{"operation":"document","citation":"CPF 120115010","title":"BUCKEYE PARTNERS, LP — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2011-10-18","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(c)(3), 195.505(b).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120115010.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120115010.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120115010","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120115010","body":"Notice of Probable Violation involving BUCKEYE PARTNERS, LP. PHMSA's enforcement data identifies the cited regulations as 195.402(c)(3),  195.505(b). The case was opened on 2011-10-18 and is reported as closed as of 2013-04-05. Proposed civil penalty: $141,200. Assessed civil penalty: $141,200. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120115010_Closure Letter_0405013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120115010/120115010_Closure%20Letter_0405013_text.pdf\n\n120115010_Closure Letter_04052013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120115010/120115010_Closure%20Letter_04052013.pdf\n\n120115010_Final Order_10232012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120115010/120115010_Final%20Order_10232012.pdf\n\n120115010_Final Order_10232012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120115010/120115010_Final%20Order_10232012_text.pdf\n\n120115010_NOPV_PCP_PCO_10182011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120115010/120115010_NOPV_PCP_PCO_10182011.pdf\n\n120115010_NOPV_PCP_PCO_10182011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120115010/120115010_NOPV_PCP_PCO_10182011_text.pdf\n\n120115010_Operator_Response_to_Notice_11172011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120115010/120115010_Operator_Response_to_Notice_11172011.pdf\n\n120115010_Closure Letter_0405013_text.pdf\n\nU.S. Department Of Transportation Pipeline and 609.989.2171\nHazardous Materials\nSafety Administration\n820 Bear Tavern Road, Suite 103\nWest Trenton, NJ 08628\nOVERNIGHT EXPRESS MAIL\nApril 05, 2013\nCarl Ostach\nVice President, Domestic Operations\nBuckeye Partners, L.P.\nFive TEK Park\n9999 Hamilton Blvd,\nBreinigsville, PA 18031\nCPF 1-2011-5010\nDear Mr. Ostach:\nOn October 23, 2012, the Pipeline and Hazardous Materials Safety Administration (PHMSA),\nOffice of Pipeline Safety (OPS), issued to Buckeye Partners, L.P. (Buckeye) a Final Order in the\nabove-referenced case. This Order included a Compliance Order and Civil Penalty assessment.\nSubsequently, we received Buckeye’s civil penalty payment on November 9, 2012. We also\nhave received your letter dated January 18, 2013, wherein you summarized the actions taken to\ncomply with this Order, along with the documents that were enclosed with it. Based on our\nreview of the documents that you provided, and confirmation of payment of the civil penalty, it\nhas been determined that you have complied with the terms of this Order.\nAccordingly, this case is now closed and no further action is contemplated with respect to the\nmatters involved in this case.\nThank you for your cooperation in this matter.\nSincerely,\nByron E. Coy, PE\nDirector, Eastern Region\nPipeline and Hazardous Materials Safety Administration\n\n120115010_Closure Letter_04052013.pdf\n\nU.S. Department\nOf Transportation\n820 Bear Tavern Road, Suite 103\nPipeline and\nWest Trenton, NJ 08628\nSafety Administration\nHazardous Materials\n609.989.2171\nOVERNIGHT EXPRESS MAIL\nApril 05, 2013\nCarl Ostach\nVice President, Domestic Operations\nBuckeye Partners, L.P.\nFive TEK Park\n9999 Hamilton Blvd,\nBreinigsville, PA 18031\nCPF 1-2011-5010\nDear Mr. Ostach:\nOn October 23, 2012, the Pipeline and Hazardous Materials Safety Administration (PHMSA),\nOffice of Pipeline Safety (OPS), issued to Buckeye Partners, L.P. (Buckeye) a Final Order in the\nabove-referenced case. This Order included a Compliance Order and Civil Penalty assessment.\nSubsequently, we received Buckeye's civil penalty payment on November 9, 2012. We also\nhave received your letter dated January 18, 2013, wherein you summarized the actions taken to\ncomply with this Order, along with the documents that were enclosed with it. Based on our\nreview of the documents that you provided, and confirmation of payment of the civil penalty, it\nhas been determined that you have complied with the terms of this Order.\nmatters involved in this case.\nAccordingly, this case is now closed and no further action is contemplated with respect to the\nThank you for your cooperation in this matter.