeline system and affecting safety.”4 The Notice noted\nthe monthly alarm reviews showed Tallgrass categorized alarms as “actual” or “faulty,” but did\nnot categorize any as “false.”5\nIn its Response and its Rebuttal to the Region Recommendation, Tallgrass contests the violation\nand the associated proposed civil penalty assessment. Tallgrass argues its separate Alarm\nManagement Plan is in compliance with § 192.631(e)(2) because its Plan requires a monthly\nreview of the alarm system, which includes an evaluation of all monthly alarms, in addition to\nthe top repeating alarms.6 Tallgrass argues this process meets the text of the code as well as the\npurpose of the regulation. Tallgrass explains that it does not “draw distinctions in its monthly\nalarm reports between actual and false alarms” because there is no definition of a “false alarm”\nin the regulations nor is there a consensus approach or definition used across the industry.7\nTallgrass further argues its Alarm Management Plan is not in violation of the regulation because\nthe regulation requires monthly identification of points affecting safety that generated false\nalarms, and does not require operators to determine whether every alarm is “false.” Tallgrass\nclarified in its Response that the “faulty” designation for some alarms in its monthly reports is an\nindication of devices that have been commissioned, but not activated, and is not a tag that is\nsynonymous with “false.”8 Finally, Tallgrass argues that if PHMSA interprets § 192.631(e)(2) to\nrequire that every alarm must be reviewed on a monthly basis to determine it is false, it did not\nhave fair notice of that interpretation.\nAfter reviewing all of the arguments and evidence presented, it is clear Respondent did not\nadhere to its own CRM Procedures for evaluating points affecting safety that generated false\nalarms. Tallgrass’ CRM Procedures state, “[t]he alarm system will be reviewed monthly by the\nManager and his/her designee to identify and address safety-related points that have been taken\noff-scan, have manual values or have had false alarms.”9 In its Response, Tallgrass admits it\ndoes not “draw distinctions in its monthly alarm reports between actual and false alarms.”10\nWithout any indication of which alarms are false, Tallgrass personnel would be unable to use the\nmonthly alarm reports to identify and address points affecting safety that generated false alarms\nduring the monthly reviews, as required by the CRM Procedures.\nRather than following its CRM Procedures, it appears Tallgrass follows its Alarm Management\nPlan, a separate plan that also addresses monthly reviews of alarms. This Plan, however, does\nnot include a process for identifying points affecting safety that generated false alarms. Section\n4 Notice, at 3.\n5 Id.\n6 Response, at 9-10.\n7 Id., at 9.\n8 Id., at 10.\n9 Pipeline Safety Violation Report (on file with PHMSA), at 54.\n10 Response, at 9.\n\n\n\nCPF No. 3-2020-1008\nPage 5\n8 of the Plan, Alarm System Review, states that the monthly alarm “review currently consists of\nan excel report which draws data from SCADA reports. The SCADA reports are uploaded into a\nfolder on SharePoint each month and the alarm reports are linked to display the data from these\nreports.”11 This section states “the categories that are included in the review” are: point-to-\npoint, current configuration error, out-of-service, all monthly alarms, alarm limit changes, user\ndisabled, bypassed, and top alarms.12 Tallgrass confirms in its Response that alarms falling into\nthese eight categories are organized into tabs on an excel spreadsheet, which are analyzed during\nthe monthly reviews.13 Section 192.631(b)(2) requires operator's plans to include provisions to\nidentify points affecting safety that have generated false alarms at least once each calendar\nmonth, however, provisions directing personnel to identify points affecting safety that have\ngenerated any false alarms are demonstrably absent from Tallgrass’ Alarm Management Plan. In\nfact, the Plan does not include provisions for the identification of points affecting safety that\ngenerated any alarms during its monthly reviews. Finally, the reports analyzed by Tallgrass\npersonnel on a monthly basis do not include identification of points affecting safety or false\nalarms, so personnel would be unable to determine if any points affecting safety generated a false\nalarm when conducting its review of these reports.