{"operation":"document","citation":"CPF 120075001","title":"SUNOCO PIPELINE L.P. — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2007-05-15","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(a).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120075001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120075001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120075001","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120075001","body":"Notice of Probable Violation involving SUNOCO PIPELINE L.P.. PHMSA's enforcement data identifies the cited regulation as 195.402(a). The case was opened on 2007-05-15 and is reported as closed as of 2009-12-16. Proposed civil penalty: $150,000. Assessed civil penalty: $150,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120075001_Decision on the Petition for Reconsideration_10222009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120075001/120075001_Decision%20on%20the%20Petition%20for%20Reconsideration_10222009.pdf\n\n120075001_Decision on the Petition for Reconsideration_10222009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120075001/120075001_Decision%20on%20the%20Petition%20for%20Reconsideration_10222009_text.pdf\n\n120075001_FinalOrder_09022009.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120075001/120075001_FinalOrder_09022009.pdf\n\n120075001_FinalOrder_09022009_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120075001/120075001_FinalOrder_09022009_text.pdf\n\n120075001_notice letter_05152007.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120075001/120075001_notice%20letter_05152007.pdf\n\n120075001_Operator Response_12052007.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120075001/120075001_Operator%20Response_12052007.pdf\n\n120075001_FinalOrder_09022009_text.pdf\n\nSEP 02 2009\nMr. David A. Justin\nVice President, Operations\nSunoco Pipeline L.P.\n525 Fritztown Road\nSinking Spring, PA 19608\nRE: CPF No. 1-2007-5001\nDear Mr. Justin:\nEnclosed is the Final Order issued in the above-referenced case. It makes findings of violation\nand assesses a civil penalty of $150,000. The penalty payment terms are set forth in the Final\nOrder. This enforcement action closes automatically upon payment. Your receipt of the Final\nOrder constitutes service of that document under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. Byron Coy, Eastern Region Director, PHMSA\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED [7005 0390 0005 6162 5845]\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)\nSunoco Pipeline L.P., ) CPF No. 1-2007-5001\n)\nRespondent. )\n______________________________)\nFINAL ORDER\nOn November 25, 2005, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), Eastern\nRegion, investigated an incident that occurred a few days earlier at the Darby Creek Tank Farm\n(DC Tank Farm), a hazardous liquid pipeline facility operated by Sunoco Pipeline L.P. (Sunoco\nor Respondent) and located in Sharon Hill, Pennsylvania.\n1 The incident in question involved the\noverfilling and release of more than 10,000 barrels of crude oil from one of the DC Tank Farm’s\nbreakout tanks, DC-24.2\nAs a result of that inspection, the Director, Eastern Region, OPS (Director), issued to\nRespondent, by letter dated May 15, 2007, a Notice of Probable Violation and Proposed Civil\nPenalty (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that\nSunoco had committed two violations of the hazard liquid pipeline safety regulations and\nassessing the company a civil penalty of $150,000 for those violations.\n1 The DCTF is part of the Fort Mifflin Terminal Complex, a series of facilities that receive, store, and supply crude\noil to a nearby refinery in Philadelphia, Pennsylvania.\nhttp://www.reuters.com/finance/stocks/companyProfile?symbol=SXL.BE (last accessed Aug. 21, 2009).\n2 Specifically, according to the information in the case file, at 10:00 a.m. on November 22, 2005, two Sunoco\nemployees finished filling DC-24 to capacity and began to fill another tank, DC-35, with crude oil. Those\nemployees did not, however, close the “street valve” on DC-24 in making that transition. Consequently, crude oil\ncontinued to flow into and out of DC-24 for the next several hours, while Respondent’s day- and night-shift\nemployees continued to fill DC-35 and a subsequent tank, DC-3. Finally, at about 1:15 a.m. the next morning, the\namount of crude oil in DC-24 exceeded its capacity and the tank started to overflow. That condition went unnoticed\nuntil 40 minutes later, when a Sunoco employee opened an office door and observed crude oil flowing from that\ntank onto the grounds of the facility. Shortly thereafter, Respondent’s employees closed the street valve and shut\ndown DC-24.