{"operation":"document","citation":"CPF 420051015","title":"WEST TEXAS GAS INC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2005-09-12","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.805(b).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-420051015.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-420051015.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-420051015","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/420051015","body":"Notice of Probable Violation involving WEST TEXAS GAS INC. PHMSA's enforcement data identifies the cited regulation as 192.805(b). The case was opened on 2005-09-12 and is reported as closed as of 2008-04-22. Proposed civil penalty: $13,500. Assessed civil penalty: $13,500. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n420051015_Final Order_03312008.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420051015/420051015_Final%20Order_03312008.pdf\n\n420051015_final order_03312008_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420051015/420051015_final%20order_03312008_text.pdf\n\n420051015_final order_03312008_text.pdf\n\nO\nU S Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Ave 5 E\nWashtngten DC 20590\nVIA CERTIFIED MAIL — RETURN RECEIPT RE UES TED\nMr. Richard Hatchett\nVice President\nWest Texas Gas, Inc.\n211 North Colorado\nMidland, TX 79701-4607\nRe: CPF No. 4-2005-1015\nDear Mr, Hatchett:\nEnclosed is the Final Order issued m the above-referenced case. It makes findmgs of violation\nand assesses a civil penalty of $13, 500. The penalty payment terms are set forth in the Fmal\nOrder. This enforcement action closes automatically upon payment Your receipt of the Final\nOrder constitutes service 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: Sterling H. Smith, Esq.\n2900 Stratford Dr\nAustin, TX 78746-4629\n\n\n\nU. S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D. C. 20590\nIn the Matter of\nWest Texas Gas, Inc.\nRespondent\nCPF No. 4-2005-1015\n,\nFINAL ORDER\nOn August 25 and 26, 2004, pursuant to 49 U. S. C. $ 60117, representatives of the Pipeline and\nHazardous Materials Safety Administration, Office of Pipeline Safety (OPS), conducted an on-\nsite pipeline safety inspection of West Texas Gas, Inc, 's (Respondent's) operator qualification\n(OQ) program and records in Amarillo, Texas. Respondent operates natural gas pipelines,\nincluding gathering, transmission, and distribution lines in Texas, New Mexico and Oklahoma.\nAs a result of the inspection, the Director, Southwest Region, OPS, issued to Respondent, by\nletter dated September 12, 2005, 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 Respondent\nhad committed violations of 49 C. F. R. $ 192. 805 and proposed a civil penalty of $13, 500 for the\nalleged violations.\nRespondent responded to the Notice by letter dated October 14, 2005 (Response). Respondent\ncontested the allegations and requested a hearing. In accordance with 49 C, F. R. ) 190. 211, a\nhearing was held in Houston, Texas on May 25, 2006, with an attorney from the Office of Chief\nCounsel presiding. Respondent submitted a post-hearing brief (Brief) by letter dated June 23,\n2006.\nFINDINGS OF VIOLATION\nItem 1: The Notice alleged that Respondent violated 49 C. F. R. $ 192. 805(b), which states:\ng 192. S05 — Qualification program.\nEach operator shall have and follow a written qualification program. The\nprogram shall include provisions to. . .\n(b) Ensure through evaluation that individuals performing covered tasks\nare qualified. . . .\n' The Notice erroneously reported the dates of the inspection as August 25 and 26, 2003\n\n\n\ng 192. 801 — Scope.\n(a)\n(b) For the purpose of this subpart, a covered task is an activity, identified by\nthe operator, that:\n(1) Is performed on a pipeline facility;\n(2) Is an operations or maintenance task;\n(3) Is performed as a requirement of this part; and\n(4) Affects the operation or integrity of the pipeline.\ng 192. S03 — Definitions.\nAbnormal operating condition means a condition identified by the operator\nthat may indicate a malfunction of a component or deviation from normal\noperations. . . .\nEvaluation means a process, established and documented by the operator, to\ndetermine an individual's ability to perform a covered task. . . .\nqualified means that an individual has been evaluated and can;\n(a) Perform assigned covered tasks; and\n(b) Recognize and react to abnormal operating conditions.\nAs a general matter, Respondent contended in its Brief that OPS inspected the wrong OQ\nprogram. Respondent stated that seven months prior to the August 2004 inspection, Respondent\nimplemented a new OQ program, but that OPS inspected Respondent's prior program,\nRespondent did not present this argument in its initial Response or at the hearing, but raised it for\nthe first time in its Brief. Respondent did not provide any documentation to substantiate its\ncontention that a new program had been fully implemented at the time of the inspection in\nAugust 2004. To the contrary, OPS inspectors noted during the inspection that Respondent had\npurchased a new \"off-the-shelf' plan in late 2003 but had not completed efforts to adapt that\nprogram to Respondent's own procedures and practices. Since the new program was still under\ndevelopment at the time of the inspection, I find OPS inspected the correct program that\ngoverned Respondent's OQ efforts at that time.\nItem lA in the Notice alleged that Respondent violated 49 C. F, R. $ 192. 805(b), as quoted above,\nby failing to have and follow a written qualification program that complied with the regulation.