{"operation":"document","citation":"CPF 420165003","title":"WESTERN REFINING LOGISTICS, LP — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2016-03-14","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-420165003.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-420165003.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-420165003","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/420165003","body":"Notice of Probable Violation involving WESTERN REFINING LOGISTICS, LP. PHMSA's enforcement data identifies the cited regulation as 195.402(a). The case was opened on 2016-03-14 and is reported as closed as of 2016-12-13. Proposed civil penalty: $106,500. Assessed civil penalty: $106,500. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n420165003_Final Order_12012016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165003/420165003_Final%20Order_12012016.pdf\n\n420165003_Final Order_12012016_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165003/420165003_Final%20Order_12012016_text.pdf\n\n420165003_NOPV PCP_03142016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165003/420165003_NOPV%20PCP_03142016.pdf\n\n420165003_NOPV PCP_03142016_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165003/420165003_NOPV%20PCP_03142016_text.pdf\n\n420165003_Operator Response to Notice_04142016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165003/420165003_Operator%20Response%20to%20Notice_04142016.pdf\n\n420165003_Final Order_12012016_text.pdf\n\nDecember 1, 2016\nMr. Jeff A. Stevens\nChief Executive Officer\nWestern Refining Pipelines, LLC\n1250 W. Washington Street\nTempe, Arizona 87413\nRe: CPF No. 4-2016-5003\nDear Mr. Stevens:\nEnclosed please find the Final Order issued in the above-referenced case. It makes a finding of\nviolation and assesses a civil penalty of $106,500. The penalty payment terms are set forth in the\nFinal Order. This enforcement action closes automatically upon receipt of payment. Service of\nthe Final Order by certified mail is deemed effective upon the date of mailing, or as otherwise\nprovided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nActing Associate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. R. M. Seeley, Director, Southwest Region, OPS\nMr. Leonard Bloom, Director of Pipelines, Western Refining Pipeline, LLC, 111 County\nRoad 4990, Bloomfield, NM 87413\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 Pipeline, LLC, ) CPF No. 4-2016-5003\na subsidiary of Western Refining Inc. )\n)\nRespondent. )\n____________________________________)\nFINAL ORDER\nOn April 15, 2015, Western Refining Pipeline, LLC (Western or Respondent) experienced a\ncrude oil release in Eddy County, New Mexico. As a result of the release, a representative of the\nPipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety\n(OPS), pursuant to 49 U.S.C. § 60117, conducted an accident investigation of Western’s\nfacilities and records. Western, a wholly owned subsidiary of Western Refining, Inc., operates\napproximately 260 miles of onshore crude oil and highly volatile liquid pipelines in Texas and\nNew Mexico.1\nAs a result of the investigation, the Director, Southwest Region, OPS (Director), issued to\nRespondent, by letter dated March 14, 2016, a Notice of Probable Violation and Proposed Civil\nPenalty (Notice), which also included a warning item pursuant to 49 C.F.R. § 190.205. In\naccordance with 49 C.F.R. § 190.207, the Notice proposed finding that Western had violated 49\nC.F.R. §195.402(a) and proposed assessing a civil penalty of $106,500 for the alleged violation.\nThe warning item required no further action, but warned the operator to correct another probable\nviolation or face possible enforcement action.\nWestern responded to the Notice by letter dated April 14, 2016 (Response). Western did not\ncontest the allegation of violation but provided an explanation of its actions and requested that\nthe proposed civil penalty be reduced. Respondent did not request a hearing and therefore has\nwaived its right to one.\nFINDING OF VIOLATION\nIn its Response, Western did not contest the allegation in the Notice that it violated 49 C.F.R.\nPart 195, as follows:\n1 Pipeline Safety Violation Report (Violation Report), (Mar. 14, 2016) (on file with PHMSA), at 1.\n\n\n\nCPF No. 4-2016-5003\nPage 2\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.402, which states in\nrelevant part:\n§ 195.402 Procedural Manual for Operations and Maintenance, and\nEmergencies.\n(a) General. Each operator shall prepare and follow for each pipeline\nsystem a manual of written procedures for conducting normal operations and\nmaintain activities and handling abnormal operations and emergencies.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.402(a) by failing to follow its 16”\nand 12” Tex New Mex X Crude Oil Fill Plan, which was prepared as a requirement of Sections\n7.3.1 through 7.3.1.3.9 of its written Operations and Maintenance Procedures. Specifically, the\nplan required all pumping of oil and filling of the pipeline to take place only during daylight\nhours. However, Western failed to follow its plan by allowing the pumping of oil and filling of\nthe pipeline to take place at all hours of the day. Western disclosed during a conference call with\nOPS on July 15, 2015, that the line fill process was ongoing for 24 hours of the day, comprising\nof 12 hour shifts.2 In addition, Western’s control room communication logs and the extended\ncontrol room logs showed that line fill operation continued on during daylight and nighttime\nhours.3\nWestern’s failure to follow its plan eventually contributed to the crude oil release on April 15,\n2015, in which its pipeline was overfilled and product was released from a frac tank in the Tee\nStation in Eddy County, New Mexico.\nIn its Response, Western did not contest the facts of the alleged violation as set forth in the\nNotice. Accordingly, based upon a review of all of the evidence, I find that Respondent violated\n49 C.F.R. § 195.402(a) by failing to follow its 16” and 12” Tex New Mex X Crude Oil Fill Plan,\nwhich required all pumping of oil and filling of the pipeline to take place only during daylight\nhours.