# BUCKEYE PARTNERS, LP — Notice of Probable Violation

- **operation:** document
- **citation:** CPF 320105006
- **title:** BUCKEYE PARTNERS, LP — Notice of Probable Violation
- **source type:** enforcement
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2010-04-14
- **effective on:** Not available
- **summary:** CLOSED notice of probable violation citing 195.401(b), 195.402(a), 195.505(a), 195.505(b), 195.52(a)(3).
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- **markdown:** https://regulus.evalyn.ai/document/phmsa-enforcement-320105006.md
- **app url:** https://regulus.evalyn.ai/document/phmsa-enforcement-320105006
- **source url:** https://primis.phmsa.dot.gov/enforcement-data/case/320105006
**body:**

Notice of Probable Violation involving BUCKEYE PARTNERS, LP. PHMSA's enforcement data identifies the cited regulations as 195.401(b),  195.402(a),  195.505(a),  195.505(b),  195.52(a)(3). The case was opened on 2010-04-14 and is reported as closed as of 2016-06-02. Proposed civil penalty: $481,800. Assessed civil penalty: $402,500. Open the official case record for notices, responses, orders, and the latest status.

Official case documents:

320105006_Closure Letter_06022016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320105006/320105006_Closure%20Letter_06022016.pdf

320105006_Closure Letter_06022016_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320105006/320105006_Closure%20Letter_06022016_text.pdf

320105006_Decision on Petition_08012013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320105006/320105006_Decision%20on%20Petition_08012013.pdf

320105006_Decision on Petition_08012013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320105006/320105006_Decision%20on%20Petition_08012013_text.pdf

320105006_Final Order_11192012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320105006/320105006_Final%20Order_11192012.pdf

320105006_Final Order_11192012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320105006/320105006_Final%20Order_11192012_text.pdf

320105006_NOPV PCP PCO_04142010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320105006/320105006_NOPV%20PCP%20PCO_04142010.pdf

320105006_NOPV PCP PCO_04142010_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320105006/320105006_NOPV%20PCP%20PCO_04142010_text.pdf

320105006_Operator Response to NOPV PCP PCO_05122010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320105006/320105006_Operator%20Response%20to%20NOPV%20PCP%20PCO_05122010.pdf

320105006_Decision on Petition_08012013_text.pdf

AUGUST 1, 2013
Mr. Clark Smith
President & Chief Executive Officer
Buckeye Partners, LP
One Greenway Plaza
Suite 600
Houston, TX 77046
Re: CPF No. 3-2010-5006
Dear Mr. Smith:
Enclosed please find the Decision on the Petition for Reconsideration filed by Buckeye Partners,
LP, in the above-referenced case. It denies your Petition and affirms the Final Order without
modification. Service of the Decision by certified mail is deemed effective upon the date of
mailing, or as otherwise provided under 49 C.F.R. § 190.5.
Thank you for your cooperation in this matter.
Sincerely,
Jeffrey D. Wiese
Associate Administrator
for Pipeline Safety
Enclosure
cc: Robert E. Hogfoss, Esq., Counsel for Buckeye Partners, LP, Hunton & Williams,
Bank of America Plaza, 600 Peachtree Street, N.E., Suite 4100, Atlanta, Georgia
30308
Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, OPS
Mr. David Barrett, Director, Central Region, OPS
CERTIFIED MAIL – RETURN RECEIPT REQUESTED



