{"operation":"document","citation":"CPF 420155016","title":"ENBRIDGE PIPELINES (OZARK) L.L.C. — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2015-08-25","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.214.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-420155016.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-420155016.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-420155016","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/420155016","body":"Notice of Probable Violation involving ENBRIDGE PIPELINES (OZARK) L.L.C.. PHMSA's enforcement data identifies the cited regulation as 195.214. The case was opened on 2015-08-25 and is reported as closed as of 2019-10-24. Proposed civil penalty: $40,300. Assessed civil penalty: $33,100. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n420155016_Closure Letter_10242019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420155016/420155016_Closure%20Letter_10242019.pdf\n\n420155016_Closure Letter_10242019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420155016/420155016_Closure%20Letter_10242019_text.pdf\n\n420155016_Decision on Petition For Reconsideration_02092018.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420155016/420155016_Decision%20on%20Petition%20For%20Reconsideration_02092018.pdf\n\n420155016_Decision on Petition For Reconsideration_02092018_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420155016/420155016_Decision%20on%20Petition%20For%20Reconsideration_02092018_text.pdf\n\n420155016_Final Order_03242017.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420155016/420155016_Final%20Order_03242017.pdf\n\n420155016_Final Order_03242017_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420155016/420155016_Final%20Order_03242017_text.pdf\n\n420155016_NOPV PCP PCO_08252015.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420155016/420155016_NOPV%20PCP%20PCO_08252015.pdf\n\n420155016_NOPV PCP PCO_08252015_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420155016/420155016_NOPV%20PCP%20PCO_08252015_text.pdf\n\n420155016_Operator Petition for Reconsideration Cover Letter_04192017.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420155016/420155016_Operator%20Petition%20for%20Reconsideration%20Cover%20Letter_04192017.pdf\n\n420155016_Operator Petition for Reconsideration_04192017.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420155016/420155016_Operator%20Petition%20for%20Reconsideration_04192017.pdf\n\n420155016_Operator Response to Notice_ 10022015.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420155016/420155016_Operator%20Response%20to%20Notice_%2010022015.pdf\n\n420155016_Closure Letter_10242019_text.pdf\n\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nOctober 24, 2019\nBrad Shamla\nVice President, U.S. Operations\nEnbridge Storage (Cushing), LLC\n1100 Louisiana Street, Suite 3300\nHouston, Texas 77002\nCPF 4-2015-5016\nDear Mr. Shamla:\nOn multiple occasions between July 23, 2012 and April 20, 2015, representatives of the Pipeline\nand Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),\npursuant to Chapter 601 of 49 United States Code conducted onsite inspections of the Enbridge\nStorage (Cushing) L.L.C (Enbridge) terminal in Cushing, Oklahoma, specifically procedures and\nrecords related to the Enbridge BP/Amoco Pipe Modification Project. As a result of these\ninspections, on August 25, 2015, a Notice of Probable Violation, Proposed Civil Penalty and\nProposed Compliance Order (Notice) was issued to Enbridge Storage (Cushing), LLC (Enbridge,\nthe Operator).\nOn March 24, 2017, a Final Order was issued with a Compliance Order requiring the Operator to\nperform specified corrective actions, along with a civil penalty in the amount of $33,100. Enbridge\npaid the penalty, performed the specified corrective actions, and on August 26, 2019, requested\nclosure of the case. Representatives of PHMSA performed inspections and found the corrective\nactions to be acceptable.\nThis letter is to inform you no further action is necessary and this case is now closed. Thank you\nfor your cooperation.\nSincerely,\nMary L. McDaniel, P.E.\nDirector, Southwest Region\nPipeline and Hazardous Materials Safety Administration\n\n420155016_Decision on Petition For Reconsideration_02092018_text.pdf\n\nFebruary 9, 2018\nMr. Mark A. Maki\nPresident\nEnbridge Storage (Cushing), LLC\n1100 Louisiana St., Suite 3300\nHouston, Texas 77002\nRe: CPF No. 4-2015-5016\nDear Mr. Maki:\nEnclosed is the Decision on the Petition for Reconsideration filed by Enbridge Storage\n(Cushing), LLC, in the above-referenced case. For the reasons explained therein, the Decision\ngrants the Petition, in part, but affirms the civil penalty and compliance terms of the March 24,\n2017 Final Order. The civil penalty was paid in full, by wire transfer, dated April 11, 2017.\nWhen the terms of the Compliance Order are completed, as determined by the Director,\nSouthwest Region, this enforcement action will be closed. This Decision constitutes the final\nadministrative action in this proceeding. Service of this Decision is made pursuant to 49 C.F.R.