{"operation":"document","citation":"CPF 420165001","title":"PLAINS PIPELINE, L.P. — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2016-01-06","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.442(a), 195.442(c)(5), 195.442(c)(6)(i).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-420165001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-420165001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-420165001","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/420165001","body":"Notice of Probable Violation involving PLAINS PIPELINE, L.P.. PHMSA's enforcement data identifies the cited regulations as 195.442(a),  195.442(c)(5),  195.442(c)(6)(i). The case was opened on 2016-01-06 and is reported as closed as of 2017-03-27. Proposed civil penalty: $190,000. Assessed civil penalty: $184,300. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n420165001_Final Order_03022017.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165001/420165001_Final%20Order_03022017.pdf\n\n420165001_Final Order_03022017_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165001/420165001_Final%20Order_03022017_text.pdf\n\n420165001_NOPV PCP_01062016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165001/420165001_NOPV%20PCP_01062016.pdf\n\n420165001_NOPV PCP_01062016_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165001/420165001_NOPV%20PCP_01062016_text.pdf\n\n420165001_Operator Response to Notice_02112016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165001/420165001_Operator%20Response%20to%20Notice_02112016.pdf\n\n420165001_Final Order_03022017_text.pdf\n\nMarch 2, 2017\nMr. Greg Armstrong\nChairman and CEO\nPlains Pipeline, LP\n333 Clay Street, Suite 1600\nHouston, TX 77002\nRe: CPF No. 4-2016-5001\nDear Mr. Armstrong:\nEnclosed please find the Final Order issued in the above-referenced case. It makes a finding of\nviolation and assesses a reduced civil penalty of $184,300. The penalty payment terms are set\nforth in the Final Order. This enforcement action closes automatically upon receipt of payment.\nService of 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 M. Seeley, Director, Southwest Region, OPS\nMr. William Dean Gore Jr., Managing Director, Environmental and Regulatory\nCompliance, Plains Pipeline, LP\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)\nPlains Pipeline, LP, ) CPF No. 4-2016-5001\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nFrom January to August 2015, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline\nand Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),\nconducted an investigation of an accident involving the pipeline system operated by Plains\nPipeline, LP (Plains or Respondent) in Midland, Texas. Respondent is a subsidiary of Plains All\nAmerican Pipeline, LP, and employs a variety of owned and long-term leased physical assets\nthroughout the United States and Canada, including approximately 17,800 miles of active crude\noil pipelines, natural gas liquid pipelines, and gathering systems.1\nThe investigation arose out of a release of 500 barrels of crude oil from Plains’ Mesa to Basin\n12” pipeline on January 1, 2015. The release was the result of a pipeline failure initiated from a\ndent caused by outside force damage incurred during a construction project that lasted from\nAugust to October 2014.2\nAs a result of the investigation, the Director, Southwest Region, OPS (Director), issued to\nRespondent, by letter dated January 6, 2016, a Notice of Probable Violation and Proposed Civil\nPenalty (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that\nPlains had violated 49 C.F.R. § 195.442, and proposed assessing a civil penalty of $190,000 for\nthe alleged violation.\nPlains responded to the Notice by letter dated February 11, 2016 (Response). The company\ncontested the allegation of violation, offered additional information in response to the Notice,\nand requested that the proposed civil penalty be reduced or eliminated. Respondent did not\nrequest a hearing and therefore has waived its right to one.\n1 Pipeline Safety Violation Report (Violation Report), (January 6, 2016) (on file with PHMSA), at 1.\n2 Failure Analysis of Mesa to Basin 12-3/4 inch Pipeline, Final Report, Stress Engineering Services, Inc. (February\n20, 2015).\n\n\n\nCPF No. 4-2016-5001\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. § 195.442, which states in\nrelevant part:\n§ 195.442 Damage prevention program.\n(a) Except as provided in paragraph (d) of this section, each operator of a buried\npipeline must carry out, in accordance with this section, a written program to\nprevent damage to that pipeline from excavation activities. For the purpose of this\nsection, the term “excavation activities” includes excavation, blasting, boring,\ntunneling, backfilling, the removal of above-ground structures by either explosive\nor mechanical means, and other earthmoving operations.\n(b) . . . .\n(c) The damage prevention program required by paragraph (a) of this section\nmust at a minimum:\n(1) . . . .\n(5) Provide for temporary marking of buried pipelines in the area of excavation\nactivity before, as far as practical, the activity begins.\n(6) Provide as follows for inspection of pipelines that an operator has reason to\nbelieve could be damaged by excavation activities:\n(i) The inspection must be done as frequently as necessary during and after the\nactivities to verify the integrity of the pipeline. . . .