California Fire Marshall Makes Additional Changes to its Proposed Oil Pipeline Safety Regulations
October 3, 2019
On October 1, 2019, the California Office of State Fire Marshall (“OSFM”) published additional changes to its proposed regulations implementing Best Available Technology (“BAT”) requirements for hazardous liquid pipelines. The proposed regulations, discussed in more detail in our March 2019 Alert implement AB 864, which requires installation of BAT on new and existing hazardous liquid pipelines near environmentally and ecologically sensitive areas (“EESA”) in the Coastal Zone. Comments on the changes currently proposed must be submitted by October 16, 2019.
In this round, OSFM makes minor changes and clarifications to the proposed rule but does not appear to address many of the concerns raised in industry comments such as cost and the aggressive implementation schedule for the rule. For example, existing pipeline operators would still be required to submit a risk analysis and BAT implementation plan by January 2020, less than three months from now, and install BAT by January 2022. The risk analysis and BAT evaluation requires a detailed review of the consequences of potential releases and an evaluation of the latest spill detection and prevention technology.
Several of the changes to the proposed rule are summarized below.
- Five Year Review Cycle – OSFM clarifies that the regulations require review and update of the risk review and BAT analysis every five years. Thus, operators may be required to retrofit pipelines in the future when new technology is developed.
- Deferral for Pipelines Meeting BAT – This version of the proposed rule clarifies that operators of pipelines currently meeting BAT must demonstrate this by submitting a risk analysis and request a deferral of the requirements of the rule. The deferral would require evaluation every five years to confirm that the pipeline continues to meet BAT requirements.
- Exempt Pipelines – Changes to the rule attempt to clarify whether pipelines are subject to the rule and whether those pipelines that are subject to the rule may be exempted. Pipelines that intersect or are “near” (within 1/2 mile) an EESA in the Coastal Zone or an EESA with a connection to the Coastal Zone are presumptively subject to the rule. Operators of pipelines presumptively subject to the rule may request an exemption if the operator can demonstrate that a release will not impact the Coastal Zone portion of an EESA. Pipelines that do not intersect and are not near an EESA in the Coastal Zone or an EESA with a connection to the Coastal Zone are not subject to the rule and are not required to submit an exemption request.
- Pipeline Repairs – The definition of Replacement Pipeline is modified to exclude pipelines that undergo a “significant repair.” OSFM proposes this change to remove confusion over what constitutes a “significant repair.” This change would maintain two categories of pipelines: 1) new and replacement; and 2) existing, including repaired. Both categories would be subject to BAT requirements. OSFM believes this distinction is appropriate as some applications of BAT for new and replacement lines may not be practical for existing lines.
- Pipeline Relocation – OSFM proposes changes to clarify that the relocation of a portion of a pipeline does not make the pipeline a “new or replacement” pipeline, potentially subject to additional BAT requirements (as discussed above). However, it notes that relocation may require a modification of the risk analysis if the relocation results in changes to the volume of oil released or the potential of a release to affect EESA.
- Coastal Zone and EESA Guidance – OSFM adds a reference to a guidance document and data identifying the geographical extent of the Coastal Zone and EESA. The data will be housed electronically on the Emergency Response Management Application (“ERMA”), hosted by NOAA and commonly used by California Department of Fish and Wildlife-Office of Spill Prevention and Response.
- Air Dispersion and Ignition – The proposal adds a requirement that product behavior, air dispersion mechanisms and ignition must be addressed in the risk analysis.
The Initial Statement of Reasons and proposed modifications to the text of the regulation are available here.