{"operation":"document","citation":"CPF 42022012NOPV","title":"FLORIDA GAS TRANSMISSION CO — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2022-02-22","effective_on":null,"summary":"CLOSED notice of probable violation citing 191.5(a), 192.479(a), 192.481(c), 192.915(b), 192.921(a)(1), 192.935(b)(2), 192.935(c).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-42022012nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-42022012nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-42022012nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/42022012NOPV","body":"Notice of Probable Violation involving FLORIDA GAS TRANSMISSION CO. PHMSA's enforcement data identifies the cited regulations as 191.5(a),  192.479(a),  192.481(c),  192.915(b),  192.921(a)(1),  192.935(b)(2),  192.935(c). The case was opened on 2022-02-22 and is reported as closed as of 2024-02-22. Proposed civil penalty: $19,300. Assessed civil penalty: $19,300. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n42022012NOPV_Closure Letter_02222024_(20-185585).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022012NOPV/42022012NOPV_Closure%20Letter_02222024_(20-185585).pdf\n\n42022012NOPV_Closure Letter_02222024_(20-185585)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022012NOPV/42022012NOPV_Closure%20Letter_02222024_(20-185585)_text.pdf\n\n42022012NOPV_Final Order_04212023_(20-185585).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022012NOPV/42022012NOPV_Final%20Order_04212023_(20-185585).pdf\n\n42022012NOPV_Final Order_04212023_(20-185585)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022012NOPV/42022012NOPV_Final%20Order_04212023_(20-185585)_text.pdf\n\n42022012NOPV_Operator Response to Notice_04082022_(20-185585).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022012NOPV/42022012NOPV_Operator%20Response%20to%20Notice_04082022_(20-185585).pdf\n\n42022012NOPV_PCO PCP_02222022_(20-185585).pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022012NOPV/42022012NOPV_PCO%20PCP_02222022_(20-185585).pdf\n\n42022012NOPV_PCO PCP_02222022_(20-185585)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/42022012NOPV/42022012NOPV_PCO%20PCP_02222022_(20-185585)_text.pdf\n\n42022012NOPV_Final Order_04212023_(20-185585)_text.pdf\n\nApril 21, 2023\nVIA ELECTRONIC MAIL TO: gregory.mcilwain@energytransfer.com\nMr. Gregory McIlwain\nExecutive Vice President, Operations\nEnergy Transfer, LP\n1300 Main Street\nHouston, Texas 77002\nRe: CPF No. 4-2022-012-NOPV\nDear Mr. McIlwain:\nEnclosed please find the Final Order issued in the above-referenced case. It withdraws one of\nthe allegations of violation, makes other findings of violation, assesses a civil penalty of $19,300,\nand specifies actions that need to be taken by Florida Gas Transmission Company, LLC, to\ncomply with the pipeline safety regulations. The penalty payment terms are set forth in the Final\nOrder. When the civil penalty has been paid and the terms of the compliance order completed,\nas determined by the Director, Southwest Region, this enforcement action will be closed.\nService of the Final Order by e-mail is effective upon the date of transmission and\nacknowledgement 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. Bryan Lethcoe, Director, Southwest Region, Office of Pipeline Safety, PHMSA\nMr. Todd Nardozzi, Director, Regulatory Compliance, Energy Transfer, LP,\ntodd.nardozzi@energytransfer.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 )\nFlorida Gas Transmission Company, LLC, ) CPF No. 4-2022-012-NOPV\nan affiliate of Energy Transfer, LP, )\n)\n)\n)\nRespondent. )\n________________________________________)\nFINAL ORDER\nFrom March 9, 2020, through July 9, 2021, pursuant to 49 U.S.C. § 60117, representatives of the\nPipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety\n(OPS), conducted an on-site pipeline safety inspection of the facilities and records of Florida Gas\nTransmission Company, LLC (FGT or Respondent) in Texas, Louisiana, Mississippi, Alabama,\nand Florida.\nAs a result of the inspection, the Director, Southwest Region, OPS (Director), issued to\nRespondent, by letter dated February 22, 2022, a Notice of Probable Violation, Proposed Civil\nPenalty, and Proposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the\nNotice proposed finding that FGT had violated 49 C.F.R. parts 191 and 192, proposed assessing\na civil penalty of $19,300 for the alleged violations, and proposed ordering Respondent to take\ncertain measures to correct the alleged violations. The Notice also included an additional three\nwarning items pursuant to 49 C.F.R. § 190.205, which warned the operator to correct the\nprobable violations or face possible future enforcement action.\nFGT responded to the Notice by letter dated April 8, 2022 (Response). FGT contested several of\nthe allegations, offered additional information in response to the Notice, and requested that the\nproposed civil penalty be eliminated. Respondent did not request a hearing and therefore has\nwaived its right to one.\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Parts 191 and 192, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 191.5, which states:\n§ 191.5(a) Immediate notice of certain incidents.\n\n\n\n(a) At the earliest practicable moment following discovery, but no later\nthan one hour after confirmed discovery, each operator must give notice in\naccordance with paragraph (b) of this section of each incident as defined in\n§ 191.3.