[Federal Register Volume 70, Number 35 (Wednesday, February 23, 2005)]
[Rules and Regulations]
[Pages 8734-8748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3257]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 194
[Docket No. RSPA-03-16560; Amdt. No. 194-4]
RIN 2137-AC30
Pipeline Safety: Response Plans for Onshore Transportation-
Related Oil Pipelines
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: On January 5, 1993, the U.S. Department of Transportation,
Pipeline and Hazardous Materials Safety Administration, Office of
Pipeline Safety (OPS) issued an interim final rule establishing oil
spill response planning requirements for onshore oil pipelines (49 CFR
Part 194). These regulations were issued pursuant to section 1321(j)(5)
of the Federal Water Pollution Control Act (FWPCA), as amended by the
Oil Pollution Act of 1990 (OPA 90). OPS is now adopting the interim
rule as a final rule. This final rule makes minor amendments to some of
the regulations in response to the written public comments received
after issuance of the interim final rule and at a public meeting held
in 1997 in New Orleans, LA. The amendments also reflect the experience
that OPS has gained in implementing the rule; leading spill response
exercises; and, responding to actual spills and harmonizes certain OPS
requirements with related oil spill response regulations developed by
the U.S. Coast Guard. The amendments are generally technical in nature
and do not involve additional costs to pipeline operators or the
public.
DATES: This rule is effective March 25, 2005.
FOR FURTHER INFORMATION CONTACT: L.E. Herrick, (202) 366-5523, U.S
Department of Transportation, Pipeline and Hazardous Materials Safety
Administration, Room 2103, 400 Seventh Street, SW., Washington, DC
20590-0001, on the contents of this final rule, or the Dockets
Facility, http://dms.dot.gov, (202) 366-1918, U.S. Department of
Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC
20590-0001, for copies of this final rule or other information in the
docket. General information about OPS programs is on our Internet home
page at http://ops.dot.gov. For information on OPA 90, first click on
the ``Initiatives,'' then on ``OPA Initiatives.''
SUPPLEMENTARY INFORMATION:
Background
Section 1321(j)(5) of the FWPCA (33 U.S.C. 1251 et seq.), as
amended by OPA 90 (Pub. L. 101-380, 104 Stat. 484), requires an
operator of an onshore pipeline facility to prepare and submit an oil
spill response plan when, because of its location, the facility could
reasonably be expected to cause substantial harm to the environment if
it were to discharge oil into navigable waters or adjoining shorelines.
On January 5, 1993, OPS published an interim final rule (58 FR 244)
that created part 194 of Title 49 of the Code of Federal Regulations.
The interim final rule implemented the requirements of OPA 90 and
required all onshore oil pipeline operators to submit response plans
for pipelines located where they could reasonably be expected to cause
substantial harm or significant and substantial harm to the environment
by discharging oil.
Under part 194, each response plan must include a core plan that
provides an information summary (e.g., operator address; description of
response zones; contact information for designated spill response
manager), and additional detail on immediate notification procedures;
spill detection and mitigation procedures; the applicable response
organization; response activities and response resources; government
agencies that will provide support; training procedures; equipment
testing; drill types, schedules, and procedures; and plan review and
update procedures. In addition, each response plan must be consistent
with the National Contingency Plan (NCP) (40 CFR part 300) and each
applicable Area Contingency Plan (ACP).
Part 194 also requires each operator to identify and ensure, by
contract or other approved means, the resources necessary to respond,
to the maximum extent practicable, to a worst case discharge (including
a discharge resulting from fire or explosion), and to mitigate or
prevent a substantial threat of a worst case discharge.
Furthermore, the part 194 requires each operator to conduct
specialized training for its personnel, particularly those responsible
for reporting and responding to spills. Each response plan also must
address equipment testing and provide for periodic unannounced drills.
Operators must participate in any unannounced drills conducted by
Federal officials, including activation of the appropriate oil spill
removal organization and spill management team identified in the
response plan. Since 1993 OPS has led over 100 exercises.
Pipeline facilities subject to part 194 include those that
transport any of the following products: crude oil; refined petroleum
products (e.g., gasoline, diesel fuel, heating and fuel oils, kerosene,
and jet fuel); vegetable and animal oil; sludge; oil refuse; and/or oil
mixed with wastes other than dredged spoil. To date, 367 onshore
pipeline facilities have submitted response plans in compliance with
the interim final rule that established part 194.
There are two categories of onshore pipeline response plans, those
involving pipelines capable of causing ``substantial'' harm to the
environment and those capable of causing ``significant and
substantial'' harm to the environment. OPA 90 does not define
substantial harm or significant
[[Page 8735]]
and substantial harm. The OPA 90 Conference Report (H.R. Conf. Report
No. 653, 101st Cong., 2d Sess., 101, reprinted in 1990 U.S. Code Cong.
& Admin. News 779) states that nationwide criteria should be developed
to determine those facilities which could reasonably be expected to
cause ``substantial harm'' and are therefore required to submit
response plans (OPA Conference Report, p. 829). It discussed oil
storage capacity, environmentally sensitive areas, and drinking water
supplies as relevant factors, and cautioned that facility age and oil
storage capacity should not be the only criteria. The report states
that the criteria should result in a broad requirement for facility
owners and operators to prepare and submit plans, but that only a
subset of these plans (i.e., those addressing significant and
substantial harm) will be reviewed and approved (OPA Conference Report,
p. 829). The criteria for this subset are set forth in 49 CFR
194.103(c).
In order to gain a further understanding on implementing the
regulation and on potential revisions to the part 194, OPS conducted a
public meeting on January 29, 1997, in New Orleans, LA, to receive
comments from interested parties. A copy of the transcript of the
public meeting is in the docket for this rulemaking.
In 1999, major pipeline spills occurred in Simpsonville, SC;
Atchison, KS; and Knoxville, TN. In 2000, a major pipeline spill
occurred in Aquasco, MD. These spills illustrated the importance of
spill prevention and response planning; adequate response equipment and
workers; and, the mastery and effective use of incident command
systems.
Investigations and analyses of major pipeline incidents by the
National Transportation Safety Board (NTSB) and OPS have emphasized the
importance of protecting people and the environment, particularly in
densely populated areas and in areas that are unusually sensitive to
environmental damage. This final rule incorporates lessons OPS has
learned from reviewing these plans, leading oil spill exercises, and,
responding to oil spills, as well as the comments received. The
following is a summary of the clarifications and minor changes made by
this final rule to the response planning regulations:
(1) Clarifies definition of ``adverse weather'' and makes it more
consistent with the U.S. Coast Guard definition;
(2) Deletes four definitions as obsolete because they are not used
in the rule;
(3) Deletes expired and no longer significant dates from Sec. Sec.
194.7(a), (b), (c) and 194.119(e);
(4) Clarifies wording in Sec. 194.101(a) to address which
operators are required to submit response plans;
(5) Specifies the secondary containment credits for use of
secondary containment and other spill prevention measures when
calculating the worst case discharge based on breakout tank capacity in
Sec. 194.105(b)(3);
(6) Clarifies the ``substantial threat'' term and requirement in
Sec. 194.107(a) and allows operators to incorporate by reference
certain procedures from the operator's maintenance and emergencies
manuals, required under 49 CFR 195.402, to meet the requirement;
(7) Deletes Sec. 194.107(b) to eliminate English language
requirements;
(8) Revised Sec. 194.107(c) to provide additional guidance on
consistency of response plans with the NCP and ACPs;
(9) Revises Sec. 194.107(d)(1)(ix) to clarify that the drill
requirements can be met by following PREP or developing a functionally
equivalent program;
(10) Add new Sec. 194.107(d)(3) to clarify requirements for an
operator's Incident Command System (ICS);
(11) Revises Sec. Sec. 194.109(b)(2) and 194.113(b)(2) to allow
operators the additional flexibility to use either the name or the
title of the qualified individual. The revised sections also clarify
the requirement for operators to list the name or title of an alternate
qualified individual;
(12) Revises Sec. 194.111(a) to allow operators to keep response
plans where they are most likely to need them;
(13) Revises Sec. Sec. 194.119(d) and (f) to clarify the authority
of OPS to make a final determination where a Federal on-scene
coordinator (FOSC) has concerns about the operator's response
capability; to clarify that OPS may consider FOSC comments on response
techniques, protecting fish, wildlife and sensitive environments and on
consistency with the NCP; and to clarify that OPS remains the approving
authority for the response plan;
(14) Revises Sec. 194.121(a) to clarify that the resubmission of
plans to OPS on a five-year cycle is from the date of submission or
from the date of last approval; and
(15) Augments the guidelines in Appendix A with three, web-based
government references. Because these changes are minor and technical in
nature, and generally reflect existing industry practice, no additional
burden will be placed on operators or the public.
Discussion of Comments
A summary of the written comments OPS received in connection with
the issuance of the interim rule is available in the docket. OPS
received additional comments in response to a notice of public meeting
and request for comments held in January 1997 in New Orleans. A
transcript of the public meeting is also in the docket.
The comments were generally supportive of the need for oil spill
response planning requirements although many suggested modifications to
the existing provisions in various sections. OPS reviewed these
comments and the records of the public meeting and used them in
developing this final rule.
Section 194.1, Purpose
No comments were received on Sec. 194.1 and the section is
unchanged.
Section 194.3, Applicability
Several commenters requested that OPS clarify those pipelines that
are considered to transport oil under 49 CFR part 194. The commenters
questioned the applicability of the response planning regulations to
commodities such as natural gas and unstabilized condensate from
natural gas wells.
Response
OPS believes a clarification is unnecessary. The FWPCA (33 U.S.C.
1321) does not specify substances considered to be oil. Rather, the
FWPCA broadly defines oil and Federal agencies rely on the broad
definition to determine substances that are regulated under the Act.
The existing definition of ``oil'' in Sec. 194.5 is consistent with
this broad definition. Because the definition does not include highly
volatile liquids (HVL), natural gas liquids (NGL), liquefied natural
gas (LNG), or liquefied petroleum gas (LPG), OPS believes that it is
clear that they are not considered to be oil under 49 CFR part 194.