\n§ 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Director, Southwest Region, Office of Pipeline Safety, PHMSA\nMr. David Stafford, Senior Manager, U.S. Pipeline Compliance, Enbridge Energy\nPartners, LP, 119 North 25th Street East, Superior, WI 54880\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 )\nEnbridge Storage (Cushing), LLC, ) CPF No. 4-2015-5016\na subsidiary of Enbridge Energy Partners, LP, )\n)\n)\n)\nPetitioner. )\n_________________________________________ )\nDECISION ON PETITION FOR RECONSIDERATION\nBetween July 23, 2012, and April 20, 2015, pursuant to 49 U.S.C. § 60117, a representative of\nthe Pipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety\n(OPS), conducted an on-site pipeline safety inspection of the facilities and records of Enbridge\nStorage (Cushing), LLC (Enbridge or Petitioner), in Cushing, Oklahoma, specifically the\nprocedures and records related to the Enbridge BP/Amoco Pipe Modification Project (BP/Amoco\nProject). Enbridge operates a terminal facility in Cushing, Oklahoma, that is part of the Ozark\nPipeline, which begins in Cushing and terminates in Wood River, Illinois. Enbridge has\napproximately 75 breakout tanks at the Cushing Terminal, with additional tanks under\nconstruction.1\nAs a result of the inspection, the Director, Southwest Region, OPS (Director), issued to\nEnbridge, by letter dated August 25, 2015, a Notice of Probable Violation, Proposed Civil\nPenalty, and Proposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the\nNotice proposed finding that Enbridge had violated 49 C.F.R. § 195.214, and proposed assessing\na civil penalty of $40,300 for the alleged violation. The Notice also proposed ordering Enbridge\nto take certain measures to correct the alleged violation.\nEnbridge responded to the Notice by letter dated October 2, 2015 (Response). The company\ncontested the allegation, offered additional information in response to the Notice, and requested\nthat the proposed civil penalty be reduced or eliminated. Enbridge did not request a hearing.\nOn March 24, 2017, pursuant to 49 C.F.R. § 190.213, PHMSA issued a Final Order in this\nproceeding, finding that Enbridge had committed one violation of § 195.214, as alleged in the\n1 Pipeline Safety Violation Report (Aug. 25, 2015) (Violation Report) (on file with PHMSA), at 1.\n\n\n\nCPF No. 4-2015-5016\nPage 2\nNotice.2 The agency assessed a reduced civil penalty of $33,100 for the violation and ordered\nthat Enbridge take certain corrective actions, as set forth in the Compliance Order that was part\nof the Final Order.\nIn accordance with § 190.243, Enbridge filed a “Petition for Reconsideration or, in the\nAlternative, Petition to Amend Language of the Final Order” on April 19, 2017. Enbridge did\nnot seek reconsideration of the finding of violation, civil penalty assessment, or compliance\norder. Instead, Enbridge requested the amendment of certain language in the Final Order\nregarding two factual findings.\nSTANDARD OF REVIEW\nPursuant to 49 C.F.R. § 190.243, an operator may petition the Associate Administrator for\nreconsideration of a final order issued under § 190.213. Reconsideration does not constitute an\nappeal or an opportunity to seek a de novo review of the record. It is instead an opportunity for\nrespondents to request that errors in the final order be corrected or to present information that\nwas not previously available, provided the petitioner submits a valid reason explaining why such\ninformation was not presented prior to issuance of the final order. PHMSA may grant or deny,\nin whole or in part, a petition for reconsideration without further proceedings, but may request\nadditional information or comment if deemed appropriate. Under § 190.243(b), the respondent\nmust submit reasoning why any additional facts or arguments were not presented prior to\nissuance of the final order.\nDISCUSSION\nItem 1 in the Final Order found that Petitioner violated 49 C.F.R. § 195.214, which states:\n§ 195.214 Welding procedures.\n(a) Welding must be performed by a qualified welder in accordance with\nwelding procedures qualified under Section 5 of API 1104 or Section IX of\nthe ASME Boiler and Pressure Vessel Code (incorporated by reference, see\n§ 195.3). The quality of the test welds used to qualify the welding procedure\nshall be determined by destructive testing.\n(b) Each welding procedure must be recorded in detail, including the\nresults of the qualifying test. This record must be retained and followed\nwhenever the procedure is used.3\n2 Enbridge Storage (Cushing), LLC, Final Order, CPF No. 4-2015-5016, 2017 WL 1363416 (Mar. 24, 2017)\n(available at www.phmsa.dot.gov/pipeline/enforcement).\n3 See, 49 C.F.R. § 195.214 (2015). This section was amended, effective Oct. 1, 2015; however, because the\nviolation occurred before the amendment was effective, the previous version of the regulation, as quoted above,\napplies in this case.