Title 49-TRANSPORTATION

Chapter I-Hazardous Materials Regulations Board, Department of Transportation

[Amdt. 192-6; Docket No. OPS-3E] PART 192--TRANSPORTATION OF NATURAL AND OTHER GAS BY PIPELINE: MINIMUM FEDERAL SAFETY STANDARDS

Odorization of Gas in Transmission Lines

The purpose of this amendment is to extend, from January 1, 1972, to September 1, 1972, the latest date until which the interim minimum Federal safety standards applying to gas odorization may be kept in effect in those States now requiring the odorization of gas in transmission lines.

On November 6, 1970, the Department issued Amendment 192-2, revising paragraph (a) of § 192.625 of Title 49 of the Code of Federal Regulations and adding a new paragraph (g) to that section (35 FR. 17335, November 11, 1970). This amendment kept the interim standards applying to odorization in effect, in those States whose interim standards required the odorization of gas in transinission lines, until January 1, 1972, or the date upon which the distribution companies odorize gas in accordance with paragraphs (a) through (1) of 192.625, whichever occurred earlier.

In the preamble to Amendment 192-2, the Department stated that it " wishes to determine how many distribution companies in those States will be affected by the elimination of the requirement, the extent of the additional action that must be undertaken by them, the length of time it will take them to assume these new functions, and the costs. It also desires to make a more thorough evaluation of the safety benefits of transmission line odorization."

Accordingly, the problem was studied by the Department during the year 1971. However, the information received conflicts in many respects with the information submitted as a result of the original notice of proposed rule making on

192.625 (35 F.R. 5482, April 2, 1970) and the informal public hearing that was heid on September 17, 1970. This is pur-. ticularly true with regard to the characteristics of various odorants, such as CO:Tosiveness, durability in soil, etc. The Department has not yet arrived at acceptable answers regarding the effect of

these characteristics on the use of odorants in transmission lines, and their contribution to safety in densely populated areas. Consequently, it has become apparent that there is a need for additional study before the interim standards are revoked in those States requiring odorization in transmission lines.

In order to allow sufficient time for the resolution of these problems, the interim standards for odorization of gas transmission lines, in each State now requiring that odorization, will be extended until September 1, 1972, or until the date upon which the distribution companies in that State have actually taken over the odorization of gas in mains and service lines in accordance with the requirements of 192.625, whichever is earlier. Until that time, gas in transmission lines must continue to be odorized in those States. The additional 9 months should allow sufficient time to resolve the conflicting information that has been developed during the study.

Although section 3 of the Natural Gas Pipeline Safety Act of 1968 provides that no State agency may adopt or continue in force additional or more stringent standards applicable to interstate transmission facilitics after the Federal safety standards become effective, the Federal standards are minimum standards and an operator may voluntarily exceed them. Thus, after September 1, 1972 (or the earlier date, if applicable), in those States where transmission companies are equipped to odorize their lines, and actually do so at the present time, they may continue to do so, even in the absence of Federal requirements.

Since the regulatory provisions that are affected by this amendment are in effect, and since this amendment will impose no additional burden on any person, I find that notice and public procedure thereon are impractical and unnecessary and that good cause exists for making it effective on less than 30 days notice.

In consideration of the foregoing. § 192.625 of Title 49 of the Code of Federal Regulations is amended by revising subparagraph (g) (1) to read as follows:

Title 49-TRANSPORTATION Chapter - Hazardous Materials Regulations Board, Department of Transportation

PART

OF

(Docket No. OPS-2] 191-TRANSPORTATION NATURAL AND OTHER GAS BY PIPELINE: REPORTS OF LEAKS

Office of Pipeline Safety; Leak

Reporting Requirements

This regulation establishes requirements for the reporting of natural gas pipeline leaks and test failures by operators of transmission and distribution systems and by operators of gathering systems located in populated areas. This regulation supersedes all accident reporting requirements contained in the Interim Minimura Federal Safety Standards for the Transportation of Natural and Other Gas by Pipeline, as set forth in Part 190 of this chapter.

