# NUSTAR PIPELINE OPERATING PARTNERSHIP L.P. — Notice of Probable Violation

- **operation:** document
- **citation:** CPF 320115005
- **title:** NUSTAR PIPELINE OPERATING PARTNERSHIP L.P. — Notice of Probable Violation
- **source type:** enforcement
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2011-04-21
- **effective on:** Not available
- **summary:** CLOSED notice of probable violation citing 195.404, 195.412(a), 195.50, 195.573.
- **machine formats:** - **json:** https://regulus.evalyn.ai/document/phmsa-enforcement-320115005.json
- **markdown:** https://regulus.evalyn.ai/document/phmsa-enforcement-320115005.md
- **app url:** https://regulus.evalyn.ai/document/phmsa-enforcement-320115005
- **source url:** https://primis.phmsa.dot.gov/enforcement-data/case/320115005
**body:**

Notice of Probable Violation involving NUSTAR PIPELINE OPERATING PARTNERSHIP L.P.. PHMSA's enforcement data identifies the cited regulations as 195.404,  195.412(a),  195.50,  195.573. The case was opened on 2011-04-21 and is reported as closed as of 2013-07-09. Proposed civil penalty: $112,000. Assessed civil penalty: $101,200. Open the official case record for notices, responses, orders, and the latest status.

Official case documents:

320115005_Closure_07092013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320115005/320115005_Closure_07092013.pdf

320115005_Closure_07092013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320115005/320115005_Closure_07092013_text.pdf

320115005_Decision On Reconsideration_06142012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320115005/320115005_Decision%20On%20Reconsideration_06142012.pdf

320115005_Decision on Reconsideration_06142012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320115005/320115005_Decision%20on%20Reconsideration_06142012_text.pdf

320115005_FinalOrder_12292011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320115005/320115005_FinalOrder_12292011.pdf

320115005_FinalOrder_12292011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320115005/320115005_FinalOrder_12292011_text.pdf

320115005_NOPV PCP PCO_04212011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320115005/320115005_NOPV%20PCP%20PCO_04212011.pdf

320115005_NOPV PCP PCO_04212011_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320115005/320115005_NOPV%20PCP%20PCO_04212011_text.pdf

320115005_Operator Response to NOPV PCP PCO_05202011.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320115005/320115005_Operator%20Response%20to%20NOPV%20PCP%20PCO_05202011.pdf

320115005_Petition_for_Reconsideration_01182012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320115005/320115005_Petition_for_Reconsideration_01182012.pdf

320115005_FinalOrder_12292011_text.pdf

DEC 29 2011
Mr. Todd Denton
Vice President Pipelines & Terminal Operations
NuStar Pipeline Operating Partnership, L.P.
2330 N. Loop 1604 West
San Antonio, TX 78248
Re: CPF No. 3-2011-5005
Dear Mr. Denton:
Enclosed please find the Final Order issued in the above-referenced case. It makes findings of
violation, assesses a reduced civil penalty of $101,200, and specifies actions that need to be
taken by NuStar Pipeline Operating Partnership, L.P. to comply with the pipeline safety
regulations. The penalty payment terms are set forth in the Final Order. 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. David Barrett, Director, Central Region, OPS
Mr. Alan Mayberry, Deputy Associate Administrator for Field Operations, OPS
CERTIFIED MAIL - RETURN RECEIPT REQUESTED [71791000164202982016]



U.S. DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
OFFICE OF PIPELINE SAFETY
WASHINGTON, D.C. 20590
____________________________________
)
In the Matter of )
)
NuStar Pipeline Operating ) CPF No. 3-2011-5005
Partnership, L.P., )
)
Respondent. )
____________________________________)
FINAL ORDER
Between April 5-9, 2010, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and
Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),
conducted an on-site pipeline safety inspection of the facilities and records of NuStar Pipeline
Operating Partnership, L.P. in Wichita, Kansas. NuStar Pipeline Operating Partnership, L.P.
(NuStar or Respondent) is a subsidiary of NuStar Energy, L.P., which owns and operates 5,605
miles of refined product pipelines, 2,000 miles of anhydrous ammonia pipelines, and 812 miles
of crude oil pipelines.1
As a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,
by letter dated April 21, 2011, 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 NuStar had violated 49 C.F.R. §§ 195.50, 195.412, 195.573 and 195.404
and assessing a civil penalty of $112,000 for the alleged violations. The Notice also proposed
ordering Respondent to take certain measures to correct the alleged violations. The warning item
required no further action, but warned the operator to correct the probable violation.
NuStar responded to the Notice by letter dated May 20, 2011 (Response). The company
contested the allegations of violation, provided an explanation of its actions, and requested that
the proposed civil penalty be reduced. Respondent did not request a hearing and therefore has
waived its right to one.
FINDINGS OF VIOLATION
The Notice alleged that Respondent violated 49 C.F.R. Part 195.50, as follows:
1 See http://www.nustarenergy.com/COMPANY/Pages/default.aspx (last accessed November 7, 2011).



