{"operation":"document","citation":"85 FR 21140","title":"Pipeline Safety: Regulatory Reform for Hazardous Liquid Pipelines","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"proposed","official":true,"published_on":"2020-04-16","effective_on":null,"summary":"PHMSA is soliciting public comment on proposed amendments to the Federal Pipeline Safety Regulations for the safety of hazardous liquid pipelines that would revise the requirements for facility response plans, revise the definition for accidents, and consider repealing, replacing, or modifying other specific regulations. The intent of these changes is to reduce regulatory burdens and improve regulatory clarity without compromising safety and environmental protection.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-2020-05721.json","markdown":"https://regulus.evalyn.ai/document/federal-register-2020-05721.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-2020-05721","source_url":"https://www.federalregister.gov/documents/2020/04/16/2020-05721/pipeline-safety-regulatory-reform-for-hazardous-liquid-pipelines","body":"Federal Register, Volume 85 Issue 74 (Thursday, April 16, 2020) [Federal Register Volume 85, Number 74 (Thursday, April 16, 2020)] [Proposed Rules] [Pages 21140-21159] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2020-05721] [[Page 21140]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 190, 194, and 195 [Docket No. PHMSA-2018-0047] RIN 2137-AF37 Pipeline Safety: Regulatory Reform for Hazardous Liquid Pipelines AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: PHMSA is soliciting public comment on proposed amendments to the Federal Pipeline Safety Regulations for the safety of hazardous liquid pipelines that would revise the requirements for facility response plans, revise the definition for accidents, and consider repealing, replacing, or modifying other specific regulations. The intent of these changes is to reduce regulatory burdens and improve regulatory clarity without compromising safety and environmental protection. DATES: Comments on this notice are due by June 15, 2020. ADDRESSES: Submit comments, identified by Docket No. PHMSA-2018-0047, using any of the following methods: Federal eRulemaking Portal: https://www.regulations.gov . Follow the online instructions for submitting comments. Fax: 1-202-493-2251. Mail: U.S. DOT Docket Management System, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Hand-deliver/courier: Available between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Instructions: All submissions must include the agency name and docket number for this proposed rule. If you submit your comments by mail, submit two copies. If you wish to receive confirmation that PHMSA has received your comments by mail, include a self-addressed stamped postcard. Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to http://www.regulations.gov , as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at https://www.transportation.gov/privacy . Confidential business Information: Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this notice contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this notice, it is important that you clearly designate the submitted comments as CBI. Pursuant to 49 CFR 190.343, you may ask PHMSA to give confidential treatment to information you give to the agency by taking the following steps: (1) Mark each page of the original document submission containing CBI as ``Confidential''; (2) send PHMSA, along with the original document, a second copy of the original document with the CBI deleted; and (3) explain why the information you are submitting is CBI. Unless you are notified otherwise, PHMSA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this notice of proposed rulemaking (NPRM). Submissions containing CBI should be sent to Sayler Palabrica at [email protected] or 1200 New Jersey Ave SE, E24-447, Washington, DC 20590. Any commentary that PHMSA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking. FOR FURTHER INFORMATION CONTACT: For technical information, contact Chris Hoidal, Senior Technical Advisor, by telephone at 303-807-8833 or by email at [email protected] . For general information, contact Sayler Palabrica, Transportation Specialist, by telephone at 202-366-0559 or by email at [email protected] . SUPPLEMENTARY INFORMATION: I. Executive Summary II. Background III. Request for Input IV. Proposed Amendments V. Availability of Standards Incorporated by Reference VI. Regulatory Analyses and Notices I. EXECUTIVE SUMMARY A. Purpose of This Rulemaking Action PHMSA is proposing to amend the Federal Pipeline Safety Regulations at 49 CFR parts 190, 194, and 195 to reduce the regulatory burden on pipeline systems transporting hazardous liquids. The proposed amendments in this rulemaking include regulatory relief actions identified by internal agency review, petitions for rulemaking, and public comments on DOT's regulatory reform and infrastructure