WSR 97-07-042

PERMANENT RULES

UTILITIES AND TRANSPORTATION

COMMISSION

[Docket No. TO-960810, General Order No. R-439--Filed March 14, 1997, 2:37 p.m.]

In the matter of adopting WAC 480-75-002, 480-75-005, and 480-75-230, relating to hazardous liquid pipeline safety.

The Washington Utilities and Transportation Commission takes this action under Notice No. WSR 96-21-121 filed with the code reviser on October 22, 1996. The commission brings this proceeding pursuant to RCW 80.01.040.

This proceeding complies with the Open Public Meetings Act (chapter 42.30 RCW), the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act of 1971 (chapter 34.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).

The proposal is undertaken so that Washington state will comply with federal requirements to retain certification under the Pipeline Safety Law, 49 U.S.C. Section 60101, et seq., and to participate in the federal pipeline safety program. The proposal will adopt, by reference, the federal hazardous liquids pipeline safety standards (49 CFR Part 195) and the drug and alcohol testing regulations (49 CFR Part 199) to conform state regulation of intrastate hazardous liquids pipeline companies with existing federal regulations. Furthermore, it will require that intrastate hazardous liquid pipeline companies submit an accident report or safety-related condition report to the Washington Utilities and Transportation Commission as well as to the federal Office of Pipeline Safety as required by 49 CFR Part 195, Subpart B.

The commission filed a Preproposal Statement of Inquiry (CR-101) on July 2, 1996, as WSR 96-14-097. The notice advised interested persons that the commission was considering entering a rule making on the adoption of federal (hazardous liquids pipeline safety) rules by reference with added statute provisions to bring state rules into conformity with existing federal rules. The commission also informed persons of the inquiry into this matter by providing notice of the subject and the CR-101 to all persons on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3) and by sending notice to all registered gas companies and the commission's list of common carrier pipeline companies. Pursuant to the notice, the commission did receive written comments and did engage in a preproposal workshop on August 8, 1996, involving commission staff members, representatives of the pipeline industry, and members of the public, to discuss the adoption of federal standards governing pipelines transporting hazardous liquid materials. At the workshop, Ms. Claudia Newman with the law firm of Bricklin and Gendler, LLP, representing the Cascade Columbia Alliance, recommended adopting intrastate hazardous liquid pipeline safety regulations more stringent than those set forth in 49 CFR Part 195. Industry representatives responded that more stringent regulations do not necessarily equate to safer pipelines. Commission staff stated that it was not recommending the adoption of more stringent regulations in this proceeding. Industry representatives who were present voiced no opposition to the commission's proposal to adopt the federal hazardous liquid pipeline safety standards, 49 CFR Part 195. Gary Saenz, with Chevron Pipe Line Company, left a telephone voice message offering support for the commission proposal.

The commission filed a notice of proposed rule making (CR-102) on October 22, 1996, as WSR 96-21-121. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 96-21-121 in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission until November 15, 1996.

Ms. Claudia Newman submitted written comments.

The rule change proposal was considered for adoption, pursuant to the notice, at the commission's open public meeting on November 26, 1996, before Chairman Sharon L. Nelson, Commissioner Richard Hemstad, and Commissioner William R. Gillis. The commission heard oral comments from Ms. Claudia Newman, attorney, reiterating her written comments that the federal hazardous liquid pipeline safety regulations were too lax and did not provide sufficient protection for the environment within the state of Washington. Her comments emphasized her opinion that the commission should adopt hazardous liquid pipeline safety regulations more stringent than those set forth in 49 CFR Part 195.

Steve Rieger, representing commission staff, recommended the adoption of the current proposal instead of more stringent intrastate hazardous liquids pipeline safety regulations.

After considering all of the information regarding this proposal, the commission adopted the proposed rule amendment, without changes from the text noticed in WSR 96-21-121. The adoption of these rules will extend existing federal/state gas pipeline safety cooperation to hazardous liquids pipeline safety and will provide coordinated local/state standards to promote continued safe operations of pipelines within the state of Washington. The existence of common standards offers benefits to the public, to regulatory agencies, and to the regulated industry.

