Local options when thinking about new pipelines

Question of the weekThere are rumors of a new pipeline coming to my community. I’ve heard of another town with its own pipeline ordinance, but I also hear that it’s not up to the community and we really have no say. Should we pass our own ordinance and will it help?

You can pass your own ordinance, but whether it will help or not depends on where you are, what type of pipeline is proposed, and what the ordinance says.

It is true that in some circumstances communities “have no say,” but not all. There are a few circumstances over which the federal agencies have exclusive authority: FERC (Federal Energy Regulatory Commission) has exclusive authority over the routing of new interstate natural gas pipelines; and PHMSA, the federal pipeline safety agency, retains authority over rulemaking and enforcement of safety regulations governing oil and natural gas pipelines. States can seek certification from PHMSA to regulate the safety of intrastate pipelines, and once certified can write stronger regulations for those pipelines than the federal minimum regulations established by PHMSA. States can take on a stronger role in other areas as well – but that is a subject for another post. If not disallowed by the state, local communities can have an important role when it comes to land use and pipelines.

For situations where local rules are not preempted by other state or federal laws, there are a number of options for action:

When a pipeline is built, the pipeline operator typically needs to get road crossing permits and negotiate franchise agreements or easements for crossing public roads, using road rights of way or crossing parks or other land owned by the local government. Some communities do this as they need to, and others have an ordinance that governs all these types of franchise agreements or easements between the town/county and the pipeline operator. This type of ordinance typically avoids preemption issues with state or federal law, though we recommend consulting with an attorney in your area. Franchises can address things like notification to the local government, maintenance of the right-of-way, availability of information, required payments by operators, circumstances where relocation of the pipeline may be necessary (and who would pay for it), pipeline abandonment, insurance and financial guarantees, and other issues. For examples of franchise ordinances, see the Franchise page on our website.

There are also community ordinances that establish a setback or consultation area between the pipeline and certain development, homes, or businesses. There are no federal regulations that set an absolute minimum distance that a pipeline can be built from a house, so a number of communities have moved forward on their own to do this. One option is to establish a ‘consultation zone’ so the pipeline owner and property owner or developer of any new project have to talk with one another prior to going ahead with the development or the new pipeline. Another option is to pass an ordinance requiring setbacks that vary depending on what type of residential uses exist near the pipeline. We have examples of these types of ordinances as well on our website.

Setbacks are often intended to help prevent damage to the pipeline by people doing something stupid on top of it (like installing a swimming pool or fence), or to aid in evacuation by offering a bit more time for folks to get out of the area. But they are likely not wide enough to protect a person from an explosion on a high pressure pipeline (for larger diameter high pressure gas pipelines, that distance may need to be over 1,000 feet).

A local government could also choose to treat new pipelines as a conditional use and require a pipeline proponent to apply for and receive a conditional use permit before beginning construction within the jurisdiction. You can find an example of this option on our website as well (see Colorado example).

Chapter 4 of our Local Government Guide describes in more detail options that local communities have as they think about how best to prepare for the prospect of a new pipeline coming to town.

Reflections on San Bruno, PG&E and the CPUC

Question of the week: I heard the California Public Utilities Commission levied a fine of $1.6 billion dollars against PG&E for pipeline safety violations relating to the terrible San Bruno pipeline explosion in 2010. Do you think this will make a difference and improve PG&E’s safety? Is that all that will happen?

Reflections on San Bruno, PG&E and the CPUC

In case you missed it, last week, the California Public Utilities Commission (CPUC) levied a fine of $1.6 billion dollars against PG&E for violations of the state pipeline safety regulations, violations identified following the failure and explosion of one of PG&E’s natural gas transmission lines in San Bruno, California in 2010. That explosion killed 8 people and injured many more, destroyed an entire neighborhood and laid bare a multitude of shortcomings and outright failures of natural gas pipeline safety regulation in California. The City of San Bruno undertook a monumental effort on several fronts, seeking out every possible forum where PG&E might be held to account, and where regulatory change might be made so that no other community needlessly suffer from another completely preventable pipeline failure.

Whether or not one believes the utility’s and the regulator’s exclamations of intent to reform, whether or not one gives credence to the much-publicized efforts to operate more safely or to oversee more carefully, there is plenty of evidence that there remains a long way to go. The report of the National Transportation Safety Board following the explosion described a utility that didn’t know what pipes it had in the ground, and didn’t have adequate records or integrity programs. And it described a regulator that had apparently ignored those shortcomings of which it was aware, and simply hadn’t looked very hard to find others. Since the NTSB report, the media has been filled for nearly 5 years now with seemingly endless disclosures of cronyism between the regulator and the utility, the misappropriation of ratepayer funds collected in the name of safety upgrades but spent elsewhere, descriptions of yet another home destroyed and community disrupted because PG&E’s records did not accurately reflect what pipes were in the ground, and numerous reports and audits suggesting that the CPUC is not yet capable of adequately regulating.

While the fine imposed against PG&E is of record size, the company’s stock price recovered and closed higher on the day after the penalty was announced. This, in spite of the company’s 2013 protestation that a fine of that magnitude would surely force a bankruptcy or some other catastrophic result. In fact, PG&E has recently announced that it will not appeal the CPUC fine and decision.

