{"operation":"document","citation":"CPF 120165007","title":"BUCKEYE PARTNERS, LP — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2016-08-25","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.214(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120165007.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120165007.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120165007","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120165007","body":"Notice of Probable Violation involving BUCKEYE PARTNERS, LP. PHMSA's enforcement data identifies the cited regulation as 195.214(a). The case was opened on 2016-08-25 and is reported as closed as of 2024-12-06. Proposed civil penalty: $38,200. Assessed civil penalty: $38,200. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120165007_Amended NOPV PCP PCO_07312017.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Amended%20NOPV%20PCP%20PCO_07312017.pdf\n\n120165007_Amended NOPV PCP PCO_07312017_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Amended%20NOPV%20PCP%20PCO_07312017_text.pdf\n\n120165007_Closure Letter_12062024_(15-149858S).pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Closure%20Letter_12062024_(15-149858S).pdf\n\n120165007_Closure Letter_12062024_(15-149858S)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Closure%20Letter_12062024_(15-149858S)_text.pdf\n\n120165007_Consent Agreement and Order_02092023_(15-149858S).pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Consent%20Agreement%20and%20Order_02092023_(15-149858S).pdf\n\n120165007_Consent Agreement and Order_02092023_(15-149858S)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Consent%20Agreement%20and%20Order_02092023_(15-149858S)_text.pdf\n\n120165007_Final Order_10102019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Final%20Order_10102019.pdf\n\n120165007_Final Order_10102019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Final%20Order_10102019_text.pdf\n\n120165007_NOPV PCP PCO_08252016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_NOPV%20PCP%20PCO_08252016.pdf\n\n120165007_NOPV PCP PCO_08252016_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_NOPV%20PCP%20PCO_08252016_text.pdf\n\n120165007_Operator Post-Hearing Submission_07202018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Operator%20Post-Hearing%20Submission_07202018.pdf\n\n120165007_Operator Pre-Hearing Brief_01152018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Operator%20Pre-Hearing%20Brief_01152018.pdf\n\n120165007_Operator Response Notice_09142016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Operator%20Response%20Notice_09142016.pdf\n\n120165007_Operator Response to Amended Notice Letter and Request for Hearing_08252017.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Operator%20Response%20to%20Amended%20Notice%20Letter%20and%20Request%20for%20Hearing_08252017.pdf\n\n120165007_Operator Response to Amended Notice_08252017.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_Operator%20Response%20to%20Amended%20Notice_08252017.pdf\n\n120165007_PHC Hearing Rescheduled_04042018_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_PHC%20Hearing%20Rescheduled_04042018_text.pdf\n\n120165007_PHC Hearing Scheduled_03072018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_PHC%20Hearing%20Scheduled_03072018.pdf\n\n120165007_PHC Hearing Scheduled_03072018_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_PHC%20Hearing%20Scheduled_03072018_text.pdf\n\n120165007_PHC_Hearing_Rescheduled_04042018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120165007/120165007_PHC_Hearing_Rescheduled_04042018.pdf\n\n120165007_Consent Agreement and Order_02092023_(15-149858S)_text.pdf\n\nFebruary 9, 2023\nVIA ELECTRONIC MAIL TO: trusso@buckeye.com\nMr. Todd Russo\nPresident and Chief Executive Officer\nBuckeye Partners, LP\n4200 Westheimer Road, # 975\nHouston, Texas 77027\nCPF No. 1-2016-5007\nDear Mr. Russo:\nEnclosed please find a Consent Order incorporating the terms of the Consent Agreement between\nthe Pipeline and Hazardous Materials Safety Administration (PHMSA) and Buckeye Partners, LP\nwhich was executed on February 7, 2023. Service of the Consent Order and Consent Agreement\nby e-mail is deemed effective upon the date of mailing and acknowledgement of receipt, or as\notherwise provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure: Order and Consent Agreement\ncc: Ms. Linda Daugherty, Deputy Associate Administrator for Field Operations, Office of\nPipeline Safety, PHMSA\nMr. Robert Burrough, Director, Eastern Region, Office of Pipeline Safety, PHMSA\nMr. Evan Hofmann, Vice President, General Counsel and Secretary, Buckeye Partners, LP,\nehofmann@buckeye.com\n\n\n\nMr. William Serra, Vice President, Operations, Eastern Region, Buckeye Partners, LP,\nwserra@buckeye.com\nMs. Claudia Pankowski, Director of Regulatory Compliance, Buckeye Partners, LP,\ncpankowski@buckeye.com\nMs. Catherine Little, Esq., Bracewell LLP, Outside Counsel for Buckeye Partners, LP,\ncatherine.little@bracewell.