Document 4vgnqgBnxExo9JnjayO575Opj

r Debs Gamblin To R. E. Lehmkuhl RECE,v^eTME) * SEP 0 1979 Date 8-31-79 The attached Is our response to the Federal Railroad Administration concerning fines on methyl chloride cars. We had sent you some previous'information on this, Ej^O- Lc* mbr Enclosure VMF 737777 Washington, D. C. 20590 Subject: Notice of Probable Violation FRA HMTA No. ZCOC-79-1 Continental Oil Company Gentlemen: Pursuant to alternatives described in 49 CFR, Sections 209.107 (a)(2) and 209.111 (a) Conoco Inc., formerly known as Continental Oil Company, hereby offers (without prejudice to any defenses permitted by law) to pay in com promise to the proposed assessments in the above referenced Notice of Pro bable Violation the following penalties: Count No. Proposed Assessment Compromise Offer 1 $2,000 $1,000 2 7,000- 0- - 3 7,000 2,500 TOTAL $16,000 $3,500 Vie believe the Federal Railroad Administration's proposed assessments will do nothing to produce positive action beyond that already undertaken by Conoco prior to and early after the incidents. Further, it is our opinion the proposed penalties are unreasonable in view of the available facts. Our objective is consistent with that of the Administration - the safe trans portation of hazardous materials. In support of this contention and of the compromise offer, your consideration of the attached statement is respect fully requested. Very truly yours, L. G. Hubbard Director, Hazardous Materials Transportation 9? cc: J. W. Dallman Manager, Wrenshall Refinery R. T. Ferrell Manager, Lake Charles Chemical Plant VMF ?3???8 Docket Clerk (RCC-1) (3 copies) Office of Chief Counsel Federal Railroad Administration 400 Seventh Street. S. H. Washington, 0. C. *.Q5y0 FEDERAL RAILROAD ADMINISTRATION Notice of Probable Violation FRA HMTA No. ZCOC-79-1 Continental Oil Company July 31, 1979 STATEMENT OF CONOCO INC. Due Date: August 30, 1979 Conoco Inc. 5 Greenway Plaza East Houston, Texas 77046 By: L. G. Hubbard Director, Hazardous Materials Transportation VMF 737779 A GENERAL COMMENTS It is the policy of Conoco Inc. to conduct all its activities in a safe manner, exposing neither employees nor the general public to unsafe operating practices. Exemplifying this philosophy in the area of hazardous materials transpor tation, Conoco's Surface Transportation Department has added two full time positions (Director of Hazardous Materials Transportation, and Director of Safety and Environmental Affairs) whose charge is to analyze, interpret and implement federal and state safety regulations, and to develop and im plement departmental safety programs for the transportation of hazardous products, supplies and equipment. Conoco Chemicals, a Division of Conoco Inc., Westlake, Louisiana, has dev eloped an in-depth training program concerning the transportation of hazardous materials in tankcars. The program combines the training techniques of class room audio/visual (coordinated slide/tape) instruction, field instruction (the application of classroom instruction to actual tankcar loading and un loading operations), and post-program testing. The training is given to shift supervisors, "top" operators, loaders, pumpers, shipping clerks, and safety personnel - everyone who is involved with the handling and shipping of hazardous materials. The program consists of the following segments: 1. Legal obligations and requirements (2 hours) Subject matter includes: 1974 Hazardous Materials Transportation Act; definitions for hazardous materials classification and hazard identification information; civil and criminal penalities for vio lations; the moral, legal, and economic objectives and obligations for the proper handling of hazardous materials. 2. Tankcar Anatomy (4 hours) Describes in detail the major parts of general purpose and pressure tankcars. Includes areas such as the running gear, tanks, safety appliances, and stenciling. 3. Pre-Trip Inspection (4 hours) Describes a systematic, "walk-around" inspection checklist for each type of tankcar. It points out areas both in classroom instruction and field instruction where defects, improper stenciling, etc. are prevalent and the remedies for these problems. 