\nSincerely,\nByron E. Coy, PI\nDirector, Eastern Region\nPipeline and Hazardous Materials Safety Administration\n\n120115010_Final Order_10232012_text.pdf\n\nOCTOBER 23, 2012\nMr. Clark Smith\nPresident & Chief Executive Officer\nBuckeye Partners, LP\nOne Greenway Plaza\nSuite 600\nHouston, TX 77046\nRe: CPF No. 1-2011-5010\nDear Mr. Smith:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation, assesses a civil penalty of $141,200, and specifies actions that need to be taken by\nBuckeye Partners, LP, to comply with the pipeline safety regulations. The penalty payment\nterms are set forth in the Final Order. When the civil penalty has been paid and the terms of the\ncompliance order completed, as determined by the Director, Eastern Region, this enforcement\naction will be closed. Service of the Final Order by certified mail is deemed effective upon the\ndate of mailing, or as otherwise 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. Byron Coy, Director, Eastern Region, OPS\nMr. Alan Mayberry, Deputy Associate Administrator for Field Operations, OPS\nMr. Jeremiah J. Ashcroft, Sr. Vice President, Global Operations, Buckeye Partners, LP,\nFive TEK Park, 9999 Hamilton Boulevard, Breinigsville, PA 18031\nCERTIFIED MAIL - RETURN 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____________________________________\n)\nIn the Matter of )\n)\nBuckeye Partners, LP, ) CPF No. 1-2011-5010\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nPursuant to 49 U.S.C. § 60117, a representative of the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA), Office of Pipeline Safety (OPS), conducted an investigation of an\naccident involving the pipeline system operated by Buckeye Partners, LP (Buckeye or\nRespondent), that occurred in Boothwyn, Pennsylvania. Buckeye owns and operates\napproximately 6,000 miles of pipelines transporting petroleum products, including gasoline, jet\nfuel, diesel fuel, heating oil and kerosene, from major supply sources to distribution terminals\nlocated in major end-use markets in the Northeast and the Upper Midwest.1\nThe investigation arose out of an April 28, 2008 accident at Buckeye’s Booth Station that\ninvolved the release of approximately 2,142 gallons of fuel oil from a breakout tank designated\nas Tank 1. The spill occurred when the tank was returned to service following a repair on the\ntank bottom.\nAs a result of the investigation, the Director, Eastern Region, OPS (Director), issued to\nRespondent, by letter dated October 18, 2011, a Notice of Probable Violation, Proposed Civil\nPenalty, and Proposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the\nNotice proposed finding that Buckeye had violated 49 C.F.R. §§ 195.402(c)(3) and 195.505(b),\nand proposed assessing a civil penalty of $141,200 for the alleged violations. The Notice also\nproposed ordering Respondent to take certain measures to correct the alleged violations.\nBuckeye responded to the Notice by letter dated November 17, 2011 (Response). The company\ndid not contest the first of the two allegations; provided an explanation of its actions and\ninformation concerning the corrective actions it had taken; requested that the second allegation\nbe reduced to a Notice of Amendment; and requested that the proposed civil penalty be reduced\nor eliminated. Respondent did not request a hearing and therefore has waived its right to one.\n1 http://www.buckeye.com/BusinessOperations/PipelineTransportationOperations/tabid/584/Default.aspx (last\naccessed September 26, 2012).\n\n\n\n2\nFINDINGS 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(c)(3), which states:\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. . . .\n(c) Maintenance and normal operations. The manual required by\nparagraph (a) of this section must include procedures for the following to\nprovide safety during maintenance and normal operations:\n(1) . . .\n(3) Operating, maintaining, and repairing the pipeline system in\naccordance with each of the requirements of this subpart and subpart H of\nthis part.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.402(c)(3) by failing to prepare and\nfollow procedures for repairing its pipeline system in accordance with Subparts F and H of Part\n195. Specifically, it alleged that Buckeye failed to have procedures in place to provide safety\nduring the Tank 1 repair, which involved drilling atmospheric monitoring holes in the tank\nbottom, one of which was not patched and resulted in a spill of 2,142 gallons of fuel oil.2 The\nNotice alleged that Buckeye failed to prepare and follow a process for ensuring that all of the\nholes were properly patched prior to returning the tank to service.\nIn its Response, Buckeye did not contest this allegation of violation and acknowledged that it did\nnot have an adequate procedure for ensuring that all holes drilled in preparation for tank bottom\nrepairs were patched.\n3 Accordingly, based upon a review of all of the evidence, I find that\nRespondent violated 49 C.F.R. § 195.402(c)(3) by failing to prepare and follow procedures for\nrepairing its pipeline system in accordance with Subparts F and H of Part 195.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.505(b), which states:\n§ 195.505 Qualification program.\nEach operator shall have and follow a written qualification program. The\nprogram shall include provisions to:\n2 Pipeline Failure Investigation Report, Pipeline Safety Violation Report (Violation Report), October 18, 2011 (on\nfile with PHMSA), Exhibit A-1 at page 1.\n3 Response at 1.