{"operation":"document","citation":"CPF 420165022","title":"WEST TEXAS GULF PIPELINE CO — Notice of Probable Violation","source_type":"enforcement","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2016-07-07","effective_on":null,"summary":"CLOSED notice of probable violation citing 195.204, 195.402(a), 195.402(c)(13), 195.402(c)(3), 195.402(c)(5), 195.402(c)(6), 195.402(e)(9), 195.505, 195.505(a), 195.505(b), 195.505(d), 199.105(b), 199.225(a)(1).","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-enforcement-420165022.json","markdown":"https://regulus.evalyn.ai/document/phmsa-enforcement-420165022.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-enforcement-420165022","source_url":"https://primis.phmsa.dot.gov/enforcement-data/case/420165022","body":"Notice of Probable Violation involving WEST TEXAS GULF PIPELINE CO. PHMSA's enforcement data identifies the cited regulations as 195.204,  195.402(a),  195.402(c)(13),  195.402(c)(3),  195.402(c)(5),  195.402(c)(6),  195.402(e)(9),  195.505,  195.505(a),  195.505(b),  195.505(d),  199.105(b),  199.225(a)(1). The case was opened on 2016-07-07 and is reported as closed as of 2019-12-09. Proposed civil penalty: $1,539,800. Assessed civil penalty: $1,019,200. Open the official case record for notices, responses, orders, and the latest status.\n\nOfficial case documents:\n\n420165022_Corrected Final Order_12092019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165022/420165022_Corrected%20Final%20Order_12092019.pdf\n\n420165022_Corrected Final Order_12092019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165022/420165022_Corrected%20Final%20Order_12092019_text.pdf\n\n420165022_Final Order_11082019.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165022/420165022_Final%20Order_11082019.pdf\n\n420165022_Final Order_11082019_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165022/420165022_Final%20Order_11082019_text.pdf\n\n420165022_NOPV PCP PCO_07072016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165022/420165022_NOPV%20PCP%20PCO_07072016.pdf\n\n420165022_NOPV PCP PCO_07072016_text.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165022/420165022_NOPV%20PCP%20PCO_07072016_text.pdf\n\n420165022_Operator Response to Notice and Request for Hearing_08042016.pdf: https://primis.phmsa.dot.gov/enforcement-documents/420165022/420165022_Operator%20Response%20to%20Notice%20and%20Request%20for%20Hearing_08042016.pdf\n\n420165022_Final Order_11082019_text.pdf\n\nNovember 8, 2019\nMr. Kelcy L. Warren\nChief Executive Officer\nEnergy Transfer Partners, LP\n8111 Westchester Drive\nDallas, Texas 75225\nRe: CPF No. 4-2016-5022\nDear Mr. Warren:\nEnclosed please find the Final Order issued in the above-referenced case to your subsidiary,\nSunoco Logistics Partners, LP. It withdraws three allegations of violation, makes other findings\nof violation, assesses a reduced civil penalty of $1,019,200, and withdraws the proposed\ncompliance order. The penalty payment terms are set forth in the Final Order. When the civil\npenalty has been paid, as determined by the Director, Southwest 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: Ms. Mary McDaniel, Director, Southwest Region, Office of Pipeline Safety, PHMSA\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 )\nSunoco Logistics Partners, LP, ) CPF No. 4-2016-5022\na subsidiary of Energy Transfer Partners, LP, )\n)\n)\n)\nRespondent. )\n__________________________________________)\nFINAL ORDER\nFrom March to September 2015, pursuant to 49 U.S.C. § 60117, representatives of the Pipeline\nand Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS),\nconducted an accident investigation of the facilities and records of Sunoco Logistics Partners, LP\n(Respondent), in Wortham, Texas. Sunoco owned1 the West Texas Gulf Pipeline Company\n(WTG), a 26-inch, 580-mile pipeline system that transports crude oil from Colorado City to\nLongview, Texas, with additional delivery points along the Gulf Coast. On March 4, 2015,\nfollowing an information request from the public, OPS initiated an investigation into an accident\nat Respondent’s Wortham facility in Texas. On or about February 19, 2013, vapors ignited while\nwelders were performing a pipeline modification, resulting in a serious injury.\nAs a result of the investigation, the Director, Southwest Region, OPS (Director), issued to\nRespondent, by letter dated July 7, 2016, a Notice of Probable Violation, Proposed Civil Penalty,\nand Proposed Compliance Order (Notice). In accordance with 49 C.F.R. § 190.207, the Notice\nproposed finding that Sunoco committed violations of 49 C.F.R. Parts 195 and 199 and proposed\nassessing a civil penalty of $1,539,800 for the alleged violations. The Notice also proposed\nordering Respondent to take certain measures to correct the alleged violations.