{"operation":"document","citation":"CPF 120185029","title":"PORTLAND PIPE LINE CORPORATION — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2018-10-05","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120185029.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120185029.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120185029","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120185029","body":"Notice of Probable Violation involving PORTLAND PIPE LINE CORPORATION. PHMSA's enforcement data identifies the cited regulation as 195.402(a). The case was opened on 2018-10-05 and is reported as closed as of 2019-10-09. Proposed civil penalty: $30,900. Assessed civil penalty: $0. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120185029_Final Order_10092019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185029/120185029_Final%20Order_10092019.pdf\n\n120185029_Final Order_10092019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185029/120185029_Final%20Order_10092019_text.pdf\n\n120185029_NOPV PCP_10052018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185029/120185029_NOPV%20PCP_10052018.pdf\n\n120185029_NOPV PCP_10052018_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185029/120185029_NOPV%20PCP_10052018_text.pdf\n\n120185029_Operator Response to Notice_11022018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120185029/120185029_Operator%20Response%20to%20Notice_11022018.pdf\n\n120185029_Final Order_10092019_text.pdf\n\nOctober 9, 2019\nMr. Thomas A. Hardison\nPresident\nPortland Pipe Line Corporation\n30 Hill Street\nSouth Portland, Maine 04106\nRe: CPF No. 1-2018-5029\nDear Mr. Hardison:\nEnclosed please find the Final Order issued in the above-referenced case. It makes a finding of\nviolation and withdraws the proposed civil penalty of $30,900. Accordingly, this case is now\nclosed. Service of the Final Order by certified mail is effective upon the date of mailing as\nprovided 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\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 )\nPortland Pipe Line Corporation, ) CPF No. 1-2018-5029\n)\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nFrom August 6 through 10, 2018, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline\nand Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),\nconducted an on-site pipeline safety inspection of the facilities and records of Portland Pipe Line\nCorporation1 (PPLC or Respondent), in South Portland, Maine. PPLC owns and operates a\ntanker unloading facility, two tank farms (South Portland, Maine and Montreal, Quebec), and a\nsystem of pump stations and crude oil pipelines that traverse 236 miles along a common right-of-\nway from the state of Maine to Quebec. The pipelines deliver crude oil to customers\nin Montreal, Quebec. The tank farm in South Portland consists of 23 tanks with approximately\n3.5 million barrels of storage capacity. Two pipelines (18-inch and 24-inch) and eight pump\nstations are operated out of the South Portland, Maine operations center, which moves the crude\nfrom the South Portland tank farm to Montreal.2\nAs a result of the inspection, the Director, Eastern Region, OPS (Director), issued to Respondent,\nby letter dated October 5, 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 PPLC had\nviolated 49 C.F.R. § 195.402(a) and proposed assessing a civil penalty of $30,900 for the alleged\nviolation.\nPPLC responded to the Notice by letter dated November 2, 2018 (Response). The company\ncontested the allegation and requested that it be eliminated or reduced to a Notice of Amendment\n(NOA) or a Warning Item, offered additional information in response to the Notice, and\nrequested that the proposed civil penalty be reduced or eliminated. Respondent did not request a\nhearing and therefore has waived its right to one.\nFINDING OF VIOLATION\n1 Portland Pipe Line Corporation is the United States based wholly owned subsidiary of Montreal Pipe Line, a\nprivately held corporation that is incorporated in Canada. http://www.pmpl.com/about-us/ (last accessed September\n20, 2019).\n2 http://www.pmpl.com/about-us/ (last accessed September 20, 2019).\n\n\n\nCPF No. 1-2018-5029\nPage 2\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(a), 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 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 follow for each\npipeline system a manual of written procedures for conducting normal operations and\nmaintenance activities and handling abnormal operations and emergencies. Specifically, the\nNotice alleged that PPLC failed to follow its written procedures for performing and documenting\nits pressure limiting and relief device inspections conducted per § 195.428(a).3 In support of the\nallegation of violation, the Notice identified a total of 59 instances between 2016 and 2017 in\nwhich PPLC failed to document the “as-found” and “as-left” condition of relief valves on the 24-\ninch Main Line Pumping Station before and after testing.