{"operation":"document","citation":"CPF 320135010M","title":"EXPLORER PIPELINE CO — Notice of Amendment","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2013-03-26","effective_on":null,"summary":"CLOSED notice of amendment citing 195.402(c)(4), 195.404(c)(3).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320135010m.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320135010m.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320135010m","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320135010M","body":"Notice of Amendment involving EXPLORER PIPELINE CO. PHMSA's enforcement data identifies the cited regulations as 195.402(c)(4),  195.404(c)(3). The case was opened on 2013-03-26 and is reported as closed as of 2016-06-16. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320135010M_Closure Letter_06162016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320135010M/320135010M_Closure%20Letter_06162016.pdf\n\n320135010M_Closure Letter_06162016_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320135010M/320135010M_Closure%20Letter_06162016_text.pdf\n\n320135010M_NOA_03262013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320135010M/320135010M_NOA_03262013.pdf\n\n320135010M_NOA_03262013_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320135010M/320135010M_NOA_03262013_text.pdf\n\n320135010M_Operator Response to Notice and Request for Hearing_05012013.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320135010M/320135010M_Operator%20Response%20to%20Notice%20and%20Request%20for%20Hearing_05012013.pdf\n\n320135010M_Order Directing Amendment_07092015.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320135010M/320135010M_Order%20Directing%20Amendment_07092015.pdf\n\n320135010M_Order Directing Amendment_07092015_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320135010M/320135010M_Order%20Directing%20Amendment_07092015_text.pdf\n\n320135010M_Closure Letter_06162016_text.pdf\n\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nJune 16, 2016\nMr. Tom Jensen\nPresident and CEO\nExplorer Pipeline Company\nP.O. Box 2650\nTulsa, OK 74101\nCPF 3-2013-5010M\nDear Mr. Jensen:\nOn July 9, 2015, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued\nto Explorer Pipeline Company an Order Directing Amendment in the above-referenced case.\nThis Order included a requirement to amend your procedures. Based on our review of the\ndocumentation you provided, it has been determined that you have complied with the terms of\nthis Order.\nAccordingly, this case is now closed and no further action is contemplated with respect to the\nmatters involved in this case. Thank you for your cooperation in this matter.\nSincerely,\nAllan C. Beshore\nDirector, Central Region, OPS\nPipeline and Hazardous Materials Safety Administration\n\n320135010M_Order Directing Amendment_07092015_text.pdf\n\nJuly 9, 2015\nMr. Tom Jensen\nPresident and CEO\nExplorer Pipeline Company\nP.O. Box 2650\nTulsa, OK 74101\nRe: CPF No. 3-2013-5010M\nDear Mr. Jensen:\nEnclosed please find the Order Directing Amendment issued in the above-referenced case. It\nmakes findings of inadequate procedures and requires that Explorer Pipeline Company amend its\noperating and maintenance procedures. When the amendment of procedures has been\ncompleted, as determined by the Director, Central Region, OPS, this enforcement action will be\nclosed. Service of the Order Directing Amendment by certified mail is effective as provided\nunder 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. Allan Beshore, Director, Central Region, Office of Pipeline Safety\nMr. Kevin Brown, DOT Administrator, Explorer Pipeline Company\nP.O. Box 2650, Tulsa, OK 74101\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n___________________________________\nIn the Matter of )\nExplorer Pipeline Company, ) CPF No. 3-2013-5010M\n)\n)\n)\nRespondent. )\n___________________________________ )\nORDER DIRECTING AMENDMENT\nOn November 7-10, 2011, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),\nconducted an inspection of the written operations and maintenance procedures of Explorer\nPipeline Company (Explorer or Respondent) in Tulsa, Oklahoma.1\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued a Notice of\nAmendment (Notice) to Respondent on March 26, 2013. In accordance with 49 C.F.R.\n§ 190.206, the Notice alleged that two written procedures were inadequate to assure safe\noperations and must be amended.\n2 The alleged inadequacies concerned Respondent’s\nprocedures for documenting the inspection of safety devices, and its procedures for identifying\ncertain environmentally sensitive areas.