2
Item 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.50, which states in relevant
part:
§ 195.50 -- Reporting accidents.
An accident report is required for each failure in a pipeline system
subject to this part in which there is a release of the hazardous liquid or
carbon dioxide transported resulting in any of the following…
(b) Release of 5 gallons (19 liters) or more of hazardous liquid or
carbon dioxide, except that no report is required for a release of less than 5
barrels (0.8 cubic meters) resulting from a pipeline maintenance activity if
the release is:
(1) Not otherwise reportable under this section
(2) Not one described in § 195.52(a)(4);
(3) Confined to company property or pipeline right-of-way; and
(4) Cleaned up promptly…
The Notice alleged that Respondent violated 49 C.F.R. § 195.50(b) by failing to file an accident
report for three hazardous liquid releases that occurred between 2007-2010. Section 195.50
requires an operator to file a report for all releases of 5 gallons or more unless the spill meets the
exception listed in § 195.50(b). On December 1, 2007, NuStar experienced a release of 50
gallons at its Geneva Station during a tank switching operation. The second release occurred on
October 6, 2009 at the Elm Creek Pump station in which a sump overflowed releasing 89 gallons
of fuel oil. The third release occurred on January 22, 2010 at the El Dorado Station during the
start up of the mainline pump, resulting in a release of 50 gallons. OPS argued in the Notice that
all three releases occurred during pipeline system operations and therefore should have been
reported.
Response
NuStar argued that each of the three spills met the exception listed under § 195.50(b) since each
release resulted from pipeline maintenance activity and was less than 5 barrels (210 gallons). In
support of this argument, NuStar filed a statement summarizing the three spills and relied on the
relevant rulemaking documents establishing these exceptions.
With regard to the first spill, NuStar argued that it occurred during a maintenance activity on the
pipeline manifold area which involved tying in all block and bleed valves to a common header
intended to carry product to a sump if the valves were left open. However, according to NuStar,
the maintenance activity was not completed at the time of the release and the header pipe
discharged product into a 5 gallon bucket rather than the sump. In its explanation of the release,
NuStar stated that the operator of the station failed to close the block and bleed valve allowing
product to escape the valve body. NuStar stated that the product was carried a distance into the 5
gallon bucket and therefore the release went unnoticed until 50 gallons had spilled into the
manifold area. NuStar stated that clean up was completed immediately.2
2 Response, Exhibit A.



