{"operation":"document","citation":"CPF 120125013","title":"HARBOR PIPELINE CO — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2012-07-16","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.402(a), 195.404(c)(3).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-120125013.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-120125013.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-120125013","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/120125013","body":"Notice of Probable Violation involving HARBOR PIPELINE CO. PHMSA's enforcement data identifies the cited regulations as 195.402(a),  195.404(c)(3). The case was opened on 2012-07-16 and is reported as closed as of 2014-09-18. Proposed civil penalty: $100,000. Assessed civil penalty: $100,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n120125013_Final Order_08272014.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120125013/120125013_Final%20Order_08272014.pdf\n\n120125013_Final Order_08272014_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120125013/120125013_Final%20Order_08272014_text.pdf\n\n120125013_NOPV-PCP_07162012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120125013/120125013_NOPV-PCP_07162012.pdf\n\n120125013_NOPV-PCP_07162012_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120125013/120125013_NOPV-PCP_07162012_text.pdf\n\n120125013_Operator Response and Hearing Request_08162012.pdf: https://primis.phmsa.dot.gov/enforcement-documents/120125013/120125013_Operator%20Response%20and%20Hearing%20Request_08162012.pdf\n\n120125013_Final Order_08272014_text.pdf\n\nAUGUST 27, 2014\nMr. Michael J. Hennigan\nPresident\nSunoco Logistics Partners Operations GP LLC\nSunoco Pipeline L.P.\n1818 Market St., Suite 1500\nPhiladelphia, PA 19103\nRe: CPF No. 1-2012-5013\nDear Mr. Hennigan:\nEnclosed please find the Final Order issued in the above-referenced case. It makes a finding of\nviolation and assesses a civil penalty of $100,000. 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 is made pursuant to 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, OPS\nKevin Dunleavy, Esq., Chief Counsel, Sunoco, Inc.\n1735 Market Street, Suite LL, 13th Floor, Philadelphia, PA 19103\nBizunesh Scott, Esq., Steptoe & Johnson LLP\n1330 Connecticut Ave. NW, Washington, DC 20036\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)\nSunoco Pipeline L.P., ) CPF No. 1-2012-5013\n)\nRespondent. )\n___________________________________ )\nFINAL ORDER\nOn October 11, 2010, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), initiated\nan investigation of an event that occurred on an out-of-service pipeline owned by Sunoco\nPipeline L.P. (Sunoco or Respondent) in Burlington County, New Jersey.\n1\nAs a result of the investigation, the Director, Eastern Region, OPS (Director) issued a Notice of\nProbable Violation and Proposed Civil Penalty (Notice) on July 16, 2012.2 In accordance with\n49 C.F.R. § 190.207, the Notice alleged that Sunoco committed a violation of the pipeline safety\nregulations and proposed a civil penalty of $100,000. In accordance with § 190.205, the Notice\nalso included a warning item advising Respondent to correct another probable violation.\nSunoco responded to the Notice and requested a hearing by letter dated August 16, 2012\n(Response). Sunoco submitted a supplemental statement of issues on November 15, 2012 (Supp.\nStatement). In accordance with § 190.211, a hearing was held on November 27, 2012, in West\nTrenton, New Jersey, before the Presiding Official from the Office of Chief Counsel, PHMSA.\nAfter the hearing, Respondent submitted a post-hearing brief on January 12, 2013 (Brief).\nFINDING OF VIOLATION\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.402(a), which states:\n1 Sunoco operates approximately 4,700 miles of pipeline transporting crude oil and refined products in Texas and\nseveral other states. This information was reported for calendar year 2013 pursuant to 49 C.F.R. § 195.49.\n2 The Notice was issued in conjunction with a separate Notice of Amendment (CPF No. 1-2012-5012M). An Order\nDirecting Amendment in that case was issued on September 20, 2013.\n\n\n\n2\n§ 195.402 Procedural manual for operations, 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\nand maintenance activities and handling abnormal operations and\nemergencies . . . .\n(c) Maintenance and normal operations. The manual required by\nparagraph (a) of this section must include procedures for the following to\nprovide safety during maintenance and normal operations . . . .\n(10) Abandoning pipeline facilities, including safe disconnection from\nan operating pipeline system, purging of combustibles, and sealing\nabandoned facilities left in place to minimize safety and environmental\nhazards . . . .