Meanwhile, the aftermath of the failure continues in a variety of forums: Rulemaking efforts on the federal level that might respond to some of the concerns raised by the NTSB in its report on the PG&E failure have been bogged down for years. We continue to wait for a proposed rule to be released and open to comment, review by the Technical Advisory committees and perhaps one day become new regulations. State legislation has strengthened some California gas safety rules, and proposed legislation may alter the allocation of the fine levied by the CPUC to further benefit pipeline safety rather than the state’s general fund. The cronyism exposed by the dogged efforts of the City of San Bruno to obtain emails and other documents has resulted in changes in personnel in high levels both within PG&E and within the CPUC. The federal prosecutor impaneled a grand jury that last year returned criminal indictments against PG&E. The State Attorney General has opened a criminal investigation of PG&E and its relationship with the CPUC, seeking evidence of wrongdoing on the part of the CPUC, its former president, and perhaps others. These criminal proceedings are still in the very early stages. The legacy of the San Bruno tragedy will continue for some time, and we can only hope, for all our sakes, that it eventually results in significant safety improvements, regulatory capacity, and some small measure of justice.  

A Call for Transparency in Pipeline Safety Enforcement – Ten Years Later

Question of the week: I’ve looked at some of the pipeline enforcement data online through PHMSA’s website, but don’t really understand it, and don’t see a lot of information available. Can you tell me how pipeline enforcement works, and what is available to the public when there is an enforcement case against a pipeline operator who has some sort of violation of the rules?

Answer: 

This question produced deja vu for us here. It turns out our very first newsletter in 2005 included on article on this topic, so we decided to have a look to see what had changed in the past 10 years. The article was about how the Pipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS) civil fine enforcement works and why OPS should make it more transparent. While OPS has improved some things (like its percentage of assessed penalties that are eventually collected), the substance of the issues has not changed at all, and enforcement procedures still occur largely behind closed doors with only the regulators and industry present, and no public record of proceedings.

How It Works

OPS enforcement procedures are complex. In simple terms, there are three stages:

  1. Investigating — reaching a preliminary conclusion whether a company violated the law. This can happen as a result of an inspection or an incident.
  2. Proposing a fine — notifying the company of the allegation and what the fine could be.
  3. Hearing/Assessing/Collecting — giving the company an opportunity to present its views; deciding what the fine will be; collecting it.

The time from the first to the last step may take more than a decade. Meanwhile, there is no public input and the availability of documents is limited. According to the enforcement statistics,[1] over the past ten years OPS collected about 84 cents for every dollar of fines it proposed (up from less than 50 cents when we published the article nearly 10 years ago). These statistics leave out millions of dollars in fines that were proposed but never or not yet collected because cases either never made it to the final collection phase or still have unresolved compliance issues.[2]

What is most troubling to us is the way in which fines are reduced or unresolved. Without any public access, the pipeline operator goes behind a closed door with government officials and comes out paying less money than originally owed. What goes on behind that door? No one knows. PHMSA has made improvements in providing enforcement information in the last 10 years, and usually provides access to the corrective action order, the operator’s response or request for a hearing and the final order through links on its enforcement web page. However, between the time an operator requests a hearing on a penalty case and PHMSA issues a final order, none of the documents or arguments made in the enforcement hearing process are posted for public review, and PHMSA neither publishes notice of hearings nor allows the public or members of the press to attend if they happen to learn when a hearing is scheduled. Nor is there a requirement for a record of the hearing to be made, let alone made public. This is the stage where most of the reduction in proposed penalties occurs, and the public can only hope to be able to read between the lines of a Final Order to determine why the penalty was reduced and whether the reduction was legitimate.

The Need for Transparency

In this country, after the investigatory stage, law enforcement takes place in public for good reasons. Public scrutiny enhances credibility, accountability and fairness while preventing even the appearance of government corruption in the following ways:

Credibility — seeing OPS expeditiously enforce its regulations would instill confidence that safe operation is a requirement rather than a guideline.

Accountability — if companies successfully challenge fines because regulations are poorly crafted, the public could demand better rules.

Fairness — secret proceedings deny the public an opportunity to question fines and permit operators to make one-sided arguments without fear of rebuttal.

Prevention of corruption — while no one is suggesting that OPS is corrupt, any government agency that permits fines to be whittled down behind closed doors is just asking for trouble from a suspicious public.

How It Should Be

OPS should create an Internet accessible enforcement docket, like the existing DOT rule-making docket, where the public could view enforcement as it progresses. The docket would include the OPS Notice of Probable Violation, Corrective Action Order or other enforcement documentation, the company’s responses, documents exchanged between the parties before and during a hearing, transcripts of hearings and the final decision. OPS should permit intervention by aggrieved parties. The hearing dates should be on the docket, and the hearings themselves should be open to the public and members of the press.

When pipeline operators violate the law, they endanger the public. Therefore, the public has an interest in seeing operators held accountable. Open and transparent enforcement procedures would enhance public confidence and permit the public to work with OPS to make pipelines safer.

 

ENDNOTES:

[1] Data extracted from PHMSA-OPS website on March 26, 2015. See http://primis.phmsa.dot.gov/comm/reports/enforce/CivilPenalty_opid_0.html

[2] Only cases that have been closed by PHMSA with no outstanding compliance issues left unresolved from PHMSA’s Final Report are included in their statistics.

Technical Assistance Grant Opportunity – Apply Now

Question of the Week: I heard something about grants being offered to communities for hiring experts and promoting public participation in pipeline safety proceedings. Can you tell me more about how to access these funds?

Answer:

PHMSA recently announced a grant opportunity for Community Technical Assistance Grants – Applications are Due April 22, 2015. 

Community groups and local governments are eligible to apply for PHMSA Technical Assistance Grants (“TAG grants”) of up to $100,000 for technical advice on pipeline concerns, to enhance public involvement in official proceedings on pipeline safety, for production and implementation of local pipeline ordinances, or for a wide variety of other pipeline safety related projects. You can find an archive of the nearly 200 projects funded with these grants in past years here.