\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.4 In determining the amount of a civil penalty under 49 U.S.C.\n2 Violation Report at 4.\n3 Id.\n4 On June 30, 2016, PHMSA adjusted the maximum penalties for inflation (81 Fed. Reg. 42564). Pursuant to\n§ 190.223, any person found to have committed a violation on or after August 1, 2016, is subject to an\n\n\n\nCPF No. 4-2016-5003\nPage 3\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 $106,500 for the violation cited above.\nItem 1: The Notice proposed a civil penalty of $106,500 for Respondent’s violation of 49\nC.F.R. § 195.402(a), for failing to follow its 16” and 12” Tex New Mex X Crude Oil Fill Plan,\nwhich required all pumping of oil and filling of the pipeline to take place only during daylight\nhours. Although Western did not contest the facts surrounding the alleged violation in the\nNotice, it did assert that the proposed civil penalty was excessive. In its Response, Western\npresented the following six mitigating arguments: (1) federal pipeline safety regulations do not\nprohibit pipeline filling activities from occurring during nighttime hours; (2) the April 15, 2015\noverfill would have occurred even if the filling of the pipeline occurred during daylight hours\nconsistent with Western’s fill procedures; (3) Western revamped its training procedures and\nretrained its personnel to ensure compliance with all its written procedures; (4) Western has only\nhad one prior violation within the past five years and this is not a repeat violation; (5) the overfill\noccurred due to the fault of a contractor, not a Western employee; and (6) the crude oil release\noccurred on the last day of a three-month filling project and at no other time during the three-\nmonth period did an overfill occur. In light of these mitigating factors, Western requested a\nreduction in civil penalty from $106,500 to $45,000.\nWhile I acknowledge and appreciate Western’s willingness to take corrective measures\nfollowing the crude oil release and the issuance of the Notice, I do not find these actions nor\nWestern’s mitigating arguments to be sufficiently compelling to negate Western’s failure to\ncomply with § 195.402(a), a requirement that was clearly violated. Furthermore, I find\nWestern’s failure to follow its written pipeline filling procedures only increased the severity of\nthe crude oil release on April 15, 2015. In particular, Western personnel, who were onsite at the\ntime of the release, were not able to see the overflow on the frac tank in the dark, which\ninevitably contributed to the amount of oil that was released.5 Additionally, I concur with\nWestern that it has only had one prior violation of the federal pipeline safety regulations in the\npast five years. The finding of violation in this Final Order has not been categorized as a repeat\nviolation. This information has already been factored into the proposed penalty.6 Finally,\nWestern argues the overfill and subsequent crude oil release was the fault of a contractor,\nhowever, I note that the contractor was performing operation duties on the pipeline and the\nadministrative civil penalty not to exceed $205,638 for each violation for each day the violation continues, with the\nmaximum administrative civil penalty not to exceed $2,056,380 for any related series of violations.\n5 Violation Report at 8.\n6 Id. at 2, 5.\n\n\n\nCPF No. 4-2016-5003\nPage 4\nincident occurred on a pipeline facility owned and operated by Western.7\nAccordingly, having reviewed the record and considered the assessment criteria, I assess\nRespondent a civil penalty of $106,500 for violation of 49 C.F.R. § 195.402(a).\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 $106,500.\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, 6500 S\nMacArthur Blvd., Oklahoma City, Oklahoma 79169. The Financial Operations Division\ntelephone number is (405) 954-8845.\nFailure to pay the $106,500 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.\nWARNING ITEM\nWith respect to Item 2, 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. § 195.402(a) (Item 2) ─ Respondent’s alleged failure to follow its\nwritten Operations and Maintenance Manual Section 3.2.5 and report an accident\nthat occurred on its facility within one hour of discovery.\nIn its Response, Western stated that it had retrained its personnel to follow all written\nprocedures, including procedures that require reporting of an accident within one hour of\ndiscovery. Western considers this step to retrain personnel will ensure that such a failure to\nfollow procedures does not occur again.\nIf OPS finds a violation of this item following a subsequent accident or incident, Respondent\nmay be subject to future enforcement action.\n7 See 49 C.F.R. 195.10 (stating that “An operator may make arrangements with another person for the performance\nof any action required by this part. However, the operator is not thereby relieved from the responsibility for\ncompliance with any requirement of this part.”)\n\n\n\nCPF No. 4-2016-5003\nPage 5\nUnder 49 C.F.R. § 190.243, Respondent may submit a petition for reconsideration of this Final\nOrder to the Associate Administrator for Pipeline Safety, PHMSA, 1200 New Jersey Avenue SE,\nEast Building, 2nd Floor, Washington, D.C. 20590, no later than 20 days after receipt of the\nOrder by Respondent. Any petition submitted must contain a statement of the issue(s) and meet\nall requirements of 49 C.F.R. § 190.243. The filing of a petition automatically stays the payment\nof any civil penalty assessed. The other terms of the order, including any corrective action,\nremain in effect unless the Associate Administrator, upon request, grants a stay.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\nDecember 1, 2016\n___________________________________ _________________________\nAlan K. Mayberry Date Issued\nActing Associate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":14007}