\nThe Notice alleged that Respondent violated § 195.402(a) by failing to follow its written\nprocedures for abandoning a pipeline. Specifically, the Notice alleged that during abandonment\nof the 16-inch Harbor Pipeline in Burlington County, New Jersey, on October 11, 2010,\nRespondent did not conduct vapor monitoring and used a torch to cut the pipe, resulting in a\nsmall amount of product inside the pipe catching fire, dripping out of the pipe, and burning in the\ntrench. The Notice alleged that Respondent’s procedures required: use of a mechanical cutter\nrather than a torch; performance of atmospheric monitoring to detect flammable vapors; and\nensuring the pipeline has been sufficiently drained.\nIn its written submissions and at the hearing, Sunoco argued that its pipeline had already been\nabandoned prior to October 11, 2010, and therefore the Company was not required to comply\nwith § 195.402(a) on the day of the event. Sunoco contended the cutting activities and fire were\n“outside of the scope of PHMSA’s jurisdiction” and “not subject to PHMSA’s oversight or\nenforcement” because the pipe was no longer used in the transportation of hazardous liquids.3\nAlternatively, Sunoco argued that even if the requirements of § 195.402(a) did apply, the alleged\nviolation should be withdrawn because Sunoco complied with the applicable regulatory\nrequirements.\nThe following analysis considers whether the pipeline was subject to § 195.402 on the day of the\nevent. If the pipeline was subject to § 195.402, as alleged in the Notice, PHMSA must consider\nwhether Sunoco complied with the regulation during the removal activities.\n1. Relocation of the Harbor Pipeline and Events of October 11, 2010\nIn June 2010, Respondent began an effort to relocate its 16-inch Harbor Pipeline to allow\nwidening of the nearby New Jersey Turnpike. The relocation project involved, among other\nthings, construction of a new 1.85-mile pipeline segment approximately 350 feet away from the\noriginal location and removal of the old pipe.4\n3 Response at 1.\n4 Response at 1-2; Brief at 2-3.\n\n\n\n3\nOn September 20, 2010, Respondent purged product from the existing pipeline using nitrogen\nand cleaning pigs. The next day the Company began cutting the pipe at the beginning and end\npoints of the relocation. Special mechanical or “cold” cutters were used, which do not create\nsparks that could ignite flammable vapors in the pipeline. The valves at both ends of the section\nwere removed, along with the flanges, and the pipe was capped at both ends. Over the next\nseveral weeks, Respondent cut and removed portions of the pipe.5\nBy October 2010, most of the old pipe had been removed. The remaining portion was tested for\nflammable vapors on Saturday, October 9, 2010, with results indicating it would be safe to\nperform “hot work,” such as using a torch for cutting. No record of that vapor test was\nmaintained. Respondent proceeded to use an oxy-acetylene torch to cut the pipe that day without\nincident.6 Two days later, on Monday, October 11, 2010, Respondent again used a torch to cut\nthe pipe. No vapor test was conducted that day as workers believed the test performed two days\nearlier was sufficient.\n7\nDuring cutting on October 11, 2010, a worker began to notice smoke. Cutting was stopped and\nworkers determined the smoke was coming from residual product in the pipe that had caught fire.\nA plastic cap on the end of the pipe “blew off with a pop” and a small amount of product dripped\nout of the pipe and burned on the ground with a flame up to 18 inches high.8 Use of two fire\nextinguishers were unable to put out the flames, so equipment was used to pour dirt on the flame\nand burning pipe. Respondent reported the fire to the National Response Center in accordance\nwith § 195.52, but subsequently attempted to rescind the report.9\n2. Whether the Pipeline Was Subject to 49 C.F.R. § 195.402\nThe federal pipeline safety regulations in 49 C.F.R. Part 195 include standards for safely\nabandoning pipeline facilities to permanently remove them from service. The standards state\nthat operators must prepare and follow written procedures for abandonment that address, at a\nminimum, safely disconnecting the facility from the operating system, purging the combustibles,\nand sealing the facility if left in place to minimize safety and environmental hazards.\n10\nThese requirements apply to all pipelines subject to 49 C.F.R. Part 195.11 In the present matter,\nRespondent did not dispute that its pipeline was subject to Part 195—at least prior to the\n5 The new pipe was connected to the operating system on September 21, 2010, and placed in service on September\n23, 2010. Respondent contended the old pipe was officially abandoned on September 21, 2010.\n6 Response at 1-2; Brief at 2-3.\n7 OPS Pipeline Safety Violation Report (Jul. 16, 2012), Exhibit A-2, Sunoco’s Incident Analysis for NJ Turnpike\nFire In Pipe at 1-2.\n8 Incident Analysis at 1-2.\n9 Brief at 6.