{"operation":"document","citation":"CPF 520095004","title":"EXXONMOBIL OIL CORPORATION-TERMINALS — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2009-02-03","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-520095004.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-520095004.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-520095004","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/520095004","body":"Notice of Probable Violation involving EXXONMOBIL OIL CORPORATION-TERMINALS. PHMSA's enforcement data identifies the cited regulation as 195.402(a). The case was opened on 2009-02-03 and is reported as closed as of 2012-02-08. Proposed civil penalty: $100,000. Assessed civil penalty: $100,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n520095004_Decision on the Petition for Reconsideration_01112012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_Decision%20on%20the%20Petition%20for%20Reconsideration_01112012.pdf\n\n520095004_Decision on the Petition for Reconsideration_01112012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_Decision%20on%20the%20Petition%20for%20Reconsideration_01112012_text.pdf\n\n520095004_Final Order_07112011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_Final%20Order_07112011.pdf\n\n520095004_Final Order_07112011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_Final%20Order_07112011_text.pdf\n\n520095004_NOPV PCP PCO_02032009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_NOPV%20PCP%20PCO_02032009.pdf\n\n520095004_NOPV PCP PCO_02032009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_NOPV%20PCP%20PCO_02032009_text.pdf\n\n520095004_operator response_03092009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_operator%20response_03092009.pdf\n\n520095004_NOPV PCP PCO_02032009_text.pdf\n\nNOTICE OF PROBABLE VIOLATION\nPROPOSED CIVIL PENALTY\nand\nPROPOSED COMPLIANCE ORDER\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nFebruary 3, 2009\nMr. Jim Rose\nDirector\nExxon Mobil Pipeline Company\n12851 166th Street\nCerritos, CA 90703-2103\nCPF 5-2009-5004\nDear Mr. Rose:\nOn November 3, 2008, a representative of the Washington Utilities and Transportation\nCommission (WUTC) acting as an agent for the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA), pursuant to Chapter 601 of 49 United States Code, responded to a\nrelease from Tank #505 at the Exxon Mobil Pipeline Company Spokane Terminal in Spokane,\nWashington. The WUTC representative conducted an investigation into the cause of the release.\nDuring the course of the investigation, Exxon Mobil’s manuals and records were reviewed in\ndetail.\nAs a result of the investigation, it appears that you have committed a probable violation of the\nPipeline Safety Regulations, Title 49, Code of Federal Regulations. The items inspected and the\nprobable violation(s) are:\n\n\n\n1. §195.402 Procedural manual for operations, maintenance, and emergencies.\n(a) General. Each operator shall prepare and follow for each pipeline system a\nmanual of written procedures for conducting normal operations and maintenance\nactivities and handling abnormal operations and emergencies. This manual shall\nbe reviewed at intervals not exceeding 15 months, but at least once each calendar\nyear, and appropriate changes made as necessary to insure that the manual is\neffective. This manual shall be prepared before initial operations of a pipeline\ncommence, and appropriate parts shall be kept at locations where operations and\nmaintenance activities are conducted.\nA Thermowell unit was inadvertently removed from breakout tank number 505 while trying to\nremove the temperature probe from the unit. This allowed gasoline to freely flow out of Tank\n#505 onto the ground. No procedure was available for the safe removal of the temperature probe\nfrom the Thermowell unit. Removal of the temperature probe is a normal, periodically\nconducted maintenance activity.\nExxon Mobil Pipeline Company staff was asked to provide a copy of their procedure for\nremoving the temperature probe from the tank’s Thermowell units specifically as well as a\nprocedure for removing any device that protrudes through a break out tank wall where the\npossibility exists for a breach of the tank wall. Exxon Mobil Pipeline Company staff could not\nprovide either. The probe is periodically removed to calibrate the temperature gauge.\nThe operator did provide Qualification of Pipeline Personnel for Covered Task Analysis\nincluding: Inspect, Test and Calibrate Control Devices, Electrical (Task ID#1) and Inspecting,\nReplacing Overpressure/Overfill Control Devices, Mechanical Components (Task ID# 30). The\nabove documents are not procedures and no procedures were made available. The Thermowell\nunit is not a control device or electrically operated component for sending data, like a remote\ntransmitter unit.