\nSunoco responded to the Notice by letter dated August 4, 2016 (Response). Sunoco contested all\nof the allegations, offered additional information in response to the Notice, and requested a\nhearing. A hearing was subsequently held on March 28, 2017, in Houston, Texas, with an\nattorney from the Office of Chief Counsel, PHMSA, presiding. At the hearing, Respondent was\nrepresented by counsel.\n1 At the time of the accident, Sunoco owned WTG. On April 28, 2017, Energy Transfer Partners (ETP) and Sunoco\nLogistics Partners merged. This pipeline is now fully owned by Energy Transfer Partners (ETP). See\nhttps://ir.energytransfer.com/news-releases/news-release-details/sunoco-logistics-partners-and-energy-transfer-\npartners-announce/. (last accessed October 1, 2019).\n\n\n\nCPF No. 4-2016-5022\nPage 2\nFINDINGS OF VIOLATION\nThe Notice alleged that Respondent violated 49 C.F.R. Parts 195 and 199, as follows:\nItem 1: The Notice alleged that Respondent violated 49 C.F.R. § 195.204, which states:\n§ 195.204 Inspection–general.\nInspection must be provided to ensure that the installation of pipe or\npipeline systems is in accordance with the requirements of this subpart. Any\noperator personnel used to perform the inspection must be trained and\nqualified in the phase of construction to be inspected. An operator must not\nuse operator personnel to perform a required inspection if the operator\npersonnel performed the construction task requiring inspection. Nothing in\nthis section prohibits the operator from inspecting construction tasks with\noperator personnel who are involved in other construction tasks.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.204 by failing to ensure that the\noperator personnel, or third-party inspector, that it used to perform inspections was trained and\nqualified in the phase of construction to be inspected. On the day of the accident, Respondent’s\nthird-party contractor, Sprint Pipeline Services (Sprint), was tying in a 50-foot section of pipe.\nMustang Engineering (Mustang) was overseeing the construction work as a third-party inspector.\nSpecifically, the Notice alleged that Mr. Tolbert (Mustang employee) was performing\ninspections on February 18-19, 2013, despite the fact that he was neither trained nor qualified in\nthe construction tasks being performed.\nAt the hearing, Sunoco acknowledged that it was unable to present any evidence that Mr. Tolbert\nwas qualified at the time of OPS’ accident investigation. However, Sunoco produced some\nevidence in support of its contention that Mr. Tolbert was trained to the regulatory standard.\nFirst, Sunoco noted that OPS’ investigator, Ms. Molly Atkins, had attached Mr. Tolbert’s 2010\nresume to the Violation Report. This resume lists various qualifications. Second, Sunoco\npointed to a deposition transcript2 that discusses the general process that Mustang used to qualify\nits inspectors. It argued that, even if it was not able to produce any direct evidence linking this\nprocess to Mr. Tolbert, given the time frame of the inspection services (February 18-19, 2013),\nMr. Tolbert would have undergone a training and qualification process. Third, Respondent\nstated that its contract with Mustang required them to ensure that its inspectors were\nappropriately qualified.\nOPS countered that Sunoco is ultimately responsible for ensuring that its personnel, including its\nthird-party contractors, are “trained and qualified in the phase of construction to be inspected.”\nSunoco provided no direct evidence that Mr. Tolbert was qualified to oversee the work being\nperformed on February 18-19, 2013. While the regulation does not require an operator to have a\nspecific qualification process, it must ensure that its personnel are “trained and qualified” to the\ntask by establishing a standardized process that itemizes the training and qualification process for\n2Sunoco presented evidence throughout the hearing that was produced pursuant to a third-party civil litigation\nrelated to the Wortham accident. This litigation will be referred to as “the Talbot litigation.”\n\n\n\nCPF No. 4-2016-5022\nPage 3\ndifferent construction phases. Despite the fact that Sunoco was able to produce Mr. Tolbert’s\nresume and provide evidence that it established an inspector vetting process around the time of\nthe accident, it has no direct evidence that Mustang (or Sunoco) followed any process to\nestablish Mr. Tolbert’s qualifications for the specific phases of work that he was overseeing on\nFebruary 18-19, 2013.3 In its Post-Hearing Brief, Sunoco focuses on the phase of construction\n(demagnetization) that was occurring at the time of the accident. However, the Notice alleges,\nand I agree, that Mr. Tolbert was required to be properly qualified for all of the phases of\nconstruction that he was overseeing on February 18-19, 2013.