\n\n\n\nCPF No. 4-2015-5016\nPage 3\nThe Final Order determined the Petitioner had violated 49 C.F.R. § 195.214 by failing to ensure\nthat certain welding was performed by a qualified welder in accordance with welding procedures\nqualified under Section 5 of API 1104 or Section IX of the ASME Boiler and Pressure Vessel\nCode (ASME IX). Specifically, the Final Order found that Enbridge violated 49 C.F.R.\n§ 195.214 when it used two different welding procedures with different essential variables on the\nsame weld, and therefore failed to perform the welding according to either qualified procedure.\nThe Final Order assessed a civil penalty of $33,100 for the violation.\nEnbridge did not seek reconsideration of the finding of violation or the amount of the civil\npenalty, but specifically requested “that PHMSA amend the language regarding two of the [civil\npenalty] mitigating factors: economic benefit and good faith.”4 With respect to economic\nbenefit, the Final Order found that Enbridge “probably realized an economic benefit by not\nremoving the work done on the first part of the welding and simply completing the work using a\ndifferent procedure.”5 The Final Order noted, however, that this finding did not have any impact\non the penalty because “the proposed penalty was not designed to offset any economic benefit.”6\nPetitioner requested that the language in the final order referring to a probable economic benefit\nbe removed because it was irrelevant to the determination of the penalty and could be\nmisinterpreted.\nHaving reconsidered the record, I find that the evidence was insufficient for PHMSA to make\nany finding concerning economic benefit. While the Final Order stated that Enbridge “probably”\nrealized an economic benefit by “not removing the work done on the first part of the welding and\nsimply completing the work using a different procedure,” this finding was not supported by any\nprobative evidence showing that Enbridge actually derived any tangible economic benefit from\nthe process by which it completed the weld in question. Moreover, it was not necessary to\nconduct a factual inquiry into economic benefit because, as recognized in the Final Order,\neconomic benefit was not actually considered by PHMSA in proposing the penalty amount.\nAccordingly, the finding in the Final Order that Petitioner probably realized an economic benefit\nfrom its noncompliance is hereby withdrawn.\nWith respect to good faith, the Final Order found that Petitioner had not acted in furtherance of a\nreasonable, good-faith interpretation of the regulations that would warrant a reduction in the\npenalty. In so holding, the Final Order rejected an argument by Enbridge that its removal of the\nfirst welding crew due to a confined-space violation constituted “good faith,” noting that the\noperator was already required to remove the crew under such circumstances. Petitioner argued\nthat “the removal of the welding crew for non-compliance with confined space rules was acting\nin good faith, even if that does not qualify for a good-faith reduction in the civil penalty,” and\nsuggested that this finding in the Final Order could also be misinterpreted.7\n4 Petition, at 2.\n5 Final Order, at 10.\n6 Id..\n7 Petition, at 3.\n\n\n\nCPF No. 4-2015-5016\nPage 4\nTo clarify the finding in the Final Order, when considering an operator’s “good faith” in\nattempting to achieve compliance for the purpose of potentially reducing a proposed civil\npenalty, PHMSA looks at whether the operator attempted to comply with the cited regulation\nbased upon “a reasonable interpretation of the requirement.”8 In this case, the Final Order\ndetermined that Enbridge’s actions to comply with other safety regulations, such as confined-\nspace safety requirements, were already required and therefore did not qualify as a basis for\nreducing the proposed penalty. Further, to the extent that Enbridge “believed the regulation\npermitted different welding procedures to be combined along the same seam, Respondent’s\ninterpretation was unreasonable and does not justify reducing the penalty.”9 Having\nreconsidered this finding, I find no grounds to amend the Final Order, but trust this clarification\naddresses Petitioner’s concern.\nCONCLUSION\nFor the reasons stated above, the Petition for Reconsideration is granted in part and denied in\npart. The finding of violation in the Final Order, the associated penalty of $33,100, and the\nassociated compliance terms are hereby affirmed. Enbridge paid the civil penalty in full by wire\ntransfer dated April 11, 2017. The Compliance Order was not stayed by the filing of the Petition\nand must be completed in accordance with the original terms of the March 24, 2017 Final Order.\nThis Decision on Reconsideration is the final administrative action in this proceeding.