{"operation":"document","citation":"CPF 220165006","title":"MID - VALLEY PIPELINE CO — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2016-12-09","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.440(a), 195.440(b).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-220165006.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-220165006.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-220165006","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/220165006","body":"Notice of Probable Violation involving MID - VALLEY PIPELINE CO. PHMSA's enforcement data identifies the cited regulations as 195.440(a),  195.440(b). The case was opened on 2016-12-09 and is reported as closed as of 2019-10-23. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n220165006_Closure Letter_10232019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220165006/220165006_Closure%20Letter_10232019.pdf\n\n220165006_Closure Letter_10232019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220165006/220165006_Closure%20Letter_10232019_text.pdf\n\n220165006_Final Order_03082019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220165006/220165006_Final%20Order_03082019.pdf\n\n220165006_Final Order_03082019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220165006/220165006_Final%20Order_03082019_text.pdf\n\n220165006_NOPV PCO_12092016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220165006/220165006_NOPV%20PCO_12092016.pdf\n\n220165006_NOPV PCO_12092016_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220165006/220165006_NOPV%20PCO_12092016_text.pdf\n\n220165006_Operator Response to Notice_02012017.pdf: https://primis.phmsa.dot.gov/enforcement-documents/220165006/220165006_Operator%20Response%20to%20Notice_02012017.pdf\n\n220165006_Closure Letter_10232019_text.pdf\n\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\nOctober 23, 2019\nMr. Kelcy L. Warren\nChief Executive Officer\nEnergy Transfer Partners, L.P.\n8111 Westchester Drive\nDallas, TX 75225\nCPF 2-2016-5006\nDear Mr. Warren:\nOn March 8, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA),\nOffice of Pipeline Safety (OPS) issued a Final Order to a subsidiary of Energy Transfer Partners,\nL.P, Mid Valley Pipeline Company (Mid Valley). The Final Order included a Compliance Order\n(CO) which required Mid Valley to undertake certain actions to ensure compliance with the\nfederal pipeline safety regulations.\nIn response to the CO, Mid-Valley made numerous submittals to OPS Southern Region,\ndocumenting its efforts toward compliance.\nBased upon our review of documentation of the actions taken by Mid-Valley, we have\ndetermined that Mid-Valley has complied with the terms of the CO and the Final Order. This\ncase is now closed and no further action is necessary with respect to the matters involved in this\ncase.\nPlease be advised that this letter refers only to the above referenced order (CPF 2-2016-5006)\nand not to any other PHMSA cases, if any.\nSincerely,\nJames A. Urisko\nDirector, Office of Pipeline Safety\nPHMSA Southern Region\n\n220165006_Final Order_03082019_text.pdf\n\nMarch 8, 2019\nMr. Kelcy L. Warren\nChief Executive Officer\nEnergy Transfer Partners, LP\n8111 Westchester Drive\nDallas, Texas 75225\nRe: CPF No. 2-2016-5006\nDear Mr. Warren:\nEnclosed please find the Final Order issued in the above-referenced case to your subsidiary,\nMid-Valley Pipeline Company. It makes findings of violation and specifies actions that need to\nbe taken to comply with the pipeline safety regulations. When the terms of the compliance order\nhave been completed, as determined by the Director, Southern Region, this enforcement action\nwill be closed. Service of the Final Order by certified mail is effective upon the date of mailing,\nas provided under 49 C.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nAlan K. Mayberry\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. James Urisko, Director, Southern Region, Office of Pipeline Safety, PHMSA\nMr. Ryan Coffey, Executive Vice-President – Operations, Energy Transfer Partners, LP,\n800 East Sonterra Boulevard, San Antonio, TX 78258\nMr. Todd Nardozzi, Senior Manager, DOT Compliance, Energy Transfer Partners, LP\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\n\n\n\nU.S. DEPARTMENT OF TRANSPORTATION\nPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION\nOFFICE OF PIPELINE SAFETY\nWASHINGTON, D.C. 20590\n__________________________________________\nIn the Matter of )\nMid-Valley Pipeline Company, )\na subsidiary of Energy Transfer Partners, LP, ) CPF No. 2-2016-5006\n)\n)\n)\nRespondent. )\n__________________________________________)\nFINAL ORDER\nFrom August 1 through August 2, 2016, pursuant to 49 U.S.C. § 60117, representatives of the\nPipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety\n(OPS), conducted an on-site pipeline safety inspection of the Public Awareness Program (PAP)\nrecords of Mid-Valley Pipeline Company (MVPL or Respondent) in Icedale, Pennsylvania.