V. THE EXPERIENCE OF THREE LOCAL GOVERNMENTS

For localities such as Fredericksburg and Edison that have experienced pipeline disasters, the lessons they have learned have been slow and painful. But their experience has proven that despite the legal barriers imposed by preemption, local governments can still make a contribution toward improved pipeline safety. The stories of the following three communities show that each has taken a slightly different tack in response to their accidents but each has helped reduce the risk of future accidents, both in their own localities and nationally.

As noted earlier, Fredericksburg suffered its first accident on March 6, 1980, when a 32-inch interstate oil pipeline owned by Colonial Pipeline Company that runs from Texas to New York ruptured near the village of Locust Grove, 20 miles west of Fredericksburg. The failure occurred in a defective joint of pipe due to a longitudinal crack caused by a phenomenon known as "railroad fatigue". When the pipeline was built in 1962-64, certain joints were improperly loaded and shipped by rail from the manufacturer to the project site, causing the pipe to jostle and develop hairline cracks that went undetected at the time of installation. After years of normal operating pressure cycles, these cracks slowly grew to the point of failure.

Nine years later, on December 18, 1989, during a bitterly cold winter, disaster struck again at Locust Grove. The same 32-inch pipeline failed spontaneously due to the same type of defect, less than five miles from the previous accident. This time, 212,000 gallons of kerosene spilled into the Rapidan and Rappahannock Rivers. Colonial quickly erected two containment dams and, over the next 12 days, attempted to recover the spilled product. Unfortunately, these efforts were impeded due to the remote location of the spill site and to a solid layer of ice that trapped the kerosene underneath. On New Year's Eve, following a rapid thaw and heavy rains, the containment dams broke and kerosene flowed downstream toward Fredericksburg. Again, fish and game were killed, the City's water supply was cut off, and drinking water had to be hauled from Stafford County for seven days.

Three years later, on March 28, 1993, a parallel 36-inch pipeline owned by Colonial line ruptured again in Virginia, this time in Fairfax County near the nation's capital. Roughly 407,700 gallons of diesel fuel flowed into Sugarland Run, a tributary of the Potomac River, in what turned out to be the largest oil spill in Virginia's history. The release caused significant environmental damage and threatened water supplies in parts of Northern Virginia, Maryland, and the District of Columbia.

According to the NTSB, the "probable cause" of the Fairfax accident was excavation damage that had taken place at some "undetermined time". ⁴¹ The Safety Board found that more than 200 contractors and groups had performed work in the general area of the rupture during the six-year period from the time a nearby medical complex was constructed to the date of the accident. With so much construction activity going on nearby, it was impossible to pinpoint any single event or contractor that had damaged the pipe.

As a result of these accidents, Fredericksburg and Fairfax officials began independent efforts to learn the causes of their respective accidents, to educate themselves about pipeline regulations generally, and to seek reforms that would reduce the likelihood of future accidents. They repeatedly sought help from OPS in trying to secure vigorous enforcement action against Colonial and to push for greater local input in pipeline safety matters.

Their experience with OPS was not encouraging. After the 1989 spill, Fredericksburg officials expressed serious concerns to OPS about the continuing hazards posed by the 32-inch line. Despite these concerns and the City's desire to be kept actively involved in the enforcement process, OPS secretly negotiated a "voluntary testing plan" with Colonial in August 1990. The plan called for Colonial to test the line hydrostatically by the end of 1991, to prepare an "operational reliability assessment" (ORA) that would attempt to predict the likelihood of future accidents due to railroad fatigue, and to maintain a reduced maximum operating pressure of 445 psi. Upon obtaining a copy of the agreement, the City was dismayed to discover that it enabled the agency to permit Colonial to resume normal operating pressure at any time without notice to or input from the City. Although its citizens had suffered as a result of the spill, neither they nor the City had any redress or opportunity to appeal the agency's agreement or any future action.

