{"operation":"document","citation":"CPF 120185022","title":"KIANTONE PIPELINE CORP — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2018-05-14","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120185022.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120185022.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120185022","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120185022","body":"Notice of Probable Violation involving KIANTONE PIPELINE CORP. PHMSA's enforcement data identifies the cited regulation as 195.402(a). The case was opened on 2018-05-14 and is reported as closed as of 2019-06-12. Proposed civil penalty: $23,100. Assessed civil penalty: $23,100. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120185022_Closure Letter_06122019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185022/120185022_Closure%20Letter_06122019.pdf\n\n120185022_Closure Letter_06122019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185022/120185022_Closure%20Letter_06122019_text.pdf\n\n120185022_Final Order_04122019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185022/120185022_Final%20Order_04122019.pdf\n\n120185022_Final Order_04122019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185022/120185022_Final%20Order_04122019_text.pdf\n\n120185022_NOPV PCP_05142018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185022/120185022_NOPV%20PCP_05142018.pdf\n\n120185022_NOPV PCP_05142018_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185022/120185022_NOPV%20PCP_05142018_text.pdf\n\n120185022_Operator Response to Notice_06122018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185022/120185022_Operator%20Response%20to%20Notice_06122018.pdf\n\n120185022_Closure Letter_06122019_text.pdf\n\nOVERNIGHT EXPRESS DELIVERY\nJune 12, 2019\nMyron Turfitt\nPresident and Chief Operating Officer\nUnited Refining Company\n15 Bradley Street\nWarren, PA 16365\nCPF 1-2018-5022\nDear Mr. Turfitt:\nOn April 12, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued\nto Kiantone Pipeline Corporation a Final Order in the above-referenced case. This Order included\na Civil Penalty assessment. Based on confirmation of payment of the civil penalty, it has been\ndetermined 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. Thank you for your cooperation in this matter.\nSincerely,\nRobert Burrough\nDirector, Eastern Region\nPipeline and Hazardous Materials Safety Administration\nCc: NY DPS\n\n120185022_Final Order_04122019_text.pdf\n\nApril 12, 2019\nMr. Myron Turfitt\nPresident and Chief Operating Officer\nUnited Refining Company\n15 Bradley Street\nWarren, PA 16365\nRe: CPF No. 1-2018-5022\nDear Mr. Turfitt:\nEnclosed please find the Final Order issued in the above-referenced case. It makes a finding of\nviolation and assesses a civil penalty of $23,100 to Kiantone Pipeline Corporation, a subsidiary\nof United Refining Company. The penalty payment terms are set forth in the Final Order. This\nenforcement action closes automatically upon receipt of payment. Service of the Final Order is\neffective as 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\ncc: Mr. Robert Burrough, Director, Eastern Region, Office of Pipeline Safety, PHMSA\nMr. Daniel Sobina, Regulatory Compliance Manager, United Refining Company\nMr. David Wortman, Vice President, Supply and Transportation, Kiantone Pipeline\nCorporation, 814 Lexington Avenue, Warren, PA 16365\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__________________________________________\nIn the Matter of )\nKiantone Pipeline Corporation, ) CPF No. 1-2018-5022\na subsidiary of United Refining Company, )\n)\n)\n)\nRespondent. )\n__________________________________________)\nFINAL ORDER\nFrom June 26 through August 14, 2017, pursuant to 49 U.S.C. § 60117, an inspector from the\nNew York State Department of Public Service, acting as an agent for the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), conducted an on-\nsite pipeline safety inspection of the facilities and records of Kiantone Pipeline Corporation\n(Kiantone or Respondent), a subsidiary of United Refining Company, in West Seneca, New\nYork. The Kiantone Pipeline is approximately 78 miles-long, and transports crude oil from\nBuffalo, New York to Warren, Pennsylvania, to United Refining Company’s refinery.1\nAs a result of the inspection, the Director, Eastern Region, OPS (Director), issued to Respondent,\nby letter dated May 14, 2018, a Notice of Probable Violation and Proposed Civil Penalty\n(Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that Kiantone\nhad violated 49 C.F.R. § 195.402, and proposed assessing a civil penalty of $23,100 for the\nalleged violation.