Section 194.5, Definitions
Coastal Zone/Inland Zone/Inland Area/Response Area
Several commenters noted that the terms Coastal zone, Inland area,
Inland zone, and Response area are defined, but that these terms are
not used in the regulations.
Response
OPS agrees and is removing these definitions as obsolete.
Adverse Weather
Some commenters stated that OPS should provide more specific
guidelines or criteria on what constitutes adverse weather, noting that
the U.S. Coast Guard (USCG) and the Environmental Protection Agency
(EPA) have specific
[[Page 8736]]
criteria for significant wave height within the area in which recovery
equipment and booms are expected to operate.
Response
In the interests of interagency consistency, OPS is adopting, in
modified form, the USCG definition of adverse weather in 33 CFR
154.1020.
Contract or Other Approved Means
OPS received comments discussing the definition of contract or
other approved means for insuring that the operator will have oil spill
response resources. Some commenters said the definition was too
restrictive.
Response
OPS disagrees and believes that the existing definition is
consistent with the intent of the law. A fundamental requirement in
response planning is to establish the operator's ability to have the
personnel and equipment to respond to a discharge of oil or a
substantial threat of a discharge of oil on to the navigable waters.
Requiring an operator to have a written or other legally binding
agreement between the operator and a response contractor or other spill
response organization identifying is consistent with this intent.
Environmentally Sensitive Areas
OPS received several comments on the definition of environmentally
sensitive areas. Commenters suggested that the term should be revised
to reflect the specific areas that would be especially sensitive to oil
discharges. Some commenters stated that the definition should be
limited to areas where spills are likely to create significant long-
term environmental harm. Others suggested that the definition should be
consistent with the National Contingency Plan (NCP).
Response
In the years since Part 194 was established, all of the Area
Contingency Plans (ACPs) have been published. The Area Contingency
Plans include detailed information about resources in the area. OPS
believes that the NCP and ACPs provide sufficient guidance to operators
on environmentally sensitive areas. Because the definition is
consistent with the ACP's and the NCP, OPS is not making any changes
based on these comments.
High-Volume Areas
OPS received several comments stating that the existing definition
of high-volume areas (HVAs) did not make clear whether high volume
areas must have both high river velocity and heavy vessel traffic or
only one of the listed criteria. One commenter stated that the interim
final rule did not have enough information for an operator to determine
what constitutes an HVA and suggested that the current definition be
modified to allow operators to use their discretion. One commenter
suggested that the concept was inappropriate because it was developed
for vessel response plans and assumed that the risk of a spill was
greater in busy ports with more vessel traffic. Another commenter
suggested that the concept of HVA does not relate to the likelihood of
a discharge.
Response
OPS believes the list of specific high-volume rivers in Appendix B
of 49 CFR Part 194 provides sufficient guidance to pipeline operators.
The list includes areas that not only have high vessel traffic and high
river velocity but also have concentrations of pipelines. The list
differs from the USCG list of high volume port areas in 33 CFR 154.1020
because the OPS list also includes the concentrations of pipelines.
Major River
OPS received three comments on the definition of ``major river.''
Two commenters stated that OPS should list major rivers in an appendix
to the rule rather than refer to a list in a book. One of the
commenters noted that the referenced book was not readily available.
Response
OPS agrees. We are deleting the definition of major river. A
listing of major rivers can be found in Appendix B, High Volume Areas.
Maximum Extent Practicable
One commenter noted that the definition of ``maximum extent
practicable'' should consider the economics involved and the intent of
Congress to create a system in which the private sector provided most
of the response resources.
Response
The definition in this rule is similar to the definition in the
USCG and EPA's response planning rules. By maintaining the definition
from the interim final rule, we are being consistent with the response
planning regulations of other Federal agencies. No change is made to
this definition.
Navigable Waters
One commenter suggested that the definition of ``navigable waters''
was too broad and would result in an increase in pipeline operational
and administrative costs, including costs to the Federal Government
associated with implementing these regulations. There was also concern
that the broad definition of ``navigable waters'' in Part 194 would be
applied to 49 CFR Part 195.412(b), requiring costly inspection and
increased risk to pipeline personnel associated with inspecting
pipeline crossings in navigable waterways.
Two commenters said that waters used for recreation should not be
included in the definition. One commenter suggested that referring to
waters with vessel traffic leads to a belief that a risk exists only
where watercraft and pipelines are both present. The commenter also
stated that part 194 should not attempt to address all areas of risk
but only those where pipelines and vessels coexist. The commenters
stated that the full intent of OPA 90 can be met by eliminating the
definition of ``navigable waters'' and by focusing on areas where the
environment or public drinking water supply can be damaged.
Two commenters stated that OPS should publish a list of navigable
waters or major streams. One commenter stated that the definition was
inconsistent with the preamble language and the definition was
ambiguous because of the use of the terminology ``recreation'' and
``waters from which fish or shell fish are taken and sold.'' They
suggested using the USCG definition in 33 CFR 2.05-25 because that
definition is tied to the FWPCA and the regulated community is familiar
with that definition. One commenter stated that the terms
``recreation'' and ``fisheries'' should be removed or considered under
the definition of sensitive areas.
Response
The definition of navigable waters in part 194 is a slightly
modified version of the EPA definition in the NCP at 40 CFR 300.5 and
40 CFR part 110. OPS believes that the regulated community understands
this definition because it is based on the FWPCA definition of
navigable waters at 33 U.S.C. 1362. OPS will not develop a list of
navigable waters because it is well established that Congress intended
to broadly define navigable waters in the FWPCA. In addition, the OPA
90 Conference Report reflects the intent of Congress that facilities
near sensitive areas such as public drinking water supplies generally
should not be omitted from spill response planning requirements
(Conference Report 101-653, p. 829). Accordingly, OPS has decided to
retain the current definition.
[[Page 8737]]
Oil
Several commenters suggested that the definition of ``oil'' be
limited to crude oil and petroleum products that could be recovered.
These commenters further suggested excluding petroleum or petroleum
products classified as HVLs, NGLs, LNG, or LPG. One commenter suggested
that the definition should remain largely unchanged. Another commenter
stated that the current definition does not include all the products
that Congress intended to fall within the OPA 90 definition.
Several commenters stated that highly volatile liquids such as
propane and butane should not be considered oil. Another commenter
stated that the definition should be clarified to exclude trace amounts
of condensate in gas pipelines. Another commenter stated that OPS
should not use the USCG definition and resulting list of substances
considered to be oils because the variety of products shipped by barge
is much greater than oil products transported by pipeline.
Response
In February 1995, the USCG prepared a list of substances considered
oil for response planning. Because HVLs, NGLs, LNG, and LPG are absent
from the USCG's list, OPS concluded that these substances are not
considered oil under the FWPCA. OPS also believes that in the course of
implementing the provisions of part 194, operators gained an
understanding of the substances considered to be oil under the rule.
OPS is not changing this definition.
Oil Spill Removal Organization
OPS received three comments on the definition of the term ``oil
spill removal organization'' (OSRO). One commenter stated that the
terminology may imply that OPS is referring to USCG-classified OSROs.
Another commenter suggested that because many small contractors have
response resources, the definition should be revised to include only
those entities engaged exclusively in spill response. Another stated
that the definition should be amended to include companies that will
use their own resources, and that the definition should refer to ``for
profit, nonprofit, and in-house resources.''
Response
OPS is retaining the definition because it is sufficiently flexible
to apply to different types of organizations that may be called on to
respond to a discharge of oil. Narrowing the definition could exclude
organizations that can help respond effectively.
Pipeline
Three commenters addressed the definition of ``pipeline.'' One
commenter stated that the definition of pipeline in these regulations
should encompass all parts of an onshore pipeline facility OPS
regulates.
Response
OPS believes that this definition is sufficiently inclusive. The
current definition of pipeline includes all parts of an onshore
pipeline facility through which oil moves including, but not limited
to, line pipe, valves, and other appurtenances connected to line pipe,
pumping units, fabricated assemblies associated with pumping units,
metering and delivery stations and fabricated assemblies therein, and
breakout tanks. OPS notes that some tanks are used as breakout tanks
even though the pipelines transporting oil to and from the tanks have
different operators. These tanks are still subject to part 194 under a
1971 Memorandum of Understanding (MOU) between EPA and DOT (36 FR
24080; December 18, 1971). Therefore, OPS is not changing the
definition of ``pipeline''.
Qualified Individual
Two commenters stated that the definition of ``qualified
individual'' should be identical to that in 33 CFR 154.1026.
Response
OPS is not revising the definition of qualified individual to be
identical to the 33 CFR.154.1026 because the current definition meets
the intent of the statute. However, OPS is revising Sec. 194.113(b)(2)
to allow the operator to identify one qualified individual and one
alternate qualified individual either by title or by name, and list
their 24-hour telephone numbers.
Response Zones
OPS received several comments on the definition of ``response
zones.'' One commenter endorsed the response zone concept, which he
said was an excellent method of tracking responsibilities and
resources. Another commenter said that geographic response plans are
valuable because they can contain specific response activities and
strategies throughout the geographic area. One commenter suggested that
a response zone should be defined in terms of response needs and that
the linear distance should be limited to 500 miles. Another commenter
suggested that a response zone should be defined by response strategy
(the type of response necessary to contain and cleanup the spill).
Another commenter suggested that the response zone should be defined by
using the time requirements established in the response planning
regulations for mobilizing response resources. One commenter suggested
that the definition was satisfactory as currently provided in the
regulation. Another commenter noted that he had prepared facility-
specific response plans for three different Federal agencies and
requested that OPS consider allowing a facility to prepare an overall
geographic response plan that would facilitate the preparation of
shorter response plans specific to the personnel and characteristics of
each region. Another commenter endorsed the value of response zones and
expressed support for the Integrated Contingency Plan (ICP) format to
plan for multiple facilities within a given geographic area or under a
single qualified individual but asked for additional flexibility in
determining the need for multiple response zones.
