VCE
Out Of Sight, Out Of Mind: What Every Local Government Should Know About Pipeline Safety
James M. Pates (City Attorney, Fredericksburg, VA)

VIII. CITATIONS:

  1. "Spill Count at About 1 Million Gallons, " The Greenville News, July 12, 1996.
  2. "Fuel Explosion Kills 2 Teens, " Dallas Morning News, August 25, 1996.
  3. OFFICE OF PIPELINE SAFETY, DOT, ANNUAL REPORTS.
  4. OFFICE OF PIPELINE SAFETY, DOT, supra.
  5. Pipeline Explosion in San Bernardino, California: Hearings before the Subcommittee on Investigations and Oversight of the Committee on Public Works and Transportation, 101st Cong., Ist Sess. 5 (July 7, 1989) (testimony of Rep. George E. Brown, Jr.).
  6. 'It was Like Hell Opened Up, ' Houston Chronicle, October 21, 1994, at 1; Texas Pipeliners Assessing Flood Damage, Oil and Gas Journal, October 31, 1994, at 22.
  7. National Transportation Safety Board, PIPELINE ACCIDENT REPORT: WILLIAMS PIPELINE COMPANY LIQUID PIPELINE RUPTURE AND FIRE, MOUNDS VIEW, MINNESOTA, JULY 8, 1986 (NTSB/PAR-87/02), at v.
  8. Biancardi, An Introduction to Federal Pipeline Safety Regulations, OIL AND NATURAL GAS PIPELINES: WELLHEAD TO ENDUSER INSTITUTE, ROCKY MOUNTAIN MINERAL LAW FOUNDATION, Denver, Colorado (January 26, 1995, revised March 1, 1995), at 5-1.
  9. Pates, Reducing the Risk of Oil Pipeline Accidents: The Virginia Experience, ENVIRONMENT VIRGINL! '96 SYMPOSIUM, Lexington, Virginia (April 11, 1996).
  10. THE WILDERNESS SOCIETY, 100 SPILLS, 1,000 EXCUSES (March 1980), at 1.
  11. THE WILDERNESS SOCIETY, supra, at 2.
  12. Biancardi and Bogardus, From 'Command and Control ' to Risk Management: The Evolution of the Natural Gas Pipeline Safety Program, 16 ENERGY LAW JOURNAL 461 (1995), at 463.
  13. Both the NGPSA and the HLPSA are now jointly codified as 49 U.S.C. §60601, et seq.
  14. 49 CFR Parts 191 and 192.
  15. 49 CFR Part 193.
  16. 49 CFR Part 195.
  17. Although the safety statutes authorize up to 5O% reimbursement, Congress has rarely, if ever, fully funded the state reimbursement program.
  18. OFFICE OF PIPELINE SAFETY, DOT, supra.
  19. 49 U.S.C. §§60122, 60120, 60123.
  20. 49 U.S.C. §60112.
  21. Jurisdiction over offshore pipelines and facilities is divided between OPS and the Minerals Management Service, U. S. Department of Interior.
  22. Congress even delegated to OPS the responsibility under the Oil Pollution Act of 1990 to administer the requirement that on-shore oil pipeline operators prepare oil spill response plans. See 49 CFR Part 194.
  23. 18 CFR Part 157.
  24. Biancardi and Bogardus, supra, at 475.
  25. 49 U.S.C. § 60109.
  26. Doyle, CRUDE AWAKENING, THE OIL MESS IN AMERICA: WASTING ENERGY, JOBS AND THE ENVIRONMENT, Friends of the Earth (1994), at 86.
  27. The only significant exceptions have been two cases challenging the agency's authority to impose user fees in order to finance the federal safety program. In both cases, the court upheld the agency's right to impose such fees under authority specifically delegated by Congress. Skinner v. MidAmerica Pipeline Co., 490 U.S.212 (1989), Five Flags Pipe Line Co. v. DOT, 854 F. 2d 1438 (D.C.D.C. 1992).
  28. 49 U.S.C. §60104(c).
  29. Id
  30. United Gas Pipeline Co. v. Terrebonne Parish Police Jury, 319 F. Supp. 1138, 1142 (E.D. La. 1970), aff'd 445 F. 2d 301 (5th Cir. 1971). In dicta, the court noted, "Although the statute as drawn is invalid, this court feels that an ordinance could be framed to provide safety standards for local transmission lines." Also see, Shell Oil Company v. City of Santa Monica infra
  31. Northern Border Pipeline Company v. Jackson County. Minnesota. 512 F.Supp. 1261, 1265 (D.Minn. 1981). The court dismissed the locality's contention that its ordinance was aimed at natural resource protection, rather than safety, stating, "Whether or not federal legislation preempts state and local regulation rests on the effect rather than the stated purposes of the legislation." See also, Natural Gas Pipeline Co. of America v. Railroad Commission of Texas, 679 F.2d 51 (5th Cir. 1982), holding that a state regulation requiring companies conducting specified operations in the state to file specific procedures and safeguards to warn and protect the public against accident releases was preempted by the NGPSA.
