{"operation":"document","citation":"70 FR 8734","title":"Pipeline Safety: Response Plans for Onshore Transportation-Related Oil Pipelines","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2005-02-23","effective_on":"2005-03-25","summary":"On January 5, 1993, the U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration, Office of Pipeline Safety (OPS) issued an interim final rule establishing oil spill response planning requirements for onshore oil pipelines (49 CFR Part 194). These regulations were issued pursuant to section 1321(j)(5) of the Federal Water Pollution Control Act (FWPCA), as amended by the Oil Pollution Act of 1990 (OPA 90). OPS is now adopting the interim rule as a final rule. This final rule makes minor amendments to some of the regulations in response to the written public comments received after issuance of the interim final rule and at a public meeting held in 1997 in New Orleans, LA. The amendments also reflect the experience that OPS has gained in implementing the rule; leading spill response exercises; and, responding to actual spills and harmonizes certain OPS requirements with related oil spill response regulations developed by the U.S. Coast Guard. The amendments are generally technical in nature and do not involve additional costs to pipeline operators or the public.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-05-3257.json","markdown":"https://regulus.evalyn.ai/document/federal-register-05-3257.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-05-3257","source_url":"https://www.federalregister.gov/documents/2005/02/23/05-3257/pipeline-safety-response-plans-for-onshore-transportation-related-oil-pipelines","body":"Federal Register, Volume 70 Issue 35 (Wednesday, February 23, 2005) [Federal Register Volume 70, Number 35 (Wednesday, February 23, 2005)] [Rules and Regulations] [Pages 8734-8748] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 05-3257] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 194 [Docket No. RSPA-03-16560; Amdt. No. 194-4] RIN 2137-AC30 Pipeline Safety: Response Plans for Onshore Transportation- Related Oil Pipelines AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: On January 5, 1993, the U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration, Office of Pipeline Safety (OPS) issued an interim final rule establishing oil spill response planning requirements for onshore oil pipelines (49 CFR Part 194). These regulations were issued pursuant to section 1321(j)(5) of the Federal Water Pollution Control Act (FWPCA), as amended by the Oil Pollution Act of 1990 (OPA 90). OPS is now adopting the interim rule as a final rule. This final rule makes minor amendments to some of the regulations in response to the written public comments received after issuance of the interim final rule and at a public meeting held in 1997 in New Orleans, LA. The amendments also reflect the experience that OPS has gained in implementing the rule; leading spill response exercises; and, responding to actual spills and harmonizes certain OPS requirements with related oil spill response regulations developed by the U.S. Coast Guard. The amendments are generally technical in nature and do not involve additional costs to pipeline operators or the public. DATES: This rule is effective March 25, 2005. FOR FURTHER INFORMATION CONTACT: L.E. Herrick, (202) 366-5523, U.S Department of Transportation, Pipeline and Hazardous Materials Safety Administration, Room 2103, 400 Seventh Street, SW., Washington, DC 20590-0001, on the contents of this final rule, or the Dockets Facility, http://dms.dot.gov , (202) 366-1918, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, for copies of this final rule or other information in the docket. General information about OPS programs is on our Internet home page at http://ops.dot.gov . For information on OPA 90, first click on the ``Initiatives,'' then on ``OPA Initiatives.'' SUPPLEMENTARY INFORMATION: Background Section 1321(j)(5) of the FWPCA (33 U.S.C. 1251 et seq.), as amended by OPA 90 (Pub. L. 101-380, 104 Stat. 484), requires an operator of an onshore pipeline facility to prepare and submit an oil spill response plan when, because of its location, the facility could reasonably be expected to cause substantial harm to the environment if it were to discharge oil into navigable waters or adjoining shorelines. On January 5, 1993, OPS published an interim final rule (58 FR 244) that created part 194 of Title 49 of the Code of Federal Regulations. The interim final rule implemented the requirements of OPA 90 and required all onshore oil pipeline operators to submit response plans for pipelines located where they could reasonably be expected to cause substantial harm or significant and substantial harm to the environment by discharging oil. Under part 194, each response plan must include a core plan that provides an information summary (e.g., operator address; description of response zones; contact information for designated spill response manager), and additional detail on immediate notification procedures; spill detection and mitigation procedures; the applicable response