A month later, in September 1990, OPS released a special internal task force report whose findings were even more alarming. According to the report, Colonial had experienced a series of six accidents on the 32-inch pipeline, with spills in Alabama, South Carolina, Virginia, and New Jersey. The report revealed that railroad fatigue had been a known risk at the time the line had been constructed, that hydrostatic testing was the only available means of detecting fatigue cracking, and that it was impossible to pinpoint where other defective segments of pipe might be. Finally, the report predicted that there would be future failures due to rail fatigue unless "corrective action" was taken. ⁴² In other words, the 32-inch line was another accident just waiting to happen.

Soon after the testing plan went into effect, Colonial began hydrostatically testing the line within the City's watershed, a distance of roughly 20 miles. The good news from these tests was that it ruptured only once as a result of the pressure testing. The bad news was that it ruptured in the same joint of pipe that had failed in the 1980 accident. As incredible as it may seem, the company had only replaced half of the joint that had failed in 1980, leaving the remaining half in the ground. ⁴³

Over the next three years, Colonial submitted several drafts of the ORA, but OPS refused to share copies of them with the City, even after a Freedom of Information Act request was filed. Finally, in February 1994, OPS released a draft to Fredericksburg and Fairfax officials and invited comment. The report only served to confirm the localities' fears about the reliability of the 32inch line. The report concluded that even though Colonial had hydrostatically tested the line and reduced the pressure cycles on the pipeline by bringing an abandoned pump station back on line, another rail-fatigue failure was likely to occur within the next six years. ⁴⁴

Meanwhile, Fairfax County had hired its own pipeline experts and had become increasingly concerned about some of the most basic design and safety standards for pipelines, including those for natural gas. Among the major concerns identified by the County and its consultants were:

1. The thin-walled high-pressure pipe used by Colonial in its petroleum pipelines might not have sufficient fault tolerance to allow early detection and repair of cracking due to cyclic fatigue. The County questioned whether OPS' design standards were adequate to protect public safety and the environment.
    
2. Colonial's excavation of defective portions of the 36-inch pipeline in Fairfax had revealed, in 40 out of 88 digs, that damage had been caused by bedrock or rock in the backfill. The County feared that such defects might indicate poor construction practices.
    
3. OPS had never instituted requirements for periodic testing of liquid pipelines. This was of particular concern to the County, given the aging condition of many pipelines.
    
4. The County's rapid population growth and development near pipelines presented an increasing threat of third-party damage and a heightened risk of injuries or loss of life. The County was particularly concerned that if the 1993 accident had occurred just two hours later, the pipeline would have contained highly flammable gasoline. ⁴⁵
    

The County, in a series of high-level contacts with Secretary of Transportation Federico Pena, identified these concerns and lobbied successfully to get DOT to prevent Colonial from resuming normal operating pressure until some of these questions had been resolved. As of today, normal operating pressure has not resumed on either the 32- or the 36-inch pipeline. ⁴⁶

In the aftermath of these three major spills, local officials in Fredericksburg and Fairfax have taken the following steps:

1. Public participation - In 1992, Fredericksburg secured passage of an amendment to the Acts allowing greater public participation in OPS enforcement proceedings. ⁴⁷ OPS is now required to share draft consent orders negotiated between the agency and pipeline operators with affected state and local governments. This ensures that localities and states which have suffered major pipeline accidents will at least have notice and an opportunity to comment on certain proposed OPS enforcement actions.
    
2. State certification - Fredericksburg, with the support of Fairfax County and Virginia's State Corporation Commission (SCC), persuaded the General Assembly in 1994 to enact Virginia's own Hazardous Liquid Pipeline Safety Act. ⁴⁸ This legislation authorized the state's public utilities commission to assume federal regulatory and inspection jurisdiction over intrastate and interstate liquid pipelines in Virginia. This will achieve two important objectives. First, it will enable the SCC to impose its own user fees and hire an adequate number of inspectors. Second, it will give the state and its political subdivisions far greater control over the regulatory process and more influence with OPS.
    
