{"operation":"document","citation":"CPF 420055027","title":"BLACK HILLS OPERATING COMPANY, LLC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2005-07-12","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.505, 195.505(b), 195.507, 195.509(c), 195.509(d).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-420055027.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-420055027.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-420055027","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/420055027","body":"Notice of Probable Violation involving BLACK HILLS OPERATING COMPANY, LLC. PHMSA's enforcement data identifies the cited regulations as 195.505,  195.505(b),  195.507,  195.509(c),  195.509(d). The case was opened on 2005-07-12 and is reported as closed as of 2007-06-05. Proposed civil penalty: $11,300. Assessed civil penalty: $11,300. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n420055027_Final Order_04192006.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420055027/420055027_Final%20Order_04192006.pdf\n\nCPF 4-2005-5027 Sunoco Logistics-OQ requirements.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420055027/CPF%204-2005-5027%20Sunoco%20Logistics-OQ%20requirements.pdf\n\nCPF_NO_4-2005-5027.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420055027/CPF_NO_4-2005-5027.pdf\n\n420055027_Final Order_04192006.pdf\n\nU.S. Department\nof Transportation\nPipeline and\nHazardous Materials Safety\nAdministration\n400 Seventh Street, S.W.\nWashington, D.C. 20590\nAPR 1 9 2CO6\nMr. H. T. Pettigrew\nVice President, Operations\nBlack Hills Operating Company, LLC\n5 18 Cox Dairy Road\nLongview, Texas 75604\nRe: CPF No. 4-2005-5027\nDear Mr. Pettigrew:\nEnclosed is the Final Order issued by the Associate Administrator for Pipeline Safety\nin the above-referenced case. It makes findings of violation, assesses a civil penalty of\n$1 1,300, and specifies actions to be taken to comply with the pipeline safety regulations. The\npenalty payment terms are set forth in the Final Order. When the civil penalty is paid and the\nterms of the compliance order completed, as determined by the Director, Southwest Region,\nthis enforcement action will be closed. Your receipt of the Final Order constitutes service\nunder 49 C.F.R. 5 190.5.\nSincerely,\nJames Reynolds\nPipeline Compliance Registry\nOffice of Pipeline Safety\nEnclosure\nCERTIFIED MAIL -RETURN RECEIPT REQUESTED\n\n\n\nDEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, DC 20590\nIn the Matter of\nBlack Hills Operating Company, LLC, ) CPF NO. 4-2005-5027\nRespondent )\nFINAL ORDER\nOn March 29-3 1, 2005, pursuant to 49 U.S.C. 5 601 17, representatives of the Pipeline and\nHazardous Materials Safety Administration's Office of Pipeline Safety (PHMSA) and the\nRailroad Commission of Texas conducted an on-site pipeline safety inspection of Respondent's\nOperator Qualification (OQ) records and procedures in Longview, Texas. As a result of the\ninspection, the Director, Southwest Region, PHMSA, issued to Respondent, by letter dated July\n12, 2005, a Notice of Probable Violation, Proposed Civil Penalty, and Proposed Compliance\nOrder (Notice). In accordance with 49 C.F.R. 5 190.207, the Notice proposed finding that\nRespondent had committed violations of 49 C.F.R. Part 195 and proposed assessing a civil\npenalty of $1 1,300 for the alleged violations. The Notice also proposed ordering Respondent to\ntake certain measures to correct the alleged violations.\nRespondent responded to the Notice by letters dated July 27 and September 1, 2005 (Response).\nRespondent contested several of the allegations, offered information to explain the allegations,\nand requested that the proposed civil penalty be reduced or eliminated. Respondent did not\nrequest a hearing, and therefore has waived its right to one.\nFINDINGS OF VIOLATION\nItem 2A in the Notice alleged Respondent violated 49 C.F.R. 55 195.505 and 195.509(c) by\nfailing to ensure through evaluation that 7 individuals performing covered tasks were qualified.