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New Pipeline Safety Regulations Won't Apply to Keystone XL

Proposed federal rules to strengthen pipeline safety won't be in place before construction could begin on the Keystone XL or other new dilbit pipelines.

By Elizabeth McGowan and Lisa Song, InsideClimate News

Jul 26, 2012
River closed sign near the Kalamazoo River

WASHINGTON—Efforts to beef up oversight of the nation's oil pipelines are progressing so slowly that it's unlikely any additional safeguards will be in place before construction begins on thousands of miles of new pipelines, including the proposed Keystone XL.

Part of the delay stems from how slowly the Pipeline and Hazardous Materials Safety Administration (PHMSA)—the federal agency with the authority to issue new regulations—is moving on its rulemaking process. For instance, PHMSA began examining at least six safety regulations in October 2010, three months after a ruptured pipeline spilled more than 1 million gallons of oil into Michigan’s Kalamazoo River. None of those changes is in effect nearly two years later.

Congress's latest pipeline safety bill, which was signed into law in January, did little to speed up the process.

The measure did not address two of the key regulatory failures that InsideClimate News found during a recent seven-month investigation of the Michigan spill. It did not force PHMSA to enforce deadlines for repairing pipeline defects or require that pipeline operators identify exactly what type of oil is flowing through their lines. Both of those failures were also detailed in a report released this month by the National Transportation Safety Board.

"Tens of thousands of miles of new pipelines are going into the ground, and there aren’t going to be regulations that make them safer for years," said Carl Weimer, executive director of the Pipeline Safety Trust, a nonprofit watchdog organization based in Bellingham, Wash.

Representatives of the Trust testified at least 10 times on Capitol Hill as Congress was shaping the Pipeline Safety Act.

"We saw that the final bill really didn't do much for safety," Weimer said. "We're just happy it didn't go in the wrong direction. With this Congress, not going in the wrong direction is a win."

The bill did address two problems that became apparent after the Michigan disaster. It authorized a study of diluted bitumen, or dilbit—the type of oil that spilled into the Kalamazoo and would also be carried on the Keystone XL. And it ordered the Department of Transportation to study the technology that the pipeline industry uses to detect leaks. PHMSA is a division of the Transportation Department.

Neither of those studies will be done in time to have much impact on the new pipeline construction that is predicted for the United States.

The dilbit study won't be ready until next summer, and it will consist only of a review of the existing literature, not new research. The leak detection study won't be ready until 2014 at the earliest, because Congress stipulated that PHMSA spend two years on the project.

Democrat John Dingell, who has represented southeastern Michigan in the House for 58 years and helped craft the House version of the bill, called it a "good first step" but said "we have much more to do."

"The NTSB report on the Enbridge spill in the Kalamazoo River highlights important issues which Congress and PHMSA need to address to ensure that our aging pipeline system is as safe as possible," the former chairman of the Energy and Commerce Committee said via e-mail.

Rep. Fred Upton (R-Mich.) the current committee chairman who crafted the House version of the bill with Dingell, didn't return requests for comment. Neither did Sen. Frank Lautenberg (D-N.J.) who helped to shepherd the bill through the Senate.

Former Rep. Jim Oberstar (D-Minn.), who was voted out of office in 2010 several months after he chaired a House Transportation and Infrastructure Committee hearing on the Marshall spill, said the bill was so weak that he wouldn't have supported it. It's up to regulators to intervene when pipeline operators ignore the public's health and safety, he said, and Congress fell short this time.

"If you don't have a corporate culture of safety, then the public sector must rigorously oversee operations where there is a hazard to public health and safety," Oberstar said. "And that is the issue we're dealing with in the pipeline sector."

Sara Gosman, a lecturer at the University of Michigan Law School who studies pipeline safety in the Great Lakes region, said that instead of nibbling around the edges, Congress should tackle pipeline safety in the same overarching manner that the landmark Clean Air and Clean Water acts focus on protecting people and natural resources.

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