\nUnited Refining Company responded to the Notice by letter dated June 12, 2018 (Response) on\nbehalf of Kiantone Pipeline Company. The company did not contest the allegation of violation\nbut provided an explanation of its actions and requested that the proposed civil penalty be\nreduced. Respondent did not request a hearing and therefore has waived its right to one.\nFINDING OF VIOLATION\nIn its Response, Respondent did not contest the allegation in the Notice that it violated 49 C.F.R.\nPart 195, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(a), which states:\n1 http://www.pipelinesafetyinfo.com/user/file/Pennsylvania/Kiantone_Pipeline_Corp_United_Refining_Company.\npdf (last accessed November 29, 2018).\n\n\n\nCPF No. 1-2018-5022\nPage 2\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 made\nas necessary to insure that the manual is effective. This manual shall be\nprepared before initial operations of a pipeline system commence, and\nappropriate parts shall be kept at locations where operations and\nmaintenance activities are conducted.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.402(a) by failing to prepare and\nfollow for each pipeline system a manual of written procedures for conducting normal operations\nand maintenance activities and handling abnormal operations and emergencies. Specifically, the\nNotice alleged that Kiantone did not follow its procedure titled, “Annual Cathodic Protection and\nNew Cathodic Protection Systems Survey Procedure,” dated May 28, 2012. This procedure\nspecified that cathodic protection surveys of breakout tanks must be conducted once per calendar\nyear, not to exceed 15 months. Records reviewed during the inspection showed that cathodic\nprotection testing was performed on February 1, 2016 and June 20, 2017 for three breakout tanks\nat Kiantone’s West Seneca Terminal. The interval between testing of the three breakout tanks\nexceeded the 15-month maximum specified in Kiantone’s procedure.\nRespondent did not contest this allegation of violation. Accordingly, based upon a review of all\nof the evidence, I find that Respondent violated 49 C.F.R. § 195.402(a) by failing to prepare and\nfollow for each pipeline system a manual of written procedures for conducting normal operations\nand maintenance activities and handling abnormal operations and emergencies.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any\nrelated series of violations.2 In determining the amount of a civil penalty under 49 U.S.C.\n§ 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; any effect that\nthe penalty may have on its ability to continue doing business; and the good faith of Respondent\nin attempting to comply with the pipeline safety regulations. In addition, I may consider the\neconomic benefit gained from the violation without any reduction because of subsequent\ndamages, and such other matters as justice may require. The Notice proposed a total civil\npenalty of $23,100 for the violation cited above.\n2 These amounts are adjusted annually for inflation. See, 49 C.F.R. § 190.223; Revisions to Civil Penalty Amounts,\n83 Fed. Reg. 60732, 60744 (Nov. 27, 2018).\n\n\n\nCPF No. 1-2018-5022\nPage 3\nItem 1: The Notice proposed a civil penalty of $23,100 for Respondent’s violation of 49 C.F.R.\n§ 195.402(a), for failing to prepare and follow for each pipeline system a manual of written\nprocedures for conducting normal operations and maintenance activities and handling abnormal\noperations and emergencies. In the Response, Respondent explained that Kiantone employs one\ncathodic protection (CP) technician because the pipeline is a “smaller pipeline.”3 Respondent\nfurther explained that its sole CP technician has been employed by Kiantone for 27 years and\n“has always been able to comply with all cathodic protection system monitoring and evaluation\nrequirements.”4 However, the CP technician was unable to meet the deadline required by\nKiantone’s procedures because he was on medical leave at the time the tanks at the terminal were\ndue for annual cathodic protection testing.5 Respondent also stated that the company is now in\nthe process of training another employee to act as a back-up for the cathodic protection system\nrequirements if this same situation arises again in the future.