SNL - Frustrated by Pipeline Safety Oversight, Legislators Question PHMSA's Effectiveness

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By Sarah Smith

The persistent slowness of the U.S. pipeline safety rulemaking process is putting people and property at risk, members of Congress said April 14, pointing to multiple safety standards that have yet to be enacted.

The federal pipeline safety act, which outlines the U.S. Pipeline and Hazardous Materials Safety Administration's obligations, is up for reauthorization this year. However, many members of a House of Representatives Committee on Transportation and Infrastructure subcommittee expressed frustration at the idea of reauthorizing the act when so many mandates from the 2011 authorization remain incomplete.

"Later this year we're looking at pipeline reauthorization, and I've got to say as a member of the committee, I wonder why we should do that, because we still haven't implemented a majority of the 2011 [act]. If you look at what's not done … there's a number of really critical mandates from this Congress that are not done," Rep. Peter DeFazio, D-Ore., ex officio member of the Subcommittee on Railroads, Pipelines and Hazardous Materials, said during the April 14 hearing. "We're really talking about life and death here."

The Pipeline Safety, Regulatory Certainty and Job Creation Act of 2011, enacted in early 2012, included dozens of congressional mandates for PHMSA to tackle, including devising new rules for automatic and remote-controlled shut-off valves, maximum allowable operating pressures, integrity management and leak detection. Roughly half of these mandates have been addressed.

"We created PHMSA [in 2004] with the idea that we needed to have a laser-like focus and more efficiency and more distance from the controlled entities, and the solution was supposed to be PHMSA. I really wonder if it has worked," DeFazio said.

Rep. Jackie Speier, D-Calif., too, rebuked PHMSA for its rulemaking delays. Speier -- whose district includes San Bruno, the site of a deadly 2010 pipeline explosion -- said in testimony at the hearing that she has been struggling to advance pipeline safety for the past five years and has seen "very little progress," calling PHMSA a "toothless tiger [that] has overdosed on Quaaludes and passed out on the job."

Looking across all systems -- gas transmission, distribution and gathering; hazardous liquids; and LNG -- there were an average of 615 pipeline accidents annually over 2010-2014, leading to a five-year annual average of 15 deaths, 73 injuries and $555 million in property damage, according to PHMSA. Year-to-date, there have been 183 incidents, resulting in two fatalities, 13 injuries and over $32 million in property damage, PHMSA reported as of April 13.

PHMSA, which missed its July 2013 congressional deadline to complete certain rulemaking activities, has been trying to address many of the remaining mandates, along with multiple National Transportation Safety Board recommendations, in a single gas-focused pipeline safety rule. PHMSA Acting Administrator Timothy Butters told the subcommittee that PHMSA is engaged in back-and-forth within the U.S. Department of Transportation over the gas safety rule but hopes to produce the regulation soon. Butters noted that the rulemaking has required extensive data collection and research, including analyses of historical risk and technical feasibility.

PHMSA and the Federal Railroad Administration have also been working on new rules governing crude-by-rail safety in light of a host of high-profile accidents involving oil trains across the U.S. and Canada. However, as the accident total mounts, the rules have yet to be finalized.

Butters and Federal Railroad Administration Acting Administrator Sarah Feinberg faced extensive criticism from subcommittee members from both parties, who asked how it was possible that rules could be pending for months or years at a time.

"We should be built for speed. We should be built for safety. That is the obligation of this Congress -- to make sure that we implement rules and regulations that help make the public safer. That is one of our constitutional duties," Rep. Cresent Hardy, R-Nev., said. "Could somebody help tell me where we're going wrong as a Congress and where we're going wrong as administrators?"

Feinberg said that she and other administrators can appreciate and relate to the legislators' frustrations, and she pointed to hang-ups within the regulatory process itself. If Congress wants to see regulation and governance become more nimble, "the rulemaking process is not the way to do it," she said.

"We have to function within the regulatory process that exists, and it's not built for speed," Feinberg said. "There are nine different steps in the U.S. regulatory process, and I wish that we could move through them quicker and in a more efficient way. But the reality is that if we want to be truly efficient, we'd end up regulating by emergency order."

Rulemakings at PHMSA and the Federal Railroad Administration have also been met with concerns from myriad stakeholders, protracting the process, Butters and Feinberg said at the hearing. Taking into consideration tens of thousands of comments on rules, such as the 30,000 PHMSA received on the rail rule, is a time-consuming task, Butters noted.

Further, when PHMSA first unveiled in summer 2013 its integrity verification process -- an unofficial version of the pending gas safety rule -- the administration took heat from all sides, with industry representatives and regulators alike expressing concerns that the PHMSA is trying to tackle too much at once. The administration has since attempted to revise the rule.

The industry itself has requested finality on the new regulations to avoid uncertainty going forward.

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