# EXXONMOBIL OIL CORPORATION-TERMINALS — Notice of Probable Violation

- **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:** Not available
- **summary:** CLOSED notice of probable violation citing 195.402(a).
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- **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.

Official case documents:

520095004_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

520095004_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

520095004_Final Order_07112011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_Final%20Order_07112011.pdf

520095004_Final Order_07112011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_Final%20Order_07112011_text.pdf

520095004_NOPV PCP PCO_02032009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_NOPV%20PCP%20PCO_02032009.pdf

520095004_NOPV PCP PCO_02032009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_NOPV%20PCP%20PCO_02032009_text.pdf

520095004_operator response_03092009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/520095004/520095004_operator%20response_03092009.pdf

520095004_NOPV PCP PCO_02032009_text.pdf

NOTICE OF PROBABLE VIOLATION
PROPOSED CIVIL PENALTY
and
PROPOSED COMPLIANCE ORDER
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
February 3, 2009
Mr. Jim Rose
Director
Exxon Mobil Pipeline Company
12851 166th Street
Cerritos, CA 90703-2103
CPF 5-2009-5004
Dear Mr. Rose:
On November 3, 2008, a representative of the Washington Utilities and Transportation
Commission (WUTC) acting as an agent for the Pipeline and Hazardous Materials Safety
Administration (PHMSA), pursuant to Chapter 601 of 49 United States Code, responded to a
release from Tank #505 at the Exxon Mobil Pipeline Company Spokane Terminal in Spokane,
Washington. The WUTC representative conducted an investigation into the cause of the release.
During the course of the investigation, Exxon Mobil’s manuals and records were reviewed in
detail.
As a result of the investigation, it appears that you have committed a probable violation of the
Pipeline Safety Regulations, Title 49, Code of Federal Regulations. The items inspected and the
probable violation(s) are:



1. §195.402 Procedural manual for operations, maintenance, and emergencies.
(a) General. Each operator shall prepare and follow for each pipeline system a
manual of written procedures for conducting normal operations and maintenance
activities and handling abnormal operations and emergencies. This manual shall
be reviewed at intervals not exceeding 15 months, but at least once each calendar
year, and appropriate changes made as necessary to insure that the manual is
effective. This manual shall be prepared before initial operations of a pipeline
commence, and appropriate parts shall be kept at locations where operations and
maintenance activities are conducted.
A Thermowell unit was inadvertently removed from breakout tank number 505 while trying to
remove the temperature probe from the unit. This allowed gasoline to freely flow out of Tank
#505 onto the ground. No procedure was available for the safe removal of the temperature probe
from the Thermowell unit. Removal of the temperature probe is a normal, periodically
conducted maintenance activity.
Exxon Mobil Pipeline Company staff was asked to provide a copy of their procedure for
removing the temperature probe from the tank’s Thermowell units specifically as well as a
procedure for removing any device that protrudes through a break out tank wall where the
possibility exists for a breach of the tank wall. Exxon Mobil Pipeline Company staff could not
provide either. The probe is periodically removed to calibrate the temperature gauge.
The operator did provide Qualification of Pipeline Personnel for Covered Task Analysis
including: Inspect, Test and Calibrate Control Devices, Electrical (Task ID#1) and Inspecting,
Replacing Overpressure/Overfill Control Devices, Mechanical Components (Task ID# 30). The
above documents are not procedures and no procedures were made available. The Thermowell
unit is not a control device or electrically operated component for sending data, like a remote
transmitter unit.
Proposed Civil Penalty
Under 49 United States Code, § 60122, you are subject to a civil penalty not to exceed $100,000
for each violation for each day the violation persists up to a maximum of $1,000,000 for any
related series of violations. The Compliance Officer has reviewed the circumstances and
supporting documentation involved in the above probable violation and has recommended that
you be preliminarily assessed a civil penalty of $100,000.00 as follows:
Item number PENALTY
1 $100,000.00
2