Response
OPS intent is to give operators as much flexibility as possible in
developing facility response plans. This approach is reflected in the
current definition of a response zone. ``Response zone means a
geographic area either along a length of pipeline or including multiple
pipelines, containing one or more adjacent line sections, for which the
operator must plan for the deployment of, and provide, spill response
capabilities. The size of the zone is determined by the operator after
considering available capability, resources, and geographic
characteristics.'' Although OPS appreciates the logic associated with
the preparation of purely geographic plans, OPS believes that the
flexibility provided by the definition has proven to be effective in
plan development. Therefore, OPS is not revising the definition of
response zone.
Worst Case Discharge
OPS received comments on the definition of ``worst case
discharge.'' These comments are summarized in the discussions on Sec.
194.105.
Section 194.7, Operating Restrictions and Interim Operating
Authorization
No comments were received on Sec. 194.7. However, the February 18
and August 18, 1993, dates listed are no longer significant. As an
administrative measure, OPS is removing dates from the section.
[[Page 8738]]
Section 194.101, Operators Required To Submit Plans
OPS received numerous comments seeking clarification on which oil
pipelines were subject to part 194's response planning requirements.
One commenter contended that the current language in Sec. 194.101(a)
was confusing and subject to misinterpretation. OPS received nine
comments on the exceptions from plan preparation in paragraph (b) for
small and distant pipelines. Two of these commenters expressed concern
about the distant pipeline exception, stating that if containment can
not be accomplished within four hours for larger lines and twelve hours
for smaller lines, the result is likely to be contamination of
environmentally sensitive areas and public drinking water supplies
obtained from ground water sources--regardless of the distance.
One commenter suggested that OPS define one of the criterion
associated with the exception in paragraph (b)(1), the term ``proximity
to navigable waters''. Another commenter suggested that OPS eliminate
the proximity criterion because under the current definition of
navigable waters, almost any small pipeline will be in proximity to
navigable waters.
One commenter disagreed with the 1,000 barrel discharge within five
years criterion and suggested eliminating it because a discharge of
1,000 barrels could cause significant and substantial harm to the
environment. Another commenter took issue with using historical spill
records as a criterion. He contended that the absence of large spills
over five or ten years is not a good measure of the risk of future
spills given the age of some pipeline systems. One commenter
recommended that Sec. 194.101(b)(1)(ii) be revised to grant an
exception to a pipeline that has not had two or more releases greater
than 50 barrels resulting in polluting any stream, river, lake,
reservoir, or similar body of water that violated applicable water
quality standards. Other commenters suggested that inspection and
repair records be included as criteria for exemption from preparing a
response plan.
Response
OPS agrees that the scope of the exceptions for small and distant
pipelines is very limited. With regard to small pipelines, the OPA 90
Conference Report states that the basic requirement to prepare and
submit response plans should be broadly applied because under certain
circumstances ``even discharges from small facilities can result in
considerable damage to the environment'' (Conference Report 101-653, p.
829). Regardless of their size, the only pipelines that are unlikely to
cause substantial harm to navigable waters, adjoining shorelines,
public drinking water supplies, and other environmentally sensitive
areas in the event of a worst case discharge are pipelines that are not
in proximity to these areas. In practice, this means that the small
pipeline exception can only apply if the small pipeline is also a
distant pipeline. With regard to distant pipelines, the OPA 90
Conference Report pointed out that even ``unregulated, low pressure
pipelines have leaked significant quantities of oil into our Nation's
waterways.'' Locations that appear to be distant from open waters may
be in proximity to various water resources including drinking water
supplies and other sensitive areas and as a result, are likely to cause
substantial harm in the event of a worst case discharge. Therefore,
consistent with the intent of the statute, the small and distant
pipeline exceptions must be narrowly construed and virtually all
onshore oil pipelines are considered at least ``substantial harm''
facilities for purposes of part 194. Accordingly, all onshore oil
pipeline operators, with the rare exception of those who can prove that
their pipelines meet the strict criteria in Sec. 194.101(b)(1) and
(2), are required to prepare and submit oil spill response plans to
OPS/OPS in accordance with Sec. 194.119(a).
Although OPS modified paragraph (a) to clarify this point, OPS does
not anticipate additional plan submissions because OPS believes all
affected operators have already submitted response plans.
FOSC Requests
OPS received 11 comments on the handling of a Federal on-scene
coordinator's (FOSC) request that OPS require a response plan be
prepared and submitted for a pipeline or line section that would
otherwise be exempt from 49 CFR part 194. These comments are addressed
in connection with the discussion on submission and approval procedures
in Sec. 194.119 below.
Section 194.103, Significant and Substantial Harm: Operator's Statement
Although, as discussed above, all onshore oil pipeline operators
are expected to develop and submit response plans, under OPA 90 only
those plans for pipeline facilities that pose both a significant and
substantial threat of harm to the environment require OPS approval.
Under Sec. 194.103(a), if an operator expects any line section in a
response zone to cause both significant and substantial harm, then the
operator must submit a statement with its response plan listing the
significant and substantial harm line sections. This statement by the
operator facilitates our identification of those plans requiring OPS
approval. The OPA 90 Conference Report directed the RSPA Administrator
to establish criteria by which those plans requiring prior approval
would be selected. Report language discussed oil storage capacity,
environmentally sensitive areas, and drinking water supplies as
relevant factors, and cautioned that facility age and oil storage
capacity should not be the only criteria. The significant and
substantial harm criteria are currently set forth in Sec.
194.103(c)(1) through (5). Several commenters took issue with various
aspects of these criteria.
Historical Spill Data
With respect to Sec. 194.103(c)(1) and (2), we received four
comments on the use of historical spill data in determining significant
and substantial harm. One commenter recommended that references to
historical incidents contained in Sec. 194.103(c)(1) and (2) be
omitted because they have little bearing on spill harm or consequence.
Another commenter noted that some consideration should be given to the
type of corrective action taken as a result of previous spills.
Response
In our view, however, historical spill data is an appropriate
factor for us to consider when deciding which response plans are
appropriate for the approval process, because it aids in focusing our
limited resources on reviewing those plans associated with facilities
where known risks may be present.
Electric Resistance Welded Pipe
With respect to Sec. 194.103(c)(3), one commenter contended that
there was no scientific basis for establishing significant and
substantial harm on the basis of the presence of electric resistance
welded (ERW) pipe manufactured prior to 1970, operating at certain
stress levels.
Response
OPS disagrees. Our accident statistics clearly show that at certain
stress levels, ERW pipe manufactured before 1970 is inherently
susceptible to fracture and preferential corrosion. Two studies, along
with our accident data for liquid and natural gas transmission
pipelines, show that failures in older ERW pipes greatly outnumber
those in ERW pipe produced after 1970. Since 1970, pipe
[[Page 8739]]
manufacturers have changed to high frequency current for fusion heat
and improved quality control for ERW pipes. These changes led to a
significant decrease in the number of ERW pipe seam failures. This
decrease is so significant that it cannot be attributed to any factors
other than the change to high frequency current and quality control
improvements. Therefore, we are retaining this criterion.
Buffer Zone Dimensions
Six comments were received regarding the criterion in Sec.
194.103(c)(4) and (5) establishing ``significant and substantial harm''
to include a line section located within certain linear distances from
drinking water intakes and environmentally sensitive areas. Three of
the comments concerned the role of this criterion in the significant
and substantial harm determination. One commenter asserted that
drinking water intakes and environmentally sensitive areas should be
equally protected, noting that the OPA 90 Conference Report made no
distinction between the two and requires that both be protected in the
event of a spill. This commenter recommended that an operator of any
oil pipeline located within 5 miles of an environmentally sensitive
area be required to prepare and submit a response plan. One commenter
contended that the distances from drinking water intakes and
environmentally sensitive areas should only be relevant when the line
section crosses a major river or waterway. Another commenter noted that
an oil discharge from a pipeline can also affect ground waters and that
this should be taken into account in determining the level of harm that
could reasonably be expected in the event of a discharge and taken into
account for determining which plans should require approval.
Response
In our view, the clear intent of OPA 90 requires us to recognize
the potential harmful effects of oil discharges on environmentally
sensitive areas and drinking water sources. The fact that most
pipelines are located underground, and contamination of ground waters
can ultimately impact surface waters and adjoining areas indicates that
a response plan must contain response strategies to protect drinking
water sources and environmentally sensitive areas. Moreover, the FWPCA
requires these areas be identified in the relevant ACP(s) and response
plans be consistent with these ACPs. Accordingly, we are retaining the
linear distance criteria in Sec. 194.103(c)(4) and (5). Overall, we
believe that the Sec. 194.103(c) criteria for determining whether a
line section can be expected to cause significant and substantial harm,
are appropriate at this time. We may consider revising these criteria
in the future if experience indicates that such a change is needed. We
reserve the right to check all pipeline facility response plans for
completeness, regardless of the level of harm the operator designates.
Treatment of Response Zones
Under Sec. 194.103(b), if an operator expects a line section in a
response zone to cause significant and substantial harm, then the
entire response zone must be treated as if it could cause significant
and substantial harm. Two comments were received stating that Sec.
194.103(b) should be revised. The commenters contended that pipeline
operators should not be burdened with planning for areas within a
response zone but relatively distant from the pipeline sections capable
of causing significant and substantial harm. Two other commenters
questioned the criterion. They suggested that only the line section
that met the criterion, rather than the zone, be so designated.
Response
OPS disagrees that a revision is warranted. Response zones are
based on geographic and regional considerations including topography,
hydrology, climate, and population. OPS requires operators to submit a
response plan for each pipeline, not for each line section and requires
a separate appendix for each response zone. OPS expects operators to
fully analyze the potential impact of a spill throughout each response
zone.
