{"operation":"document","citation":"CPF 320095009","title":"BP OIL PIPELINE CO — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2009-07-16","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.406(b), 195.420(a), 195.428(a), 195.440(a), 195.583.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320095009.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320095009.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320095009","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320095009","body":"Notice of Probable Violation involving BP OIL PIPELINE CO. PHMSA's enforcement data identifies the cited regulations as 195.406(b),  195.420(a),  195.428(a),  195.440(a),  195.583. The case was opened on 2009-07-16 and is reported as closed as of 2011-07-07. Proposed civil penalty: $66,300. Assessed civil penalty: $66,300. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320095009_Final Order_061142011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095009/320095009_Final%20Order_061142011.pdf\n\n320095009_Final Order_06142011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095009/320095009_Final%20Order_06142011_text.pdf\n\n320095009_NOPV PCP_07162009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095009/320095009_NOPV%20PCP_07162009.pdf\n\n320095009_NOPV PCP_07162009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095009/320095009_NOPV%20PCP_07162009_text.pdf\n\n320095009_operator response_08102009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320095009/320095009_operator%20response_08102009.pdf\n\n320095009_Final Order_06142011_text.pdf\n\nJUN 14 2011\nMr. Steve Pankhurst\nPresident\nBP Pipeline (North America) Inc.\n150 West Warrenville Road\nNaperville, Illinois 60563\nRe: CPF No. 3-2009-5009\nDear Mr. Pankhurst:\nEnclosed please find the Final Order issued in the above-referenced case. It makes one finding\nof violation and assesses a civil penalty of $66,300. The penalty payment terms are set forth in\nthe Final Order. This enforcement action closes automatically upon receipt of payment. Service\nof the Final Order by certified mail is deemed effective upon the date of mailing, or as otherwise\nprovided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety\nMr. David Barrett, Director, Central Region, OPS\nMr. David O. Barnes, Integrity Manager, BP Pipelines (North America), Inc.\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED [7005 1160 0001 0075 9428]\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 )\nBP Pipelines (North America), Inc., ) CPF No. 3-2009-5009\n)\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nDuring the weeks of November 12, 2007, and February 25, 2008, pursuant to 49 U.S.C. § 60117,\na representative of the Pipeline and Hazardous Materials Safety Administration (PHMSA),\nOffice of Pipeline Safety (OPS), conducted an on-site pipeline safety inspection of the facilities\nand records of BP Pipelines (North America), Inc. (BP or Respondent), in the state of Ohio.\nRespondent operates approximately 9,000 miles of hazardous liquids and natural gas pipelines in\nthe United States, including approximately 550 miles of hazardous liquid lines in Ohio.\n1\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated July 16, 2009, 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 BP had\ncommitted one violation of 49 C.F.R. § 195.420(a) and proposed assessing a civil penalty of\n$66,300 for the alleged violation. The Notice also proposed finding that Respondent had\ncommitted certain other probable violations of 49 C.F.R. Part 195 and warned Respondent to\ntake appropriate corrective action to address those items.\nBP responded to the Notice by letter dated August 10, 2009 (Response). Respondent requested\nthat the proposed civil penalty be reduced or rescinded and requested a hearing. A hearing was\nheld on October 16, 2009, in Kansas City, Missouri, with an attorney from the Office of Chief\nCounsel, PHMSA, presiding.2 After the hearing, Respondent provided a post-hearing statement\nfor the record dated November 11, 2009 (Brief).\nFINDING OF VIOLATION\n1 Pipeline Safety Violation Report, at 1 (Jul. 15, 2009) (Violation Report); and\nhttp://www.bp.com/sectiongenericarticle.do?categoryId=9030201&contentId=7055756 (last accessed May 26,\n2011).\n2 The hearing also addressed a second Notice of Probable Violation, CPF No. 3-2009-5002, which was issued to BP\non March 30, 2009. That case is still pending and a Final Order has not yet been issued.\nThe Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.420(a), which states:\n\n\n\n2\n§ 195.420 Valve maintenance.