The substance of this regulation was Issued as a notice of proposed rule making on July 8, 1969 (Notice 69-1, 33 F.R. 11979). The public was also provided with copies of the forms that the Department proposed for submitting the prescribed reports. In response to these proposals, over 200 comments were submitted. All have been carefully considered and many have resulted in changes that should improve the usefulness of the regulation and the forms.

In addition to considering the comments submitted by the general public, the Department has consulted with the Technical Pipeline Safety Standards Committee established under the Natural Gas Pipeline Safety Act of 1968 with respect to both the proposed regulations and the forms. Their advice and comments have resulted in a number of beneficial changes.

A number of comments expressed the opinion that, due to the broad statement of nonapplicability in § 5(a) of the Natural Gas Pipeline Safety Act (hereinafter referred to as "the Act"), the receipt of a State certification under that section precludes the Secretary from requiring direct reports of accidents or incidents that occur on the intrastate pipeline facilities to which the certification applies. As was indicated in the preamble to the notice proposing these rules, the

Department considers that detailed information about the causes of pipeline accidents or incidents is essential for the development of a rational regulatory program. Notwithstanding the broad language of section 5(a) of the Act, the Secretary has a continuing responsibility for establishing new and amended standards for intrastate pipeline facilities and, where necessary, for issuing orders to abate hazardous conditions discovered therein. In order to properly discharge these responsibilities, the Secretary must have the detailed information that will be provided by this reporting system and the Department believes that there is sufficient authority to support these reporting requirements.

A number of comments indicated that there was some misunderstanding as to the purpose of the required reports. Many persons felt that all reports concerning intrastate facilities covered by a certification under section 5(a) of the Act should be sent to the State agency concerned since that Agency, and not the Secretary is responsible for enforcement. Others felt that only leaks that caused injury or property damage should be reported. In view of these and other similar comments, a restatement of the purpose of this regulation appears warranted.

The preamble to the notice of proposed rulemaking stated that "the first task is to marshal detailed information about the causes of leaks]." Thus, the primary purpose of this regulation is to provide for the accumulation of factual data that will give the Department a sound statistical base with which to define safety problems, determine their underlying causes, and propose regulatory solutions. For this purpose, an accident or leak does not become less significant because no one was injured or the damage was minimal. Nor does the existence of a regulatory violation or lack thereof have any bearing upon the statistical impact of a particular mishap. If reports were limited to instances such as these, the data base would be much narrower and therefore less likely to suggest appropriate regulatory solutions.

Another aspect of the reporting requirements that received significant attention in the comments was the question of confidentiality of the reports. Several comments requested that reports be classified as confidential and not be made available to the general public, because of the possibility they might be used "for other purposes which could be detrimental to their interests." Concern was expressed that information might be quoted out of context, distorting the truth, and presenting an

erroneous

image of a particular reporting company. It was further urged that confidentiality was required "to protect against unwarranted claims and nuisance litigation,"

since the required reports could include questions, the answers to which might be "self-incriminating in the event of future litigation." In this connection it was also claimed that questions relating to the value of property owned by others and damaged by pipeline accidents, are not pertinent to the cause of the incidents, and might expose the reporting company to unnecessary litigation, or at least place it at a disadvantage in contesting claims for damage. It was accordingly requested that if the reports are not kept confidential, the section concerning property damage be rewritten so as to require the submission of estimated damage to the property "of the company and others," rather than "of the company or others." This last request has to some extent been accepted as is indicated below in the discussion of changes to these forms.

These arguments are all necessarily speculative. On consideration and analysis of all of these comments, they do not contain any argument that is substantial enough to require that the reports be kept confidential.

It is the policy of the Department of Transportation to make information available to the public to the greatest extent possible in keeping with the spirit of the Freedom of Information Act (5 U.S.C. 552). In the light of the statute, a refusal to permit public access to accident reports would be contrary to sound public policy. The public interest is better served by not keeping such reports confidential.

