{"operation":"document","citation":"PI-81-001","title":"Memo: Internal — Pipeline Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1981-01-13","effective_on":null,"summary":"PI-81-001 response to Memo: Internal concerning 192.5.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-81-001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-81-001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-81-001","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Pipeline/1981/PI81001.pdf","body":"<<<PAGE 1>>>\n\nDate: Jan 13 1981\nSubj: Class 3 Locations (Separation of Church and Pipelines)\nFrom: Beatriz Ferreira, DCC-1\nTo: Paul Biancardi\nTHE PROBLEM\nPipeline used in the transportation of gas regulated under the Natural Gas Pipeline Safety\nAct (NGPSA) 1/ is categorized into different class locations. 2/ The purpose of designating class\nlocations is to require higher standards of safety for pipelines situated near densely populated\nareas. 3/ Prior to 1971 4/ interstate transmission lines were installed in rural areas and designated\nclass 1 or class 2 locations. 5/ Subsequently, the building of churches within 100 yards of these\nlines required a reclassification of the lines to Class 3 locations. 6/ Further, this reclassification\nrequired that the existing maximum allowable operating pressure (MAOP) 7/ be confirmed or\nrevised to coincide with the new class location. 8/\nCertain operators affected by these requirements have argued that compliance is\neconomically unfeasible and will not enhance the public safety. In support of this argument,\nJames C. Thomas, Chief, Southern Region, Office of Operations and Enforcement, has requested\nthat the Materials Transportation Bureau re-evaluate the present MAOP requirements with\nrespect to the \"normal usage of rural churches\". 10/\n1/ 2/ 3/ _\nAs amended, 49 U.S.C. 1671.\nThere are four class locations. Generally, a class location is determined by the number of\nbuildings in a class location unit. A class location unit is a designated area that extends\n220 yards on either side of the center line of any continuous one-mile length of pipeline.\n49 CFR 192.5.\n35 Fed. Reg., p. 5012, Mar. 24, 1970; also see Memo, \"Interpretation of 49 CFR\n192.5(d)(2), Office of Pipeline Safety Operations, Sept. 14, 1976\".\ndal\\192.1-a\\5\\81-01-13\n1\n\n<<<PAGE 2>>>\n\nThis memorandum examines the interpretation issues surrounding class location\nrequirements in light of the definitional development of class locations as it relates to the normal\nuse of rural churches. An attempt is made to provide useful background information and to\npropose recommendations to resolve the class location issues created by the presence of churches\nin various rural areas. In light of the information presented, it is hoped that the Office of Pipeline\nSafety Regulation and the Division of Pipeline Safety Enforcement, Office of Operations and\nEnforcement, will combine their efforts to resolve this issue and make a final determination as to\nwhether Class 3 locations defined under 192.5(d)(2) should be reclassified or whether the MAOP\nrequirements for these Class 3 locations as presently defined should be re-established.\nI. REGULATORY SCHEME\nOn August 12, 1968, the NGPSA 11/ was enacted. The Act required the Secretary of\nTransportation (Secretary) to adopt within three (3) months, the then existing State safety\nrequirements for gas pipeline as interim regulations and, to establish, within twenty-four (24)\nmonths, minimum Federal safety standards. 12/ The interim standards became effective on\nDecember 13, 1968, 13/ and on November 12, 1970, were partially revoked 14/ as the minimum\nFederal safety standards became effective. 15/ These safety standards, found in Part 192 of the\nCode of Federal Regulations (CFR), are applicable to pipeline facilities and the transportation of\ngas.\n4/ 5/ 6/ _\nMemo, \"Petition for Rulemaking\" J.C. Thomas, Chief, Southern Region, Office of\nOperations and Enforcement, Jan. 24, 1979, CPF 2309.\n49 CFR 192.5(b) and (c). A Class 1 location is any class location unit that has 10 or less\nbuildings intended for human occupancy. A Class 2 location is any class location unit that\nhas more than 10 but less than 46 buildings intended for human occupancy.\n49 CFR 192.5(d)(2). A Class 3 location is [a]n area where the pipeline lies within 100\nyards of any of the following: (i) A building that is occupied by 20 or more persons\nduring normal use. (ii) A small, well-defined outside area that is occupied by 20 or more\npersons during normal use, such as a playground, recreation area, outdoor theater, or\nother place of public assembly.\nOne such standard requires the classification of pipelines into different class locations 16/\neach providing a certain degree of safety. The need for class location designations arose because\na \"greater number of people in proximity to the pipeline substantially increases the probabilities of\ndal\\192.1-a\\5\\81-01-13\n2\n\n<<<PAGE 3>>>\n\npersonal injury and property damage in the event of an accident.