June 21, 2018

Members on both sides of the aisle grilled Pipelines and Hazardous Materials Safety Administration (PHMSA) Administrator Howard “Skip” Elliott on the administration’s failure to meet its deadlines in implementing congressional mandates at a Thursday hearing of the Subcommittee on Railroads, Pipelines, and Hazardous Materials.

A number of congressional mandates included in previous PHMSA reauthorizations have yet to be fully implemented, including eight of the 42 mandates in the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 and six of the 19 mandates in the Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016.

Among the incomplete mandates are:

• Integrity management: A report to Congress on whether the integrity management programs for gas and hazardous liquid pipelines should be expanded beyond High Consequence Areas, due January 2014;
• Leak detection: A new rule requiring technical, operational, and economically feasible leak detection standards for operators of hazardous liquid pipelines and transportation-related flow lines, currently in final agency review;
• Emergency order authority: A final rule allowing the Secretary of Transportation to issue an emergency order requiring owners and operators of gas and hazardous liquid pipeline facilities to abate imminent hazards caused by unsafe conditions or practices, due March 2017;
• Nationwide integrated pipeline safety regulatory database: Establishment of a new database to improve communication and collaboration between PHMSA and state pipeline regulators, due January 2017;
• Underground natural gas storage: Minimum safety standards for underground natural gas storage including depleted hydrocarbon reservoirs, aquifer reservoirs, and solution-mined salt cavern reservoirs; an interim final rule was published in December 2016.

As several Members present pointed out, some of these mandated rulemakings are now years overdue—but with Administrator Elliott only on the job for seven months, they could not realistically blame him for the delays.

Still, Members pressed the administrator for timelines on when some of the rules would be finalized, more information on why they had taken so long, and suggestions for how Congress might help move things along faster. Elliott did not offer concrete answers for any of these.

Subcommittee Chairman Jeff Denham (R-CA) opened by criticizing the “slow implementation” of the outstanding rulemakings and emphasizing the bipartisan nature of Congress’s frustration with the long timeframes. During his line of questioning, he gave Administrator Elliott several opportunities to pinpoint bottlenecks in the rulemaking process or suggest legislative fixes, but the administrator did not say much except for repeat the importance of “streamlining.”

Ranking Member Mike Capuano (D-MA) was among the most vocal, threatening to derail the agency’s next reauthorization in 2019 if he does not see sufficient progress by then. “I’m trying to ask myself, why should I have an agency?” He stated. “If you’re not doing your job, why bother. And if I do have you, why shouldn’t we tie your funding to actually getting some of the job done?”

“I’m a little bit more than frustrated,” he admitted, “I’m kind of angry. I’d rather be sitting here arguing with you about the substance of the regulations… but I can’t even do that.”

Rep. John Garamendi (D-CA) wasn’t happy either, pressing Administrator Elliott on a number of outstanding final rules. He several times tried to get the administrator to pinpoint exact dates for rules to be finalized, but the administrator declined to get that specific.

“I’m gonna be on you like a bad spell,” Rep. Garamendi said with exasperation after a lengthy exchange, “and I can assure you that the California delegation will be there also.”

Of particular importance to Rep. Garamendi was a long-awaited final regulation on automatic and remote shutoff valves and detection systems for 30-inch pipes; one such pipe exploded in San Bruno, Calif. in 2010, killing eight people and injuring many more. After that incident, Congress mandated PHMSA to issue a regulation regarding detection systems and automatic and remote shutoff valves, which might have avoided that explosion. Eight years later, that rule is still in the early Notice of Proposed Rulemaking (NOPR) stage.

“It was September 9, 2010. Eight people died. Thirty-eight homes destroyed,” Rep. Garamendi said. “And you don’t have a calendar. That is not acceptable.”

This was a common theme during the hearing: several Members brought up pipeline explosions, spills, and other incidents in or near their home districts to illustrate the high stakes of getting some of these rules finalized. Rep. John Faso (R-NY) referenced a propane gas line explosion in Blenheim, New York, in 1991 that killed two; Rep. Elizabeth Esty (D-CT) brought up a natural gas plant explosion in Middletown, CT, in 2010 that killed six; and Rep. Albio Sires (D-NJ) recalled a natural gas pipeline explosion in Edison, NJ, in 1994 that killed one and left 100 homeless.

Rep. Esty summarized the issues at play: “This isn’t frustration about our prerogatives being disrespected,” she said. “This is about the people we represent.” She pointed out that PHMSA reported 649 pipeline incidents last year, half of which were designated serious or significant, resulting in 22 deaths, 35 injuries, and $242 million in damages.

“Failure to implement these mandated requirements result in deaths,” she said.

House Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA) struck a more optimistic tone, saying he has seen a “pick-up in the pace” of rulemaking at PHMSA this year, but echoed “bipartisan concern and frustration.”

“We want to encourage you to move forward,” he said. “If there’s something we can do legislatively to assist, we stand ready, willing, and able to do that.”

But with Administrator Elliott largely unable to spell out the problems at the agency causing the delays, potential solutions were not readily apparent.

The hearing also included a second panel featuring four representatives from the oil and gas industries, but that was abbreviated considerably as votes were called on immigration reform legislation. Watch the hearing and read the witnesses’ testimonies here.