PHMSA Faces Pressure From Congress to Implement Pipeline Safety Mandates
The House Subcommittee on Railroads, Pipelines, and Hazardous Materials met April 2, 2019, for a hearing entitled “Pipeline Safety: Reviewing the Status of Mandates and Examining Additional Safety Needs.” The purpose of the hearing was to “consider the status of safety rulemakings that Congress previously has mandated, as well as to examine the safety of the Nation’s gas and hazardous liquid pipelines and facilities and how to respond to gaps or needs that exist.” The Subcommittee heard testimony from the Pipeline and Hazardous Materials Safety Administration (PHMSA); the National Transportation Safety Board (NTSB); Accufacts, Inc.; the American Petroleum Institute; the Association of Oil Pipe Lines; the Environmental Defense Fund; the International Association of Fire Chiefs; and, the Pipeline Safety Trust.
The first federal pipeline safety law in 1968 gave the Department of Transportation the responsibility for safety oversight, and that responsibility is currently vested in USDOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA), which was created under the Norman Y. Mineta Research and Special Programs Improvement Act of 2004. PHMSA’s mission is to protect people and the environment through the safe transportation of energy and other hazardous materials through pipelines. PHMSA’s responsibilities include developing, issuing, and enforcing regulations, and work. Additional background information can be found here.
In response to past pipeline incidents, Congress previously sought to improve pipeline safety by mandating that PHMSA apply new regulations meant to prevent future incidents. In 2011, Congress enacted the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011. In 2016, Congress enacted the Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016. These acts mandated several safety improvements regarding things such as valves, integrity management plans, leak detection, offshore liquid gathering lines, underground natural gas storage facilities, and response plans. Years later, many mandates remain unmet, all while pipelines incidents become increasingly common. In 2018 alone, PHMSA reported 633 pipeline incidents, which resulted in eight fatalities, 92 injuries, and nearly $1 billion in damage. From 1999-2018, there were 11,992 reported pipeline incidents, for a total of 317 deaths, 1,302 injuries, and more than $8.1 billion in damage. Reps.Lori Trahan (D-MA) and Seth Moulton (D-MA) discussed recent accidents, especially a pipeline explosion in their home state of Massachusetts.
The hearing demonstrated Congress’s to address the current issues in pipelining, leading off with a reprimand of PHMSA for taking so long to implement past mandates from Congress and recommendations of the NTSB at the top of the list. Subcommittee chairman Dan Lipinski (D-IL) started out the hearing saying it is “unacceptable that PHSMA has not implemented critical rules.” “What can Congress do to help PHMSA speed up the implementation of regulations”, Lipinski asked.
PHMSA Administrator Howard Eliott responded by he understood the sense of urgency, but reassured Lipinski that PHMSA currently has three ongoing rulemakings that cover these outstanding mandates. Eliott went on to say that since he last testified before Congress a year ago and heard their dissatisfaction, PHMSA has done “quite a bit.” According to Eliott’s testimony, PHMSA has completed developing the language for the rules that were still open and worked hard to streamline the rulemaking process and remove inefficiencies.
NTSB currently has 36 open pipeline safety recommendations, 24 of which are directed to PHMSA. Three of these are designated as “open, unacceptable response.” Jennifer Homendy of the NTSB (who used to be the counsel for the subcommittee before which she was testifying), said that part of the problem is there is no transparency in the rulemaking process. A lot of times the response from PHMSA in correspondence with NTSB is “we are going to work on these recommendations and rulemaking.” But we don’t actually know where the rulemaking is, and where the holdup is.
Rep. Lipinski asked Eliott directly: “Do you plan to implement all of the NTSB recommendations? Eliott responded, “We currently have 20 (corrected by Homendy to 24) open NTSB recommendations. 10 of those linked to rulemakings that we are working through. As alluded to earlier, 3 of those are open and unacceptable. We have a strong working relationship with NTSB and are making strides in bringing some of those recommendations to successful conclusions.”
Rep. Salud Carbajal (D-CA) asked if any of the administration’s executive orders have caused further delays in the implementation of safety rules, to which Eliott said he didn’t think so.
There were many questions from subcommittee members on leak detection, such as by Rep. Angie Craig (D-MA) who asked Homendy to clarify why leak detection is so important.
Homendy explained that leak detection is about response time, “if you have a leak that you don’t discover for a substantial amount of time you’re going to end up with more damage, lives lost, people injured, and communities severely affected.” She said it is important to detect leaks so that operators and emergency responders can immediately respond and that PHMSA needs to issue performance standards in their regulations for leak detection.
A portion of the hearing focused on the relationship of pipeline safety and increasing technology. Rep. Rick Crawford (R-AZ) asked, “what can be done to make sure rulemaking is keeping up with technological advances?” Eliott gave a simplified answer, saying, “we continue to explore ways that can better implement these trends into rulemaking.” He was pressed further on the matter later on by Rep. Michael Bost (R-IL): “If the rulemaking process takes so long how can it possibly keep up?”
Eliott gave an overview of a special permit process and pilot programs that PHMSA uses to allow that technology to come into play. “Obviously we need to be absolutely sure that tech works and will provide step change in safety,” Eliott explained, “in order to do so, we need to see the technology in action for an extended amount of time. That’s what we are hoping to achieve with the pilot programs.”
Rep. Lizzie Fletcher (D-TX) asked the second panel of the hearing if there are enough avenues and resources at PHMSA for the agency to consider data that new technology would provide. Andrew Black, President and CEO of Association of Oil Pipe Lines, assured her that there are.
Liquefied natural gas (LNG) facilities are used for converting, transporting, or storing LNG. PHMSA has plans to update its LNG regulations to address industry changes and to comply with Congress’ 2016 mandate to do so. Regarding LNGs, Rep. Greg Pence (R-IN) asked, “how will the recent MOU (memorandum of understanding) between PHSMA and FERC (Federal Energy Regulatory Commission) improve pipeline and faculty facility safety while encouraging our energy security?” Eliott reported that last October PHMSA completed a memorandum of understanding with FERC to assist in their review of LNG applications. This allows PHMSA to apply their safety review, and then send their determination to FERC so that they can complete their application and permitting process, which is thought will significantly reduce the amount of time it takes to approve an application for LNG facilities.
Rep. Crawford said that going forward, Congress and PHMSA will need a balanced regulatory approach. He remains confident that “pipelines remain one of the safest and most cost-effective means to transport large quantities our Nation’s energy products,” and assures that oversight of PHMSA and these products are a top priority of the subcommittee.
You can view the full hearing here.