{"operation":"document","citation":"CPF 420125017","title":"WESTERN REFINING SOUTHWEST, INC — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2012-05-02","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.410(c), 195.432(b), 195.589(c).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-420125017.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-420125017.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-420125017","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/420125017","body":"Notice of Probable Violation involving WESTERN REFINING SOUTHWEST, INC. PHMSA's enforcement data identifies the cited regulations as 195.410(c),  195.432(b),  195.589(c). The case was opened on 2012-05-02 and is reported as closed as of 2013-02-22. Proposed civil penalty: $37,600. Assessed civil penalty: $37,600. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n420125017_Final Order_12182012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420125017/420125017_Final%20Order_12182012.pdf\n\n420125017_Final Order_12182012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420125017/420125017_Final%20Order_12182012_text.pdf\n\n420125017_NOPV PCP_05022012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420125017/420125017_NOPV%20PCP_05022012.pdf\n\n420125017_NOPV PCP_05022012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420125017/420125017_NOPV%20PCP_05022012_text.pdf\n\n420125017_Final Order_12182012_text.pdf\n\nDECEMBER 18, 2012\nMr. Jeff A. Stevens\nPresident & CEO\nWestern Refining, Inc.\n123 W. Mills Avenue\nEl Paso, TX 79901\nRe: CPF No. 4-2012-5017\nDear Mr. Stevens:\nEnclosed please find the Final Order issued in the above-referenced case. It makes findings of\nviolation and assesses a civil penalty of $37,600 against Western Refining Southwest, Inc. The\npenalty payment terms are set forth in the Final Order. This enforcement action closes\nautomatically upon receipt of payment. Service of the Final Order by certified mail is deemed\neffective upon the date of mailing, or as otherwise provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Emmett Reagan, Senior Vice President – SW Region, Western Refining Southwest,\nInc. - 123 W. Mills Avenue, El Paso, TX 79901\nMr. R. M. Seeley, Director, Southwest Region, OPS\nMr. Alan Mayberry, Deputy Associate Administrator for Field Operations, OPS\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____________________________________\n)\nIn the Matter of )\n)\nWestern Refining Southwest, Inc., ) CPF No. 4-2012-5017\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nBetween July 11-15 and September 12-15, 2011, pursuant to 49 U.S.C. § 60117, a representative\nof the Pipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline\nSafety (OPS), conducted an on-site pipeline safety inspection of the facilities and records of\nWestern Refining Southwest, Inc. (WRS or Respondent) in Bloomfield, New Mexico. A\nsubsidiary of Western Refining, Inc., WRS operates intrastate and interstate crude oil and HVL\npipelines in New Mexico.\n1\nAs a result of the inspection, the Director, Southwest Region, OPS (Director), issued to\nRespondent, by letter dated May 2, 2012, a Notice of Probable Violation and Proposed Civil\nPenalty (Notice), which also included a warning pursuant to 49 C.F.R. § 190.205. In accordance\nwith 49 C.F.R. § 190.207, the Notice proposed finding that WRS had violated\n49 C.F.R. §§ 195.432(b) and (d) and 195.598(c) and proposed assessing a civil penalty of\n$37,600 for the alleged violations. The warning item required no further action but warned the\noperator to correct the probable violation or face possible enforcement action.\nRespondent failed to respond within 30 days of receipt of service of the Notice. Under\n49 C.F.R. § 190.209(c), such failure to respond constitutes a waiver of Western Refining\nSouthwest, Inc.’s right to contest the allegations in the Notice and authorizes the Associate\nAdministrator, without further notice, to find facts as alleged in the Notice and to issue this Final\nOrder under § 190.213. In this case, the Notice was mailed to Respondent by certified mail\n(USPS Article No. 7007 0710 0002 1372 1572) on May 2, 2012, and was received by\nRespondent on May 7, 2012, as shown by the return receipt on file with PHMSA.\nTo date, Respondent has never acknowledged or responded to the Notice. Under such\ncircumstances, I find it reasonable and appropriate to enter this Final Order without further\n1 Pipeline Safety Violation Report (Violation Report) (May 3, 2012) (on file with PHMSA), at 1.\n\n\n\n2\nproceedings.2\nFINDINGS OF VIOLATION\nThe company did not respond to the allegations in the Notice that it violated 49 C.F.R. Part 195,\nas follows:\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.432(b), which states:\n§ 195.432 Inspection of in-service breakout tanks.\n(a) . . . .\n(b) Each operator must inspect the physical integrity of in-service\natmospheric and low-pressure steel aboveground breakout tanks according\nto [American Petroleum Institute (API)] Standard 653 (incorporated by\nreference, see § 195.3). However, if structural conditions prevent access\nto the tank bottom, the bottom integrity may be assessed according to a\nplan included in the operations and maintenance manual under\n§ 195.402(c)(3).\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.432(b) by failing to timely inspect\nthe physical integrity of an in-service atmospheric and low-pressure steel aboveground breakout\ntank in accordance with Section 6 of API Standard 653. Specifically, the Notice alleged that\nWRS failed to inspect the physical integrity of its in-service Breakout Tank #960 within the\nfrequency required by the standard.