4. Safe Loading Procedures (2 hours) This segment describes safety hazards which may be encountered when loading and unloading cars. It explains how to deal with these situations as well as describing normal safe operating procedures. VMF 737780 General Comments Page 2 A Conoco has been an active participant of the CHEMTREC (Chemical Transpor tation Emergency Center) program for several years. In connection there with, Conoco has developed an internal emergency response program, the "Conoco CHEMTREC Emergency Call Manual", which details the purpose, scope, personnel responsibilities, and the procedures to be followed when respond ing to calls for emergency assistance. The Conoco CHEMTREC Center (CCC) Is located at the VCM Plant Control Room in the Westlake complex- Without failure, Conoco has responded either through telephone counsel or by pro viding on-site assistance whenever called upon concerning transportation Incidents which involve our products. It should be noted that Conoco historically has supported governmental and industrial innovations which enhance the safe handling and transportation of hazardous materials. SPECIFIC COMMENTS Summary of Violation, Count No. 1: "On or about March 6, 1978, respondent knowingly offered for transportation at its plant at Westlake, Louisiana, car number CONX 7998, a tankcar loaded with methyl chloride, classified as a flammable gas, which was not placarded in accordance with 49 C.F.R. 172.504(a)". Without question on March 7, 1978, a Conoco employee erroneously applied a "Flanmable" placard to CONX 7998 which, because it contained methyl chloride, required a "Flammable Gas" placard. We contend, however, that even though we as shipper had primary responsibility for applying the correct placard, the inconsistency of the "Flammable" placard with other hazard identification information should have curtailed the movement of the car and brought correc tive action in the early stage of transportation. Specifically, our shipping paper (FRA Exhibit E) correctly shows: Proper Shipping Name: "Methyl Chloride" Hazard Class: "Flammable Gas" Placard Notation: "Placarded Flammable Gas" Additionally, on this document as on all Conoco Chemical's shipments, we voluntarily applied the railroad devised "49 series" Standard Transportation Commodity Code number. The tankcar was also stenciled with the proper ship ping name in accordance with 49 CFR, Sections 172.330 (a)(l)(b)(c)(l) and 173.314 (a)(5). Section 172.508 (b) provides that "No rail carrier may accept a rail car containing a hazardous material for transportation unless the pla cards for the hazardous material are affixed thereto as required by this sub part". Further, Section 174.59 provides "No person may transport a rail car carrying hazardous materials unless it is marked and placarded as required by this subchapter". VMF 797781 General Comments Page 3 A In no sense do we wish to convey that placard errors are condoned. To the contrary, we want the FRA to know that positive action has been taken to prevent recurrence of such errors in our loading procedures at Westlake. One step is the training program discussed earlier which covers the pla carding aspect of loading responsibilities in depth. The most significant improvement, however. Is that signs which relate to the loader the shape, words, and color of the actual placard required for the product loaded have been placed on all the tankcar'loading racks. In view of the foregoing, we request that the FRA reduce the proposed asses sment for this violation to no more than $1,000. Summary of Violation, Count No. 2: "On the date and at the location specified in Count 1 above, respondent knowingly offered for transportation the car speci fied in Count 1, without determining that the fittings were in proper condition for the safe transportation of the lading, and without adequately securing the manway covers to prevent leakage of vapor and liquid, in violation of 49 C.F.R. 173.31 (b)(1) and (3)". There is no question that car number CONX 7998 was leaking