\n(a) Each operator shall maintain each valve that is necessary for the\nsafe operation of its pipeline systems in good working order at all times.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.420(a) by failing to maintain\ncertain valves necessary for the safe operation of its pipeline system in good working order at all\ntimes. Specifically, the Notice alleged that at the time of the inspection, BP could not close\nValve Numbers 2 and 3 on the Lima to Columbus pipeline by applying steady pressure to the\nvalve handles. According to the Notice, the valves could only be closed slightly with\n“tremendous efforts” and did not operate freely when reopened. The Notice further alleged that\nambient temperatures were below freezing during the inspection. Further investigation by\nRespondent’s personnel determined that water had contaminated the grease in the above-ground\nvalve extensions and that freezing had prevented proper operation of the valves.\nIn its Response, BP did not contest the factual allegations in the Notice or that such facts proved\na violation of § 195.420(a). Rather, BP provided an explanation of certain good-faith efforts it\nhad taken, both before and after the inspection, and requested the civil penalty be rescinded or\nreduced.\n3 Discussion of such information is in the Civil Penalty Assessment section below.\nAt the hearing and in its Brief, however, Respondent contested the allegation of violation,\narguing the valves had been maintained in accordance with both the regulation and the\nmanufacturer’s instructions. In responding to the alleged condition of the valves at the time of\nthe inspection, BP contended the valves were merely “stiff” from the cold temperature but could\nstill be operated.4 The company also explained that the valves were not hermetically sealed, so\nwater could sometimes get into them. For this reason, BP pointed out that the manufacturer’s\ninstructions recommended bi-annual maintenance inspections and that BP had completed such\ninspections for these valves. Furthermore, Respondent argued,\n“the issue is not whether the\nvalve hand wheel(s) turned freely, but whether they could perform the function for which they\nwere installed.”5 Since the valves did in fact “operate,” Respondent argued that PHMSA should\nfind the valves were in good working order and withdraw the allegation of violation.\nAt the hearing, the OPS inspector stated that during his inspection, he witnessed two BP\nemployees applying steady pressure to the valve handles but they could not get the valves to\nbudge. The valve handles could only be moved, and the valves closed only slightly, when the\nemployees applied a repetitive slamming motion to the hand wheels. The cause of the difficulty,\nthe inspector explained, was determined by BP personnel to be water that had entered into the\nabove-ground portions of the valves and frozen.\nThe evidence in the record demonstrates that Respondent had great difficulty operating the\nvalves at the time of the inspection.\n6\nThe difficulty BP had in attempting to close the valves and\nthen trying to reopen them was not merely the result of typical cold-induced stiffness, as\nRespondent suggested, but the result of water entering the above-ground portion of the valve,\n3 Response at 3.\n4 Brief at 1.\n5 Brief at 2.\n6 BP stated in its Response that after the PHMSA inspection, the company found the valves were “able to fully\nclose, but with difficulty.” Response at 3. Even if the valves could eventually be closed, the difficulty Respondent\nhad in operating the valves (both closing and opening) at the time of the PHMSA inspection is determinative.\n\n\n\n3\ncontaminating the grease, and freezing, which is a valve maintenance issue. The difficulty in\noperating the valves demonstrates the valves were not “in good working order,\n” as the regulation\nrequires. In the event of an emergency, Respondent’s valves would not have been in a condition\nto be rapidly closed by hand to mitigate the consequences of a pipeline release.\nRespondent has previously been cited for failing to maintain properly operating valves during\ncold weather, in violation of § 195.420(a). In a prior enforcement action, PHMSA determined\nthat certain mainline valves on Respondent’s system were not operating properly due to frozen\nwater in the operating mechanisms.\nthe valves at six-month intervals, PHMSA determined that BP had violated the regulatory\nstandard because the valves were not in good working order at the time of the inspection.