Proposed Compliance Order
With respect to item 1 pursuant to 49 United States Code § 60118, the Pipeline and Hazardous
Materials Safety Administration proposes to issue a Compliance Order to Exxon Mobil Pipeline
Company. Please refer to the Proposed Compliance Order, which is enclosed and made a part of
this Notice.
Response to this Notice
Enclosed as part of this Notice is a document entitled Response Options for Pipeline Operators
in Compliance Proceedings. Please refer to this document and note the response options. Be
advised that all material you submit in response to this enforcement action is subject to being
made publicly available. If you believe that any portion of your responsive material qualifies for
confidential treatment under 5 U.S.C. 552(b), along with the complete original document you
must provide a second copy of the document with the portions you believe qualify for
confidential treatment redacted and an explanation of why you believe the redacted information
qualifies for confidential treatment under 5 U.S.C. 552(b). If you do not respond within 30 days
of receipt of this Notice, this constitutes a waiver of your right to contest the allegations in this
Notice and authorizes the Associate Administrator for Pipeline Safety to find facts as alleged in
this Notice without further notice to you and to issue a Final Order.
In your correspondence on this matter, please refer to CPF 5-2009-5004 and for each document
you submit, please provide a copy in electronic format whenever possible.
Sincerely,
Chris Hoidal
Director, Western Region
Pipeline and Hazardous Materials Safety Administration
Enclosures: Proposed Compliance Order
Response Options for Pipeline Operators in Compliance Proceedings
cc: PHP-60 Compliance Registry
PHP-500 P. Katchmar (#122878)
3



PROPOSED COMPLIANCE ORDER
Pursuant to 49 United States Code § 60118, the Pipeline and Hazardous Materials Safety
Administration (PHMSA) proposes to issue to Exxon Mobil Pipeline Company a Compliance
Order incorporating the following remedial requirements to ensure the compliance of Exxon
Mobil Pipeline Company with the pipeline safety regulations:
1. In regard to Item Number 1 of the Notice pertaining to not having a procedure for
removing the temperature probe for calibration, Exxon Mobil Pipeline Company
must establish and implement appropriate procedures specifically for removing
and calibrating temperature probes on break out tanks and more generally for
removing any device that protrudes through a break out tank wall where the
possibility exists for a breach of the tank wall per 49 CFR Part 195.402(a).
2. Exxon Mobil Pipeline Company shall maintain documentation of the safety
improvement costs associated with fulfilling this Compliance Order and submit
the total to Chris Hoidal, Director, Western Region, Pipeline and Hazardous
Materials Safety Administration. Costs shall be reported in two categories: 1)
total cost associated with preparation/revision of plans, procedures, studies and
analyses, and 2) total cost associated with replacements, additions and other
changes to pipeline infrastructure.
4

520095004_Decision on the Petition for Reconsideration_01112012_text.pdf

JAN 11 2012
Mr. Geoffrey Craft
Vice President, Operations
ExxonMobil Pipeline Company
12851 166th Street
Cerritos, CA 90703-2103
Re: CPF No. 5-2009-5004
Dear Mr. Craft:
Enclosed please find the Decision on the Petition for Reconsideration filed by ExxonMobil
Pipeline Company in the above-referenced case. For the reasons set forth in the Decision, your
petition is denied. When the civil penalty has been paid, this enforcement action will be
closed. Service of the Decision by certified mail is complete upon mailing as provided under
49 C.F.R. § 190.5.
Thank you for your cooperation in this matter.
Sincerely,
Jeffrey D. Wiese
Associate Administrator
for Pipeline Safety
Enclosure
cc: Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline
Safety
Mr. Chris Hoidal, Director, Western Region, OPS
CERTIFIED MAIL - RETURN RECEIPT REQUESTED [71791000164203063561]



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, D.C. 20590
____________________________________
)
In the Matter of )
)
ExxonMobil Pipeline Company, ) CPF No. 5-2009-5004
)
Petitioner. )
____________________________________)
DECISION ON PETITION FOR RECONSIDERATION
On July 11, 2011, pursuant to 49 U.S.C. §§ 60118 and 60112 and 49 C.F.R. § 190.213, the
Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a Final Order in this
proceeding finding that ExxonMobil Pipeline Company (EMPCO or Petitioner) committed a
violation of the hazardous liquid pipeline safety regulations in 49 C.F.R. Part 195. The Final
Order assessed a civil penalty of $100,000 for the violation. EMPCO operates a pipeline
terminal in Spokane, Washington that consists of six breakout tanks and associated piping. The
facility is located adjacent to an aquifer supplying drinking water to the City of Spokane,
Washington.
EMPCO submitted a Petition for Reconsideration dated August 2, 2011 (Petition). In its
Petition, EMPCO requested that PHMSA mitigate the $100,000 civil penalty associated with that
finding of violation.
Pursuant to 49 C.F.R. § 190.215, a respondent may petition PHMSA for reconsideration of a
final order issued pursuant to § 190.213. PHMSA does not consider repetitious information or
arguments, but may consider additional facts or arguments, provided the respondent submits a
valid reason why such information was not presented prior to issuance of the final order.
PHMSA may grant or deny, in whole or in part, a petition for reconsideration without further
proceedings, but may request additional information, data, and comment as deemed appropriate.
EMPCO did not provide a reason why its Petition contains facts and arguments not presented
prior to issuance of the Final Order. Despite this failure, it presented some novel arguments in
response to the Final Order. For this reason, I will consider the arguments, as outlined in
EMPCO’s Petition.
Item 1: The Final Order determined that EMPCO violated 49 C.F.R. § 195.402(a), which states:



2
§ 195.402 Procedural manual for operations, maintenance, and
emergencies.
(a) General. Each operator shall prepare and follow for each pipeline
system a manual of written procedures for conducting normal operations
and maintenance activities and handling abnormal operations and
emergencies. This manual shall be reviewed at intervals not exceeding 15
months, but at least once each calendar year, and appropriate changes
made as necessary to insure that the manual is effective. This manual
shall be prepared before initial operations of a pipeline system commence,
and appropriate parts shall be kept at locations where operations and
maintenance activities are conducted.
The Final Order found that EMPCO failed to prepare and follow a written procedure for the safe
removal of a temperature probe. As a result, during removal of a temperature probe, an EMPCO
contractor inadvertently detached a Thermowell unit from breakout tank #505, resulting in the
release of 80 barrels of gasoline.
In its Petition, EMPCO states that it “acted in accordance with reasonable industry practices in
its development of written procedures required under 49 C.F.R. § 195.402(a).”1
Therefore,
Petitioner suggests that the issue in this case is not the lack of a particular written procedure for
the safe removal of a temperature probe. Rather, the dispositive issue is whether EMPCO’s
overall practices, as manifested in its complete manual, demonstrate compliance with
§ 195.402(a).
EMPCO also argues that the assessed penalty is unsupported by several facts and circumstances.
In accordance with its argument that PHMSA utilize a totality of the circumstances approach in
its evaluation of EMPCO’s compliance with § 195.402(a), the Respondent also argues that the
assessed penalty should reflect its overall good faith in the development of its manual. EMPCO
asserts that its manual is in full compliance with § 195.402(a) and reflects a careful balance
between comprehensiveness and excessive detail.
Lastly, Petitioner ascribes the incident to human error or “an unforeseeable event which was
of the temperature probe. EMPCO also notes that the company derived no cost savings or other
outside of its control”2 and accordingly, unrelated to the lack of having a procedure for removal
financial benefit from the noncompliance in this case and that the assessed penalty is excessive,
as compared to the penalty assessed in another case.
Analysis
I will address each of the Petitioner’s arguments, in turn. First, EMPCO argues that § 195.402(a)
“sets forth minimum standards for the contents of a DOT Liquids Manual . . . [and] afford[s] the
regulated pipeline community some latitude and discretion.”3
I agree that § 195.402(a) provides
1 Petition at 2.
2 Id. at 3.
3 Id. at 2.