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 )\nBuckeye Partners, LP, ) CPF No. 1-2016-5007\n)\n)\n)\nRespondent. )\n____________________________________)\nCONSENT ORDER\nBy letter dated July 31, 2017, the Pipeline and Hazardous Materials Safety Administration\n(PHMSA), Office of Pipeline Safety, issued an Amended Notice of Probable Violation, Proposed\nCivil Penalty, and Proposed Compliance Order (Amended Notice) to Buckeye Partners, LP\n(Buckeye or Respondent). Buckeye responded to the Amended Notice by letter dated August 25,\n2017, and requested a hearing. A hearing was held on June 13, 2018, in West Trenton, New\nJersey before a PHMSA Presiding Official. On October 10, 2019, PHMSA issued a final order\ndirecting Buckeye to take certain actions to ensure compliance with the pipeline safety\nregulations.\nBuckeye met with PHMSA to discuss alternative solutions to the Compliance Order regarding\nfield weld destructive testing. As a result of discussions between PHMSA and Respondent, and\nin consideration of prior inspection and test records, the API standard applicable to field welds,\nand the environmental implications of the Compliance Order, the Parties agree that settlement of\nthis matter will be beneficial and will avoid further administrative proceedings or litigation.\nAccordingly, the enclosed Consent Agreement is hereby approved and incorporated by reference\ninto this Consent Order. Buckeye is hereby ordered to comply with the terms of the Consent\nAgreement, effective immediately. Pursuant to 49 U.S.C. § 60101, et seq., failure to comply with\nthis Consent Order may result in the assessment of civil penalties as set forth in 49 C.F.R.\n§ 190.223.\nThe terms and conditions of this Consent Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nFebruary 9, 2023\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety\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 )\nBuckeye Partners, LP, ) CPF No. 1-2016-5007\n)\n)\n)\nRespondent. )\n____________________________________)\nFrom October 2, 2015, through November 13, 2015, pursuant to 49 U.S.C. § 60117, a\nrepresentative of the New York State Department of Public Service, as agent for the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), conducted\nan on-site pipeline safety inspection of a pipeline construction project of Buckeye Partners, LP\n(Buckeye or Respondent), at the Genesee River in Livingston County, New York.\nAs a result of the inspection, the Director, Eastern Region, OPS (Director), issued to Respondent,\nby letter dated August 25, 2016, a Notice of Probable Violation, Proposed Civil Penalty, and\nProposed Compliance Order (Initial Notice). In accordance with 49 C.F.R. § 190.207, the Notice\nproposed finding that Buckeye had violated 49 C.F.R. § 195.214(a)1 and proposed assessing a civil\npenalty of $38,200 for the alleged violation. The Initial Notice also proposed ordering Respondent\nto take certain measures to correct the alleged violation.\nBuckeye responded to the Initial Notice by letter dated September 14, 2016, as supplemented by\nletter dated April 13, 2017. Buckeye did not contest the allegation of violation and provided copies\nof its revised welding procedures. Following an exchange of correspondence with OPS, by letter\ndated June 1, 2017, Buckeye disagreed with the manner in which OPS expected it to meet the\nterms of the proposed Compliance Order.\nOn July 31, 2017, the Director issued an Amended Notice of Probable Violation, Proposed Civil\nPenalty, and Proposed Compliance Order (Amended Notice) that superseded the Initial Notice,\nand which amended the testing requirement for field welds2 in the compliance terms of the Initial\nCONSENT AGREEMENT\n1 Section 195.214(a) states “Welding must be performed by a qualified welder or welding operator in accordance\nwith welding procedures qualified under section 5, section 12 or Appendix A of API Std 1104 (incorporated by\nreference, see § 195.3), or section IX of ASME Boiler and Pressure Vessel Code (BPVC) (incorporated by reference,\nsee § 195.3). The quality of the test welds used to qualify welding procedures must be determined by destructive\ntesting.”\n2 A field weld is a production weld that the meets the acceptance standards for non-destructive testing on Section 9\nof API 1104 (20th edition, October 2005).\n\n\n\nNotice. In accordance with 49 C.F.R. § 190.207, the Amended Notice proposed finding that\nBuckeye had violated 49 C.F.R. § 195.214(a) and proposed assessing a civil penalty of $38,200\nfor the alleged violation. The Amended Notice also proposed ordering Respondent to take certain\nmeasures to correct the alleged violation. Buckeye responded to the Amended Notice by letter\ndated August 25, 2017, and requested a hearing on the new terms of the Amended Notice’s\nProposed Compliance Order. Notwithstanding the hearing request for the Amended Notice,\nBuckeye paid the proposed civil penalty of $38,200 on January 12, 2018.