The only statutory exceptions to the basic requirement of disclosure are set out in section 552(b). None of these exceptions provides confidentiality for the reports under consideration here. Section 552(b) (4) excepts "trade secrets and commercial or financial information obtained from a person and privileged or confidential." However, the legislative history indicates that this exception refers to instances where privileged information (not required by law, and that would not customarily be released to the public) is voluntarily furnished and received in confidence. Examples are commercial or financial information submitted with loan applications, or information voluntarily given to the Government in confidence for the purpose of compiling statistics which are then published in the aggregate.

Moreover, in promulgating the regulations by which the Department implemented the Freedom of Information Act (49 CFR Part 7), the Secretary announced that "the policy of the Department will be to make all information available to the public except that which must not be disclosed in the national interest, to protect the right of an individual to personal privacy, or to insure the effective conduct of public business. To

this end, the [regulation) provides that information will be made available to the public even if it falls within one of the exemptions set forth in section 552(b), unless the release of that information would be inconsistent with the purpose of the exemption" (32 FR. 9284 (1967)).

The exemption of documents from mandatory public disclosure merely authorizes the Secretary to withhold them, it does not compel him to do so.

Section 7.51 of the regulations provides that, even though a record is exempt from public inspection, nevertheless the Department will release it, "unless it determines that the release of that record would be inconsistent with a purpose of" the particular exemption.

There is nothing in the Natural Gas Pipeline Safety Act of 1968 which overrides the basic policy embodied in the Freedom of Information Act favoring disclosure of public records. On the contrary, the specific provision in section 12 (d) of the Natural Gas Pipeline Safety Act that "information (which) contains or relates to a trade secret referred to in section 1905 of title 18 of the United States Code shall be considered confidential for the purpose of that Section," suggests that Congress chose not to prevent disclosure of other information obtained by the Government under the Act.

The policy statement of the Department of Transportation regarding the Office of Pipeline Safety, states that the Office, in administering the Natural Gas Pipeline Safety Act of 1968, will "act as a clearing house of safety information, systematically distributing safety information acquired from government and industry research and development programs and from industry operating experience." It is further stated that the general public will have ample opportunity to participate in the identification and definition of safety problems, and that "while we may deal on a daily basis with representatives of the affected industry, we recognize that it is our duty to ensure that the interests of the unorganized general public are served."

Finally, it must be pointed out that accident reports are not protected from disclosure for any other mode of transportation in the Department. The availability of these reports does not appear to have caused any great difficulty to the other transportation industries, and no reason is apparent for a different treatment of gas pipeline accident reports.

A number of comments stated that leak reports with regard to intrastate pipeline facilities should be made only to the State regulatory agencies because these agencies were better equipped to deal with these essentially local safety problems. While the State agencies have a major legitimate interest in these reports and should receive them if they so desire, nonetheless the Secretary must also have full access to this information to be able to carry out his responsibilities

under the Act. The collection and compilation of these statistics on a nationwide basis gives them much greater validity and value than those which would be assembled by each individual State. Consequently, for the reasons discussed above, the general requirement for making reports directly to the Secretary is retained. However, 191.7 has been modified to permit, under certain conditions, the submission of reports relating to intrastate facilities that are the subject of a State certification under section 5(a) of the Act, directly to a State agency rather than to the Secretary. This may be done if the regulations under which that agency operates require submission in duplicate to the State and provide for further transmittal of one copy to the Department, within 10 days for leak reports and not later than February 15th for annual reports While not specifically set forth in the regulation, under this change each State will also have the option of requiring that only one copy of each report relating to pipeline facilities under its jurisdiction be sent to the State, in which case the requirement for direct reporting to the Secretary would remain.

A discussion of each section of the regulation follows with respect to some of the more significant comments and changes that have been made.

191.1. Beveral comments pointed out that the scope of the proposed rules appeared to go beyond the authority contained in the Act. Therefore, 191.1 has been modified to conform to the limits stated in the Act by excluding gathering lines outside of certain specified areas.