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, DC 20590
____________________________________
In the Matter of )
Buckeye Partners, LP, ) CPF No. 3-2010-5006
)
)
)
Petitioner. )
____________________________________)
DECISION ON PETITION FOR RECONSIDERATION
On November 19, 2012, the Pipeline and Hazardous Materials Safety Administration (PHMSA),
Office of Pipeline Safety (OPS), issued a Final Order in this case to Buckeye Partners, LP
(Buckeye or Petitioner), finding that Buckeye had committed five violations of the hazardous
liquid pipeline safety regulations and assessing a total civil penalty of $402,500.1 The Final
Order also required Buckeye to take certain corrective measures.
On December 10, 2012, Buckeye filed a Petition for Reconsideration (Petition) seeking review
of Items #1 (timeliness of reporting a release), #4 (covered tasks), and #5 (training on a particular
covered task).2 Buckeye requested that PHMSA withdraw all three items or, in the alternative,
withdraw Item #1, convert Items #4 and 5 to either a Notice of Amendment or Warning Item,
and withdraw the associated civil penalty amounts. Buckeye did not dispute the other findings or
civil penalty assessments. It is noteworthy that pursuant to the pipeline safety regulations, “[t]he
filing of a petition…stays the payment of any civil penalty assessed. However, unless the
Associate Administrator, OPS otherwise provides, the order, including any required corrective
action, is not stayed.”3 To date, Buckeye has not completed the compliance order included in the
November 19, 2012 Final Order.
1 The assessed civil penalty represented a $79,300 reduction from the proposed civil penalty amount.
2 Pursuant to 49 C.F.R. § 190.215, a petition must be received no later than 20 days after service of the final order
upon the respondent. Service is defined as being complete upon mailing. See 49 C.F.R. § 190.5. The Final Order
was mailed on or around November 19, 2012. The petition was received on December 11, 2012, 22 days after
service was completed. Buckeye stated in its Petition that the Final Order was received on November 26, 2012, and
therefore the December 10, 2012 Petition was timely. A review of the certified mail tracking database on the United
States Postal Service website confirms that the Final Order was indeed received on November 26, 2012, and
therefore the December 10, 2012 Petition is timely.
3 See 49 C.F.R. § 190.215(d).



2
Section 190.215 provides that a respondent may petition the Associate Administrator for
reconsideration of a final order. It states that the Associate Administrator will not consider
repetitious information, arguments, or petitions, but may consider additional facts or arguments,
provided the respondent submits a valid reason why such information was not presented prior to
issuance of the final order. This rule allows a respondent to present information or arguments
that were unavailable or unknown prior to issuance of the final order, and gives PHMSA an
opportunity to correct any errors. The Associate Administrator may grant or deny, in whole or in
part, a petition for reconsideration without further proceedings, or may request additional
information, data, and comment as deemed appropriate.
Item 1: Finding of Violation of § 195.52
Petition
In the Final Order, PHMSA stated that Buckeye failed to provide telephonic notice to the
National Response Center (NRC) at the earliest practicable moment, or within 1-2 hours,
following the company’s discovery of a release of 85 barrels of gasoline. Buckeye notified the
NRC 15 hours after the release occurred. PHMSA held that this was a violation of § 195.52. In
its Petition, Buckeye objected to this finding, arguing: (1) that the pipeline safety regulations do
not explicitly require an operator to report a release within 1-2 hours and therefore Item #1 is not
a violation; (2) that Buckeye did in fact report the release within 1-2 hours of discovering that the
release was reportable; and (3) that PHMSA’s rulemaking and enforcement cases have not
consistently supported the 1-2 hour interpretation.
Analysis
Petitions for reconsideration provide a vehicle for respondents to submit evidence not previously
available during the proceeding. As stated above, the Associate Administrator does not consider
repetitious information but may consider additional facts or arguments, provided that the
respondent submits a valid reason why such information was not presented prior to issuance of
the final order. Buckeye has not provided any additional documents or arguments in its Petition
that were not previously reviewed. All of the evidence and arguments that Buckeye relies on in
its Petition were previously submitted in the Response, Post-Hearing Brief, and at the hearing.
Buckeye’s argument that PHMSA cannot enforce its interpretation of “earliest practicable
moment” is unpersuasive. First, courts have held that an agency can formulate requirements
through enforcement decisions. An agency is “not precluded from announcing new principles in
an adjudicative proceeding.”4 Federal courts have held that an order issued in an adjudicatory
proceeding is not subject to the notice and comment procedures of the Administrative Procedure
Act.5 PHMSA can and does develop such interpretations in its enforcement decisions, just as
4 NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-94 (1974) (finding that prior case law dictates that the agency is
"not precluded from announcing new principles in an adjudicative proceeding and that the choice between
rulemaking and adjudication lies in the first instance within the [agency's] discretion") (citing SEC v. Chenery
Corp., 332 U.S. 194,202 (1947) and NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969)).
5 R/T 182, LLC v. FAA, 519 F.3d 307, 310 (6th Cir. 2008) (emphasis added).