\nAccordingly, the evidence shows that Respondent failed to follow its own CRM Procedures for\nconducting monthly alarm reviews, including the identification of points affecting safety that\ngenerated false alarms. Further, the evidence shows Respondent’s alternative Alarm\nManagement Plan does not include provisions to identify points affecting safety at all, including\nthose that have generated false alarms.\nRespondent makes several arguments that are not persuasive. First, Respondent states it is not\nrequired to designate alarms as “false” in its monthly reports because the regulations do not\nprescribe a method for identifying “false” alarms. Section 192.631(e)(2) requires each operator\nto have and follow a written alarm management plan that includes provisions to, among other\nthings, identify points affecting safety that have generated false alarms. The allegation of\nviolation here is not related to Tallgrass’ methodology for identifying “false” alarms. Rather, the\nallegation is that Tallgrass failed to identify points affecting safety that generated false alarms in\naccordance with its own CRM Procedures. Further, Tallgrass already determined a methodology\nfor identifying alarms as “false.” Section 6 of the Plan, titled, Alarm System Performance,\nincludes a subsection titled, False or Malfunctioning Alarms. This section states:\nA false or malfunctioning alarm is any alarm that is presented to the Controller that does\nnot accurately reflect the actual operational parameter or condition, or an alarm that can\nmislead a Controller to believe a condition exists, but does not exist… All false or\nmalfunctioning alarms that are not generated during testing or scheduled maintenance are\nreported to the [Operations Control Center] management team via the SharePoint log by\nselecting the “alarm malfunction” category. Alarm malfunctions reported to the\n11 Id., at 39.\n12 Id., at 39-40.\n13 Id., at 9-10.\n\n\n\nCPF No. 3-2020-1008\nPage 6\n[Operations Control Center] management will be handled and corrected as soon as\npossible.\nFurther, section 9 of the Alarm Management Plan, Roles and Responsibilities, states that\ncontrollers must, “[p]rovide feedback as to validity of alarms ([l]og entry),” including “reporting\nfalse alarms, inaccurate alarms, [m]alfunctioning or problem alarms.”14\nBased on Tallgrass’ Alarm Management Plan, Tallgrass requires controllers to analyze the\nvalidity of alarms and document any “false,” “malfunctioning,” “inaccurate,” and “problem”\nalarms that are identified. Specifically, the Plan requires that controllers report all “false” or\n“malfunctioning” alarms not generated during testing or maintenance activities to management\nvia a SharePoint site log under an “alarm malfunction” designation. The monthly review process\nof alarms that is included in the Alarm Management Plan, however, does not require a review of\nthis data on a monthly basis. As explained above, the Plan states that monthly reviews include\nanalysis of the point-to-point, current configuration error, out-of-service, all monthly alarms,\nalarm limit changes, user disabled, bypassed, and top alarms categories, but it does not include a\ncategory for “false” or “malfunctioning” alarms. Tallgrass admits it “doesn’t draw distinctions\nin its monthly alarm reports between actual and false alarms,” despite controllers documenting\nfalse alarms as they are identified.15 It is clear from the evidence that Tallgrass’ current process\nfails to include identification of points affecting safety that generated false alarms in accordance\nwith its CRM Procedures despite its own prescribed methodology for identifying false alarms.\nThe fact that the operator defined which alarms would be designated as false rather than the\ndefinition being prescribed in the regulations had no bearing on Respondent’s failure to follow\nits own CRM Procedures.\nNext, Respondent argues that § 192.631(e)(2) does not require any “review” or “analysis” of the\nfalse alarms, only that the points affecting safety that generated false alarms are “identified.”\nThis argument is inconsequential because Respondent failed to identify at least once each\ncalendar month points affecting safety that have generated false alarms. Tallgrass’ CRM\nProcedures further require personnel to conduct monthly “reviews” of their alarm system. The\nProcedures state, “[t]he alarm system will be reviewed monthly by the Manager and his/her\ndesignee to identify and address safety-related points that have been taken off-scan, have manual\nvalues or have had false alarms” (emphasis added).16 The allegation in the Notice is that\nTallgrass failed to follow its own CRM Procedures, which require the review of alarms to\ndetermine or identify if any points affecting safety are generating such alarms. Further, the\nprocess Tallgrass describes in its Response does not actually include identification of points that\naffect safety that generated any alarms, in violation of § 192.631(e)(2). Again, the Respondent\nfailed to follow its own Procedures, because it neither “reviewed” its alarm system nor\n“identified and addressed” certain safety-related points as required.