\nFebruary 9, 2018\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety\n8 Violation Report, at 11. See also, White Cliffs Pipeline, LLC, Final Order, CPF No. 3-2011-5012, at 6, 2013 WL\n1247518, at *4 (Feb. 5, 2013).\n9 Final Order, at 10.\n\n420155016_NOPV PCP PCO_08252015_text.pdf\n\nNOTICE OF PROBABLE VIOLATION\nPROPOSED CIVIL PENALTY\nAnd\nPROPOSED COMPLIANCE ORDER\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nAugust 25, 2015\nMr. Brad Shamla\nVice President, U.S. Operations\nEnbridge Storage (Cushing) L.L.C.\n1100 Louisiana Street, Suite 3300\nHouston, TX 77002\nCPF 4-2015-5016\nDear Mr. Shamla:\nOn multiple occasions between July 23, 2012 and April 20, 2015, representatives of the Pipeline\nand Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),\npursuant to Chapter 601 of 49 United States Code were onsite and conducted inspections of the\nEnbridge Storage (Cushing) L.L.C (Enbridge) terminal in Cushing, Oklahoma, specifically\nprocedures and records related to the Enbridge BP/Amoco Pipe Modification Project (BP/Amoco\nProject), AFE#1490541118. The project is ongoing and inspections are continuing.\nAs a result of the inspection, it appears that you have committed probable violations of the\nPipeline Safety Regulations, Title 49, Code of Federal Regulations. The items inspected and the\nprobable violations are:\n\n\n\n1. §195.214 Welding Procedures.\n(a) Welding must be performed by a qualified welder in accordance with welding\nprocedures qualified under Section 5 API 1104 or Section IX of the ASME Boiler\nand Pressure vessel Code (incorporated by reference, see §195.3). The quality of the\ntest welds used to qualify the welding procedure shall be determined by destructive\ntesting.\n(b) Each welding procedure must be recorded in detail, including the results of the\nqualifying test. This record must be retained and followed whenever the procedure\nis used.\nEnbridge failed ensure that welding was performed by a qualified welder in accordance with\nqualified welding procedures for the BP/Amoco Project. This welding procedure, 106 LT,\nlimited the maximum time between filler passes to no more than 15 minutes. On the afternoon\nof March 6, 2015 at approximately 3:45 PM, Enbridge was performing welding on the\nBP/Amoco project. Welders completed the root bead and a portion of the hot pass on a tie-in\nweld when Enbridge personnel stopped the process after determining that welding personnel may\nhave failed to follow confined space procedures on a previous weld. After a lengthy discussion\namong Enbridge personnel a decision was made that there was a violation of the Enbridge\nconfined space procedure and at approximately 6:30 PM the welding personnel were sent offsite\nto be drug tested in accordance with Enbridge procedures.\nAt approximately 8:30 PM, Enbridge brought in another team of welders to complete the weld.\nThese welders, who were normally assigned to perform maintenance welding, were not provided\nprocedure 106 LT and were instructed to complete the weld as they described it “like other welds\nwe had made.” Rather than grinding out the partially completed weld and re-welding (because\nmore than 15 minutes had elapsed between passes) the welders were instructed to complete the\nweld, disregarding the requirements of the qualified welding procedure.\nAccording to the second set of welders, they completed the weld using a completely different\nwelding procedure than was used to start the weld. They used maintenance welding procedure\nDB 48. This procedure differed from the 106 LT procedure that had been used to start the weld\nin that DB 48 was qualified under ASME IX and 106 LT was qualified under API 1104. The\nprocedures also differed in some essential variables, including but not limited to, the filler metal,\nthe speed of travel, and the preheat temperature. DB 48 also required the hot pass be started\nwithin 5 minutes of the root bead pass. Enbridge mixed welding procedures with different\nessential variables on the same weld and failed to perform the welding according to the qualified\nprocedure.\nIn addition, the second set of welders that completed the weld had not qualified to weld the 106\nLT procedure and stated that no readings were taken during the welding to ensure the heat input\nwas consistent with the requirements of the qualified welding procedure.\n2\n\n\n\nProposed Civil Penalty\nUnder 49 United States Code, § 60122, you are subject to a civil penalty not to exceed $200,000\nper violation per day the violation persists up to a maximum of $2,000,000 for a related series of\nviolations. For violations occurring prior to January 4, 2012, the maximum penalty may not\nexceed $100,000 per violation per day, with a maximum penalty not to exceed $1,000,000 for a\nrelated series of violations. The Compliance Officer has reviewed the circumstances and\nsupporting documentation involved in the above probable violations and has recommended that\nyou be preliminarily assessed a civil penalty of $40,300.