The Honorable John D. Rockefeller, IV
Chairman
Committee on Commerce, Science and Transportation
United States Senate
254 Russell Senate Office Building
Washington, DC 20510

The Honorable Kay Bailey Hutchison
Ranking Member
Committee on Commerce, Science and Transportation
United States Senate
560 Dirksen Senate Office Building
Washington, DC 20510

May 1, 2011

Dear Chairman Rockefeller and Ranking Member Hutchison:

As the Senate Committee on Commerce, Science and Transportation moves to consider legislation to improve the safety and environmental protection of our nation’s oil, hazardous liquid, and natural gas pipelines, we write in strong opposition to an amendment filed by Senator Thune which would completely undermine efforts by Secretary LaHood and the Department of Transportation to enforce regulations designed to protect the American people, their property and the environment from the dangers of unsafe pipelines. While we are supportive of S. 275, the reauthorization legislation sponsored by Subcommittee Chairman Lautenberg and others, inclusion of the Thune Amendment in that legislation would change the overall bill from one that makes modest improvements in law to one that would do more harm than good.

During the past 10 months, our nation’s oil and gas pipelines have experienced an unprecedented number of catastrophic failures that have resulted in numerous deaths including those of at least three children. In fact, Secretary LaHood recently noted that “fatal incidents increased from nine in 2008 to 22 in 2010.” These accidents also have injured many individuals; destroyed dozens of homes; polluted and forced the closure of major waterways; and resulted in millions of dollars in damage to private property, public lands, and local economies.

After such a period of disastrous pipeline failures, as well as the unprecedented environmental and economic damages caused by the BP Deepwater Horizon spill which has resulted in some key lessons learned, we believe Congress should be moving legislation that:

• ensures polluters are held accountable by significantly increasing penalties and liability for bad operators;

• reforms and significantly increases resources for the agency overseeing pipeline safety and provides the Secretary with authority to waive the onerous cost-benefit analysis requirements of current law;

• requires inspection of more pipeline mileage, more frequently, with the best available technology to identify material defects and ensure maintenance has been adequate;

• mandates installation of state-of-the-art leak detection systems and that operators report leaks within one hour of discovery;

• makes available to US taxpayers, landowners and emergency responders more information about individual pipelines and their safety, both past and present;

• requires that the public be able to access, free of charge, the full text of industry standards incorporated by reference into federal rulemakings; and

• affirmatively closes significant gaps in our nation’s pipeline safety program which result in certain types of pipelines being under-regulated or even completely unregulated under federal law.

The manager’s amendment to S. 275 takes some modest steps in the right direction in the areas highlighted above. The legislation, among other things, increases staffing for DOT’s pipeline program, raises the cap on penalties for violations; begins to close the loopholes allowing certain pipelines to remain unregulated and allowing spikes in operating pressure to go unreported; requires development of a report to Congress analyzing whether current pipeline regulations are sufficient for transportation of Canadian tar sands; and increases the amount available for pipeline safety information grants. Unfortunately, the manager’s amendment also weakens or deletes some laudable provisions in S. 275 as introduced, including removing language mandating disclosure of companies’ spill response plans and lowering the standard for regulating gathering lines. As S. 275 moves forward through the legislative process, we would like to see the stronger language from the introduced bill restored.

At a minimum, there are a few provisions in the bill that we believe must be modified prior to passage in order for us to continue to support the legislation. First, language on page 22, line 12 appears to allow the Secretary to review a waiver granted to a pipeline operator only after a five year period; we believe that the language must be amended to direct the Secretary to review an individual waiver at least once every 5 years. Second, while we are pleased that the Manager’s amendment would double the amount authorized for an individual grant under Section 60130, it is even more critical to remove language in current law that prohibits the Secretary from using user fee-derived funds for these grants. Third, the Section 22 study of tar sands crude oil should require expeditious implementation of the report’s regulatory findings following issuance of the report.

Finally, we again urge the Committee to reject the Thune amendment or any similar version of the “due process” amendment developed by INGAA and AOPL. It is outrageous that an industry which has had as many fatal, catastrophic failures as the pipeline industry has had in the past year would complain that it was being treated unfairly by federal regulators and would seek statutory changes that would hamstring those regulators. During the 111th Congress, numerous hearings were held in both chambers of Congress, yet not once did any industry witness raise the issue that this amendment purports to address. The language included in the Thune amendment – first circulated by industry less than two months ago without any body of evidence justifying its need — would require the Secretary to grant a hearing on the record to any operator subject to an emergency corrective action order within five days of issuing such an order. This provision is unlike recourse granted any other regulated entity under any other environmental or safety statute of which we are aware. It appears designed to so burden an underfunded and understaffed regulatory agency as to ensure that the Secretary will be functionally unable to use the emergency authorities provided him to address pipeline facilities determined to be hazardous to life and property. Similarly burdensome provisions, i.e., allowing an operator to choose to have both an informal hearing followed by a formal adjudication on the record, would apply to the Secretary’s issuance of civil penalties. None of these proposed changes to either the administrative or judicial review processes have been vetted with the Administration, the DOT Inspector General, GAO, independent legal experts or the general public.

Thank you in advance for your consideration of our views. We urge you to reject industry’s efforts to weaken safety and environmental protection and, instead, to pass legislation that significantly improves oversight of our nation’s oil and natural gas pipelines.

Sincerely,

Anna Aurilio
Director, Washington DC Office
Environment America

Tiernan Sittenfeld
Legislative Director
League of Conservation Voters

Scott Slesinger
Legislative Director
Natural Resources Defense Council

Carl Weimer
Executive Director
Pipeline Safety Trust

Kate Colarulli
Associate Director, Beyond Oil Campaign
Sierra Club

Lois N. Epstein, P.E.
Engineer & Arctic Program Director
The Wilderness Society