In response to recent oil spills by rail and pipeline as well as a report by DOT’s Office of Inspector General criticizing PHMSA oversight of state pipeline safety programs, states are becoming increasingly active in oil spill response and oil transportation safety. Under the Oil Pollution Act of 1990 (OPA), state spill response regulations may exceed federal requirements. 33 U.S.C. 2718 (stating that OPA does not preempt a State’s imposition of additional liability or requirements regarding oil releases within the State or any removal activities associated with a release). Some states, including California, Washington, Oregon, and Alaska, already impose additional spill response requirements.
Recent laws passed by the Minnesota and New Hampshire legislatures are also intended to supplement existing federal oil spill response requirements. These new programs affect the transportation of oil by both rail and pipeline in those states. The Minnesota law authorizes the agency overseeing oil transportation in the State to perform rail and pipeline spill and discharge preparedness activities and requires certain operators, including railroads, to submit State spill response plans. In addition, the law imposes a fee on operators that transport oil in the State to provide local fire departments with equipment and spill response training. The State will also study oil transportation incident preparedness. A New Hampshire bill, which passed the legislature and is expected to be signed by the governor, requires owners of oil pipeline facilities to submit spill response plans and imposes certain notification requirements. In addition, a subsequent bill passed in New Hampshire this month establishes a committee to study the safe delivery of oil and gas by rail and pipeline in the State.
The federal Pipeline Safety Act expressly preempts states from regulating interstate pipeline transportation safety. 49 U.S.C. 60104(c). State regulation of intrastate pipeline safety may exceed federal standards, but only in those states that have been certified by DOT. Id. Fourteen states have been certified to regulate intrastate hazardous liquid pipelines and all fifty states have been certified to regulate intrastate natural gas pipelines (and may exceed federal standards). Of those states, several have recently proposed legislation regarding excavation damage, public awareness, and bringing civil penalty amounts in line with federal maximums. See e.g., Massachusetts, Michigan, Missouri, Ohio.