03-18121. Pipeline Safety: Identified Sites as Part of High Consequence Areas for Gas Integrity Management Programs

AGENCY:

Office of Pipeline Safety (OPS), Research and Special Programs Administration (RSPA), DOT.

ACTION:

Notice; issuance of advisory bulletin.

SUMMARY:

On August 6, 2002, RSPA/OPS published a final rule on how to identify the populated areas near a pipeline for which additional protections would be required (67 FR 50824). These “high consequence areas” (HCAs) include not only population areas already identified by pipeline operators through the longstanding Class location definitions, but also “identified sites,” 49 CFR 192.761(f). Inclusion of identified sites is intended to pick up isolated population areas which are not picked up through the Class location process. These could include isolated nursing homes, schools, and campgrounds that may be close enough to the pipeline to be at risk should there be a pipeline failure. Commenters expressed concerns that what was intended to be a relatively simple task, identifying certain sites as high consequence areas, could become a never-ending search. RSPA/OPS is providing guidance in this advisory bulletin to provide the necessary clarification. With this guidance, operators can identify sites in preparation for required assessments and integrity management programs. The public will receive the assurance that the search for “identified sites” for inclusion in integrity management programs is clearly understood and thorough. The advisory bulletin provides guidance on a good faith effort in conducting this search.

Further, at a meeting of the Technical Pipeline Safety Standards Committee scheduled for July 31, 2003, RSPA/OPS has added to the agenda further discussion about the advisability of modifying the final rule language to include this advice.

ADDRESSES:

You may contact the Dockets Facility by phone at [phone], for copies of the proposed rule or other material in the docket. All materials in this docket may be accessed electronically at http://dms.dot.gov/​search. Once you access this address, type in the last four digits of the docket number shown at the beginning of this notice (in this case 7666), and click on search. You will then be connected to all relevant information.

FOR FURTHER INFORMATION CONTACT:

Mike Israni by phone at [phone], by fax at [phone], or by e-mail at [e-mail], regarding the subject matter of this advisory bulletin. General information about the RSPA/OPS programs may be obtained by accessing RSPA's Home page at http://www.rspa.dot.gov.

SUPPLEMENTARY INFORMATION:

I. Advisory Bulletin (ADB-03-03)

To: Operators of gas transmission pipelines.

Subject: Identified sites for possible inclusion as high consequence areas (HCAs) in gas integrity management programs.

Purpose: To provide guidance to operators on what RSPA/OPS considers to be a good faith effort to discover “identified sites” as defined by 49 CFR 192.761(f).

Advisory: High consequence areas for gas transmission pipelines are defined to include certain buildings and outside areas, not located within Class 3 or 4 locations, but which nonetheless contain people who could be at risk in the event of a pipeline failure. These areas, known as “identified sites,” are specified in 49 CFR 192.761(f). Paragraphs (5) and (6) of the section provide the substantive features of the sites; paragraphs (1) through (4) list the sources an operator is to explore to discover these sites. This guidance addresses the sources in paragraphs (1) through (4) rather than the substantive features found in paragraphs (5) and (6).

As written, the rule requires an operator to include as an “identified site” a building or outside area meeting the substantive features of paragraphs (5) or (6) if the site:

(1) Is visibly marked;

(2) is licensed or registered by a Federal, State or local agency;

(3) is known by public officials; or

(4) is on a list or map maintained by or available from a Federal, State, or local agency or a publicly or commercially available database.

Although it is possible to read this language as requiring an operator to perform an exhaustive search of every possible source for such sites, RSPA/OPS does not intend that an operator perform an exhaustive search, only a good faith one.

Obviously, an operator will already know of many sites that meet the criteria of paragraphs (5) and (6) through the operation and maintenance activities on the pipeline right-of-way, including patrolling, the operator conducts on a routine basis. An operator would, of course, include these sites as “identified sites.” However, there will be sites which are not likely to be known through routine operation and maintenance activities. RSPA/OPS believes that the best way for operators to locate sites they are unlikely to discover through routine activities is to consult the entities responsible for safety and emergency response in the vicinity of the pipeline.