notifications titled, ``Transportation Infrastructure: Notice of Review of Policy, Guidance, and Regulation'' (82 FR 26734; June 8, 2017), and ``Notification of Regulatory Review'' (82 FR 45750; Oct. 2, 2017). PHMSA is requesting comment on the proposed amendments. B. Summary of the Proposed Amendments PHMSA is proposing to repeal, replace, or revise sections in parts 190, 194, and 195 to reduce regulatory burdens. Part 190 specifies procedures during inspections and investigations, part 194 contains the requirements for preparing and submitting oil spill response plans, and part 195 prescribes the safety and reporting requirements for pipelines transporting hazardous liquids or carbon dioxide. In part 190, PHMSA is proposing to clarify the requirements for producing records during an inspection or investigation and reduce the burden required to submit confidential commercial information under most circumstances. In part 194, PHMSA is proposing amendments that would streamline the oil spill response plan requirements and clarify or eliminate requirements that may be confusing or redundant. In part 195, PHMSA is proposing amendments that would relieve accident reporting burdens, allow remote monitoring of rectifier stations, and clarify integrity management (IM) guidance. C. Costs and Benefits PHMSA projects that, if promulgated, the amendments in this proposed rule would result in estimated annualized net cost savings of $273,242 for regulated entities based on a 7 percent discount rate. PHMSA has determined that the proposed changes would not increase risks to public safety or the environment. In accordance with 49 U.S.C. 60102, Executive Order (E.O.) 12866, and DOT policy, PHMSA has prepared an initial assessment of the costs and benefits of these proposed changes as well as reasonable alternatives. PHMSA has released the preliminary regulatory impact analysis (RIA) concurrent with this NPRM for public review and comment, and it is available in the docket. II. Background In response to E.O. 13771, ``Reducing Regulation and Controlling Regulatory Costs,'' E.O. 13783, ``Promoting Energy Independence and Economic Growth,'' [[Page 21141]] and E.O. 13777, ``Enforcing the Regulatory Reform Agenda,'' DOT issued two notices soliciting regulatory reform ideas from the public. The first notification (82 FR 26734; June 8, 2017) requested public comment on existing regulations that may be obstacles to transportation infrastructure projects. DOT received more than 200 comments in the transportation infrastructure docket, including six comments that are relevant to the Federal Pipeline Safety Regulations.\\1\\ The second notification (82 FR 45750; Oct. 2, 2017) requested comment on existing rules and other agency actions that may be eligible for repeal, replacement, suspension, or modification without compromising safety. DOT asked the public to identify agency actions that eliminate jobs or inhibit job creation; are outdated, unnecessary, or ineffective; impose costs that exceed benefits; create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; could be revised to use performance standards in lieu of design standards; or potentially unnecessarily encumber energy production. After a 30-day comment period, DOT re-opened the comment period until December 1, 2017 (82 FR 51178; Nov. 3, 2017). Of the nearly 3,000 public comments received, approximately 30 were related to the Federal Pipeline Safety Regulations.\\2\\ --------------------------------------------------------------------------- \\1\\ Docket No. DOT-OST-2017-0057. \\2\\ Docket No. DOT-OST-2017-0069. --------------------------------------------------------------------------- To support DOT's regulatory reform efforts, PHMSA's Office of Pipeline Safety (OPS) reviewed, considered, and identified existing regulations that could be improved, revised, repealed, or streamlined. OPS also considered the public comments submitted in response to DOT's June 8, 2017 notice soliciting comments about transportation infrastructure, DOT's October 2, 2017 public notice soliciting comments on regulatory reform, and petitions for rulemakings. These amendments to PHMSA regulations are being proposed based on the input received in response to those notifications. III. Request for Input PHMSA is seeking public comments on the regulatory reform actions proposed in this NPRM. PHMSA will consider all relevant and substantive comments but encourages interested parties to submit comments that: (1) Identify the proposed amendments being commented on and the appropriate section numbers; (2) provide justification for their support or opposition to the proposed amendments, especially data on safety risks and cost burdens; and (3) provide specific alternatives if appropriate. IV. Proposed Amendments A. Part 190 Pipeline Safety Enforcement and Regulatory Procedures The Pipeline Safety Laws (49 U.S.C. 60101 et seq.) require pipeline operators to maintain records, make reports, and provide certain information to PHMSA upon request. PHMSA is proposing to amend its regulations under part 190 to clarify the requirements for producing records during an agency inspection or investigation in a way that recognizes technological innovation. The proposed changes would clarify that new technology is permitted while ensuring that PHMSA can effectively enforce the Federal Pipeline Safety Regulations. Section 190.203 Inspections and investigations The Pipeline Safety Laws require operators to make records, reports and information available to PHMSA upon request and provide the information that is required in order to decide whether or not an operator is in compliance.