BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION D R A F T In the Matter of Adopting ) DOCKET NO. TO-980905 ) WAC 480-75-005 and 480-75-223 ) GENERAL ORDER NO. R- ) Relating to Hazardous Liquid ) ORDER ADOPTING Pipeline Safety. ) RULES PERMANENTLY ) . . . . . . . . . . . . . . . . . . . . . . . . . . . ) The Washington Utilities and Transportation Commission takes this action under Notice WSR #98-23-027 filed with the Code Reviser on November 10, 1998. The Commission brings this proceeding pursuant to RCW 80.01.040. This proceeding complies with the Open Public Meetings Act (chapter 42.30 RCW), the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act of 1971 (chapter 34.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW). The proposal is undertaken so that Washington State will comply with federal requirements to retain certification under the Pipeline Safety Law, 49 U.S.C. Section 60101, et seq., and to participate in the federal pipeline safety program. The proposal will adopt, by reference, the federal hazardous liquids pipeline safety standards (49 CFR Part 195) and the drug and alcohol testing regulations (49 CFR Part 199) to conform state regulation of intrastate hazardous liquids pipeline companies with existing federal regulations. Furthermore, it will require that the Commission establish civil penalties at levels not to exceed the penalties specified in the Federal Pipeline Safety Law. The Commission filed a Preproposal Statement of Inquiry (CR-101) on July 16, 1998, as WSR #98-15-092. The notice advised interested persons that the Commission was considering entering a rulemaking on the adoption of federal (hazardous liquids pipeline safety) rules by reference with added statue provisions to bring state rules into conformity with existing federal rules. The Commission also informed persons of the inquiry into this matter by providing notice of the subject and the CR-101 to all persons on the Commission's list of persons requesting such information pursuant to RCW 34.05.320(3) and by sending notice to all persons and entities that Commission staff identified as having a potential interest. The Federal Office of Pipeline Safety, Western Region, provided written comments supporting the rulemaking proposed by the Commission. In addition, the Energy Facility Site Evaluation Council provided written comments supporting this proposed rulemaking. Ms. Claudia M. Newman with the law firm of Bricklin and Gendler, LLP, representing the Cascade Columbia Alliance, provided a written response in agreement that the Commission should increase the maximum level of penalties that may be assessed for hazardous liquid pipeline safety violations to the comparable federal level and adopt existing federal amendments since the last adoption. Ms. Newman, however, encouraged the Commission to adopt regulations that go beyond the requirements set forth in the federal law. Staff provided a written response to the suggested regulations and emphasized that the Commission was advocating the adoption of existing federal regulations only at this time. Staff stressed that pursuant to Governor Locke’s regulatory improvement executive order, the Commission has implemented a schedule to review each of the Commission’s rules. Chapter 480-75 WAC has been placed on that schedule for review and clarification in 2000 and staff will welcome the opportunity to discuss additional, more stringent regulations in that forum. Ms. Newman voiced no opposition to that response. The Commission filed a notice of Proposed Rulemaking (CR-102) on November 10, 1998, as WSR #98-23-027. The Commission scheduled this matter for oral comment and adoption under Notice WSR #98-23-027 in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 S. Evergreen Park Drive S.W., Olympia, Washington. The Notice provided interested persons the opportunity to submit written comments to the Commission until December 11, 1998. Ms. Susan Harper, Executive Director of the Cascade Columbia Alliance, telephoned staff questioning the correlation between the legislative action that occurred last February and March and the rulemaking process that is now occurring. Staff responded that the Commission last February was seeking legislative authority to amend the appropriate sections in RCW Chapter 81.88 and now the Commission is proposing the amendment of WAC Chapter 480-75 pursuant to the amendments authorized in RCW Chapter 81.88. Ms. Harper accepted that explanation. Ms. Harper, however, did voice concern pertaining to the language change proposed in WAC 480-75-005. Staff faxed documentation pertaining to the appropriate RCW and WAC Chapters and provided a written response to that concern. Staff explained that the change from “Operators of pipeline facilities” to “Hazardous liquid pipeline companies” in WAC 480-75-005 was implemented to maintain consistency with the language in RCW 81.88.040. Staff has telephoned Ms. Harper on several occasions to ascertain if the explanation was sufficient to address her concerns. At this time, staff has received no response from Ms. Harper. The rule change proposal was considered for adoption, pursuant to the notice, at the Commission's open public meeting on December 23, 1998, before Chairwoman Anne Levinson, Commissioner Richard Hemstad, and Commissioner William R. Gillis. After considering all of the information regarding this proposal, the Commission adopted the proposed rule amendment, without changes from the text noticed at WSR #98-23-027. The adoption of these rules will extend existing federal/state gas pipeline safety cooperation to hazardous liquids pipeline safety and will provide coordinated local/state standards to promote continued safe operations of pipelines within the state of Washington. The existence of common standards offers benefits to the public, to regulatory agencies, and to the regulated industry. In reviewing the entire record, the Commission determines that WAC 480-75-005 and 480-75-223 should be adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect pursuant to RCW 8.04.010 on the 31st day after filing with the code reviser. O R D E R THE COMMISSION ORDERS: 1. WAC 480-75-005 and 480-75-223 are adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect on the 31st day after the date of its filing with the Code Reviser pursuant to RCW 8.04.010. 2. This order and the rule set out below, after being recorded in the register of the Washington Utilities and Transportation Commission, shall be forwarded to the Code Reviser for filing pursuant to chapters 80.04 and 35.05 RCW and chapter 1-21 WAC. 3. The Commission adopts the Commission Staff memoranda, presented when the Commission considered filing a preproposal statement of inquiry, when it considered filing the formal notice of proposed rulemaking, and when it considered adoption of this proposal in conjunction with the text of this order, as its Concise Explanatory Statement of the reasons for adoption and for rejection of proposed changes, as required by RCW 34.05.025. DATED at Olympia, Washington, and effective this day of December 1998. WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION ANNE LEVINSON, Chairwoman RICHARD HEMSTAD, Commissioner WILLIAM R. GILLIS, Commissioner