\nProposed Compliance Order\nWith respect to items 1 pursuant to 49 United States Code §60118, the Pipeline and Hazardous\nMaterials Safety Administration proposes to issue a Compliance Order to Enbridge Storage\n(Cushing) L.L.C. Please refer to the Proposed Compliance Order, which is enclosed and made a\npart of this Notice.\nResponse to this Notice\nEnclosed as part of this Notice is a document entitled Response Options for Pipeline Operators\nin Compliance Proceedings. Please refer to this document and note the response options. All\nmaterial you submit in response to this enforcement action may be made publicly available. If\nyou believe that any portion of your responsive material qualifies for confidential treatment\nunder 5 U.S.C. 552(b), along with the complete original document you must provide a second\ncopy of the document with the portions you believe qualify for confidential treatment redacted\nand an explanation of why you believe the redacted information qualifies for confidential\ntreatment under 5 U.S.C. 552(b). If you do not respond within 30 days of receipt of this Notice,\nthis constitutes a waiver of your right to contest the allegations in this Notice and authorizes the\nAssociate Administrator for Pipeline Safety to find facts as alleged in this Notice without further\nnotice to you and to issue a Final Order.\nIn your correspondence on this matter, please refer to CPF 4-2015-5016 and for each document\nyou submit, please provide a copy in electronic format whenever possible.\nSincerely,\nR. M. Seeley\nDirector, SW Region\nPipeline and Hazardous Materials Safety Administration\nEnclosures: Proposed Compliance Order\nResponse Options for Pipeline Operators in Compliance Proceedings\n3\n\n\n\nPROPOSED COMPLIANCE ORDER\nPursuant to 49 United States Code § 60118, the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA) proposes to issue to Enbridge Storage (Cushing) L.L.C. A\nCompliance Order incorporating the following remedial requirements to ensure the compliance\nof Enbridge Storage (Cushing) L.L.C. (Enbridge) with the pipeline safety regulations:\n1. 2. 3. Related to Item Number 1 of the Notice pertaining to Enbridge failing to properly\nperform welding according to a qualified welding procedure with qualified welders,\nEnbridge must review all welding records associated with the Enbridge Cushing, OK\nterminal, and remove and re-weld all welds not made according to a specific, applicable,\nappropriate qualified welding procedure using properly qualified welders. This must\ninclude the weld performed on March 6, 2015 that is the subject of this violation.\nEnbridge must provide PHMSA copies of all of the welding records reviewed, weld maps\nshowing locations of each weld, and documentation of all welds removed and re-welded\nincluding but not limited to the qualified welding procedure used, the welder\nqualification records, the visual inspection records, inspection records showing that the\nwelding was performed according to the essential variables and parameters of the\nqualified welding procedure, and NDE records showing that no defects were present in\nthe welds greater than allowed by API 1104 (ibr). The records must be organized so that\nit is clear to PHMSA which welding records apply to each weld on the weld maps.\nItem 1 shall be submitted to PHMSA no later than 30 days from the issuance of the Final\nOrder in this case.\nIt is requested (not mandated) that Enbridge maintain documentation of the safety\nimprovement costs associated with fulfilling this Compliance Order and submit the total\nto R.M Seeley, Director, Southwest Region, Pipeline and Hazardous Materials Safety\nAdministration. It is requested that these costs be reported in two categories: 1) total cost\nassociated with preparation/revision of plans, procedures, studies and analyses, and 2)\ntotal cost associated with replacements, additions and other changes to pipeline\ninfrastructure.\n4\n\n420155016_Final Order_03242017_text.pdf\n\nMarch 24, 2017\nMr. Mark A. Maki\nPresident\nEnbridge Energy Partners, LP\n1100 Louisiana St., Suite 3300\nHouston, Texas 77002\nRe: CPF No. 4-2015-5016\nDear Mr. Maki:\nEnclosed please find the Final Order issued in the above-referenced case. It makes a finding of\nviolation, assesses a reduced civil penalty of $33,100, and specifies actions that need to be taken\nby Enbridge Storage (Cushing) LLC, a subsidiary of Enbridge Energy Partners, LP, to comply\nwith the pipeline safety regulations. The penalty payment terms are set forth in the Final Order.