\\3\\ PHMSA is proposing to clarify that operators may submit records electronically, provided that the method used to submit information allows PHMSA to download and print non- redacted copies of records in their original format (the file format used by the application that created the electronic document) and does not impose limitations that impede PHMSA's ability to enforce the Pipeline Safety Laws. PHMSA recognizes that record production technology will continue to evolve and intends to define document production standards in this proposed rule in a way does not create a barrier to innovation in record production technology. Thus, PHMSA's proposed change would set consistent minimum standards for providing records to PHMSA and give operators the choice to select the best method to deliver the information that PHMSA needs to enforce the Pipeline Safety Laws. This change does not have direct safety effects but will improve the efficiency of inspections and investigations. --------------------------------------------------------------------------- \\3\\ 49 U.S.C. 60117(b). --------------------------------------------------------------------------- PHMSA encourages the use of technology that makes sending and receiving records more convenient; however, that goal is undermined by a lack of clear expectations for the quality and usability of information submitted to the agency. This lack of clear expectations leads to unnecessary delays and burdens on both operators and inspectors when PHMSA requests operators manually re-submit records that were provided in an unusable format. Historically, pipeline operators provided PHMSA with paper copies of records during the agency's routine inspections and accident investigations. As technology has evolved, operators have provided electronic and hard copies of company records to PHMSA. Recently, some operators have requested that PHMSA access and review documents related to incidents or investigations through an operator-controlled electronic record delivery system (often referred to as a ``portal''). PHMSA recognizes that electronic systems present an opportunity to deliver operator records to PHMSA in a cost-effective manner. However, some electronic systems alter the usability of documents in a way that limits PHMSA's ability to carry out its statutory responsibilities under the Pipeline Safety Laws. For example, some portals are ``view only'' and do not allow PHMSA the ability to download, print, or search important operator records; many of these documents must be analyzed and compared with other documents, and cannot be adequately reviewed by viewing on a computer screen one page at a time. Other features that have impeded PHMSA's review of documents include automatic watermarking, intrusive monitoring systems, and systems that convert documents to un-searchable PDFs. In order to maintain consistency between operator-submitted paper and electronic records, PHMSA proposes to place certain minimum standards on the capabilities of an operator's record production and delivery systems. Specifically, PHMSA proposes to require that, for any records that an operator chooses to submit to PHMSA using an electronic record delivery system or similar technology, the electronic record delivery system or technology must: (1) Allow PHMSA to download and print all records on the portal from any U.S.-based internet access point without redacting or altering the document (e.g., watermarking, date and time-stamping with username/access date information); (2) not remove or restrict document functionality that is available to the operator for each document, meaning that if the original format of a document allows for the ability to magnify a document while maintaining legibility; search a record for text; or search for specific records by name, date, or file type, then those same capabilities must be available to PHMSA personnel; and (3) provide PHMSA with a point of [[Page 21142]] contact who is responsible for addressing reported problems with the system or any record displayed on the system. If the point of contact is not a site administrator, then PHMSA would expect the point of contact to have direct access to a site administrator responsible for fixing problems as expeditiously as possible. For any