{"operation":"document","citation":"CPF 52024014NOPV","title":"MIDWAY SUNSET COGENERATION CO — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2024-07-11","effective_on":null,"summary":"CLOSED notice of probable violation citing 192.605(a), 192.705(b), 192.805(b).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-52024014nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-52024014nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-52024014nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/52024014NOPV","body":"Notice of Probable Violation involving MIDWAY SUNSET COGENERATION CO. PHMSA's enforcement data identifies the cited regulations as 192.605(a),  192.705(b),  192.805(b). The case was opened on 2024-07-11 and is reported as closed as of 2024-10-01. Proposed civil penalty: $43,000. Assessed civil penalty: $21,500. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n52024014NOPV_Final Order_09252024_(23-264914).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52024014NOPV/52024014NOPV_Final%20Order_09252024_(23-264914).pdf\n\n52024014NOPV_Final Order_09252024_(23-264914)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52024014NOPV/52024014NOPV_Final%20Order_09252024_(23-264914)_text.pdf\n\n52024014NOPV_Operator Response to Notice_08092024_(23-264914).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52024014NOPV/52024014NOPV_Operator%20Response%20to%20Notice_08092024_(23-264914).pdf\n\n52024014NOPV_PCP_07112024_(23-264914).pdf: https://primis.phmsa.dot.gov/enforcement-documents/52024014NOPV/52024014NOPV_PCP_07112024_(23-264914).pdf\n\n52024014NOPV_PCP_07112024_(23-264914)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/52024014NOPV/52024014NOPV_PCP_07112024_(23-264914)_text.pdf\n\n52024014NOPV_Final Order_09252024_(23-264914)_text.pdf\n\nSeptember 25, 2024\nVIA ELECTRONIC MAIL TO: lpollema@midwaysunset.com\nLowell Pollema\nExecutive Director\nMidway Sunset Cogeneration Company\n3466 W. Crocker Springs Road\nFellows, California 93224\nRe: CPF No. 5-2024-014-NOPV\nDear Mr. Pollema:\nEnclosed please find the Final Order issued in the above-referenced case. It withdraws one of\nthe allegations of violation, makes a finding of violation, and assesses an adjusted civil penalty\nof $21,500. The penalty payment terms are set forth in the Final Order. This enforcement action\ncloses automatically upon receipt of payment. Service of the Final Order by e-mail is effective\nupon the date of transmission and acknowledgement of receipt as provided under 49 C.F.R.\n§ 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Dustin Hubbard, Director, Western Region, Office of Pipeline Safety, PHMSA\nMr. Michael Williams, DOT Primary Compliance, Midway Sunset Cogeneration Co.,\nmwilliams@midwaysunset.com\nMr. Greg Jans, Plant Manager, Midway Sunset Cogeneration Co.,\nmanagement@midwaysunset.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 )\nMidway Sunset Cogeneration Company, ) )\n)\n)\nRespondent. )\n_____________________________________)\nCPF No. 5-2024-014-NOPV\nFINAL ORDER\nFrom March 6 through March 9, 2023, 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 Midway\nSunset Cogeneration Company’s (Midway or Respondent) natural gas transmission line from the\nKern River tie-in to the Midway Plant in Fellows, California.\nAs a result of the inspection, the Director, Western Region, OPS (Director), issued to\nRespondent, by letter dated July 11, 2024, a Notice of Probable Violation and Proposed Civil\nPenalty (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that\nMidway had committed two violations of 49 C.F.R. Part 192 and proposed assessing a civil\npenalty of $43,000 for the alleged violations. The Notice also included an additional two\nwarning items pursuant to 49 C.F.R. § 190.205, which warned Respondent to correct the\nprobable violations or face possible future enforcement action.\nMidway responded to the Notice by letter dated August 9, 2024 (Response). In its Response,\nRespondent contested Notice Item 3 and its associated civil penalty. Midway did not contest\nNotice Items 1, 2, or 4. Respondent did not request a hearing and therefore has waived its right\nto one.\nFINDING OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 192, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 192.605(a), which states:\n§ 192.605 Procedural manual for operations, maintenance, and\nemergencies.\n\n\n\n(a) General. Each operator shall prepare and follow for each pipeline, a\nmanual of written procedures for conducting operations and maintenance\nactivities and for emergency response. For transmission lines, the manual\nmust also include procedures for handling abnormal operations. This\nmanual must be reviewed and updated by the operator at intervals not\nexceeding 15 months, but at least once each calendar year. This manual\nmust be prepared before operations of a pipeline system commence.\nAppropriate parts of the manual must be kept at locations where operations\nand maintenance activities are conducted.