\nAccordingly, after considering all of the evidence, I find that Sunoco failed to ensure that the\noperator personnel used to perform inspections were trained and qualified in the phases of\nconstruction to be inspected.\nItem 2: The Notice alleged that Respondent violated 49 C.F.R. § 195.402, which states in\nrelevant part:\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. This manual shall be reviewed at intervals not exceeding 15\nmonths, but at least once each calendar year, and appropriate changes made\nas necessary to insure that the manual is effective. This manual shall be\nprepared before initial operations of a pipeline system commence, and\nappropriate parts shall be kept at locations where operations and\nmaintenance activities are conducted.\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(1) ….\n(13) Periodically reviewing the work done by operator personnel to\ndetermine the effectiveness of the procedures used in normal operation and\nmaintenance and taking corrective action where deficiencies are found.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.402(c)(13) by failing to follow its\nown procedures for periodically reviewing its work and determining the effectiveness of the\nprocedures used in normal operation and maintenance and taking corrective action where\ndeficiencies are found. Specifically, the Notice alleged that Sunoco failed to follow these\nprocedures at the Wortham facility: Hot Work Procedure HS-P-009, Lockout-Tagout Program\nHS-P-005, and Overview of Work Permits Procedure HS-G-012. Each procedure required\nSunoco to conduct evaluations at certain intervals to ascertain whether Hot Work,\nLockout/Tagout (LOTO), and Work Permit procedures were being followed. During OPS’\n3 “Mr. Herring: Right, he didn’t specifically mention Mr. Tolbert…What we have available is Mustang’s\nrepresentations of the process that they followed (Hearing Transcript, at 44).”\n\n\n\nCPF No. 4-2016-5022\nPage 4\nyearlong investigation4, Sunoco was unable to provide any records for the Wortham facility that\ndemonstrated it performed these evaluations.\nAt the hearing, Sunoco produced records that it claimed were discovered in paper form just prior\nto the hearing. These included: (1) a collection of executed permits (Hearing Exhibit 1) and (2) a\ncollection of lockout-tagout inspection checklists (Hearing Exhibit 2). In the Regional Director’s\nwritten evaluation of the response material submitted in the Post-Hearing Brief, the Director\nnoted that Exhibit 1 does not indicate whether the required audit occurred or include the required\nreview. After reviewing the documents submitted in these exhibits, the Director stated that each\nform either lacked specific detail or was not signed by authorized representatives.\nAfter conducting a review of these documents and Sunoco’s own procedures, I find that Sunoco\ndid not fully comply with any of these procedures. The Respondent argues that, as an unmanned\nfacility, Wortham was not required to comply with the annual evaluation requirements\nenumerated in these three procedures. I do not agree. The procedures themselves do not include\nan exception for unmanned facilities, and there is no question that the Wortham facility did not\nconduct an evaluation of the Hot Work Procedure in 2013. In addition, as noted by the Director,\nthe evaluations that were submitted appear incomplete (unsigned).\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated 49\nC.F.R. § 195.402(c)(13) by failing to follow its own procedures for periodically reviewing its\nwork and determining the effectiveness of the procedures used in normal operation and\nmaintenance and taking corrective action where deficiencies are found.\nItem 3: The Notice alleged that Respondent violated 49 C.F.R. § 195.402, which states in\nrelevant part:\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. This manual shall be reviewed at intervals not exceeding 15\nmonths, but at least once each calendar year, and appropriate changes made\nas necessary to insure that the manual is effective. This manual shall be\nprepared before initial operations of a pipeline system commence, and\nappropriate parts shall be kept at locations where operations and\nmaintenance activities are conducted.\n(e) Emergencies. The manual required by paragraph (a) of this section\nmust include procedures for the following to provide safety when an\nemergency condition occurs:\n(1) ….\n(9) Providing for a post accident review of employee activities to\ndetermine whether the procedures were effective in each emergency and\ntaking corrective action where deficiencies are found.\n4 The investigation was initiated on March 4, 2015, and continued until issuance of the Notice on July 7, 2016.