The Railroad Commission of Texas adopts new §8.315, relating to Hazardous Liquids and Carbon Dioxide Pipelines or Pipeline Facilities Located Within 1,000 Feet of a Public School Building or Facility, with changes to the version published in the July 25, 2003, issue of the Texas Register (28 TexReg 5720).

The Commission adopts new §8.315 to implement Texas Natural Resources Code, §117.012, as amended by House Bill (HB) 1931, 78th Legislature, Regular Session (2003). The Commission had previously published proposed new §8.310, relating to hazardous liquids and carbon dioxide pipelines public education and liaison, in the March 14, 2003, issue of the Texas Register (28 TexReg 2170), based on the version of Texas Natural Resources Code, §117.012, enacted by Senate Bill (SB) 310, 77th Legislature, 2001. As originally enacted, that provision set forth specific requirements for the Commission's rules under which owners and operators of hazardous liquids and carbon dioxide pipelines and pipeline facilities located within 1,000 feet of a public school building or facility were to interact with public school officials regarding emergency response plans. Those requirements were changed significantly by HB 1931; therefore, the Commission did not adopt the provisions in new §8.310, which was adopted effective July 28, 2003 (28 TexReg 5864), and instead proposed this new rule.

New §8.315(a) requires owners or operators of each intrastate hazardous liquids pipeline or pipeline facility and each intrastate carbon dioxide pipeline or pipeline facility to comply with this section, in addition to complying with the requirements of new §8.310, relating to hazardous liquids and carbon dioxide pipelines public education and liaison.

New §8.315(b) provides that this section applies to each owner or operator of a hazardous liquid or carbon dioxide pipeline or pipeline facility any part of which is located within 1,000 feet of a public school building containing classrooms, or within 1,000 feet of any other public school facility where students congregate.

New §8.315(c) requires each pipeline owner and operator to which this section applies to identify, for each pipeline or pipeline facility, any part of which is located within 1,000 feet of a public school building containing classrooms, or within 1,000 feet of any other public school facility where students congregate, the name of the school, the street address of the public school building or other public school facility, and the identification (system name) of the pipeline. This information must be filed with the Commission's Pipeline/Rail/LP-Gas Safety Division. In a change from the proposed version, the Commission has added an initial filing deadline of January 15, 2005, and a requirement that updated information be filed every two years thereafter. This change is explained more fully in the paragraphs addressing the comments the Commission received.

New §8.315(d) requires each pipeline owner and operator to which this section applies to take certain actions. Upon written request from a school district, the pipeline owner or operator must provide in writing the following parts of a pipeline emergency response plan that are relevant to the school: a description and map of the pipeline facilities that are within 1,000 feet of the school building or facility; a list of any product transported in the segment of the pipeline that is within 1,000 feet of the school facility; the designated emergency number for the pipeline facility operator; information on the state's excavation one-call system; and information on how to recognize, report, and respond to a product release. The owner or operator must also mail a copy of the requested items by certified mail, return receipt requested, to the superintendent of the school district in which the school building or facility is located.

New §8.315(e) requires a pipeline operator or the operator's representative to appear at a regularly scheduled meeting of the school board to explain the items listed in subsection (c) if requested by the school board or school district.

Finally, new §8.315(f) requires each owner or operator to maintain records documenting compliance with the requirements of the section. Records of attendance and acknowledgment of receipt by the school board or school district superintendent must be retained for five years from the date of the event commemorated by the record. Records of certified mail transmissions undertaken in compliance with this section satisfy the record-keeping requirements of this subsection.

The Commission received four comments on the proposed new section, two of which were from associations. The associations neither supported nor opposed the proposed rule in its entirety, but disagreed with and suggested changes to specific provisions in the rule.

Koch Pipeline Company, L.P. (Koch) commented in support of the legislative intent of HB 1931 to facilitate the communication of emergency response plans with public school districts whose facilities are located within 1,000 feet of an intrastate hazardous liquid or carbon dioxide pipeline, but expressed concern about the practicality of implementing the identification of some public school facilities. Koch stated that it has a defined, on-going program to provide pipeline safety information to the general public, to excavators, and to public response government agencies. The program includes the annual distribution of pipeline safety brochures, including mailings to schools located near Koch liquid pipelines and pipeline facilities; the delivery of pipeline maps to emergency responders; the development and delivery of an emergency response guidebook; periodic face-to-face contacts with key public liaison officials; and the participation in public meetings regarding pipeline awareness and pipeline safety.

In particular, Koch commented that the requirement in §8.315(c) for operators to identify any public school facility other than classrooms where students congregate could prove problematic for public school districts and operators since no accurate identification methods exist today. Therefore Koch suggested that, in order to ensure more accurate identification and notifications, the rule be amended to allow pipeline operators to notify the affected district superintendent of the probability that the operator has pipelines or pipeline facilities near other public school facilities where students congregate.

