Subject 391-3-23 PETROLEUM PIPELINE EMINENT DOMAIN PERMIT PROCEDURES
The following rule serves to protect Georgia's natural and
environmental resources by requiring permits be issued by the Director with
monitoring conditions prior to any petroleum or petroleum product pipeline
company acquiring property or interests in property by eminent domain. The
rules provide for procedures for administration of O.C.G.A. 22-3-84, governing
the obtaining of the permit provided for in O.C.G.A.
22-3-84(a).
This rule is promulgated to the authority conferred by
O.C.G.A. 22-3-84(b), and pursuant to Chapter 13 of Title 50, the Georgia
Administrative Procedures Act.
| (1) |
`Additional
Surveys' means those surveys performed to gather site specific engineering or
environmental information. Site walk-throughs to support the application for a
Certificate of Public Convenience and Necessity are not additional
surveys. |
| (2) |
`Certificate of Public
Convenience and Necessity' means a determination by the Commissioner, or the
Commissioner's designee, that, pursuant to the provisions of O.C.G.A. 22-3-83,
a pipeline company has demonstrated that there is a public necessity for a
proposed petroleum product pipeline that justifies the use of the power of
eminent domain. |
| (3) |
`Commissioner'
means the Commissioner of the Georgia Department of Transportation. |
| (4) |
`Condemnor' means any person authorized
by the Georgia General Assembly to exercise the power of eminent domain. For
the purpose of these rules, petroleum and petroleum product pipeline companies
are condemnors. |
| (5) |
`Corridor of
Public Utilities' means right of way for electric, telephone, and cable
facilities and pipelines such as natural gas, liquid product, sewer and
water. |
| (6) |
`Director' means the
Director of the Environmental Protection Division of the Georgia Department of
Natural Resources. |
| (7) |
`Division'
means the Environmental Protection Division of the Georgia Department of
Natural Resources. |
| (8) |
`Eminent
Domain' means the power of the State of Georgia, through its regular
organization, and of municipalities, and of private persons or corporations
authorized to exercise functions of public character, to reassert, either
temporarily or permanently, dominion over any portion of the soil of the State
on account of public exigency and for the public good. |
| (9) |
`Environmental Effects Report' means a
report that describes potential adverse effects on the environment, created by
any proposed petroleum or petroleum product pipeline where the use of eminent
domain is being considered. |
| (10) |
`Georgia Environmental Policy Act' means Chapter 16 of Title 12 of the Official
Code of Georgia Annotated. |
| (11) |
`Interest', when referring to land, means any title or nontitle interest other
than fee simple title. |
| (12) |
`Owner'
means any person who, as a matter of public records in the county in which the
land is located, holds title to property located in the path of a pipeline, or
any other person with possession, control, or other property interest in land
in the path of a pipeline. |
| (13) |
`Person' means any corporation, public or private, company, person,
partnership, firm or association. |
| (14) |
`Petroleum Product' means any mixture of
naturally occurring or artificially produced refined hydrocarbons that are
liquid at atmospheric temperatures and pressures. |
| (15) |
`Pipeline' means a pipeline constructed
or to be constructed as a common carrier in interstate or intrastate commerce
for the transportation of petroleum or petroleum products in or through
Georgia. |
| (16) |
`Pipeline Company'
means a corporation organized under the laws of Georgia or which is organized
under the laws of another state and which is specifically authorized by its
charter or articles of incorporation to construct and operate pipelines for the
transportation of petroleum or petroleum products. |
| (17) |
`Pipeline Facility' or `Pipeline
Facilities' means and includes the pipeline and all equipment or facilities,
including lateral lines, essential to the operation of the pipeline but shall
not include any storage tank or storage facility which is not being constructed
as a part of the operation of the pipeline. |
| (18) |
`Professional Engineer' means a person
registered to practice engineering in the State of Georgia in accordance with
Chapter 15 of Title 43 of the Official Code of Georgia Annotated. |
| (19) |
`Professional Geologist' means a person
registered to practice geology in the State of Georgia in accordance with
Chapter 19 of Title 43 of the Official Code of Georgia Annotated. |
| (20) |
`Title' is the means whereby the owner
of land has just possession of his or her property. |
These rules apply only to the procedures for obtaining a
permit provided for in O.C.G.A. 22-384(a).