vapor to the atmos phere from the left side of the manway cover plant flange when inspected by Mr. C. H. Laws on March 8, 1978, at the Southern Pacific Railroad's yard at Lake Charles, Louisiana. The car was, in fact, however, not leaking when it was offered to the Kansas City Southern Railroad at Westlake on March 7, 1978. Every effort was made by Conoco to ensure the car was safely secured and free of leaks. Our Tankcar Loading Report, which at that time served as a pre-trip inspection summary, specifically indicates the car was not leaking at the time loading was completed. According to 173.31 (b)(1) "When tanks are loaded and prior to shipping, the shipper must determine to the extent practicable, that the tank, safety appur tenances and fittings are in proper condition for the safe transportation of the lading", and 173.31 (b)(3) provides in part that "Manway covers and outlet valve caps must be made tight against leakage of vapor and liquid, by use of gaskets of suitable materials before cars are tendered to carrier for trans portation". Conoco did fulfill the mandate of the regulations cited by the FRA. It should also be noted that 49 CFR, Section 174.9 (a) provides in part that "Each loaded placarded tankcar must be inspected by the carrier before acceptance at the originating point and when received in interchange to see that it is not leaking___ Section 174.12 (a) provides in part "An intermediate shipper or carrier may not forward or transport a shipment of hazardous materials if it does not meet the requirements of this subchapter". Apparently, neither the Kansas City Southern nor the Southern Pacific Railroads found the car to be leaking at origin or at interchange. VMF 737782 General Comments Page 4 A Lacking In Mr. C. H. Laws' written account of the alleged violation on CONX 7998 is the fact that Conoco Chemicals* Safety Director, Mr. S. F. Pitts responded to the Southern Pacific Railroad's request for assist ance on March 8, 1978, when Inspector Laws discovered the car to be leak ing in the Southern Pacific's Lake Charles yard. Mr. Pitts unsuccess fully attempted to stop the leak by further tightening the flange nuts before he ordered the car returned to Conoco's plant for unloading. The failure to curtail the leak by tightening the flange indicated the exist ence of a problem other than the nuts being improperly tightened. This was substantiated when it was subsequently discovered at the Cities Service repair shop that the flange was minutely "cocked" and,therefore, prone to intermittent leaking even though the gasket was sound and the nuts were properly secured at time of loading. That which we have discussed regarding Count No. 2 up to this point is history. As with Count No. 1, the most significant thing which we wish to convey is that Conoco's safety philosophy dictates that our operations personnel must go beyond ensuring "to the extent practicable", as pro vided in Section 173.31 (b)(1), that our tankcars are safe when tendered to the railroads for transportation. Immediately following the incident with CONX 7998, our Westlake Chemical Plant management took certain steps beyond those recognized as normally reasonable to eliminate similar situa tions in the future. Excerpting from Mr. S. F. Pitts* March 13, 1978 memo to the Operations Supervisors in the Westlake Plant: "All pressure cars, after loading is complete, are to have all plugs, packing, and relief valves checked for leaks by soap testing. Any evidence of leaks must be corrected before reporting the car ready for shipping. This check is to be noted on the loading report. It is advisable that a soap test be made before load ing so that if correction requires the car to be empty, we v/ill not have to unload the product. This should apply to tanktrucks also". In view of the fact that the evidence substantiates CONX 7998 was properly secured and free of leaks when it was tendered to the originating carrier on March 7, 1978, and in view of the positive safety actions undertaken by Conoco immediately thereafter, we request that the FRA withdraw in its en tirety the proposed