The Commission declines to include the suggested language, for two reasons. First, Texas Natural Resources Code, §117.012(k), as amended by HB 1931, does not give the Commission specific authority to prescribe the method by which pipeline operators identify the location of other school facilities where students congregate, nor is there an explicit requirement that pipeline operators engage in any specific effort to do so. There is, however, an implicit requirement that pipeline operators undertake such an effort, because to comply with a school district's written request for information, the operator must know where the school building or other facility is located vis-a-vis the pipeline or pipeline facilities.

The Commission disagrees with Koch that as an alternative to subsection (c), the rule should be amended to allow a pipeline operator to notify the affected school district superintendent of the probability that the operator has a pipeline or pipeline facilities near other public school facilities where students congregate because this appears to be inconsistent with the statutory amendments enacted by HB 1931, specifically, the requirement in Texas Natural Resources Code, §117.012(k)(1)(A), which reads:

(k) The commission by rule shall require the owner or operator of each intrastate hazardous liquid or carbon dioxide pipeline facility any part of which is located within 1,000 feet of a public school building containing classrooms, or within 1,000 feet of another public school facility where students congregate, to:

(1) on written request from the school district, provide in writing the following parts of a pipeline emergency response plan that are relevant to the school:

(A) a description and map of the pipeline facilities that are within 1,000 feet of the school building or facility;

(B) a list of any product transported in the segment of the pipeline that is within 1,000 feet of the school facility; . . . [and]

(E) information on how to recognize, report, and respond to a product release; . . .

The legislature has directed the Commission to require, by rule, that pipeline operators provide certain specific information to a school district. Giving notice of only a probability of such pipeline proximity deprives school districts of their ability to assess the risks associated with the specific product transported in the segment of the pipeline that is within 1,000 feet of the school facility and to effectively utilize information, required to be provided by the pipeline operator, about how to recognize, report, and respond to a product release. For example, procedures for reporting and handling leak situations may be different for a school building than for a football stadium.

Second, because there is more than one way by which pipeline operators can identify other school facilities where students congregate, the Commission declines to include language in new §8.315 that would appear either to mandate or express preference for any particular methodology or to imply that if a pipeline operator has used a method suggested by the rule that it has necessarily met its obligation under the statute.

The Commission appreciates but disagrees with Koch's concern about the practicality of implementing the identification of some public school facilities within 1,000 feet of its intrastate liquid pipeline and pipeline facilities. Koch's comments describe the method--notifying affected school district superintendent that it is likely that Koch has pipelines and/or pipeline facilities near other school facilities where students congregate--that it believes will provide the most accurate information. Other pipeline operators may or may not agree with or use Koch's approach. For example, in many communities, the locations of other school facilities where students congregate are commonly known by the general public, are often available on school districts' web sites or on an individual school's web site, and are certainly available in other public records. The pipeline companies know where their pipelines and pipeline facilities are located. Using the general information about school facilities' locations and its own pipeline maps, some operators might be able to determine whether any school facilities might be within 1,000 feet of that operator's pipelines or pipeline facilities. If, upon closer review, the pipeline operator determines that its pipelines or pipeline facilities are within the specified distance, then the address of that school building or facility is reportable to the Commission and, upon written request from that school district, the operator would be obliged to provide the specific information required by the statute and listed in §8.315(d).

By not including any reference to the methodology by which pipeline operators identify other school facilities where students congregate, pipeline operators are free to pursue any approach that is reasonable, cost-effective, and accurate with respect to the particularities of the location and operating characteristics of its pipeline and or pipeline facilities. In addition, as Koch's comments state, these efforts are necessarily continuing. As the population of the state increases and more school facilities are built, pipeline operators will be under a continuing obligation to identify school buildings containing classrooms and other school facilities where students congregate that are within 1,000 feet of the operators' pipelines and/or pipeline facilities. Reporting to the Commission the information listed in subsection (c) makes it possible for a school district to determine the system name of any pipeline within 1,000 feet of a school building or facility simply by calling the Commission. School districts are familiar with the Commission's Pipeline Safety Program because of the school piping inspection requirements. Without the reporting requirement in subsection (c), school districts would have the right to obtain specific information from the pipeline operator, but might not know which pipeline to contact. The Commission receives similar information about natural gas pipelines pursuant to Commission rule §8.235, and it serves the public interest for the Commission to be a repository of information about both natural gas and hazardous liquids pipelines that are within 1,000 feet of public school buildings or other public school facilities where students congregate.

Koch also commented that §8.315 does not specify the frequency by which operators must provide school identifications to the Commission and suggested that this information should be provided once every two years. Koch cited API Recommended Practice 1162, Public Awareness Programs for Pipeline Operators, dated August 23, 2003, as recommending a two-year baseline frequency of communications with the Affected Public--Places of Congregation audience for both transmission and gathering pipelines.

The Commission agrees with Koch's comment that the rule should specify an initial filing deadline as well as an interval for providing updated information. Consistent with Koch's suggestion, the Commission has added language to §8.315(c) to require the submission of school facility location data every two years beginning January 2005. This additional time should allow all pipeline operators to adequately conduct any inquiries or surveys necessary to identify all school facilities located within 1,000 feet of their pipelines and will be consistent with current recommended safety practices.