\n10 § 195.402(a) and (c)(10).\n11 See § 195.1 (describing which pipelines are covered by Part 195).\n\n\n\n4\nrelocation project. Accordingly, any abandonment of the facility was required to be performed\nin accordance with these requirements.\nTo determine whether Respondent’s pipeline had been abandoned prior to the time of the event,\nPHMSA must consider whether Respondent followed written procedures for abandoning its\npipeline that complied with the standards in § 195.402(a) and (c)(10).\nA. Respondent’s Written Procedures for Abandonment\nRespondent’s written procedures required completion of four general activities to abandon a\npipeline under § 195.402(a) and (c)(10).12 The requirements were: (1) purging product from the\nfacility; (2) physically disconnecting the facility from other facilities currently in service;\n(3) capping the ends of the defining limits of the facility; and (4) if practical, physically\nremoving the facility from the ground. These activities coordinate with § 195.402(c)(10).\nWith regard to whether Respondent completed the first activity, purging product from the\nfacility, OPS argued that Respondent had not completely purged the line because a small amount\nof product was left over and caught fire.\nThe record reflects that in September 2010 Respondent purged the facility of combustibles using\nnitrogen and several cleaning pigs. At the hearing, both parties acknowledged that it may not be\npossible to remove absolutely all product during a purge, and that trace amounts of product or\n“clingage” may be left over. Clingage can coalesce over the course of several weeks at low\npoints on the pipe segment, and may be of a quantity that could burn under the right conditions.13\nThe evidence suggests the small amount of product left over in Respondent’s pipeline was\nclingage that had coalesced at the low spot where Respondent was cutting. There is not\nsufficient evidence in the record to find Respondent improperly purged its pipeline based solely\non the presence of such a small amount of product in the line. Accordingly, PHMSA finds\nRespondent purged the facility as required under its procedures.\nWith regard to the second and third activities, evidence shows that in late September 2010,\nRespondent physically disconnected the pipe from service by removing the valves and flanges at\nboth ends of the section.14 Respondent also capped the pipe at both ends. These facts were not\ndisputed. Therefore, PHMSA finds Respondent physically disconnected the facility and capped\nthe ends as required under its procedures.\nWith regard to the final activity, Respondent was required to remove the pipeline from the\nground if practicable. Evidence shows Respondent was in the process of removing the pipeline\nfrom the ground when the event occurred. A “substantial amount” of the facility had already\n12 Violation Report, Exhibit A-5, Sunoco’s DOT 195 Maintenance Manual, Subpart F: Operation and\nMaintenance, Section 195.402.c.10 Abandoning Pipeline Facilities (Oct. 31, 2010).\n13 Brief, Affidavit at ¶ 9.\n14 Supp. Statement at 2.\n\n\n\n5\nbeen removed, but the portion at issue here had not been removed when Respondent’s cutting\nactivities resulted in a fire.\n15\nRespondent argued that removal was not required. PHMSA notes two reasons why removal was\nrequired under the regulation to abandon the pipeline. First, an operator may only forgo removal\nunder § 195.402(c)(10) if the operator elects to permanently abandon the facility in place. A\npipeline that is not going to be permanently abandoned in place presents an ongoing safety risk,\nincluding cutting and removal processes undertaken while hazardous materials are present. In\nthis case, Respondent did not intend to abandon the facility in place. Therefore, Respondent was\nrequired to remove the pipeline in a safe manner according to its written procedures. Second,\nSunoco was required to follow its own written procedures for completing the abandonment.\nSunoco’s procedures specified the facility must be removed if practical.\nFor these reasons, PHMSA finds that under a plain reading of the regulation, Respondent’s\npipeline facility was not abandoned pursuant to § 195.402(a) and (c)(10) when the events\noccurred on October 11, 2010.\nB. Additional Information Presented by Respondent\nRespondent presented several additional reasons why PHMSA should find the pipeline was\nabandoned.\nFirst, Respondent argued the pipeline no longer met statutory and regulatory definitions of a\n“pipeline facility” because it was no longer “used or intended to be used in transporting\nhazardous liquid.”16\nOn this issue, PHMSA has consistently stated that a pipeline facility subject to Part 195 remains\nsubject to the pipeline safety standards until it is abandoned in accordance with the regulations.17\nRespondent’s pipeline facility had not been abandoned under § 195.402(a) and (c)(10).