\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.442 by failing to carry out its\nwritten program to prevent damage to the pipeline from excavation activities. Specifically, the\nNotice alleged that Plains failed to carry out its written Damage Prevention Program,3 and failed\nto follow its Pipeline Excavation/Ditching and Backfill Procedure4 on four separate occasions.\nOn August 14, 2014, Strike Construction, LLC (Strike) notified the one-call center regarding a\nplanned construction project for Plains (Sunrise Project) in the area of Plains’ Mesa to Basin\npipeline.5 The one-call operator issued the ticket with an erroneous location instruction.6 Plains’\nMesa office received the one-call ticket and the Mesa line locator marked the pipelines in\naccordance with the ticket.7 Plains’ Basin office did not receive a one-call ticket.8 Plains Basin\n3 Plains Operations and Maintenance Procedures Manual, Appendix C.\n4 Plains All American Pipeline, LP, Doc No. PAALP-ENG-SPC-PRW-042.\n5 Violation Report, at 5.\n6 Response, at 2.\n7 Id.\n8 Id.\n\n\n\nCPF No. 4-2016-5001\nPage 3\nfacility is managed by Plains Pipeline, LP and Plains Mesa facility is managed by Plains\nMarketing, LP.9 The Sunrise Project was set to begin August 18, 2014. The Mesa to Basin\npipeline was not marked until September 5, 2014, when the Basin District Manager noticed work\nin the vicinity and had a staff member mark the line.10 The Sunrise Project ended on October 17,\n2014.11 Plains’ failure to follow its procedures resulted in outside force damage to the Mesa to\nBasin pipeline, which was dented in the excavation activities. This third-party damage\nultimately led to the failure and release of 500 barrels of crude oil from Plains’ Mesa to Basin\n12” pipeline on January 1, 2015.12\nThe four separate occasions where it is alleged that Plains failed to carry out its Damage\nPrevention Program and failed to follow its Pipeline Excavation/Ditching and Backfill Procedure\nwere as follows:\n1. The Notice alleged that Plains failed to carry out its written Damage Prevention Program\nand failed to follow its Pipeline Excavation/Ditching and Backfill Procedure when it failed to\nprovide temporary marking of its buried Mesa to Basin pipeline upon receipt of an initial one-\ncall ticket on August 14, 2014.\nIn its Response, Plains contended that personnel complied with the written Damage Prevention\nProgram. Plains stated that the Plains Basin and Mesa facilities are managed by two different\nentities under Plains All American Pipeline, LP, and each facility has its own line locator staff\nand areas of responsibility when responding to a one-call ticket. Respondent further stated that\nwhen Strike made the initial one-call dig request, the one-call operator issued the ticket with a\nlocation error. Not knowing that the Basin line locator personnel did not receive the same or\ndifferent ticket, the Mesa line locator personnel followed the orders and instructions for the ticket\nreceived.\nThere is no dispute that the Plains Basin and Plains Mesa facilities are managed by separate\nentities; however, both entities utilize the same damage prevention procedures. Additionally, the\none-call ticket positive responses for both lines, which informed the excavator that the lines were\nmarked, directed the requestor to contact the same entity – Plains All American Pipeline – with\nany questions. Plains’ Damage Prevention Program requires its District Office to “be\nresponsible for all activities involved with excavation notices including receiving the notice,\nresearching the notice, dispatching personnel for temporary marking and inspection and\nmaintaining the documentation.”13 Respondent admitted that the Mesa line locator determined\n9 Response, at 2.\n10 Id.\n11 Violation Report, at 9.\n12 Failure Analysis of Mesa to Basin 12-3/4 inch Pipeline, Final Report, Stress Engineering Services, Inc. (February\n20, 2015).\n13 Plains Operations and Maintenance Procedures Manual, Appendix C, Damage Prevention Program, at 3.\n\n\n\nCPF No. 4-2016-5001\nPage 4\nthe location on the one-call ticket was incorrect; however, there has been no evidence that the\nDistrict Office dispatched personnel to mark the Mesa to Basin line.\nWith respect to the first allegation, I find that Plains failed to carry out its written Damage\nPrevention Program and failed to follow its Pipeline Excavation/Ditching and Backfill Procedure\nwhen it failed to provide temporary marking of its buried Mesa to Basin pipeline upon receipt of\nan initial one-call ticket on August 14, 2014.\n2. The Notice alleged that Plains failed to carry out its written Damage Prevention Program\nwhen it failed to immediately correct the incorrect information on the one-call ticket. Plains also\nallegedly failed to refresh its line markings after marking the line on September 5, 2014.\nPlains also asserted that when its Mesa line locator received the one-call ticket coordinates, he\ndrove to the location and contacted Strike. The locator notified Strike that the location being\nmarked in accordance with the one-call ticket instructions was different than the construction site\nlocation. Plains argued that under state damage prevention requirements, it is the excavator’s\nresponsibility to notify the one-call operator of any incorrect information on the ticket.14\nAdditionally, Respondent stated that on September 5, 2014, the Basin District Manager noticed\nthe work in the vicinity of the 12” pipeline without visible markers. Plains claimed that out of an\nabundance of caution, a Basin staff member marked the line, and because this marking was not\ninitiated through a one-call program, correction of the location and subsequent renewals did not\ntrigger re-marking the pipeline.