[Congressional Record: November 14, 2002 (Senate)]
[Page S11067-S11069]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr14no02pt2-99]
THE PIPELINE SAFETY IMPROVEMENT ACT OF 2002
Mr. HOLLINGS. Madam President, I am pleased that last night the
Senate unanimously passed pipeline safety legislation in the form of
H.R. 3609, the Pipeline Safety Improvement Act of 2002. This bill is
the product of over three years of bipartisan work and compromise, and
I thank my colleague, Senator McCain, for his leadership on this
important issue.
Mr. McCAIN. I would like to thank my many colleagues for joining us
in supporting this important legislation. This bill will result in
improvements in the safety regulatory program at the Department of
Transportation, increased levels of safety throughout our national
pipeline system, and in the communities through which pipelines run.
This bill contains several important improvements, including:
requirements for minimum standards for pipeline integrity management
programs, requirements for public education programs, and requirements
that the Office of Pipeline Safety and the Research and Special
Programs Administration comply with safety recommendations made by the
National Transportation Safety Board and the Department of
Transportation Inspector General, many of which have already been
started.
Mr. HOLLINGS. To expedite enactment of the significant pipeline
safety reforms included in this bill, the leadership of the Senate
Committee on Commerce, Science, and Transportation has worked with the
House Committees on Transportation and Infrastructure and Energy and
Commerce in developing the compromise agreement. This Joint Explanatory
Statement therefore represents the views of the Chairman and Ranking
Member of the Senate Commerce Committee, along with the Chairmen and
Ranking Members of the Transportation and Infrastructure Committee and
the Energy and Commerce Committee. This Joint Explanatory Statement
will provide legislative history for interpreting this important
pipeline safety legislation.
I ask unanimous consent that this statement be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Section-by-Section Analysis
Section 1. Short title; amendment of title 49, United States Code
This section designates the act as the ``Pipeline Safety
Improvement Act of 2002.''
Section 2. One-call notification programs
This section requires that state one-call notification
programs provide for the participation of government
operators and contract excavators. Section 2 also requires
that state one-call notification programs document enumerated
items set forth in the statute. Additionally, the requirement
that the Secretary of Transportation include certain
information in reports submitted under section 60124 of Title
49 is made permanent. Authorizations for appropriations for
grants to states for fiscal years 2003 through 2006 are
provided at $1,000,000 per year, and grants for
administration in section 6107(b) are updated for fiscal
years 2003 through 2006. This section also amends section
6105 of Title 49 by requiring the Secretary of Transportation
to encourage the states, operators of one-call notification
programs, operators of underground facilities, and excavators
(including government and contract excavators) to use the
practices set forth in the best practices report entitled
``Common Ground,'' as periodically updated, and requires the
Secretary of Transportation to provide technical assistance
to a non-profit organization specifically established for the
purpose of reducing construction-related damage to
underground facilities. Authorizations for appropriations for
fiscal years 2003 through 2006 are provided at $500,000 per
year, but would not be derived from user fees collected under
section 60301 of title 49.
Section 3. One-call notification of pipeline operators
This section provides for the enforcement of one-call
notification programs by a state authority if the state's
program meets the requirements set forth in the statute. The
application of the term ``person'' who intends to engage in
an activity necessitating the use of the one-call system is
expanded to include government employees or contractors.
This section amends section 60123(d) of Title 49 by
rearranging the phrase ``knowingly and willfully'' to address
the problem raised when a court interpreted existing law to
require a knowing and willful standard to, not only engaging
in an excavation activity, but also to subsequently damaging
a pipeline facility. The consequence of the court's
interpretation makes prosecutions more difficult by requiring
the government to show the defendant knew subsequent damages
would result from excavation activity and that the
defendant's conduct was willful. This section of the bill
corrects the court's interpretation by now requiring that the
``knowingly and willfully'' standard apply only to engaging
in an excavation activity.
This section also provides that penalties under the
criminal penalties section can be reduced if the violator
promptly reports a violation.
Section 4. State oversight role
This section amends section 60106 of Title 49 to allow the
Secretary of Transportation to make an agreement with a state
authority authorizing the state authority to participate in
the oversight of interstate pipeline transportation including
incident investigation, new construction, and other
inspection and investigatory duties. However the Secretary
shall not delegate the enforcement of safety standards for
interstate pipeline facilities to a state authority. This
section further provides that the Secretary may terminate
agreements with the State authorities if a gap results in
the State authority's oversight responsibilities of
intrastate pipeline transportation, the State authority
fails to meet requirements set forth in this section, or
continued participation in the oversight of interstate
pipeline transportation would not promote pipeline safety.