\nProposed Civil Penalty\nUnder 49 United States Code, § 60122, you are subject to a civil penalty not to exceed $100,000\nfor each violation for each day the violation persists up to a maximum of $1,000,000 for any\nrelated series of violations. The Compliance Officer has reviewed the circumstances and\nsupporting documentation involved in the above probable violation and has recommended that\nyou be preliminarily assessed a civil penalty of $100,000.00 as follows:\nItem number PENALTY\n1 $100,000.00\n2\n\n\n\nProposed Compliance Order\nWith respect to item 1 pursuant to 49 United States Code § 60118, the Pipeline and Hazardous\nMaterials Safety Administration proposes to issue a Compliance Order to Exxon Mobil Pipeline\nCompany. Please refer to the Proposed Compliance Order, which is enclosed and made a part of\nthis Notice.\nResponse to this Notice\nEnclosed as part of this Notice is a document entitled Response Options for Pipeline Operators\nin Compliance Proceedings. Please refer to this document and note the response options. Be\nadvised that all material you submit in response to this enforcement action is subject to being\nmade publicly available. If you believe that any portion of your responsive material qualifies for\nconfidential treatment under 5 U.S.C. 552(b), along with the complete original document you\nmust provide a second copy of the document with the portions you believe qualify for\nconfidential treatment redacted and an explanation of why you believe the redacted information\nqualifies for confidential treatment under 5 U.S.C. 552(b). If you do not respond within 30 days\nof receipt of this Notice, this constitutes a waiver of your right to contest the allegations in this\nNotice and authorizes the Associate Administrator for Pipeline Safety to find facts as alleged in\nthis Notice without further notice to you and to issue a Final Order.\nIn your correspondence on this matter, please refer to CPF 5-2009-5004 and for each document\nyou submit, please provide a copy in electronic format whenever possible.\nSincerely,\nChris Hoidal\nDirector, Western Region\nPipeline and Hazardous Materials Safety Administration\nEnclosures: Proposed Compliance Order\nResponse Options for Pipeline Operators in Compliance Proceedings\ncc: PHP-60 Compliance Registry\nPHP-500 P. Katchmar (#122878)\n3\n\n\n\nPROPOSED COMPLIANCE ORDER\nPursuant to 49 United States Code § 60118, the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA) proposes to issue to Exxon Mobil Pipeline Company a Compliance\nOrder incorporating the following remedial requirements to ensure the compliance of Exxon\nMobil Pipeline Company with the pipeline safety regulations:\n1. In regard to Item Number 1 of the Notice pertaining to not having a procedure for\nremoving the temperature probe for calibration, Exxon Mobil Pipeline Company\nmust establish and implement appropriate procedures specifically for removing\nand calibrating temperature probes on break out tanks and more generally for\nremoving any device that protrudes through a break out tank wall where the\npossibility exists for a breach of the tank wall per 49 CFR Part 195.402(a).\n2. Exxon Mobil Pipeline Company shall maintain documentation of the safety\nimprovement costs associated with fulfilling this Compliance Order and submit\nthe total to Chris Hoidal, Director, Western Region, Pipeline and Hazardous\nMaterials Safety Administration. Costs shall be reported in two categories: 1)\ntotal cost associated with preparation/revision of plans, procedures, studies and\nanalyses, and 2) total cost associated with replacements, additions and other\nchanges to pipeline infrastructure.\n4\n\n520095004_Decision on the Petition for Reconsideration_01112012_text.pdf\n\nJAN 11 2012\nMr. Geoffrey Craft\nVice President, Operations\nExxonMobil Pipeline Company\n12851 166th Street\nCerritos, CA 90703-2103\nRe: CPF No. 5-2009-5004\nDear Mr. Craft:\nEnclosed please find the Decision on the Petition for Reconsideration filed by ExxonMobil\nPipeline Company in the above-referenced case. For the reasons set forth in the Decision, your\npetition is denied. When the civil penalty has been paid, this enforcement action will be\nclosed. Service of the Decision by certified mail is complete upon mailing as provided under\n49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline\nSafety\nMr. Chris Hoidal, Director, Western Region, OPS\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED [71791000164203063561]\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n____________________________________\n)\nIn the Matter of )\n)\nExxonMobil Pipeline Company, ) CPF No. 5-2009-5004\n)\nPetitioner. )\n____________________________________)\nDECISION ON PETITION FOR RECONSIDERATION\nOn July 11, 2011, pursuant to 49 U.S.C. §§ 60118 and 60112 and 49 C.F.R. § 190.213, the\nPipeline and Hazardous Materials Safety Administration (PHMSA) issued a Final Order in this\nproceeding finding that ExxonMobil Pipeline Company (EMPCO or Petitioner) committed a\nviolation of the hazardous liquid pipeline safety regulations in 49 C.F.R. Part 195. The Final\nOrder assessed a civil penalty of $100,000 for the violation. EMPCO operates a pipeline\nterminal in Spokane, Washington that consists of six breakout tanks and associated piping. The\nfacility is located adjacent to an aquifer supplying drinking water to the City of Spokane,\nWashington.