\" 17/ Further, the \"external\nstresses, the potential for damage from third parties, and other factors which contribute to\naccidents will also increase with the population.\" 18/ In addition, class locations are considered\nin determining the frequency of patrolling of transmission lines to observe surface conditions on\nand adjacent to the transmission line right-of-way 19/ and, in conducting leakage surveys. 20/\nMore importantly, class locations determine the MAOP of certain pipelines.\nOnce the class location is established, the regulations require the operator to determine\nwhether the hoop stress 21/ corresponding to the MAOP 22/ for each segment of pipeline is\ncommensurate with the established class location. 23/ If the operator determines that the hoop\nstress in a segment of pipeline is not commensurate with the class location, he must confirm or\nrevise the MAOP 24/ so that the hoop stress corresponds. 25/ An established class location may\nchange, however, as a result of an increase in population density. If this occurs, the operator is\nrequired to conduct a study to determine the present class location and other related factors, 26/\nincluding the need to confirm or reduce the MAOP.\n7/ _\n49 CFR 192.3. MAOP means the maximum pressure at which a pipeline or segment of a\npipeline may be operated under 49 CFR 192. See also 49 CFR 192.619. In addition, the\nhoop stress corresponding to the established MAOP must be commensurate with the\npresent class location. (49 CFR 192.607). Hoop stress is the stress in a pipe wall, acting\ncircumferentially in a plane perpendicular to the longitudinal axis of the pipe and produced\nby the pressure of the fluid in the pipe. Guide for Gas Transmission and Distribution\nPiping Systems, American Society of Mechanical Engineers, 228, Dec. 15, 1970\n9/ Supra, Note 6.\n10/ 11/ Supra, Note 1.\n8/ 49 CFR 192.611.\nMemo, \"Effect of Rural Churches on Section 192.5(d)(2)(ii)\", May 11, 1979, CPF 2309.\nIn accordance with Section 192.611(a), if the segment of pipeline affected by the change\nof class location has been previously tested in place to at least ninety (90) percent of its specified\nminimum yield strength (SMYS) 27/ for at least eight (8) hours, the MAOP must be confirmed or\nreduced so that the corresponding hoop stress will not exceed a certain percentage of the SMYS\nof the pipe. 28/ This percentage is determined by the class location. 29/ For instance, a Class 2\nlocation would permit the operator to operate the affected segment of pipeline at a higher MAOP\nthan a Class 3 location. Consequently, if a class location changes to a higher class location the\nMAOP may have to be reduced to correspond to the new class location or the pipe may have to\ndal\\192.1-a\\5\\81-01-13\n3\n\n<<<PAGE 4>>>\n\nbe replaced to permit the operator to continue to maintain a higher pressure. It is this requirement\nthat the Chief, Southern Region, challenges.\n12/ 13/ 14/ _\n35 Fed. Reg., 13248, Aug. 19, 1970.\nThe interim standards became Part 190 of Title 49 of the Code of Federal Regulations\n(CFR) Id.\nAll the interim standards were revoked except for those provisions applicable to design,\ninstallation, construction, initial inspection, and initial testing of new pipelines which\nwould remain in effect until March 13, 1971.\n15/ 35 Fed. Reg., 13257, August 19, 1970.\n16/ Supra, Note 2.\n17/ 35 Fed. Reg., 5012, Mar. 24, 1970.\n18/ Id.\n19/ 49 CFR 192.705(b).\n20/ 49 CFR 192.706(b).\n21/ Supra, Note 7 for definition.\n22/ Supra note 7.\n23/ 49 CFR 192.607(a)(2).\n24/ 49 CFR 192.607(b).\n25/ Supra, Note 8.\nII. BACKGROUND\nThe class location issue with respect to rural churches has been the subject of numerous\ninquiries. This memorandum, however, focuses on class location issues arising from an on-site\ninspection of pipeline facilities operated by Texas Gas Transmission Corporation (Texas Gas) 30/\ndal\\192.1-a\\5\\81-01-13\n4\n\n<<<PAGE 5>>>\n\nof Owensboro, Kentucky. The Kentucky Public Service Commission conducted the inspection\nbetween May 25 and July 8, 1976, and referred the alleged violation to the Chief, Southern\nRegion, Office of Operations and Enforcement (OOE). 31/ Based on the results of this\ninspection, the Chief cited Texas Gas for operating specific sections of its transmission lines in\nviolation of the MAOP specified by Federal regulations. The sections of the affected pipeline\nwere situated within 100 yards of a rural church, therefore, designated Class 3 location. 32/\nBy letter dated September 13, 1976, Texas Gas advised the Chief, Southern Region, that\nthe approximate cost to upgrade the subject pipeline facilities affected by the rural church change\nof class locations was estimated to be $903,000. 33/ In contrast, Texas Gas indicated that the\nestimated value of the three churches in question was approximately $90,000. Texas argued that\nthe significant difference in the cost to upgrade the pipeline facilities and the estimated value of\nthe churches did not warrant the assessment of a civil penalty under the circumstances.\n26/ _\n49 CFR 192.609 Confirmation or revision due to changes in class location that occur on\nor after July 1, 1973, must be completed within 18 months of the change in class location.