Here is the link to the full announcement: http://www.grants.gov/web/grants/view-opportunity.html?oppId=272688

From PHMSA:

The TAG program provides funding to communities for technical assistance and analyses of local pipeline safety issues. Technical assistance is defined as engineering or other scientific analysis of pipeline safety issues. The funding can also be used to help promote public participation in official proceedings. However, the funding may not be used for lobbying, in direct support of litigation, or for activities associated with regulatory compliance or typical operations and maintenance of pipeline facilities. Local projects can range from public awareness activities to technology solutions, such as the conversion of paper maps into electronic format. The awards have funded a broad range of activities, including:

o   Improvement of local pipeline emergency response capabilities

o   Improvement of safe digging programs

o   Development of pipeline safety information resources

o   Implementation of local land use practices that enhance pipeline safety

o   Community and pipeline awareness campaigns

o   Enhancements in public participation in official proceedings pertaining to pipelines

 

If you intend to apply for a grant, the preparation for doing so (obtaining online accounts and numbers and entering your proposal in the online system) takes quite a bit of effort and time, so plan accordingly to allow enough time before the deadline to get help if you need it.

 

We’re happy to help give you feedback on your TAG idea, or talk to you about what some other communities have done, so feel free to contact us for more information if you’re interested.

Background on the TAG Grants

When Congress began working to strengthen the nation’s pipeline safety laws in 2001, the forerunner of The Pipeline Safety Trust pushed for the creation of a federal program that would provide money to local governments and communities for hiring independent experts. These experts would help them obtain information so they could be informed and active participants in decision-making activities about pipelines running through—or proposed for siting in—their communities.

In the Pipeline Safety Improvement Act of 2002, Congress authorized the Technical Assistance Grant (TAG) program, which was based on a successful Superfund grant program that had been operating within the U.S. Environmental Protection Agency since 1988. However, Congress did not appropriate any program funds when it passed this law. Over the next four years, Congress failed to fund the TAG program, and the Office of Pipeline Safety (OPS), which is within the federal Pipeline and Hazardous Materials Safety Administration (PHMSA), didn’t move ahead to implement it. Consequently, the Pipeline Safety Trust worked with supporters in Congress to break this “logjam” and a provision was inserted in the Pipeline Inspection, Protection, Enforcement and Safety Act of 2006 to withhold funding from other activities until PHMSA established procedures and criteria for initiating the TAG program. In 2008, Congress provided $1 million in the federal budget for funding this program and in 2009 the Pipeline Safety Trust helped OPS develop criteria for evaluating grant applications.

Oil Pipelines by the Real Numbers

Reporters ask us a lot about numbers, and we see both accurate and misleading figures being thrown around in the press and even on unnamed official websites, so we’re expanding here on our February 10 blog post that touched on numbers. That post mentioned both numbers from the Pipeline and Hazardous Materials Safety Administration (PHMSA) and industry numbers published recently by API/AOPL (American Petroleum Institute / Association of Oil Pipe Lines) in their Pipeline Safety Excellence (PSE) initiative “Pipelines by the Numbers.” A fundamental concern the Trust has with these industry numbers is the lack of transparency about where their numbers come from.

The federal government through DOT- Pipeline and Hazardous Materials Safety Administration (PHMSA) collects information from pipeline operators annually and on incidents that occur (annual data and incident data, respectively). This data is fairly comprehensive and publicly available. PSE uses data from their own secret Pipeline Performance Tracking System (PPTS) with no public access to this data. The “Pipelines by the Numbers” report does not tell the reader what filters are used to pull the numbers, or why they differ so from the PHMSA incident data.

The data used by the Trust is typically based on PHMSA 20-year pipeline significant incident trends. In this example, we filtered that for onshore hazardous liquid (HL) pipelines (accessed on Feb 25, 2014), as we’re comparing our numbers to those of the liquid pipeline industry (API/AOPL). The Trust relies on the ‘significant incident’ dataset (rather than ‘all incidents’ or ‘serious incidents’) because we think it provides the most honest and transparent reflection of the incidents that show shortcomings in pipeline safety regulations and in operator safety cultures. Serious incidents only capture information when a death or serious injury occurs, and many catastrophic incidents are left out because the environmental destruction or personal property damage incurred is not enough to warrant the ‘serious’ categorization. The significant incidents dataset includes all incidents with $50,000 or more in total costs, measured in 1984 dollars, and including the value of the lost product; it also includes all serious incidents, any hazardous liquid release of 50 barrels or more, any HVL release of 5 barrels or more, and any liquid release resulting in a fire or explosion. We do not generally use the ‘all incidents’ dataset that captures the smaller accidents that occur, because reporting criteria for what a reportable incident is has changed quite a bit over time and can result in seemingly odd fluctuations when looking at all incidents.

We’re going to use this space to compare what we see in the PHMSA numbers, to what the hazardous liquid pipeline industry has published through their API/AOPL PSE initiative “Pipelines by the Numbers.” For shorthand purposes, when we say the word “industry” below in this post, we are referring to the hazardous liquid pipeline industry and the numbers put forth by API/AOPL.

1    FACT: More than 5 million gallons of hazardous liquids spilled in 2013 (including crude oil, refined products like gasoline, highly volatile liquids and others).