\n14 Id., at 42.\n15 Id., at 9.\n16 Violation Report, at 54.\n\n\n\nCPF No. 3-2020-1008\nPage 7\nTallgrass next argues that the regulations do not require that all alarms be designated as “false”\nor “actual,” and that if PHMSA interprets § 192.631(e)(2) to include such a requirement,\nTallgrass lacked fair notice of that interpretation. That question is not at issue here because\nTallgrass admits it did not analyze any false alarms during its monthly review process.17 The\nregulation as well as Respondent’s own CRM Procedures, however, clearly require at least some\nanalysis of false alarms so that any points affecting safety that generated those alarms could be\nidentified. As explained above, spreadsheets included in the Violation Report and with the\nResponse show several categories of alarms are evaluated by Tallgrass personnel during monthly\nreviews, however, the spreadsheets do not include “false,” or “malfunctioning” alarms. Without\nany indication of which alarms may be “false,” Respondent would not be able to identify points\naffecting safety that generated those alarms, as required by the § 192.631(e)(2) or the CRM\nProcedures. Further, there is no identification of points affecting safety related to any of the\nalarms reviewed by Tallgrass, meaning it would be impossible for personnel to identify any\npoints affecting safety that generated any alarms. As described in detail above, it is clear from\nthe evidence, including Respondent’s own admissions, that it does not follow its own CRM\nProcedures in conducting monthly alarm reviews by failing to review the information necessary\nto “identify and address safety related points that … had false alarms.”18\nFinally, Tallgrass states that by reviewing all alarms every month it is reviewing false alarms,\npractically speaking. I do not find this argument persuasive. The regulation requires focused\nattention to the points affecting safety that generated false alarms, so a review of all alarms\nwithout any way of identifying which are false would render it impossible to then identify a point\naffecting safety that generated the specific type of alarm pinpointed by § 192.631(e)(2), a false\nalarm. Moreover, the evidence in the record does not show that Respondent’s review of all\nalarms resulted in the appropriate monthly identification of points affecting safety that generated\nfalse alarms.\nAccordingly, after considering all of the evidence and the legal issues presented, I find that\nRespondent violated 49 C.F.R. § 192.631(e)(2) by failing have and follow a plan that had\nprovisions to identify at least once each calendar month points affecting safety that have been\ntaken off scan in the SCADA host, have had alarms inhibited, generated false alarms, or that\nhave had forced or manual values for periods of time exceeding that required for associated\nmaintenance or operating activities\nItem 4: The Notice alleged that Respondent violated 49 C.F.R. § 192.631(j)(1), which states:\n§ 192.631 Control room management.\n(a) …\n(j) Compliance and deviations. An operator must maintain for review\nduring inspection:\n(1) Records that demonstrate compliance with the requirements of this\nsection;\n17 Response, at 9.\n18 Violation Report, at 54.\n\n\n\nCPF No. 3-2020-1008\nPage 8\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.631(j)(1) by failing to maintain for\nreview records that demonstrate compliance with the requirements of § 192.631. Specifically,\nthe Notice alleged that Tallgrass failed to maintain records demonstrating compliance with the\nrequirement at § 192.631(e)(2) to perform monthly reviews of points affecting safety that have\nbeen taken off scan during the year 2015.\nIn its Response, Tallgrass did not contest this violation, but did request that PHMSA reduce the\nproposed civil penalty for this item.\nAccordingly, I find that Respondent violated 49 C.F.R. § 192.631(j)(1) by failing to maintain for\nreview records that demonstrate compliance with the requirements of § 192.631. Respondent’s\narguments regarding the proposed civil penalty are addressed in full in the “Assessment of\nPenalty” section below.