3. Local land use - Over a two-year period following the 1993 spill, Fairfax County undertook a comprehensive review of its land use regulations to see what local steps could be taken to reduce the risk of future spills. In June 1995, the County amended its comprehensive plan, zoning, and subdivision ordinances:

   - to strictly limit allowable land uses within gas and liquid pipeline easements

   - to prohibit the use of pipeline easements in calculating minimum lot sizes, thus encouraging the placement of buildings farther away from pipelines;

   - to require developers to identify the location of pipelines and easements on all major site plans, generalized development plans, and commercial building permit applications; and

   - to require developers to forward copies of their proposed site and subdivision plans to affected pipeline operators for review and comment. ⁴⁹

   
    

Apart from any specific initiatives undertaken by either Fredericksburg and Fairfax, their single most important accomplishment locally has been a "sea change" in the way the two localities have incorporated pipeline safety awareness throughout their local governmental organizations, from HAZMAT training to building codes, from land use controls to environmental protection. This new awareness has also prompted them to establish an ongoing dialogue with state and federal pipeline regulators and operators. Finally, it has prompted them to continue to push for fundamental reforms in the way pipelines are regulated on a national level.

An accident very different from the two Virginia accidents hit Edison, New Jersey, on March 23, 1994. At midnight, a 36-inch interstate gas transmission line owned and operated by Texas Eastern Transmission Corporation ruptured, causing the buried pipe to explode and form a crater 140 feet long and 6 feet wide. Within minutes, an unknown source ignited the gas, creating a fireball that extended 400 to 500 feet in the air. Although eight nearby apartment buildings were totally destroyed and 1,500 residents evacuated, there were only 112 injuries and no fatalities. ⁵⁰

An NTSB investigation revealed that the accident was caused by undetermined excavation damage at some undetermined time within the past eight years. Most likely, the damage was the result of construction equipment, such as a backhoe, that cracked the surface of the pipe and grew over time to a critical size due to metal fatigue. ⁵¹

The accident occurred within the confines of an industrial asphalt plant. In 1960, roughly 13 years after the pipeline was laid, the 8-acre plant was bought by Edison Asphalt Corporation. Since that time, an asphalt plant has operated continuously on the site. Despite the fact that the pipeline company's easement prohibited the asphalt plant from grading within the easement area, the site was re-graded frequently and a pond located directly over the pipeline was re-located and dredged repeatedly. The company had no pipeline markers on the asphalt plant property and several employees testified that they were unaware of the pipeline's existence. To make matters worse, investigators unearthed a crushed Ford Ranger pickup truck on the site that had been reported stolen in 1990. In short, the pipeline easement was routinely disturbed and even the scene of illegal dumping.

The NTSB report provided a virtual "laundry list" of mistakes and neglect on the part of Texas Eastern, the asphalt company, OPS, and other government officials. The agency made 25 recommendations, including several aimed directly at local government organizations ⁵², but stopped short of recommending that an industrial facility such as an asphalt plant not be permitted to operate in such close proximity to a high-pressure transmission pipeline.

Following the accident, Edison Township took a series of steps to protect against future accidents:

1. The Township adopted ordinances establishing a 75-foot building and land disturbance setback from all distribution, gathering, and transmission pipelines, requiring a 125-foot setback for construction of high-risk buildings near pipelines, and mandating that all site development plans submitted to the township include information about pipeline location, type, size, and operating pressure, both on the subject property and within 75 feet off-site.
    
2. The Township encouraged Texas Eastern to undertake a pilot project for the installation of remotely operated shut-off valves along the pipeline route, so that in the event of future accidents, the flow of gas could be more quickly shut off.
    
3. Edison joined with other New Jersey localities in securing passage of a new state statute converting the state's voluntary one-call "Miss Utility" system into a mandatory program. Mayor Spadoro testified before Congress and got the Township's Congressional delegation to sponsor a federal one-call bill. This legislation failed to pass both houses and still awaits action.