{"operation":"document","citation":"CPF 32021073NOPV","title":"GULF SOUTH PIPELINE COMPANY, LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2021-12-22","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.201(a)(2)(i), 192.605(b)(8), 192.706(a), 192.947(d).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-32021073nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-32021073nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-32021073nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/32021073NOPV","body":"Notice of Probable Violation involving GULF SOUTH PIPELINE COMPANY, LLC. PHMSA's enforcement data identifies the cited regulations as 192.201(a)(2)(i),  192.605(b)(8),  192.706(a),  192.947(d). The case was opened on 2021-12-22 and is reported as closed as of 2023-05-22. Proposed civil penalty: $131,800. Assessed civil penalty: $131,800. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n32021073NOPV_Closure Letter_05222023_(20-173072).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021073NOPV/32021073NOPV_Closure%20Letter_05222023_(20-173072).pdf\n\n32021073NOPV_Closure Letter_05222023_(20-173072)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021073NOPV/32021073NOPV_Closure%20Letter_05222023_(20-173072)_text.pdf\n\n32021073NOPV_Closure Letter_12122022_(20-173072).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021073NOPV/32021073NOPV_Closure%20Letter_12122022_(20-173072).pdf\n\n32021073NOPV_Closure Letter_12122022_(20-173072)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021073NOPV/32021073NOPV_Closure%20Letter_12122022_(20-173072)_text.pdf\n\n32021073NOPV_Final Order_11102022_(20-173072).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021073NOPV/32021073NOPV_Final%20Order_11102022_(20-173072).pdf\n\n32021073NOPV_Final Order_11102022_(20-173072)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021073NOPV/32021073NOPV_Final%20Order_11102022_(20-173072)_text.pdf\n\n32021073NOPV_Operator Response to Notice_02042022_(20-173072).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021073NOPV/32021073NOPV_Operator%20Response%20to%20Notice_02042022_(20-173072).pdf\n\n32021073NOPV_PCP PCO_12222021_(20-173072).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021073NOPV/32021073NOPV_PCP%20PCO_12222021_(20-173072).pdf\n\n32021073NOPV_PCP PCO_12222021_(20-173072)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021073NOPV/32021073NOPV_PCP%20PCO_12222021_(20-173072)_text.pdf\n\n32021073NOPV_Region Requests Compliance Reopen Case_01172023_(20-173072).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021073NOPV/32021073NOPV_Region%20Requests%20Compliance%20Reopen%20Case_01172023_(20-173072).pdf\n\n32021073NOPV_Region Requests Compliance Reopen Case_01172023_(20-173072)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32021073NOPV/32021073NOPV_Region%20Requests%20Compliance%20Reopen%20Case_01172023_(20-173072)_text.pdf\n\n32021073NOPV_Final Order_11102022_(20-173072)_text.pdf\n\nNovember 10, 2022\nVIA ELECTRONIC MAIL TO: stan.horton@bwpipelines.com\nMr. Stanley C. Horton\nPresident and Chief Executive Officer\nBoardwalk Pipeline Partners, LP\n9 Greenway Plaza, Suite 2800\nHouston, Texas 77066\nRe: CPF No. 3-2021-073-NOPV\nDear Mr. Horton:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation, assesses a civil penalty of $131,800, and specifies actions that need to be taken by your\nsubsidiary, Gulf South Pipeline Company, LLC, to comply with the pipeline safety regulations.\nThe penalty payment terms are set forth in the Final Order. When the civil penalty has been paid\nand the terms of the compliance order completed, as determined by the Director, Central Region,\nthis enforcement action will be closed. Service of the Final Order by e-mail is effective upon the\ndate of transmission and acknowledgement of receipt as provided 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\nMr. Tony G. Rizk, Vice President, Technical Services, Boardwalk Pipeline Partners, LP,\ntony.rizk@bwpipelines.com\nMs. Tina Baker, Manager, Compliance Services, Boardwalk Pipeline Partners, LP,\ntina.baker@bwpipelines.