3
The second release occurred when a sump overflowed. NuStar stated in its Response that after
restarting the pipeline, the control center detected a high level sump alarm. NuStar determined
that a valve had been left partially opened during maintenance inspections which caused the
release. NuStar stated in its Response that the released product was immediately cleaned up.3
The third release occurred when NuStar personnel were repairing the motor to the #2 mainline
pumping unit. According to NuStar, as part of the maintenance procedures, the unit was started
up to test for proper installation and alignment. During this test, the release occurred. NuStar
stated in its Response that the product was immediately cleaned up.4
Finally, NuStar asserted that PHMSA did not define the meaning of “resulting from a pipeline
maintenance activity” in the Final Rule and therefore operators must interpret for themselves
which spills meet the exception.5 NuStar also argued that collecting information for spills
attributable to maintenance would “taint the data analysis efforts of PHMSA”.6
Analysis
Section 195.50 requires all operators to report spills of 5 gallons or more. The reporting
requirement dates back to July 27, 1981 when the Materials Transportation Bureau, a
predecessor to PHMSA, amended the pipeline safety regulations in Part 195 to conform to
terminology used in the Hazardous Liquid Pipeline Safety Act of 1979.7 improve the quality of accident data, the agency amended the requirement to reduce the
threshold for reporting from 50 barrels to 5 gallons. At that time, the agency also included an
exception for spills under 5 barrels resulting from pipeline maintenance activities. At the time
the rule was issued, RSPA, the predecessor to PHMSA, directly addressed this exception.
In 2002, in an effort to
Our information is that such spills occur regularly upon the opening of
pipelines for insertion of spheres, smart pigs, or for routine inspections.
The spills are usually caught in a berm or other containment device; are
cleaned up immediately; and have little to no impact on the environment.
We believe information on such releases would not be helpful in accident
trending analysis. Maintenance spills must be promptly cleaned up to
avoid the reporting requirement. Any non-maintenance spill of 5 gallons
or more must be reported.8
3 Id.
4 Id.
5 Id.
6 Id.
7 “Transportation of Liquids by Pipeline”, 46 Fed. Reg. 38357, 38363 (July 27, 1981).
8 “Pipeline Safety: Hazardous Liquid Pipeline Accident Reporting Revisions”, 67 Fed. Reg. 831 (January 8, 2002).



4
Certainly, the agency’s intention was to exclude planned or expected maintenance spills that
occurred from opening the line. The instructions for the Accident Report (PHMSA Form 7000-
1) explicitly state that “hazardous liquid releases during maintenance or other routine activities
need not be reported if the spill was less than 5 barrels, not otherwise reportable under
49 C.F.R. § 195.50, and did not result in water pollution as described by
49 C.F.R. § 195.52(a)(4).”9
NuStar’s three spills were certainly not planned and did not occur during maintenance activities.
Rather, the spills occurred during a start up of the pipe and occurred as a result of personnel error
after the maintenance activity had concluded. NuStar admitted that the first spill occurred during
normal operational activities.10 The second release occurred “after the completion of the
maintenance inspections and restart of the pipeline”.11 The third release occurred during a start
up test, which although is considered part of maintenance activities, the release was not planned
akin to removing a pig, etc. As documented in the Violation Report, NuStar personnel
confirmed during the OPS inspection that this failure occurred due to equipment failure.12
Specifically, problems with the settings of the relief valve and case pressure during start up
operations caused the release of product.13
I do not find NuStar’s argument persuasive that requiring the reporting of these types of spills
would force operators to report all spills. Operators should be reporting all spills greater than 5
gallons. The narrow exception only exempts reporting if the spill occurred during a maintenance
activity, did not cause an explosion, fire, death, or injury, and is cleaned up promptly. As stated
above, the exception is intended to capture only those spills that are planned or intended during
maintenance. If the Section 195.50(b) exception were intended to include all spills that were in
any way related to maintenance, then numerous spills would go unreported.
Accordingly, after considering all of the evidence, I find that NuStar violated the pipeline safety
regulations by failing to report all three releases. The spills were not planned releases that
occurred during maintenance activities but were rather caused by operator error or equipment
failure during pipeline system operations.
Item 3: The Notice alleged that Respondent violated 49 C.F.R. § 195.573, which states in
relevant part:
§ 195.573 -- What must I do to monitor external corrosion control?
(a) Protected pipelines. You must do the following to determine
whether cathodic protection required by this subpart complies with Sec.
195.571:
(1) Conduct tests on the protected pipeline at least once each calendar
9 Instructions for Form PHMSA F 7000-1 (1-2001) (emphasis added) located at http://www.phmsa.dot.gov.
10 Response, Exhibit A, page 2.
11 Id. at 3.
12 Violation Report, at 3.
13 Id.