\n49 CFR 192.611(e)(2).\n27/ 49 CFR 192.3, Definitions.\n28/ 49 CFR 192.611(a).\n29/ Id. In Class 2 locations, the hoop stress will not exceed 72 percent of SMYS; in Class 3\nlocations, 60 percent of SMYS and, in Class 4 locations, 50 percent of SMYS.\n30/ CPF 2309.\nAccording to James Thomas, Chief, Southern Region, Office of Operations and\nEnforcement, Kentucky is the only state where pipeline safety inspections are conducted\nby an entity (Kentucky Public Service Commission) other than the Regional office.\n31/ By letter, dated December 3, 1976, 34/ Texas Gas requested an extension of time to\nDecember 23, 1976 to respond to the above alleged violation of the MAOP requirements. In a\nsubsequent letter dated December 21, 1976, 35/ Texas Gas advised Cesar DeLeon, Acting\nDirector, Office of Pipeline Safety Operations (OPSO), 36/ Materials Transportation Bureau\n(MTB), Department of Transportation (DOT) that while not conceding that it was in violation of\nthe MAOP provision, it intended to seek a waiver 37/ of compliance of the MAOP requirements\ndue to economic hardship. Texas further indicated that pending a determination it would\nundertake certain safety measurers. 38/ In the event that the waiver was denied and Texas Gas\nwas found to be in violation of the MAOP requirement, Texas Gas requested the authority to\ndal\\192.1-a\\5\\81-01-13\n5\n\n<<<PAGE 6>>>\n\ncontinue to operate the pipeline facilities in the vicinity of the rural churches until \"such time as\nthe pipeline facilities can be upgraded to meet DOT's regulations.\" On January 14, 1977, Texas\nGas requested a waiver of compliance.\n_\n32/ 1976.\n33/ Letter, James C. Thomas, Southern Region, Notice of Probable Violation, Nov. 5,\n34/ 35/ 36/ 37/ Attachment, \"Summary of Data Pertaining to Class 1 Areas at Mileposts 436.5, 511.7,\n526.5 and 608.1., \"letter, W.T. Turner, Jr., Texas Gas, Sept. 13, 1976. CPF 2309.\nLetter, Exhibit W.T. Turner, Jr., Vice President, Engineering Texas Gas Transmission\nCorp., Dec. 3, 1976, CPF 2309.\nLetter, Exhibit 3, W.T. Turner, Jr., Texas Gas, Dec. 21, 1976, CPF 2309.\nSafety enforcement responsibilities of OPSO were later assumed by the Office of\nOperations and Enforcement of the Materials Transportation Bureau. See later, Robert L.\nPaullin, Associate Director, Operations and Enforcement, Materials Transportation, Jan.\n9, 1979, CPF 2309.\n49 U.S.C. 1672, Amended by P.L. 96-129, Nov. 30, 1979. 49 CFR 5.11.\nApart from its request for a waiver of compliance, Texas Gas contended that based on its\ninterpretation of the Federal regulations, it was not in violation of the class location provision, and\ntherefore, could not be in violation of the MAOP requirements. 39/ Texas Gas indicated that\nsince the adoption of DOT's regulations, 40/ it had consistently classified the pipelines in the rural\nchurch areas as Class 1 locations based primarily on the frequency of use. In support of its\nposition, Texas Gas referred to a November 1976 Advisory Bulletin 41/ interpretation on the class\nlocation provision in which OPSO discussed frequency of use as a factor to consider in the\nclassification of class locations. 42/ Based on this interpretation, Texas argued that OPSO had\nerroneously classified pipelines situated in the vicinity of a rural church as Class 3 locations.\nFurther, Texas Gas contended that the intent of having Class 3 location was \"obviously to cover\ndal\\192.1-a\\5\\81-01-13\n6\n\n<<<PAGE 7>>>\n\nspecified areas such as playgrounds, drive-in theaters, recreational areas, and others, such as\nschools whose normal use approached nine months of a year.\" Texas Gas argued that such intent\nis misapplied when considered with respect to \"isolated churches and other areas where use is not\nnormal in the context\" 44/ of the above examples. Finally, Texas argued the following:\nThe \"original intent of class locations was to provide safety measurers in areas\nwhere numbers of people (residential or commercial) would be exposed to a\npotentially hazardous environment if for some reason due to increased activity the\nfacility might be damaged.\" 45/\n_\n38/ These safety measures included the following:\n1. church.\nPlace standard pipeline markers over each pipeline along the pipeline route,\nat intervals of 100 feet for a distance of 300 feet in each direction away from each\n2. Perform semiannual electrical surveys, to further assure an adequate level\nof cathodic protection at these locations.\n3. Provide church officials with the same information packet\npertaining to pipeline operations and emergencies that is provided to all adjacent\nright-of-way landowners, in accordance with our emergency procedures.\nOn April 21, 1978, almost two years after the on-site inspection of the Texas Gas pipeline\nfacilities occurred, the Acting Director of the Office of Pipeline Safety Operations, Mr. Cesar\nDeLeon, issued a recommendations indicating that a review of the circumstances and factors\nsurrounding the alleged violations by Texas Gas warranted the pursuit and collection of a civil\npenalty. 