{"operation":"document","citation":"PI-95-028","title":"Sioux Falls Fire Department — Pipeline Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1995-07-24","effective_on":null,"summary":"PI-95-028 response to Sioux Falls Fire Department concerning 194.3, 195.1, 195.402.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-95-028.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-95-028.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-95-028","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Pipeline/1995/PI95028.pdf","body":"<<<PAGE 1>>>\n\nSR-95-067\nU.S. Department 400 Seventh Street, SW\nof Transportation Washington, DC 20590\nResearch and\nSpecial Programs\nAdministration\nMr. David A. Renli\nInspector\nSioux Falls Fire Department\n2820 S. Minnesota Avenue\nSioux Falls, S.D. 57105\nDear Mr. Renli:\nYour letter raises several questions relevant to the authority of the Sioux Falls Fire Department to\naddress the safety of hazardous liquid pipeline terminals in Sioux Falls. The terminals you have\nspecifically identified are the Amoco Terminal and the Williams Pipeline Terminal. The terminals you\ndescribe consist of breakout tanks, terminal storage tanks, their related piping, and truck loading racks\nconnected to terminal tanks by separate piping.\nSince your letter, Congress codified the pipeline safety statutes at 49 U.S.C. Chap. 601. replaces all preexisting pipeline safety authority, but made no substantive change to the law. statutory authority has been substituted in your questions.\nThis codification\nThe new\nQuestions:\n1. In the systems noted above where does 49 U.S.C. Chap. 601 stop?\nPipeline transportation is complete when the hazardous liquid is delivered to a terminal storage\ntank, or to a breakout tank to the extent subsequent transportation is by another mode. The piping within\nthe terminal used exclusively to transfer product from a storage or breakout tank to a truck loading rack\nand the truck loading rack itself are not part of pipeline facilities subject to regulation under 49 U.S.C.\nChap. 601. In such a situation, pipeline safety jurisdiction stops at the outlet of the tank.\nWe recognize that the Research and Special Programs Administration’ s (RSPA) position on\njurisdiction in terminal areas could be subject to varying interpretation. In a 1990 letter, Philip Sharp,\nthen Chairman of the Subcommittee on Energy and Power of the House Committee on Energy and\nCommerce, posed a series of questions to RSPA concerning our view of jurisdiction under the pipeline\nsafety laws and regulations. One series of questions was grouped under the title “Above Ground Storage\nTanks.” The RSPA response, indicating that “ all parts of a tank farm” are considered to be pipeline\nfacilities, must be read in context. Neither the questions nor the responses in the group of questions\nmentioned truck loading racks. The facilities being discussed were the terminals and the tanks and related\npiping in the terminals, with the emphasis on the distinction between breakout and terminal tanks.\n95-07-24.doc 194.3, 195.1, 195.402\n\n<<<PAGE 2>>>\n\nSR-95-067\n2\nWhat role does a local jurisdiction play in community safety as it pertains to pipeline\n2. terminals?\nLocal officials have a clear role in emergency response that is encouraged by the pipeline safety\nstandards. The pipeline safety standards require that pipeline operators establish and maintain liaison with\nlocal emergency response personnel. 49 C.F.R. §195.402(c)(12). In addition, pipeline operators must\nhave procedures for notifying local officials of pipeline emergencies and for coordinating with them\npreplanned and actual responses to those emergencies. 49 C.F.R. §195.402(e)(7). Local officials may\nalso participate in local response planning required of pipeline operators by regulations adopted under the\nOil Pollution Act of 1990.\nIn addition, although there is no role clearly provided for local jurisdictions, nothing in Part 601\nprohibits them from being involved in matters outside the scope of 49 U.S.C. Chap. 601. not only regulation of non-pipeline facilities, but also issues surrounding the siting of pipelines. These include\nThe\nlocation or routing of hazardous liquid pipeline facilities is expressly outside the scope of Chap. 601. 49\nU.S.C. §60104(e). There may be other law, such as State law, that limits local involvement.\n3. tanks and piping?\nDoes 49 U.S.C. Chap. 601 prohibit local regulation enforcement on new installation of\nTo the extent a local jurisdiction attempts to impose safety standards on the design and\nconstruction of new interstate pipeline facilities, 49 U.S.C. §60104(c) provides:\nA State authority may not adopt or continue in force safety standards\nfor interstate pipeline facilities or interstate pipeline transportation.\nIt has always been clear that this language means that state and local officials may not impose\nsafety standards on interstate pipeline facilities when there is an applicable pipeline safety regulation.\nPipeline safety standards address the design, construction, hydrostatic testing, and operation and\nmaintenance of pipeline facilities, as well as drug and alcohol testing of individuals who perform certain\nsafety-related activities on those facilities.\nThe United States Court of Appeals for the Eighth Circuit has issued an opinion on the\npreemptive effect of 49 U.S.C. §60104(c) that has gone somewhat farther. Kinley v. Iowa Utilities\nBoard, 999 F.2d 354 (8th Cir. 1993). (Sioux Falls is located within the jurisdiction of this Court.) In\nKinley, the interstate pipeline at issue operated at less than 20% SMYS and was therefore excepted from\nthe Federal pipeline standards. The State regulatory agency argued that the State could fill in the gap of\nFederal regulation. The Court held that state and local authorities could not impose safety standards\napplicable to interstate pipeline facilities even in the absence of an applicable Federal pipeline safety\nstandards.