Industry states 99.999% of all hazardous liquid products are delivered safely each year, equating to all but .001% of the 14.9 billion barrels delivered in 2013. That means 5,009,524 gallons (we use PHMSA numbers here, but using industry numbers it would be 6,258,000 gallons) were spilled in 2013 in hazardous liquid pipeline incidents. (This is the one time we do use the ‘all incidents’ dataset to portray the volume that does, in fact, NOT get delivered safely each year.) Even if we filter the data for only the significant incidents, that figure remains close to 5 million gallons (4,978,706 gallons) spilled that year. By way of comparison, that’s equivalent to five spills the size of Marshall Michigan just for the volume spilled in 2013.

2    FACT: Greater than 67% of incidents since 2002 were caused by things within the operator’s control.

PHMSA collects incident data from operators, including a designation of what caused the incident, and that information is posted on PHMSA’s website. Among the causes are several that are entirely within the operator’s control: Corrosion, Incorrect Operation, Material/Weld/Equipment Failure, and Excavation Damage by the operator or its contractor. Together, these incident cause categories account for an average of 75% of all incidents since 2002 being within the operator’s control (1,622 total significant incidents from 2002-2014; 1,214 of those caused by things within the operators control). And things are not improving over time: every other year since 2002, more than 2/3 of significant incidents have been caused by things within the operators’ control.

3    FACT: 315 million residents are at risk of pipeline failures.

Industry reports that 315 million US consumers and workers benefit from pipelines daily – roughly the US Census population. Both are hyperboles adding nothing to what should be an important discussion about pipeline safety.

4    FACT: Over 50% increase in significant onshore HL pipeline incidents between 2001-2013.

Industry states a 50% DROP in incidents from 1999-2013. Frankly, we have no idea where they got this number, unless they only considered incidents that occurred off company property on Sundays (we’re kidding, kind of). 1999 had the highest number of significant pipeline incidents between 1995-2012 (142), so it was a convenient year to begin if looking to find a drop, but even starting at that relatively high point, there has been a 13% increase in significant hazardous liquid pipeline incidents.

5    FACT: 119 people killed or injured by onshore HL pipeline incidents since 1999 and $2.4 billion in property damages from pipeline spills in the past 10 years.

These are numbers they’d rather you not think about, preferring instead some variation of “everything is awesome”.

6    FACT: $141 million spent by oil & gas industry to lobby Congress last year.

Again, industry points out how much money the industry spends on pipeline maintenance and safety initiatives; and yet the industry spends 14 times the amount on lobbying than HL operators spend on pipeline safety research and development in any given year. Is “getting to zero” as important as “influencing” politicians?

7    FACT: 1.5 regulators review spill response plans for 192,000 miles of pipelines    and                             0 unannounced spill response drills held by federal regulators.

Under the Oil Pollution Act of 1990, HL pipeline operators are required to produce an ‘oil spill response plan’ or ‘facility response plan’ that details their preparations for a spill and submit this plan to PHMSA every 5 years. Only 1.5 PHMSA staff members are assigned to review these plans that cover 192,000+ miles of pipelines, the lowest by far of any of the four agencies who review these types of plans. The low staffing level results in PHMSA failing to require unannounced drills, as is required.

8    FACT: Corrosion caused more incidents in each of the last 3 years than in any year since 1997.

Industry claims that corrosion-caused pipeline incidents are down 75% since 1999. What??! PHMSA tracks corrosion as a cause (out of 7 overall cause categories) of incidents. We simply don’t understand where the industry claim could have come from. See for yourself; we’ve included the PHMSA data below so you can see both the numbers and percentages of incidents caused by corrosion each year. It’s remained a fairly steady 25%, but of late the total number of corrosion-caused incidents has been higher, not lower, than in previous years.

 

  1995 1996 1997 1998 1999 2000 2001 2002 2003 2004
# onshore HL sig. incidents 154 171 153 131 142 128 107 129 122 125
# corrosion-caused subset 32 51 44 31 24 29 32 34 28 35
% corrosion-caused 20.8% 29.8% 28.8% 23.7% 16.9% 22.7% 29.9% 26.4% 23.0% 28.0%
 
  2005 2006 2007 2008 2009 2010 2011 2012 2013  
# onshore HL sig. incidents 120 104 107 119 107 119 137 126 160  
# corrosion-caused subset 27 32 26 31 26 27 38 36 38  
% corrosion-caused 22.5% 30.8% 24.3% 26.1% 24.3% 22.7% 27.7% 28.6% 23.8%  

 

Natural Gas Compressor Stations – Does PHMSA regulate?

Question of the week

 We got a message through the Pipeline Safety Trust Facebook page (find us and like us there!) with some questions from Howard, who was trying to find some information about the regulation of compressor stations on interstate natural gas pipelines, like the one being proposed near his New England community. He had heard two distinctly different stories: one that compressor stations are “self-regulating”, which is to say not regulated at all; the other was that the Pipeline and Hazardous Material Administration (PHMSA of the US Department of Transportation) regulates them, but the details about exactly what that meant were a bit fuzzy.

Here’s what we told Howard, plus a few more tidbits:

Hi Howard – Compressor stations like the ones on the proposed Kinder Morgan pipeline are regulated by PHMSA. Compressor stations are included in the regulatory definition of “pipeline facility” in the PHMSA regulations governing gas transmission lines (49 CFR Part 192). Specifically, that definition is found in 49 CFR 192.5. Compressor stations are specifically called out in several regulations governing design, emergency exits and shutdown, fencing, ventilation, etc. Those specific regs can be found at 49 CFR 192.163, .165, .167, .169, .171, and .173. Compressor stations may also be subject to air quality regulation under the Clean Air Act, requiring a separate permitting process, but that permit is usually dealt with in the context of the FERC certification proceedings, sometimes as a condition on the granting of the certificate. Compressor stations that are not part of an interstate transmission line subject to siting by FERC may also be subject to zoning and permitting by local governments, and to safety inspections by a state if it has been certified to regulate intrastate natural gas facilities.  

