On Friday, the 13th - the last day for filing bills in this year's session of the Texas Legislature, House Bill 4441 was filed by Rep. Yvonne Gonzalez Toureilles, in an apparent attempt to improve pipeline safety and reduce some of the problems relating to pipelines in urban areas.
In the parts of North Texas where the Barnett Shale is producing, there have been a variety of problems, and we have written about them and even produced a video about them here.
The problem with HB 4441 is that it takes away the very few rights of local governments to ensure the safety and well-being of their residents and property owners, specifically with regards to:
- Rights of way
- Screening
- Noise Suppression
- Set-backs from Protected Uses
If you can't understand why a city would want to control these things, then I BEG YOU to go watch the video "Deep Dish", where we show you what some of the problems are.
This proposed bill would grant the Texas Railroad Commission original jurisdiction over all of these things. Unfortunately, the Texas Railroad Commission is not only over-extended with its major task of maximizing oil and gas production, but it has demonstrated both a lack of will and a lack of ability to effectively advocate for environmental and public safety issues.
We feel that when it comes to the placement of pipelines, cities know best how to protect their own neighborhoods and protected uses. Three elected commissioners sitting in Austin, and lavished with campaign contributions from the oil and gas industry just cannot possibly come up with rules that will address the issues that cities are dealing with.
Though the bill does allow for an "appeals" process whereby a city or an operator can ask for variances, this process is essentially set up to allow the oil and gas operators to wiggle out of whatever restrictions the RRC might see fit to put in place.
Read on, for the full text of HB 4411, interspersed with my thoughts:
By: Gonzalez Toureilles H.B. No. 4441
A BILL TO BE ENTITLED
AN ACT
relating to the authority of the Railroad Commission of Texas to
establish standards regarding certain pipelines and appurtenant
facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter C, Chapter 81, Natural Resources
Code, is amended by adding Section 81.062 to read as follows:
Sec. 81.062. STANDARDS REGARDING PIPELINES AND APPURTENANT
FACILITIES. (a) The commission has exclusive original jurisdiction
WhosPlayin: "Original jurisdiction" would be what takes away the cities authority with regards to the follwing.
to establish standards regarding the following matters in
connection with natural gas, liquid hydrocarbon, hazardous
materials, and gathering pipelines and all facilities appurtenant
to those pipelines:
(1) design;
WhosPlayin: Cities typically don't want to get into design factors like what kind of pipe to use and other technical aspects that would be better left to subject matter experts at the Railroad Commission. We're fine with this.
(2) installation;
WhosPlayin: Cities need some types of authority with regards to installation:
- Set-backs from protected uses like homes, hospitals and day cares.
- Set-backs of appurtenant facilities from public streets, houses, hospitals, day cares, and other uses incompatible with the noise and dangers.
- Depth of burial in certain places, such as under creeks, streams, and waterways, or in other areas where surface easements are likely or planned
- Right of way placement with regards to future use plans. Only cities know best where that next public park, shopping center, train station, school, housing development, or library may be planned.
(3) operation;
WhosPlayin: Cities are not asking for any control over how pipeline operators run their pipelines. Cities do need to have permitting processes for certain things that pipeline operators may need to do from time to time, if those things may present an issue with public safety or would disturb the peace.
(4) environmental controls, other than environmental
controls under the jurisdiction of the Texas Commission on
Environmental Quality;
WhosPlayin: There may be some cases where cities can give better input about how to protect a given resource than the state, but largely the environmental regulations should be standardized and scientifically based.
(5) screening;
(6) noise suppression; and
(7) maintenance.
WhosPlayin: Cities need control over all of the above, to the extent that local regulations do not interfere with safety regulations. It is the local residents nearest these facilities that will have to live with the constant noise and eyesore that drives down their property values. Cities need to be able to protect their citizens from unreasonable denial of the use and enjoyment of their property.
While it would certainly be useful to have some statewide minimum noise and appearance standards, the state simply moves too slow to solve problems in this area. Cities need to be able to send out their police and code enforcement and demand compliance. Operators need to know that cities have a stick they can use.
Cities like ours want to be able to specify that appurtenant facilities are fenced and screened, and well-maintained in appearance with no junk or spare materials adrift. Cities have this authority for all other types of land use, whether it's residential, commercial, or industrial. The pipeline industry does not deserve a pass.