Existing state agreements shall continue until a new
agreement between the state and the DOT is executed or
December 31, 2003, whichever is sooner.
Section 5. Public education programs
Section 5 amends section 60116 of Title 49 to include
hazardous liquid pipeline facilities in this section
requiring a continuing program to educate the public on the
use of one-call notification systems, the possible hazards
associated with unintended releases, and how to tell if an
unintended release occurred, what steps should be taken for
public safety in the event of a pipeline release, and how to
report such an event. This section also requires owners and
operators to review existing public education programs for
effectiveness and to modify their programs as necessary. In
addition, the section allows the Secretary to issue standards
prescribing the elements of public education programs and
develop materials for use in such programs.
Previous versions of Senate-passed pipeline safety
legislation also included a provision calling for the
coordination of emergency preparedness between operators of
pipeline facilities and state and local officials, as well as
to provide for public access to certain safety information.
Agreement was not reached on how safety information could be
accessed by the public in a manner that would protect
security-sensitive information from distribution. The
managers agreed that this issue would be better dealt with in
the context of the pending homeland security legislation.
Section 6. Protection of employees providing pipeline safety
information
This section adds provisions for the protection of
employees who are discharged or otherwise discriminated
against with respect to compensation, terms, conditions, or
privileges of employment for (1) providing information to the
federal government about alleged violations of Federal law
relating to pipeline safety; (2) refusing to participate in
any practice made illegal by Federal law relating to pipeline
safety; or (3) assisting or
[[Page S11068]]
participating in any proceeding to carry out the purposes of
pipeline safety legislation. This section establishes the
procedural framework in which complaints are handled by the
Secretary of Labor and the remedies available to the
prevailing party.
This section contains a provision that essentially says if
a preliminary order provides that an employee must be allowed
to return to work, the filing of an objection by the employer
``shall not operate to stay any reinstatement remedy
contained in the preliminary order.'' The intention of this
language is to assure that the mere filing of an objection
would not work as an automatic stay, thus precluding an
employee from returning to work pending the outcome of the
matter. However, this language would not preclude an employer
from filing an independent motion for a stay if sufficient
grounds exist for the filing of such a motion.
Section 7. Safety orders
Section 7 adds a paragraph to section 60117 of Title 49 to
give the Secretary of Transportation authority to order an
operator of a facility to take corrective action if the
Secretary decides that a potential safety-related condition
exists. The Office of Pipeline Safety (OPS) requested this
provision so that corrective action could be taken
immediately rather than waiting until a facility is
classified as ``hazardous'' prior to requiring corrective
action.
Section 8. Penalties
This section modifies the existing penalties provision set
forth in section 60112 of Title 49 to allow the Secretary of
Transportation to decide if the operation of a pipeline
facility, is ``or would be'' hazardous to life, property, or
the environment. The purpose of the modification is to give
the Secretary authority to take action prior to the facility,
the construction of the facility, or any component of the
facility actually becoming hazardous, thereby establishing a
framework of preventative actions, rather than actions only
in response to an imminent hazard.
In subsection (a)(1) of section 60122, the amounts of the
penalties have been increased. The per day, per incident,
amount has been increased from $25,000 to $100,000. The
maximum civil penalty for a related series of violations has
been increased from $500,000 to $1,000,000. This section of
the bill also provides that, in determining the amount of a
civil penalty, the Secretary of Transportation shall consider
as an additional consideration in section 60122(b) of Title
49, the adverse impact on the environment. The Secretary of
Transportation may consider the economic benefit gained from
the violation without reduction because of subsequent
damages.
This section also modifies the enforcement section of the
statute (section 60120(a)(1) of Title 49) by specifically
providing that the court may award appropriate relief,
including a temporary or permanent injunction, punitive
damages, and the assessment of civil penalties. The current
statutory language specifying that the Attorney General
may proceed only at the request of the Secretary of
Transportation remains in effect.
Section 8 also requires that the Comptroller General
conduct a study of the actions, policies, and procedures of
the Secretary of Transportation for assessing and collecting
fines and penalties.