organization; response activities and response resources; government agencies that will provide support; training procedures; equipment testing; drill types, schedules, and procedures; and plan review and update procedures. In addition, each response plan must be consistent with the National Contingency Plan (NCP) (40 CFR part 300) and each applicable Area Contingency Plan (ACP). Part 194 also requires each operator to identify and ensure, by contract or other approved means, the resources necessary to respond, to the maximum extent practicable, to a worst case discharge (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of a worst case discharge. Furthermore, the part 194 requires each operator to conduct specialized training for its personnel, particularly those responsible for reporting and responding to spills. Each response plan also must address equipment testing and provide for periodic unannounced drills. Operators must participate in any unannounced drills conducted by Federal officials, including activation of the appropriate oil spill removal organization and spill management team identified in the response plan. Since 1993 OPS has led over 100 exercises. Pipeline facilities subject to part 194 include those that transport any of the following products: crude oil; refined petroleum products (e.g., gasoline, diesel fuel, heating and fuel oils, kerosene, and jet fuel); vegetable and animal oil; sludge; oil refuse; and/or oil mixed with wastes other than dredged spoil. To date, 367 onshore pipeline facilities have submitted response plans in compliance with the interim final rule that established part 194. There are two categories of onshore pipeline response plans, those involving pipelines capable of causing ``substantial'' harm to the environment and those capable of causing ``significant and substantial'' harm to the environment. OPA 90 does not define substantial harm or significant [[Page 8735]] and substantial harm. The OPA 90 Conference Report (H.R. Conf. Report No. 653, 101st Cong., 2d Sess., 101, reprinted in 1990 U.S. Code Cong. & Admin. News 779) states that nationwide criteria should be developed to determine those facilities which could reasonably be expected to cause ``substantial harm'' and are therefore required to submit response plans (OPA Conference Report, p. 829). It discussed oil storage capacity, environmentally sensitive areas, and drinking water supplies as relevant factors, and cautioned that facility age and oil storage capacity should not be the only criteria. The report states that the criteria should result in a broad requirement for facility owners and operators to prepare and submit plans, but that only a subset of these plans (i.e., those addressing significant and substantial harm) will be reviewed and approved (OPA Conference Report, p. 829). The criteria for this subset are set forth in 49 CFR 194.103(c). In order to gain a further understanding on implementing the regulation and on potential revisions to the part 194, OPS conducted a public meeting on January 29, 1997, in New Orleans, LA, to receive comments from interested parties. A copy of the transcript of the public meeting is in the docket for this rulemaking. In 1999, major pipeline spills occurred in Simpsonville, SC; Atchison, KS; and Knoxville, TN. In 2000, a major pipeline spill occurred in Aquasco, MD. These spills illustrated the importance of spill prevention and response planning; adequate response equipment and workers; and, the mastery and effective use of incident command systems. Investigations and analyses of major pipeline incidents by the National Transportation Safety Board (NTSB) and OPS have emphasized the importance of protecting people and the environment, particularly in densely populated areas and in areas that are unusually sensitive to environmental damage. This final rule incorporates lessons OPS has learned from reviewing these plans, leading oil spill exercises, and, responding to oil spills, as well as the comments received. The following is a summary of the clarifications and minor changes made by this final rule to the response planning regulations: (1) Clarifies definition of ``adverse weather'' and makes it more consistent with the U.S. Coast Guard definition; (2) Deletes four definitions as obsolete because they are not used in the rule; (3) Deletes expired and no longer significant dates from Sec. Sec. 194.7(a), (b), (c) and 194.119(e); (4) Clarifies wording in Sec. 194.101(a) to address which operators are required to submit response plans; (5) Specifies the secondary containment credits for use of secondary containment and other spill prevention measures when calculating the worst case discharge based on breakout tank capacity in Sec. 194.105(b)(3); (6) Clarifies the ``substantial threat'' term and requirement in Sec. 194.107(a) and allows operators to incorporate by reference certain procedures from the operator's maintenance and emergencies manuals, required under 49 CFR 195.402, to meet the requirement; (7) Deletes Sec. 194.107(b) to eliminate English language requirements; (8) Revised Sec. 194.107(c) to provide