Section 194.105, Worst Case Discharge
Secondary Containment Credits
RSP/OPS received numerous comments on the practice of reducing the
worst case discharge calculation from breakout tanks that have
secondary containment dikes, and other prevention measures.
One commenter stated that Washington State does not allow operators
to take credit for secondary containment and that the worst case
discharge calculation is only to establish a planning volume. Another
commenter stated that it was inappropriate to allow for a reduction of
the maximum drainage volume calculation because a review of incidents
associated with storage tanks shows it is not uncommon to experience at
least a partial failure of containment systems.
Commenters also suggested varying amounts of credit for secondary
containment, some up to 100 percent, depending on the spill prevention
measures an operator has in place. Others opposed predetermined
credits, arguing instead that operators should use site-specific risk
assessment methods to establish the appropriate containment credit.
Response
In 49 CFR 194.105(b)(3), the rule allows operators to reduce the
calculated worst case discharge from a breakout tank due to secondary
containment. Reductions in the calculated worst case discharge are
referred to as credits. The interim final rule is not specific as to
how much credit an operator is allowed.
In 40 CFR Part 112, EPA allows up to 20 percent secondary
containment credit in certain cases for tanks under its jurisdiction.
Since 1994, our policy has allowed operators to claim up to a 50
percent secondary containment credit in calculating their worst case
discharge for facilities with breakout tanks. The 50 percent credit
policy was based on examining tank accident statistics and a 1992
position paper from the American Petroleum Institute.
Under certain circumstances, we approved claims for credit of up to
75 percent where operators were able to demonstrate that more spill
prevention measures were in place. OPS believes, based on our analysis,
that routine spill prevention credits higher than 75 percent are not
justified.
OPS reviewed incidents from 1987 to 1999 involving spills from
breakout tanks. During that period, 189 breakout tank spills were
reported. Of the 179,606 barrels of oil spilled, 139,015 barrels of oil
were recovered. A variety of factors may have contributed to the amount
of oil lost, including oil volatility and whether there was a fire.
However, over 12 years, only 77 percent of the oil spilled from
breakout tanks was recovered. In addition, although secondary
containment at breakout tanks generally prevented loss of the entire
tank volume, there are documented cases of accidents in which the
secondary containment system partially failed.
OPS's goal is to focus breakout tank operators' efforts on
prevention, so that there are fewer spills. OPS believes that if the
credits for preventing spills from breakout tanks are too small,
operators may shift their planning emphasis from higher-risk areas
along their rights-of-way, to tank farms that may pose smaller
environmental risks.
Accordingly, the following table which specifies the amount of
prevention credit an operator can
[[Page 8740]]
routinely claim has been incorporated as a new subparagraph (b)(4).
------------------------------------------------------------------------
Credit
Prevention measure Standard (percent)
------------------------------------------------------------------------
Secondary containment > 100%.. NFPA 30.................... 50
Built/repaired to API API RP 620/650/653......... 10
standards.
Overfill protection standards. API RP 2350................ 10
Testing/cathodic protection... API RP 650/651/653......... 5
Maximum allowable credit...... ........................... 75
------------------------------------------------------------------------
OPS will entertain higher credits only on a case-by-case basis upon
petition for waiver by a pipeline operator.
Supervisory Control
A commenter suggested OPS consider giving pipelines equipped with a
supervisory control and data acquisition (SCADA) systems with a leak
detection capability containment credits on a tiered basis, noting that
since the use of SCADA systems was not mandatory, tiered credits would
promote the use of such systems.
Response
OPS is not granting specific credit for reducing worst case
discharge based on the use of SCADA systems because these systems are
highly variable in their leak detection capabilities. In addition, the
SCADA systems are for data collection and system control rather than
part of a secondary containment system. However, we have seen
significant improvement in these systems since they were first
introduced. Operator's may now use leak detection systems enhancements
as a mitigative measure in their integrity management programs and we
may revisit the issue of granting response planning credits pending
further advances in leak detection.
Weather
OPS received several comments on the role of weather in calculating
the worst case discharge. One commenter noted that weather conditions
would have a great effect on response capability. Other commenters
noted that although the basic method for calculating worst case
discharge was satisfactory, the rule should also include specific
guidelines for planning for discharges that occur in adverse weather,
at night, or that result from natural disasters, such as hurricanes and
earthquakes.
Response
The current definition of worst case discharge requires
consideration of adverse weather conditions. Although we have not
specified how these effects must be weighed, operators are required to
consider the weather history for the area surrounding the pipeline and
the effects of adverse weather on the time needed to shut down a
pipeline. OPS does not find a benefit by adding the new or additional
terminology.
Maximum Drainage Volume/Maximum Shutdown Response Time
OPS received several comments on maximum drainage volume and
maximum shutdown response time calculations. These calculations are
based on historic discharge date or, in the absence of such historic
data, the operator's best estimate, multiplied by the maximum flow
rate. One commenter requested definitions for ``maximum shutdown
response time'' and ``maximum drainage volume'' be inserted into part
194.
Response
OPS believes the existing rule has clear procedures for calculating
worst case discharge volumes from line sections and the text explains
that worst case means the largest volume. OPS does not find a benefit
by adding the new or additional terminology.
Section 194.107, General Response Plan Requirements
OPS received several comments requesting clarification on the
requirement for each response plan to identify resources for responding
to a worst case discharge or a substantial threat of a worst case
discharge. Commenters noted an NTSB report on the 1994 San Jacinto
Flood recommended that OPS require liquid pipeline operators to address
substantial threats in their facility response plans.
Response
On January 24, 1997, OPS issued a Pipeline Safety Alert Notice (ALN
97-01) to remind the regulated community of the importance of planning
not only for a worst case discharge but also for a substantial threat
of a worst case discharge. Although OPS does not require response
planning for less than a worst case discharge, an operator may
nevertheless benefit from planning responses to smaller discharges
because they are more likely to occur, and may require different types
and quantities of response equipment. OPS is revising Sec. 194.107(a)
as a result of these comments.
In order to minimize the burden on the regulated community,
operators may incorporate by reference, procedures developed under 49
CFR 195.402 to address these requirements. Operators may refer to the
appropriate section of their operations and maintenance manuals
required under Sec. 195.405(a). Operators need not submit their entire
procedural manuals developed under Sec. 195.402. However, OPS reserves
the right to request a copy of the relevant portion of the procedural
manual as part of the response plan review.
Other Than English
OPS received one comment requesting that criteria be specified for
determining when it is necessary to develop a response plan in a
language other than English.
Response
The intent of this provision is to ensure that personnel
implementing response plans are able to read the plan. If the personnel
implementing a plan can read in English, there is no need to produce
the plan in more than one language. If a plan were written in more than
one language, only the English version would need to be submitted to
us. OPS has not received any plan in a language other than English and
expects that response plans will continue to be submitted in English.
OPS is deleting Sec. 194.107(b) because it is not necessary.
Consistent With NCP/ACP
We received several comments and many operator requests for
clarification on how an operator can certify that a plan is consistent
with NCP and applicable ACPs.
Response
In the course of OPS' iterative plan review process we identified
detailed information for determining consistency with the NCP and
applicable ACPs. We are modifying the text of paragraph (c)
[[Page 8741]]
and adding a redesignated paragraph (b) to reflect this information.
As a minimum, to be consistent with the NCP a facility response
plan must: (1) Demonstrate an operator's clear understanding of the
function of the Federal response structure, for example, the plan must
contain a procedures to notify the National Response Center and set
forth the relationship between the role of the operator's response
organization and the role of the FOSC in pollution response; (2)
establish provisions to ensure the safety at the response site; and (3)
identify the procedures to obtain any required Federal and State
permissions for using alternative response strategies, such as in-situ
burning and dispersants as provided for in the applicable ACPs.
At a minimum, to be consistent with the applicable ACP, the plan
must: (1) Address the removal of a worst case discharge and the
mitigation or prevention of a substantial threat of a worst case
discharge; (2) identify environmentally and economically sensitive
areas; (3) describe the responsibilities of the operator and of
Federal, State and local agencies in removing a discharge and in
mitigating or preventing a substantial threat of a discharge; and (4)
establish the procedures for obtaining an expedited decision on use of
dispersants or other chemicals.
Drills and Exercises
OPS received several comments on Sec. 194.107(d)(1)(ix) covering
drills and exercises; and on ``Guidelines for Developing and Evaluating
an Oil Spill Response Exercise: A Handbook for Preparedness for
Response Exercises (PREP),'' which was developed to support operator
compliance with this paragraph. Two commenters wrote that Sec.
194.107(d)(1)(ix) should specifically refer to the PREP guidelines. Two
commenters requested that more guidance documents be made available,
especially on how to conduct an exercise program. One commenter
requested guidance on conducting exercises for multi-zone response
plans.
Response
OPS is not making the PREP guidelines mandatory. However, OPS is
revising Sec. 194.107(d)(1)(ix) and redesignating this as new
paragraph (c) to clarify that an operator will satisfy the requirement
for drills by following PREP guidelines. An operator choosing not to
follow PREP guidelines must have a drill program that is equivalent to
PREP. The operator must describe the drill program in the response plan
and OPS will determine if the program is equivalent to PREP. This
revision is consistent with the USCG exercise requirements in 33 CFR
Part 154. OPS is also providing response plan guidelines in Appendix A
by adding a reference to the PREP guidelines.
Integrated Contingency Plan
OPS received two comments on using the National Response Team's
Integrated Contingency Plan (ICP) format published in the Federal
Register on June 5, 1996 (61 FR 28642). (See discussion under Sec.
194.119 for more comments on ICP format. One commenter stated that OPS
should reword or reorganize the format of a response plan to be more
consistent with ICP guidelines. He suggested that Sec. 194.107(d) be
revised to use the ICP concepts of response plan, core plan, and
appendices rather than addressing each zone independently. Another
commenter encouraged consistency with the ICP and stated that a format
similar to the ICP should simplify the demand on facilities.
