Special permits and DHS security reviews at issue in House hearings

Pipeline & Gas Journal, August, 2008

PHMSA's laggard DIMP rulemaking was only one of the issues that arose during safety hearings at the House Transportation Committee's pipeline subcommittee. Subcommittee Chairman Rep. Corrine Brown (D-FL) put on a very spotty performance, fumbling with questions, and was clearly unfamiliar with the issues facing the pipeline industry. However, she made Johnson look good by comparison. Johnson gave brief, unenlightening answers to questions and leaned on Stacy Gerard, the longtime, top pipeline safety regulator at the DOT, for explicit answers to the questions of legislators.

Thankfully, Rep. Rick Larsen (D-WA), a member of the full committee but not the subcommittee, was in attendance to keep the hearing from descending into farce. Larsen was a major player in the writing of the 2006 PIPES Act and has taken an interest historically in pipeline issues because of the accident in Bellingham, WA in 1999.

Larsen pressed Johnson on PHMSA's plans for granting transmission lines exemptions from the integrity management program requirement that all lines in high consequence areas be re-inspected seven years after their first inspection. Gerard answered that PHMSA had "not yet" issued any waivers via special permits. She then explained that the secretary of DOT--Mary Peters--sent a letter to the House Energy & Commerce Committee outlining PHMSA's plans on exemptions. She did not disclose contents of that letter.

Terry Boss, senior vice president at INGAA, says he has not seen the Peters letter. Neither has the Energy & Commerce Committee nor PHMSA been willing to share a copy of it with INGAA. With regard to exemptions which could be supplied by PHMSA through special permits, Boss explains that no transmission company has yet applied for one. That is because the technical requirements are unclear and there are concerns these special permits will be granted regionally, not from PHMSA in Washington.

The other major issue that came up during the hearings was a report by the Inspector General at the Department of Homeland Security on the progress PHMSA and the Transportation Security Administration (TSA) are making in filling in the blanks of the Pipeline Security Annex they signed in August 2006. The annex is supposed to flesh out the Memorandum of Understanding (MOU) the DOT and DHS signed in September 2004 aimed at facilitating development and deployment of transportation security measures for all modes of transportation. The Annex addresses pipeline security only. TSA has primary authority for pipeline security.

Calvin L. Scovel III, the DHS Inspector General, told the subcommittee members the Annex required PHMSA and TSA to jointly develop an action plan by February 2007; but that deadline was not met. "To their credit, both PHMSA and TSA began to address these issues early this year and considerable progress has been made" Scovel said. "This progress, however, began nearly a year after the deadline agreed to in the Annex, and the action plan still does not contain all initiatives required by the Annex."

Scovel was also critical of TSA's implementation of the 9/11 Commission Act Congress passed in August 2007. It requires DOT and DHS to develop a plan to review the 100 most critical gas transmission companies' security plans and critical facilities by August 2008. The next step is to decide whether pipeline security regulations are needed based on the evaluated effectiveness of the TSA pipeline security guidelines now in place. Scoville was concerned that the TSA inspections of the 100 pipeline facilities are not adequately testing either those TSA guidelines or pipeline security infrastructure.

Scoville got into a polite war of words with John Sammon, the assistant administrator for transportation sector network management at TSA, who also testified. Scoville insisted any security assessment of the 100 top pipelines would be derelict unless those inspections went beyond a "paper review," which is what he said the TSA has in mind. Scoville emphasized that the reviews should include vulnerability testing including testing of how a pipeline would respond to a hypothetical cyber attack. "Until that happens, what we have are some pretty good paperweights" he said dismissively.

Sammon countered that the TSA was following the dictates of the 9/11 Act to the letter, which means inspecting critical facilities via an onsite inspection. He admitted TSA inspectors would not be doing any "covert" testing, but insisted the reviews would be more than a paper review.