{"operation":"document","citation":"CPF 32022062NOPV","title":"EXPLORER PIPELINE CO — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2022-09-14","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.264(b)(1)(i), 195.581(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-32022062nopv.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-32022062nopv.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-32022062nopv","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/32022062NOPV","body":"Notice of Probable Violation involving EXPLORER PIPELINE CO. PHMSA's enforcement data identifies the cited regulations as 195.264(b)(1)(i),  195.581(a). The case was opened on 2022-09-14 and is reported as closed as of 2024-04-15. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n32022062NOPV_Closure Letter_04152024_(21-202559).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022062NOPV/32022062NOPV_Closure%20Letter_04152024_(21-202559).pdf\n\n32022062NOPV_Closure Letter_04152024_(21-202559)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022062NOPV/32022062NOPV_Closure%20Letter_04152024_(21-202559)_text.pdf\n\n32022062NOPV_Final Order_10172023_(21-202559).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022062NOPV/32022062NOPV_Final%20Order_10172023_(21-202559).pdf\n\n32022062NOPV_Final Order_10172023_(21-202559)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022062NOPV/32022062NOPV_Final%20Order_10172023_(21-202559)_text.pdf\n\n32022062NOPV_Operator Response to Notice_10142022_(21-202559).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022062NOPV/32022062NOPV_Operator%20Response%20to%20Notice_10142022_(21-202559).pdf\n\n32022062NOPV_PCO_09142022_(21-202559).pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022062NOPV/32022062NOPV_PCO_09142022_(21-202559).pdf\n\n32022062NOPV_PCO_09142022_(21-202559)_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/32022062NOPV/32022062NOPV_PCO_09142022_(21-202559)_text.pdf\n\n32022062NOPV_Closure Letter_04152024_(21-202559)_text.pdf\n\nVIA ELECTRONIC MAIL TO: mhurley@expl.com; kbrown@expl.com\nApril 15, 2024\nMark Hurley\nPresident and Chief Executive Officer\nExplorer Pipeline Co.\nP.O. Box 2650\nTulsa, Oklahoma 74136\nRE: CPF 3-2022-062-NOPV\nDear Mr. Hurley:\nOn October 17, 2023, the Pipeline and Hazardous Materials Safety Administration (PHMSA)\nissued to Explorer Pipeline Co. (Explorer) a Final Order in the above-referenced case. This Final\nOrder included a Compliance Order. Based on our review of the documentation provided, it has\nbeen determined that Explorer has complied with the terms of this 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,\nGregory A. Ochs\nDirector, Central Region, Office of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration\ncc: Kevin Brown, Manager, DOT and Regulatory Compliance, Explorer Pipeline Co.,\n(kbrown@expl.com)\n\n32022062NOPV_Final Order_10172023_(21-202559)_text.pdf\n\nOctober 17, 2023\nVIA ELECTRONIC MAIL TO: mhurley@expl.com\nMark A. Hurley\nPresident and Chief Executive Officer\nExplorer Pipeline Company\nP.O. Box 2650\nTulsa, Oklahoma 74136\nRe: CPF No. 3-2022-062-NOPV\nDear Mr. Hurley:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and specifies actions that need to be taken to comply with the pipeline safety\nregulations. When the terms of the compliance order have been completed, as determined by the\nDirector, Central Region, this enforcement action will be closed. Service of the Final Order by\ne-mail is effective upon the date of transmission and acknowledgement of receipt as provided\nunder 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure (Final Order)\ncc: Mr. Gregory A. Ochs, Director, Central Region, Office of Pipeline Safety, PHMSA\nMr. Kevin Brown, Manager, DOT and Regulatory Compliance, Explorer Pipeline Company,\nkbrown@expl.com\nMs. Celeste Johnson, Vice President and General Counsel, Explorer Pipeline Company,\ncjohnson@expl.com\nMs. Lauren Sanders, Vice President, HSSE, Explorer Pipeline Company, lsanders@expl.com\nCONFIRMATION OF 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. 3-2022-062-NOPV\n)\n)\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nFrom June 7 through September 20, 2021, pursuant to 49 U.S.C. § 60117, a representative of the\nPipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety\n(OPS), conducted an inspection of Explorer Pipeline Company’s (Explorer or Respondent)\nhazardous liquid pipeline system inspection system in Illinois, Missouri, Oklahoma, and Texas.\nExplorer operates over 1,800 miles of pipeline transporting petroleum products from the Gulf\nCoast to the Midwest.\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated September 14, 2022, a Notice of Probable Violation (Notice). In accordance with\n49 C.F.R. § 190.207, the Notice proposed finding that Explorer committed two violations of 49\nC.F.R. Part 195 and proposed ordering Respondent to take certain measures to correct the\nalleged violations.\nExplorer responded to the Notice by letter dated October 14, 2022 (Response) contesting one\nitem in the Notice, and requesting a settlement conference. Explorer and OPS engaged in\ninformal discussions in December 2022, and Explorer later submitted an additional written\nresponse (Supplemental Response) on December 30, 2022, continuing to contest Item 1 in the\nNotice.