46/ The record did not contain a recommended penalty assessment and no further action\nwas taken. About eight months later, however, on December 26, 1978, the Association Director\nfor Operations and Enforcement, Mr. Robert L. Paullin, issued a contradictory recommendation\nbased on a review of what appeared to be the exact criteria previously considered by Mr. DeLeon.\n47/ Mr. Paullin's recommendation indicated that the effort required to pursue a civil penalty\nassessment and its collection was not warranted. The record indicates that the case was closed.\nAlmost four years have elapsed since Texas Gas applied for a waiver of compliance of the\nMAOP requirements. To date action on the waiver remains pending and, whether a determination\nwill be and prior to the end of this year remains unknown. 48/\ndal\\192.1-a\\5\\81-01-13\n7\n\n<<<PAGE 8>>>\n\nOn January 24, 1979, the issue of rural church-Class-3-locations was revived in the form\nof a petition for rulemaking submitted by James C. Thomas, Chief, Southern Region. 49/ In his\npetition, Mr. Thomas recommended that the MAOP provision in the Federal regulation be\namended to permit pipeline determined as Class 3 location under Section 192.5(d)(2) of the\nFederal regulations to operate at a higher MAOP than presently allowed under the regulations.\n50/ Receipt of the petition was acknowledged on February 1, 1979. 51/ To date, however, no\nfurther action has been taken. Finally, on May 11, 1979,\n_\n38/ Continued\n4. 5. 6. Conduct flame ionization leak surveys over each pipeline in the area of the three\nchurches at six-month intervals.\nSpecifically instruct the pilots conducting weekly aerial surveys to make particular\nnotes of any unusual activity in the vicinity of these three churches.\nInstall and maintain a fence to separate the property of each church from the\npipeline right-of-way upon obtaining the permission of the landowner. Supra, note 5.\nMr. Thomas again raised the issue of rural church class 3 locations when he expressed his\nreluctance to preliminarily assess another operator, Columbia Gulf, for violation of MAOP\nrequirements for the following reasons:\n1. The economic impact is too great to rely on the enforceability of an interpretation\nof Section 192.5(d)(2)(ii), as it relates to normal usage of rural churches;\n2. The previous compliance file for Texas Gas Transmission Corporation, was\nabruptly closed and the waiver not acted upon; and,\n3. The Associate Director's, Office of Operations and Enforcement, failure to act on\nMr. Thomas' petition for rulemaking. 52/\nBased on these reasons, Mr. Thomas requested a resolution of the rural church Class\nlocation issue prior to proceeding further in cases of this nature. 53/\n_\ndal\\192.1-a\\5\\81-01-13\n8\n\n<<<PAGE 9>>>\n\n39/ 41/ 42/ Attachment, Exhibit 5, \"Position of Texas Gas Transmission Corporation regarding the\nClassification of its Pipeline facilities located in the vicinity of Three Rural churches.\",\nCPF 2309.\n40/ 49 CFR, Part 192 became effective on Nov. 12, 1970, 35 F.R.\n13257, Aug. 19, 1970.\nOffice of Pipeline Safety, Advisory Bulletin, No. 76-11, Nov. 1976.\nA review of the November, 1976, Advisory Bulletin (No. 76-11) interpretation of 49 CFR\n192.5 revealed the following:\n\"The purpose of this Class location definition is to require higher standards of\nsafety for pipeline near buildings or small outside areas where 20 or more persons\ncongregate at regular intervals. However, the example of outside areas which are\ncovered by the definition, i.e. playground, recreation area, outdoor theater,\nindicate that the definition is intended to apply to places where 20 or more persons\nassemble more frequently than one week annually.\n43/ Supra, Note 39.\n44/ Id.\n45/ Id.\nForm, \"CPF Review for Civil Penalty Assessment Potential\", Cesar DeLeon, Acting\nDirector, Office of Pipeline Safety Operations, April 21, 1978, CPF 2309.\nForm \"CPF Review For Civil Penalty Assessment Potential,\" signed by Frank E. Fulton\nfor Robert L. Paullin, Associate Director for Operations and Enforcement, Dec. 26, 1978,\nCPF 2309.\nAccording to Robert Langley, Office of Pipeline Safety Regulations, the waiver has been\n\"put on the back burner and if my boss gets after me about it, I might get it out by the end\nof this month\". Mr. Langley also stated that the waiver would probably be issued based\non the interpretation of 49 CFR 192.5 included in the November 1976 Advisory Bulletin,\nNo. 76-11.\nMemo, \"Petition for Rulemaking\", James C. Thomas, Chief, Southern Region, Office of\nOperations and Enforcement, Jan. 24, 1979, CPF 2309.\nSection 192.611(a) would be amended as follows with amended sections underlined:\n46/ 47/ 48/ 49/ 50/ dal\\192.1-a\\5\\81-01-13\n9\n\n<<<PAGE 10>>>\n\n51/ If the segment involved has been previously tested in place to at least 90 percent of\nits SMYS for a period of not less than 8 hours, the maximum allowable operating\npressure must be confirmed or reduced so that the corresponding hoop stress will\nnot exceed 72 percent of SMYS of the pipe in class 2 locations and class 3\nlocations determined under Section 192.5 (d)(2), 60 percent of SMYS in all other\nclass 3 locations, or 50 percent of SMYS in class 4 locations. Id.