{"operation":"document","citation":"PI-76-071","title":"Arkansas Public Service Commission — Pipeline Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1976-11-02","effective_on":null,"summary":"PI-76-071 response to Arkansas Public Service Commission concerning 192.457.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-76-071.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-76-071.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-76-071","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Pipeline/1976/PI76071.pdf","body":"<<<PAGE 1>>>\n\nNovember 2, 1976\nMr. Anthony Creston\nChief, Pipeline Safety\nArkansas Public Service Commission\nJustice Building\nLittle Rock, Arkansas 72201\nDear Mr. Creston:\nThis refers to your letter dated September 3, 1976, transmitting the Commission's Order issued on\nSeptember 1, 1976, granting all operators in the State of Arkansas an extension of the August 1,\n1976, deadline for compliance with 49 CFR 192.457(b) until August 1, 1977.\nAlthough your letter indicates the Commission does not intend the Order to be a waiver from a\nFederal standard, since the Order was forwarded to us pursuant to Sec. 3(e) of the Natural Gas\nPipeline Safety Act of 1968 (the Act), and it has the effect of setting a compliance deadline\ndifferent from the deadline in Section 192.457(b), we are considering the matter as a request for\nwaiver under Sec. 3(e) of the Act. The matter has been assigned OPSO Docket No. ARK-76-2.\nAs discussed hereafter, we object to the Commission's action because it goes beyond the authority\nof the Commission under Sec. 3(e) and is not in accord with the certification made by the\nCommission pursuant to Sec. 5(a) of the Act.\nWhile Sec. 3(e) authorizes a State agency to grant a waiver from a Federal standard upon\napplication by any person, this authority only applies to those particular situations where a Federal\nstandard is not appropriate. The Commission's Order purportedly applies to all operators subject\nto the Commission's jurisdiction. This broad action is inconsistent with the concept and meaning\nof a waiver.\nRather, we consider the Commission's action to constitute rulemaking of general applicability.\nUnder Sec. 3(b) of the Act, the Commission lacks the authority to adopt rules of general\napplicability with respect to intrastate facilities that are incompatible with the minimum Federal\nstandards. As rulemaking, the Commission's action is patently incompatible with 49 CFR\n192.457(b) and is therefore prohibited by the Act.\nAdditionally, the Commission, by issuing the September 1 Order, places itself in a position of\nbeing inconsistent with its existing certification under Sec. 5(a) of the Act that it \"has adopted\neach Federal safety standard...and is enforcing each such standard....\"\nFurther, even if the Commission's action were within the authority of Sec. 3(e) of the Act, we\nwould still object to that action. As stated above, the power to grant waivers under Sec. 3(e) is\ndal\\192\\457\\76-11-02\n1\n\n<<<PAGE 2>>>\n\nintended only for those particular situations where a Federal pipeline safety standard of general\napplicability is not appropriate. The Commission, in support of its Order, has not presented any\ncogent reasons to show why Section 192.457(b) is inappropriate in particular situations.\nAccordingly, under Section 3(e) of the Natural Gas Pipeline Safety Act of 1968 (49 USC\n1672(e)), the Commission's action is hereby stayed. The Commission within 60 days from the\ndate of this letter may appeal this decision in writing and request an opportunity for hearing.\nAlthough under Sec. 3(e) of the Act, the Commission may not \"grant\" an extension of time to\ncomply with an applicable standard without following the statutory waiver process, the\nCommission may nonetheless, in exercising its discretionary enforcement powers, consider an\noperator's compliance effort and other relevant factors in deciding whether a penalty should be\nassessed in a particular situation.\nSincerely,\nCesar DeLeon\nActing Director\nOffice of Pipeline\nSafety Operations\ndal\\192\\457\\76-11-02\n2\n\n<<<PAGE 3>>>\n\nARKANSAS\nPUBLIC SERVICE COMMISSION\nSeptember 3, 1976\nMr. Cesar DeLeon\nActing Director\nOffice of Pipeline Safety Operations\nDepartment of Transportation\nMaterial Transportation Bureau\n400 Seventh St., S.W.\nWashington, D.C. 20590\nDear Mr. DeLeon:\nEnclosed is a copy of an order the Arkansas Public Service Commission has issued regarding\ncompliance with Paragraph 192.457 of the Arkansas Gas Pipeline Code and the Minimum Federal\nSafety Standards for gas lines.\nThis order is forwarded to your office pursuant to Section 3(e) of Public Law 90-841, dated\nAugust 12, 1968, known as the \"Natural Gas Pipeline Safety Act of 1968\". Although Section\n3(e) requires notification 60 days prior to the effective date of any waiver the request for an\nextension of time could not be considered by this Commission before August 1, 1976.\nThe Arkansas Public Service Commission, in issuing this order, does not in any manner intend to\nwaive any requirements for compliance, but rather allow additional time for some operators to\nattain compliance. The Commission determined that this approach would be in the public interest\nafter consideration of all aspects relating to this matter.\nIf there are any question regarding this, please contact this office.\nSincerely,\nAnthony Creston\nChief, Pipeline Safety\nEnclosure\ndal\\192\\457\\76-11-02\n3\n\n<<<PAGE 4>>>\n\nARKANSAS\nPUBLIC SERVICE COMMISSION\nIN THE MATTER OF COMPLIANCE )\nWITH ARKANSAS GAS PIPELINE CODE )\nSECTION 192.457 - CATHODIC )\nPROTECTION )\nADMINISTRATIVE ORDER\nThe Arkansas Gas Pipeline Code, Subpart I, Section 192.457, specifies that Operators of\ngas pipelines must provide cathodic protection for certain lines no later than August 1, 1976.\nAlthough operators subject to this provision have made substantial progress toward\ncompliance, some have reported that they have been unable to meet the Code requirements on\ntime due to inadequate funding, shortages of materials and qualified manpower. Some Operators\nhave petitioned the Commission for an extension of time to achieve compliance. They have\ndemonstrated to the Commission that they have initiated a positive program toward compliance\nand are presently actively pursuing this program.\nFor the foregoing reasons, and pursuant to the authority granted in Ark. Stat. Ann.\nSection 73-1910(a), the Commission has elected to extend the period for compliance with Section\n192.457 until August 1, 1977.\nOperators will submit quarterly progress reports to the Pipeline Safety Division of this\nCommission and the first report shall be submitted by November 10, 1976. Additional reports for\nthe succeeding quarters will be submitted by February 10 and May 10, 1977, and a final report,\nupon completion of all required cathodic protection, will be submitted by August 1, 1977. All\nreports will be in a format as specified by Pipeline Safety. Any questions will be directed to Mr.\nAnthony Creston, Chief of Pipeline Safety. Operators who, in any quarterly report, fail to show\nprogress toward compliance from the previous quarter, will have demonstrated a lack of\ncooperation and the Commission shall view this as grounds of revocation of the extension for that\ndal\\192\\457\\76-11-02\n4\n\n<<<PAGE 5>>>\n\nOperator. The Operator will thereupon be subject to civil penalties as authorized by appropriate\nstatutes.\nBY ORDER OF THE COMMISSION\nThis 1st day of September, 1976.\nRobert C. Downie, Chairman\nPat Moran, Commissioner\nJohn C. Pickett, Commissioner\nTommie Castillow\nSecretary to Commission\ndal\\192\\457\\76-11-02\n5","truncated":false,"body_characters":7032}