PHMSA is supposed to conduct a cost-benefit analysis before it approves major rules. Congress added that mandate in 1996. Weimer, the Pipeline Safety Trust's executive director, said that requirement allows industry to reject fixes it deems too expensive.
A briefing paper issued recently by the Trust points out that a cost-benefit analysis can be effective when costs and benefits can be easily identified and monetized, "but it is not so tidy or easy when trying to value environmental, health and safety factors, as in the pipeline safety field."
"Economic valuation of a healthy child, a clean river, or a safe neighborhood is difficult to undertake," the paper said.
According to research compiled by the Center for Progressive Reform, the Consumer Product Safety Act is the only other federal statute in the health, safety or environment fields that requires a cost-benefit analysis.
Federal rulemaking usually doesn't follow a fixed timeline because it involves so many variables. It tends to be a cumbersome, multi-step process that includes taking the concerns of industry, watchdogs and other interested parties into consideration.
"In general, each stage takes a year," said PHMSA spokesman Damon Hill. The entire process can take "up to five or six years. It depends on all the factors involved."
Access to spill response plans limited: When the Enbridge accident occurred, local officials in Marshall, Mich., said they knew almost nothing about the pipelines that snaked through their community and weren't prepared for an oil spill of such magnitude.
The NTSB report found flaws with Enbridge's spill response plan and criticized PHMSA for not reviewing the plans more carefully. It pointed out that the agency had just 1.5 full-time positions to manage 450 response plans when the spill occurred in July 2010. The report also noted that both the U.S. Coast Guard and the Environmental Protection Agency have more rigorous review procedures and more staffers to handle the task.
"It is doubtful that the Enbridge plan could have received more than a cursory review," NTSB investigators wrote in their July 10 report. "If PHMSA had dedicated the resources necessary to conduct thorough reviews, it likely would have identified deficiencies and disapproved the Enbridge plan because it lacked sufficient resources for response to a worst‐case discharge."
In its Pipeline Safety Act, Congress directed PHMSA to provide copies of all spill response plans to the public upon request, minus any proprietary or security-sensitive information.
But they are still not easy to access. When InsideClimate News recently asked for copies for the existing Keystone pipeline, the proposed Keystone XL and the new Pipeline 6B in Michigan, PHMSA said they would only be available if a request was filed via the Freedom of Information Act.
Spill response plans require pipeline operators to identify personnel and equipment capable of resolving a worst-case oil discharge; pre-position those resources so they can respond efficiently to an emergency; detail a chain of authority for incident response; and describe training, testing and drilling procedures.
The Pipeline Safety Trust is urging PHMSA to make spill response plans broadly available, without the public having to make a special request. The Trust also wants the public to be allowed to review the plans and any revisions and also provide suggestions.
Spill reporting still lax: Pipeline operators are required to report spills to the National Response Center, which is responsible for quickly alerting state and federal agencies about unfolding disasters. Enbridge didn't notify the National Response Center until almost two hours after the company had confirmed the Michigan spill. But that apparently complied with PHMSA's requirement that operators notify the center at "the earliest practicable moment" after spills that caused death, a fire or explosion, significant property damage or water pollution.
The 2012 legislation directs PHMSA to revise that regulation and require pipeline operators to report large spills "at the earliest practicable moment following confirmed discovery" but "not later than 1 hour following the time of such confirmed discovery."
PHMSA has not yet taken steps to revise the rule to meet that directive, said Hill, the agency spokesman.
Slow progress on detecting leaks: The NTSB investigation into the Kalamazoo spill found that Enbridge's leak detection system was partly to blame for the 17-hour gap between when the pipeline ruptured in Michigan and when Enbridge became aware of the spill.
The Pipeline Safety Act calls for the Department of Transportation to spend two years studying the technical limitations of leak detection systems, and to determine if it would be practical to create performance-based standards for those systems.
Ironically, the legislation will delay any new rules in this area, said the NRDC's Swift.