\n\n\n\n2\nprobable violations, Respondent described the steps taken by the company to prevent and\nrespond to the overflow of DC-24. The company also requested that the proposed civil penalty\nbe reduced from $150,000 to $25,000 and, if that request was not granted, that an informal\nhearing be held.\nSunoco responded to the Notice by letter dated July 2, 2007 (Response).3 Without disputing the\nOn November 14, 2007, PHMSA convened that hearing via telephone, with an attorney from the\nOffice of Chief Counsel presiding and three individuals appearing on Respondent’s behalf,\nMr. David A. Justin, Vice President of Operations, Mr. David Meadows, Manager of DOT\nCompliance, and Mr. Brad Lange, Region 1 Supervisor.\nFollowing the hearing, Sunoco submitted a Post-Hearing Brief, dated December 5, 2007 (Brief),\nand additional evidence for the record. That evidence included part of the transcript of an\nOctober 20, 2006 arbitration proceeding between Respondent and the United Steel Workers\nLocal 10-100, the union representing one of the employees involved in the November 2005\nincident.\nFINDINGS OF VIOLATION\nItems 1a and 1b of the Notice alleged that Sunoco violated 49 C.F.R. § 195.402(a), which\nstates, in relevant part:\n§ 195.402 Procedural manual for operations, maintenance, and emergencies.\n(a) General. Each operator shall prepare and follow for each pipeline system a\nmanual of written procedures for conducting normal operations and maintenance\nactivities and handling abnormal operations and emergencies. . . .\nMore specifically, Item 1a alleged that Sunoco violated § 195.402(a) by not following the DC\nTank Farm’s written procedures for “Swinging Tanks”4 and performing a “Shift Turnover.\n”5 As\nevidence of that violation, the Notice stated that Respondent’s personnel filled DC-24 to capacity\nwith crude oil on the morning of November 22, but failed to close the street valve on that tank\nbefore repeating that same process on DC-35.\nto the subsequent overflow of DC-24 at 1:15 a.m. on November 23.\n6 That failure, according to the Notice, contributed\n3 On June 21, 2007, the Director granted Sunoco’s request for an extension of the 30-day deadline for submitting a\nResponse to the Notice.\n4 Sunoco Logistics Marketing and Terminals L.P., Darby Creek Tank Farm, Operations Manual, Procedure 20,\nSwing Tanks (issued Nov. 2004).\n5 Sunoco Logistics Marketing and Terminals L.P., Darby Creek Tank Farm, Operations Manual, General Procedure\n2, Shift Turnover (issued Nov. 2004).\n6 According to Parts B and D of Procedure 20, the employees at the DC Tank Farm are required to ensure that the\nvalves on the previous tank are closed and the new tank are opened when swinging receiving tanks.\n\n\n\n3\nThe Notice also stated that Sunoco’s personnel did not discuss the status of the valve position on\nDC-24 when turning over from the day to the night shift, and that the records from the day shift\nincorrectly indicated that the valve on DC-24 was closed, not open.\n7\nFinally, the Notice stated that in a January 10, 2006 meeting, Sunoco representatives admitted\nthat the day shift operator “was busy with other activities” and “did not close [the Tank #24]\nvalve per” the company’s written procedures.\nRespondent has not disputed any of these allegations. Consequently, I find that Sunoco violated\n§ 195.402(a) by failing to “follow . . . [its] manual of written procedures for conducting normal\noperations and maintenance activities[,]”to include closing valves on breakout tanks and\nperforming shift turnovers.\nItem 1b alleged that Sunoco further violated § 195.402(a) by not following the DC Tank Farm’s\nwritten procedures for responding to high level alarms.8 In support of that allegation, the Notice\nfirst stated that Respondent’s personnel ignored an initial high level alarm, erroneously\nconsidered it to be false. The Notice also stated those employees failed to respond to a second\nalarm “because an audible component was not connected and the control monitor could only\nacknowledge [these] alarms contributed to the overflow of [Tank #24] and subsequent damage to\nthe tank.”\ndisplay tanks the operator designated as active.”9 According to the Notice, Sunoco’s “failure to\nRespondent has not disputed any of these allegations. Accordingly, I find that Sunoco violated\n§ 195.402(a) by failing to “follow . . . [its] manual of written procedures for . . . handling\nabnormal operations and emergencies[,]”to include responding to high level alarms.