\nSpecifically, the Notice alleged that Respondent's qualification program did not include\nprovisions to ensure through evaluation that individuals performing covered tasks could\nrecognize and react to all abnormal operating conditions (AOCs) associated with those tasks.\nThe Notice further alleged that Respondent's qualification program only identified \"generic\"\nAOCs, or those that might be encountered during the performance of a covered task generally,\nbut the program did not identify \"task-specific\" AOCs, i. e.\nabnormal conditions that are\n,\nassociated with specific covered tasks.\nAt the hearing, Respondent acknowledged that it had not correlated each covered task with a set\nof task-specific AOCs. Respondent contended at the hearing and in its Brief, however, that the\nregulation does not require the correlation of each covered task with a set of task-specific AOCs.\n\n\n\nRespondent cited OPS guidance FAQ 4. 3 in support of its contention that identification of task-\nspecific AOCs is optional,\nRead in its entirety, however, FAQ 4. 3 explains that \"[o]perators are expected to develop a\nthorough listing of AOCs, both task-specific and generic\" (emphasis added). The guidance\nftuther clarifies that the \"regulatory requirement [to evaluate an individual's ability to recognize\nand react to AOCs] applies to both task-specific and genenc AOCs. . .\n\" (emphasis added). The\nrequirement for operators to identify both task-specific and generic AOCs is consistent with the\ntext of the regulation and its stated purpose to ensure that individuals performmg covered tasks\ncan recognize and react to all AOCs that might reasonably be expected to be encountered dming\nthe performance of a covered task.\nThe evidence in the record shows that Respondent's written qualification program identified\ngeneric AOCs, but did not include provisions that identified task-specific AOCs for each covered\ntask. In addition, the list of covered tasks in Respondent's qualification program did not\nreference AOCs that were associated with those tasks, ' Accordingly, I find that Respondent\nviolated $ 192. 805(b) by failing to have and follow a written qualification program that included\nprovisions to ensure that individuals performing covered tasks could recognize and react to the\nfull range of AOCs associated with those tasks.\nItem 1B in the Notice alleged that Respondent violated 49 C. F. R. ) 192. 805(b), as quoted above,\nby failing to have and follow a written qualification program that included provisions to ensure\nthrough evaluation that individuals performing covered tasks were qualified. More specifically,\nthe Notice alleged that Respondent's qualification program did not include a process, established\nand documented by the operator, to determine whether an individual was able to recognize and\nreact to AOCs. The Notice alleged that Respondent qualified approximately 135 individuals\nbased on an evaluation of each individual's ability to perform covered tasks during on-the-job\ntraining, but without evaluating their ability to recognize and react to AOCs. The Notice also\nalleged that Respondent conceded during the August 2004 inspection that it did not use\nevaluation processes such as examinations or training to determine whether individuals were able\nto recognize and react to AOCs,\n' OPS provides operators with guidance information concerning the OQ regulations through public\nmeetings, an extensive OQ website, answers to frequently asked questions (FAQs), and inspection\nprotocols used by OPS in conducting OQ compliance inspections These guidance materials do not\nconstitute rules themselves but simply provide informal mformation to the regulated community about\nhow to implement their OQ programs in accordance with the applicable requirements of the pipelme\nsafety regulations. FAQs are located on the OQ website at htt // nmis hmsa dot. ov/o .\n' See also In the Matter of Geor ia-Pacific Crossett Pa er 0 erations, Final Order, CPF No. 2-2005-1007\n(Sept 1, 2005) (finding the pipeline operator had violated $ 192 805(b) when it conducted evaluations\nthat did not address AOCs genencally or by task)\n' Respondent's Brief, Exhibit B, June 23, 2006.\n' Respondent's Bnef, Exhibit A\n\n\n\nIn its Response and Brief, Respondent categorized Item 1B as a citation for failing to provide\ntraining. However, the allegation in the Notice was that Respondent violated ( 192. 805(b) by\nfailing to have and follow an established and documented evaluation process to determine if an\nindividual performing a covered task was able to recognize and react to AOCs. Although the\nNotice did reference Respondent's failure to provide AOC-specific training and examinations,\nthat was merely to document that Respondent did not utilize methods commonly used by other\noperators to comply with $ 192. 805(b).\nAt the hearing and in its written submissions, Respondent contended that it did evaluate each\nindividual's ability to recognize and react to AOCs. Respondent submitted an affidavit by its\nDirector of Regulatory Compliance, dated October 12, 2005, attesting that each qualified\nindividual \"was capable of performing the covered task and could recognize and react to\nabnormal operating conditions expected to be encountered. \" The Director stated that a manager\nwould make this determination based on a review of the individual's work performance history.