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 )\nGulf South Pipeline Company, LLC, ) CPF No. 3-2021-073-NOPV\na subsidiary of Boardwalk Pipeline )\nPartners, LP, )\n)\n)\n)\nRespondent. )\n__________________________________________)\nFINAL ORDER\nFrom February 5, 2020, through February 9, 2021, pursuant to 49 U.S.C. § 60117, a\nrepresentative 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 Gulf South Pipeline Company, LLC’s (Gulf South or Respondent) in Louisiana and\nTexas. Gulf South is a subsidiary of Boardwalk Pipeline Partners, LP.1 Gulf South has\napproximately 7,500 miles of pipeline that transport natural gas from supply areas in Oklahoma,\nTexas, Louisiana, Mississippi, and the Gulf of Mexico, and indirectly from the Appalachian\nRegion, to markets in the South Central and Southeastern United States.2\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated December 22, 2021, 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 Gulf South had violated 49 C.F.R. §§ 192.201(a)(2)(i), 192.605(b)(8) and\n192.706(a), proposed assessing a civil penalty of $131,800 for the alleged violations, and\nproposed ordering Respondent to take certain measures to correct the alleged violations. The\nNotice also included an additional warning item pursuant to 49 C.F.R. § 190.205, which warned\nthe operator to correct the probable violation or face possible future enforcement action.\nAfter requesting and receiving an extension of time to respond, Gulf South responded to the\nNotice by letter dated February 4, 2022 (Response). Gulf South contested two of the three\n1 Boardwalk Pipelines Website, About Us- Subsidiaries, https://www.gulfsouthpl.com/our-business/default.aspx,\n(last accessed October 4, 2022).\n2 Boardwalk Pipelines Website, Gulf South Pipeline Company, LLC, Who We Are,\nhttps://www.gulfsouthpl.com/about-us/subsidiaries/gulf-south-pipeline-company-lp/default.aspx (last accessed\nOctober 4, 2022).\n\n\n\nallegations, requested that the proposed civil penalty be eliminated, and contested part of the\nproposed compliance order. Respondent did not request a hearing and therefore has waived its\nright to one.\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. § 192.201(a)(2)(i), which states:\n§ 192.201 Required capacity of pressure relieving and limiting stations.\n(a) Each pressure relief station or pressure limiting station or group of\nthose stations installed to protect a pipeline must have enough capacity, and\nmust be set to operate, to insure the following:\n(1)….\n(2) In pipelines other than a low pressure distribution system:\n(i) If the maximum allowable operating pressure is 60 p.s.i. (414 kPa)\ngage or more, the pressure may not exceed the maximum allowable operating\npressure plus 10 percent, or the pressure that produces a hoop stress of 75\npercent of SMYS, whichever is lower;…\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.201(a)(2)(i) by failing to set its\npressure limiting devices to operate at a pressure that does not exceed the maximum allowable\noperating pressure (MAOP) plus 10 percent. Specifically, the Notice alleged that Gulf South\nprovided calculations showing that the overpressure set point at the Gary meter station was 128\npercent of MAOP.\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. § 192.201(a)(2)(i) by failing to set its\npressure limiting devices to operate a pressure that does not exceed the MAOP plus 10 percent.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 192.605(b)(8), which states:\n§ 192.605 Procedural manual for operations, maintenance, and\nemergencies.\n(a) ….\n(b) Maintenance and normal operations. The manual required by\nparagraph (a) of this section must include procedures for the following, if\napplicable, to provide safety during maintenance and operations.\n(1) ….\n(8) Periodically reviewing the work done by operator personnel to\ndetermine the effectiveness and adequacy of the procedures used in normal\noperation and maintenance and modifying the procedures when deficiencies\nare found.\n\n\n\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.605(b)(8) by failing to periodically\nreview the work done by operator personnel to determine the effectiveness and adequacy of the\nprocedures used in normal operation and maintenance and modifying the procedures when\ndeficiencies are found. Specifically, the Notice alleged that when PHMSA requested\ndocumentation of such reviews, Respondent provided Gulf South’s Form 1000-20: Compliance\nManual Effectiveness Review, however, the forms for 2017, 2018, and 2019 failed to document\nany assessment of work performed as part of its operations and maintenance procedures - O&M\nSection 1010, General Procedures (Section 1010). Therefore, the Notice alleged, Gulf South\nwas unable to present information showing that it had periodically reviewed its procedures for\neffectiveness based on the work performed by its personnel.\nIn its Response, Gulf South contested the allegation and contended that OPS failed to meet its\nburden of proof because “the Notice does not set forth the facts necessary to sustain a probable\nviolation actually occurred.”3 Specifically, Gulf South argued the Notice relies on the wrong\nform. Respondent noted OPS relies on Form 1000-20: Compliance Manual Effectiveness Review\nto document noncompliance. Respondent indicated the form it actually uses to document\nchanges to procedures based on a review of work done by operator personnel, in accordance with\n§ 192.605(b)(8), is Form 1000-10: Document Change Request Form.