\nThese findings of violation will be considered a prior offense in any subsequent enforcement\naction taken against Respondent.\n7 General Procedure 2 requires, among other things, that “within [the] first hour of [a] shift change” an employee\n“[d]iscuss ongoing operations” and “entries in the ‘Operating Summary’ Report with [the] outgoing crew,” “[c]heck\nlogbooks for ongoing operations[,] . . . [v]isually check all tanks, lines, valves and pumps[,] . . . [c]heck that all\nimportant information received agrees with the logbooks.”\n8 Sunoco Logistics Marketing and Terminals L.P., Darby Creek Tank Farm, Operations Manual, Procedure 12,\nRespond to Tank High Level Alarm (issued Nov. 2004). Procedure 12 requires, among other things, that an\nemployee respond to a high level alarm by “[d]etermin[ing] which tank is in high level alarm condition and\nacknowledge[ing] [the] alarm” and then “verify[ing] the high level condition immediately” by “[g]et[ting] the gauge\non [the] tank.” Id. That procedure further states that “IF [a] high level in [the] tank exists, THEN divert [the] flow\nto another tank . . . ([i]f possible)” and “IF unable to divert [the] flow to another tank, THEN [to] notify the source\nof the flow to shutdown.” Id. Finally, the procedures requires the employee to “[s]ecure the tank” and “[g]et [the]\nclosing gauge on [that] tank and determine [the] volume of crude that must be gravitated or pumped out of the tank\nto return [the] tank to [a] normal level.”\n9 According to the transcript of the October 2006 arbitration proceeding submitted by Sunoco, a set of speakers\nintended to magnify the sound of one of the high-level alarms was inexplicably disconnected at the time of the\nincident.\n\n\n\n4\nASSESSMENT OF PENALTY\nIn determining the amount of a civil penalty, 49 U.S.C. § 60122 and 49 C.F.R. § 190.225 require\nthat I consider the following criteria: the nature, circumstances, and gravity of the violation,\nincluding adverse impact on the environment; the degree of Respondent’s culpability; the history\nof Respondent’s prior offenses; the Respondent’s ability to pay the penalty and any effect that\nthe penalty may have on its ability to continue doing business; and the good faith of Respondent\nin attempting to comply with the pipeline safety regulations. In addition, I may consider the\neconomic benefit gained from the violation without any reduction because of subsequent\ndamages, and such other matters as justice may require.\nThe Notice proposed a $100,000 civil penalty for Item 1a and a $50,000 civil penalty for Item\n1b, for a total civil penalty of $150,000. Respondent argues that these amounts are excessive and\nthat the total civil penalty should be no more than $25,000.\n10 Sunoco supported that position in\nits Response by arguing that there was nothing “else it could have done to prevent the [i]ncident\nshort of having a supervisor present 24/7 to watch over the employees’ tasks, which is . . .\nunworkable.”11 Indeed, Sunoco observed that the culpable employees had received all the\ntraining needed to safely and effectively operate DC-24, but simply ignored that training and the\nDC Tank Farm’s operating procedures on the day and night in question.\n12 Sunoco also noted\nthat it disciplined those employees, one of whom received a suspension without pay and the\nother of whom was terminated before obtaining reinstatement via arbitration, that each of them\nunderwent additional training and requalification on the procedures at issue, and that their role in\ncausing the overflow of DC-24 is noted in the company’s personnel records.\n13\nSunoco similarly argued in its Brief that the company had all of the procedures required to safely\noperate and maintain the DC Tank Farm, and that the personnel responsible for the overfilling of\nDC-24 received proper training on the execution of those procedures. Respondent also noted\nthat the release only had a minimal impact on the environment and did not affect the public, a\nresult of the successful mitigation provided by the company’s facilities and procedures for spill\ncontainment. Sunoco further stated that the company cooperated with PHMSA during the\ninvestigation, disciplined the culpable employees, and derived no economic benefit from the\nincident. In fact, Respondent noted that it actually spent some $250,000 in responding to and\nremediating this incident. Lastly, the company reiterated that “two properly trained and qualified\nemployees simply chose to ignore Sunoco Pipeline’s manuals and procedures and their own\nextensive training and qualifications.”14\n10 Response at 1-2.