additional guidance on consistency of response plans with the NCP and ACPs; (9) Revises Sec. 194.107(d)(1)(ix) to clarify that the drill requirements can be met by following PREP or developing a functionally equivalent program; (10) Add new Sec. 194.107(d)(3) to clarify requirements for an operator's Incident Command System (ICS); (11) Revises Sec. Sec. 194.109(b)(2) and 194.113(b)(2) to allow operators the additional flexibility to use either the name or the title of the qualified individual. The revised sections also clarify the requirement for operators to list the name or title of an alternate qualified individual; (12) Revises Sec. 194.111(a) to allow operators to keep response plans where they are most likely to need them; (13) Revises Sec. Sec. 194.119(d) and (f) to clarify the authority of OPS to make a final determination where a Federal on-scene coordinator (FOSC) has concerns about the operator's response capability; to clarify that OPS may consider FOSC comments on response techniques, protecting fish, wildlife and sensitive environments and on consistency with the NCP; and to clarify that OPS remains the approving authority for the response plan; (14) Revises Sec. 194.121(a) to clarify that the resubmission of plans to OPS on a five-year cycle is from the date of submission or from the date of last approval; and (15) Augments the guidelines in Appendix A with three, web-based government references. Because these changes are minor and technical in nature, and generally reflect existing industry practice, no additional burden will be placed on operators or the public. Discussion of Comments A summary of the written comments OPS received in connection with the issuance of the interim rule is available in the docket. OPS received additional comments in response to a notice of public meeting and request for comments held in January 1997 in New Orleans. A transcript of the public meeting is also in the docket. The comments were generally supportive of the need for oil spill response planning requirements although many suggested modifications to the existing provisions in various sections. OPS reviewed these comments and the records of the public meeting and used them in developing this final rule. Section 194.1, Purpose No comments were received on Sec. 194.1 and the section is unchanged. Section 194.3, Applicability Several commenters requested that OPS clarify those pipelines that are considered to transport oil under 49 CFR part 194. The commenters questioned the applicability of the response planning regulations to commodities such as natural gas and unstabilized condensate from natural gas wells. Response OPS believes a clarification is unnecessary. The FWPCA (33 U.S.C. 1321) does not specify substances considered to be oil. Rather, the FWPCA broadly defines oil and Federal agencies rely on the broad definition to determine substances that are regulated under the Act. The existing definition of ``oil'' in Sec. 194.5 is consistent with this broad definition. Because the definition does not include highly volatile liquids (HVL), natural gas liquids (NGL), liquefied natural gas (LNG), or liquefied petroleum gas (LPG), OPS believes that it is clear that they are not considered to be oil under 49 CFR part 194. Section 194.5, Definitions Coastal Zone/Inland Zone/Inland Area/Response Area Several commenters noted that the terms Coastal zone, Inland area, Inland zone, and Response area are defined, but that these terms are not used in the regulations. Response OPS agrees and is removing these definitions as obsolete. Adverse Weather Some commenters stated that OPS should provide more specific guidelines or criteria on what constitutes adverse weather, noting that the U.S. Coast Guard (USCG) and the Environmental Protection Agency (EPA) have specific [[Page 8736]] criteria for significant wave height within the area in which recovery equipment and booms are expected to operate. Response In the interests of interagency consistency, OPS is adopting, in modified form, the USCG definition of adverse weather in 33 CFR 154.1020. Contract or Other Approved Means OPS received comments discussing the definition of contract or other approved means for insuring that the operator will have oil spill response resources. Some commenters said the definition was too restrictive. Response OPS disagrees and believes that the existing definition is consistent with the intent of the law. A fundamental requirement in response planning is to establish the operator's ability to have the personnel and equipment to respond to a discharge of oil or a substantial threat of a discharge of oil on to the navigable waters. Requiring an operator to have a written or other legally binding agreement between the operator and a response contractor or other spill response organization identifying is consistent with this intent. Environmentally Sensitive Areas OPS received several comments on the definition of environmentally sensitive areas. Commenters suggested that the term should be revised to reflect the specific areas that would be especially sensitive to oil discharges. Some commenters