\n4\nGulf South explained that the purpose of the form cited in the Notice, Form 1000-20, is to\ndocument compliance with the requirement in § 192.605(a) to review procedures annually, not to\nexceed 15 months, but this form is not used to document compliance with § 192.605(a)(8).\nRather, Gulf South explained, its procedures at O&M Section 1010 and O&M Section 1020\nrequire use of Form 1000-10 to document changes to procedures based on a review of work done\nby operator personnel to determine the effectiveness and adequacy of the procedures. Since the\nNotice referenced the wrong form, Gulf South contended, the Notice failed to present sufficient\nfacts to prove a violation and Item 2 must be withdrawn.\nAnalysis\nSection 192.605(b)(8) requires operators to have and follow a procedural manual for operations,\nmaintenance, and emergencies, which includes procedures for periodically reviewing the work\ndone by operator personnel to determine the effectiveness, and adequacy of the procedures used\nin normal operation and maintenance and modifying the procedures when deficiencies are found.\nAs Respondent noted in its Response, OPS has the burden of proving a violation. Having\nreviewed the evidence, I find OPS has carried that burden.\nDuring the inspection, OPS requested documentation from Respondent showing the operator had\nperiodically reviewed work done by personnel to determine the effectiveness and adequacy of its\nprocedures as required by § 192.605(b)(8). In response to this request, Respondent provided\nForms 1000-20 from 2017, 2018, and 2019. It is undisputed such records failed to document the\nassessment of work require by § 192.605(b)(8). Absent evidence to the contrary, Respondent’s\n3 Gulf South Response, at 7.\n4 Id.\n\n\n\ninability to provide records during the inspection showing it periodically reviewed work done by\noperator personnel to determine the effectiveness and adequacy of its procedures is sufficient to\nprove a violation.\nWhile Respondent contended in its Response that the wrong records were provided to OPS\nduring the inspection, a review of Gulf South’s Response fails to uncover any additional records\npurporting to show the operator conducted reviews required by § 192.605(b)(8). Respondent’s\ncontention that it uses a different form than the one provided to OPS during the inspection does\nnot on its own rebut the evidence that Respondent failed to comply with § 192.605(b)(8).\nRespondent has not provided applicable records, either at the time of the inspection when they\nwere requested or in response to the Notice, that purport to demonstrate compliance.\nAccordingly, after considering all of the evidence in the record, I find Respondent violated 49\nC.F.R. § 192.605(b)(8) by failing to periodically review the work done by operator personnel to\ndetermine the effectiveness and adequacy of the procedures used in normal operation and\nmaintenance and modifying the procedures when deficiencies are found.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 192.706(a), which states:\n§ 192.706 Transmission lines: Leakage surveys.\nLeakage surveys of a transmission line must be conducted at intervals\nnot exceeding 15 months, but at least once each calendar year. However, in\nthe case of a transmission line which transports gas in conformity with\n§192.625 without an odor or odorant, leakage surveys using leak detector\nequipment must be conducted-\n(a) In Class 3 locations, at intervals not exceeding 7 ½ months, but at\nleast twice each calendar year;\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.706(a) by failing to conduct\nleakage surveys on Class 3 transmission lines that transport gas without an odor or odorant using\nleak detector equipment, at intervals not exceeding 7 ½ months, but at least twice each calendar\nyear. Specifically, the Notice alleged that Gulf South used three leak detectors, in four locations,\nthat were not designed for detecting leaks from underground pipe. The Notice stated that Gulf\nSouth used the Bacharach Leakator 10, TIF 8800X, and Sensit TKX leak detectors, in Westlake,\nWest Monroe, Sterlington, and Lafayette, Louisiana from 2017 to 2020. The Notice alleged that\nthe manufacturer design specifications indicated that the detectors were designed for detecting\nleaks in aboveground pipe. Therefore, the Notice alleged that Gulf South’s leakage surveys at\nthose locations were inadequate and not in compliance with § 192.706(a).