\nTherefore, it remained subject to Part 195.\nRespondent also argued the pipeline was abandoned because: Sunoco had lost its right to operate\nthe pipe; Sunoco never intended to use it again; the pipe could no longer be used to transport\nhazardous liquids; and the new replacement pipe had already been placed in service.\n18\n15 Supp. Statement at 2.\n16 Brief at 8 (quoting 49 U.S.C. § 60101(a)(5) and 49 C.F.R. § 195.2).\n17 See, e.g., NuStar Terminals Operations P’ship, CPF No. 1-2011-5011, Item 4, 2012 WL 6946967 (Dec. 18, 2012)\n(“only pipelines permanently removed from service are exempt from Part 195 regulations”); Alyeska Pipeline Serv.\nCo., CPF No. 5-2005-5023, Item 8, 2009 WL 5538655 (Dec. 16, 2009) (“once a hazardous liquid pipeline facility is\nplaced in service, that facility is subject to the requirements of Part 195 until it is abandoned”), also available at\nhttp://www.phmsa.dot.gov/pipeline/enforcement (follow links to enforcement actions since 2002). Although an\nabandoned pipeline no longer must be maintained under Part 195, it may still be subject to certain requirements\nunder Part 195. See, e.g., § 195.59 (requiring reporting of certain abandoned facilities).\n18 Supp. Statement at 2; Brief at 11-12.\n\n\n\n6\nWhile these facts may correlate with the abandonment, it is § 195.402 that establishes the\nregulatory requirements for abandonment under Part 195. Accordingly, these facts do not prove\nthe pipeline was abandoned if the regulatory requirements were not met.\nRespondent also cited a regulatory interpretation issued by PHMSA in April 2009.19 The\ninterpretation discussed the applicability of Part 195 to an inactive pipeline. While the\ninterpretation did not contain an abundance of detail about the pipeline at issue, it noted the line\nhad been disconnected and purged with nitrogen for several years.20 The operator of the pipeline\nbelieved the inactive or “idle” pipeline was not subject to Part 195 because it was not being used\nin hazardous liquid service or engaged in transmission. As such, the operator believed the\npipeline was “abandoned for regulatory purposes but not permanently abandoned” so the\noperator could use the pipeline again sometime in the future.\nIn the written interpretation issued by PHMSA, the Agency agreed the pipeline was no longer\nsubject to Part 195, but not for the reasons offered by the operator. PHMSA clarified that the\npipeline safety regulations do not recognize pipelines as “idled,” so merely ceasing normal\noperation of a pipeline does not remove a pipeline from the Part 195 requirements. A pipeline\nmust be abandoned according to § 195.402(c)(10) for the requirements in Part 195 to no longer\napply. PHMSA found the operator’s pipeline had been permanently abandoned, not merely\nabandoned “for regulatory purposes.” Therefore, PHMSA found the pipeline could not be put\nback in service as the operator suggested. The only way the pipeline could be put back in serve\nwas if the pipeline is maintained according to Part 195 for the entire abandonment period or if\nthe pipeline can meet the requirements for a newly designed and constructed pipeline.\nSunoco argued this interpretation proves that its own disconnected and purged pipeline was no\nlonger subject to Part 195.21 This interpretation, however, did not establish a general standard\nthat any disconnected and purged pipeline is no longer regulated. Rather, the interpretation\nclarified that a pipeline must be abandoned according to § 195.402(c)(10) for the requirements in\nPart 195 to no longer apply. The Agency concluded in the interpretation that the regulatory\nrequirements had been met to abandon the line in place.22 In the present matter, Sunoco had not\nmet the regulatory requirements for abandonment, as already discussed.\nSunoco also cited an enforcement case issued in December 2009, in which PHMSA decided\nwhether a pump station had been abandoned.23 The pump station had been out of service for\n19 Brief at 9-10.\n20 Interpretation issued to Equistar Chemicals, LP, PI-08-0003 (Apr. 6, 2009), available at\nhttp://phmsa.dot.gov/pipeline/regs/interps (accessed Apr. 14, 2014).\n21 Brief at 10.\n22 Additional factual information about the pipeline was not included in the interpretation. For example, the\ninterpretation did not describe the manner in which the pipeline was sealed, as required under § 195.402(c)(10) if the\npipeline is abandoned in place. But PHMSA ultimately determined that each of the necessary regulatory\nrequirements for abandonment were met.\n23 Alyeska Pipeline, CPF No. 5-2005-5023, Item 8.\n\n\n\n7\neight years and was no longer used in the transportation of hazardous liquids. Citing the\nregulatory interpretation discussed above, PHMSA concluded that the pump station had not been\nabandoned because the operator had not completed the necessary steps to abandon the facility\nunder § 195.402. PHMSA reasoned that once a hazardous liquid pipeline facility is placed in\nservice, the facility is subject to the requirements of Part 195 until it is abandoned under the\nregulation.