\nMVPL owns a 1,103-mile crude-oil pipeline running from Longview, Texas, to Samarian,\nMichigan (Mid-Valley Pipeline). The Mid-Valley Pipeline is operated by Energy Transfer\nPartners, LP.1\nAs a result of the inspection, the Director, Southern Region, OPS (Director), issued to\nRespondent, by letter dated December 9, 2016, a Notice of Probable Violation and Proposed\nCompliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed\nfinding that MVPL had committed two violations of 49 C.F.R. § 195.440 and ordering\nRespondent to take certain measures to correct the alleged violations.\nOn December 22, 2016, Sunoco Pipeline, LP (SPLP), filed a response on behalf of MVPL and\nrequested an extension of the 30-day response time to February 1, 2017. PHMSA granted the\nrequest by email dated January 9, 2017, and on February 1, 2017, SPLP responded to the Notice\n(Response). The company contested the allegations, offered additional information in response\nto the Notice, and requested that the proposed compliance order be withdrawn. Respondent did\nnot request a hearing and therefore has waived its right to one. For purposes of the following\n1 At the time of the PHMSA inspection, the Mid-Valley Pipeline was operated by Sunoco Pipeline, LP, a wholly-\nowned subsidiary of Sunoco Logistics Partners, LP. See, Sunoco Logistics Partners, LP 2016 Form 10-K, available\nat, http://www.sunocologistics.com/SiteData/docs/10K2016Fin/b9174876261d8ab4/10-K;%202016%20-\n%20Final.pdf (last accessed September 15, 2017). On April 28, 2017, Sunoco Logistics Partners, LP, and Energy\nTransfer Partners, LP, merged; the resulting entity is known as Energy Transfer Partners, LP. See, Energy Transfer,\nCompany Information, website, available at http://www.sunocologistics.com/Investors/Company-Information/32/\n(last accessed September 15, 2017).\n\n\n\nCPF No. 2-2016-5006\nPage 2\ndiscussion, the terms “Respondent,” “MVPL,” and “SPLP” are used interchangeably.\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.440(b), which states:\n§ 195.440 Public awareness.\n(a) Each pipeline operator must develop and implement a written\ncontinuing public education program that follows the guidance provided in\nthe American Petroleum Institute’s (API) Recommended Practice (RP)\n1162 (incorporated by reference, see § 195.3).\n(b) The operator’s program must follow the general program\nrecommendations of API RP 1162 and assess the unique attributes and\ncharacteristics of the operator’s pipeline and facilities.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.440(b) by failing to implement a\nwritten continuing public education program that assessed the unique attributes and\ncharacteristics of its pipeline and facilities. Specifically, the Notice alleged that MVPL’s PAP\nbaseline-message brochures were deficient in four ways.\nFirst, it alleged that Respondent’s PAP brochures sent out to stakeholders in 2013, 2014, and\n2105, including affected members of the public, excavators, emergency responders, and public\nofficials, failed to identify crude oil as the product being transported by the Mid-Valley Pipeline\nand failed to describe the pipeline’s unique attributes and characteristics. The Notice alleged that\nalthough the Mid-Valley Pipeline did not transport gasoline, diesel fuel, kerosene, heating oil, jet\nfuel, butane, ethane, propane or natural gas in 2013, 2014, or 2015, all PAP brochures contained\nthe following statement:\n“You are receiving this brochure because a Sunoco Pipeline, L.P. pipeline\nis located in your community. Our underground pipelines provide a safe and\nefficient method of transporting a variety of products, including crude oil,\ngasoline, diesel fuel, kerosene, heating oil, jet fuel, butane, ethane, propane,\nand natural gas.”\nIn other words, the brochures did not convey information on “the unique attributes and\ncharacteristics” of the Mid-Valley Pipeline, which only transported crude oil during those three\nyears.\nThe Notice further alleged that the PAP brochures sent to emergency responders were deficient\nbecause they included statements about the characteristics of Highly Volatile Liquid (HVL)\nvapors, even though the Mid-Valley Pipeline did not transport HVLs. For example, the\nbrochures allegedly emphasized responding to an emergency on a pipeline transporting HVLs,\nstating: “Keep in mind, Highly Volatile Liquid (HVL) vapors are heavier than air and can collect\n\n\n\nCPF No. 2-2016-5006\nPage 3\nin low areas such as ditches, sewers, etc.”\nSecond, the Notice alleged that the PAP brochures sent to emergency responders included very\nlittle specific information about what emergency responders should expect of MVPL in the event\nof a pipeline leak or emergency. On the contrary, the brochures only described, in very general\nterms, what pipeline operators do when leaks occur.2\nThird, the Notice alleged that the brochures sent to emergency responders identified the pipeline\nas being operated by Sunoco Pipeline, LP (SPLP), but pipeline markers located along the SPLP\nright-of-way (ROW) listed the operator’s name as Mid-Valley Pipeline Company.