\nIn its Response, Gulf South argued that § 192.706(a) is a performance-based regulation that\nrequires the use of leak detector equipment but does not specify any criteria for that equipment.5\nGulf South argued that the choice of equipment is up to the discretion and engineering judgment\n5 Gulf South Response, at 8.\n\n\n\nof the operator.6 Gulf South stated that the Notice and the Violation Report provided no\ntechnical analysis or data supporting their statements that its leak detectors were improper or\nineffective.7 Specifically, Gulf South argued that the Violation Report did “not contain the\nmanufacturer design specifications, a ‘review of manufacturer design specifications,’ or the\nfindings of such a review.”8\nGulf South also argued that the Notice’s distinction between leak detectors for aboveground pipe\nand belowground pipe has no basis in the regulation, regulatory guidance, PHMSA case law or\nindustry literature.9 Gulf South explained that gas migrates up “through the ground cover”\nwhere it can be detected by “sight (because of dead vegetation or surface bubbling), sound, or a\nleak detection device.”10 Therefore, argued Gulf South, although its pipeline is buried below\nground, the equipment is held at ground level to detect if methane is reaching the surface.11 Gulf\nSouth concluded by asserting that OPS had not satisfied its burden of demonstrating a violation\nof § 192.706 because it had failed to provide any analysis supporting the allegation that the leak\ndetectors it used were improper or ineffective.\n12\nIn the Region Recommendation, OPS argued that the leak detectors used by Gulf South in four\nlocations were inadequate because they were not designed to detect gas from underground\npipelines. The Director provided a summary of the manufacturers’ design specifications from\nbrochures and instruction manuals. For the Bacharach Leakator 10, OPS explained the\ninstruction manual describes the device as an instrument suited for “heating service contractors,\nutility personnel, and other users who are interested in pinpointing gas leaks, and testing gas\nappliances in residential, commercial, and industrial installations.” OPS explained further that\nthe usage example in the operator’s manual was detecting a gas-air mixture from an unlit burner\nof a natural gas stove. OPS explained that the Leakator 10’s manual does not describe it as an\ninstrument suitable for underground pipelines, and the manual does not indicate it is meant for\nwalking or sweeping near the ground. Furthermore, OPS explained, the manual specifically\nstates the device is “not to be used in any application that is beyond its intended purpose or\nbeyond the scope of its specifications.”\nFor the TIF 8800X, OPS acknowledged that the brochure references underground utilities but\nprovided no guidance on how to do a walking survey. Moreover, OPS stated, the relevant\ntraining material and manual indicated that the primary use of the TIF 8800X was for detecting\n6 Id.\n7 Id.\n8 Id., internal quotation removed.\n9 Gulf South Response, at 9.\n10 Id.\n11 Id.\n12 Id.\n\n\n\ngas at appliances, meter sets, and other exposed sections of pipeline. For the Sensit TKX, OPS\nexplained that its brochure states it is “perfect for finding leaks along exposed pipe” but neither\nthe operating brochure nor its instruction manual state it is to be used for buried pipeline.\nAnalysis\nSection 192.706(a) requires leakage surveys on Class 3 transmission lines that transport gas\nwithout an odor or odorant using leak detector equipment, at intervals not exceeding 7 ½ months,\nbut at least twice each calendar year. When promulgating § 192.706, a number of commenters\nobjected to the mandated use of leak detector equipment, arguing that it would restrict the\nflexibility of operators when conducting leakage surveys and that other methods of surveys are\navailable, such as observing dead vegetation. PHMSA explained that such other methods are\n“not always effective.”13 In the absence of odorant, which allows for the early detection of leaks\nby smell, PHMSA noted that leakage surveys with leak detector equipment “provide the most\nsatisfactory means of protection.” 14 PHMSA further stated:\nGas detector surveys were proposed under § 192.706 to provide a compensatory\nmeasure of protection for the public where transmission lines carry unodorized gas\nin Class 3 and Class 4 locations and to provide added protection in Class 4 locations\neven when gas is odorized. In the opinion of OPS, to conduct leakage surveys\nwithout using detector equipment would not yield a level of safety comparable to\nthat provided by odorization of gas . . . .