\n3\nAccording to the Notice, Section 6.4.2.2 of API 653 requires that “[w]hen corrosion rates are not\nknown and similar service experience is not available to estimate the bottom plate minimum\nthickness at the next inspection, the internal inspection interval shall not exceed 10 years.” A\nreview of Respondent’s Annual Above Ground Storage Tank Visual Inspection Reports for Tank\nID #960 revealed that an inspection of the tank had not been performed within the 10-year period\nrequired by Section 6 of API 653. Respondent’s Breakout Tank #960 was constructed in 1996\nand, as of the date of the inspection, WRS had not taken the tank out of service for an internal\ninspection.\nRespondent did not respond to this allegation of violation. Accordingly, based upon a review of\nall of the evidence, I find that Respondent violated 49 C.F.R. § 195.432(b) by failing to inspect\nthe physical integrity of an in-service aboveground breakout tank in accordance with API\n2 In accord, In the Matter of Tampa Pipeline Corporation, Final Order (CPF No. 2-2008-6002) (April 26, 2010),\n2010 WL 6531627, (D.O.T.), August 27, 2010; In the Matter of Tampa Bay Pipeline Corporation, Final Order (CPF\nNo. 2-2005-6012) (Dec. 1, 2006), 2008 WL 902910 (D.O.T.), March 31, 2008. PHMSA final orders are generally\naccessible on the agency’s website, available at http://primis.phmsa.dot.gov/comm/reports/enforce/Actions.\n3 Violation Report at Exhibit B.\n\n\n\n3\nStandard 653 and 49 C.F.R. § 195.432(d).4\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 195.589(c), which states:\n§ 195.589 What corrosion control information do I have to maintain?\n(a) ….\n(c) You must maintain a record of each analysis, check, demonstration,\nexamination, inspection, investigation, review, survey, and test required\nby this subpart in sufficient detail to demonstrate the adequacy of\ncorrosion control measures or that corrosion requiring control measures\ndoes not exist. You must retain these records for at least 5 years, except\nthat records related to §§195.569, 195.573(a) and (b), and 195.579(b)(3)\nand (c) must be retained for as long as the pipeline remains in service.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.589(c) by failing to maintain a\nrecord of each analysis, check, demonstration, examination, inspection, investigation, review,\nsurvey, and test required by [Subpart H – Corrosion Control] in sufficient detail to demonstrate\nthe adequacy of corrosion control measures or that corrosion requiring control measures did not\nexist. Specifically, the Notice alleged that there were no records produced at the September\n2011 PHMSA inspection to demonstrate that WRS had completed its 2007 and 2010\natmospheric corrosion inspections at least once every three calendar years, but at intervals not\nexceeding 39 months for the following locations: Smith Lake Valve (East Line), Valve 9A (West\nLine), Hospah Station (East Line) and Standing Rock Station (West Line). Although\nRespondent later provided its 2010 atmospheric corrosion inspection records, WRS did not\nprovide its 2007 atmospheric corrosion control inspection records for the above-referenced\nlocations.\nRespondent did not respond to this allegation of violation. Accordingly, based upon a review of\nall of the evidence, I find that Respondent violated 49 C.F.R. § 195.589(c) by failing to maintain\natmospheric corrosion inspection records for at least five years to demonstrate that it had\nconducted atmospheric corrosion inspections at least once every three calendar years, but at\nintervals not exceeding 39 months in accordance with 49 C.F.R. § 195.583(a).5\nThese findings of violation will be considered prior offenses in any subsequent enforcement\naction taken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n4 Section 49 C.F.R. § 195.432(d) requires the inspection of in-service breakout tanks at certain intervals, beginning\non May 3, 1999, or on the operator’s last recorded date of the inspection, whichever is earlier.\n5 Section 49 C.F.R. § 195.583 requires operators to conduct atmospheric corrosion inspections on each pipeline or\nportion of pipeline that is exposed to the atmosphere at least once every three calendar years, but at intervals not\nexceeding 39 months.\n\n\n\n4\n$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any\nrelated series of violations. In determining the amount of a civil penalty under\n49 U.S.C. § 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,\ncircumstances, and gravity of the violation, including adverse impact on the environment; the\ndegree of Respondent’s culpability; the history of Respondent’s prior offenses; the Respondent’s\nability to pay the penalty and any effect that the penalty may have on its ability to continue doing\nbusiness; and the good faith of Respondent in attempting to comply with the pipeline safety\nregulations. In addition, I may consider the economic benefit gained from the violation without\nany reduction because of subsequent damages, and such other matters as justice may require.\nThe Notice proposed a total civil penalty of $37,600 for the violations cited above.