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Interview: SF City Attorney Dennis Herrera on Threat to Sue CPUC Over Lax Pipeline Regulation

| July 15, 2011
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Yesterday San Francisco City Attorney Dennis Herrera announced he had filed an “intent to sue” the CPUC and federal regulators for not enforcing federal pipeline safety standards.

The notice of intent to sue Herrera delivered late today is a legally-required precursor to civil litigation by San Francisco, which will seek a federal court order to compel the CPUC and the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration to enforce federal pipeline safety standards in an effective manner. (Full press release)

This morning, KQED’s Joshua Johnson talked to Herrera about the reasoning behind the legal action. Listen below; an edited transcript follows the audio.

Dennis Herrera on possible lawsuit against pipeline regulators

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Considering all the investigations, what prompted to you potentially pursue litigation?

What every one of those investigations or inquiries by the variety of agencies has revealed is that for quite some time both the federal government and the state CPUC have been asleep at the switch in terms of enforcing the Federal Pipeline Safety Act, which has a very strict regimen with respect to how pipeline safety laws should be enforced.

The independent review panel that issued its report last month and the NTSB have both been highly critical of CPUC for its lax enforcement of the act. What we are seeking is a court order to mandate the federal government and CPUC strictly enforce the act in accordance with its terms so we don’t have a repeat of what we had in San Bruno.

Every one of the inquiries has kind of just said ‘okay what happened?’ But there is no mandate at all that the CPUC change its enforcement regimen to make sure that it is strictly enforcing the law to protect public health and safety.

If you sued the state and federal governments and if you won, theoretically what would tangibly happen?

What would happen is that there would be a court order mandating that certain endeavors be undertaken. Those would remain to be seen. But let’s look at an example of what could happen. The independent review panel report cited the CPUC for tremendously lax hiring in putting inspectors in the field. It faulted CPUC for not enforcing record-keeping requirements on PG&E.

so you could potentially see a much more robust requirement that CPUC provide oversight and inspection personnel to make sure the industry is adhering to the law instead of requiring what it has for quite some time: voluntary compliance by the regulated entities, PG&E and others. There’s been essentially voluntary compliance, an honor system as it were.

It sounds like this would not require lawmakers to write a new law, but abide fully by the existing law.

Right. The Pipeline Safety Act was passed in 1968. It provides the oversight regiment that federal government is supposed to adhere to. What we’ve seen in this country is that the federal government delegates that responsibility to state entities who are supposed to provide certifications throughout the year that they are faithfully adhering to the act. So this isn’t requiring any new law, it’s just mandating that the regulatory bodies carry out the responsibilities that they already have under the law.

In terms of the coziness between big companies and big regulators, how much headway do you think you can make with this law?

At this point I think this is the only way do undo the coziness. The fact of the matter is that it has existed for some time and I haven’t seen any action taken by the regulatory authorities which is going to break it up voluntarily.

Certainly there have been all sorts of promises about reviews. And I think those that have come out in the last several months have been good for what they are, casting light in a transparent way as to what’s been going on.

But the only way in my opinion to get this train running down the track is to have a court order mandate that everybody live up to their responsibilities.

In your press release, you also mention the three major gas transmission lines that run under high population density neighborhoods in San Francisco. Was that a central concern for you?

Absolutely we don’t ever want to see a repeat of what happened in San Bruno. That was a tragedy of epic proportions. And when you look at that there are three similiar transmission lines of similar vintage and that we don’t have accurate record-keeping available to us with respect to what the condtion is of those lines, and they run by hospitals, schools, under freeways, it’s of tremendous concern, and it’s my obligation as the chief legal officer of the City and County of San Francisco to make sure that laws are being faithfully adhered to.

What’s the timeline? What happens now?

The reason that I sent the letter was that under the statute, I am legally required before I file a lawsuit seeking relief under the Pipeline Safety Act to provide a 60-day notice letter of an intent to sue to the regulatory bodies themselves. And that’s what I did yesterday.

We’ll see what the response is. I’m hopeful that they’re going to live up to their responsiblities. If they were to give the adequate assurances that they would faithfully adhere to requriements of the statute, then we’re all ears. That’s why I directed them in my letter to make contact with us should they want to consult and demonstrate in a concrete way things they’re prepared to do. But if they don’t want to provide that assurance, then I’ll be suing in September.

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