Response
OPS strongly endorses using the ICP format to organize a response
plan. OPS believes the ICP is a highly functional document that can be
used in a variety of emergencies to meet several agencies'
requirements, including Part 194. Although the ICP format is the
preferred method of response planning to meet federal spill contingency
planning regulations using the ICP format is not mandatory because OPS
believes an operator should have the flexibility to organize their
response in the manner which best fits their operational situation.
Operators using the ICP format must include a cross-reference in their
response plan. OPS does not find a benefit by adding the new or
additional terminology.
National Interagency Incident Management System
A commenter suggested that OPS adopt the National Interagency
Incident Management System (NIIMS) and require operators to be trained
in NIIMS. The NCP (40 CFR 300.150) requires that response actions
comply with the Occupational Health and Safety Administration (OSHA)
provisions for worker health and safety in 29 CFR 1910.120(q)(3). The
OSHA rule requires implementing an incident command system (ICS), which
is further explained in Section 6, Appendix C of 29 CFR 1910.120.
Response
As part of the requirement to be consistent with the NCP and the
ACPs, OPS requires operators to use incident command systems (ICS),
including unified command system procedures for spill response. OSHA
previously required training in the ICS appropriate to the role the
participant plays. OPS does not require training in ICS.
OPS fully endorses NIIMS (now called the National Incident
Management System (NIMS), but will accept other ICSs if they adequately
address the following five functional areas: finance, logistics,
operations, planning, and command. More information on NIMS is
available on the USCG's Web site, http://www.uscg.mil/USCG.shtm. OPS is
adding a new Sec. 194.107(c)(3) to clarify a facility response plan
must include a description of the operator's response management system
including the five functional areas. The plan must also demonstrate the
operator's response management system uses common terminology and has a
manageable span of control, a clearly defined chain of command, and
sufficient trained personnel to fill each position.
Section 194.107(d)(2), which lists the information required in a
response zone appendix, has also been modified to reflect the change
from Sec. 194.107(d) to Sec. 194.107(c). Although not the subject of
a specific comment, RSPA is also clarifing that an operator submitting
a response plan for a single response zone does not have to have a core
plan and a response zone appendix. The operator of a single response
zone onshore pipeline shall have a single summary in the plan that
contains the required information in Sec. 194.113.
Section 194.109, Submission of State Response Plans
OPS received four comments on submitting State response plans and
on the plan's format. One commenter requested that OPS retain the
provisions that allow operators to submit a response plan originally
developed to meet State requirements. The commenter requested that OPS
allow a State plan to be submitted to us even before the State approves
the plan. Another commenter endorsed using approved State plans and
commended our efforts to streamline the response planning requirements.
One commenter noted that State agencies may complain that a plan is too
large, and requested that OPS consider this criticism when streamlining
the plan process. Another commenter stated that all plans should be
required to follow the same format to ensure consistency, ease of
review and ease of use. He noted that when a pipeline operator submits
a State response plan, the supplementary
[[Page 8742]]
information should follow a consistent format.
Response
OPS is retaining Sec. 194.109 and will continue to accept a
response plan prepared for a State when the State plan has equivalent
or greater environmental protection, in order to provide maximum
flexibility to operators in preparing response plans. Although not the
subject of a specific comment, OPS is also revising Sec. 194.109(b)(2)
to be consistent with the change to Sec. 194.113(b)(2).
Section 194.111, Response Plan Retention
OPS received several comments on retaining response plans. One
commenter noted that the requirement to retain a copy of the plan at
the operator's headquarters is confusing because there are many
different levels of headquarters offices. He suggested that a plan be
retained at a designated office of record for the affected facilities
and at designated locations where the plan will be activated. One
commenter noted that EPA required a plan at the nearest field office.
Two commenters noted that it was unnecessary to keep a plan at a pump
station because many pump stations were unmanned. One commenter
suggested that the regulations be amended to require a plan only at a
manned pump station or pipeline facility. Another commenter agreed,
adding that requiring a plan at unmanned locations where response
activity might take place would be impractical and burdensome. Three
commenters suggested that a core plan and appendices be kept at the
location from which operator personnel would be dispatched. Another
commenter stated that the qualified individual should not be required
to have a copy of a plan if copies are available at the locations
listed in Sec. 194.111(a). One commenter questioned the need for a
qualified individual to have a copy of the entire plan when the
qualified individual is responsible for only a portion of the facility.
Response
OPS is revising Sec. 194.111 by deleting Sec. 194.111(a) and its
subsections (1),(2), and (3). We are replacing these with a new
subsection (a) requirement for operators to maintain relevant portions
of their response plans at headquarters and at other locations from
which response activities may be conducted, such as in field offices,
supervisors' vehicles or spill response trailers. This change will
allow operators the discretion to determine the most appropriate
locations for copies of the plan.
Section 194.113, Information Summary
OPS received 10 comments on the information summary required in
Sec. 194.113. One commenter noted that Sec. 194.113(a)(2) should be
revised to eliminate the listing of one or more line sections meeting
the requirements for significant and substantial harm. Instead, he
suggested replacing it with a list and description of the response
zones, including all counties and States that each zone encompasses and
the level of harm the operator's pipeline poses in that zone.
Two commenters suggested that Sec. 194.113(b)(1) be revised to
remove the requirement that the response zone appendix contain the
information summary sheet for the core plan. Another commenter took
issue with the statement in the preamble to the interim final rule, on
the need for an operator to provide a duplicate copy of the information
summary sheet from the core plan with each response zone appendix.
Three commenters requested that Sec. 194.113(b)(2) be revised to
require only the title of the qualified individual, so that the
operator would not have to update the plan when personnel changed. Two
commenters stated that the plan should list the name and telephone
number of an alternate qualified individual in addition to those of the
qualified individual. Another commenter stated that naming specific
individuals, along with their phone numbers, contractors, and employees
would do little to enhance the pipeline operator's response capability.
Response
OPS believes that the information summary concerns expressed by the
commenters are largely resolved through the iterative process of plan
review and generally do not require further clarification or change.
OPS agrees that the summary should require only the title of the
qualified individual, so that the operator would not have to update the
plan when personnel change. The plan should also list the name and
telephone number of an alternate qualified individual in addition to
those of the qualified individual. We are revising Sec. Sec.
194.113(b)(2) accordingly.
Section 194.115, Response Resources
OPS received 22 comments on Sec. 194.115. Several comments
concerned the tiering of response resources. Tiering is the concept of
having a certain amount of personnel and response equipment on-scene
within a specified amount of time. Each increment of time, with its
associated level of resources, is called a tier.
Current regulations require operators to identify in their spill
response plan the resources that are available to respond for three
tiers, that is, within 12, 36, and 60 hours, respectively. For high
volume areas, the response times for the three tiers are 6, 30, and 54
hours, respectively. Five commenters endorsed the concept of tiers,
including the concept of high volume areas. Another commenter noted
that the tier requirements should be planning standards rather than
performance standards, because on the day of a discharge circumstances
may be different. Another commenter noted that the tiered approach
should represent the minimum amount of resources that would be
acceptable.
Several commenters offered alternative response times, such as Tier
1, 12 to 24 hours; Tier 2, 30 to 48 hours; and Tier 3, 60 to 80 hours.
Another commenter stated that the preamble to the interim final rule
offered an example of the tiered approach but that the regulatory text
in Sec. 194.115 did not have criteria. He suggested that Sec. 194.115
should clearly explain our approach. Another commenter suggested that
operators should have the discretion to identify personnel and
equipment to meet the tiered response for the worst case discharge.
Another commenter noted that operators in remote areas need a
different strategy because the areas may not be adequately protected
under the regulation. One commenter noted that ACPs should be used as a
reference in establishing the amount and type of response resources. He
said that using ACPs for this task is appropriate because the ACPs
would be kept up-to-date and consistency with ACPs is required. Another
commenter responded to a statement in the interim final rule preamble
on limitations for particular response zones including limitations on
the types of equipment suitable for response in ACPs.
Another commenter noted that the regulations do not identify the
level of capability that OPS would consider sufficient within the
tiers. As a result, operators and response contractors may not be clear
on what is required of them. One commenter noted that although the
preamble to the interim final rule says that many of the
recommendations of the USCG Response Planning Negotiated Rulemaking
Committee were adopted, OPS departed from the Committee's
recommendations on response times and response equipment. Several
commenters stated that OPS
[[Page 8743]]
should adopt the tiered concept and specify the amount of response
equipment required under each tier from the USCG's or the EPA's
response planning regulations.
Two commenters addressed the subject of caps on the amount of
required equipment that must be under contract, as developed in the
USCG's Response Planning Negotiated Rulemaking and used in the USCG and
the EPA's response plan rules. Both commenters endorsed the concept but
one suggested doubling the caps in the USCG's regulations. The other
commenter suggested that because resources may be insufficient in many
areas of the country, OPS should specify caps for response resources
that must be under contract.
OPS received several comments on specific equipment requirements
under Sec. 194.115. One commenter questioned how OPS defines
sufficient resources and asked us to define reasonable levels of
resources for each of the three tiers. OPS received four comments
calling for adopting standards for measuring the adequacy of an
operator's response equipment. One commenter noted that adopting
requirements parallel to the USCG's and EPA's would be appropriate.
Another commenter said that the USCG's and EPA's guidance on response
resources were inappropriate because they were developed for industries
regulated by those agencies. Some industry representatives suggested
that operators should have the discretion to identify personnel and
equipment to meet the tiered response for the worst case discharge.
They oppose adopting the USCG's response planning standards, because
they believe it would result in conflicting and confusing requirements.
Response
In the interim final rule, OPS referred to the USCG Navigation and
Vessel Inspection Circular (NAVIC) No. 7-92, Appendix A, as a method an
operator could use to determine the type and amount of response
resources needed to respond to a worst case discharge. OPS also noted
in the interim final rule that many pipeline operators deal with
diverse spill risks and response considerations, which is reflected by
the comments above. OPS does not believe it is necessary to specify the
amount of response resources instead of allowing operators to determine
and demonstrate sufficient response resources in their response plans.