5
year, but with intervals not exceeding 15 months. However, if tests at
those intervals are impractical for separately protected short sections of
bare of ineffectively coated pipelines, testing may be done at least once
every 3 calendar years, but with intervals not exceeding 39 months….
The Notice alleged that Respondent violated 49 C.F.R. § 195.573 by failing to conduct corrosion
control monitoring tests at various test stations once each calendar year between 2006-2009.
Specifically, NuStar failed to conduct tests at stations on the 10-inch line for two years at MP
154.31, MP 172.69, and MP 225.96. Further, NuStar failed to conduct tests on the 16-inch line
at MP 165.94 for two years and MP 172.69 for four years. In its Response, NuStar only
contested the allegations as they applied to MP 154.31 and MP 172.69 on the 10–inch line. In
support of its argument that these two stations were tested on an annual basis, NuStar provided
close interval survey records from 2009 for both test stations and explained that MP 154.31 was
replaced on October 24, 2009.
I have reviewed these records and find them acceptable. Therefore, I am withdrawing these two
test stations from Item 3 but find a violation has occurred for the other three test stations.
Accordingly, I find that Respondent violated 49 C.F.R. § 195.573 by failing to conduct tests at
MP 225.96 on the 10-inch line and MPs 165.94 and 172.69 on the 16–inch line.
Item 4: The Notice alleged that Respondent violated 49 C.F.R. § 195.404, which states in
relevant part:
§ 195.404 -- Maps and Records.
(c) Each operator shall maintain the following records for the period
specified;
(3) A record of each inspection and test required by this subpart shall
be maintained for at least 2 years or until the next inspection or test is
performed, whichever is longer.
The Notice alleged that Respondent violated 49 C.F.R. § 195.404 by failing to maintain records
for each inspection and test required by Subpart F. Specifically, NuStar failed to maintain
inspection records for an overpressure safety device at the Arkansas Pump station for at least two
years. During the inspection, NuStar could not produce overpressure inspection records for the
previous two years. Although NuStar stated that the device was inspected and tested by a third
party, NuStar could not produce the records to meet its obligations under § 195.404. In its
Response, NuStar provided the records of the tests which were conducted by ConocoPhillips, the
supplier of the line. NuStar stated that it would immediately begin joint inspections with
ConocoPhillips so that NuStar could maintain its own documentation.
Section 195.404 of the pipeline safety regulations requires the operator to maintain records of
each inspection and test for at least two years. Even in situations where a third-party performs
the test, NuStar must maintain its own records for tests on its facilities to be in compliance with
the regulations. Accordingly, after considering all of the evidence, I find that Respondent
violated 49 C.F.R. § 195.404 by failing to maintain records for overpressure tests at the Arkansas
Pump station.



6
These findings of violation will be considered prior offenses in any subsequent enforcement
action taken against Respondent.
Under 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed
$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any
related series of violations. In determining the amount of a civil penalty under
49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,
circumstances, and gravity of the violation, including adverse impact on the environment; the
degree of Respondent’s culpability; the history of Respondent’s prior offenses; the Respondent’s
ability to pay the penalty and any effect that the penalty may have on its ability to continue doing
business; and the good faith of Respondent in attempting to comply with the pipeline safety
regulations. In addition, I may consider the economic benefit gained from the violation without
any reduction because of subsequent damages, and such other matters as justice may require.
The Notice proposed a total civil penalty of $112,000 for the violations cited above.
Item 1: The Notice proposed a civil penalty of $64,100 for Respondent’s violation of
49 C.F.R. § 195.50(b), for failing to file accident reports for three hazardous liquid pipeline
releases. In its Response, NuStar argued that the company should receive a credit for good faith
since the agency had not clearly defined what types of spills qualified for the maintenance
activity exception. As cited above, both the Final Rule and the Accident Report instructions
have clarified the narrow intent of this exception and that it only applies to releases that occur
during maintenance, not related to maintenance.
The proposed civil penalty is based on the civil penalty assessment factors listed in
49 C.F.R. § 190.225. As stated in the Violation Report, the gravity for this violation was low
since it involved a failure to file a report; however, the operator did not file the accident report
for three different accidents which was factored into the proposed civil penalty.14 The violation
was discovered by PHMSA, not the operator. Finally, the operator’s prior history was a factor
civil penalty assessment factors and the evidence presented in this case, I find that the proposed
civil penalty of $64,100 is justified. Accordingly, I assess Respondent a civil penalty of $64,100
for violation of 49 C.F.R. § 195.50(b).
since NuStar had three Final Orders issued in the previous five years.15 Having reviewed the
Item 3: The Notice proposed a civil penalty of $28,700 for Respondent’s violation of
49 C.F.R. § 195.573, for failing to conduct corrosion control monitoring tests from calendar year
2006 to 2009. As stated above, I have withdrawn the allegations related to MP 154.31 and MP
172.69 on the 10-inch line. The civil penalty amount is reduced to reflect that only three test
stations were missed instead of the proposed five. However, the foundation of the penalty
amount is based on the gravity of the violation, the circumstances surrounding the violation
including the duration of the missed tests, and the prior history of the operator. NuStar’s failure
to inspect three test stations for consecutive years was factored into the civil penalty amount.
ASSESSMENT OF PENALTY
14 Violation Report, at 4.
15 Violation Report, at 15.



