{"operation":"document","citation":"CPF 320085002","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":"2008-03-11","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.412, 195.589.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-320085002.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-320085002.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-320085002","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/320085002","body":"Notice of Probable Violation involving SUNOCO PIPELINE L.P.. PHMSA's enforcement data identifies the cited regulations as 195.412,  195.589. The case was opened on 2008-03-11 and is reported as closed as of 2011-01-07. Proposed civil penalty: $44,000. Assessed civil penalty: $34,000. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n320085002_Final Order_12162010.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320085002/320085002_Final%20Order_12162010.pdf\n\n320085002_Final Order_12162010_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320085002/320085002_Final%20Order_12162010_text.pdf\n\n320085002_NOPV PCP_03112008.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320085002/320085002_NOPV%20PCP_03112008.pdf\n\n320085002_nopv pcp_03112008_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320085002/320085002_nopv%20pcp_03112008_text.pdf\n\n320085002_Operator Response_04092008.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320085002/320085002_Operator%20Response_04092008.pdf\n\n320085002_Operator Response_08192008.pdf: https://primis.phmsa.dot.gov/enforcement-documents/320085002/320085002_Operator%20Response_08192008.pdf\n\n320085002_Final Order_12162010_text.pdf\n\nDEC 16 2010\nMr. David Justin\nVice President, Operations\nSunoco Pipeline, L.P.\n1818 Market Street, Suite 1500\nPhiladelphia, PA 19103\nRE: CPF No. 3-2008-5002\nDear Mr. Justin:\nEnclosed please find the Final Order issued in the above-referenced case. It withdraws part of an\nallegation of violation, makes a finding of violation with respect to the other part, and assesses a\nreduced civil penalty of $34,000. The penalty payment terms are set forth in the Final Order.\nThis enforcement action closes automatically upon payment. Service of the Final Order by\ncertified mail is deemed effective upon the date of mailing, or as otherwise provided under 49\nC.F.R. § 190.5.\nThank you for your cooperation in this matter.\nSincerely,\nJeffrey D. Wiese\nAssociate Administrator\nfor Pipeline Safety\nEnclosure\ncc: Mr. David Barrett, Director, Central Region, PHMSA\nMr. Bruce D. Davis, Jr.\nVice President, General Counsel and Secretary\nSunoco Logistics Partners, L.P.\n1735 Market Street, Suite LL\nPhiladelphia, PA 19103-7583\nCERTIFIED MAIL – RETURN RECEIPT REQUESTED_[7005 1160 0001 0043 9429]\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. 3-2008-5002\n)\nRespondent. )\n______________________________)\nFINAL ORDER\nOn December 11-15, 2006, pursuant to 49 U.S.C. § 60117, a representative of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),\nconducted an on-site pipeline safety inspection of the facilities and records of Sunoco Pipeline,\nL.P. (Respondent or Sunoco), in Michigan and Ohio. Sunoco, a subsidiary of Sunoco Logistics\nPartners, L.P., operates approximately 3,600 miles of PHMSA-regulated pipelines transporting\ncrude oil, refined petroleum products, and highly volatile liquids in Texas, Pennsylvania, Ohio,\nNew Jersey, New York, and Michigan.1\nAs a result of the inspection, the Director, Central Region, OPS (Director), issued to Respondent,\nby letter dated March 11, 2008, a Notice of Probable Violation and Proposed Civil Penalty\n(Notice). In accordance with 49 C.F.R. § 190.207, the Notice proposed finding that Respondent\nhad violated 49 C.F.R. § 195.412(a) and proposed assessing a civil penalty of $44,000 for the\nalleged violation. The Notice also proposed finding that Respondent had committed another\nprobable violation of 49 C.F.R. Part 195 and warning Respondent to take appropriate corrective\naction to address such probable violation or be subject to future enforcement action.\nSunoco responded to the Notice by letters dated April 9, 2008, July 31, 2008, and August 19,\n2008 (collectively, Response). Sunoco contested the allegation and requested a hearing. A\nhearing was subsequently held via telephone conference on August 21, 2008, with Renita K.\nBivins, an attorney in the Office of Chief Counsel, PHMSA, presiding. At the hearing,\nRespondent was represented by counsel. Respondent was given 30 days to provide a post-\nhearing submission. After the hearing, the company provided additional written material for the\nrecord by letter dated September 12, 2008, including a summary of the information it had\npresented at the hearing (Supplemental Response). OPS was also given 30 days to submit\nadditional information and submitted Google Map aerial photographs of Respondent’s right-of-\nway during the subject period.