\nThe Notice alleged that Respondent used work performance history reviews as the sole\nevaluation method for those individuals (29 instances) even though the individuals had not\nperformed the covered tasks for Respondent prior to October 26, 1999. Section 195.505 requires\nRespondent to have and follow a written qualification program to ensure through evaluation that\nindividuals performing covered tasks are qualified. Section 195,509(c) states that wnrk\nperformance history review may be used as a sole evaluation method only for individuals who\nwere performing a covered task prior to October 26, 1999. In its Response, Respondent stated\nthat when it took over operations of the pipeline on March 1,2002, the identified individuals had\n\n\n\nbeen performing covered tasks for the former operators of the pipeline. Respondent submitted\ntraining records of the former operators to support Respondent's contention that the individuals\nhad been performing the covered tasks prior to October 26, 1999. Training records, however, do\nnot satisfactorily demonstrate that the individuals had been evaluated to determine their ability to\nperform covered tasks. Moreover, Respondent had not established and documented a written\nprocess for accepting former operators' training records for qualification purposes. Accordingly,\nI find Respondent violated $ 5 195.505 and 195.509(c) as alleged in Item 2A of the Notice.\nItem 2B in the Notice alleged Respondent violated 49 C.F.R. $ 5 195.505 and 195.509(d) by\nfailing to ensure through evaluation that two individuals hired since January 2004 were qualified\nto perform covered tasks. The Notice alleged that Respondent qualified the two individuals to\nperform covered tasks using work performance history reviews as the sole method. Section\n195.509(d) states that work performance history may not be used as a sole evaluation method\nafter October 28, 2002. In its Response, Respondent stated that the two individuals were\nqualified to perform covered tasks based on work history and training records provided by the\nformer pipeline operators. Training records, however, do not satisfactorily demonstrate that the\nindividuals had been evaluated to determine their ability to perform covered tasks. Moreover,\nRespondent had not established and documented a written process for accepting former\noperators' training records for qualification purposes. Accordingly, I find Respondent violated\n$ 5 195.505 and 195.509(d) as alleged in Item 2B of the Notice.\nItem 3 in the Notice alleged Respondent violated 49 C.F.R. 5 195.505 by failing to ensure\nthrough evaluation that several individuals performing covered tasks could recognize and react to\nabnormal operating conditions (AOCs). The Notice alleged that Respondent's records showed\nthe two employees hired since January 2004 were qualified without receiving AOC training or\norientation. Additionally, Respondent's records showed that a contractor was qualified without\ncompleting AOC training. In its Response, Respondent did not challenge the allegation in regard\nto the contractor. In regard to the two employees, however, Respondent stated that they were\nqualified to perform covered tasks based on work history and training records provided by the\nformer pipeline operators. Respondent submitted training records, including AOC training\nrecords. Training records, however, do not satisfactorily demonstrate the individuals had been\nevaluated to determine whether they can recognize and react to AOCs. Moreover, Respondent\nhad not established and documented a written process for accepting former operators' training\nrecords for qualification purposes. Accordingly, I find Respondent violated 5 195.505 as alleged\nin Item 3 of the Notice.\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. 5 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 $1 1,300 for the violations.\n49 U.S.C. 5 60122 and 49 C.F.R. 5 190.225 require that, in determining the amount of the civil\n\n\n\npenalty, I consider the following criteria: nature, circumstances, and gravity of the violation,\ndegree of Respondent's culpability, history of Respondent's prior offenses, Respondent's ability\nto pay the penalty, good faith by Respondent in attempting to achieve compliance, the effect on\nRespondent's ability to continue in business, and such other matters as justice may require.\nItems 2A and 2B in the Notice proposed civil penalties of $5,800 and $4,000 respectively, for\nfailing to ensure through evaluation that individuals performing covered tasks were qualified.\nRespondent improperly qualified several individuals by using work history as the sole evaluation\nmethod. Respondent stated that it had examined extensive training records for the individuals;\nhowever, the training records were inadequate to demonstrate evaluation of the individual's\nability to perform covered tasks and Respondent had not established and documented a process\nfor accepting former operator's training records for qualification purposes. Failure to properly\nevaluate individuals performing tasks that affect the operation and integrity of a pipeline may\nlead to human error that causes a pipeline failure. Having reviewed the record and considered\nthe assessment criteria, I assess Respondent a total civil penalty of $9,800 for these violations.