Accordingly, RSPA/OPS will accept, as a good faith search in satisfaction of §192.761(f)(1)-(4), a search by an operator that discovers “identified sites” based on knowledge gained by routine operation and maintenance activities as well as sites identified through consultation with appropriate public officials. The appropriate public officials are those with safety or emergency response or planning responsibilities who indicate to the operator that they know the location of sites that meet the substantive description of § 192.761(f)(5) or § 192.761(f)(6). This could include officials on a local emergency planning commission or relevant Native American tribal officials.

Consultation with public officials having safety or emergency response or planning responsibilities may result in an end of the search for “identified sites”. If, however, an operator consults public officials with safety or emergency response or planning responsibilities and these officials inform the operator that they do not have the needed information, then an operator must do more. However, the task of locating these sites is not endless. RSPA/OPS will accept as adequate the operator's use of one of the other means spelled out in paragraphs (1), (2), and (4) of §192.761(f) so long as the operator documents a rationale for the choice that demonstrates that the operator is truly trying to locate the “identified sites.” For example, if public officials with safety or emergency response or planning responsibilities indicate that they believe that they know about all of the areas except for assisted-living facilities, an operator might decide that the most fruitful alternative source of information would be a county or State licensing authority. As another example, if public officials with safety or emergency response or planning responsibilities indicate little knowledge about the location of outside recreation facilities, the operator might decide that county and State websites that listed recreational activities in the county would be the best source. RSPA/OPS will not expect an operator to conduct an endless iterative search of all possible sources.

A similar rule of reasonableness applies with regard to an operator's use of the means spelled out in 192.761(f)(4); namely, “Is on a list or map maintained by or available from a Federal, State, or local agency or a publicly or commercially available database.” Although it is possible to read this language as requiring an operator to perform an exhaustive search of every on-line map or database, this is not what RSPA/OPS intends. RSPA/OPS expects an operator to consult those lists or maps that are readily known to the operator and readily available to the public at large. Good examples for information available about assisted-living, nursing, and elder care facilities and schools would be the Federal Government's official Web portal (http://www.Firstgov.gov) and telephone directories. Official State Web sites would also be appropriate. An operator might find sources such as Geographic Data Technology or MapQuest helpful in locating particular sites.

In the process of locating “identified sites” as HCAs, RSPA/OPS will require that an operator conduct a good faith search, not an exhaustive one.

II. Background

On August 6, 2002, RSPA/OPS published a final rule on how to identify the populated areas near a pipeline for which additional protections would be required (67 FR 50824). These HCAs include not only population areas already identified by pipeline operators through the longstanding Class location definitions, but also “identified sites”, 49 CFR 192.761(f). Inclusion of “identified sites” is intended to pick up isolated population areas which are not picked up through the Class location process. These could include isolated nursing homes, schools, and campgrounds that may be close enough to the pipeline to be at risk should there be a pipeline failure.

Identification of HCAs is a necessary precondition to the establishment of integrity management plans. The Pipeline Safety Improvement Act of 2002 (PSIA) requires operators to begin conducting assessments by June 17, 2004, and to have integrity management programs in place by December 17, 2004. Trade associations representing pipeline companies transporting the majority of natural gas delivered to customers in the United States, state and public representatives, as well as the Federal advisory committee for pipeline safety regulations, have raised questions about how to implement the identified sites aspect of the HCA definition.

RSPA/OPS initiated a related rulemaking with a notice of proposed rulemaking (NPRM) published January 28, 2003, (68 FR 4278), responsive to a mandate of the PSIA. The NPRM proposed substantive requirements to establish integrity management programs that would provide additional protections for HCAs. In addition, the NPRM proposed to modify the HCA definition to better identify population potentially impacted by a pipeline failure.

RSPA/OPS conducted four public meetings to discuss aspects of the NPRM, two of which focused on the need to clarify how to locate outdoor areas where people congregate and facilities which housed populations that were mobility impaired. Discussions mentioned the burdens of identifying these sites. The proposed definition of HCAs did not contain the term “identified site” (67 FR 1108, January 9, 2002). Instead, the proposed definition simply stated that operators would have to identify facilities containing persons of impaired mobility and buildings and areas occupied by at least 20 persons 50 days per year. Industry commenters frequently noted that an inflexible rule that required operators to identify these sites would be burdensome, and the term “identified site” became generally understood through these discussions. Operators could not get the information from public officials during the liaison already required by 49 CFR part 192 because public officials did not have the necessary information. Operators would have no choice but to change both the manner and the frequency of their patrols of the right-of-way, a very costly proposition.

