House Members Criticize TSA for Not Participating in Pipeline Safety Hearing

This article appears as published in Foster Report No. 3427

Pipeline safety is often referred to as one of the few remaining bipartisan issues being addressed by Congress, and there was bipartisan angst that the Transportation Security Administration (TSA) did not send a witness to the May 1 hearing before a House of Representatives subcommittee.

Republicans and Democrats criticized TSA for not sending a representative to the hearing, where witnesses from the Government Accountability Office (GAO), Pipeline and Hazardous Materials Safety Administration (PHMSA), Ohio Public Utilities Commission, Association of Oil Pipe Lines (AOPL), American Gas Association (AGA) and the Pipeline Safety Trust addressed questions from lawmakers.

Reps. Frank Pallone (D-N.J.), Greg Walden (R-Ore.) Bobby Rush (D-Ill.) and Fred Upton (R-Mich.) were among those expressing disappointment that TSA refused to provide a witness for the hearing to respond to the findings of a GAO report that found lapses in the agency’s pipeline security program. TSA was invited to appear at the hearing but “they declined to send a witness, and frankly, I find that unacceptable and must be addressed moving forward,” said Rush, chairman of the Energy Subcommittee under the House Energy and Commerce Committee.

Walden, ranking member of the full committee, said “I would urge the [Trump] administration, in the strongest terms, to cooperate with our committee and respond to what I believe are legitimate oversight requests relating to pipeline safety and security.”

TSA’s oversight of pipeline security, its limited staff available to carry out the responsibilities, lack of clarity on key terms and definitions, and dated risk assessment methodology was previously highlighted by GAO in a December 2018 report.

Upton said lawmakers will remember that TSA declined to testify before the subcommittee, and other members of the subcommittee questioned whether the jurisdiction of TSA to have pipeline security oversight should be altered. Upton acknowledged that TSA has limited staff to address pipeline safety and cybersecurity measures and noted that he has introduced legislation (H.R. 370) to address some of the issues identified in the GAO report. “I’m committed to getting it over the finish line” in a bipartisan manner to improve pipeline security and safety, he said.

TSA’s criteria for determining the top 100 critical pipeline facilities are vague and subject to different interpretations among pipeline operators, resulting in an inability to determine if vulnerabilities have been identified and addressed, said William Russell, acting director of homeland security and justice at GAO.

The number of pipeline security reviews conducted by TSA has fluctuated over the last nine years, with a large drop in the number of critical facility security reviews and varying numbers of corporate security reviews, Russell noted in his testimony.

GAO reported that conducting security reviews was the primary means for TSA to assess the effectiveness of its efforts to reduce pipeline security risks. “However, TSA has not tracked the status of key security review recommendations for the past five years. GAO recommended that TSA take steps to update information on security review recommendations and monitor and record their status, which TSA plans to address by November 2019,” Russell said.

He told lawmakers that TSA’s staffing at its pipeline security branch has gone from 13 or 14 in 2010-2013, to one in 2014 and currently sits at six staffers. Pipeline operators and industry representatives have told GAO that the level of cybersecurity expertise among TSA staff may challenge the agency’s ability to fully assess the cybersecurity elements in its security reviews.

Upton, Pallone, Reps. Pete Olson (R-Texas), Michael Doyle (D-Pa.) and others where pipelines are encroaching on large population centers or have experienced failures resulting in deaths asked the head of PHMSA about different rulemakings or initiatives that have been pending for years. Pipeline classification and pressure ratings vary based on proximity to more people or key facilities, and pipelines should not be allowed to alter their classification requirements to skirt PHMSA rules, said Carl Weimer, executive director of the Pipeline Safety Trust.

As he told House and Senate lawmakers at different hearings in the past month or so, PHMSA Administrator Howard “Skip” Elliott acknowledged that PHMSA has a lot of work to do on pending items and in the past year it prioritized rules that could be moved quickly through the rulemaking process. He asserted that PHMSA has made significant strides in bringing some of the National Transportation Safety Board (NTSB) recommendations and mandates from Congress to successful conclusions, with the agency actions completed while rules are being reviewed within the Department of Transportation or at the Office of Management and Budget.

Pallone thanked Elliott for the update and wished him success in managing “an agency notorious for its inability to meet Congressionally-mandated deadlines and carry out its mission in an efficient and effective way.” He referred to mandates from pipeline safety reauthorizations in 2011 and 2016 that have not been addressed, deeming the lack of final rules unacceptable. Congress required the use of automatic shut-off valves for new natural gas pipelines in 2011 and the NTSB recommended their use 25 years ago after an explosion in Edison, N.J., “yet here we are, still discussing this issue.”

Rep. Morgan Griffith (R-Va.), who represents southwestern Virginia where Mountain Valley Pipeline is being built, questioned why FERC does not update its pipeline approval and construction regulations to allow fiber optic technology or other means to be installed along pipelines when they are built to increase awareness of ground shifting or leak detection. Elliott said newer technologies can be used to allow more self-reporting on the conditions of the pipelines, but Griffith said efforts to meet with FERC have not been successful. “At one point we had three Congressmen seeking hearings from FERC and we got nothing,” Griffith said.

Increased detection of plastic pipe at the distribution level, where it is being used more, is another new technology that can improve safety, Elliott said, noting that an accident in Durham, North Carolina, in March appeared to be the result of a boring machine by an outside party hitting a distribution line.

Several lawmakers and witnesses also commented on the September 2018 series of explosions in Merrimack Valley, Massachusetts, when multiple fires damaged 131 structures, destroyed homes and resulted in one death. The initial report from the NTSB found that the distribution lines of Columbia Gas of Massachusetts, a subsidiary of NiSource Inc., were overpressurized and that Columbia Gas used a field engineer with limited knowledge of pressure sensing and monitoring.

Columbia Gas compromised on safety measures, which resulted in an accident that was avoidable, especially if PHMSA had required the use of automatic shut-off valves, said Rep. Ann Kuster (D-N.H.)

Elliott said there is a significant sense of urgency at PHMSA in completing a rulemaking on shut-off valves, and said in reference to Columbia Gas “this was, in every sense of the word, a monumental failure on the part of the operators.”

In its May 1 earnings report for the first quarter of 2019, NiSource included capital costs of about $250 million for pipeline replacement activities, with insurance and utility rate recovery measures uncertain at this time. It reported third-party claims stemming from lawsuits approaching $1 billion, with the company’s liability insurance for damages of about $800 million. “Total expenses related to the incident have exceeded the total amount of insurance coverage available under our policies,” and cost estimates do not include estimates for fines or penalties from regulators or settlements, NiSource said.

After the Merrimack Valley explosions, AGA brought together industry representatives and created a board-level task force to address lessons learned, best practices on pressurization and other measures, said Christina Sames, vice president of operations and engineering at AGA.

Pipeline operators have reduced the number of incidents and are transparent about where they are doing well on safety and where improvements can be made, added Andrew Black, president and CEO of AOPL. Pipeline transportation of fuel remains the safest mode of transport and AOPL members have improved their ability to find and fix leaks when they occur, Black said.

Weimer of the Pipeline Safety Trust encouraged lawmakers to make gathering lines subject to safety regulations and oversight, especially after the shale revolution has significantly increased production and gathering lines at facilities upstream of interstate pipelines.

By Tom Tiernan

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