SECTION 3.106. Sour Gas Pipeline Facility Construction Permit

(a) Definitions. The following words and terms when used in this section shall have the following meanings, unless the context clearly indicates otherwise.

(1) Affected person--The owner or occupant of real property located in the area of influence of the proposed route of a sour gas pipeline facility. If the final proposed route of the pipeline is unknown at the time of application, then an affected person is any person who owns or occupies real property located within the area of influence associated with any possible pipeline route identified by the applicant. For purposes of this definition, the owner shall be the owner of record as of the final day to protest an application. The occupant shall be the occupant as of the final day to protest an application.

(2) Applicant--A person who has filed an application for a permit to construct a sour gas pipeline facility, or a representative of that person.

(3) Application--Application for a Permit to Construct a Sour Gas Pipeline Facility, and all required attachments.

(4) Area of influence--Area along a sour gas pipeline facility represented by all possible areas of exposure using the 100 ppm radius.

(5) Construction of a facility--Any activity conducted during the initial construction of a pipeline including the removal of earth, vegetation, or obstructions along the proposed pipeline right-of-way. The term does not include:

(A) surveying or acquiring the right-of-way;

(B) clearing the right-of-way with the consent of the owner;

(C) repairing or maintaining an existing sour gas pipeline facility; or

(D) installing valves or meters or other devices or fabrications on an existing pipeline if such devices or fabrication do not result in an increase in the area of influence.

(6) Extension of a sour gas pipeline facility--An addition to an operating sour gas pipeline facility regardless of ownership of the addition.

(7) Nominal pipe size--The industry convention for naming pipe. Six inch nominal size pipe corresponds to pipe with an approximate inner diameter of six inches. The actual inner diameter varies based on the wall thickness of the pipe.

(8) Person--An individual, partnership, firm, corporation, joint venture, trust, association, or any other business entity, a state agency or institution, county, municipality, school district, or other governmental subdivision.

(9) Preliminary contingency plan--A contingency plan containing all of the elements required for a contingency plan under §3.36 of this title (relating to oil, gas, or geothermal resource operation in hydrogen sulfide areas), except that:

(A) the plan need not contain the list of names and telephone numbers of residents within the area of influence if required under §3.36(c)(9)(I) of this section. In lieu of this list of names and telephone numbers, the plan shall contain a detailed explanation of the manner in which the names and telephone numbers of residents within the area of influence will be compiled prior to commencement of operations;

(B) the plat detailing the area of influence may be:

(i) the detailed plat required under §3.36(c)(9)(H);

(ii) a plat containing the information required under §3.36(c)(9)(H), that identifies residential, business, and industrial areas with an estimate of the number of people that may be within any such areas; or

(iii) one or more aerial photographs covering the area and providing the information required under §3.36(c)(9)(H); and

(C) a fixed pipeline route need not be specified in the preliminary plan provided the preliminary plan identifies the boundaries of the area within which the pipeline will be constructed and provided that all public notices of the application required under this section note such boundaries and identify the potential area of influence as the total area encompassed by the area of influence associated with all possible pipeline routes.

(10) Sour gas pipeline facility--A pipeline and ancillary equipment that:

(A) contains a concentration of 100 parts per million or more of hydrogen sulfide;

(B) is located outside the tract of production; and

(C) is subject to the requirements of §3.36 of this title.

(11) Tract of production--The surface area which overlies the area encompassed by a mineral lease or unit from which oil, gas, or other minerals are produced if such area is treated by the Oil and Gas Division of the commission as a single tract.

(12) 100 ppm radius--The 100 parts per million radius of exposure as calculated in §3.36(c)(1) - (3) of this title (relating to oil, gas, or geothermal resource operation in hydrogen sulfide areas) for the sour gas pipeline facility.

(b) Permit Required; Exceptions. No person may commence construction of a facility within this State without a permit if the facility is initially used as a sour gas pipeline facility except for the following:

(1) an extension of an existing sour gas pipeline facility that at the time of construction of the extension is in compliance with §3.36 of this title (relating to oil, gas, or geothermal resource operation in a hydrogen sulfide area) if:

(A) the extension is not longer than five miles;

(B) the nominal pipe size is not larger than six inches; and

(C) the operator causes to be delivered to the Safety Division written notice of construction of the extension not later than 24 hours before the start of construction;

(2) a new gathering system that operates at a working pressure of less than 50 pounds per square inch gauge;

(3) an extension of a gathering system which operates at a working pressure of less than 50 pounds per square inch gauge;

(4) an interstate gas pipeline facility, as defined by 49 U.S.C. §60101, that is used for the transportation of sour gas; or

(5) replacement of all or part of a sour gas pipeline facility if the area of influence of the replaced portion of the facility does not increase so as to include a public area, as defined in §3.36(b)(5) of this title, not included in the area of influence of the portion of the replaced sour gas pipeline facility.