3
courts routinely apply statutes in civil and criminal enforcement decisions.6 Second, PHMSA
has consistently found that “earliest practicable moment” means between 1-2 hours. As
mentioned in the Final Order, this particular interpretation dates back to at least 1971, when the
agency stated that “in most cases this telephonic report can and should be made within one to
two hours after discovery…”7 Numerous enforcement cases have reinforced the agency’s
position on the reporting requirement.8 In the referenced cases, operators exceeded the required
time frame from just a few hours to more than 24. In addition, as discussed in the Final Order in
this proceeding, PHMSA has addressed the reporting requirements in a 1991 Alert Notice and a
2002 Advisory Bulletin.9
Contrary to Buckeye’s argument in its Response, Post-Hearing Brief, and now in the Petition, the
word “discovery” means discovery of the release itself, not the discovery or acknowledgment
that the accident meets the reporting requirements listed in the regulation. This point was
discussed at length in the Final Order on pages 2 and 3:
PHMSA has applied this interpretation in various enforcement actions and
found that “discovery” relates to the actual release, not to the realization that
an incident has resulted in circumstances (e.g. property damage) that renders
the release reportable.10
Furthermore, the rationale for this position was summarized in detail:
The reason for this interpretation is both logical and practical. In Enstar
Natural Gas Company, PHMSA stated that “[i]f the regulation were read to
6 See In the Matter of ANR Pipeline Company, Final Order, CPF No. 3-2007-1006 (available at
www.phmsa.dot.gov/pipeline/enforcement).
7 See PI-71-011, located at http://www.phmsa.dot.gov/pipeline/regs/interps.
8 In the Matter of Public Service Company of New Mexico, Final Order, CPF No. 44003 (March 2, 1998); In the
Matter of Hunt Refining Company, Final Order, CPF No. 2-2005-5002 (November 15, 2005); In the Matter of
Amerigas Propane, L.P., Final Order, CPF No. 57702 (October 20, 2005); In the Matter of Chevron Pipe Line
Company, Final Order, CPF No. 4-2002-5013 (March 15, 2004); In the Matter of Belle Fourche Pipeline Company,
CPF No. 52514 (April 28, 1998).
9 See ALN 91-01 and ADB-02-04, located at http://phmsa.dot.gov/pipeline/regs/advisory-bulletin. In its Petition,
Buckeye makes reference to the statutory mandates of the Pipeline Safety, Regulatory Certainty, and Job Creation
Act of 2011, signed into law on January 3, 2012. As noted in PHMSA’s January 30, 2013 Advisory Bulletin on
reporting requirements, PHMSA is required by this statute to issue a proposed rule to revise telephonic reporting
requirements to require notification not later than one hour following the time of confirmed discovery. See
“Pipeline Safety: Accident and Incident Notification Time Limit,” 78 Fed. Reg. 6402 (January 30, 2013) (citing The
Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011). In referencing this new statutory mandate,
Buckeye attempts to argue that the agency should not enforce the existing reporting requirement until these new
regulations are issued. Obviously, the regulatory mandate created by the 2011 legislation does not affect the
Buckeye case, as the May 2005 release predates the statute by almost seven years. The existing reporting
requirements of 1-2 hours have been enforced for decades. The new mandate from Congress seeks to tighten the
reporting deadline even more than exists under the current regulation by requiring releases to be reported within one
hour and has no bearing on this case.
10 Final Order, at 3 (citing In the Matter of Enstar Natural Gas Company, CPF No. 52016 (May 14, 1997)).



4
mean at the earliest practicable moment following discovery of the cause of
the incident, the operator would never be required to report an incident until
the cause of the incident was definitely determined.”11 In addition, PHMSA
has stated that “[t]he delay to reporting caused by an operator waiting until it
definitely decides an event meets the reporting criteria would frustrate a
fundamental purpose of the regulation, which is to give OPS and other
agencies the earliest opportunity to assess whether an immediate response to
a pipeline incident is needed. Therefore, OPS requires pipeline operators to
report incidents to the NRC at the earliest practicable moment following
discovery of the incident, even if at the time of reporting there is some
question as to whether reporting will be required.”
There are also valid public safety reasons why an operator needs to make a
NRC report within 1-2 hours, including PHMSA’s need for immediate
information to determine whether the line or facility should be shut down.
PHMSA must evaluate the cause of a release as soon as possible, not after
the evidence is stale. 12
Enstar is not the only case that supports this position; PHMSA has issued numerous decisions in
agreement on this point. The agency stated In the Matter of the City of Richmond, Virginia, that
“…OPS interprets “discovery” to mean discovery of the incident itself, not discovery that the
reporting criteria have been met…[t]his gives OPS and other Federal and state agencies the
ability to assess whether an immediate response to a pipeline incident is needed.”13
In support of its Petition, Buckeye argued that there was no need for a federal response in this
case, so therefore the rationale that PHMSA needs operators to report releases within 1-2 hours
for public safety reasons did not apply here. The decision to roll out a federal response and
accident investigation is the agency’s decision, not the operator’s, and is necessitated upon
proper reporting of a release. If an operator waits 15 hours to report a release of 85 barrels, as
occurred in this case, then PHMSA is delayed by 15 hours from initiating its accident
investigation, should it find a need to do so.
In a similar argument, Buckeye contended that the agency’s past rulemaking and enforcement
cases contradict the Final Order here. Buckeye is referring to a final rule issued in 1994 that
increased the property damage threshold for reporting from $5,000 to $50,000.14 As discussed in
the rulemaking documents, this Final Rule acknowledged that there was confusion as to which
cost estimates operators were using to estimate property damage. The agency noted that
operators were frequently not including the fair market value of lost product when calculating
property damage and therefore the agency amended § 195.52(a)(3). In addition, the agency
decided that increasing the property damage threshold from $5,000 to $50,000 would match the
11 Enstar, at 2.
12 Final Order, at 3.
13 In the Matter of the City of Richmond, Virginia, CPF No. 1-2004-0006 (January 12, 2006)
14 “Regulatory Review: Hazardous Liquid and Carbon Dioxide Pipeline Safety Standards”, 59 FR 33388 (June 28,
1994).