electronic record delivery system that PHMSA accesses for the purposes of enforcing the Pipeline Safety Laws, operators must: (1) Disable the use of activation codes that must be entered to begin any individual session; (2) disable any unnecessary internet connectivity requirements to view downloaded documents; (3) disable any document tracking features; (4) ensure that any ``time-out'' feature be set to a reasonable amount of time, but no shorter than one hour; and (5) not impose any pre-access conditions (e.g., through log-in agreements or notifications) that hinder PHMSA's ability to use records displayed on the portal. If PHMSA determines that an operator's electronic record delivery system would impede or otherwise prevent PHMSA's efficient review of records in an inspection or investigation, or if the system is otherwise in conflict with PHMSA regulations, PHMSA may order an operator to deliver records via an alternative method or in an alternative format. The proposed rule gives operators the choice to select the best method to deliver information to PHMSA and does not require operators to modify records to meet these requirements. PHMSA proposes to require operators submit electronic records in their original format unless PHMSA allows an alternative format. Operators must not alter documents in a way that impedes PHMSA's ability to effectively or efficiently review the documents. For example, if a particular report is in PDF format, PHMSA would not expect an operator to convert it to a word document before submitting it to PHMSA through an electronic system. On the other hand, an electronic system that converts all submitted documents, including searchable spreadsheets or word processor documents, to PDF form would not be acceptable. Clear requirements for electronic record delivery systems will reduce delays for both operators and PHMSA. The Pipeline Safety Laws require operators to make records, reports, and information available upon request in order to assist PHMSA's determination regarding whether an operator is in compliance with the Pipeline Safety Laws (49 U.S.C. 60117(b)). The proposed rule ensures that operators do not spend time creating systems that are unusable by PHMSA and allows the agency to efficiently access and use electronic records. Section 190.343 Information made available to the public and request for protection of confidential commercial information Section 190.343 establishes the procedures for operators to request confidential treatment of commercial information they submit to PHMSA, including a requirement for operators to provide PHMSA with a redacted copy of the records being submitted and an explanation as to why the information is confidential commercial information. PHMSA is proposing to revise these requirements to reduce the burden associated with redacting documents containing confidential information. This change has no direct safety effects but may improve the efficiency of inspections and investigations. In response to DOT's notification of regulatory reform (82 FR 45750; Oct. 2, 2017), the American Petroleum Institute (API) and the Association of Oil Pipelines (AOPL) expressed concerns about the need to provide a copy of redacted records under Sec. 190.343(a), especially records that are requested during inspections and investigations. API and AOPL stated, ``the process of redacting information from voluminous documents is very burdensome and costly, and if a Freedom of Information Act (FOIA) request is not made for the documents, then dedicating significant resources to such an effort is unwarranted.'' Pipeline operators have expressed similar concerns to PHMSA staff. PHMSA understands this concern and also has observed that redaction requirements can lead to delays during investigations. For these reasons, PHMSA proposes to provide operators the option, but not the obligation, to submit a redacted copy of records containing confidential commercial information submitted for purposes other than rulemaking or special permit proceedings, such as in response to a PHMSA inspection or investigation. PHMSA proposes to continue to require operators to submit a redacted copy of records submitted in rulemaking proceedings and in applications for special permits and renewals, since those documents must be placed in a public docket. The proposed revision results in cost savings in situations in which it may be burdensome and costly for operators to redact records prior to submission. In other situations, operators may prefer to provide PHMSA with a second copy that has confidential commercial information redacted. In addition to the changes to redaction requirements, PHMSA also proposes to clarify what is required to assert that information is confidential commercial information. Simply marking records ``confidential'' under a general claim of confidentiality is not sufficient for the purposes of claiming confidential commercial information. PHMSA proposes to require operators provide a specific explanation of why the information is confidential commercial information. The proposed rule also clarifies Sec. 190.343 by eliminating superfluous language in paragraph (b) that indicates under what conditions PHMSA will treat information as confidential. B. Part 194 Response Plans for Onshore Oil Pipelines PHMSA promulgated part 194 in response to the mandates in the Oil Pollution Act of 1990 (OPA 90).