\nWhen the civil penalty has been paid and the terms of the compliance order completed, as\ndetermined by the Director, Southwest Region, this enforcement action will be closed. Service\nof the Final Order by certified mail is effective as provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Rodrick Seeley, Director, Southwest Region, OPS\nMr. David Stafford, Senior Manager, U.S. Pipeline Compliance, Enbridge Energy\nLimited Partnership, 119 North 25th Street East, Superior, WI 54880\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 )\nEnbridge Storage (Cushing), LLC, ) CPF No. 4-2015-5016\na subsidiary of Enbridge Energy Partners, LP, )\n)\n)\n)\nRespondent. )\n________________________________________________)\nFINAL ORDER\nBetween July 23, 2012 and April 20, 2015, 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 on-site pipeline safety inspection of the facilities and records of Enbridge\nStorage (Cushing), LLC (Enbridge or Respondent), in Cushing, Oklahoma. The inspection\nfocused specifically on the procedures and records related to the Enbridge BP/Amoco Pipe\nModification Project (BP/Amoco Project). Enbridge operates a terminal facility in Cushing,\nOklahoma, that is part of the Ozark Pipeline, which begins in Cushing and terminates in Wood\nRiver, Illinois. Enbridge has approximately 75 breakout tanks in the Cushing Terminal, with\nadditional tanks under construction.1\nAs a result of the inspection, the Director, Southwest Region, OPS (Director), issued to\nRespondent, by letter dated August 25, 2015, a Notice of Probable Violation, Proposed Civil\nPenalty, and Proposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the\nNotice proposed finding that Enbridge had violated 49 C.F.R. § 195.214, and proposed assessing\na civil penalty of $40,300 for the alleged violation. The Notice also proposed ordering\nRespondent to take certain measures to correct the alleged violation.\nEnbridge responded to the Notice by letter dated October 2, 2015 (Response). The company\ncontested the allegation, offered additional information in response to the Notice, and requested\nthat the proposed civil penalty be reduced or eliminated. Enbridge did not request a hearing and\nhas therefore waived its right to one.\n1 Pipeline Safety Violation Report (Violation Report), (Aug. 25, 2015) (on file with PHMSA), at 1.\n\n\n\nCPF No. 4-2015-5016\nPage 2\nFINDING 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. § 195.214,\n2 which states:\n§ 195.214 Welding procedures.\n(a) Welding must be performed by a qualified welder in accordance with\nwelding procedures qualified under Section 5 of API 1104 or Section IX of\nthe ASME Boiler and Pressure Vessel Code (incorporated by reference, see\n§ 195.3). The quality of the test welds used to qualify the welding procedure\nshall be determined by destructive testing.\n(b) Each welding procedure must be recorded in detail, including the\nresults of the qualifying test. This record must be retained and followed\nwhenever the procedure is used.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.214 by failing to ensure that\nwelding was performed by a qualified welder in accordance with welding procedures qualified\nunder Section 5 of API 1104 or Section IX of the ASME Boiler and Pressure Vessel Code\n(ASME IX). Specifically, the Notice alleged that on March 6, 2015, at approximately 3:45 PM,\nEnbridge performed welding on its BP/Amoco project. After completion of the root bead on a\ntie-in weld, the welders started the second pass or “hot-pass,” but stopped before the welding\nwas completed for a potential violation of confined space procedures on a previous weld. Only\nthe root bead and approximately half of the hot pass weld had been completed when the welding\nwas stopped. Welding Procedure 106 LT limits the maximum time between filler passes to no\nmore than 15 minutes.\nApproximately five hours later, a second team of welders was brought in by Enbridge to\ncomplete the weld using Maintenance Welding Procedure DB-48. These welders were not\nprovided Welding Procedure 106 LT. Rather than grinding out the partially completed weld and\nre-welding (because more than 15 minutes had elapsed between passes), the welders were\ninstructed to complete the weld, disregarding the requirements of the qualified welding\nprocedure. The second set of welders was not qualified to weld in accordance with Welding\nProcedure 106 LT.\nMaintenance Welding Procedure DB-48 differs from Welding Procedure 106 LT procedure in\nthat Maintenance Welding Procedure DB-48 is qualified under ASME IX, while Welding\nProcedure 106 LT is qualified under API 1104. The procedures also differ in some essential\nvariables, including, but not limited to, the filler metal, the speed of travel, and the preheat\ntemperature. Maintenance Welding Procedure DB-48 also requires that the hot pass be started\nwithin five minutes of the root bead pass.\nOPS stated that “Enbridge mixed welding procedures with different essential variables on the\n2 49 C.F.R. § 195.214 (2015). Note, this section was amended, effective Oct. 1, 2015; however, because the\nviolation occurred before the amendment was effective, the previous version of the regulation applies here.