CHAPTER 5 AN INTRODUCTION TO FEDERAL PIPELINE SAFETY REGULATIONS
| Jurisdiction | United States |
(Jan 1995)
AN INTRODUCTION TO FEDERAL PIPELINE SAFETY REGULATIONS
Panhandle Eastern Corporation
Houston, Texas
Lisa M. Bogardus
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
New York, New York
TABLE OF CONTENTS
A. Introduction
B. Program Development and Implementation of Regulations
1. The Congressional Plan
2. Pre-existing Liquid Pipeline Regulations
3. Initial Regulations
4. The National Transportation Safety Board
C. Regulatory Growth and Maturity
1. The 1979 Amendments
a. LNG Regulations
b. The Hazardous Liquid Pipeline Safety Act
c. New Enforcement Powers
2. The 1985 and 1986 Amendments
a. The Consolidated Omnibus Budget Reconciliation Act of 1985
b. The 1986 Amendments
3. The 1988 Amendments
a. Carbon Dioxide Regulations
b. Data Acquisition Authority
c. State One-Call Program Procedures
d. Emergency Flow Restricting Devices
e. Drug and Alcohol Testing
4. The Trans-Alaska Pipeline System
5. The 1990 Amendments
6. The Oil Pollution Act of 1990
7. The 1992 Amendments
8. Significant Pending Rulemakings
a. Internal Inspection Devices (Smart Pigs)
b. Operator Qualification Rule
d. Excess Flow Valves
9. State Regulation of Pipelines
a. Federal Preemption of State Regulations
b. The National Association of Pipeline Safety Representatives
c. State and Local Government Interests
[Page 5-ii]
D. 1993 and Beyond -- The Post-Colonial/Edison Era
1. The New Jersey Summit
2. Current Status of One-Call Programs
3. The Future of the Federal/State Partnership
4. Mapping
5. Joint Initiatives of Industry and Government
E. Conclusion
———————
[Page 5-1]
A. Introduction
The total pipeline network in the United States consists of an estimated 1.835 million miles of pipeline owned and operated by some 2,450 natural gas pipeline operators and 255 liquid pipeline operators.1 There are approximately 90,000 miles of gathering lines, 355,000 miles of gas transmission lines, and 160,000 miles of hazardous liquid pipelines, and 14,000 miles of all pipelines are offshore in the Gulf of Mexico.2 Although pipeline transportation is statistically the safest mode of transporting natural gas and hazardous liquids,3 there is an increasingly vocal public discussion over whether this record can continue and, if not, what the risks are to the public and the environment.4 First, because population growth during the past several decades has encroached on pipelines' rights-of-way, the integrity of these pipelines bear a greater risk of damage from human activity. Second, because of the increasing proximity of the population to pipelines, more people may be exposed to the risks of pipeline accidents.
During nearly three decades of federal regulation, the pipeline safety program received sporadic public and congressional attention, usually only in response to media reports of isolated accidents causing personal injury or death. Not until 1993, however, did the question of how to manage the safety and environmental risks of pipeline transportation receive serious and continued attention, provoking for the first time in 1994 a public commitment from the Secretary of Transportation to change the historic paradigm of the pipeline safety program.5 This article discusses the evolution of the federal pipeline safety program,6 anticipates the development of
[Page 5-2]
a new regulatory paradigm, and suggests ways in which the industry will need to adjust to the new era of pipeline safety.
B. Program Development and Implementation of Regulations (1968-1979)
The years from 1970 to 1979 were a formative period in the history of the pipeline regulatory program. In addition to being a new and inexperienced agency, the Office of Pipeline Safety ("OPS") was understaffed, underfunded and had a rudimentary enforcement program. For example, in 1971, OPS was authorized to fill 29 positions, but filled only 23, and only two full-time positions were devoted to enforcement. A Director of the program was not formally appointed until 1972.7 By 1975, OPS had brought only a total of only 65 enforcement actions, more than 61 percent of which were for failure to file an annual report.8 With the oversight of Congress and the National Transportation Safety Board, OPS devoted its resources to developing and implementing the first federal pipeline safety regulations. OPS was slow to develop a comprehensive pipeline safety program, however, and the program that it did develop was driven by technical issues, familiar only to code specialists and pipeline engineers.