3
operators with the minimum standard for manuals of written procedures. However, the facts of
this case support the Final Order’s finding that Petitioner’s manual did not meet this standard.
The Petitioner has admitted throughout the record in this case that the removal of a temperature
probe is routinely practiced at its facility. As such, this procedure certainly qualifies as a “normal
operation[s] and maintenance activity” and therefore should have been included in EMPCO’s
manual of written procedures. Simply because a task is routinely performed does not render it
superfluous. EMPCO argues that inclusion of this procedure would “detract from the utility of
procedures and no such consequences have resulted.
the Manual and cause it to be ‘ineffective.’ ”4 The Petitioner has already amended its written
EMPCO advances other factors in support of mitigation of the assessed penalty. As stated
above, EMPCO asserts that its comprehensive efforts in development of its written manual were
such that it has been faithful to the “overall requirements of § 195.402(a).
” As stated above, the
threshold for compliance with § 195.402(a) is the inclusion of all “normal operations[s] and
maintenance activit[ies].” Removal of a temperature probe is a normal maintenance activity and
all such activities must be included to achieve compliance with 195.402(a). Simply because
EMPCO had other written procedures in place does not warrant mitigation.
According to the Petitioner, the presence of this procedure would not have prevented this
accident. The presence of written procedures serves as a reminder for all employees, irrespective
of their tenure, to follow specific steps when conducting routine activities. The fact that
Petitioner’s longstanding contractor could have ignored the written procedure does not excuse or
lessen the noncompliance of not having any procedure whatsoever.
EMPCO also argues that it derived no financial benefit from the noncompliance in this case.
This appears to be true, but must be weighed against other factors that support the assessed
penalty.
Lastly, Petitioner argues that its penalty is excessive in relation to other penalties that it considers
more serious. Generally, PHMSA declines to compare penalties. The circumstances of each
individual matter can sometimes be opaque and a number of different considerations are weighed
in arriving at an individualized penalty for each case. However, as stated in the Final Order, this
case presented several factors that support assessment of a $100,000 penalty. Most importantly,
this facility is located directly adjacent to a sole source aquifer that supplies drinking water to the
greater Spokane metropolitan area. At the time of this incident, there was no membrane below
the affected tank. Serious consequences could have resulted to the environment and the public.
Furthermore, it appears that the Petitioner’s failure to have and follow procedures directly
contributed to this incident.
Accordingly, for the above reasons, EMPCO’s petition to mitigate the civil penalty for the
finding of violation in the Final Order is denied.
Payment of the $100,000 civil penalty assessed in the Final Order is now due and must be made
within 20 days of receipt of this Decision. Federal Regulations (49 C.F.R. § 89.21(b)(3)) require
4 Id. at 2.



4
this payment be made by wire transfer, through the Federal Reserve Communications System
(Fedwire) to the account of the U.S. Treasury. Detailed instructions are contained in the
enclosure. Questions concerning wire transfers should be directed to: Financial Operations
Division (AMZ-341), Federal Aviation Administration, Mike Monroney Aeronautical Center,
P.O. Box 269039, Oklahoma City, OK 73125; 405-954-8893.
Failure to pay the $100,000 civil penalty will result in accrual of interest at the current annual
rate in accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9, and 49 C.F.R. § 89.23. Pursuant to
those same authorities, a late penalty charge of six percent (6%) per annum will be charged if
payment is not made within 110 days of service. Furthermore, failure to pay the civil penalty
may result in referral of the matter to the Attorney General for appropriate action in a United
States District Court.
The Decision on Reconsideration is the final administrative action in this proceeding.
___________________________________ __________________________
Jeffrey D. Wiese Date Issued
Associate Administrator
for Pipeline Safety

520095004_Final Order_07112011_text.pdf

JUL 11 2011
Mr. Geoffrey Craft
Vice President, Operations
ExxonMobil Pipeline Company
12851 166th Street
Cerritos, CA 90703-2103
Re: CPF No. 5-2009-5004
Dear Mr. Craft:
Enclosed please find the Final Order issued in the above-referenced case. It makes findings of
violation and assesses a civil penalty of $100,000. It further finds that ExxonMobil Pipeline
Company has completed the actions specified in the Notice to comply with the pipeline safety
regulations. When the civil penalty has been paid, this enforcement action will be closed.
Service of the Final Order by certified mail is deemed effective upon the date of mailing, or as
otherwise provided under 49 C.F.R. § 190.5.
Thank you for your cooperation in this matter.
Sincerely,
Jeffrey D. Wiese
Associate Administrator
for Pipeline Safety
Enclosure
cc: Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety
Mr. Chris Hoidal, Director, Western Region, PHMSA
CERTIFIED MAIL - RETURN RECEIPT REQUESTED [7005 1160 0001 0075 9497]



