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Interpretation Response #PI-76-071 ([Arkansas Public Service Commission] [Anthony Creston])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date:

Company Name: Arkansas Public Service Commission

Individual Name: Anthony Creston

Location State: AK Country: US

View the Interpretation Document

Response text:

November 2, 1976

Mr. Anthony Creston
Chief, Pipeline Safety
Arkansas Public Service Commission
Justice Building
Little Rock, Arkansas 72201

Dear Mr. Creston:

This refers to your letter dated September 3, 1976, transmitting the Commission's Order issued on September 1, 1976, granting all operators in the State of Arkansas an extension of the August 1, 1976, deadline for compliance with 49 CFR 192.457(b) until August 1, 1977.

Although your letter indicates the Commission does not intend the Order to be a waiver from a Federal standard, since the Order was forwarded to us pursuant to Sec. 3(e) of the Natural Gas Pipeline Safety Act of 1968 (the Act), and it has the effect of setting a compliance deadline different from the deadline in Section 192.457(b), we are considering the matter as a request for waiver under Sec. 3(e) of the Act. The matter has been assigned OPSO Docket No. ARK-76-2. As discussed hereafter, we object to the Commission's action because it goes beyond the authority of the Commission under Sec. 3(e) and is not in accord with the certification made by the Commission pursuant to Sec. 5(a) of the Act.

While Sec. 3(e) authorizes a State agency to grant a waiver from a Federal standard upon application by any person, this authority only applies to those particular situations where a Federal standard is not appropriate. The Commission's Order purportedly applies to all operators subject to the Commission's jurisdiction. This broad action is inconsistent with the concept and meaning of a waiver.

Rather, we consider the Commission's action to constitute rulemaking of general applicability. Under Sec. 3(b) of the Act, the Commission lacks the authority to adopt rules of general
applicability with respect to intrastate facilities that are incompatible with the minimum Federal standards. As rulemaking, the Commission's action is patently incompatible with 49 CFR
192.457(b) and is therefore prohibited by the Act.

Additionally, the Commission, by issuing the September 1 Order, places itself in a position of being inconsistent with its existing certification under Sec. 5(a) of the Act that it "has adopted each Federal safety standard...and is enforcing each such standard...."

Further, even if the Commission's action were within the authority of Sec. 3(e) of the Act, we would still object to that action. As stated above, the power to grant waivers under Sec. 3(e) is intended only for those particular situations where a Federal pipeline safety standard of general applicability is not appropriate.

The Commission, in support of its Order, has not presented any cogent reasons to show why Section 192.457(b) is inappropriate in particular situations.

Accordingly, under Section 3(e) of the Natural Gas Pipeline Safety Act of 1968 (49 USC 1672(e)), the Commission's action is hereby stayed. The Commission within 60 days from the
date of this letter may appeal this decision in writing and request an opportunity for hearing.

Although under Sec. 3(e) of the Act, the Commission may not "grant" an extension of time to comply with an applicable standard without following the statutory waiver process, the Commission may nonetheless, in exercising its discretionary enforcement powers, consider an operator's compliance effort and other relevant factors in deciding whether a penalty should be assessed in a particular situation.

Sincerely,

Cesar DeLeon
Acting Director
Office of Pipeline
Safety Operations

Regulation Sections

Section Subject
192.457 External corrosion control: Buried or submerged pipelines installed before August 1, 1971