\nThe Notice alleged that PPLC’s own procedures required it to document these conditions. PPLC\nprocedure titled Portland-Montreal Pipe Line System Operations & Maintenance Procedures,\nSection 6.7 – Critical Systems and Equipment, dated 11/10/16 (Procedure), provides in relevant\npart, as follows:\nTo ensure that relief valves will relieve at the specified set pressure when needed,\ninformation must be documented regarding the condition of the relief valve before and\nafter the testing, that is, the “as-found” and “as-left” conditions. Testing documentation\nis recorded on the Protective Device Testing records and must include the specified set\npressure, the as-found set pressure, and the as-left set pressure, along with the identity of\nthe test technician and the date of the test. The acceptable as-found and as-left set\npressures have been defined by engineering to ensure continued reliable safe operations,\nand are defined in this section, CMMS, or on the test record documentation forms. The\nacceptable as-left set pressures are defined within narrow tolerances to ensure acceptable\nprotection to the MOP. The acceptable as-found set pressures are defined to ensure that\nrelief valves continue to provide reliable, repeatable performance between testing\nintervals.4\nAccording to the Notice, PPLC personnel, upon questioning by the PHMSA inspector, stated that\n3 Section 195.428 requires an operator to inspect and test each pressure limiting device, relief valve, pressure\nregulator, or other item of pressure control equipment at regular intervals.\n4 Notice, at 2.\n\n\n\nCPF No. 1-2018-5029\nPage 3\ninformation about the “as-found” and “as-left” set pressures “would be documented in the\nremarks section of the record form.” Review of the records provided by PPLC show that this\ninformation was missing from 17 inspections in 2016 and 42 inspections in 2017.\nIn its Response, PPLC contested the allegation of violation, requested that the alleged violation\nbe withdrawn or reduced to a warning item or an NOA, and requested that the proposed civil\npenalty be eliminated or reduced. PPLC asserts that the 24-inch Main Line Pumping Station\nProtective Device Testing Records from 2016 and 2017 contained the “required engineering\nspecified set pressure for the device noted in the inspection forms to guide the technicians and it\nis clear from the documentation that the devices were tested annually against the appropriate\nsafety standard.”5 In addition, PPLC argues that the 59 instances where information about the\n“as-found” and “as-left” set pressure was missing are irrelevant because that information is only\ndocumented if the “as-found” or “as-left” set pressures differ from the required set pressure for\nthe device. If the “as-found” and “as-left” set pressure aligns with the required set pressure\nnoted on the form, the “as-found” and “as-left” set pressure would not be documented.\nAccording to PPLC, “the absence of an entry in the remarks section indicates the ‘as-found’ and\n‘as left’ set pressure aligns with the required set pressure indicated on the form.”6 PPLC does\nnot dispute that the records at issue failed to include the “as-found” and “as-left” set pressures as\nidentified in the Notice, but rather, argued that the omission was due to PPLC personnel’s\ninterpretation of what information was required to be documented on the forms. PPLC also\nnotes that there is no allegation that it failed to test devices and verify them against the\nestablished set pressure for each device. Based on this, PPLC believes that the appropriate\naction is to withdraw the allegation of violation and convert this case to a Warning Letter or a\nNotice of Amendment (NOA).\nHaving reviewed the record and considered Respondent’s arguments, I find that PPLC failed to\nfollow its Procedure 17 times in 2016 and 42 times in 2017 when it did not record the “as-found”\nand “as-left” set pressures. Respondent’s procedures required that it record testing\ndocumentation on the Protective Device Testing records and that information “must include” the\n“as-found” and “as-left” set pressures. Respondent failed to follow this procedure when it did\nnot include this information on its inspection forms.\nPPLC’s explanation of how its personnel interpreted what was required to be documented on the\nforms is unpersuasive because it is directly contradicted by the plain language of its own\nProcedure, which states, in relevant part, that “information must be documented regarding the\ncondition of the relief valve before and after the testing, that is, the ‘as-found’ and ‘as-left’\nconditions.”\nFinally, I find that the Director was justified in issuing the Notice based on the facts that\ndemonstrate Respondent violated § 195.402(a). There is no basis in this case, legally or\nfactually, to override the Director’s exercise of discretion in bringing this matter as a notice of\nprobable violation and not as an NOA or warning. As set forth in 49 C.F.R. Part 190, an NOA or\nwarning is not the proper enforcement tool for alleging a violation and proposing a civil penalty.