# WESTERN REFINING SOUTHWEST, INC — Notice of Probable Violation

- **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:** Not available
- **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.

Official case documents:

420125017_Final Order_12182012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420125017/420125017_Final%20Order_12182012.pdf

420125017_Final Order_12182012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420125017/420125017_Final%20Order_12182012_text.pdf

420125017_NOPV PCP_05022012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420125017/420125017_NOPV%20PCP_05022012.pdf

420125017_NOPV PCP_05022012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420125017/420125017_NOPV%20PCP_05022012_text.pdf

420125017_Final Order_12182012_text.pdf

DECEMBER 18, 2012
Mr. Jeff A. Stevens
President & CEO
Western Refining, Inc.
123 W. Mills Avenue
El Paso, TX 79901
Re: CPF No. 4-2012-5017
Dear Mr. Stevens:
Enclosed please find the Final Order issued in the above-referenced case. It makes findings of
violation and assesses a civil penalty of $37,600 against Western Refining Southwest, Inc. The
penalty payment terms are set forth in the Final Order. This enforcement action closes
automatically upon receipt of payment. 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. Emmett Reagan, Senior Vice President – SW Region, Western Refining Southwest,
Inc. - 123 W. Mills Avenue, El Paso, TX 79901
Mr. R. M. Seeley, Director, Southwest 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 )
)
Western Refining Southwest, Inc., ) CPF No. 4-2012-5017
)
Respondent. )
____________________________________)
FINAL ORDER
Between July 11-15 and September 12-15, 2011, 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
Western Refining Southwest, Inc. (WRS or Respondent) in Bloomfield, New Mexico. A
subsidiary of Western Refining, Inc., WRS operates intrastate and interstate crude oil and HVL
pipelines in New Mexico.
1
As a result of the inspection, the Director, Southwest Region, OPS (Director), issued to
Respondent, by letter dated May 2, 2012, a Notice of Probable Violation and Proposed Civil
Penalty (Notice), which also included a warning pursuant to 49 C.F.R. § 190.205. In accordance
with 49 C.F.R. § 190.207, the Notice proposed finding that WRS had violated
49 C.F.R. §§ 195.432(b) and (d) and 195.598(c) and proposed assessing a civil penalty of
$37,600 for the alleged violations. The warning item required no further action but warned the
operator to correct the probable violation or face possible enforcement action.
Respondent failed to respond within 30 days of receipt of service of the Notice. Under
49 C.F.R. § 190.209(c), such failure to respond constitutes a waiver of Western Refining
Southwest, Inc.’s right to contest the allegations in the Notice and authorizes the Associate
Administrator, without further notice, to find facts as alleged in the Notice and to issue this Final
Order under § 190.213. In this case, the Notice was mailed to Respondent by certified mail
(USPS Article No. 7007 0710 0002 1372 1572) on May 2, 2012, and was received by
Respondent on May 7, 2012, as shown by the return receipt on file with PHMSA.
To date, Respondent has never acknowledged or responded to the Notice. Under such
circumstances, I find it reasonable and appropriate to enter this Final Order without further
1 Pipeline Safety Violation Report (Violation Report) (May 3, 2012) (on file with PHMSA), at 1.