\n1 2010 submissions by Sunoco to the Office of Pipeline Safety’s Online Data Entry System (ODES) Administration;\nPHMSA internal records.\n\n\n\n2\nFINDING OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Part 195, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.412(a), which states:\n§ 195.412 Inspection of rights-of-way and crossings under navigable\nwaters.\n(a) Each operator shall, at intervals not exceeding 3 weeks, but at least\n26 times each calendar year, inspect the surface conditions on or adjacent\nto each pipeline right-of-way. Methods of inspection include walking,\ndriving, flying or other appropriate means of traversing the right-of-way.\nThe Notice alleged that Respondent violated 49 C.F.R. §195.412(a) by failing to adequately\ninspect the surface conditions on or adjacent to each pipeline right-of-way, using aerial or foot\npatrols, at intervals not exceeding 3 weeks, but at least 26 times each calendar year. According\nto the Notice, the week-long PHMSA audit included observations of Sunoco’s active rights-of-\nway and its aerial and foot patrol programs. Specifically, the Notice alleged that the OPS\ninspector observed two areas that were overgrown along Sunoco’s Medina Main Line Block\nValve and the Hudson Pump Station rights-of-way. The two areas alleged to have been\novergrown lay between Cook and Nichols Roads (Cook Road area),\nLane and Oak Hill Road (Candlewood area) in Summit County, Ohio. At the hearing, Sunoco\nsubmitted Exhibits CR-1 through CR-8 and addressed the two areas separately.\n2 and between Candlewood\nCook Road Area\nSunoco contended that the 3,400-foot-long Cook Road area, with the exception of a 430-foot\nportion, was patrolled by foot, and that the right-of-way was cleared in accordance with all\napplicable regulations. As for the 430-foot portion, Sunoco contended that the area was clearly\nvisible by aerial patrol, as required by 49 C.F.R. § 195.412(a). Sunoco explained that, of the\n430-foot portion, only 150 feet were covered with pine trees that do not lose their foliage; the\nremaining 280 feet of the right-of-way were covered by deciduous trees, making aerial\nobservation possible from October through May. Respondent further explained that this 430-\nsection of the right-of-way was bordered on the south side by a residential driveway and garage,\nmaking aerial observation of the right-of-way feasible during the winter and summer.\nRespondent also explained that its air patrol contract required weekly air patrols for rights-of-\nway, with 35 to 40 patrols per year, conditions permitting. Respondent stated that the frequency\nof air patrols was well above the 26 times per year required by 49 C.F.R. § 195.412(a).\nIn support of its position, Respondent stated that during a post-audit teleconference with\nPHMSA, Sunoco’s air patrol pilot had reported that he could perform an adequate right-of-way\naerial patrol with the tree conditions on the right-of-way at that time. Respondent also stated that\non May 30, 2007, the pilot emailed Sunoco’s Region 3 Field Engineer with a list of right-of-way\nsections that were obscured by tree foliage and in need of ground right-of-way patrol, which\n2 Exhibit CR-1: Schematic showing Cook Road to Nichols Road segment of Sunoco’s 8-inch pipeline to be\napproximately 3,400 feet long.\n\n\n\n3\nincluded the Nichols and Cook Roads areas. Respondent further stated that it initiated a ground\npatrol of the Cook Road area right-of-way on June 15, 2007.\nIn response, OPS asserted that during its week-long audit it observed Sunoco’s active right-of-\nway patrolling program, including aerial and foot patrols. The inspector testified that he walked\npart of the right-of-way and photographed the subject areas. The OPS inspector further testified\nthat, during the audit, he discovered an area approximately ½ mile long and sections of the right-\nof-way in the Cooks and Nichols Road area covered by pine trees and deciduous trees up to one\nfoot in diameter, impeding aerial patrol. The OPS inspector also testified that the Cook Road\narea was not on Sunoco’s list of foot-patrolled areas and that Sunoco personnel indicated that the\narea was patrolled by air. During the hearing, OPS also pointed out that this was conflicting\ninformation, as Respondent testified that the area was patrolled both by air and foot.\nIn support of its position that the area was overgrown, OPS submitted an October 2000\nTerraServer3 satellite photograph of the area. OPS also submitted Google maps with satellite\naerial photographs.4 OPS asserted that the photographs submitted by Sunoco actually supported\nthe allegation of violation5 and that the photographs showed the right-of-way to be overgrown,\nthus reducing visibility and making appropriate aerial patrolling unlikely.