stated that the definition should be limited to areas where spills are likely to create significant long- term environmental harm. Others suggested that the definition should be consistent with the National Contingency Plan (NCP). Response In the years since Part 194 was established, all of the Area Contingency Plans (ACPs) have been published. The Area Contingency Plans include detailed information about resources in the area. OPS believes that the NCP and ACPs provide sufficient guidance to operators on environmentally sensitive areas. Because the definition is consistent with the ACP's and the NCP, OPS is not making any changes based on these comments. High-Volume Areas OPS received several comments stating that the existing definition of high-volume areas (HVAs) did not make clear whether high volume areas must have both high river velocity and heavy vessel traffic or only one of the listed criteria. One commenter stated that the interim final rule did not have enough information for an operator to determine what constitutes an HVA and suggested that the current definition be modified to allow operators to use their discretion. One commenter suggested that the concept was inappropriate because it was developed for vessel response plans and assumed that the risk of a spill was greater in busy ports with more vessel traffic. Another commenter suggested that the concept of HVA does not relate to the likelihood of a discharge. Response OPS believes the list of specific high-volume rivers in Appendix B of 49 CFR Part 194 provides sufficient guidance to pipeline operators. The list includes areas that not only have high vessel traffic and high river velocity but also have concentrations of pipelines. The list differs from the USCG list of high volume port areas in 33 CFR 154.1020 because the OPS list also includes the concentrations of pipelines. Major River OPS received three comments on the definition of ``major river.'' Two commenters stated that OPS should list major rivers in an appendix to the rule rather than refer to a list in a book. One of the commenters noted that the referenced book was not readily available. Response OPS agrees. We are deleting the definition of major river. A listing of major rivers can be found in Appendix B, High Volume Areas. Maximum Extent Practicable One commenter noted that the definition of ``maximum extent practicable'' should consider the economics involved and the intent of Congress to create a system in which the private sector provided most of the response resources. Response The definition in this rule is similar to the definition in the USCG and EPA's response planning rules. By maintaining the definition from the interim final rule, we are being consistent with the response planning regulations of other Federal agencies. No change is made to this definition. Navigable Waters One commenter suggested that the definition of ``navigable waters'' was too broad and would result in an increase in pipeline operational and administrative costs, including costs to the Federal Government associated with implementing these regulations. There was also concern that the broad definition of ``navigable waters'' in Part 194 would be applied to 49 CFR Part 195.412(b), requiring costly inspection and increased risk to pipeline personnel associated with inspecting pipeline crossings in navigable waterways. Two commenters said that waters used for recreation should not be included in the definition. One commenter suggested that referring to waters with vessel traffic leads to a belief that a risk exists only where watercraft and pipelines are both present. The commenter also stated that part 194 should not attempt to address all areas of risk but only those where pipelines and vessels coexist. The commenters stated that the full intent of OPA 90 can be met by eliminating the definition of ``navigable waters'' and by focusing on areas where the environment or public drinking water supply can be damaged. Two commenters stated that OPS should publish a list of navigable waters or major streams. One commenter stated that the definition was inconsistent with the preamble language and the definition was ambiguous because of the use of the terminology ``recreation'' and ``waters from which fish or shell fish are taken and sold.'' They suggested using the USCG definition in 33 CFR 2.05-25 because that definition is tied to the FWPCA and the regulated community is familiar with that definition. One commenter stated that the terms ``recreation'' and ``fisheries'' should be removed or considered under the definition of sensitive areas. Response The definition of navigable waters in part 194 is a slightly modified version of the EPA definition in the NCP at 40 CFR 300.5 and 40 CFR part 110. OPS believes that the regulated community understands this definition because it is based on the FWPCA definition of navigable waters at 33 U.S.C. 1362. OPS will not develop a list of navigable waters because it is well established that Congress intended to broadly define navigable waters in the FWPCA. In addition, the OPA 90 Conference Report reflects the