\nIn light of further comments, OPS wants to point out that neither § 192.705 nor\n§ 192.706 specifies how patrols or leakage surveys are to be accomplished. The\nrules are written in performance language. Thus, for example, both aerial patrols\nand aerial leakage surveys would be acceptable where they are appropriate and\neffective.\n15\nGulf South correctly notes that § 192.706(a) is a performance-based regulation. It does not\ndictate how every leakage survey must be accomplished or specify the models of equipment an\noperator must always use. However, the leakage survey must achieve the performance standard\nestablished by the regulation, that is, it must be capable of detecting leaks. As noted in the\npreamble to the final rule, the operator’s method for complying with the regulation must be\n“appropriate and effective.” In guidance, PHMSA has elaborated that leak detection surveys\nmust be performed utilizing commercially available and currently accepted industry leakage\nsurvey methods and equipment adequate to the purpose of identifying gas leaks.16 Though the\n13 40 Fed. Reg. 20279, 20281-82 (May 9, 1975).\n14 Id.\n15 Id. (emphasis added).\n16 Letter to Image Information Solutions, PI-09-0018, Interpretation Response | PHMSA\nhttps://www7.phmsa.dot.gov/regulations/title49/interp/PI-09-0018 (dot.gov) (last accessed October 4, 2022).\n\n\n\nguidance is not a binding regulation, the guidance provides notice to industry that operators must\nmeet the performance standard by using equipment that is appropriate for the survey method and\nthat is effective in identifying gas leaks during the survey.\n17\nHaving reviewed the entire case file, as well the brochures, data sheets, and user manuals for the\nleak detectors, I find that the equipment Gulf South used to conduct leakage surveys was\ninappropriate for the intended purpose of conducting leakage surveys of buried pipelines. All\nthree instruments are small hand-held devices equipped with flexible probes measuring only\nabout 14-inches to 20-inches in length. Devices such as the Bacharach Leakator 10, TIF 8800X,\nand Sensit TKX may be suitable for precise locating (or pinpointing) the location of a leak\nalready known to exist where a person can position the probe in close proximity to the source.\nThey are not suitable for surveying the right-of-way of a buried gas transmission line for the\npresence of leaks. As indicated by their design, and reinforced by their data sheets, brochures, or\nmanuals, these instruments are designed to access hard to reach places and find the exact source\nof a gas leak.18 For example, the Sensit TKX Instruction Manual presumes the user knows there\nis a leak and therefore, directs the user to “[a]pproach suspected leak areas with the sensor until\nthe tick begins to increase.”19 The TIF 8800X user manual also presumes the user is aware of the\nleak and thus instructs the user to “[s]earch the general area of the suspected leak.”20 Such\ndevices designed for pinpointing the exact source of a known leak are inappropriate for a gas\nleak survey of a transmission line where an instrument must traverse long distances at slow\nspeeds close to the ground surface.\n17 While Respondent argued industry literature does not distinguish between leak detectors for aboveground pipe\nand belowground pipe, PHMSA takes notice of American National Standards Institute’s (ANSI) Gas Piping\nTechnology Committee’s (GPTC) Guide for Transportation of Natural and other Gas by Pipeline: Minimum\nFederal Safety Standards, 2022 Edition (GPTC Guide), a common industry guide that offers leakage survey\nguidance to operators. PHMSA has not incorporated the GPTC Guide by reference in its regulations, but notes the\nindustry literature refutes Respondent’s assertion. For example, section 4.4, Leak surveys and test methods, of the\nGPTC Guide explains for “buried piping, sampling of the atmosphere should, where practical, take place as close to\nground surface as permitted by gas detector design, due to the potential for rapid diffusion of leaking gas to the\natmosphere.” In addition, “[t]he survey should be conducted at speeds slow enough to allow an adequate sample to\nbe continuously obtained by placement of equipment intakes over the most logical venting locations, giving\nconsideration to the location of gas facilities.” In recognition that a particular gas detection instrument may not be\nsuitable for every use, the GPTC Guide advises that when selecting a leak detection instrument the operator should\nconsider the different uses, such as: (i) leak survey; (ii) leak investigation (first response); (iii) leak classification\n(barholing); or (iv) pinpointing.