\nRespondent took exception to the satellite photo introduced by OPS and included on page 7 of\nthe Violation Report (VR). Respondent argued that the photo resolution was not clear and was\nnot an accurate depiction of the foliage during the December 2006 audit, as the photo was taken\nin June 2007. Sunoco further argued that the photo should not be used to determine compliance\nbecause it was taken six months after the audit. Sunoco also argued that, even if accepted, the\nphotos were favorable to Respondent because they showed most of the right-of-way as being\nclear and visible.\nRespondent asserted that on June 8, 2006, six months prior to the OPS audit, Sunoco emailed6\nthe air patrol pilot to ask if there were any areas obscured from aerial view. Respondent\nexplained that the June 14, 2006 response from the air patrol pilot identified several areas that\nwere obscured by tree growth, but that the Cook Road area was not included on the list.7\n3 The TerraServer viewer allows users to select imagery from different dates and of different resolutions. While\nmost of the TerraServer imagery is focused on high-resolution, color, satellite and aerial imagery, TerraServer.com\nalso offers Color Infrared Imagery, Panchromatic Imagery, Low Resolution Satellite Imagery, and Topographic\nMaps. TerraServer provides access to drawing and measuring tools that can measure surface distance and area on an\nimage.\n4 Satellite photo taken October 12, 2002 from the Terraserver.com, OPS Violation Report (VR), Exhibit A, p. 6;\nPhoto of right-of-way taken June 2007, VR p. 7; Photo from TerraServer.com taken October 12, 2000, VR p. 8; and\nPhoto taken June 25, 2007 from bottom of the hill looking west towards right-of-way, VR p. 9.\n5 The photographs taken by Respondent’s air patrol were labeled as “Exhibit CR-2, an aerial photograph of the\nright-of-way on December 27, 2006,” and “Exhibit CR-3, an aerial photograph of the right-of-way taken May 24,\n2007.”\n6 Sunoco Exhibit CR-6, Email from Sunoco to air patrol pilot asking, “would you be able to let me know if there are\nany areas along our right of way that you can’t see…?”, dated June 8, 2006, and email response from pilot, dated\nJune 14, 2006.\n7 Sunoco Exhibit CR-6. Email response from air patrol pilot, dated June 14, 2006.\n\n\n\n4\nRespondent explained that the same inquiry was made of the pilot on January 26, 2007, two\nadvised Sunoco that it was winter and no leaves were on the trees. Sunoco continued to assert\nmonths following the OPS audit. In an email response,8 dated February 7, 2007, the pilot\nthat the right-of-way was clear. Respondent stated that its records indicating the completion of\nthe patrols were signed on January 10, 2007, and May 16, 2007, respectively.\nThe OPS inspector countered that he personally walked the right-of-way, saw dense foliage,\nspoke to Respondent’s personnel about the right-of-way, and discussed the history of the line\nduring the OPS audit. OPS explained that the photos provided an overview of the status of the\nright-of-way with a snapshot of moments in time, showing an aerial view of the overgrown\nsurface condition of Sunoco’s right-of-way. OPS further explained that the satellite\nphotographs9 showed the right-of-way was not clear, although Respondent’s aerial records\nindicated continuous patrolling throughout years 2001 through 2007.\nOPS also testified that, although Sunoco personnel indicated that the area was aerially patrolled,\nRespondent’s email dated June 26, 2007, indicated the area was supposed to be included in the\nfoot patrol process on January 26, 2006, and January 12, 2007. However, Sunoco’s records\nshow the Cook Road area foot patrols did not start until June 15, 2007, after the December 2006\naudit. OPS also testified that, prior to June 15, 2007, Sunoco indicated that it did not consider\nthis area to be in need of foot patrols, yet the pilot’s aerial photographs10 showed the area to be\novergrown at that time.\nAfter considering all the evidence, I find that a portion of the Cook Road right-of-way was not\nclearly visible by aerial patrol. The photo on page 7 of the Violation Report shows a marker\nunder a pine tree and that the first 150 to 200 feet of the right-of-way were under pine trees.\nRespondent’s own Exhibit CR-2 and Exhibit CR-3 show the right-of-way to be overgrown in a\ntime of tree growth. Sunoco acknowledged that the 430-foot tree-covered section of the right-of-\nway was in need of what it referred to as “First Round Clearing.” I also find that there is no\nevidence that the Cook Road area was on Respondent’s list of foot-patrolled areas. Sunoco did\nnot submit its 2006 “Right of Way Patrol” records, either before or during the hearing, to show\nthat it performed foot patrols of the area. Although Respondent submitted its 2007 “Right of\nthe 2006 OPS audit, as the foot patrol records started in June 15, 2007.