EMERGENCY RULES
COMMISSION
1 This is an emergency rule-making proceeding to adopt rules that will become effective when filed. These emergency rules establish a methodology for collecting pipeline safety fees pursuant to legislative authority to meet the costs of conducting the pipeline safety program established in Title 81 RCW. The commission first adopted emergency rules addressing this topic on June 13, 2001, filed at WSR 01-13-045. Those rules will expire on October 12, 2001. The commission has filed at WSR 01-20-058 proposed permanent rules to address the needs satisfied by the emergency rules. This order adopts rules that are identical with the rules filed at WSR 01-13-045 and that will replace them to protect the public health, safety and general welfare until permanent rules are adopted.
2 The Washington Utilities and Transportation Commission is conducting this rule making pursuant to RCW 80.01.040 and 34.05.350. This proceeding complies with the Open Public Meetings Act (chapter 42.30 RCW), the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), and the State Environmental Policy Act of 1971 (chapter 43.21C RCW).
3 While the emergency rule process set forth in RCW 34.05.350 permits agencies to dispense with the requirements of notice and opportunity to comment, the commission did provide notice of its consideration of these rules, and did receive and consider written and oral comments on the proposal.1
4 The commission designates the discussion in this order as a concise explanatory statement,2 supplemented where not inconsistent by the commission staff memorandum presented at the open meeting3 where the commission considered whether to adopt emergency rules.
5 The purpose of these rules is to ensure a sustainable, comprehensive, pipeline safety program, to protect the health and safety of the citizens of Washington, and maintain the quality of the state's environment. This will be accomplished by securing permanent funding for the pipeline safety program through establishment of a regulatory fee imposed on hazardous liquids and gas pipeline companies.
6 The facts requiring emergency action, and the readoption of WAC 480-93-240 and 480-75-240 on an emergency basis, are as follows:
7 Section 2, chapter 238, Laws of 2001 requires that the commission establish in rule a methodology by which fees are set and collected to fund the pipeline safety program. The law became effective on July 1, 2001. Current funding authority for the existing pipeline safety program expired June 30, 2001. Without emergency rules in place, there would not be sufficient funds to meet program needs.
8 The commission filed a notice of proposed rule making (CR-102) on September 28, 2001, under WSR 01-20-058 to adopt the provisions of the rules, on a permanent basis. This filing demonstrates the commission's intention to adopt permanent rules establishing a methodology for collecting pipeline safety fees. The commission has observed, and will continue to observe, the full requirements of notice and opportunity to comment upon adoption of permanent rules in that rule making. The commission provided notice to industry of this proposal, received written and oral comments, and used those comments to develop the first emergency rules, which it readopts by this order. Interested persons have had a reasonable opportunity to comment and participate in the development of the rules.
9 The commission finds that the circumstances that required the initial adoption of WAC 480-93-240 and 480-75-240 are continuing and require that identical rules be adopted on an emergency basis in order to preserve the public health, safety, or general welfare. The emergency rules will remain in effect only until permanent rules are adopted.
10 The Washington Utilities and Transportation Commission
finds that an emergency exists. The commission finds that
immediate adoption of rules establishing a pipeline fee
methodology is necessary. The commission is actively undertaking
the appropriate procedures to adopt the rules as permanent rules.
When adopted those rules will replace these emergency rules.
1 Commission staff's open meeting memorandum dated June 13, 2001, sets out a substantial record of notice and comment for the time during which these emergency rules and their predecessors were under consideration. Many of the suggestions made by interested persons were incorporated into the adopted rules.
2 A concise explanatory statement as provided for in RCW 34.05.325 is not required in emergency rule makings. Because of the level of interest in this rule and the public involvement, the commission believes that it is appropriate to acknowledge the involvement by describing in a concise explanatory statement how comments affected the development of the rule.
3 June 13, 2001.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
12 THE COMMISSION FURTHER ORDERS That this order and the rules set forth in Appendix A, after being first recorded in the order register of the Washington Utilities and Transportation Commission, be forwarded to the code reviser for filing pursuant to chapters 80.01 and 34.05 RCW and chapter 1-21 WAC.
DATED at Olympia, Washington, this 11th day of October, 2001.
Washington Utilities and Transportation Commission
Marilyn Showalter, Chairwoman
Richard Hemstad, Commissioner
Patrick J. Oshie, Commissioner
Appendix A(2) The fee will be set by general order of the commission entered before July 1 of each year and will be collected in four equal installments payable on the first day of each calendar quarter, beginning July 1, 2001.