assessment under Count No. 2. Summary of Violation, Count No. 3: "On or about September 11, 1978, respondent knowingly offered for transportation at Wrenshall, Minnesota, car number CONX 9250, a tankcar loaded with liquified petroleum gas, which was filled in excess of the maximum filling density permitted for that car, in violation of 49 C.F.R., Section 173.314 (f)". The thoroughness and exactness with which District Supervisor Anunsort investi gated the September 11, 1978, unintentional overload of CONX 9250 was con-, firmed by Conoco's internal investigation of the incident. Not even partial exoneration is sought based on the "arithmetic" facts presented. VMF 737783 General Comments Page 5 A We remain perplexed that the incident occurred despite the well documented intent to allow even more than the required minimum safe outage. We share Mr. Anunson's expressed opinion, therefore, that the "evidence obtained does not Indicate Continental Oil Company willfully or knowingly overfilled CONX 9250........ Whether expressed by Mr. Anunson or not, we vehemently disagree with the FRA's contention (Reference Sunvnary of Violation, Count No. 3, Addendum A) that Conoco "knowingly offered for transportation......... CONX 9240..........which was filled in excess of the maximum filling density permitted......... We shall not dwell on this matter except to point out that Section 110 of the Hazardous Materials Transportation Act (49 U.S.C. 1809), upon which the FRA obtains its authority to conduct a proceeding to assess a civil penalty, limits such action to "any person (except an employee who acts without knowledge) who is determined...........to have knowingly committed an act which is a violation of a provision of this title or of a regulation issued under this title, shall be liable to the United States for a civil penalty". And, in the next sentence of Section 110 the phrase "knowingly commits" is associ ated with "any person who transports or causes to be transported........... We are grateful that this incident was resolved without injury to any person or damage to any property. Even though no fault was found in the Wrenshall Refinery's procedures, the safety awareness level at that facility has been greatly intensified. In our search for some criteria on which to evaluate the level of proposed assessment, we reviewed the examples of actual penalties published in every issue of the Department of Transportation's "Hazardous Materials Newsletter" (formerly the "Office of Hazardous Materials Newsletter") from January, 1976, through June, 1979. Only one penalty for an incident of apparently similar circumstances and gravity is shown; that being in the August, 1977, issue which is synopsized as follows: Union Carbide (Shipper) - Overfilling tankcar with LPG. Plugs and valves not properly secured. Penalty $2,500. Conoco Inc. requests that the Federal Railroad Administration reduce the pro posed assessment for Count No. 3 to no more than $2,500. SUMMARY To the best of our knowledge this citation is the first such offense for which Conoco Inc. has been cited by the Federal Railroad Administration. In view of this record, in view of the foregoing discussion of the individual counts, and most important because Conoco Inc. lives by a safety philosophy in which minimum standards are simply not enough, we respectfully seek the Administration's acceptance of the compromise offer to pay the amounts herein stated. VMF 737764 Deb Gamblin To fconoco) received AUG 13 1979 Oate A 8-^ RECE'VED VMF 737785 /v.r; * . DEPARTMENT 0? TRANSPORTATION .' -;' FEDERAL ItAlLROAD ADMIHaSTHATION' ; .: Washington, D.C. 2QS3U v*>% \ * ,* ** |*'*` . * / * : > NOTICE OPPROEARLE VIOLATION PRA 8M?ft K&. *; 2C0C-7S-T . V.tvill, "C f J5W :y ? s Continent*) Oil Coopsny l >< .1,: Andrew K, IfcColpin, <*- : *% RGggiiasett*atiB a&tsrad i Senior Vice President and -V/.- General Counsel J. A, ,. Continental Oil;Conva?yr -V" ' "..*,Ty\VV-'/`:.-*'s.'{/*>'. *}>.*.; ;' */'. .> .' . ... . - Hicjh;fild3& Park . " ,. . Stafford*' Connecticut go>qvic3atk>>'s *3* ''* -;r 'v -1** ;.-* 0690* ,; .V 5 ^ L I t .