Section 9. Pipeline safety information grants to communities
Section 9 requires the Secretary of Transportation to make
grants for technical assistance to local communities and
groups of individuals (not including for-profit entities)
relating to the safety of pipelines in local communities. The
purpose of this provision is to provide grants to communities
for technical assistance such as engineering or scientific
analysis of pipeline safety issues. Applicants must compete
for the grants in a procedure established by the Secretary of
Transportation, who shall also establish the criteria for the
recipients. Additionally, the Secretary must establish
procedures to ensure that the funds have been properly
accounted for and spent in a manner consistent with the
purpose of the grants. Any one-grant recipient may not
receive more than $50,000. The grant funds cannot be used for
lobbying or in direct support of litigation. This section
authorizes the appropriation of $1,000,000 for each of the
fiscal years 2003 through 2006.
Section 10. Operator assistance in investigations
This section requires the operator of a pipeline facility
to make available information and records to the Secretary of
Transportation or the National Safety Transportation Board
(NTSB) in the event of an accident, subject to constitutional
protections for operators and employees. Actions taken by an
operator pursuant to this section shall be in accordance with
the terms and conditions of any applicable collective
bargaining agreement.
Section 11. Population encroachment and rights-of-way
This section requires the Secretary of Transportation,
along with the Federal Energy Regulatory Commission (FERC)
and other federal agencies and state and local governments,
to study land use practices and zoning ordinances, as well as
the preservation of environmental resources, with regard to
pipeline rights-of-way. Based upon the purposes set forth in
this section, a report is to be written that identifies
successful practices, ordinances, and laws addressing
population encroachment on pipeline rights-of-way, being
mindful of protecting the public safety, pipeline workers,
and the environment. The report must be completed within one
year from the date of enactment and provided to Congress,
appropriate federal agencies, and the States for further
distribution to the appropriate local authorities.
Section 12. Pipeline integrity, safety, and reliability research and
development
This section requires the heads of the participating
agencies to carry out a program of research, development,
demonstration, and standardization to ensure the integrity of
pipelines. The Secretary of Energy, Secretary of
Transportation, and the Director of the National Institute of
Standards and Technology (NIST) each have defined roles. The
Secretary of Transportation, in coordination with the
Secretary of Energy and the Director of the National
Institute of Standards and Technology, shall prepare and
submit to Congress a 5-year plan to guide the activities
under this section. The plan shall also be submitted to the
Technical Pipeline Safety Standards Committee and the
Technical Hazardous Liquid Pipeline Safety Standards
Committee for review. The section authorizes appropriations
for the fiscal years 2003 through 2006 in the following
amounts: Secretary of Energy: $10,000,000; the Secretary of
Transportation: $10,000,000; and the National Institute of
Standards and Technology: $5,000,000. Any sums authorized
pursuant to this section shall not be derived from user fees.
In addition $3,000,000 from the Oil Spill Liability Trust
Fund shall be transferred to the Secretary of Transportation,
as provided in appropriations Acts, to carry out programs for
detection, prevention, and mitigation of oil spills for each
of the fiscal years 2003 through 2006.
Even though the Secretary of Transportation does not
regulate gathering lines, the participating agencies are
encouraged to include such lines in their research,
development, demonstration, and standardization efforts on
the integrity of gathering lines.
Section 13. Pipeline qualification programs
This section requires the Secretary of Transportation to
require operators of pipeline facilities to develop
qualification programs for their personnel who perform
covered tasks (as defined in the Code of Federal
Regulations). This section also requires the Secretary to
have in place standards and criteria for such qualification
programs, including a method for examining or testing the
qualifications of individuals who perform covered tasks. Such
method may include written examination, oral examination, on-
the-job training, simulations, observation during on-the-job
performance, and other forms of assessment. The method may
not be limited to observation of on-the-job performance,
except with respect to tasks where the Secretary has
determined specifically that such observation is the best
method of examining or testing qualifications. Further, the
Secretary must ensure that the results of any such on-the-job
performance observations are documented in writing. The
Secretary may waive or modify requirements if not
inconsistent with pipeline safety. The Secretary is required
to verify each operator's qualification program, including
modifications to previously verified programs. In the event
the Secretary fails to establish standards and criteria as
set forth in this section, pipeline facility operators are
required to develop and implement qualification programs
based on the requirements of this section. The Secretary is
required to report to Congress within 5 years on the
status and results of personnel qualification regulations.
A pilot program is established for the certification of
individuals who operate computer-based systems for
controlling the operations of pipelines. The pilot program
seeks the participation of 3 pipeline facilities.