\nFourth, the Notice alleged that at the time of the inspection, Respondent’s PAP, dated December\n17, 2015, did not include any documentation as to why compliance with all or certain provisions\nof API RP 1162 was not necessary.\nIn its Response, SPLP contested each of the allegations of violation. First, as for the allegation\nthat the SPLP program failed to assess the unique attributes and characteristics of the Mid-Valley\nPipeline, it argued that neither § 195.440(b) nor API RP 1162 requires an operator “to solely list\nonly the products that were then being transported through the pipeline at the time that the PAP\nbrochures were prepared.” In addition, SPLP argued it had valid business and logistical reasons\nfor formulating the PAP brochures the way it did. Respondent noted that it has a shared right-of-\nway (ROW) with other pipeline systems and is crossed in over 400 locations by other pipeline\nsystems. Therefore, Respondent argued, “providing additional information to assist stakeholders\nin identifying and responding to pipeline releases that could occur in or near the SPLP ROW\npromoted overall pipeline safety and was in keeping with the spirit of API RP 1162.”3\nSPLP also argued that in prior years there had been a potential business need for SPLP to\ntransport other products; therefore, it was prudent for Respondent to include information about\ndifferent products in its PAP brochures. Furthermore, Respondent argued, as different grades of\ncrude oil have varying characteristics, providing additional safety information could help educate\n2 The Notice quoted the following language from the emergency-responder brochures:\n“What does the pipeline company do if a leak occurs?\nIn order to prepare for the event of a leak, pipeline companies regularly communicate, plan and\ntrain with local emergency personnel such as fire and police departments. Upon the notification\nof an incident or leak, either by the pipeline company’s internal control center or by phone, the\npipeline operator will immediately dispatch trained personnel to assist public safety officials in\ntheir response to the emergency. Pipeline operators will also take steps to minimize the amount\nof product that leaks out and to isolate the pipeline.”\nSection 4.4 (“Emergency Preparedness Communications”) of API RP 1162, explains the types of\ncommunications that operators should have with local emergency officials and that they should indicate\nthat “detailed information has been provided to emergency response agencies in their jurisdictions.” See\nalso, API RP 1162, Appendix C.\n3 Response, at 2.\n\n\n\nCPF No. 2-2016-5006\nPage 4\nstakeholders in identifying and responding to pipeline releases. Taking a contrary approach,\nRespondent argued, could obligate operators to create a different PAP brochure for each\ncommodity that is shipped through the pipeline, including different grades of such commodities.4\nAs for the second allegation that MVPL provided insufficient information to emergency\nresponders concerning what to expect from SPLP in the event of an emergency, the company\nnoted that in addition to an eight-page specialized PAP brochure, responder brochures were\nalways accompanied by a letter containing specific company information and instructions on\nhow to obtain additional detailed information and training. In addition, Respondent argued that\nthe PAP brochure and letter were supplemented by annual emergency-responder training\nsessions throughout its pipeline system.\nAs for the assertion that MVPL incorrectly listed the operator’s name on its pipeline markers,\nRespondent noted that the phone number on the markers was the correct number to contact and\nthat since 2014, the company’s PAP brochures had indicated that Mid-Valley Pipeline was\noperated by Sunoco Pipeline, LP.5\nRegarding the allegation that MVPL’s PAP did not include any documentation as to why\ncompliance with all or certain provisions of API RP 1162 was unnecessary, Respondent argued\nthat it was unclear what PHMSA intended by this assertion. Respondent also noted that the\nrequirement to provide justification as to why compliance with all or certain provisions of API\nRP 1162 was unnecessary is found under § 195.440(c) not § 195.440(b). Moreover, Respondent\nclaimed that it had not found, nor had PHMSA alleged, any instances where its PAP deviated\nfrom the general program recommendations of API RP 1162.\nAnalysis\nI will address each of PHMSA’s four allegations under Item 1 in order. As for the allegation that\nSPLP’s brochures failed to describe the pipeline’s unique attributes and characteristics,\n§ 195.440(b) specifically requires pipeline operators to have a written public education program\nthat assesses “the unique attributes and characteristics of the operator’s pipeline and facilities.”