\nThe state damage prevention requirements cited by Respondent do not excuse the operator from\nfollowing its damage prevention program. Plains’ Damage Prevention Program requires that it\n“take necessary steps to correct or prevent unsafe conditions” when there is third party\nconstruction activity discovered without prior approval or without a one-call notification. Plains\ndiscovered that the one-call ticket location was incorrect, but did not take the necessary steps to\ncorrect the information to prevent unsafe conditions. Additionally, even though Plains marked\nthe Mesa to Basin line on September 5, 2014, Plains knew the construction activity was ongoing,\nyet did not take necessary steps to prevent unsafe conditions, such as re-marking the line.\nWith respect to the second allegation, I find that Plains failed to carry out its written Damage\nPrevention Program when it failed to take necessary steps to correct or prevent unsafe\nconditions. Plains did not immediately correct the incorrect information on the one-call ticket\nand failed to refresh its line markings after marking the line on September 5, 2014.\n3. The Notice alleged that Plains failed to follow its Pipeline Excavation/Ditching and Backfill\nProcedure when it failed to determine the depth of cover over its buried pipeline and failed to\nshare the information with the excavator operator when marking the line on September 5, 2014.\nPlains claimed its Pipeline Excavation/Ditching and Backfill Procedure does not apply in this\ncase, but rather is intended for new construction, repair, inspection, or maintenance-type\n14 16 Tex. Admin. Code § 18.4 (Sept. 1, 2007).\n\n\n\nCPF No. 4-2016-5001\nPage 5\nexcavations. Plains further stated that there were no plans to excavate the 12” pipeline, or\nconduct a bellhole or pothole examination of the 12” pipeline because it was approximately 45\nfeet from the construction area. Plains contended prevailing industry practice is to refuse to\nmake available any depth information to the contractor or excavator. Respondent further\ncontended that while the new electronic, multi-frequency locating equipment provides quick and\nuser-friendly locating, the depth accuracy cannot be guaranteed, and will influence an excavator\nto dig unsafely.\nPlains’ Pipeline Excavation/Ditching and Backfill Procedure, Section 6 directs Plains and its\ncontractors to “[d]etermine the depth of the targeted pipe and share the information with the\nExcavator operator.” (Emphasis added). In the incident at hand, Strike’s Sunrise Project did not\ninvolve work on the Mesa to Basin line. While the 12” Mesa to Basin pipeline was within the\nconstruction area, it was not the “targeted pipe” for Strike’s construction project.\nWith respect to the third allegation, I find that Plains did not fail to follow its Pipeline\nExcavation/Ditching and Backfill Procedure in that the Mesa to Basin pipeline was not the\n“targeted pipe” as referenced in Section 6 of the Pipeline Excavation/Ditching and Backfill\nProcedure.\n4. The Notice alleged that Plains failed to carry out its written Damage Prevention Program\nwhen it failed to inspect the Mesa to Basin, 12” pipeline during the excavation activity that led to\nthe damage of the pipeline. Plains Engineering and Basin personnel were relying on a contract\nconstruction inspector to observe and inspect the pipeline excavation activities for the duration\nof the Sunrise Project (August 2014 – October 2014).\nFinally, Plains maintains it met its procedural requirements. Respondent stated that its written\nDamage Prevention Program states “[a] ‘Company representative’ must be present at all times\nduring any excavation within 10 feet of Company pipelines or above ground facilities.”\nRespondent further stated that “Company representative” is defined as a contract inspector as\nlong as said inspector is not an employee of the company performing the excavation –\nessentially, a third-party inspector representing Plains. The third-party inspector during the\nsubject excavation activities was contracted through Tulsa Inspection Service.\nThere is no disagreement that a contract construction inspector observed and inspected the\npipeline excavations activities during Strike’s project. However, there is no evidence the\nfunctions and activities that the inspector was supposed to perform, such as ensuring only hand\ntools are used within 24 inches of the pipeline, ensuring the line is supported, ensuring the\npipeline has been marked, and ensuring there is no risk to the pipeline from grading operations\nand excavation activities, were carried out on the Mesa to Basin pipeline during the excavation\nactivity.\nWith respect to the fourth allegation, I find that Plains failed to carry out its written Damage\nPrevention Program when it failed to inspect the Mesa to Basin, 12” pipeline during the\nexcavation activity that led to the damage of the pipeline.\n\n\n\nCPF No. 4-2016-5001\nPage 6\nConclusion\nIn conclusion, Plains failed to carry out its written Damage Prevention Program and its Pipeline\nExcavation/Ditching and Backfill Procedure when it did not research the notice and dispatch\npersonnel for temporary marking of the Mesa to Basin 12” pipeline, when it did not take\nnecessary steps to correct or prevent unsafe conditions, and when it failed to provide for\ninspection of the Mesa to Basin 12” pipeline during the excavation activity that led to the\ndamage of the pipeline. However, Plains did not fail to carry out its Pipeline\nExcavation/Ditching and Backfill Procedure when it allegedly failed to determine the depth of\ncover over its buried pipeline and share the information with the excavator operator.