PHMSA decides how often to inspect operators and for what purpose. For example, sometimes inspections throughout a region would focus on operator qualification requirements or control room management rules, and PHMSA will check all of the operators in the region for those specific topics. Other times inspections are a more wide-ranging inspection of individual operators or facilities, checking records and the facility for compliance with a wide variety of safety regulations. I’d suggest that for more information on how PHMSA schedules the inspections of facilities and how often they check a specific individual facility, you contact a Community and Technical Assistance (CATS) staff person in the regional office of PHMSA nearest you. You can find contact information for them here. You can also find a flowchart generally describing the inspection and enforcement process here. Records from enforcement actions resulting from previous inspections are included in the PHMSA reports on enforcement actions, but they are mixed in with those relating to incidents, so finding them requires a bit of searching.

Hope that helps. 

Send us your questions, big or little, hot-button or not, we’ll get the pig to root out the answer. 

 

Everything is Awesome!…. or is it?

This recent tweet by Brigham McCown (former head of PHMSA in the Bush Administration) about rail and pipeline safety gave us pause. It praised government agency oversight and questioned congressional initiatives to push for greater safety, begging the question: Are we missing something? Should we as a country really be patting ourselves on the back for successful pipeline safety improvements?

In a more recent tweet he stated that “#pipelines have decreased accidents by 50%” – the same thing that PHMSA’s Deputy Director for Governmental, International and Public Affairs told media in Montana when talking about the recent spill into the Yellowstone River. That would be great if it were true, but it’s just not.

If only we were more technologically advanced, we would create an animation of Mr. McCown and the heads of the large oil and gas industry groups singing “Everything is Awesome” and touting the ‘continuous improvement’ and ‘excellent job reducing incidents, spills, injuries’ that have apparently happened of late while the rest of us have been watching oil spill into the Yellowstone and fireballs threaten more pipeline neighbors.

We would love to agree with Mr. McCown, but cannot reconcile his sentiment with what we know about the reality of pipeline safety today and the recent record of pipeline failures. He specifically called into question the actions of Congressman DeFazio, later suggesting he should “stand down.” Before we start in on our own perspective, here is part of what Peter DeFazio had to say to the Department of Transportation’s (DOT) Inspector General (this excerpt comes after discussion of the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) slow action and failure to issue new rules regarding safety of rail tank cars):

In multiple pipeline accident investigations over the last 15 years, the NTSB [National Transportation Safety Board] has identified the same persistent issues, most of which PHMSA has failed to address on its own accord. Each and every time, Congress has been forced to require PHMSA to take action, most recently in the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (P.L. 112-90). Three years later, almost none of the important safety measures in the Act have been finalized.

Finalizing these rules is imperative; our Nation’s vast 2.5 million-mile pipeline network is aging. According to PHMSA, more than 50 percent of these pipelines were constructed in the 1950s and 1960s. The potential for catastrophic accidents is not a matter of if, but when. DOT must be prepared to address any pipeline or hazardous material safety deficiencies now, not just when we mandate action.

For these reasons, I am concerned with the agency’s ability to address significant safety issues and am requesting an audit of PHMSA’s pipeline and hazardous materials safety programs. Specifically, I request an evaluation of the agency’s effectiveness in addressing: congressional mandates, and NTSB, Government Accountability Office, and Office of Inspector General recommendations in a timely manner; the process PHMSA utilizes for implementing such mandates and recommendations; the sufficiency of PHMSA’s efforts to coordinate with the modal administrations and address safety concerns raised by those administrations; and any impediments to agency action.

We think Mr. DeFazio is spot-on. Not only because of what needs to be done to prevent future incidents, but also because of what has already happened. In the first ten days of 2015 alone, there were 11 reported pipeline incidents, 4 of them significant, and all of those four were from causes within the operator’s control. It is too early to know the total damage done, but we do know that one of the incidents not yet included in the PHMSA database resulted in an estimated 30,000 gallons of crude oil spilling into the Yellowstone River in Montana and polluting the drinking water supply for the town of Glendive, requiring emergency changes to the water treatment plant to filter out benzene from the spill.

Since 1995, the number of significant pipeline incidents has risen by 3% – going from a rolling 3-yr average of 275 (1995-1997) to 283 (2012-2014). And the most prevalent cause of significant incidents is something within the operators’ control: material/weld/equipment failure. In fact, according to PHMSA data, the majority of significant incidents in the past 10 years have been caused by three things within the operator’s control: corrosion, incorrect operation and material/weld/equipment failure.

Operators will say that many more miles of pipelines have been installed in recent years, and they are still the safest form of oil and gas transportation. But even with the incident data normalized by miles of pipeline, we’ve still got lots of improving to do. 

SigIncPER1kmile

You will see that throughout this piece, we refer to “significant incidents.” The types of incidents are divided by PHMSA into “serious”, “significant” and “all”. Significant incidents include:

  1. Fatality or injury requiring in-patient hospitalization
  2. $50,000 or more in total costs, measured in 1984 dollars
  3. Highly volatile liquid releases of 5 barrels or more or other liquid releases of 50 barrels or more
  4. Liquid releases resulting in an unintentional fire or explosion.