\nExplorer responded to the Notice by letter dated May 1, 2013 (Response). In its Response,\nExplorer contested the allegations and requested a hearing. Explorer provided a summary of its\nposition and additional materials in two pre-hearing submissions dated October 3, 2013 (First\nPre-hearing Submission) and January 17, 2014 (Second Pre-hearing Submission). In accordance\nwith 49 C.F.R. § 190.211, a hearing was held on April 16, 2014, in Kansas City, Missouri, before\na Presiding Official from the Office of Chief Counsel, PHMSA. The Presiding Official attended\nby video teleconference pursuant to § 190.211(c). Explorer submitted a post-hearing summary\non May 13, 2014 (Post-hearing Summary).\n1 Explorer operates approximately 1,800 miles of pipeline transporting refined petroleum products from\nTexas to states in the Midwest, as reported for calendar year 2013 pursuant to 49 C.F.R. § 195.49.\n2 The Notice was issued in conjunction with a separate Notice of Probable Violation (CPF No. 3-2013-\n5009). A Final Order concerning that case is being issued separately.\n\n\n\nCPF No. 3-2013-5010M\nPage 2\nItem 1: The Notice alleged that Respondent’s procedures were inadequate with regard to\n§§ 195.404(c)(3), which states:\n§ 195.404 Maps and records.\n(a) . . . .\n(c) Each operator shall maintain the following records for the periods\nspecified . . .\n(3) A record of each inspection and test required by this subpart shall\nbe maintained for at least 2 years or until the next inspection or test is\nperformed, whichever is longer.\n§ 195.428 Overpressure safety devices and overfill protection systems.\n(a) Except as provided in paragraph (b) of this section, each operator\nshall, at intervals not exceeding 15 months, but at least once each calendar\nyear . . . inspect and test each pressure limiting device, relief valve,\npressure regulator, or other item of pressure control equipment to\ndetermine that it is functioning properly, is in good mechanical condition,\nand is adequate from the standpoint of capacity and reliability of operation\nfor the service in which it is used.\nThe Notice alleged that Respondent’s procedures and forms for documenting inspections of\noverpressure safety devices were inadequate because they did not require recording the “as\nfound” and “as left” settings of each device. The Notice alleged that recording such information\nis necessary to determine whether an overpressure safety device is functioning properly.\nIn its written submissions and at the hearing, Respondent stated that it performs and documents\ninspections for overpressure safety devices in accordance with the applicable regulations,\nadvisory bulletins, and prior OPS audits. Respondent contested the allegation in the Notice on\nthe ground that recording such information is not required by the agency’s regulations or\ninterpretations. Respondent stated that §§ 195.404 and 195.428 do not require documenting “as\nfound” and “as left” settings when inspecting overpressure safety devices, and that PHMSA has\nnever issued an interpretation requiring documentation of these settings. Therefore, Respondent\nargued, OPS may not require Explorer to perform these activities or have provisions for these\nactivities in its procedures.\nOPS personnel at the hearing explained why it is important for operators to record the “as found”\nand “as left” settings when inspecting overpressure safety devices. Without recording this\ninformation during regular inspections, the operator cannot assess whether a set point is drifting\nor changing after it has been calibrated. A safety device with a drifting set point is not\nfunctioning properly. Drifting can lead to the device having an improper set point, causing a\npipeline to fail during an overpressure event. Explorer acknowledged at the hearing that if\ndrifting was detected, it would be a safety concern that must be addressed.\nIn prior enforcement cases, PHMSA has determined that documenting “as found” and “as left”\nsettings is necessary for safe operation in compliance with §§ 195.404 and 195.428 for hazardous\nliquid pipelines, and §§ 192.709 and 192.739 for natural gas pipelines. For example, in a July\n\n\n\nCPF No. 3-2013-5010M\nPage 3\n2010 final order, PHMSA determined that an operator’s failure to record the before and after\ndevice readings when inspecting overpressure safety devices constituted a violation of the gas\nstandards.3 In May 2004, PHMSA made a similar finding that documenting “as found” and “as\nleft” settings was necessary to demonstrate compliance.4 Much earlier, in January 2000,\nPHMSA issued an enforcement letter explaining that “without testing and documenting the [as\nfound set points], there is no track record of the devices’ performance to reasonably assure\nreliable operation of the equipment.”5\nMore recently, in April 2013, PHMSA found an operator had violated § 195.404(c)(3) by failing\nto document if discharge pressure switches and transmitters were functioning properly.6 A\nreview of the notice of probable violation in that case demonstrates the violation was based on\nthe operator’s failure to document the “as found” and “as left” condition of the safety devices.