\n11 Response at 2.\n12 Response at 1.\n13 Id.\n14 Brief at 1-2.\n\n\n\n5\nI do not find Respondent’s arguments for reducing the proposed civil penalty persuasive. As the\noperator of the DC Tank Farm, Sunoco is responsible for ensuring that its employees comply\nwith all applicable PHMSA regulations. That includes the requirement that Respondent’s\npersonnel “conduct[] normal operations and maintenance activities and handl[e] abnormal\nexistence of such procedures and provision of employee training on their proper execution does\nnot satisfy the former obligation. To the contrary, Sunoco has a separate and distinct duty to\nensure that its employees actually implement its written procedures when performing normal\noperations and maintenance activities and responding to abnormal operations and emergencies.\nTherefore, even if Respondent developed and provided adequate training on the procedures in\nquestion, that fact alone does not preclude an appropriate civil penalty for its failure to ensure\nthat the personnel at the DC Tank Farm actually followed those procedures on November 22 and\n23, 2005.\noperations and emergencies” per the terms of its written procedures.15 Moreover, the mere\nLikewise, while relevant in terms of deterring future violations, Sunoco’s decision to discipline\nand retrain the offending employees is not a compelling basis for reducing the civil penalty in\nthis case. Such post-hoc measures do not change the fact that an unauthorized release of\nhazardous liquids occurred at the DC Tank Farm and that Respondent, as the operator of that\nfacility, is ultimately responsible for that violation. Similarly, the fact that Sunoco had alarms\nand other equipment for detecting abnormal operations at the time of the incident does not\nwarrant a reduction in this civil penalty. The violations here relate solely to the actions of\nRespondent’s employees, not the presence or operability of its alarms and equipment.\nFurthermore, contrary to Sunoco’s arguments, a 10,000-barrel-plus release of crude oil is an\nenvironmentally significant event, a fact best demonstrated by the large volume of such a spill\nand the costs associated with its remediation.\nMore importantly, PHMSA considered the mitigating factors identified by Sunoco in calculating\nthe civil penalty in this case,\n16\nand the total amount proposed is consistent with the penalties\n15 49 C.F.R. § 195.10 (noting that “[a]n operator may make arrangements with another person for the performance\nof any action required by [Part 195, Title 49, Code of Federal Regulations, but that] . . . the operator is not thereby\nrelieved from the responsibility for compliance with any requirement of [Part 195]”).\n16 Pipeline Safety Violation Report (Violation Report), PHMSA, C.P.F. 1-2007-5001 (signed May 17, 2007) (on\nfile). Indeed, the Violation Report confirms that PHMSA fully understood and considered the totality of the\ncircumstances presented, including the mitigating factors identified by Sunoco, when calculating the proposed civil\npenalty amounts in this case. For example, the Violation Report notes under “Civil Penalty Assessment\nConsiderations” for Item 1A that Sunoco “appears to have a thorough safety program and is traditionally\nrespons[ive] to identified compliance and safety issues.” Id. at 4. It further notes that Sunoco “conducted a very\nextensive accident investigation to determine that employees did not follow procedures . . . [and had] initiated\nchanges to negate the need to issue a compliance order.” Id. Similarly, the Violation Report notes in the “Civil\nPenalty Assessment Considerations” for Item 1B that Sunoco’s “procedures were clear about how personnel are\nrequired to monitor and react to alarms conditions,” that Respondent “[wa]s making significant changes in [its]\noperating procedures . . . [and] to [its] control room technology to make equipment status and alarms more\napparent,” and that it “[wa]s implementing several procedural changes to improve [its] response to emergencies and\nconsistency at each of the operator’s eight other manned operating facilities in the eastern region,” thereby\n“negat[ing] the need to issue a compliance order.” Id. at 6. The Violation Report also contains a thorough and\naccurate description of the November 2005 incident, including the fact that Sunoco lost $7,800 worth of crude oil,\nincurred $28,800 in property damage, and expended more than $211,100 in other remediation costs. Id. at 3. In\nother words, Sunoco’s bases for requesting a reduction in the civil penalty are already reflected in the original\namounts proposed in the Notice.