\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.19\nIn determining the amount of a civil penalty under 49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I\nmust 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; any effect that the penalty may have on its ability to continue\ndoing business; the good faith of Respondent in attempting to comply with the pipeline safety\nregulations; and self-disclosure or actions to correct a violation prior to discovery by PHMSA.\nIn addition, I may consider the economic benefit gained from the violation without any reduction\nbecause of subsequent damages, and such other matters as justice may require. The Notice\nproposed a total civil penalty of $86,700 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $19,000 for Respondent’s violation of 49 C.F.R.\n§ 192.631(c)(3), for failing to test and verify an internal communication plan to provide adequate\nmeans for manual operation of the pipeline safely, at least once each calendar year, but at\nintervals not to exceed 15 months. Respondent does not contest the allegation of violation but\nargues the penalty should be reduced based on the culpability penalty assessment criterion\nbecause the company discovered and corrected the violation before it was discovered by\nPHMSA. Respondent also argues that based on PHMSA’s Pipeline Safety Enforcement\nProcedures (Enforcement Procedures)20 and the Department of Transportation’s regulations in 49\n19 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223.\n20 PHMSA, Pipeline Safety Enforcement Procedures, at § 3.1.1.4 (Sept. 15, 2020), available at\nhttps://www.phmsa.dot.gov/pipeline/enforcement/pipeline-enforcement-procedures.\n\n\n\nCPF No. 3-2020-1008\nPage 9\nCFR Part 5, PHMSA should further reduce the penalty assessment.\nHaving considered the arguments, while I agree with Respondent that finding and correcting a\nviolation prior to discovery by PHMSA could warrant assessing a credit under the culpability\nassessment criterion, in this case Tallgrass did not correct the violation before it was discovered\nby PHMSA.21 Tallgrass states that it tested its internal communication plan annually in 2015 and\n2016, but discovered on September 12, 2017, that there was no internal “task item” directing\nTallgrass personnel to test the communication plan in 2017.22 Upon making this discovery,\nTallgrass personnel created a “task item” to complete a communication test in August 2018, and\nconducted the test at that time in compliance with the annual requirement for the year 2018.23\nTallgrass, however, took no action to conduct a test to satisfy the requirement for the calendar\nyear 2017. Had the operator conducted a test to satisfy the 2017 interval, even if was not able to\nconduct the test until early 2018 due to the discovery of the issue in September of 2017,\nTallgrass would have shown documented action to correct the violation for calendar year 2017\nrequirement. Instead, the operator simply skipped the 2017 test and resumed testing in August\n2018. In other words, in the five years from 2015 to 2019, only four tests were completed, rather\nthan the five that were required. Respondent’s compliance with the regulation in 2018 and 2019\ndoes not amount to a correction of its violation for failing to conduct the test in 2017.\nWith regard to Respondent’s additional arguments, the purpose of PHMSA’s Enforcement\nProcedures is to provide PHMSA personnel with guidance on when to select different\nenforcement tools and to improve PHMSA’s consistency in implementing the pipeline\nenforcement program. The Enforcement Procedures do not bind PHMSA to any particular\ncourse of action and do not mandate that PHMSA consider any penalty assessment criteria other\nthan those required by statute and regulation.24 Further, the provisions of 49 CFR Part 5 cited by\nRespondent have been rescinded. Even before they were rescinded, they did not create any right\nor benefit, substantive or procedural, enforceable at law or in equity to any party.25 Accordingly,\nneither the Enforcement Procedures nor the Part 5 regulations require a reduction in the civil\npenalty.\nBased upon the foregoing, I assess Respondent a civil penalty of $19,000 for violation of 49\nC.F.R. § 192.631(c)(3).\nItem 2: The Notice proposed a civil penalty of $19,600 for Respondent’s violation of 49 C.F.R.