6441 AAS 2/14/00 S4757

6441 AAS 2/14/00 S4757.3

SB 6441 - S AMD - 126

By Senators Spanel, Fraser and Morton

ADOPTED 2/14/00

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. The intent of this act is to protect the health and safety of the citizens of the state of Washington and the quality of the state's environment by developing and implementing environmental and public safety measures applicable to persons transporting hazardous liquids and gas by pipeline within the state of Washington. The legislature finds that public safety and the environment may best be protected by adopting standards that are equal to, or more stringent than, those adopted by the federal government, so long as they do not impermissibly interfere with interstate commerce.

The legislature recognizes that additional federal authority is needed to implement a comprehensive pipeline safety program and by this act and other measures directs the state to seek that authority.

NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Dangerous release" means a release of hazardous liquid or gas that: (a) Poses a clear and immediate danger to life or health; (b) threatens a significant loss of property; or (c) threatens significant environmental damages.

(2) "Department" means the department of ecology.

(3) "Failsafe system" means a nonelectronic or mechanically based system that prevents a pipeline from exceeding its maximum operating pressure in the event of a failure of the primary or electronic system designed for this purpose.

(4) "Gas" has the meaning given to it in 49 C.F.R. Part 192.

(5) "Hazardous liquid" means: (a) Petroleum, petroleum products, or anhydrous ammonia as those terms are defined in 49 C.F.R. Part 195 in effect March 1, 1998; and (b) carbon dioxide. The department by rule may incorporate by reference other substances designated as hazardous by the secretary of transportation under 49 U.S.C. Sec. 60101(a)(4).

(6) "Local government" means a subdivision of the state or a city or town.

(7) "Person" means an individual, partnership, franchise holder, association, corporation, a state, a city, a county, or any subdivision or instrumentality of a state, and its employees, agents, or legal representatives.

(8) "Pipeline" or "pipeline system" means all parts of a pipeline facility through which a hazardous liquid or carbon dioxide moves in transportation, including, but not limited to, line pipe, valves, and other appurtenances connected to line pipe, pumping units, fabricated assemblies associated with pumping units, metering and delivery stations and fabricated assemblies therein, and breakout tanks.

(9) "Pipeline company" means a person or entity constructing, owning, or operating a pipeline for transporting hazardous liquid or gas.

(10) "Process safety management systems" means management systems that include coordinated and interdisciplinary evaluations of the effect of significant changes to a pipeline system before such changes are implemented.

(11) "Release" means a spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, leaching, dumping, disposing, flowing, or any other uncontrolled escape of a hazardous liquid or gas from a pipeline.

NEW SECTION. Sec. 3. (1) The department shall have charge for the state of the administration and enforcement of all laws related to hazardous liquid pipeline safety. To the extent not expressly prohibited by federal law, the department shall develop and implement a comprehensive program of pipeline safety.

(2) The department shall adopt rules for pipeline safety standards for hazardous liquid pipeline transportation that:

(a) Require pipeline companies to design, construct, and maintain their pipeline facilities so they are safe and efficient;

(b) Require pipeline companies to rapidly locate and isolate all releases from hazardous liquid pipelines, including:

(i) Installation of remote control shut-off valves at a distance of no less than four to ten miles in urban areas and twenty to sixty miles in rural areas, depending on the type and density of development, the presence of environmentally sensitive areas, and the application of appropriate engineering standards. The installation of remote valves shall include design features and safety procedures to minimize risks associated with valve malfunctions;

(ii) Installation of remotely monitored pressure gauges and meters at each pump station and remote valve location; and

(iii) Emergency response procedures, combined with training, for shutting down pumps, locating leaks and spills, and shutting appropriate valves as rapidly as possible;

(c) Require the training and certification of personnel who operate hazardous liquid pipelines and the associated systems; and

(d) Require hazardous liquid pipeline companies to submit operations safety plans once every five years and provide no less than annual plan updates that identify plan implementation progress, as well as any amendments to the plan made necessary by changes to the pipeline system or its operation.

(3) The department shall approve operations safety plans if they have been deemed fit for service. A plan shall be deemed fit for service when it provides for pipelines that are designed, developed, constructed, operated, and periodically modified to provide the highest practicable level of public safety. Pipeline operations safety plans shall include:

(a) A schedule of inspection and testing within the pipeline distribution system of:

(i) All mechanical components;

(ii) All electronic components; and

(iii) The structural integrity of all pipelines as determined through pressure testing and internal inspection tool surveys;

(b) Failsafe systems;

(d) Emergency management training for pipeline operators.

