104th
Congress: Democratic Perspectives 103rd-107th
Congress Committee Activity Despite its title, H.R. 1323, the `Pipeline Safety Act of 1995', is likely to undermine the current level of protection of the public health and safety provided by the Department of Transportation's pipeline safety program. In the name of greater government `efficiency,' H.R. 1323 diverts the program away from the existing commonsense approach based on inspection and enforcement. In its place, the bill substitutes the majority's now familiar alternative to reasonable regulation--unnecessary risk analysis, inadequate budgets, and cost-benefit requirements that undermine the very premises on which our public health and safety statutes are based.
The risk assessment and cost-benefit mechanisms borrowed from H.R. 1022 are particularly inappropriate to pipeline safety. The dangers and consequences of natural gas explosions or leaking oil pipelines are not speculative, and do not turn on actuarial tables or models predicting latent health effects. There is nothing novel about the dangers that degraded, compromised pipelines pose to public health, the environment, and property values. The consequences are obvious to anyone with even a passing knowledge of the many spectacular natural gas accidents of both recent and distant memory--accidents like Cleveland's in the 1940's, where hundreds of businesses and homes were damaged, or the Edison, New Jersey natural gas explosion of 1994, which destroyed an apartment complex and threatened hundreds of lives, or the 1993 Colonial Pipeline oil leak in Fairfax County, Virginia, which caused extensive property and environmental damage.
The risk assessment procedures imposed by H.R. 1323 will tie the Department of Transportation's pipeline safety program in knots. At the same time as the agency's dollar resources are being cut, the burden on agency personnel to build useless models and risk assessment analyses is being increased. As a result, the Department's shrinking resources will be taken away from inspection and enforcement, the only practical tools for protecting public health. Instead, an increased percentage of the Department's budget will be devoted to analyzing whether a threat to public health exists. This is not a question requiring further study; a cursory reading of old newspaper accounts confirms the risks and the consequences of pipeline accidents.
Even more offensively, the bill demotes protection of human life to a function of cost-benefit analysis. Under the legislation, the Department of Transportation is barred from issuing regulations to protect public health and safety unless it shows that the costs are justified by the benefits. The burden of proof is on the Department.
The effect of this legislation is to place a higher premium on practical information gathered in the field--what is the status of a particular pipeline, what sort of maintenance is needed to ensure its safety? This might not be all bad if the agency's resources were being increased to take into account the new burdens imposed by the bill. But instead, the agency will be unable to obtain this information because the bulk of its resources will be devoted to risk assessment exercises. Without that information, it will be unable to prove that costs to industry are likely to be justified by benefits to public health and the environment. As a result, it cannot issue regulations. And by authorizing few dollars for the agency and requiring it to devote a higher percentage of its budget to analysis, the bill decreases the funds available for inspections and enforcement.
This legislation may appear to be a marvelous development for industry, and it is no surprise that elements of industry had a heavy role in its drafting. In the short run, it will save industry money, through reduced user fees.
In the long run, however, the costs to industry and to those who supported this legislation are likely to be quite high. Saving money is an important goal, but it is no substitute for the far more important objective of saving lives. Today's self-serving theoretical arguments about the virtues of models and analysis will mean little to the apartment dweller whose building is blown up, to the business owner whose property is damaged, or to the homeowner whose property value is reduced because of pollution due to leaking pipelines.
John D. Dingell.
Edward J. Markey.
Edolphus Towns.
Frank Pallone, Jr.
Sherrod Brown.
Ron Klink.
Bart Stupak.
Elizabeth Furst.
H.R. 1323, as approved by the Committee, allows corporate insiders and lobbyists to serve on the peer review panels that will be empowered to review all proposed Department of Transportation (DOT) pipeline safety regulations. The peer review provisions of this bill are exactly the opposite of what we should be trying to do with the scientific peer review process. Allowing individuals with financial or other conflicts-of-interest to serve as peer reviewers degrades the credibility of peer reviews and calls into question the fundamental scientific and technical credibility of the entire process.