Section 14. Risk analysis and integrity management programs for gas
pipelines
This section requires operators of pipeline facilities
subject to section 60109 of Title 49 to adopt and implement a
written integrity management program to reduce risks to each
facility. Within 12 months of the enactment of the bill, this
section requires the Secretary of Transportation to prescribe
standards to direct each operator's conduct of a risk
analysis and adoption and implementation of an integrity
management program, which must occur within 24 months from
the enactment of the section. Minimum requirements are set
forth in this section for integrity management programs and
for the rule regulating the same, which include a baseline
integrity assessment of each of an operator's facilities
which must be completed within 10 years after the enactment
of the section (at least 50 percent of such facilities shall
be assessed no later than 5 years after the date of enactment
of this section), and a reassessment of each facility at a
minimum of once every 7 years, with prioritization being
based on all relevant risk factors, including any previously
discovered defects or anomalies and any history of leaks,
repairs, or failures.
The Secretary of Transportation is required to issue a rule
on integrity management programs, and each operator of a
pipeline facility subject to section 60109 of Title 49 is
required to adopt and implement an integrity management
program, even if the Secretary does not issue a rule. This
section does not apply to natural gas distribution lines
because section 60109 of Title 49 does not, nor was it
intended to, apply to natural gas distribution lines.
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Section 14 authorizes the Secretary of Transportation to
grant waivers and modifications pursuant to section 60118(c)
of Title 49 for any requirement for reassessment of a
facility for reasons that may include the need to maintain
local product supply or the lack of internal inspection
devices. The waivers or modifications shall not be
inconsistent with pipeline safety.
This section also requires that the Comptroller General
conduct a study to evaluate the 7-year reassessment interval
required by this section. The study is to be completed and
transmitted to Congress no later than 4 years from the date
of enactment.
In this section, each operator of a gas pipeline facility
is required to conduct a risk analysis for facilities located
in high consequence areas and to adopt and implement an
integrity management program for each such facility to reduce
associated risks. This section requires each operator to
prioritize facilities for integrity assessment based on
all risk factors, including any history of leaks, repairs,
or failures, and directs the operator to give priority to
facilities with the highest risks.
The Department of Transportation's Research and Special
Programs Administration (RSPA) issued a final rule defining
``high consequence areas'' on August 6, 2002. The managers
strongly support RSPA's regulation defining high consequence
areas, although recognize that the definition could be
subject to alteration by future regulatory action by RSPA.
Pipeline safety regulations have long required gas
operators to survey and patrol along their pipeline rights-
of-way to classify areas of population. The new definition of
high consequence areas builds on the existing classification
of areas where the potential consequences of a gas pipeline
accident may be significant or may do considerable harm to
people and their property, and includes current class 3 and 4
locations, facilities with persons who are mobility impaired,
confined, or hard to evacuate, and places where people gather
for recreational and other purposes.
In the July 2002 Technical Pipeline Safety Standards
Committee meeting to consider the proposed definition, RSPA
made clear its intent to include in its definition known
areas where people gather, such as the Pecos River pipeline
crossing near Carlsbad, New Mexico, which was commonly used
by campers and fishermen and was the location of a pipeline
rupture in August 2000 that resulted in 12 fatalities. The
managers support is expressed for this new definition of high
consequence areas and expect RSPA to further clarify the
application of the definition in the substantive rule to be
issued on integrity management programs.
Section 15. National Pipeline Mapping System
Section 15 requires operators of pipeline facilities,
except distribution lines and gathering lines, to provide to
the Secretary of Transportation geospatial data appropriate
for use in the National Mapping System, the name and address
of the person with primary operational control, and a means
for a member of the public to contact the operator for
additional information about the facilities. There is a
requirement to update the information as necessary.
Section 16. Coordination of environmental reviews
Section 16 requires the President to establish an
interagency committee for the purpose of developing and
ensuring the implementation of a coordinated environmental
review and permitting process in order for pipeline operators
to complete all activities necessary to carry out pipeline
repairs within any time periods specified by rule by the
Secretary of Transportation.
The chairman of the Council on Environmental Quality shall
chair the Interagency Committee, which shall consist of
representatives of Federal agencies with responsibilities
relating to pipeline repair projects. The Interagency
Committee shall evaluate Federal permitting requirements and
shall examine the access, excavation, and restoration
practices of the pipeline industry for the purpose of
developing a compendium of best practices used by the
industry to access, excavate, and restore the site of a
pipeline repair. Based upon the evaluation conducted, the
members of the Interagency Committee shall enter into, by
unanimous consent, a memorandum of understanding to provide
for the coordinated and expedited pipeline repair permit
review process so that pipeline operators may commence and
complete pipeline repairs within any time periods imposed on
the repair projects by rules promulgated by the Secretary of
Transportation. Each agency represented on the Interagency
Committee is required to revise its regulations to implement
the provisions of the memorandum of understanding.