\nA hearing was subsequently held on June 13, 2018, in West Trenton, New Jersey before a PHMSA\nPresiding Official. During the hearing, Buckeye did not contest the allegation, but explained the\ndifficulty of obtaining numerous field welds for qualification testing, including the considerable\nexpense and environmental disturbance that would require. Buckeye argued that a more limited\nfield testing of the welds would be considered an acceptable industry practice under the\ncircumstances. During the hearing, the Director and Buckeye came to an agreement on the field\ntesting and Buckeye agreed to no longer contest the issuance of a final order with compliance\nterms as modified pursuant to that agreement.\nOn October 10, 2019, PHMSA issued a final order (“Final Order”) directing Buckeye to take the\nfollowing actions to ensure compliance with the pipeline safety regulations:\n1) Cut out all thirty-six (36) existing in-service welds, and weld new girth welds in\naccordance with §195.214(a); or\n2) Buckeye must cut out one (1) field weld created using its qualified procedure, Weld\nProcedure Specification P15A (qualified on November 13, 2015), from the existing\nthirty-six (36) in-service girth welds and perform all of the destructive testing\nrequirements on the one (1) weld (including tensile, nick break, and bend tests) as\nset forth in API 1104 for welding procedure qualification purposes for 10-inch\ndiameter pipe. To the extent not all of the destructive testing can be conducted on\nthe one (1) weld, Buckeye must cut out one (1) additional weld to perform the\nnecessary testing. If the field weld(s) pass the qualification testing, then the existing\ngirth welds may remain in service. Otherwise, all remaining in-service girth welds\nmust be cut out and replaced with new girth welds in accordance with §195.214(a).\nPrior to the removal of the existing weld(s) for testing, Buckeye must provide ten\n(10) days advance notice to the Eastern Region to enable observation of testing.\nTesting is to be accomplished within 180 days of receipt of the Final Order.\nOn January 22, 2020, Buckeye informed the Director of its intent to comply with the Compliance\nOrder and cut out one (1) field weld using its qualified procedure on February 12, 2020. Buckeye\ncut out and removed an in-service field weld from the Genesee River crossing and performed the\ndestructive testing in accordance with API 1104 for welding procedure qualification (Section 5).\nThe field weld passed API 1104 welding procedure acceptance criteria intended for a procedure\nqualification weld, including tensile testing, bend testing, and the first nick break test. The second\nnick break test did not meet the acceptability for welding procedure qualification under API 1104\nSection 5, due to a slag inclusion. While the slag inclusion was unacceptable according to welding\n\n\n\nprocedure qualification in API 1104 Section 5, it was within acceptable limits for a field weld\nwhich is evaluated using API Standard 1104, Section 9.\nAs a result of discussions between PHMSA and Respondent (collectively, the Parties), and in\nconsideration of the following: 1) 2015 radiographic inspection that occurred during construction;\n2) the hydrostatic pressure test that was performed before this segment was placed into service in\n2015; 3) tensile, root, and face destructive testing that confirmed the strength and ductility of the\nwelds; 4) the length of the slag inclusion in the second nick-break specimen was approximately\ntwelve (12) percent of the allowable length for a slag inclusion in API 1104, Section 9 for field\nwelds; and 5) the environmental implications of having to remove the remaining thirty-five (35)\nfield welds, the Parties agree that settlement of this matter will be beneficial and will avoid further\nadministrative proceedings or litigation.\nTherefore, upon consent and agreement, the Parties hereby agree as follows:\nI. General Provisions\n1. Respondent acknowledges that as the operator of the Genesee River crossing in\nLivingston County, New York (i.e., the Affected Segment as defined below), Respondent is\nsubject to the jurisdiction of the Federal pipeline safety laws, 49 U.S.C. § 60101, et seq., and the\nregulations and administrative orders issued thereunder. For purposes of this Agreement,\nRespondent acknowledges that it received proper notice of PHMSA's action in this proceeding and\nthat the Final Order states claims upon which relief may be granted pursuant to 49 U.S.C. 60101,\net seq., and the regulations and orders issued thereunder.\n2. After Respondent returns this signed Agreement to PHMSA, the Agency’s\nrepresentative will present it to the Associate Administrator for Pipeline Safety, recommending that\nthe Associate Administrator adopt the terms of this Agreement by issuing an administrative order\n(Consent Order) incorporating the terms of this Agreement. The terms of this Agreement constitute\nan offer of settlement until accepted by the Associate Administrator. Once accepted, the Associate\nAdministrator will issue a Consent Order incorporating the terms of this Agreement.