5
existing Part 192 reporting requirement and eliminate the need to report minor accidents under
$5,000. I fail to see how these changes, 11 years prior to Buckeye’s accident, support its
position. The 2005 release that is the focus of this case involved 85 gallons of spilled product
and $60,100 in estimated property damage.
Buckeye also argued in its Petition that the cases used by PHMSA to support its finding in the
Final Order were inapposite because they involved natural gas operators; in addition, it argued
that PHMSA’s interpretation has not been applied consistently across enforcement cases. In its
Petition, Buckeye argued that the references to In the Matter of Texas Eastern Transmission
Corporation, CPF No. 4-2001-1003 (May 5, 2005) and In the Matter of Enstar Natural Gas
Company, CPF No. 52016 (May 14, 1997) are inapposite because those matters involved the
violation of the natural gas reporting requirement at § 191.5 and not the hazardous liquid
reporting requirement at § 195.52. Although both cases happen to focus on natural gas pipeline
requirements, the language of both regulations is identical. They both require the reporting of
certain incidents or releases “at the earliest practicable moment following discovery.” Buckeye
also suggested that PHMSA has not enforced this provision consistently. I disagree. As noted
above, there have been numerous enforcement cases issued by PHMSA where both gas and
hazardous liquid operators failed to report a release within 1-2 hours.
Finally, the fact that the Central Region chose to issue a Notice four years after the inspection
does not bar the agency from taking such action. There is no question that this case was initiated
within the applicable five-year statute of limitations under 28 U.S.C. §2462.
Accordingly, I find no basis for a withdrawal of this violation or a reduction of the $10,500 civil
penalty assessed in the Final Order. This item stands as written in the Final Order.
Item 4: Finding of Violation of § 195.505(a)
In the Final Order, PHMSA found that Buckeye failed to include “all necessary covered tasks” in
its Operator Qualification (OQ) program, in particular, to include delivery operations at regulated
tank facilities. In its Petition, Buckeye objected to this finding of violation, stating that the
regulation is vague and PHMSA should be estopped from bringing a violation because this
specific facility had been previously inspected without any allegation of a § 195.505(a) violation.
Buckeye argued that this item should either be withdrawn or converted to a Notice of
Amendment or Warning Item.
Analysis
Buckeye presented the same arguments in its Petition that it had previously raised in its
Response, at the hearing, and in its Post-Hearing Brief. These were all reviewed and analyzed in
the Final Order. I specifically discussed Buckeye’s argument regarding the content of the OQ
regulations:
Section 195.505(a) requires each operator to have and follow a written
qualification program that includes provisions to identify covered tasks.
Although Buckeye is correct that many of the requirements of the pipeline
safety regulations are performance-based and not prescriptive, this does