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, D.C. 20590
____________________________________
In the Matter of )
ExxonMobil Pipeline Company, ) CPF No. 5-2009-5004
)
)
)
Respondent. )
____________________________________)
FINAL ORDER
Pursuant to 49 U.S.C. § 60117, a representative of the Washington Utilities and Transportation
Commission (WUTC), as agent for the Pipeline and Hazardous Materials Safety Administration
(PHMSA), Office of Pipeline Safety (OPS), conducted an investigation of an accident involving
the pipeline terminal operated by ExxonMobil Pipeline Company (EMPCO or Respondent) in
Spokane, Washington. The Spokane Terminal consists of six breakout tanks and associated
piping.
The investigation arose out of a release of approximately 80 barrels of gasoline from Tank #505
during maintenance involving the removal of a temperature probe from the tank. The facility is
located adjacent to an aquifer supplying drinking water to the City of Spokane, Washington.
As a result of the inspection, the Director, Western Region, OPS (Director), issued to
Respondent, by letter dated February 3, 2009, a Notice of Probable Violation, Proposed Civil
Penalty and Proposed Compliance Order. In accordance with 49 C.F.R. § 190.207, the Notice
proposed finding that EMPCO had violated 49 C.F.R. § 195.402(a) and proposed assessing a
civil penalty of $100,000 for the alleged violation. The Notice also proposed that Respondent be
required to take certain measures to correct the alleged violation.
Respondent responded to the Notice by letter dated March 9, 2009, as supplemented by letter
dated August 3, 2009 (Response). EMPCO contested the allegation and requested a hearing. An
informal hearing was subsequently held on August 18, 2009 in Lakewood, Colorado, with an
Attorney from PHMSA’s Office of Chief Counsel presiding. At the hearing, Respondent was
represented by counsel. After the hearing, Respondent provided additional written material for
the record, by letter dated September 17, 2009.



2
FINDING OF VIOLATION
The Notice alleged that Respondent violated 49 C.F.R. Part 195 as follows:
Item 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(a), which states:
§ 195.402 -- Procedural manual for operations, maintenance, and
emergencies.
(a) General. Each operator shall prepare and follow for each pipeline system a
manual of written procedures for conducting normal operations and maintenance
activities and handling abnormal operations and emergencies. This manual shall
be reviewed at intervals not exceeding 15 months, but at least once each calendar
year, and appropriate changes made as necessary to insure that the manual is
effective. This manual shall be prepared before initial operations of a pipeline
system commence, and appropriate parts shall be kept at locations where
operations and maintenance activities are conducted.
Specifically, the Notice alleged that EMPCO did not establish and follow a written procedure for
the safe removal of the temperature probe from Tank #505. The probe was attached to a
Thermowell unit and the individual removing the probe inadvertently detached the Thermowell
unit from the tank causing gasoline to begin escaping from the tank.
In its Response and at the hearing, Respondent acknowledged that at the time of the accident it
did not have a written procedure in place for removal of temperature probes that would prevent
the Thermowell from rotating, such as a procedure for using a second wrench to hold the
Thermowell unit in place while the probe was turned. EMPCO contended, however, that
§ 195.402(a) did not specifically require a procedure for removal of temperature probes because
removing and calibrating the probes was such a routine task the presence of a written procedure
in the manual would not have prevented the accident. Respondent, however, was not persuasive.
The regulation requires written procedures for conducting “normal operations and maintenance
activities…” Removal and calibration of temperature probes is clearly a normal operations and
maintenance activity. The fact that an operations or maintenance task is considered to be routine
does not negate the requirement to have and follow procedures for conducting it. Many
operations and maintenance tasks can be considered to be routine. Any avoidance of the
requirement to have procedures for the operations and maintenance tasks performed most
frequently by an operator would be inconsistent with the purpose of the regulation and could
have adverse safety consequences.
Respondent went on to argue that the individual who was removing the probe had over 30 years
of experience in pipeline maintenance and would not have even read the written procedure if it
existed. Respondent stated its view that this individual could not have been trained any more
than he was and that the accident was the result of “human error.” The level of experience of
any particular employee on a given operations or maintenance task, however, does not negate an
operator’s obligation to have written procedures for the task. The next time, it could be a newer
employee performing it but even experienced personnel need procedures. Written procedures
are effective because they enable operations and maintenance tasks to be performed safely and
consistently by all personnel.