(c) Filing and Assignment of Docket Number. Upon filing of an application with the Oil and Gas Division, staff will assign a docket number to the application and will notify the applicant of the assigned docket number. Staff will also assign and provide a docket number to a person who submits a notice of intent to file an application.

(d) Application. A complete application consists of:

(1) a properly completed application Form PS-79, with the original signature, in ink, of the applicant;

(2) if applicant desires notification under subsection (h)(1) by electronic mail, a written request for electronic mail notification and the applicant's electronic mail address;

(3) a plat which meets the requirements of subsection (f)(4) of this section and identifies the boundaries of surveys and blocks or sections as appropriate within the area of influence;

(4) a copy of the applicant's Application for Permit to Operate a Pipeline, Form T-4, if applicable, including all attachments; and

(5) a copy of the completed application for a Statewide Rule 36 Certificate of Compliance, Form H-9, including any attachment required under §3.36 of this title. A preliminary contingency plan may be filed in lieu of a contingency plan if required under §3.36 of this title.

(e) Notice.

(1) For each county that contains all or part of the area of influence of a proposed sour gas pipeline facility, the applicant shall:

(A) cause to be delivered to the county clerk no later than the first date of publication in that county a copy of the items described in subsection (d)(1) - (3) of this section;

(B) publish notice of its application in a newspaper of general circulation in each county that contains all or a portion of the area of influence of the proposed sour gas pipeline facility. Such notice shall meet the requirements of subsection (f) of this section and be published in a section of the newspaper containing news items of state or local interest.

(2) Final action may not be taken on any application under this section until proof of notice, evidenced as follows, is provided:

(A) a return receipt from each county clerk with whom an application form and plat is required to be filed pursuant to paragraph (1) of this subsection; and

(B) the full page or pages of the newspaper containing the published notice required under paragraph (2) of this subsection including the name of the paper, the date the notice was published, and the page number.

(f) The published notice of application shall be at least three inches by five inches in size, exclusive of the plat, and shall contain the following:

(1) the name, business address, and telephone number of the applicant and of the applicant's authorized representative, if any;

(2) a description of the geographic location of the sour gas pipeline facility and the area of influence, to the extent not clearly identified in the plat required to be published in subsection (f)(4) of this section;

(3) the following statement, completed as appropriate: "This proposed pipeline facility will transport sour gas that contains 100 parts per million, or more, of hydrogen sulfide. A copy of application forms and a map showing the location of the pipeline is available for public inspection at the offices of the (insert County name) County Clerk, located at the following address: (insert address of County Clerk). Any owner or occupant of land located within the area of influence of the proposed sour gas pipeline facility desiring to protest this application can do so by mailing or otherwise delivering a letter referring to the application (by docket number if available) and stating their desire to protest to: Docket Services, Office of General Counsel, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967. Protests shall be in writing and received by Docket Services not later than (specify 30th day after the first date notice of the application is to be published). The letter shall include the name, address, and telephone number of every person on whose behalf the protest is filed and shall state the reasons each such person believes that he or she is the owner or occupant of property within the area of influence of the proposed pipeline facility. It is recommended that a copy of this notice be included with the letter."; and

(4) a plat identifying:

(A) the location of the pipeline facility;

(B) area of influence;

(C) north arrow;

(D) scale;

(E) geographic subdivisions appropriate for the scale; and

(F) by inset or otherwise, landmarks or other features such as roads and highways in relation to the proposed route of the sour gas pipeline facility. These landmarks or other features shall be of sufficient detail to allow a person to reasonably ascertain whether an owned or occupied property that is within the area of influence of the proposed sour gas pipeline facility. Examples of acceptable plats are included in this subsection.

Attached Graphic

(g) Protests. Affected persons have standing to file a protest to an application. In the event the final proposed pipeline route is not known at the time of application, any person who owns or occupies real property located within the area of influence identified in the application shall have standing to file a protest to an application. All such protests shall:

(1) be in writing and filed at the commission no later than the 30th day after the notice is published in a newspaper in the county in which the person filing the protest owns or occupies real property;

(2) state the name, address, and telephone number of every person on whose behalf the protest is being filed; and

(3) include a statement of the facts on which the person filing the protest relies to conclude that each person on whose behalf the protest is being filed is an affected person, as defined in subsection (a)(1) of this section.