\n\n\n\nCPF No. 4-2016-5022\nPage 5\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.402(e)(9) by failing to follow its\nown procedures to provide for a post-accident review of employee activities to determine\nwhether the procedures were effective in an emergency and taking corrective action where\ndeficiencies are found. Specifically, the Notice alleged that Sunoco failed to conduct a review\nfollowing the Wortham accident to determine whether its procedures were effective or to take\nany corrective action. Sunoco’s procedure OPER-PR-002 (Paragraph 4.3.3), Spill Reporting,\nRoot Cause Analysis and Documentation, required Sunoco to prepare a Serious Incident\nInvestigation Report (SII) following the Wortham accident. Pursuant to the SII, Sunoco was to\ndevelop a “Lessons Learned” document that complies with § 195.402(e)(9), or “provide(s) for a\npost-accident review of employee activities to determine whether the procedures were effective\nin each emergency and taking corrective action where deficiencies are found.” However, at the\ntime of OPS’ inspection, Mr. Todd Nardozzi, Compliance Manager, Sunoco, stated that Sunoco\nhad never completed a “Lessons Learned” document.5\nAt the hearing and in its Post-Hearing Brief, Sunoco acknowledged that it never developed a\n“Lessons Learned” document and therefore failed to follow its own procedure.6 However, it\ncontended that Item 3 was duplicative of the allegation in Item 4 and relies on the same failure to\nfollow OPER-PR-002, or to prepare a complete and accurate Serious Incident Investigation\nReport for the Wortham accident. I will discuss this argument further in the discussion of Item\n4. However, this Item alleges, and I so find, that Sunoco failed to complete its Serious Incident\nInvestigation Report, an integral part of complying with the regulatory requirement to conduct a\npost-accident review.\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated 49\nC.F.R. § 195.402(e)(9) by failing to follow its own procedures to provide a post-accident review\nof employee activities to determine whether its procedures were effective and taking corrective\naction where deficiencies were found.\nItem 4: The Notice alleged that Respondent violated 49 C.F.R. § 195.402, which states in\nrelevant part:\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. This manual shall be reviewed at intervals not exceeding 15\nmonths, but at least once each calendar year, and appropriate changes made\nas necessary to insure that the manual is effective. This manual shall be\nprepared before initial operations of a pipeline system commence, and\nappropriate parts shall be kept at locations where operations and\nmaintenance activities are conducted.\n(c) Maintenance and normal operations. The manual required by\n5 Violation Report, at 22.\n6 “Mr. Dunleavy: We have not located a lessons-learned (Transcript, at 76).”\n\n\n\nCPF No. 4-2016-5022\nPage 6\nparagraph (a) of this section must include procedures for the following to\nprovide safety during maintenance and normal operations:\n(1) ….\n(5) Analyzing pipeline accidents to determine their causes.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.402(c)(5) by failing to follow its\nown procedures for analyzing pipeline accidents to determine their causes. Specifically, the\nNotice alleged that the Respondent failed to perform a complete analysis into the cause of the\naccident, as required by OPER-PR-002. This procedure comprises 11 pages and “defines the\nprocess by which spills are reported and documented.” The Notice alleges that the operator\nfailed to comply in the following ways: (1) failure to provide complete and accurate photographs\nfrom the accident scene, as required by OPER-PR-002, Section 4.2; and (2) failure to assemble\nan investigation team composed of cross functional employees, as required by OPER-PR-002,\nParagraph 4.3.3. The Notice also alleges various failures to adequately evaluate the Project\nWork Plan.\nAt the hearing, the Respondent did not contend that it abided by OPER-PR-002. However, it\nstated that § 195.402(e)(9) and § 195.402(c)(5) required the same post-accident review and\ntherefore Sunoco’s collective failure to follow the procedure should constitute a single violation.\nOPS argued that § 195.402(e)(9) and § 195.402(c)(5) required the completion of different\nanalyses. Item 3 focused on Sunoco’s failure to complete a Lessons Learned document that\nwould have put Sunoco into compliance with the required post-accident review (§ 195.402(e)(9))\nwhen an emergency condition occurs (emphasis added). Item 4, however, (§ 195.402(c)(5))\nfocuses on Sunoco’s failure to analyze the cause of this accident pursuant to its manual for\nmaintenance and normal operations (emphasis added). In OPS’ view, Items 3 and 4 are\ntherefore properly the basis of two separate violations of two separate procedures required by\ndifferent parts of § 195.402.