7
Accordingly, having reviewed the record and considered the assessment criteria, I assess
Respondent a civil penalty of $27,900 for violation of 49 C.F.R. § 195.573.
Item 4: The Notice proposed a civil penalty of $19,200 for Respondent’s violation of
49 C.F.R. § 195.404, for failing to maintain records for each inspection and test, as required
under Subpart F. PHMSA has examined the civil penalty assessment factors and determined that
Respondent should receive a reduced civil penalty on account of its culpability. Although
NuStar ensured that the required overpressure protection tests were conducted, it failed to
maintain inspection records for an overpressure safety device at the Arkansas Pump station for at
least two years. ConocoPhillips conducted the overpressure protection inspections on NuStar’s
inlet piping and therefore NuStar was unaware that it was also required to maintain records of
these tests. NuStar has agreed to conduct joint inspection and testing of the overpressure
protection devices in the future. Accordingly, having reviewed the record and considered the
assessment criteria, I assess Respondent a reduced civil penalty of $9,200 for violation of
49 C.F.R. § 195.404.
In summary, having reviewed the record and considered the assessment criteria for each of the
Items cited above, I assess Respondent a total civil penalty of $101,200.
Payment of the civil penalty must be made within 20 days of service. Federal regulations
(49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through the Federal
Reserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed
instructions are contained in the enclosure. Questions concerning wire transfers should be
directed to: Financial Operations Division (AMZ-341), Federal Aviation Administration, Mike
Monroney Aeronautical Center, P.O. Box 269039, Oklahoma City, Oklahoma 73125. The
Financial Operations Division telephone number is (405) 954-8893.
Failure to pay the $101,200 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 district
court of the United States.
COMPLIANCE ORDER
The Notice proposed a compliance order with respect to Items 1 and 4 in the Notice for
violations of 49 C.F.R. §§ 195.50(b) and 195.404, respectively. Under 49 U.S.C. § 60118(a),
each person who engages in the transportation of hazardous liquids or who owns or operates a
pipeline facility is required to comply with the applicable safety standards established under
chapter 601. The Director has indicated that Respondent has taken the following actions to
address some of the cited violations:
Item 4: NuStar has documented the inspections of the overpressure device at the
Arkansas pump station and has entered an agreement with ConocoPhillips to conduct
joint inspections of this facility in the future.



8
Accordingly, I find that compliance has been achieved with respect to this violation. Therefore,
the compliance terms proposed in the Notice for Item 4 are not included in this Order.
As for the remaining compliance terms, pursuant to the authority of 49 U.S.C. § 60118(b) and
49 C.F.R. § 190.217, Respondent is ordered to take the following action to ensure compliance
with the pipeline safety regulations applicable to its operations:
1. With respect to the violation of § 195.50(b) (Item 1), Respondent must submit to
PHMSA within 30 days of issuance of the Final Order, an accident report on Form 7000-
1 for each of the three accidents and any additional accidents not previously reported that
meet reporting criteria. NuStar must also notify the Director, Central Region that reports
have been submitted including the number of reports, accident dates, date submitted to
PHMSA, and PHMSA report number.
2. It is requested (not mandated) that NuStar maintain documentation of the safety
improvement costs associated with fulfilling this Compliance Order and submit the total
to David Barrett, Director, Central Region, Pipeline and Hazardous Materials Safety
Administration. It is requested that these costs be reported in two categories: 1) total
cost associated with preparation/revision of plans, procedures, studies and analyses, and
2) total cost associated with replacements, additions, and other changes to pipeline
infrastructure.
The Director may grant an extension of time to comply with any of the required items upon a
written request timely submitted by the Respondent and demonstrating good cause for an
extension.
Failure to comply with this Order may result in the administrative assessment of civil penalties
not to exceed $100,000 for each violation for each day the violation continues or in referral to the
Attorney General for appropriate relief in a district court of the United States.
WARNING ITEM
With respect to Item 2, the Notice alleged probable violations of Part 195 specifically considered
to be a warning item. The warning was for:
49 C.F.R. § 195.412 (Item 2) ─ Respondent’s alleged failure to complete 26
patrols of six of its pipeline right-of-ways during the 2009 calendar year. NuStar
completed 25 patrols but its contractor failed to complete the final patrol due to
weather related issues.
NuStar presented information in its Response showing that it had taken certain actions to address
the cited items. If OPS finds a violation of this provision in a subsequent inspection, Respondent
may be subject to future enforcement action.
Under 49 C.F.R. § 190.215, Respondent has a right to submit a Petition for Reconsideration of
this Final Order. The petition must be sent to: Associate Administrator, Office of Pipeline



