Friday, April 26, 2019

S 1097 Introduced – Gas Pipeline Safety

Earlier this month Sen. Markey (D,MA) introduced S 1097, the Leonel Rondon Pipeline Safety Act. The bill would make amendments to gas distribution pipeline safety rules. Leonel Rondon was a teenager killed in the 2018 Merrimack Valley gas explosions. That incident is the impetus for the introduction of this legislation.

Distribution Integrity Management Plans

Section 2 of the bill would amend 49 USC 60109(e), Distribution Integrity Management Programs. The new sub-paragraph (7) would require the Secretary of Transportation within one year of adoption of this legislation to issue new regulations that would modify the requirements for distribution integrity management plan developed by operators of a distribution pipeline. The new language would require the evaluation of {new §60109(e)(7)(A)}:

The risks resulting from the presence of cast iron pipes and mains in the distribution system; and
The risks that could lead to or result from the operation of a distribution pipeline above the maximum allowable operating pressure.

This section would also require covered operators to submit to regulators within 180 days of the enactment of this bill {new §60109(e)(7)(C)}:

The distribution integrity management plan of the operator;
The emergency response plan under section 192.615 of title 49 CFR; and
The procedural manual for operations, maintenance, and emergencies under section 192.605 of title 49 CFR.

The Secretary would also be required to promulgate regulations that would ensure that authorized State Regulating Authorities have the capabilities to review and evaluate the documents required to be submitted by this section.

Emergency Response Plans

Section 3 of the bill would amend 49 USC 60102 by adding a new paragraph (q). It would require the Secretary to amend the emergency response plan requirements of 49 CFR 192.615 by adding requirements for written procedures for {new §60102(q)}:

Establishing communication with fire, police, and other relevant public officials as soon as practicable, but not later than 30 minutes, after a gas pipeline emergency;
Establishing public communication as soon as practicable and in consultation with fire, police, and other public officials after a gas pipeline emergency; and
The development and implementation of a voluntary, opt-in system that would allow operators of distribution pipelines to rapidly communicate with customers in the event of an emergency.

Operations and Maintenance Manuals

Section 4 of the bill would also amend §60102 by adding a new paragraph (r). This new paragraph would require the amendment of 49 CFR 192.605 to include requirements that the procedure manuals required by that paragraph include written procedures for {new §192.605(r)}:

Responding to over pressurization alarms, including a clear timeline and order of operations for shutting down portions of the gas distribution system, if necessary; and
A detailed procedure for a management of change process, which shall be applied to all changes to the distribution system, and which shall ensure that relevant employees of an operator of a distribution pipeline review construction documents for accuracy, completeness, and correctness.

Pipeline Safety Management Systems

Section 5 of the bill would further amend §60102 with another new paragraph (s). This would require regulations establishing requirements for distribution  pipeline operators to develop and implement a pipeline safety management systems framework in accordance with Recommended Practice 1173 of the American Petroleum Institute. Copies of the framework would be submitted to regulators. Regulators would then be required to evaluate the documents to ensure that {new §60102(s)(4)}:

Those frameworks are effective and complete; and
Operators of distribution pipelines are in compliance with those frameworks.

The use of 3rd party auditors to conduct the required evaluations would be authorized by this bill.

Pipeline Safety Practices

Section 6 of the bill would finally add a new paragraph (t) to §60102. This would also require the Secretary to prepare new regulations to:

Add new record keeping requirements;
Require a licensed professional engineer to approve work plans required under 49 CFR 192.801(b);
Include in those work plans a requirement to “monitor gas pressure and have the capability to shut down the flow of gas at a district regulator station during any construction project that has the potential to cause a hazardous over-pressurization at that station” {new §60102(t)(3)(A)};
Require gas line distribution operators to ensure that {new §60102(t)(4)(A)}:
There is no possibility for a common mode of failure in the regulator technology of the station that could lead to an operating pressure that is greater than the maximum allowable operating pressure;
The station has monitoring technology that provides constant awareness of gas pressure at the station; and
The station has additional pressure-relieving safety technology, such as a relief valve or automatic shutoff valve, as appropriate for the configuration and siting of the station.
Promote sufficient staffing for monitoring and regulating gas pressure levels by each operator of a distribution pipeline.

Civil Penalties

Section 7 of the bill amends 49 USC 60122(a)(1) increasing civil penalty limits for both per violation and total amount for a related series of violations of 49 USC 60114(b) and (d) (One-call notification system requirements) and §60118(a) (safety standards and integrity management program mandate). The minimum per violation – per day penalty limit would be increased from $200 thousand to $20 million and the penalty limit for a related series of violations would be increased from $2 million to $200 million.

Moving Forward

Markey and one of this two cosponsors {Sen. Blumenthal (D,CT)} are both influential members of the Senate Commerce, Science, and Transportation Committee. Generally, this is sufficient to make it likely that the bill would be considered in Committee. Unfortunately, the fine increases in §7 of the bill will almost certainly cause the Republican committee leadership to ignore this bill and I suspect that the Republican members of the Committee would quickly fall in line to oppose this bill if it were brought before the Committee.


Some of the changes to 49 USC proposed in this legislation directly address recommendations made by the National Transportation Safety Board (NTSB) in their interim Safety Recommendation Report on the Merrimack Valley incident. The NTSB report targets their recommendations at the Commonwealth of Massachusetts NiSource, Inc, rather than at the gas pipeline industry in general. Markey’s bill would make the recommended changes across the gas transmission pipeline industry. Whether or not that is regulatory overreach remains to be seen. It would be interesting to see what congressional hearings on the topic revealed.

One of the problems with knee-jerk legislative-responses to very visible tragic industrial accidents is that there are frequently unintended consequences of well-meaning legislative-requirements. It is usually difficult to predict those unintended consequences, but there is one in this bill that could potentially be far reaching. In the new §60122(t)(4)(A)(i) the bill requires new DOT regulations to ensure that “there is no possibility for a common mode of failure in the regulator technology of the station that could lead to an operating pressure that is greater than the maximum allowable operating pressure”. One very real ‘common mode of failure in regulatory technology’ would be a cyberattack on the industrial control system that controlled the pipeline pressure. Since we have seen that even automated safety systems are potentially subject to cyber-attack, the ‘no-possibility’ standard would require a fully-analog safety system. While such systems are also subject to failure, they generally would be unaffected by the ‘common mode failure’ due to cyber-attack.

While I would certainly argue that the reasonable regulation of cybersecurity for gas transmission pipelines would be a good thing, such regulations should be carefully considered and well thought out by both regulators and the system operators. A backdoor cybersecurity requirement in a knee-jerk response to mainly analog system incident certainly does not meet that standard.

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