\n18 The Bacharach Leakator® 10’s data sheet specifically notes that it “is an ideal instrument for pinpointing\ncombustible gas leaks…” Available at https://www.mybacharach.com/product/leakator-10-combustible-gas-leak-\ndetector/ (Last accessed October 4, 2022). See also, the Sensit TKX Quick Start Instructions which starts with the\nhint “[a]s you approach the source of the leak continue adjusting the wheel without moving the sensor head to a\nuniform tick sound until you locate the exact location of the leak.” Available at https://www.sensit-\ndirect.com/files/sensit-quick-start-guides/tkx.pdf (Last accessed October 4, 2022).\n19 Sensit TKX Instruction Manual, available at https://www.sensit-direct.com/pdfs/cache/www.SENSIT-\ndirect.com/902-00000-02/manual/902-00000-02-manual.pdf (Last accessed October 4, 2022).\n20 TIF 8800X User Manual, available at https://www.testequipmentdepot.com/robinair/pdf/tif8800x manual.pdf\n(Last accessed October 4, 2022).\n\n\n\nAccordingly, after considering all of the evidence in the record, I find Respondent violated 49\nC.F.R. § 192.706(a) by failing to conduct leakage surveys on Class 3 transmission lines that\ntransport gas without an odor or odorant using leak detector equipment, at intervals not\nexceeding 7 ½ months, but at least twice each calendar year.\nThe above 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.21\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 $131,800 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $32,100 for Respondent’s violation of 49 C.F.R.\n§ 192.201(a)(2)(i), for failing to set its pressure limiting devices to operate at a pressure that does\nnot exceed the MAOP plus 10 percent. In its Response, Gulf South argued that the proposed\ncivil penalty was unwarranted and requested that it be withdrawn. Quoting PHMSA’s Pipeline\nSafety Enforcement Procedures, Gulf South argued that the purpose of a civil penalty is to\n“reinforce the message of the Notice of Probable Violation, draw attention to the problem area,\nemphasize the need for lasting attention, and deter the respondent and other operators from\ncommitting future violations.” Gulf South argued that a civil penalty was unnecessary to\nadvance any of those objectives in this case. Gulf South contended that its policy of setting relief\nvalve set point pressures at MAOP plus five percent, a setting that is more conservative than\nallowed under the regulation and which creates a greater margin of safety, demonstrated its\nlongstanding commitment to safety. Gulf South noted that it accepted full responsibility for the\nviolation and promptly began implementing a comprehensive solution that involved reviewing\nand confirming the accuracy of relief valve set points at all pressure limiting stations in its\nsystem. Gulf South argued that the safety risk at pressure relieving station is not significant and\ntherefore, no risk is posed to facilities located outside of the station. Lastly, Gulf South argued\nthat PHMSA bears the burden of demonstrating that the proposed civil penalty is appropriate.\n21 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223.\n\n\n\nPHMSA’s decisions and selections regarding enforcement actions are discretionary and involve\ncomplex considerations made on a case-by-case basis.22 As the Respondent correctly notes, the\ncivil penalties serve many purposes, including but not limited to emphasizing the need for lasting\nattention, and deterring the respondent and other operators from committing future violations.\nTherefore, while I acknowledge Gulf South’s commitment to safety and its initiative in\ndeveloping a three-year program to confirm the accuracy of the relief valve set points at\napproximately 1200 other pressure limiting stations, I do not find that such corrective actions\nwarrant the withdrawal or reduction of the civil penalty for its failure to comply at the Gary\nmeter station, where the set point was well over the regularly limit. Regarding the nature and\ncircumstances of the violation, PHMSA noted in the Violation Report that the alleged violation\nrelated to Gulf South’s failure to set its pressure limiting devices to operate at a pressure that\ndoes not exceed the MAOP plus 10 percent and that the violation was discovered by PHMSA. It\nis uncontested that Gulf South failed to set its pressure limiting devices to operate at a pressure\nthat would not exceed MAOP plus 10 percent in the connecting pipe between the regulator and\nthe relief valve at its Gary meter station. It is also uncontested that this violation was discovered\nduring an inspection because of PHMSA’s request to review relief device set points for meter\nstations, including accurate calculation for relief capacity.