2
proceedings.2
FINDINGS OF VIOLATION
The company did not respond to the allegations in the Notice that it violated 49 C.F.R. Part 195,
as follows:
Item 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.432(b), which states:
§ 195.432 Inspection of in-service breakout tanks.
(a) . . . .
(b) Each operator must inspect the physical integrity of in-service
atmospheric and low-pressure steel aboveground breakout tanks according
to [American Petroleum Institute (API)] Standard 653 (incorporated by
reference, see § 195.3). However, if structural conditions prevent access
to the tank bottom, the bottom integrity may be assessed according to a
plan included in the operations and maintenance manual under
§ 195.402(c)(3).
The Notice alleged that Respondent violated 49 C.F.R. § 195.432(b) by failing to timely inspect
the physical integrity of an in-service atmospheric and low-pressure steel aboveground breakout
tank in accordance with Section 6 of API Standard 653. Specifically, the Notice alleged that
WRS failed to inspect the physical integrity of its in-service Breakout Tank #960 within the
frequency required by the standard.
3
According to the Notice, Section 6.4.2.2 of API 653 requires that “[w]hen corrosion rates are not
known and similar service experience is not available to estimate the bottom plate minimum
thickness at the next inspection, the internal inspection interval shall not exceed 10 years.” A
review of Respondent’s Annual Above Ground Storage Tank Visual Inspection Reports for Tank
ID #960 revealed that an inspection of the tank had not been performed within the 10-year period
required by Section 6 of API 653. Respondent’s Breakout Tank #960 was constructed in 1996
and, as of the date of the inspection, WRS had not taken the tank out of service for an internal
inspection.
Respondent did not respond to this allegation of violation. Accordingly, based upon a review of
all of the evidence, I find that Respondent violated 49 C.F.R. § 195.432(b) by failing to inspect
the physical integrity of an in-service aboveground breakout tank in accordance with API
2 In accord, In the Matter of Tampa Pipeline Corporation, Final Order (CPF No. 2-2008-6002) (April 26, 2010),
2010 WL 6531627, (D.O.T.), August 27, 2010; In the Matter of Tampa Bay Pipeline Corporation, Final Order (CPF
No. 2-2005-6012) (Dec. 1, 2006), 2008 WL 902910 (D.O.T.), March 31, 2008. PHMSA final orders are generally
accessible on the agency’s website, available at http://primis.phmsa.dot.gov/comm/reports/enforce/Actions.
3 Violation Report at Exhibit B.



3
Standard 653 and 49 C.F.R. § 195.432(d).4
Item 3: The Notice alleged that Respondent violated 49 C.F.R. § 195.589(c), which states:
§ 195.589 What corrosion control information do I have to maintain?
(a) ….
(c) You must maintain a record of each analysis, check, demonstration,
examination, inspection, investigation, review, survey, and test required
by this subpart in sufficient detail to demonstrate the adequacy of
corrosion control measures or that corrosion requiring control measures
does not exist. You must retain these records for at least 5 years, except
that records related to §§195.569, 195.573(a) and (b), and 195.579(b)(3)
and (c) must be retained for as long as the pipeline remains in service.
The Notice alleged that Respondent violated 49 C.F.R. § 195.589(c) by failing to maintain a
record of each analysis, check, demonstration, examination, inspection, investigation, review,
survey, and test required by [Subpart H – Corrosion Control] in sufficient detail to demonstrate
the adequacy of corrosion control measures or that corrosion requiring control measures did not
exist. Specifically, the Notice alleged that there were no records produced at the September
2011 PHMSA inspection to demonstrate that WRS had completed its 2007 and 2010
atmospheric corrosion inspections at least once every three calendar years, but at intervals not
exceeding 39 months for the following locations: Smith Lake Valve (East Line), Valve 9A (West
Line), Hospah Station (East Line) and Standing Rock Station (West Line). Although
Respondent later provided its 2010 atmospheric corrosion inspection records, WRS did not
provide its 2007 atmospheric corrosion control inspection records for the above-referenced
locations.
Respondent did not respond to this allegation of violation. Accordingly, based upon a review of
all of the evidence, I find that Respondent violated 49 C.F.R. § 195.589(c) by failing to maintain
atmospheric corrosion inspection records for at least five years to demonstrate that it had
conducted atmospheric corrosion inspections at least once every three calendar years, but at
intervals not exceeding 39 months in accordance with 49 C.F.R. § 195.583(a).5
These findings of violation will be considered prior offenses in any subsequent enforcement
action taken against Respondent.
ASSESSMENT OF PENALTY
Under 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed
4 Section 49 C.F.R. § 195.432(d) requires the inspection of in-service breakout tanks at certain intervals, beginning
on May 3, 1999, or on the operator’s last recorded date of the inspection, whichever is earlier.
5 Section 49 C.F.R. § 195.583 requires operators to conduct atmospheric corrosion inspections on each pipeline or
portion of pipeline that is exposed to the atmosphere at least once every three calendar years, but at intervals not
exceeding 39 months.