When a pipeline company, which has obtained a Certificate of
Public Convenience and Necessity from the Commissioner, or the Commissioner's
designee, and has obtained a permit from the Division, is unable to acquire a
property or interest required for such a certified and permitted project after
reasonable negotiation with the owner of such property or interest, the company
may acquire such property or interest by the use of the condemnation procedures
authorized by Chapter 2 of Title 22.
| (1) |
After
obtaining a Certificate of Public Convenience and Necessity, pipeline companies
shall have a right of reasonable access to property proposed or considered as
the site of a pipeline for the purpose of conducting additional surveys of such
property for use in determining the environmental and engineering suitability
of such property for placement of a pipeline. The owner of any property or
property interest, which is entered by a pipeline company for the purpose of
additional surveys, shall have the right to be compensated for any damage to
such property incident to such entry. Any such survey shall be conducted in
such a fashion as to cause minimal damage to the property. |
| (2) |
Such access shall be conditioned on the
pipeline company notifying the owner by personal delivery, telex, facsimile,
express delivery service, or certified mail. The pipeline company shall, if so
requested by the Director, provide receipt records or such other reasonable
information to document that such notification was provided at least 14 days in
advance of the anticipated date of the additional survey(s). The notification
shall include the following:
| (a) |
A
description of proposed additional survey activities. |
| (b) |
A general schedule of the dates of survey
activities. |
| (c) |
A general map
showing the approximate location of proposed activities. |
| (d) |
A description of any soil/water testing;
a description of proposed access to property, including a description of
proposed access to cropland, pasture, forest land, orchards, and livestock
enclosures. |
| (e) |
A description of
proposed measures to prevent property damage; a statement that the pipeline
company shall provide reasonable compensation to the owner for any damages to
the property incident to such survey(s). |
| (f) |
A copy of the Certificate of Public
Convenience and Necessity issued by the Commissioner or the Commissioner's
designee. |
| (g) |
In boldfased type,
the following statement:
CODE SECTIONS
22-3-80 THROUGH
22-3-87 OF THE OFFICIAL CODE OF
GEORGIA ANNOTATED PROVIDE SPECIFIC REQUIREMENTS WHICH MUST BE FOLLOWED BY
PETROLEUM PIPELINE COMPANIES BEFORE THEY MAY EXERCISE THE RIGHT TO CONDEMN YOUR
PROPERTY. THOSE CODE SECTIONS ALSO PROVIDE SPECIFIC RIGHTS FOR YOUR PROTECTION.
YOU SHOULD MAKE YOURSELF FAMILIAR WITH THOSE REQUIREMENTS AND YOUR RIGHTS PRIOR
TO CONTINUING NEGOTIATIONS CONCERNING THE SALE OF YOUR PROPERTY TO A PETROLEUM
PIPELINE COMPANY. |
| (h) |
A
copy of the O.C.G.A. 22-3-80 through 22-3-88 and of these Rules. |
|
| (3) |
In the event after reasonable
efforts have been made to personally locate, identify, or notify an owner, a
pipeline company, for the purposes of obtaining access to property for
survey(s), may provide reasonable public notice. Said reasonable public notice
shall be published in the Atlanta Journal-Constitution and in the legal organ
in the county in which all or part of the property occurs. The public notice
shall identify the proposed pipeline route, the location of the said property,
and the owner's name, if known. Fourteen days after said public notice, the
pipeline company shall have access to the property for additional
surveys. |
| (4) |
Pipeline companies
shall consult with owners and consider reasonable modifications, as suggested
by an owner, to prevent or minimize damage to the owner's property. |
| (1) |
A pipeline company as a condemnor shall,
prior to the exercise of eminent domain, apply for and obtain a permit from the
Director. This permit shall be issued on the basis of a determination by the
Director that the portion of the proposed pipeline, which is the subject of the
application, is consistent with and not an undue hazard to the environment and
natural resources of Georgia. This determination shall address:
| (a) |
Whether the proposed route of such
portion of the pipeline is an environmentally reasonable route. |
| (b) |
Whether other corridors of public
utilities already in existence may reasonably be used for the siting of such
portion of the pipeline. |
| (c) |
The
existence of any local zoning ordinances and that such portion of the project
will comply with those ordinances unless to require such compliance would
impose an unreasonable burden on the project as weighed against the purpose of
such ordinances. |
| (d) |
That ample
opportunity has been afforded for public comment, specifically including but
not limited to comment by the governing body of such municipality or county
within which the proposed project or any part thereof is to be
located. |
| (e) |
Such reasonable
conditions to the permit as will allow the monitoring of the effect of the
