Safety Compliance Proceedings

(GPS Rule 11)#

(a)Overview - Safety Compliance Proceedings (sometimes referred to as "SCPs") are intended to provide the APSC and its staff with the ability to be more proactive in addressing pipeline safety issues which pose a moderate to serious threat to public safety, property or the environment without having to rely exclusively on the more formal investigative procedures which are established by Alabama statute. SCPs may be recommended by the GPS Administrator and the UED Director, and instituted by the APSC Executive Director when there is a determination that a particular pipeline or gas facility has, or continues to have, a condition or conditions that pose a moderate to serious pipeline integrity risk which endangers public safety, property, or the environment. The factors that are to be considered in determining whether a pipeline integrity risk exists as well as the notification and due process procedures governing SCPs are addressed in more detail below in subsections d(3) and (h), respectively.#

(b)Notice of the Institution of Safety Compliance Proceedings#

1.The Secretary of the APSC will serve a written Safety Compliance Notice which signifies the institution of a Safety Compliance Proceeding on any affected pipeline facility operator, in person, by registered or certified mail, overnight courier, or electronic transmission by facsimile or other electronic means that includes reliable acknowledgement of actual receipt. The Safety Compliance Notice will set forth the alleged condition or conditions that pose a pipeline integrity risk to public safety, property, or the environment and state any other facts and circumstances that support the institution of the Safety Compliance Proceeding for the specified pipeline or portion thereof. The Safety Compliance Notice may also specify proposed testing, evaluations, integrity assessment, or other actions to be taken by the operator and may propose that the operator submit a work plan and schedule to address and correct the conditions identified in the Safety Compliance Notice. The Safety Compliance Notice will also provide the operator with response options including procedures for requesting informal consultation and/or a formal hearing as addressed in more detail in subsections (c) and (d) below.#

An operator receiving a Safety Compliance Notice will have up to, but not exceeding 30 days, to respond in writing to the Safety Compliance Notice unless granted additional time by the APSC Executive Director. Such responses must be filed with the Secretary of the APSC in the manner required by Rule 4 of the APSC's Rules of Practice.#

(c)Informal Consultation - Within 30 calendar days of the issuance of a Safety Compliance Notice, the APSC Executive Director may, at the written request of an operator in receipt of a Safety Compliance Notice, provide an opportunity for informal consultation concerning the condition or conditions which led to the institution of the Safety Compliance Proceeding. Such informal consultation shall commence within 30 calendar days from the issuance of the Safety Compliance Notice provided that the APSC Executive Director may extend the time for consultation upon request for good cause shown. Informal consultation is intended to provide an opportunity for the operator to explain the circumstances associated with the risk condition or conditions identified in the Safety Compliance Notice establishing the Safety Compliance Proceeding and, where appropriate, to present a proposal for corrective action. Such actions shall not prejudice the operator's position in any subsequent hearing.#

If the operator and the APSC Executive Director (after consultation with each APSC Commissioner) agree on a plan for the operator to address each risk condition identified in the Safety Compliance Notice, a binding written consent agreement incorporating the terms of the agreement may be entered. If a consent agreement is reached, no further hearing will be provided in the matter and any pending hearing request will be considered withdrawn.#

If a consent agreement is not reached within 30 calendar days of the issuance of the Safety Compliance Notice establishing the Safety Compliance Proceeding, or any extended period for consultation authorized by the APSC Executive Director, the APSC Executive Director may proceed with the hearing and post hearing procedures set forth in subsection (d) below. In that event, offers of settlement made by the operator during the informal consultation period shall be excluded from the record in any subsequent hearing.#

Nothing in this section precludes the APSC Executive Director from terminating the informal consultation process if there is reason to believe that an operator is not engaging in good faith discussions. The APSC Executive Director may also terminate the informal consultation process if it is determined that further consultation would be counterproductive or contrary to the public interest. In addition, if the APSC Executive Director, subsequently determines that an operator has failed to comply with the terms of a binding, written consent agreement, the APSC may, through the APSC Executive Director, pursue any and all administrative or judicial remedies available to the APSC under Title 37 of the Code of Ala. 1975, and the provisions of this Program Operations Plan.#

(d)Guidelines for Hearings#

1.Requests for Hearing - An operator receiving a Safety Compliance Notice may contest the issues addressed in the notice, or any portion thereof, by filing with the Secretary of the Commission a written request for a hearing within 30 calendar days following receipt of the notice or within ten (10) calendar days following the conclusion of any informal consultation that does not result in the entry of a binding, written consent agreement. In the absence of a timely request for hearing, however, the APSC Executive Director may recommend to the APSC the issuance of a Safety Compliance Order in accordance with the provisions of subsection (e) below.#