9
Safety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor, Washington, DC
20590, with a copy sent to the Office of Chief Counsel, PHMSA, at the same address. PHMSA
will accept petitions received no later than 20 days after receipt of service of this Final Order by
the Respondent, provided they contain a brief statement of the issue(s) and meet all other
requirements of 49 C.F.R. § 190.215. The filing of a petition automatically stays the payment of
any civil penalty assessed. Unless the Associate Administrator, upon request, grants a stay, all
other terms and conditions of this Final Order are effective upon service in accordance with 49
C.F.R. § 190.5.
___________________________________ __________________________
Jeffrey D. Wiese Date Issued
Associate Administrator
for Pipeline Safety

320115005_Decision on Reconsideration_06142012_text.pdf

JUNE 14, 2012
Mr. Michael Truby
Vice President, Pipeline Operations
NuStar Pipeline Operating Partnership, L.P.
2330 N. Loop 1604 West
San Antonio, TX 78248
Re: CPF No. 3-2011-5005
Dear Mr. Truby:
Enclosed please find the Decision on Reconsideration issued in the above-referenced case. It
denies your Petition for Reconsideration. 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: Mr. David 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, D.C. 20590
____________________________________
)
In the Matter of )
)
NuStar Pipeline Operating ) CPF No. 3-2011-5005
Partnership, L.P., )
)
Petitioner. )
____________________________________)
DECISION ON RECONSIDERATION
On December 29, 2011, the Pipeline and Hazardous Materials Safety Administration (PHMSA),
Office of Pipeline Safety (OPS), issued a Final Order in this matter to NuStar Pipeline Operating
Partnership, L.P. (NuStar or Petitioner), finding that NuStar had committed several violations of
the hazardous liquid pipeline safety regulations. I assessed Petitioner a civil penalty of $101,200
and ordered the company to complete certain corrective actions.
On January 18, 2012, NuStar submitted a timely Petition for Reconsideration (Petition) seeking
review of Items 1 and 3 of the Final Order and the associated civil penalties and compliance
items. First, NuStar argues that I erred in finding that the company violated 49 C.F.R. § 195.50
(Item #1) by failing to report three releases of more than five gallons of product. Second, NuStar
asserts that the civil penalty assessed for Item #3 of the Final Order should be reduced.
Standard of Review
A respondent may petition the Associate Administrator for reconsideration of a final order.
Reconsideration is not a right to appeal or seek a de novo review of the record.1
It is an
opportunity to present the Associate Administrator with previously unavailable information or to
request that any errors in the Final Order be corrected. Requests for consideration of new facts
or arguments must be supported by a statement of reasons as to why those facts or arguments
were not presented prior to the issuance of the Final Order. Repetitious information or
arguments will not be considered.
1 49 C.F.R. § 190.215(a)-(e).