\nExplorer did not request a hearing and therefore has waived its right to one.\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 192.264(b)(1)(i), which states:\n§ 195.264 Impoundment, protection against entry, normal/emergency\n\n\n\nventing or pressure/vacuum relief for aboveground breakout tanks.\n(a) . . . .\n(b) After October 2, 2000, compliance with paragraph (a) of this section\nrequires the following for the aboveground breakout tanks specified:\n(1) For tanks built to API Spec 12F, API Std 620, and others (such as\nAPI Std 650 (or its predecessor Standard 12C)), the installation of\nimpoundment must be in accordance with the following sections of NFPA-\n30 (incorporated by reference, see §195.3);\n(i) Impoundment around a breakout tank must be installed in accordance\nwith section 22.11.2;\nThe Notice alleged Explorer failed to install impoundment around breakout tanks in accordance\nwith Section 22.11.2 of NFPA-30. Specifically, the Notice alleged NFPA-30 Section 22.11.2.7.1\nrequires that “[c]ontrol of drainage shall be accessible under fire conditions from outside the\ndike.” In the diked area with tanks 423, 424, and 433 at the Wood River tank facility, the dike\ndrainage valve was placed within the diked area rather than having it accessible from outside the\ndiked area. These tanks were constructed in 2003 and, therefore, construction was required to\nfollow NFPA-30 under § 195.264(b)(1)(i).\nRespondent contested Item 1, stating it complied with requirements cited in the Notice, and\nrequested withdrawal of the Proposed Compliance Order. Respondent also indicated it was\ndetermining the best solution to address relocating dike drain valves located within dike\nimpoundments and that it was amending its procedures to further clarify tank dike valve location\nrequirements per NFPA-30.\nIn its Supplemental Response, Respondent stated it was not contesting the applicability of\n§ 195.264 and the incorporation by reference of NFPA-30 (1996) for Tanks 423, 424 and 433\ncited in the Notice. Rather, Respondent explained it was contesting the reference to Section\n22.11.2 in the 2012 version of NFPA-30 instead of the corresponding requirement that was\nnumbered differently in the 1996 edition of NFPA-30.\nRespondent also argued that it interpreted NFPA-30 in its entirety in its Dike Drain Plan, not just\nthe clause that indicates control of drainage shall be accessible under fire conditions from outside\nthe dike. Respondent states that any tank dike discharges from Tanks 423, 424 and 433 “(1) do\nnot drain off the property, (2) do not enter natural water courses, (3) do not enter public sewers,\nand (4) do not enter public drains.” In addition, Respondent believes that the location of the\n“Exterior Tank Dike Valve” as illustrated in its Dike Drain Plan provides for control of water\ndrainage off Explorer’s property and under fire conditions from outside the dike. Finally,\nRespondent asserts that in prior PHMSA enforcement proceedings, operators were permitted to\ncontrol water drainage from inside the tank dike.1\nFirst, with regard to the version of NFPA-30 that is applicable to the facility at issue, I agree with\nRespondent that the 1996 version of NFPA-30 was incorporated by reference under\n1 Explorer cites In the Matter of Flint Hills Resources, LLC, CPF-3-2021-032-NOPV and In the Matter of DAPL-\nETCO Operation Management, LLC, CPF-3-2021-049-NOPV (available online at:\nhttps://primis.phmsa.dot.gov/comm/reports/enforce/EnfHome.html?nocache=1846).\n\n\n\n§ 195.264(b)(1)(i) at the time of construction of the assets described in Item 1, and should have\nbeen cited to in the Notice. The requirement of NFPA-30 at issue here and incorporated by\nreference at the time of construction was Section 2-3.4.3. That same requirement, however, is\nalso present in the 2012 edition of NFPA-30, which was cited to in the Notice. Both editions of\nNFPA-30 reflect the same language: “[c]ontrol of drainage shall be accessible under fire\nconditions from outside the dike.” The only relevant distinction here is that the section\nnumbering in the 1996 version of NFPA-30 (Section 2-3.4.3) was later changed in the 2012\nversion of NFPA-30 (22.11.2.7.1).2 While the Notice should have referenced the section\nnumbering in the 1996 version of NFPA-30, the substantive requirements of the section are\nexactly the same.\nWith regard to the requirements in the regulation, I find Respondent violated § 195.264(b)(1)(i).\nNFPA-30, Section 2-3.4.3, requires that “[c]ontrol of drainage shall be accessible under fire\nconditions from outside the dike.” The facts here indicate it is undisputed that the current drain\nvalve for the dike containing tanks 423, 424, and 433 is not able to be operated during a fire\nevent from outside the dike.3 Respondent appears to argue that NFPA-30 requires only the last\ndike drain valve at a facility containing multiple tank impoundment to be accessible from outside\nthe dike. I disagree. The language in NFPA-30 (in both editions discussed above) immediately\npreceding the requirement violated here uses the plural term “diked areas” – indicating multiple\nareas anticipated by NFPA-30 in a location may need drainage. In addition, the language in\nNFPA-30 (in both editions discussed above) preceding the requirement violated here states this\nrequirement is applicable to dike “drains,” meaning that dike drain controls, including multiple\ndike drain valves, must be accessible from outside a diked area during a fire. Further, the\nreading proposed by Respondent is not consistent with the purpose of the section of NFPA-30 at\nissue.