Serious incidents are a subset of significant incidents and only include those causing a fatality or in-patient hospitalization. And serious incidents have indeed decreased over the past 20 years, and we celebrate that. Mr. McCown and Ms. Klinger were perhaps thinking only of serious incidents when making their claims. But looking at serious incidents only does not tell the whole story about pipeline safety. In the case of the Yellowstone spills or the Marshall, Michigan spill, no one was killed or hospitalized, so they were significant incidents. The records of serious incidents will not tell you about catastrophes even of that magnitude. The difference between whether an incident is categorized as serious or significant is sometimes as random as whether someone whose house was destroyed by pipeline explosion happened to be home at the time. Had they been home, the incident would have been serious. They weren’t, so the incident was significant. The pipeline wasn’t safer just because no one was killed. They just weren’t home. If we only looked at serious incidents trends, we’d miss learning from many significant incidents and mislead the public into thinking fewer incidents were happening.

Another metric that the pipeline industry likes to tout is that 99.999% of the oil and refined products shipped by pipeline arrives safely at its destination. Wow! That is really awesome, you say, starting to hum along with Mr. McCown and the crew. But hold on. How much is that .001%, you wonder? Well, as API/AOPL tell us in their new “Pipelines by the Numbers“, 14.9 billion barrels of oil and refined products were shipped by pipeline in 2013. So that .001% works out to be 149 thousand barrels, or 6.258 million gallons of oil and refined products that did NOT make it safely to its destination.

6.258 million gallons spilled from pipelines. That’s the equivalent of:

One spill the size of the Enbridge spill at Marshall, Michigan EVERY OTHER MONTH for a year;

OR

Two spills the size of the 1999 Bellingham, Washington incident EVERY MONTH for a year;

OR

One spill the size of the Exxon Valdez every other year.

Our point (in case you missed it): It’s a lot of oil and refined product spilling and leaking from pipelines every year. “#Pipelines” have NOT reduced accidents by 50%. Things are NOT awesome. Pipelines may be the safest means we have, but they’re not nearly safe enough. And it’s Congress’ duty to call out the regulator when things aren’t good enough. That’s what Representative DeFazio did, and that’s why.

Another Spill into the Yellowstone – Are we learning anything?

 

Many rivers to cross
But I can’t seem to find my way over

                                                ~Jimmy Cliff

 

Dear Readers: An unfortunate deja-vu-all-over-again moment occurred recently: another pipeline ruptured at a crossing of the Yellowstone River in eastern Montana.

First, there was the Silvertip spill….

You may remember that after the ExxonMobil Co.’s Silvertip Pipeline ruptured and spilled 1,500 barrels of oil into the Yellowstone River in 2011, I got a letter from my friend King Fisher of Riparian Ranch asking about the rules that govern pipelines crossing rivers. It was clear by then that the Silvertip spill was caused by the pipeline being damaged by riverbed scour and debris and he was understandably confused about the existing rule requiring operators to bury their pipelines a minimum of only four feet when they construct pipelines across rivers of at least 100 feet in width. He wondered whether there were other rules, and what they might be. 

I answered that letter in the Trust’s newsletter in January of 2013 (at pages 4-6). Here are the highlights of that response:

  • The current rules require pipelines crossing rivers that are wider than 100 feet to be buried at least 4 feet at the time of construction. A separate rule requires lines that cross navigable rivers to be checked at least every 5 years “to determine the condition of the crossing”. There is no rule requiring any specific depth of cover to be maintained after installation, unless the pipeline is one where a spill could affect a “high consequence area,” say, for example, the drinking water supply of a small city that takes its water directly from, say, the Yellowstone River.
  • The 2011 amendments to the Pipeline Safety Act included a directive to PHMSA to undertake a study of liquid pipeline incidents at river crossings to determine if depth of cover was a factor, and to make recommendations for any legislative action to improve the safety of buried pipelines at river crossings. No regulatory action was required of PHMSA.
  • PHMSA produced its report describing its data management challenges (it doesn’t have a database, geographic or otherwise that shows the crossings that are subject to the 100 foot crossing/4 feet deep rule); and describing the pipeline failures at crossings in the last 20 or so years (well, at least some of them). In an NTSB document not cited in PHMSA’s report to Congress, a chart shows that 6 of Exxon’s pipelines in the San Jacinto floodplain ruptured or were undermined for up to 120 feet in the 1994 flood event; most of these were not included in the PHMSA analysis.

Then there was the Bridger spill – Another spill into the Yellowstone River last month

The Bridger pipeline failed at its crossing of the Yellowstone River, spilling approximately 1,000 barrels of crude into the river. Complicating response, investigation and recovery is that the river is entirely frozen over, but with ice of varying thickness from day to day, creating safety concerns for responders and physical limitations on recovery operations.

Initial reports were that the pipeline was buried at least 8 feet under the bed of the river. Then we learned that was an assessment from 2011. Then we learned that sonar showed much of the pipeline crossing the river was exposed on the riverbed, and some of it was suspended above the bed, entirely exposed. Although we do not yet know the reason for the pipe’s failure, clearly the lessons of the Silvertip (and a USGS study showing parts of the Missouri River scouring to depths of up to 40 feet) had not been learned – that rivers change all the time and quickly, that riverbeds move a lot of sediment, and quickly.

My 2013 reply to King Fisher was written before PHMSA had fulfilled its second obligation under the 2011 Act: to determine whether the depth of cover requirements are inadequate and if so, to make legislative recommendations. I suggested staying tuned to find out what PHMSA would do, and raised concerns about some of the options open to it:

The risk is that PHMSA either: a) decides to change the depth of cover at installation rule, creating a political sideshow that exhausts safety advocates’ energy arguing over the number of feet or inches it should be raised, completely ignoring the fact that the installation rule makes very little difference over time if there are no maintenance of cover rules or viable, enforceable integrity management rules to require operators to manage for the risk of riverbed scour; or b) decides to argue that the operator’s obligations under integrity management rules to identify and mitigate the risks of riverbed scouring are sufficient, regardless of the 4-foot depth of cover at installation requirement, and therefore the depth of cover rules don’t need to be changed. 