3
Accordingly, after considering all of the evidence and the legal issues presented, I find that
Respondent violated 49 C.F.R. § 195.402(a) by failing to establish and follow a procedure for the
safe removal of the temperature probe.
This finding of violation will be considered a prior offense in any subsequent enforcement action
taken against Respondent.
ASSESSMENT OF PENALTY
Under 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed
$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any
related series of violations. In determining the amount of a civil penalty under 49 U.S.C.
§ 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,
circumstances, and gravity of the violation, including adverse impact on the environment; the
degree of Respondent’s culpability; the history of Respondent’s prior offenses; the Respondent’s
ability to pay the penalty and any effect that the penalty may have on its ability to continue doing
business; and the good faith of Respondent in attempting to comply with the pipeline safety
regulations. In addition, I may consider the economic benefit gained from the violation without
any reduction because of subsequent damages, and such other matters as justice may require.
Item 1: The Notice proposed a civil penalty of $100,000 for Respondent’s violation of 49
C.F.R. § 195.402(a), for failing to establish and follow a written procedure for the safe removal
of the temperature probe. In its Response and at the hearing, Respondent stated that it viewed
every job from a loss prevention perspective before beginning and that it never foresaw a
scenario where a Thermowell unit came out of a tank. Respondent argued that the penalty
amount proposed in the Notice was excessive, particularly in light of its earlier argument that the
existence of a procedure would not have prevented the accident.
To the contrary, however, the nature and circumstances of this accident actually highlight the
value of having and following procedures. If Respondent had established and followed a
procedure for removing temperature probes that included the use of a second wrench to ensure
the Thermowell unit did not loosen, the spill may never have happened. With regard to the
gravity and seriousness of the violation, the facility is located adjacent to a sole source aquifer
supplying drinking water to the greater Spokane area. The task of removing a through-wall
device had the potential for serious consequences in the event of an accident and at the time of
the incident there was no membrane below the tank. I acknowledge that EMPCO took prompt
action to contain the spill once the accident occurred and perform clean-up and removal of the
contaminated soil. With respect to the good faith penalty assessment factor, however,
Respondent made no good faith effort prior to the accident to develop a procedure for removal of
the temperature probes.
Accordingly, having reviewed the record and considered the assessment criteria, I assess
Respondent a civil penalty of $100,000 for violation of 49 C.F.R. § 195.402(a).
Payment of the civil penalty must be made within 20 days of service. Federal regulations
(49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through the Federal
Reserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed



4
instructions are contained in the enclosure. Questions concerning wire transfers should be
directed to: Financial Operations Division (AMZ-341), Federal Aviation Administration, Mike
Monroney Aeronautical Center, P.O. Box 269039, Oklahoma City, Oklahoma 73125. The
Financial Operations Division telephone number is (405) 954-8893.
Failure to pay the $100,000 civil penalty will result in accrual of interest at the current annual
rate in accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to
those same authorities, a late penalty charge of six percent (6%) per annum will be charged if
payment is not made within 110 days of service. Furthermore, failure to pay the civil penalty
may result in referral of the matter to the Attorney General for appropriate action in a district
court of the United States.
The Notice proposed a Compliance Order with respect to Item 1 in the Notice for violation of 49
C.F.R. § 195.402(a). Under 49 U.S.C. § 60118(a), each person who engages in the
transportation of hazardous liquids or who owns or operates a pipeline facility is required to
comply with the applicable safety standards established under chapter 601. The Director
indicates that Respondent submitted documentation demonstrating that on February 11, 2009 it
established and implemented a procedure for safely removing devices that protrude through
break out tank walls, including temperature probes. Accordingly, I find that compliance has
been achieved with respect to this violation. Therefore, the compliance terms proposed in the
Notice are not included in this Order.
Under 49 C.F.R. § 190.215, Respondent has the right to submit a petition for reconsideration of
this Final Order. Should Respondent elect to do so, the petition must be sent to: Associate
Administrator, Office of Pipeline Safety, PHMSA, 1200 New Jersey Avenue, SE, East Building,
2nd Floor, Washington, DC 20590, with a copy sent to the Office of Chief Counsel, PHMSA, at
the same address. PHMSA will accept petitions received no later than 20 days after receipt of
service of the Final Order by the Respondent, provided they contain a brief statement of the
issue(s) and meet all other requirements of 49 C.F.R. § 190.215. The filing of a petition
automatically stays the payment of any civil penalty assessed but does not stay any other
provisions of the Final Order, including any required corrective actions. If Respondent submits
payment of the civil penalty, the Final Order becomes the final administrative decision and the
right to petition for reconsideration is waived.
The terms and conditions of this Final Order are effective upon service in accordance with 49
C.F.R. § 190.5.
___________________________________ __________________________
Jeffrey D. Wiese Date Issued
Associate Administrator
for Pipeline Safety
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