\nEMPCO submitted a Petition for Reconsideration dated August 2, 2011 (Petition). In its\nPetition, EMPCO requested that PHMSA mitigate the $100,000 civil penalty associated with that\nfinding of violation.\nPursuant to 49 C.F.R. § 190.215, a respondent may petition PHMSA for reconsideration of a\nfinal order issued pursuant to § 190.213. PHMSA does not consider repetitious information or\narguments, but may consider additional facts or arguments, provided the respondent submits a\nvalid reason why such information was not presented prior to issuance of the final order.\nPHMSA may grant or deny, in whole or in part, a petition for reconsideration without further\nproceedings, but may request additional information, data, and comment as deemed appropriate.\nEMPCO did not provide a reason why its Petition contains facts and arguments not presented\nprior to issuance of the Final Order. Despite this failure, it presented some novel arguments in\nresponse to the Final Order. For this reason, I will consider the arguments, as outlined in\nEMPCO’s Petition.\nItem 1: The Final Order determined that EMPCO violated 49 C.F.R. § 195.402(a), which states:\n\n\n\n2\n§ 195.402 Procedural manual for operations, maintenance, and\nemergencies.\n(a) General. Each operator shall prepare and follow for each pipeline\nsystem a manual of written procedures for conducting normal operations\nand maintenance activities and handling abnormal operations and\nemergencies. This manual shall be reviewed at intervals not exceeding 15\nmonths, but at least once each calendar year, and appropriate changes\nmade as necessary to insure that the manual is effective. This manual\nshall be prepared before initial operations of a pipeline system commence,\nand appropriate parts shall be kept at locations where operations and\nmaintenance activities are conducted.\nThe Final Order found that EMPCO failed to prepare and follow a written procedure for the safe\nremoval of a temperature probe. As a result, during removal of a temperature probe, an EMPCO\ncontractor inadvertently detached a Thermowell unit from breakout tank #505, resulting in the\nrelease of 80 barrels of gasoline.\nIn its Petition, EMPCO states that it “acted in accordance with reasonable industry practices in\nits development of written procedures required under 49 C.F.R. § 195.402(a).”1\nTherefore,\nPetitioner suggests that the issue in this case is not the lack of a particular written procedure for\nthe safe removal of a temperature probe. Rather, the dispositive issue is whether EMPCO’s\noverall practices, as manifested in its complete manual, demonstrate compliance with\n§ 195.402(a).\nEMPCO also argues that the assessed penalty is unsupported by several facts and circumstances.\nIn accordance with its argument that PHMSA utilize a totality of the circumstances approach in\nits evaluation of EMPCO’s compliance with § 195.402(a), the Respondent also argues that the\nassessed penalty should reflect its overall good faith in the development of its manual. EMPCO\nasserts that its manual is in full compliance with § 195.402(a) and reflects a careful balance\nbetween comprehensiveness and excessive detail.\nLastly, Petitioner ascribes the incident to human error or “an unforeseeable event which was\nof the temperature probe. EMPCO also notes that the company derived no cost savings or other\noutside of its control”2 and accordingly, unrelated to the lack of having a procedure for removal\nfinancial benefit from the noncompliance in this case and that the assessed penalty is excessive,\nas compared to the penalty assessed in another case.\nAnalysis\nI will address each of the Petitioner’s arguments, in turn. First, EMPCO argues that § 195.402(a)\n“sets forth minimum standards for the contents of a DOT Liquids Manual . . . [and] afford[s] the\nregulated pipeline community some latitude and discretion.”3\nI agree that § 195.402(a) provides\n1 Petition at 2.\n2 Id. at 3.\n3 Id. at 2.\n\n\n\n3\noperators with the minimum standard for manuals of written procedures. However, the facts of\nthis case support the Final Order’s finding that Petitioner’s manual did not meet this standard.\nThe Petitioner has admitted throughout the record in this case that the removal of a temperature\nprobe is routinely practiced at its facility. As such, this procedure certainly qualifies as a “normal\noperation[s] and maintenance activity” and therefore should have been included in EMPCO’s\nmanual of written procedures. Simply because a task is routinely performed does not render it\nsuperfluous. EMPCO argues that inclusion of this procedure would “detract from the utility of\nprocedures and no such consequences have resulted.