At the four public meetings following publication of the NPRM, various other persons raised concerns about the clarity of the definition. A representative of Safe Bellingham, which represents citizens concerned about pipeline safety, stressed the need to cover areas where people congregate outdoors.

On May 26-28, the Technical Pipeline Safety Standards Committee considered the NPRM in this related rulemaking. The Committee urged that RSPA/OPS look for clarity over complexity, seek public understandability of the rule, and focus the greatest effort on the potential for greatest harm. Members of the Committee strongly urged the Committee to examine the clarity of the “identified site” definition. Industry representatives pointed to their petition for reconsideration of the HCA final rule for their concerns. (The petition is addressed in a separate response published today in the Federal Register.) Industry representatives described in detail the difficulties of applying the current definition of “identified site”.

The Committee also heard from Mr. Steve Halford, the Fire Chief for the City of Nashville, who was representing the International Association of Fire Chiefs, in discussing a study on excess flow valves not related to the integrity management rulemakings. Although Chief Halford made a presentation to the advisory committee on another topic, he graciously agreed to answer impromptu questions about the knowledge of public officials with respect to locations that RSPA/OPS intends to be “identified sites.” Chief Halford readily asserted that fire departments and other public safety and emergency response officials would normally have information about these sites. Chief Halford also suggested that local planning bodies and the local emergency planning committees would be good sources for the information. Based on the discussion, the Committee advised RSPA/OPS to clarify the meaning of the rule.

RSPA/OPS did not intend that identification of locations outside of Class 3 and 4 be burdensome and decided to provide relief. Industry commenters, including petitioners NYGAS and INGAA, had suggested that use of available sources such as licensing and publicly available lists would be a good avenue. Thus the HCA definition includes a definition of “identified sites” that provides both the types of areas to be identified and the means for an operator to locate these sites.

Although the regulation is stated as a list of steps, RSPA/OPS has never intended that an operator perform an exhaustive search of every possible source of information that may be available. RSPA/OPS requires only a good faith effort to discover “identified sites.” As discussed in the advisory, pipeline operators who consult public safety or emergency response or planning officials who indicate that they have knowledge of the identified sites need not do more.

Further, at a meeting of the Committee scheduled for July 31, RSPA/OPS has added to the agenda further discussion about the advisability of modifying the final rule language to include this advice.

Subsequent to the publication of the HCA final rule, and in support of the need to assure that “identified sites” are clearly known, RSPA/OPS initiated extensive efforts to involve local and State officials in sharing responsibility for pipeline safety. We believe that public safety and emergency response officials are likely to have the knowledge needed on “identified sites.” In addition, RSPA/OPS expects that the knowledge of these officials will improve for several reasons. First, section 5 of the Pipeline Safety Improvement Act of 2002 requires pipeline operators to review and enhance their public education programs by December 17, 2003. Among other things, these public education programs will provide better information to officials from municipalities and school districts about the possible hazards from an unintended release from a pipeline. This enhanced information about the risks will improve local emergency response planning efforts.

Further, under its Community Assistance and Technical Service Program, RSPA/OPS has already hired at least one senior inspector in each Federal region who is providing local officials briefings and data to enhance their efforts to protect pipelines from damage, target community awareness programs, and improve the response capabilities in the event of a pipeline failure. In addition, RSPA/OPS provides grant funding to the National Association of State Fire Marshals and the Common Ground Alliance for public education initiatives among other things. These initiatives will result in local officials who are better informed about where pipelines are located, how to avoid damaging them, how to recognize and report emergencies that may arise, and the need to determine isolated population areas near pipelines that need additional protection.

In addition, RSPA/OPS realizes that some tribal lands may not have traditional, readily identifiable safety or emergency response officials. Thus RSPA/OPS intends to consult with the Council of Energy Resource Tribes, a coalition of tribes who have energy resources, about the best way to locate “identified sites” on these tribal lands. RSPA/OPS will then share the results of that consultation with the affected pipeline operators and provide any additional guidance that may be needed before the effective date of a final rule imposing substantive requirements for integrity management programs.

Issued in Washington, DC, on July 11, 2003.

Stacey L. Gerard,

Associate Administrator for Pipeline Safety.