(4) The department shall coordinate information related to pipeline safety by providing technical assistance to local planning and siting authorities and to the energy facility site evaluation council established in chapter 80.50 RCW.

(5) The department shall evaluate, and consider adopting, proposals developed by the federal office of pipeline safety, the national transportation safety board, and other agencies and organizations related to methods and technologies for testing the integrity of pipeline structure, leak detection, and other elements of pipeline operation.

NEW SECTION. Sec. 4. The pipeline companies shall develop a curricula aimed at the prevention of third-party excavation damage to hazardous liquid and gas pipelines. The curricula must be reviewed and approved by the department and the utilities and transportation commission. The curricula shall be made available to municipal workers and construction workers who are involved in construction work within the right-of-way or easement of a hazardous liquid and gas pipeline. The curricula shall include training on:

(1) Prevention of damage to pipelines;

(2) The danger involved if a pipeline is damaged;

(3) The significance of pipeline damage that does not cause immediate failure; and

(4) The importance of immediately reporting damage to a pipeline and the importance of immediately repairing a damaged pipeline.

NEW SECTION. Sec. 5. (1) The department and utilities and transportation commission shall require hazardous liquid and gas pipeline companies to provide accurate maps of their pipeline distribution networks to specifications developed by the department including depth information.

(2) The department and the utilities and transportation commission shall evaluate the accuracy of the maps and consolidate the maps into a state-wide geographic information system, and fill any gaps for which companies or local governments may have no information. The mapping system shall be used in conjunction with the one-number locator service as provided in chapter 19.122 RCW. The mapping system shall be compatible with the United States department of transportation national pipeline mapping program.

NEW SECTION. Sec. 6. A new section is added to chapter 43.110 RCW to read as follows:

The municipal research council shall, by June 30, 2001, develop and periodically update, for the consideration by local governments:

(1) A model ordinance that establishes setback and depth requirements for new hazardous liquid and gas pipeline construction;

(2) A model franchise agreement for jurisdictions through which a hazardous liquid or gas pipeline is located; and

(3) Protective standards applicable to existing and proposed hazardous liquid and gas pipelines in densely populated areas and environmentally sensitive areas.

NEW SECTION. Sec. 7. (1) The department shall seek and accept federal designation of the department's inspectors as federal agents for the purposes of enforcement of the federal hazardous liquid pipeline safety act (49 U.S.C. Sec. 60101 et seq.), and federal rules adopted to implement that act, as they exist as of the effective date of this act. The department shall establish and submit to the United States secretary of transportation an inspection program that complies with requirements for delegated interstate agent inspection authority. If the secretary of transportation delegates inspection authority to the state as provided in this subsection, the department, at a minimum, shall do the following to carry out the delegated federal authority:

(a) Inspect hazardous liquid pipelines periodically as specified in the inspection program;

(b) Collect fees;

(d) File reports with the United States secretary of transportation as required to maintain the delegated authority.

(2) The department shall also seek federal authority to adopt safety standards related to the monitoring and testing of interstate hazardous liquid pipelines.

(3) Upon designation under subsection (1) of this section or under a grant of authority under subsection (2) of this section, to the extent authorized by federal law, the department shall adopt rules for interstate pipelines that are no less stringent than the state's laws and rules for intrastate hazardous liquid pipelines.

NEW SECTION. Sec. 8. The department shall inspect, as necessary, any record, map, or written procedure required by federal law to be kept by a hazardous liquid pipeline company concerning the reporting of dangerous releases, and the design, construction, testing, or operation and maintenance of hazardous liquid pipelines.

NEW SECTION. Sec. 9. A new section is added to chapter 81.88 RCW to read as follows:

The commission shall inspect, as necessary, any record, map, or written procedure required by federal law to be kept by a gas pipeline company concerning the reporting of dangerous releases, and the design, construction, testing, or operation and maintenance of gas pipelines.

NEW SECTION. Sec. 10. (1) All powers, duties, and functions of the utilities and transportation commission pertaining to hazardous liquid pipeline safety, except economic regulatory authority under chapters 80.28, 80.24, and 81.24 RCW, are transferred to the department of ecology. The timing of the transfer shall be facilitated by a memorandum of agreement between the two agencies, with any disputes resolved by the office of financial management. The transfer shall be completed by June 30, 2001. All references to the commission or the utilities and transportation commission in the Revised Code of Washington shall be construed to mean the director or the department of ecology when referring to the functions transferred in this section.

(2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the utilities and transportation commission pertaining to the powers, functions, and duties transferred shall be delivered to the custody of the department of ecology. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the utilities and transportation commission in carrying out the powers, functions, and duties transferred shall be made available to the department of ecology. All funds, credits, or other assets held in connection with the powers, functions, and duties transferred shall be assigned to the department of ecology.