\\4\\ OPA 90 requires any operator of a ship or facility, including pipeline facilities, that could cause substantial environmental harm by discharging oil into or on the navigable waters or adjoining shorelines of the United States, to prepare and submit a facility response plan (FRP) for a worst-case oil discharge. Part 194 requires operators of onshore oil pipeline facilities to prepare an FRP and establishes the minimum requirements for what the operators must include in their FRPs. In all FRPs, the operator must describe a ``worst-case'' scenario as well as the appropriate response to that discharge, including details regarding the equipment and personnel that will be made available during the specified timeframe following the discharge to appropriately contain and clean up the spill. Part 194 also requires operators to run drills and exercises based on their FRPs to prepare for an acutal release. --------------------------------------------------------------------------- \\4\\ The Oil Pollution Act of 1990 (OPA 90) (33 U.S.C. 1321) amended the Federal Water Pollution Control Act (FWPCA). --------------------------------------------------------------------------- PHMSA is proposing several changes to part 194 to streamline how operators of onshore oil pipelines must plan, prepare, and submit FRPs as required by OPA 90. The proposed changes are intended to improve the clarity of the requirements and applicability of part 194, codify current policy, ensure consistency with other federal requirements and terminology, and reduce regulatory burdens without compromising safety. Notably, this NPRM would clarify the applicability of part 194 by removing a list of exemptions that are incorrectly defined [[Page 21143]] as ``exceptions'' in Sec. 194.101. Section 194.101(b)(1) lists ``exceptions'' to the requirements of part 194. However, these ``exceptions'' are not applicable if the pipeline facility could cause ``substantial'' or ``significant and substantial harm'' to navigable waters or adjoining shorelines. Since part 194 only applies to pipeline facilities that could affect navigable waterways or adjoining shorelines, these are not true exceptions. Partially removing the ``exceptions'' as currently written would clarify the applicability of part 194 in a manner consistent with OPA 90. PHMSA is proposing to move the ``exception'' currently listed in Sec. 194.101(b)(2)(ii) to Sec. 194.3(b). This exemption applies to pipelines 6\\5/8\\ inches or less in diameter, ten miles or less in length, and where the operator determines that it is unlikely that the worst-case discharge (WCD) from any point on the line section would adversely affect, within 4 hours after the initiation of the discharge, any navigable waters, public drinking water intake, or environmentally sensitive areas. Due to the lower risk presented by these low-capacity pipelines that are removed from protected resources, PHMSA wishes to explicitly recognize the possibility that these pipelines may not require a plan. Additionally, PHMSA is proposing to remove the terms ``substantial harm'' and ``significant and substantial harm'' from the regulations and remove Sec. 194.103 in its entirety. Currently, part 194 requires an operator to make a distinction between the types of potential harm an oil spill could cause, include a statement in its FRP if certain conditions are met, and submit a plan accordingly. OPA 90 requires submission of plans for facilities that could cause ``substantial harm'' or ``significant and substantial harm,'' but does not expressly require approval of plans for ``substantial harm'' facilities. PHMSA has historically reviewed plans for both types of facilities for accuracy and completeness, communicated those findings to the operators, and required correction where needed. Furthermore, the requirements in part 194 for pipeline facilities that could cause ``substantial harm'' are the same as the requirements for pipeline facilities that could cause ``significant and substantial harm.'' Distinguishing between the two creates unnecessary categories and some degree of burden to operators and PHMSA. PHMSA proposes to remove these terms, clarify the applicability of part 194 in Sec. 192.3, and thus eliminate a minor regulatory burden associated with justifying the appropriate determination. This change would be consistent with the authorizing legislation, OPA 90, and does not compromise safety since the distinction between ``substantial harm'' and ``significant and substantial harm'' has