\n3. Respondent consents to the issuance of the Consent Order, and hereby waives any\nfurther procedural requirements with respect to its issuance. Respondent waives all rights to contest\nthe adequacy of notice, or the validity of the Consent Order or this Agreement, including all rights\nto administrative or judicial hearings or appeals, except as set forth herein.\n4. This Agreement shall apply to and be binding upon PHMSA, and upon Buckeye, its\nofficers, directors, and employees, and its successors, assigns, or other entities or persons otherwise\nbound by law. Respondent agrees to provide a copy of this Agreement and any incorporated work\nplans and schedules to all of Buckeye’s officers, employees, and agents whose duties might\nreasonably include compliance with this Agreement.\n5. This Agreement constitutes the final, complete and exclusive agreement and\nunderstanding between the Parties with respect to the settlement embodied in this Agreement. The\nParties acknowledge that there are no representations, agreements or understandings relating to\n\n\n\nsettlement other than those expressly contained in this Agreement, except that the terms of this\nAgreement may be construed by reference to the Final Order.\n6. Nothing in this Agreement affects or relieves Respondent of its responsibility to\ncomply with all applicable requirements of the Federal pipeline safety laws, 49 U.S.C. § 60101, et\nseq., and the regulations and orders issued thereunder. Nothing in this Agreement alters PHMSA's\nright of access, entry, inspection, and information gathering or PHMSA's authority to bring\nenforcement actions against Buckeye pursuant to the Federal pipeline safety laws, the regulations\nand orders issued thereunder, or any other provision of Federal or State law.\n7. For all transfers of ownership or operating responsibility of Respondent’s pipeline\nsystem referenced herein, Respondent will provide a copy of this Agreement to the prospective\ntransferee at least thirty (30) days prior to such transfer. Respondent will provide written notice of\nthe transfer to the Director no later than sixty (60) days after the transfer occurs.\n8. This Agreement does not waive or modify any Federal, State, or local laws or\nregulations that are applicable to Respondent’s pipeline systems. This Agreement is not a permit,\nor a modification of any permit, under any Federal, State, or local laws or regulations. Respondent\nremains responsible for achieving and maintaining compliance with all applicable Federal, State,\nand local laws, regulations and permits.\n9. This Agreement does not create rights in, or grant any cause of action to, any third\nparty not party to this Agreement. The U.S. Department of Transportation is not liable for any\ninjuries or damages to persons or property arising from acts or omissions of Respondent or its\nofficers, employees, or agents carrying out the work required by this Agreement. Respondent\nagrees to hold harmless the U.S. Department of Transportation, its officers, employees, agents, and\nrepresentatives from any and all causes of action arising from any acts or omissions of Respondent\nor its contractors in carrying out any work required by this Agreement.\n10. Upon issuance of the Consent Order, Respondent agrees to perform the Corrective\nMeasures set forth below.\nII. Corrective Measures\nDefinitions:\nAffected Segment – The “Affected Segment” means the section of pipe replaced in 2015\n(Line 803 Station Number 3415+43 to 3427+12) also known as Buckeye’s Genesee River\ncrossing in Livingston County, New York.\nDirector – The Director, Eastern Region, PHMSA, OPS, 840 Bear Tavern Rd., Ste. 300,\nWest. Trenton, New Jersey 08628.\nDay – Calendar day.\n\n\n\n11. In-line Inspection (“ILI”). For the remaining thirty-five (35) in-service production\nwelds within the Affected Segment, Buckeye must conduct integrity assessments for all threats\nidentified including the following:\na. Respondent will assess the line segment from Auburn Station to Rochester\nTerminal (“Inspection Segment”), including the Affected Segment for the\nthreats of third-party damage, corrosion, and denting using Deformation and\nMetal Loss ILI tools, using high-resolution (HR) magnetic flux leakage (HR-\nMFL) and HR deformation tools with deformation-extended sensor arms not\nlimited by pig cups, in accordance with its Integrity Management Manual\n(IMM) requirements. The last assessment was in March 2020 and there were\nno deformation or metal loss conditions identified within the Affected\nSegment. The next assessment deadline for the segment including the\nAffected Segment is March 25, 2023. Respondent will provide the Director\nwith the final ILI results for the Affected Segment within thirty (30) days of\nreceiving them from the vendor.