\n\n\n\n6\nassessed for analogous violations involving spills of similar magnitude. For example, PHMSA\nrecently imposed a $105,000 civil penalty for a violation that resulted in a spill of 9,030 gallons\nof oil.\n17 Like Sunoco, the operator in that case “requested a reduction or elimination of the civil\npenalty based upon: (1) the company's prompt response to the accident, including cleanup; (2)\nthe corrective actions it initiated after the accident to prevent similar accidents; (3) the minimal\nimpact that the accident had on public safety and the environment; (4) its cooperative response to\nunconvincing, however, stating:\nthe OPS investigation; and (5) its compliance history.”18 PHMSA found those arguments\nThe corrective actions to which Respondent refers . . . were taken after the\naccident had already occurred. It is true that PHMSA considers any “good faith”\nefforts in calculating and assessing civil penalties, but only for those actions that\nan operator has taken in a reasonable attempt to achieve compliance. Once an\naccident has occurred or a violation has been discovered, PHMSA would expect\nany prudent and responsible operator to cooperate in preventing another accident\nor violation.\nWith respect to Respondent's contention that the release's impacts on public safety\nand the environment were minimal, I would note that virtually any release of\nhazardous liquids from a pipeline can result in serious risk of injury. In this case,\nthe pipeline ruptured and released approximately 9,030 gallons of crude oil into\nthe environment. Respondent is fortunate that no greater environmental harm or\nphysical injury occurred. The record indicates that at least one . . . employee was\non site at the time of the incident and therefore could have been injured.19\nI find this reasoning applicable and extremely persuasive here.\nFor these reasons, I find that a civil penalty of $100,000 for Item 1a and $50,000 for Item 1b is\njustified by the penalty assessment criteria. Accordingly, I assess Respondent a total civil\npenalty of $150,000.\nPAYMENT OF PENALTY\nPayment of the $150,000 civil penalty must be made within 20 days of service. Federal\nregulations (49 C.F.R. § 89.21(b)(3)) require this payment be made by wire transfer, through the\nFederal Reserve Communications System (Fedwire), to the account of the U.S. Treasury.\n17 In the Matter of Enbridge Pipelines LLC-North Dakota, C.P.F. No. 3-2007-5022 (Jun. 2, 2009) (finding that\noperator violated 49 C.F.R. § 194.406(b) by failing to provide an adequate pressure relief device on an isolated\npipeline segment which later failed).\n18Id.\n19 Id.\n\n\n\n7\nDetailed instructions are contained in the enclosure. Questions concerning wire transfers should\nbe directed to: Financial Operations Division (AMZ-341), Federal Aviation Administration,\nMike Monroney Aeronautical Center, P.O. Box 269039, Oklahoma City, OK 73125; (405) 954-\n8893.\nFailure to pay the $150,000 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 United\nStates District Court.\nUnder 49 C.F.R. § 190.215, Respondent has a right to submit a petition for reconsideration of\nthis Final Order. The petition must be received within 20 days of Respondent’s receipt of this\nFinal Order and must contain a brief statement of the issue(s). The terms of the order, including\nany required corrective action and amendment of procedures, shall remain in full force and effect\nunless the Associate Administrator, upon request, grants a stay. The terms and conditions of this\nFinal Order shall be effective upon receipt.\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety\n\n120075001_notice letter_05152007.pdf\n\nU5. Deportment\nof Tronsporlolion\nPlpelln€ ond\nHszElclour moteliolt sotw\nAdmlnlrttdlon\n409 3rd Stree! SW' Suite 300\nWashington, DC 2OO24\nNOTICE OF PROBABLE VIOLATION\nand\nPROPOSED CIVIL PENALTY\ncERTrFrEp MArL - RETURN RESETPT REOTIESTED\nMay 15,2007\nMr. David A. Justin\nVice President, Operations\nSunoco Pipeline L.P.\n525 Fritztown Road\nSinking Spring PA 19608\nCPF No. 1-2007-5001\nDear Mr. Justin:\nOn Novembet 25,2005, a representative of the Pipeline and Hazardous Materials Safety\nAdminisnation (PHMSA) pursuant to Chapter 601 of 49 United States Code inspected the site of\nthe Novenrber 22,2005 insident reported by Sunoco Ingistics at its Darby Creek Tank Farm\nfacility located in Sharon Hill, PA.