no effect on the plan requirements. PHMSA is also proposing additional provisions to make it easier for an operator to prepare and submit response plans. These changes would include: (1) Allowing operators to use spill modeling for estimating WCDs; (2) requiring operators to submit plans electronically; (3) allowing operators to submit DOT annexes to existing response plans prepared for state regulators; and (4) clarifying that an operator must submit plans before putting a pipeline facility in service rather than prior to beginning construction. PHMSA is also proposing technical and editorial changes for consistency and clarity. The following is a section by section discussion of the proposed changes. Section 194.3 Applicability. Section 194.3 defines the applicability of part 194. Part 194 applies to onshore oil pipeline facilities that, because of its location, the operator determines that oil discharged from any point on the pipeline facility could reasonably be expected to adversely affect any navigable waters in the U.S. or adjoining shorelines. PHMSA is proposing to revise this section to clarify that part 194 applies to pipeline facilities that could affect the navigable waters of the U.S. or adjoining shorelines within 12 hours, with an exception for smaller- diameter or shorter pipelines that cannot adversely affect navigable waters within 4 hours. These changes would preserve the current exceptions in Sec. 194.101(b) for: (1) Pipeline facilities where a discharge would not affect water within 12 hours of the release, and (2) pipeline facilities 6\\5/8\\ inches or less in diameter and 10 miles or less in length where a discharge would not be able to affect water within 4 hours of the discharge. The current exception in Sec. 194.101(b)(1) is not explicitly retained because that exception only applies if the pipeline is not in proximity to navigable waters. Since part 194 does not apply to pipelines that cannot affect navigable waters, the exception in Sec. 194.101(b)(1) is meaningless. This change will, therefore, not have an effect on the number of operators subject to the part 194 requirements since all FRPs currently submitted to PHMSA are for pipelines that are greater than 6\\5/8\\ in diameter and could affect navigable waters within 12 hours of a release or are less than 6\\5/8\\ in diameter and can affect navigable waters within 4 hours of a release. The proposed changes will provide increased clarity regarding the applicability of part 194 without affecting safety. These proposed amendments will also clarify that part 194 is not applicable to operators of onshore oil pipeline facilities that are 6\\5/8\\ inches or less in diameter and greater than 10 miles in length or greater than 6\\5/8\\ inches in diameter and 10 miles or less in length that do not affect navigable waters or adjoining shorelines. The existing exceptions omit the possible combinations of small diameter pipelines longer than 10 miles in length and larger diameter pipelines 10 miles or less in length. This incorrectly implies that operators of those onshore oil pipelines must submit response plans even if they would not affect navigable waters or adjoining shorelines. Given that OPA applies to facilities that could affect navigable waters and adjoining shorelines, an FRP is not required for such facilities. Section 194.5 Definitions Section 194.5 provides definitions specific to part 194. PHMSA is proposing to add, revise, and remove several definitions from this section to ensure the terms used throughout part 194 are clear and accurate. PHMSA also believes that amending certain definitions in part 194 will help improve the readability of the part. Area Contingency Plan (ACP) and National Contingency Plan (NCP) PHMSA proposes to add definitions for National Contingency Plan (NCP) \\5\\ and Area Contingency Plan (ACP) in part 194. The proposed rule defines the NCP as the National Oil and Hazardous Substances Pollution Contingency Plan codified in 40 CFR part 300. The NCP provides the national-level organizational structure and procedures for preparing for and responding to oil spills and other hazardous releases. PHMSA also proposes to define ACP as a regional response plan prepared in accordance with OPA 90 and the NCP. --------------------------------------------------------------------------- \\5\\ 40 CFR part 300, National Contingency Plan, NCP. --------------------------------------------------------------------------- Various environmental laws and regulations, primarily the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) \\6\\, OPA 90, and the NCP establish tiered classifications of response plans to ensure that the government and other entities have adequate protocols and resources in place to respond to an oil spill [[Page 21144]] regardless of the scope of the spill. The broadest response plan is the nationwide NCP, which was created by CERCLA and is codified by the Environmental Protection