\n4 The plain language of NFPA-30 requires the drains for a diked area to be accessible from\noutside of the dike, not only the last dike drain valve at a facility that is connected to separate\ndikes.\nRespondent cited to two PHMSA enforcement cases in support of its argument that the drainage\ncontrol at the last dike area is sufficient to meet the requirements of § 195.264(b)(1)(i).\nHowever, the enforcement documents in those respective matters do not mention the location of\nthe dike drain valve in relation to the last drain valve that leaves the facility, and in both cases,\nPHMSA found the operators violated the requirement that “[c]ontrol of drainage shall be\naccessible under fire conditions from outside the dike.” Further, in both enforcement cases cited,\n2 Section 195.264(b)(1)(i) was amended in 2015 to reflect this updated section numbering. 80 Fed. Reg. 168 (Jan. 5,\n2015).\n3 The Response explains the tank cell for Tanks 423, 424 and 433 were subdivided (located within their own,\nseparate, dike) from an existing cell when those tanks were built in 2003. Explorer explains that if the dike in which\nTanks 423, 424 and 433 reside in needs water discharged, the dike drain located within that dike is opened for brief\nperiods to gravity feed water to an adjoining tank cell at the facility, and the separate tank cell has its own dike drain\nvalve located on the outside of that separate dike.\n4 If the drain for a diked area cannot be operated from outside of the dike, then control of the last drain valve at a\nseparate dike at a facility is obviously irrelevant. The diked area (where control of the valve is located within the\ndike) could overflow if unable to be drained down under fire conditions. The ability to safely operate drains from\noutside the dike is necessary to avoid an impounded area around the tank(s) filling with water (floated or damaged\ntanks), and in the event of a fire as part of firefighting and/or spill containment efforts in an emergency.\n\n\n\nthe operators later installed equipment making the valves operable from outside the\nimpoundment area. PHMSA has consistently taken the position that under the plain language of\nNFPA-30, dike drainage must be accessible from outside the diked areas under fire conditions.5\nFinally, Respondent argues it is compliant with NFPA-30 because the drainage for the tanks at\nissue do not discharge off Explorer property and, as such, prevent flammable and combustible\nliquids from entering natural water courses or public sewers or drains.\nFirst, the language of § 195.264 is not permissive as to operator discretion regarding the\ninstallation of impoundment infrastructure. That section states the installation of impoundment\naround breakout tanks “must be” in accordance with NFPA-30 requirements. Further, the actual\nlanguage of the NFPA provision at issue here is also not permissive in the manner asserted in the\nResponse. Rather, the control of drainage “. . . shall be accessible under fire conditions from\noutside the dike”, in order to indeed prevent discharges from occurring that would leave an\noperator’s property or enter natural water courses or drains. The plain language of NFPA-30\ndoes not support the assertion that an operator’s belief as to whether discharge may ultimately\nenter one of those described areas is a discretionary pre-condition addressing whether control of\ndrainage must be accessible from outside of the dike. Rather, the requirements addressing\ncontrol of drainage NFPA-30 are to prevent discharge from leaving an operator’s property and\naffecting water sources and systems during a fire situation. In sum, the requirement to control\ndrainage for Tanks 423, 424 and 433 from outside the impoundment dike is mandatory.\nFinally, even if Explorer’s assertion as to the meaning of NFPA-30’s requirements were\naccepted, I note that the facility in question here is in very close proximity to the Mississippi\nRiver, is located in a high consequence area under Part 195, and is adjacent to public roads and\nnearby residential neighborhoods and parks. Absent the ability to control drainage from outside\nthe dike containing the tanks in question during a fire or accident scenario or otherwise,\nExplorer’s assertion that discharge could not leave its property and subsequently somehow enter\nnatural water courses or drains lacks merit.\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated 49\nC.F.R. § 192.264(b)(1)(i) when it failed to make the dike drainage valve accessible from outside\nthe diked area for the tanks listed in the Notice.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.581(a), which states:\n§ 195.581 Which pipelines must I protect against atmospheric corrosion\nand what coating material may I use?