\nDespite Respondent’s recognition of prior enforcement, the Company argued that OPS “did not\nproduce regulations, statutes or letters of interpretation to support the claim” in the Notice.\n7\nRespondent argued that the regulations nowhere refer to documentation of “as found” settings,\nand that operators “cannot comply with non-transparent PHMSA expectations or intentions that\nare not supported by regulations, statues or letters of interpretation.”8\nA performance-based regulation, such as § 195.428(a), will generally establish a minimum level\nof safety, which operators must meet or exceed.\n9 In this case, operators must annually determine\nthat each pressure safety device is “functioning properly, is in good mechanical condition, and is\nadequate.”10 Among other things, operators must be able to detect if the set point for an\noverpressure safety devices is drifting because if that was occurring, the device would not be\nfunctioning properly. As the prior enforcement history demonstrates, documenting the “as\nfound” and “as left” condition of safety devices ensures compliance with this requirement.\nPHMSA has also issued guidance on this issue. PHMSA’s Operations & Maintenance (O&M)\nEnforcement Guidance: Part 195 Subpart F (Dec. 2014) is a guidance document that describes\npractices used by PHMSA investigators when performing inspections and determining\n3 Florida Gas Transmission Co., CPF No. 2-2008-1003, Item 3, 2010 WL 6518282 (Jul. 26, 2010). Prior\nfinal orders and notices can be viewed at http://www.phmsa.dot.gov/pipeline/enforcement (follow link for\nenforcement since 2002 and then actions issued by year).\n4 City of Palo Alto, CPF No. 5-2000-0004, Item 3, 2004 WL 6240948 (May 27, 2004).\n5 Colonial Pipeline Co., CPF No. 2-2000-5002C, Item 1A, 2000 WL 35501227 (Jan. 19, 2000).\n6 Buckeye Partners, LP, CPF No. 3-2013-5002, Item 1, 2013 WL 3208128 (Apr. 19, 2013).\n7 Post-hearing Summary at 3.\n8 Post-hearing Summary at 3.\n9 See Butte Pipeline Co., CPF No. 5-2007-5008, Item 4, 2009 WL 3190794 (Aug. 17, 2009) (discussing\nperformance-based regulations in the context of ensuring pipeline repairs “are made in a safe manner”).\n10 § 195.428(a).\n\n\n\nCPF No. 3-2013-5010M\nPage 4\ncompliance.\n11 With respect to § 195.428, the guidance states that “maintenance records for\nmechanical pressure relief valves (thermal relief and pressure relief valves) should include . . . as\nfound and as left set point pressure of the device.”12\nRespondent argued that guidance documents are not legally binding and this particular document\nwas never published as a regulatory guideline. Respondent also noted that the document states\nthat it “is not a regulation and creates no new legal obligations.” 13\nIn this case, the O&M Enforcement Guidance creates no new requirement, but provides\nadditional information for use by PHMSA personnel and pipeline operators regarding the steps\nnecessary to ensure safe operation and compliance with the cited regulations. The language in\nthe guidance is consistent with interpretations made through prior enforcement proceedings\nwhere PHMSA concluded that operators must record the before and after device readings to\ndetermine if safety devices are functioning properly. While the guidance may not foreclose an\nalternative method of detecting set point drifting, in the present case neither party suggested\nthere was an acceptable alternative available.\nFor the above reasons, PHMSA concludes there is an important safety reason for Explorer to\nrecord “as found” and “as left” settings during inspections to ensure each overpressure safety\ndevice is functioning properly, is in good mechanical condition, and is adequate from the\nstandpoint of capacity and reliability of operation.\nHaving considered the record, PHMSA finds Respondent’s procedures were inadequate because\nthey failed to require recording the “as found” and “as left” settings on overpressure safety\ndevices. Pursuant to 49 U.S.C. § 60108(a) and 49 C.F.R. § 190.206, Respondent is ordered to\nrevise its procedure to address this inadequacy.\nItem 2: The Notice also alleged that Respondent’s procedures were inadequate with regard to\n§ 195.402(c)(4), which states:\n§ 195.402 Procedural manual for operations, maintenance, and\nemergencies.\n(a) General. Each operator shall prepare and follow for each pipeline\nsystem a manual of written procedures for conducting normal operations\nand maintenance activities and handling abnormal operations and\nemergencies . . . .