Agency in 40 CFR part 300. ACPs are regional response plans required by OPA 90 which cover smaller geographical areas defined in the NCP. The most detailed plans are facility-specific response plans, which must be consistent with the applicable ACPs and the NCP. Since PHMSA uses the terms ACP and NCP throughout part 194, the regulations would benefit from spelling out and defining these terms. --------------------------------------------------------------------------- \\6\\ Pub. L. 95-510, aka Superfund. --------------------------------------------------------------------------- Worst-case Discharge Part 194 requires an operator to determine a ``worst-case discharge'' (WCD) volume to account for in its FRP. The WCD is the largest of three elements: (1) Largest discharge from a line section calculated by adding the possible amount released following a pipeline failure before a pipeline is shutdown with the line section drain down after shutdown; (2) volume of largest breakout tank or battery of tanks with credits for preventative measures; or (3) largest historic discharge. Currently, the WCD is defined as the largest foreseeable discharge of oil, including discharge from fire or explosion, in adverse weather conditions. PHMSA is proposing to remove the phrase ``in adverse weather conditions'' from the definition of WCD and instead require operators consider adverse weather in Sec. 194.107 when developing the plan. Potential weather conditions have no effect on calculation for the volume of oil discharged from a pipeline facility, but is an important consideration for planning the spill response itself. This change may therefore improve the quality of FRPs. Specified Minimum Yield Strength PHMSA is proposing to remove the definition of ``specified minimum yield strength'' since the term only appears in Sec. 194.101, which is a section PHMSA is proposing to remove. This definition, therefore, would no longer be necessary. Tertiary Containment PHMSA is proposing to add a definition for ``tertiary containment,'' which appears in Sec. 194.105 but is not defined. PHMSA's interpretation \\7\\ of ``tertiary containment'' is based on the definition of secondary containment in the National Fire Protection Association (NFPA) standard NFPA 30, ``Flammable and Combustible Liquids Code,'' which PHMSA would also incorporate by reference into part 194. PHMSA proposes to codify this term, consistent with PHMSA's previous interpretation, as a dike, berm, or other physical containment outside of the secondary containment. NFPA 30 defines secondary containment for piping systems as containment that is external to and separate from the primary piping system; a secondary containment tank is defined as one that has an inner wall and an outer wall with a means for monitoring the space between the walls for leaks. --------------------------------------------------------------------------- \\7\\ PHMSA. Interpretation Response #PI-14-0010, 10/6/2014. https://www.phmsa.dot.gov/regulations/title49/interp/PI-14-0010 . --------------------------------------------------------------------------- Contract or Other PHMSA-approved Means PHMSA is proposing to revise the definition of ``contract or other approved means'' to clearly define which methods for documenting the availability of adequate response resources, other than a signed contract with an oil spill removal organization (OSRO), are approved. PHMSA also proposes to clarify that documentation of active membership in cooperative or mutual aid agreements is also approved. The proposed revisions add clarity and transparency to PHMSA's review and approval of plan documentation. Onshore Oil Pipeline Facilities PHMSA proposes amending the definition of ``onshore oil pipeline facilities'' to clarify the scope of the part 194 regulations in light of potential ambiguity regarding the proper classification of pipelines under the CWA. The CWA defines ``onshore facility'' as ``any facility . . . of any kind located in, on, or under any land within the United States other than submerged land.'' 33 U.S.C. 1321(a)(10). The President has delegated to the Secretary of Transportation the authority to review and approve response plans for ``transportation-related'' onshore facilities, including pipelines. See E.O. 12777, section 2(d)(2) (Oct. 18, 1991). With respect to pipelines, the Secretary of Transportation has delegated that authority to PHMSA. See 49 CFR 1.97(c)(2). The CWA defines ``offshore facility'' to include ``any facility of any kind located in, on, or under, any of the navigable waters of the United States.'' Id. section 1321(a)(11). The President has delegated to the Secretary of the Interior the authority to review and approve response plans for ``offshore facilities.'' See E.O. 12777, section 2(d)(3). Under a Memorandum of Understanding (MOU), the Secretary of the Interior has re-delegated his authority over ``transportation- related'' facilities to the Secretary of Transportation to the extent those facilities are ``located landward of the coast line.'' The MOU provides that ``[t]he term `coast line' shall be defined as in the Submerged Lands Act (43 U.S.C. 1301(c)) to mean `the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.''' 