  32. ANR Pipeline Company v. Iowa State Commerce Commission, 828 F.2d 465 (8th Cir. 1987). In upholding the state's user fees, the court also accepted the proposition that a state could control nonsafety aspects of pipeline operations. The issue became whether the non-safety portions of the state regulatory scheme could be 'severed" from the portions that were constitutionally invalid. The court ruled that "severability" was a state law question and that in this particular case, Iowa law did not allow severability. See also, Tenneco. Inc. v. Public Service Commission of West Virginia, 489 F.2d 334, 337 (4th Cir. 1973). In upholding West Virginia's right to impose user fees on interstate pipeline operators, Judge Butzner used a more studied and realistic approach toward untangling preemption. "Preemption of all phases of interstate gas pipeline safety," he wrote, "cannot be inferred from the fact that Congress has occupied a part of the field " This same approach of looking carefully at each state regulation to determine whether it fits into the overall intent of the Acts could support other potential state regulations. For example, a state law dictating higher standards for the siting of interstate liquid pipelines (e.g., requiring minimum width rights-of-way for new intrastate pipelines) might be upheld under the Tenneco analysis.
  33. Id, at 471
  34. National Fuel Gas Supply Corporation v. Public Service Commission of New York. 894 F.2d 571, 579 (2nd Cir. 1990).
  35. Kinley Corporation v. Towa Utilities Board. 999 F.2d 354, 359 (8th Cir. 1993).
  36. Williams Pipe Line Co. v Mounds View. Minnesota, 651 F.Supp. 551, 569 (D. Minn. 1987); See also, Williams Pipe Line Co. v. City of Mounds View. Minnesota, 704 F.Supp. 914 (D. Minn. 1989). .
  37. 49 U.S.C. §60121. Not only is this citizens suit provision far more restricted than other environmental statutes (e.g., "RCRA"), but it also contains a provision that allows a court to award attorney's fees to a pipeline operator if the citizen's claim is "unreasonable, frivolous, or meritless." The threat of having to pay a pipeline company's attorney's fees is so formidable that this provision could be characterized as having a "freezing", rather than a "chilling", effect on the right of citizens to seek redress through the courts.
  38. For purposes of summary judgment, the court assumed that the pipeline was intrastate. See Southern Pacific, infra
  39. Shell Oil Company v. City of Santa Monica, 830 F.2d 1052 (9th Cir. 1987). The window of opportunity provided by this expansive reading of the phrase "any State agency" was quickly shut in 1992 when Congress changed it to "a State authority that has submitted a current certification" under the intrastate program. 49 U.S.C. §60104(c).
  40. Southern Pacific Pipe Lines, Inc. v. U.S. Department of Trans., 796 F.2d 539 (DC. Cir. 1986).
  41. NATIONAL TRANSPORTATION SAFETY BOARD, PIPELINE SPECIAL 1NVESTIGATION REPORT: EVALUATION OF ACCIDENT DATA AND FEDERAL OVERSIGHT OF PETROLEUM PRODUCT PIPELIN'ES, (PR96-917002, NTSB/SIR-96/02)(January 23, 1996), at 4.
  42. OFFICE OF PIPELINE SAFETY, DOT, TASK FORCE REPORT, COLONIAL PIPELINE FATIGUE FAILURES (September 14, 1990).
  43. Letter from Rose McMurray, Acting Administrator, Research and Special Programs Administration, DOT, to Rep. Herb Bateman (December 17, 1993).
  44. Kieffier and Maxey, Updated Report on Operational Reliability Assessment of Colonial Pipeline Company's 32-lnch Line 4 to Colonial Pipeline Company, January 31, 1994 (draft).
  45. Neuhard, Michael, Fairfax County Battalion Fire Chief, A Pipeline Perspective, National Pipeline Safety Summit, Newark, New Jersey (June 20, 1994).
  46. The efforts of Fredericksburg and Fairfax paved the way for OPS' eventual imposition of safety restrictions on the 32-inch pipeline over its entire length from Texas to New York. A consent order between OPS and Colonial, issued August 14, 1996, places certain restrictions and requires testing and repairs on the 32-inch line from North Carolina to Maryland. Following the June 1996 accident in Greenville, South Carolina, OPS declared the rest of the 32-inch line a hazardous facility and required extensive "pigging" of the line over the next five years.
  47. 49 U.S.C. §601 12(c)
  48. Virginia Code §56-553, et seq
  49. Fairfax County Ordinance No. 95-275, adopted June 26, 1995
  50. NATIONAL TRANSPORTATION SAFETY BOARD, PIPELINE ACCIDENT REPORT: TEXAS EASTERN TRANSMISSION CORPORATION NATURAL GAS PIPELINE EXPLOSION AND FIRE, EDISON, NEW JERSEY, MARCH 23, 1994 (P.B. 95-916501, NTSB/PAR-95/01), at 1.
  51. Id, p. 74.
  52. The NTSB has recommended that the American Public Works Association, the American Society of Civil Engineers, the International City/County Management Association, and the American Planning Association cooperate on developing model programs and statutes to enhance public safety near high-pressure pipelines. Id, pp. 77-79.
  53. An excellent foundation has already been laid for such an effort. In 1988, in response to a request from the NTSB, the Transportation Research Board of the National Research Council published Special Report 219. Pipelines and Public Safety, on public and private policies to improve public safety near transmission pipelines. This report remains the best single source for local governments interested in pipeline safety.
  54. For example, current law only requires OPS to provide state and local governments with notice and an opportunity to comment on proposed consent orders. The Acts should be amended to require public notice and comment on all proposed non-emergency enforcement actions and testing plans and notification of all localities affected by emergency orders. It is shocking that OPS recently found the continued operation of Colonial's interstate pipeline to be "hazardous to life, property and environment, yet made no effort to communicate such a finding to, or seek input from, any of the localities along the pipeline route. See Binkley, 0: s. Agency Says Pipeline Is Hazardous, WALL STREET JOURNAL (Southeast Edition), September 25, 1996, at Sl.
Copyright © 1999 by Vermonters for a Clean Environment, Inc.
Updated: December 4, 1999