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Behind the Pipeline Safety Improvement Act.

It has been exactly a year since President Bush signed the "Pipeline Safety Improvement Act of 2002" into law. In case you need a refresher course, the Act expands the scope of the Secretary of Transportation's authority over gas and hazardous liquid pipeline facilities and transportation lines, (1) increases civil penalties for violators, toughens pipeline operator qualifications, and requires operators to submit several new kinds of documents to the Secretary of Transportation. It has a whistleblower protection clause to protect line employees who reveal safety violations or operational flaws and may significantly affect how an employer may want to handle major employment decisions.

National Pipeline Mapping System

The Act requires operators of pipelines facilities (except distribution and gathering lines) to provide the following information to the Secretary of Transportation within six months: (1) geospatial data appropriate for use in the National Pipeline Mapping System or data in a format that can be readily converted to geospatial data: (2) the name and address of the person with primary operational control to be identified as the facility's operator; (3) a means for a member of the public to contact the operator for additional information about the pipeline.

The person providing the information on the National Pipeline Mapping System must also provide updates to the Secretary regarding changes in the pipeline facility.

Pipeline Qualification Program

Operators of pipeline facilities have two years to develop and adopt a "qualification program" to ensure that the individuals who perform "covered tasks" are qualified to conduct such tasks. A "covered task" for both gas and hazardous liquid pipeline facilities is defined as "an activity, identified by the operator, that: (a) is performed on a pipeline facility; (b) is an operations or maintenance task; (c) is performed as a requirement of this part; and (d) affects the operation or integrity of the pipeline."

Each qualification program must include the following elements: (a) a method for examining or testing the qualifications of individuals; (b) a requirement that the operator complete the qualification of these individuals not later than 18 months alter the date of the adoption of the qualification program; (c) a periodic re-qualification component that provides for examination or testing of individuals; and, (d) a program to provide training, as appropriate, to ensure that individuals performing covered tasks have the necessary knowledge and skills to perform the tasks in a manner that ensure the safe, operation of the pipeline facilities.

To help operators fulfill this new requirement, the Secretary will develop specific standards and criteria for qualifications program not later than one year after the date of enactment of the Act. The Secretary will review each qualification program to verify compliance with the standards.

Pipelines with computer-controlled systems should be on the lookout--the Secretary of Transportation will be developing tests and other criteria for certifying the individuals who operate computer-based systems for controlling the operations of pipelines in the next three years.

Risk Analysis And Integrity Management Programs For Gas Pipelines

Pipeline facilities located in high-density population and environmentally sensitive areas face special new requirements under the Act.

Operators must conduct a risk analysis for each facility located in an area covered by this section (2) and adopt and implement a written "integrity management program" within a 24-month period even if the Secretary fails to issue regulations.

Future regulations will also detail the type or frequency of inspections and tests, the manner of those tests/inspections, the criteria used in analyzing the results. and actions necessary to address the integrity of a pipeline facility, and any other factors that are determined appropriate to ensure that the integrity of a pipeline facility is addressed.

An integrity management program must include the following components: periodic reassessment of the facility: clearly defined criteria for evaluating the results of the assessment and reassessments; a method for conducting an analysis on a continuing basis that integrates all available information about the integrity of the facility and the consequences of releases from the facility: a description of actions to be taken by the operator to promptly address any integrity issues raised by the assessments or the analyses described here; a method for monitoring cathodic protection systems throughout the pipeline (to the extent not addressed by other regulations); and, if the Secretary raises a safety concern relating to the facility, a description of the actions to be taken by the operator to address the concerns.

The Secretary will review an operator's risk analysis and integrity management program for compliance with these requirements.

An operator of a gas pipeline facility must begin a "baseline integrity assessment" within 18 months. This assessment must be conducted by "internal inspection device, pressure testing, direct assessment, or an alternative method that the Secretary determines would provide an equal or greater level of safety." The operator must complete the assessment within ten years. However, the operator must assess at least 50 percent of these facilities within five years. The facilities considered "highest risk" (e.g., those with previously discovered defects or anomalies, a history of repairs, leaks, or failures) must be assessed under the five-year plan.

New And Significant Safety Provisions

Under the new safety provisions, if the Secretary decides that a pipeline has a potential "safety-related condition," the operator can be ordered to take necessary corrective action, including physical inspection, testing, repair, replacement, or other appropriate action to remedy the safety-related condition.

This additional provision expands the Secretary's power to immediately remedy what the Secretary perceives to be safety-related hazards at pipeline facilities, and furthers the Department of Transportation's pre-emption of OSHA's authority in the area of pipeline safety. (3) The Secretary has the power to request the attorney general to bring a civil action against a company that fails to comply with an order issued by the Secretary.