\nIn the present matter, PHMSA has similarly concluded that Sunoco did not complete the\nnecessary steps under the regulation to abandon its pipeline facility. Therefore, the facility\nremained subject to Part 195.\nRespondent also cited to administrative guidance material that addresses abandonment of\npipelines. Respondent argued the guidance demonstrates that the pipeline was no longer subject\nto Part 195.24\nPHMSA has made public its enforcement guidance for the Part 195 regulations. In the guidance,\nPHMSA discusses the differences between abandoned pipelines and inactive pipelines.\nAbandoned pipelines are described as permanently removed from service, physically separated\nfrom the source of hazardous liquid, and no longer required to be maintained under Part 195.25\nAn inactive or idled pipeline, by contrast, is described as one that is not presently used to\ntransport hazardous liquids, but still maintained under Part 195.26 These explanations are\ninformational only and do not constitute regulatory standards or definitions.27\nPHMSA explains in the guidance that under the regulations, pipe is considered either active or\nabandoned—there are no provisions for idled or inactive pipe. Therefore, “[i]f a pipeline has not\nbeen abandoned according to the [regulation], then it is active and the operator must ensure that\nthe pipeline complies with all requirements of Part 195.”28 This guidance is consistent with the\nabove analysis of Respondent’s pipeline.\nC. Conclusion\nOn the issue of whether Sunoco’s pipeline had been abandoned prior to October 11, 2010,\nPHMSA finds Respondent was in the process of abandoning its facility, but the portion of pipe at\nissue had not been abandoned because it was not removed from the ground or permanently\nabandoned in place as required under § 195.402(a) and (c)(10). Also, Respondent had not\n24 Operations & Maintenance (O&M) Enforcement Guidance: Part 195 Subpart F (Dec. 7, 2011), available at\nhttp://www.phmsa.dot.gov/foia/e-reading-room (accessed Apr. 14, 2014).\n25 O&M Enforcement Guidance at 3.\n26 O&M Enforcement Guidance at 17.\n27 The introduction to the guidance states: “This document is not a regulation and creates no new legal obligations.\nThe regulation is controlling.”\n28 O&M Enforcement Guidance at 43.\n\n\n\n8\ncompleted its own procedures for the abandonment, which required removal. Therefore, the pipe\nremained subject to the regulations in Part 195.\n3. Whether Sunoco Complied with § 195.402\nSection 195.402(a) mandated that Respondent have and follow written procedures during the\nabandonment of its pipeline on October 11, 2010. The Notice alleged that Respondent violated\n§ 195.402(a) by failing to follow its procedures entitled Operator Qualification Procedure,\nOQP-361, Safe Disconnect of Pipeline Facilities.\n29\nAs an initial matter, Respondent stated that Procedure OQP-361 governed the Company’s earlier\ndecommissioning activities but not its activities on October 11, 2010. Respondent noted the\npurpose of Procedure OQP-361 is “[t]o provide instructions for the safe disconnecting and\ndraining of a pipeline section from service, permanently. This procedure does not include\npurging the liquid from the pipeline or sealing the pipeline.”30 Since the pipe had already been\ndisconnected from the in-service pipeline, Respondent argued these procedures did not apply to\nsubsequent cutting activities like those occurring on October 11, 2010.31\nPHMSA has reviewed Respondent’s procedures and agrees they do cover draining and cutting of\na pipeline connected to an in-service facility. For example, Paragraph 2.9 of Procedure OQP-\n361 requires opening drain valves and collecting the liquid drained from the pipeline.32 After\nensuring the pipeline is sufficiently drained, Paragraph 2.13 requires using a mechanical pipe\ncutter (cold cutter) for cutting the pipe. Paragraph 2.14 requires collecting any residual liquid\nreleased from the cut points. Finally, Paragraph 2.15 requires separation of the disconnected\npipe segment from the operating pipeline.\nWhile it is evident the procedures apply to the cutting of drained pipe, as asserted by\nRespondent, it appears the procedures could likewise apply to the cutting of pipe after it has been\npurged with nitrogen. Cutting a pipeline after draining and after purging with nitrogen both\ninvolve the possibility that flammable liquids or vapors will be encountered.33 There is also a\nrisk of ignition and fire during both activities. Respondent’s cutting of its purged pipeline on\nOctober 11, 2010, presented many of the same hazards that Procedure OQP-361 was designed to\nprotect against. Respondent has not presented a convincing reason why it should not follow\nProcedure OQP-361 when cutting a purged pipeline to ensure safety.