W. Va. Code R. § 150-4-11

Current through Register Vol. XLI, No. 19, May 10, 2024

Section 150-4-11 - Inspections, Enforcement and Appeals

11.1. Enforcement Procedures -- Intrastate Gas § 150-4-11. Inspections, Enforcement and Appeals, and Hazardous Liquid Pipeline Operators.

11.1.1. The purpose and scope of the Intrastate Enforcement Procedures is to describe the enforcement authority and sanctions exercised by the Public Service Commission of West Virginia - Gas Pipeline Safety for achieving and maintaining pipeline safety. It also prescribes the procedures governing the exercise of that authority and the imposition of those sanctions.

11.2. Definitions

11.2.1. "Operator" means a person who engages in the transportation of gas or hazardous liquids by pipeline.

11.2.2. "Gas" means natural gas, flammable gas or gas which is toxic or corrosive.

11.2.3. "Hazardous Liquid" means

(i) petroleum or any petroleum product; and

(ii) any substance or material which is in liquid state (excluding liquified natural gas) when transported by pipeline facilities and which, as determined by the Commission, may pose an unreasonable risk to life or property when transported by pipeline facilities: Provided, that a hazardous liquid as herein defined shall not be construed so as to include or permit the regulation of any substance transported through pipeline or otherwise when used in the operation of coal mines, coal processing plants or coal slurry pipelines: Provided, however, that the Commission shall not determine that any substance or material is a hazardous liquid under this section if the Secretary of Transportation has not determined that the substance or material is a hazardous liquid under regulations promulgated in accordance with Section 202(2) of the Hazardous Liquid Pipeline Safety Act of 1979.

11.2.4. "Pipeline" means all parts of those physical facilities through which gas or a hazardous liquid moves in transportation including but not limited to pipe, valves and other appurtenance attached to pipe, compressor units, pumping units, metering stations, delivery stations, regulator stations, holders, break-out tanks and fabricated assemblies.

11.2.5. "Person" means any individual, firm, joint venture, partnership, corporation, association, state, municipality, cooperative association or joint-stock association, and includes any trustee, receiver, assignee or personal representative thereof.

11.2.6. "Transportation of gas" means the gathering, transmission or distribution of gas by pipeline or its storage.

11.2.7. "Transportation of hazardous liquids" means the movement of hazardous liquids by pipeline, or their storage incidental to such movements; except that it shall not include any such movement through gathering lines in rural locations or on-shore production, refining or manufacturing facilities or storage, or in-plant piping systems associated with any of such facilities.

11.2.8. "Pipeline facility" means, without limitation, new and existing pipe, pipe rights-of-way and any equipment, facility or building used in the transportation of gas or the treatment of gas during the course of transportation, or used in the transportation of hazardous liquid or the treatment of hazardous liquid during the course of transportation; but "right-of-way" as used in Chapter 24B of the W. Va. Code, as amended, does not authorize the Commission to prescribe the location or routing of any pipeline facility.

11.3. Jurisdiction -- The West Virginia Legislature has empowered the Public Service Commission to prescribe and enforce safety standards and to regulate safety practices of persons engaged in the transportation of gas or hazardous liquids by pipeline to the extent permitted by the "Natural Gas Pipeline Safety Act of 1968" ("Act of 1968") and the "Hazardous Liquid Pipeline Safety Act of 1979" ("Act of 1979") and any amendments thereto as set forth and adopted in Chapter 24B of the W. Va. Code, as amended.

11.3.1. The regulations issued under the "Act of 1968" and the "Act of 1979" promulgated by the Office of Pipeline Safety of the United States Department of Transportation and published in Title 49, CFR (Code of Federal Regulations) Parts 191, 192, 195 and 199 apply to all pipeline companies.

11.3.2. The Safety Standards of the Act (the Pipeline Safety Regulations) apply to the design, installation, inspection, testing, construction, extension, operation, replacement and maintenance of pipeline facilities. Standards affecting the design, installation, construction, initial inspection and testing are not applicable to pipeline facilities in existence on the date such standards are adopted.