\nLetter, A. Louise Mills, Chief, Dockets Branch, Information Services Division, Office of\nProgram Support, Materials Transportation Bureau, Research and Special Programs\nAdministration, Department of Transportation, Feb.1, 1979.\n52/ Supra, Note 10.\n53/ In a telephone conversation on Nov. 24, 1980, Mr. Thomas, Chief, Southern Region,\ninformed me that his office had stopped inspections for class location violations with\nrespect to rural areas until Section 192.611 and 192.5 issues are resolved.\nIII. DISCUSSION\nA. Historical Development of Class Locations\nOn March 24, 1970, the Office of Pipeline Safety, (OPS) issued a proposed rulemaking\nnotice to establish class location definitions. 54/ According to the notice, a 10-mile population\ndensity index used to determine class locations was established at a time when class locations had\nto be considered only during initial construction. The proposed requirements eliminated the need\nfor a 10-mile density index by making class locations relate directly to the population density.\nThe proposed rulemaking also changed the zone factor used to determine population\ndensity. Prior to the change, population density was taken in a 1/2 mile wide zone, extending 1/4-\nmile on either side of the pipeline. A subsequent study, however, revealed that a 1/4-mile wide\nzone extending 1/8-mile on either side of the pipeline would appear to be equally appropriate to\ndetermine environmental impact. The notice indicated that it would be unusual for a population\nchange occurring more than 1/8-mile away to have an impact on the pipeline. Further, the notice\nobserved that an accident on the pipeline would rarely have an effect on people or buildings that\nwere more than 1/8-mile away. As a result of this observation, the notice proposed a reduction of\nthe population density zone from 1/2-mile to 1/4-mile and noted that such could occur without\nany adverse effect on safety. Today, the population density zone remains at 1/4-mile. 55/\nIn addition to the width of the population density zone, a defined length of the pipeline\nwas necessary to determine which class location definition would apply at a particular point on the\npipeline. The 1970 notice proposed the use of the \"sliding mile\". This sliding mile would be\ndal\\192.1-a\\5\\81-01-13\n10\n\n<<<PAGE 11>>>\n\nmoved along the pipeline overlying the continuous 1/4-mile wide zone. The number of buildings\nwithin the sliding mile at any point during the movement would determine the class location for\nthe section of pipeline within that sliding mile. An overlap of class locations would require that\nthe affected pipeline be designated the higher numbered class location i.e. a pipeline designate\nboth Class 3 and Class 2 would be classified as a Class 3 location.\n_\n54/ 55/ 49 CFR 192.5.\n35 Fed. Reg. 5012, Mar. 24, 1970, Dkt. No. OPS-3D.\nAccording to the notice, Class 3 locations would include a point in the pipeline that would\nnormally fall within a Class 1 or Class 2 location on a density basis if such point was situated\nwithin 300 feet of a building that during normal use would be occupied to pipeline located within\n300 feet of a well defined outside area meeting the same criteria. 56/\nIn response to the proposed rulemaking notice, forty-one comments on the subject of class\nlocation definitions were filed with OPS between April 9, 1970 and May 15, 1970. Prevalent\namong the various concerns noted in the comments was the amount of time allowed for the\naffected operators to comply with the new class location requirements. Almost all the operators\nwho commented believed that they would be unable to meet the proposed date of compliance.\nFinally on August 11, 1970, DOT issued standards which established new definitions for\nclass locations. 57/ A study of all pipelines operating at more than 40 percent of SMYS was\nrequired to ascertain their class location and to confirm or revise the MAOP. 58/ The fact that\nthe change of class location requirements were not included in the interim Federal requirements in\na number of states and the disagreement within the pipeline industry as to the actual meaning of\nthe change of class location requirements raised questions as to the practicality of the schedule for\nadjusting operating pressures once the class location study was completed. Consequently, a\nhearing was held on May 21, 1971 59/ to give interested parties an opportunity to recommend\nadjustments to the time period designated to complete confirmation or revision of operating\npressures. As a result of the recommendations and observations presented by affected operators\nat the hearing the compliance period for the confirmation or revision of MAOP due to changes in\nclass location was adjusted and remains as outlined in Section 192.611(e).\nIn addition to the question of the compliance period, operators at the hearing also\npresented arguments concerning the problems arising in connection with compliance of Section\n192.607. Several operators raised economical issues in connection with the enforcement of class\ndal\\192.1-a\\5\\81-01-13\n11\n\n<<<PAGE 12>>>\n\nlocation requirements. For instance, one operator, Southern Natural Gas Company, estimated\nthat its cost of replacement and testing of affected\n_\n56/ Supra, Note 15. The definitions remain unchanged.