\nb. For newly identified threats, assessments must be completed within two (2)\nyears of identification.\nc. Within twelve (12) months of the Effective Date, Respondent will assess the\nInspection Segment, including the Affected Segment, for the threat of girth\nweld cracking using a Circumferential Ultrasonic Crack Detection ILI tool.\nA response plan will be developed to address any girth welds that exhibit\ninternal diameter (ID) or outer diameter (OD) surface breaking cracking or\ncrack-like indications in the girth weld or heat affected zone (HAZ).\nRespondent will provide the Director with the final ILI results for the\nAffected Segment within thirty (30) days of receiving them from the vendor.\n12. Waterway Crossing Inspection. Respondent will continue to monitor the navigable\nGenesee River crossing of the Affected Segment as required by its 195 Operations and Maintenance\n(O&M) Manual Section F-26 (Navigable Waterways) and its IMM Appendix M-1 (Waterway\nCrossing Program). The last waterway dive inspection was performed in 2018 and the next\ninspection deadline is April 17, 2023. Respondent will provide the Director with the final results\nfor the Affected Segment within thirty (30) days of receiving them from the vendor.\n13. Opportunistic Girth Weld Inspections. Respondent will revise its IMM Appendix\nE-8 (Pipeline Supplemental Field Inspection) to include supplemental (i.e., opportunistic) girth weld\ninspections for the Affected Segment. As such, during planned excavations the next upstream and\ndownstream girth welds will be exposed for evaluation, as practical given site conditions. Buckeye\nwill provide the amended procedures to the Director within thirty (30) days of the Effective Date.\n14. Valves. For the valves located at West River Road (3458+48), downstream of the\nGenesee River, and Hartwell Road (3279+53), upstream of the Genesee River, Buckeye must:\na. Convert the manual mainline valve at Hartwell Road to an automated shutoff\nvalve no later than December 31, 2023.\n\n\n\nb. Have continuous valve status monitoring (open, closed, or partial\nclosed/open), including upstream pressure and downstream pressure.\nc. Inspect each mainline valve to determine that it is functioning properly,\nincluding exercise of the valve to ensure full closure, at least four (4) times\neach calendar year, at intervals not exceeding 120 days.\nd. Buckeye must repair or replace any valve used to isolate a leak or rupture\nthat is discovered to be inoperable or unable to maintain shutoff as soon as\npracticable, but no later than six (6) months after discovery.\n15. Field Activity Notices to PHMSA. Before performing field activities (i.e., any time\nthe Affected Segment is exposed to the atmosphere for assessment), Buckeye must give a minimum\nfourteen (14) day notice to the Director to enable PHMSA to observe. Exception: Immediate\nresponse conditions do not require fourteen (14) day notice. However, Buckeye must notify the\nDirector no later than two (2) business days after the immediate condition is discovered.\n16. Reporting. Buckeye must submit a biannual report to the Director regarding the\ninformation below as it relates to the Affected Segment. PHMSA must receive the biannual report\nevery six (6) months, starting on the last day of the sixth month after the Effective Date of the\nConsent Order. For example, the biannual reports for a Consent Order dated January 3, 2022, must\nbe received by PHMSA no later than July 31 and January 31. The report must include:\na. any occurrence of exceeding the maximum interval between right-of-way\n(ROW) patrols;\nb. mainline valves found to be inoperable or unable to maintain shutoff,\nincluding the location of the valve, date of discovery, and date of repair;\nc. any new integrity threats identified;\nd. results of any ILI or direct assessments performed; and\ne. all repairs on the pipeline that occurred, including the location of the repair,\ndate of discovery, date of repair, and estimated product loss, if any.\n17. Extensions of Time. The Director may grant an extension of time for compliance\nwith any of the terms of the Agreement upon a written request timely submitted demonstrating good\ncause for an extension. The Director shall respond in writing to any such request.\n18. Appeals. Respondent may appeal any decision of the Director to the Associate\nAdministrator for Pipeline Safety. Decisions of the Associate Administrator will be final.