\n7 Even though Respondent had performed maintenance on\nIn the present case, Respondent similarly argued that it met the minimum requirements of the\nregulation by inspecting and servicing the two valves twice per year. Subsection (b) of\n§ 195.420 provides that pipeline operators must inspect mainline valves at intervals not\nexceeding 7½ months, but at least twice each calendar year, to determine they are functioning\nproperly.\nThe condition of the two valves at the time of the PHMSA inspection demonstrates either that\nthe frequency of Respondent’s maintenance activities were insufficient, or that the valves\nthemselves were not equipped with proper protection against water contamination. In addition,\nthe inspection interval set forth in § 195.420(b) is a minimum requirement, meaning that\nRespondent may be required to inspect its valves with greater frequency to ensure that the valves\nare in good working order at all times, including during the coldest months.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n§ 195.420(a) by failing to maintain each valve that is necessary for the safe operation of its\npipeline system in good working order at all times.\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$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any\nrelated series of violations.\nIn determining the amount of a civil penalty under 49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I\nmust consider the following criteria: the nature, circumstances, and gravity of the violation,\nincluding adverse impact on the environment; the degree of Respondent’s culpability; the history\nof Respondent’s prior offenses; the Respondent’s ability to pay the penalty and 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\n7 In the Matter of BP Pipelines (North America) Inc., Final Order, CPF No. 3-2006-5027, 2007 WL 4260530 (Nov.\n7, 2007) (prior enforcement cases are also available online at “http://www.phmsa.dot.gov/pipeline/enforcement”).\n\n\n\n4\neconomic benefit gained from the violation without any reduction because of subsequent\ndamages, and such other matters as justice may require.\nItem 2: The Notice proposed a civil penalty of $66,300 for Respondent’s violation of 49 C.F.R.\n§ 195.420(a), for failing to maintain two valves in good working order at all times. Failure to\nproperly maintain valves in good working order may adversely affect public safety because their\nproper operation can be critical in responding to failures and mitigating pipeline releases. In this\ncase, in the event of a leak on Respondent’s pipeline, BP would have had difficulty closing the\nvalves to control the spill, which could lead to additional product loss and adverse impacts to\npublic safety, property, and the environment. For these reasons, the nature, circumstances, and\ngravity of the violation support the proposed civil penalty.\nIn its Response and Brief, BP requested that the proposed penalty be reduced or rescinded for\ngood faith. In particular, BP provided a description of its routine maintenance practice for the\nvalves in question, including verification in October 2007 that the valve operations were\nadequate.8 In addition, following the PHMSA inspection, BP re-assessed the operation of the\nvalves, determined they could be closed with difficulty, and in April 2008 serviced the valves to\nensure proper operations. Respondent also took other corrective measures following the\nPHMSA inspection, including inspecting additional valves, issuing an advisory about winter\nvalve operations, revising procedures, and revoking one employee’s operator qualification.9\nBP’s routine maintenance practices leading up to PHMSA’s identification of the violation had\nbeen insufficient to ensure the valves in question were in good working order during cold\ntemperatures. The other measures described by Respondent were actually taken after the\nviolation had already been identified by PHMSA and therefore do not serve to demonstrate a\ngood-faith attempt to comply with § 195.420(a) prior to committing the violation. For these\nreasons, I do not find the assertions by Respondent of good faith justify reducing the civil\npenalty.\nBP also argued that it is improper for PHMSA to assess a civil penalty of $66,300 for this\nviolation when the agency assessed a penalty of only $10,000 in the prior case against BP for the\nsame violation.\nOne of the penalty assessment criteria that PHMSA considers is “any history of prior\nviolations.”10 This includes both a general history of violations of the pipeline safety regulations\nthe same regulation will give rise to higher penalties. Furthermore, the prior case was several\nyears earlier and PHMSA has found it appropriate to increase many of its civil penalties in recent\nyears to deter violations and to give effect to the amendment of 49 U.S.C. § 60122 by Congress\nin 2002, which raised PHMSA’s maximum civil penalties. For these reasons, I find the variation\nand a specific history of repeat violations of the same exact regulation.11 Repeat violations of\n8 Response at 3.