Articles

WAIVERS OF PIPELINE SAFETY REGULATIONS

By Cesar de Leon, P.E.

The Office of Pipeline Safety in the Research and Special Programs Administration (RSPA), Department of Transportation has not published procedures for waivers of pipeline safety regulations. The following discourse gives some general guidelines that closely follow past RSPA practices in granting waivers. These guidelines are not meant to be the official procedures for issuing waivers of the pipeline safety regulations – the Office of Pipeline Safety should be contacted to get the current official procedures for such waivers.

These waiver procedures are intended for pipeline safety regulations issued under the Pipeline Safety Law (49 U.S.C. 60101 et seq.), previously the Natural Gas Pipeline Safety Act of 1968 and the Hazardous Liquid Pipeline Safety Act of 1979. Any person who owns or operates pipeline facilities subject to the RSPA pipeline safety regulations may petition for a waiver from a pipeline safety regulation or regulations in 49 CFR Parts 191, 192, 193, 195, and 199.

Petitions for waivers from any person who owns or operates pipeline facilities subject to the authority of RSPA, usually interstate pipeline facilities and certain intrastate pipeline facilities, must be submitted to RSPA. Historically, RSPA has required that the waiver petition should concern particular operations or unusual situations. They should not be submitted for general circumstances normally present in pipeline operations. Matters that involve pipeline operations in general should be submitted as petitions for changes in the regulations under 49 CFR Part 106.

The waivers submitted to RSPA should include the name, address, and phone number of the petitioner and the regulation from which the waiver is sought. Other important information should include a description of the pipeline facility, the location of the pipeline facility and a description of the environment in which it operates, and a description of the particular operation for which the waiver is sought. It should include the justification for the waiver, which explains why compliance with the regulation is not appropriate for the particular operation in terms of the public interest, hardship, undue burden, or unusual costs, and accounts for any cost savings claimed to result from the waiver. It is important to note that the petition may address unusual costs, not normal costs, since RSPA has already determined that normal costs associated with following the regulation are justified to protect the public. Also important is to identify any increased risks that the alternative operation would create, and the additional measures that are proposed to compensate for those risks. Finally, the petitioner should explain why the particular operation to be followed would not be inconsistent with pipeline safety.

The Pipeline Safety Law does not have a deadline for RSPA to act on a waiver petition. If RSPA determines that the waiver is justified, a notice is published in the Federal Register, inviting interested persons to comment on the proposed waiver. The Federal Register notice may also provide opportunity for a public hearing. After considering pertinent information including public comments, RSPA finds that the waiver of the safety standard is not inconsistent with pipeline safety, a notice granting the waiver and reasons for the grant of waiver is published in the Federal Register. If RSPA determines that the petitioner’s proposal is not justified, the petition is denied and a letter stating the reasons for the denial advises the petitioner. If a Federal Register notice preceded the denial, a notice of the denial is published in the Federal Register, giving the reasons for the denial. The grant of the waiver may be subject to such terms and conditions as determined by RSPA.

The Pipeline Safety Law permits State agencies that have submitted certifications or entered into certain agreements with RSPA to grant waivers from the Federal pipeline safety standards for intrastate pipeline facilities, subject to the approval of RSPA. Waivers of State agency intrastate pipeline regulations that do not effect Federal regulations may not require RSPA approval. Petitions sought from State agencies must follow the appropriate waiver procedures of the State agency. Petitions for intrastate facilities not under State agency authority pursuant to certification or agreement are to be filed with RSPA. While the State agency does not have any deadline set by the Pipeline Safety Law to act on the petition for State waiver, there may be time limits set by the State agency waiver procedures.

If the State agency grants a waiver, the State agency must obtain approval of the grant of waiver from RSPA. A waiver granted by a State agency may not become effective until at least 60 days after RSPA receives the notice, unless RSPA has no objection to the waiver and so notifies the State agency. If RSPA takes no action, the State agency waiver takes effect 60 days after RSPA receives the notice. If RSPA objects in writing to the waiver before it is to become effective, the grant of the waiver is stayed. The State agency can be afforded an opportunity to present its case for waiver, including a hearing if requested.

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