\nIV. Dispute Resolution\n19. The Director and Buckeye will informally attempt to resolve any disputes arising\nunder this Agreement. If Respondent and the Director are unable to informally resolve the dispute\nwithin fifteen (15) calendar days after the dispute is first raised, in writing, to the Director,\n\n\n\nRespondent may submit a written request for a determination resolving the dispute from the\nAssociate Administrator for Pipeline Safety providing all information that Respondent believes is\nrelevant to the dispute. If the request is submitted as provided herein, the Associate Administrator\nwill issue a final determination in writing. Decisions of the Associate Administrator under this\nparagraph will constitute final agency action. The existence of a dispute and the PHMSA's\nconsideration of matters placed in dispute will not excuse, toll, or suspend any term or timeframe\nfor completion of any work to be performed under this Agreement during the pendency of the\ndispute resolution process, except as agreed by the Director or the Associate Administrator in\nwriting, or ordered by a court of competent jurisdiction.\nV. Enforcement\n20. This Agreement, including all plans and schedules incorporated by reference, is\nsubject to all enforcement authorities available to PHMSA under 49 U.S.C. §60101, et seq., and\n49 C.F.R. Part 190, including administrative civil penalties under 49 U.S.C. §60122, of up to\n$200,000 per violation for each day the violation continues and referral of the case to the Attorney\nGeneral for judicial enforcement, if PHMSA determines that Respondent is not complying with the\nterms of this Agreement in accordance with determinations made by the Director, or if appealed, in\naccordance with decisions of the Associate Administrator. The maximum civil penalty amounts\nare adjusted annually for inflation. See, e.g., Pipeline Safety: Inflation Adjustment of Maximum\nCivil Penalties, 82 Fed. Reg. 19325 (April 27, 2017).\nVI. Recordkeeping and Information Disclosure\n21. Unless otherwise required in this Agreement, Respondent agrees to maintain records\ndemonstrating compliance with all requirements of this Agreement for a period of at least five (5)\nyears following completion of all work to be performed. For any reports, plans, or other\ndeliverables required to be submitted to PHMSA pursuant to this Agreement, Respondent may\nassert a claim of business confidentiality or other protections applicable to the release of information\nby PHMSA, covering part or all of the information required to be submitted to PHMSA pursuant\nto this Agreement in accordance with 49 C.F.R. Part 7. Respondent must mark the claim of\nconfidentiality in writing on each page, and include a statement specifying the grounds for each\nclaim of confidentially. PHMSA determines release of any information submitted pursuant to this\nAgreement in accordance with 49 C.F.R. Part 7, the Freedom of Information Act, 5 U.S.C. § 552,\nDOT and PHMSA policies, and other applicable regulations and Executive Orders.\nVII. Effective Date\n22. The term “Effective Date,” as used herein, is the date on which the Consent Order\nis issued by the Associate Administrator incorporating the terms of this Agreement. Unless\nspecified to the contrary, all deadlines for actions required by this Agreement run from the Effective\nDate of the Consent Order.\nVIII. Modification\n\n\n\n23. The terms of this Agreement may be modified by mutual agreement of the Parties.\nSuch modifications must be in writing and signed by both parties.\nIX. Termination\n24. This Agreement shall remain in effect until Buckeye completes the actions in\nParagraphs 11, 12, and 14 with approval by the Director. The Consent Agreement shall not\nterminate until the Director confirms, in writing, that the Consent Agreement is terminated in\naccordance with this paragraph. Nothing in this Agreement prevents Respondent from completing\nany of the obligations earlier than the deadlines provided for in this Agreement.\nX. Ratification\n25. The Parties’ undersigned representatives certify that they are fully authorized to\nenter into the terms and conditions of this Agreement and to execute and legally bind such party to\nthis document.\n26. The Parties hereby agree to all conditions and terms of this Agreement.\nFor BUCKEYE:\n___________________________________\nMr. Evan Hofmann\nVice President, General Counsel and Secretary\nBuckeye Partners, LP\n________________________\nDate\nFor PHMSA:\n___________________________________\nMr. Robert Burrough\nRegion Director, Eastern Region\nOffice of Pipeline Safety, PHMSA\n________________________\nDate\n\n120165007_PHC Hearing Scheduled_03072018_text.pdf\n\nMarch 7, 2018\nVIA CERTIFIED MAIL AND EMAIL TO: Robert.Hogfoss@troutmansanders.com and\nRobert.Burrough@dot.gov\nMr. Robert E. Hogfoss, Esq.\nCounsel for Buckeye Partners, L.P.\nTroutman Sanders LLP\n600 Peachtree Street, NE, Suite 5200\nAtlanta, GA 30308\nMr. Robert Burrough\nActing Director, Eastern Region\nPipeline and Hazardous Materials Safety Administration\n820 Bear Tavern Road, Suite 103\nWest Trenton, NJ 08628\nRe: Notice of Hearing, Buckeye Partners, L.P.\nCPF No. 1-2016-5007\nDear Mr. Hogfoss and Mr. Burrough:\nIn accordance with 49 C.F.R. § 190.211, an informal hearing will be held regarding the Notice of\nProbable Violation, Proposed Civil Penalty, and Amended Proposed Compliance Order issued to\nBuckeye Partners, L.P. by the Office of Pipeline Safety in the above-referenced case. The hearing will\ntake place April 4, 2018, beginning at 12:30 p.m. Eastern Time.