\nAt the hearing, Respondent also explained that an assessment would be made based on an\nevaluator's personal experience with the individual during on-the-job training. By signing a\nqualification form, the evaluator would certify that the individual was able to recognize and react\nto AOCs.\nThe record shows Respondent's written OQ program documented the use of work performance\nhistory reviews and on-the-job training but not any method or standard for assessing an\nindividual's ability to recognize and react to AOCs. The process by which Respondent\nevaluated an individual's ability to recognize and react to AOCs involved certifications by an\nevaluator based solely on the evaluator's experience with the individual during on-the-job\ntraining but without any documented standard by which the assessment was made. Respondent's\nevaluation process also lacked established acceptance criteria to ensure consistent qualifications\nby evaluators, The qualification of individuals based solely on the impression of an evaluator,\nwithout any assessment standards or acceptance criteria, fails to comply with $ 192. 805(b)\nbecause the regulation requires an established and documented evaluation process to determine\nwhether an individual performing a covered task is able to recognize and react to AOCs.\nRespondent's qualification program did not include provisions to ensure that each qualified\nindividual was able to recognize and react to AOCs. Accordingly, I find Respondent violated\n$ 192. 805(b) by failing to have and follow a written qualification program with provisions to\nensure through evaluation that individuals performing covered tasks were qualified.\nThese findings of violation will be considered prior offenses in any subsequent enforcement\naction taken against Respondent.\n' Violation Report, Exhibit 1, Sept. 12, 2005 Pages 3-4 of Respondent's OQ plan describe the use of\nwork performance history review evaluations and on-the-job training, but do not include any standard for\nassessing someone's ability to recognize and react to AOCs\n\n\n\nASSESSMENT OF PENALTY\nUnder 49 U, S. C. ) 60122, Respondent is subject to a civil penalty not to exceed $100, 000 per\nviolation for each day of the violation up to a maximum of $1, 000, 000 for any related series of\nviolations. The Notice proposed a total civil penalty of $13, 500 for the violations of\n$ 192. 805(b).\n49 U. S. C. $ 60122 and 49 C. F. R. $ 190. 225 require that, in determining the amount of the civil\npenalty, I consider the following criteria: nature, circumstances, and gravity of the violation,\nincluding adverse impact on the environment; degree of Respondent's culpability; history of\nRespondent's prior violations; Respondent's ability to pay the penalty, and any effect on\nRespondent's ability to continue doing business; and good faith of Respondent in attempting to\nachieve compliance. I may also consider the economic benefits gained from the violation(s)\nwithout any reduction because of subsequent damages, and such other matters as justice may\nrequire.\nThe Federal pipeline safety OQ regulations are designed to ensure a qualified work force and\nreduce the probability and consequences of pipeline incidents caused by human error.\nRespondent permitted approximately 135 individuals to perform covered tasks that could affect\nthe safe operation and integrity of Respondent's pipeline system without properly evaluating\ntheir ability to recognize and react to AOCs. Respondent also failed to identify task-specific\nAOCs that might reasonably be expected to be encountered dming the performance of a given\ncovered task, Respondent's violations of $ 192. 805(b) constituted a significant safety risk to the\nsafe operation and integrity of Respondent's pipeline, for which Respondent is culpable.\nAlthough Respondent contested the allegations of violation, the company did not present any\ninformation that would warrant mitigation of the proposed civil penalty under the assessment\ncriteria,\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a total civil penalty of $13, 500 for violations of ) 192. 805(b).\nPayment of the civil penalty must be made within 20 days of service. Federal regulations (49\nC. F. R. $ 89. 21(b)(3)) require this payment be made by wire transfer, through the Federal\nReserve Communications System (Fedwire), to the account of the U. S. Treasury. Detailed\ninstructions are contained in the enclosure, Questions concerning wire transfers should be\ndirected to: Financial Operations Division (AMZ-341), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P. O. Box 25082, Oklahoma City, OK 73125; (405) 954-8893.\nFailure to pay the $13, 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/o) per annum will be charged if\npayment is not made within 110 days of service. Furthermore, failure to pay the civil penalty\nmay result in referral of the matter to the Attorney General for appropriate action in a United\nStates District Court,\n\n\n\nUnder 49 C. F. R. $ 190. 215, Respondent has a right to submit a Petition for Reconsideration of\nthis Final Order. The petition must be received within 20 days of Respondent's receipt of this\nFinal Order and must contain a brief statement of the issue(s). The filing of the petition\nautomatically stays the payment of any civil penalty assessed. However, if Respondent submits\npayment for the civil penalty, the Final Order becomes the final administrative action and the\nright to petition for reconsideration is waived,\nThe terms and conditions of this Final Order shall be effective upon receipt.\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nDate Issued","truncated":false,"body_characters":16679}