[Code of Federal Regulations]
[Title 49, Volume 3]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR190.233]

[Page 15-17]
 
                        TITLE 49--TRANSPORTATION
 
 CHAPTER I--RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION, DEPARTMENT OF 
                       TRANSPORTATION (CONTINUED)
 
PART 190_PIPELINE SAFETY PROGRAMS AND RULEMAKING PROCEDURES--Table of Contents
 
                          Subpart B_Enforcement
 
Sec. 190.233  Hazardous facility orders.

    (a) Except as provided by paragraph (b) of this section, if the 
Associate Administrator, OPS finds, after reasonable notice and 
opportunity for hearing in accord with paragraph (c) of this section, 
and Sec. 190.211(a), a particular pipeline facility to be hazardous to 
life or property, the Associate Administrator, OPS shall issue an order 
pursuant to this section requiring the owner or operator of the facility 
to take corrective action. Corrective action may

[[Page 16]]

include suspended or restricted use of the facility, physical 
inspection, testing, repair, replacement, or other action, as 
appropriate.
    (b) The Associate Administrator, OPS may waive the requirement for 
notice and hearing under paragraph (a) of this section before issuing an 
order pursuant to this section when the Associate Administrator, OPS 
determines that the failure to do so would result in the likelihood of 
serious harm to life or property. However, the Associate Administrator, 
OPS shall include in the order an opportunity for hearing as soon as 
practicable after issuance of the order. The provisions of paragraph 
(c)(2) of this section apply to an owner or operator's decision to 
exercise such an opportunity for hearing. The purpose of such a post-
order hearing is for the Associate Administrator, OPS to determine 
whether the order should remain in effect or be rescinded or suspended 
in accord with paragraph (g) of this section.
    (c) Notice and hearing:
    (1) Written notice that OPS intends to issue an order under this 
section shall be served in accordance with Sec. 190.5, upon the owner 
or operator of an alleged hazardous facility. The notice shall allege 
the existence of a hazardous facility, stating the facts and 
circumstances supporting the issuance of a ``hazardous facility order'', 
and providing the owner or operator an opportunity for a hearing, 
identifying the time and location of the hearing.
    (2) An owner or operator elects to exercise his opportunity for a 
hearing under this section, by notifying the Associate Administrator, 
OPS of that election in writing within 10 days of service of the notice 
provided under paragraph (c)(1) of this section or, under paragraph (b) 
of this section when applicable. Absence of such written notification 
waives an owner or operator's opportunity for a hearing and allows the 
Associate Administrator, OPS to proceed to issue a ``hazardous facility 
order'' in accordance with paragraphs (d) through (h) of this section.
    (3) A hearing under this section shall be presided over by an 
attorney from the Office of Chief Counsel, Research and Special Programs 
Administration, acting as Presiding Official, and conducted without 
strict adherence to rules of evidence. The Presiding Official presents 
the allegations contained in the notice issued under this section. The 
owner or operator of the alleged hazardous facility may submit any 
relevant information or materials, call witnesses and present arguments 
on the issue of whether or not a ``hazardous facility order'' should be 
issued.
    (4) Within 48 hours after conclusion of a hearing under this 
section, the Presiding Official shall submit a recommendation to the 
Associate Administrator, OPS as to whether or not a ``hazardous facility 
order'' is required. Upon receipt of the recommendation, the Associate 
Administrator, OPS shall proceed in accordance with paragraphs (d) 
through (h) of this section. If the Associate Administrator, OPS finds 
the facility to be hazardous to life or property the Associate 
Administrator, OPS shall issue an order in accordance with this section. 
If the Associate Administrator, OPS does not find the facility to be 
hazardous to life or property, the Associate Administrator, OPS shall 
dismiss the allegations contained in the notice, and promptly notify the 
owner or operator in writing by service as prescribed in Sec. 190.5.
    (d) The Associate Administrator, OPS may find a pipeline facility to 
be hazardous under paragraph (a) of this section:
    (1) If under the facts and circumstances the Associate 
Administrator, OPS determines the particular facility is hazardous to 
life or property; or
    (2) If the pipeline facility or a component thereof has been 
constructed or operated with any equipment, material, or technique which 
the Associate Administrator, OPS determines is hazardous to life or 
property, unless the operator involved demonstrates to the satisfaction 
of the Associate Administrator, OPS that, under the particular facts and 
circumstances involved, such equipment, material, or technique is not 
hazardous to life or property.
    (e) In making a determination under paragraph (d) of this section, 
the Associate Administrator, OPS shall consider, if relevant:

[[Page 17]]

    (1) The characteristics of the pipe and other equipment used in the 
pipeline facility involved, including its age, manufacturer, physical 
properties (including its resistance to corrosion and deterioration), 
and the method of its manufacture, construction or assembly;
    (2) The nature of the materials transported by such facility 
(including their corrosive and deteriorative qualities), the sequence in 
which such materials are transported, and the pressure required for such 
transportation;
    (3) The aspects of the areas in which the pipeline facility is 
located, in particular the climatic and geologic conditions (including 
soil characteristics) associated with such areas, and the population 
density and population and growth patterns of such areas;
    (4) Any recommendation of the National Transportation Safety Board 
issued in connection with any investigation conducted by the Board; and
    (5) Such other factors as the Associate Administrator, OPS may 
consider appropriate.
    (f) The order shall contain the following information:
    (1) A finding that the pipeline facility is hazardous to life or 
property.
    (2) The relevant facts which form the basis for that finding.
    (3) The legal basis for the order.
    (4) The nature and description of particular corrective action 
required of the respondent.
    (5) The date by which the required action must be taken, or 
completed and, where appropriate, the duration of the order.
    (6) If a hearing has been waived pursuant to paragraph (b) of this 
section, a statement that an opportunity for a hearing is provided at a 
particular location and at a certain time after issuance of the order.
    (g) The Associate Administrator, OPS shall rescind or suspend a 
hazardous facility order whenever the Associate Administrator, OPS 
determines that the facility is no longer hazardous to life or property. 
When appropriate, however, such a rescission or suspension may be 
accompanied by a notice of probable violation issued under Sec. 
190.207.
    (h) At any time after an order issued under this section has become 
effective, the Associate Administrator, OPS may request the Attorney 
General to bring an action for appropriate relief in accordance with 
Sec. 190.235.
    (i) Upon petition by the Attorney General, the District Courts of 
the United States shall have jurisdiction, to enforce orders issued 
under this section by appropriate means.

[45 FR 20413, Mar. 17, 1980, as amended by Amdt. 190-3, 56 FR 31090, 
July 9, 1991; Amdt. 190-6, 61 FR 18515, Apr. 26, 1996]