intent of Congress that facilities near sensitive areas such as public drinking water supplies generally should not be omitted from spill response planning requirements (Conference Report 101-653, p. 829). Accordingly, OPS has decided to retain the current definition. [[Page 8737]] Oil Several commenters suggested that the definition of ``oil'' be limited to crude oil and petroleum products that could be recovered. These commenters further suggested excluding petroleum or petroleum products classified as HVLs, NGLs, LNG, or LPG. One commenter suggested that the definition should remain largely unchanged. Another commenter stated that the current definition does not include all the products that Congress intended to fall within the OPA 90 definition. Several commenters stated that highly volatile liquids such as propane and butane should not be considered oil. Another commenter stated that the definition should be clarified to exclude trace amounts of condensate in gas pipelines. Another commenter stated that OPS should not use the USCG definition and resulting list of substances considered to be oils because the variety of products shipped by barge is much greater than oil products transported by pipeline. Response In February 1995, the USCG prepared a list of substances considered oil for response planning. Because HVLs, NGLs, LNG, and LPG are absent from the USCG's list, OPS concluded that these substances are not considered oil under the FWPCA. OPS also believes that in the course of implementing the provisions of part 194, operators gained an understanding of the substances considered to be oil under the rule. OPS is not changing this definition. Oil Spill Removal Organization OPS received three comments on the definition of the term ``oil spill removal organization'' (OSRO). One commenter stated that the terminology may imply that OPS is referring to USCG-classified OSROs. Another commenter suggested that because many small contractors have response resources, the definition should be revised to include only those entities engaged exclusively in spill response. Another stated that the definition should be amended to include companies that will use their own resources, and that the definition should refer to ``for profit, nonprofit, and in-house resources.'' Response OPS is retaining the definition because it is sufficiently flexible to apply to different types of organizations that may be called on to respond to a discharge of oil. Narrowing the definition could exclude organizations that can help respond effectively. Pipeline Three commenters addressed the definition of ``pipeline.'' One commenter stated that the definition of pipeline in these regulations should encompass all parts of an onshore pipeline facility OPS regulates. Response OPS believes that this definition is sufficiently inclusive. The current definition of pipeline includes all parts of an onshore pipeline facility through which oil moves including, but not limited to, line pipe, valves, and other appurtenances connected to line pipe, pumping units, fabricated assemblies associated with pumping units, metering and delivery stations and fabricated assemblies therein, and breakout tanks. OPS notes that some tanks are used as breakout tanks even though the pipelines transporting oil to and from the tanks have different operators. These tanks are still subject to part 194 under a 1971 Memorandum of Understanding (MOU) between EPA and DOT (36 FR 24080; December 18, 1971). Therefore, OPS is not changing the definition of ``pipeline''. Qualified Individual Two commenters stated that the definition of ``qualified individual'' should be identical to that in 33 CFR 154.1026. Response OPS is not revising the definition of qualified individual to be identical to the 33 CFR.154.1026 because the current definition meets the intent of the statute. However, OPS is revising Sec. 194.113(b)(2) to allow the operator to identify one qualified individual and one alternate qualified individual either by title or by name, and list their 24-hour telephone numbers. Response Zones OPS received several comments on the definition of ``response zones.'' One commenter endorsed the response zone concept, which he said was an excellent method of tracking responsibilities and resources. Another commenter said that geographic response plans are valuable because they can contain specific response activities and strategies throughout the geographic area. One commenter suggested that a response zone should be defined in terms of response needs and that the linear distance should be limited to 500 miles. Another commenter suggested that a response zone should be defined by response strategy (the type of response necessary to contain and cleanup the spill). Another commenter suggested that the response zone should be defined by using the time requirements established in the response planning regulations for mobilizing response resources. One commenter suggested that the definition was satisfactory as currently provided in the regulation. Another commenter noted that he had prepared facility- specific response plans for three