\nItem 3 in the Notice proposed a civil penalty of $1,500 for failing to ensure through evaluation\nthat two employees and one contractor performing covered tasks could recognize and react to\nabnormal operating conditions. Respondent stated that it had examined training records for the\nemployees; however, the training records were inadequate to demonstrate evaluation of the\nemployee's ability to recognize and react to abnormal operating conditions. Failure to ensure\nindividuals can recognize and react to abnormal operating conditions when performing certain\ntasks affecting the operation and integrity of a pipeline may lead to an accident that jeopardizes\npublic safety. Having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $1,500 for this violation.\nAccordingly, I assess Respondent a total civil penalty of $11,300. Respondent has the ability to\npay this penalty without adversely affecting its ability to continue in business.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations (49\nC.F.R. 5 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-300), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P.O. Box 25082, Oklahoma City, OK 73 125; (405) 954-8893.\nFailure to pay the $11,300 civil penalty will result in accrual of interest at the current annual rate\nin accordance with 31 U.S.C. 5 3717, 31 C.F.R. 5 901.9 and 49 C.F.R. 5 89.23. Pursuant to\nthose authorities, a late penalty charge of six percent (6%) per annum will be charged if payment\nis not made within 1 10 days of service. Failure to pay the civil penalty may also result in referral\nof the matter to the Attorney General for appropriate action in a United States District Court.\nCOMPLIANCE ORDEP_\nThe Notice proposed a compliance order with respect to the violations. Under 49 U.S.C.\n5 601 18(a), each person who engages in the transportation of hazardous liquids or who owns or\n\n\n\noperates a pipeline facility is required to comply with the applicable safety standards established\nunder Chapter 601. Pursuant to the authority of 49 U.S.C. 5 601 18(b) and 49 C.F.R. €j 190.217,\nRespondent is ordered to take the following actions to ensure compliance with the pipeline safety\nregulations applicable to its operations. Respondent must-\n1. Reevaluate and requalify in accordance with 49 C.F.R. § 195.505(b) each individual\nperforming a covered task who has been qualified to perform that task by use of work\nperformance history review as a sole method. Complete this item and submit\ndocumentation of compliance within 60 days of receipt of this Order.\n2. Reevaluate the two employees hired since January 2004 and the contractor referenced in\nItem 3 in the Notice, to determine whether they can recognize and react to abnormal\noperating conditions applicable to the covered tasks they perform. Provide training,\norientation, and testing, as necessary, in accordance with a method established in\nRespondent's OQ procedures to ensure the individuals meet the requirements for AOC\nrecognition and reaction. Complete this item and submit documentation of compliance\nwithin 30 days of receipt of this Order.\n3. Information required to be submitted pursuant to this Order, including documentation that\neach item has been completed, shall be submitted to the Director, Southwest Region,\nOffice of Pipeline Safety, 8701 S. Gessner Dr., Suite 1 11 0, Houston, TX 77074-2949.\nThe Director, Southwest Region, may grant an extension of time to comply with any of the\nrequired items upon a written request timely submitted by the Respondent demonstrating good\ncause for an extension.\nFailure to comply with this Final Order may result in the assessment of civil penalties of up to\n$1 00,000 per violation per day, or in the referral of the case for judicial enforcement.\nWARNING ITEM\nThe Notice did not propose a civil penalty or corrective action for Items 1 and 4, but warned\nRespondent that it should take appropriate corrective action to correct those items. Respondent\nis warned that if it does not take appropriate action to correct those item, enforcement action will\nbe taken if a subsequent inspection reveals a violation.\nUnder 49 C.F.R. €j190.215, 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. All other terms of this Order,\nincluding required corrective action, remain in full effect unless the Associate Administrator,\nupon request, grants a stay.\n\n\n\nThe terms and conditions of this Final Order are effective on receipt.\nAPR 1 9 2006\nDate Issued","truncated":false,"body_characters":14222}