\n§ 192.631(d)(2) and (3), for failing to educate controllers in fatigue mitigation strategies and how\noff-duty activities contribute to fatigue and by failing to train controllers to recognize the effects\n21 In its Recommendation, the Region suggested that a credit under culpability is only appropriate when an operator\n“self-reports” a violation, but the Violation Report, at page 9, indicates a credit may be provided where “the operator\ntook documented action to address the cause of the non-compliance . . . before PHMSA learned of the violation.”\n22 Response, at 2.\n23 Id.\n24 49 U.S.C. 60122; 49 CFR § 190.225.\n25 See Enforcement Procedures, Section 3, page 1; 86 Fed. Reg. 17,292 (Apr. 2, 2021); and 49 CFR § 5.111 (2020).\n\n\n\nCPF No. 3-2020-1008\nPage 10\nof fatigue. Respondent argues the penalty should be reduced based on the gravity penalty\nassessment criterion because it presented evidence with its Response that there was only one\ninstance of violation, rather than three instances of violation as alleged in the Notice.\nRespondent also requests a reduction in the penalty based on the culpability penalty assessment\ncriterion because it discovered and corrected the violation before it was discovered by PHMSA.\nRespondent again argues that based on the Enforcement Procedures and the Department of\nTransportation’s regulations in 49 CFR Part 5, PHMSA should further reduce the penalty\nassessment.\nAs explained in more detail above, the evidence provided with the Response confirms that two of\nthe three controllers received fatigue mitigation training within the required 15-month interval.\nBased on this evidence, the number of instances of violation for this Item is reduced from three\nto one. The gravity penalty assessment criterion has been adjusted accordingly, resulting in a\nreduced penalty.\nTallgrass admits that one controller did not receive fatigue mitigation training within the required\n15-month interval, and the evidence submitted with the Response shows the controller completed\ntraining three months following the deadline for compliance. The issue was discovered and\ncorrected prior to PHMSA’s inspection. Accordingly, the record reflects that Tallgrass took\ndocumented steps to correct the non-compliance with § 192.631(d)(2) and (3). Such action\nwarrants assessing a credit under the culpability penalty assessment criterion.\nFor the reasons discussed under Item 1, the penalty will not be further reduced based on the\nPHMSA Enforcement Procedures or the Part 5 regulations.\nBased upon the foregoing, I assess Respondent a reduced civil penalty of $0 for violation of 49\nC.F.R. § 192.631(d)(2) and (3).\nItem 3: The Notice proposed a civil penalty of $28,500 for Respondent’s violation of 49 C.F.R.\n§ 192.631(e)(2), for failing to have and follow a plan that includes provisions to identify at least\nonce each calendar month points affecting safety that have been taken off scan in the SCADA\nhost, have had alarms inhibited, generated false alarms, or that have had forced or manual values\nfor periods of time exceeding that required for associated maintenance or operating activities.\nRespondent requests PHMSA withdraw the allegation of violation and the associated penalty\narguing the company was not in violation of the regulation. For the reasons provided above, I\nfind that Respondent is in violation of Item 3. The Item and associated penalty, therefore, are not\nwithdrawn. Respondent made no additional arguments for a reduction in the penalty under the\nassessment criteria.\nBased upon the foregoing, I assess Respondent a civil penalty of $28,500 for violation of 49\nC.F.R. § 192.631(e)(2).\nItem 4: The Notice proposed a civil penalty of $19,600 for Respondent’s violation of 49 C.F.R.\n§ 192.631(j)(1), for failing to maintain for review records that demonstrate compliance with the\nrequirements of § 192.631(e)(2). Respondent argues the penalty should be reduced based on the\nculpability, gravity, and good faith penalty assessment criteria. Respondent argues it found and\n\n\n\nCPF No. 3-2020-1008\nPage 11\ncorrected the violation prior to discovery of the violation by PHMSA so it should receive credit\nunder the culpability criterion. Respondent also argues for a reduction in the penalty based on\nthe gravity criterion since it was able to find and submit two of the missing records. Respondent\nrequests that the good faith credit be applied because it acted in good faith in attempting to\ncomply with the regulations. Respondent again argues that based on the Enforcement\nProcedures and the Department of Transportation’s regulations in 49 CFR Part 5, PHMSA\nshould further reduce the penalty assessment. PHMSA’s Central Region agrees with Tallgrass\nthat the instances of violation should be reduced from 13 to 11 based on the evidence submitted\nwith the Response.