Unless PHMSA opts for: c) an enforceable and enforced maintenance of cover rule for all crossings that is based on a study of the specific location and characteristics of each crossing; and d) actually enforcing integrity management obligations of operators to design for and mitigate against the risk of riverbed scour before an incident occurs, this smart pig is not optimistic about improving the safety of crossings at rivers.

So, how did PHMSA do?

Well, to some extent it remains to be seen, but there is recent reason to hope for improvement.

When PHMSA reported to Congress with the second half of its homework assignment – do you have legislative recommendations? – PHMSA reported that it believed that its existing legislative authority was adequate to protect pipelines at river crossings. PHMSA has yet to publish ANY substantive proposed changes to its safety regulations since the 2011 reauthorization, and until those major proposed rulemakings are released, we won’t know whether PHMSA intends to change the depth-of-cover-at-construction rule or to propose any new rules requiring maintenance of cover to some depth.

But just last week, in the midst of the awful news about the Bridger spill into the Yellowstone, PHMSA released its Final Order on ExxonMobil’s appeal of the fine imposed for its Silvertip spill. In the order, PHMSA responded to the operator’s (EMPCo’s) arguments that they had complied with the regulations relating to adequate risk assessments and integrity management measures to manage the identified risks:

The fact that flooding had not previously caused an integrity issue for Respondent’s pipeline does not mean future flooding could never cause a failure. One of the purposes of the integrity management regulations is to anticipate the possible threats to the pipeline in the future. Given that flooding is a threat in general and that flooding had caused integrity issues for other pipelines at the same location, it was not reasonable for EMPCo to assume seasonal flooding would never impact its own pipeline. At a minimum, the Operator had a duty to evaluate the likelihood of a pipeline release occurring from flooding. [Order at page 9.]

The order continues by analyzing the documents in the record to determine if such a risk analysis had been made, notes that the 2010 Preventive and Mitigative Measures Analysis identified only three risks to the line — third-party damage, manufacturing, and external corrosion — in spite of the fact that the entire line had been identified as one which could affect a high consequence area, and further noting that the presence of the Yellowstone River or the risk of a failure at its crossing was never mentioned.

The good news

The Conclusion of the PHMSA order on this violation is this:

Given the history of flooding and impact to other pipelines at this location, the threat of flooding was relevant to the likelihood of a release occurring on Respondent’s pipeline. Respondent did not evaluate the likelihood of a release caused by flooding of the Yellowstone River and failed to consider risk factors relevant to flooding. Accordingly, PHMSA finds Respondent violated § 195.452(i)(2) by failing to conduct a risk analysis of the Silvertip Pipeline that considered all risk factors relevant to the likelihood of a release on the Silvertip Pipeline and potential consequences affecting the Yellowstone River. [Order at page 12.]

This suggests that PHMSA may, in fact, be choosing Option D from my response to my friend King Fisher: d) actually enforcing integrity management obligations of operators to design for and mitigate against the risk of riverbed scour before an incident occurs.

Well, okay, technically, they haven’t yet enforced those obligations before an incident occurs as far as we know, but this is at least a start. Most importantly, it should certainly put every other operator on notice, whether they’ve had a flooding/riverbed scour/earth movement failure or not, that PHMSA will enforce the operators’ obligation to adequately assess those risks and to integrate sufficient preventive and mitigative measures into their integrity management programs to protect against failures. Unfortunately, PHMSA didn’t do that when they inspected the Silvertip a year or so before the Yellowstone rupture. When regulators enforce those obligations in routine inspections of integrity management programs independent of (and hopefully before) any incidents, that will indeed be good news.

NTSB’s recent study on systemic weaknesses in gas pipeline safety

News media recently reported that the National Transportation Safety Board (NTSB) found continuing systemic weaknesses in gas pipeline safety. What does the NTSB have to say about where improvements are needed?

The NTSB and the gas pipeline integrity management rules

The NTSB is a congressionally-mandated transportation agency that operates independently to conduct objective accident investigations and safety studies, and advocates for implementation of safety recommendations. The NTSB does not conduct investigations of all pipeline incidents; it investigates those in which there is a fatality, substantial property damage, or significant environmental impact. In the past five years, the NTSB investigated three major gas transmission pipeline accidents in which operator and PHMSA oversight deficiencies were identified as concerns, occurring in Palm City, FL (2009), San Bruno, CA (2010), and Sissonville, WV (2012). These three accidents resulted in 8 deaths, over 50 injuries, and 41 homes destroyed with many more damaged.

The five-member NTSB Board held a meeting on Tuesday and soon after released an abstract of their recommendations. [The full study is now available here.] The study focuses on gas transmission pipelines within High Consequence Areas – basically, areas with higher population – and therefore must have in place an integrity management program. Only about 7% of the nearly 300,000 miles of gas transmission pipelines nationwide are required to have an integrity management program, though the industry says many more miles are inspected under integrity management than what the rules require.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) gas pipeline integrity management program rules took effect in 2004. They require, among other things, that the pipeline operators inspect their gas pipelines at least every seven years, and have a program in place to assess risk and ensure their pipelines are safe and reliable. Integrity management rules are performance-based rather than prescriptive, and rely on the operator to have good and complete data that is continually evaluated. Pipeline operator integrity management programs are periodically inspected by PHMSA and/or state regulators to assess compliance. Theoretically, using integrity management, gas pipeline operators should be finding and addressing potential problems before they result in accidents. Clearly, that is not working as evidenced by the accidents mentioned, leading the NTSB to embark on their study.