(b) Any appropriations made to the utilities and transportation commission for carrying out the powers, functions, and duties transferred shall, on the effective date of this section, be transferred and credited to the department of ecology.

(c) Whenever any question arises as to the transfer of any personnel, funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.

(3) All employees of the utilities and transportation commission engaged in performing the powers, functions, and duties transferred are transferred to the jurisdiction of the department of ecology. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the department of ecology to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.

(4) All rules and all pending business before the utilities and transportation commission pertaining to the powers, functions, and duties transferred shall be continued and acted upon by the department of ecology. All existing contracts and obligations shall remain in full force and shall be performed by the department of ecology.

(5) The transfer of the powers, duties, functions, and personnel of the utilities and transportation commission shall not affect the validity of any act performed before the effective date of this section.

(6) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.

(7) Nothing contained in this section may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the personnel board as provided by law.

NEW SECTION. Sec. 11. (1) A hazardous liquid and gas pipeline safety advisory committee is established to advise the department, the utilities and transportation commission, energy facility site evaluation council, and other appropriate federal, state, and local government agencies and officials on matters relating to pipeline safety, routing, construction, operation, and maintenance. Members of the advisory committee shall be appointed by the governor to staggered three-year terms and, at a minimum, shall consist of representatives of local government, including elected officials and the general public. The committee shall review and comment on proposed rules and the operation of the state pipeline safety programs.

(2) The advisory committee established in subsection (1) of this section constitutes a class one group under RCW 43.03.220. Expenses for this group, as well as staff support provided by the department, shall be funded through a legislative appropriation to the department.

NEW SECTION. Sec. 12. A new section is added to chapter 19.122 RCW to read as follows:

The utilities and transportation commission shall establish by December 31, 2000, a single state-wide toll-free telephone number to be used for referring excavators to the appropriate one-number locator service. The utilities and transportation commission, in consultation with the Washington utilities coordinating council, shall establish minimum standards and best management practices for the one-number locator service consistent with the recommendations of the governor's fuel accident prevention and response team issued in December 1999.

Sec. 13. RCW 19.122.030 and 1988 c 99 s 1 are each amended to read as follows:

(1) Before commencing any excavation, the excavator shall provide notice of the scheduled commencement of excavation to all owners of underground facilities through a one-number locator service.

(2) Whenever excavation work is to occur within twenty-five feet of a hazardous liquid or gas pipeline, the state-wide one-number locator service established under section 12 of this act shall be notified. In addition, if the excavation work is to occur within five feet of a hazardous liquid or gas pipeline, the pipeline company that owns or operates the pipeline shall be notified, and its representative shall be on-site, prior to the start of excavation.

(3) All owners of underground facilities within a one-number locator service area shall subscribe to the service. One number locator service rates for cable television companies will be based on the amount of their underground facilities. If no one-number locator service is available, notice shall be provided individually to those owners of underground facilities known to or suspected of having underground facilities within the area of proposed excavation. The notice shall be communicated to the owners of underground facilities not less than two business days or more than ten business days before the scheduled date for commencement of excavation, unless otherwise agreed by the parties. The notice shall also comply with the requirements of section 16 of this act.

(4) Upon receipt of the notice provided for in this section, the owner of the underground facility shall provide the excavator with reasonably accurate information as to its locatable underground facilities by surface-marking the location of the facilities. If there are identified but unlocatable underground facilities, the owner of such facilities shall provide the excavator with the best available information as to their locations. The owner of the underground facility providing the information shall respond no later than two business days after the receipt of the notice or before the excavation time, at the option of the owner, unless otherwise agreed by the parties. Excavators shall not excavate until all known facilities have been marked. Once marked by the owner of the underground facility, the excavator is responsible for maintaining the markings. Excavators shall have the right to receive compensation from the owner of the underground facility for costs incurred if the owner of the underground facility does not locate its facilities in accordance with this section.

(5) The owner of the underground facility shall have the right to receive compensation for costs incurred in responding to excavation notices given less than two business days prior to the excavation from the excavator.

(6) An owner of underground facilities is not required to indicate the presence of existing service laterals or appurtenances if the presence of existing service laterals or appurtenances on the site of the construction project can be determined from the presence of other visible facilities, such as buildings, manholes, or meter and junction boxes on or adjacent to the construction site.

(7) Emergency excavations are exempt from the time requirements for notification provided in this section.