\n29 Violation Report, Exhibit A-4, Sunoco Procedure OQP-361 (Nov. 8, 2004).\n30 Procedure OQP-361 at 2.\n31 Brief at 12-13.\n32 Procedure OQP-361 at 9.\n33 For example, the procedures caution that individuals may encounter unexpected hazardous liquids or fire due to\nignition of hazardous liquids or gases. Procedure OQP-361 at 3. Likewise, when cutting a pipeline that has been\npurged, some product may remain in the line. Brief at 6.\n\n\n\n9\nMoreover, Respondent did not suggest that any other procedures applied to the cutting activities\non October 11, 2010, and Respondent did not produce any alternative written procedures. Were\nPHMSA to accept that Procedure OQP-361 did not apply to its cutting activities on October 11,\n2010, PHMSA must conclude Sunoco violated § 195.402(a) by failing to have written\nprocedures for cutting and removing the pipeline to complete abandonment.\nRespondent argued in the alternative that “even if the procedures are found to have somehow\napplied thereafter, Sunoco nonetheless complied.”34 PHMSA considers each of the three alleged\ninstances of noncompliance set forth in the Notice to determine whether Respondent followed its\nprocedures as required under § 195.402.\nA. Paragraph 2.1 – Atmospheric Monitoring\nThe Notice alleged that Respondent did not follow Paragraph 2.1 of Procedure OQP-361, which\nrequired the Operator to perform atmospheric monitoring during disconnection activities to\ndetect potentially flammable vapors. Specifically, the Notice alleged that Respondent failed to\ntest for vapors during disconnection activities on October 11, 2010.\nIn its written submissions and at the hearing, Sunoco argued that it performed gas monitoring\ntwo days before on October 9, 2010, and the test did not indicate the presence of flammable\nvapors. Respondent also argued that even if gas monitoring was conducted on the day of the\nincident, it “very likely . . . would not have detected the product.”35\nHaving reviewed the evidence, PHMSA finds that Paragraph 2.1 of Procedure OQP-361\nrequired Respondent to “ensure atmospheric monitoring indicates no vapors present at all work\nlocations.” The monitoring was required to be performed “while disconnection activities are in\nprogress.”36 Respondent did not perform atmospheric monitoring to check for vapors at the\nwork location on October 11, 2010. Accordingly, Respondent did not comply with this\nprocedure. While it cannot be known for certain if gas monitoring conducted the day of the fire\nwould have detected flammable vapors, failing to perform the monitoring eliminated any chance\nof detecting them, and more importantly, did not comply with the procedures as written.\nB. Paragraph 2.13 – Use of Mechanical Cutters\nThe Notice alleged Respondent did not follow Paragraph 2.13 of Procedure OQP-361, which\nrequired the Operator to use only a mechanical or “cold” pipe cutter for cutting the pipeline. The\nNotice alleged Respondent used an oxy-acetylene torch or “hot” cutter on October 9 and 11,\n2010, when cutting flanges from the pipe.\n34 Brief at 13.\n35 Brief at 13.\n36 Procedure OQP-361 at 8.\n\n\n\n10\nRespondent argued the pipe had previously been cut with a torch without incident, and that gas\ntesting performed less than two days before the fire indicated a safe range for hot work. For this\nreason, Respondent argued residual product “was not anticipated.”37\nHaving reviewed the evidence, PHMSA finds that Paragraph 2.13 of Respondent’s Procedure\nOQP-361 stated that workers were required to “obtain mechanical pipe cutter (i.e., cold cutter),\nand cut [the] pipe between bond clamps.”38 The procedure did not permit using an oxy-\nacetylene torch. Regardless of whether residual product was “anticipated,” small amounts of\nproduct may remain in a pipeline after it has been purged.39 The use of cold cutters is meant to\naddress this hazard by preventing an ignition source where flammable vapors and hazardous\nliquids may be present. PHMSA finds Respondent’s use of a torch did not comply with this\nprocedure.\nC. Paragraph 2.10 – Ensuring the Segment is Sufficiently Drained\nFinally, the Notice alleged Respondent did not follow Paragraph 2.10 of Procedure OQP-361,\nwhich required the Operator to ensure the pipeline was sufficiently drained. The Notice alleged\nthat a small amount of liquid present in the pipe caught fire, spilled onto the ground, and burned\nin the trench, demonstrating the pipeline had not been adequately drained.\nSunoco contended that it had drained the line consistent with its procedures and industry\nstandards by using pigs and purging it with nitrogen to remove all product to the extent possible.