\nAPI RP 1162 cautions operators that “a one-size-fits-all public awareness program across all\npipeline systems would not be the most effective approach.”6 More importantly, the language in\nparagraph (b) itself makes clear on its face that operators must not merely “follow the general\nprogram recommendations” of API RP 1162, but must also “assess the unique attributes and\ncharacteristics of the operator’s pipeline and facilities.” In providing guidance on § 195.440,\nPHMSA has stated that it has interpreted paragraph (b) to mean that “the operator’s use of\ngeneric messages that are not specific to a particular pipeline system, stakeholder audience,\n4 Id.\n5 Id., at 4.\n6 API Recommended Practice 1162, Section 2.6 Baseline and Supplemental Awareness Programs, available at:\nhttps://primis.phmsa.dot.gov/comm/publicawareness/PARPI1162.htm (last accessed June 25, 2018).\n\n\n\nCPF No. 2-2016-5006\nPage 5\nand/or product information is likely to be unacceptable in most cases.”7 This interpretation has\nbeen reinforced and applied in various enforcement cases. Moreover, PHMSA has found that\nproviding general pipeline-safety information alone or relevant information alongside non-\nrelevant information fails to satisfy the “unique attributes and characteristics” requirement of the\n§ 195.440(b).8\nOne of the main purposes of § 195.440(b) is to ensure that the public is made aware of the\nunique attributes and characteristics of the pipeline operated by each operator, to alert adjacent\nproperty owners, local governments, and first responders to the unique risks posed by that\nparticular pipeline in the event of an accident, and to guide them in adjusting their own behavior\nto protect life, property and the environment.\nSPLP’s PAP brochures in 2013, 2014, and 2015, however, were generic and exemplify a “one-\nsize-fits-all” approach to PAP brochures that does not follow API RP 1162. The brochures\nindicated that crude oil was a product transported by pipeline; however, they also listed nine\nother petroleum products that it could potentially carry without noting that crude oil was the only\nproduct then being transported by the Mid-Valley Pipeline system. The PAP brochures included\ncontent that was relevant to the identification of crude-oil leaks, but was presented alongside\nother non-relevant information or highlighted general facts that did not pertain to attributes and\ncharacteristics unique or specifically applicable to the Mid-Valley Pipeline system. In addition,\nthe PAP brochures for first responders emphasized the characteristics of HVLs, a product that is\nnot transported at all by the Mid-Valley Pipeline.\nThus, I find that the facts support a finding that the Respondent’s PAP brochures in 2013, 2014,\nand 2015 failed to assess or describe the unique attributes and characteristics of the Mid-Valley\nPipeline, as charged in the first allegation. SPLP’s contention that neither § 195.440(b) nor API\nRP 1162 requires an operator “to solely list only the products that were then being transported\nthrough the pipeline at the time that the PAP brochures were prepared” fails to acknowledge the\nplain text of § 195.440(b), which requires that an operator’s PAP “assess the unique attributes\nand characteristics of its pipeline and facilities.” This interpretation is further supported by prior\nPHMSA decisions finding that a mixture of relevant and non-relevant information in stakeholder\ncommunications failed to satisfy the “unique attributes and characteristics” requirement in\n§ 195.440(b).9\nWhile SPLP contended that it had a valid reason to reference a broad range of products because\nit shared its ROW with other operators, I find this argument inconsistent with the requirement in\nthe regulation to assess the “unique attributes and characteristics” of the pipeline. PHMSA has\n7 PHMSA Public Awareness FAQs, Question 17, available at\nhttps://primis.phmsa.dot.gov/comm/PublicAwareness/Public%20Awareness%20Effectiveness%20FAQs%20201109\n27.pdf (last accessed August 10, 2017).\n8 MarkWest Ranger Pipeline Co., Corrected Final Order, CPF 2-2012-5007 available at\nhttps://primis.phmsa.dot.gov/comm/reports/enforce/FOCPEvent opid 0 html?nocache=4128# TP 1 tab 6 (last\naccessed September 20, 2018), at 4.\n9 Id.\n\n\n\nCPF No. 2-2016-5006\nPage 6\npreviously advised operators that “the presentation of such different products/risks together is\nlikely to result in confusion or the reader forgetting much of the material due to ‘information\noverload,’ further diminishing the likelihood that the reader will come away with an\nunderstanding of the ‘unique attributes and characteristics’ of the pipeline that affects it.”10\nSPLP’s additional argument that PHMSA’s position could force operators to change their\nbrochures “for each and every commodity that is shipped through the pipeline (including\ndifferent grades of such commodities)” is speculative and misses the key point. By providing\nadditional safety information unrelated to the Mid-Valley Pipeline, without emphasizing the\ninformation specific to the Mid-Valley Pipeline, SPLP’s PAP brochures in 2013, 2014, and 2015\nfailed to apprise stakeholders of the unique attributes and characteristics of the Mid-Valley\nPipeline system that would be useful to them as stakeholders.