1. The Congressional Plan
Prior to 1968, the major interstate natural gas pipelines were designed, constructed, operated and maintained according to prescriptive industry standards, which had been adopted by a majority of the states.9 Pipeline transportation was the last remaining major transportation area whose safety was not regulated by the federal government.10 Although acknowledging that the safety record of the industry had been good, Congress in the late 1960's became concerned about the tremendous increase in the use of natural gas and the number of miles of natural gas lines, the concurrent growth of the population, and recent pipeline transmission and distribution accidents.11 As a result of these concerns, Congress enacted the Natural Gas Pipeline Safety Act of 1968 ("NGPSA" or the "Act").12
[Page 5-3]
The NGPSA instructed the Secretary of the Department of Transportation ("DOT") to adopt as federal minimum safety standards, the pipeline safety standards currently in effect in the states.13 Within two years, DOT was required to adopt its own safety regulations applicable to the transportation of gas by pipelines, which would preempt existing state safety requirements governing natural gas pipeline facilities.14 The NGPSA established as cooperative federal-state safety program, in which exclusive jurisdiction was vested in DOT over all interstate pipeline facilities, while states were encouraged, through the use of grants-in-aid, to voluntarily assume inspection and enforcement responsibilities for intrastate pipeline facilities.15 In order to participate in the program, the NGPSA required the state annually to certify, among other things, that the state standards were compatible and at least as stringent as the federal minimum standards, but in no event could states adopt safety standards applicable to interstate pipelines. In the absence of state certification, DOT would regulate intrastate pipelines.
If a state could meet the certification requirements of the NGPSA, then the state would have full authority to inspect and enforce intrastate pipeline safety standards; however, DOT could terminate the certification if it determined the state was not satisfactorily enforcing federal standards.16 Even if the state did not meet the certification requirements, DOT could enter into an agreement with the state to permit the state to inspect intra-state pipeline facilities and monitor a compliance program, except that the state could not enforce safety standards.17 In addition, Congress amended the NGPSA in 1972 to allow states to act as an agent of the Secretary with respect to interstate transmission pipelines.18 DOT was authorized to provide states up to 50 percent of costs to carry out any of these authorized state safety programs.19
The NGPSA also required pipeline operators to file and comply with inspection and maintenance plans to achieve the safe operation of each of the operator's pipeline facilities,20 and in 1976, Congress amended the NGPSA to require pipeline operators to educate the public on hazards associated with natural gas leaks.21
[Page 5-4]
The original NGPSA authorized DOT to assess civil penalties up to $1,000 for each violation, with a maximum aggregate of $200,00022 and to request injunctive relief from the United States District Courts pursuant to the Federal Rules of Civil Procedure,23 and in 1976, Congress amended the NGPSA to authorize citizen suits.24 The Secretary of Transportation and certified states were authorized to waive compliance with a standard, provided the waiver was "not inconsistent with pipeline safety,"25 and judicial review of both standards and waivers was provided for in the U.S. Court of Appeals for the D.C. Circuit.26 Enforcement authority under the NGPSA has been delegated by DOT to the Research and Special Programs Administration ("RSPA"),27 which in turn has delegated responsibility to the Office of Pipeline Safety ("OPS"). OPS has established five regions to cover the 50 states and Puerto Rico and five regional offices, staffed with inspectors to enforce compliance.28
2. Pre-existing Liquid Pipeline Regulations
Since 1967, DOT has had jurisdiction to regulate the pipeline transportation of hazardous liquids, which includes petroleum. Prior to 1967, however, jurisdiction over liquid pipelines was delegated to a number of other agencies. The Transportation of Explosives Act ("TOEA") granted the Interstate Commerce Commission ("ICC") authority to regulate liquid pipelines as early as 1908.29 In April 1967, authority to regulate the safety of liquid pipelines was transferred to the Federal Railroad Administration ("FRA"), an agency under DOT. In June 1967, the FRA issued general regulations on accident reporting applicable to liquid pipelines,30 and in 1969, the FRA issued safety regulations for the design, construction, operation and maintenance of pipelines carrying hazardous liquids and petroleum products, codified at 49
[Page 5-5]
C.F.R. Part 195.31 In 1972, Congress transferred authority to regulate liquid pipeline safety from the FRA to the Secretary of Transportation.32 The authority was ultimately delegated to the Materials Transportation Bureau ("MTB"), which was abolished in 1985 after its authority was transferred to the OPS.33
3. Initial Regulations
In 1970, and pursuant to the...
To continue reading
Request your trial