different Federal agencies and requested that OPS consider allowing a facility to prepare an overall geographic response plan that would facilitate the preparation of shorter response plans specific to the personnel and characteristics of each region. Another commenter endorsed the value of response zones and expressed support for the Integrated Contingency Plan (ICP) format to plan for multiple facilities within a given geographic area or under a single qualified individual but asked for additional flexibility in determining the need for multiple response zones. Response OPS intent is to give operators as much flexibility as possible in developing facility response plans. This approach is reflected in the current definition of a response zone. ``Response zone means a geographic area either along a length of pipeline or including multiple pipelines, containing one or more adjacent line sections, for which the operator must plan for the deployment of, and provide, spill response capabilities. The size of the zone is determined by the operator after considering available capability, resources, and geographic characteristics.'' Although OPS appreciates the logic associated with the preparation of purely geographic plans, OPS believes that the flexibility provided by the definition has proven to be effective in plan development. Therefore, OPS is not revising the definition of response zone. Worst Case Discharge OPS received comments on the definition of ``worst case discharge.'' These comments are summarized in the discussions on Sec. 194.105. Section 194.7, Operating Restrictions and Interim Operating Authorization No comments were received on Sec. 194.7. However, the February 18 and August 18, 1993, dates listed are no longer significant. As an administrative measure, OPS is removing dates from the section. [[Page 8738]] Section 194.101, Operators Required To Submit Plans OPS received numerous comments seeking clarification on which oil pipelines were subject to part 194's response planning requirements. One commenter contended that the current language in Sec. 194.101(a) was confusing and subject to misinterpretation. OPS received nine comments on the exceptions from plan preparation in paragraph (b) for small and distant pipelines. Two of these commenters expressed concern about the distant pipeline exception, stating that if containment can not be accomplished within four hours for larger lines and twelve hours for smaller lines, the result is likely to be contamination of environmentally sensitive areas and public drinking water supplies obtained from ground water sources--regardless of the distance. One commenter suggested that OPS define one of the criterion associated with the exception in paragraph (b)(1), the term ``proximity to navigable waters''. Another commenter suggested that OPS eliminate the proximity criterion because under the current definition of navigable waters, almost any small pipeline will be in proximity to navigable waters. One commenter disagreed with the 1,000 barrel discharge within five years criterion and suggested eliminating it because a discharge of 1,000 barrels could cause significant and substantial harm to the environment. Another commenter took issue with using historical spill records as a criterion. He contended that the absence of large spills over five or ten years is not a good measure of the risk of future spills given the age of some pipeline systems. One commenter recommended that Sec. 194.101(b)(1)(ii) be revised to grant an exception to a pipeline that has not had two or more releases greater than 50 barrels resulting in polluting any stream, river, lake, reservoir, or similar body of water that violated applicable water quality standards. Other commenters suggested that inspection and repair records be included as criteria for exemption from preparing a response plan. Response OPS agrees that the scope of the exceptions for small and distant pipelines is very limited. With regard to small pipelines, the OPA 90 Conference Report states that the basic requirement to prepare and submit response plans should be broadly applied because under certain circumstances ``even discharges from small facilities can result in considerable damage to the environment'' (Conference Report 101-653, p. 829). Regardless of their size, the only pipelines that are unlikely to cause substantial harm to navigable waters, adjoining shorelines, public drinking water supplies, and other environmentally sensitive areas in the event of a worst case discharge are pipelines that are not in proximity to these areas. In practice, this means that the small pipeline exception can only apply if the small pipeline is also a distant pipeline. With regard to distant pipelines, the OPA 90 Conference Report pointed out that even ``unregulated, low pressure pipelines have leaked significant quantities of oil into our Nation's waterways.'' Locations that appear to be distant from open waters may be in proximity to various water resources including drinking water supplies and other sensitive areas and as a result, are likely to cause substantial harm