\n\n\n\n3\n(a) . . .\n(b) Ensure through evaluation that individuals performing covered\ntasks are qualified; . . . .\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.505(b) by failing to ensure through\nevaluation that an individual performing a covered task under the company’s operator\nqualification (OQ) program was qualified. Specifically, the Notice alleged that Buckeye had no\ndocumented evaluation demonstrating that the individual performing welding on its breakout\ntanks during the 2008 tank repair work at Booth Station was qualified for this particular task.\nIn its Response, Buckeye stated that at the time the repair work took place, welding on out-of-\nservice breakout tanks was not a covered task under its Operator Qualification (OQ) program.\nBuckeye noted that PHMSA representatives had reviewed its OQ program in 2004 and in 2008\nbut did not identify welding on out-of-service breakout tanks as a task that needed to be included\namong the company’s list of covered tasks. Buckeye further argued that if PHMSA believed\nsuch a task needed to be included as a covered task, the agency should address the issue through\na Notice of Amendment (NOA),\n4 rather than a Notice of Probable Violation and Proposed Civil\nPenalty.\nI do not find such arguments persuasive. First, the record shows that Buckeye personnel\nacknowledged during the investigation that welding was indeed a covered task under the\ncompany’s OQ program.5 Second, the NOPV did not allege Buckeye failed to include welding\nas a covered task in its OQ program. Rather, the NOPV alleged that the particular individual\nperforming a covered task at the time of the repair was not qualified by evaluation. Buckeye was\nunable to produce any OQ qualification record for this individual at the time of PHMSA’s\ninvestigation or with its Response. Third, it would have been inappropriate to address a failure to\nqualify a particular individual through an NOA since the company’s noncompliance did not\nreflect an inadequacy of procedures but, rather, a failure to train and qualify a particular\nindividual.\nAccordingly, after considering all of the evidence and the legal issues presented, I find that\nRespondent violated 49 C.F.R. § 195.505(b) by failing to ensure through evaluation that an\nindividual performing a covered task was qualified under its OQ program.\nThese findings of violation will be considered prior offenses in any subsequent enforcement\naction taken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n4 An NOA is a type of PHMSA enforcement action under 49 C.F.R. 190.237 that alleges an operator’s procedures\nare inadequate but does not include an allegation of violation or a proposed civil penalty.\n5 In an e-mail dated June 6, 2008, a Buckeye representative effectively acknowledged that it considered welding to\nbe an OQ task by stating that “…there was only one OQ task being conducted and that was welding.” Violation\nReport, Exhibit A-6.\n\n\n\n4\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.6 In determining the amount of a civil penalty under\n49 U.S.C. § 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.\nThe Notice proposed a total civil penalty of $141,200 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $100,000 for Respondent’s violation of\n49 C.F.R. § 195.402(c)(3) for failing to prepare and follow procedures for repairing its pipeline\nsystem in accordance with Subparts F and H of Part 195. As discussed above, I found that\nBuckeye failed to have a procedure ensuring that all of the holes drilled in preparation for a tank\nrepair were patched prior to returning the tank to service.\nThe nature, circumstances, and gravity of this violation are significant in light of the fact that a\nlarge fuel oil tank was involved. Moreover, there were serious consequences from the failure to\npatch all of the holes drilled in the tank bottom because this violation was the direct cause of a\nspill of over 2000 gallons of fuel oil. The accident occurred at a facility that has 19 tanks and an\noffice building. The safety of numerous Buckeye personnel could have been at risk if the fuel oil\nhad ignited. In addition, the facility is located in a High Consequence Area near an elementary\nschool and an ecologically sensitive area, where the public and the environment could have been\nat risk if the fuel oil had ignited.\nI recognize that Buckeye has now revised its tank repair procedures, but this does not diminish\nits culpability at the time of the violation or constitute a good-faith effort to comply with the\nregulation prior to the violation. Respondent has presented no information or arguments that\nwould warrant a reduction in the proposed penalty. Accordingly, having reviewed the record and\nconsidered the assessment criteria, I assess Respondent a civil penalty of $100,000 for violation\nof 49 C.F.R. § 195.402(c)(3).\nItem 2: The Notice proposed a civil penalty of $41,200 for Respondent’s violation of\n49 C.F.R. § 195.505(b), for failing to ensure through evaluation that an individual performing a\ncovered task was qualified under the company’s OQ program.