Operator Assistance In Investigations

The Act strengthens the powers of the Secretary and the National Transportation Safety Board to conduct investigations of pipeline accidents by requiring that the operator of the facility shall make available all records and information that in any way pertain to the accident (including integrity management plans and test results), and shall afford all reasonable assistance in the investigation of the accident.

If the Secretary determines that an employee's actions may have contributed substantially to the cause of a pipeline accident, the Secretary now has the power to direct the operator to relieve the employee from performing those activities, reassign the employee, or place the employee on leave until either: (1) the Secretary determines the employee's actions did not contribute substantially to the cause of the accident; or (2) the Secretary determines the employee has been re-qualified or retrained and can safely perform the activities.

Whistleblower Protection

The new whistleblower protection provision is designed to protect employees who provide pipeline safety information to their employers or to the federal government. The Act makes it illegal for an employer to discharge an employee, or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting at the request of the employee) engages in any of the actions listed here. The type of employee conduct protected by the Act is extremely broad, leaving ample room for inadvertent violations by employers.

Finally, any employee who provides (or is about to provide) testimony before Congress or at any federal or state proceeding regarding pipeline safety laws, or who is about to file a complaint about a violation of pipeline safety laws, or who is about to "assist or participate in" carrying out pipeline safety laws, is protected under the new law.

An employee who believes he has been discriminated against in violation of the Act has 180 days from the date of the alleged violation to file a complaint with the Secretary of Labor. Assuming the complaint survives, the Secretary of Labor may conduct an investigation of the complaint within 60 days after receipt, but only after allowing the employer a chance to submit a written response and an opportunity to meet with the Secretary of Labor to present statements from witnesses.

However, the Secretary is prohibited from investigating the employer if the employer demonstrates by "clear and convincing" evidence that the employer would have taken the same unfavorable action against the personnel in the absence of the protected conduct.

If the Secretary of Labor finds "reasonable cause" to believe that a violation of the provision has occurred, the Secretary will include a "preliminary order" requiring the employer to abate the violation, reinstate the employee and provide back pay, and/or pay damages compensating the employee for his or her losses.

An employer who disagrees with the Secretary of Labor's "reasonable cause" finding has 60 days to file objections to the findings and preliminary order, and request a hearing on the record. If the employer does not contest the Secretary's finding within the 60 days, the preliminary order becomes final and cannot be reviewed by a court.

Once a hearing is held, the Secretary of Labor has 90 days to either deny the complaint or issue a final order for abatement, reinstatement/back pay, or compensatory damages. The final order can include attorneys' fees at the request of the victorious employee. Additionally, an employer in violation of the provision, or an order, may be fined $1,000 for each violation.

The Secretary of Labor may not issue an order for abatement, reinstatement, or compensatory damages, however, if the employer demonstrates by "clear and convincing" evidence that it would have made the same unfavorable personnel decision in the absence of the protected conduct. Any employer unhappy with the Secretary of Labor's decision has 60 days alter issuance of the final order to appeal the decision to the appropriate U.S. Court of Appeals.

Employers should be aware that any employment decision such as termination, demotion, or a transfer involving an employee who has engaged in protected conduct may result in a discrimination charge under this new provision. Employers should track employee safety complaints and carefully scrutinize major employment decisions involving complaining employees.

(1) The Act is meant to work in conjunction with the pipeline safely laws found in Title 49 of the United States Code and applies to all "pipeline transportation" and "pipeline facilities." The term "pipeline facilities" includes pipelines, rights of way, facilities, buildings, or equipment used or intended to be used in transporting gas (which is defined as "natural gas, flammable gas, or toxic or corrosive gas") and hazardous liquid (which is defined as a petroleum or petroleum product, or any substance the Secretary of Transportation decides may pose an unreasonable risk to life or property when transported by a hazardous liquid pipeline facility in a liquid state). 49 U.S.C. [section] 60101(a)(2),(3),(5), (18), and (19). "Pipeline transportation" includes the gathering, transmission, or distribution of gas or hazardous liquid by pipeline or the storage of gas or hazardous liquids. Anyone covered under the pipeline safety laws found in Title 49 of the U.S.C. must comply with this new Act.

(2) The facilities included under the section are those located in an area defined under chapter 192 of Title 49 of the Code of Federal Regulations.

(3) Section 4(b)(1) of the Occupational Safety and Hazard Act deprives OSHA of jurisdiction over working conditions already subject to safety regulations promulgated by other agencies. 29 U.S.C. [section] 653(b)(1).

Julie Merten is an attorney in Vinson & Elkins L.L.P.'s Employment Litigation and Labor Section in Houston.
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Title Annotation:The hub: a guest column
Comment:Behind the Pipeline Safety Improvement Act.(The hub: a guest column)
Author:Merten, Julie
Publication:Pipeline & Gas Journal
Geographic Code:1USA
Date:Dec 1, 2003
Previous Article:IPLOCA holds 37th annual convention.
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