6
not mean that performance-based activities should not be included as
“covered tasks” under an operator’s OQ program. An operator is required
to identify all of its covered tasks, using the four-part definition set forth in
§ 195.501(b). Specifically, “a covered task is an activity identified by the
operator, that: (1) Is performed on a pipeline facility; (2) Is an operations
and maintenance task; (3) Is performed as a requirement of this part; and
(4) Affects the operation or integrity of the pipeline.”15 Buckeye’s Task
412 meets this four-part test. It is performed on a pipeline facility, is an
operations and maintenance task, is performed as a requirement of
Part 195,16 and, as evident from the Accident, can affect the operation or
integrity of the pipeline. Therefore, Buckeye should have included Task
412 in its covered task list.17
I also addressed Buckeye’s estoppel argument:
I also find no merit in Buckeye’s argument that since OPS did not find a
violation in 2004, it is somehow estopped from asserting a probable
violation following a failure and subsequent inspection. Buckeye was
required to have a covered task list for tasks that met the four-part test by
April 27, 2001. If another inspection in another region chose not to cite a
violation at that time, it does not eliminate Buckeye’s responsibility to be
in compliance with the code. Since Buckeye must identify covered tasks
in its OQ program and failed to include Task 412, which meets the
definition of a covered task in § 195.501(a), I find that Buckeye violated
§ 195.505(a) and the proposed compliance order is appropriate.18
Finally, Buckeye contended that this item should have been a Notice of Amendment and that the
only reason this violation was included in the Notice of Probable Violation was to serve as a
predicate for Item #5. In the Final Order, I discussed in detail how § 195.505 violations are not
necessarily handled by a Notice of Amendment, stating that a review of past enforcement cases
demonstrates that § 195.505(a) violations have been addressed by civil penalties, compliance
orders, or both. The fact that this item did not have a civil penalty has no bearing on the fact that
Item #5 did. They are separate violations and PHMSA has the discretion to select the most
appropriate enforcement tool to address them.
I find no support for Buckeye’s request to either withdraw or convert this Item. This item stands
as written in the Final Order.
15 See 49 C.F.R. § 195.501(b).
16 Each operator is required under § 195.505 to scrutinize its own unique system to identify all those activities
performed on its system that meet the four-part definition of a “covered task” and to develop a proper qualification
process for each one. In this case, Buckeye was required under § 195.402(c) to have and follow procedures for
starting up and shutting down all parts of its system and for controlling receipt and delivery of product. Task 412
was one of Buckeye’s own procedures to meet this requirement.
17 Final Order, at 6.
18 Final Order, at 7.



7
Item 5: Finding of Violation of § 195.505(b)
In its Petition, Buckeye argued that Item #5 should be withdrawn for two reasons. First, the
regulation itself was vague. Second, the underlying violation (Item #4) had no civil penalty, so it
would be inappropriate to issue one for this item. I do not agree.
The fact that the agency did not issue a civil penalty for Item #4 does not have any bearing on
this Item. As discussed earlier, the decision to assess a civil penalty or a compliance order is a
discretionary enforcement decision based on the facts and evidence constituting each allegation.
Each item in a Notice of Probable Violation is separate and stands on its own evidence. Buckeye
was cited in Item #5 for a violation of § 195.505(b)— to ensure through evaluation that
individuals performing covered tasks are qualified. Considering that the May 5, 2005 accident
involved a release of 85 barrels during delivery operations, that the local operator on scene was
not trained in delivery operations, and that Buckeye could not produce delivery-operations
qualification records, I believe the assessed civil penalty for this item is appropriate. Having not
found any of these arguments persuasive to withdraw Item #5, this item will remain as written in
the Final Order.19
Conclusion
Based on a review of the record and the information provided in the Petition, I hereby deny the
Petition and affirm the Final Order without modification, for the reasons set forth above.
Payment of the $402,500 civil penalty must be made within 20 days of service of this Decision.
The payment instructions were set forth in detail in the Final Order. Failure to pay the $402,500
civil penalty will result in accrual of interest at the current annual rate in accordance with
31 U.S.C. § 3717, 31 C.F.R. § 901.9, and 49 C.F.R. § 89.23. Pursuant to those same authorities,
a late penalty charge of six percent (6%) per annum will be charged if payment is not made
within 110 days of service. Furthermore, failure to pay the civil penalty may result in referral of
the matter to the Attorney General for appropriate action in a United States District Court.
In addition, the Petitioner is reminded that the Compliance Order was not stayed by the filing of
the Petition and should have been completed within the timelines listed in the Final Order. If
Petitioner should need an extension, it can file such a request with the Director, Central Region.
This Decision is the final administrative action in this proceeding.
_____________________________ __________________________
Jeffrey D. Wiese Date Issued
Associate Administrator
for Pipeline Safety
19 Buckeye argues in Section I of its Petition that Item # 5 should be converted to Notices of Amendment or
Warning Items but provides no further detail in Section C of its Petition.