\nAs for SPLP’s response to the second allegation that the first-responder brochures included very\nlittle specific information about what emergency responders should expect of MVPL in the event\nof a pipeline leak or emergency, the company noted that its brochures indicated that trained\nSPLP personnel would be sent to assist public-safety officials. Additionally, Respondent’s PAP\nbrochures for emergency officials noted that SPLP’s control center might stop or reduce the flow\nof product, dispatch pipeline emergency-response personnel and equipment, inform the\nresponders of any special precautionary recommendations, act as liaison between emergency-\nresponse agencies and pipeline company personnel, and help bring the emergency to conclusion\nas quickly and safely as possible.11 However, I find that the Notice failed to provide sufficient\nevidence to support the assertion that the brochures and accompanying letter did not provide\nemergency responders with specific information on what they should expect of SPLP in the\nevent of a pipeline leak or emergency or how that lack of specificity violated API RP 1162 or the\nregulation. Therefore, I withdraw this portion of the allegation.\nRegarding the third allegation that MVPL incorrectly listed the operator’s name on its pipeline\nmarkers, Respondent did not challenge the allegation that its pipeline markers along the MVPL\nright-of-way incorrectly noted the name of the operator as “Mid-Valley Pipeline,” but responded\nthat, beginning in 2014, the PAP brochures stated that Mid-Valley Pipeline was operated by\nSPLP. The name of a pipeline is a unique identifier that assists the public in identifying a\npipeline system. The benefit of a PAP brochure is greatly diminished if the reader does not\nrecognize that the material pertains to a pipeline in their area because the name of the pipeline\ncannot be found anywhere on the PAP brochure. However, the Respondent recognized and\nresolved this shortcoming by 2014. Therefore, I withdraw this allegation for the years 2014 and\n2015.\nLastly, concerning the fourth allegation that Respondent’s PAP did not include any\ndocumentation as to why compliance with all or certain provisions of API RP 1162 was not\nnecessary, Respondent noted that the requirement to provide justification as to why compliance\nwith all or certain provisions of API RP 1162 was not necessary is found under § 195.440(c), not\n§ 195.440(b). I agree and therefore withdraw this portion of the allegation as well.\n10 Id.\n11 2013, 2014, and 2015 Sunoco Emergency Official PAP Brochures, Violation Report, Exhibit A- Violation 1.\n\n\n\nCPF No. 2-2016-5006\nPage 7\nThe withdrawal of allegations two and four, and the partial withdrawal of allegation three, are\nnot fatal to the first allegation concerning Respondent’s failure to assess the unique attributes and\ncharacteristics of its pipeline and facilities in its PAP. Therefore, for the reasons discussed\nabove, I find that Respondent violated 49 C.F.R. § 195.440(b) by failing to assess the unique\nattributes and characteristics of its pipeline and facilities in its PAP brochures.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.440(a), as quoted above,\nby failing to implement a written continuing public education program that followed the general\nprogram recommendations of API RP 1162. Specifically, the Notice alleged that MVPL failed\nto perform an adequate program-effectiveness evaluation of its PAP, as required under API RP\n1162, Section 8.4, “Measuring Program Effectiveness” (Section 8.4) The Notice further alleged\nthat the “2014 PAP Effectiveness Evaluation” performed by G2 Partners (Effectiveness\nEvaluation)12 and provided by SPLP to demonstrate that it had assessed the effectiveness of its\nPAP program using the four measures identified in Section 8.4, contained statements that were\ngenerally unsupported by data or facts and simply reflected the opinion of the consultant retained\nto perform the evaluation.\nThe four effectiveness measures set forth in Section 8.4 and the Notice are as follows:\n Whether the information is reaching the intended stakeholder audiences;\n Whether the recipient audiences are understanding the messages delivered;\n Whether the recipients are motivated to respond appropriately in alignment with\nthe information provided; and\n Whether the implementation of the Public Awareness Program is impacting\nbottom-line results (such as a reduction in the number of incidents caused by\nthird-party damage).\nThe Notice addressed each of these four measures, alleging that the consultant retained by SPLP\nfailed to provide any analysis of the data that had been provided to him by SPLP to support his\nconclusions about the overall effectiveness of SPLP’s program. Moreover, it alleged that in one\ninstance where specific data was actually provided, the data was inaccurate.\nSPLP contested this allegation of violation and provided additional context and supporting\ndocuments.13 Respondent also submitted additional data, including its 2015 Public Awareness\nProgram Effectiveness Research Survey (PAPERS) results and Effectiveness Measurement\nReports (EMRs) for 2012-2015.