The Commission has clarified subsection (c)(2) by adding language that specifically requires providing the address of school buildings containing classrooms and other public school facilities where students congregate that are within 1,000 feet of an intrastate hazardous liquids or carbon dioxide pipeline or pipeline facilities. For instance, a school district facility where students congregate, other than a building containing classrooms, might not be adjacent to a school building. In that circumstance, the address of the school district facility would be reported in addition to that of any school building or buildings within the specified distance.

TXU Fuel Company (TXU Fuel) commented that it agrees with the proposed rule as it addresses the requirement of HB 1931 and agreed with adoption of the rule as it was proposed. The Commission agrees with TXU Fuel.

The Texas Pipeline Association (TPA) filed a comment concerning §8.315(c). Similar to the Koch comments, TPA stated that some pipeline operators might need to create a new database for identification of school facilities within 1,000 feet of pipelines. TPA stated that pipeline operators might have to walk or drive each pipeline right-of-way to locate and identify the facilities, which would take a substantial amount of time, especially in large metropolitan areas. TPA suggested the addition of the following language to subsection (c): "The information will be supplied to the Pipeline Safety Section within 60 days of the adoption of this rule if that information is in the possession of the pipeline operator. If the pipeline operator does not have the data on hand but must obtain it and compile the report, that report must be filed with the Pipeline Safety Section within 12 months of the date of the adoption of this rule."

For the reasons given following the Koch comments, the Commission has made changes to §8.315(c) to allow additional time, more than requested, to prepare the initial identification of school buildings or facilities within 1,000 feet of pipelines.

The Texas Oil & Gas Association (TXOGA) filed comments similar to those of Koch and TPA. TXOGA requested 180 days to comply with the initial identification of school facilities within 1,000 feet of pipelines. As stated, the Commission has modified §8.315(c) to require the first data submission in January 2005 and updates every two years thereafter.

TXOGA also opposed the requirement that pipelines submit emergency response plans to the Commission's Pipeline Safety Section. The rule does not require the submission of emergency response plans to the Commission; rather the rule requires that an operator, if requested to do so in writing by the school district, provide to a school superintendent a copy of the specific elements of the emergency response plan that are relevant to a school.

TXOGA also commented regarding the need for the schools and the pipeline operators to work together to get the most effective message regarding recognizing, reporting, and responding to a pipeline emergency to the schools identified by this rule. The Commission agrees with TXOGA's comment. The Commission's record of schools located within 1,000 feet of hazardous liquids pipelines will aide in the education and awareness programs required by HB 1931 and will allow school districts to efficiently obtain and effectively use the information they are statutorily entitled to receive.

The Commission adopts one other change in subsection (c). Since the publication of the proposed rule, the Commission has undergone a reorganization and there is no longer a Pipeline Safety Section of the Gas Services Division. Therefore, the Commission adopts the wording in subsection (c) to refer to the Safety Division, which reflects the new organizational structure.

The Commission adopts new §8.315 pursuant to Texas Natural Resources Code, §117.011, which gives the Commission jurisdiction over all pipeline transportation of hazardous liquids or carbon dioxide and over all hazardous liquid or carbon dioxide pipeline facilities as provided by 49 U.S.C. §60101, et seq.; §117.012(a), which requires the Commission to adopt rules that include safety standards for and practices applicable to the intrastate transportation of hazardous liquids or carbon dioxide by pipeline and intrastate hazardous liquid or carbon dioxide pipeline facilities; §117.012(k), as amended by HB 1931, 78th Legislature, Regular Session (2003), which directs the Commission to adopt rules regarding public education and awareness concerning hazardous liquid or carbon dioxide pipeline facilities and community liaison for the purpose of responding to an emergency concerning a hazardous liquid or carbon dioxide pipeline facility and mandates that the Commission require operators of hazardous liquids or carbon dioxide pipelines or pipeline facilities to conduct liaison activities with fire, police, and other appropriate public emergency response officials by meetings in person except as otherwise provided by §117.012, and requires that the Commission adopt rules that require the owner or operator of each intrastate hazardous liquid or carbon dioxide pipeline facility any part of which is located within 1,000 feet of a public school building containing classrooms, or within 1,000 feet of another public school facility where students congregate, to provide specified emergency response information to school officials upon request; and §117.013, which requires each owner or operator of a pipeline engaged in the transportation of hazardous liquids or carbon dioxide within this state to make reports and provide any information the commission may require under the jurisdiction granted by the Hazardous Liquid Pipeline Safety Act of 1979 (Pub. L. No. 96-129) and Texas Natural Resources Code, Chapter 117.

Statutory authority: Texas Natural Resources Code, §§117.011 - 117.013.

Cross-reference to statute: Texas Natural Resources Code, §§117.011 - 117.013.

Issued in Austin, Texas, on November 13, 2003.