* . -- HUS d *> i9/3 it T. SHSMAH frc^alt^oocsfrd fcsassssnent * $16,000 fy;: SK.-f-.V v.U ?: __p -The cfcov^efeirenccd respondent Is Iieiebj -charged with violating the :0W312) and the Department i-.CPR Parts K^ias). ; mis f0oce&S^g Ss.iastftutsd basis of s^diie allegations set forth In Addendum''A; Notice and In the fteld investigation reports which are enclosed herewith /.*.. f, v nnd hvo-cspcrated frareart by reference, '?> : fr: Adrotnlstrativa assessment of civil penalties Is autliork'ed by section 110 of vV*-..: vS}". ' ; '^^.llaL^ardttjs Materials Trm^wteUon Act pea^tty of up to 010,000 for. each violation (-15 and U,S.C. J3G9), which prescribes requires that certain factors be ;. IridetETfoining the amount of penalty in s particular matter, hi the cd&a . *i>f Ji contiru'iitKj victatib?), each cay consUtutes e separate offense, federal i5- ..itaibrcittil Administration (FRA) proccdiares./or the assessment of penalties for' rented to t?wpc?t\ition o? shipment in the rail mtIe are set forth In vtf.v 'fi'v op.: * V.y '>>s- of .-Title Code of Federal Itc^ulatlcns. Addendum B to this Hoiica tte Tight c? tha respondent Ac reqit^i an or*) heartng and ^esevibes eitstfhativissj av^Uahle for the di^osition of this matter. Failure to reply tp this tfoUoe within thirty (3D) days of the date of issuanca >v. .^prjsUtUtco a 'walv^r. of any'right to contest the- allegations and authorizes the ,3.-` Chief-. Ccu*>scj^ PftA, to find the facts to be as alleged and to assess the cWH p^sbalty forth abwve. :** *? y For Raymond K. James Chief Counsel * .'a/: * r-*>J*ii.* * .'v. . % * i>. -V' 3. THOMAS PUliPHY Assistant Chic* Couns3 PJiforcstiicnt Division / ' ------ VMF 737793 W3c_ -2>5S_ T^vvJ ^ 'V; > .* Addendum B-- ........ ......................- KoUee of Ih'cbable Violation Oa,r^??2iJV.pC.tbli..Kotise, you niY prc^cee<t in ohe o! the Coliowlng wdvs{49- .. CrBSZ&Mlh ^ . .. ..................... .- 3-`"t0 '.. Voa[.may c7f.qi.jto puy th^ pc'C^65iHl j>a3lty and clow the case. 49 v* ^ *CfR*5 203.fc33.. Payment thould be made by certifies) cheek or money order payable- * ..... y>: . v> t>^^ed*4inaiirodd Ad^inistretio^ AcoounUr^ Division (HAt>-43)# 2100 Second 8tra$4* 3W., Washington* D-Ov 295S0, T . y.*,(2) You may make an informs) t-ospon^e, which slfould include written explanation end information in answer to or .In mitigation of the charges and may inebxSO n request for on informal conference. 49 CFft S 299.111. After considering" s* 4:*f. ,eil cf.tb# intavnatioci presented, FRA wilt take final action .to dismiss the HoUco \Ct tp;Assess a civil penalty, a* appropriate/ ' i `. > .. -<v .. - . .* . - ' ^*-5'rnay request . ruv oral bearing. to be {resided over by an %y Jud^.; authorised: to render a decision m;this proceedij^,vA ;v^r&Qt5tst hearing'must be made In writing and must contain the information ;^;;.rqi4fcdfey 49 CPR $ 20&J1X:. f:,},..;p ; - ` Falharc ioresoond in accordance with oijc of the alternatives set forth hbove witfein thirty f-SD) day^Of the data of issuance of this KoUce constitutes a waiver of the'merits-of the allegations or the amount of gV; before VRApr any eou/t and authorizes the Chief Counsel or his delegate v/.vto1 find tb$. facts to be; as alleged and to assess.a penally in the amount set forth in tlri3 fjpldcft. 49 CjPRa 2d$.197' 7he thirty <30) day period may be extended upon a - s\ of gopd'cat0i innde in wrltlrgL '* _ S';' y-'tf ` ^XtesporjdefVt may offer to compromise a proposed or essessad penalty at any poor torofetra) td; the Attorney Coneral for collection by contacUrg the! *. Assistant Chief.Counsel, enforcement Division* Office of Chief Counsel, FRA, 400 ^Ashingtoh* 0*0*. 20SS0. $f:* V,v.i Ail materials filed Ift this proceeding, other then correspondence related to"" Sfetllemcht, should be addressed to the Docket Cleric (RCC-3), Office of :>Ci\lpl;.C6uhseV Federal Railroad Administration*-. 400 Seveth Street, 3.W., r^-^oshl^to^ D.C. 20590. r.v. v - i-. .-..QueaUc^s concerning this. procee<^hg may t>a directed to tlic Pnfcrcement ** Ofnc& of..Chief Counsel. Phones (202)' 429-S235. . * .* : ' * ''; <5 f' l` ' X .Sbi -f<f; w . * VH? 737795