{"operation":"document","citation":"CPF 220055001","title":"BP PIPELINE (NORTH AMERICA) INC. — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2005-01-06","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(c)(13), 195.402(c)(4), 195.403(b)(1), 195.404(a), 195.404(c)(3), 195.410(a)(1), 195.412(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-220055001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-220055001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-220055001","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/220055001","body":"Notice of Probable Violation involving BP PIPELINE (NORTH AMERICA) INC.. PHMSA's enforcement data identifies the cited regulations as 195.402(c)(13),  195.402(c)(4),  195.403(b)(1),  195.404(a),  195.404(c)(3),  195.410(a)(1),  195.412(a). The case was opened on 2005-01-06 and is reported as closed as of 2006-09-15. Proposed civil penalty: $45,000. Assessed civil penalty: $45,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n220055001_Final Order_09062006.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220055001/220055001_Final%20Order_09062006.pdf\n\n220055001_Final Order_09062006.pdf\n\n400 Seventh Street, S.W.\nU.S. Department Washington, D.C. 20590\nof Transportation\nPipeline and Hazardous\nMaterials Safety Administration\nMr. Jim Lamanna\nPresident\nBP Pipelines (North America) Inc.\n28 100 Torch Parkway\nWarrenville, Illinois 605 55\nRE: CPF NO. 2-2005-5001\nDear Mr. Lamanna:\nEnclosed is the Final Order issued by the Acting Associate Administrator for Pipeline Safety in\nthe above-referenced case. It makes findings of violation and assesses a civil penalty of $45,000.\nThe penalty payment terms are set forth in the Final Order. This enforcement action closes\nautomatically upon payment. Your receipt of the Final Order constitutes service of that document\nunder 49 C.F.R. 190.5.\nSincerely,\nJames Reynolds\nPipeline Compliance Registry\nOffice of Pipeline Safety\nEnclosure\ncc: Ms. Linda Daugherty, Director, OPS Southern Region\nCERTIFIED MAIL - RETURN RECEIPT REOUESTED\n\n\n\nDEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\nIn the Matter of )\nBP PIPELINES, (North America) Inc.,\nRespondent.\n1\n)\n1 CPF NO. 2-2005-5001\nFINAL ORDER\nOn August 2-6,2004, pursuant to 49 U.S.C. $601 17, representatives of the Pipeline and Hazardous\nMaterials Safety Administration (PHMSA), O e c e of Pipeline Safety (OPS), Southern Region\nconducted an on-site safety inspection of Respondent's xylene pipeline facilities in Kentucky,\nTennessee and Alabama and reviewed records at its Pigeon Creek Station in Evansville, Indiana. As\na result of the inspection, the Director, Southern Region, OPS, issued to Respondent, by letter dated\nJanuary 10, 2005, a Notice of Probable Violation and Proposed Civil Penalty (Notice). In\naccordance with 49 C.F.R. $ 190.207, the Notice proposed finding that Respondent committed\nviolations of 49 C.F.R. Part 195 and proposed assessing a civil penalty of $45,000 for the alleged\nviolations.\nRespondent responded to the Notice by letter dated February 15,2005 (Response). Respondent did\nnot contest the allegations of violation, but offered information to explain the allegations and\nprovided information concerning the corrective actions it has taken. Respondent also waived its\nright to a hearing.\nFINDINGS OF VIOLATION\nUncontested\nRespondent did not contest the alleged violations of 49 C.F.R. Part 195 in the Notice. Accordingly,\nI find that Respondent violated 49 C.F.R. Part 195, as more fully described in the Notice:\n49 C.F.R. $ 195.41O(a)(l )-failure to maintain line markers so that the location of\nthe buried line is accurately known, as excessive, overgrown vegetation was found\nat several locations along the pipeline right-of-way reducing the visibility of the\nline markers. (Item])\n49 C.F.R. $ 195.4 12(a)-failure to inspect the surface conditions on or adjacent to\neach pipeline right-of-way (ROW). Respondent uses aerial patrol to inspect the\ncondition of the pipeline ROW. The ROW was found to be overgrown at several\nlocations making aerial patrol an ineffective means of inspecting the condition of\nthe pipeline ROW. (Item2)\n\n\n\n49 C.F.R. $1 95.402(~)(4)-failure to designate which pipeline facilities are located\nin areas that would require immediate response by the operator to prevent hazards\nto the public, as required by 49 C.F.R. $195.402(~)(4). (Itemjl)\n49 C.F.R. $195.402(~)(13)-failure to demonstrate that work done by personnel\nwas periodically reviewed to determine the effectiveness of procedures used in\nnormal operation and maintenance, as required by 49 C.F.R. § 195.402(~)(13).