\nWay Patrol” records,11 the records are not relevant to the allegation of violation stemming from\n8 Sunoco Exhibit CR-7. Email regarding obscured right-of-way from Northern States Aviation, dated February 7,\n2007.\n9 Satellite photo taken October 12, 2002 from the Terraserver.com, VR, Exhibit A, p. 69; Photo from\nTerraServer.com October 12, 2000, VR p. 8.\n10 Patrol pilot photograph of right-of-way, VR, Exhibit A, p. 5.\n11 Sunoco Exhibit CR-8; Right of Way Patrol, DOT 195.412, Week Ending June 2, 2007; Week Ending June 16,\n2007; Week Ending June 30, 2007; Week Ending July 13, 2007; Week Ending July 28, 2007; Week Ending August\n7, 2007; Week Ending August 22, 2007; Week Ending September 15, 2007; Week Ending September 29, 2007;\nWeek Ending October 13, 2007; Week Ending October 27, 2007; Week Ending November 10, 2007; and Week\nEnding November 21, 2007.\n\n\n\n5\nI further find that Sunoco failed to demonstrate that it performed foot patrols of the areas where\novergrown trees on the right-of-way precluded effective inspection of the condition of the\npipeline surface conditions by aerial patrol. The photo on page 7 of the Violation Report, taken\nduring the December audit, shows that the right-of-way was covered by tree foliage, reducing the\nlikelihood that it was visible by aerial patrol. Therefore, I reject Sunoco’s argument that its pilot\ncould see the Cook Road area right-of-way and that the areas not visible were foot-patrolled. The\ninability to effectively inspect the right-of-way by aerial patrol, combined with the lack of foot\npatrol records, demonstrates that Sunoco failed to adequately patrol its rights-of-way within the\nrequired intervals. Accordingly, I find that Respondent violated 49 C.F.R. § 195.412(a) by\nfailing to inspect the Cook Road area surface conditions on or adjacent to each pipeline right-of-\nway, at intervals not exceeding three weeks, but at least 26 times each calendar year.\nThis finding of violation will be considered a prior offense in any subsequent enforcement action\ntaken against Respondent.\nCandlewood Area\nAs for the Candlewood area, Sunoco contended that the allegation of violation in the Notice was\ninaccurate. Sunoco attributed the inaccuracy to statements it made during the OPS audit.\nSunoco testified to making statements that confused an “old” right-of-way” with the existing\nright-of-way. Respondent explained that it mistakenly stated that a section of pipeline along the\nCandlewood area right-of-way was replaced by a horizontal directional drill (HDD) and that the\nreplacement pipe was not on the original right-of-way. During the hearing, Sunoco presented\ninformation to show that the HDD was indeed on the original right-of-way. Respondent clarified\nthat the 1990 HDD was installed directly under the existing pipeline right-of-way for\napproximately 1,850 feet of the total 2,175-foot HDD length. Sunoco argued that the photo on\npage 9 of the Violation Report, captioned “old right of way,” was not representative of the\ndeciduous trees in eastern Ohio during the December audit. Respondent also contended that the\nphoto was not correct because there was no “old right of way.” Sunoco added that although the\ncaption reads, “looking west down the old pipeline right of way,” it is a photo of its current right-\nof-way. In support of its position, Sunoco also submitted alignment sheets.\nThe OPS inspector testified that the audit revealed the Candlewood area was not on Sunoco’s list\nof patrolled areas, and that Sunoco personnel indicated that the area was not foot-patrolled. The\nOPS inspector also stated that he walked the right-of-way with Respondent’s personnel, saw\ndense foliage, and discussed the history of the line, as well as Sunoco’s reasons for the HDD.\nOPS later accepted Respondent’s explanation and clarification regarding the location of the HDD\nand right-of-way.\nAfter considering all the evidence, I find that there was miscommunication, and that inaccurate\nstatements were made, during the OPS audit regarding the 1990 HDD and true location of the\npipeline, which led to this allegation of violation. Based upon Sunoco’s clarification that the\n1990 HDD was installed on the original pipeline right-of-way, this allegation of violation is\nwithdrawn.\n\n\n\n6\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. In determining the amount of a civil penalty under 49 U.S.C.\n§ 60122 and 49 C.F.R. § 190.225, I must consider the following criteria: the nature,\ncircumstances, and gravity of the violation, including adverse impact on the environment; the\ndegree of Respondent’s culpability; the history of Respondent’s prior offenses; Respondent’s\nability to pay the penalty and any effect that the penalty may have on its ability to continue doing\nbusiness; and the good faith of Respondent in attempting to comply with the pipeline safety\nregulations. In addition, I may consider the economic benefit gained from the violation without\nany reduction because of subsequent damages, and such other matters as justice may require.