\nRespondent argues a reduction based on the culpability criterion is appropriate because it found\nand corrected the violation prior to discovery of the violation by PHMSA. While Tallgrass states\nit attempted to correct the violation, the company admits it was not able to recover 11 of the 13\nmissing records, so it cannot be concluded that the violation was corrected. A reduction in the\ninstances of violation is appropriate, however, because Tallgrass did recover two of the missing\nrecords from August and December of 2015. Accordingly, the instances of violation of this Item\nis reduced from 13 to 11 under the gravity assessment criterion, but no credit is awarded under\nthe culpability assessment criterion.\nWith respect to good faith, Tallgrass states that several of the records of its monthly SCADA\nsystem reviews from 2015 “were lost due to an internal software migration issue” that occurred\nwhile transitioning between SCADA and records management systems. During the inspection\nand in its Response, Tallgrass stated it created and stored the records at issue in an attempt to\npreserve them during the transition between systems, but a technical error resulted in the loss of\nthe records.26 I have considered Respondent’s assertion, but find a good faith credit is not\nappropriate in this case. First, Respondent’s assertion that it performed the monthly review of\npoints affecting safety and created the required records in the first place has already been\nfactored into the civil penalty under the “nature” criterion, resulting in a reduced proposed\npenalty amount for a “records” violation. Second, Respondent did not provide evidence\ndemonstrating what actions it took to ensure compliance by maintaining the records during the\ntransition.27 Taking appropriate action, such as by backing up records prior to upgrading or\nmaking other changes in electronic recordkeeping systems, would be expected of operators in\norder to preserve records required to be maintained by the code. The loss of records was an\nunfortunate, but avoidable event. Finally, Respondent’s efforts to recover the records and to\nimprove its own recordkeeping processes to ensure future compliance have already been\nconsidered and found not to justify a penalty reduction, with the exception of the two records\nthat were eventually located. Accordingly, I find a good faith credit is not warranted.\nFor the reasons discussed under Item 1, the penalty will not be reduced based on the PHMSA\nEnforcement Procedures or the Part 5 regulations.\n26 Violation Report, at 25; Response, at 13.\n27 See In the Matter of White Cliffs Pipeline, LLC, CPF No. 3-2011-5012, 2013 WL 1247518, at *5 (Feb. 5, 2013)\n(determining the good faith factor did not apply where there was no evidence demonstrating what actions the\noperator took to maintain qualification test records).\n\n\n\nCPF No. 3-2020-1008\nPage 12\nBased upon the foregoing, I assess Respondent a reduced civil penalty of $19,000 for violation\nof 49 C.F.R. § 192.631(j)(1).\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 $66,500.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations (49\nC.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, 6500 S MacArthur Blvd, Oklahoma City, Oklahoma 79169.\nThe Financial Operations Division telephone number is (405) 954-8845.\nFailure to pay the $66,500 civil penalty will result in accrual of interest at the current annual rate\nin accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 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.\nUnder 49 C.F.R. § 190.243, Respondent may submit a Petition for Reconsideration of this Final\nOrder to the Associate Administrator, Office of Pipeline Safety, PHMSA, 1200 New Jersey\nAvenue, SE, East Building, 2nd Floor, Washington, DC 20590, with a copy sent to the Office of\nChief Counsel, PHMSA, at the same address, no later than 20 days after receipt of service of the\nFinal Order by Respondent. Any petition submitted must contain a brief statement of the issue(s)\nand meet all other requirements of 49 C.F.R. § 190.243. The filing of a petition automatically\nstays the payment of any civil penalty assessed. The other terms of the order, including any\ncorrective action, remain in effect unless the Associate Administrator, upon request, grants a\nstay. If Respondent submits payment of the civil penalty, the Final Order becomes the final\nadministrative decision and the right to petition for reconsideration is waived.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nJuly 2, 2021\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":38929}