\n5 Response, at 1.\n6 Id. at 2.\n\n\n\nCPF No. 1-2018-5029\nPage 4\nAccordingly, after considering all of the evidence and the legal issues presented, I find that\nRespondent violated 49 C.F.R. § 195.402(a) by failing to follow its written procedures for\nperforming and documenting its pressure limiting and relief device inspections.\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.7 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 $30,900 for the violation cited above.\nItem 1: The Notice proposed a civil penalty of $30,900 for Respondent’s violation of 49 C.F.R.\n§ 195.402(a), for failing to follow its written procedures for performing and documenting its\npressure limiting and relief device inspections.\nIn its Response, PLLC requested that the proposed civil penalty be reduced or withdrawn. PLLC\nargued that there is no allegation that it failed to inspect the relief valve devices, but rather the\nallegation is that it simply failed to properly document the inspections performed. PLLC is\ncorrect in this regard. The Notice does not allege a failure to perform the inspections, which are\nnecessary to ensure pipeline safety. Rather, as I found above, PLLC violated § 195.402(a) by\nfailing to follow its procedure. Pipeline safety was minimally impacted by PLLC’s failure and\nthe record reflects that the company did perform the necessary inspections. Accordingly, for the\nreasons detailed below, I find that a civil penalty in the amount of $30,900 is not warranted in\nthis case and it is withdrawn.\nRegarding the nature criterion in the Violation Report, PHMSA noted that the violation was\nrelated to a failure to perform a required activity.8 PLLC asserted that “at most this could be\nconsidered a documentation and recordkeeping violation . . . .”9 I disagree. The Notice alleged a\nfailure to follow procedures, not a failure to keep records. The Violation Report itself\nspecifically identifies a failure to follow procedures as an example of an activities violation.\n7 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).\n8 Violation Report, at 7.\n9 Response, at 2.\n\n\n\nCPF No. 1-2018-5029\nPage 5\nRegarding the circumstances criterion in the Violation Report, PHMSA noted that it discovered\nthe violation, which started on November 11, 2016, and lasted for longer than 10 days.10 PLLC\ndoes not dispute that PHMSA discovered the violation, nor the duration of the violation. PLLC\ndisputes that a violation occurred at all. Having already found PLLC in violation of\n§ 195.402(a), I find that PHMSA properly considered the fact that it discovered the violation,\nand that the violation lasted longer than 10 days in duration, in its calculation of the proposed\ncivil penalty.\nRegarding the gravity criterion, PHMSA noted in the Violation Report that the alleged violation\n“occurred; however, pipeline safety was minimally affected.”11 This is the lowest category\nselectable for gravity. I find this selection accurately reflects the gravity of the violation\ncommitted by Respondent.\nRegarding the culpability and good faith criteria, PHMSA noted in the Violation Report that\nPLLC failed to comply with a requirement that was “clearly applicable,” and that PLLC did not\nhave a credible justification for its non-compliance.12 There is no dispute that the regulation\nrequiring PLLC to follow its procedures clearly applied, and that PLLC failed to follow its\nprocedure.\nFinally, § 190.225(b)(2) permits me to consider “other matters as justice may require” in\ndetermining the amount of a civil penalty under Part 195. Under this assessment factor, I find\nthat the record demonstrates that PLLC did perform the inspections necessary to ensure pipeline\nsafety, and this fact should be credited when considering justification for a civil penalty in this\ncase. Further, PLLC’s failure to follow its procedure in this case does not evidence a problem\narea with the company as the inspections were performed on the devices, was not causally\nrelated to an incident, was not egregious or willful, and did not significantly increase the\nlikelihood of a pipeline failure. PLLC’s procedures required them to go above and beyond what\nthe minimum pipeline safety standards require, and they should be commended for operating in\nthat manner, not penalized with a civil penalty for failing to properly document the actions\nperformed. Finally, PLLC is advised to ensure that it follows its procedures going forward as the\nprocedures assist in the continued safe operation of the pipeline, and a failure to follow\nprocedures may result in future enforcement, including issuance of a civil penalty.\nBased upon the foregoing, I withdraw the proposed penalty for violation of 49 C.F.R.\n§ 195.402(a).\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.\n10 Violation Report, at 8.\n11 Id. at 9.\n12 Id. at 10.\n\n\n\nCPF No. 1-2018-5029\nPage 6\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nOctober 9, 2019\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":17604}