\n\n\n\nCPF No. 4-2015-5016\nPage 3\nsame weld and failed to perform the welding according to the qualified procedure.”3\nIn its Response, Enbridge argued that § 195.214 does not contain a prohibition against the use of\nmore than one welding procedure. It stated that “[i]n this case, both welds were qualified in\naccordance with the referenced standards and all welders were qualified to perform the\nprocedures they were executing.”4 Enbridge asserted that when welding resumed after the delay,\nMaintenance Welding Procedure DB-48 “was the governing procedure.” While an essential\nvariable for Welding Procedure 106 LT contains “a 15 minute maximum interpass time between\nthe first (root) and the second (hot) passes,”5 this is not an essential variable for Maintenance\nWelding Procedure DB-48.6 Instead, Maintenance Welding Procedure DB-48 contains “a\nrequirement to commence the hot pass within 5 minutes of completing the root pass as an\nengineering best practice requirement for avoidance of hydrogen cracking in the vulnerable lone\nroot pass,” but this is not an essential variable for Maintenance Welding Procedure DB-48.7\nEnbridge argued that because “the maximum interpass time of DB-48 was not an essential\nvariable per the governing standard (ASME IX), the final weldment was dispositioned in\naccordance with engineering judgement...”8\nEnbridge consulted a subject matter expert in its Pipeline Integrity Department, who “determined\nthat the weld met the standard of acceptability and was not an integrity concern.”9 Enbridge\nconcluded that “combining two similar weld procedures is not prohibited under PHMSA or\nconsensus standards.”10\nOPS responded that once Enbridge originated the weld using the Welding Procedure 106 LT, it\n“had to follow the procedure or remove the weld and start over” to be in compliance with\n§ 195.214.11 OPS argued that Welding Procedure 106 LT governed the procedure because it\nwas used to initiate the weld.12 It continued to oppose Enbridge’s statement that because the\ninterpass time was not an essential variable, it did not have to be followed. “An essential\nvariable change requires the procedure to be completely requalified but this does not mean that\n3 Notice, at 2.\n4 Response, at 2.\n5 API 1104 WPS 106LT, Section 5.4.2.8.\n6 Response, at 2.\n7 Id.\n8 Id.\n9 Id., at 2-3.\n10 Id., at 3.\n11 Region Recommendation, at 3.\n12 Id., at 7.\n\n\n\nCPF No. 4-2015-5016\nPage 4\nthe other specifications on the qualified welding procedure required by the standard don’t have to\nbe followed.”13\nOPS stated that Welding Procedure 106 LT prescribes the performance of an entire weld.14\nSimilarly, Maintenance Welding Procedure DB-48 is for an entire weld and is qualified under\nthe ASME IX Code.15 Enbridge completed approximately half of the weld using Welding\nProcedure 106 LT then completed it with the Maintenance Welding Procedure DB-48.16\nNeither procedure allows the welding “to be stopped partially through the weld and resumed\noutside of the maximum time between passes… with a completely different procedure qualified\nunder a different standard.”17 While ASME IX Code permits using multiple Welding Procedure\nSpecifications on the same weld joint, it also requires that “all essential, nonessential, and\nsupplementary essential variables be followed and that welding procedures used on the same\njoint be qualified under the ASME IX Code. Consequently, a welding procedure qualified under\nAPI 1104 could not be part of an ASME Welding Procedure Specification, and therefore could\nnot be used on the same weld joint as an ASME qualified procedure.”18 Therefore, OPS alleged\nthat neither welding procedure was properly followed.19\nIn response to Enbridge’s argument that because the essential variables for the welding\nprocedures are different and it only needed to follow the essential variables of the second\nwelding procedure, OPS stated that § 195.214 specifies that the welding procedure must be\nfollowed, not that “only essential variables must be followed and the rest of the procedure can be\nignored.”20 OPS argued that even if Enbridge were permitted to combine procedures, it “was\nstill required to weld according to the procedure specifications, including the interpass time.”21\nOPS disagreed with Enbridge’s argument that it could “indiscriminately mix and match any\nnumber of procedures on the same weld joint without regard to following the incorporated\nstandards, procedure specifications, essential variables, welding parameters, and welder\nqualification requirements is completely contrary to the requirements of 49 CFR [§] 195.214 and\n13 Id., at 7.\n14 Id., at 3.\n15 Id., at 5.\n16 Id., at 5.\n17 Id., at 3.\n18 Id., at 7.\n19 Id., at 5.\n20 Id., at 5-6.\n21 Id., at 6.