WSR 98-23-027

PROPOSED RULES

UTILITIES AND TRANSPORTATION

COMMISSION

[Commission Docket No. TO-980905--Filed November 10, 1998, 1:27 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-15-092.

Title of Rule: Hazardous liquid pipeline safety.

Purpose: To adopt recent federal rule amendments by reference and to increase state penalty levels to conform with existing federal levels.

Statutory Authority for Adoption: RCW 80.01.040 and 81.04.160.

Summary: The commission has been certified by the federal Department of Transportation, Office of Pipeline Safety (OPS) and has assumed responsibility for intrastate hazardous liquid pipeline safety. As a condition of certification, the state is required to adopt safety standards and penalties that are consistent with federal standards and penalties. Pipeline safety law, 49 U.S.C. § 60101, et seq. Adoption of recent federal amendments and setting penalties will maintain compliance.

Reasons Supporting Proposal: Pipeline safety. To comply with federal requirements to retain certification under the pipeline safety law, 49 U.S.C. § 60101, et seq. and to participate in the federal pipeline safety program.

Name of Agency Personnel Responsible for Drafting: Dennis Lloyd, 1300 South Evergreen Park Drive S.W., Olympia, WA 98504, (360) 664-1319; Implementation and Enforcement: Carole J. Washburn, 1300 South Evergreen Park Drive S.W., Olympia, WA 98504, (360) 664-1174.

Name of Proponent: Washington Utilities and Transportation Commission, governmental.

Rule is necessary because of federal law, 49 U.S.C. § 60105.

Explanation of Rule, its Purpose, and Anticipated Effects: This rule making is necessary for the Washington Utilities and Transportation Commission (commission) to comply with federal pipeline safety laws, 49 U.S.C. § 60101, et seq., which requires the adoption of the federal hazardous liquid pipeline safety standards and penalties. At this time, violations of the existing regulations may result in a penalty not to exceed the sum of $1,000 for each and every offense. The current federal regulations require a civil penalty of not more than $25,000 for each violation, not to exceed $500,000 for related series of violations. The commission is certified for both natural gas and hazardous liquid pipeline safety programs. The United States Department of Transportation, Office of Pipeline Safety (OPS) requested commission participation in the hazardous liquid pipeline safety program. OPS accepted the commission certification for participation in the hazardous liquid pipeline safety program beginning January 1, 1996. Congress, in passing the pipeline safety law, fully intended that states would assume responsibility for intrastate pipeline safety, while the federal government retains responsibility for interstate pipeline safety. States are better positioned to provide local/state oversight and regulatory assistance to pipeline operators. The commission also participates in the OPS grants program. OPS has the authority to reimburse a state agency up to 50% of its pipeline safety program costs based upon the availability of funds and the state's performance. Rule making is necessary in order to comply with federal requirements in order for the commission to retain its certification (pipeline safety laws, 49 U.S.C. § 60101 et seq.) to participate in and enhance pipeline safety under the federal pipeline safety program.

Proposal Changes the Following Existing Rules: The changes include adopting recent federal rule amendments by reference and increasing state penalty levels to conform with existing federal levels.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The change from federal to state responsibility for hazardous liquid pipeline safety is authorized by state statute, and is authorized and required by federal law for continued participation in the federal pipeline safety program. A small business economic impact statement has not been prepared because the proposed adoption by reference, of recent federal amendments will have minimal impact on the affected businesses in that the safety program encompassed by these rules is currently in effect and enforceable under federal law.

RCW 34.05.328 does not apply to this rule adoption. Section 201, chapter 403, Laws of 1995 (5)(b)(iii) exempts rules which adopt or incorporate by reference federal regulations without material change.

Hearing Location: Commission Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA 98504, on December 23, 1998, at 9:30 a.m.

Assistance for Persons with Disabilities: Contact Pat Valentine by December 17, 1998, TDD (360) 586-8203, or (360) 664-1133.

Submit Written Comments to: Carole J. Washburn, Secretary, P.O. Box 47250, Olympia, WA 98504 or e-mail to records@wutc.wa.gov, fax (360) 586-1150, by December 11, 1998. Please include Docket No. TO-980905 in your communication.

Date of Intended Adoption: December 23, 1998.

November 10, 1998

Terrence Stapleton

for Carole J. Washburn

Secretary

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 pipline 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.]

Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

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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