\nThe hearing will be at the PHMSA Eastern Region office, 820 Bear Tavern Road, Suite 103, West\nTrenton, NJ 08628. Upon arrival at the building, attendees will be required to present photo\nidentification to security personnel. A contact phone number for the day of the hearing is (609) 989-\n2171.\nIf you have any questions, please do not hesitate to call me at (202) 366-9093.\nSincerely,\nLarry White\nPresiding Official\ncc: Mr. Thomas S. Collier, Vice President, Performance Assurance, Buckeye Partners, L.P.\nFive TEK Park, 9999 Hamilton Blvd., Breinigsville, PA 18031\nMs. Y. Ajoke Agboola, Counsel, Eastern Region, OPS\n\n120165007_Amended NOPV PCP PCO_07312017_text.pdf\n\nAMENDED NOTICE OF PROBABLE VIOLATION\nPROPOSED CIVIL PENALTY\nand\nAMENDED PROPOSED COMPLIANCE ORDER\nOVERNIGHT EXPRESS DELIVERY\nJuly 31, 2017\nThomas S. (Scott) Collier\nVice President, Performance Assurance\nBuckeye Partners, L.P.\nFive TEK Park\n9999 Hamilton Boulevard\nBreinigsville, PA 18031\nCPF 1-2016-5007\nDear Mr. Collier:\nFrom October 2, 2015 to November 13, 2015, inspectors from the New York State Department of\nPublic Service (NYSDPS), acting as agents of the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA), pursuant to Chapter 601 of 49 United States Code, inspected Buckeye\nPartners, L.P.’s (Buckeye) construction project for the relocation of the exposed WL803CD\nsegment of the AB803RC petroleum products pipeline at the Genesee River, located in the Towns\nof Avon and Caledonia in Livingston County, New York.\nAs a result of the inspection, PHMSA issued to Buckeye a Notice of Probable Violation, Proposed\nCivil Penalty, and Proposed Compliance Order (Original Notice) on August 25, 2016.\nIn a letter dated May 4, 2017, PHMSA notified Buckeye that it sought to amend and clarify the\nremedial action required under the original PCO. In that letter, PHMSA stated: “if Buckeye finds\nthe amended terms to be unacceptable, PHMSA will issue an amended NOPV, with a revised PCO,\nat which point Buckeye will have an opportunity to respond.”\nIn a letter dated June 1, 2017 (Response), Buckeye contested the amended PCO terms, requested\na hearing, and requested entry of a Consent Agreement allowing the company to utilize its\n\n\n\nCPF 1-2016-5007\npreferred method of completing the remedial action required under the original PCO. Pursuant to\n49 C.F.R. §190.207(c), PHMSA is issuing this Amended Notice of Probable Violation, including\nan Amended Proposed Compliance Order (Amended Notice).\nAs a result of the inspection, it appears that you have committed probable violations of the Pipeline\nSafety Regulations, Title 49, Code of Federal Regulations. The items inspected and the probable\nviolation is:\n1. §195.214 Welding Procedures\n(a) Welding must be performed by a qualified welder or welding operator in\naccordance with welding procedures qualified under section 5, section 12 or\nAppendix A of API Std 1104 (incorporated by reference, see §195.3), or section IX of\nASME Boiler and Pressure Vessel Code (BPVC) (incorporated by reference, see\n§195.3). The quality of the test welds used to qualify welding procedures must be\ndetermined by destructive testing.\nBuckeye failed to perform butt welding of girth welds in accordance with welding procedures\nqualified under section 5, section 12 or Appendix A of API Standard 1104 (incorporated by\nreference, see §195.3), or section IX of ASME Boiler and Pressure Vessel Code (BPVC)\n(incorporated by reference, see §195.3).\nOn October 2, 2015, NYSDPS inspectors conducted an inspection of the new piping that Buckeye\nwas installing on the west side of the Genesee River, approximately 15 miles southwest of\nRochester, NY. NYSDPS inspectors observed that X-52 line pipe had been delivered to the site\nfor welding. NYSDPS inspectors observed field welding, reviewed the records associated with the\nproject, and noted the following:\n1. There were thirty-six X-52 to X-52 butt weld joints on this project.\n2. Buckeye had a qualified welding procedure, Weld Procedure Specification (WPS) P2A, in\nplace for welding X-52 to X-52 pipe.\n3. WPS P2A specified that E-6010 electrodes must be used for the first pass and that E-8010\nelectrodes must be used for passes 2 through 5.\n4. The thirty-six butt weld joints had all been welded using WPS P2A with non-qualified E-\n7010-P1 electrodes.\n5. A contractor welding girth welds was using WPS P2A with non-qualified E7010-P1\nelectrodes. NYSDPS inspectors, the Buckeye Compliance Manager, and the Buckeye Area\nOperations Manager were present when the welding was being performed.\nOn November 6, 2015, NYSDPS sent an email to Buckeye requesting clarifications related to\nwelding procedures and radiographic reports. NYSDPS inspectors also requested a copy of the\nwelding procedure that was used to weld the pipe on October 2, 2015, including qualification of\nthat procedure by destructive testing and documentation by weld map, visual, report, radiographic\nreport, or other record.