320105006_Closure Letter_06022016_text.pdf

CERTIFIED MAIL - RETURN RECEIPT REQUESTED
June 2, 2016
Mr. Clark Smith
President & Chief Executive Officer
Buckeye Partners, LP
One Greenway Plaza
Suite 600
Houston, TX 77046
RE: CPF 3-2010-5006
Dear Mr. Smith:
On November 19, 2012, the Pipeline and Hazardous Materials Safety Administration
(PHMSA) issued to Buckeye Partners, LP, a Final Order in the above-referenced case. This
Order included a Compliance Order and Civil Penalty assessment. Based on our review of the
documentation you provided and confirmation of payment of the civil penalty, it has been
determined that you have complied with the terms of this Order.
Accordingly, this case is now closed and no further action is contemplated with respect to the
matters involved in this case. Thank you for your cooperation in this matter.
Sincerely,
Allan C. Beshore
Director, Central Region, OPS
Pipeline and Hazardous Materials Safety Administration
cc: Mr. Thomas (Scott) Collier

320105006_Final Order_11192012_text.pdf

NOVEMBER 19, 2012
Mr. Clark Smith
President & Chief Executive Officer
Buckeye Partners, LP
One Greenway Plaza
Suite 600
Houston, TX 77046
Re: CPF No. 3-2010-5006
Dear Mr. Smith:
Enclosed please find the Final Order issued in the above-referenced case. It makes findings of
violation, assesses a reduced civil penalty of $402,500, and specifies actions that need to be
taken by Buckeye Partners, LP, to comply with the pipeline safety regulations. When the civil
penalty has been paid and the terms of the compliance order completed, as determined by the
Director, Central Region, this enforcement action will be closed. Service of the Final Order by
certified mail is deemed effective upon the date of mailing, or as otherwise provided under
49 C.F.R. § 190.5.
Thank you for your cooperation in this matter.
Sincerely,
Jeffrey D. Wiese
Associate Administrator
for Pipeline Safety
Enclosure
cc: Mr. Thomas (Scott) Collier, Vice President, Buckeye Partners LP – 5 TEK Park, 9999
Hamilton Boulevard, Breinigsville, PA 18031
Robert E. Hogfoss, Esq., Counsel for Buckeye Partners, LP, Hunton & Williams -
Bank of America Plaza - 600 Peachtree Street, N.E., Suite 4100, Atlanta, Georgia
30308
Mr. Dave Barrett, Director, Central Region, OPS
Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, OPS
CERTIFIED MAIL – RETURN RECEIPT REQUESTED



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, DC 20590
____________________________________
In the Matter of )
Buckeye Partners, LP, ) CPF No. 3-2010-5006
)
)
)
Respondent. )
___________________________________ )
FINAL ORDER
Pursuant to 49 U.S.C. § 60117, on May 6, 2005, a representative of the Pipeline and Hazardous
Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), conducted an
investigation of an overfill incident that occurred on May 5, 2005, at Tank #133, a facility
operated by Buckeye Partners, LP (Buckeye or Respondent), in East Chicago, Indiana
(Accident). Buckeye owns and operates petroleum refined-products pipelines and facilities in
the Northeast and Upper Midwest, including 6,000 miles of pipelines and 100 liquid petroleum
products terminals.1
As a result of the investigation and a follow-up inspection in 2008, the Director, Central Region,
OPS (Director), issued to Respondent, by letter dated April 14, 2010, a Notice of Probable
Violation, Proposed Civil Penalty and Proposed Compliance Order (Notice). In accordance with
49 C.F.R. § 190.207, the Notice proposed finding that Respondent had committed several
violations of 49 C.F.R. Part 195 and assessing a civil penalty of $481,800 for the alleged
violations. The Notice also proposed ordering Respondent to take certain measures to correct
one of the alleged violations.
Buckeye responded to the Notice by letter dated May 12, 2010 (Response). The company
contested the items in the Notice and requested that the proposed civil penalty be reduced or
rescinded. A hearing was subsequently held on November 18, 2010, in Kansas City, Missouri,
with an attorney from the Office of Chief Counsel, PHMSA, presiding. At the hearing,
Respondent was represented by counsel. After the hearing, counsel for Buckeye provided a post-
hearing statement for the record, by letter dated December 3, 2010 (Closing).
FINDINGS OF VIOLATION
The Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:
1 See http://www.buckeye.com/BusinessOperations/tabid/56/Default.aspx (last accessed July 30, 2012).