\n12 2014 Program Effectiveness Evaluation, Violation Report, Exhibit A-Violation 2.\n13 Respondent noted that the statements, data, and evaluation of the PAP pertained to the entirety of the pipeline\nmileage operated by SPLP that was subject to 49 C.F.R. § 195.440, not just the Mid-Valley Pipeline system.\n\n\n\nCPF No. 2-2016-5006\nPage 8\nRespondent argued that the statements in its Effectiveness Evaluation were supported by a vast\namount of information and data provided to its consultant during his review of SPLP’s PAP.\nRespondent noted that the consultant reviewed Business Reply Card (BRC) returns, SPLP’s PAP\n(Version 3.4, dated March 31, 2014), the annual distribution of pipeline-safety materials to\nstakeholders, documents from liaison meetings with stakeholder groups, minutes of the annual\nmeetings of the Public Awareness Program Team/Steering Committee, effectiveness measures\ntools such as the API PAPERS surveys in which SPLP participated, and annual EMRs generated\nby the third-party vendor utilized by SPLP to assist in program implementation. In addition,\nRespondent noted that the consultant who performed the effectiveness evaluation was a former\ncommunity-liaison manager for PHMSA and had conducted approximately 40 PAP inspections\nwhile with PHMSA.\nAnalysis\nSection 195.440(a) requires that pipeline operators follow the guidance in API RP 1162 in\nimplementing their written continuing public education program. As mentioned above, API RP\n1162, Section 8.4, states that operators “should assess progress” on the four measures quoted\nabove to determine “whether the actions undertaken in implementation of this [Recommended\nPractice 1162] are achieving the intended goals and objectives” and to determine if revisions are\nnecessary to the PAP plan, implementation, materials, frequency, or messages. 14 A “secondary\npurpose” is to demonstrate to company officials and federal and state regulators “the status and\nvalidity of the operator’s Public Awareness Programs.”15\nBut how are these goals to be accomplished? Neither § 195.440 nor the RP provides a specific\nformula or prescriptive approach for how operators must gather data on their PAPs or analyze\nthem. This is left to the discretion of the operator, as is the decision whether to perform this\nwork in-house or to use contractors. To determine whether an operator has met the minimum\nrequirements of the regulation, we must look to several sources.\nThe first is the plain language and intent of the regulation itself. The intent of the regulation can\nbe partially discerned from the preamble of the public awareness final rule itself,16 which\nannounces PHMSA’s belief “that program evaluation is a key component for improving the\neffectiveness of operator public education programs and for improving pipeline safety\nawareness.” The preamble states that\n. . . without periodic evaluations to determine if [public education]\nprograms are reaching the intended audiences and increasing audience\nawareness of the appropriate and necessary safety information, the\n14 API Recommended Practice 1162, Section 8.4, Measuring Program Effectiveness, available at:\nhttps://primis.phmsa.dot.gov/comm/publicawareness/PARPI1162.htm (last accessed August 1, 2018).\n15 Id., at Section 8.1, Purpose and Scope of Evaluation.\n16 Pipeline Operator Public Awareness Program Final Rule, 70 Fed. Reg. 28833, 28839 (May 19, 2005), available at\nhttps://www.gpo.gov/fdsys/granule/FR-2005-05-19/05-9464 (last accessed August 1, 2018).\n\n\n\nCPF No. 2-2016-5006\nPage 9\nimpact and effectiveness of an operator’s program cannot be\ndetermined. Performing evaluations of the programs and making\nnecessary adjustments are the only ways to ensure implementation as\ndesigned and effectiveness in achieving intended goals.”17\nA second source is the various guidance that PHMSA has provided to operators since the final\nrule was first adopted in 2005. For example, PHMSA has advised operators that gathering\nsurvey and assessment data alone does not constitute satisfactory completion of an effectiveness\nevaluation. Rather, it is necessary to conduct a rigorous analysis of the data, identify potential\nimprovements, and document the analytical process by which conclusions were reached.\nSpecifically, the guidance states that when evaluating a PAP, operators must be able to:\n• Specify any findings or conclusions related to its program\neffectiveness, based on the gathered data;\n• Identify and implement recommended changes and improvements to\nits program based on its conclusions; and\n• Discuss the methodology used to evaluate its program effectiveness for\nall stakeholder audiences.18\nA third source is the enforcement history of § 195.440, which can show how PHMSA has\ninterpreted this regulation and provided fair notice to stakeholders of how it has applied the\nregulation through various enforcement actions.