\nThe nature, circumstances, and gravity of this violation are significant in light of the fact that\nwelding of a large fuel oil tank was involved. Welding involves the introduction of an ignition\nsource in an area where petroleum product vapors may be present. Critical safety issues\ninvolved in OQ welder training include confined-space entry and abnormal operating conditions.\n6 Effective January 3, 2012, the maximum administrative civil penalties for violations of the federal pipeline safety\nregulations were doubled to $200,000 per violation with a maximum of $2,000,000 for a related series of violations\n(The Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (Pub. L. 112-90)). Because the violations\nin this case occurred prior to the increase, the higher maximums do not apply.\n\n\n\n5\nHaving an individual that is not OQ qualified perform welding on a tank increases the risk of an\naccident or injuries to the non-qualified individual himself and to others in the vicinity, as\ndemonstrated by this accident. I recognize that Buckeye has now taken steps to ensure tank\nrepair welding is performed by an OQ qualified individual, but this does not diminish the gravity\nof the violation or constitute a good-faith effort by the company to comply with the regulation\nprior to the violation.\nRespondent has presented no information or arguments that would warrant a reduction in the\nproposed penalty. Accordingly, having reviewed the record and considered the assessment\ncriteria, I assess Respondent a civil penalty of $41,200 for violation of 49 C.F.R. § 195.505(b).\nIn summary, having reviewed the record and considered the assessment criteria for each of the\nItems cited above, I assess Respondent a total civil penalty of $141,200.\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\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 $141,200 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.\nCOMPLIANCE ORDER\nThe Notice proposed a Compliance Order with respect to Items 1 and 2 in the Notice for\nviolations of 49 C.F.R. §§ 195.402(c)(3) and 195.505(b), respectively. Under\n49 U.S.C. § 60118(a), each person who engages in the transportation of hazardous liquids or who\nowns or operates a pipeline facility is required to comply with the applicable safety standards\nestablished under chapter 601.\nWith respect to the violation § 195.402(c)(3) (Item 1), the Director has indicated that Respondent\nhas established procedures to ensure that all holes drilled during tank bottom repairs are patched\nprior to returning the tank to service, including documenting the number and location of all holes\ndrilled. Accordingly, I find that compliance has been achieved with respect to this violation.\nThe compliance terms proposed in the Notice for Item 1 are therefore not included in this Order.\nAs for the remaining compliance terms, pursuant to the authority of 49 U.S.C. § 60118(b) and\n49 C.F.R. § 190.217, Respondent is ordered to take the following actions to ensure compliance\nwith the pipeline safety regulations applicable to its operations:\n\n\n\n6\n1. With respect to the violation of § 195.505(b) (Item 2), Respondent must provide\nfor documented training and qualification of individuals performing welding on\nits breakout tanks to ensure such individuals are qualified under its OQ program.\n2. Within 90 days following receipt of this Order, Respondent must submit\ndocumentation demonstrating compliance with the above item to the Director,\nEastern Region, Pipeline and Hazardous Materials Safety Administration, Suite\n103, 820 Bear Tavern Road, West Trenton, NJ 08628.\n3. It is requested, but not required, that Respondent maintain documentation of the\nsafety improvement costs associated with fulfilling this Compliance Order and\nsubmit the total to the Director. Costs should be reported in two categories: (1)\ntotal cost associated with preparation/revision of plans, procedures, studies, and\nanalyses; and (2) total cost associated with personnel training or any physical\nchanges to pipeline facilities and infrastructure.\nThe Director may grant an extension of time to comply with any of the required items upon a\nwritten request timely submitted by the Respondent and demonstrating good cause for an\nextension.\nFailure to comply with this Order may result in administrative assessment of civil penalties not\nto exceed $100,000 for each violation for each day the violation continues or in referral to the\nAttorney General for appropriate relief in a district court of the United States.\nUnder 49 C.F.R. § 190.215, Respondent has a 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 this 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. Unless the Associate\nAdministrator, upon request, grants a stay, all other terms and conditions of this Final Order are\neffective upon service in accordance with 49 C.F.R. § 190.5.\n___________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":22795}