2
Item 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.52(a)(3), which states:
§ 195.52 Telephonic notice of certain accidents.
(a) At the earliest practicable moment following discovery of a
release of the hazardous liquid or carbon dioxide transported resulting in
an event described in § 195.50, the operator of the system shall give
notice, in accordance with paragraph (b) of this section, of any failure that:
(1) . . .
(3) Caused estimated property damage, including cost of cleanup and
recovery, value of lost product, and damage to the property of the operator
or others, or both, exceeding $50,000; . . . .
The Notice alleged that Respondent violated 49 C.F.R. § 195.52(a)(3) by failing to provide
telephonic notice to the National Response Center (NRC) at the earliest practicable moment
following the company’s discovery of a release of 85 barrels of gasoline. Specifically, the
Notice alleged that 15 hours elapsed between the time Buckeye experienced a release at its East
Chicago, Indiana storage tank facility and the time the company finally notified the NRC.
At the hearing and in the Response, Buckeye contended that the Accident did not initially meet
the notification threshold of § 195.50. Rather, it was only after the Indiana Department of
Environmental Protection (DEP) requested that Buckeye excavate an additional two feet of soil
within the dike area to remove hydrocarbons that Buckeye determined that the clean-up costs
would exceed the $50,000 threshold. The operator stated that the Accident occurred in the late
afternoon and although Buckeye contacted emergency response operators immediately, it was
not until the following day that the company met with the DEP and thereafter determined that the
property damage threshold for reporting had been met. Therefore, Buckeye maintained that the
Accident was reported at the “earliest practicable moment following discovery of a release.”
At the hearing, OPS introduced two alert notices, dated April 15, 1991 (ALN-91-01) and
August 30, 2002 (ADB-02-04), which provided guidance to the industry on how the agency
interpreted the term “earliest practicable moment.”2 This guidance and the interpretation letters
that preceded the bulletins stated that PHMSA considered “earliest practicable moment”
generally to mean one to two hours.3 Since Buckeye notified the NRC approximately 15 hours
after discovery of the Accident, OPS argued that Buckeye had not given notice at the earliest
practicable moment and therefore was in violation of § 195.52(a)(3).
Analysis
PHMSA has consistently interpreted “earliest practicable moment” to mean within one to two
hours of discovery of a release of hazardous liquid. Beginning in 1997, PHMSA has applied
this interpretation in various enforcement actions and found that “discovery” relates to the actual
2 See ALN-91-01 and ADB-02-04, located at http://phmsa.dot.gov/pipeline/regs/advisory-bulletin.
3 See PI-71-011, located at http://www.phmsa.dot.gov/pipeline/regs/interps.



3
release, not to the realization that an incident has resulted in circumstances (e.g., property
damage) that render the release reportable.
4
The rationale for this interpretation is both logical and practical. In Enstar Natural Gas
Company, PHMSA concluded that “[i]f the regulation were read to mean at the earliest
practicable moment following discovery of the cause of the incident, the operator would never be
required to report an incident until the cause of the incident was definitely determined.”5 In
addition, PHMSA has stated that “[t]he delay to reporting caused by an operator waiting until it
definitely decides an event meets the reporting criteria would frustrate a fundamental purpose of
the regulation, which is to give OPS and other agencies the earliest opportunity to assess whether
an immediate response to a pipeline incident is needed. Therefore, OPS requires pipeline
operators to report incidents to the NRC at the earliest practicable moment following discovery
of the incident, even if at the time of reporting there is some question as to whether reporting will
be required.”6
There are also important public safety reasons why an operator needs to make a NRC report
within one to two hours, including PHMSA’s need for immediate information to determine
whether a pipeline or facility should be shut down. PHMSA must also evaluate the cause of a
release as soon as possible after the release has been discovered, not after the evidence is stale.
Based on the information in the record, I find that the release in this case was reportable because
it exceeded the $50,000 threshold and therefore should have been reported within one to two
hours of discovery. Instead, Buckeye reported the spill 15 hours after the release. Accordingly, I
find that Respondent violated 49 C.F.R. § 195.52(a)(3) by failing to make a telephonic notice to
the NRC at the earliest practicable moment following discovery of the release.
Item 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.401(b), which states:
§ 195.401 General requirements.
7
(a) . . .
(b) An operator must make repairs on its pipeline system according to
the following requirements:
(1) Non- Integrity Management repairs.
Whenever an operator discovers any condition that could adversely affect
the safe operation of its pipeline system, it shall correct it within a
4 E.g., In the Matter of Texas Eastern Transmission Corporation, CPF No. 4-2001-1003, at 3 (May 5, 2005), citing
In the Matter of Enstar Natural Gas Company, CPF No. 52016 (May 14, 1997).
5 Enstar, at 2.
6 Id.
7 On August 11, 2010, PHMSA modified the language of § 195.401 to distinguish between non-integrity
management repairs and integrity management repairs. See “Pipeline Safety: Periodic Updates of Regulatory
References to Technical Standards and Miscellaneous Edits,” 75 FR 48607 (August 11, 2010). The language
referenced in this item reflects the current regulation but the text of (b)(1) does not vary from the language that was
in effect at the time of the inspection and quoted in the Notice.