\nGiven these interpretive sources, I will consider each of four measures listed above and cited in\nthe Notice, as follows:\n8.4.1 Measure 1- Outreach: Percentage of Each Intended Audience Reached with Desired\nMessages\nThe Notice alleged that SPLP’s 2014 Effectiveness Evaluation failed to address whether\nRespondent’s messages had reached the intended stakeholder audiences. The Notice quoted the\nSPLP Effectiveness Evaluation as stating:\nBased on the number of mailings, the number of returns, and the estimated\npopulations of each stakeholder group, it appears that Sunoco is offering\nthe overwhelming majority of its stakeholders the opportunity to learn\nmore about pipeline safety.\nThe Notice alleged that the Effectiveness Evaluation failed to substantiate its conclusions by\n17 Id.\n18 PHMSA Public Awareness Program, FAQ, Question 11, available at\nhttps://primis.phmsa.dot.gov/comm/publicawareness/Public%20Awareness%20Effectiveness%20FAQs%20201109\n27.pdf (last accessed August 31,2017).\n\n\n\nCPF No. 2-2016-5006\nPage 10\nanalyzing the actual number of mailings, the actual number of mailing returns, or what would be\nconsidered an acceptable number of responses, or any trends in the data over the evaluation\nperiod. In addition, the Notice alleged that the one reference to specific data regarding the\npercentage of intended audience reached was inaccurate. The Notice alleged that the\nEffectiveness Evaluation indicated that Respondent had a BRC response rate of approximately 2-\n3% in 2013, which was ostensibly above the industry standard of less than 1%.19 However, the\ndata provided during the PHMSA inspection indicated that SPLP had a BRC response rate of\n0.73% in 2013, which is below the industry standard of 1%.20\nRespondent argued that the Effectiveness Evaluation’s conclusions were indeed supported by\ndata from the annual PAP mailings and BRC returns. Respondent noted that from 2012-2015,\n31,202 BRCs were returned out of 2,336,092 pipeline safety brochures sent out, which is an\noverall average response rate of 1.3%. Respondent stated that the response rate for some\nstakeholders was even higher. For farmers, Respondent noted that the response rate was over\n4% in 2012 and almost 2% in 2013. For emergency officials, Respondent noted that the\nresponse rate was 3.55% in 2012, 3% in 2014, and 3.09% in 2015. Respondent argued that the\nhigher response rate for various stakeholders supported the Effectiveness Evaluation’s statement\nthat Respondent had a response rate of approximately 2-3%.\nAPI RP 1162, Section 8.4.1, Measure 1, provides that an operator “should establish a\nmethodology to track the number of individuals or entities reached within an intended\naudience….”21 The goal of the measurement is to “help evaluate the effectiveness of the\ndelivery methods used.” In this case, the Effectiveness Evaluation did not include information\non the actual number of mailings, the actual number of mailing returns, what would be\nconsidered an acceptable response rate, trends observed over the course of the evaluation period,\nor details on how Respondent planned to improve its response rate. While Respondent provided\nthe number of mailings and BRC returns in its Response, the record is still devoid of any\nevidence that Respondent actually conducted any sort of analysis of whether its outreach\nmessages were effective in reaching stakeholders within the target geographic region along the\npipeline.\nAs such, I find that Respondent failed to evaluate whether its PAP was reaching the company’s\nintended stakeholder audiences.\n19 2014 Program Effectiveness Evaluation. See Pipeline Safety Violation Report (Violation Report) (December 9,\n2016) (on file with PHMSA), Exhibit A-Violation 2, at 2, stating: “In 2013, over 700,000 total mailings went out.\nSunoco enjoys a much higher response to Business Reply Cards (BRCs) than industry average (<1%, Sunoco ~2%-\n3%).”\n20 BRC Results 2013-2015, Violation Report, Exhibit A-Violation 2. See also, 2013 Effectiveness Measurement,\npage 2 of 54, Operator Response-Attachment 3.\n21 API Recommended Practice 1162, Section 8.4.1, Measuring Program Effectiveness, available at:\nhttps://primis.phmsa.dot.gov/comm/publicawareness/PARPI1162.htm (last accessed August 1, 2018).\n\n\n\nCPF No. 2-2016-5006\nPage 11\n8.4.2 Measure 2 - Understandability of the Content of the Message\nThe Notice alleged that the Effectiveness Evaluation’s statements regarding the understandability\nof the content of the PAP message were unsupported. The Effectiveness Evaluation stated that\n“Sunoco survey results (see above) confirm that Sunoco stakeholders are at least as intelligent as\nmost pipeline stakeholders.” The Notice alleged that the Effectiveness Evaluation did not\ncontain any of the referenced survey results. Moreover, the Notice stated that the regulatory\nstandard is whether stakeholders have “understood” the messages delivered by Respondent, not\nwhether they meet a certain level of intelligence.