40 CFR part 112, appendix B. To the extent the MOU re- delegates authority over pipelines from the Secretary of the Interior to the Secretary of Transportation, the Secretary of Transportation has delegated that authority to PHMSA. See Memorandum from the Secretary to the Administrator, PHMSA, re: Ratification of Research and Special Programs (``RSPA'') and PHMSA Approvals of Oil Spill Response Plans, and Delegation of Authority to PHMSA (Aug. 18, 2016). Thus, PHMSA has been delegated authority to review and approve response plans for pipelines located landward of the coast line, regardless of whether those pipelines are considered under the CWA's definitions to be ``onshore facilities,'' ``offshore facilities,'' or both. Beginning with the promulgation of 49 CFR part 194 in 1993, PHMSA has implemented its authority under the CWA by treating the entirety of every pipeline located landward of the coast line as an ``onshore facility'' for purposes of the CWA, even if some segments cross navigable waters. In other words, for the purposes of part 194, PHMSA does not consider that there are any ``offshore'' pipeline facilities landward of the coast line. Thus, the current version of Sec. 194.5 defines ``onshore oil pipeline facilities'' to include only those facilities ``in, on, or under, any land within the United States other than submerged land,'' while defining ``high volume area'' in a way that recognizes that an ``onshore oil pipeline facility'' may ``cross a major river or other navigable waters.'' In recent litigation, a plaintiff asserted that every segment of a pipeline landward of the coast line that crosses navigable waters is an ``offshore facility,'' and that PHMSA acted unlawfully in approving response plans covering such segments pursuant to regulations that only apply to facilities ``in, on, or under, any land.'' The court disagreed, holding that ``PHMSA's interpretation of oil pipelines that cross navigable waters as single onshore facilities is reasonable within the meaning of the CWA.'' Nat'l Wildlife [[Page 21145]] Fed. v. Sec'y of the Dep't of Transp., 374 F. Supp. 3d 634, 647 (E.D. Mich. 2019). PHMSA continues to implement its authority under the CWA consistent with its long-held interpretation that the entirety of every pipeline located landward of the coast line is an ``onshore facility'' for purposes of the CWA, even if some segments cross navigable waters. To provide additional certainty, however, PHMSA proposes amending the definition of ``onshore oil pipeline facilities'' to make clear that the part 194 regulations cover all pipelines landward of the coast line, regardless of whether those pipelines are considered under the CWA's definitions to be ``onshore facilities,'' ``offshore facilities,'' or both. This change would maintain the status quo and have no impact on the substance of the response plans submitted by operators. Operators could continue to submit response plans covering a response zone made up of multiple facilities, and the requirements for those plans would remain unchanged. Major River PHMSA is proposing to remove the definition for ``major river.'' This change would not affect the requirements of part 194 as the meaningful portions of the definition are repeated elsewhere. The term ``major river'' only appears in the definition for ``high volume area,'' which includes the first part of the ``major river'' definition regarding waterways with high flow volumes and vessel traffic. The second part of the major river definition is adequately covered by the high-volume area definition and appendix B and is unnecessary. Additionally, the book that is referenced is outdated, out of print, and not readily available to the public. Section 194.7 Operating Restrictions and Interim Operating Authorization PHMSA is proposing technical and editorial amendments to Sec. 194.7 to account for the removal of Sec. Sec. 194.101 and 194.103. Section 194.9 Incorporation by Reference PHMSA is proposing to add a new section to part 194 to list standards and documents from the American Petroleum Institute (API), the National Fire Protection Association (NFPA), and the United States Coast Guard (USCG) that are incorporated by reference (IBR) in this part. While the API and NFPA documents were already listed in the existing Sec. 194.105 for the purposes of determining the worst-case discharge of breakout tanks, part 194 lacked a specific IBR section identifying which editions of the standards were IBR into part 194. These are the same editions that are currently incorporated by reference in part 195. API Recommended Practice 651, Cathodic Protection of Aboveground Petroleum Stora","truncated":true,"body_characters":140234}