\nThe Notice alleged that Respondent violated 49 C.F.R. § 191.5(a) by failing to report two\nincidents to the National Response Center (NRC) at the earliest practicable moment but no later\nthan one hour after confirmed discovery. Specifically, the Notice alleged on March 21, 2019,\nFGT discovered a reportable incident in Pinecrest, Florida at 5:21 PM, but did not report the\nincident to NRC until over an hour and a half later at 7:55 PM. The Notice also alleged that on\nNovember 7, 2019, FGT discovered a reportable incident in Orlando, Florida at 10:43 PM, but\ndid not report the incident until over 11 hours later, at 10:25 AM on November 8, 2019.\nIn its Response, FGT argued that based on the circumstances of each incident, the probable\nviolation should be reduced to a warning item and the civil penalty withdrawn. Arguments\nrelating to the proposed civil penalty are addressed below in the Assessment of Penalty.\nFGT argued that the proposed violation should be reduced to a warning item because in both\ninstances, the delays “involved efforts by the company to make accurate determinations of\nwhether reporting thresholds had been met prior to making calls to the NRC and not intentional\nefforts to delay or avoid reporting.”\nSection 191.5(a) requires notice of certain incidents “at the earliest practicable moment\nfollowing discovery, but no later than one hour after confirmed discovery.” Section 191.3\ndefines “confirmed discovery” as “when it can be reasonably determined, based on information\navailable to the operator at the time a reportable event has occurred, even if only based on a\npreliminary evaluation.” In prior cases, I have said that when §§ 191.3 and 191.5 are “read\ntogether, § 191.5(a) requires operators to report incidents at the earliest practicable moment, but\nno later than one hour after it can be reasonably determined, based on the information available,\nthat a reportable event has occurred, even if only based on a preliminary evaluation.” In the\nMatter of Southern Star Central Gas Pipeline Inc, Decision on Petition for Reconsideration, 1-\n2021-037, 2022 WL 1047171 at *2 (April 4, 2022). Further, as I have noted previously, when\nPHMSA published its rule to amend this regulation in 2017, “PHMSA explained the purpose of\nthe revised notification requirement is to alert local, state, and federal agencies at the earliest\npracticable moment so that emergency personnel or investigators can be dispatched quickly.\nWithout this requirement…each operator could have a different methodology that would\npotentially take hours or days before an operator completed its evaluation and determined that an\naccident or incident had in fact occurred.” Id; see also 82 FR 7972 (Jan 23, 2017).\nPHMSA recognizes Respondent’s assertion that the delays were a result of trying to gather\nadditional information in order to make accurate determinations of whether thresholds have been\nmet. However, given the critical importance of immediate reporting, I do not find the delays\nwarrant withdrawing the alleged violation or reducing it to a warning.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n\n\n\n§ 191.5(a) by failing to report at earliest practicable moment but no later than one hour after\ndiscovery two reportable incidents as required.\nItem 5: The Notice alleged that Respondent violated 49 C.F.R. § 192.935(b)(2), which states:\n§ 192.935 What additional preventive and mitigative measures must an\noperator take?\n(a) …\n(b) Third party damage and outside force damage –\n(1) …\n(2) Outside force damage. If an operator determines that outside force\n(e.g., earth movement, loading, longitudinal, or lateral forces, seismicity of\nthe area, floods, unstable suspension bridge) is a threat to the integrity of a\ncovered segment, the operator must take measures to minimize the\nconsequences to the covered segment from outside force damage. These\nmeasures include increasing the frequency of aerial, foot or other methods\nof patrols; addition external protection; reducing external stress; relocating\nthe line; or inline inspections with geospatial and deformation tools.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.935(b)(2) failing to take measures\nto minimize the consequences from outside force damage. Specifically, the Notice alleged that\nFGT’s records indicate that though FGT has multiple standard operating practices (SOP) to\nidentify potential preventative and mitigating factors of outside force damage, in practice FGT\nonly conducts right-of-way (ROW) patrols to address the threat of outside forces. The Notice\ndocumented that FGT identified five SOPs that address the potential threats of outside force\ndamage, including I.16 River Crossing Inspections and Post Flood Surveys, I.24 Management of\nDepth of Cover and Evaluation, I.25 Pipeline Spans and Aerial Crossing Inspections, I.26\nMining Subsidence and Soil Slippage, and I.42 Geohazard Management Guidelines. Based on a\nreview of Respondent’s records provided during and after the inspection, however, the Notice\nalleged Respondent only performed ROW patrols to address the threat of outside forces.