WSR 99-02-036
PERMANENT RULES
UTILITIES AND TRANSPORTATION
COMMISSION
[Docket No. TO-980905, General Order No. R-456--Filed December 30, 1998, 4:41 p.m.]
In the matter of amending WAC 480-75-005 and adopting WAC 480-75-223, relating to hazardous liquid pipeline safety.
statutory or other authority: The Washington Utilities and Transportation Commission takes this action under Notice No. WSR 98-23-027 filed with the code reviser on November 10, 1998. The commission brings this proceeding pursuant to RCW 80.01.040.
statement of compliance: 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).
date of adoption: The commission adopted this rule on December 23, 1998.
concise statement of purpose and effect of the rule: 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 the commission establish civil penalties at levels not to exceed the penalties specified in the Federal Pipeline Safety Law.
reference to affected rules: This rule repeals, amends, suspends, or adopts the following sections of the Washington Administrative Code: Amends WAC 480-75-005 Compliance with federal standards, and adopts WAC 480-75-223 Civil penalty for violation of chapter 81.88 RCW or regulations issued thereunder--Maximum amount.
preproposal statement of inquiry and actions thereunder: The commission filed a preproposal statement of inquiry (CR-101) on July 16, 1998, at WSR 98-15-092.
additional notice and activity pursuant to preproposal statement: 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 persons and entities that commission staff identified as having a potential interest.
notice of proposed rule making: The commission filed a notice of proposed rule making (CR-102) on November 10, 1998, at WSR 98-23-027. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 98-23-027 at 9:30 a.m., Wednesday, December 23, 1998, 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 December 11, 1998.
comments: The Federal Office of Pipeline Safety, Western Region, provided written comments supporting the rule making proposed by the commission. In addition, the Energy Facility Site Evaluation Council provided written comments supporting this proposed rule making. Ms. Claudia M. Newman with the law firm of Bricklin and Gendler, LLP, representing the Cascade Columbia Alliance, provided a written response agreeing that the commission should increase the maximum level of penalties that may be assessed for hazardous liquid pipeline safety violations to the comparable federal level and should adopt existing federal amendments since the last adoption. Ms. Newman, however, encouraged the commission to adopt regulations that go beyond the requirements set forth in the federal law. Staff provided a written response to the suggested regulations and emphasized that the commission was advocating the adoption of existing federal regulations only at this time. Staff stressed that pursuant to Governor Locke's regulatory improvement executive order, the commission has implemented a schedule to review each of the commission's rules. Chapter 480-75 WAC has been placed on that schedule for review and clarification in 2000 and staff will welcome the opportunity to discuss additional, more stringent regulations in that forum. Ms. Newman voiced no opposition to that response.
Ms. Susan Harper, Executive Director of the Cascade Columbia Alliance, telephoned staff questioning the correlation between the legislative action that occurred last February and March and the rule-making process that is now occurring. Staff responded that the commission last February was seeking legislative authority to amend the appropriate sections in chapter 81.88 RCW and now the commission is proposing the amendment of chapter 480-75 WAC pursuant to the amendments authorized in chapter 81.88 RCW. Ms. Harper accepted that explanation. Ms. Harper, however, did voice concern pertaining to the language change proposed in WAC 480-75-005. Staff faxed documentation pertaining to the appropriate RCW and WAC chapters and provided a written response to that concern. Staff explained that the change from "Operators of pipeline facilities" to "Hazardous liquid pipeline companies" in WAC 480-75-005 was implemented to maintain consistency with the language in RCW 81.88.040. Staff has telephoned Ms. Harper on several occasions to ascertain if the explanation was sufficient to address her concerns. At this time, staff has received no response from Ms. Harper.
rule-making hearing: The amended rule and the proposed rule was considered for adoption, pursuant to the notice, at the commission's regularly scheduled open public meeting on December 23, 1998, before Chair Anne Levinson, Commissioner Richard Hemstad, and Commissioner William R. Gillis. The commission heard oral comments from Steve Rieger, representing commission staff. No other interested persons made oral comment.
commission action: After considering all of the information regarding this proposal, the commission adopted the proposed rule amendment, without changes from the text noticed at WSR 98-23-027. 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.
statement of action; statement of effective date: In reviewing the entire record, the commission determines that WAC 480-75-005 and 480-75-223 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 34.05.380(2) on the thirty-first day after filing with the code reviser.
ORDER
the commission orders:
1. WAC 480-75-005 and 480-75-223 are adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect on the thirty-first day after the date of its filing with the code reviser pursuant to RCW 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 80.01 and 34.05 RCW and chapter 480-09 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 34.05.325.
Dated at Olympia, Washington, and effective this 30th day of December 1998.
Washington Utilities and Transportation Commission
Richard Hemstad, Commissioner
William R. Gillis, Commissioner
APPENDIX "A"
OTS-2609.1
AMENDATORY SECTION (Amending General Order No. R-439, Docket No. TO-960810, filed 3/14/97, effective 4/14/97)
WAC 480-75-005 Compliance with federal standards.
((Operators of pipeline facilities)) Hazardous liquid pipeline
companies 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 effective date of this rule.
The provision in this chapter shall govern to the extent that the
standards in the state regulations are compatible with the
federal standards. 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))
Copies of the above referenced regulations can be viewed at the
commission branch of the Washington state library or are
available from the Government Printing Office Bookstore, Seattle,
Washington.
[Statutory Authority: RCW 80.01.040 and 8.04.010. 97-07-042 (General Order No. R-439, Docket No. TO-960810), § 480-75-005, filed 3/14/97, effective 4/14/97.]
NEW SECTION
WAC 480-75-223 Civil penalty for violation of chapter 81.88 RCW or regulations issued thereunder--Maximum amount. (1) Any hazardous liquid pipeline company which violates any public safety provision of chapter 81.88 RCW or regulation issued thereunder, required for compliance with the federal Pipeline Safety Law, 49 U.S.C. § 60101, is subject to a civil penalty not to exceed twenty-five thousand dollars for each violation for each day that the violation persists. The maximum civil penalty under this subsection for a related series of violations is five hundred thousand dollars. This subsection applies to violations of public safety requirements including any commission order or chapter 480-75 WAC.
(2) In determining the amount of the penalty, the commission shall consider:
(a) The appropriateness of the penalty in relation to the position of the person charged with the violation;
(b) The gravity of the violation; and
(c) The good faith of the person or company charged in attempting to achieve compliance after notification of the violation.
(3) The commission may compromise any civil penalty pursuant to chapter 81.88 RCW.
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