\nAs a result of the inspection, it appears that you have committed aprobable violation of the\nPipeline Safety Regulations, Title 49, Code of Federal Regulations. The items inspected and the\nprobable violation is:\n\n\n\nl. $195.402 Procedural manual for operations, maintensnce' and emergencies'\na) General Each operator shall prepare and follow for each pipeling I manual\nof written procedures for conducting operetions and maintenance activities\nand for emergency response.\nla. On November 22,2A05 Sunoco Logistics operations personnel did not\nfollow Operations Procedure 20 - Valve Closure, which specifies that\n\"...b\"fo; swinging ta arpther tank get the closing gauge on previous tank\nand enter on work sheets. \"\nFailure to follow the procedure to ensure closure of the sheli valve fot\nDarby Creek (DC) Tank #24 prior to swinging to another tank after it was\ntaken off line contributed to the overflow of the tank. Also, there was a\nfailure by operating personnel to discuss the status of valve positions\nduring the change between the day and night shifts as required by\ncompany pfocedures. The closrrre of the valve for DC'24 was indicated\non the worksheet.\nAccording to Sunoco Logistics re,presentatives dr.ring a meeting on this\nmatter held on January t0, Z00O the \"fd Operator for the day shift was\nbusy with other aetivities, did not close Dc-24 frank #24) value per\nOperation Procedures 20- Sunoco Logistics O&M Procedure$ are also\nevidence of the probable violation.\nlb. On November 23,2005 Sunoco Logistics operating personnel did not\nfollow Operations Procedure 12 which specifies that: \"all high level alarms\nmust receiv e immediate attention.' \"\nSunoco Logistics operation personnel could not determine that DC-24 was\nfilling and an initial alann was considered {alse. Operator personnel\ncontinued with other responsibilities during the initial alarm. A second\nalarm was not acted upon because an audible component was not\nconnected and the contol monitor could only display tanks the operator\ndesignatd as active. The systern was set to acknowledge multiple alarms.\nAlso, Sunoco Logistic operation personn€l could not monitor the higlt\nflow rate nDC-24 ot the rate of flow in and out of DC-24.\nThe failure to acknowledge the alarms contributed to the ovefflow of\nDC-24 and subsequent damage to the tank.\n\n\n\nIn addition to the procedures already cited, further evide,lrce of the\nprobable violation was supported dwing the review of the following\nSunoco Logistics' documentation:\no routine facility checks report,\nr leak detection systern,\no overflow incident timeline report,\no pump sheet log,\nr shift change log\n. daily product inventory,\no vessel transfer sheet,\no tank monitoring log at the time of the incident\nr O & M Procedure 2: Shift Turnover,\no O & M Procedure 6: Tank Overflow\nA review of plant records verified that the valve for DC-24 was noted as\nclosed, wherrin fact it was left in the open position and not recognized by\noperating personnel.\nProposed Civil Penalty\nUnder 49 United States Code $ 60122, you are subject to a civil penalty not to exceed $100,000\nfor each violation for each day the violation persists up to a maximum of $ I ,000,000 for any\nrelated series of violations. The Compliance Officer has reviewed the circumstances and\nsupporting docume,lrtation involved in the above probable violation and has recommended that\nyou be preliminarily assessed a civil penalty of $ 150,000 as follows:\nItemnumhp.t\nla\n1b\nPENALTY\n$100,000\n$50.000\nResponse to this Notice\nEnclosed as part of this Notice is a document entitled Response OTttions for Pipeline Operators\nin Compliance Proceedings. Please refer to this document and note the response options. Be\nadvised that all material you submit in response to this enforcement action is subject to being\nmade publicly available. If you believe that any portion of your responsive material qualifies for\nconfidential treatment under 5 U.S.C. 552(b), along with the complete original document you\nmust provide a second copy of the document with the portions you beliwe quali$r for\nconfidential ffeatnent redactd and an explanation of why you believe the redacted infonnation\nqualifies for confidential treatment under 5 U.S.C. 552(b). If you do not respond within 30 days\nof receipt of this Notice, this constitutes a waiver of your rigtrt to contest the allegations in this\nJ\n\n\n\nNotice and authorizes the Associate Administrator for Pipeline Safety to fi.nd facts as alleged in\nthis Notice without furlter notice to you and to issue a Final Order.\nIn your correspondence on this matter, please refer to CPF 1-2007-5001 and for each document\nyou submi! please provide a copy in electronic format whenever possible'\nSincerely,\n/\ne,.. Vat\\- L-v\\>'t t/\nII LY\nBfron Coy, Jr.