\nIn its Response, Respondent contested the alleged violation and explained that ROW patrols are\nonly one of the ways it evaluates outside force damage. FGT argued that PHMSA has not made\navailable clear examples, discussions, or exhibits to support a finding that it is in violation of the\nregulations. Additionally, FGT stated it has numerous SOPs to address outside force damage\nwhich it has either enhanced or developed since receiving the Notice.\nThe Violation Report for Item 5 lists as supporting evidence FGT’s Pipeline Integrity\nManagement Plan, revised January 20, 2020. Having reviewed this evidence, I find that Section\n9.1 of the IMP describes data sources to be considered for preventative and mitigative measures\nanalysis. For weather-related and outside forces, the data include patrolling, soil stability,\nseismic activity, flooding data, any available scour depths studies of waterways, and assessment\ndata. I find this evidence does not demonstrate the allegation in the Notice that “only ROW\npatrols are being carried out to address the threat of outside force” or that “FGT limited its\nevaluation of outside force damage to [ROW] patrols for identifying potential preventative and\n\n\n\nmitigative measures.”1 § 192.935(b)(2).\nTherefore, I find there is insufficient evidence to find FGT in violation of\nAccordingly, after considering all of the evidence, Item 5 and the corresponding compliance item\nare hereby withdrawn.\nItem 6: The Notice alleged that Respondent violated 49 C.F.R. § 192.935(c), which states:\n§ 192.935 What additional preventive and mitigative measures must an\noperator take?\n(a) …\n(c) Automatic shut-off valves (ASV) or Remote control valves (RCV). If\nan operator determines, based on a risk analysis, that an ASV or RCV would\nbe an efficient means of adding protection to a high consequence area in the\nevent of a gas release, an operator must install the ASV or RCV. In making\nthat determination, an operator must, at least, consider the following factors\n– swiftness of leak detection and pipe shutdown capabilities, the type of gas\nbeing transported, operating pressure, the rate of potential release, pipeline\nprofile, the potential for ignition, and location of nearest response\npersonnel.2\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.935(c) by failing to conduct an\nevaluation, based on a risk analysis, regarding the use of an automatic shut-off valve (ASV) or\nremote control valve (RCV) on its pipeline system. Specifically, the Notice alleged that at the\ntime of the inspection, FGT could not show any documentation that it had conducted an\nevaluation to determine whether it needed to install an ASV or RCV on its pipeline system.\nIn its Response, FGT provided additional information describing its installation of ACVs on its\nmainline valves to protect the high consequence areas (HCAs) and agreed to follow the proposed\ncompliance order.\nAccordingly, having considered the evidence, I find that Respondent violated 49 C.F.R.\n§ 192.935(c) by failing to conduct an evaluation, based on risk analysis, regarding the use of an\nASV or RCV on its pipeline system.\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\n1 Notice, at 5.\n2 § 192.935(c) (2021). Subsequent to the Notice, PHMSA amended § 192.935(c) by “Pipeline Safety: Requirement\nof Valve Installation and Minimum Rupture Detection Standards,” Final Rule, 87 FR 20940 (Apr. 8, 2022).\n\n\n\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.3\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 $19,300 for the violation cited above.\nItem 1: The Notice proposed a civil penalty of $19,300 for Respondent’s violation of 49 C.F.R.\n§ 191.5(a), for failing to notify NRC at the earliest practicable moment, but no later than one\nhour after confirmed discovery, of two reportable incidents in 2019. Respondent requested that\nPHMSA withdraw the proposed civil penalty on the basis that FGT had no history of prior\nviolation of 49 C.F.R. § 191.5, that the gravity of the violation had minimal effect on pipeline\nsafety, and because the delays were based on efforts by FGT to determine whether the incidents\nmet reporting thresholds. Additionally, FGT included the training material slides it intends to\nuse to prevent similar occurrences in the future with its Response.\nUpon review of the Notice and Violation Report, I find that the proposed penalty already took\ninto account the violation was as a first-time offense, therefore there is no reason to further\nreduce the penalty based on FGT having no prior history of violating 49 C.F.R. §191.5.\nLikewise, the proposed penalty represented the lowest gravity, having a minimal effect on\npipeline safety. Therefore, a further reduction on that basis is also not warranted. Moreover,\nFGT’s argument that the penalty should be withdrawn because the delays were based on efforts\nby FGT to determine whether the incidents met reporting thresholds is also not a reason to\nreduce or withdraw the civil penalty. As explained above, the purpose of this notification\nrequirement is to alert local, state, and federal agencies at the earliest practicable moment so that\nemergency personnel or investigators can be dispatched quickly. Therefore, I find FGT did not\nhave a reasonable justification for its non-compliance under the good faith assessment factor.