\nHowever, as noted above, because 49 U.S.C. Chap. 601 expressly excludes from coverage in\npipeline safety standards the location or routing of pipeline facilities, the location of new pipeline facilities\nmay be subject to state or local regulation. Furthermore, state or local regulation of facilities that are not\npipeline facilities is not prohibited by 49 U.S.C. §60104(c).\n95-07-24.doc 194.3, 195.1, 195.402\n\n<<<PAGE 3>>>\n\nSR-95-067\n3\n4. Most of the tanks at these facilities serve as both breakout tanks and distribution tanks.\nDoes this factor change the character of use defined by 49 U.S.C. Chap. 601?\nIf a tank is used as a breakout tank at any time, it is classified as a breakout tank for purposes of\nthe Federal pipeline safety standards regardless of its use as a distribution tank at other times.\n5. As mentioned in a document to Senator Sharp, Committee on Energy and Power from the\nRSPA, March 12, 1990, the Pickett Road Terminal in Fairfax, Virginia is with the exception of one tank\nowned at that time by Colonial, not regulated by 49 U.S.C. Chap. 601 because it “ does not pose an\nundue hazard to the public” . Does this statement advocate jurisdictional controls to the local authority?\nNo. The statement indicates the rationale for RSPA’ s decision not to extend pipeline safety\nstandards to terminal tanks that were not used as breakout tanks. When that decision was made in 1981,\nenvironmental protection was not explicitly part of the pipeline safety mission. A 1992 change in the\npipeline safety laws added environmental protection to our mission. RSPA is reevaluating our role in\naddressing terminal tank issues as we more closely consider this aspect of our mission.\n6. Are plans and specifications reviewed and field inspections done on all major projects by\nofficers of the DOT Office of Pipeline Safety to ensure compliance with requirements of 49 U.S.C. Chap.\n601 at these facilities in Sioux Falls?\nRSPA’ s Office of Pipeline Safety regional staff regularly conducts field and record inspections of\npipeline facilities. Our last inspection of the Williams terminal in Sioux Falls was conducted on August\n25-26, 1994. Because the Amoco terminal in Sioux Falls does not include breakout tankage, we do not\ninspect the terminal. We do not routinely review plans and specifications for new facilities, nor are field\ninspections done on all major projects.\n7. Since we do not understand completely which lines are or are not regulated, and\nunderstand that a portion of the Nation’ s pipelines fall into something called the 20 % SMYS exemption,\ncould you tell us definitively if the pipelines coming into Sioux Falls are regulated and where these\nregulations begin and end for each terminal.\nThe “ 20 % SMYS exemption” refers to an exception from regulation of certain pipelines that\noperate at a stress level of 20 % or less of the specified minimum yield strength of the pipe. The\nexception is found at 49 C.F.R. §195.1(3). However, the 20 % SMYS exception is being revisited by\nRSPA. By a final rule published July 12, 1994, the exception was lifted from pipeline segments that carry\nhighly volatile liquids, are located in populated areas, or traverse navigable water. 59 Fed. Reg. 35465.\nRSPA also intends to reexamine the exception for pipelines in environmentally sensitive areas.\nThe 20 % exception is not applicable to a terminal if the pipeline system of which the terminal is a\npart is operated at higher stress levels.\nBecause of these limitations, the 20 % SMYS exception does not apply either to the pipelines\ncoming into Sioux Falls or to the Amoco and Williams terminals in Sioux Falls.\n95-07-24.doc 194.3, 195.1, 195.402\n\n<<<PAGE 4>>>\n\nSR-95-067\n4\nIf these pipelines fall into this exemption does this mean that these systems go unregulated\n8. by Federal programs?\nPipelines which meet the exception would not be subject to RSPA’ s pipeline safety standards.\nHowever, pipeline terminals are subject to oil spill response planning regulations required by the Oil\nPollution Act of 1990 (which amended the Federal Water Pollution Control Act). 33 U.S.C. §1321(j).\nRSPA regulations generally applicable to those parts of the facilities that we regulate under 49 C.F.R.\nPart 195 are found at 49 C.F.R. Chap. 194; Environmental Protection Agency regulations applicable to\nthe remainder of the terminal are found at 40 C.F.R. Chap. 112.\nOther Federal regulations and laws may also apply. These include the prohibitions against oil\nspills into navigable water (the Federal Water Pollution Control Act, enforced by EPA), Occupational\nSafety and Health Administration regulations protecting employees, and cargo loading regulations issued\nunder hazardous materials laws (49 U.S.C. Chap. 51; 49 C.F.R. Part 177).\n9. If the former is true, are there any regulations that preempt local intervention?\nAs noted, the “ former” (lack of any Federal regulation of the terminal facilities) is not true. If the\nquestion is narrowed to whether local safety regulation of pipeline terminals is preempted in the absence\nof applicable Federal pipeline safety regulations, the answer depends on whether the facilities are pipeline\nfacilities. If they are pipeline facilities, the Kinley case discussed in response to question 3 indicates that\nthe United States Court of Appeals for the Eighth Circuit would find preemption regardless of the\nabsence of Federal pipeline safety regulation. The Kinley case does not apply if the facilities are not\npipeline facilities.\nCesar De Leon\nDeputy Associate Administrator\nfor Pipeline Safety\n95-07-24.doc 194.3, 195.1, 195.402","truncated":false,"body_characters":10978}