\nDirector, Eastern Region\nPipetine and Hazardous Materials Safety Administration\nEnclosures: Resynnse Optiowfor Pipeline Operators in Compliance Proceedings\n4\n\n120075001_Decision on the Petition for Reconsideration_10222009_text.pdf\n\nOCT 22 2009\nVIA CERTIFIED MAIL – RETURN RECEIPT REQUESTED [7004 2510 0003 6895 8778]\nMr. David Justin\nVice President, Operations\nSunoco Logistics Partners, L.P.\n1735 Market Street Ste LL\nPhiladelphia, PA 19103-7538\nRE: CPF No. 1-2007-5001\nDear Mr. Justin:\nEnclosed is this agency’s decision on the Petition for Reconsideration filed by your company in\nthe above-referenced case. For the reasons stated in the decision, the Petition is denied. The\npenalty payment terms are set forth in the Final Order. This enforcement action closes\nautomatically upon payment. Service of this decision by certified mail is complete upon mailing\nunder 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure:\ncc: Mr. Byron Coy, Director, Eastern Region, PHMSA\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)\nSunoco Pipeline L.P., ) CPF No. 1-2007-5001\n)\nPetitioner. )\n______________________________)\nDECISION ON PETITION FOR RECONSIDERATION\nIn a September 2, 2009 Final Order, I found that Sunoco Pipeline L.P. (Sunoco or Petitioner) had\nfailed in two respects to “follow” its “manual of written procedures for conducting normal\noperations and maintenance activities and handling abnormal operations and emergencies.\n”1 I\nassessed the company a total civil penalty of $150,000 for those violations.\n2\nOn September 15, 2009, Sunoco filed a Petition for Reconsideration of that Final Order.3 In its\nPetition, Sunoco asked for permission to review the presiding official’s recommendation for final\naction in this matter. Sunoco also offered three substantive arguments in support of its request\nfor reconsideration of the Final Order, namely, that the Order imposed a separate and distinct\nduty upon Petitioner to ensure that its employees actually follow the company’s written\nprocedures, a duty that has no basis in the pipeline safety regulations; that the imposition of a\ncivil penalty is not supported by the facts of this case or the law; and that certain mitigating\nfactors warrant reduction in the amount of the civil penalty assessed in the Final Order.\n4\nFor the reasons stated below, I am denying Sunoco’s request to review the presiding official’s\nrecommendation for final action in this case, rejecting its substantive arguments as repetitious\nand unpersuasive, and affirming the September 2, 2009 Final Order without modification.\n1 49 C.F.R. § 195.402(a).\n2 49 C.F.R. § 190.213 (authorizing issuance of Final Orders by Associate Administrator).\n3 49 C.F.R. § 190.215 (filing of Petitions for Reconsideration).\n4 Sunoco also requested that the Final Order be stayed pending the disposition of its request for the presiding\nofficial’s recommendation. As the timely filing of a Petition automatically stays the payment of a civil penalty\nunder 49 C.F.R. 190.215(d) and given that I am denying the aforementioned request, no further action on its request\nfor a stay is required.\n\n\n\n2\nI. Discussion\nA. Sunoco’s Request for the Presiding Official’s Recommendation for Final Action\nAn operator who receives a notice of probable violation is afforded certain rights under the\npipeline safety regulations. Those rights include the right to submit a written response to the\nnotice; to request an informal hearing; to ask for and receive the material in the case file prior\nto that hearing; to offer relevant information and evidence, and to examine the information\nand evidence offered by PHMSA, at such a hearing; and to request an opportunity to submit\nadditional, relevant material for the record within a reasonable time after a hearing.\n5\nMoreover, the pipeline safety regulations also impose certain obligations on those tasked\nwith adjudicating a notice. For example, though “conducted informally without strict\nadherence to the rules of evidence[,]” an attorney from the Office of Chief Counsel serves as\nthe presiding official at a hearing. In that capacity, he or she is responsible for conducting\nthe proceeding, considering all of the material of record, and “prepar[ing] a written\nrecommendation as to final action in the case.” That recommendation is then forwarded,\nalong with the other material in the case file, to the Associate Administrator for “final\nadministrative action.