\nRegarding gravity, PHMSA noted in the Violation Report that pipeline safety was minimally\naffected; therefore, the proposed civil penalty has already accounted for the fact that the safety\nrisk at the pressure relieving station was not significant. Regarding culpability and good faith,\nGulf South did not contest the violation and has thus acknowledged that it failed to comply with\nan applicable requirement of Part 192 and did not have a reasonable justification for its non-\ncompliance.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $32,100 for violation of 49 C.F.R. § 192.201(a)(2)(i).\nItem 3: The Notice proposed a civil penalty of $99,700 for Respondent’s alleged violation of 49\nC.F.R. § 192.706(a). In its Response, Gulf South argued that the civil penalty must be\nwithdrawn because OPS failed to identify specific locations where improper leak detection\nequipment was used. Gulf South contended that OPS speculated it had failed to comply with the\nregulation a minimum of twice a year, at the four locations identified in the Notice, for four\nyears, resulting in a total of 32 instances of violation. Noting that the Violation Report stated\n“[s]pecific locations of equipment used for individual patrols/surveys of Class 3 segments was\nnot provided by Gulf South,” Respondent averred that presuming 32 instances of violation was\nunsupported by evidence.\nIt is uncontested that Gulf South used the Bacharach Leakator 10, TIF 8800X, and Sensit TKX to\nconduct leak detection surveys in Westlake, West Monroe, Sterlington, and Lafayette, Louisiana\nfrom 2017-2020. I have found that those leak detectors are not appropriate for conducting the\n22 Pipeline Safety Enforcement Procedures, Section 3 at 1 (September 15, 2020)\nhttps://www.phmsa.dot.gov/pipeline/enforcement/section-3-selection-administrative-enforcement-actions (Last\naccessed October 4, 2022).\n\n\n\nrequired leak surveys. Identification of specific survey locations is unnecessary because each\nleak survey performed from 2017-2020 in Westlake, West Monroe, Sterlington, and Lafayette,\nLouisiana was not in compliance with § 192.706(a). Consequently, I find that the 32 instances of\nviolation is supported by the record. Regarding the nature and circumstances of the violation,\nPHMSA noted in the Violation Report that the alleged violation related to Gulf South’s conduct\nregarding leak detection surveys using inappropriate leak detector equipment and that the\nviolation was discovered by PHMSA. Regarding gravity, PHMSA noted in the Violation Report\nthat the violation did not occur within a HCA or “could affect” HCA. As Gulf South noted, it did\nnot provide specific locations that would have permitted OPS to determine if certain locations\nwere in a HCA or not. Therefore, I find that the gravity selection is supported by the evidence\nOPS collected. Regarding culpability and good faith, Gulf South failed to comply with an\napplicable requirement of Part 192 and did not have a reasonable justification for its non-\ncompliance.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $99,700 for violation of 49 C.F.R. § 192.706(a).\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 $131,800.\nPayment of the civil penalty must be made within 20 days after receipt of this Final Order.\nFederal regulations (49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer\nthrough the Federal Reserve Communications System (Fedwire), to the account of the U.S.\nTreasury. Detailed instructions are contained in the enclosure. Questions concerning wire\ntransfers should be directed to: Financial Operations Division (AMK-325), Federal Aviation\nAdministration, Mike Monroney Aeronautical Center, 6500 S MacArthur Blvd, Oklahoma City,\nOklahoma 79169. The Financial Operations Division telephone number is (405) 954-8845.\nFailure to pay the $131,800 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 district\ncourt of the United States.\nCOMPLIANCE ORDER\nThe Notice proposed a compliance order with respect to Items 1, 2, and 3 in the Notice for\nviolations of 49 C.F.R. §§ 192.201(a)(2)(i), 192.605(b)(8), and 192.706(a), respectively. Under\n49 U.S.C. § 60118(a), each person who engages in the transportation of gas or who owns or\noperates a pipeline facility is required to comply with the applicable safety standards established\nunder chapter 601.\nWith regard to Item 2 in the Notice for violation of § 192.605(b)(8), the Notice proposed\nordering Respondent to provide a written procedure to address the periodic review of work done\n\n\n\nto determine the effectiveness of its normal operations and maintenance procedures. Respondent\nargued these terms must be withdrawn because the Notice did not allege that Respondent failed\nto have adequate procedures.