\n(a) You must clean and coat each pipeline or portion of pipeline that is\nexposed to the atmosphere, except pipelines under paragraph (c) of this\nsection.\n5 See e.g., In the Matter of Tallgrass Powder River Gateway, LLC, CPF-3-2021-088-NOPV and In the Matter of\nEnbridge Energy, LP, CPF-3-2020-5006 (available online at:\nhttps://primis.phmsa.dot.gov/comm/reports/enforce/EnfHome.html?nocache=1846). These two PHMSA\nenforcement matters supporting the allegation in Item 1 are in addition to the enforcement matters cited by Explorer\nin its written responses.\n\n\n\nThe Notice alleged Explorer failed to provide protection against atmospheric corrosion as\nrequired by § 195.581. Specifically, the Notice alleged that in two locations (Port Neches\nStation and Wood River Terminal) it appeared pipe was installed uncoated and in several other\nlocations it appeared pipe-to-soil transitions had dis-bonded and flaking paint along with bare\nsteel.\nIn the Response, Explorer stated it was not contesting Item 2 and provided additional\ninformation regarding corrective actions it had taken. Explorer explained it conducts\natmospheric inspections of its assets every three years as required by §§ 195.581and 195.583 and\nuses a four-point grading system for determining when mitigation measures are necessary prior\nto the next regularly scheduled inspections. The Response explained that as to the Port Neches\nand Wood River Stations, the uncoated pipe described in Item 2 has now been coated. Explorer\nalso stated its Cathodic Protection Department is actively addressing pending air-to-soil\ntransitions. Explorer is also amending its corrosion procedures and the grading system to ensure\nthat all air-to-soil interfaces are appropriately coated.\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated 49\nC.F.R. § 195.581(a) provide protection against atmospheric corrosion.\nThese findings of violation will be considered prior offenses in any subsequent enforcement\nactions against Respondent.\nCOMPLIANCE ORDER\nThe Notice proposed a compliance order with respect to Items 1 and 2 for violations of 49\nC.F.R. § 195.264(b)(1)(i) and § 195.581(a), respectively. Under 49 U.S.C. § 60118(a), each\nperson who engages in the transportation of hazardous liquids or who owns or operates a\npipeline facility is required to comply with the applicable safety standards established under\nchapter 601. The Director has indicated that Respondent has already completed the actions\nproposed in the Notice to correct the violation described in Item 2. Therefore, it is not necessary\nto include the proposed compliance terms for Item 2 in this Final Order.\nPursuant to the authority of 49 U.S.C. § 60118(b) and 49 C.F.R. § 190.217, Respondent is\nordered to take the following actions to ensure compliance with the pipeline safety regulations\napplicable to its operations:\nWith respect to the violation of § 195.264(b)(1)(i) (Item 1) - Respondent must be\nable to operate the dike drainage valve outside the diked area within ninety (90)\ndays of receipt of the Final Order. Documentation that remediation has been\ncompleted shall be submitted to the Central Region Director within one hundred\ntwenty (120) days of the Final Order.\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 and demonstrating good cause for an\n\n\n\nextension.\nPHMSA requests that Respondent maintain documentation of the safety improvement costs\nassociated with fulfilling this Compliance Order and submit the total to the Director. It is\nrequested that these costs be reported in two categories: 1) total cost associated with\npreparation/revision of plans, procedures, studies and analyses; and 2) total cost associated with\nreplacements, additions and other changes to pipeline infrastructure.\nFailure to comply with this Order may result in the administrative assessment of civil penalties\nnot to exceed $200,000, as adjusted for inflation (see 49 C.F.R. § 190.223), for each violation for\neach day the violation continues or in referral to the Attorney General for appropriate relief in a\ndistrict court of the United States.\nUnder 49 C.F.R. § 190.243, Respondent may submit a Petition for Reconsideration of this Final\nOrder to the Associate Administrator, Office of Pipeline Safety, PHMSA, 1200 New Jersey\nAvenue, SE, East Building, 2nd Floor, Washington, DC 20590, with a copy sent to the Office of\nChief Counsel, PHMSA, at the same address. The written petition must be received no later than\n20 days after receipt of the Final Order by Respondent. Any petition submitted must contain a\nstatement of the issue(s) and meet all other requirements of 49 C.F.R. § 190.243. The filing of a\npetition automatically stays the payment of any civil penalty assessed. The other terms of the\norder, including any corrective actions, remain in effect unless the Associate Administrator, upon\nrequest, grants a stay.\nThe terms and conditions of this order are effective upon service in accordance with 49 C.F.R.\n§ 190.5.\nOctober 17, 2023\n___________________________________ _________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":21178}