\n”6 In most cases, such action comes by way of a final order that\ncontains “[a] statement of findings and determinations on all material issues, including a\ndetermination as to whether each alleged violation has been proved” and, “[i]f a civil penalty\nis assessed, the amount of the penalty and the procedures for payment of the penalty[.]”7\nThe presiding official’s recommendation for final action serves a vital role in the\nadjudicatory process, and that is why I carefully consider these recommendations in each and\nevery case. However, those recommendations are privileged, intra-agency communications,\nthe confidentiality of which must be protected to encourage open and frank discussions\nbetween the Associate Administrator and the presiding official. Moreover, a presiding\nofficial’s recommendation is also a deliberative and pre-decisional document, i.e., the final\ndecisionmaking authority in a case lies with the Associate Administrator, not the presiding\nofficial. Accordingly, the disclosure of the latter’s recommendation—a recommendation\nwhich might not be adopted in the final order—is not required to avoid the disruption and\npublic confusion that would result from the release of such advisory opinions.\n5 49 C.F.R. §§ 190.209-190.211.\n6 49 C.F.R. § 190.211\n7 49 C.F.R. § 190.213(c)(1)-(2).\n\n\n\n3\nFurthermore, the Associate Administrator is not required by the pipeline safety laws to\nprovide an operator with a presiding official’s recommendation. Rather, PHMSA is only\nobliged to disclose the material in the case file prior to a hearing, and a presiding official’s\nrecommendation, completed after that hearing occurs, does not fall within the scope of that\nrequirement. For these reasons, I am denying Sunoco’s request for the presiding official’s\nrecommendation for final action in this case.\nB. Sunoco’s Substantive Arguments for Reconsideration of the Final Order\nSunoco’s first substantive argument on reconsideration is that it has no duty under the\npipeline safety regulations to ensure that its employees actually follow its written procedures.\nThe merits of that argument—already considered and rejected in the Final Order—need not\nbe reconsidered here.8 Regardless, the law on this issue is unequivocal: an operator has an\naffirmative duty to ensure that its written procedures are followed and is responsible for any\nacts of non-compliance by its employees or contractors.9\nWith regard to Sunoco’s second argument, the factual and legal support for imposing a civil\npenalty in this case is well stated in the Final Order. That includes Petitioner’s culpability for\nfailing to ensure that its employees actually followed the company’s written procedures and\nthe magnitude of the spill—some 10,000 barrels of crude oil from a breakout tank—that\noccurred as a result of those failures.\nFinally, the post-hoc measures and other mitigating factors identified by Sunoco do not\nwarrant a reduction in the civil penalty. As noted in the Final Order, all of those factors were\ncarefully considered by OPS in calculating the amount proposed in the original notice.10\nHaving examined all of the evidence and arguments relevant to that determination again on\nreconsideration, I find that no grounds exist for reducing the civil penalty amount assessed in\nthis case.\n8 49 C.F.R. § 190.215(c) (stating that the Associate Administrator does not consider repetitious arguments).\n9 In the Matter of AGL Resources, Inc., CPF No. 2-2006-3003, Final Order (Jul. 7, 2009) (noting that “it is well\nsettled that pipeline operators are ultimately responsible for the acts and omissions of their employees,\ncontractors, and agents in complying with the pipeline safety regulations[,]” that “such a policy conforms to the\ntraditional doctrine of respondeat superior under which [an employer] is legally responsible for the acts of its\nemployees and agents acting within the scope of their employment[,]” and that under any contrary\ninterpretation, “no pipeline operator that had adopted adequate safety procedures but then failed to monitor or\nsupervise its personnel in carrying them out would ever be held liable for its own regulatory violations.”).\n10 In the Matter of Sunoco Pipeline L.P., CPF No. 1-2007-5001, Final Order, p. 5, fn. 16 (Sep. 2, 2009)\n(discussing the information and analysis provided in the “Civil Penalty Assessment Considerations” portion of\nthe Violation Report).\n\n\n\n4\nAccordingly, I am denying Sunoco’s September 15, 2009 Petition in its entirety and\naffirming the September 2, 2009 Final Order without modification. This decision on\nreconsideration is the final administrative action in this proceeding.\n_____________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":37191}