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2014 Pipeline and Hazardous Materials Safety Administration (PHMSA) Letter Re: Role of U.S. Local Governments in Pipeline Safety

Mark Hefflinger, Bold Alliance (Photo: Bryon Houlgrave/Des Moines Register

By Mark Hefflinger

News May 9, 2023

In May 2014, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration
(PHMSA) addressed a letter to TransCanada (now “TC Energy”) CEO Russ Girling, proposed builder of the now-defunct Keystone XL pipeline project, that outlined the role of local governments in pipeline safety:

“Dear Mr. Girling:
1200 New Jersey Avenue, SE
Washington, D.C. 20590

Over the past few months, the Pipeline and Hazardous Materials Safety Administration
(PHMSA) has received a number of inquiries regarding the rights of state and local
governments to affect the siting, design, construction, operation and maintenance of
interstate hazardous liquid pipelines, particularly in light of TransCanada’s proposed
Keystone Gulf Coast (Keystone XL) Pipeline. While such questions are a normal part of
the run-up for any major pipeline project, I wanted you to be aware of the message being
conveyed by PHMSA that all three levels of government – federal, state, and local – play
an important role in ensuring that the Nation’s pipeline system operates safely and
efficiently to supply vital energy for the American economy.

As you know, Congress has invested the U.S. Department of Transportation (DOT) with
the authority to regulate the design, construction, operation and maintenance of gas and
hazardous liquid (primarily oil) pipelines and to protect life, property and the
environment from hazards associated with pipeline operations. While the Federal Energy
Regulatory Commission (FERC) has exclusive authority to regulate the siting of
interstate gas transmission pipelines, no federal agency has the power to determine the
siting of oil pipelines. Therefore, the responsibility for siting new interstate oil pipelines
such as Keystone XL rests largely with the individual states through which the lines will
operate and is governed by state law.

The Role of PHMSA
Under the Federal pipeline safety laws, PHMSA is the DOT agency charged with
carrying out a nationwide program for regulating most of the country’s oil and gas
pipelines. PHMSA takes this responsibility seriously and has developed a regulatory
scheme, embodied in 49 C.F.R. Parts 190-199, that sets standards for the design,
construction, operation and maintenance of the Nation’s 2.6 million miles of pipeline.
PHMSA enforces these standards and regulations for interstate pipelines through a civil
and criminal enforcement process.

The Role of State Pipeline Regulators
This national regulatory scheme relies heavily upon the efforts of our state partners, who
employ roughly 67% of all pipeline inspectors and whose jurisdiction covers
approximately 80% of the pipelines subject to minimum Federal standards. Federal law
recognizes the right of states to adopt Federal safety standards and to inspect, regulate
and take enforcement action against the operators of pipelines within their borders (i.e.,
intrastate pipelines). This includes the right to impose more stringent safety standards
than the Federal minimums, provided the two are compatible.

1 With passage of the Federal pipeline safety laws, Congress has determined that pipeline
safety is best promoted through PHMSA’ s development of a nationwide set of minimum
Federal standards. To ensure compliance with these standards, the Federal pipeline
safety laws (49 U.S.C. §§ 60101, et seq.) expressly provide that PHMSA and state
regulators may share inspection and enforcement responsibilities, subject to PHMSA
certification or agreement. Federal preemption of pipeline safety means that neither state
nor local governments have any independent authority to regulate pipeline safety but
must derive any such authority from federal law. In the case oflocal governments not
subject to federal delegation, they may exercise other powers granted to them under state
law but none affecting pipeline safety for those pipelines subject to federal jurisdiction.

2 The Role of Local Governments
Despite Federal preemption of pipeline safety regulation, the role and powers of local
authorities to affect pipeline safety is critical. Local governments have traditionally
exercised broad powers to regulate land use and property development, including in the
vicinity of pipelines.

3 Nothing in Federal law impinges on these traditional prerogatives
of local government, so long as local officials do not attempt to regulate the field of
pipeline safety preempted by Federal law. In fact, PHMSA believes that pipeline safety
is a responsibility shared by all three levels of government – federal, state, and local – as
well as by pipeline operators, excavators, and property owners…

I would encourage TransCanada, as well as other pipeline operators, to adopt these best practices in protecting their existing
and proposed rights-of-way, and to engage all stakeholders in promoting the safety of
interstate pipelines.

4 Each community affected by an existing or proposed transmission pipeline faces unique
risks, and the control and mitigation of such risks involves a combination of measures
employed by facility operators, regulatory bodies, community groups and individual
members of the community, in order to be optimally effective. As residences and
businesses are increasingly located in close proximity to transmission pipelines, it is
important for all stakeholders to carefully consider land use and development plans in
order to make risk-informed choices that protect the best interests of both the general
public and the individual parties involved.

Depending upon State law, local governments have contributed in many ways to ensuring
pipeline safety for their citizens. We have seen localities consider various measures,

1. Controlling dangerous excavation activity near transmission pipelines;

2. Limiting certain land use activities along pipeline rights-of-way;

3. Restricting land use and development along transmission pipeline rights-
of-way through zoning, setbacks and similar measures;

4. Requiring the consideration of transmission pipeline facilities in proposed
local development plans;

5. Designing emergency response plans and training for regulators and

6. Requiring specific building code design or construction standards near

7. Improving emergency response and evacuation plans in the event of a
transmission pipeline incident; and

8. Participating in Federal environmental studies conducted under the
National Environmental Policy Act (NEPA) and similar State laws for
new pipeline construction projects.

Each state treats these issues differently, so pipeline operators should be prepared to deal
directly with each locality and state body interested in the siting and construction process.
Bringing a pipeline into a community is often a complicated process that requires
tremendous coordination and open communication among various stakeholders in order
to be successful. We greatly value the efforts of pipeline operators who spend the time
and energy to make sure the process goes smoothly and is responsive to all parties
involved. Thank you for your cooperation in this effort.”

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