2
Analysis
Item 1
In its Petition, NuStar argues that the finding made in Item #1 of the Final Order should be
dismissed for two of the three releases. Specifically, NuStar argues that the second and third
releases met the maintenance exception to the reporting requirement and therefore were not
violations. NuStar does not request dismissal of the first release, a spill of 50 gallons at its
Geneva station, which occurred after the operator failed to close the block and bleed valve prior
to start up. NuStar admitted in its Response that this spill occurred during normal operational
activities.2
In its Petition, NuStar argues that the second release resulted from a maintenance activity
because the valve that was left partially open occurred during normal maintenance inspections of
the equipment.3 This release occurred at the Elm Creek Pump station in which a sump
overflowed releasing 89 gallons of fuel oil. NuStar argues that the third release also resulted
from a maintenance activity since Respondent was testing newly installed equipment at the time
pump, resulting in a release of 50 gallons.
of the release.4 This release occurred at the El Dorado Station during the start up of the mainline
I have reviewed NuStar’s arguments in its Petition and I do not find them compelling. In the
Final Order, I made a finding that all three spills cited in the Notice, including the two referenced
that any information provided by NuStar in its Petition supports a reversal of my decision in the
Final Order.
above, did not meet the maintenance exception and should have been reported.5 I do not find
As stated in the Final Rule for § 195.50, the maintenance exception is intended to apply to
“…spills [that] occur regularly upon the opening of the pipelines for insertion of spheres, smart
pigs, or for routine inspections.”6 “Any non-maintenance spill of five gallons or more must be
reported.”7 The second release occurred when a sump overflowed and not during a maintenance
activity. In fact, NuStar acknowledged in its Response that the second release occurred “after
the completion of the maintenance inspections and restart of the pipeline”.8
This exception was
not intended to cover accidental valve closures that occur after a maintenance activity has
concluded. Failing to shut a valve at the conclusion of maintenance is not a maintenance activity
2 Response, Exhibit A, page 2.
3 Petition, at 5.
4 Id.
5 Final Order, at 4.
6 Pipeline Safety: Hazardous Liquid Pipeline Accident Reporting Revisions”, 67 Fed. Reg. 831 (January 8, 2002).
7 Id.
8 Response, Exhibit A, page 3 (emphasis added).



3
but rather an error on the part of the company and is the proximate cause of the release.
Therefore, this spill should have been reported and the finding of violation issued in the Final
Order stands.
As for the third spill, the 50 gallon spill at the El Dorado Station occurred when NuStar
personnel were repairing the motor to the #2 mainline pumping unit. According to NuStar, the
unit was started up to test for proper installation and alignment.9 During this test, the release
occurred. In its Petition, NuStar maintains that this release occurred as result of maintenance
because if the test for proper installation and alignment had not occurred, there would not have
been a release. However, as noted in the Final Order, NuStar personnel confirmed during the
OPS inspection that this release occurred due to the failure of unit #2, specifically the settings of
the relief valve and case pressure during startup operations.
10
The OPS Central Region has established that this particular release met the requirements of §
195.50 in that it was a release of hazardous liquid of five gallons or more. Certainly, the restart
of a line can be related to maintenance in certain circumstances but NuStar has not provided
enough information to support its argument that the maintenance exception applies in this
specific situation.
NuStar makes several other arguments in support of its position including the reasonableness of
the agency’s interpretation, reliance on guidance material, and use of the word ‘intentional’.
First, NuStar’s asserts that a Federal agency cannot issue interpretations within an enforcement
decision. To the contrary, an agency is “not precluded from announcing new principles in an
adjudicative proceeding. ”11 PHMSA can and does develop such interpretations in its
enforcement decisions.
12 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.13
Second, NuStar states in its Petition, that “[p]ast agency opinions related to § 195.50 have not
mentioned, much less applied, these “planned or expected” or “intended” and “during a
maintenance or normal activities” requirements.
” However, NuStar failed to cite to any specific
pipeline interpretation to support this statement.
14
9 Petition, at 5.
10 Violation Report, at 3.
11 NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-94 (1974).
12 See In the Matter of ANR Pipeline Company, Final Order, CPF No. 3-2007-1006)(available at
www.phmsa.dot.gov/pipeline/enforcement).
13 R/T 182, LLC v. FAA, 519 F.3d 307, 310 (6th Cir. 2008) (emphasis added).
14 PHMSA’s interpretations are located at http://www.dot.gov/phmsa.