The NAVIC included guidance on the tiers of response resources,
defined environments in which response equipment must be capable of
operating, and accounted for the physical effects of the environment on
types of oil. The NAVIC set specific minimum amounts of equipment, and
specified times of arrival at the scene of a worst case discharge for
which an operator must plan.
Many of the concepts used in the NAVIC are in the USCG's rule for
marine transportation-related facility response plans (33 CFR Part 154,
Subpart F and Appendix C). Similarly, EPA adopted many of the planning
concepts concerning the type and amount of response equipment from the
NAVIC and from the USCG Negotiated Rulemaking Committee in its response
planning regulation for non-transportation-related facilities (40 CFR
Part 112, Appendix E).
OPS recognizes that some pipelines are in remote areas where
relatively few response resources are available. If an operator is
unable to meet the prescribed tier times in Sec. 194.115(b), it should
document why it cannot meet the prescribed tier times and propose
alternative tier times. OPS allows an operator to propose alternative
response tiers and response resources, methods and strategies to
respond to the worst case discharge to the maximum extent practicable.
OPS will assess the proposed alternative tier times according to
available response contractors, mutual aid resources, feasible pre-
staged containment and recovery equipment, and appropriate response
techniques in the operator's response plan and corresponding
information in the applicable ACP.
Many response plans for pipelines submitted to OPS are complex
facility response plans that also address the USCG and the EPA response
plan regulations. OPS notes that many of these complex facility
response plans, including plans for pipelines only, are already using
the USCG's and EPA's methods for planning response resources for a
worst case discharge. OPS accepts the use of the assessment method
specified in USCG's facility response planning regulations at Appendix
C to 33 CFR part 154.
OPS encourages using USCG-classified oil spill response
organizations (OSROs). An operator contracting with USCG-classified
OSROs in order to have sufficient response resources to respond to the
worst case discharge will not have to describe the response resources
or the response equipment maintenance program of the USCG-Classified
OSROs. Also, the operator will not be required to demonstrate how the
equipment will be mobilized to meet the response tier times established
in Sec. 194.115, although the operator should take into account the
time required for the USCG-Classified OSRO to respond to the spill from
wherever the contractor is based.
OPS believes that many of the issues raised by the commenters are
resolved through its iterative plan review process, drills, and
responses to actual spills. Based upon this belief, OPS is not amending
Sec. 194.115 at this time. However, OPS may reexamine this issue.
Use of Spill Scenarios
OPS received comments endorsing the use of hypothetical spill
scenarios to determine whether a response plan identifies sufficient
response resources. One commenter noted that using scenarios is the
best gauge of the capability to respond to a worst case discharge
because a scenario gives an idea of what resources are available.
Another commenter suggested that scenarios would be helpful for
assessing the ability to respond to a worst case discharge. Another
stated that drafting multiple scenarios would be burdensome and would
only make the plans larger. One commenter suggested that scenario-based
analysis be used with the tiered approach. Two commenters stated that a
scenario-based review is preferable to the tiered approach.
Response
OPS recognizes that other Federal and State agencies allow
scenarios to be used. However, OPS finds the increased burden of
mandatory scenario development in a response plan is not justified by
any corresponding increase in response preparedness. OPS is not
adopting a scenario-based approach.
Section 194.117, Training
OPS received several comments on the training requirements in Sec.
194.117. Three commenters suggested revisions to Sec. 194.117(a)(1)
regarding how operators should train personnel to know their
responsibilities under the plan. Three commenters noted that the
training should be limited to personnel engaged in response or
reporting. Two commenters noted that training should be related to each
person's role under the response plan and one noted that only OSHA
should have across-the-board training requirements. One commented that
reporting personnel need only the items enumerated under Sec.
194.117(a)(2) and did not need to know the specific information.
Two commenters requested that Sec. 194.117(b)(1) be revised to
require that records for personnel be maintained at a designated office
of record for the
[[Page 8744]]
affected facilities, because this may not be the same as the operator's
headquarters.
Another commenter noted that OPS should coordinate the training
requirements with the USCG and the EPA to ensure required training
performed for one agency will meet the training requirements for all
agencies.
Response
OPS is not amending Sec. 194.117. Following the publication of the
IFR and the public meeting, the four Federal agencies responsible for
implementing OPA 90 worked together to develop the Training Reference
for Oil Spill Response (August 1994). Although this document is not a
regulation, operators may review it along with specific agency
requirements on training. This reference can be found on the USCG's Web
page, http://www.CoastGuard.mil, and it is also available from the
Government Printing Office, GPO stock number 050-12-00364-5. OPS
believes the commenters concerns have been addressed through this
document.
Training Credit
One commenter requested that training credit be allowed for
responses.
Response
Under the PREP program, RAPS/OPS allows operators to take training
credit for responses when the operator can demonstrate the specific
training requirements under Sec. 194.117, including individual
responsibilities under the plan, were accomplished during the response
and that appropriate records are maintained.
Section 194.119, Submission and Approval Procedures
Submission
Although not the subject of a specific comment OPS made minor
clarifications to Sec. 194.119 (a), notifying the operators that
submission in electronic format is preferred; and to clarify Sec.
194.119 (e), removing dates that were no longer necessary.
FOSC Role
Six comments were on the role of the FOSC in requesting and
reviewing a facility response plan for a pipeline. Several commenters
took exception to the implication that a FOSC could object to a OPS
plan approval because authority to review and approve pipeline response
plans was delegated to OPS. Two commenters were concerned about
significant delays in plan approval in the event that a FOSC was
reviewing a plan. A commenter endorsed the principle of a FOSC
reviewing a response plan for a pipeline in the FOSC's area of
responsibility, but said that final approval authority should remain
with OPS. Two commenters stated that OPS should develop criteria for
FOSC determinations of whether to request OPS require a plan submittal.
Response
OPS is committed to interagency cooperation and will continue to
allow FOSCs to review response plans under Sec. 194.119(f). OPS takes
into consideration comments from a FOSC on response techniques,
protecting fish, wildlife, and sensitive environments, and consistency
with ACPs. However, OPS remains the approving authority for pipeline
facility response plans. OPS determined that it is not necessary to
develop criteria governing FOSC reviews of response plans. OPS believes
that the requirements of Part 194 are sufficient to guide FOSCs in
requesting a response plan be submitted or in reviewing plans. However,
OPS made minor modification to Sec. Sec. 194.119(d) and 194.119(f) to
clarify OPS's authority.
Incident Command System for Complex Facilities
Three commenters supported using the National Response Team's ICP
format at a facility that was required to prepare and submit a response
plan to several Federal agencies. One commenter correctly noted that
review and approval should remain with each Federal agency for the
portion of the facility over which the agency has jurisdiction. Another
commenter suggested that the three agencies involved in response plan
review, EPA, OPS and the USCG, should develop an MOU under which only
one agency would review and approve response plans for such ``complex''
facilities.
Response
OPS endorses the National Response Team's ICP as the preferred
method of developing response plans (61 FR 28642; June 5, 1996).
However, the ICP does not replace Federal agency requirements, redefine
agency jurisdiction, or redefine or modify what constitutes a minimally
adequate response plan. In addition, RSPA/OPA believes that it is
appropriate for another Federal agency to review a response plan
governing that portion of a facility over which the agency has
expertise and jurisdiction.
Section 194.121, Response Plan Review and Update Procedures
OPS received several comments on Sec. 194.121. OPS received four
comments concerning the time allowed to revise a plan and submit the
revised plan. The commenters stated that 30 days was insufficient time
to revise a plan. One commenter suggested that 90 days was sufficient
and three commenters suggested 120 days.
Another commenter noted that the lists of changes in operating
conditions requiring resubmission are not equally significant. For
example, the commenter stated that a change in the OSRO would be
considered a substantial change and should require a more rapid
revision of the plan. Another commenter suggested that operators should
not be required to resubmit a plan because of a change in the qualified
individual. Another commenter asked us to clarify whether the entire
plan had to be resubmitted or only the affected portions. Another
commenter suggested that Sec. 194.121(b)(3) be changed to state that
the plan must be resubmitted when a change in the type of oil
transported affects the response resources.
Response
Under current regulation, each operator reviews its response plan
at least every 5 years from the date of submission and modifies the
plan to address new or different operating conditions or information
included in the plan. OPS is revising Sec. 194.121(a) to clarify
operators are to resubmit the plans to OPS. For significant and
substantial harm plans, the approval date is the date on the letter OPS
approving the plan. For substantial harm facilities, operators must
resubmit the plan to OPS for review five years after the most recent
date of submission, because OPS does not issue approval letters to
substantial harm facilities.
OPS believes that the concerns raised by these commenters is
resolved through the iterative process of plan reviews. OPS requires
that significant changes be submitted in accordance with Sec.
194.121(b). An operator need not submit the entire plan if only
portions of the plan have changed. If an operator requests an
extension, OPS may grant an extension of up to 120 days for operators
to submit changes in their plans. OPS notes that operators are required
to immediately modify their plans in the event new or different
operating conditions or information occur that would substantially
affect implementing the response plan.
Appendix A
OPS is supplementing the plan preparation guidance in Appendix A by
adding references to publications and materials as follows:
This appendix provides a recommended format for the
[[Page 8745]]
preparation and submission of the response plans required by 49 CFR
Part 194. Operators are referenced to the most current version of the
guidance documents listed below. Although these documents contain
guidance to assist in preparing response plans, their use is not
mandatory:
(1) The ``National Preparedness for Response Exercise Program
(PREP) Guidelines,'' which can be found at the USCG's PREP Web page,
http://www.uscg.mil;
(2) The ``National Response Team's Integrated Contingency Plan
Guidance,'' which can be found at the National Response Center's Web
site, http://www.nrt.org; and
(3) 33 CFR Part 154, Appendix C, ``Guidelines for Determining and
Evaluating Required Response Resources for Facility Response Plans.''