\n57/ Id.\n58/ 49 CFR 192.607.\npipeline would be about $15 million. 60/ Interestingly, many of the operators who criticized the\ngreat costs of compliance with Federal regulations had expended large sums of money and had\ninitiated compliance action prior to the implementation of the new class location requirements.\n61/ Nonetheless, maintaining a balance between the financial burden imposed upon the operator\nto comply and the assurance of safety to the public became a dominant theme throughout the\nhearings.\nB. Interpretation of \"Normal Use\"\nPrior to the 1970 proposed rulemaking hearings one commentor [sic] concerned with the\nenforcement of class 3 location requirements mentioned the interpretive issues arising from the\nterm \"normal use\" found in the definition of class 3 locations. 62/ A review of the docket file,\nhowever, revealed that this question was not addressed by OPS at that time. This issue, was\nagain raised at the 1971 hearing when Texas Gas questioned the applicability of the Class 3\nlocation requirements to areas with rural churches, fairgrounds or camps. Texas Gas indicated\nthat its class location study revealed eighteen such areas of which about 1/2 included dwellings or\nareas of limited use. Therefore, Texas Gas recommended at the hearing proceedings that OPS\nreview its class location regulation in connection with their application to areas of limited use. It\nspecifically recommended that Section 192.5(d)(2) be revised to eliminate from Class 3 locations\nthe multiple occupancy buildings and those areas where normal usage is seasonal or infrequent.\n63/ The subject was not raised by any other operator present at the hearing nor does the record\nindicate that a response to the Texas Gas recommendation was made by Mr. Frank Fulton. 64/\nThe \"normal use\" interpretation issue remained dormant for about five years until August\n5, 1976 when James C. Thomas, Chief, Southern Region, requested a legal interpretation of\nSection 192.5(d)(2) with respect to the \"normal use\" of a fairground used annually for a six-day\nperiod. 65/ The OPS' response to the August 5 inquiry was combined with a response to a\nsubsequent request submitted by Thomas on August 16, 1976. 66/ In his second request,\nThomas inquired whether a rural church\n_\ndal\\192.1-a\\5\\81-01-13\n12\n\n<<<PAGE 13>>>\n\n59/ 60/ Id.\nTranscript of Proceedings on Class Locations, May 12, 1971, Dkt. No. OPS-3D.\n61/ Supra, note 59 at 72.\nlocated 122 feet from an interstate transmission line which half services twice a week with\nattendance of less than twenty and had an annual revival with an occasional attendance of 40-45\npersons would be classified a Class 3 location under Section 192.5(d)(2).\nA search of the interpretation file for Section 192.5 67/ revealed an informal handwritten\nresponse to the August 16, 1976 request written by Mr. DeLeon on a blue route slip attached to\nThomas' memorandum. The response stated:\n\"I do not think this is a Class 3 location because an annual revival is not the normal\nuse of a Church. The normal use of a church is weekly church services.\"\nA formal response to the August 5, and August 16, requests followed on September 14,\n1976. 68/ Mr. DeLeon expressly indicated that the definition of Class 3 locations under Section\n192.5(d)(2) \"is intended to apply to places where 20 or more persons assemble more frequently\nthan one week annually.\" Further, he explained his response by stating that \"the risk involved\nwhere an assembly of 20 or more persons meet annually for a short period would be much lower\nthan where an assembly occurs more often, and thus does not necessitate application of the high\nclass 3 safety standards.\"\nOn September 27, 1976, Mr. Thomas submitted another memorandum. 69/ His inquiry\nconcerned the New Clover Creek Baptist Church, a rural church, \"occupied by 20 or more\npersons during normal use.\" Mr. Thomas asked whether the 100 yard distance criteria referenced\nin Section 192.5(d)(2) would be met if most of the church area lay outside of the 100 yard\ncorridor. A handwritten response by Mr. DeLeon expressed the following:\n\"Damn! This is really cutting hairs. I think if any part of a church is within\ncorridor, it would be subject to the regulation.\" 70/\n62/ 63/ 64/ dal\\192.1-a\\5\\81-01-13\n_\nLetter, R.A. Ranson Company Inc., May 8, 1970, Dkt. No. DPS- Supra, Note 59 at 99.\nSupra, note 59, Frank Fulton presided over the hearing.\n3D.\n13\n\n<<<PAGE 14>>>\n\nSouthern Region,\n65/ Memo, \"Interpretation of 192.5(d)(2)\", J.C. Thomas, Chief, OPSO, Aug. 5, 1976.\n66/ Memo, \"Interpretation of Section 192.5(d)(2)\", J.C. Thomas, Chief, Southern Region,\nOPSO, Aug. 16, 1976.\nMr. DeLeon formally responded on October 14, 1976 informing\nMr. Thomas that the church involved is in a Class 3 location. 