\n(Item4)\n49 C.F.R. $195.403(b)(l)-failure to demonstrate that each employee's\nperformance is reviewed to assure that the objectives of the Emergency Response\nTraining program were accomplished, as required by 49 C.F.R. $195.403(b)(l).\n(Item5)\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. $ 60 122, Respondent is subject to a civil penalty not to exceed $1 00,000 per\nviolation for each day of the violation up to a maximum of $1,000,000 for any related series of\nviolations.\n49 U.S.C. $ 60122 and 49 C.F.R. $ 190.225 require that, in determining the amount of the civil\npenalty, I consider the following criteria: nature, circumstances, and gravity of the violation, degree\nof Respondent's culpability, history of Respondent's prior offenses, Respondent's ability to pay the\npenalty, good faith by Respondent in attempting to achieve compliance, the effect on Respondent's\nability to continue in business, and such other matters as justice may require. The Notice proposed\na total civil penalty of $45,000 for violations of 49 C.F.R. Part 195.\nItem 1of the Notice proposed a civil penalty of $5,000, for violation of 49 C.F.R. $192.41 O(a)(l),\nas Respondent failed to maintain line markers so that the location of the buried line is accurately\nknown, as excessive, overgrown vegetation was found at several locations along the pipeline right-\nof-way reducing the visibility of the line markers. In response to the Notice, Respondent submitted\nphotos to demonstrate that the pipeline ROW has been cleared andlor cut at all locations identified\nin the Notice. During PHMSA's inspection, the areas inspected were randomly selected. Other\nareas of excessive vegetation may exist along Respondent's pipeline ROW. Respondent should\nensure that all areas along its pipeline ROW are clear of excessive vegetation, not just the areas\nidentified during the inspection. While Respondent's effort to comply 49 C.F.R. $192.410(a)(l) is\nacknowledged, the evidence was submitted afler completion of the inspection and issuance of the\nNotice. Evidence that relates to this corrective action after the inspection is not relevant to\ndetermining whether a violation occurred. At the time of the inspection, excessive vegetation was\nfound at several locations along the pipeline right-of-way reducing the visibility of the line markers.\n\n\n\nRespondent has not shown any circumstances that would have prevented it from maintaining visible\nline markers. Respondent did not contest the violation. The rule contemplates the protection ofboth\npeople and property from an accidental discharge from the pipeline. Obscured line markers increase\nthe risk of harm to the public, environment, and property. Accordingly, having reviewed the record\nand considered the assessment criteria, I assess Respondent a civil penalty of $5,000, for violation\nof 49 C.F.R. 8 192.410(a)(I).\nThe proposed civil penalty for Item 2 is $25,000 for violation of 49 C.F.R. §192.412(a), as\nRespondent failed to properly inspect the surface conditions on or adjacent to each pipeline right-of-\nway. Respondent patrols its right-of-ways by aircraft but the aerial patrol views are obstructed by\novergrown vegetation, effectively blocking the view of various ROWS and making aerial patrol an\nineffective means of inspecting the condition of the pipeline ROW.\nIn response to the Notice, Respondent submitted photos to demonstrate that the pipeline ROW has\nbeen cleared and/or cut at all locations identified in the Notice as having excessive vegetation.\nRespondent advised that a procedural review has been conducted to ensure aerial patrol pilots report\nthe condition of the ROW, i.e., overgrowth that reduces pilots' ability to inspect, as well as operator\nfollow-up via Dig Track Tool. Respondent further advised that where aerial visibility is impeded,\nground patrol will be utilized until the ROW has been cut and/or cleared. Based upon this corrective\naction, Respondent requested mitigation of the proposed civil penalty. At the time of the inspection,\nexcessive vegetation was found at several locations along the pipeline right-of-way. Respondent has\nnot shown any circumstances that would have prevented or justified its failure to properly inspect\nthe surface conditions on or adjacent to each pipeline right-of-way.