\nAdmittedly, Item 4 refers to Sunoco’s failure to complete the Lessons Learned document (Item\n3) and how this failure also violates § 195.402(c)(5). Blockburger v. United States, 284 U.S.\n299, 304 (1932) requires a determination of whether there are two offenses or only one. 7 The\nrelevant test is to determine whether the multiple alleged violations “each require proof of any\nadditional fact or have their own ‘evidentiary basis.’”8 I find that there is a separate evidentiary\nbasis for Item 4 – apart from the failure to complete the Lessons Learned document.\nThe Violation Report details multiple instances where Sunoco failed to follow its own procedural\nrequirements. Simply because these actions are required by the same 11-page procedure that\nalso required the “Lessons Learned” document does not mean that Sunoco’s failure cannot form\nthe basis of separate violations. In this case, there are two separate acts, including: (1) failure to\nprovide complete and accurate photographs from the accident scene, as required by OPER-PR-\n002, Section 4.2; and (2) failure to assemble an investigation team composed of cross functional\n7 Blockburger v. United States, 284 U.S. 299, 304 (1932).\n8 In re Colo. Interstate Gas, Final Order, CPF No. 5-2008-1005, 2009 WL 5538649, at **11-13 (D.O.T Nov. 23,\n2009).\n\n\n\nCPF No. 4-2016-5022\nPage 7\nemployees, as required by OPER-PR-002, Paragraph 4.3.3. These acts are separate from the\n“act” of failing to complete the Lessons Learned document.\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated 49\nC.F.R. § 195.402(c)(5) by failing to follow its own procedures for analyzing pipeline accidents to\ndetermine their causes.\nItem 5: The Notice alleged that Respondent violated 49 C.F.R. § 195.402, which states in\nrelevant part:\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. This manual shall be reviewed at intervals not exceeding 15\nmonths, but at least once each calendar year, and appropriate changes made\nas necessary to insure that the manual is effective. This manual shall be\nprepared before initial operations of a pipeline system commence, and\nappropriate parts shall be kept at locations where operations and\nmaintenance activities are conducted.\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(1) ….\n(6) Minimizing the potential for hazards identified under paragraph\n(c)(4) of this section and the possibility of recurrence of accidents analyzed\nunder paragraph (c)(5) of this section.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.402(c)(6) by failing to prepare and\nfollow its own procedure for minimizing the potential for hazards identified under paragraph\n(c)(4) and the possibility of recurrence of accidents analyzed under paragraph (c)(5).\nSpecifically, the Notice alleged that Sunoco’s procedure OPER-PR-002 (Paragraph 4.3.3), Spill\nReporting, Root Cause Analysis and Documentation, required Sunoco to take prompt remedial\naction to minimize the possibility of accident recurrence. In 2009, Sunoco experienced an\naccident on the West Texas Gulf Pipeline in Colorado City. In the Violation Report, OPS stated\nthat the circumstances of the 2009 Colorado City accident were similar in nature to the 2013\nWortham accident in the following ways: failure (1) to make required notice to the NRC; (2) to\ntimely submit a Form 7000-1; (3) to take corrective actions where deficiencies were found in\ndetermining the effectiveness of procedures; (4) to perform annual audits of work processes; (5)\nto prevent ignition of vapors; (6) to properly isolate or make safe for welding, cutting, and\nassociated hot work activities; and (7) to follow operating and maintenance procedures. On\naccount of the 2009 Colorado City accident, a Final Order was issued to Sunoco on August 1,\n2012.9 It found that Sunoco, among other things, failed to follow its procedures and adequately\n9 See In the Matter of Sunoco Logistics Partners, LP, Final Order, CPF No. 4-2010-5010 (Aug. 1, 2012). Decision\non Petition for Reconsideration (Dec. 31, 2012).\n\n\n\nCPF No. 4-2016-5022\nPage 8\ninvestigate the accident.