The NTSB Study

The study highlights shortcomings of the gas transmission integrity management system, and underscores issues the Trust has been bringing up for years. [See our 2012 comments submitted to PHMSA on gas transmission line safety and our 2014 comments to PHMSA on improving the national pipeline mapping system.] The abstract from NTSB states, “there is no evidence that the overall occurrence of gas transmission pipeline incidents in HCA pipelines has declined.” The complexity of the integrity management programs require expertise in multiple technical disciplines from both operator personnel and pipeline inspectors, and PHMSA does not have the resources for guiding them. The thirty-three findings of the study are published in the abstract and are followed by twenty-eight recommendations.

In brief, many things need improvement, including much better geographic information so that inspectors and operators clearly know where pipelines and high consequence areas are, and all data is better integrated; better communication between state inspections lead by the National Association of Pipeline Safety Representatives and PHMSA; better use of in-line inspection tools and improved operation of the same; better threat identification and assessment methods, with PHMSA acting as a guide for pipeline operators and inspectors in this area; and generally stronger, clearer standards and criteria for both operator and inspector programs and personnel to raise the safety bar higher.

We sincerely hope that 2015 will be remembered not for more terrible pipeline accidents, but for safety improvements that are made in part when studies and recommendations like the NTSB’s are heeded.

New Natural Gas Pipelines and Proximity to Homes

We’ve had a couple inquires in the past few weeks from citizens who have property on or near which a new natural gas pipeline is being proposed. They have asked: 1) How close to homes can one of these pipelines be installed? and 2) What are the options to minimize the danger when developing pipelines in proximity to other structures if the pipeline were to rupture?

The answer to the first question is straightforward: There is no limitation on how close gas pipelines can be built to homes. The federal regulations say nothing about any minimum distance away from homes that pipeline installation must occur. There is language in the regulations that requires operators to generally protect the pipe from hazards, but often much is left up to the discretion of the operator. For example:

CFR §192.317(a), “The operator must take all practicable steps to protect each transmission line or main from washouts, floods, unstable soil, landslides, or other hazards that may cause the pipeline to move or to sustain abnormal loads….”

and,

CFR §192.325(a), “Each transmission line must be installed with at least 12 inches (305 millimeters) of clearance from any other underground structure not associated with the transmission line. If this clearance cannot be attained, the transmission line must be protected from damage that might result from the proximity of the other structure.”

The second question leads to a longer answer. And one we cannot address without making mention of PIPA (the Pipelines and Informed Planning Alliance), a group made up of industry (including representatives from interstate natural gas pipeline operators), government, and public representatives that developed a set of recommended practices for development near existing pipelines. This group met for years to address the very real concerns of development and pipelines impacting one another and posing risks to one another. Recommended practices include things like: “Reduce Transmission Pipeline Risk in New Development for Residential, Mixed-Use, and Commercial Land Use,” which states in part:

“…it is prudent to design buildings and related facilities in a manner that mitigates the potential impacts on people and property from a transmission pipeline incident. Locating structures away from the pipeline right-of-way (ROW), incorporating more stringent building fire safety measures are examples of mitigation techniques that may improve public safety and limit damage to buildings or infrastructure in the event of a transmission pipeline incident.”

It is puzzling to us how the industry can see the importance of these types of recommendations, and not see the importance of turning them around to apply to the development of new pipelines near existing buildings. We have been pushing PIPA to be reinvigorated and tackle this issue, but as of yet it has not happened.

Risks in proximity to gas pipelines are relative to the size and pressure of the pipeline. “A Model for Sizing High Consequence Areas Associated with Natural Gas Pipelines” was published in 2000 by Mark Stephens of C-FER Technologies, and prepared for the Gas Research Institute [LINK]. This report gives detailed explanations and calculations that lead to a proposed hazard area radius as a function of line diameter and pressure (see Figure 2.4 in the report). The hazard area radius is basically the area in proximity to the pipeline within which there would be virtually no chance of survival if a pipeline rupture and fire were to happen, and it varies in size from about 100 feet to about 700 feet for a 6-inch to 42-inch pipeline, respectively. For example, A 26-inch, 600 psi natural gas pipeline would have an approximate 450 foot hazard area radius, according to the C-FER model. The model does not take into account things like wind, topography, and any protection such as berms or fire walls.

States and (if the state does not preempt them) local communities may adopt their own setbacks between pipelines and homes. No jurisdiction that we know of has adopted the C-FER hazard area as the basis of setbacks from natural gas pipelines, though it has often been discussed. For jurisdictions that have adopted some sort of setback or consultation ordinances, see this link.

A few of the ordinances accessed through our website link specifically discuss evacuation, and evacuation is also addressed in the PIPA recommendations. Language repeated in a number of recommendations is “…buildings should have a safe means of egress with exits located where they would not be made inaccessible by the impacts of a pipeline incident. Similarly, cul-de-sac streets should not be designed crossing a transmission pipeline as the only route of ingress or egress could be blocked during a pipeline incident.”

Some gas pipelines lie within High Consequence Areas – basically areas with higher population density – and operators of those pipelines are required to have an integrity management program that includes conducting risk management and regular assessment of the pipeline. Depending on the location, the pipeline may also be required to have thicker walls or more frequent valve spacing.

While we know of no instances where FERC has denied a new gas pipeline application, there are instances where the pipeline route has changed due to environmental, safety, or other concerns brought to light during the FERC proceedings.