11.3.3. The Commission is authorized to prescribe additional safety standards that apply to intrastate operators. Such safety standards shall be practicable and designed to meet the needs for pipeline safety. When prescribing and enforcing such standards, the Commission will consider:

11.3.4. Relevant available pipeline safety data;

11.3.5. whether such standards are appropriate for the particular type of pipeline transportation;

11.3.6. the reasonableness of any proposed standards; and

11.3.7. the extent to which such standards will contribute to public safety.

11.3.8. Whenever the Commission finds a particular facility to be hazardous to life or property, it is empowered to require the person operating such facilities to take steps necessary to remove such hazards.

11.4. Authority to Inspect -- The Commission has the power to investigate all methods and practices of pipeline companies; to require the maintenance and filing of reports, records and other information in such form and detail as the Commission may prescribe; to enter upon and to inspect the property, buildings, plants, and offices of such pipeline companies; and to inspect books, records, papers and documents relevant to the enforcement of the rules and regulations.

11.5. Inspection Intervals -- Upon presentation of appropriate credentials, the Commission or its designated employee is authorized to enter upon, inspect and examine, at reasonable times and in a reasonable manner, the records and properties of persons to the extent such records and properties are relevant to determining the compliance of such persons with the rules and regulations or Commission orders issued thereunder.

11.5.1. A review of the operator's operating, maintenance and emergency procedures will be conducted at intervals not to exceed eighteen (18) months under normal circumstances. Master meter inspections will be performed at 2 ½ year intervals under normal circumstances. However, this does not preclude inspections and/or reviews of the procedures more frequently as deemed necessary.

11.5.2. Inspections shall ordinarily be conducted pursuant to one of the following:

11.5.2.a. routine scheduling;

11.5.2.b. a complaint received from a member of the public;

11.5.2.c. information obtained from a previous inspection;

11.5.2.d. pipeline accident or incident; or

11.5.2.e. whenever deemed appropriate by the Commission or the Director of Gas Pipeline Safety.

11.6. Inspection of the Operators.

11.6.1. An attempt will be made, in accordance with Rule 11.5., to inspect every operator, with priority given to inspecting those systems with greater risk potential. In determining the potential risk of a pipeline system, the following factors may be considered:

11.6.1.a. the ratio of total steel pipe to coated steel pipe;

11.6.1.b. the ratio of total steel pipe to cathodically protected steel pipe;

11.6.1.c. leaks per mile of pipe;

11.6.1.d. leaks per number of services;

11.6.1.e. unaccounted-for-gas volumes and percentages;

11.6.1.f. the number of accidents or facility failures;

11.6.1.g. footage of cast iron pipe in the system; and

11.6.1.h. past history of the operator.

11.6.2. The inspection will include a thorough review of the operator's records concerning inspection, operation, maintenance and emergency procedures. Field inspection will include operational checks of corrosion control provisions, overpressure and regulating equipment, odorization, repaired leaks, emergency valves and any other components of the facility.

11.7. Verbal Notice to Operator of Violation.

11.7.1. When an inspection of an operator's records or facilities or both, indicate that the operator is in apparent violation of a pipeline safety regulation, the investigator will give verbal notice of the alleged violation to the operator before concluding the inspection.

11.7.2. Any documentation of physical evidence necessary to support the alleged violation may be obtained during the inspection or requested by letter immediately after the conclusion of the visit.

11.7.3. The operator may institute on-site corrective measures when a violation exists. However, enforcement of such alleged violations will proceed.

11.8. Written Formal Notice of Violation -- After evidence of an alleged violation is collected and the violation report is written, notice and opportunity to respond will be afforded the operator by a certified letter from the Pipeline Safety Director. The letter will notify the operator of the results of the on-site inspection and will specifically cite the regulation(s) or rule(s) the operator is allegedly violating. Further, the letter may contain a proposed civil penalty or a compliance order. A written response from the operator shall be submitted to the Pipeline Safety Director within 30 days of the time the operator receives the violation notice.