in the event of a worst case discharge. Therefore, consistent with the intent of the statute, the small and distant pipeline exceptions must be narrowly construed and virtually all onshore oil pipelines are considered at least ``substantial harm'' facilities for purposes of part 194. Accordingly, all onshore oil pipeline operators, with the rare exception of those who can prove that their pipelines meet the strict criteria in Sec. 194.101(b)(1) and (2), are required to prepare and submit oil spill response plans to OPS/OPS in accordance with Sec. 194.119(a). Although OPS modified paragraph (a) to clarify this point, OPS does not anticipate additional plan submissions because OPS believes all affected operators have already submitted response plans. FOSC Requests OPS received 11 comments on the handling of a Federal on-scene coordinator's (FOSC) request that OPS require a response plan be prepared and submitted for a pipeline or line section that would otherwise be exempt from 49 CFR part 194. These comments are addressed in connection with the discussion on submission and approval procedures in Sec. 194.119 below. Section 194.103, Significant and Substantial Harm: Operator's Statement Although, as discussed above, all onshore oil pipeline operators are expected to develop and submit response plans, under OPA 90 only those plans for pipeline facilities that pose both a significant and substantial threat of harm to the environment require OPS approval. Under Sec. 194.103(a), if an operator expects any line section in a response zone to cause both significant and substantial harm, then the operator must submit a statement with its response plan listing the significant and substantial harm line sections. This statement by the operator facilitates our identification of those plans requiring OPS approval. The OPA 90 Conference Report directed the RSPA Administrator to establish criteria by which those plans requiring prior approval would be selected. Report language discussed oil storage capacity, environmentally sensitive areas, and drinking water supplies as relevant factors, and cautioned that facility age and oil storage capacity should not be the only criteria. The significant and substantial harm criteria are currently set forth in Sec. 194.103(c)(1) through (5). Several commenters took issue with various aspects of these criteria. Historical Spill Data With respect to Sec. 194.103(c)(1) and (2), we received four comments on the use of historical spill data in determining significant and substantial harm. One commenter recommended that references to historical incidents contained in Sec. 194.103(c)(1) and (2) be omitted because they have little bearing on spill harm or consequence. Another commenter noted that some consideration should be given to the type of corrective action taken as a result of previous spills. Response In our view, however, historical spill data is an appropriate factor for us to consider when deciding which response plans are appropriate for the approval process, because it aids in focusing our limited resources on reviewing those plans associated with facilities where known risks may be present. Electric Resistance Welded Pipe With respect to Sec. 194.103(c)(3), one commenter contended that there was no scientific basis for establishing significant and substantial harm on the basis of the presence of electric resistance welded (ERW) pipe manufactured prior to 1970, operating at certain stress levels. Response OPS disagrees. Our accident statistics clearly show that at certain stress levels, ERW pipe manufactured before 1970 is inherently susceptible to fracture and preferential corrosion. Two studies, along with our accident data for liquid and natural gas transmission pipelines, show that failures in older ERW pipes greatly outnumber those in ERW pipe produced after 1970. Since 1970, pipe [[Page 8739]] manufacturers have changed to high frequency current for fusion heat and improved quality control for ERW pipes. These changes led to a significant decrease in the number of ERW pipe seam failures. This decrease is so significant that it cannot be attributed to any factors other than the change to high frequency current and quality control improvements. Therefore, we are retaining this criterion. Buffer Zone Dimensions Six comments were received regarding the criterion in Sec. 194.103(c)(4) and (5) establishing ``significant and substantial harm'' to include a line section located within certain linear distances from drinking water intakes and environmentally sensitive areas. Three of the comments concerned the role of this criterion in the significant and substantial harm determination. One commenter asserted that drinking water intakes and environmentally sensitive areas should be equally protected, noting that the OPA 90 Conference Report made no distinction between the two and requires that both be protected in the event of a spill. This commenter recommended that an operator of any oil pipeline located within 5 miles of an environmentally sensitive area be required to prepare and submit a response plan. One commenter contended that