\nAs explained in more detail above, the record reflects that Respondent purged its facility and the\nsmall amount of product left over was clingage that had coalesced where Respondent was\ncutting. There is not sufficient evidence in the record to find Respondent improperly purged its\npipeline based solely on the presence of such a small amount of product in the line. This\nallegation is withdrawn.\n4. Conclusion\nHaving reviewed the evidence, PHMSA finds Respondent committed a violation of § 195.402(a)\nby failing to follow its procedures for performing mechanical cutting and atmospheric\nmonitoring when abandoning its pipeline. These findings of violation will be considered a prior\noffense in any subsequent enforcement action taken against Respondent.\nPHMSA also finds there is insufficient evidence to prove Respondent failed to sufficiently drain\nthe pipeline. This portion of the alleged violation is withdrawn.\n37 Supp. Statement at 3.\n38 Procedure OQP-361 at 8.\n39 Brief at 6.\n\n\n\n11\nASSESSMENT OF PENALTY\nUnder 49 U.S.C. § 60122, Respondent is subject to an administrative civil penalty not to exceed\n$100,000 per violation for each day of the violation, up to a maximum of $1,000,000 for any\nrelated series of violations.40\nIn determining the amount of a civil penalty under 49 U.S.C. § 60122 and 49 C.F.R. § 190.225,\nPHMSA considers 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 good faith of Respondent in attempting to comply with the\npipeline safety regulations; and the effect on Respondent’s ability to continue in business.\nPHMSA may also consider the economic benefit gained from the violation, and such other\nmatters as justice may require.\nThe Notice proposed a civil penalty of $100,000 for the violation cited above, which was the\nmaximum penalty authorized for a single-day violation. The proposed penalty amount was\nbased on factual assertions in the Violation Report relevant to each of the penalty assessment\nconsiderations. Respondent contested some of those factual assertions and provided additional\ninformation in support of eliminating or reducing the proposed civil penalty.\nNature, circumstances, and gravity of the violation\nThe proposed penalty was based, in part, on assertions that Sunoco did not follow its procedures\nand that Sunoco discovered this issue when conducting a post-accident analysis. The proposed\npenalty was also based on the gravity of the violation being “a causal factor in an accident.”41\nRespondent advanced two reasons why the gravity of the violation was less than alleged. First,\nRespondent argued the violation was only a contributing factor, if at all, because safety\nprocedures were followed and it is not known whether gas monitoring would have detected the\ntrace levels of product on October 11, 2010. Second, the violation had a relatively minor effect\non safety because there was no reportable accident under § 195.50, no injuries or fatalities, no\nexplosion, no wildlife impact, and no water contamination. This means there were no impacts on\nhealth and little (if any) impact on the environment.\nPHMSA notes that Respondent’s procedures for cold cutting and gas monitoring were intended\nto prevent accidental ignition where flammable vapors could be present. Had Respondent\nfollowed its procedures to detect combustible vapors and to avoid potential ignition sources, the\nevent could likely have been avoided. PHMSA finds Respondent’s failure to follow the\nprocedures was a causal factor in the accident, as alleged. The event was a reportable accident\nunder § 195.50 because it involved the release of hazardous liquid and a fire not intentionally set\n40 Subsequent to the Notice issued in this case, the Pipeline Safety, Regulatory Certainty, and Job Creation Act of\n2011, Pub. L. No. 112-90, § 2(a), 125 Stat. 1905, increased the civil penalty liability for violating a pipeline safety\nstandard to $200,000 per violation for each day up to a maximum of $2,000,000 for any related series of violations.\n41 Violation Report at 5.\n\n\n\n12\nby the operator. Accordingly, PHMSA finds the proposed civil penalty is appropriate given the\nnature, circumstances, and gravity of the violation.\nCulpability\nWhen evaluating an operator’s culpability, PHMSA considers the extent to which the operator\nwas responsible for the violation that occurred.42 An operator is expected to be cognizant of the\nregulatory requirements applicable to its operations and is held responsible for complying with\nthose requirements. An operator will generally be considered culpable for any failure to comply\nwith the requirements absent some justification for the failure, such as an unforeseeable event\noutside of its control. Finding an operator culpable does not increase the level of the penalty, but\nif there is a lesser degree of blameworthiness, such as where there is some justification for a\nfailure to comply, PHMSA may find it appropriate to propose or assess a reduce penalty.