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;
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.
Commentary
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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