[Congressional Record Volume 148, Number 147 (Thursday, November 14, 2002)]
[Senate]
[Pages S11067-S11069]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              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.

[[Page S11069]]

       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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