\nAt the hearing, Sunoco stated that the Colorado City and Wortham accidents were different in\nnature and circumstance, despite the fact that both accidents involved a failure to follow\nprocedures during hot work,10 leading to a fire that caused injuries. Sunoco stated that the\nWortham accident happened solely due to human error, or the fact that its contractor personnel\nfailed to properly ground his equipment. In Colorado City, the explosion occurred when vapors\npassed through a mud plug during welding, allowing the explosion to occur. In its view, there\nwas nothing in the 2009 Colorado City accident to learn from that would have prevented the\n2013 Wortham accident because the contractor employee simply made a mistake in the latter\naccident. Given these differences, the Respondent argued that OPS did not meet its burden of\nproving that, even if Sunoco had identified the issues in Colorado City, that the Wortham\naccident would not have occurred.11\nThis regulation does not require OPS to prove that the failures in Colorado City and Wortham\nare identical, or even largely similar. It simply requires that, when an operator experiences a\nfailure, it take steps to minimize the potential for hazards identified under paragraph (c)(4) of\n§ 195.402 and the possibility of recurrence of accidents analyzed under (c)(5) of § 195.402.\n§ 195.402 (c)(4) requires that an operator’s manual for maintenance and normal operations\ninclude a procedure for “Determining which pipeline facilities are located in areas that would\nrequire an immediate response by the operator to prevent hazards to the public if the facilities\nfailed or malfunctioned.” Section 195.402 (c)(5) requires that an operator’s manual for\nmaintenance and normal operations include a procedure for “Analyzing pipeline accidents to\ndetermine their causes.” Sunoco’s procedure OPER-PR-002 (Paragraph 4.3.3), Spill Reporting,\nRoot Cause Analysis and Documentation is the procedure that Sunoco implemented to fulfill the\nregulatory requirements of § 195.402 (c)(5).\nOPS argued that Sunoco’s failure to perform a root cause analysis following the 2009 accident\nallowed the Wortham accident to occur because Sunoco failed to complete its Serious Incident\nInvestigation or its Lessons Learned document in order to properly minimize the potential for\nfuture hazards, as required by § 195.402(c)(6). I agree. It is enough that OPS establish that\nSunoco failed to take any action, as required by OPER-PR-002, to produce a complete root cause\nfailure analysis following the Colorado City accident. If Sunoco had completed this analysis, it\ncould have argued that it fulfilled its obligation to minimize the potential for a future incident. It\nis evident that Sunoco failed to take any action following the Colorado City accident to minimize\nthe potential for hazards identified under paragraph (c)(4) or the possibility of recurrence of\naccidents analyzed under paragraph (c)(5).\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated 49\nC.F.R. § 195.402(c)(6) by failing to prepare and follow its own procedure for minimizing the\n10 Hot work is any work that involves burning, welding, using fire- or spark-producing tools, or that produces a\nsource of ignition. See https://www.osha.gov/SLTC/etools/oilandgas/general safety/hot work welding html (last\naccessed October 1, 2019).\n11 Mr. Nordozzi (Senior Manager, DOT Compliance): “There wasn’t a failure of the mud plug itself like we saw in\nColorado City where the vapors passed by vapor barrier. So I think that’s the distinction between the two that we\nare trying to illustrate.” (Transcript, at 74).\n\n\n\nCPF No. 4-2016-5022\nPage 9\npotential for hazards identified under paragraph (c)(4) and the possibility of recurrence of\naccidents analyzed under paragraph (c)(5).\nItem 6: The Notice alleged that Respondent violated 49 C.F.R. § 195.505(b), which states:\n§ 195.505 Qualification program.\nEach operator shall have and follow a written qualification program.\nThe program shall include provisions to:\n(a) ….\n(b) Ensure through evaluation that individuals performing covered tasks\nare qualified;\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.505(b) by failing to have and\nfollow a written qualification program with provisions to ensure through evaluation that\nindividuals performing covered tasks are qualified. Specifically, the Notice alleged that two\nwelders directly involved in the Wortham accident did not have proper qualifications.\nAt the hearing, Sunoco stated that its welders were properly qualified to weld despite the fact\nthat their ISNetworld records showed that their qualifications were expired. Sunoco’s written\nOperator Qualification procedures, Section 5.3, detail requalification frequency and afford a\nthree-month grace period (beyond the standard 36 months). It is undisputed that both welders\nwere within the three-month grace period. OPS argued that ISNetworld, the record keeper for\nSunoco’s OQ records, does not permit a three-month grace period, and therefore both welders\nwere unqualified at the time of the accident.\nDespite the contradiction between the procedures and the ISNetworld records, the Respondent\nwas not out of compliance, per its own procedures. Both welders were within the three-month\ngrace period. Based upon the foregoing, I hereby order that Item 6 be withdrawn.