\n9 Response at 4.\n10 49 U.S.C. § 60122(b)(1)(B); 49 C.F.R. § 190.225(a)(3).\n11 See In the Matter of Alyeska Pipeline Service Co., Decision on Reconsideration, CPF No. 5-2006-5018, at 3,\n2010 WL 2228550 (Mar. 1, 2010).\n\n\n\n5\nbetween the penalty amounts in these two cases to be appropriate. I note also that the Violation\nReport cites a total of 22 prior offenses by BP in the five-year period before issuance of the\nNotice.12\nTherefore, BP’s history of prior offenses supports the proposed civil penalty.\nBP further argued that it is improper for PHMSA to propose any civil penalty for this violation\nwhen the agency issued only a warning item against another company for a similar violation of\n§ 195.420(a), where that company’s valve was inoperable due to freezing.\nthat such “inconsistent enforcement” is arbitrary.\n13 Respondent argued\nAgain, that particular case was issued several years earlier, and in addition, was against an\nentirely different company with a different compliance history. PHMSA has a variety of\nenforcement tools to address probable violations found during a compliance inspection,\nincluding warnings, civil penalties, and compliance orders. Selection of one tool over another is\nnot “erratic enforcement,” as Respondent contends, but, rather, a necessary and proper use of the\nagency’s enforcement discretion given the various facts of each case, such as an operator’s\nindividual compliance history or whether there are any immediate or potential safety or\nenvironmental impacts. Accordingly, it is not uncommon for there to be some variance in the\ntype of enforcement actions taken for similar probable violations.\nBP is fully culpable for this violation, particularly since the company has been cited previously\nfor failing to maintain properly functioning valves in cold weather conditions. BP did not\ncontend that it is unable to pay the penalty. Therefore, I find Respondent is able to pay the\npenalty without adversely affecting its ability to continue in business.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $66,300 for the violation of 49 C.F.R. § 195.420(a).\nPayment of the civil penalty must be made within 20 days of receipt of this Final Order. Federal\nregulations (49 C.F.R. § 89.21(b)(3)) require this payment be made by wire transfer, through the\nFederal 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 (AMZ-341), Federal Aviation Administration,\nMike Monroney Aeronautical Center, P.O. Box 269039, Oklahoma City, OK 73125; (405) 954-\n8893.\nFailure to pay the $66,300 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 United\nStates District Court.\n12 Violation Report at 4.\n13 In the Matter of Marathon Pipe Line LLC, Final Order, CPF No. 3-2007-5024, 2008 WL 5264711 (Nov. 7,\n2008).\n\n\n\n6\nWARNING ITEMS\nWith respect to Items 1, 3, 4, and 5, the Notice alleged probable violations of Part 195 and\nspecifically considered them to be warning items. The warnings were for:\n49 C.F.R. § 195.406 (Item 1) – Respondent’s alleged failure to provide adequate controls\nand protective equipment to control the pressure within the maximum operating pressure\nlimit;\n49 C.F.R. § 195.428 (Item 3) – Respondent’s alleged failure to inspect and test each\npressure limiting device, relief valve, pressure regulator, or other item of pressure control\nequipment to determine that it is functioning properly, is in good mechanical condition,\nand is adequate from the standpoint of capacity and reliability of operation for the service\nin which it is used;\n49 C.F.R. § 195.440 (Item 4) – Respondent’s alleged failure to develop and implement a\nwritten continuing public education program that followed the guidance provided in the\nAmerican Petroleum Institute’s (API) Recommended Practice (RP) 1162; and\n49 C.F.R. § 195.583 (Item 5) – Respondent’s alleged failure to inspect each pipeline or\nportion of pipeline that is exposed to the atmosphere for evidence of atmospheric\ncorrosion.\nBP presented information in its Response showing that it had taken certain actions to address the\ncited items. In the event that OPS finds a violation of any of these items in a subsequent\ninspection, Respondent may be subject to future enforcement action.