4
$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 $37,600 for the violations cited above.
Item 2: The Notice proposed a civil penalty of $28,700 for Respondent’s violation of
49 C.F.R. § 195.432(b), for failing to inspect its in-service Breakout Tank #960 in accordance
with section 6 of API Standard 653. Inspections of breakout tanks and documentation of any
areas of non-compliance are important to prevent corrosion, settlement, or other threats to the
integrity of these facilities. Such threats can lead to failure of the tank shell and threaten public
safety. WRS failed to respond to the Notice, which constitutes a waiver of its right to contest the
allegations in the Notice and authorizes the Associate Administrator to impose the proposed
penalties. I have considered the penalty assessment criteria, including but not limited to, the
gravity, the circumstances of the violation, and the prior history of Respondent. Accordingly, I
assess Respondent a civil penalty of $28,700 for violating 49 C.F.R. § 195.432(b).
Item 3: The Notice proposed a civil penalty of $8,900 for Respondent’s violation of
49 C.F.R. § 195.589(c), for failing to maintain records demonstrating that WRS had completed
its 2007 atmospheric corrosion control inspections at least once every three calendar years, but at
intervals not exceeding 39 months, for the four locations described above. WRS failed to
respond to the Notice, which constitutes a waiver of its right to contest the allegations in the
Notice and authorizes the Associate Administrator to impose the proposed penalties. WRS was
well aware of its obligation to conduct atmospheric corrosion inspections at intervals not
exceeding 39 months, as stated in the company’s own Operations and Maintenance Manual.6
It is essential that operators conduct timely inspections because atmospheric corrosion can result
in a release of hazardous liquids, thus posing a risk to life, property and the environment.
Accordingly, having reviewed the record and considered the assessment criteria, I assess
Respondent a civil penalty of $8,900 for violation of 49 C.F.R. § 195.589(c).
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 $37,600. 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
6 WRS’ Operations & Maintenance Manual, Section 9 Subpart H - Corrosion Control Procedures, Section 9.7.3
Atmospheric Corrosion Monitoring and Inspection Frequency states: “The Maintenance Manager shall be
responsible for the inspection program of all aboveground pressure piping and structural components for
atmospheric corrosion at least once every 36 months but not to exceed 39 months using the OM-301 Atmospheric
Corrosion Inspection Report, Refer to CFR 49 Part 195.583.” Section 9.7.5 Documentation of the WRS O&M
Manual further states: “Retain records in the local office as long as the facility remains in service or for 5 years;
whichever is greater.” See Violation Report, Exhibit C.



5
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 $37,600 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.
WARNING ITEM
With respect to Item 1, the Notice alleged a probable violation of Part 195 but did not propose a
civil penalty or compliance order for this item. Therefore, this is considered to be a warning
item. The warning was for:
49 C.F.R. § 195.410(c) (Item 1) ─ Respondent’s alleged failure to provide line
marking at locations where the line is above ground in areas that are accessible to
the public. PHMSA found several facilities that were in need of signage: Block
Valve 9A, Smith Lake Block Valve 3, and Standing Rock Thermoelectric
Generator.
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 the right to submit a Petition for Reconsideration of
this Final Order. The petition must be sent to: Associate Administrator, Office of Pipeline
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 the 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 but does not stay any other provisions of the Final Order, including
any required corrective actions. If Respondent submits payment of the civil penalty, the Final
Order becomes the final administrative decision and the right to petition for reconsideration is
waived.



6
The terms and conditions of this Final Order [CPF No.: 4-2012-5017] are effective upon service
in accordance with 49 C.F.R. § 190.5.
___________________________________ __________________________
Jeffrey D. Wiese Date Issued
Associate Administrator
for Pipeline Safety
- **truncated:** false
- **body characters:** 16690