\nOn November 20, 2015, Buckeye responded, stating the following:\n“During Buckeye’s investigation of the welding procedure and welding rods used for the\nproject, it was confirmed that the welders who welded the API 5L X52 line pipe for the\n120165007_Amended NOPV PCP PCO_07312017_text Page 2 of 5\n\n\n\nCPF 1-2016-5007\nrelocation used Lincoln Electric’s Shield‐ ARC HYP+ electrodes, which have an E7010‐ P1\ndesignation, to join the API 5L X52 line pipe.\nTo demonstrate the suitability of the welding electrodes that were used for the relocated\nsection, Buckeye qualified a welding procedure using Lincoln Shield‐ Arc HYP+ electrodes\nand surplus API 5L X52 line pipe material from the project. The use of Shield‐ Arc HYP+\nelectrodes for the API 5L X52 line pipe material exceeds the requirements in API 1104, thus\nthere is no safety or pipeline integrity concern.”\nPlease see Buckeye’s qualified welding procedure using Lincoln Shield‐ Arc HYP+ electrodes\nand surplus API 5L X52 line pipe in the attachment on this correspondence.”\nThe WPS referenced by Buckeye in their email was WPS No. P12, dated 11/13/2015. It was\ncreated after the 36 welds referenced above had been completed. The piping, constructed with\nwelds made using WPS 2A with the non-qualified E-7010-P1 electrodes, had been placed in\nservice.\nThus, Buckeye failed to perform butt welding of girth welds in accordance with welding\nprocedures qualified under section 5, section 12 or Appendix A of API Standard 1104\n(incorporated by reference, see §195.3), or section IX of ASME Boiler and Pressure Vessel Code\n(BPVC) (incorporated by reference, see §195.3).\nEvidence for the probable violation includes observations and photographs taken by NYSDPS\ninspectors at the construction site, welding procedures and welding rod specifications, maps, and\nstatements/correspondence between the NYSDPS and Buckeye.\nProposed Civil Penalty\nUnder 49 United States Code, §60122, you are subject to a civil penalty not to exceed $200,000\nper violation per day the violation persists up to a maximum of $2,000,000 for a related series of\nviolations. For violations occurring prior to January 4, 2012, the maximum penalty may not exceed\n$100,000 per violation per day, with a maximum penalty not to exceed $1,000,000 for a related\nseries of violations. The Compliance Officer has reviewed the circumstances and supporting\ndocumentation involved in the above probable violation(s) and has recommended that you be\npreliminarily assessed a civil penalty of $38,200 as follows:\nItem number PENALTY\n1 $38,200\nProposed Compliance Order\nWith respect to item 1, pursuant to 49 United States Code §60118, the Pipeline and Hazardous\nMaterials Safety Administration proposes to issue an Amended Compliance Order to Buckeye\nPartners, L.P. (Buckeye). Please refer to the Amended Proposed Compliance Order, which is\nenclosed and made a part of this Amended Notice.\nResponse to this Amended Notice\nBuckeye’s request for hearing, included in its Response dated June 1, 2017, was premature.\nBuckeye did not request a hearing within thirty (30) days of receipt of the Original Notice and\n120165007_Amended NOPV PCP PCO_07312017_text Page 3 of 5\n\n\n\nCPF 1-2016-5007\ntherefore waived its right to a hearing on the Original Notice, pursuant to 49 C.F.R. §190.208.\nPursuant to 49 C.F.R. §190.207(c), PHMSA may amend a notice of probable violation, including\nremedial actions required under a proposed compliance order, at any time prior to issuance of a\nfinal order. Following PHMSA’s amendment of a notice, the respondent will have another\nopportunity to respond under 49 C.F.R. §190.208. At the time of Buckeye’s June 1, 2017\nResponse, PHMSA had not yet issued an amended notice. Accordingly, no notice, to which\nBuckeye could request a hearing or otherwise respond, yet existed.\nEnclosed as part of this Amended Notice is a document entitled Response Options for Pipeline\nOperators in Compliance Proceedings. Please refer to this document and note the response\noptions. All materials submitted in response to this enforcement action may be made publicly\navailable. If you believe that any portion of your responsive material qualifies for confidential\ntreatment under 5 U.S.C. 552(b), along with the complete original document, you must provide a\nsecond copy of the document with the portions you believe qualify for confidential treatment\nredacted and an explanation of why you believe the redacted information qualifies for confidential\ntreatment under 5 U.S.C. 552(b). If you do not respond within 30 days of receipt of this Amended\nNotice, this constitutes a waiver of your right to contest the allegations in this Amended Notice,\nand authorizes the Associate Administrator for Pipeline Safety to find facts as alleged in this\nAmended Notice without further notice to you and ","truncated":true,"body_characters":69411}