The PREP guidelines were published in August of 2002. The
Integrated Contingency Plan Guidance was published June 5, 1996, and
corrected June 19, 1996.
Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This action is considered a significant regulatory action under
section 3(f) of Executive Order 12866 (``Regulatory Planning and
Review'') (58 FR 51735; Oct. 4, 1993) and DOT's regulatory policies and
procedures (44 FR 11034; Feb. 26, 1979) because of substantial
Congressional and public interest in preventing and mitigating oil
spills. This rule was therefore forwarded to the Office of Management
and Budget for review. While the technical amendments made by this
final rule to the existing response planning regulations in 49 CFR part
194 are not considered to be significant and involve no new costs to
regulated entities or the public, because part 194 was established by
an interim rule containing only a preliminary regulatory impact
analysis, a full up-to-date analysis of the economic impact of the
response planning requirements was warranted and prepared in connection
with this final rule adopting the interim rule. The Final Regulatory
Evaluation is available in the docket. The following section summarizes
the Final Regulatory Evaluation's findings with respect to the overall
costs and benefits of the oil spill response planning regulations in
part 194.
With regard to the costs associated with response planning,
operators of onshore oil pipelines incur costs for developing and
maintaining a response plan; maintaining the capability to respond to
the worst case discharge in each response zone; and conducting
training, drills, and exercises related to spill response. The cost
analysis in the Final Regulatory Evaluation contains two separate
estimates of compliance costs associated with DOT's rule: a
retrospective assessment of costs incurred from 1993 through 2004 in
response to the interim final rule; and a prospective assessment of the
costs likely to be incurred from January 1, 2005 onward in response to
the final rule. The costs associated with implementation of the interim
final rule, on an annualized basis, were estimated to be $29.1 million.
Looking forward, the analysis indicates that the costs associated with
implementation of the final rule will be $28.2 million per year.
With respect to benefits, the response plan requirements are
designed to reduce the magnitude and severity of spills, thereby
reducing the environmental damages and potential human health impacts
that spills may cause. The benefits analysis uses historical data on
spills to estimate that the response plan requirements reduced the
quantity of oil spilled by an average of approximately 806,000 gallons
per year. The analysis values this reduction in the quantity of oil
spilled in several ways. First, spills can cause a variety of
ecological damages (e.g., fish kills, bird kills) and may influence
human use of natural resources (e.g., recreational use). The benefits
analysis incorporates information from past natural resource damage
assessments to characterize the economic benefits associated with
avoiding these types of damages. Second, a reduction in the quantity of
oil spilled reduces the costs associated with spill cleanup. Finally,
by helping to reduce the volume of oil released in the event of a
spill, the response plan requirements reduce the economic losses
associated with the value of the lost product. The quantitative annual
benefits estimates developed for averted natural resource damages,
cleanup costs, and product losses range from $10.4 million to $63.6
million, with a best estimate of about $37.0 million. Averted cleanup
costs account for the largest share of the quantified benefits. These
estimates do not incorporate several additional categories of benefits
(reduced impacts on drinking water systems, reduced health risks, and
reduced third party damages) that could not be readily quantified.
In assessing the net cost-effectiveness of the response plan
requirements, the Final Regulatory Evaluation compared the estimated
annual costs of the rule relative to the estimated annual reduction in
the quantity of oil spilled (806,000 gallons per year), using a costs
range of approximately $35 to $36 per gallon reduction in the quantity
of oil released. Specifically, the net economic effect of the response
plan requirements was gauged by comparing the present value of the
retrospective and prospective costs to the present value of the
retrospective and prospective benefits. The estimated benefits of the
response plan requirements exceed the estimated costs in both the
retrospective and prospective periods. The net benefits (i.e., benefits
minus costs) in the retrospective period total approximately $59
million, while net benefits in the prospective period are roughly $125
million. Considering both periods together, the estimated net benefit
of the response planning requirements is approximately $184 million.
No additional costs are associated with the technical amendments
made by this final rule to the existing response planning regulations.
For additional detail on the costs, benefits, and other economic
impacts of response planning, see the Final Regulatory Evaluation
available in the docket.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act,
RSPS/OPS must consider whether a rulemaking would have a significant
economic impact on a substantial number of small entities. This final
rule was developed in accordance with Executive Order 13272 (``Proper
Consideration of Small Entities in Agency Rulemaking'') (67 FR 53461;
Aug. 16, 2002) and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act and ensure that potential impacts
of draft rules on small entities are properly considered.
This final rule adopts an interim rule as final and makes minor
amendments to existing requirements for facility response plans for
onshore oil pipelines. This rule does not expand the number of small
entities subject to part 194. More detailed information on small
business impacts can be found in Chapter 6 of the Final Regulatory
Evaluation which is available for copying and review in the public
docket for this final rule.
Based on the facts available which indicate the anticipated minimal
impact of this rulemaking action, I certify, pursuant to Section 605 of
the Regulatory Flexibility Act (5 U.S.C. 605), that this rulemaking
action will not have a significant economic impact
[[Page 8746]]
on a substantial number of small entities.
C. Executive Order 13132
This rule will not have substantial direct effects on States, on
the relationship between the Federal Government and the States, or on
the distribution of power and responsibilities among the levels of
government. Therefore, in accordance with the Executive Order 13132
(``Federalism'') (64 FR 43255; Aug. 10, 1999), OPS has determined that
the action does not have sufficient Federalism implications to warrant
consultation with the States.
D. Executive Order 13175
This rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments'') (63 FR 27655; Nov. 9,
2000). Because this rule will not significantly or uniquely affect the
communities of the Indian tribal governments, the funding and
consultation requirements of this Executive Order do not apply.
E. Unfunded Mandates
This rule does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995 (2 U.S.C. 1532-1538). It does not result in
costs of $120,700,000 or more to either State, local, or tribal
governments, in the aggregate, or to the private sector, and is the
least burdensome alternative that achieves the objective of the rule.
F. Paperwork Reduction Act
The interim final rule contains information collection requirements
subject to the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 109
Stat. 163; May 22, 1995) (PRA). At the time the interim rule was
issued, pursuant to 44 U.S.C. 3507(d), DOT submitted a copy of its
initial PRA analysis to OMB. Every three years OPS resubmits its PRA
analysis of this collection to OMB for review. The OMB control number
is 2137-0589. As part of developing this final rule, OPS examined its
earlier PRA analyses to assess the accuracy of the earlier estimates.
Based on improved data collection, OPS revised its burden estimates.
The increased burden estimates, however, reflect an adjustment in
producing the estimates rather than a change in the spill response
planning requirements.
Therefore, this final rule adds no additional paperwork
requirements to those imposed by the interim final rule. Below is a
summary of the PRA analysis. The complete PRA analysis can be found in
Chapter 7 of the Final Regulatory Evaluation which is available for
copying and review in the public docket for this final rule.
Title: Response Plans for Onshore Oil Pipelines.
OMB Number: 2137-0589.
Type of Request: Renewal of an existing information collection.
Respondents: Oil pipeline operators.
Estimated Number of Respondents: 367.
Estimated Total Annual Burden on Respondents: 50,186 hours.
Comments concerning this information collection should include the
docket number of this rule. They should be sent within 30 days of the
publication of this notice directly to: Office of Management and
Budget, Office of Information and Regulatory Affairs, 726 Jackson
Place, NW., Washington, DC 20503, ATTN: Desk Officer for the Department
of Transportation. Comments are invited on: (a) The need for the
proposed collection of information for the proper performance of the
functions of the agency, including whether the information will have
practical utility; (b) the accuracy of the agency's estimate of the
burden of the proposed collection of information including the validity
of the methodology and assumptions used; (c) ways to enhance the
quality, utility and clarity of the information to be collected; and
(d) ways to minimize the burden of the collection of information on
those who are to respond, including the use of appropriate automated,
electronic, mechanical, or other technological collection techniques.
According to the Paperwork Reduction Act, no persons are required
to respond to a collection of information unless a valid OMB control
number is displayed.
G. National Environmental Policy Act
We analyzed this action for purposes of the National Environmental
Policy Act (42 U.S.C. 4321 et seq.) and determined that this action
will not significantly affect the quality of the human environment. An
Environmental Assessment (EA) is in the docket. Notice of the
availability of this EA was published in the Federal Register on August
30, 1999 (64 FR 47228).
OPS received only one comment on the EA. It addressed issues
specific to the Trans-Alaska Pipeline System (TAPS) that were outside
the scope of the EA. OPS made a Finding of No Significant Impact based
on the EA published in the Federal Register on October 26, 1999 (64 FR
57694).
Because this final rule makes only administrative and clarification
changes to the response planning regulations, this final rule will not
have a significant impact on the environment. OPS has prepared a
Finding of No Significant Impact and placed it in the public docket.
H. Non-Petroleum Oils
The Edible Oil Regulatory Reform Act (33 U.S.C. 2720) requires that
regulations establishing any interpretation or guideline relating to
the transportation, storage, discharge, release, emission, or disposal
of a fat, oil, or grease under any Federal law must differentiate
between petroleum and non-petroleum oils. This rule does not
differentiate between petroleum oils and non-petroleum oils because OPS
is not aware of any onshore transportation-related pipelines
transporting non-petroleum oils. Should OPS learn of such pipelines,
OPS will amend the rule to differentiate between petroleum and non-
petroleum oils.
List of Subjects in 49 CFR Part 194
Environmental protection, Hazardous materials transportation, Oil
pollution, Petroleum, Pipeline safety, Pipelines, Reporting and
recordkeeping requirements, Transportation, Water pollution control.
0
Accordingly, the interim rule amending 49 CFR part 194 which was
published at 58 FR 244 on January 5, 1993, is adopted as a final rule
with the following amendments:
PART 194--RESPONSE PLANS FOR ONSHORE OIL PIPELINES
0
1. The authority citation for part 194 continues to read as follows:
Authority: 33 U.S.C. 1231, 1321(j)(1)(C), (j)(5), and (j)(6);
sec. 2, E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; 49 CFR
1.53.