(8) If the excavator, while performing the contract, discovers underground facilities which are not identified, the excavator shall cease excavating in the vicinity of the facility and immediately notify the owner or operator of such facilities, or the one-number locator service.

Sec. 14. RCW 19.122.050 and 1984 c 144 s 5 are each amended to read as follows:

(1) An excavator who, in the course of excavation, contacts or damages an underground facility shall immediately notify the utility owning or operating such facility and the state-wide one-number locator service. If the damage causes an emergency condition, the excavator causing the damage shall also immediately alert the appropriate local public safety agencies and take all appropriate steps to ensure the public safety. No damaged underground facility may be buried until it is repaired or relocated.

(2) The owner of the underground facilities damaged shall arrange for repairs or relocation as soon as is practical or may permit the excavator to do necessary repairs or relocation at a mutually acceptable price.

NEW SECTION. Sec. 15. A new section is added to chapter 48.48 RCW to read as follows:

(1) In consultation with the emergency management program within the state military department, the department of ecology, the utilities and transportation commission, and local emergency services organizations, the chief of the Washington state patrol, through the director of fire protection or his or her authorized deputy, shall:

(a) Evaluate the preparedness of local first responders in meeting emergency management demands under subsection (2) of this section; and

(b) Conduct an assessment of the equipment needed by local first responders to meet emergency management demands related to pipelines.

(2) The chief of the Washington state patrol, through the director of fire protection or his or her deputy, shall develop curricula for training local first responders to deal with hazardous liquid and gas pipeline accidents. The curricula shall distinguish the differences and dangers between hazardous liquid and gas pipelines. The curricula shall be developed in conjunction with pipeline companies and local first responders, and shall include a timetable and costs for providing training as defined in the curricula to all communities housing pipelines. The need for a training program for regional incident management teams shall also be evaluated.

(3) In consultation with other relevant agencies, the chief of the Washington state patrol, through the director of fire protection or his or her deputy, shall identify the need and means for achieving consistent application of the national interagency incident management system.

(4) For the purposes of this section, "local first responders" means police, fire, emergency medical staff, and volunteers.

NEW SECTION. Sec. 16. (1) A pipeline company that has been notified by an excavator pursuant to RCW 19.122.050 that excavation work will occur within five feet of a hazardous liquid or gas pipeline shall ensure that the pipeline company's representative is on-site during the excavation within the five foot zone. The pipeline company has the discretion to require that the pipeline section in the vicinity of the excavation is fully uncovered and examined for damage prior to being reburied. If safety concerns exist, the pipeline company may elect, at the excavator's expense, to conduct the uncovering of the pipeline.

(2) Immediately upon receiving information of third-party damage to a pipeline owned or operated by a pipeline company, that company shall visually inspect the pipeline. After visual inspection, a pipeline company shall determine whether the pipeline section that has sustained third-party damage should be replaced or repaired, or whether it is safe to resume pipeline operation. A record of the company's inspection report and test results shall be provided to the department within fourteen calendar days of the inspection.

(3) Pipeline companies shall immediately notify local first responders and the department of any dangerous release from a hazardous liquid pipeline, or the utilities and transportation commission of any dangerous release from a gas pipeline.

Sec. 17. RCW 19.122.070 and 1984 c 144 s 7 are each amended to read as follows:

(1) Any person who willfully or maliciously damages or removes a marking used to identify a hazardous liquid or gas pipeline, as defined in section 2 of this act, is subject to a civil penalty of not more than one thousand dollars for each act.

(2) Any person who fails to notify the one-number locator service of excavation work that is planned to occur within twenty-five feet of a hazardous liquid or gas pipeline is subject to a civil penalty of not more than five thousand dollars for each violation.

(3) Any person who fails to notify a pipeline company of excavation work that is planned to occur within five feet of a hazardous liquid or gas pipeline, or excavates within five feet of the pipeline without the pipeline company's representative on-site, is subject to a civil penalty of not more than ten thousand dollars for each violation.

(4) Any person who violates any provision of this chapter, and which violation results in damage to underground facilities, is subject to a civil penalty of not more than ((~~one~~)) ten thousand dollars for each violation.

(5) All civil penalties recovered ((~~in such actions~~)) under subsections (1) through (4) of this section shall be deposited in the general fund and expended for the purpose of enforcement of hazardous liquid and gas pipeline safety laws.

((~~(2)~~)) (6) Any excavator who willfully or maliciously damages a field-marked underground facility shall be liable for treble the costs incurred in repairing or relocating the facility. In those cases in which an excavator fails to notify known underground facility owners or the one-number locator service, any damage to the underground facility shall be deemed willful and malicious and shall be subject to treble damages for costs incurred in repairing or relocating the facility.