191.3. In response to several comments, the term "system failure" and the various gradations of leaks have been removed from the definitions. In their place, the scope provisions in section 191.1 have been restated to limit the applicability of the regulation to leaks that would have been included in the proposed definition as "Grade 1" and "Grade 2" leaks and to exclude therefrom the leaks that would have been defined as "Grade 3" leaks. It appears that an adequate statistical base can be obtained by requiring the reporting of only the more significant leaks that require immediate or scheduled repair. Certain leaks will require telephonic notice as specified in section 191.5. These and other leaks must also be individually reported in accordance with criteria set forth in sections 191.9 and 191.15. These criteria replace the different gradations of leaks that were proposed.

In response to the request in the preamble to the notice of proposed rule making, a number of suggestions were made as to definitions for transmission lines of a distribution system and for transmission, gathering, and distribution systems. It appears that these terms are fairly well understood throughout the industry, and there should be no need to prescribe precise definitions at this time. If any difficulties arise, the

Department will examine the facts in each situation and will establish definitions as they are needed. Those lines of distribution systems that must be rer ported as a transmission system are clearly delineated by the criteria set forth in section 191.13.

The definition of "system" has been changed slightly to make it clear that service lines and customers' meters are included in that term.

A number of other definitions have been added to section 191.3. The terms "gas," "municipality." "person," "pipeline facilities," "Secretary," "State," and "transportation of gas" are included as they are defined in the Act with minor changes to conform to the purpose, language, and style of this regulation. As requested by comments, definitions of the terms "operator" and "test failure" are also included. An "operator" is defined as any person (as person is defined in section 191.3) who engages in the transportation of gas. "Test failure" is defined to include only breaks or ruptures of such magnitude that repair is required before continuation of the test. This limited definition, which encompasses testing with gas, air, or water, is intended to reduce the number of reports required due to failures during testing.

191.5. This section has not been changed significantly. Some comments requested the option of reporting by telegraph in any case in which the person reporting is not able to reach the correct person by telephone. However, this problem will not arise since the published phone number will be manned 24 hours a day, 7 days a week.

The term "failure" was used uniformly in the proposal to describe the incident to be reported, and many comments requested that this be changed to either accident, incident, or leak. As stated above in conjunction with the changes in definitions, the scope of the regulation has been restated to clearly delineate the leaks to which it applies.

Some comments suggested the deletion of certain of the criteria for making these reports. The five stated categories are virtually identical to those developed by the Federal Power Commission for telephonic reports of accidents. The experience of the Commission indicates that these types of incidents are of sufficient magnitude to require immediate notification in order that the Department may investigate the incident and take any action that may be necessary to protect persons or property.

PEDERAL REGISTER, VOL 35, NO. S

-THURSDAY, JANUARY 8, 1970

191.9. Individual leak reports under this section will not be required from distribution companies providing service to less than 100,000 customers. Studies by the Department indicate that approximately 28 percent of the total number of distribution companies have over 100,000 customers. This group of larger companies services over 85 percent of the total number of gas customers in the United States. Requiring reports only from this group of companies will furnish a statistically valid sample and will significantly lessen the reporting burden on smaller companies who are least able to bear it.

Several comments suggested that the -information on this report for distribution companies could be summarized and submitted annually or semiannually. This reporting requirement is designed to elicit information that might be the basis for prompt regulatory action or for the issuance of an order requiring immediate steps to remove a hazardous condition. A delay of 6 months or a year in receiving this information would significantly reduce the value of this information and make it unusable for most of these purposes.

Many comments also urged a longer reporting period. For the reasons discussed above and also to facilitate any investigations that may appear to be necessary, the 20-day reporting period has been retained. The forms make it clear that if certain information is not available the incomplete report should be submitted indicating this unavailability. When the information becomes available, a supplemental report will be submitted. This in effect permits operators to take as much time as is reasonably necessary to assemble all of the information while still assuring the Department of early receipt of the first written report.

$191.11. A number of comments on this section and § 191.17 requested a later reporting date for the annual report, varying from March 15 to April 15. The Department is required to submit its annual report to Congress on March 17th and in order to allow adequate time to compile the data from these annual reports for inclusion in the Departmental report, a reporting date of February 15th is necessary. However, to allow operators more time to organize their internal reporting and information systems so as to be able to meet the February 15th deadline, the first annual report will not be required until 1971 for calendar year 1970. This will also satisfy a number of comments that indicated that assembling the cumulative information for 1969 would be very difficult due to the time that has passed since most of the incidents occurred.