\nUnder 49 C.F.R. § 190.215, Respondent has a right to submit a Petition for Reconsideration of\nthis Final Order. If submitting a petition, the petition must be sent to: Associate Administrator,\nOffice of Pipeline Safety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor,\nWashington, DC 20590. PHMSA will accept petitions received no later than 20 days after\nreceipt of the Final Order by the Respondent, provided they contain a brief statement of the issue\nand meet all other requirements of 49 C.F.R. § 190.215. The filing of a petition automatically\nstays the payment of any civil penalty assessed. If Respondent submits payment for the civil\npenalty, 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 upon\nservice in accordance with 49 C.F.R. § 190.5.\n___________________________________ ______________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n320095009_Final Order_061142011.pdf\n\nu.s. Department 1200 New Jersey Ave., SE\nWashington, DC 20590\nof Tra nsportation Pipeline and Hazardous Materials Safety Administration\nJUN 1 4 2011\nMr. Steve Pankhurst\nPresident\nBP Pipeline (North America) Inc.\n150 West Warrenville Road .\nNaperville, Illinois 60563\nRe: CPF No. 3-2009-5009\nDear Mr. Pankhurst:\nEnclosed please find the Final Order issued in the above-referenced case. It makes one finding\nofviolation and assesses a civil penalty of$66,300. The penalty payment terms are set forth in\nthe Final Order. This enforcement action closes automatically upon receipt ofpayment. Service\nofthe Final Order by certified mail is deemed effective upon the date of mailing, or as otherwise\nprovided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\n§J~\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, Pipeline Safety\nMr. David Barrett, Director, Central Region, OPS\nMr. David O. Barnes, Integrity Manager, BP Pipelines (North America), Inc.\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED [7005 1160 0001 0075 9428J\n\n\n\nU.S. DEPARTMENT 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., ) CPF No. 3·2009·5009\n)\n)\n)\nRespondent. )\nFINAL ORDER\nDuring the weeks of November 12,2007, and February 25,2008, pursuant to 49 U.S.C. § 60117,\na representative of the Pipeline and Hazardous Materials Safety Administration (PHMSA),\nOffice of Pipeline Safety (OPS), conducted an on-site pipeline safety inspection of the facilities\nand records of BP Pipelines (North America), Inc. (BP or Respondent), in the state of Ohio.\nRespondent operates approximately 9,000 miles of hazardous liquids and natural gas piyelines in\nthe United States, including approximately 550 miles of hazardous liquid lines in Ohio.\nAs a result of the inspection, the Director. Central Region, OPS (Director), issued to Respondent,\nby letter dated July 16, 2009, 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 BP had\ncommitted one violation of 49 C.F.R. § 195.420(a) and proposed assessing a civil penalty of\n$66,300 for the alleged violation. The Notice also proposed finding that Respondent had\ncommitted certain other probable violations of 49 C.F.R. Part 195 and warned Respondent to\ntake appropriate corrective action to address those items.\nBP responded to the Notice by letter dated August 10,2009 (Response). Respondent requested\nthat the proposed civil penalty be reduced or rescinded and requested a hearing. A hearing was\nheld on October 16,2009, in Kansas City, Missouri, with an attorney from the Office of Chief\nCounsel, PHMSA, presiding? After the hearing, Respondent provided a post-hearing statement\nfor the record dated November 11, 2009 (Brief).\nFINDING OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.420(a), which states:\nI Pipeline Safety Violation Report, at 1 (Jui. 15,2009) (Violation Report); and\nhttp://www.bp.comlsectiongenericarticle.do?categoryld=9030201&contentId=7055756 (last accessed May 26,\n2011).\n2 The hearing also addressed a second Notice of Probable Violation, CPF No. 3-2009-5002, which was issued to BP\non March 30, 2009. That case is still pending and a Final Order has not yet been issued.\n\n\n\n2\n§ 195.420 Valve maintenance.\n(a) Each operator shall maintain each valve that is necessary for the\nsafe operation of its pipeline systems in good working order at all times.\nThe Notice alleged that Respondent violated 49 C.F.R. § 19S.420(a) by failing to maintain\ncertain valves necessary for the safe operation of its pipeline system in good working order at all\ntimes. Specifically, the Notice alleged that at the time of the inspection, BP could not close\nValve Numbers 2 and 3 on the Lima to Columbus pipeline by applying steady pressure to the\nvalve handles. According to the Notice, the valves could only be closed slightly with\n\"tremendous efforts\" and did not operate freely when reopened. The Notice further alleged that\nambient temperatures were below freezing during the inspection. Further investigation by\nRespondent's personnel determined that water had contaminated the grease in the above-ground\nvalve extensions and that freezing had prevented proper operation of the valves.