\nAccordingly, after considering all of the evidence, I find that Respondent violated 49 C.F.R.\n§ 195.442 by failing to carry out its written program to prevent damage to pipeline from\nexcavation activities on three separate occasions.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$200,000 per violation for each day of the violation, up to a maximum of $2,000,000 for any\nrelated series of violations. In determining the amount of a civil penalty under 49 U.S.C.\n§ 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; and any effect\nthat the penalty may have on its ability to continue doing business; and the good faith of\nRespondent in attempting to comply with the pipeline safety regulations. In addition, I may\nconsider the economic benefit gained from the violation without any reduction because of\nsubsequent damages, and such other matters as justice may require. The Notice proposed a total\ncivil penalty of $190,000 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $190,000 for Respondent’s violation of\n49 C.F.R. § 195.442, for failing to carry out a written damage prevention program to prevent\ndamage to pipeline from excavation activities. As discussed above, Plains presented several\narguments in favor of a penalty elimination or reduction.\nI find that, with respect to culpability, Respondent failed to take appropriate action to comply\nwith a clearly applicable requirement. When Respondent discovered the incorrect location on\nthe one-call ticket, it should have researched the notice and dispatched personnel for temporary\nmarking and inspection of the Mesa to Basin pipeline. Additionally, Strike was performing a\nconstruction project for Plains. It stands to reason that Plains should have known where the\nMesa to Basin pipeline was located in relation to the construction project and should have taken\nnecessary steps to correct or prevent unsafe conditions, per its Damage Prevention Program.\n\n\n\nCPF No. 4-2016-5001\nPage 7\nThe gravity of the violation in this case was quite serious, insofar as it was a causal factor in the\nfailure. Because of the violation, pipeline integrity was significantly compromised and resulted\nin a release of crude oil that harmed the environment by causing soil contamination.15\nPreventing damage to pipelines caused by excavation activity is an important part of operating a\npipeline safely. Pipeline operators are obligated to provide notice of their damage prevention\nprograms to excavators including information about pipeline location marking, utilizing the one-\ncall system prior to excavation activity, and what to do if the pipeline is damaged during\nexcavation. Safety is compromised when an unintended release of hazardous liquid occurs, as it\nincreases the risk of harm to the public and the environment.\nWhile I acknowledge that Plains has taken corrective actions, those actions taken after the\nviolation had already occurred do not warrant reducing the civil penalty. When considering the\ngood faith of Respondent in attempting to comply with the pipeline safety regulations, PHMSA\nonly recognizes good-faith efforts by an operator to interpret and follow the regulations prior to\nthe violation, not those after the violation.\nUpon consideration of all of Respondent’s arguments, I am unconvinced that a penalty reduction\nis warranted with respect to the three occasions of Respondent failing to follow its Damage\nPrevention Program, as described in instances 1, 2, and 4 above. I do, however, find a penalty\nreduction is warranted because Plains did not fail to follow its Pipeline Excavation/Ditching and\nBackfill Procedure, as described in instance 3 above.\nAccordingly, having reviewed the record and considered the assessment criteria for the Item\ncited above, I assess Respondent a reduced total civil penalty of $184,300.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations\n(49 C.F.R. § 89.21(b)(3)) require such payment to be made by wire transfer through the Federal\nReserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed\ninstructions are contained in the enclosure. Questions concerning wire transfers should be\ndirected to: Financial Operations Division (AMK-325), Federal Aviation Administration,\n6500 S MacArthur Blvd., Oklahoma City, Oklahoma 79169. The Financial Operations Division\ntelephone number is (405) 954-8845.\nFailure to pay the $184,300 civil penalty will result in accrual of interest at the current annual\nrate in 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.\nUnder 49 C.F.R. § 190.243, 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\n15 Violation Report, at 3.\n\n\n\nCPF No. 4-2016-5001\nPage 8\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 the Final Order by the\nRespondent, provided they contain a brief statement of the issue(s) and meet all other\nrequirements of 49 C.F.R. § 190.243. 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.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nMarch 2, 2017\n___________________________________ __________________________\nAlan K. Mayberry Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":23448}