\nPursuant to 49 U.S.C. § 60118(b), PHMSA may order an operator to comply with the pipeline\nsafety regulations. In this case, PHMSA found Respondent violated § 192.605(b)(8).\nAccordingly, PHMSA may order Respondent to comply with that regulation. Section\n192.605(b)(8) requires operator to have and follow procedures for periodically reviewing the\nwork done by operator personnel to determine the effectiveness and adequacy of the procedures\nused in normal operation and maintenance and modifying the procedures when deficiencies are\nfound. Under such circumstances, I find it appropriate to order Respondent to take actions to\nensure that it has and follows procedures that comply with § 192.605(b)(8). This includes\nmaking sure Respondent’s procedures prescribe frequency and documentation requirements to\nensure not only that Respondent conducts reviews periodically as required but also documents\nthose reviews so that PHMSA can verify compliance. Therefore, Respondent must submit\nprocedures for complying with § 192.605(b)(8) as proposed in the Notice.\nWith regard to Item 3 in the Notice for violation of § 192.706(a), the Notice proposed ordering\nRespondent to perform an adequate leakage survey at all sites identified in the Notice and report\nthose results to the Director. Respondent argued that the terms must be withdrawn because OPS\nfailed to provide analysis supporting the allegation and therefore failed to meet its burden of\nproof. I have already found that the record supports a finding of violation because Respondent\nfailed to use the appropriate equipment to conduct its leak surveys. Therefore, Respondent must\nperform an adequate leak survey as proposed in the Notice.\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 § 192.201(a)(2)(i) (Item 1), Respondent must\ncontinue with the program already submitted to Central Region on June 8, 2020.\nQuarterly updates must be submitted to the Director until the program is\nsuccessfully completed.\n2. With respect to the violation of § 192.605(b)(8) (Item 2), Respondent must\nsubmit written procedures for periodically reviewing work done to determine the\neffectiveness of its normal operations and maintenance procedures. The\nprocedures must prescribe frequency and documentation requirements for a\ncomplete review of all normal maintenance and operations procedures within a\nreasonable time period. Respondent must submit the written procedures to the\nDirector within 90 days of the issuance of the Final Order and provide semi-\nannual reports to the Director on the results of the revised program until\ncompletion of the review of all procedures in the time prescribed by the\nprocedure.\n3. With respect to the violation of § 192.706(a) (Item 3), Respondent must, within\n90 days of receipt of the Final Order, perform an adequate leakage survey at all\n\n\n\nsites identified in the Notice and report the results to the Director. The report must\nspecifically include the grade of all leaks discovered by the survey.\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.\nPHMSA requests that Respondent maintain documentation of the safety improvement costs\nassociated with fulfilling this Compliance Order and submit the total to the Director. It is\nrequested that these costs be reported in two categories: (1) total cost associated with\npreparation/revision of plans, procedures, studies and analyses; and (2) total cost associated with\nreplacements, additions and other changes to pipeline infrastructure.\nFailure to comply with this Order may result in the administrative assessment of civil penalties\nnot to exceed $200,000, as adjusted for inflation (see 49 C.F.R. § 190.223), for each violation for\neach day the violation continues or in referral to the Attorney General for appropriate relief in a\ndistrict court of the United States.\nWARNING ITEM\nWith respect to Item 4, the Notice alleged a probable violation of Part 192, but identified it as a\nwarning item pursuant to § 190.205. The warning was for:\n49 C.F.R. § 192.947(d) (Item 4) ─ Respondent’s alleged failure to maintain, for\nthe useful life of the pipeline, documents to support any decision, analysis and\nprocess developed and used to implement and evaluate each element of the\nbaseline assessment plan and integrity management program.\nIf OPS finds a violation of this provision in a subsequent inspection, Respondent may be subject\nto future enforcement action.\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 Coun","truncated":true,"body_characters":43395}