October 2018, Vol. 245, No. 10
Features
A Look at Government’s Role in Pipeline Safety, Maintenance
By Beth Everage, policy director, HBW Resources
As existing U.S. pipeline infrastructure ages and new projects face increased public scrutiny, it’s important that measures are in place to ensure safe operations. Currently, America has 206 million miles of pipelines that deliver 16.2 billion barrels of liquid products – think crude oil, gasoline, diesel and ethane1 – and over 25 Tcf of natural gas.2
Pipelines are by far the safest way to transport crude oil and petroleum products, with cargo safely reaching its destination 99.99% of the time.3 This strong performance record, in addition to the below legal and regulatory regimes, should give Americans confidence that products transported by pipelines are the safest and the best option available.
Regulatory Framework
In response to the country’s growing pipeline network, the Natural Gas and Pipeline Safety Act of 1968 (NGPSA) authorized the U.S. Department of Transportation (DOT) to develop minimum federal safety standards for natural gas pipelines. Modeled after the NGPSA, the Hazardous Liquid Pipeline Safety Act of 1979 (HLPSA) added hazardous liquid pipeline safety to DOT’s jurisdiction and established minimum federal safety standards for pipeline transport of hazardous liquid.
In 1994, Congress merged and recodified NGPSA and HLPSA as the Pipeline Safety Act (PSA). DOT delegated the regulation of pipeline safety under the PSA to the Pipelines and Hazardous Materials Safety Administration (PHMSA).
Over the years, Congress has amended the PSA several times. These revisions typically occur every four years as Congress reviews and reauthorizes PHMSA programs. The most recent amendment to the PSA, the Protecting Our Infrastructure of Pipelines and Enhancing Safety Act, also known as the PIPES Act, was signed by President Obama in 2016. Key items from the PIPES Act include:
- Requires PHMSA to update Congress every 90 days on rulemaking timelines, progress and constraints
- PHMSA must comply with new or unaddressed mandates under the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011
- Establishes a task force to provide Congress with an analysis of factors concerning natural gas storage leaks, mitigation measures to stop leaks, and leaks’ effect on the environment
- Reauthorizes and increases funding for PHMSA through fiscal year 2019
PHMSA is given authority under the PSA to issue rulemaking to establish domestic intrastate and interstate safety standards for the “design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, and maintenance of pipeline facilities.”4
Pipeline safety regulations also incorporate by reference standards and recommended practices from organizations and trade associations such as the American Petroleum Institute, the American National Standards Institute, the American Society of Chemical Engineers, and the American Society for Testing and Materials.
Governments’ Role
Congress has also permitted states to regulate, inspect and enforce intrastate pipelines via PHMSA’s state certification program. This process requires states to adopt the minimum federal safety standards, but states may also adopt more stringent standards if they are compatible with federal requirements.
If a state does not participate in the certification program, its intrastate facilities are subject to inspection and enforcement by PHMSA. In 2017, all states, barring Alaska and Hawaii, were certified by PHMSA to act as the safety authority for intrastate natural gas pipelines. However, only 15 states were certified for the intrastate hazardous liquid program.5 To support certified states, PHMSA offers grants to reimburse a portion of the annual expenses incurred for personnel and equipment necessary to conduct state pipeline safety programs.
States are preempted from enforcing safety standards for interstate pipelines. However, a state may agree to participate as PHMSA’s interstate agent for the oversight of interstate pipelines. State agents may participate in incident investigations and may assume inspection duties, but PHMSA is responsible for enforcing any violations. Currently, only nine states hold interstate agent agreements with PHMSA.6
Federal and state laws preempt local governments from developing pipeline safety rules. Typically, local governments address these issues by passing ordinances or resolutions that govern development near pipelines or ensure local emergency responders have adequate resources to address any incidents.
Pipeline Safety Challenges
Increased domestic shale production has forced the nation’s pipeline network to expand at a rapid rate. With the growing demand for new infrastructure, PHMSA faces increased scrutiny as it works to ensure the safety and maintenance of new and existing pipelines. Incidents such as the 2015 Aliso Canyon gas leak in California have highlighted some regulatory gaps the agency must address in the near future.
Interstate Inspections
In May 2018, the U.S. Government Accountability Office (GAO) released a report assessing PHMSA’s interstate agent agreements. Historically, PHMSA has used interstate agents to complement existing federal inspection resources. The report noted the agency lacks an inspection workforce plan and recommended that PHMSA develop a workforce plan for interstate pipeline inspections to assure sufficient staffing levels for future infrastructure inspections.
High-profile pipeline safety incidents coupled with growing anti-energy sentiment and public protests have increased the public’s awareness of pipeline safety. In response, PHMSA announced in June 2018 that it would post public notice of enforcement hearings, enabling the public and press to attend. This decision was made following a request by the Reporters Committee for Freedom of the Press (RCFP).
Katie Townsend, RCFP’s Legal Director called PHMSA’s move “a positive step toward greater transparency that will allow the public to better monitor and understand what PHMSA does and how it does it.”7 Additionally, the 2016 PIPES Act requires PHMSA to establish a multi-stakeholder working group to create an information sharing system to improve communication between regulators, industry and safety groups.
Security, Cybersecurity
Cyber and physical attacks on U.S. infrastructure are a real and growing threat. Following the 9/11 attacks, DOT prepared Pipeline Security Contingency Planning Guidance and a Pipeline Security Information Circular. Oil and gas pipelines are subject to PHMSA regulations to address physical security threats; however, no such rules are currently in place to address cyber-attacks.
In March 2018, the Transportation Safety Administration has authority over all DOT modes of transportation, including pipelines, issued its Pipeline Security Guidelines. The guidelines call upon pipeline operators to establish corporate policies and procedures to address cybersecurity related threats. TSA also recommends implementing the National Institute of Standards and Technology’s Framework for Improving Critical Infrastructure Cybersecurity as corporate best practices.
PHMSA Reauthorization
On June 21, 2018, PHMSA Administrator Howard Elliott testified before the House Transportation and Infrastructure, Subcommittee on Railroads, Pipelines, and Hazardous Materials that the agency has not been able to complete 34 of the 42 pipeline safety rules mandated under the Pipeline Safety, Regulatory Certainty and Job Creation Act of 2011.
The agency also has six outstanding mandates from the 2016 PIPES Act.8 Regulatory reform mandates by the Trump Administration have placed strict “two-for-one” requirements on new regulations directing that for everyone new regulation issued, at least two prior regulations be identified for elimination. This will force PHMSA to address future rulemaking with a streamlined approach. This could prove particularly challenging as PHMSA’s reauthorization approaches and the agency will also likely acquire additional mandates to address issues such as public awareness and cybersecurity. P&GJ
Author: Beth Everage is policy director at HBW Resources where she provides support for the development of policy positions, stakeholder communications and marketing for the organization. Beth has eight years of experience as manager, Energy & Environmental Policy at the Greater Houston Partnership.
Comments