The commission recognizes that public health and safety within the state of Washington, and the state's environment, are of great importance and should not be subjected to degradation. However, more stringent or more prescriptive hazardous liquid pipeline safety regulations do not necessarily provide additional protection for public health or safety or for the environment. The hazardous liquid pipeline safety regulations, as identified in 49 CFR Part 195, stress performance criteria. The exact mechanism for pipeline safety is left to the determination of the operator. The operator must demonstrate that the pipeline system is operated and maintained safely and does not compromise public safety or cause environmental degradation. The commission's involvement in intrastate hazardous liquid pipeline safety will promote pipeline safety through additional regulatory oversight by well trained and knowledgeable state pipeline safety personnel. The Department of Ecology has regulatory oversight of the environmental concerns pertaining to hazardous liquid pipeline operators and is in a position to assure that environmental protection is not compromised. Adopting the existing federal regulations now does not preclude the commission from adopting more stringent provisions later, when a need for them is demonstrated by experience or further study.

This rule making will not affect in any way the existing regulatory authority of the state Department of Ecology.

In reviewing the entire record, the commission determines that WAC 480-75-002, 480-75-005 and 480-75-230 should be adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect pursuant to RCW 8.04.010 [34.05.380(2)] on the 31st day after filing with the code reviser.

order


the commission orders:

1. WAC 480-75-002, 480-75-005 and 480-75-230 are adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect on the 31st day after the date of its filing with the code reviser pursuant to RCW 8.04.010 [34.05.380(2)].

2. This order and the rule set out below, after being recorded in the register of the Washington Utilities and Transportation Commission, shall be forwarded to the code reviser for filing pursuant to chapters 80.04 and 35.05 [34.05] RCW and chapter 1-21 WAC.

3. The commission adopts the commission staff memoranda, presented when the commission considered filing a Preproposal Statement of Inquiry, when it considered filing the formal notice of proposed rule making, and when it considered adoption of this proposal in conjunction with the text of this order, as its concise explanatory statement of the reasons for adoption and for rejection of proposed changes, as required by RCW 34.05.025.

Number of Sections Adopted in Order to Comply with Federal Statute: New 3, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

dated at Olympia, Washington, and effective this 12th day of March 1997.

Washington Utilities and Transportation Commission

Sharon L. Nelson, Chairman

Richard Hemstad, Commissioner

William R. Gillis, Commissioner

APPENDIX "A"


NEW SECTION

WAC 480-75-002 Application of rules. These rules shall apply to pipeline facilities and the transportation of gasoline, oil, petroleum, or hazardous liquids. The purpose of the rules is to provide minimum safety standards and reporting requirements for the transportation of gasoline, oil, petroleum, and hazardous liquids by pipeline. These rules shall apply to the design, construction, operation, maintenance, and safety of pipeline facilities used in gathering, carrying, or transporting gasoline, oil, petroleum, or hazardous liquids in this state, except those pipeline facilities exclusively under federal jurisdiction as prescribed by the Pipeline Safety Law, 49 U.S.C. Section 60101.

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NEW SECTION

WAC 480-75-005 Compliance with federal standards. Operators of pipeline facilities transporting gasoline, oil, petroleum, or hazardous liquids in this state shall design, construct, maintain, and operate pipeline facilities in compliance with the provisions of 49 CFR, Parts 195 and 199, in effect on (the date this rule is adopted), except that any specific provisions in this chapter control in the event of inconsistency between this chapter and the referenced federal rules. The incorporation of 49 CFR, Part 195, Subpart B, Reporting Accidents and Safety-Related Conditions, is revised as follows:

1. Include "Washington Utilities and Transportation Commission" where "Administrator, Office of Pipeline Safety, Research and Special Programs Administration, or Department of Transportation" appear.

2. Include "Washington Utilities and Transportation Commission Pipeline Safety Section, at its office at 1300 S. Evergreen Park Drive SW, P.O. Box 47250, Olympia, Washington, 98504-7250," where telephone or addresses appear for the "Information Officer, Information Resources Manager, or Office of Pipeline Safety."

49 CFR, Parts 195 and 199, are available for public inspection at the commission branch of the Washington state library, located in the Olympia office of the commission. Copies are also available from the Government Printing Office Bookstore, Seattle, Washington.

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NEW SECTION

WAC 480-75-230 Modification/waivers. If a gasoline, oil, petroleum, or hazardous liquids pipeline company determines that an undue hardship or an unsafe condition may result from the application of any rule in this chapter, application may be made to the commission for a waiver of the rule. Every request for a waiver shall be accompanied by full and complete justification for such requested deviation. The petitioning company shall describe how it will meet the requirements of this chapter in the absence of the waived rule, which may include proposed amendments to this chapter. Requests for waiver will be written, properly documented, and submitted to the commission. A company shall concurrently submit to the commission all petitions for waiver of any pipeline safety rule filed with the federal government or other governmental authority.

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