\nthe Manual and cause it to be ‘ineffective.’ ”4 The Petitioner has already amended its written\nEMPCO advances other factors in support of mitigation of the assessed penalty. As stated\nabove, EMPCO asserts that its comprehensive efforts in development of its written manual were\nsuch that it has been faithful to the “overall requirements of § 195.402(a).\n” As stated above, the\nthreshold for compliance with § 195.402(a) is the inclusion of all “normal operations[s] and\nmaintenance activit[ies].” Removal of a temperature probe is a normal maintenance activity and\nall such activities must be included to achieve compliance with 195.402(a). Simply because\nEMPCO had other written procedures in place does not warrant mitigation.\nAccording to the Petitioner, the presence of this procedure would not have prevented this\naccident. The presence of written procedures serves as a reminder for all employees, irrespective\nof their tenure, to follow specific steps when conducting routine activities. The fact that\nPetitioner’s longstanding contractor could have ignored the written procedure does not excuse or\nlessen the noncompliance of not having any procedure whatsoever.\nEMPCO also argues that it derived no financial benefit from the noncompliance in this case.\nThis appears to be true, but must be weighed against other factors that support the assessed\npenalty.\nLastly, Petitioner argues that its penalty is excessive in relation to other penalties that it considers\nmore serious. Generally, PHMSA declines to compare penalties. The circumstances of each\nindividual matter can sometimes be opaque and a number of different considerations are weighed\nin arriving at an individualized penalty for each case. However, as stated in the Final Order, this\ncase presented several factors that support assessment of a $100,000 penalty. Most importantly,\nthis facility is located directly adjacent to a sole source aquifer that supplies drinking water to the\ngreater Spokane metropolitan area. At the time of this incident, there was no membrane below\nthe affected tank. Serious consequences could have resulted to the environment and the public.\nFurthermore, it appears that the Petitioner’s failure to have and follow procedures directly\ncontributed to this incident.\nAccordingly, for the above reasons, EMPCO’s petition to mitigate the civil penalty for the\nfinding of violation in the Final Order is denied.\nPayment of the $100,000 civil penalty assessed in the Final Order is now due and must be made\nwithin 20 days of receipt of this Decision. Federal Regulations (49 C.F.R. § 89.21(b)(3)) require\n4 Id. at 2.\n\n\n\n4\nthis payment be made by wire transfer, through the Federal Reserve Communications System\n(Fedwire) to the account of the U.S. Treasury. Detailed instructions are contained in the\nenclosure. Questions concerning wire transfers should be directed to: Financial Operations\nDivision (AMZ-341), Federal Aviation Administration, Mike Monroney Aeronautical Center,\nP.O. Box 269039, Oklahoma City, OK 73125; 405-954-8893.\nFailure to pay the $100,000 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 United\nStates District Court.\nThe Decision on Reconsideration is the final administrative action in this proceeding.\n___________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n520095004_Final Order_07112011_text.pdf\n\nJUL 11 2011\nMr. Geoffrey Craft\nVice President, Operations\nExxonMobil Pipeline Company\n12851 166th Street\nCerritos, CA 90703-2103\nRe: CPF No. 5-2009-5004\nDear Mr. Craft:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a civil penalty of $100,000. It further finds that ExxonMobil Pipeline\nCompany has completed the actions specified in the Notice to comply with the pipeline safety\nregulations. When the civil penalty has been paid, this enforcement action will be closed.\nService of the Final Order by certified mail is deemed effective upon the date of mailing, or as\notherwise provided 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: Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety\nMr. Chris Hoidal, Director, Western Region, PHMSA\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED [7005 1160 0001 0075 9497]\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 )\nExxonMobil Pipeline Company, ) CPF No. 5-2009-5004\n)\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nPursuant to 49 U.S.C. § 60117, a representative of the Washington Utilities and Transportation\nCommission (WUTC), as agent for the Pipeline and Hazardous Materials Safety Administration\n(PHMSA), Office of Pipeline Safety (OPS), conducted an investigation of an accident involving\nthe pipeline terminal operated by ExxonMobil Pipeline Company (EMPCO or Respondent) in\nSpokane, Washington. The Spokane Terminal consists of six breakout tanks and associated\npiping.