\nRespondent argued that the statements in the Effectiveness Evaluation were indeed supported\nand that the consultant had reviewed and relied upon the data and analysis of BRC returns and\nEMRs generated from each distribution of pipeline safety materials to stakeholders. In addition,\nRespondent argued that the Effectiveness Evaluation’s statement characterizing pipeline\nstakeholder “intelligence” was made upon a review of the analysis of BRC returns contained in\nthe EMRs and was the consultant’s professional opinion based on many years of experience,\n“having conducted approximately 40 PAP inspections while with PHMSA.”22\nI disagree. API RP 1162, Section 8.4.2, Measure 2, provides that an operator should assess the\npercentage of the intended stakeholder audience that understood and retained the key information\nin the PAP message received. The goal of the measurement is to “help evaluate the effectiveness\nof the delivery of the media, the message style, and content” and to “assess the effectiveness of\ndelivery methods used.” In this case, the Effectiveness Evaluation declared that, based on survey\nresults, \"Sunoco stakeholders are at least as intelligent as most pipeline stakeholders” but failed\nto include the referenced survey results or any data or statistics to support its claim regarding\nSunoco stakeholder’s level of understanding and retention of key information presented in the\nPAP messages. The EMR survey results provided by Respondent are simply a compilation of\nthe results from the BRCs and do not contain any analysis of the BRC results, the notation of any\ntrends, or any recommendations based on the BRC results.\nPHMSA has advised operators that gathering survey and assessment data alone does not\nconstitute satisfactory completion of an effectiveness evaluation. In following the provisions in\nAPI RP 1162, operators need to conduct an analysis of the data, document the analytical process\nby which their conclusions were reached, and identify potential improvements. The statements\nin SPLP’s Effectiveness Evaluation were purely conclusory; the fact that the statements were\nmade by a former PHMSA is immaterial. Since collecting data without analyzing it and making\nrecommendations based on the raw data falls short of the regulatory requirement, I find that\nRespondent failed to evaluate the understandability of the content of its PAP message.\n8.4.3 Measure 3 - Desired Behaviors by the Intended Stakeholder Audience\nThe Notice alleged that the Effectiveness Evaluation’s conclusions concerning the third measure\n(i.e., desired behaviors by the intended stakeholder audience) were unsupported and, in some\ninstances, irrelevant. In addressing this measure, the Effectiveness Evaluation stated:\n22 Response, at 5.\n\n\n\nCPF No. 2-2016-5006\nPage 12\nBased on feedback from business response cards, Sunoco’s generally\nexcellent rapport with landowners and other stakeholders along the pipeline;\nthe relative lack of third party damages and near misses; the cooperation of\nElected Officials and Emergency Responders; and the number of one-call\ntickets; it appears that Sunoco stakeholders do exhibit desired pipeline safety\nbehavior.\nThe Notice alleged that the Effectiveness Evaluation did not contain any information on\nfeedback from BRCs, the number of one-call tickets received, or the number of third-party\ndamage or near-miss events that Respondent had experienced. Further, the Notice alleged that\nRespondent’s “excellent rapport” with landowners and other stakeholders was irrelevant as to\nwhether they were actually motivated to respond appropriately because of the PAP materials\nprovided. In addition, the Notice alleged that it was unclear what type of cooperation from\nelected officials and emergency responders the Effectiveness Evaluation was being referred to or\nhow that cooperation was relevant to the ability of local officials to respond appropriately, based\nupon the PAP materials that Respondent had provided.\nRespondent argued that in preparing the Effectiveness Evaluation, MVPL’s consultant had\nutilized data from the 2012 and 2013 EMRs and the 2013 PAPERS survey, and had made a\ncharacterization of the results based on his analysis and experience, instead of repeating the\nabundant quantity of data that was available. Respondent also provided a sampling of the data\nfound in the EMRs.\nI am unpersuaded that MVPL followed the process outlined in Measure 3. This metric requires\nan operator to determine whether “appropriate prevention behaviors have been learned and is\n[sic] taking place when needed and whether appropriate response or mitigation behaviors would\noccur and have taken place.”23 It is a measure that assesses learned and, if applicable, actual\nreported behavior. Again, the Effectiveness Evaluation failed to contain any survey results, data,\nor statistics to support its claims regarding the effectiveness of Respondent’s PAP in ensuring\nthat appropriate prevention behaviors had been learned and were taking place when needed. The\nEffectiveness Evaluation failed to explain how Respondent’s “rapport” with stakeholders was\nrelevant to determining if stakeholders exhibited desired behaviors, or how cooperation from\nElected Officials and Emergency Responde","truncated":true,"body_characters":49069}