4
Third, in the Final Order, I reviewed the regulatory history of § 195.50 and referred to guidance
materials including the instructions for the Accident Report to support the agency’s position.15
NuStar argued in its Petition that this reference to the Accident Report instructions was improper
and cited the Explorer Pipeline Company (CPF No. 3-2009-5018) case to discount this
information.16 Specifically, NuStar cited to a statement in Explorer that the forms “are not
interpretations of the regulations and the instructions are simply provided to assist operators in
filling out the forms properly.”17 This quote is from the summary of the OPS Central Region’s
argument and not my finding. The exact quote is that “PHMSA also contended that its annual
reporting forms are not interpretations of the regulations and the instructions are simply provided
to assist operators in filling out the form properly.”18 I stated in Explorer that “I find that
of the OPS forms are guidance and not binding regulation. My reference to them in the Final
instructions to complete forms are guidance, not binding regulation.”19 The instructions to any
Order was consistent with this approach.
Finally, NuStar objects to my use of the word “intentional” in the Final Order to describe the
type of spills that would be included under the maintenance exception. Specifically, I stated –
Certainly, the agency’s intention was to exclude planned or expected
maintenance spills that occurred from opening the line. The
instructions for the Accident Report (PHMSA Form 7000-1) explicitly
state that “hazardous liquid releases during maintenance or other
routine activities need not be reported if the spill was less than 5
barrels, not otherwise reportable under 49 C.F.R. § 195.50, and did not
result in water pollution as described by 49 C.F.R. § 195.52(a)(4).”20
NuStar’s three spills were certainly not planned and did not occur
during maintenance activities. Rather, the spills occurred during a
start up of the pipe and occurred as a result of personnel error after the
maintenance activity had concluded….. As stated above, the exception
is intended to capture only those spills that are planned or intended
during maintenance. If the Section 195.50(b) exception were intended
to include all spills that were in any way related to maintenance, then
numerous spills would go unreported.21
15 Final Order, at 3-4.
16 In the Matter of Explorer Pipeline, CPF No. 3-2009-5018 (July 22, 2011).
17 Petition, at 3 (citing In the Matter of Explorer Pipeline, CPF No. 3-2009-5018, at 5).
18 CPF No. 3-2009-5018, at 5.
19 Id.
20 Instructions for Form PHMSA F 7000-1 (1-2001) (emphasis added) located at http://www.phmsa.dot.gov.
21 Final Order, at 4.



5
The intent of the exception is to capture small spills that “occur upon the opening of the
pipeline”. These spills occur regularly during maintenance activities. Obviously, the agency is
not condoning intentional spills that do not fit this description.
Having reviewed the evidence provided in the Notice of Probable Violation, Violation Report,
Response and Petition, I find that the violation stands. NuStar’s petition for Item #1 is denied.
Item 3
NuStar also argues in its Petition that the $27,900 civil penalty assessed in Item #3 should be
reduced to 3/5 of the proposed civil penalty or $17,220. NuStar states that two of the five test
stations were previously dismissed; therefore, the civil penalty should be reduced to 3/5 of the
original amount. As explained in the Final Order, the proposed civil penalty was reduced to
account for the removal of these test stations. Specifically, I stated that “the civil penalty amount
is reduced to reflect that only three test stations were missed instead of the proposed five.”22 In
addition, I stated that “…the foundation of the penalty amount is based on the gravity of the
violation, the circumstances surrounding the violation including the duration of the missed tests,
and the prior history of the operator.”23 NuStar’s failure to inspect these three test stations for
amount was already reduced to reflect the removal of these two test stations from the finding of
violation, and NuStar has not presented any new information in its Petition to support its
argument for a further reduction, the assessed civil penalty amount stands. NuStar’s petition on
this Item is denied.
several consecutive years was factored into the civil penalty amount.24 Since the civil penalty
PETITION DENIED
Based on a review of the relevant portions of the record, and for the reasons stated above, I am
denying NuStar’s petition. The Final Order is affirmed without modification.
This Decision is the final administrative action in this proceeding.
_____________________________ __________________________
Jeffrey D. Wiese Date Issued
Associate Administrator
for Pipeline Safety
22 Final Order, at 6.
23 Id.
24 Id.

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