(h) Division Review.

(1) Within 14 days of receipt of the application, the commission's designee will provide notice to the applicant that the application is either complete and accepted for filing, or incomplete and specify the additional information required for acceptance. Such notice shall be provided in writing by mail or by electronic mail if the applicant submits with the application a written request that communications regarding application completeness or deficiencies be communicated by electronic mail and provides an accurate electronic mail address. The application shall be completed within 30 days of notification that the application is incomplete or such longer time as may be requested by the applicant, in writing, and approved by the commission's designee. If the application is not completed within the specified time period, the commission's designee shall send notice of intent to deny the application to the applicant. Within ten days of issuance of a notice of intent to deny the application for failure to complete the application, the applicant may request a hearing on the application as it exists at that time. If a request for hearing is not filed within ten days of issuance of a notice of intent to deny the application for failure to complete the application, the application shall be dismissed without prejudice by the commission's designee.

(2) The commission's designee shall make a written recommendation as to whether the materials to be used in and method of construction and operation of a proposed sour gas pipeline facility comply with the rules and safety standards of the commission if the application is not protested, by the latter of the 14th day after the end of the 30-day protest period or the 14th day after the day notice of a complete application is issued.

(3) If, pursuant to subsection (i) of this section, a hearing is held, the staff may introduce evidence relating to the materials to be used in and method of construction and operation of a proposed sour gas pipeline facility.

(4) In determining whether or not the materials to be used in and method of construction and operation of a proposed sour gas pipeline facility comply with the rules and safety standards of the commission, relevant provisions of §3.36 and §3.70 of this title (relating to Oil, Gas, or Geothermal Resource Operation in Hydrogen Sulfide Areas, and Pipeline Permits Required, respectively) shall be considered. If applicable, Chapter 8 of this title (relating to Pipeline Safety Regulations) shall also be considered.

(5) If no affected person files a protest with the commission by the 30th day after the date notice of application was published, the commission's designee shall either make a written recommendation that the permit be issued, that the permit be granted subject to specific conditions required to ensure compliance with applicable laws and regulations, or that the permit be denied. If the commission's designee recommends that the permit be conditionally granted or be denied, the reasons for such recommendation shall be explained. If the commission's designee recommends that the application be conditionally granted or be denied, the applicant shall have a right to a hearing upon written request received no later than 15 days after the date of issuance of notice of conditional grant or denial.

(i) Hearing.

(1) A hearing shall be convened to consider an application for a sour gas pipeline construction permit if:

(A) a protest is timely filed by an affected person;

(B) a request is timely filed by the applicant; or

(C) the commission so elects on its own motion.

(2) The Office of General Counsel shall assign an examiner who shall conduct a hearing in accordance with the procedural requirements of Texas Government Code, Chapter 2001 (the Administrative Procedure Act), and Chapter 1 of this title (relating to the general rules of practice and procedure).

(3) The commission shall convene a hearing not later than the 60th day after a protest is filed, the applicant submits a request for hearing, or the commission gives notice of intent to convene a hearing on its own motion. If the application is not complete as of the date the request for hearing is filed or notice of hearing issued, the 60-day time period for convening a hearing shall not begin to run until such time as notice of a complete application is issued unless the hearing is held pursuant to the provisions of subsection (h)(1). If the hearing is held pursuant to the provisions of subsection (h)(1), the hearing will be held within 60 days of receipt of a request for hearing.

(4) In any hearing convened to consider an application, the applicant has the burden of showing that the materials to be used in and method of construction and operation comply with the applicable rules and safety standards adopted by the commission.

(j) Order.

(1) An order approving an application shall include a finding that the materials to be used in and method of construction and operation of the facility comply with the applicable rules and safety standards adopted by the commission. If an application meets all the requirements of §3.70 of this title, relating to Pipeline Permits Required, including the requirements of §3.36 of this title, relating to Oil, Gas, or Geothermal Resource Operation in Hydrogen Sulfide Areas, the order may approve the certificate of compliance (Form H-9) or grant the pipeline permit or both.

(2) An order denying an application shall state the reason or reasons for the denial.

(3) In the case of an application for which a hearing is conducted, the commission will render a decision not later than the 60th day after the date on which the hearing is finally closed.

(4) If no hearing is held on an application, the commission will render a decision as soon as practicable but not later than the 60th day after the staff prepares its written recommendation in accordance with subsection (h)(2) and (4).

Source Note: The provisions of this §3.106 adopted to be effective May 1, 2000, 25 TexReg 3741; amended to be effective November 24, 2004, 29 TexReg 10728