\n\n\n\nCPF No. 4-2015-5016\nPage 5\nthe incorporated standards.”22 OPS explained that Maintenance Welding Procedure DB-48\ndiffered from Welding Procedure 106 LT “in filler metals, speed of travel, and several other\nessential variables.”23\nRegarding Enbridge’s reliance on its subject matter expert’s advice in using two different\nwelding procedures, OPS responded that the subject matter expert’s opinion could not “eliminate\nthe requirement that an operator must follow the qualified welding procedure” required by 49\nC.F.R. § 195.214.24\nThe central issue in this case is whether an operator is permitted to combine two welding\nprocedures qualified under different standards on the same joint. I find that Enbridge violated 49\nC.F.R. § 195.214 when it used two different welding procedures with different essential\nvariables on the same weld, and therefore failed to perform the welding according to either\nqualified procedure.\nThe regulatory requirement to follow the qualified welding procedure in 49 C.F.R. § 195.214 is\nbased on the fact that performing welding by following the requirements of the qualified welding\nprocedure is the only way that an operator can have the necessary assurance that the completed\nweld will have the required strength and mechanical properties.25 A welding procedure is\nqualified by first welding the proposed procedure, then destructively testing weld coupons in\norder to ensure that the procedure will result in the weld having the proper strength and\nmechanical properties for the intended application. This process is performed under strict\ncompliance with the requirements of one of the standards incorporated by reference into Part\n195, and relies on establishing parameters for all essential variables and other welding procedure\nspecification information that must be followed every time the procedure is used.26\nConsequently, the only assurance that welds in the field will have the strength and mechanical\nproperties comparable to the qualifying welds is to follow the essential variables and other\nwelding procedure specification information written in the qualified welding procedure.27\nReplicating the welding procedure “recipe” each time a weld is made in the field is the only way\nthat an operator can have any certainty that each weld will have the strength and mechanical\nproperties comparable to the qualifying weld.28\n22 Id., at 6-7.\n23 Id.\n24 Id., at 9.\n25 Id., at 3.\n26 Id.\n27 Id., at 4.\n28 Id., at 3.\n\n\n\nCPF No. 4-2015-5016\nPage 6\nSection 195.214 states that “[w]elding must be performed by a qualified welder in accordance\nwith welding procedures qualified under Section 5 of API 1104 or Section IX of the ASME\nBoiler and Pressure Vessel Code.29 The regulation does not contemplate, or permit, an operator\nto partially weld with one welding procedure and then complete the work with another\nprocedure.30 Each procedure must be completed fully or restarted from scratch. API Standard\n1104, Section 5.4.l, states that “[a] welding procedure must be re-established as a new procedure\nspecification and must be completely requalified when any of the essential variables listed in\n5.4.2 are changed.”31 Likewise, the two welding procedures are not compatible, and neither\ncontains provisions for re-initiating welding using a different welding procedure qualified under\na different standard with different essential variables.\nWelding Procedure 106 LT limits the maximum time between filler passes to no more than 15\nminutes. Outside of this time frame, an operator cannot restart the welding process without\nremoving the original welding and start from scratch. According to API Standard 1104, Section\n5.4.2.8, the length of time between passes is an essential variable and any changes require the\nwelding procedure to be completely requalified. Restarting the welding after over five hours had\nelapsed disregarded Welding Procedure 106 LT’s essential variable of maximum time between\npasses. When Enbridge stopped the welding and failed to re-initiate the next welding pass within\nthe 15-minute time period as specified by the qualified procedure, the partially-completed weld\nwas required to be ground out and the entire weld redone because there were no provisions in the\nprocedure for an interpass time exceeding 15 minutes. Enbridge therefore violated § 195.214 by\nfailing to perform the welding according to API Standard 1104.\nEssential variables are those welding variables that have the most significant influence on the\nstrength and mechanical properties of the weld, such as tensile strength and ductility.32 Before\nany changes can be made to an essential variable, the welding procedure must be completely\nrequalified.\nEnbridge also did not comply with the Maintenance Welding Procedure DB-48, which does not\npermit completing a weld initiated using another welding procedure with different essential\nvariables. For Enbridge to use Maintenance Welding Procedure DB-48, which was qualified\nunder a different standard (ASME IX) with different essential, non-essential, and supplemental\nvariables, they would have had to remove the weld, material deposited using Welding Procedure\n106 LT, re-bevel the pipes, and re-weld the joint.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n§ 195.214 by failing to ensure that welding was performed by ","truncated":true,"body_characters":55433}