71/ Further, he explained that the\nfact that a large portion of the building is located more than 100 yards from the pipeline is not a\nrelevant factor to consider in determining the application of Section 192.5(d)(2).\nBy letter dated February 25, 1977, Williams Brothers Engineering Company requested an\ninterpretation of \"normal use\" as used in Section 192.5(d)(2). 72/ In an April 6, 1977 telephone\ninterim repose, Mr. DeLeon informed Williams Brothers that normal use should be interpreted to\nbe \"based on the frequency of use of playgrounds, outdoor theaters and recreation area.\" 73/\nThe record of the telephone response indicates that Mr. DeLeon referred to an interpretation of\nSection 192.5 published in the November 1976 Advisory Bulletin. 74/ In the Bulletin, Mr.\nDeLeon explained that a Class 3 location \"is intended to apply to places where 20 or more\npersons assemble more frequently than one week annually.\" 75/ Further, Mr. DeLeon stated that\na cemetery had been interpreted not to require a Class 3 location while a church would require a\nClass 3 location.\"\n67/ 68/ _\nAfter being referred to several offices where pipeline docket files should be found, I\ndiscovered that the interpretation file to Section 192.5 was located in the Office of\nPipeline Safety Regulations. Room 8101.\nMemo, \"Interpretation of 192.5(d)(2), \"Cesar DeLeon, Acting Director, OPSO, Sept. 14,\n1976.\n69/ Memo, \"Interpretation of 192.6(d)(2)(i),\" C. DeLeon, OPSO, Oct. 14, 1976.\n70/ Id.\nMemo, \"Interpretation of 192.5(d)(2)(i),\" C. DeLeon, OPSO,\nOct. 14, 1976.\nLetter, Jim Barton, Williams Brothers Engineering Company, Feb. 25, 1977.\nRecord of Telephone Call, from C. DeLeon to Jim Barton, Williams Brothers Engineering\nCompany, Apr. 6, 1977, Interpretation File for Section 192.5.\ndal\\192.1-a\\5\\81-01-13\n71/ 72/ 73/ 14\n\n<<<PAGE 15>>>\n\nTwo months later in his formal response to the February, 1977 inquiry from Williams\nBrothers, Mr. DeLeon defined normal use as the \"activity that is ordinarily engaged in on the\npremises\" and explained that frequency of normal use would be a factor to be considered in\ndetermining whether the use of a building or outside area created a risk which is \"similar enough\nto the risk to the areas mentioned in Section 192.5(d)(2)(ii) to warrant application of Class 3\nstandards.\" 76/\nC. Enforcement of Class Location Requirements\nMr. Thomas attributes his reluctance to preliminarily assess an operator for violation of\nMAOP requirements to his belief that the economic impact to the affected operator is too great to\nrely on the enforceability of an interpretation of Class 3 locations as it relates to the normal use of\nrural churches. A review of the numerous memoranda submitted by Mr. Thomas with respect to\nthe \"normal use\" of rural churches, fails to substantiate such a belief as a reasonable basis to\nrefuse enforcement of the MAOP regulations. First, the affected operator, Columbia Gulf, 76/\nhas not submitted any information in support of Mr. Thomas' allegations that enforcement of the\nMAOP requirements would result in an economic hardship. Second, the record indicates that\nonly one operator, Texas Gas Transmission Corp., has raised such an argument by comparing the\ncost of upgrading the affected pipeline facilities with the estimated value of the rural churches\nsituated within the Class 3 location. 77/ Third, in neither case were other compliance alternatives\ndiscussed. For instance, the economical implications of decreasing the MAOP to satisfy federal\nrequirements were not mentioned. Finally, although the waiver of compliance filed by Texas Gas\nhas not been acted upon by the Office of Pipeline Safety Regulation, such an alternative is still\navailable to these operators who believe that compliance would be economically unfeasible to\ntheir operation. Consequently, economic issues, should not deter a regional chief from enforcing\na regulation.\n74/ _\nIn the record of his phone conversation, Mr. DeLeon cited the November 1977 Advisory\nBulletin. This bulletin, however, did not include an interpretation of 192.5. The\napplicable interpretation is found in the November 1976 Advisory bulletin. The Bulletin is\npublished monthly by the Office of Pipeline Safety Operations.\nOPSO, Advisory Bulletin, Nov. 1976.\nLetter, to Leo R. Kenyon, Williams Brothers Engineering DeLeon, Acting Director, OPSO, July 5,\nCompany, from Cesar\ndal\\192.1-a\\5\\81-01-13\n75/ 76/ 15\n\n<<<PAGE 16>>>\n\n1977.\nHowever unclear they may be, Mr. Thomas should enforce the MAOP requirements based\non the present interpretation of normal use. Once enforcement occurs, operators adversely\naffected by the regional assessments have several administrative avenues under the regulations\nwhich they may take to contest such regional determinations. For instance, an operator may\npetition for reconsideration of a Final Order. 78/ In civil penalty cases, statutory criteria which\nare considered in assessing civil penalties are available. 79/ In compliance order cases, a\ncompromise may be negotiated between the OOE and the respondent of a consent order. 