petroleum pipeline upon the property subject to eminent domain and the
surrounding environment and natural resources. |
|
| (2) |
Permit applications shall include an
environmental effects report. The environmental effects report to support the
permit application shall:
| (a) |
Include a
description of the proposed project, under consideration for condemnation,
including its route across the property sufficiently adequate to permit the
location of the subject parcel on a United States Geological Survey 1:24,000
topographic quadrangle map. |
| (b) |
Include a copy of the Certificate of Public Convenience and Necessity issued by
the Commissioner or the Commissioner's designee. The copy shall include route
maps and descriptions. |
| (c) |
Include
the location of lands under consideration for condemnation and the names of the
owners of said lands. |
| (d) |
Include
information on other corridors of public utilities. |
| (e) |
Include information on the existence of
any local zoning ordinances and whether or not the pipeline company will comply
with local zoning ordinances. |
| (f) |
Include a proposal, where appropriate, for monitoring the effects of the
petroleum pipeline on the surrounding environment and natural resources,
including but not limited to wetland dewatering, sinkhole inducement, impact on
protected plants and animals, pollutant pathways, and stream siltation. No
proposal is necessary for leak detection or any other monitoring required by
federal regulations. |
| (g) |
Include
information on consultations with owners, described in
391-3-23-.06 (e), listing all
significant disputes and the manner in which they either were settled or
resolved. |
| (h) |
Include copies of any
background data on engineering or environmental studies in the possession of or
used by the pipeline company that are relevant to selecting or developing the
proposed pipeline route and/or preparing the permit application. |
| (i) |
The environmental effects report shall be
generally consistent with the environmental effects report described in the
Division's July 1, 1991 Guidelines for the Georgia Environmental Policy Act.
The environmental effects report shall include an environmental check list
generally equivalent to that in the aforementioned Guidelines. The
environmental effects report shall be prepared under the direction of and shall
be signed and sealed by a professional engineer or a professional
geologist. |
|
| (3) |
The
permit application shall provide documentation that owners whose lands or
titles are being considered for condemnation by eminent domain have been
provided the information described in 391-323-.06 (2) above. |
| (4) |
Within seven days of the receipt of the
application, the Director shall provide for reasonable public notice of the
application and the proposed route. The public notice of the application also
shall make provisions for a public hearing on the application for the permit.
The hearing shall be within sixty days of the date of the public notice of the
application. Any interested person may submit written comments on the proposed
pipeline prior to the date of the public hearing. |
| (5) |
The Director may request reasonable
additional application information from the pipeline company in order to make
the determination to issue a permit. If possible, any such request shall be
within 45 days of the receipt of the application. |
| (6) |
In the event the permit application is
not approved or denied within 120 days of the date of the publication of the
public notice of the application as provided in O.C.G.A. 22-3-84, the
application shall be deemed approved by operation of law and the permit deemed
issued. The permit application information shall be provided to the Division in
a timely manner so that the Director may have up to 120 days to assess the
environmental effects report; to assess other information deemed relevant by
the Director; to hold hearings; and to issue or deny the permit. |
| (7) |
The Director may include reasonable
conditions to the permit as will allow the monitoring of the effect of the
petroleum pipeline on the surrounding environment and natural resources. No
condition will be included involving leak detection monitoring or any other
monitoring required by federal regulations. |
| (8) |
Whenever in the judgement of the Director
any monitoring condition contained in the permit is not being complied with,
the Director may make application to the appropriate superior court for an
order enjoining and restraining such act or practice. |
| (9) |
The Director shall, upon approval or
denial of a permit, specify in writing to the applicant the reasons for the
approval or denial. |
All hearings and appeals on applications and permits required
under this rule shall be conducted in accordance with Chapter 13 of Title 50,
the `Georgia Administrative Procedures Act'. In the event that the final
decision of the Administrative Law Judge is not rendered within 120 days of the
date of filing of a petition of review, the decision of the Director shall be
affirmed by operation of law. Judicial review of the permit approval or denial
shall be governed by O.C.G.A. 12-2-1.