(a) The total of pipeline safety fees will be calculated to recover the costs of the legislatively authorized workload represented by current appropriations, less the amount received in federal funds through the Federal Department of Transportation's Natural Gas Pipeline Safety Program base grant. Federal grants, other than the federal base grant, received by the commission for additional activities not included or anticipated in the legislatively directed workload will not be credited against company pipeline safety fees, nor will the work supported by such grants be considered a cost for purposes of calculating such fees.
(b) Total pipeline fees as determined in subsection (a) will be divided between gas companies and interstate gas pipeline companies based on two components:
(i) The first component is direct assignment of average costs associated with a company's standard inspections, including the average number of inspection days per year, which will be determined annually. Standard inspections are conducted to comply with the state's participation requirement under the "Guidelines for States Participating in the Pipeline Safety Program" of the Federal Department of Transportation, Office of Pipeline Safety.
(ii) The second component is an allocation of the remaining program costs that are not directly assigned in (i). Distribution of these costs between gas companies and interstate gas pipeline companies will be based on miles of transmission lines as defined in WAC 480-93-005(18) and miles of main as defined in WAC 480-93-005(12) operated within Washington state.
(c) The commission general order setting fees pursuant to this rule will detail the allocation of program costs between gas companies and interstate gas pipeline companies, and the specific calculation of each company's pipeline safety fee.
(3) By April 1 of each year every gas company and every interstate gas pipeline company subject to this section must file an annual report as prescribed by the Commission that is necessary to establish the annual pipeline safety fee. By June 1 of each year the commission staff will mail to each company subject to this section an annual invoice showing an estimate of the quarterly amounts.
(4) All pipeline safety fees received from gas companies and interstate gas pipeline companies will be deposited to the pipeline safety account. For those companies subject to RCW 80.24.010, the portion of the company's total regulatory fee applicable to pipeline safety will be transferred from the public service revolving fund to the pipeline safety account.
(5) Any company wishing to contest the amount of the fee imposed under this section must pay the fee and, within 6 months of the due date of the fee, file a petition in writing with the commission requesting a refund. The petition must state the name of the petitioner; the date and the amount paid, including a copy of any receipt, if available; the amount of the fee that is contested; and any reasons why the commission may not impose the fee. The commission may grant the petition administratively or may set the petition for adjudication or for brief adjudication.
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(2) The fee will be set by general order of the commission entered before July 1 of each year and will be collected in four equal installments payable on the first day of each calendar quarter, beginning July 1, 2001.
(a) The total of pipeline safety fees will be calculated to recover the costs of the legislatively authorized workload represented by current appropriations, less the amount received in federal funds through the Federal Department of Transportation's Hazardous Liquids Pipeline Safety Program base grant. Federal grants, other than the federal base grant, received by the commission for additional activities not included or anticipated in the legislatively directed workload will not be credited against company pipeline safety fees, nor will the work supported by such grants be considered a cost for purposes of calculating such fees.
(b) Total pipeline fees as determined in (a) will be divided
between intrastate hazardous liquid pipeline companies and
interstate hazardous liquid pipeline companies based on two basic
components:
(i) The first component is direct assignment of average costs associated with a company's standard inspections, including the average number of inspection days per year which will be determined annually. Standard inspections are conducted to comply with the state's participation requirement under the "Guidelines for States Participating in the Pipeline Safety Program" of the Federal Department of Transportation, Office of Pipeline Safety.
(ii) The second component is an allocation of the remaining program costs that are not directly assigned in (i). Distribution of these costs between interstate and intrastate hazardous liquid pipeline companies will be based on miles of pipeline operated within Washington state.
(c) The commission general order setting fees pursuant to this rule will detail the allocation of program costs between interstate and intrastate hazardous liquid companies and the specific calculation of each company's pipeline fee.
(3) By April 1 of each year every hazardous liquids pipeline company subject to this section must file an annual report as prescribed by the commission that is necessary to establish the annual pipeline safety fee. By June 1 of each year the commission staff will mail to each company subject to this section an annual invoice showing an estimate of the quarterly amounts.
(4) All pipeline safety fees received from hazardous liquid pipeline companies will be deposited to the pipeline safety account. For those companies subject to RCW 81.24.010 the portion of the company's total regulatory fee applicable to pipeline safety will be transferred from the public service revolving fund to the pipeline safety account.
(5) Any company wishing to contest the amount of the fee imposed under this section must pay the fee and, within 6 months of the due date of the fee, file a petition in writing with the commission requesting a refund. The petition shall state the name of the petitioner; the date and the amount paid, including a copy of any receipt, if available; the amount of the fee that is contested; and any reasons why the commission may not impose the fee. The commission may grant the petition administratively or may set the petition for adjudication or for brief adjudication.
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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.