the distances from drinking water intakes and environmentally sensitive areas should only be relevant when the line section crosses a major river or waterway. Another commenter noted that an oil discharge from a pipeline can also affect ground waters and that this should be taken into account in determining the level of harm that could reasonably be expected in the event of a discharge and taken into account for determining which plans should require approval. Response In our view, the clear intent of OPA 90 requires us to recognize the potential harmful effects of oil discharges on environmentally sensitive areas and drinking water sources. The fact that most pipelines are located underground, and contamination of ground waters can ultimately impact surface waters and adjoining areas indicates that a response plan must contain response strategies to protect drinking water sources and environmentally sensitive areas. Moreover, the FWPCA requires these areas be identified in the relevant ACP(s) and response plans be consistent with these ACPs. Accordingly, we are retaining the linear distance criteria in Sec. 194.103(c)(4) and (5). Overall, we believe that the Sec. 194.103(c) criteria for determining whether a line section can be expected to cause significant and substantial harm, are appropriate at this time. We may consider revising these criteria in the future if experience indicates that such a change is needed. We reserve the right to check all pipeline facility response plans for completeness, regardless of the level of harm the operator designates. Treatment of Response Zones Under Sec. 194.103(b), if an operator expects a line section in a response zone to cause significant and substantial harm, then the entire response zone must be treated as if it could cause significant and substantial harm. Two comments were received stating that Sec. 194.103(b) should be revised. The commenters contended that pipeline operators should not be burdened with planning for areas within a response zone but relatively distant from the pipeline sections capable of causing significant and substantial harm. Two other commenters questioned the criterion. They suggested that only the line section that met the criterion, rather than the zone, be so designated. Response OPS disagrees that a revision is warranted. Response zones are based on geographic and regional considerations including topography, hydrology, climate, and population. OPS requires operators to submit a response plan for each pipeline, not for each line section and requires a separate appendix for each response zone. OPS expects operators to fully analyze the potential impact of a spill throughout each response zone. Section 194.105, Worst Case Discharge Secondary Containment Credits RSP/OPS received numerous comments on the practice of reducing the worst case discharge calculation from breakout tanks that have secondary containment dikes, and other prevention measures. One commenter stated that Washington State does not allow operators to take credit for secondary containment and that the worst case discharge calculation is only to establish a planning volume. Another commenter stated that it was inappropriate to allow for a reduction of the maximum drainage volume calculation because a review of incidents associated with storage tanks shows it is not uncommon to experience at least a partial failure of containment systems. Commenters also suggested varying amounts of credit for secondary containment, some up to 100 percent, depending on the spill prevention measures an operator has in place. Others opposed predetermined credits, arguing instead that operators should use site-specific risk assessment methods to establish the appropriate containment credit. Response In 49 CFR 194.105(b)(3), the rule allows operators to reduce the calculated worst case discharge from a breakout tank due to secondary containment. Reductions in the calculated worst case discharge are referred to as credits. The interim final rule is not specific as to how much credit an operator is allowed. In 40 CFR Part 112, EPA allows up to 20 percent secondary containment credit in certain cases for tanks under its jurisdiction. Since 1994, our policy has allowed operators to claim up to a 50 percent secondary containment credit in calculating their worst case discharge for facilities with breakout tanks. The 50 percent credit policy was based on examining tank accident statistics and a 1992 position paper from the American Petroleum Institute. Under certain circumstances, we approved claims for credit of up to 75 percent where operators were able to demonstrate that more spill prevention measures were in place. OPS believes, based on our analysis, that routine spill prevention credits higher than 75 percent are not justified. OPS reviewed incidents from 1987 to 1999 involving spills from breakout tanks. During that period, 189 breakout tank spills were reported. Of the 179,606 barrels of oil spilled, 139,015 barrels of oil were recovered. A variety of factors may have contributed to the amount o","truncated":true,"body_characters":100144}