4
reasonable time. However, if the condition is of such a nature that it
presents an immediate hazard to persons or property, the operator may not
operate the affected part of the system until it has corrected the unsafe
condition.
The Notice alleged that Respondent violated 49 C.F.R. § 195.401(b) by failing to correct an
unsafe condition on its pipeline. Specifically, it alleged that Buckeye continued to fill Tank #133
at its East Chicago storage tank facility despite the discovery of a condition that presented an
immediate hazard to persons or property.
On the day of the Accident, Buckeye experienced three different alarms that alerted the operator
of an imminent hazard (overfilling) on Tank #133, yet company personnel continued filling
operations. The first alarm occurred an hour before the release. Two subsequent alarms
occurred but Buckeye continued filling. According to Buckeye’s own Internal Investigation
Report, its Control Center contacted the local operator after the first alarm, who responded that
the alarm was not accurate due to an issue with the electronic gauging of the tank levels.
Buckeye’s investigation later confirmed that the local operator was incorrect in this assessment
of the first alarm.8
In its Response and at the hearing, Buckeye did not contest this violation but argued that Items 2
and 3 should be combined. I will address the merits of this argument in the Analysis section of
Item #3. For the reasons set forth below, I find that Respondent violated
49 C.F.R. § 195.401(b) by continuing to operate its pipeline system after discovery of a
condition that presented an immediate hazard to persons or property.
Item 3: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(a), which states:
§ 195.402 Procedural manual for operations, maintenance, and
emergencies.
(a) General. Each operator shall prepare and follow for each pipeline
system a manual of written procedures for conducting normal operations
and maintenance activities and handling abnormal operations and
emergencies. This manual shall be reviewed at intervals not exceeding 15
months, but at least once each calendar year, and appropriate changes
made as necessary to insure the manual is effective. This manual shall be
prepared before initial operations of a pipeline system commence, and
appropriate parts shall be kept at locations where operations and
maintenance activities are conducted.
The Notice alleged that Buckeye failed to follow two of its own written procedures when filling
Tank #133 on May 5, 2005. First, it alleged that the local operator did not accurately confirm
batch information from the Control Center when he arrived for the start of his shift and that he
failed to compare the available room in the tank to the batch volume, as required by Buckeye’s
Operating Manual Procedures B-10 Section 2.1 and 2.4.
8 Pipeline Safety Violation Report (Violation Report), (April 9, 2010) (on file with PHMSA), Exhibit B.



5
Second, the Notice alleged that Buckeye experienced two high level alarms and one “high-high”
level alarm during the filling of Tank #133 and that its procedures required personnel to take
specific actions in response to these alarms, including shutting down the incoming stream and
notifying the Control Center. OPS alleged that Buckeye personnel failed to follow these
procedures in shutting down the incoming stream.
Buckeye contended at the hearing and in its Closing that although it did not contest that the local
operator’s actions caused the Accident, Items #2 and #3 should be combined. Buckeye
maintained that it should not be charged with two separate violations and civil penalties for a
single instance of operator error.9
Analysis
I have reviewed both the facts and evidence presented by OPS that support Notice Items 2 and 3
and Buckeye’s opposing evidence and arguments. In Item #2, the Notice alleged that Buckeye
became aware of a condition that presented an immediate hazard to its system but continued
filling operations, in direct violation of § 195.401(b). In Item #3, Buckeye personnel failed to
follow the company’s own procedures, which required the local operator to confirm batch
information at the start of his shift and to compare the available tank room to the batch volume.
In addition, company procedures required the Control Center to shut down the incoming stream
upon acknowledgment of a “high-high” level alarm. None of these actions took place. Since
Items 2 and 3 are based on different actions that Buckeye was supposed to take in this situation
and because the allegations are supported b
- **truncated:** true
- **body characters:** 84550