\nA proper system of inspection should be maintained to insure reasonable promptness in the detection\nof all surface conditions on and adjacent to the pipeline right-of-way for indications of any and all\nfactors affecting the safety and operations of the pipeline. The patrolling of right-of-ways is essential\nto help identify potential problems which could develop from third party activities along the pipeline.\nPatrolling is also crucial for leak detection. The failure to properly patrol and follow-up on activities\nalong the right-of-way could lead to significant harm to the public and the environment should\ndamage to the pipeline occur or a leak develops. Accordingly, having reviewed the record and\nconsidered the assessment criteria, I assess Respondent a civil penalty of $25,000 for violation of\n49 C.F.R. 9 192.4 12(a).\nItem 3 of the Notice proposed a civil penalty of $5,000 for violation of 49 C.F.R. $192.402(~)(4),\nas Respondent failed to identify which pipeline facilities on its xylene pipeline are located in areas\nthat would require immediate response by the operator to prevent hazards to the public if the\nfacilities failed or malfunctioned.\nIn response to the Notice, Respondent submitted sections of its procedures. Respondent contended\nthat its submission shows its compliance with federal regulations. The documentation submitted by\nRespondent was not provided during the inspection nor during the post inspection exit interview.\n\n\n\nThe evidence was submitted after completion ofthe inspection and issuance of the Notice. Evidence\nthat relates to activities that occurred after the inspection is not relevant to determining whether a\nviolation occurred. Respondent has not shown any circumstances that would have prevented or\njustified its failure to demonstrate compliance during the inspection. Accordingly, having reviewed\nthe record and considered the assessment criteria, I assess Respondent a civil penalty of $5,000 for\nviolation of 49 C.F.R. 8192.402(~)(4).\nItem 4 of the Notice proposed a civil penalty of $5,000, for violation of 49 C.F.R. 5195.402(~)(13),\nas Respondent failed to demonstrate that work done by personnel was periodically reviewed to\ndetermine the effectiveness of procedures used in normal operation and maintenance. In response\nto the Notice and to demonstrate compliance, Respondent advised that it is modifying its procedures\nto require the observation of personnel while performing Practical Operator Qualification\nDemonstrations.\nRespondent's modifications of its OQ procedures fail to fulfill the requirements of 49 C.F.R.\n§195.402(~)(13). Respondent is confusing requirements to evaluate an individual's ability to\nperform a task with the requirement to determine effectiveness of procedures. 49 C.F.R.\n§195.402(~)(13) is not an OQ requirement. Actual activities conducted during normal operations\nand maintenance on pipeline facilities need to be observed to evaluate the effectiveness of\nprocedures not the personnel doing the work.\nThe requisite review is of the procedures, not the employee. For example, an employee may\ncomplete a procedure in an excellent manner but the procedure itself could be flawed. Conversely,\nthe employee's performance could be unsatisfactory but the procedure used could be found to be\nvery effective. Federal regulations require that Respondent periodically review the work done by\nits personnel to determine the effectiveness and adequacy of the procedure used and to take\ncorrective action where deficiencies are found. Accordingly, having reviewed the record and\nconsidered the assessment criteria, I assess Respondent a civil penalty of $5,000 for violation of 49\nC.F.R. 49 C.F.R. §195.402(~)(13), by failing to demonstrate that it periodically reviews the work\ndone by its personnel to determine the effectiveness and adequacy of the procedures used.\nItem 5 of the Notice proposed a civil penalty of $5,000 for violation of 49 C.F.R. §195.403(b)(1),\nas Respondent failed to demonstrate that each employee's performance is reviewed to assure that the\nobjectives of the Emergency Response Training program were accomplished. In response to the\nNotice, Respondent advised that its emergency response procedures are in place and at intervals not\nexceeding 15 months, but at least once each calendar year and that each supervisor or designee shall\nreview exercises or drills from the plan to ensure adequacy. Respondent further advised that it is\nstrengthening it oversight process for assuring compliance in the field and all DOT compliance\nactivities. The review will be conducted and all attendance annotated and logged in its Virtual\nTraining assistant, online database.