191.13. As discussed above, a large number of suggestions were made as to classifying "transmission lines of a distribution system". This section sets forth the two basic criteria that have been selected for this purpose. Reports involving pipeline facilities that operate at 20 percent or more of specified minimum yield strength (8MYS) or that are used to

convey gas into or out of storage, are to be submitted in accordance with the requirements for transmission systems as specified in §§ 191.15 and 191.17.

191.15. This section now contains the requirements both for leaks occurring during normal operations and for test failures. Both will be reported on the same form, thereby reducing the number of different forms for these operators from three to two.

The form prescribed by this section has been developed in coordination with the Feleral Power Commission so as to require most of the information presently required on their accident reports. The Commission is preparing to amend its regulations to eliminate all duplicative reporting requirements. When this is completed, it is expected that the Commission will require that copies of certain of the Department of Transportation reports be submitted to it.

$191.17. The requirements for annual reports for transmission or gathering systems has been reworded slightly. The discussion with respect to 191.11 applies to this section as well.

191.19. This new section has been added to notify interested persons as to where copies of the prescribed forms may be obtained. It also provides that other formats may be used if acceptable to the Secretary. This will permit submission of reports in machine record form when the Department develops its statistical systems sufficiently to accommodate information in this form.

Forms. The comments on the proposed forms were very detailed and very helpful in making necessary revisions. The forms have been reorganized and reworded so as to eliminate redundant and unnecessary questions and to present the remaining questions more precisely.

Several comments objected to the requirements for reporting the pH of soil and soil resistivity. These items have been retained in the forms for reporting on corrosion caused leaks because they give environmental information needed for the determination and evaluation of corrosion control measures and because they are easily obtained. However, the requirement for reporting soil resistivity has been modified to require reporting of the most recent soil resistivity measurement in the area of the leak instead of requiring an actual test to be made at the leak site upon discovery of the leak. The requirement is stated so that if a soil resistivity measurement is not available then it will not be necessary to obtain one.

Several objections were made to requiring a report of "Unaccounted for gas". It is recognized that this information is not precise and that care must be taken in its use. Nevertheless, it is believed that this information should be obtained and studied so that it can be determined whether there is a connection between loss of gas and accidents.

Due to the time required to prepare, print, and distribute an adequate supply of the forms for public use, the printed forms may not be available at the time this regulation becomes effective. In that

event, a small supply of temporary forms will be distributed for use until receipt of the permanent printed forms. These temporary forms may be reproduced by any company if additional copies are needed in the interim period.

In consideration of the foregoing and for the reasons discussed in the preamble to Notice 69-1, Title 49 of the Code of Federal Regulations is amended by adding a new Part 191 to read as set forth below, effective February 9, 1970.

Issued in Washington, D.C., on December 31, 1969.

W. C. JENNINGS, Acting Director, Ofice of Pipeline Safety. OF

PART 191-TRANSPORTATION NATURAL AND OTHER GAS BY PIPELINE; REPORTS OF LEAKS

(a) This part prescribes requirements for the reporting of gas leaks that are not intended by the operator and that require immediate or scheduled repair and of test failures, by persons engaged in the transportation of gas. However, it does not apply to leaks and test failures that occur in the gathering of gas outside of the following areas:

(1) An area within the limits of any incorporated or unincorporated city, town, or village; or

(2) Any designated 'residential or commercial area such as a subdivision, business or shopping center, or community development.

(b) The reporting requirements in this part supersede any accident or leak reporting requirements that were incorporated by reference in the Interim Minimum Federal Safety Standards in Part 190 of this chapter.

191.3 Definitions.

As used in this part and in the DOT Forms referenced in this part

"Gas" means natural gas, flammable gas, or gas which is toxic or corrosive; "Municipality" means a city, county, or any other political subdivision of a State; "Operator" means a person who engages in the transportation of gas:

"Person" means any individual, firm, Joint venture, partnership, corporation, association, State, municipality, coopera