\nWith respect to the nature, circumstances and gravity of the violation, the Violation Report\nalleged that a State Partner discovered the violation, that the violation concerned a failure to\nperform an activity, that pipeline safety was “minimally affected,” and that there were three\ninstances of the violation.6 Respondent argued the violation was a “single non-compliance\nevent.”7 I have reviewed the Violation Report and find that it appropriately classified the gravity\nas three instances of the violation because three separate tanks were not tested in accordance\nwith Respondent’s procedures, thus resulting in a separate violation for each tank. I agree that\nthis violation had a minimal impact on safety, but no reduction in the penalty is warranted\nbecause the calculation of the proposed penalty already accounted for this level of gravity.\nTherefore, no reduction is warranted under these factors.\nWith respect to culpability, the Violation Report alleged that Respondent failed to take\nappropriate action to comply with a requirement that was clearly applicable.8 When evaluating\nan operator's culpability, PHMSA considers the extent to which the operator was responsible for\nthe violation that occurred. An operator is expected to be cognizant of the regulatory\nrequirements applicable to its operations and is held responsible for complying with those\nrequirements. An operator will generally be considered culpable for any failure to comply with\nthe requirements absent some justification for the failure, such as an unforeseeable\nevent outside of its control. Here, Respondent was on notice of the leave of its only CP\ntechnician as well as the impending deadlines of the testing that the employee regularly\nperformed. The violation was foreseeable and, therefore, the proposed penalty is appropriate\nbased on the degree of Respondent’s culpability.\n3 Response, at 1.\n4 Id.\n5 Id.\n6 Violation Report, at 6-8.\n7 Response, at 1.\n8 Violation Report, at 9.\n\n\n\nCPF No. 1-2018-5022\nPage 4\nWith respect to good faith, Respondent argued that the company is training new personnel in\norder to provide additional support in meeting the regulatory requirements in the future. When\nconsidering good faith, PHMSA looks at the attempt by an operator to comply with the cited\nregulation prior to the occurrence of the violation. If an operator made a clear, demonstrable\neffort to comply with the cited regulation when the violation occurred, PHMSA may find it\nappropriate to reduce the civil penalty. Here, Respondent did not provide information regarding\nanticipatory efforts made by the company to comply with the regulations before the deadline for\nthe cathodic protection tests had passed. Therefore, no reduction is warranted based on the good\nfaith penalty criterion.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $23,100 for violation of 49 C.F.R. § 195.402(a).\nPayment of the civil penalty of $23,100 must be made within 20 days of service. Federal\nregulations (49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through\nthe Federal Reserve Communications System (Fedwire), to the account of the U.S. Treasury.\nDetailed instructions are contained in the enclosure. Questions concerning wire transfers should\nbe directed to: Financial Operations Division (AMK-325), Federal Aviation Administration,\nMike Monroney Aeronautical Center, 6500 S MacArthur Blvd, Oklahoma City, Oklahoma\n79169. The Financial Operations Division telephone number is (405) 954-8845.\nFailure to pay the $23,100 civil penalty will result in accrual of interest at the current annual rate\nin 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.\nUnder 49 C.F.R. § 190.243, Respondent may submit a Petition for Reconsideration of this Final\nOrder to the Associate Administrator, Office of Pipeline Safety, PHMSA, 1200 New Jersey\nAvenue, SE, East Building, 2nd Floor, Washington, DC 20590, with a copy sent to the Office of\nChief Counsel, PHMSA, at the same address, no later than 20 days after receipt of service of the\nFinal Order by Respondent. Any petition submitted must contain a brief statement of the issue(s)\nand meet all other requirements of 49 C.F.R. § 190.243. The filing of a petition automatically\nstays the payment of any civil penalty assessed. The other terms of the order, including any\ncorrective action, remain in effect unless the Associate Administrator, upon request, grants a\nstay. If Respondent submits payment of the civil penalty, the Final Order becomes the final\nadministrative decision and the right to petition for reconsideration is waived.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nApril 12, 2019\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":15156}