\nIn its Response, BP did not contest the factual allegations in the Notice or that such facts proved\na violation of § 19S.420(a). Rather, BP provided an explanation of certain good-faith efforts it\nhad taken, both before and after the inspection, and requested the civil penalty be rescinded or\nreduced,3 Discussion of such information is in the Civil Penalty Assessment section below.\nAt the hearing and in its Brief, however, Respondent contested the allegation of violation,\narguing the valves had been maintained in accordance with both the regulation and the\nmanufacturer's instructions. In responding to the alleged condition of the valves at the time of\nthe inspection, BP contended the valves were merely \"stiff' from the cold temperature but could\nstill be operated.4 The company also explained that the valves were not hermetically sealed, so\nwater could sometimes get into them. For this reason, BP pointed out that the manufacturer's\ninstructions recommended bi-annual maintenance inspections and that BP had completed such\ninspections for these valves. Furthermore, Respondent argued, \"the issue is not whether the\nvalve hand wheel(s) turned freely, but whether they could perform the function for which they\nwere installed.\"s Since the valves did in fact \"operate,\" Respondent argued that PHMSA should\nfind the valves were in good working order and withdraw the allegation of violation.\nAt the hearing, the OPS inspector stated that during his inspection, he witnessed two BP\nemployees applying steady pressure to the valve handles but they could not get the valves to\nbudge. The valve handles could only be moved, and the valves closed only slightly, when the\nemployees applied a repetitive slamming motion to the hand wheels. The cause of the difficulty,\nthe inspector explained, was determined by BP personnel to be water that had entered into the\nabove-ground portions of the valves and frozen.\nThe evidence in the record demonstrates that Respondent had great difficulty operating the\nvalves at the time of the inspection.6 The difficulty BP had in attempting to close the valves and\nthen trying to reopen them was not merely the result of typical cold-induced stiffness, as\nRespondent suggested, but the result of water entering the above-ground portion of the valve,\n3 Response at 3.\n4 Brief at 1.\nS Brief at 2.\n6 BP stated in its Response that after the PHMSA inspection, the company found the valves were \"able to fully\nclose, but with difficulty.\" Response at 3. Even if the valves could eventually be closed, the difficulty Respondent\nhad in operating the valves (both closing and opening) at the time ofthe PHMSA inspection is determinative.\n\n\n\n3\ncontaminating the grease, and freezing, which is a valve maintenance issue. The difficulty in\noperating the valves demonstrates the valves were not \"in good working order,\" as the regulation\nrequires. In the event of an emergency, Respondent's valves would not have been in a condition\nto be rapidly closed by hand to mitigate the consequences of a pipeline release.\nRespondent has previously been cited for failing to maintain properly operating valves during\ncold weather, in violation of § 195.420(a). In a prior enforcement action, PHMSA determined\nthat certain mainline valves on Respondent's system were not operating properly due to frozen\nwater in the operating mechanisms.7 Even though Respondent had performed maintenance on\nthe valves at six-month intervals, PHMSA determined that BP had violated the regulatory\nstandard because the valves were not in good working order at the time of the inspection.\nIn the present case, Respondent similarly argued that it met the minimum requirements of the\nregulation by inspecting and servicing the two valves twice per year. Subsection (b) of\n§ 195.420 provides that pipeline operators must inspect mainline valves at intervals not\nexceeding 7Y2 months, but at least twice each calendar year, to determine they are functioning\nproperly.\nThe condition of the two valves at the time of the PHMSA inspection demonstrates either that\nthe frequency of Respondent's maintenance activities were insufficient, or that the valves\nthemselves were not equipped with proper protection against water contamination. In addition,\nthe inspection interval set forth in § 195.420(b) is a minimum requirement, meaning that\nRespondent may be required to inspect its valves with greater frequency to ensure that the valves\nare in good working order at all times, including during the coldest months.