\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.605(a) by failing to follow its\nwritten procedures for conducting operations and maintenance (O&M) activities. Specifically,\nthe Notice alleged that the Midway-Sunset Mojave Gas Operation Manual stated that the O&M\nmanual review will be performed in July of each year, but Midway could not produce records\nevidencing that the O&M manual reviews were performed in 2019, 2020, 2021, or 2022.\nIn its Response, Midway stated that it did not contest the allegation of violation. Accordingly,\nafter considering all of the evidence, I find that Respondent violated 49 C.F.R. § 192.605(a) by\nfailing to follow its written procedures for conducting O&M activities.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 192.705(b), which states:\n§ 192.705 Transmission lines: Patrolling.\n(a)....\n(b) The frequency of patrols is determined by the size of the line, the\noperating pressures, the class location, terrain, weather, and other relevant\nfactors, but intervals between patrols may not be longer than prescribed in\nthe following table:\nMaximum interval between patrols\nClass\nlocation of\nAt highway and railroad\nline\ncrossings\nAt all other places\n1,2\n7 ½ months; but at least twice\n15 months; but at least\neach calendar year\nonce each calendar year.\n3\n4 ½ months; but at least four\n7 ½ months; but at least\ntimes each calendar year\ntwice each calendar year.\n4\n4 ½ months; but at least four\n4 ½ months; but at least\ntimes each calendar year\nfour times each calendar\nyear.\n\n\n\nThe Notice alleged that Respondent violated 49 C.F.R. § 192.705(b) by failing to observe surface\nconditions on the transmission line right-of-way for indications of leaks, construction activity, and\nother factors affecting safety and operation on its pipeline in a Class 1 location at highway or railroad\ncrossings every 7½ months but at least twice each calendar year. Specifically, the Notice alleged\nthat Midway failed to conduct the required patrol frequency in time periods including June 28,\n2019, to April 27, 2020; April 27, 2020, to April 13, 2021; and April 13, 2021, to December 21,\n2021.\nIn its Response, Midway stated that it located the records of its patrols over those time periods.\nMidway provided copies demonstrating completion of the required patrol frequencies. In a\nrecommendation for final action submitted pursuant to § 190.209(b)(7), the Director\nrecommended withdrawing the alleged violation of § 192.705(b).\nAccordingly, after considering all of the evidence, I find that Midway did not fail to comply with\n§ 192.705(b). Based upon the foregoing, I hereby order that Item 3 be withdrawn.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty exceeding\n$200,000 per violation for each day of the violation, with a maximum administrative civil\npenalty exceeding $2,000,000 for any related series of violations.1\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 $43,000 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $21,500 for Respondent’s violation of 49 C.F.R.\n§ 192.605(a), for failing to follow its written procedures for conducting O&M activities. In its\nResponse, Midway did not present any evidence or argument justifying a reduction in or\nelimination of the proposed penalty. Accordingly, having reviewed the record and considered\nthe assessment criteria, I assess Respondent a civil penalty of $21,500 for violation of 49 C.F.R.\n§ 192.605(a).\nItem 3: The Notice proposed a civil penalty of $21,500 for Respondent’s alleged violation of 49\nC.F.R. § 192.705(b). Since this alleged violation has been withdrawn, for the reasons set forth\nabove, the proposed civil penalty shall also be withdrawn.\nIn summary, having reviewed the record and considered the assessment criteria for each of the\n1 These amounts are adjusted annually for inflation. See 49 C.F.R. § 190.223 for adjusted amounts.\n\n\n\nItems cited above, I assess Respondent a total adjusted civil penalty of $21,500.\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.\nWARNING ITEMS\nWith respect to Items 2 and 4, the Notice alleged probable violations of Part 192, but identified\nthem as warning items pursuant to § 190.205. The warnings were for:\n49 C.F.R. § 192.605(a) (Item 2) ─ Respondent’s alleged failure to update and\nreview its Emergency Response Plan (ERP) manual at intervals not exceeding 15\nmonths, but at least once each calendar year; and\n49 C.F.R. § 192.805(b) (Item 4) ─ Respondent’s alleged failure to confirm\nthrough evaluation that individuals performing covered tasks were qualified.\nMidway presented information in its Response showing that it had taken certain actions to\naddress the 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\nbrief statement of the issue(s) and meet all other requirements of 49 C.F.R. § 190.243. The filing\nof a petition automatically stays the payment of any civil penalty assessed. The other terms of\nthe order, including any corrective action, remain in effect unless the Associate Administrator,\nupon request, grants a stay. If Respondent submits payment of the civil penalty, the Final Order\nbecomes the final administrative decision and the right to petition for reconsideration is waived.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\n\n\n\nC.F.R. § 190.5.\nSeptember 25, 2024\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":13056}