Senate Amends and Passes S 275 – Pipeline Safety

Yesterday the Senate passed S 275, the Pipeline Transportation Safety Improvement Act of 2011. Two amendments to the reported language; one administrative and one substantive; along with the bill were all adopted by unanimous consent with no debate.

New Regulations Required

The substantive amendment offered by Sen. Paul (R,KY) adjusted some dates in the sections 26 thru 29 reflecting the fact that it is already FY 2012 and 2011 is nearly over. More importantly a new sub-section was added that would require the Secretary to “prescribe regulations for conducting tests to confirm the material strength of previously untested natural gas transmission pipelines located in areas identified pursuant to section 60109(a) of title 49, United States Code, and operating at a pressure greater than 30 percent of specified minimum yield strength” {§27(d)}.

Section 27 had already required operators to conduct such testing but there had been no provisions for the establishment of regulations specifying how that testing should be conducted. This addition corrects that shortcoming.

Moving Forward

The Senate was the first to get their pipeline safety bill passed so it will be their language that probably gets ignored in the other house. The House will probably take up this bill fairly quickly and substitute language already adopted by committee for the language in this bill. In this case that will probably be HR 2937 that was passed by the House Energy and Commerce Committee on September 21^st (Note: the committee report on that bill has yet to be published).

Other Bills are Now Dead

With the Senate taking up this bill S 234, the Strengthening Pipeline Safety and Enforcement Act of 2011, has essentially been killed. While not nearly identical to S 275 the two bills overlap enough that there would endless confusion if it was considered and passed. The fate of S 1502 is not nearly so clear. That bill specifically addresses pipelines and river crossings and could still receive consideration. Actually, I’m surprised that its language wasn’t offered as an amendment to this bill. Since it is slightly more controversial than S 275 the Senate leadership may have wanted to avoid having a combined bill that might require debate and amendment.

S 1502 Introduced – Pipelines and Rivers

Last week Sen. Baucus (D, MT) and Sen. Tester (D, MT) introduced S 1502, the Clean Rivers Act of 2011. Clearly written in response to the recent Exxon oil pipeline spill on the Yellowstone River, this bill addresses, among other pipeline safety measures, the perceived problems that many believe lead to that recent spill.

Pipeline River Crossings Report

The bill would require the Pipeline and Hazardous Materials Safety Administration (PHMSA) to conduct a study of the adequacy of Federal regulations with respect “to pipelines regulated by the Administration that cross inland bodies of water with a width of at least 100 feet from high water mark to high water mark”{§3(a)(1)}. The bill would require the study to look at factors related to the depth of cover requirements, inspections during flood events, how Integrity Management Plans address river flooding and the emergency order authority of PHMSA to address unsafe conditions posing ‘an imminent hazard’.

The report would be conducted, in consultation with a bunch of government agencies including regional, State, tribal and ‘local entities (including conservation district councils), within 180 days passage of this bill. The report would then be presented to Congress within an additional 30 days. The findings would then be incorporated in PHMSA regulations within 1 year of the report submission. All in all it is a very steep and practically unrealistic schedule.

Public Information

PHMSA would be required to maintain on a publicly available web site their newly required (in this bill) database about pipeline water crossings. Additional information included on a PHMSA web site (presumably the same web site) would be a slew of national statistics about pipeline status and inspections.

PHMSA would also be required to post their web site summaries of all hazardous liquid response plans required by Part 194 of 49 CFR. In addition to listing what would be required on that site, the bill lists a number of items that may be (but is not required to be) excluded from the web site. Those potential exclusions include {§4(c)(3)}:

• Proprietary information;

• Security-sensitive information, including as referenced in section 1520.5(a) of title 49, Code of Federal Regulations;

• Specific response resources and tactical deployment plans; and

• The specific location of worst-case discharges.

While the apparent justifications for the first two are apparent, they do substantially weaken the usefulness of the web site disclosure requirements. The term ‘proprietary information’ is a very expansive term that is not specifically defined, even by reference, in the bill. The SSI provision is certainly justifiable, but has been subject to alleged abuse in practical applications.

The justification for the final two exceptions are less clear and practically gut the utility of this particular public sharing of information provision. Without this information there is no way that the public will be able to judge the adequacy of the response plans.

The bill would also require each pipeline operator to consult with local first responders and emergency response operators while “constructing oil spill response plans” {{§4(d)(1)}. Operators would also be required to provide copies of the completed plan and it updates to “all local first responders and emergency services operators that are listed in the plan” {{§4(d)(2)}.

Additional Safety Measures

Three additional safety reviews would be required by this bill; both to be conducted within a year of the bills adoption. The first would be a review of “the need for performance standards for leak detection systems used by operators of hazardous liquid pipeline facilities” {§5}. That would include determining the size of a leak that could be conducted and the time it would take to detect the leak

The second review would deal with emergency flow restricting devices. The Administrator would be required to review “the adequacy of regulations on the circumstances under which an operator of a hazardous liquid pipeline facility must use an emergency flow restricting device” {§6}.

Finally, the Administrator would be required to look at the existing regulations concerning onshore gathering lines to determine their sufficiency in ensuring pipeline safety. The review would look at the “the economical and technical practicability of applying existing regulations to unregulated onshore gathering lines” {§7(2)} and at the need for the “modification or revocation of existing statutory or regulatory exemptions” {§7(3)}.