\nItem 7: The Notice alleged that Respondent violated 49 C.F.R. § 195.505(d):\n§ 195.505 Qualification program.\nEach operator shall have and follow a written qualification program.\nThe program shall include provisions to:\n(a) ….\n(d) Evaluate an individual if the operator has reason to believe that the\nindividual's performance of a covered task contributed to an accident as\ndefined in Part 195;\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.505(d) by failing to have and\nfollow a written qualification program with provisions to evaluate an individual if the operator\nhas reason to believe that the individual’s performance of a covered task contributed to an\naccident, as defined in Part 195. Specifically, the Notice alleged that Sunoco allowed Mr. Vern\nTolbert, Mr. Waymen Casey, and Mr. Danny Tant, all of whom were involved in the February\n19 accident, to complete tie-in welds on February 20, 2013 (the day after the accident), without\nconducting the requisite evaluation into their performance.\n\n\n\nCPF No. 4-2016-5022\nPage 10\nAt the hearing, Sunoco argued that this violation is duplicative of Item 6, relies on the same\nregulatory provision, and involves the same qualification issues. As stated above, I withdrew\nItem 6, rendering the duplication issue moot.\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated 49\nC.F.R. § 195.505(d) by failing to have and follow a written qualification program with\nprovisions to evaluate an individual if the operator has reason to believe that the individual’s\nperformance of a covered task contributed to an accident, as defined in Part 195.\nItem 8: The Notice alleged that Respondent violated 49 C.F.R. § 199.105(b), which states:\n§ 199.105 Drug tests required.\nEach operator shall conduct the following drug tests for the presence of\na prohibited drug:\n(a) ….\n(b) Post-accident testing. As soon as possible but no later than 32 hours\nafter an accident, an operator must drug test each surviving covered\nemployee whose performance of a covered function either contributed to\nthe accident or cannot be completely discounted as a contributing factor to\nthe accident. An operator may decide not to test under this paragraph but\nsuch a decision must be based on specific information that the covered\nemployee's performance had no role in the cause(s) or severity of the\naccident.\nThe Notice alleged that Respondent violated 49 C.F.R. § 199.105(b) by failing to conduct post-\naccident drug testing for each surviving covered employee whose performance of a covered\nfunction either contributed to the accident or cannot be completely discounted as a contributing\nfactor to the accident. Specifically, the Notice alleged that Sunoco reported on PHMSA Form\n7000-1 that it did not conduct any testing on employees or contractors following the Wortham\naccident. Sunoco also did not justify its decision not to test based on specific information that\nthe covered employee’s performance had no role in the cause or severity of the Wortham\naccident.\nRespondent did not contest this allegation of violation.\nAccordingly, based upon a review of the evidence, I find that Respondent violated 49 C.F.R.\n§ 199.105(b) by failing to conduct post-accident drug testing for each surviving covered\nemployee whose performance of a covered function either contributed to the accident or cannot\nbe completely discounted as a contributing factor to the accident.\nItem 9: The Notice alleged that Respondent violated 49 C.F.R. § 199.225, which states in\nrelevant part:\n§ 199.225 Alcohol tests required.\nEach operator must conduct the following types of alcohol tests for the\npresence of alcohol:\n(a) Post-accident.\n\n\n\nCPF No. 4-2016-5022\nPage 11\n(1) As soon as practicable following an accident, each operator must test\neach surviving covered employee for alcohol if that employee's\nperformance of a covered function either contributed to the accident or\ncannot be completely discounted as a contributing factor to the accident.\nThe decision not to administer a test under this section must be based on\nspecific information that the covered employee's performance had no role\nin the cause(s) or severity of the accident.\nThe Notice alleged that Respondent violated 49 C.F.R. § 199.225(a)(1) by failing to conduct\npost-accident alcohol testing for each surviving covered employee for alcohol if that employee's\nperformance of a covered function either contributed to the accident or cannot be completely\ndiscounted as a contributing factor to the accident. Specifically, the Notice alleged that Sunoco\ndid not perform any post-accident alcohol testing following the Wortham accident or justify the\ndecision not to conduct testing.\nRespondent did not contest this allegation of violation.