The bill would transform two existing pipeline safety policy advisory committees to the DOT (the Technical Hazards Liquid Pipeline Safety Committee and the Technical Pipeline Safety Standards Committee) into peer review panels. These industry-dominated committees will be responsible for reviewing all DOT pipeline safety regulations, preparing reports on `any significant standard or regulatory requirement' proposed by the Department and providing `an evaluation of the technical scientific merit of the data and scientific method used for a risk assessment document or cost-benefit analysis.' The Secretary of Transportation would be required under the bill to review and provide a written response to any of the so-called `peer review' recommendations before the rules become effective.
At the same time, the bill decreases public transportation on technical safety standards committees (from 6 to 5) and increases industry representation (from 4 to 5), thereby assuring that the public representatives (some of whom are themselves consultants to the pipeline industry) will never be able to outvote the industry representatives.
Right now, the Technical Hazards Liquid Pipeline Safety Standards Committee and the Technical Pipeline Safety Standards Committee are already empowered to provide policy and advice to the Secretary of Transportation on proposed rules, which the Department is free to accept or reject in light of the biases that might surround such recommendations. Peer review panels--in contrast to policy advisory committees--are supposed to be objective scientific and technical watchdogs. Unfortunately, the peer review panels established under this bill are more likely to become industry lapdogs.
Under H.R. 1323, gas pipeline industry lobbyists, consultants and corporate insiders will be free to battle pipeline safety rules they don't like by misusing what is supposed to be a neutral and scientific peer review process to either generate pressure on the agency to drop a rule proposal or generate a basis for subsequent litigation challenging the rule. The net result will be that important safety rules could end up being slowed down, weakened, or even blocked.
In this regard, I must note that the history of the DOT advisory panels is somewhat mixed when it comes to protecting public health and safety. For example, in 1988, the Department of Transportation proposed regulations to require operators to pipelines to have an anti-drug program for employees who perform certain sensitive safety-related functions, including drug testing prior to employment, after an accident, randomly, and upon probable cause. One of the technical advisory Committee that H.R. 1323 proposes to transform into an `peer review' panel voted 11-0 not to support the proposed rule--arguing that `the need for such a rule has not been demonstrated.' The other technical advisory committee voted 9-4 that the proposed rule was `feasible' but recommended several weakened changes. Fortunately for the American public, DOT went ahead with the rule. The pipeline industry then tried unsuccessively to sue the Department over the rules. If H.R. 1323 had been in effect, DOT might well have been prevented from adopting rules to protect the public from the risk that gas pipeline operators have an effective anti-drug program, including drug testing of employees who are in sensitive positions that could affect public safety.
I must also note that H.R. 1323 has even weaker conflict-of-interest provisions than the watered-down provisions of H.R. 1022, the House-passed Risk Assessment bill that was part of the GOP's so-called `Contract with America.' Even this bill provided that `in the case of the regulatory decision affecting a single entity no peer reviewer representing such entity may be included on the panel' (emphasis added). H.R. 1323 doesn't even have this restriction.
During the Committee's markup, I offered an amendment--which was unfortunately rejected on a 19-23 party-line vote--which would have allowed the Secretary of Transportation discretion to exclude persons from serving as peer reviewers if they have a conflict-of-interest that could result in bias. Under any amendment, the Secretary could exclude members of the two advisory committees from serving as peer reviewers when they are associated with entities that may have a financial interest in the outcome, unless such interest is disclosed to the agency and the agency has determined that such interest will not reasonably be expected to create a bias in favor obtaining an outcome that is consistent with such interest. This would give DOT the ability they need to receive both full disclosure regarding any potential conflict-of-interest that could potentially lead a peer reviewer to have bias, and authority to exclude reviewers whose associations may give rise to such a conflict. Under my amendment, industry could still be represented on a peer review panel except in cases where there was a conflict-of-interest which could lead to a bias.
The opposition of the Republican Majority to this common sense provision was inexplicable, and raises serious concerns about whether the peer review process will operate effectively to assure that agency rules have a strong scientific or economic basis, or whether the process will merely be exploited by parties with an interest in the outcome of agency rules to generate additional unnecessary and vexatious litigation challenging agency rulemakings.
Edward J. Markey.
104th
Congress: Democratic Perspectives
103rd-107th
Congress Committee Activity