This section also provides for the implementation of
alternative mitigation measures to be used by operators of
pipeline facilities until all applicable permits have been
granted. To the extent necessary, the Secretary of
Transportation is required to revise the regulations of the
Department to accommodate such implementation. However, such
revisions shall not allow an operator of a pipeline facility
to implement alternate mitigation measures unless to do so
would be consistent with the protection of human health,
public safety, and the environment; the operator has applied
for and is diligently and in good faith pursuing all required
Federal, state, and local permits necessary to carry out the
repair project; and is compatible with pipeline safety.
The Secretary of Transportation is required to designate an
ombudsman to assist in expediting pipeline repairs and
resolving disagreements between Federal, state, and local
permitting agencies and the operator of a pipeline facility.
The actions of the ombudsman must be consistent with the
protection of human health, public safety, and the
environment.
The Secretary of Transportation is required to encourage
states and local governments to consolidate their respective
permitting processes for pipeline repair projects that are
subject to any time periods for repairs specified by rule by
the Secretary of Transportation.
Section 17. Nationwide toll-free number system
Section 17 requires the Secretary of Transportation to work
in conjunction with the Federal Communications Commission
(FCC), facility operators, excavators, and one-call
notification system operators for the establishment of a
nationwide toll-free 3-digit telephone number system to be
used by state one-call notification systems.
Section 18. Implementation of Inspector General recommendations
Section 18 requires the Secretary of Transportation to
respond to each of the recommendations of the Department of
Transportation Inspector General contained in RT-2000-069
every 90 days and to submit the responses to the appropriate
committees of Congress.
Section 19. NTSB safety recommendations
Section 19 requires RSPA and OPS to respond to
recommendations received from the NTSB within 90 days from
receipt of such recommendations. Such responses shall state
the intentions of the OPS with respect to the recommendations
and shall state the timetable for completing the procedures
and reasons for refusals to do so. The responses shall be
made available to the public. The OPS is required to submit
an annual report describing each recommendation received and
the OPS response to each recommendation for the previous
year.
Section 20. Miscellaneous amendments
Section 20 amends section 60102(a) of Title 49 by adding
language expressing that the purpose of the chapter is to
provide adequate protection against risks to life and
property posed by pipeline transportation pipeline facilities
by improving the regulatory and enforcement authority of the
Secretary of Transportation.
This section also modifies the qualifications of the
individuals selected to serve on the Technical Safety
Standards Committees pursuant to section 60115 of Title 49 so
that none of the individuals selected for committee
membership from the general public ``may have a significant
financial interest in the pipeline, petroleum, or gas
industry.'' The intent of this provision is to prevent
industry employees and individuals with a sizable stake in
the pipeline industry from serving as representatives from
the general public, not prevent service from individuals who
have pipeline, petroleum, or gas industry stock interests in
their retirement plans.
Section 21. Technical amendments
Section 21 makes technical amendments to correct previous
drafting errors in the existing legislation.
Section 22. Authorization of appropriations
Section 22 authorizes appropriations for the Department of
Transportation and state grants for safety programs for the
fiscal years 2003 through 2006.
Section 23. Inspections by direct assessment
Section 23 requires the Secretary of Transportation to
issue regulations prescribing standards for inspections of a
pipeline facility by direct assessment.
Section 24. State pipeline safety advisory committees
Section 24 requires the Secretary of Transportation to
respond within 90 days after receiving recommendations from
advisory committees appointed by the Governor of any state.
Section 25. Pipeline bridge risk study
Section 25 requires the Secretary of Transportation to
conduct a study to determine whether cable-suspension
pipeline bridges pose structural or other risks. The
Secretary may only use funds specifically appropriated to
carry this section.
Section 26. Study and Report on Natural Gas Pipeline and Storage
Facilities in New England
Section 26 requires the Federal Energy Regulatory
Commission, in consultation with the Department of Energy, to
conduct a study on the natural gas pipeline transmission
network in New England and natural gas storage facilities
associated with that network and report back to the relevant
House and Senate Committees within a year of the date of
enactment.
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