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n§ 195.420(a) by failing to maintain each valve that is necessary for the safe operation of its\npipeline system in good working order at all times.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\nASSESSlVIENT OF PENALTY\nUnder 49 U.S.c. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any\nrelated series of violations.\nIn determining the amount of a civil penalty under 49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I\nmust consider the following criteria: the nature, circumstances, and gravity of the violation,\nincluding adverse impact on the environment; the degree of Respondent's culpability; the history\nof Respondent's prior offenses; the Respondent's ability to pay the penalty and 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\n7 In the Matter of BP Pipelines (North America) Inc., Final Order, CPF No. 3-2006-5027, 2007 WL 4260530 (Nov.\n7,2007) (prior enforcement cases are also available online at ''http://www.phmsa.dot.gov/pipeline/enforcement'').\n\n\n\n4\neconomic benefit gained from the violation without any reduction because of subsequent\ndamages, and such other matters as justice may require.\nItem 2: The Notice proposed a civil penalty of $66,300 for Respondent's violation of 49 C.F.R.\n§ 195.420(a), for failing to maintain two valves in good working order at all times. Failure to\nproperly maintain valves in good working order may adversely affect public safety because their\nproper operation can be critical in responding to failures and mitigating pipeline releases. In this\ncase, in the event of a leak on Respondent's pipeline, BP would have had difficulty closing the\nvalves to control the spill, which could lead to additional product loss and adverse impacts to\npublic safety, property, and the environment. For these reasons, the nature, circumstances, and\ngravity of the violation support the proposed civil penalty.\nIn its Response and Brief, BP requested that the proposed penalty be reduced or rescinded for\ngood faith. In particular, BP provided a description of its routine maintenance practice for the\nvalves in question, including verification in October 2007 that the valve operations were\nadequate.8 In addition, following the PHMSA inspection, BP re-assessed the operation of the\nvalves, determined they could be closed with difficulty, and in April 2008 serviced the valves to\nensure proper operations. Respondent also took other corrective measures following the\nPHMSA inspection, including inspecting additional valves, issuing an advisory about winter\nvalve operations, revising procedures, and revoking one employee's operator qualification.9\nBP's routine maintenance practices leading up to PHMSA's identification of the violation had\nbeen insufficient to ensure the valves in question were in good working order during cold\ntemperatures. The other measures described by Respondent were actually taken after the\nviolation had already been identified by PHMSA and therefore do not serve to demonstrate a\ngood-faith attempt to comply with § 195.420(a) prior to committing the violation. For these\nreasons, I do not find the assertions by Respondent of good faith justify reducing the civil\npenalty.\nBP also argued that it is improper for PHMSA to assess a civil penalty of $66,300 for this\nviolation when the agency assessed a penalty of only $10,000 in the prior case against BP for the\nsame violation.\nOne of the penalty assessment criteria that PHMSA considers is \"any history of prior\nviolations.\"l0 This includes both a general history of violations of the ~ipeline safety regulations\nand a specific history of repeat violations of the same exact regulation. 1 Repeat violations of the\nsame regulation will give rise to higher penalties. Furthermore, the prior case was several years\nearlier and PHMSA has found it appropriate to increase many of its civil penalties in recent years\nto deter violations and to give effect to the amendment of 49 U.S.c. § 60122 by Congress in\n2002, which raised PHMSA's maximum civil penalties. For these reasons, I find the variation\n8 Response at 3.\n9 Response at 4.\n10 49 U.S.C. § 60 122(b)(l)(B); 49 C.F.R. § 190.225(a)(3).\n11 See In the Matter ofAlyeska Pipeline Service Co., Decision on Reconsideration, CPF No. 5-2006-5018, at 3,\n2010 WL 2228550 (Mar. 1,2010).\n\n\n\n5\nbetween the penalty amounts in these two cases to be appropriate. I note also that the Violation\nReport cites a total of 22 prior offenses by BP in the five-year period before issuance of the\nNotice. 