\nFinally, FGT included the training slides it intends to use to prevent delayed reporting in the\nfuture. While PHMSA recognizes Respondent’s swift corrective measures to comply with\npipeline safety regulations, such actions taken after an inspection are not a basis for a reduction\nor withdrawal of a civil penalty.4 Accordingly, having reviewed the record and considered the\nassessment criteria, I assess Respondent a civil penalty of $19,300 for violation of 49 C.F.R.\n§ 191.5(a).\n3 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223 for adjusted amounts.\n4 See In the Matter of Oasis Midstream Partners LP, a General Partner of Oasis Petroleum Inc., Final Order 3-\n2019-5020, 2020 WL 6870720 at 7 (August 19, 2020) (“While Oasis is to be commended for improving its internal\nprocesses to ensure compliance with the pipeline safety regulations, such post-inspection activities do not warrant\nthe withdrawal of, or a reduction in, a proposed civil penalty.”)\n\n\n\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 civil penalty will result in accrual of interest at the current annual rate in\naccordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to those\nsame authorities, a late penalty charge of six percent (6%) per annum will be charged if payment\nis not made within 110 days of service. Furthermore, failure to pay the civil penalty may result\nin referral of the matter to the Attorney General for appropriate action in a district court of the\nUnited States.\nCOMPLIANCE ORDER\nThe Notice proposed a compliance order with respect to Items 5 and 6 in the Notice for\nviolations of 49 C.F.R. §§ 192.935(b)(2) and 192.935(c), respectively. Under 49 U.S.C.\n§ 60118(a), each person who engages in the transportation of gas or who owns or operates a\npipeline facility is required to comply with the applicable safety standards established under\nchapter 601.\nAs stated above, the compliance item corresponding to the alleged violation of § 192.935(b)(2)\n(Item 5) is withdrawn. Therefore, the proposed compliance order with respect to Item 5 is not\nincluded.\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 § 192.935(c) (Item 6), Respondent must conduct\nan evaluation, based on a risk analysis, that an ASV or RCV would be an efficient\nmeans of adding protection to the HCAs and provide documentation or records of the\nevaluation within 90 days of receipt of the Final Order.\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.\n\n\n\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 ITEMS\nWith respect to Items 2, 3 and 4, the Notice alleged probable violations of Part 192, but\nidentified them as warning items pursuant to § 190.205. The warnings were for:\n49 C.F.R. § 192.481(c) (Item 2) ─ Respondent’s alleged failure to clean and coat\nsections of its pipeline at the West Miami Meter Station thereby failing to provide\nprotection against corrosion found during the inspection;\n49 C.F.R. § 192.915(b) (Item 3) ─ Respondent’s alleged failure to have qualified\nindividuals conduct, review, and analyze integrity assessments and evaluations of\nits pipeline facilities; and\n49 C.F.R. § 192.921(a)(1) (Item 4) ─ Respondent’s alleged failure to validate its\nbaseline assessment by not conducting excavation digs on its FLMEF-2426\npipeline segment following the 2018 assessment as required and in accordance\nwith its written procedures.\nFGT presented information in its Response showing that it had taken certain actions to address\nthe cited items. If OPS finds a violation of any of these items in a subsequent inspection,\nRespondent may be subject to 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 Counsel, PHMSA, at the same address. The written petition must be received no later than\n20 days after receipt of the Final Order by Respondent. Any petition submitted must contain a\nstatement of the issue(s) and meet all other requirements of 49 C.F.R. § 190.243. The filing of a\npetition automatically stays the payment of any civil penalty assessed. The other terms of the\norder, including corrective action, remain in effect unless the Associate Administrator, upon\nrequest, grants a stay.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nApril 21, 2023\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n42022012NOPV_Closure Letter_02222024_(20-185585)_text.pdf\n\nVIA ELECTRONIC MAIL TO: eric.amundsen@energytransfer.com\nFebruary 22, 2024\nEric Amundsen\nSenior Vice President, Operations\nFlorida Gas Transmission Company\n1300 Main Street\nHouston, Texas 77002\nCPF 4-2022-012-NOPV\nDear Mr. Amundsen:\nOn April 21, 2023, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\nissued to Florida Gas Transmission Company a Final Order in the above-referenced case. This\nOrder included a Compliance Order and Civil Penalty assessment. Based on our review of the\ndocumentation you provided and confirmation of payment of the civil penalty, it has been\ndetermined that you have complied with the terms of this Order.\nAccordingly, this case is now closed, and no further action is contemplated with respect to the\nmatters involved in this case. Thank you for your cooperation in this matter.\nSincerely,\nBryan Lethcoe\nDirector, Southwest Region, Office of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration\ncc: Todd Nardozzi, Director – DOT Compliance, todd.nardozzi@energytransfer.com","truncated":false,"body_characters":24244}