\nThe investigation arose out of a release of approximately 80 barrels of gasoline from Tank #505\nduring maintenance involving the removal of a temperature probe from the tank. The facility is\nlocated adjacent to an aquifer supplying drinking water to the City of Spokane, Washington.\nAs a result of the inspection, the Director, Western Region, OPS (Director), issued to\nRespondent, by letter dated February 3, 2009, a Notice of Probable Violation, Proposed Civil\nPenalty and Proposed Compliance Order. In accordance with 49 C.F.R. § 190.207, the Notice\nproposed finding that EMPCO had violated 49 C.F.R. § 195.402(a) and proposed assessing a\ncivil penalty of $100,000 for the alleged violation. The Notice also proposed that Respondent be\nrequired to take certain measures to correct the alleged violation.\nRespondent responded to the Notice by letter dated March 9, 2009, as supplemented by letter\ndated August 3, 2009 (Response). EMPCO contested the allegation and requested a hearing. An\ninformal hearing was subsequently held on August 18, 2009 in Lakewood, Colorado, with an\nAttorney from PHMSA’s Office of Chief Counsel presiding. At the hearing, Respondent was\nrepresented by counsel. After the hearing, Respondent provided additional written material for\nthe record, by letter dated September 17, 2009.\n\n\n\n2\nFINDING OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 195 as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(a), which states:\n§ 195.402 -- Procedural manual for operations, maintenance, and\nemergencies.\n(a) General. Each operator shall prepare and follow for each pipeline system a\nmanual of written procedures for conducting normal operations and maintenance\nactivities and handling abnormal operations and emergencies. This manual shall\nbe reviewed at intervals not exceeding 15 months, but at least once each calendar\nyear, and appropriate changes made as necessary to insure that the manual is\neffective. This manual shall be prepared before initial operations of a pipeline\nsystem commence, and appropriate parts shall be kept at locations where\noperations and maintenance activities are conducted.\nSpecifically, the Notice alleged that EMPCO did not establish and follow a written procedure for\nthe safe removal of the temperature probe from Tank #505. The probe was attached to a\nThermowell unit and the individual removing the probe inadvertently detached the Thermowell\nunit from the tank causing gasoline to begin escaping from the tank.\nIn its Response and at the hearing, Respondent acknowledged that at the time of the accident it\ndid not have a written procedure in place for removal of temperature probes that would prevent\nthe Thermowell from rotating, such as a procedure for using a second wrench to hold the\nThermowell unit in place while the probe was turned. EMPCO contended, however, that\n§ 195.402(a) did not specifically require a procedure for removal of temperature probes because\nremoving and calibrating the probes was such a routine task the presence of a written procedure\nin the manual would not have prevented the accident. Respondent, however, was not persuasive.\nThe regulation requires written procedures for conducting “normal operations and maintenance\nactivities…” Removal and calibration of temperature probes is clearly a normal operations and\nmaintenance activity. The fact that an operations or maintenance task is considered to be routine\ndoes not negate the requirement to have and follow procedures for conducting it. Many\noperations and maintenance tasks can be considered to be routine. Any avoidance of the\nrequirement to have procedures for the operations and maintenance tasks performed most\nfrequently by an operator would be inconsistent with the purpose of the regulation and could\nhave adverse safety consequences.\nRespondent went on to argue that the individual who was removing the probe had over 30 years\nof experience in pipeline maintenance and would not have even read the written procedure if it\nexisted. Respondent stated its view that this individual could not have been trained any more\nthan he was and that the accident was the result of “human error.” The level of experience of\nany particular employee on a given operations or maintenance task, however, does not negate an\noperator’s obligation to have written procedures for the task. The next time, it could be a newer\nemployee performing it but even experienced personnel need procedures. Written procedures\nare effective because they enable operations and maintenance tasks to be performed safely and\nconsistently by all personnel.\n\n\n\n3\nAccordingly, after considering all of the evidence and the legal issues presented, I find that\nRespondent violated 49 C.F.R. § 195.402(a) by failing to establish and follow a procedure for the\nsafe removal of the temperature probe.