((~~(3)~~)) (7) This chapter does not affect any civil remedies for personal injury or for property damage, including that to underground facilities, nor does this chapter create any new civil remedies for such damage.

Sec. 18. RCW 47.44.150 and 1989 c 196 s 1 are each amended to read as follows:

In any action for damages against the state of Washington, its agents, contractors, or employees by reason of damages to a utility or other facility located on a state highway, the damages are limited to the cost of repair of the utility or facility and are recoverable only in those instances where the utility or facility is authorized to be located on the state highway. However, the state is subject to the penalties provided in RCW 19.122.070 ((~~(1)~~)) (4) and ((~~(2)~~)) (6) only if the state has failed to give a notice meeting the requirements of RCW 19.122.030 to utilities or facilities that are authorized to be located on the state highway.

NEW SECTION. Sec. 19. A pipeline company that fails to comply with any provision of this chapter shall be subject to civil penalties of not less than five thousand dollars. This penalty shall be imposed pursuant to RCW 43.21B.300.

NEW SECTION. Sec. 20. A pipeline company that fails to report a dangerous release shall be guilty of a class B felony punishable under RCW 9A.20.021 if:

(1) The company knows or has reason to know that a dangerous release exists;

(2) The company does not immediately report the release to the local first responder; and

(3) The dangerous release causes the death of, or bodily injury to, an individual.

NEW SECTION. Sec. 21. A pipeline containing petroleum or petroleum products that is wholly located on the owner's property, that is not adjoining marine waters, is exempt from the provisions of this chapter.

NEW SECTION. Sec. 22. If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state.

Sec. 23. RCW 43.21B.300 and 1993 c 387 s 23 are each amended to read as follows:

(1) Any civil penalty provided in RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, section 19 of this act, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330 shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the department, the administrator of the ((~~office of marine safety~~)) integrated oil spill prevention and response program, or the local air authority, describing the violation with reasonable particularity. Within fifteen days after the notice is received, the person incurring the penalty may apply in writing to the department, the administrator, or the authority for the remission or mitigation of the penalty. Upon receipt of the application, the department, the administrator, or authority may remit or mitigate the penalty upon whatever terms the department, the administrator, or the authority in its discretion deems proper. The department or the authority may ascertain the facts regarding all such applications in such reasonable manner and under such rules as it may deem proper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.

(2) Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department, the administrator, or authority thirty days after receipt by the person penalized of the notice imposing the penalty or thirty days after receipt of the notice of disposition of the application for relief from penalty.

(3) A penalty shall become due and payable on the later of:

(a) Thirty days after receipt of the notice imposing the penalty;

(b) Thirty days after receipt of the notice of disposition on application for relief from penalty, if such an application is made; or

(4) If the amount of any penalty is not paid to the department or the administrator within thirty days after it becomes due and payable, the attorney general, upon request of the department or the administrator, shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county in which the violator does business, to recover the penalty. If the amount of the penalty is not paid to the authority within thirty days after it becomes due and payable, the authority may bring an action to recover the penalty in the superior court of the county of the authority's main office or of any county in which the violator does business. In these actions, the procedures and rules of evidence shall be the same as in an ordinary civil action.

(5) All penalties recovered shall be paid into the state treasury and credited to the general fund except those penalties imposed pursuant to RCW 18.104.155, which shall be credited to the reclamation account as provided in RCW 18.104.155(7), RCW 70.94.431, the disposition of which shall be governed by that provision, RCW 70.105.080, which shall be credited to the hazardous waste control and elimination account, created by RCW 70.105.180, and RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390.

NEW SECTION. Sec. 24. This act may be known and cited as the Washington state pipeline safety act.

NEW SECTION. Sec. 25. Sections 1 through 5, 7, 8, 10, 11, 16, 19 through 22, and 24 of this act constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 26. RCW 81.88.040 (Intrastate pipeline safety standards--Definitions--Rules--Violations) and 1998 c 123 s 1 are each repealed."

SB 6441 - S AMD - 126

By Senators Spanel, Fraser and Morton

ADOPTED 2/14/00

On page 1, line 1 of the title, after "safety;" strike the remainder of the title and insert "amending RCW 19.122.030, 19.122.050, 19.122.070, 47.44.150, and 43.21B.300; adding a new section to chapter 43.110 RCW; adding a new section to chapter 81.88 RCW; adding a new section to chapter 19.122 RCW; adding a new section to chapter 48.48 RCW; adding a new chapter to Title 70 RCW; repealing RCW 81.88.040; and prescribing penalties."