\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated 49\nC.F.R. § 199.225(a)(1) by failing to conduct post-accident alcohol testing for each surviving\ncovered employee for alcohol if that employee's performance of a covered function either\ncontributed to the accident or cannot be completely discounted as a contributing factor to the\naccident.\nItem 10: The Notice alleged that Respondent violated 49 C.F.R. § 195.402, which states in\nrelevant part:\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. This manual shall be reviewed at intervals not exceeding 15\nmonths, but at least once each calendar year, and appropriate changes made\nas necessary to insure that the manual is effective. This manual shall be\nprepared before initial operations of a pipeline system commence, and\nappropriate parts shall be kept at locations where operations and\nmaintenance activities are conducted.\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(1) ….\n(3) Operating, maintaining, and repairing the pipeline system in accordance\nwith each of the requirements of this subpart and subpart H of this part.\nThe Notice alleged that Respondent violated 49 C.F.R. § 195.402(c)(3) by failing to include\nprocedures for operating, maintaining, and repairing the pipeline system in accordance with each\nof the requirements of Subpart F (Operation and Maintenance) and Subpart H (Corrosion\n\n\n\nCPF No. 4-2016-5022\nPage 12\nControl). Specifically, the Notice alleged that Sunoco did not have a procedure for the\ninstallation and operation of bentonite mud plugs that were installed on this Project.\nAt the hearing, Sunoco presented a recommended practice (RP)12 that it contended met the\nregulatory requirement for two reasons. First, Sunoco asserted that the RP was compulsory, as it\nwas included in its contract with the subcontractor performing the work and the contractor\ntreated the RP as a procedure. In addition, the Respondent pointed to deposition testimony in\nwhich the subcontractor discussed the RP and verified that it was followed.\nOPS declined to treat the RP as a procedure and maintains that Item 10 should be upheld as a\nviolation. During the hearing, I questioned Respondent’s counsel about whether and how an RP\nconstitutes a procedure. I am not convinced that, simply because the RP was presented to the\ncontractor as compulsory for this project, Respondent achieved regulatory compliance. Sunoco\nmust have a procedure (not an RP) that is prepared and followed for its pipeline system. Even if\nI accept that the RP was compulsory for this project, that does not meet the regulatory\nrequirement, which requires that there be a procedure for Sunoco’s pipeline system as a whole.\nIn its Post-Hearing brief, Sunoco also argues that it was not required to have a procedure for the\ninstallation of mud plugs. I disagree. At the hearing, both parties agreed that operators must\nhave a procedure to isolate hot zones from potential vapors and that mud plugs are one way to\nachieve such isolation. During the hearing, the Regional Director stated: “[E]very operator, I\nwould think – feel free to contradict me – would have a way of isolating work areas from the\nproduct. That’s a common thing. Mr. Dresh (Sunoco, Director of Integrity Projects): I agree a\nhundred percent with that statement…”13 It is not necessary for every operator to have a\nprocedure for the installation of mud plugs. However, once Sunoco determined that it would use\nmud plugs as an isolation device, it was required to have a procedure. Since I find that the RP\nwas not a procedure for the purposes of determining compliance with § 195.402(c)(3), I find that\nRespondent did not achieve regulatory compliance.\nAccordingly, based upon a review of all of the evidence, I find that Respondent violated 49\nC.F.R. § 195.402(c)(3) by failing to include procedures for operating, maintaining, and repairing\nthe pipeline system in accordance with each of the requirements of Subpart F (Operation and\nMaintenance) and Subpart H (Corrosion Control).\nItem 11: The Notice alleged that Respondent violated 49 C.F.R. § 195.402, which states in\nrelevant part:\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. This manual shall be reviewed at intervals not exceeding 15\n12 Fire Clay mudpack RP dated 5/30/08.\n13 Transcript, at 133.\n\n\n\nCPF No. 4-2016-5022\nPage 13\nmonths, but at least once each calendar year, and appropriate changes made\nas necessary to insure that the manual is effective. This manual shall be\nprepared before initial operations of a pipeline system commence, and\nappropriate parts shall be kept at locations where operations and\nmaintenance activities are conducted.\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(1) ….\n(3) Operating, maintaining, and repairing the pipeline system in a","truncated":true,"body_characters":194855}