PHMSA's Excessively Narrow Rulemaking Keeps Communities at High Level of Risk from Oil Pipeline Spills

Last week, NRDC and a coalition of environmental organizations submitted formal comments to the Pipeline and Hazardous Materials Administration (PHMSA), the regulator of America's oil pipeline network, highlighting PHMSA's continued failure to address critical known safety gaps that have remained open for at least a decade. The proposed rulemaking comes five years after an Enbridge pipeline carrying tar sands oil ruptured and spilled more than 800,000 gallons into a tributary of the Kalamazoo River near Marshall, Michigan. In that case, not only did a huge volume of oil spill over the 17 hours that passed before operators shut the pipeline down, the type of oil proved to create a whole new catalogue of challenges that spill responders were completely unprepared for. As emergency responders struggled with the unique behavior of the tar sands spilled in the Kalamazoo River, the National Transportation Safety Board (NTSB) and an expert panel convened by the Pipeline and Hazardous Materials Safety Administration (PHMSA) found that PHMSA's weak regulatory framework and lax oversight were partly to blame. Despite the comprehensive and common-sense lists of regulatory improvements produced by regulatory watchdogs and public safety organizations, pipeline regulators at PHMSA allowed many years to pass before acting. Now that they have, their proposal goes far short of what is needed and has been called for.

Five-and-a-half years after PHMSA initiated it's rulemaking in the aftermath of the Kalamazoo River tar sands spill, more than $1 billion has been spent on cleanup efforts and despite multiple attempts to dredge the river bottom, tar sands contamination remains. Meanwhile, numerous additional incidents have taken place, including major spills in Mayflower, Arkansas, Santa Barbara, California, and Glendive, Montana. On the heels of these, and hundreds of smaller incidents, PHMSA announced this fall that it would finally complete its new rulemaking. Unfortunately, the proposed rule it released fails to address key safety findings from PHMSA's own expert panel, not to mention key recommendations put forward by the NTSB (and, more recently, the National Academy of Sciences). NRDC and its partners have highlighted these failings and urge PHMSA to act immediately to implement the many regulatory reforms necessary to ensure that America's oil pipeline infrastructure operates as safely as possible and does not threaten our critical water and terrestrial resources.

Two elements of PHMSA's current regulatory proposal are especially striking in their failure to add meaningful safety improvements to our nation's network of oil pipelines. The first is PHMSA's broadening of leak detection system requirements that were found by its own expert panel to be insufficient to detect anything except major leaks. Indeed, a study of pipeline incidents from 2002-2012 conducted by InsideClimate News found that existing pipeline leak detection systems only catch 5% of leaks. This rulemaking does nothing except to require most oil pipelines to begin using these ineffective systems. However, PHMSA's own experts had recommended several key changes to begin addressing the failure of leak detection systems including improved data analysis and interpretation methods, standardization of systems, and guidance for how to evaluate leak detection systems based on unique pipeline design factors. Absent these improvements--not to mention significantly improved clarity on leak volumes that must be detectable by these systems--PHMSA's proposed rule will do almost nothing to mitigate the human and environmental risks posed by most pipeline incidents.

The second failure of the proposed rule is the complete absence of any new requirements for oil spill response measures. Following the Kalamazoo River spill, the NTSB made the following observation and recommendation:

Because the current PHMSA regulation provides no assurance that oil pipeline operators will develop adequate facility response plans to provide for response to worst-case discharges, the NTSB recommends that PHMSA amend 49 CFR Part 194 to harmonize onshore oil pipeline response planning requirements with those of the Coast Guard and the EPA for facilities that handle and transport oil and petroleum products to ensure that pipeline operators have adequate resources available to respond to worst-case discharges.

Unfortunately, despite a three year period during which PHMSA had the opportunity to consider this key recommendation, it has failed to do so. Today, the urgency for doing so has received another boost thanks to a study on diluted bitumen (the most common form of tar sands oil) conducted by the National Academy of Sciences (NAS). In its study, not only did the NAS conclude that the chemical and physical differences between diluted bitumen and other oils require special regulatory treatment, it also concluded that PHMSA's spill response requirements needed significant modifications to address the threats of this oil--the same that has led to such high-cost and long-term contamination in Michigan.

As PHMSA moves forward with its rulemaking process, we believe that it is crucial that it not proceed in a piecemeal fashion. Not only do communities across the country deserve to enjoy the best pipeline safety measures possible as soon as practicable, but the industry needs the predictability provided from knowing the full slate of new requirements that it will face in coming years. Allowing years and possibly decades to elapse before common sense safety measures are put in place keeps our critical drinking water resources, our first responders, and our communities at constant risk from the threats posed by these spills. PHMSA has the power and mandate to act to make us all safer. Now is the time for it to do so.