\nAn objective of the regulation is to assure that operator emergency response personnel are prepared\nto recognize conditions that are likely to cause emergencies, know the characteristics and hazards\n\n\n\nof the product transported and take steps necessary to control any accidental release of hazardous\nliquids and minimize the potential danger to the public and environment if the facilities failed or\nmalfunctioned in an expeditious and safe manner. When an operator fails to conduct a continuous\ntraining program to instruct emergency response personnel, the proper procedures and techniques\nto follow may not be clear to those responsible for responding to an emergency, which increases the\nrisk of harm to its personnel and the public. Respondent has not shown any circumstances that\nwould have prevented or justified its failure to demonstrate during the inspection that each\nemployee's performance is reviewed to assure that the objectives of the Emergency Response\nTraining program were accomplished. Accordingly, having reviewed the record and considered the\nassessment criteria, I assess Respondent a civil penalty of $5,000 for this violation.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess Respondent\na total civil penalty of $45,000.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations\n(49 C.F.R. 89.2 1 (b)(3)) require this payment be made by wire transfer, through the Federal Reserve\nCommunications System (Fedwire), to the account of the U.S. Treasury. Detailed instructions are\ncontained in the enclosure. Questions concerning wire transfers should be directed to: Financial\nOperations Division (AMZ-300), Federal Aviation Administration, Mike Monroney Aeronautical\nCenter, P.O. Box 25082, Oklahoma City, OK 73 125; (405) 954-8893.\nFailure to pay the $45,000 civil penalty will result in accrual of interest at the current annual rate in\naccordance with3 1 U.S.C. 8 3717,3 1 C.F.R. 5 901.9and 49 C.F.R. 5 89.23. Pursuant to those same\nauthorities, a late penalty charge of six percent (6%) per m u m will be charged if payment is not\nmade within 1 10 days of service. Furthermore, failure to pay the civil penalty may result in referral\nof the matter to the Attorney General for appropriate action in a United States District Court.\nWARNING ITEMS\nThe Notice did not propose a civil penalty or compliance action for Items 6 and 7 in the Notice;\ntherefore, these are considered warning items. Respondent is warned that if it does not take\nappropriate action to correct these items, enforcement action will be taken if a subsequent\ninspection reveals a violation. The warnings were for -\n5 195.404(a) - failing to maintain current maps and records of its pipeline system,\nas a set of drawings reviewed during the inspection were found to be outdated, i.e.,\nDrawing No. 95 on file at the Pigeon Creek Station was dated 5-8-02. However,\nDrawing No. 95 had been revised twice, first on 8-23-03 and again on 1 1-19-03.\ntj 195.420(b) - failing to inspect each mainline valve at the required interval to\ndetermine that it is hctioning properly, as the records of mainline valve inspections\nrevealed that Respondent's personnel are inconsistent in how work orders are\ncomplete and it was not evident that all applicable tasks were completed.\n\n\n\nUnder 49 C.F.R. 190.2 15, Respondent has a right to submit a Petition for Reconsideration of this\nFinal Order. The petition must be received within 20 days of Respondent's receipt of this Final\nOrder and must contain a brief statement of the issue(s). The filing of the petition automatically\nstays the payment of any civil penalty assessed. However if Respondent submits payment for the\ncivil penalty, the Final Order becomes the final administrative decision and the right to petition for\nreconsideration is waived. The terms and conditions of this Final Order are effective on receipt.\n0SEP - 6 2006\neo ore L. Willke Date Issued\nw Acting Associate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":17256}