(b) In establishing standards under this section, the
commission shall:
(1) encourage the use of public streets, roads,
highways, and other public rights-of-way in connection with
pipelines and appurtenant facilities if:
(A) adequate space exists for an additional
pipeline or appurtenant facility in the right-of-way; and
WhosPlayin: This sounds basically good, in that we would all rather that pipelines travel along public roads and highways rather than across and through yards. There may be problems though, in allowing or requiring appurtenant facilities on rights of way. Generally, you would want compressor stations and such to be set back from a road to allow plenty of space for safety and future road expansion. You don't want to do anything here which would tie a city's hands with regards to its locally owned rights of way and surface uses.
(B) that use is practical and economically
reasonable; and
(2) require pipeline operators to minimize, to the
extent practical and economically reasonable, the effect of their
pipelines and appurtenant facilities on existing land use.
(c) A state agency, county, or municipality with
jurisdiction over public streets, roads, highways, or other public
rights-of-way may not prohibit the use of those rights-of-way for
pipelines or appurtenant facilities but may impose reasonable
conditions on that use.
WhosPlayin: Right now, what we have is that the courts have sided with cities like Grand Prarie, setting a somewhat vague but useful definition of "reasonable". With this bill, you're taking away the city's authority, but not defining "reasonable".
Again, think about a city-owned street, the kind we have here in Old Town Lewisville, with older houses and smaller residential set-backs. Not only would a city NOT want an appurtenance IN the street, but it would be quite reasonable to require that any street burial of a certain size of pipeline be a certain setback away from a protected use. We don't want to have the Texas Railroad Commission defining "reasonable".
(d) In establishing standards under this section applicable
to pipelines and appurtenant facilities located in the boundaries
of municipalities, the commission shall request and consider the
input of municipalities.
(e) The commission shall establish a procedure by which a
municipality or pipeline operator may obtain a waiver of a standard
established under this section. A request for a waiver may propose
the imposition of additional standards or the preclusion of the
application of an existing standard with regard to a specific
pipeline or appurtenant facility. The commission may grant a
waiver only after finding that:
(1) the waiver is in the public interest, taking into
consideration the interest of the general public and the interest
of the members of the public in the area traversed by the pipeline
with regard to which the waiver is sought;
(2) granting the waiver will not impose an undue
burden on the pipeline and its operation; and
(3) granting the waiver will not result in an undue
burden on the development of the natural resources of this state.
WhosPlayin: What you lose with this process is the system of checks and balances. The Railroad Commission's current sole responsibility is to SERVE the Oil and Gas industry. It has gone to court and testified that it has no responsibility for safety and environmental protection.
Pipeline operators will claim that EVERY regulation is an undue burden, and the rules process will either bog down or be flattened by the industry.
(f) The commission shall grant or deny a waiver not later
than the 60th day after the date the request for the waiver is filed
with the commission.
(g) The commission may delegate authority to grant or deny a
waiver to the director of the gas services division of the
commission.
(h) The commission may adopt rules related to standards
described by Subsection (a) as it determines necessary.
(i) The commission may impose an administrative penalty for
a violation of a rule adopted under this section in the manner and
amount provided by Sections 81.0531-81.0534.
WhosPlayin: The agency's penalties, in the rare case they issue anything other than a polite request to "stop that, or I'll ask you to stop again!", are so light as to make it more practical for some companies to simply pay the fines. What we need is for cities with police powers to be able to drive out and stop the bulldozers, and to levy fines each and every day that an operator ignores the law.
SECTION 2. This Act takes effect September 1, 2009.
We hope that our elected State Representatives and Senators will work out a better bill than this. It's a start, but the operators have had the upper hand for too long. The time is now for the state to put some power back into the hands of the citizens.
HB 4441 was sponsored by Yvonne Gonzales Toureillas (office phone (512) 463-0645). She is a member of the House Energy Resources Committee. The committee office clerk is Ky Ash, (512) 463-0774.
Other members of this committee are:
Myra Crownover (512) 463-0582
Joe Crabb (512) 463-0520
Tom Craddick (512) 463-0500
David Farabee (512) 463-0534
Rick Hardcastle (512) 463-0526
Tara Rios Ybarra (512) 463-0363
Mark Strama (512) 463-0821
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