12 Therefore, BP's history of prior offenses supports the proposed civil penalty.\nBP further argued that it is improper for PHMSA to propose any civil penalty for this violation\nwhen the agency issued only a warning item against another company for a similar violation of\n§ 195.420(a), where that company's valve was inoperable due to freezing. 13 Respondent argued\nthat such \"inconsistent enforcement\" is arbitrary.\nAgain, that particular case was issued several years earlier, and in addition, was against an\nentirely different company with a different compliance history. PHMSA has a variety of\nenforcement tools to address probable violations found during a compliance inspection,\nincluding warnings, civil penalties, and compliance orders. Selection of one tool over another is\nnot \"erratic enforcement,\" as Respondent contends, but, rather, a necessary and proper use of the\nagency's enforcement discretion given the various facts of each case, such as an operator's\nindividual compliance history or whether there are any immediate or potential safety or\nenvironmental impacts. Accordingly, it is not uncommon for there to be some variance in the\ntype of enforcement actions taken for similar probable violations.\nBP is fully culpable for this violation, particularly since the company has been cited previously\nfor failing to maintain properly functioning valves in cold weather conditions. BP did not\ncontend that it is unable to pay the penalty. Therefore, I find Respondent is able to pay the\npenalty without adversely affecting its ability to continue in business.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $66,300 for the violation of 49 C.F.R. § 195.420(a).\nPayment of the civil penalty must be made within 20 days of receipt of this Final Order. Federal\nregulations (49 c.F.R. § 89.21(b)(3)) require this payment be made by wire transfer, through the\nFederal 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 (AMZ-34l), Federal Aviation Administration,\nMike Monroney Aeronautical Center, P.O. Box 269039, Oklahoma City, OK 73125; (405) 9548893.\nFailure to pay the $66,300 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 United\nStates District Court.\n12 Violation Report at 4.\nJ3 In the Matter ofMarathon Pipe Line LLC, Final Order, CPF No. 3-2007-5024, 2008 WL 5264711 (Nov. 7,\n2008).\n\n\n\n6\nWARNING ITEMS\nWith respect to Items 1, 3, 4, and 5, the Notice alleged probable violations of Part 195 and\nspecifically considered them to be warning items. The warnings were for:\n49 C.F.R. § 195.406 (Item 1) Respondent's alleged failure to provide adequate controls\nand protective equipment to control the pressure within the maximum operating pressure\nlimit;\n49 C.F.R. § 195.428 (Item 3) - Respondent's alleged failure to inspect and test each\npressure limiting device, relief valve, pressure regulator, or other item of pressure control\nequipment to determine that it is functioning properly, is in good mechanical condition,\nand is adequate from the standpoint of capacity and reliability of operation for the service\nin which it is used;\n49 C.F.R. § 195.440 (Item 4) Respondent's alleged failure to develop and implement a\nwritten continuing public education program that followed the guidance provided in the\nAmerican Petroleum Institute's (API) Recommended Practice (RP) 1162; and\n49 C.F.R. § 195.583 (Item 5) - Respondent's alleged failure to inspect each pipeline or\nportion of pipeline that is exposed to the atmosphere for evidence of atmospheric\ncorrosion.\nBP presented information in its Response showing that it had taken certain actions to address the\ncited items. In the event that OPS finds a violation of any of these items in a subsequent\ninspection, Respondent may be subject to future enforcement action.\nUnder 49 C.F.R. § 190.215, Respondent has a right to submit a Petition for Reconsideration of\nthis Final Order. If submitting a petition, the petition must be sent to: Associate Administrator,\nOffice of Pipeline Safety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor,\nWashington, DC 20590. PHMSA will accept petitions received no later than 20 days after\nreceipt of the Final Order by the Respondent, provided they contain a brief statement of the issue\nand meet all other requirements of 49 C.F.R. § 190.215. The filing of a petition automatically\nstays the payment of any civil penalty assessed. If Respondent submits payment for the civil\npenalty, 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 upon\nservice in accordance with 49 CoF.R. § 190.5.\n~·14 21m\nDate Issued","truncated":false,"body_characters":39736}