\nThe Notice proposed a total civil penalty of $44,000 for the violations cited above.\nItem 1: The Notice proposed a civil penalty of $44,000 for Respondent’s violation of 49 C.F.R.\n§ 195.412(a), for failing to adequately inspect the Cook Road and Candlewood area surface\nconditions on or adjacent to Medina Main Line Block Valve and the Hudson Pump Station\npipeline rights-of-way at intervals not exceeding 3 weeks, but at least 26 times each calendar\nyear.\nAs noted above, I found that Respondent failed to inspect the Cook Road area surface conditions\non or adjacent to each pipeline right-of-way, at intervals not exceeding three weeks, but at least\n26 times each calendar year. I further found that there was no basis for a similar allegation of\nviolation for the Candlewood area and therefore withdrew that portion of Item 1.\nMaintaining a system of inspection ensures reasonable promptness in the detection of all surface\nconditions on and adjacent to the pipeline right-of-way. Patrolling alerts the operator to any\nindication of pipeline leaks and the detection of excavation activity that could affect the safe\noperation of the pipeline.\nBased upon the withdrawal of part of the allegation of violation, I am reducing the civil penalty.\nAccordingly, having reviewed the record, the nature of the circumstances, gravity of the\nviolation, including location of the pipe in an HCA and length of time the violation existed, I\nassess Respondent a reduced total civil penalty of $34,000.\nPayment of the civil penalty must be made within 20 days of service. Federal regulations\n(49 C.F.R. § 89.21(b)(3)) require this payment 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 (AMZ-341), Federal Aviation Administration, Mike\nMonroney Aeronautical Center, P.O. Box 269039, Oklahoma City, OK 73125; (405) 954-8893.\nFailure to pay the $34,000 civil penalty will result in accrual of interest at the current annual rate\nin 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\n\n\n\n7\nmay result in referral of the matter to the Attorney General for appropriate action in a United\nStates District Court.\nWARNING ITEM\nWith respect to Item 2, the Notice alleged a probable violation of Part 195 but did not propose a\ncivil penalty or compliance order for this item. Therefore, this is considered to be a warning\nitem. This warning was for:\n49 C.F.R. §195.589(c) (Item 2) ─ Respondent’s alleged failure to maintain\nrecords to demonstrate that it inspected each pipeline or portion of\npipeline that is exposed to the atmosphere for evidence of atmospheric\ncorrosion. Specifically, Respondent allegedly failed to provide\ndocumentation of atmospheric corrosion inspections for spans located at\nMP 171.9, MP 172, MP 175, and MP 175.5, as required by 49 C.F.R.\n§195.583(a) and (b).\nRespondent presented information in its Response showing that it had taken certain actions to\naddress the cited items. Having considered such information, I find, pursuant to 49 C.F.R.\n§ 190.205, that a probable violation of 49 C.F.R. § 195.589(c) (Notice Item 2) has occurred, and\nRespondent is hereby advised to correct such conditions. In the event that OPS finds a violation\nfor this item in a subsequent inspection, Respondent may be subject to future enforcement action.\nUnder 49 C.F.R. § 190.215, Respondent has the right to submit a Petition for Reconsideration of\nthis Final Order. The petition must be sent to: Associate Administrator, Office of Pipeline\nSafety, PHMSA, 1200 New Jersey Avenue, SE, East Building, 2nd Floor, Washington, DC\n20590, with a copy sent to the Office of Chief Counsel, PHMSA, at the same address. PHMSA\nwill accept petitions received no later than 20 days after receipt of the Final Order by the\nRespondent, provided they contain a brief statement of the issue(s) and meet all other\nrequirements of 49 C.F.R. § 190.215. The filing of a petition automatically stays the payment of\nany civil penalty assessed but does not stay any other provisions of the Final Order, including\nany required corrective actions. If Respondent submits payment of the civil penalty, the Final\nOrder becomes the final administrative decision and the right to petition for reconsideration is\nwaived.\nThe terms and conditions of this Final Order are effective upon service in accordance with 49\nC.F.R. § 190.5.\n___________________________________ __________________________\nJeffrey D. Wiese Date Issued\nAssociate Administrator\nfor Pipeline Safety","truncated":false,"body_characters":24460}