80/ In\naddition, the operator may file for a waiver of compliance. Consequently, notwithstanding the\nambiguity in the present interpretation of normal use and until such ambiguity is clarified, Mr.\nThomas must enforce the regulations and permit the operator to contest any unfavorable\ndetermination. Perhaps such reaction by the operator would provide an incentive to the OPSO to\nfocus some attention on Mr. Thomas' request.\n_\n76/ Supra, Note 10.\n77/ Supra, Note 33.\n78/ 49 CFR 190.215.\n79/ 49 CFR 190.225.\n80/ 49 CFR 190.219.\ndal\\192.1-a\\5\\81-01-13\n16\n\n<<<PAGE 17>>>\n\nIV. Recommendations\nAs indicated by a recent case 81/, Class 3 location requirements with respect to rural\nchurches are enforceable despite the alleged ambiguity of the regulatory terms or the alleged\nadverse economic consequences which may result from their enforcement. To facilitate such\nenforcement and to clarify the terms of the regulations the following recommendations are made.\nA. MAOP Requirements.\nWith respect to Mr. Thomas' request that MAOP requirements for rural church Class 3\nlocations be amended to permit operation of the affected pipes at a higher MAOP than permitted\nunder the present regulations, it is recommended that the OPSO issue a statement clarifying the\nintent of such requirement. Mr. Thomas, however, merely desires and needs a clarification of the\napplicability of the MAOP requirements to the normal use of rural churches. Once he obtains this\nguidance and formulates an understanding of the regulatory intent, he can reinstate his\nenforcement proceedings. Further, such clarification will promote and maintain a uniform\nenforcement program. If the presently required MAOP requirements with respect to rural\nchurches do not enhance the public safety objectives set forth by DOT, a determination reflecting\nthis conclusion must be made and the regulation amended to indicate the Department's intent.\nB. \"Normal Use\".\nA clarification of the 1976 interpretation of \"normal use\" issued by Mr. DeLeon is\nnecessary. The interchangeable use of such terms as \"regular intervals\", \"frequency of use\" or the\n\"activity\" conducted in the area to define \"normal use\", is confusing to the person in the field. As\npresently defined, the inspector cannot determine whether normal use of an area used by 20 or\nmore persons is determined by the number of times the persons congregate there or by the activity\nconducted on the premises. The only clear explanation given by Mr. DeLeon is that \"normal use\"\ndoes not apply to an area that is used for no more than one week annually. This implies that any\narea used by 20 or more persons for more than one week annually is considered to be under\n\"normal use\" and therefore, subject to the \"Class 3 location requirements. If this is the intent of\nthe MTB, a written interpretation stating such intent must be issued. If\n81/ _\nRecently, the Chief, Central Region assessed Texas Eastern Transmission Corporation a\n$15,000 civil penalty.\ndal\\192.1-a\\5\\81-01-13\n17\n\n<<<PAGE 18>>>\n\nboth frequency of use and the activity conducted in the affected area determine normal use then\nan interpretation reflecting such intent must be written.\nThe record was silent as to the method used to determine the interpretation of \"normal\nuse\". Consequently, if not yet considered, it is recommended that a committee composed of\nindividuals knowledgeable in the field review and establish the regulatory intent of \"normal use\".\nAlthough the Class 3 location requirement can be enforced as presently interpreted, a clarification\nof the term \"normal use' will expedite enforcement and hopefully eliminate future interpretation\nissues.\nC. Waiver.\nThe most important recommendation with respect to the waiver is to prescribe procedural\nguidelines which establish a definite time period within which a waiver determination must be\nissued. This will preclude the Office of Pipeline Safety Regulation (OPSR) from permitting a\nwaiver request to sit \"on the back burner\" for years, as is now the case with the Texas Gas waiver\nrequest.\nFurther, evaluation criteria to be reviewed by the OPSR prior to issuing the determination\nfor a waiver must be established. For instance, the OPSR could base its waiver determination on\nthe following factors:\n2. 1. Operating and maintenance history of the affected operator.\nEvaluation of the present operating pressures and the effects of reducing\nsuch pressures, i.e. curtailment of consumer services or economical\nhardship imposed on the operator, etc.\n3. 4. 5. Age of the underground structures.\nType of materials used in the affected pipe.\nLife expectancy of the pipe line affected by the rural church Class 3\nlocation.\n6. Characteristics and properties of the soil which may affect the rate of pipe\ncorrosion thereby affecting the possibility of leakage, etc.\n7. Amount of vehicular traffic which imposes special strains on pipe materials.\nThe waiver provision offers the Department an opportunity to maintain a flexible\nenforcement program by permitting it to consider various factors which could have an affect on\nthe public safety theme prevalent th","truncated":true,"body_characters":40972}