\n11 PHMSA staff manuals are available on its website at http://www.phmsa.dot.gov/foia/e-reading-room.\n12 O&M Enforcement Guidance at 84.\n13 O&M Enforcement Guidance at 2. The introduction to the guidance document in question recognizes\nfurther that: “The regulation is controlling. The materials in this document are explanatory in nature and\nreflect PHMSA’s current application of the regulations . . . Alternative approaches are not precluded if\nthey satisfy the requirements of the applicable regulation(s).”\n\n\n\nCPF No. 3-2013-5010M\nPage 5\n(c) Maintenance and normal operations. The manual required by\nparagraph (a) of this section must include procedures for the following to\nprovide safety during maintenance and normal operations . . .\n(4) Determining which pipeline facilities are located in areas that\nwould require an immediate response by the operator to prevent hazards to\nthe public if the facilities failed or malfunctioned.\nThe Notice alleged that Respondent’s written procedures were inadequate because they failed to\nidentify certain areas that would require an immediate response in the event of a pipeline failure.\nIn particular, the Notice alleged that pipe segments located within the primary levee and adjacent\nto the banks of the Mississippi River were not identified. The Notice also alleged that the\nidentification procedure did not consider navigable waterways and drinking water resources.\nIn its written submissions and at the hearing, Respondent explained that it augments its processes\nfor identifying high consequence areas (HCAs) to encompass commercially navigable\nwaterways, highly populated areas, other populated areas, critical public drinking water areas,\necological sensitive areas, and locations where impaired mobility for evacuation or high density\npopulation exist.14\nTo clarify its written procedures, Respondent proposed to modify the header of its HCA report to\nconvey that every identified area in the report requires an immediate response under\n§ 195.402(c)(4). At the hearing, the Director agreed this clarification would satisfy the alleged\ninadequacy.\nAccordingly, having reviewed the record, PHMSA finds Respondent’s procedures are inadequate\nwith regard to the header of its HCA report. Pursuant to 49 U.S.C. § 60108(a) and 49 C.F.R.\n§ 190.206, Respondent is ordered to revise its procedures to address this inadequacy.\nWithin 30 days following receipt of this Order, Respondent must submit amended procedures\npursuant to Items 1 and 2, above. Documentation must be submitted for review and approval by\nthe Director, Central Region, Office of Pipeline Safety, Pipeline and Hazardous Materials Safety\nAdministration, 901 Locust Street, Suite 462, Kansas City, MO 64106.\nThe Director may grant an extension of time to comply with any of the required items upon a\nwritten request timely submitted by the Respondent demonstrating good cause for an extension.\nIt is requested that Respondent maintain documentation of the safety improvement costs\nassociated with fulfilling this Order and submit the total to the Director. It is requested that these\ncosts be reported in two categories: (1) total cost associated with preparation/revision of plans,\nprocedures, studies and analyses; and (2) total cost associated with physical changes to pipeline\ninfrastructure, including pipeline replacement and additions.\n14 Operators identify HCAs under the integrity management regulations at § 195.452.\n\n\n\nCPF No. 3-2013-5010M\nPage 6\nFailure to comply with this Order may result in the administrative assessment of civil penalties\nnot to exceed $200,000 for each violation for each day the violation continues or in referral to the\nAttorney General for appropriate relief in a district court of the United States.\nUnder 49 C.F.R. § 190.243, Respondent may submit a petition for reconsideration of this Order\nDirecting Amendment to the Associate Administrator for Pipeline Safety, PHMSA, 1200 New\nJersey Avenue SE, East Building, 2nd Floor, Washington, D.C. 20590, no later than 20 days\nafter receipt of the Order by Respondent. Any petition submitted must contain a statement of the\nissue(s) and meet all other requirements of 49 C.F.R. § 190.243. The terms of this Order,\nincluding the amendment of procedures, remain in effect upon the filing of a petition for\nreconsideration unless the Associate Administrator, upon request, grants a stay.\nThe terms and conditions of this Order are effective upon service in accordance with 49 C.F.R. §\n190.5.\n____________________________ _____________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":18713}