2.The Hearing Process - In the event that a hearing goes forward in any Safety Compliance Proceeding established, the matter will be formally docketed as an investigation pursuant to Code of Ala. 1975, §37-1-83. An APSC Administrative Law Judge will serve as the presiding officer in such hearing which will be conducted in a manner consistent with the rules governing other hearings before the APSC as set forth by Alabama statute and the APSC's Rules of Practice. The operator may submit any relevant information or materials, call witnesses and present arguments on the issues identified and in response to the question of whether a Safety Compliance Order should be issued to address the condition or conditions that are alleged to pose a pipeline integrity risk to public safety, property, or the environment.#

3.Matters Considered In Determining That A Pipeline Facility Has A Condition That Poses An Integrity Risk - In determining whether a pipeline facility has a condition that poses a pipeline integrity risk to public safety, property, or the environment under paragraph (a) of this section, the APSC Executive Director shall consider: the facts and circumstances of each particular case absent a contrary demonstration by an operator. A key consideration in such determinations is whether the pipeline operator's facility or a component thereof has been constructed or operated with any equipment, material, or technique with a history of being susceptible to failure when used in pipeline service. Other factors to be considered include, but are not limited to:#

(i)The characteristics of the pipe and other equipment used in the pipeline facility involved, including its age, manufacturer, physical properties (including its resistance to corrosion and deterioration), and the method of its manufacture, construction, or assembly;#

(ii)The nature of the materials transported by such facility (including their corrosive and deteriorative qualities), the sequence in which such materials are transported, and the pressure required for such transportation;#

(iii)The characteristics of the geographical areas where the pipeline facility is located, in particular the climatic and geologic conditions (including soil characteristics) associated with such areas;#

(iv)For hazardous liquid pipelines, the proximity of the pipeline to an unusually sensitive or high consequence area;#

(v)For natural gas pipelines, the proximity of the pipeline to a high consequence area;#

(vi)The population density and growth patterns of the area in which the pipeline facility is located;#

(vii)Any relevant recommendation of the National Transportation Safety Board issued in connection with any investigation conducted by the Board;#

(viii)The likelihood that the condition will impair the serviceability of the pipeline;#

(ix)The likelihood that the condition will worsen over time; and#

(x)The likelihood that the condition is present or could develop on other segments of the pipeline.#

4.Post Hearing Action - Following a hearing under this section, the APSC Executive Director, in consultation with the GPS Administrator and UED Director, will assess the evidentiary record compiled in a manner consistent with subsections (d)3 above. If the Executive Director finds that the operator's system indeed has a condition that poses a pipeline integrity risk to public safety, property, or the environment, the APSC Executive Director will recommend to the APSC the issuance of a Safety Compliance Order under this section. If the APSC Executive Director does not find that the operator has such a condition, or concludes that a Safety Compliance Order is otherwise unwarranted, the APSC Executive Director will recommend the termination of the Safety Compliance Proceeding to the APSC. An order rendering final disposition of the proceeding will be entered by the APSC. Nothing in this subsection shall preclude the APSC and the operator from entering into a binding, written consent agreement at any time before a Safety Compliance Order is issued.#

(e)Information Included In Safety Compliance Orders Shall Contain The Following:#

1.A finding that the pipeline facility has a condition that poses a pipeline integrity risk to public safety, property, or the environment;#

2.The relevant facts which form the basis of that finding;#

3.The legal basis for the order;#

. The nature and description of any particular corrective actions to be required of the pipeline operator; and#

5.The date(s) by which the required corrective actions must be taken or completed and, where appropriate, the duration of the order.#

(f)Termination or Rescission of a Safety Compliance Proceeding - Once all remedial actions set forth in a Safety Compliance Order and associated work plans are completed, as determined by the GPS Administrator, the UED Director and the Executive Director, the Executive Director will determine whether the pipeline operator has satisfactorily addressed the condition or conditions that pose a pipeline integrity risk to public safety, property, or the environment. If it is determined that there is no longer a pipeline integrity risk, the APSC Executive Director will notify the Respondent operator that the Safety Compliance Order has now been satisfied and the Safety Compliance Proceeding is terminated.#

(g)Other Enforcement Actions - Nothing in this section precludes the Alabama Public Service Commission from issuing a Notice of Probable Violation under Paragraph S of this Plan or 49 CFR Part 192 §190.207 or taking other enforcement action, if noncompliance is identified at the facilities that are the subject of a Safety Compliance Proceeding.#