\nIn the present case, the Violation Report suggested Respondent should be credited with a lesser\ndegree of blameworthiness because the Operator was cognizant of the regulatory requirement\nand “took some steps to address the issue, but did not achieve compliance.”43\nRespondent argued that it should be credited with an even lower degree of culpability because\nthe Operator was diligent in taking all practicable steps to comply with the regulation.\nHaving considered Respondent’s contention, PHMSA must reject it based on the evidence that\nRespondent failed to follow its procedures. PHMSA finds the Violation Report accurately\ndescribed that Respondent had written disconnection procedures, but simply failed to follow\nthem on the day of the accident.44 For these reasons, the proposed penalty is appropriate based\non the degree of Respondent’s culpability.45\nGood Faith of Respondent in Attempting to Achieve Compliance\nWhen considering good faith in attempting to comply, PHMSA looks at the attempt by an\noperator to comply with the cited regulation prior to the occurrence of the violation.46 If an\noperator made a clear, demonstrable effort to comply with the cited regulation when the violation\noccurred, PHMSA may find it appropriate to reduce the civil penalty.\n42 Belle Fourche Pipeline Co., CPF No. 5-2009-5042, at 19, 2011 WL 7006607 (Nov. 21, 2011).\n43 Violation Report at 7.\n44 Violation Report at 7. The highest level of culpability as listed in the Violation Report is reserved for situations\nin which the operator failed to take any action or made a minimal attempt to comply.\n45 Given the gravity of the violation, the Notice did not propose a reduced penalty.\n46 Kinder Morgan Liquids Terminals LLC, CPF No. 1-2011-5001, at 11, 2012 WL 6184429 (Oct. 17, 2012).\n\n\n\n13\nThe Violation Report suggested that Sunoco did not act in accordance with its duty to follow its\nprocedures and therefore no good faith credit was appropriate.47 In response, Respondent argued\nthat it should be credited with significant good faith based on the facts presented.\nPHMSA finds Respondent did not take sufficient action to follow its procedures on October 11,\n2010, which resulted in the violation. Therefore, no penalty reduction is warranted.\nRemaining Factors\nThe Violation Report did not provide a history of any prior offenses committed by Respondent.\nTherefore this factor does not affect the civil penalty. In addition, Respondent did not claim that\npayment of the proposed penalty would affect its ability to continue doing business.\nPartial Withdrawal of Alleged Violation\nIn Item 1 of this Order, PHMSA determined that Respondent violated § 195.402(a) in two ways:\nby failing to follow its procedures for performing mechanical cutting and by failing to perform\natmospheric monitoring. PHMSA withdrew the third allegation that Sunoco violated\n§ 195.402(a) by failing to sufficiently drain its pipeline. The withdrawal of this allegation does\nnot result in a reduced penalty because the remaining violations each warrant assessment of the\nproposed maximum daily penalty amount given the gravity of the violations and other\nassessment criteria.\nHaving reviewed the record and considered the assessment criteria, Respondent is assessed a\ncivil penalty of $100,000.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations (49\nC.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, Mike\nMonroney Aeronautical Center, P.O. Box 269039, Oklahoma City, Oklahoma 73125-4915. The\nFinancial Operations Division telephone number is (405) 954-8845.\nFailure to pay the $100,000 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 district\ncourt of the United States.\n47 Violation Report at 7-8.\n\n\n\n14\nWARNING ITEM\nWith respect to Item 2, the Notice alleged a probable violation of Part 195 and specifically\nconsidered it to be a warning item. In accordance with § 190.205, operators may submit a\nresponse to a warning, but there is no adjudication conducted to determine whether a probable\nviolation occurred.48 The warning in the Notice was issued for:\n§ 195.404(c)(3) (Item 2) – Respondent’s alleged failure to maintain a record of a gas\nmonitoring test that was performed on October 9, 2010. Under § 195.404(c)(3),\noperators must maintain a record of such tests for at least 2 years.\nIn its Brief, Sunoco responded that the warning should be withdrawn because PHMSA does not\nhave enforcement jurisdiction. In Item 1 of this Order, however, PHMSA determined the\npipeline was subject to the pipeline safety regulations in Part 195.\nIf OPS finds this issue in a subsequent inspection, Respondent may be subject to future\nenforcement action.\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\nFinal Order by the Respondent. Any petition submitted must contain a statement of t","truncated":true,"body_characters":40665}