\nItem 2: The Notice proposed a civil penalty of $28,700 for Respondent’s violation of\n49 C.F.R. § 195.432(b), for failing to inspect its in-service Breakout Tank #960 in accordance\nwith section 6 of API Standard 653. Inspections of breakout tanks and documentation of any\nareas of non-compliance are important to prevent corrosion, settlement, or other threats to the\nintegrity of these facilities. Such threats can lead to failure of the tank shell and threaten public\nsafety. WRS failed to respond to the Notice, which constitutes a waiver of its right to contest the\nallegations in the Notice and authorizes the Associate Administrator to impose the proposed\npenalties. I have considered the penalty assessment criteria, including but not limited to, the\ngravity, the circumstances of the violation, and the prior history of Respondent. Accordingly, I\nassess Respondent a civil penalty of $28,700 for violating 49 C.F.R. § 195.432(b).\nItem 3: The Notice proposed a civil penalty of $8,900 for Respondent’s violation of\n49 C.F.R. § 195.589(c), for failing to maintain records demonstrating that WRS had completed\nits 2007 atmospheric corrosion control inspections at least once every three calendar years, but at\nintervals not exceeding 39 months, for the four locations described above. WRS failed to\nrespond to the Notice, which constitutes a waiver of its right to contest the allegations in the\nNotice and authorizes the Associate Administrator to impose the proposed penalties. WRS was\nwell aware of its obligation to conduct atmospheric corrosion inspections at intervals not\nexceeding 39 months, as stated in the company’s own Operations and Maintenance Manual.6\nIt is essential that operators conduct timely inspections because atmospheric corrosion can result\nin a release of hazardous liquids, thus posing a risk to life, property and the environment.\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $8,900 for violation of 49 C.F.R. § 195.589(c).\nIn summary, having reviewed the record and considered the assessment criteria for each of the\nItems cited above, I assess Respondent a total civil penalty of $37,600. Payment of the civil\npenalty must be made within 20 days of service. Federal regulations (49 C.F.R. § 89.21(b)(3))\nrequire such payment to be made by wire transfer through the Federal Reserve Communications\n6 WRS’ Operations & Maintenance Manual, Section 9 Subpart H - Corrosion Control Procedures, Section 9.7.3\nAtmospheric Corrosion Monitoring and Inspection Frequency states: “The Maintenance Manager shall be\nresponsible for the inspection program of all aboveground pressure piping and structural components for\natmospheric corrosion at least once every 36 months but not to exceed 39 months using the OM-301 Atmospheric\nCorrosion Inspection Report, Refer to CFR 49 Part 195.583.” Section 9.7.5 Documentation of the WRS O&M\nManual further states: “Retain records in the local office as long as the facility remains in service or for 5 years;\nwhichever is greater.” See Violation Report, Exhibit C.\n\n\n\n5\nSystem (Fedwire), to the account of the U.S. Treasury. Detailed instructions are contained in the\nenclosure. Questions concerning wire transfers should be directed to: Financial Operations\nDivision (AMZ-341), Federal Aviation Administration, Mike Monroney Aeronautical Center,\nP.O. Box 269039, Oklahoma City, Oklahoma 73125. The Financial Operations Division\ntelephone number is (405) 954-8893.\nFailure to pay the $37,600 civil penalty will result in accrual of interest at the current annual rate\nin accordance with 31 U.S.C. § 3717, 31 C.F.R. § 901.9 and 49 C.F.R. § 89.23. Pursuant to\nthose same authorities, a late penalty charge of six percent (6%) per annum will be charged if\npayment is not made within 110 days of service. Furthermore, failure to pay the civil penalty\nmay result in referral of the matter to the Attorney General for appropriate action in a district\ncourt of the United States.\nWARNING ITEM\nWith respect to Item 1, the Notice alleged a probable violation of Part 195 but did not propose a\ncivil penalty or compliance order for this item. Therefore, this is considered to be a warning\nitem. The warning was for:\n49 C.F.R. § 195.410(c) (Item 1) ─ Respondent’s alleged failure to provide line\nmarking at locations where the line is above ground in areas that are accessible to\nthe public. PHMSA found several facilities that were in need of signage: Block\nValve 9A, Smith Lake Block Valve 3, and Standing Rock Thermoelectric\nGenerator.\nIf OPS finds a violation of this provision in a subsequent inspection, Respondent may be\nsubject to future enforcement action.\nUnder 49 C.F.R. § 190.215, Respondent has the right to submit a Petition for Reconsideration of\nthis Final Order. The petition must be sent to: Associate Administrator, Office of Pipeline\nSafety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor, Washington, DC\n20590, with a copy sent to the Office of Chief Counsel, PHMSA, at the same address. PHMSA\nwill accept petitions received no later than 20 days after receipt of service of the Final Order by\nthe Respondent, provided they contain a brief statement of the issue(s) and meet all other\nrequirements of 49 C.F.R. § 190.215. The filing of a petition automatically stays the payment of\nany civil penalty assessed but does not stay any other provisions of the Final Order, including\nany required corrective actions. If Respondent submits payment of the civil penalty, the Final\nOrder becomes the final administrative decision and the right to petition for reconsideration is\nwaived.\n\n\n\n6\nThe terms and conditions of this Final Order [CPF No.: 4-2012-5017] are effective upon service\nin accordance with 49 C.F.R. § 190.5.\n___________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":16690}