0
2. Amend Sec. 194.5 by removing the definitions of Coastal zone,
Inland area, Inland zone, and Response area and revising the definition
of Adverse weather to read as follows:
Sec. 194.5 Definitions.
Adverse weather means the weather conditions that the operator will
consider when identifying response systems and equipment to be deployed
in accordance with a response plan. Factors to consider include ice
conditions, temperature ranges, weather-related visibility, significant
wave height as specified in 33 CFR Part 154, Appendix C, Table 1, and
currents within the areas in which those systems or equipment are
intended to function.
* * * * *
0
3. Revise Sec. 194.7 to read as follows:
[[Page 8747]]
Sec. 194.7 Operating restrictions and interim operating
authorization.
(a) An operator of a pipeline for which a response plan is required
under Sec. 194.101, may not handle, store, or transport oil in that
pipeline unless the operator has submitted a response plan meeting the
requirements of this part.
(b) An operator must operate its onshore pipeline facilities in
accordance with the applicable response plan.
(c) The operator of a pipeline line section described in Sec.
194.103(c), may continue to operate the pipeline for two years after
the date of submission of a response plan, pending approval or
disapproval of that plan, only if the operator has submitted the
certification required by Sec. 194.119(e).
0
4. Amend Sec. 194.101 by revising paragraph (a) to read as follows:
Sec. 194.101 Operators required to submit plans.
(a) Except as provided in paragraph (b) of this section, unless OPS
grants a request from an Federal On-Scene Coordinator (FOSC) to require
an operator of a pipeline in paragraph (b) to submit a response plan,
each operator of an onshore pipeline facility shall prepare and submit
a response plan to PHMSA as provided in Sec. 194.119. A pipeline which
does not meet the criteria for significant and substantial harm as
defined in Sec. 194.103(c) and is not eligible for an exception under
Sec. 194.101(b), can be expected to cause substantial harm. Operators
of substantial harm pipeline facilities must prepare and submit plans
to PHMSA for review.
* * * * *
0
5. Amend Sec. 194.105 by adding a new paragraph (b)(4) and a table to
read as follows:
Sec. 194.105 Worst case discharge.
* * * * *
(b) * * *
(4) Operators may claim prevention credits for breakout tank
secondary containment and other specific spill prevention measures as
follows:
------------------------------------------------------------------------
Credit
Prevention measure Standard (percent)
------------------------------------------------------------------------
Secondary containment >100%... NFPA 30.................... 50
Built/repaired to API API RP 620/650/653......... 10
standards.
Overfill protection standards. API RP 2350................ 10
Testing/cathodic protection... API RP 650/651/653......... 5
Maximum allowable credit...... ........................... 75
------------------------------------------------------------------------
0
6. Revise Sec. 194.107 to read as follows:
Sec. 194.107 General response plan requirements.
(a) Each response plan must include procedures and a list of
resources for responding, to the maximum extent practicable, to a worst
case discharge and to a substantial threat of such a discharge. The
``substantial threat'' term is equivalent to abnormal operations
outlined in 49 CFR 195.402(d). To comply with this requirement, an
operator can incorporate by reference into the response plan the
appropriate procedures from its manual for operations, maintenance, and
emergencies, which is prepared in compliance with 49 CFR 195.402.
(b) An operator must certify in the response plan that it reviewed
the NCP and each applicable ACP and that its response plan is
consistent with the NCP and each applicable ACP as follows:
(1) As a minimum to be consistent with the NCP a facility response
plan must:
(i) Demonstrate an operator's clear understanding of the function
of the Federal response structure, including procedures to notify the
National Response Center reflecting the relationship between the
operator's response organization's role and the Federal On Scene
Coordinator's role in pollution response;
(ii) Establish provisions to ensure the protection of safety at the
response site; and
(iii) Identify the procedures to obtain any required Federal and
State permissions for using alternative response strategies such as in-
situ burning and dispersants as provided for in the applicable ACPs;
and
(2) As a minimum, to be consistent with the applicable ACP the plan
must:
(i) Address the removal of a worst case discharge and the
mitigation or prevention of a substantial threat of a worst case
discharge;
(ii) Identify environmentally and economically sensitive areas;
(iii) Describe the responsibilities of the operator and of Federal,
State and local agencies in removing a discharge and in mitigating or
preventing a substantial threat of a discharge; and
(iv) Establish the procedures for obtaining an expedited decision
on use of dispersants or other chemicals.
(c) Each response plan must include:
(1) A core plan consisting of--
(i) An information summary as required in Sec. 194.113,
(ii) Immediate notification procedures,
(iii) Spill detection and mitigation procedures,
(iv) The name, address, and telephone number of the oil spill
response organization, if appropriate,
(v) Response activities and response resources,
(vi) Names and telephone numbers of Federal, State and local
agencies which the operator expects to have pollution control
responsibilities or support,
(vii) Training procedures,
(viii) Equipment testing,
(ix) Drill program--an operator will satisfy the requirement for a
drill program by following the National Preparedness for Response
Exercise Program (PREP) guidelines. An operator choosing not to follow
PREP guidelines must have a drill program that is equivalent to PREP.
The operator must describe the drill program in the response plan and
OPS will determine if the program is equivalent to PREP.
(x) Plan review and update procedures;
(2) An appendix for each response zone that includes the
information required in paragraph (c)(1)(i)-(ix) of this section and
the worst case discharge calculations that are specific to that
response zone. An operator submitting a response plan for a single
response zone does not need to have a core plan and a response zone
appendix. The operator of a single response zone onshore pipeline shall
have a single summary in the plan that contains the required
information in Sec. 194.113.7; and
(3) A description of the operator's response management system
including the functional areas of finance, logistics, operations,
planning, and command. The plan must demonstrate that the operator's
response management system uses common terminology and has a manageable
span of control, a clearly defined chain of command, and sufficient
trained personnel to fill each position.
[[Page 8748]]
0
7. Amend Sec. 194.109 by revising paragraph (b)(2) to read as follows:
Sec. 194.109 Submission of State response plans.
* * * * *
(b) * * *
(2) List the names or titles and 24-hour telephone numbers of the
qualified individual(s) and at least one alternate qualified
individual(s); and
* * * * *
0
8. Amend Sec. 194.111 by revising paragraph (a) to read as follows:
Sec. 194.111 Response plan retention.
(a) Each operator shall maintain relevant portions of its response
plan at the operator's headquarters and at other locations from which
response activities may be conducted, for example, in field offices,
supervisors' vehicles, or spill response trailers.
* * * * *
0
9. Amend Sec. 194.113 by revising paragraph (b)(2) to read as follows:
Sec. 194.113 Information summary.
* * * * *
(b) * * *
(2) The names or titles and 24-hour telephone numbers of the
qualified individual(s) and at least one alternate qualified
individual(s);
* * * * *
0
10. Amend Sec. 194.119 by revising paragraphs (a), (d), (e) and (f) to
read as follows:
Sec. 194.119 Submission and approval procedures.
(a) Each operator shall submit two copies of the response plan
required by this part. Copies of the response plan shall be submitted
to: Pipeline Response Plans Officer, Pipeline and Hazadous Material
Safety Administraion, Department of Transportation, 400 Seventh Street,
SW., Washington, DC 20590-0001. Note: Submission of plans in electronic
format is preferred.
* * * * *
(d) For response zones of pipelines described in Sec. 194.103(c)
OPS will approve the response plan if OPS determines that the response
plan meets all requirements of this part. OPS may consult with the U.S.
Environmental Protection Agency (EPA) or the U.S. Coast Guard (USCG) if
a Federal on-scene coordinator (FOSC) has concerns about the operator's
ability to respond to a worst case discharge.
(e) If OPS has not approved a response plan for a pipeline
described in Sec. 194.103(c), the operator may submit a certification
to OPS that the operator has obtained, through contract or other
approved means, the necessary personnel and equipment to respond, to
the maximum extent practicable, to a worst case discharge or a
substantial threat of such a discharge. The certificate must be signed
by the qualified individual or an appropriate corporate officer.
(f) If OPS receives a request from a FOSC to review a response
plan, OPS may require an operator to give a copy of the response plan
to the FOSC. OPS may consider FOSC comments on response techniques,
protecting fish, wildlife and sensitive environments, and on
consistency with the ACP. OPS remains the approving authority for the
response plan.
0
11. Amend Sec. 194.121 by revising paragraph (a) to read as follows:
Sec. 194.121 Response plan review and update procedures.
(a) Each operator shall update its response plan to address new or
different operating conditions or information. In addition, each
operator shall review its response plan in full at least every 5 years
from the date of the last submission or the last approval as follows:
(1) For substantial harm plans, an operator shall resubmit its
response plan to OPS every 5 years from the last submission date.
(2) For significant and substantial harm plans, an operator shall
resubmit every 5 years from the last approval date.
* * * * *
0
12. Amend Appendix A to Part 194 by revising the introductory paragraph
to read as follows:
Appendix A to Part 194--Guidelines for the Preparation of Response
Plans
This appendix provides a recommended format for the preparation
and submission of the response plans required by 49 CFR Part 194.
Operators are referenced to the most current version of the guidance
documents listed below. Although these documents contain guidance to
assist in preparing response plans, their use is not mandatory:
(1) The ``National Preparedness for Response Exercise Program
(PREP) Guidelines'' (PREP), which can be found using the search
function on the USCG's PREP Web page, http://www.uscg.mil;
(2) The National Response Team's ``Integrated Contingency Plan
Guidance,'' which can be found using the search function at the
National Response Center's Web site, http://www.nrt.org and;
(3) 33 CFR Part 154, Appendix C, ``Guidelines for Determining
and Evaluating Required Response Resources for Facility Response
Plans.''
* * * * *
Issued in Washington, DC, on February 14, 2005.
Samuel G. Bonasso,
Deputy Administrator.
[FR Doc. 05-3257 Filed 2-22-05; 8:45 am]
BILLING CODE 4910-60-P