11.9. Options Open to the Operator.

11.9.1. Alternatives open to the operator to respond to the violation notice are:

11.9.1.a. submit a written statement to the Pipeline Safety Director indicating corrective measures have achieved compliance;

11.9.1.b. submit a written plan of action to the Pipeline Safety Director outlining the corrective measures that will be taken to achieve compliance and when compliance is anticipated; or

11.9.1. c request an informal conference with the Pipeline Safety staff to discuss the violations.

11.9.2. The alleged violations may be resolved at this stage if the information submitted in Rule 11.9.1.a. or Rule 11.9.1.b. is accepted by the Pipeline Safety staff. Such acceptance shall be verified by a written statement issued by the Pipeline Safety Director following a reinspection of the operator's facilities. However, if the operator selects the third option, an informal conference will be scheduled as explained below.

11.10. Informal Conference -- After receiving a request for an informal conference, a date and time will be arranged. At this conference the basis of the alleged violation will be reviewed. The operator may explain the company's position and may present alternatives for solution of the problem. The Gas Pipeline Safety staff will be represented by the investigator involved and by such other members of the Commission staff as designated by the Pipeline Safety Director. The violation may be resolved at this stage. If agreement cannot be reached, enforcement procedures shall continue.

11.11. Commission Action -- If the proposed solution as outlined is not satisfactory to the Gas Pipeline Safety Staff, the violation shall be referred to the Public Service Commission for formal resolution in either of the following manners:

11.11.1. The Commission may seek an injunction or mandamus in a state circuit court in cases where immediate action is necessary; or

11.11.2. The Commission may issue a show-cause order and/or schedule a hearing requiring the operator to demonstrate why the operator should be subject to the penalties set forth in West Virginia Code Chapter 24B, Article 4, Section 6, as amended. This section permits civil penalties of $1,000 for each violation, with total fines not to exceed $200,000 for any related series of violations subject to standards as hereinafter noted. Any civil penalty imposed by the Commission shall be based on:

11.11.2.a. the appropriateness in relation to the size of the business of the person charged,

11.11.2.b. the gravity of the violation,

11.11.2.c. the good faith of the person charged in attempting to achieve compliance,

11.11.2.d. the history of prior violations, and

11.11.2.e. other matters as justice may require.

11.11.3. The Commission may, pursuant to hearing, order an operator to take corrective action. Failure to obey such an order can result in:

11.11.3.a. fines under W. Va. Code, Chapter 24B, Article 4, Section 6,

11.11.3.b. action by the Commission against the operator in a state circuit court,

11.11.3.c. action by the Commission against the operator in the West Virginia Supreme Court of Appeals, or,

11.11.3.d. action by the Commission against the operator in any federal circuit court having jurisdiction.

11.12. Hazardous Facility Order

11.12.1. Whenever the Commission or the Director of Gas Pipeline Safety shall find a particular facility to present an imminent hazard to life or property, it shall be empowered to require the owner or operator of the facility to take immediate steps necessary to correct such hazards. Corrective action may include suspended or restricted use of the facility, physical inspection, testing, repair, replacement, or other action, as appropriate.

11.12.2. An opportunity shall be given for a hearing as soon as practicable after the issuance of any order hereunder, in accordance with Chapter 24B, Article 4, Section 1, of the W. Va. Code, as amended and, in no event later than ten (10) days after suspension of the use of a major facility. The Director of Pipeline Safety shall rescind or suspend a "hazardous facility order" whenever he determines that the facility is no longer hazardous to life or property. When appropriate, however, such a rescission or suspension may be accompanied by a notice of violation issued under Rule 11.8.

11.13. Appeal -- Any operator subject to an order from the Public Service Commission may petition the Commission for reconsideration of the order under Rule 19 of the Commission's Rules of Practice and Procedure. Moreover, any operator aggrieved by an order of the Public Service Commission may seek relief from the West Virginia Supreme Court of Appeals under W. Va. Code, Chapter 24B, Article 6, Section 1.

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W. Va. Code R. § 150-4-11

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