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any\nrelated series of violations. In determining the amount of a civil penalty under 49 U.S.C.\n§ 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,\ncircumstances, and gravity of the violation, including adverse impact on the environment; the\ndegree of Respondent’s culpability; the history of Respondent’s prior offenses; the Respondent’s\nability to pay the penalty and any effect that the penalty may have on its ability to continue doing\nbusiness; and the good faith of Respondent in attempting to comply with the pipeline safety\nregulations. In addition, I may consider the economic benefit gained from the violation without\nany reduction because of subsequent damages, and such other matters as justice may require.\nItem 1: The Notice proposed a civil penalty of $100,000 for Respondent’s violation of 49\nC.F.R. § 195.402(a), for failing to establish and follow a written procedure for the safe removal\nof the temperature probe. In its Response and at the hearing, Respondent stated that it viewed\nevery job from a loss prevention perspective before beginning and that it never foresaw a\nscenario where a Thermowell unit came out of a tank. Respondent argued that the penalty\namount proposed in the Notice was excessive, particularly in light of its earlier argument that the\nexistence of a procedure would not have prevented the accident.\nTo the contrary, however, the nature and circumstances of this accident actually highlight the\nvalue of having and following procedures. If Respondent had established and followed a\nprocedure for removing temperature probes that included the use of a second wrench to ensure\nthe Thermowell unit did not loosen, the spill may never have happened. With regard to the\ngravity and seriousness of the violation, the facility is located adjacent to a sole source aquifer\nsupplying drinking water to the greater Spokane area. The task of removing a through-wall\ndevice had the potential for serious consequences in the event of an accident and at the time of\nthe incident there was no membrane below the tank. I acknowledge that EMPCO took prompt\naction to contain the spill once the accident occurred and perform clean-up and removal of the\ncontaminated soil. With respect to the good faith penalty assessment factor, however,\nRespondent made no good faith effort prior to the accident to develop a procedure for removal of\nthe temperature probes.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $100,000 for violation of 49 C.F.R. § 195.402(a).\nPayment of the civil penalty must be made within 20 days of service. Federal regulations\n(49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through the Federal\nReserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed\n\n\n\n4\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 269039, Oklahoma City, Oklahoma 73125. The\nFinancial Operations Division telephone number is (405) 954-8893.\nFailure to pay the $100,000 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.\nThe Notice proposed a Compliance Order with respect to Item 1 in the Notice for violation of 49\nC.F.R. § 195.402(a). Under 49 U.S.C. § 60118(a), each person who engages in the\ntransportation of hazardous liquids or who owns or operates a pipeline facility is required to\ncomply with the applicable safety standards established under chapter 601. The Director\nindicates that Respondent submitted documentation demonstrating that on February 11, 2009 it\nestablished and implemented a procedure for safely removing devices that protrude through\nbreak out tank walls, including temperature probes. Accordingly, I find that compliance has\nbeen achieved with respect to this violation. Therefore, the compliance terms proposed in the\nNotice are not included in this Order.\nUnder 49 C.F.R. § 190.215, Respondent has the right to submit a petition for reconsideration of\nthis Final Order. Should Respondent elect to do so, the petition must be sent to: Associate\nAdministrator, Office of Pipeline Safety, PHMSA, 1200 New Jersey Avenue, SE, East Building,\n2nd Floor, Washington, DC 20590, with a copy sent to the Office of Chief Counsel, PHMSA, at\nthe same address. PHMSA will accept petitions received no later than 20 days after receipt of\nservice of the Final Order by the Respondent, provided they contain a brief statement of the\nissue(s) and meet all other requirements of 49 C.F.R. § 190.215. The filing of a petition\nautomatically stays the payment of any civil penalty assessed but does not stay any other\nprovisions of the Final Order, including any required corrective actions. If Respondent submits\npayment of the civil penalty, the Final Order becomes the final administrative decision and the\nright to petition for reconsideration is waived.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\n___________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":31333}