|Secret Fuel Pipelines Crisscross Richmond
October 17, 2007
It all started when a Richmond resident, noting “petroleum pipeline” signs along Cutting Boulevard, the Richmond Parkway, and Hilltop Mall, asked me if there is any information available about the location of pipelines in Richmond that carry potentially hazardous petroleum products.
That seemed like a reasonable request, but knowing that reasonable requests for information are often not met with enthusiasm or a sense of urgency by City staff, I made an official Public Records Act request.
It turns out that, yes, the City does have that information, and it is conveniently mapped in the City’s GIS system. But no, I could not have access to it. Here is what I was told by the City Attorney’s Office:
I am writing to confirm the response provided to you at the meeting last week about your request under the California Public Records Act (“PRA”) and Richmond’s Public Information Ordinance (“RPIO”) for records indicating the locations of underground utility pipelines in Richmond. For the reasons set forth below, it our conclusion that the records you seek are not subject to disclosure under these public records laws.
By its terms and as established by case law, the PRA is to be construed broadly in favor of disclosure. That approach to construing the PRA is amplified by the RPIO. Yet, despite this presumption favoring disclosure, both the PRA and the RPIO recognize that there are certain categories of documents that, for sound public policy reasons, are protected from disclosure. In our view, the records you seek are the type of records that should be shielded from disclosure under the terms of these two laws.
As a threshold matter, we wish to make clear that the concerns expressed below are based on the fact that under the PRA, once the City makes records public to one individual, the City may not subsequently refuse to make those records available to other members of the public who seek them. (Government Code Section 6254.5) In other words, in responding to your question, we must consider not only the laudatory purposes for which you may wish to use the record, but also the troubling ways in which such records could be used.
First, Government Code section 6255 permits a local government agency to withhold records from disclosure where the public interest in withholding the record clearly outweighs the public interest in disclosure. Based on our conversations with the Fire Chief, it is our view that this provision of the PRA protects the records you seek from disclosure, and nothing in the RPIO alters this conclusion. He has expressed his concerns, which we share, that disclosure of the precise locations of all utility pipelines in the City poses a significant threat to public safety. Indeed, there has been one at least one recent plot involving an attempt to use an underground pipeline to cause significant injury and damage. (See “JFK arrests raise issue of pipeline vulnerability,” http://www.msnbc.msn.com/id/19004393/.) Accordingly, while we do not discount the fact that there may be some public interest in providing members of the public information about the location of such pipelines, it our view that the public interest in nondisclosure clearly outweighs the public interest in disclosure. On this basis alone, the records sought are not subject to disclosure under the PRA and RPIO.
There is a second, independent basis for concluding that the records sought are not subject to disclosure under these laws. According to the City’s Engineering Department, the information about the location of pipelines was provided to the City in confidence. Under California Evidence Code section 1040, incorporated in the PRA by Government Code section 6254(k), that information is protected from disclosure by the official information privilege. That privilege provides that a government agency need not disclose information provided to it in confidence if “disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.” Again, for the public safety reasons explained above, that requirement is satisfied here.
Please feel to contact us if you wish to discuss this matter further.
I may have been elected by Richmond residents as their City Council member with the highest number of votes cast is Richmond history, but that doesn’t mean I need to know where pipelines carrying flammable and explosive fuel products are.
And I thought part of my job was developing public policy that enhanced the safety of people in Richmond. If you don’t know what and where the danger is, how can you address it?
I recalled that just a few miles away in Walnut Creek on November 9, 2004, a pipeline explosion at a pipeline owned by KMGP Services Company Inc., a subsidiary of Kinder Morgan G.P. Inc, killed five people, seriously burned four others, resulted in residential fires in nearby apartments, the closure of city streets and the evacuation of Las Lomas High School, which is across the street from the explosion site. KMGP Services Company Inc., also operates pipelines running through Richmond. Kinder Morgan is a pipeline transportation and energy storage company that operates nationwide with 38,000 miles of pipelines.
The Walnut Creek explosion resulted in the conviction of the KMGP Services Company Inc. on six felony counts. The explosion and resulting fires were caused by employees of the company failing to follow damage prevention procedures. The company was charged according to a plea agreement and ordered to pay a fine and penalty assessment of $10 million in the criminal case and $5 million in the civil case. The $15 million was separate from the $69 million in payments made to the families of the five workers killed, the four severely burned, and the people whose apartments were burned.
The California Division of Occupational Safety and Health (Cal/OSHA) said the primary cause of the accident was that Kinder Morgan, a Houston-based company and the nation's largest owner of liquid fuel pipes, inaccurately marked the location of the fuel line. The failure to mark the line along South Broadway led an excavator to hit and rupture it, which caused the explosion. Kinder Morgan was cited with two "serious willful" violations of California worker safety laws for not marking the pipeline accurately.
I found it interesting that the Pipeline Safety Trust, a nonprofit public charity promoting fuel transportation safety through education and advocacy, believes that by increasing access to information and building partnerships with residents, safety advocates, government, and industry, will result in safer communities and a healthier environment.
The Pipeline Safety Trust believes that one area where local government does play an important role in pipeline safety is through zoning and land use rule making. Transmission pipelines were once built mainly in rural areas, but as our cities and towns expand outward new businesses and housing developments are encroaching on pipeline right-of-ways. Often entities such as local school boards or hospitals have little or no knowledge of pipelines, so it is important that local communities think about the siting of such structures near pipelines. Below are some strategies that communities are starting to embrace, along with links of where to get more information.
· One way that many communities have started to protect both their citizens and the pipelines is by passing setback ordinances that designate the minimum distance that different types of buildings can be built near a pipeline. To review some sample and actual setback ordinances click here.
· There have been situations around the country where people have bought property only to find out later that there are existing or proposed pipeline right-of-ways on or near that property. This has caused much unnecessary conflict between property owners, pipeline operators, local government, and real estate professionals. One very basic way to avoid such conflict is to ensure that those buying property have been clearly notified about the right-of-ways that exist so they can make an informed decision about buying such property. Some states and local government have passed disclosure laws to ensure such clear notification. To review some sample disclosure laws click here.
I also recalled that many cities collect substantial franchise revenue from utility companies for operation of pipelines in cities. For example, San Francisco collects over $10 million annually in franchise fees. When I inquired to City staff about Richmond’s franchise fees and revenue, no one knew anything about it.